INTRODUCTION

Federation of Malaysia, which applies a system of parliamentary
democracy, consists of thirteen states. Article 4 (1) of the Malaysia Act
1963 states that the Federal Constitution is the supreme law of the
federation. As provided by Article 32 (1) FC, the King (Yang Di-Pertuan
Agong, YDPA) acts as the Head of the Federation and is assisted by three
main bodies of the government, which are named as the Executive, the
Legislative, and the Judiciary. All of them have their own role and
responsibility, however, subjects of the Constitution, in which their powers
were derived from it.
It can be said that they do not clash with each other because each
body are obstructed from influencing the decision taken by another body.
This is done so that the court is not afraid of carrying out duties that can
affect adversely the process of administering justice. This practice also
braces society’s confidence in the body as a neutral institution.1
Briefly, the executive body is in charge of matters of governing and
administration, either at the federal or state level. This body is responsible
for implementing the laws that have been passed by the legislative body
and act as an advisory body to the YDPA. Among members of the
executive body are the Prime Minister himself and ministers of the
government.
Meanwhile, the legislative’s function is to enact, amend and pass
laws. It is a must for the laws drawn up by the legislative body, called as
1Mahyuddin Daud et. al., Introduction To Law, CFS IIUM Petaling Jaya

subsidiary legislation is a piece of written law that acts as enhancement or supplement to the parent Act of Parliament. by-law or other instrument made under any Act. imposes punishment and settles disputes between parties in the Federation. the judiciary can determine whether the laws are enforceable or not. is responsible for keeping eyes on the executive so that it does not abuse its power in creating up laws which may probably go against the provisions in the Federal Constitution itself. 2(Consolidated and Revised 1989) . order. rule. to have the consent of the YDPA (for the Federation) and the Sultan (for the State) within a stipulated time before it can be enforced. this body also has the role in upholding justice where it judges all offences. on the other hand. Hence. Simply. Section 3 of the Interpretation Act 1948 & 1967 (Act 388) 2 defines such legislation asany proclamation. notification. regulation. Ordinance or other lawful authority and having legislative effect.the Bill. while that made through powers delegated by the legislature to a body or person via an enabling or parent statuteis called delegated or subsidiary legislation. Apart from that. The Judiciary. SUBSIDIARY LEGISLATION The legislation is the law enacted by the legislature.

the technical matters can be handled by the experts or administrators on the job who are well versed with the technicalities involved somehow the Parliament can focus on the main areas of principles only. A First Look At The Malaysian Legal System (1st Edition). (Oxford Fajar. Hence. ministers or other concerned authority to have the power to regulate administrative details by means of ‘delegated’. on environmental safety. One of the important reasons why the legislature has to delegate its law-making power is that the legislature has insufficient time to enact all legislation and go precisely in every aspect as required in a modern society. among others. By allowing the government.The main factor for the subsidiary legislationbecome desirable and necessary are that modern governments are multifunctional and modern legislatures work under severe limitations.3 Besides. for example. so subsidiary legislation is very vital to governs day-to-day matters because its function is to provide a detailed discussion on specific matters. this help to economise parliamentary time and reduce pressure on them in making non-essential law. 59 . p. much modern legislation is highly deal with technical and scientific matters. 2015]. 2009). “the parliamentary is not continuously in session throughout the year and its legislative procedures are generally quite slow and complex” [Ali.As the legislatures provide basic law. in circumstances where the laws need to 3Wan Arfah Hamzah. industrial problems and health regulations. Moreover. By having subsidiary legislation.

lack of prior discussion and consultation. added to or revoked by the same authority and it the same manner by and in which it was made’. p. it enables the relevant authority to respond to new or unexpected situations by amending or developing statutory instruments. This power is conferred by s 22 of the Interpretation Acts 1948 and 1967. For instance.be made quickly. First is the delegation of power to make the delegated legislation may lead to abuse of power. it has raised widespread concern. where it provides that ‘subsidiary legislation may at any time be amended. 221 5Hamid bin Ibrahim and Nasser bin Hamid.4 Likewise. Therefore by having subsidiary legislation. and excess of the power delegated or sub-delegation to other persons or bodies where the legislature has not clearly identified the 4 Ashghar Ali Ali Mohamed. varied. This is because the practice of delegating power to another body to make subsidiary legislation has several defects. Malaysian Legal System (1st Edition). 9th February 1984 (Federal Constitution. 11th Schedule). Malaysia Law Publishers Sdn Bhd). . subsidiary legislation is flexible and able to cope with the current requirement in situations such as currency control. import duties. such as in an emergency. However. delegation necessarily needs to be done. and so forth.5 CONTROLS OVER SUBSIDIARY LEGISLATION The subsidiary legislation is a momentous tool of modern government.

the recipient of the delegated legislation will tend to be ultra vires.Past years attempt 2 [online]Retrieved at:http://www. This can be done either by judicial control or legislative control.slideshare. It will be difficult for the layperson to understand the language or terms of the law since it is quite technical and require advance knowledge in that area. Also. (2012).2016]. This refers to situations when the law is enacted by the expert person in that particular field.6 This is because such law may probably be made by administrators who are neither elected nor directly accountable to the legislature or the public. . there is a need for the controls and safeguard to be imposed upon subsidiary legislation in order for it benefits to be fully utilized and its disadvantages to be minimized. F. Therefore. JUDICIAL CONTROL 6Ibid at 3 7Amir A.7 The third defect is the problem in apprehending the subsidiary legislation.net/AhmadFarouqAmir/past-yearsattempt-2[Accessed 19 Nov. The second defect is. subsidiary legislation is offending the doctrine of separation of power. and executive law-making is inconsistent with the separation of power notion where only the legislature has the power to make law and there cannot be any interference to the legislative to make law. where it makes law beyond the framework provided by the parent act.recipient of the delegated power. Malaysian Legal System . This is because subsidiary legislation is essentially legislation made by the executive.

S.2016]. 148. 8The rule under the doctrine of ultra vires is that no one may overstep the boundaries of the power confer on him. A. (LexisNexis.files.10 8Ibid at 3. p. .In this view. The Role Of Judicial Review in Malaysia as a Tool of Check and Balance under Doctrine of Separation of Powers [online] Chapter 24. K. (2011). Also known as judicial review. the focus is on judicial control. it is not part of the purpose of judicial review jurisdiction to substitute the opinion of the judiciary for that of the authority constituted by law to decide the matters in question.com/2013/02/therole-of-judicial-review-in-malaysia-as-a-tool-of-check-and-balance-under-thedoctrine-of-seperation-of-powers. The purpose of the judicial review jurisdiction is to ensure that the individual is given fair treatment by the authority in the exercise of its decision making power. This refers to the control of the courts over subsidiary legislation by applying the doctrine of ultra vires when a defence is raised by the accused or a challenge is made by an aggrieved person on the validity of subsidiary legislation.pdf [Accessed 19 Nov.Available at: https://gms101. and Alias. 76.9 Judicial review within Malaysian context has been defined as the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts. 60 9Mokhtar.wordpress. tribunals and other bodies or persons who carry out quasi-judicial functions who are charged with the performance of public acts and duties. 2007) p. p. A. 10 Wan Azlan Ahmad and Andri Aidham. Judicial Review Handbook (2nd Edition). it is the most important of the controls.

judicial review on the subsidiary legislation can be made by virtue of Section 23(1) of the Interpretation Acts 1948 & 1967 which stated that. in the case Victoria Jayasalee Martin v Majlis Agama Islam Wilayah Persekutuan & Anor. (1)Subsidiary legislation is unconstitutional For a subsidiary legislation to be valid. ultra vires the constitution. it must be intra vires the parent statute and the Federal Constitution.” The principle behind this ground is that if the subsidiary legislation is contradicted with any constitutional provisions. It cannot goes beyond the scope of the authority conferred by the statute pursuant to which it is made or in other words.The High Court in Malaysia exercise judicial review under the following grounds: i.11The Court of 11[2013] 6 MLJ 646 . The application of this ground can be seen in several cases. declare invalid either (1) the subsidiary legislation or (2) the parent Act itself. “Any subsidiary legislation that is inconsistent with an Act (including the enabling statute) shall be void to the extent of the inconsistency. For example. hence that subsidiary legislation can be stroked down by courts. by virtue of Article 4(1) of the Federal Constitution.For this purpose. Unconstitutionality The judiciary can. exercise control over subsidiary legislation by determining the constitutionality and if there is a need.

16 Upon the discussion above. the effectiveness of this control mechanism can be said to exist as court may declared the concerned subsidiary legislation to be void on the ground that ‘its contradicting with any constitution’s provision’. 224 . 10 of the Peguam Syarie Rules 1993. although at the same time this power is 12Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238 13Essential (Security Cases) Regulations 1975 14Emergency (Essential Power) Ordinance 1969 15[2006] 3 MLJ 389 16Ibid at 4. in Ooi Kean Thong & Anor v.12 where the Privy Council declared that the Regulations 197513 that was issued by YDPA under Ordinance 1969. 8(1) of the Parks (Federal Territory) By-laws 1981 which deals with prohibiting any person behaving disorderly in the public park of DBKL did not contrary to any of the rights as enshrined in Arts.Appeal held that r. p. 59(1) of the Administration of Islamic Law (Federal Territories) Act 1993 which does not limit the power of the Majlis to admit a person as a peguam syarie to Muslims only. which provides that a person may be admitted as a peguam syarie if he is a Muslim had infringed the s. making YDPA to no longer possess power to make essential legislations having the force of law. The same decision in the Victoria’s case was upheld in case of Teh Cheng Poh.However. 5 or 8 of the Constitution. 15 it was held that s.14 was ultra vires the Constitution hence void as per Article 150(2)on the argument that Parliament had sat after the Proclamation. PP.

subjected to the certain special circumstances such as proclamations issued during emergency with reference to the Article 150 (1) FC. thus. The principle here is that if the parent act which delegated legislative powers to the authority concerned is itself unconstitutional.J.P. In the case of Public Prosecutor v Khong Teng Khen. he may issue a proclamation of emergency making therein a declaration to that effect. Unfortunately. such argument was rejected by the Federal Court where Suffian L. or public order in the Federation or any part thereof is threatened. but in fact it had not been shown that the regulations were inconsistent with the 17 [1976] 2 MLJ 166 . held that by virtue of subsection (4) of section 2 of the Emergency (Essential Powers) Ordinance 1969. any subsidiary legislation made pursuant to the parent act shall become void automatically. This ground is subjected to the judicial review as per under Constitutional Law. or the economic life. the regulations were valid notwithstanding that they are inconsistent with the Constitution. 1975 and the Essential (Security Cases) (Amendment) Regulations1975 was challenged by the learned trial judge on the ground that the Regulations are inconsistent with certain provisions of the Federal Constitution and Clause. and Wan Suleiman F. 17the validity of the Essential (Security Cases) Regulations. which mentioned that “If the YDPA is satisfied that a grave emergency exists whereby the security.” (2)Parent Act is unconstitutional It is important to look atthe parent Act to ensure whether is constitutional or not.

We have noted above that the practice of giving the power to another body – instead of the parliament . the effectiveness of this control will highly depend on the discreetness of the judges in balancing the right of an individual and the public interest as whole. ii. it implies that discretionary powers must be exercised for the purpose for which they were granted. the application of the doctrine was designed exclusively to ensure that administrative authorities do not exceed or abuse their legal powers.Constitution. the courts declared such acts ultra vires and therefore. 11 2013.com. If they did so. An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit." UKessays. More specifically. it is going to discuss substantive ultra vires and procedural ultra vires as two of other grounds in which the high court in Malaysia exercises judicial review on subsidiary legislations.to make subsidiary legislation may lead to abuse.19 18"Doctrine Of Substantive Ultra Vires Constitutional Law Essay. At the inception.lawteacher.Here. All Answers Ltd. invalid. 12 2016 <http://www.php?cref=1>.net/free-lawessays/administrative-law/doctrine-of-substantive-ultra-vires-constitutional-lawessay. It envisages that an authority can exercise only so much power as is conferred on it by law. This doctrine of ultra vires is the basic doctrine in administrative law. Ultra vires This section is going to present the doctrine of ultra vires. .18 In other words.

Thus. laying down the procedure to be followed in respect of exercise of such power. such acts are liable to be rendered invalid on the ground of substantive ultra vires. which are substantive ultra vires and procedural ultra vires.” JOUR. sometimes. If an administrative authority acts without power. Legislation confers power on administrative authorities for specified purposes. this legislation stipulates the limits of such conferred power. When an administrative authority acts in contravention of mandatory rules stipulated in the legislation or does not comply with the principles of natural justice. More often than not. such acts are liable to be rendered invalid on the ground of procedural ultra vires. the doctrine of ultra vires has two aspects. in excess of power or abuses power. substantive ultra vires means that the rule making authority has no substantive power under the empowering act to make rules in question. 20ibid . “THE SCOPE OF THE DOCTRINE OF LEGITIMATE EXPECTATION AS A GROUND OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION. (1)Substantive ultra vires We have noted above that if an administrative authority acts without power.Administrative power is generally derived from legislation. in excess of power or abuses power. 10.20 Therefore. These two aspects are going to be discussed in details in the following lines with related decided cases. such acts are liable to be rendered invalid on the ground of substantive ultra vires.. It 19Chamila S Talagala. n.d.

33 of the Malaysian palm oil ACT 1998.21 The principle underlying is that subordinate agencies have no power to legislate on any matter more than the scope or power that had been conferred towards them by the Parliament. issued the 2007 Order. Here. the Minister. In order to finance the COSS. Trade and Consumer Affairs on the sale of the cooking oil to local consumers. the Government reactivated the Cooking Oil Subsidy Scheme (COSS). the court is said to have power to declare such excessive of power on part of the subordinate agencies to be invalid. To mitigate the losses suffered by the millers and packers of cooking oil. It was made under s. All Answers Ltd.net/free-lawessays/administrative-law/doctrine-of-substantive-ultra-vires-constitutional-lawessay. 22 [2015] 7 CLJ 149 . extent and range of power conferred by the parent statute to make delegated legislation. It was held that the Malaysian palm oil board 2007 was ultra vires s.com.lawteacher. 11 2013. A typical case of substantive ultra vires is of Arunamari v Lembaga 22where in 2007 the Government was informed about the losses suffered by the local millers and packers of cooking oil as a consequence of a combined effect of rising prices of crude oil and the ceiling price imposed by the Ministry of Domestic." UKessays. thus making the law made by them also to be void. A similar scheme was successfully introduced in year 1999 and 2004. 35 of the Malaysian Palm Oil Board Act 1998 ("the Act").php?cref=1>. after consultation with the Ministry of Finance. 21"Doctrine Of Substantive Ultra Vires Constitutional Law Essay. 12 2016 <http://www.refers to the scope.

disapproved of. and dissolved.Another case is Major Phang v Brigadier Jeneral Dato’ Yahya bin Yusof23where the respondent. but will not be if the procedure is only directory. 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. to give notice to affected parties to allow them to make objections before granting planning permission. Refers mainly to the situation where a public 23[1990] 1 MLJ 252 . (2)Procedural ultra vires Occurs when procedures under the enabling act have failed to be followed and refers mainly to the situation where a public authority has over stepped its powers. for example. That section authorizes the Minister of Defence to make only rules of procedure relating to investigation and trial of offences by court martial. the convening authority of a court martial. 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. procedural ultra vires occurs when procedures laid down in the enabling act have failed to be followed. Instruments will be held to be ultra vires if a mandatory procedural requirement has not been followed. 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. purporting to act under r 63(3) of the Armed Forces (Court Martial) Rules 1976.119 of the Armed Forces Act 1972. In other words.

A notice had been sent to her but. due to the officer concerned. if the subordinate or delegated legislation goes beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or Enabling Act. was squashed by the Supreme Court as on the facts. It is a mechanism to curb down the exploitation of power by the administrative authority as we all know that “power corrupts and absolute power corrupts absolutely". A practical example can be found in Datin Azizah v Dewan Bandaraya. no notice of the application for planning permission as required under r 5 of the Planning (Development) Rules of 1970 had been sent to the appellant. to the wrong address. However in this field there is lack of development and there is no substantial change in the concept all though 24[1997] 2 CLJ 248 . 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.authority has overstepped its powers. CONCLUSION Thus. it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground.24where a developing order made under s 22 of the Federal Territory (Planning Act).

. A. Daud. even sometimes travelling beyond the restrictions. CFS IIUM Petaling Jaya. Ali Mohamed. M. A. Mokhtar. K. BIBLIOGRAPHY Books 1. Introduction To Law. Termizi M.. M. 2009).the changing nature of the current legislative method has widen the horizon of the power of the authority by giving them power to act according to the need of the time. S. (Oxford Fajar. Hamzah. (2011). (2016) Malaysian Legal System(1st Edition). S. W. 2. Sidek. and Alias.. Article 1. The Role Of Judicial Review in Malaysia as a Tool of Check and Balance under Doctrine of Separation of Powers . A First Look At The Malaysian Legal System (1st Edition). Md. 3. A. A.