TUMAINI UNIVERSITY
IRINGA UNIVERSITY COLLEGE
FACULT OF LAW
LECTURER’S NAME: NYALUSI, (MR)
STUDENT’S NAME: MALAWA, BEATUS.
COURSE NAME: ADMINISTRATIVE LAW
NATURE OF WORK: INDIVIDUAL ASSIGNMENT
DUE DATE: 5TH DECEMBER, 2007
QUESTION
“It is evident that it is inconceivable that the protection should be extent without limit. If the
Minister went out of his province altogether…it is repugnant to common sense that the order
would be protected…” Minister of Health V R X.P [1931] App. Case 4. In the light of the above
statement discuss how delegation legislations can be controlled.
1
Delegation/ Subordinate/ Subsidiary legislations simply means, legislation made by
person or bodies under authority given by Act of parliament where such Act termed as parent Act
or enabling Act. It is a situation where by legislature entrust its function to particular person or
bodies to make law. Examples of delegated legislation are statutory order, statutory instrument or
bye-laws. In the Constitution of Republic of Tanzania under Article 97(5), allows parliament to
delegate its power to other bodies to make legislation on behalf of parliament. Delegated
legislations are inevitable infringement of the separation of power 1 because it is necessary for
cases where the parliament can not attend to small matters of detail2.
In the case of Minister of Health V R X.P [1931]App. Case 4, Lord Dunedin observed “it
is evident that it is inconceivable that the protection should be extent without limit. If the
Minister went out of his province altogether…it is repugnant to common sense that the order
would be protected…” the observation of Lord Dunedin was for the purpose of disapproving the
observation of Lord Herschell in the case of Institute of Patent V Lock Wood [1894] A.C 347
that, the jurisdiction of courts to question the validity of delegated legislation could be taken
away that is judicial review.
The observation of Lord Dunedin was correct because delegated legislation require being
approved by resolution of both Houses of Parliament and still falls on subordinate side of the
line, so that the court may decide its validity 3. It is unimaginable the protection should extend
without limit so that, Ministers and other bodies authorized to make legislation could make any
legislation as they think fit. Delegated legislation should be controlled in order to avoid arbitrary
us of power by government officials or other bodies.
There are various ways used to control delegated legislation in order to ensure those
legislation are made for the benefit of community, these ways are following:
Judicial Control: Most of the democratic countries accept court to determine validity of
delegation legislation. Through judicial control, there two types of judicial control such as
Substantive Ultra Vires and Procedural Ultra Vires.
1
Wade, H.W.R and Forsyth, C.F, Administrative Law, p. 859
2
Ibid. p. 862
3
Ibid. p. 875
2
Substantive Ultra Vires; the subsidiary legislation should go beyond the boundary of authority
which have been provided under the parent Act or the Constitution. The delegated legislature
must be in harmony with the constitution and other law of the land 4. The delegated legislations
which made beyond the power should be held invalid due to the following ground.
If the Parent Act is unconstitutional, the Parent Act/enabling Act is the Act which gives
conferred legislative power to executive. If the enabling Act itself is unconstitutional, delegated
legislation made under it will be held invalid example in the case of Tan Bug Taim V Collector
of Bombay AIR [1946] BOM. 216, the central government was empowered to make rules for
requisition of immovable property which was within the Federal Legislature. The court held that,
the rule was invalid.
If delegated legislation is inconsistent with parent Act, delegated legislation can be
criticized because is against the parent Act example in the case of Chandra Bali V R AIR [1952]
All 795, where a parent Act (Northern India Ferries Act) authorized making of rules ensuring
safety of passengers and property. The delegate made rules protecting the establishment of
private ferries. The court held that, the delegate was invalid. Also, Section 25(d)………
If the delegated legislation is unconstitutional, delegated legislation could be held invalid
even though it is consistent with valid parent Act. it could be invalid because it is
unconstitutional example in the case of Air India V Nargesh Meerza [1829] AIR 198 SC, the
Supreme Court held, the rule made by Air India International that, service of air hostess could be
terminated if they became pregnant is unconstitutional.
Unreasonableness, the court must condemn rules or regulation for unreasonableness 5 if
they involve oppressive or gratuitous interference with the right of those subject to them example
in the case of Kruse V Johnson [1898] 2Q.B 91, the court held that, the bye law that prohibiting
any person form playing music or singing in public place or highway within fifty yards of any
dwelling house was unreasonable.
Mala fide (bad faith), delegated power of legislation are always given for specific
purposes, if their use is for other purpose will be unlawful example in Western Australia, the
4
Thakker, C.K, Lectures on Administrative Law, p.102
5
Wade, H.W.R and Forsyth, C.F, Administrative Law, p. 879
3
regulations prescribing bus routes were invalid since the object was to protect the state-owned
trains from competition6.
The rule is against sub delegation, as general rule “delegatus non potest gelegate” (a
delegate can not delegate further) but the parent Act may authorize it, if there is emergency
example in the case of Remtulla Gulamali V R [1936] T.L.R 203, where the Governor given
power to make bye-laws, but the Director of Agriculture exercise the power on behalf of the
Governor. The Court held that, the terms of the law do not extend to confer such power upon the
Director of Agriculture but upon the Governor only.
Retrospective effect is the delegated legislation which has legal consequence to the acts
committed prior the enactment of the law. If the parent Act does not authorized retrospective
effect to legislation, obvious it will be prospective example in the case of Rice Mills V State of
A.P [1976] 3 SCC 37 the court held that, in the absence of express words form retrospectively
may be inferred, a notification takes effect form date on which it is issued and not from any prior
date.
Procedural Ultra Vires, the delegated legislation should comply with its procedural
requirement as provided by parent Act such as Publication and Consultation. Though procedural
means, we can control delegated legislations in order to be for the benefit of all society and not
for minority. In publication mode of publication, effect of publication defect of publication
should be considered example Pankaj Jain Agencies V Union of India [1994] 5 SCC 198, where
the notification was published in the government gazette on February 13, 1986 prescribing the
rates of custom duty which were to come into force from February 19, 1986. The notification
was held valid.
Also in case of consultation, officials, advisory bodies, statutory bodies, affected interest
or specified interest should be consulted, example in the case of Agriculture Training Board V
Aylesbury Mushrooms Ltd [1972] 1 W.L.R 190, the Minister was required before making an
order to consult associations. The Mushroom Growers was not consulted. The court held the
Mushroom Growers were not bound by the order because they are not consulted.
6
Wade, H.W.R and Forsyth, C.F, Administrative Law, p. 882
4
Legislation control; is another way of controlling delegated legislation. The underlying object of
parliament control is to keep watch over the rule making authorities and also to provide an
opportunity to criticize them if there is abuse of power on their part 7. Through legislative control,
there are two ways which are following;
Laying on table; is used to most of Common Wealth countries. Laying on the table is a
situation where executive authorities inform the legislature what rules have been made and it
provide a chance for legislators to challenge or question. Though this, legislator could exercise
supervision, check and control rules made by executive or other authorities. There are different
types of laying on table example, laying without further provision for control, laying with
deferred operation, laying in draft and requiring affirmative resolution.
Scrutiny Committees; these are committees which scrutinize and report to the respective
houses whether powers to make regulation, rules, order conferred by the constitution or
delegated by parliament are being properly exercised within such delegation 8. Example in
England the Select Committee on statutory instrument was established by the House of Common
in 1944.
Conclusively, though the above explanation, we have see how delegated legislation are
controlled. Delegated legislations is inevitable infringement of the doctrine of separation of
power because there is need of flexibility, where there is emergency, where the parliament is not
able to attend small matters of detail and technicalities faced member of parliament. Most of
delegation legislations made by executive in Tanzania are not follow procedures especially on
making it.
7
Thakker, C.K, Lectures on Administrative Law, p.133
8
Ibid. p. 137
5
BIBLIOGHRAPH:
The Constitution of United of Republic of Tanzania of 2005
Oluyede, P, (1973), Administrative Law in East Africa: Kenya Literature Bureau, Nairobi.
Thakker, C.K, (1980), Lectures on Administrative Law: Eastern Book Company, New Delhi.
Wade, H.W.R and Forsyth, C.F. (1994), Administrative Law: (7th Ed), Oxford University Press
Inc, New Work.
