Judicial Control of Delegated Legislations

CTL CLASS – 28^TH APRIL 2011)

 

© JABA SHADRACK, Department of Public Law, School of Law (Formerly, Faculty of law) at the University of Dar es Salaam, Tanzania

  Lecture III

1. A Recap of/to Lecture II
   
2. Court's reasons for nullifying Delegated Legislation
   

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            A Recap of/to Lecture II

• Show the cons and pros of Delegated Legislation in the law making process.
  
• With vivid examples, critically examines the role of the National Assembly in controlling legislative powers delegated to Ministers and Local Authorities in Tanzania.
  
  
  Court's reasons for nullifying Delegated Legislation

There are several grounds upon which courts can review quasi-legislative powers of administrators. Usually, courts control delegated legislations through judicial review (by employing the
doctrine of ultra vires). The doctrine of ultra vires comes into play where the legislating body (person) sidestep procedures or substantive matters provided in the Enabling Act or other laws of the land, thus the concept procedural and substantive ultra vires. Now, let us look at the specific grounds which form part and parcel of the doctrine of ultra vires; 

(a) Where a delegated legislation is inconsistent with any written law of the land (i.e. enabling/parent Act, other principal legislations, or the Constitution.

• Article 64(5) of the Constitution of Tanzania, 1977 (RE: 2005).
  
• Section 36(1) of Cap. 1 (RE: 2002)
  
• Chester v. Bateson (1920) 1 KB 829
  
• Heridas v. Kericho U.D.C 1965 EA 370
  
• Powel v. May 1946 K.B 330.
  
• Kanji v. Tanga Township Authority 1940 1 TLR 339.
  
• Koinage Mbiu v. R (1951) 24 (2) KLR 130.

(b) Where the enabling/parent Act is Unconstitutional, therefore delegated legislations made thereunder becomes invalid.

NB:

Repealing of an Enabling Act does not invalidate delegated legislations made thereunder.

Section 33 of Cap. 1 (RE: 2002).

(c) Where the delegated legislation was not made by the authorised person or body (i.e. the rule against sub-delegation of public powers/exercise of power by a wrong person).

• Blackpool corporation v. Locker (1948) 1 ALL ER 85
  
• Heridas v. Kericho U.D.C 1965 EA 370
  
• Remtulla Gulamani v. R (1936) 1 TLR (R) 203.
  
• Maxim: delegatus no potest delegare
• Sub-delegation v/s Alter ego principle

(d) Where a delegated legislation has retrospective effect.

• Howell v. Falmouth Boat Construction Co. Ltd. (1951) 2 ALL ER 278
  
• Malloch v. Aberdeen Corporation (No. 2) (1974) S.L.T 5

(e) Where a delegated legislation is made without consultation of affected interests (failure to consult).

Rollo v. Minister of Town & County Planning (1948) 1 ALL ER 13 (17).

(f) Where a delegated legislation is made without being publicised or gazetted (failure to publicise).

• Section 37(1)(a) of Cap. 1 (RE: 2002).
  
• Johnson v. Sargant (1918) 1 KB 101.
  
• Hotch v. US (1954) 212 F 2d 280

(g) Where there is a failure to lay a delegated legislation before the National Assembly.

• Section 38 of Cap. 1 (RE: 2002).
  
• R. v. Sheer Metal Craft (1954) 1 ALL ER 548. 

(h) Where a delegated legislation is unreasonable, uncertain or ambiguous.

• Kruse v. Johnson (1898) 2 QB 91.
  
• Arlidge v. Islington Corporation (1909)2 KB 127.
  
• Nash v. Finlay (1901) 66 JP 183.
  
• R. v. Hermitte (1938) 18 KLR 55.

(i) Where the power to make a delegated legislation is exercised malafidely (in bad faith). 

• R. v. Comptroller-General of Patents (1941) 2 KB 306.
  
• Kruse v. Johnson (1898) 2 QB 91.

References:

Thakker (1998) Lectures on Administrative Law, p. 99-141;

The Legal Aid Committee of the UDSM - Faculty of Law (1985) Essays on Law and Society. Sapoba Bookshop Press, Uganda.