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Issue
i. ii. iii. iii. iv. iv.
Whet Whethe herr Datu Datuk k Lokl Loklak ak is is proc proced edura urall lly y ultr ultraa vire vires? s? Wheth hether er Rule ule 3 is is rea reassonab onablle? Whet Whethe herr Rul Rulee 18 18 is is an an ous ouste terr cla claus use? e? Whethe Whetherr the the Subsid Subsidiar iary y Legis Legislat lation ion has retros retrospect pective ive effect effects? s?
Principle
he principle that can be used to solve this proble! is the doctrine of ultra vires. his doctrine is one "ay ho" courts revie" decisions !ade by public bodies. #t can be used to deter!ine "hether the Subsidiary Legislation !ade by public bodies is valid or not. $ltra vires !eans beyond the po"er and it can be classified into three "hich are procedural% substantive and e&tended ultra vires. 'urther!ore% procedure in !aking subsidiary legislative can be classified as !andat !andatory ory and direct directory ory.. (andato (andatory ry !eans !eans SL !ust !ust need consult consultati ation on "ith "ith specif specific ic body% body% opport opportunit unity y for affect affected ed person personss to file file for ob)ect ob)ection ionss and pre*pub pre*public licati ation on of draft draft rules. rules. Direct Directory ory !eans !eans public public bodies bodies need need not follo" follo" the proced procedure ure++ non*co non*co!pl !plian iance ce "ith "ith the procedure "ill not !ake the SL invalid. ,esides that% substantive can be refers as scope% e&tent and range of po"er conferred by the statue to !ake SL. #t can be classified as parent act ultra vires the federal constitution% SL ultra vires the federal constitution and SL ultra vires the parent act. -&tend ultra vires also can be classified as retrospective effect% financial levy% ouster clauses and and unre unreas asona onabl blen enes ess. s. Retr Retros ospe pect ctiv ivee effe effect ctss "here "here SL has has a back backdat dated ed effe effect ct like like the the enforce!ent of the SL starts on a date "ay before it is passed. 'inancial levy cannot be i!posed through ad!inistrative regulation e&cept "hen the arent /ct specifically confers po"er for the purpose. he ouster clause !eans a public body or ad!inistrative !ust !ake sure that the SL passed !ust not e&clude the courts fro! !aking any )udicial revie". $nreasonableness is situation "here one can challenge the validity of SL on the ground.
Application
'irst issue #n !aking an SL% certain procedures need to be follo"ed. #f a procedure is !andatory% it !ust be foll follo" o"ed. ed. 0ther" 0ther"is isee the the SL is void. void. #n Howard Howard v Bodingt Bodington on% the )udge stressed on the i!portance of procedures in the !aking of SL. #t !ust be ascertained "hether the procedure is Agricultural, Horticultural Horticultural etc v Aylesbury ylesbury Mushrooms Mushrooms Ltd % the !andatory !andatory or directory directory.. #n Agricultural, court held that failure to hold a discussion "ith certain bodies before !aking an order "as not according to the appropriate procedure. ence% the decision !ade by the ad!inistrative body "as void. #n 2iput Local /uthority case% the procedure is !andatory because it is !entioned in the Section of the rading er!it /2 4516 that it is obligatory. Datuk Loklak not passed the regulations to the (inistry of trade before it can be enforced. herefore% the regulation passed by Datuk Loklak is void.
Second issue #n !aking an SL% certain rule !ust be reasonable. #f the SL is unreasonableness% anyone can challenge the validity of the SL on the ground. /s stated by 2hief 7udge in case of Kruse v Johnson as a guideline% the )udge !entioned that the court should )ealously "atch the e&ercise of these po"ers and guard against their unnecessary or unreasonable e&ercise to the public disadvantage such as bye*la"s "ere found to be !anifestly un)ust% disclosed bad faith and involved gratuitous interference. #n Arlidge v Islington orporation the court held that it "as unreasonable and invalid because it breach the contractual obligations "ith their tenants. #n (urni case% the general rule is that Rule 3 in rading Regulations 4516% traders are reuired to use -nglish as a !ediu! of co!!unication in their trading activities. he rule is unreasonable because the rading er!it /ct 4516 not !entioned that the traders !ust use -nglish as !ediu! of co!!unication in their trading activities. herefore% the regulation passed by Datuk Loklak is void.
hird issue #n !aking SL% a public body or ad!inistrator !ust !ake sure that the SL passed !ust not e&clude courts fro! !aking any )udicial revie". 'or instance it !ust not contain any provision "hich does not allo" any interference fro! the court% e&cept if the arent /ct under "hich the SL is !ade has e&pressly allo"ed the e&clusion of the co urts. #n Petaling !in Bhd v Lee Kian han % the subordinate court reiterated the "ell*established principle that )udicial revie" is available in respect of )urisdictional error despite the presence of an ouster clause. #n other "ords% the ouster clause does not prevent the court fro! revie"ing the decisions "here there is an error of )urisdiction. #n (urni case% the Rule 18 in rading Regulations 4516 is ouster clause. #t because the Rule 18 says% the decisions of the resident under the regulation is final and conclusive. #t !ean any decision !ade by the resident cannot prefer to the court and it also does not allo"ed any interference fro! the court. (urni can bring this case to the court because the rading er!it /ct 4516 does not says that an y SL passed can have an e&clusion of the courts.
'ourth issue #n !aking SL% it !ust not backdated effect like the enforce!ent of the SL starts on a date "ay before it is passed. /s a general rule% all SL9s that have retrospective effect are not valid. o"ever% "e !ust first deter!ine "hether this retrospective effect is valid. Section 45 of the #nterpretation /ct 1:68 and 1:;< stated that it o!ly valid "hen there is an e&press provision or by necessary i!plication in the arent /ct to do so and the effect of the regulation cannot be earlier than date of co!!ence!ent of the arent /ct. #n Attorney "eneral v old #torage $#ingapore% Pte Ltd % the Singapore 'inance (inister passed the Singapore ort Local /uthority =roperty a&> 0rder 1:<< on 1:.53.1:<<. he order "as !ade under the ort of Singapore /uthority /ct 1:;6. he order "as assu!ed to be
enforceable since 48.15.1:<;. he court that the order !ade under Section 48 =4> of ort Singapore /uthority /ct gave the (inister po"er to !ake orders having retrospective effect. #n (urni case% her per!it "as valid fro! 7anuary 4513 until Dece!ber 451. rading Regulations 4516 is not valid for revoke their per!it because Datuk Loklak passed the rule in 4516 not 4513. he rading Regulations 4516 is invalid as there is no provision on that rading er!it /ct to have retrospective effect even though it does not beyond the date of co!!ence!ent rading er!it /ct 4516.
onclusion rading Regulations !ade by the 2iput Local /uthority is ultra vires and invalid. #t because the SL "as procedurally ultra vires% ouster clause% unreasonableness and has retrospective effects. (urni can challenge the validity of the SL and bring this case to the court.