Looking for a file in my computer, I stumbled upon this that I wrote a year or so ago, in relation to a debate/conversation that I was having with friends on facebook. Now I said why not and posted it here.
The thesis
The thesis is: regulation can be used to amend provisions of a proclamation provided that there is clear substantive basis in the proclamation which the regulation is meant to amend. To illustrate this we can take the following hypothetical proclamation and regulation.
Hypothetical Proclamation
Whereas the government has responsibility to protect and promote the safety of its citizens;
Being concerned by cases of physical injuries suffered by people while trying to change flat-tires;
Being convinced that customers paying for flat-tire changing services have a legitimate expectation to receive meeting quality standards and that this expectation must be protected by law;
Being concerned by widespread complaint of unprofessional and sub-standard work by people who change flat-tires for consideration;
Therefore, in accordance with Article….. of the Constitution, the House of People Representatives issues the following proclamation
Article 1: Title of the Proclamation
xxxxx
Article 2: Definition
xxxxxx
Article 3: Objective
The objective of this legislation is to ensure that physical injuries suffered by people while changing flat-tires is minimized as much as possible and to ensure that customers soliciting flat-tire changing services receive value for money service.
Article 4: License required
Whoever, for consideration, provides a flat-tire changing service shall obtain a license, issued in accordance with the following provisions, without which it is not allowed to provide such a service.
Article 5: Flat Tire Administrative Agency
The license mentioned in Article 4 will be issued by the Flat Tire Administrative Agency which is hereby established as an agency responsible to the Ministry of Trade.
Article 7: Licensing Conditions
The Flat Tire Administrative agency shall make sure that following conditions are fulfilled by the applicant before issuing the license. The Council of Ministers may through a regulation amend or repeal any of these conditions:
The applicant must present a medical certificate from properly accredited organization that he is in a very good health condition and that he could engage in activities requiring physical exertion;
The applicant must present a letter certifying that he is a member of the Ethiopian Flat-Tire Changers Association;
The applicant must be at least 21 years old;
The applicant must not have previous criminal record;
The applicant must be an Ethiopian national;
The applicant must be in possession of a liability insurance covering him to the extent of 200,000 Birr.
Article 19: Whoever, being required to have a license, is found to have changed a tire without having been licensed, shall pay a fine not exceeding 900 Ethiopian Birr.
Hypothetical regulation
Two weeks after this proclamation, a regulation is issued by the Council of Ministers. Among others the regulation has the following Article:
Article 3: Minimum Age for Flat-Tire License
The minimum age for having a license is changed from 21 to 18 years old.
Defending the thesis
The thesis that I am trying to defend is stated above. I am submitting here that, in the above hypothetical proclamation and regulation, the part of the regulation (Article 3) which is meant to amend a provision of the proclamation (Article 7) is valid. The defense is composed of the following elements.
The above regulation is based on a clear delegation of legislative power embodied in the proclamation. I am assuming here that there is no argument that the HPR can delegate legislative power to the Council of Ministers.There is no express provision in the Constitution which says that the HPR cannot delegate to the COM a power to amend a proclamation;
Not only there is no express provision in the Constitution which says that the HPR cannot delegate to the COM a power to amend a proclamation, but such express provision would not also serve any purpose. The reason for this is: if there was such express provision in the constitution, then a parliament which is determined to delegate the power to specify the conditions for getting a license (I am referring to the hypothetical example) would rather use a broader delegation of legislative power. That is to say, instead of formulating Article 7 as above, it would formulate it like this: “The Flat Tire Administrative agency shall make sure that specific conditions are fulfilled by the applicant before issuing the license. The Council of Ministers shall through a regulation determine these conditions.” Following this, therefore, the COM could set, among others, the minimum age at 18. In such cases, therefore, we would not be able to argue that the COM is amending a proclamation because in the first place the minimum age was not specified in the proclamation and hence does not amount to amendment. Now my point is that: there is no substantive difference between the first case where the licensing conditions were originally set by the HPR and the COM was delegated to amend the conditions through a regulation and the second case where the licensing conditions were not set in the proclamation and the COM was delegated to determine the conditions in a regulation. In both cases, the COM is involved in actions which have the same substantive quality; that is deciding the conditions for getting a license.
Not only there is no substantive difference between the two cases, but the first case might also be a prudent approach in motivating the COM to act. One of the problems as far as delegation of power is concerned is that the delegated entity may procrastinate in exercising that power. There are many cases where the COM was delegated to pass regulations or where individual ministries and agencies were delegated to pass directives, but for a long time, the expected regulation or directive did not surface. This will give the impression that delegation is being used as a technique for shelving, instead of solving, problems. Countries use different legislative techniques to address this problem. It is common, for example, to have an in-built deadline—telling the delegated entity to produce the secondary legislation by a specified date. Or ‘interested parties’ may be entitled to formally request the delegated entity to exercise the delegated power; the delegated entity would then be required to respond to this request; if legal reasons are given by the delegated entity for not exercising its delegated power, the court may be called upon to review the reasons. In my view, choosing the first case (determining the conditions in proclamation and allowing the COM to amend the conditions in the form of regulation) will solve the problem of a procrastinating COM than the second case (delegating the COM to determine the conditions). That means, the conditions originally set in the proclamation would serve as default conditions. It is also known that default options are often sticky and hence proper care must be taken by the legislature even in choosing the default options.
This is also without losing sight of the residual (ultimate) power of the HPR to review and revise whatever is produced by the COM.
Each element of the defense on its own may not take me to my desired destination (the thesis) but it is my view that one element tied to the other forms a long and strong rope to serve as a bridge.
Dealing with counter-arguments
The thesis offends ‘hierarchy of laws’
The purpose of this section is to deal with counter-arguments that are and can be raised against the above thesis. The fist argument relates to the concept of ‘Hierarchy of Laws’. There is a hierarchy of rules in the sense that some rules are higher than the other; for example, proclamations are above regulations. The notion of hierarchy of rules is principally of use in the application of rules. When confronted with conflicting rules, the rule which occupied a higher position in the hierarchy of rules will prevail over that which occupies the lower position. Based on this, one may argue that regulations should not be used to amend proclamations. In other words, one may argue that in cases where a provision of a regulation contradicts with a provision of a proclamation, the provision in the proclamation should prevail over the provision in the regulation; that is, the provision in the regulation cannot be regarded as a proper amendment of the provision in the proclamation. I generally agree with this argument: normally regulation is subordinate to proclamation and hence cannot be used to amend a proclamation. But note that the thesis that I am defending is not a general thesis. It allows amendment only when there is a clear textual basis for that. As far as this specific thesis is concerned, therefore, one should go further and ask why regulations are subordinate to proclamations. The hierarchy among rules is a result of the hierarchy among their makers (the institutions which made the rules). If there is hierarchy of the makers of rules, then the rules made by the institution, which is higher in hierarchy than another, is higher in legal force than the rule made by the other institution. The rules made by COM are subordinate to the rules made by the HPR. This is because HPR is higher in terms of legal power than the COM. This is expressly stated in the constitution which states that the COM is accountable to the HPR and the HPR exercise the highest governmental authority. This is also justified because the HPR is supposed to be a representative of a broader section of the population than the COM and hence it is endowed with greater legitimacy than the COM. As a result, it is not proper for the regulation to amend provisions of a proclamation in the absence of a clear legal authority to that effect. The problem is when the HPR itself delegates clearly and expressly that power to amend to the COM. In such cases, I believe that it does not contradict the concept of hierarchy of laws as it is the HPR itself which has delegated that power. That means, the amendment though by an organ which is less representative is permitted by the organ which is more representative. Note that this is not an abdication of power and responsibility by the HPR. The HPR can still modify whatever is produced by the COM. Of course, this does not address the constitutionality and propriety of such delegation of power by the HPR but I believe that the issue of constitutionality and propriety of the delegation of such power (power to amend a provision in a proclamation) is a different issue and the notion of ‘hierarchy of laws’ is of little use.
The thesis offends democratic rule making
The other argument which is and can be raised against a regulation amending provisions of a proclamation is that it offends the principle and values of democratic rule making.
What is democratic rule making? I do not really know what do the people (making this argument) actually mean by democratic rule making but let me just say what I understand by democratic rule making and then respond to this counter-argument. As far as I am concerned, rule making can be democratic either because of the identity of the rule maker or (/and) because of the manner in which the rule is made. Rule making is democratic if the rule maker is representative of the population the rule is expected to affect. Democracy, in this regard, posits that a rule (by its nature) affects a broader section of the population and hence that rule is legitimate if it is made directly by that broad section of the population or by their duly elected representatives. Second, rule making may acquire democratic legitimacy (whether or not the rule is made by representatives of the people) if there was ‘meaningful’ chance for the participation and consultation of the people likely to be affected by the rule. Such is the case when the people likely to be affected by this rule are invited to provide their views and such views are properly addressed. It is not required for all the views to be accepted; however, for the participation and consultation to be meaningful, the rule maker ought to explain when it decides not to accept certain views.
A rule making should be democratic in the above two senses not only because it is good on its own right but because there are also utilitarian values to be served by it. The first value of democratic rule making is that it facilitates easy implementation and enforcement. Rules are normally enforced through threat of sanctions. Considering the problem of detecting every infraction, the threat of sanctions is not adequate to ensure an optimal level of compliance. Hence, it is important that a large section of the population must be convinced of the utility of the rule so as to result in voluntary compliance. Involvement in decision making through representatives and participatory procedures will help enhance the level of voluntary compliance. Second, law making through representation and participation helps control abuse of power; that there is a reduced risk of abuse of power when people are watching the process of rulemaking. The third value (my favorite) served by representation and participation has to do with the belief that the quality of rules is enhanced by the amount and quality of information and knowledge used as an input. Emanating from the conviction that no one has monopoly of information and knowledge and that knowledge and information is found dispersed in a society, the argument is that representation and participation allow the consolidation of information which will serve as a raw material for the rulemaking process.
The point is that rulemaking must be democratic in at least one of the above senses. Rulemaking cannot always be democratic in the first sense. Delegation of rulemaking is unavoidable to some extent and desirable to some other extent. Therefore, the question now becomes whether amending provisions of a proclamation through regulation is undemocratic in the above senses. Regulation is made by the Council of Ministers. Parliamentary government as it is, the Council of Ministers consists of people who largely come from the parliament which is supposed to be representatives of the people. Hence, the COM consists largely also of representatives of the people. Of course, we should be mindful of the fact that the HPR represents a broader section of the population than the COM. Whether an institution which represents a narrower section of the population can amend rules made by a broader section of the population even if the former is enabled by the latter is already dealt above. But the point here is that it is not completely undemocratic. Of course, it can be argued that it could be made more democratic; for example, through public participation and consultation. And I agree with this argument. I believe that the imperative of democratic rulemaking should be used to argue for the introduction of a general legislative framework of public participation and consultation in rulemaking by entities other than the primary legislature. Note that rules are made by not only the COM but also individual ministries, authorities, offices, agencies, boards and bureaus. In such cases, what we should argue is for mandatory public participation and consultation.
My point: we should argue for the introduction of public participation and consultation in the making of secondary legislation. However, it is not plausible for one to argue that a regulation cannot amend provisions of a proclamation (even when enabled by the latter) because doing so offends democratic rulemaking.
Additional issues and ideas for reform
Limits on delegation
Even if I defend the thesis above, I recognize that there should be a limit on what can be delegated by the HPR to the COM. Once such limits are discussed and elaborated, I recognize that there will be cases where it will not be desirable for the HPR to allow the COM to amend provisions of a proclamation through regulation. Or even more generally there will be cases where a certain delegation of legislative power will not be desirable. As opposed to other countries (e.g. United States), where there is a rich literature of what legislative power can and cannot be delegated by the primary legislature to executive organs, there is neither express constitutional limitation nor rich academic literature in Ethiopia. We can help remedy this deficiency. We can, for example, argue that delegation is not proper if it amounts to abdication of power; we can help demarcate the extent to which criminal legislation can be created on the basis of delegated power; we can argue that delegation should be accompanied by principles and objectives which will help to review if a specific exercise of delegated power is consistent with the parent legislation.
Ideas for reform
One element of my argument is that even if a proclamation is amended by a regulation, the HPR still has a chance to review and revise it. This assumes a proactive HPR. Considering the fact that the HPR might be blinded by other tasks from noticing ‘undesirable’ exercise of delegated power by the HPR, we can argue for the introduction of mechanisms that will bring such rules to the attention of the parliament. In the UK, for example, some secondary legislation is valid if they are tabled to and approved by the parliament. In others, secondary legislation is valid if they are tabled to and not objected by the parliament within a certain period of time. Still, there will be group of cases where tabling might not be necessary.
Another idea for reform is already state above; that there should be mandatory public consultation and participation framework applicable to cases where rules are made by governmental entities other than the primary legislature. We could draw insights from the notice-comment-model developed in the United States.
Secondary legislation used to amend primary legislation in India and UK
Note that I am not here trying to defend the thesis by citing the case of India and UK.
India
In India, the most common use of secondary legislation is to fill in details into the framework laid out in a primary legislation. Even then, this must be done according to a clear delegation which is usually expressed as follows: ‘the government may make rules to carry out the purpose of the Act’. However, there are also cases where secondary legislation is used for other purposes:
Power of inclusion and exclusion: “In this type of delegation, the legislative makes the law, but the power to bring individuals, institutions or commodities within the purview of the statute or to exempt them is delegated to the executive… For instance, the Minimum Wages Act, 1948, applies to employments mentioned in the Schedule, and the appropriate Government is empowered to add any other employment to the Schedule or to delete any entry from the Schedule, thereby excluding any particular employment from the application of the Act. In a number of cases, the courts have strongly held that in the case of delegating the powers of inclusion or exclusion to the Government, the relevant statute should contain the criteria, standards or principles for the guidance of the Government. Otherwise the delegation is liable to be struck down”.
Power to impose tax: “It is a well-established principle in any democratic system that taxing power should be solely within the domain of the legislature. The Constitution of India recognizes the principle by stating that ‘no tax shall be levied or collected except by authority of law’ in Article 265. Though taxing power as such is not delegated to the executive, various methods are now adopted which pass on the effective powers to impose tax to the executive. This is generally done by the following two methods: (i) a power to bring certain transactions or commodities under the tax or to exempt from tax is delegated… (ii) The power to fix the rates of tax is delegated to the executive. Generally, the statute fixes a maximum limit and allows the executive to vary the rates within that limit”.
Power to modify the statute: “This is considered to be the most drastic form of delegation. In the power of inclusion or exclusion also, the power of modification is involved. Another instance is the declaration contained in many statutes that the rules made under the Act would be operative even if inconsistent with some other enactments. In some cases, the power to modify a statute is conferred on the executive for making necessary adjustments while extending it to new areas”.
Power to bring an act into operation: “The law is made by the legislature and only the power to notify the date on which the Act will come into force is delegated to the executive. Here no lawmaking power as such is delegated”.
Power to extend the application of the Act: “In this case, the executive is given the power to apply an Act, which is in force in some other territory, to the territory under its administrative control. As a corollary to this power, the power to make such modifications as are necessary to the exigencies of the territory is also conferred on the executive”.
United Kingdom
In United Kingdom, delegated (or secondary or subordinate) legislation are known by different names. Section 21(1) of the Interpretation Act 1978 provides that the ‘subordinate legislation’ refers to Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act. Normally, secondary legislation is used in United Kingdom to fill the technical details of a primary legislation and also to bring a primary legislation into force. There are, however, two instances where secondary legislation can be used to amend primary legislation.
The first instance refers to what are known as ‘deregulation orders’, where secondary legislation is used to amend primary legislation to remove ‘red tape’ for business. These are known as Henry VIII clauses.
The second instance refers to Remedial Orders under the Human Rights Act 1998. It must be noted that in United Kingdom, owing to the principle of parliamentary sovereignty, courts are not entitled to strike down Acts of Parliament on the ground that its provisions contradict the European Convention on Human Rights. What they can do is to make a declaration of incompatibility. Following that declaration, the executive can pass secondary legislation amending the Act with a view to remove the identified incompatibility.