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Subsidiary legislation (hereafter referred to as SL) may be defined s.

3 of
Interpretation Acts 1948 & 1967 as any proclamation, rule, regulation, order,
notification, bye-law, or other instrument made under any Act, Enactment,
Ordinance or other lawful authority and having legislative effect.[1] The
maker of SL had to be the person specifically mentioned in the Parent Act (hereafter
referred to as PA).[2] SL had become desirable and necessary as for its benefits
including the fact that it lessen the duty imposed to the Parliament in making nonessential law.
Well, why is it so important to study SL? The technique of SL is a
characteristic of modern administration process which is necessary and it
is permitted by the constitution of every democratic government.
Although it cannot be denied that this technique of SL is inconsistent with
the doctrine of separation of power, as it results in part of law-making
power of the legislature being handed over to the executive. This
tenchinique of SL is indeed essential in our modern society which
discharges multifarious functions. It has come to manage a large part of
the socio-economic life of the people and this circumstance has created
the need for more and more legislation. The demand for law is practically
insatiable that the legislature is not able to cope with it. Besides, this
tenchinique also has its advantages such as delegating the making of law
to the experts with experiences, flieble, speedy, and is capable of facign
an emergency situation.
In spite of its usefulness and inevitablitlity,
This SLs powers is conferred by the administrative authorities, and
sometime its infringe the rights and interests of an individual. Besides,
the fact that SL can be passed quickly without informing the party
affected, make it necessary for the controls and safeguard to be imposed
upon it. This controls ought to be introduced in order for the benefits of
the SL to be fully utilized and its disadvantages to be minimized.
There are several types of controls mechanism that are available in controlling the
SL development, for example judicial, legislative, procedural controls (like
consultation of affected interests) and others. Two of them will be the focus of the
discussion; the judicial control, legislative control together with their scope of
effectiveness. The discussion will be based on the cases decided, legal scholars
opinion and comparison made between Malaysia and other country.
JUDICIAL CONTROL
Judicial control is one of the most important controls mechanism of the SL. The
following paragraph will focus on the concept under judicial control together with

the effectiveness of this control as per in Malaysia. Here, the following grounds may
be used by Courts to control SL via judicial control.
JUDICIAL CONTROL
Judicial control is one of the most important controls mechanism of the SL. The
following grounds may be used by Courts to control SL via judicial control.
FIRST GROUND : IMPLIED LIMITATIONS ON THE GENERAL POWER TO MAKE SL.
The first implied restriction under this ground is, the court shall not be excluded
from judging disputes between an individual and individual or between an individual
and administration unless there is an express provision in the related statute clearly
indicated so. In the case of Chester v Bateson[3], the court had declared that a
regulation was invalid as it prohibited the property owner, during the wartime zone
to get access to court, without the consent from the Minister. Here, the court said
that although their property might be forgo but their access to the court cant ever
be denied unless for a legitimate reason. In the case of R & W Paul v The Wheat
Commission, where it was clearly stated under the Wheat Act that for any dispute
with regards to point of law, a right to obtain ruling from court is available for the
affected party. But in this case, bye-law had been enacted by the Wheat
Commission saying that all dispute shall be ruled by the determination of
arbitration. The court had held that the Wheat Commission had no power to do so
without express power given by the PA. As in the case of Commissioners of Custom
& Excise v Cure & Deeley involving taxes, the court had ruled that the act of SL in
that case to exclude the power of court to revise the decision made by the
Commissioner was to be declared void as it ultra vires the PA and also violates the
individual right to make an appeal.
The second implied limitation is SL cant impose any financial levy unless it is
provided so by the Parent Act. In AG v Wilts United Dairies, a food controller had
issued an order that no one shall deal in milk business without license, and in this
case the Appellants were granted the license with condition that they had to pay
the controller some financial levy. Here, the court ruled the levy was invalid as it
was not authorized by the PA. Here it must be noted that for any SL bring upon the
financial levy matters, those SL must really adhere what had been stated in the PA
or else it's going to be invalid. In Section 44 of the Interpretation Act, an expanded
dimension of power is given to make SL prescribing fees. Thus, its a PA duty to
confer the power to levy fees before this provision comes into operation. So here,
there is a clear efficacy to control SL in term of financial levy, as its validity will
depend on the authorization from the PA. The concept of obtaining authorization
from the Parent Act will directly give power to judiciary to execute its function in
controlling the evolvement of SL in term of financial levy.
The third implied restriction is no regulations should have the restrospective effect
unless the PA expressly provided so. Article 7(1) of the FC clearly stated the

prohibition for any enactment of ex post facto laws of criminal nature. This, in other
hand indicated that there is no prohibition to enact such law for a civil nature. But
this concept applied to Parliament. Although Section 20 of Interpretation Act give a
broad power for SL to work in retrospective manner, but in the case of Wong Pot
Heng v Kerajaan Malaysia, the power to make SL with retrospective effect must be
given expressly by the PA in clear and unambiguous words. Here, the effectiveness
of this control is again secured by the concept of obtaining the authorization from
the PA. Although the vagueness of Section 20 give wide power for SL to work
retrospectively, but the interpretation given by the Court is the one which will
merged together with this provision. Its true that SL can work retrospectively, but at
the same time this is subjected to the clear authorization from the PA, which make
the effectiveness to control SL via this mechanism to be very convenient.
The fourth implied restriction is SL shall not be unreasonable. The test of
unreasonableness is propounded in the case of Kruse v Johnson which is :
If, for instance the SL were found to be unequal in their operation as between
diferrent classes; if there were manifestly unjust, if they disclosed bad faith; if there
involved such oppressive operation towards the people that these people cant
found any justification in the minds of reasonable men, the court held that
Parliament never intended to do such rules, thus making them to be unreasonable
and ultra vires.
In Commissioners of Custom & Excise v Cure & Deeley, the court had ruled; the
reasonableness of the regulations will only be determined once the vires is
established, as they were a bit reluctant to involve in the merits of SL as where
they were quite ill equipped in that sense. While in deciding the case of
McEldowney v Forde, a bye-law had been passed saying that anyone who involved
with any unlawful association (including Republican Club) shall be found guilty of an
offence. A person who was a member of the referred Club had been prosecuted for
the above offence although he had never join any unlawful activity of the club. The
court had held that the SL established was too vague and so arbitrary as to be
unreasonable.
The effectiveness of this mechanism is depending on our judiciary decision as the
concept of unreasonableness is not something that is written down in any statute.
As per the case of Kruse, the court will have to decide whether or not the SL is
reasonable upon the affected party. The reluctancy of court to uphold their function
just because they are quite in-equipped on the SLs merits must be set aside. This is
because to permit those enforcement of unreasonable SL will just equivalent to
cause grievous injuries towards the affected party.
SECOND GROUND : UNCONSTITUTIONALITY
The 1st ground to be looked at is whether the PA which delegated the SLs
power is constitutional or not. This ground is subjected to the judicial review as

per under Constitutional Law. The principle here is; if the PA is unconstitutional as
per Article 4 of Federal Constitution,it is said to be non est as making the SL made
under it to be void. In the case of Madhavan Nair v Government of Malaysia, its held
that the power conferred to the RMP in issuing licences of public speech, does not
contravene with the Article 10, as in Clause (2), (3) and (4), Parliament is given
power to restrict the freedom under this Article. This judgment had been critiqued
by many legal scholars as its considered as too simplisitic in its reasoning and had
failed to balance the right of individual and the public interest. However in Johnson
Tan Han Seng v Public Prosecutor, a new approach had been taken. In this case,
Emergency (Essential Powers) Ordinance 1969 was said have no effect as it had
been made during emergency, which was regarded had been lapsed and ceased to
be law. This indirect way making the SL made under it, Essential (Security Cases)
Regulations 1975 to be void. Federal Court had held that its courts power to decide
on the elimination of emergency proclamation under Article 150(1)which indirectly
give effect upon the validity of SL. Here, the effectiveness of this control will highly
depend on the discreetness of the judges in balancing the right of an individual and
the public interest as whole.
On this 2nd ground, the focus of discussion are on whether the SL is
unconstitutional together with the effect of that unconstitutionality. Here,this control
will be subjected to the judicial review under Constitutional Law. The principle
behind this ground is that if the SL contradicts with any constitutional provisions,
that SL can be strike down by courts. The application of this ground can be seen in
several cases. For example in the case of Osman v PP , the Privy Council had held
that the argument saying that certain emergency regulations made under
Emergency (Essential Power) Act 1964 had infringed the Article 8 of Federal
Constitution and shall be void to its inconsistency must be regarded as not a valid
argument. This decision was based on the Article 150(6) of Federal Constitution. The
same decision in the Osmans case was upheld in Prosecutor v Khong Teng Khen.
But later, in case of Teh Cheng Poh, the Privy Council had declared that the
Regulations 1975[28] that was issued by YDPA under Ordinance 1969, was ultra
vires the Constitution hence void as per Article 150(2), as here Parliament had sat
after the Proclamation, making YDPA to no longer possess power to make essential
legislations having the force of law. Upon the discussion above, the effectiveness of
this control mechanism can be said to exist as court may declared the concerned SL
to be void on the ground that its contradicting with any constitutions provision,
although at the same time this power is subjected to the certain special
circumstances.[30]
THIRD GROUND : ULTRA VIRES OF SL UPON THE PARENT ACT / OTHER
STATUTES
The 3rd ground is; when the SL go beyond the power conferred by the PA, this will
fall within the concept of ultra vires.The types of ultra vires that are Substantive
Ultra Vires or Procedural Ultra Vires

(i) SUBSTANTIVE ULTRA VIRES


The focus here will be on the scope, extent and the range of the power conferred
upon the SL. The principle underlying is that subordinate agencies have no power
to legislate on any matter more than the scope or power that had been
conferred towards them by the Parliament. Here, the court is said to have
power to declare such excessive of power on part of the subordinate agencies to be
invalid, thus making the law made by them also to be void.In the case of
McEldowney v Forde, judge had determined the validity of SL according to this three
aspects that were; (1) determination of the words used in the Parent Act that
describes the power conferred upon the SL, (2) determination of the meaning of the
SL and (3) determination on whether the SL complies with the description in the PA.
The main problem addressed by court in declaring the subsidiary legislation to be
void is when the statute related is said to have used a very broad and general
terms.Here, the efficacy of the court to declare such SL to be void is affected as its
observed that the broader the power conferred, the lesser the chance to
control for the court. This is where the Doctrine of Excessive Delegation as one of
the effective solution is needed. The important part of the judicial review for SL is
pointed out in Section 23(1) of the Interpretation Acts which stated that any SL shall
be void to the extent of the inconsistency if its inconsistent with the Act of
Parliament. In Section 87(d) Interpretation Act 1948 & 1967, its stated, no SL shall
be inconsistent with PA.

So here, we can see that this substantive ultra vires is one of the limb that provides
a good platform for the court to have efficacy in its function to control the SL. This
can be seen from the the case of Wong Pot Heng, where it was proven that court do
have power to invalidate the SL that is substantively ultra vires. But this
effectiveness is then indirectly subjected to the vagueness of the terms used in
Statute in conferring the power to make SL. The more vague the terms used, the
harder for the court to execute its function in this field. That is why Doctrine of
Excessive Delegation must be upheld as it will ensure that there will be no too
broad legislative powers conferred by the legislature. Besides, it must be noted that
the Federal Courts decision in the case of Eng Keock Cheng, only held that this
doctrine shall not be applied to the laws passed under emergency powers but not to
non-emergency laws.
(ii) PROCEDURAL ULTRA VIRES
The principle behind this ground is, SL shall be void if its enacted without following
the procedure which is mandatory in nature. However, it must be noted here that
whether the procedural requirement is mandatory or not itll depend to the courts.
In Banwarilal Agarwalla v State of Bihar, the court tend to treat a procedural norm
which requiring consultation to the specified body as mandatory. Here, the fact that

the SL dont complied with the procedure laid down by the statute on referring the
proposed rules to the statutory body in asking for their advice on its expediency,
will make those SL to be declared as procedurally ultra vires.
LEGISLATIVE CONTROL
Malaysia practices parliamentary democracy system which highlight the function of
legislative as the body to make the law. Here, this body possesses special right or
duty as a principal to ensure that the (executive) with delegated power always act
parallel with boundaries served. As for this, a system of legislative supervision over
SL had been developed as its believed that this mechanism is one of the effective
way to controls SL. In general, the main stages in the supervision involving ; laying
procedure (herein after referred as LP) of delegated legislation before the
legislature, scrutiny by the scrutiny committee and debate on the SL at the House.
Laying Procedure is 'informative' in its function. The principle behind this idea is that
in the circumstances where the legislative wanted to carry out its function in
controlling SL, its important that it been informed with the SL made or proposed to
be made. Here, the SL may be laid down as in a draft form or it may be laid down
after it has been made in the case where the SL had become effective before its
being informed upon the legislature. There are 6 formulaes to be referred under this
LP.
The 1st formulae involved is known as laying simpliciter. Its a LP which
intends to provides information and its directory in nature. The idea behind this
formulae is that the statutory instrument (also referring to SL) made had to be
presented before the Parliament, but failure to do so will not affect its validity.
Section 36(2), Financial Procedure Act is one of the example here.
The 2nd formulae is laying with annulment resolution. Generally, SL
enacted will takes effect as soon as its made. Here, the principle is, SL will continues
to take effect until there is an annulment resolution being passed by Parliament.
This can be seen for instance in Section 17 of Elections Act 1958 which subjected
the regulations made to the annulment procedure of the Dewan Rakyat. This
concept only applicable to the annulment of the instrument and not to the act of
amendment. Thus, the effectiveness of this LP in governing the SL only extended
upon the matter related to the annulment and not the amendment.
The 3rd formulae involved is laying in draft subject to annulment. Section
6(1) of the Statutory Instrument Acts 1946 laid down that the instrument shall not
be enforced until after the expiration date 40 days beginning from the day of the
laying. If within those period either House decides to annull the instrument then it
shall not be enforced. However, a new draft of proposed instrument maybe
presented without any prejudice. This indirect way will give an opportunity to
Parliament to express its disapprobation upon the proposed instrument. Here, the
3rd formulae is a bit different compare to the 2nd formulae in the way that the

instrument will comes into force only 40 days after laying unless annulled within
those period, whereas in the 2nd formulae, the statutory instrument is already been
enforced before it being annullable.This 3rd LP is also mandatory in nature.
The 4th formulae is laying subject to affirmative resolution. In general, SL
made will be enforceable immediately after its had been enacted. Here, this SL will
continues to take effect and will then lapse if there is no affirmative resolution
passed by Parliament within a stipulated time-period. Section 46(2) of Exchange
Control Act 1953 : Regulations involved shall be laid before the Dewan Rakyat as
soon as its enforceable but shall cease to have effect thereafter unless approved by
resolution of the said Dewan. This LP is mandatory in nature and is regarded as the
most effective controls manner compares to the 1st and 2nd formulae. This is
because the 1st LP is more informative rather than actionable. While on the 2nd
formulae, SL is allowed to be continuously enforceable unless there is annulment
resolution passed by Parliament. But in this 3rd formulae, the control mechanism is
more strict, convenient and effective as SL will definitely lapse unless there is
affirmative resolution passed by Parliament. This will make those SL to always be in
the Parliamentary control and only allowed to be enforced with the supervision of
Parliament.
The 5th formulae involved is laying in draft subject to affirmative
resolution which highlighted that its mandatory for the proposed instrument to be
presented in draft before the Parliament. Its also stated under this formulae that,
only upon the affirmative resolution granted by the Parliament, those proposed
drafted instrument can be regarded as enforceable. For Malaysia, its suggested for
our country to have our own Parliamentary Scrutiny Committee so that this
body can help to scrutinize the draft rules. Besides, Malaysia may also needs to
refer to Australia statute, as here all regulations are made compulsory to be laid
upon both Houses in Parliament for 15 days. Failure in complying with this provision
will make the SL become void. Its important to make all the regulation to be
presented before Parliament so that Parliament is aware on the enforced SL. This LP
must be considered as the most effective way available for the Parliament to take in
charge in controlling the evolvement of SL as here, the Parliament can be said as
having the earliest control upon the enforcement of SL that is while its still in the
drafting form.
In conclusion, Malaysia does practices both of control mechanisms that are
Judicial and Legislative Control. The effectiveness of this control differs as according
to its controls. In certain control mechanism such as Control of Judiciary upon the
Unconstitutionality of the PA which governs the SL become proper case by case. I do
believe that the scope of effectiveness can always have its own room to be
improvised so long as the Judiciary and Legislative system be open towards new
suggestion.