‘Discuss the various methods of controlling controlling subsidiary legislation. In your opinion, are these methods sufficient to prevent the abuse of legislative powers?’
Introduction Subsidiary legislation is an indispensable tool of modern government but it has raised widespread concern. This is because subsidiary legislation is essentially legislation made by the executive, and executive law-making is inconsistence with the separation of powers doct doctrin rine. e. This This is defi define ned d in the the Inte Interp rpret retati ation on Act, ct,!" !"# # as $ any proc proclam lamati ation on,, rule, rule, regula regulatio tion, n, order, order, notific notificatio ation, n, by-law by-law or other other instrum instrument ent made made under under any ordina ordinance nce,, %nactm %nactment ent or other other lawful lawful author authority ity and having having legisla legislativ tivee effect& effect& 'oreover, such law making making by administrators administrators who are neither neither elected nor directly accountable to the legislature or the public is vulnerable to abuse, for example, lack of prior discussion and consultation and excess of the power delegated or sub-delegation to the other persons or bodies where the legislature has not clearly identified the recipient of the delegated power. (ecognition of the need to protect the public from such abuse necessitates controls over subsidiary legislation.
Judicial Review )udicial control or review is the most important of the controls in 'alaysia, the foundations for such review lie in ss *+ and # d of the Interpretation Acts !/ and !"# !"# which, which, in effect effect,, lay down the princi principle ple that any subsid subsidiary iary legislatio legislation n which which is inconsistent with an Act of 0arliament or State %nactment including the enabling statute shall be void to the extent of the inconsistency. The courts have control over subsidiary legislation through 1udicial review. 2hen in action, a defence is raised by the accused defendant or a challenge is made by an aggrieved person concerning the validity of the subsidiary legislation, the courts may declared the exercise of the delega delegated ted power power and the subsidi subsidiary ary legisl legislatio ation n void void under under the ultra vires vires doctrine on either one of the two grounds which is substantive or procedural.
1 Wu Min Aun, an introduction to the Malaysian Legal System, pp 64
Several local cases may be taken to illustrate the principle of Ultra vires. In 3ow 3eng 4uat v 0.0.*, the appellant was convicted by the magistrate on the charge of failing to comply with a notice directing him to enlarge the open area of certain of his houses. This notice was issued by the Sanitary 5oard as conferred by the Sanitary 5oard %nactment, !6#. It was held that the bylaw was ultra vires and therefore, void. In 7ha8ali v. 0.0.+, the appellant was charged with breach of a condition attached to his license which is prohibited his taxi from being driven by a person other than a 'alay. This condition was imposed as a result of a general directive issued by the 'inister of Transport under powers conferred by certain provisions of the (oad Traffic 9rdinace, !:. The ;ourt allowed the appeal on the ground that the board was acting ultra vires by imposing such a condition . 4.T. 9<7 ). as he then was said as follows= It is clear law that no rule, regulation or by-law made under statutory powers must go beyond or be repugnant to the enactment under which they are made. It is also trite law that the validity of delegated legislation as a general rule can be canvassed by the ;ourts, and that in the absence of express statutory provision to the contrary, the ;ourts may in>uire wether the rule making power has been exercised in accordance with the provisions of the statute by which it is created./
In substantive ultra vires, the recipient of the delegated power has made law beyond the limits of the power conferred either in terms of the sub1ect matter, purposes, or circumstances authori8ed by the enabling statute, ?or example, in Major Phang Yat Foo v Brigadier General Dato’ Yahya Bin Yusof & Anor 5, the respondent the convening authority of a court martial, purporting to act under r "+ + of the Armed forces ;ourt 'artial (ules !#", disapproved of, and dissolved, the decision of the court martial and made an order for fresh court martial to be convened and for the applicant to be retried on the same charges. In an application by the applicant for an order of certiorari to >uash the respondent@s decisions and an order prohibiting the respondent from thus proceeding, the 4igh ;ourt ruled 2 [1917 !"M"S"L"#" 162, $"A" % [1964 M"L"&" 1'6 4 ()id", p" 1'*+ see also Krishnasamy & Ors. V Madden 1947- M"L"& 1*2+ Chua Bak Heng v. R. 19'7- M"L"&" 247+ Government of the Federation of Malaya v. Franis Koran 1961- M"L"&" 227" ' !!*B * '3) *:*
that r "++ was void to the extent that it confers 1urisdiction on the convening authority to approve or disapprove a decision of a court martial contrary to s ! of the Armed ?orces Act !#* Act##. That section authori8es the 'inister of Cefence to make only rules of procedure relating to investigation and trial of offences by court martial In procedural ultra vires, the recipient of the delegated power has failed to follow a mandatory procedure laid down in the enabling statute, for example, to give notice to affected parties to allow them to make ob1ections before granting planning permission. In Datin Azizah te Adul Ghani v De!an Bandaraya "uala #u$ur % concerning a developing order made under s ** of the ?ederal Territory 0lanning Act !* Act *"#, granting planning permission for the building of two blocks of apartments on a piece of land in an exclusive residential are, the Supreme ;ourt >uashed the order as on the facts, no notice of the application for planning permission as re>uired under r : of the 0lanning Cevelopment (ules of !#6 which continues in force as if made under the !* Act had been sent to the appellant. A notice had been sent to her but, due to the negligence of the officer concerned, to the wrong address. 2e have seen that subsidiary legislation made in contravention of either a parent Act or the ;onstitution is void, an exception to this rule is the proclamation of emergency under Article :6 of the ?ederal ;onstitution #. It was stated by the ?ederal ;ourt that subsidiary legislation may still be valid even if it is inconsistent with the ;onstitution. This can be seen in the case of ng "eo'( )heng v* P*P*, In the case of %ng Deock ;heng v. 0ublic 0rosecutor, the Eang Ci-0ertuan Agong proclaimed under Article :6 the existence of a grave emergency threatening the security of the ?ederation. 0arliament then passed the %mergency %ssential 0owers Act !"/, empowering the Eang Ci-0ertuan Agong to make regulations to secure public safety. 4is 'a1esty made the %mergency ;riminal Trials (egulation !"/F regulation / G : provide that where a person is charged with any offence and the 0ublic 0rosecutor certifies in writing that the case is a proper one for trial under these regulations, the case should not be tried by a 1ury or by a )udge with the aid of 6 !!*B * '3) +!+ 7 Wu Min Aun, an introduction to the Malaysian Legal System, pp 71 * [1996 ( M"L"&" 1*
assessors as re>uired by the ;riminal ;ode, but shall be tried by a )udge without the aid of assessors and that the case shall be tried without the formality of a preliminary en>uiry in the magistrate@s court. %ng Deock ;heng was tried in accordance with the procedure prescribed by the regulations on a charge under the ISA !"6, and he was sentenced to death. 9n appeal it was argued that the authority under which these regulations were made could not authori8e regulations inconsistent with the constitution and these regulations did infringe Article which declares that all persons are e>ual before the law and entitled the protection of the law. The ?ederal ;ourt re1ected the argument and held that the true effect of Article :6 was that sub1ect to certain exceptions set out therein, 0arliament had, during an emergency, power to legislate on any sub1ect and to any effect, even if inconsistencies with Article of the constitution including the provisions for fundamental liberties were involved and that necessarily included authority to delegate part of that power to legislate to some other authority, and that therefore the %mergency %ssential 0owers Act !"/, was not beyond the power of 0arliament to enact, and that he %mergency ;riminal Trials (egulations !"/ made under the Act were valid.
egislative !ontrol The parent Act which authorises the making of subsidiary legislation is enacted by the legislature.! There are several means by which the legislature exercises control over subsidiary legislation. The legislature which grants the delegated power by an enabling statute may repeal the statute or revoke or vary the delegated powers. An enabling statute may re>uire legislation made under it to be laid before the legislature, either for the legislature@s information or confirmation. In 'alaysia, @laying provisions@ are not very common. %xamples of a simple laying formula are to be found in s ++ of the Trade 'arks Act !#" Act #:, which re>uires subsidiary legisla tion made thereunder to be laid before the both Cewan, and s : /, Trade Hnions Act !:! Act *"* (evised !, which re>uires the subsidiary legislation to be laid before the Cewan (akyat only. The laying procedure for confirmation by the legislature may be by way of a negative or affirmative resolution. In the negative resolution procedure, the subsidiary legislation is effective unless the legislature passes a resolution annulling it. An example is contained in s !+ of the ;ontrol of Imported 0ublications Act !: Act
legislation ceases to have effect unless, within the prescribed period, the legislature passes a resolution affirming it. Section : of the Sales Tax Act !#* Act "/ bears an example. Another possible method of control practised in %ngland is to establish Scrutiny ;ommittees which keep under review all delegated legislation report their findings to 0arliament. So far, the 'alaysian 0arliament has not developed any such mechanism, this leaving a gap in the legislative control of subsidiary legislation. Two other controls are consultation and publication.
!onsultation and "ublication In %ngland, prior consultation with organised interest groups and advisory is sometime done before regulations are made. This practice is well established. A minister is unlikely to make any regulations without giving the people who will be affected an opportunity of discussing the proposal. Some enabling Acts make it mandatory so that failure to consult the parties named may render the delegated legislation void as being procedurally ultra vires.6 In 'alaysia, there is no general statutory provision making prior consultation a formal re>uirement for the making of subsidiary legislation. 0articular enabling Acts may make prior consultation mandatory, but these are few in number. An example is s +" of the ?inancial 0rocedure Act !:# Act " (evised !#*, which authori8es by the Eang di0ertuan Agung to make regulations after consulting the ;ommodities Trading ;ommission. Though prior consultation as a legal re>uirement has not yet developed, consultation as a matter of administrative practice does take place on a discretionary and ad hoc basis. 3ikewise, there is no general statutory provision re>uiring the publication of subsidiary legislation in 'alaysia. 0articular enabling statutes may re>uire publication though this is not the norm. 2here an enabling statue makes publication mandatory, noncompliance renders the subsidiary legislation void. At the federal level, subsidiary legislation which is re>uired to be published is published in 'alay and %nglish in two parts of the 7a8etteF +a,ahan Perundangan -A’ 3egislative Supplement A@ which contains all proclamations, rules, regulations, orders and by-lawsF and +a,ahan Perundangan -B’ 3egislative Supplement 5@ which contains all other subsidiary legislation. 1. Wu Min Aun, (ntroduction to the Malaysia Legal System pp"66 11 )ain, Administrative 3aw of 'alaysia and Singapore, pp "/-:
The subsidiary legislation is serially numbered with either the prefix 0H A or 0H 5, depending on the part of the 7a8ette it is published in *. Hnder s ! of the Interpretation Acts !/ and !"#, subsidiary legislation commences on the date prescribed, or where no date is prescribed, the date immediately following the date of its publication in the 7a8ette Supplement. Hnder s !*, the subsidiary legislation shall come into operation immediately on the expiration of the day itsB proceeding commencement@. The implications arising from these provisions appear to be, where no date is prescribed for the commencement of the subsidiary legislation, publication in the Gazette .u$$le,ent is essential for its effectuation, where a date is prescribed for its commencement, publication is not a condition for its commencement as under s !, the date prescribed shall be the date of its commencement and the authority making subsidiary legislation may bring it into immediate effect as soon as it is made without any publication. The last implication, if correct leads to harsh conse>uences. 'itigating it is the proviso to s *6, which states that no person is to be liable to any penalty in respect of any act done before the date on which the subsidiary legislation was published, while this proviso protects a person from criminal liability, it does not protect him from civil liability, for violation of an unpublished regulation +.
!onclusion In my opinion, these methods are sufficient in preventing the abuse of legislative powers. Taking the words from 4ashim Eeop Sani ) as he then was in S Dulasingam J ;ommisioner of 3and, ?ederal Territory./ $There is nothing to prevent 0arliament from delegating power to legislate on minor and administrative matters and for this very reason, we have in addition to statutes, innumerable subordinate or subsidiary legislation having the force of law. 2ithout these subordinate or subsidiary legislation, the 7overnment machinery will not be able to function effectively&.
12 0H stands for Pe,eritahuan Undangan. 5efore !"" the abbreviation 3<, which stands for legislative
1% &ain, Administrati/e La0 o Malaysia and Singapore, pp 1'4'" 14 [19*2 1 ML& 2.4, 2.9
'oreover, such law making are in the hands of the administrators who are elected and directly accountable to the legislature. It is not in the decisions of the public where it is vulnerable to abuse, for example, there@s no need for prior discussion and consultation and excess of the power delegated or sub-delegation to the other persons or bodies where the legislature has not clearly identified the recipient of the delegated power as there is no general statutory provision making prior consultation a formal re>uirement for the making of subsidiary legislation. It is also important to mention that subsidiary legislation saves time, as legislature only deals with broad principles of the law and details are left to the relevant authority. It is also flexible, where subsidiary legislation can be brought in immediately to control a situation without the need to undergo the parliamentary procedure.
