BY IBTISAM ILYANA ILIAS

FACULTY OF LAW UiTM SHAH ALAM

DEFINITION
Law made through powers delegated by the legislature
to a body or person via an enabling or parent statute.
S.3 of Interpretation Acts 1948 and 1967 defines such
legislation as any proclamation, rule, regulation, order,
notification, by-law or other instrument made under
any Act, Ordinance or other lawful authority and
having legislative effect.

PARENT ACT

SPECIFIC PROVISION
UNDER PARENT ACT
(enabling provision)

SUBSIDIARY
LEGISLATION

ROAD TRANSPORT ACT

1987

Section 66 of the Road

Transport Act 1987

MOTOR VEHICLES
(CONTRUCTION AND
USE)
(AMENDMENT) RULES
2010

HIGHLY
TECHNICAL
LEGISLATIVE
PROCESS ARE
CUMBERSOME

INSUFFICIENT
TIME

WHY
SUBSIDIARY
LEGISLATION

CONTROLS OVER SL:WHY ?

Made by executive inconsistent with the doctrine
of separation of powers
2. Vulnerable to abuse : Not elected by people
Lack of prior discussion
Excess of power
Sub delegation to other persons or bodies where
the legislature has not clearly identified the
recipient of the delegation power.
1.

TYPES OF CONTROL
JUDICIAL

CONSULTATION

LEGISLATIVE

PUBLICATION

JUDICIAL CONTROL
The most important
S.23(1) AND S 87(d) of the Interpretation Act 1948 and
1967 which lays down the principle that any SL which
is inconsistent with an Act or Parliament or State
Enactment shall be void to the extent of its
inconsistency.

JUDICIAL CONTROL
When there is a challenge by the aggrieved person on
the validity of SL, the courts may declare that the SL
void under the ultra vires doctrine on the following
grounds:1.
2.

Substantive ultra vires

Procedural ultra vires

JUDICIAL CONTROL : SUBSTANTIVE

ULTRA VIRES
The recipient of the delegated power has made law
beyond the limit of the power conferred either in
terms of the
1.
2.
3.

Subject-matter
Purpose
Circumstances authorized by the enabling statute

Major Phang Yat Foo v Brigadier General Dato

Yahya bin Yusof & Anor [1990]

JUDICIAL CONTROL : SUBSTANTIVE

ULTRA VIRES
The respondent, the convening authority of a court
martial purporting to act under r63(3) of the Armed
Forces (Court Martial)Rules 1976 disapproved of and
dissolved the decision of the court martial and made
fresh order for a fresh court martial to be convened
and for the applicant to be retried for the same
charges.
High Court ruled that r63(3) was void.

JUDICIAL CONTROL : SUBSTANTIVE

ULTRA VIRES
Parent Act

Subsidiary legislation

S.119 of Armed Forces Act 1972

r63(3) of the Armed Forces (Court

Martial)Rules 1976

Authorizes the Minister of Defence

to make rules of procedure relating to
investigation and trial of offences by
court martial.

Authorizes convening authority to

approve or disapprove a decision of a
court martial

JUDICIAL CONTROL : PRCEDURAL

ULTRA VIRES
The recipient of the delegated power has failed to
follow a mandatory procedure laid down in the
enabling statute.
Datin Azizah bt Abdul Ghani v Dewan Bandaraya
Kuala Lumpur [1992]

JUDICIAL CONTROL : PROCEDURAL

ULTRA VIRES
In this case the Datuk Bandar, Kuala Lumpur, had made a

development order granting planning permission on Lot

4951, allowing an increase of density from 10 persons to 44
persons an acre to enable the building of two blocks of
apartments, one of two storey and the other three storey.
On the facts no notice as required under the Planning
(Development) Rules 1970 were given to the appellants.
Supreme Court quashed the order as on the facts, no
notice of the application for planning permission as
required under r5 of the Planning(Development) Rules
1970 had been sent to the appellant.

JUDICIAL CONTROL : PROCEDURAL

ULTRA VIRES
Parent Act

Subsidiary legislation

S22 of the Federal Territory (Planning) R5 Planning (Development) Rules

Act 1982
1970

LEGISLATIVE CONTROL
AFTER THE SL IS MADE
The legislature which grants the delegated powers by
an enabling statute may repeal the statute or revoke or
vary the delegated powers.
BEFORE THE SL IS MADE
Laying provisions i.e. an enabling statute may require
legislation made under it to be laid before the
legislature for information or confirmation.

LEGISLATIVE CONTROL
Trade Marks Act 1976

Trade Unions Act 1959

s.83(3) requires the SL

made there under to be
laid before both Dewan

S58(4) requires the SL to be

laid before the Dewan
Rakyat only

CONSULTATION
No general statutory provision requiring consultation for

SL in Malaysia.
Very few enabling acts make prior consultation mandatory.
Eg:Financial Procedure
Act 1957

Authorizes YDPA to make regulations after

consulting the Commodities Trading
Commission

Though not legally imposed, consultation as a matter of

administrative practice does take place on a discretionary

and ad hoc basis.

PUBLICATION
No general statutory provision requiring publication
for SL in Malaysia.
If enabling statute make it mandatory for publication,
non-compliance renders the SL void.
At federal level, SL is required to be published in
Malay and English in 2 parts of the Gazette :1.
2.

Tambahan Perundangan A = proclamation,

rules, regulations, orders, by-laws
Tambahan Perundangan B = other SL