UNDERSTANDING SUBSIDIARY (DELEGATED) LEGISLATION

SUBSIDIARY (DELEGATED) LEGISLATION

Subsidiary legislation is defined in s.3 of the Interpretation Act 1948 and 1967 to mean “any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Enactment or aother lawful authority and having legislative effect”.

Under Article 44 of the Federal Constitution, the Parliament has full power to make laws and it can grant to some other person or body the power to make orders, regulations or rules which have the force of law.

In practice, Parliament cannot discharge this duty fully for the following reasons: 

• Pressure on Parliamentary time and future development
• Technicality of subject matter
• Flexibility
• Emergency powers

Example:

Employment Act 1955, Section 60J provides: "The Minister may, by regulation … provide for the entitlement of employees to, and for the payment by the employer of – (a) termination benefits; (b) lay-off benefits; and (c) retirement benefits." Accordingly, the Minister made the regulation known as "Employment (Termination and lay-Off Benefits) Regulation 1980.

If a parent statute is repealed, and in the absence of any saving clause to the contrary, the subsidiary legislation automatically cease to exist. This question was considered by the High Court in Daihatsu (Malaysia) Sdn Bhd v Pendakwa Raya [1987] 1 MLJ 88. The appellants were charged under a by-law for using their premises for the trade of a motor car dealer without license from the Petaling Jaya Municipal Council. The magistrate convicted and fined them for the offence. The appeal was on the ground that the magistrate had erred in law when he held that by-law was valid. The high court allowed the appeal, ruling that the by-law made by the Council in pursuant to an Enactment ceased to be valid on repeal of a section of that Enactment by the Local Government Act 1976.

Main types of delegated legislation:

Regulations or orders

• Regulations, also called 'rules' or 'orders', are created by government departments and are the most popular form of delegated legislation.
•  They are often statutory instruments and are normally cited by calendar year and number, for example, P.U.(A) 188/2004, and by a short title, Banking and Financial Institutions (Licence Fee) (Licensed Institution) Order 2004.

By-laws

• By-laws are rules made by a governmental authority subordinate to Parliament, such as a local authority or independent statutory corporation, for the regulation, administration or management of a certain district, undertaking, property, etc.
• They are binding only on the persons who come within this restricted scope.
•  They are statutory instruments only if the enabling or parent Act authorizing them to be made declares them to be.