Delegated Legislation and its Application in Pakistan

In this day and age, a comparatively small part of all legislation is made directly by the
legislature as most of the specialist or detailed law-making is undertaken by the executive,
known as “Delegated Legislation.” Usually the legislature makes a law that covers the general
policies relating to a problem, and then confers the rule-making power to the executive or some
other administrative agency.

Delegated Legislation is defined in the case of Sunbiz Private Limited (7 News TV Pakistan)
through Abbas Ali Khan v. Federation of Pakistan through Secretary Ministry of
Information and 3 others  (2018 YLR 1785) which states: “Undoubtedly rules and regulations
are subordinate and delegated legislation deriving authority and legal cover from the provisions
of parent statute. Power to make subordinate legislation / rules / regulations is derived from
enabling statute and the delegatee is not authorized to make a provision beyond the policy of the
statute. It cannot override the statute either by exceeding the authority or by making provisions
inconsistent with the statute. General power to make rules or regulations for carrying out or
giving effect to the statute is strictly ancillary in nature and cannot enable the authority on
whom the power is conferred to extend the scope of general operation of the statute. Rule-
making authority cannot widen the purpose of statute or to add new and different means to
carrying them out or to depart from or vary its terms.

Thus, such secondary law to have effect must be in compliance with the parent statute, one such
example is the Punjab Local Government (Vote of No Confidence) Rules 2018, which were made
by the Punjab government in exercise of its power under Section.144 of Punjab Local
Government Act 2013.

Scope and Limits of delegated legislation

Delegation of legislation is done due to the complexities of administrative laws today which make
it increasingly difficult for the legislature to make laws on every subject, therefore it entrusts the
authority to the government. The governments need to utilise the option of delegative legislation
in order to empower its institutions to effectively and efficiently deal with the task of social,
economic reconstruction and to implement the laws.

Its scope is wide enough to enable the legislature to delegate its law-making power to any of its
subordinate body, but as accepted practice, cannot delegate its general legislative power and
matters dealing with policy. However, the scope is limited as such that the law made by the
subordinate body shall only be considered as a by-laws, rules or regulations, and not an Act or
Statute, which are applicable only to the extent of working of that subordinate body. The matters
on which the subordinate body can legislate are basically the procedures to implement the parent
law.
The basic limits on the powers of delegated legislation are that it must be exercised lawfully,
responsibly, in good spirit, with intention to benefit the public. The scope and limit of delegated
legislation can be understood by the case of Ahmed Mehmood v The Govt. of Punjab and
other, states that:
“9. A rule-making body cannot frame rules / regulations in conflict with or gating from the
substantive provisions of the law or statute under which the rules / regulations are framed. A
rule / regulation, which the rule-making authority has power to make, is liable to be declared
invalid on the following grounds:-
(1) Powers entrusted for one purpose are deliberately used with the design of achieving another,
itself unauthorized or actually forbidden.
(2) It shows on its face a misconstruction of the enabling law or a failure to comply with the
conditions prescribed under the parent statute for the exercise of the powers.
(3) It is not capable of being related to any of the purposes mentioned in the parent statute.

11. The parent statute does not bestow any power upon the respondent-authorities to discriminate
between the public and private sectors from participating in the bidding process. Article 18 of the
Constitution safeguards fundamental rights of the petitioner with regard to freedom of trade,
business and profession.”

Thus, rules and regulation are made to make the functioning of administrative work more
effective and efficient, as well as to put a restrain on the authority by setting the parameters for
exercising the powers of delegated legislation.

Rules and regulations Ultra vires to the Act or Constitution

The rules and regulations which are made by a competent body in exercise of their power of
delegated legislation have legal effects, which can lead to any sanction if are not followed.
However, in some cases the rules and regulation can be declared Ultra vires (an act done beyond
legal power or authority) by the courts. Such instances can be when the rules and regulations
made under delegated legislation are beyond the power and authority granted by the parent Act
or when such rules and regulation are in contradiction with provision of any Act or
Constitutional rights etc. This is because the rules and regulation of such kind do not have effect
of substantive law, and in case of clash, the words and intentions of legislature are given priority.
This is argument is also supported by the case of Pakistan telecommunication Company Ltd v
Pakistan Communication Authority, reported as, PLD 2015 Islamabad 184, which states that:

“9. Rules and regulations fall in the category known as delegated or subordinate legislation. It is
settled law that authority empowered to make rules and regulations cannot go beyond the scope
of the statute. No rule or regulation can be made inconsistent with the parent statute, and such
delegated legislation shall be void and inoperative to the extent of inconsistency.”

At one more instance, in the case reported as, 2005 SCMR 186, the Supreme Court held that:
“If the rules framed under the statute are in excess of the provision of the statue or are in
convention of or are inconsistent with such provisions, then those rules must be regarded as
ultra vires of the statue and cannot be given effect to.”

Thus, if in the process of making rules and regulation under the delegated legislation, the
authority exercising such power (a) acts beyond its power to legislate or (b) such rules and
regulations are in contravention with parent Act or Constitution, then such rules and regulations
shall be considered Ultra vires to the Act or Constitution.

Moreover, the Honourable Supreme Court has vividly laid down in the judgement, PLD 1963
SC 486 that Constitution is the supreme law of the state and any law repugnant to its provisions
shall be deemed null and void. “For the Constitution of the State is higher in authority than any
law, direction, or order made by anybody or any other officer assuming to act under it, since
such body or officer must exercise a delegated authority, and one that must necessarily be
subservient to the instrument by which the delegation is made. In any case of conflict the
fundamental law must govern, and the act in conflict with it must be treated as of no legal
validity.”

CONCLUSION

Delegated legislation is the power of executive to legislate under the provision of parent Act to
make rules and regulations to effectively execute their task. These rules and regulations are more
or less same however differ in their scope, as the rules relate to procedural law and the
regulations relate to substantive laws. The scope of delegated legislation is limited to the power
given to legislate under the parent Act. If the rules and regulations are inconsistent with the
empowering statute or the provision of constitution, then such delegated legislation shall be
considered Ultra vires to the Act or Constitution.