SUBSIDIARY LEGISLATION PDF.pdf

BY IBTISAM ILYANA ILIAS FACULTY OF OF LAW UiTM SHAH ALAM

DEFINITION —

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Law made through powers delegated by the legislature to a body or person via an enabling or parent statute. S.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, Ordinance or other lawful authority and having legislative effect.

PARENT ACT

SPECIFIC PROVISION UNDER PARENT ACT (enabling provision)

SUBSIDIARY LEGISLATION

ROAD TRANSPORT ACT 1987

Section 66 of the Road Transport Act 1987

MOTOR VEHICLES (CONTRUCTION AND USE) (AMENDMENT) RULES 2010

HIGHLY TECHNICAL LEGISLATIVE PROCESS ARE CUMBERSOME

INSUFFICIENT TIME

 WHY SUBSIDIARY LEGISLATION

CONTROLS OVER SL:WHY ? Made by executive  inconsistent with the doctrine of separation of powers 2.  Vulnerable to abuse :Not elected by people Lack of prior discussion Excess of power Sub delegation to other persons or bodies where the legislature has not clearly identified the recipient of the delegation power. 1.

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TYPES OF CONTROL  JUDICIAL

CONSULTATION

LEGISLATIVE

PUBLICATION

JUDICIAL CONTROL — —

The most important S.23(1) AND S 87(d) of the Interpretation Act 1948 and 1967 which lays down the principle that any SL which is inconsistent with an Act or Parliament or State Enactment shall be void to the extent of its inconsistency.

JUDICIAL CONTROL —

 When there is a challenge by the aggrieved person on the validity of SL, the courts may declare that the SL  void under the ultra vires doctrine on the following grounds:Substantive ultra vires 1. 2. Procedural ultra vires

JUDICIAL CONTROL : SUBSTANTIVE ULTRA VIRES —

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The recipient of the delegated power has made law beyond the limit of the power conferred either in terms of the 1. Subject-matter 2. Purpose 3. Circumstances authorized by the enabling statute  Major Phang Yat Foo v Brigadier General Dato Yahya bin Yusof & Anor [1990]

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JUDICIAL CONTROL : SUBSTANTIVE ULTRA VIRES —

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The respondent, the convening authority of a court martial purporting to act under r63(3) of the Armed Forces (Court Martial)Rules 1976 disapproved of and dissolved the decision of the court martial and made fresh order for a fresh court martial to be convened and for the applicant to be retried for the same charges. High Court ruled that r63(3) was void.

JUDICIAL CONTROL : SUBSTANTIVE ULTRA VIRES Parent Act

Subsidiary legislation

S.119 of Armed Forces Act 1972

r63(3) of the Armed Forces (Court Martial)Rules 1976

 Authorizes the Minister of Defence to make rules of procedure relating to investigation and trial of offences by court martial. §

 Authorizes convening authority to approve or disapprove a decision of a court martial §

JUDICIAL CONTROL : PRCEDURAL ULTRA VIRES —

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The recipient of the delegated power has failed to follow a mandatory procedure laid down in the enabling statute. Datin Azizah bt Abdul Ghani v Dewan Bandaraya Kuala Lumpur [1992]

JUDICIAL CONTROL : PROCEDURAL ULTRA VIRES —

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In this case the Datuk Bandar, Kuala Lumpur, had made a development order granting planning permission on Lot 4951, allowing an increase of density from 10 persons to 44 persons an acre to enable the building of two blocks of apartments, one of two storey and the other three storey. On the facts no notice as required under the Planning (Development) Rules 1970 were given to the appellants. Supreme Court quashed the order as on the facts, no notice of the application for planning permission as required under r5 of the Planning(Development) Rules 1970 had been sent to the appellant.

JUDICIAL CONTROL : PROCEDURAL ULTRA VIRES

Parent Act

Subsidiary legislation

S22 of the Federal Territory (Planning) R5 Planning (Development) Rules  Act 1982 1970

LEGISLATIVE CONTROL — —

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 AFTER THE SL IS MADE The legislature which grants the delegated powers by an enabling statute may repeal the statute or revoke or  vary the delegated powers. BEFORE THE SL IS MADE Laying provisions i.e. an enabling statute may require legislation made under it to be laid before the legislature for information or confirmation.

LEGISLATIVE CONTROL Trade Marks Act 1976

Trade Unions Act 1959

s.83(3) requires the SL made there under to be laid before both Dewan

S58(4) requires the SL to be laid before the Dewan Rakyat only 

CONSULTATION —

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No general statutory provision requiring consultation for SL in Malaysia.  Very few enabling acts make prior consultation mandatory. Eg:Financial Procedure  Act 1957

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 Authorizes YDPA to make regulations after consulting the Commodities Trading Commission

Though not legally imposed, consultation as a matter of administrative practice does take place on a discretionary and ad hoc basis.

PUBLICATION —

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No general statutory provision requiring publication for SL in Malaysia. If enabling statute make it mandatory for publication, non-compliance renders the SL void.  At federal level, SL is required to be published in Malay and English in 2 parts of the Gazette :Tambahan Perundangan  A  = proclamation, 1. rules, regulations, orders, by-laws 2. Tambahan Perundangan B = other SL