Subsidiary Legislation.docx

Subsidiary legislation Subsidiary legislation also known as delegated legislation is law made through powers delegated by the legislature to a body or person via an enabling or parent statute. In Malaysia, Section 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, Enactment, Ordinance or other lawful authority and having legislative effect. The legislation made must be consistent with Federal Constitution and Parent Act or otherwise, it will consider as void and inconsistency on the ground of doctrine of ultra vires. In ss 22 and 87(a) of the Interpretation Act 1948 and 1967 provide that subsidiary legislation may be amended, varied, added to, revoked, suspended or revived at any time by the person or authority whom Parliament has clothed with the power to make such regulations or other subsidiary legislation. Basically, subsidiary legislation explains the main and basic laws. There are four mode of control for subsidiary legislation which is consultation, judicial control, publication and parliamentary control. Modes of Control for Subsidiary Legislation Every legislation passed mush have a restriction and authority to control it to ensure there is no abuse of power conferred to the local authority by the Parliament. There are a few ways to control the subsidiary legislation. First, the legislation has been controlled by a consultation. In Malaysia, there is no statutory provision stated that subsidiary legislation must be consult before the subsidiary legislation come into force. However, there are few enabling Acts to make a prior consultation as a compulsory with the expertise in particular field. For example, section 36(1) of the Financial Procedure Act 1957 (Act 61) (Revised 1972) which authorizes the Yand di-Pertuan Agong to make regulations after consulting the Commodities Trading Commission. In this process, the authority such as Prime Minister will consult with the interest groups about the regulations made. This is to ensure the legislations that come into force not contrary with the Parent Act or Federal Constitution. Another mode of control is by judicial control. Judicial control means a control by court. The court have the power to review the legality of the subsidiary legislation. According to section 23(1) and 87(d) of the Interpretation Act 1948 and 1967 stated “any subsidiary legislation which is inconsistent with an Act or State Enactment shall be void to the extent of inconsistency. This clearly shows that the court have power to declare the subsidiary legislation is void on the ground of the doctrine of ultra vires.Ultra vires is a latin word which means as beyond power. Therefore, the subsidiary legislation must be intra vires with parent statute and

Federal Constitution. There are few grounds for the court to make judicial review for the doctrine of ultra vires which are substantive ultra vires, procedural ultra vires and subsidiary legislation is inconsistent with the Federal Constitution. First, the substantive ultra vires. This means the recipient of the delegated power has made law beyond the limit of the power conferred either in terms of the subject matter purposes or circumstances authorized by the enabling statute. In another word, the delegated legislation has gone beyond the scope of authority conferred to it. In the case of Arunamari Plantations Sdn Bhd& Ors v Lembaga Minyak Sawit Malaysia & Ors [2011]2 CLJ 519, the court held that he Malaysian Palm Oil Board (Cess) (Oil Palm Fruit) Order 2007 was ultra vires s.33 of the Malaysian Palm Oil Board Act 1998. Next, procedural ultra vires. The delegated legislation can be claimed on the ground of procedural ultra vires when the recipient of the delegated power has failed to follow a mandatory procedure laid down in the parent act. For example, to give notice to affected parties to allow them to make objections before granting planning permission (regarding land). In the case of Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur & Ors [1992] 1 CLJ 207, the Supreme Court held inter alia that there had been failure to comply with the procedure under r.5 of the Planning (Development) Rules 1970. Other than that, in order for the doctrine of ultra vires to appear, the delegated legislation is inconsistent with the Federal Constitution. This means the subsidiary legislation is inconsistent with any provision of the Federal Constitution. The court declared it as void. However, there is an exception regarding the proclamation issued during emergency where it shall be valid notwithstanding it with the constitution. This has been clearly stated in article 150(1) of the Federal Constitution where it stated “if the Yang-Dipertuan Agong is satisfied that a grave emergency exists whereby the security or the economic life or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

References International Law Book Services. Federal Constitution. Petaling Jaya: International Law Book Services, 2017. Mohamed, Ashgar Ali Ali, ed. Malaysian Legal System. Ampang: The Malaysian Current Law Journal Sdn Bhd, 2017.