LL.B Notes

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

  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

  1. 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).

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