WHAT ARE THE CONTROLS OVER SUBSIDIARY LEGISLATION

CONTROLS OVER SUBSIDIARY LEGISLATION

1. INTRODUCTION

Under doctrine separation of powers, the power to make law vested on legislative body, however under subsidiary legislation administrative body has been given power to make law. Therefore the power should be controlled to make the subsidiary legislation and the power given to the administrative bodies has the appropriate alignment. The main controls are:

a.    

     Judicial Control

b.    Legislative Control

c.    Consultation

d.    Publication

2. JUDICIAL CONTROL

Judicial Control or Judicial Review is the most important controls over subsidiary legislation. Section 23(1) and 87(d) of the Interpretation Act 1948 and 1967 is the foundation for judicial review. The principle provided under these provisions is this: any subsidiary legislation which is inconsistent with an Act of parliament (or Enactments of State) shall be void to the extent of the inconsistency.

Lord Diplock in McELDOWNEY v FORDE [1971] AC 632 at 638 summarized the judicial task in applying the doctrine as follows:

“Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the court has a threefold task: first, to determine the meaning of the words used in the Act of parliament itself to describe the subordinate legislation which the authority is authorised to make, secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description”.

How judicial review is operated? Within a trial of case either a criminal case or a civil action the accused person or the defendant raised a defence or challenged by any aggrieved party the validity of the subsidiary legislation, court will decide that the subsidiary legislation is void under the doctrine of ultra vires either in respect of substantive or procedural matter. The journey into the decision on validity from court is another matter that falls under court procedure, but the most important thing is the court has discretion to declare that the subsidiary legislation is void and inapplicable. 

Substantive ultra vires occurred when the recipient of the power (administrative) has made law beyond their capacity. The scope of the capacity existed either in the subject-matter, purpose or circumstances authorized by parent act (the Act which gives such power to make subsidiary legislation).

In MAJOR PHANG YAT FOO v BRIGADIER GENERAL DATO’ YAHYA BIN YUSOF & ANOR [1990] 1 MLJ 252, the respondent, the convening authority of a court martial, purporting to act under r 63(3) of the Armed Forces (Court Martial) Rules 1976, disapproved of, and dissolved, the decision of court martial and made an order for a fresh trial to be convened and for the applicant for an order to be retried on the same charges.

In an application by the applicant for an order of certiorari to quash the respondent’s decision and an order prohibiting respondent from thus proceeding, the High Court ruled that r 63(3) was void to the extent that it confers jurisdiction on the convening authority to approve or disapprove a decision of a court martial contrary to s.119 of the Armed Forces Act 1972. That section authorizes the Minister of Defence to make only rules of procedure relating to investigation and trial of offences by court martial.

In procedural ultra vires, the recipient has failed to follow a mandatory procedure laid down in the enabling statute.  In DATIN AZIZAH BTE ABDUL GHANI v DEWAN BANDARAYA KUALA LUMPUR [1992] 2 MLJ 393,  concerning a developing order made under s.22 of the Federal Territory (Planning Act) 1982, granting planning permission for the building of two blocks of apartments on a piece of land in an exclusive residential area, the Supreme Court quashed the order as on the facts, no notice of the application for planning permission as required under r 5 of the Planning (development) Rules 1970 (which continues in force as if made under the 1982 Act) had been sent to the appellant. A notice had been sent to her, due to the negligence of the offence concerned, to the wrong address. 

In LOW LENG HUAT v PP (1917) FMSLR 162, C.A, 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 some of his house. This notice was issued by the sanitary Board in accordance with a by-law. The appellant challenged the by-law as being in excess of the powers of the Sanitary Board as conferred by the Sanitary Board Enactment 1907. It was held that the by-law was ultra vires and therefore void.

In GHAZALI v PP [1964] MLJ 156, the appellant was charged with breach of a condition attached to his licence which prohibited his taxi from being driven by a person other than a Malay. This condition was imposed as a result of a general directive issued by the Minister of Transport under powers conferred by certain provisions of the Road Traffic Ordinance 1958. The court allowed the appeal on the ground that the Board was acting ultra vires by imposing such a condition.

In PORT SWETTENHAM AUTHORITY v T W WU AND COMPANY [1978] 2 MLJ 137, the respondents lost some goods which were unloaded at Port Klang and kept in the custody of the Port Authority (the appellants). The respondent brought an action against the appellants to recover the loss. Among other things, the appellant attempted to disclaim liability by relying upon a by-law made by them in exercise of the powers conferred by section 29(1) of the Port Authority Act 1963 which stated:

“The authority may with approval of the Minister make by-laws for:

(g) limiting the liability of the authority in respect of lost occurring without the actual fault or the privity of the authority .......”

Under powers conferred by this section, the following by-law was made:

“The authority shal not be liable for any loss ...... of goods .... from any cause unless such loss ....has been caused solely by the misconduct or negligence of the authority or its officers or servants ...”

The Privy Council ruled that the above by-law was invalid as it was ultra vires section 29(1)(g) of the 1963 parent Act on two grounds. First, it purported to limit the Port Authority’s liability in respect of a loss occurring with the actual fault or privity of the Authority and secondly, it did not only limit but wholly excluded the liability of Port Authority for the loss of any goods cause by their own misconduct or negligence. In their Lordship’s view, the Port Authority had clearly exceeded the powers conferred upon them by the parent Act. Thus, they were liable for the loss. 

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3. LEGISLATIVE CONTROL

Parent Act or enabling statute made provision to confer the rights of making law vested on executive, and then subsidiary legislation is made. However, parent Act was made by legislature or parliament (at federal level). Therefore, the source of subsidiary legislation is parliament which also has the power to repeal parent Act. Parliament also has power to revoke or vary the delegated powers.

One of the mechanisms to control subsidiary legislation is by making provision that subsidiary legislation to be laid before the legislature. The objective for the laying provisions is either for information of the legislature or to get confirmation from legislature.

Under s 83(3) of the Trade Marks Act 1976, requires subsidiary legislation made there under to be laid before both Dewan Rakyat and Dewan Negara. Under s 58(4) Trade Union Act 1959 also requires the subsidiary legislation to be laid before the Dewan Rakyat only. These two provisions are examples of laying provisions from parent Act. However, laying provisions is not a rare practice, because one the reason for subsidiary legislation is not enough time for parliamentary to discuss or debate this subsidiary legislation. Therefore, if the laying provision exists it will burden parliament to discuss the matter.

Maybe it is a good step to set up a committee at the parliament level to discuss and debate (or review) subsidiary legislation (the practice is like PAC). This committee will report to the parliament their findings. This method will save the time of parliament and the members of the committee will be more focus.

Members of parliament also should take action to control subsidiary legislation. They may raise questions to the responsible of that subsidiary legislation, there could be a debate, and possibly a motion when the speech from Yang Dipertuan Agong is being debated after opening of parliament. The action will pay attention of either the minister concerned or the public however the effectiveness depends on the reception of the minister concerned and his response to the public opinion.

4. CONSULTATION

Before the regulations are made, minister or the recipient of delegated powers usually conducts consultation with organised interest group and advisory bodies. Actually, there is no statutory provision making consultation a formal requirement for the making of subsidiary legislation.

It would be unwise for a minister to make regulations without giving the people who will be affected an opportunity to discuss the proposal.

5. PUBLICATION

Since ignorance of law is, in general no excuse for breaking it rules or regulations are readily made available to the public as soon as they come into force. In Malaysia, it is the general practice that subsidiary legislation be published in the gazette and will come into force on the date of publication or on such date as may be specified.  

At the federal level, subsidiary legislation which is required to be published is published in Malay and English in two parts of the gazette:

      i.        Tambahan perundangan ‘A’ (Legislature Supplement ‘A’) which contains all proclamations, rules, regulations, orders, and by-laws.

     ii.        Tambahan Perundangan ‘B’(Legislature Supplement ‘B’) which contains all other subsidiary legislation.

The subsidiary legislation is serially numbered with either the prefix PU (A) or PU (B), depending on the part of the gazette it is published in. PU stands for Pemberitahuan Undangan.

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