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.
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.
[full_width]
[full_width]
WHAT ARE THE CONTROLS OVER SUBSIDIARY LEGISLATION
Reviewed by Kamaruddin Mahmood
on
7:56:00 PTG
Rating:

thank you so much for this notes, again! I really appreciate it!
BalasPadam