Case Number

HCJ 265/68

Date Decided

1-30-1969

Decision Type

Original

Document Type

Full Opinion

Abstract

The Engineers and Architects Law, 1958, established a procedure for the registration of engineers and architects. It also provided that the Minister of Labour may frame regulations, after consulting with the Council of Engineering and Architecture, reserving certain activities to registered engineers and architects, which would have the effect of forbidding others with less training and experience from engaging in such activities. The Minister published such regulations, after due consultation, but postponed the date of their implementation several times. The Petitioners complain that such delay of the implementation of the regulations is unlawful.

The court issued an order nisi, directing the Minister to show cause why the court should not order him to confer upon each of the individual Petitioners the licenses respectively requested by them to practice as a registered engineer or architect, and further to show cause why it should not declare that the regulations took effect on a certain date, or in the alternative, why it should not order the Minister to annul the amendment to the regulations promulgated by him by which the effective date of the regulations was postponed, or in the alternative, why it should not order the Minister to implement the regulations immediately. The Minister appeared in opposition to the order nisi. .

The court ordered that the rule nisi be made absolute, holding:

1. The word "may" when used by the legislature, prima facie vests a power or discretion, yet sometimes, coupled with the power, there is a duty to act in accordance with the power.

2. Registration under this Law is merely preliminary to the receipt of a license to practice engineering or architecture, and the legislature has directed that a license not be issued on the basis of registration alone but also of practical experience. The licensing of engineers and architects makes no sense unless accompanied by regulations that specify the professional work which may be done only by those so licensed. The Minister is obliged to complete the work of the primary legislation by framing regulations which reserve certain operations to engineers and architects.

3. Pursuant to section 12 of the Law, the making of regulations for reserving operations is conditioned upon prior consultation by the Minister with the Council of Engineering and Architecture. Subordinate legislation promulgated without such consultation, when required by law, is void. Section 16 of the Interpretation Ordinance provides that a power granted by law may be exercised repeatedly, upon the same conditions. In this case, the last of the series of amendments to the regulations issued by the Minister, postponing their date of implementation, was promulgated without consultation with the Council. This amendment, which purports to postpone the effective date of their regulations, is therefore void, and the regulations took effect.

4. When delay in the coming into force of an arrangement prescribed by the legislature becomes an instrument for preventing that arrangement from being implemented, the Minister is bound to act pursuant to the Law and to take the necessary steps to effect its implementation.

Keywords

Constitutional Law -- Legislation, Labor

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