Law309 tutorial question.

ISSUE 1
Weather Kuala Lumpur Association of the Child Care Centre can take legal action and
challenge the validity of the new regulations enacted by the Ministry of Women, Family and
Community Development.

ISSUE 2

Weather Kuala Lumpur Association of the Child Care Centre can take legal action and
challenge the validity of the new regulations enacted.

INTRODUCTION

Ultra vires literally means beyond the power. Besides, in excess of power or authority given.
When power is conferred on an administrative body, the instrument conferring the power
may itself provide for restriction or limitations on such exercise of the power. If administrator
goes beyond the restrictions or limitations, the administrator’s action is considered as ultra
vires.

Legal principles

Substantive ultra vires refers to the scope, extend and range of power conferred by the
statute to make Subsidiary Legislation. Doctrine of Substantive UV is based on the principle
that the legislative power belongs to the Parliament. No other bodies or agencies have the
power to legislate UNLESS if it is conferred by Parliament to do so. If power is conferred by
the statute to make Subsidiary Legislation for certain topics or for certain purposes or for
certain circumstances only, then the limits of such power must not be crossed. In other
words, if the bodies or agencies so empowered to legislate Subsidiary Legislation are within
the boundaries of the powers delegated, then the delegated legislation is valid. By the
doctrine of Substantive UV, any Subsidiary Legislation may be declared void under the
following grounds which are, Parent Act Unconstitutional, Subsidiary Legislation
Unconstitutional and Subsidiary Legislation is inconsistent with the Federal Constitution. In
this case, Subsidiary Legislation is unconstitutional. Parent Act is constitutional, but the
Subsidiary Legislation made thereunder is unconstitutional. Court will invalidate the
Subsidiary Legislation if it does not conform with the provisions stated in the constitution.
Based on case of, Teh Cheng Poh v pp, The appellant (charged for possession in a security
area of a revolver and ammunition) was tried under the special procedure under the ESCAR
1975, and found guilty and sentenced to death. An appeal to the Federal Court was
dismissed and the appellant appealed to the Privy Council. He challenged the validity of the
regulation made by YDPA under the emergency (Essential Powers) Ordinance 1969 as
unconstitutional under Article 150(2). Under Article 150(2), the YDPA had the power to
promulgate ordinances having the force of law during a Proclamation of Emergency until
both houses of Parliament were sitting. The power would come to an end when Parliament
sat. The regulation was enacted 4 years after Parliament’s first sitting after the Proclamation
of Emergency. The privy court held that, the regulation was invalid or void (ultra vires the
constitution or unconstitutional) YDPA no longer had any power to make the Regulation
having the force of law after Parliament had sat. Once Parliament had sat on 20 February
1971, the YDPA did not have any power to make Essential Regulations having the force of
law. They are ultra vires the Federal Constitution and for that reason, void.

APPLICATION

By applying current situation, after a 5 months old baby reported missing found dead in a
refrigerator at the babysitter’s house in Taman Nakhoda, Batu Caves the Minister of Women,
Family, and Community Development is making regulations pertaining to the registration,
control and inspection of child care centres. However, Section 89 nevertheless makes it
obligatory that all regulations legislated under the Act must be gazetted. Datuk Seri Jannah,
the Minister of the Ministry of Women, Family and Community Development who enacted
the Child Care Centre Regulations, but no publication was done. In this case, Kuala Lumpur
Association of the Child Care centres is unhappy and frustrated with the new regulation
enacted and wish to challenge its validity.

CONCLUSION

To conclude, Kuala Lumpur Association of the Child Care Centers can take a legal action
against Ministry of Women.