RUAHA UIVERSITY COLLEGE

FACULTY OF LAW

PROGRAM: BACHELOR OF LAWS (LL.B)

COURSE: ADMNISTRATIVE LAW (RLW 200)

ASSIGNMENT NO. 1, SEMESTER III, 2006/2007

QUESTION:

0ne of the modern states which is known to be the greatest adherent to the Montesquieu
doctrine of separation of power is the USA, thus on delegation of legislative power to the
executive Locke developed the theory that legislative could not transfer the powers of
making laws to any other hand for it being delegated power from people they who had it
could not pass it over to others, and so was the decision of the USA supreme court in the
case of Field v Clarke vol. 143 V.S .R.P 650 at 692, thus it is considered to be an
essential principle including the constitution that power entrusted to one department
should be exercised exclusively by that department without encroachment upon the
power of another, however the multifarious modern government activities have made
such stand no longer the position.

GROUP MEMBERS: SIGNATURE

1. NAHAKI NASIB HAMISI …………

2. LIPANGILE NASSOR THABIT …………
3. MUNA JOSEPH JEROME …………
4. MWITA NEEMA BHOKE …………
5. KAAYA ALEX ATHONY …………
6. MHIRO N. MARCIA …………
7. OLIVER WALES MAHINYA ………….

DATE DUE: 30th November 2006.

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CONTENT

1.0 The doctrine of separation of power

1.1-Meaning of the doctrine

1.2-Origin of the doctrine and its profounders
1.3-Demands of the doctrine
1.4-Appreciation, criticism/ defects of the doctrine

2.0-Delegated Legislation

2.1-Meaning of the delegated legislation

2.2-Why delegated legislation?

3.0- Doctrines of separation of power and delegated legislation.

3.1 -Separation of power and delegated legislation (relationship)

3.2-United states -doctrine of separation of power and delegated legislation.
3.3 –case – Field Vs Clark

4.0 Multifarious modern government activities and the doctrine of separation of

power

5.0 -Control delegated legislation

6.0 -Conclusion

7.0 -Bibliography

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1.0-THE DOCTRINE OF SEPARATION OF POWER

1.1-Meaning:

practice in a free democracy that demands division of powers and functions of

government among different branches of it (the government) to guard against abuse of
authority, the branches of government referred to here are, the legislature, the executive,
and the judiciary, and their functions are to make laws, to enforce the laws and to
interprets the laws, respectively

1.2-Origin of the doctrine and its profounders

The doctrine of separation of power has emerged in several forms at different times
many centuries ago’ however we can trace it to Plato and Aristotle in 16 and 17 centuries.
James Harrington was the first modern philosopher to analyses the doctrine building on
the work of Aristotle, Plato and Niccolo Machiavelli in his essays “common wealth of
Oceana (1656)
John Locke, later gave the concept more ratified treatment in his second treatise of the
government (1690)
The modern idea of the separation of powers was explored in more depth by Boron
Montesquieu (1689-1755) who systematically, scientifically and clearly formulated it

1.3-Demands of the doctrine

They argued unity of the legislature, and the executive in the same person or body would
lead to lack of liberty because:
i.-Apprehension may arise
ii.-Enactment of tyrannical laws and
iii.-Execution of laws tyrannically and hence subjects would be exposed to arbitrary
controls
This has the implication that,-
i-one and same person should not form part in more than one of the three organs of the
government
ii.-One organ of the government should not interfere or control with the functions of the
other
iii.-One organ of the government should not exercise the functions of the other organ.

1.4 Appreciation, criticism/detects of the doctrine

The doctrine was accepted by English and American jurists and politician.
Blackstone, commentaries as the laws of England, 1965’
“Unity of three organs can lead to loss of liberty”
Madison, accumulation of power to one person, few, many, hereditary, self appointed or
elective leads to tyranny.
However, the doctrine faced a great challenge that it is impractical.

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2.0 DELEGATED LEGISLATION
2.1 Meaning
It can at the first time mean “exercise of the legislative power by a subordinate/authority
by a virtual of power entrusted to it by the legislator (parliament)”, or it can as well mean
“set of laws/subsidiary rules made by a subordinate authority (organ) (to parliament) by
reason of being itself entrusted by the legislator (Parliament)

2.2 Why delegated legislation?

The reasons include,

Firstly, pressure upon parliament time, the bulk of the legislation is so great, limited time
to discuss all matters hence need to empower the agents to legislate.
Secondly, some subjects matter on which to legislate are very technical and the
legislators themselves being a common ma hence assistance to experts is vital
importance.
Thirdly, at time of emergence, quick action is required to be taken. For example times at
war, epidemics, floods, inflations etc, this makes necessary to empower executive to
legislate, Parliament is slow and involves delays.
Fourthly, expansion of modern function of state and administration on various fields
hence important to center power to legislate to agents.
Fifthly, avoidance of plans to defeat the legislation when it is made to defeat certain
detects- it should not be known earlier.
Sixth, when passing legislative enactment it is impossible to foresee all the contingences
hence need for delegated legislation.

3.0 SEPARATION OF POWER AND DELEGATED LEGISLATION.

3.1 Separation of power and delegated legislation (relationship)

As it is seen above the two doctrines are inseparable, adherence to the doctrine of
separation of power compels one to adopt non-delegation of legislative authority
(delegated legislation)
since the later doctrine offends the former.

3.2The United States – The doctrine separation of power and delegated legislation.
The doctrine of separation of power forms the foundation in which the structure of the
constitution of the United States is based, the constitution itself shows a great extent of
adherence to the aforesaid montesqueus’s doctrine. Some provisions of this constitution
do divide the powers of the government among different braches to guard against abuse
of the authority. The following provision exemplify this.
Article 1, sect 1 vests all legislative powers in the president of the United States.
Article III, Section 1 centers the supreme court of the United States with judicial
powers. And
Article 1, Section 6 stipulates “no one elect in the congress may simultaneously serve
as the member of the executive branch.

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 Furthermore, the judiciary in the United States is not empowered to decide on political
questions
The adherence on the United States constitution on the question on the separation
of power is also relying on the doctrine “delegates non protest delegare” under doctrine
delegate can not further delegate his power referring to the United States, the congress
gets its power from people and it is therefore a delegate of people in that note it can not
further delegate its legislative power to any other agency.

4.0 MALTIFURIOUS MODERN GOVERNMENT NE IACTIVITIES AND THE

DOCTRINE OF SEPARATION OF POWER AND DELEGATED
LEGISLATION

In spite of the restrictions for the congress to delegate its legislative powers to the
executive, the same is done; it is inevitable, strict adherence thereto is not practicable.
The multifarious modern government activities and complexities has lead to
impossibilities in strict structural classification of the government powers into the three
branches of the government as seen hereunder,
The United States executive (president) interference with the congress, refer to the
use of veto power which is contrary to the doctrine of separation of power.
Another interference is seen when the executive (head of a state) is involved in the
treaty making which is infact a duty of legislature.
Interference of the executive is also seen in the appointment of judges of the
Supreme Court of the United states.
Also the congress interference into the executive is seen in the members of the
congress voting on budget which is made by the executive.
Approval of appointments of by the senate
Ratification of treaties made by the executive.
Also the courts (judiciary) interference into the executive in the following
Passing of present laws, creation of special courts and approval of appointed judges.
The judiciary interference to the congress and the president (executive) can be seen
when judiciary is making review, law making it is said that the court has made more
amendment to United States Constitution than the congress.

6.0 CONCLUSION

Frankly to speak the modern state complexities is what rendered the doctrine of
separation of power impossible the impracticability of the aforesaid makes the delegated
legislation possible as seen above.

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7.0-BIBLIOGRAPHY

C.K.Takwani, lectures on administrative law, third edition, 1998, Estern book company,
Lucknow.

Dr.ip.Massey. Administrative law, sixth edn, 2001 Eastern book company, Lucknow.

Encarta Encyclopedia standard, 2004

H.K. Bisimba and C.M. Peter, justice and rule of law in Tanzania (selected judgments
and writing of justice James L. Mwalusanya and commentaries.

Peter Oluyede, Admistrative law in East, Africa first edn, 1973, Kenya literature Bureau