Week 3 - Safeguards for Secondary Legislation Date: Mar 23, 2009 9:05:07 AM PDT Author: Brooke Should there be safeguards in regard to the formulation of secondary or delegated legislation? If so, do you believe the safeguards available in your parliament are sufficient and satisfactory? Brooke Prater WBI Parliamentary Strengthening Program parliamentarystrengthening@gmail.com

Safeguards for Secondary Legislation Date: Mar 23, 2009 10:22:07 AM PDT Author: Moderator Unit 6 suggests some of the questions that should be asked in determining whether parliament has taken sufficient precautions to prevent the misuse of delegated legislation wittingly or unwittingly by ministers or their officials. To reiterate them: • Have guidelines been created which outline the procedures for drafting secondary legislation? • How is the legislature to be made aware of the creation of secondary legislation? • What are the legislature’s powers of scrutiny of secondary legislation? • Will the legislature be able to amend secondary legislation? • Does secondary legislation require affirmation or does it come into effect after a specified period? • How may secondary legislation be revoked if necessary? To your knowledge, are these and similar considerations absorbed into the working of the parliament? If so, are they proving satisfactory or are there complaints about overuse of delegated legislation in ways that go against what parliament had in mind when the legislation was passed?

Week 3 - Safeguards for Secondary Legislation Date: Mar 27, 2009 4:46:04 AM PDT Author: DOCTOR In my country-Cameroon, the constitution and laws voted by parliament have always provided windows for secondary legislation without necessary allowing for measurable safeguards. A serious debate is raging on,in the parliament of my coutry between the members of parliament of the ruling party and the opposition members who think that the drafting of legislation in my country is wayward and outdated because of the blank cheques given to government to draw up secondary legislation and the delayance it creates in the application of laws voted by parliament. The application of these laws are always subjected to the drawing up of secondary legislation by the executive,i.e.president of the republic,prime minister and ministers who the law provides them with the jurisdiction,powers and competence to elaborate secondary legislation. So,the parliament of my country has been reduced to voting general orientations on issues,policies,subjects which need legislation,while the over bearing executive bureaucrats take care of the details of the concrete application of laws voted by parliament. Some opinions and the opposition political parties in my country treat parliament with scorn and disrespect because they contend that it has religated its functions and powers to legislate as provided for by our constitution to the president,prime minister and ministers who are not legislators. However,members of the opposition present in parliament are doing their best to reduce this phenomenon,though with little success and alot of resistance from the executive which is colluding with its majority in parliament to maintain the statusquo.

Safeguards for Secondary Legislation Date: Mar 28, 2009 12:58:37 PM PDT Author: Moderator There have been very few contributions on this topic and I would recommend participants to look at it again because the topic is a very important one. Secondary (also called delegated or subordinate) legislation refers to orders, rules, regulations and the like made under a parent act by an authorised official, usually a minister. It is something we cannot do without because it makes for quick and efficient functioning of government. Obviously it can lead to abuse. Parliaments are therefore careful about delegated legislation and take various steps to ensure that the authority of parliament is not compromised or usurped. Some parliaments require, for instance, that delegated legislation be examined from time to time by a committee and referred to back to parliament if deemed necessary. Once again I suggest that participants look closely at this topic and in particular check whether their parliaments have created any from of control over the possibility of over-enthusiastic use of powers. I can assure you that the time spent will not have been wasted!

Safeguard for Secondary Legislature Date: Mar 29, 2009 6:27:29 PM PDT Author: srm Due to ever widening government's activity subordinate legislation has become a necessity while Parliament make legislation and leaves executive to frame rules, formal procedural details and regulations. But Parliament through the committee on Subordinate Legislation see that the rule-making power of the Executive, conferred by the Constitution or delegated by the Parliament is being exercised within the scope of such legislation. Both Lok Sabha (Lower House) and Rajya Sabha (Upper House) have their own Subordinate Legislation Committee (COSL). COSL scrutinize the power of the Executive to frame rules, sub-rules, bye laws etc. and report to the House. The committee also examine Bills which seek to delegate powers to make order. In practice the committee scrutinize all orders made by Government of India and any other subordinate authority. The Committee examine the 'order' in view of the general objects of the Constitution or the Act pusuant to which the order is made. The Committee decide whether the order needs a new act passed by parliament to provide legality to the order. COSL keeps a constant watch on the implementation of its recommendation. Ministries are asked to furnish statement of action taken from time to time. The progress of implementation is also reported to the House by the Committee. Co

There is limited safeguards for Secondary Legislation in Uganda Date: Mar 30, 2009 9:50:07 AM PDT Author: Tumu In Uganda, secondary legislation also called statutory instruments, regulations or rules are created within the ambit of an Act of Parliament. Such legislations are not supposed to be contrary to the spirit of the main Act or have powers more than those granted. Otherwise court will declare them ultrvires. But there is limited scrutiny by Parliament of such legislations. In fact, a number of times, such legislations have proved to be excessive, for example statutory legislation under the Police Act which stops a congregation of more than 25 people in one place except with the approval of the head of police force. This law effectively curtailed meetings by MPs and when they realized it was a subsidiary legislation, they rose up in arms. Except for those Acts where it is clearly mentioned that the minister or any other authority shall make the regulations and table them in Parliament before they are effectuated, regulations are not scrutinized by Parliament. However, for some time, there has been a minority view that the Rules of Procedure needs to be amended to provide for a committee on delegated legislations where all secondary legislations would be scrutinized to ensure they do not infringe on peoples rights or impose unnecessary obligations on the people, but unfortunately the idea has never been accepted.

Safeguards Regarding on Secondary Legislation Date: Mar 31, 2009 2:43:59 AM PDT Author: MOG Safeguards in regard to the formulation of secondary or delegated legislation is very necessary. Reasons for having such safeguards are to ensure: - That delegated legislations fall in accordance with the status or Act of parliament; - That they do not trespass unduly on personal rights and liberties - That the rights and liberties of citizens are not unduly dependent upon administrative decisions which are not subject to review on their merits by a judicial or other tribunal and - That they do not contain matters more appropriate for legislative enactment. These safeguards derive from the theory of Separation of Powers and Checks and Balances which parcel out powers among the three branches of government, which were differently selected because of the likelihood that any single faction would be able to gain control of all the three branches at a time. Therefore different parliaments must find appropriate safeguards for their secondary legislations. The normal practice in Nigeria is that all regulations, ordinances, etc made under an Act are required to be notified in the Gazette and must also be laid before each House within a specific time, thereby becoming subject to legislative scrutiny and the Assembly’s ultimate powers of veto. When so laid, they may come into operation immediately or at some specific date unless either House passes, within limited time, a motion to annul the instrument. So far, the above process has achieved the intentions for which safeguards are put in place but their effectiveness cannot be totally achieved under any parliamentary system where one branch of Government, the executive especially, maintains a stranglehold or has an undue influence on the legislature.

Rwanda -Safeguards Regarding on Secondary Legislation Date: Apr 1, 2009 6:10:53 AM PDT Author: augu The Second Legislation in Rwanda is still a big problem to resolve. When the law voted by Parliament provided that it will be the Presidential or the Ministerial Decree, they don't fixe a deadline, they don't seek approval before it is published. Only one way to to resolve that problem if these second legislation is delaying the Parliament in it authority to conducting an oversight of the Government action, a member of Executive concerned is invited to the Parliament to respond the reasons of this delay. The big problem of these second legislation is that when are not published with the law, this one become inapplicable.

There is limited safeguards for Secondary Legislation in Uganda Date: Apr 5, 2009 10:01:39 PM PDT Author: karoli [Secondary legislation in Uganda like tumu said are statutory instruments, these are issued by ministers. these provide the nitty gritty which must not necessarily be in the Act but the minister is given the authority to do so but he/she is expected to lay the instrument at table/in Parliament. The main problem is that after passing the law little interst is put on the instruments mainly because of the huge demand on MPs and the workload they have.

Safeguards and Secondary Legislation Date: Apr 18, 2009 10:04:31 AM PDT Author: Ose The importance of having safeguards, and a Parliament that actively scrutinises secondary legislation, was underlined during a public hearing into the demolition of houses in Abuja by a Nigerian Minister. The Minister had used a clause in a piece of secondary legislation which allowed him to demolish and reclaim 'undeveloped' plots of land. Unfortunately, this clause ran contrary to the spirit of the Land Use decree enshrined in the Nigerian Constitution. After rendering thousands homeless, the only thing the Minister offered was a qualified apology, as he felt he had acted in good faith, and so could not be held entirely responsible, especially as he had a legal department who should have notified him of the conflicting clauses.