PUBLICATION OF RULES AND REGULATIONS
CONTENTS
1.0 Introduction
2.0 Objectives
- Main Content
- Publication
- Antecedent Publication
- Subsequent Publication
- Conclusion
- Summary
- Tutor-Marked Assignment
- References/Further Readings
INTRODUCTION
You will recall that in every legal system, ignorance of the law is no excuse. This is a mere supposition designed to aid law enforcement. In actual fact, there are so many people who are ignorant of the law and they get firsthand knowledge of the existence of that law when they are found on the wrong side of the law. In order to overcome a circumstance whereby genuinely ignorant persons are punished merely because ignorance of the law is no excuse, States try as much as possible to publish their laws in volumes. In Nigeria, for example, we have the Laws of the Federation of Nigeria (LFN), the most recent edition being those of 2004.
Unfortunately, however, there is no general law mandating administrative agents to publish their rules and regulations. The backlash of this is that most violators of rules and regulations are punished not because they actually intended violating them but because ignorance of the law is no excuse.
OBJECTIVES
At the end of this Unit, you shall be able to:
Appreciate the worth of delegated legislation by reason of its adherence to the demands of publication
- Educate persons interested in delegated legislation on steps to take against an administrative agency that fails to publish or publicize its rules or regulations.
MAIN CONTENT
Publication
Publication of rules and decisions is the act of bringing the decision, rule, regulation, policy of the administrative agency to the knowledge of the stakeholders or the general public, as the case may be. Such publication may be antecedent publication or subsequent publication.
Antecedent Publication
This is the prior publication of proposed rules or regulations or action by the administrative agency for the notice or information of stakeholders. In addition to its role of giving advance notice, the notice assists in preparing the minds of interested persons and all those who would be affected by the agency decision. Generally, there is no law which mandates antecedent publication in Nigeria. However, where the enabling statute imposes such obligation on the agency, the agency is bound to comply.
In the UK and in the US, for example, there is a general requirement for the agency to publish its proposal before it becomes effective. Under S. 1 of the English Publication Act 1893 (now repealed by the Statutory Instruments Act 1946), proposed rules, regulations, etc, made pursuant to an Act of Parliament were required to be published in the London Gazette and interested parties given a period of 40 days from the date of such publication to make their views known on the matter. Unfortunately, however, the Statutory Instrument Act 1946 that repealed the English Publication Act 1893 does not contain a provision on antecedent publication. But that does not mean that administrative agents would not embark on antecedent publication because many enabling statutes require such publication. Even where there is no such requirement, it is in the interest of the agency concerned to follow the agencies’ habitual practice of antecedentally publishing their proposals for the information of stakeholders. Otherwise, the agency’s proposed rules risk unpopularity.
In the US, S. 4 of the Administrative Procedure Act 1946 (which has been re- designated as Freedom of Information Act 1966) provides as follows:
Notice
General notice of proposed rule making shall be published in the Federal register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) and shall include: a statement of time, place and nature of the rule-making proceedings; reference to the authority under which the rule is proposed; and either the terms or substance of the proposed rules or a description of the subjects and issues involved.
Procedure
After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making, through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose ….
Where the enabling statute specifically provides the consequence of the failure of the agency to comply with the requirement of antecedent publication, then that consequence shall be invoked in the event of such agency failure. Otherwise, it lies within the powers of the court to, depending on its assessment of the situation, annul the proposal or to give a less coercive order.
SELF ASSESSMENT EXERCISE 1
- Explain antecedent publication and its applicability in Nigeria.
Subsequent Publication
The other type of publication is that of subsequent publicity, that is, after the law is made. See, for example, S. 22(3) of the Interpretation (Miscellaneous Provisions) Act
1964 which makes provisions for such publication in a Federal or State Gazette in relation to rules of court. But note that this provision does not apply to administrative rules and regulations generally. Note, however, an equivalent section is missing from the revised Interpretation Act 2004. Consequently, there is no general provision imposing the duty of subsequent publication on agencies save to the extent that particular enabling Acts so provide. See, for example, S. 10(2) of the Nigerian Citizenship Act 1961 which requires such subsequent publicity. You should recall that the government has perfected some practice of periodically publishing existing laws through, for example, the Laws of the Federation of Nigeria (LFN), or publication in Federal or State Gazette.
You should note that publication to the general public (which includes the stakeholders) can also be accomplished through the print and electronic media. In ministries, departmental offices and local government councils, publication can be consummated by pasting notices on notice boards provided within their premises. Even local governments can go to the extent of pasting these notices in strategic locations in the streets within their jurisdiction. And in the extreme of cases, where the matter involved is really a local matter, the local government councils can disseminate the information through traditional rulers and chiefs who in turn engage the services of town criers to ultimately announce the information to the people.
- Effect of Failure to subsequently publish
Where the enabling Act mandates the agency to subsequently publish, it will often specify the effect of non-compliance. It may, for example, declare the proposed decision to be invalid, ineffective, null or void. For example. S. 7(2) of the Nigerian Research Institute Act 1964 provides that the effect is to render the regulation a nullity. In the UK and the US, non- publication means no liability for contravention, being an exception to the maxim: ignorantiam legis neminem excusat.
In Nigeria, where the statute does not prescribe the effect of non-compliance, the court has classified the effects into mandatory or directory, depending on the overall effect, for example, where great public inconvenience would result from holding them mandatory or where it relates to the performance of the statutory duty, the court will hold that non- compliance is directory.
Where, however, rights would be affected it will be mandatory. See the case of:
Onuorah v. Livinus Mbadugha & Another(1984)5SC 79
In the UK, S. 3(2) of the Statutory Instrument Act 1946 provides that in proceedings against a person who has breached the rules, regulations or instruments, it is a defence for him to assert that the instruments had not been issued or that reasonable steps were not taken to bring the rules or regulations to public notice. Similarly, S. 3(a) of the US Freedom of Information Act 1966, no person is in any manner to resort to any organization or procedure that has not been subsequently published. This constitutes an exception to the general legal rule of or ignorantiam juris non excusat (ignorance of the law is no excuse).
It tells much of the inefficiency of the Nigerian legal system that, despite the sanctity of the principle – of the ignorance of the law not being an excuse – therein, no concerted effort is made to dutifully publish every rule, regulation, bye-law, policy, decision, or intended action by an agency knowing full well that these are the parastatals of government that have several contacts with the people at the grassroots daily. It is worse to find that most of these people get to know of the existence of such rules, regulations, bye-laws, policies, or decisions at the point of enforcement, that is, when they have been arrested or when they are being prosecuted (by some mobile courts, etc) to the detriment of their personal liberty or property. In this connection, let us end this Unit by recalling the apt statement of Karibi-Whyte, JSC in Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 at 26 as follows:
“The purpose of publication is to acquaint the public with the law and to provide an opportunity for criticism. These are the best and surest safeguards against authoritarianism and abuse of power. They constitute an effective insurance against clandestine exercise of arbitrary power.”
SELF ASSESSMENT EXERCISE 2
- In the Nigerian legal system, subsequent publication is rare. How true is this statement?
CONCLUSION
Publication is a means of notifying the ignorant of a policy, measure, decision, etc. Its importance is the more noticeable when the persons to be informed are those whose freedom or property may be at risk upon violation of such policy, measure, decision.
In some advanced jurisdictions such as the UK and the US, publication of rules and regulations is an institutionalized tradition. In Nigeria, however, this is not the case. The effect of this is that most persons get to know of the existence of one administrative rule or regulation at the point of their apprehension for violating the said rule or regulation.
There is, therefore, the need to establish a mechanism where Nigerians would be entitled to be informed of the making of delegated legislation.
SUMMARY
In this Unit, we considered antecedent and subsequent publication of delegated legislation.
TUTOR-MARKED ASSIGNMENT
Write a proposal to the National Assembly on the need to enact an Act mandating every administrative agency to embark upon antecedent and subsequent publication.
REFERENCES/ FURTHER READINGS
Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).