Express repeal of delegated Legislation under Ethiopia

"No law, regulation, directive or practice shall, in so far as it is inconsistent with this Proclamation, have force or effect with respect to matters provided for by this Proclamation”.

1. Introduction

Paradoxically, in most modern societies, the larger proportion of the law—delegated legislation—is not made by elected lawmakers or the proper legislature. To an increasing extent, law in these countries is made through the Executive branch, not the parliament. The common practice for Acts of Parliament to bestow power (through empowering acts) to make regulations, particularly to government Ministers, is an obvious manifestation of this development.

As a general proposition, the making of these delegated legislation are exercised as are specifically delegated by enabling Acts of Parliament and this provides for a basic democratic legitimation of executive rules. Parliament may modify, amend or repeal acts passed by itself or its predecessors. The change on enabling Acts of Parliament-either by way of amendment, revision or repeal-will likely have an impact on delegated legislation made by the Executive.

A close examination of the law making process and existing effective laws in Ethiopia depicts the above fact as well.  Since EPDRF took power in 1991 there are 325 regulations and 313 Proclamations at federal level. Hence, regulations made by different ministries are greater than proclamations passed by the House of Peoples Representatives, i.e. Parliament. These developments have placed Executive branch in a very powerful position. In other words, regulations matters, and matters increasingly.

Thus, this essay explores the relationship between empowering act of parliament and delegated legislation whenever Parliament repeals enabling Act passed by itself. Particularly, the essay examines the change in empowering Act (Proclamation passed by the House of Peoples’ representatives) and the status of delegated legislation (Regulation made by the council of Ministers) in Ethiopian context.

The objective of this essay is therefore; to show how repealing delegated legislation expressly or maintaining their existence clearly can result in precision in Ethiopian Legislative drafting. In doing so, the essay proceeds as follows: section two offers theoretical background of delegated legislation and accepted modes of repeal in general. Section three introduces the Ethiopian practice of delegated legislation, their constitutional foundation and their relationship with primary legislation. Section four explores modes of repealing delegated legislation used by Ethiopian draft persons and the problems associated with this practice. Section five concludes.

2. Delegated Legislation and modes of repeal

Historically, parliaments have neither the technical skill nor the time to process the mass of detailed regulation and delegate the power to make regulation that supplement the law and subordinate to primary legislation passed by Parliament. This is what is described as ‘subordinate/delegated legislation’.The executive can exercise only such legislative powers as are specifically delegated by the legislator and these enabling Acts provide for a basic democratic legitimation of executive rules. Such legislation is subject to the ultimate approval of Parliament.Power of delegations can be limited by construing empowering statutes and will be valid only to the extent of this authorization. As a result, delegated legislation should be in accordance with the parent Act (must be consistent with the scope of power granted by Parliament), not be contrary to the ‘spirit’ of authorizing legislation, have certainty of meaning and operation and not be ultra virus or beyond the authority delegated.Uncertain delegation of legislative power may on the other hand leads to concentration of power in the executive.

Parliament has an absolute legislative power over all subjects, it may either introduce new laws or repeal the old, unless limited or restrained by its own. The legislature may sometimes repeal statues which are a source for delegated legislation and re-enact or introduce a new law. What will happen to the delegated legislation in such case?It is reasonably presumed that law-makerspass laws with a deliberate knowledge of those already existing, whether primary or delegated legislation, and have no intent to repeal the statute without so declaring. Intention to repeal must be clear and the possibility of repealing existing laws by implication is no longer tolerable and favoured.

There are different possible approaches that might be taken to address the problem. The answer to the status of delegated legislation when empowering Act is repealed may be in the new Act itself (by way of saving/transitional provision or repealing clause) or in some other separate Act.It can be summarized in to three:

1. The following laws are hereby repealed or regulations made under the repealed laws have no effect;
2. Repeal of an enabling Act does not nullify instruments made therein; save where the repealing Act expressly (or by reasonable implication) nullifies the same or such instruments are inconsistent/irreconcilable with the repealing Act.
3. All rules made under the provisions of the repealed laws shall be deemed to have been made under the new Act and shall remain in force and have effect until replaced in accordance with the provisions of the new Act

When Parliaments repeal legislation they generally make their intentions both express and clear.The suspension of a statute is express when parliament declares it in direct terms: regulations made under the repealed laws have no effect or all rules made under the provision of repealed law remain in force and have effect, as clear as that. From the drafting point of view this however, needs too much work on existing regulation. If drafters are not careful with this regard, parliament might give consent without pure knowledge of existing delegated legislation. Thus, the proper mode of repealing enactment is a matter of considerable importance both from a constitutional and Legislative drafting point of view. A heavy responsibility, therefore, rests upon draftsperson. Drafter must have the list of existing regulations made under repealed enabling Act and should strive to know the impact of the new law. Drafters must take in to consideration any existing regulation made under repealed law, decide whether regulations are within the authorities of the new Act and differentiate which regulations are consistent and be in force and have effect and which are ultra virus or inconsistent or conflicting and cease to have effect. By doing such extensive job drafters will, not only be sure that the intended regulatory aim of the new law is targeted and consistent with existing laws but also avoids confusion by depicting the exact status of delegated legislation made therein. Providing this repealing clause is considered as a substantive provision of an Act of parliament under modern legislative drafting practice. If all regulations made under repealed empowering Act considered to have a continuing effect in accordance with a new Act the drafter may use the third option above. If drafter on the other hand investigates delegated legislation made under a repealed Act is inconsistent with the new Act, it is better and save to use Express Repeal set out above in number one. Express repeal may not be needed or will only be needed in rare circumstances if there is separate known interpretation Act showing a general principle. Usually in countries with a separate interpretation Act, there is a general principle that subordinate legislations are part of  the principal act and repealing empowering Act does not nullify delegated legislation unless expressly or by reasonable implication as shown on number two. Repealing laws by reasonable implication however, is with some exception. The major question with this regard is what will happen to the status of regulation if the empowering act is repealed where there are no rules in any legal text? For example, like Ethiopia. Drafters in Ethiopia therefore, need to effectively find a way to avoid confusion with prior enactment and newly introduced law.

3. Delegated Legislation in Ethiopia

As far as the law making power is concerned, the Parliament (HPR) is vested with the power of legislation (in all matters of Federal Jurisdiction) by virtue of Article 55 of the Ethiopian Constitution. In addition to conferring this power to HPR, the Constitution lays down some rules related to how the power to legislate could be exercised.Furthermore, Article 77 (13) of the constitution provides the Council of Ministers with power to enact regulation pursuant to powers vested in it by the House of peoples Representatives. This single provision is the constitutional foundation for delegated legislation in Ethiopia. The reading of the provision under the title ‘Power and Function of the Council of Ministers’ states as follows:

“it (the Council of Ministers) shall enact regulations pursuant to powers vested in it by the House of Peoples’ Representatives’”

Needless to say this provision presupposes the empowering act i.e. proclamation to clearly and precisely show the intention of the HPR delegation to the Council of Ministers for enactment of regulations. Usually the power to exercise such rule making by the Council of Ministers is derived from the authority given by the parliament itself through Proclamation. In addition to the above constitutional provision, the following two most famous provisions that appear under different proclamations as enabling or parent Act serve as a formulation of delegated legislation.

1. “The Council of Ministers is hereby empowered, where it finds it necessary, to reorganize the federal government executive organs by issuing regulations for the closure, merger or division of an existing executive organ or for change of its accountability or mandates or for the establishment of a new one”
2. “Council of Ministers may issue regulations that may be necessary for the implementation of this Proclamation”.

The first provision found under ‘Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation with ‘Re-organization of Federal Government Executive Organs’ title is a basis for a number of recent regulations.Most existing regulations made by Executive branches refer to the above provision and some other empowering proclamation. Proclamations made by the HPRs are always followed by regulations under the guise of implementation purpose. Very frequently, the House of Peoples’ Representatives pass proclamations and leave the details for the Council of Ministers with the power of issuing regulations at the very end part of proclamations as shown above on number two.

The drafting of laws is organized in such a way thateach Ministry has powers and duties to initiate policies and laws in its area of jurisdiction by virtue of the above provisions.  The country has at present twenty ministries and the Council of Ministers, headed by the Prime Minister. The area of jurisdiction of each ministry includes the whole range of social politics, as indicated by the nomenclature of the ministries,-Ministry of National Defence, Ministry of Federal Affairs, Ministry of foreign Affairs, Ministry of Justice, etc. As a result, regulations made by way of implementation are dependent on each ministries draft person. Accordingly, there are 256 regulations enacted by different Ministries between the years 1991 to 2011 and most regulations refer to the above provisions together with other specific enabling proclamations if any.

The relationship between primary and subordinate legislation in Ethiopia is therefore, based on either authorization or delegation by parliament. Thus, drafters must be aware and give due concern to the status and relationship of Proclamations and Regulations whenever repealing empowering proclamations. Let us now examine how drafters in Ethiopia use a different kind of techniques to repeal regulations made under proclamations and pose some questions to this regard.

4. Modes of repealing delegated Legislation in Ethiopia

Apart from the repealing proclamation itself there are no separate rules governing and showing the status of a repealed proclamation and existing delegated legislation in Ethiopia. However, drafters apply the following two forms of repealing clause in repealing proclamations to show the status of regulations made under repealed proclamation.          

1. Express repeal
2. A mixture of express and general repealing clause.                                                 

Different drafters in different Ministries use these two forms of repealing clause. The following table depicts selected provisions of repeal as example.

Express repealing clause (both empowering proclamation and delegated legislation) as shown above on number 1.1, which in my opinion is the best type of repealing clause, is used only in some rare cases.

The second mode of express repeal as shown 1.2 expressly repeals empowering proclamation. This however, gives no clue to regulation made under the repealed proclamation. Emergency Food Security Reserve Administration Establishment Council of Minister Regulation No. 67/2000 for example, was enacted based on Article 6 (3) and 5 of Proclamation No. 10/1995 and 4/1995, respectively. Proclamation No. 10/1995 was repealed by Proclamation No. 593/2008 expressly and Pro. Pro repealed no. 4/1995. No. 471/2005 and Pro. Pro further repealed no. 471/2005. No. 691/2010. What will be status of Regulation No.67/2000 while both empowering proclamations were expressly repealed? The method of repealing only empowering proclamation serves nothing except telling the empowering proclamation has no effect. As the same time, it creates confusion as to whether regulation made under the repealed proclamation is effective or repealed as there is neither indication within the repealing proclamation itself nor in other legal text.

To avoid such kinds of confusion drafters use the second method of repeal -a mixture of express and general provision.

A mixture of express (as shown above on 1.2) and general repealing clause is the most commonly used form of repealing in the majority of repealing proclamations in Ethiopia. This method as set out in the above example repeals first the empowering proclamation expressly and uses the general repealing provision for any other prior enactments including regulations.

In both situations, regulations made under a repealed proclamation can be challenged as there are no any provisions showing their status. The practice of using this general repealing clause is related not only with drafters’ consideration of possibilities of conflict between the new proclamation and prior enactments but also persuasion of using general repealing clause as common practice. The major question here is that does this general repealing provision really show the relationship and status of regulation and avoid confusion as drafters thought it to be?

The answer for me is NO.

It can be presumed that the legislature has no conscious purpose of affecting existing laws when new statutes contain no reference to existing laws because it gives no clue as to the previous effect of the enactment. This however, can be presumed otherwise. When a new statute contains a general repealing provision, it can be understood that the legislature has assumed the new law to some extent is repugnant to some law enacted before.

“No law, regulation, directive or practice shall, in so far as it is inconsistent with this Proclamation, have force or effect with respect to matters provided for by this Proclamation”.

So what exactly does this general repealing provision means?

Two assumptions can be drawn from general repealing provision. Either legislature/drafter has assumed the new law to some extent is repugnant to prior enactments or prior enactments will continue to exist and have effect as long as they are not inconsistent with the new law. However, in both assumptions there is repeal to the extent of any repugnancy and no more than that.

The common usage of this general repealing clause shifts the duty of identification and decision from drafter and parliament to court. Drafter owes ethical and professional responsibility towards achieving effective legislation and must be sure the impacts of the newly introduced proclamation on existing regulation. Drafters in particular, must identify the relationship between repealed and repealing proclamation towards existing regulation made under repealed proclamation and present its findings to parliament. Parliament on the other hand, has a principal duty to discuss, ascertain and maintain the relationship and status of prior existing regulation and newly introduced proclamation by way of express repeal or saving/transitional provision. However, the common usage of this general repealing clause derogates the identification and decision process from drafters and parliaments to courts. Courts should not be given such duties and if so, must be in exceptional circumstances. Thus, a general repealing clause will always place prior regulation made under repealed proclamation in doubtful position and its presence in the bill serves nothing. Particularly the common practice of using this general repealing provision as a means of showing status of regulation will likely fail to accommodate the chance of:

• Checking delegated legislation with the extent of authorization by empowering act;
• Ultimate approval (the continuation of having effect or cease to have effect) delegated legislations by parliament ;
• Avoiding concentration of power in the executive without a clear delegation of legislative power;
• Drafting precise and consistent proclamation;
• Being consistent with the scope of power granted by parliament; and
• Controlling delegation by parliament.

Therefore, drafters need to check existing regulation and must show their existence or cease to have effect expressly in repealing proclamations.

5. Conclusion

To sum up, so far in this essay we have been considering the change on enabling Acts of Parliament-either by way of amendment, revision or repeal-will likely have an impact on delegated legislations made by the Executive. The relationship between the Acts of Parliament and rules of executive is based on to the extent of authorization allowed by enabling Act. This holds true for the Ethiopian Constitution where the Council of Ministers is allowed to enact regulations pursuant to powers vested in it by the Parliament.

There are different kinds of technique showing the relationship and status of delegated legislation and repealing Act. Some have the practice of using separate laws like interpretation Act and some uses the same repealing Act (either by way of repealing clause or saving/transitional provision) to show the exact status of delegated legislation and relation to repealing Act. Repealing proclamation by itself is the mechanism used to show status of previous enactments and general repealing clause is the most common mode of repealing clause in Ethiopia. However, this method and its frequent reiteration throughout repealing proclamation lucks the precision of showing the exact status of the law. It on the one hand, lets existing regulation made under repealed proclamation unchecked against the new repealing Proclamation and, on the other hand, fails to accommodate the chance of approval by the parliament. This method not only hurts drafting a precise and consistent Proclamation but also pave the way for the concentration of power in the executive. Furthermore, the common usage of general repealing clause shifts the duty to identify and decide the exact status of the law from drafter and parliament to court. These instances, therefore, demonstrate clearly the need for great care in repealing enabling proclamation and regulations made therein.

The intention to repeal must be clear, and repeal by implication is not favored. Furthermore, the repealing clause is considered as part of the substantive provision of the bill in modern legislative drafting. Thus, repealing delegated legislation expressly or maintaining their existence contributes to the precision of Ethiopia's Legislative Drafting.