Since posting this a few days ago my attention was brought to a Comment that was posted on Facebook. Since I have deactivated my account, the editor of the website copied and sent me the Comment. The Comment is by Abadir Ibrahim who wrote:
This is an interesting but incomplete work. The author does not try that hard to find counterarguments. Simple examples of counterarguments could be –
1. such practice increases the risks of authoritarianism by giving an already powerful executive more powers & risks pulling down democratic progress of the country;
2. the HPR cannot delegate the power to make proclamations since what is being suggested here is in effect giving the COM the power to make proclamations (you can’t escape by calling ‘regulation’ what is in reality a proclamation);
3. the regulation power of the COM cannot affect rights and duties of citizens and groups (for ex the regulation cannot increase the age requirement) because only parliament can pass laws that limit rights;
4. the const gives the COM the power to “enforce” proclamations not amend them;
the COM is given the power to ‘regulate’ not ‘legislate’ … etc
Thank you Abadir Ibrahim for taking the time to read and share your views! As you have said the work is incomplete. It is half-baked. Your Comments will definitely improve it. The two counterarguments that are included were the ones that were raised by friends when the issue came up a year ago in a facebook discussion. Having said that let me put my response as follows:
It is said that the practice of allowing the Council of Ministers to amend proclamations will increase the risks of authoritarianism by giving an already powerful executive more powers and risks pulling down democratic progress of the country. Yes I agree the executive is a powerful branch of the government. There is also unity of the executive and the legislative branch. But the way to address this is not by not allowing this practice. As I have argued there this practice is legal only when there is a clear legal basis in the proclamation itself and subject to ‘limits of delegation as may be derived from the constitution’.
Your second point is that “the HPR cannot delegate the power to make proclamations since what is being suggested here is in effect giving the COM the power to make proclamations (you can’t escape by calling ‘regulation’ what is in reality a proclamation)”. For me proclamation is a law made by the HPR and regulation is a law made by the COM. As such the statement that HPR cannot delegate the power to make proclamations is not clear. The best way out of this is not to argue with the label but rather to determine subject matters which should not be delegated by the HPR to the COM. It is better what we debate on the constitutional limits on delegation of legislative power. Considering the fact that the power of the COM is not inherent and is delegated by the HPR, the question whether there is and should be a limit on the powers of the HPR to delegate should be discussed. In my view it is best to demarcate the limits in terms of the ‘form of delegation’ and ‘subject matter of delegation’. And such limits should be supported by clear policy and constitutional reasons. In this debate, we may be informed by the practice of other countries, particularly by the non-delegation doctrine of American administrative law. Once we agree on subject matters which should be subject to delegation, we can easily then determine if COM should be allowed to amend a proclamation on the same matter. For example, if we agree the HPR should not delegate anyone other than itself to act on subject matter X, then it also follows that the COM should not be allowed to amend provisions of a proclamation dealing with subject matter X even if it has a clear basis in the proclamation. If in the first instance however the subject matter is something which the HPR can freely delegate to the COM or other entity, I do not see why the COM could also be authorized to amend provisions of a proclamation dealing with the same subject matter. But Abadir we can agree on the need to demarcate on matter that can and should not be delegated by the HPR.
Your third point that the “the regulation power of the COM cannot affect rights and duties of citizens and groups (for ex the regulation cannot increase the age requirement) because only parliament can pass laws that limit rights” can be taken as one limit on the power of delegation. My problem is it is merely a statement. It is not supported by any provision of the constitution nor by policy reasons and comparative lessons.
I have also issues with your fourth point that “the const gives the COM the power to “enforce” proclamations not amend them”. Article 77(3) of the constitution states that the COM “shall enact regulations pursuant to powers vested in it
by the House of Peoples' Representatives”. It does not say that it enacts only regulations that enforce and not amend proclamations.
Your fifth point is that “the COM is given the power to ‘regulate’ not ‘legislate’”. Now on this I strongly disagree. I think you must have confused two things: regulations and the power to regulate. In Ethiopian context, what we often call regulations are laws passed by the COM. But depending on contexts it may also have other meanings. But when you say the power to regulate or regulatory power it is a different thing. Regulatory power or the power to regulate is the power to direct, channel human behaviour with a view to achieving certain public objectives. Certain powers of government could be classified as regulatory powers. It can be contrasted with the re-distributive and enabling/facilitating powers of government. Having said this, regulatory power is not restricted to the power to issue “Regulations” (in the first sense). Regulatory power includes adjudicatory power, legislative power, and executive power. What makes a given power regulatory is the intention: is it meant to channel, or direct or influence human behaviour? Also the power of legislation includes the power to make regulations (in the first sense of the term); regulations are legislation.
After some time I will come back with another writing on constitutional and policy limits of delegation (on legislative powers which should not be delegated by the HPR) with a view to further enriching the debate.