MALAYSIAN LEGAL SYSTEM Sources of law – subsidiary legislation part 2
1.
2.
3.
By the following methods:
Preliminary control
Parliamentary control
Judicial control
4.
By consulting the effected groups and
advisory bodies before making the subsidiary
legislation.
This is more common in UK and US.
In Malaysia, the Parent Act determines
whether consultation is mandatory or merely
recommended.
5.
By publication in the Gazette.
Section 86 Interpretation Act 1948 & 1967
(1) Subsidiary legislation made under any Act of
Parliament, Ordinance, Enactment or other lawful
authority shall, unless it be otherwise expressly
provided in any Act of Parliament, Ordinance, be
published in the Gazette and, unless it be otherwise
provided in such subsidiary legislation, shall take
effect and come into operation as law on the date of
such publication.
6.
(2) Any such subsidiary legislation may be
made to operate retrospectively to any date
not being a date earlier than the
commencement of the Act of Parliament,
Ordinance or Enactment under which such
subsidiary legislation is made.
7.
E.g. s 77(2) Legal Profession Act 1976: “Any
rules made pursuant to this section shall not
come into operation until they have been
published in the Gazette”.
8.
1. Parliament can revoke or rescind the
subsidiary legislation by repealing the Parent
Act. (Since it was Parliament that authorised
subsidiary legislation).
However, in practice this seldom happens.
9.
Daihatsu (M) Sdn Bhd v PP [1987] 1 MLJ 88
Court:
If a statute under which by-laws are made is
repealed, these by-laws are impliedly
repealed.
10. The appellants were charged for using their
premises for the trade of a motor car dealer without
a licence from the municipal council --Majlis
Perbandaran Petaling Jaya (MPPJ).
Contravened by-law 1(51) of Part VI of the Petaling
Jaya Town Area (Amendment) By-Laws 1975.
The by-law was made pursuant to section 16(1) of
the Town Boards Enactment which empowered the
MPPJ to make such by-laws.
11.
Section 166 of the Local Government Act
1976 repealed the whole of the Town Boards
Enactment. By virtue of this section 166 thereby
repealed section 16(1) of the Town Boards
Enactment.
Held: The by-laws made by the MPPJ pursuant
to the Town Board Enactment ceased to be valid
on repeal of section 16(1) of the Enactment
by section 166 of the Local Government Act
1976.
12.
2. Laying procedure
Subsidiary legislation has o follow the
procedure set by Parliament (if any).
E.g. S 36(2) Financial Procedure Act provides:
“Regulations made under this section shall
when made have full force and effect and
shall be laid before the Dewan Rakyat as soon
as possible after they are made”.
13.
E.g. S 8(2) Summons and Warrants (Special
Provision) Act:
“Any rules made under this section shall be laid
before each House of Parliament”.
14.
3. Parliamentary Scrutiny Committee
To report to the Parliament of any subsidiary
legislation made.
(effective in UK, India and Australia)
15.
Control by the courts.
By applying the doctrine of ultra vires (in
Latin “beyond powers”).
The rule under the doctrine of ultra vires is
that no one may overstep the boundaries of
the power conferred to him.
16.
It is the power of the High Court to exercise
judicial review under the following grounds:
i.
Subsidiary legislation is unconstitutional
Parent Act is unconstitutional
Substantive ultra vires
Procedural ultra vires
ii.
iii.
iv.
17.
Subsidiary legislation is inconsistent with a
provision in the Federal Constitution.
In other words, it is ultra vires the
constitution.
Effect: subsidiary legislation becomes void.
18.
Exception: proclamations issued during
emergency shall be valid notwithstanding it
being inconsistent with the constitution.
Article 150. (1) FC:
“If the YDPA 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.”
19.
The appellants were charged with possession
of firearms or ammunition in a security area.
The Essential (Security Cases) (Amendment)
Regulations 1975 were declared to be ultra
vires the Constitution because it was contrary
to Article 150 (2).
Once Parliament had sat on February 20,
1971, the YDPA no longer had any power to
make Essential Regulations having the force
of law.
20.
The parent act which delegated legislative
powers to the authority concerned is itself
unconstitutional.
Therefore, any subsidiary legislation made
pursuant to the parent act shall become void.
21.
The subsidiary legislation is ultra vires the
parent act.
In other words, the subsidiary legislation goes
beyond the scope of the authority conferred
by the parent act.
22.
Court has power to review the subsidiary
legislation by virtue of Section 23(1) of the
Interpretation Acts 1948 & 1967:
“Any subsidiary legislation that is inconsistent
with an Act (including the Act under which the
subsidiary legislation was made) shall be void
to the extent of the inconsistency.”
23.
S 118(5) Road Traffic Ordinance 1958:
“… the Licensing Board in exercising its
discretion under this section shall give
preference to an application from a Malay…”
The Board was therefore acting ultra vires in
imposing a further condition that only a
Malay driver could be employed on the
vehicle
24. Court:
It is clear law that no rule, regulation or by-law
made under statutory powers must go beyond or
be repugnant to the enactment under which they
are made. It is also trite law that the validity of
delegated legislation as a general rule can be
canvassed by the Courts, and that in the absence
of express statutory provision to the contrary, the
Courts may inquire whether the rule-making
power has been exercised in accordance with the
provisions of the statute by which it is created.
25.
Goods belonging to the resp in the custody of
the appl went missing.
Appl enacted a by-law pursuant to the Port
Authority Act 1963 to limit its liability.
26.
Court
By-law 91(1) of the Port Swettenham Authority
By-laws, 1965 is invalid as it is ultra vires section
29(1)(g) of the Port Authorities Act, 1963, in so
far as it purported to limit the Port Authority's
liability in respect of a loss occurring with the
actual fault or privy of the Authority; and also
because it did not only limit but wholly excluded
the liability of the Port Authority for the loss of
any goods caused by their own misconduct or
negligence.
27.
Section 29(1)(g) of the 1963 Act confers no
power to exclude but only to limit liability.
28.
The subsidiary legislation was not made in
accordance with the procedures laid down by
the parent act.
The procedural requirement in the parent act
must be a mandatory procedure in order for
the subsidiary legislation to be declared
invalid on the ground of procedural ultra
vires.
29.
Example:
“…the authority shall consult the affected
group…”
“Regulations made under this section shall
when made have full force and effect and
shall be laid before the Dewan Rakyat as soon
as they are made”
30.
Delegatus non potest delegare
A delegate cannot further delegate his power
to someone else
Exception: when subdelegation is expressly
authorised by statute.
31.
Example:
Article 144(5B)
“… all the powers and functions of the Public
Services Commission or the Education
Service Commission established under Article
139 and Article 141A … may be exercised by a
board appointed by the YDPA”.
34.
S 87 Interpretation Acts
“subsidiary legislation may at any time be
amended, varied, rescinded or revoked by the
same authority and in the same manner by
and in which it was made”
