Controlling Delegated Legislation for Safeguarding Public

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www.irss.academyirmbr.com April 2021

International Review of Social Sciences Vol. 9 Issue.4

R S S

Controlling Delegated Legislation for Safeguarding Public

Interest in Pakistan

KHALID HUSSAIN Ph.D. Law Scholar, International Islamic University, Islamabad.

Email: [email protected] Tel: +923345344287

Abstract

Delegated legislation in Pakistan is a neglected segment of the Administrative Law which has attracted

little attention even from the legal fraternity of the country. Despite the fact that delegated legislation has

the same legal implications (if validly made) on the lives of those governed by it as of primary legislation,

no serious effort by the legislature or even from the judiciary has been made in Pakistan to control this

lethal weapon in the hands of the executive agencies. Consequently, those governed (mostly the masses) by

this uncontrolled power of the executive in the form of delegated legislative authority are at the receiving

end, whereas this situation proves to be a serious blow to the ends of public interest. The purpose of this

article is to elaborate the means of achieving better control of delegated legislation in Pakistan with a view

to safeguard public interest.

Keywords: Delegated Legislation, Public Interest, Parliamentary Oversight, Judicial Review, Delegated

Legislative Authority, Administrative Rulemaking.

Introduction

Legislation in Pakistan is primarily a function of legislature i.e. Parliament which according to Article 50 of

the Constitution of Islamic Republic of Pakistan, 1973, comprises of President, National Assembly and

Senate. However, the legislature is at liberty to delegate this legislative authority to any person or body

(mostly the executive branch of state) to make rules, regulations or byelaws etc. in order to effectuate the

laws enacted by the legislature itself. In this context, the term delegated legislation on one hand refers to the

exercise of such delegated legislative authority and on the other hand it denotes the outcome of the

aforementioned exercise of authority reflected in the form of rules and regulations etc. For the purposes of

this article both aspects of the term are employed. As far as legislative process employed by Parliament for

law-making is concerned, Articles 70 to 77 of the Constitution of Islamic Republic of Pakistan lay down a

detailed course of action in this respect ranging from presentation of Bill of proposed legislation to

discussion in both Houses of Parliament etc. This procedure is quite intricate and involves a well sort out

scrutiny process of proposed legislation. In contrast, for exercise of delegated legislative authority neither

any procedure is laid down under Constitution nor any unified procedural code for rulemaking is in place in

Pakistan. This poses a risk that the entity vested with delegated legislative authority may overstep the

delegated legislative powers resulting in arbitrary and inconsistent rulemaking practices. Considering the

fact that rules and regulations etc. may have a direct impact on large segments of society, it is feared that

the arbitrary exercise of delegated legislative authority may adversely affect the rights and freedoms of

common people in contravention of the Constitution or the provisions of enabling legislation wherein the

delegation of legislative authority is enshrined. This article looks into different tools employed in Pakistan

for scrutiny of delegated legation and discusses the prospects of more efficient usage of these tools in

controlling administrative rulemaking for the ends of safeguarding public interest.

mailto:[email protected]

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Literature Review

The overtaking of state role from „night-watchman state‟ or minimal state towards a social welfare state in

the 20th

century emphasized on more governmental intervention through legislation (Gestel, 2013). This

change is considered a stimulus for greater delegation of legislative powers by the state to the executive as

a means of ensuring socio-economic justice to her subjects (AIR 1980 SC 350).

It is a common practice now a days that the Parliament in Pakistan gives rulemaking powers in the nature of

delegated legislative powers to the executive, which gives rise to the danger that “If we allow the unlimited

transfer of legislative power to the executive we run the risk of subverting the rule of law ideal,

fundamental to the control of government, that those who carry out the law should be restrained by those

who make it” (Meyerson, 2003).

When the checks on the delegated legislation are weak, there is a good chance that the authority delegated

with legislative power would use it in an arbitrary manner. This is just not an assertion. In fact the courts in

Pakistan have noted this issue while reviewing the validity of delegated legislative powers in number of

cases. In Sunbiz Private Limited v. Federation of Pakistan, Islamabad High Court found out that the

impugned delegated legislation (the PEMRA (council of complaints) Rules, 2010) arbitrarily enlarged the

scope of the powers of the agency concerned in violation of the provisions of enabling legislation (2018

YLR 1785 [Islamabad]).

The Islamabad High Court in another case titled Shagufta Hashmat and others v. Federation of Pakistan

while ascertaining the legal status of regularization policy of 2011, purportedly made by the Federal

Government to govern the matters of regularization of government servants, found out that the impugned

policy transgressed the mandate of the enabling legislation (2018 PLC (C.S.) 619 [Islamabad]).

Likewise, Peshawar High Court pointed out the arbitrary exercise of delegated legislative power by the

rulemaking authority in a case titled Khalid Mahmood v. N.W.F.P. through Chief Secretary, Peshawar and

4 others. It was noted by the court that the delegated legislation was made to operate retrospectively by the

rulemaking agency despite the fact that there had not been any authorizing provision to this effect in the

enabling enactment (PLD 2011 Peshawar 120).

As the delegation of legislative authority is considered to travel from Parliament, it is but logical that the

Parliament itself should control such delegation by laying down policy guidelines in the enabling

legislation and not to abdicate essential legislative function (PLD 2019 Lahore 515). However, Parliament

has also proven to be not as diligent as it should have been in controlling the delegated legislation which

requires that further steps should be taken to keep the delegated legislation under tightened scrutiny and

control the situation in Pakistan.

Objectives of the Study

This study is focused on the objective of finding out the means of efficiently controlling the delegated

legislation mainly relying on the available tools which are more or less already in vogue in the field in

Pakistan with a view to safeguard public interest.

Research Questions

What is the nexus of public interest and delegated legislation?

What controls are currently being employed in Pakistan to monitor and control delegated

legislation in the country?

How currently employed tools in the country be effectively made use of to control delegated

legislation with a view to safeguard public interest?

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Research Methodology

This article deals with purely a legal issue with regard to which I have undertaken a qualitative research

primarily adopting critical and analytical approach to this effect. This study is done specifically in Pakistani

context wherein focus has been on the judicial treatment of the concept of delegated legislation coupled

with the study of parliamentary tools to control agency rulemaking.

The judicial decisions of Constitutional courts in Pakistan as much as these interpret the contours of

delegated legislation in the country have been studied in an effort to come up with forming suggestions for

improving better control of this kind of legislation.

Public interest is the key element of the discussion here as more control of delegated legislation is desired

to safeguard the interests of masses from arbitrary exercise of delegated legislative powers of the executive.

Consequently, the contextual basis of the study revolves around the idea of saving public interest.

Holy Grail of Public Interest

The term public interest refers to “the general welfare of the public that warrants recognition and

protection; something in which the public as a whole has a stake esp. an interest that justifies governmental

regulation” (Garner, 2004). In other words, anything which contributes to the “wellbeing of the general

public” can be referred to as public interest (PLD 2017 Lahore 709).

Courts in Pakistan consider the interest of public to be superior over any other considerations (PLD 2017

Lahore 442). Same principle is true regarding the delegated legislation and courts in Pakistan support the

idea that powers of executive including delegated legislative powers must remain subservient to the

objective of public interest For instance, in a case titled M.D. Tahir v. Director State Bank of Pakistan

Lahore, the court ascertained the validity of a circular in the nature of delegated legislation under a

Constitutional petition before it under Article 199 of the Constitution of Islamic Republic of Pakistan 1973,

whereby the State Bank of Pakistan directed the commercial banks in Pakistan to provide personal

information of their depositors to it.

The court found the direction of the SBP detrimental to the right of privacy of the depositors and nullified

the same on the ground inter alia that exercise of delegated legislative authority negatively affected the

interests of public without any legal justification (2004 CLD 1680 Lahore).

Likewise, Supreme Court of AJ&K while quoting the judgement of Supreme Court of Pakistan given in a

case cited as (2017 SCMR 2010), observed that the public functionaries were duty bound as a principle of

public policy to exercise their powers (including delegated legislative powers) in the public interest and not

arbitrarily (2018 PLC (C.S.) 435 AJ&K Supreme Court).

To clarify the nexus of public interest with delegated legislation, a recent case of public interest litigation

titled Jurists Foundation v. Federal Government through Secretary Ministry of Defence & others, has

proven to be a good example. In this case, act of extension in the tenure of service of Chief of Army Staff

purportedly being done by Federal Government on the basis of a piece of delegated legislation titled as

Army Regulations (Rules) 1998 was challenged before the Supreme Court of Pakistan. The court found out

serious legal loopholes in the rules which were in existence for decades.

The point to be noted here is that a matter (extension in tenure of Army Chief) which may have long term

repercussions for the state and people of Pakistan had purportedly being done (as observed by the Supreme

Court) on the basis of legally deficient rules. The impugned rules were in existence for decades but no one

could find the serious legality issues therein until same were brought before the court in public interest

litigation.

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Had there been a strong control mechanism in place, the rules would have been identified as faulty at the

time of making and perhaps would have been remade or rectified. Interestingly though court considered the

delegated legislation an example of excessive delegation, yet instead of striking out the legally bad

provisions of the rules, it opted to direct the Federal Government to bring necessary changes in the rules

(PLD 2020 SC 1).

In order to avoid such a state of affairs and to safeguard the core stimulus (of public interest) behind

delegation of legislative authority to the executive, scrutinizing and controlling such an authority with

sufficient vigour is needed.

Means of Controlling Delegated Legislation

Executive branch of state (personified by the government departments etc.) is the main player in the

exercise of delegated legislative authority. In order to keep a check on this authority of the executive

remaining two branches of the state i.e. judiciary and legislature, have a role to play which is discussed

underneath.

Judicial Review

Judicial review is a process whereby the legislative and executive actions are reviewed by the superior

judiciary to ascertain their validity (PLD 2020 Lahore 435). Study of decisions of Constitutional courts in

Pakistan show that the courts usually scrutinize the exercise of delegated legislative powers under judicial

review on the basis of substantive and procedural ultra vires (where the term ultra vires literally means

beyond the power or authority).

Regarding substantive ultra vires, first important aspect discussed by the courts in scrutiny of delegated

legislation is on the basis of enabling legislation, which basically lays down the contours of delegated

legislative powers by the Parliament to the executive. Generally in Pakistan, where a court of law considers

that the delegate failed to follow the limits prescribed under the enabling legislation in exercise of delegated

legislative power, it does not hesitate to invalidate such exercise of powers (2018 YLR 1785 Islamabad).

For instance, Islamabad High Court invalidated a departmental regularization policy being in the nature of

delegated legislation on the ground that it was inconsistent with the provisions of enabling legislation i.e.

the Civil Servants Act, 1973 (2018 PLC (C.S.) 619 Islamabad).

Secondly, under judicial review in Pakistan, substantive ultra vires of delegated legislation is judged on the

basis of Constitutional provisions. In this regard, the courts generally see whether exercise of delegated

legislative authority in some way has restricted the enjoyment of a fundamental right guaranteed under the

Constitution of Islamic Republic of Pakistan, 1973 and upon finding a violation, the court strikes out the

same (2018 YLR 222 Islamabad). e.g. Balochistan High Court nullified a piece of delegated legislation

which it considered to be in violation of right of equal protection of law under Constitution of Islamic

Republic of Pakistan, 1973 (2015 PLC (C.S.) 1182 Balochistan).

Thirdly in Pakistan unreasonableness is also a ground to challenge the validity of delegated legislation

(2018 YLR Note 117 Karachi- Hyderabad Bench). The Lahore High Court stroke down a departmental

policy in the nature of delegated legislation being unreasonable on the basis of the absurdity of the way in

which such power was exercised by the rulemaking agency (2018 PLC (C.S.) 243 Lahore). Apart from

absurdity, courts in Pakistan further associate the term with unreasonable imposition of restriction on the

exercise of constitutional rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973.

For instance, a rule under Sales Tax Rules, 2006 was invalidated by the Lahore High Court for being

unreasonably restricting the right of fair trial guaranteed by the Constitution (2018 PTD 1042 Lahore).

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Fourthly in Pakistan mala fide of the rulemaking authority can be a valid ground to challenge an exercise of

delegated legislative power (PLD 2018 Sindh 603). For example, Peshawar High Court declared a Statutory

Regulatory Order legally unenforceable on the basis of malice in law (PLD 2015 Peshawar 374). However,

mala fide of the rulemaking authority is hard to prove with material evidence as a result chance of success

to overturn a piece of delegated legislation on this ground alone is minimal.

Fifthly the courts in Pakistan do not generally allow retrospective operation of a delegated legislation unless

the enabling legislation clearly allows the delegate to exercise such power (2017 PLC (C.S.) Note 1 Lahore

High Court-Multan Bench). An example of such a notion can be seen in a case where the Peshawar High

Court declined to uphold the retrospective operation of a notification issued under Section 56 of the

N.W.F.P. Forest Ordinance, 2002 on the ground that parent enactment (the Ordinance) did not authorized

the Government to exercise delegated legislative authority retrospectively (PLD 2011 Peshawar 120).

On the point of procedural ultra vires, the case law in Pakistan is limited to discuss obligation of

rulemaking authority to publish the rules for public knowledge (PLD 2016 Lahore 237) and further points

out the need for consultation by rulemaking authority with interested persons ahead of rulemaking (2011

PLC (C.S.) 1623 Gilgit-Baltistan Chief Court).

To some extent, these requirements of publication and consultation are already enshrined under Section 23

of the General Clauses Act, 1897, which are considered the courts in Pakistan a valid basis for ascertaining

procedural requirements for exercise of delegated legislative authority, in conjunction with the statutory

provisions. However, no significant case law on the requirement of laying the proposed delegated

legislation before Parliament for approval exist. The reason for lack of judicial precedents on the point

appears to be that this particular procedural requirement is seldom envisaged in the enabling legislation and

because of this the issue is not raised before the courts too often.

Parliamentary Oversight

As the delegation of legislative powers travels from the Parliament to other organs of state, especially the

executive, it becomes the prime responsibility of the Parliament itself to devise mechanisms to control the

exercise of such powers. This control can be exercised at two stages namely ante-natal and post-natal stage

of legislation in Pakistan.

The ante-natal stage refers to the stage where enabling legislation, under which the power to legislate is

delegated, is in the process of making within the Parliament or an amendment process in the primary

legislation to this effect is underway. This stage is highlighted by the presentment of Statement of Objects

and discussions on the Bill. Under Rules 118 and 120 of Rules of Procedure and Conduct of Business in

National Assembly 2007, it is mandatory that any of the Bills for new legislation introduced/ originated in

either Senate or the National Assembly, must be accompanied by a statement of objects illustrating the

reasons and objectives to be achieved through proposed legislation.

The statement of objects and reasons laid alongside the bills before the Parliament can be used as one of the

earlier means to draw the attention of the Parliament towards a delegated legislative power intended to be

given to an executive authority under proposed new legislation. Similarly, during the legislative process

when a Bill for promulgation of an enactment is presented in the House, the Parliamentarian have

technically ample opportunity at this stage to discuss the contents of a proposed legislation including scope,

extent and nature of delegated legislative powers proposed to be given to the executive thereunder. At these

stages Parliament can restrict any unwanted vesting of legislative authority to the executive.

At post-enactment stage laying before Parliament requirement of delegated legislation and standing

committees of both Houses have a role to play. Laying of rules (or any other form of delegated legislation)

requirement before Parliament is envisaged in enabling legislation.

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An example of the primary legislation, where requirement of laying of rules before the Parliament is

embodied, can be the Public Interest Disclosures Act, 2017. Section 24 of the Act provides that the

Government may make rules under the Act, subject to the condition that the rules so made shall be laid

before the Parliament as soon as after they are made. This kind of requirement enables Parliament to keep

an eye on delegated legislation and to restrict extraordinary/ outrageous delegation of legislative authority

to the executive.

As far as the Parliamentary Committees of both Houses of Parliament in Pakistan are concerned, these

comprise of sitting members of Parliament and are essentially formed at the start of session of every new

Parliament for different ministries and Governmental department. These are considered “eyes and ears” of

the Parliament for the reason that much of the Parliamentary work is assigned to these committees

(National Assembly of Pakistan, n.d.). Under Rule 198 of Rules of Procedure and Conduct of Business in

National Assembly, 2017, it is mandatory for the Government to make a committee in National Assembly

for every Government Ministry comprising from the elected members of the assembly.

Likewise, Rule 58 (2) of the Rules of procedure and conduct of Business in Senate requires formation of

similar type of committees in Senate the Upper House of Parliament. Until few years back, no

parliamentary committee in Pakistan existed to exclusively scrutinize or discuss exclusively the delegated

legislation.

The formation of the Senate Standing Committee on delegated legislation was affected in the year 2012

which has been considered an important achievement towards reformation of the Senate of Pakistan in the

last decade (Friedrich Ebirt Stiftung & the Research Initiative, 2018).

Under Rule 172C, Rules of Procedure and Conduct of Business in the Senate, 2012, the committee is

entrusted with the task to scrutinize and report on whether the government timely and properly exercised

the delegated legislative powers given to it under either the Constitution or an enactment of Parliament.

Rule 172D embodies the criteria on the basis of which the committee scrutinizes a piece of delegated

legislation to check Constitutionality, conformity with enabling legislation, imposition of tax, ouster of

judicial review, retroactivity and unusual exercise of delegated legislative authority etc. The working of the

committee has revealed some astonishing facts with regard to delegated legislation in Pakistan. For instance

while taking a briefing from the representatives of the Ministry of Health Services, the committee noted

with dismay that Pakistan Nursing Council working in the Health sector was formed in 1973, whereas, no

rules/ regulations in pursuance of the primary legislation has been notified up till now. (The Senate

Committee on Delegated Legislation, 2019).

Areas of Concern with regard to Control of Delegated Legislation in Pakistan

Under Articles 184 (3) and 199 of the Constitution of Islamic Republic of Pakistan 1973, Constitutional

courts in Pakistan including the Supreme Court of Pakistan and provincial High Courts have vast powers to

take suo motu notice of issues of public importance respectively. However, such power is never exercised

by these courts in evaluating the provisions of any delegated legislation which negatively affected the rights

and freedoms of general public.

Parliamentary control of delegated legislation in Pakistan is weak for multiple reasons. Firstly in Pakistan,

pre-enactment parliamentary scrutiny of delegated legislation is limited to discussions at Bill stage of

primary legislation, whereby delegation of legislative powers is proposed. At this stage, lack of knowledge

of the parliamentarians about importance of the concept and lack of their interest towards discussing the

contours of proposed delegated legislative power play its part to undermine the scrutiny process of

delegated legislation.

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Secondly, parliamentary scrutiny committees are considered vital in scrutinizing delegated legislation and

considered as the sensing organs of the Parliament indulged in the actual work of the Parliament. However,

in Pakistan, this aspect remained neglected considering the fact that before the year 2012 (when first

specialized parliamentary committee to scrutinize delegated legislation in Pakistan titled the Senate

Committee on delegated legislation was formed) no parliamentary committee to specifically scrutinize the

delegated legislation existed in Pakistan. The committee has long way to go before it may be able to have

an impact on over all culture of delegated legislation in the country. Apart from this no dedicated

committee exist in National Assembly to this day.

Thirdly, despite the fact that laying of delegated legislation before Parliament is a very handy tool to keep a

check on delegated legislation, it is seldom embodied in the enabling legislation in Pakistan. Whatever

might be the reason for such a neglect, the above stated state of affairs undermines the usefulness of this

technique.

Fourthly, there are inconsistencies among different instruments made by the executive in exercise of

delegated legislative authority. This is due to the reason that no uniform guidelines or uniform procedural

code exist in Pakistan on the pattern of codes for rulemaking currently in force in some developed

countries. For instance, United States and UK have in place well-defined unified procedural codes namely

Administrative Procedure Act 1946 and the Statutory Instruments Act 1946, respectively (Sabti &

Subbaiah, 2017). These are the main problems giving rise to the weaken system of delegated legislation in

Pakistan.

Suggestions for Improving and Strengthening of Control over Delegated Legislation

Following are my humble suggestions for strengthening scrutiny process of delegated legislation which is

expected to keep the exercise of legislative powers by the executive at bay with a view to safeguard public

interest:

Frequent Use of Laying Before Parliament Requirement

It is proposed that laying of delegated legislation before the Parliament requirement may be embodied more

frequently in the enabling enactments frequently. This is the right time to emphasize upon the requirement

of laying before the Parliament of delegated legislation, as some of the sitting members from the National

Assembly themselves showed themselves the ambitions to put this technique into practice to control the


The proof of this claim is the presentment of large number of private member Bills in the last sessions of

National Assembly in year 2019, for instance Pakistan Broadcasting Corporation (Amendment) Act, 2019

Bill, the Safeguard Measures (Amendment) Act, 2019 Bill and the Islamabad Transfusion of Safe Blood

(Amendment) Act, 2019 Bill etc. whereby introduction of laying requirements for rulemaking through

amendment in Parent enactments were enthusiastically proposed.

Though in Pakistan it is nearly impracticable for Parliament to include such a provision in every enactment,

yet it is quite practical (keeping in view the above referred legislative activity in the form of private

members‟ Bills) that the primary legislation which extensively deals with the rights and liabilities of

general public, must delegate legislative powers only subject to condition that delegated legislation made

thereunder shall be laid before the Parliament and shall come into effect only when the requirement is

fulfilled.

Publication of Delegated Legislation

In most of the cases, the publication of delegated legislation is meant in Pakistan to be post-enactment

publication of a piece of subordinate legislation in the official gazette. During this process, the importance

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of publication prior to enactment is neglected which otherwise may prove helpful in informing general

public about the intention of the rulemaking agency to exercise delegated legislative powers and

consequently provide them a chance to participate in this process. The requisite legal framework in this

respect exists in Pakistan in the form of General Clauses Act, 1897 whereby the mechanism of prior

publication is given providing for publication of draft rules in official gazette.

The provisions are used for eliciting objections/ suggestions from the concerned and obligation of the

rulemaking authority to consider such an input while formulating final rules. It is recommended that

aforementioned existing mechanism may be frequently employed by introducing pre-enactment publication

requirement in the enabling legislation in which case the provisions of the General Clauses Act, 1897 shall

be attracted requiring the rulemaking agency to follow the same.

Promulgation of a Unified Administrative Procedure Code

It is proposed that to bring uniformity in the exercise of delegated legislative powers in Pakistan, a unified

procedural code be promulgated by Parliament on the lines of Administrative Procedure Act, 1946 and the

Statutory Instruments Act, 1946 of the USA and UK respectively.

The proposal is quite practical keeping in mind the fact that similar model was proposed by the Law and

Justice Commission of Pakistan in its 26th report (Law and Justice Commission of Pakistan, n.d.) and

postulated different useful provisions probably extracted from APA models prevalent in UK and USA,

which was never materialized.

This proposal of the Law and Justice Commission may be taken by the Parliament as a starting point and

can easily be modified to the needs of current times to govern the delegated legislation with the use of

procedural controls like laying before Parliament, publication and consultation requirements etc. It is

worth-mentioning here that uniformity of the procedure adopted in delegated legislation is aimed at

improvement of quality and efficacy of resulting delegated legislation which ultimately would benefit the

cause of interests of general public.

Educating the Legal Fraternity

It is proposed that in legal education the concept of delegation of legislative authority to the executive be

given more weightage which is currently being taught to the law students as a small topic under

Administrative Law. Despite the fact that both primary and secondary legislation (if validly made) are on

equal footing so as to affect the interest of masses, emphasize on law-making in the form of parliamentary

enactment is elaborated at greater lengths as compared to the delegated legislation. However, as compared

to primary legislation, delegated legislation in Pakistan is subject to fewer controls but on the other hand

the latter sometimes affects the rights and liabilities of the masses to a greater extent without being widely

circulated and even sometimes secretly.

By educating the students of law with this aspect in context may result in increasing the research in the area

causing more awareness among legal fraternity in this respect and consequently more proposals may

emerge to address the issue of arbitrary and unbridled exercise of legislative powers with the object to

safeguard public interest.

Judicial Activism towards Reviewing Exercise of Delegated Legislative Powers

It is proposed that Constitutional courts in Pakistan should proactively exercise their suo motu powers to

scrutinize the validity of alleged inappropriate exercise of delegated legislative powers by the government

ministries or departments as cases of public importance under Articles 199 and 184 (3) of the Constitution

of Islamic Republic of Pakistan. In my view this kind of judicial activism would certainly pace up the

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improvement in the delegated legislation and may not prove to be much different from other suo motu cases

where mostly Supreme Court of Pakistan had intervened in the name of saving public interest.

Sensitising Parliamentary Standing Committees

It is proposed that parliamentary standing committees in National Assembly should interact frequently with

the concerned departments/ ministries with which they are affiliated specifically about exercise of delegated

legislative powers. This can be done not only by the Senate Committee on Delegated Legislation

specializing the issue but also by other standing committees of the Parliament which by virtue of their

general mandate are authorized to examine the delegated legislation of relevant department or ministry. It is

worth clarifying here that there is no need to establish new committees in this respect.

My view is that the Standing Committees already in existence may be mobilized to do the job. Furthermore,

it is also important to note that even if guidelines issued by these committees to concerned departments

have no binding effect on the rulemaking agencies, nevertheless such guidelines can help developing a

rulemaking culture which is expected to improve the quality of delegated legislation benefitting general

public.

Discussion

Under judicial review Constitutional courts in Pakistan can check inter alia the arbitrary exercise of

delegated legislative authority by the executive (PLD 2018 Sindh 603). This can be a handy tool in

controlling the delegated legislation as the Constitution of Islamic Republic of Pakistan 1973 enables the

superior judiciary in the country intervene in the matter of public interest at their own behest by using suo

motu powers. Although delegated legislation has far-fetching impact on the rights and freedoms of the

general public yet this particular power of taking suo motu notices has not been proactively used to address

the issue of arbitrary exercise of delegated legislation.

The Supreme Court Pakistan took Suo Motu notice of non-availability of authentic laws of Pakistan

including delegated legislation as a matter affecting the public interest (PLD 2015 SC 257). It was the

understanding of the court that lack of credible legal record pertaining primary and secondary legislation,

adversely affected the rights of general litigants etc. and ordered thereby the Federal Government to resolve

the issue. Consequent upon the directions of the court, Laws of Pakistan Act, 2016 was promulgated by the

Parliament which aimed at providing for better access to public of laws of Pakistan free from such errors

which occur during reproduction, updating and printing of these laws by private publishers.

Though the court did not deal issue of arbitrary exercise of delegated legislative authority and delegated

legislation was discussed therein in ancillary terms, yet the judgment proved that the intervention of court

could make a difference by persuading the Parliament to take action in the form of promulgation of new

legislation. This is possible only when the Constitutional courts in Pakistan pay attention to the importance

of delegated legislation and proactively deal the issue of arbitrary exercise of delegated legislative authority

as issue of public importance.

On the other hand, Parliament itself being the source of delegation of legislative authority has not been able

to play its proactive role in safeguarding the public interest by making use of the parliamentary tools like

embodying requirement of laying delegated legislation before Parliament in primary legislation more often

for controlling arbitrary exercise of this authority. The non-seriousness of the Parliament towards the issue

normally surfaces in cases where delegated legislation is challenged in judicial review before superior

judiciary.

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Similar situation was seen to arise in the case Ahmed Mehmood v. Government of Punjab through Chief

Secretary where the Lahore High Court while judging the vires of a piece of delegated legislation held that

the impugned instrument attempted to widen the scope of general operation of the enabling legislation

which had been beyond the mandate of this kind of legislation. The court went on to highlight the principle

that Parliament should not delegate its core job of laying down legislative policy to the executive and

emphasized that the essential legislative function should be retained in the hands of Parliament only (2019

PLD 206 [Lahore]).

Furthermore, the parliamentary tools which are available with the Parliament of Pakistan like use of

parliamentary committees in scrutinizing delegated legislation are not being employed to their optimum

capacity. Senate committee on delegated legislation formed in the year 2012 is expected to bring positive

change but the path to success is difficult. The committee at times has not only failed to get the appreciation

and cooperation it deserves to perform as a tool of parliamentary scrutiny in the field of delegated

legislation, but also faced embarrassing situations likely to discourage its operations. For instance,

committee asked the Ministry of Defence to brief the committee on rules and regulations framed under the

National Command Authority Act, 2010. However, to the disappointment of the Chairman of the

committee, the Defence Ministry resisted and never provided the requisite information (The Senate

Committee on Delegated Legislation, 2018).

Other aspect of the parliamentary control of delegated legislation is where Parliament enacts a unified

administrative procedural code so that concerned agencies stick to a pre-planned and predictable course of

action while exercising delegated legislative powers. The advantages of codifying administrative procedure

with regard to agency rulemaking include increased legal clarity, standardization of procedural rules,

opportunity to reform the rulemaking using the codified system and Stability of legal rules etc. (Ziller,

2011). In the absence of a unified procedural code for Pakistan, it is difficult to attain the consistency and

standardization of rulemaking which is necessary to protect public interest in the country.

Conclusion

Legislation is the primary function of Parliament in Pakistan which is governed by the Constitutional

provisions and is scrutinized meticulously within the Constitutional framework. However, in contrast when

legislative powers are delegated to the executive with underlying object inter alia of protection of interests

of general public, the controls over exercise of such powers are weaker than the ones for primary

legislation.

This runs the risk of subverting and undermining of the very objective of delegation of legislative powers as

the unbridled exercise of such power endangers the interests of general public in terms of their

Constitutional rights and freedoms etc. In order to safeguard the public interest the controls over delegated

legislation are required to be strengthened. The power of judicial review is proposed to be exercised by the

Constitutional courts proactively coupled with their suo motu powers under the Constitution so that the

executive is aware of the fact that courts are inclined to intervene more frequently and this should create a

natural deterrence to this effect.

The role of Parliament in this regard is more important in the context that legislative power is in fact

delegated by the Parliament to the executive. This impose more responsibility on the Parliament to

strengthen its control over the exercise of such delegated authority. This can be done by mobilizing/

sensitizing existing Parliamentary Standing Committees with regard to delegated legislation, introduction

of laying requirements for delegated legislation frequently in the primary legislation and by promulgating a

unified procedural code for the executive to be followed in the rulemaking process. This would bring

consistency, quality and predictability of the resulting delegated legislation and would ultimately contribute

towards safeguarding the public interest from otherwise arbitrary, inconsistent and loosely controlled


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Documents

Controlling Delegated Legislation for Safeguarding Public