Chapter Four

QUASI-LEGISLATIVE) POWER OF ADMINISTRATIVE

AGENCIES (DELEGATED LEGISLATION)
 UNIT FOUR
QUASI-LEGISLATIVE) POWER OF ADMINISTRATIVE AGENCIES (DELEGATED LEGISLATION)

• This chapter discusses how agencies make laws: binding laws with the same
force and effect as the laws enacted by the House of Peoples’ Representatives.
• The law-making power of the House emanates from the people. The members
are delegates (representatives) of the people.
• A portion of this legislative power is then re-delegated to the executive
branch.
• The term legislation refers to the process of making or enacting and
repealing law by the legislative branch of government.
• Agencies have that power of the legislation organ through delegation.
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 5.1 Definition of Rules and Rule-Making

• ‘Legislation’ refers to the sum of laws made by a parliament and laws

made on behalf of and with the express authority of that parliament.
• Delegated legislation is the exercise of legislative power by the executive
and administrative agencies in pursuance of authority given by
parliament.
• The act of “giving” such authority or power is known as delegation.
Simply put, the legislature delegates part of its law-making power to
government organs within the executive branch.
• These organs, in turn, in line with their delegated power, make binding
and effective legislation. In other words, they make “delegated
legislation”.
 Definition of Rules and Rule-Making

• Delegation refers to the act of entrusting another authority or empowering

another to act as an agent or representative.
• Transfer of authority by one of gov’t branch to another branch or
administrative agency. - Blacks Law
• Delegated legislation is a type of legislation made by a body to whom the
parliament has delegated its power to legislate.
• Those legislation enacted by bodies other than the legislature
• In principle, delegation is against the constitutional principle of separation
of powers.
• However, the practical realities of modern administration have made
delegation inevitable.
• To guarantee the legal and proper exercise of power, agencies should be
subject to a legislative procedure that ensures transparency, accountability,
and judicial oversight 4
 Rule making
• According to the Administrative Procedure Act, “rulemaking” means an
“agency process for formulating, amending, or repealing a rule,” and
“rule” means “the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency”
 What is a directive?
• The Federal Administrative Procedure Proclamation No. 1183/2020
does not employ a generic term such as rule-making or delegated
legislation to describe the agency’s legislative process.
• “Issuance of Directive”, as used in Sub-section one of
Section two of the Proclamation might be considered a somewhat
similar term, but issuance of directives is not wide enough in terms of
scope to include the whole rule-making process.
• The definition part of the proclamation is limited only to “directive”,
legislation made by agencies. The process or procedure is not defined.
Art. 2/2/ of the Proclamation defines “directives” in the following terms.
 What is a directive?
• “Directive” means a legislative document that is issued by an administrative agency
based on delegation of Power bestowed up on it by the Legislator which affects
people’s Rights and Interests.
• The term also includes the amendment, or repeal of an already existing directive.
• The descriptive definition fails to provide a clear differentiation between
administrative directives and decisions.
• Moreover, it does not address the basic characteristics of directives. Let us say one
tries to determine whether a certain document named “manual” or “code of conduct”
could be properly called a directive.
• Any attempt will be futile if the definition in the proclamation is to be used for such
determination.
• The core elements from the above definitions are: A directive is a legislative
document It is issued based on the delegation of power Affects the people’s rights
and interests Includes amendment and repeal of an existing directive
 5.2 Terminology and Nomenclature
• The study of rule-making might be confusing due to the lack of
uniformity in terminology.
• First, similar terms are understood slightly differently in different
jurisdictions. “Delegated legislation” in England or Australia has
ascribed a different meaning in Germany.
• There is also the possibility that another country will use different
terminology. Secondly, even within one jurisdiction, various terms are
employed to describe the same legal instrument.
Here we are concerned only with the generic terms used to describe
the legislative power of agencies and the process they follow in
exercising their power
 Nomenclature
• Delegated legislation and other similar terms are generic terms used
to signify either the power or process of legislative activity by
executive organs.
• “Administrative rules” is also a generic term used to collectively
represent the laws thus made by these organs.
• To add to the confusion of terminology, the specific rules are
identified by different names.
• Given the variety of names, it becomes challenging to classify such
rules as administrative decisions or administrative rules at times.
Ethiopia
• Standard
• Circular
• Guideline
• Manual
• Code
• Public notice
 5.3 The Need For and Risks of Delegated Legislation

The Need for Delegated Legislation

1. Expertise
• Modern legislation is highly complex, technical in nature, and
can only be satisfactorily handled by experts.
• Members of parliament cannot possibly have sufficient
expertise to understand and evaluate all the various detailed
requirements in the vast range of areas that comprise the
regulatory and welfare state.
Electronic Signature Proclamation No. 1072/2018
The Need for Delegated Legislation

2. Pressure on Parliamentary Time

- Telecommunications Numbering Directive No. 795/2021
- Tobacco Control Directive No. 771/2021
- Codification, Valuation and Registration of Movable Properties as Collateral
for Credit, Directive No. 186/2020

3. Unforeseen Contingencies
4. Flexibility
5. Opportunities for Experiment
6. Emergency Powers
Certain emergency situations may arise which necessitate special measures. In
such cases speedy and appropriate action is required. The Parliament cannot act
quickly because of its political nature and because of the time required by the
Parliament to enact the law.
Risks and Objections
• Representative Democracy
The legal maxium “Delegata potestas non potest delegare.”
This is translated as “what has been delegated cannot be
delegated”.
• Separation of Powers
Theoretical Objections against Delegated Legislation

 The attitude of the jurists towards delegated legislation has not been
unanimous.
Delegated Legislation was considered a danger to the liberties of the
people and a devise to place despotic powers in few hands.
The doctrine of non delegation
• Power delegated to one branch may not be re delegated to another.
• Common law maxim - a delegate cannot further delegates his power.
• The legislature cannot delegate the power to make laws to any other
body or authority.
• Since the people delegated legislative power to the lawmaker, it
shouldn’t re delegate its power to any other authority
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Doctrine of separation of powers
 5.4 Constitutional Limitations on Power of
Delegation(1)- Scope of Delegation
• One common element in all jurisdictions regarding delegation is the
absence of clear constitutional limitation on the legislature’s power to
delegate its legislative power.
• From the separation of powers doctrine, and from the principle that it is
Parliament’s role to make laws on important matters of policy, the
principle that legislative power should not be inappropriately delegated
to the executive may be derived.
• Laws that have a significant impact on rights and liberties, and laws
creating offences with high penalties, should usually be in primary, not
delegated, legislation.
Constitutional Limitations on Power of
Delegation(2)

Pragmatic considerations have prevailed over theoretical

objections.
• Therefore, the position has been shifted from total objection
to the issue of the permissible limits of valid delegation.
• Legislative delegation raises the issue of delegable and non-
delegable legislative powers.
• The legislature cannot delegate its general legislative power
and matters dealing with policy
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Constitutional Limitations on Power of Delegation(3)

• The subsidiary part of the legislation could be delegated to

administrative agencies
• The delegated legislation must be consistent with the parent act
and must not violate legislative policy and guidelines.
• Delegatee cannot have more legislative powers than that of the
delegator.

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 Constitutional Limitations on Power of Delegation(4)

• Non-Delegable Matters
- Power to legislate on matters of policy
- Power to prescribe offenses
- Power to impose taxation and administrative penalty
- Power to amend, alter, or modify an Act of Parliament
- Power granting discretionary rule-making power
 5.5 Classification of Administrative Rules
• Administrative rules may be categorized based on their form and legal effect:
1. By their form
• Regulation ----- by Council of Ministers
E.g. Article 77(13) of the FDRE Const., Different proclamations such as
Article 53(1) of Public Servants Pension Proclamation No. 345/2003,
Directives -------by Administrative agencies , but
some times by council of ministers
2. By their character and effect.
The best way to classify rules is in terms of their
binding nature. Therefore, we can distinguish rules according to those that are
legislative or determine the law and those that are non legislative or do not
determine the law. Council of Ministers regulations and administrative directives
issued by agencies are “legislative” and have binding effect, same as laws
promulgated by the legislature.
Ethiopia
Article 77(13) of the FDRE Const.,
It fails to determine the legislative powers that
can be delegated and that can not be delegated
However, the council of minister can not enact
regulations or directives that contradict the
concerned proclamations

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 Rule-Making Procedure
• The greatest impact of the Administrative Procedure Proclamation is
in introducing a universal and mandatory procedure for issuing
directives.
• This is the area where little or no law existed.
1. Notice
2. Consultation
a. Comment
b. Public Hearing
3. Publication
 Rule-Making Procedure
4. Formality Requirements
1. Serial number
2. Source of power
3. Signature
4. Language
5. Registration-16
6. Explanatory note-14
 Control of Administrative Rule-Making
• Subordinate legislation made by the executive is not subject to the
same parliamentary and public controls as primary legislation and
alternative methods have been devised (in most developed
democracies) to ensure that the executive is accountable for the way it
discharges its law-making function.
1. Internal control
2. External control
- Parliamentary control
- Judicial control
- Control through the media- naming and shaming