PAGE TWO

PAGE 1

Controls over Subsidiary Leqislation

There is need to protect the public from abuse of the application of subsidiary
legLslation by the administrative authorities for example, lack of prior discussions,
consultation and excessive of the power delegated necessitates controls over
subsidiary legislation.

a) Judicial Control

The courts have control over subsidiary legislation through judicial review. The
court by the application of the doctrine of ultra vires may declare any regulation as
void if made in excess of statutory authority conferred by the parent Act or did not
follow a particular procedure prescribed by the parent Act or if it is substantively
contrary to the Constitution.

In Ghazali v. Public Prosecutor (1964) MLJ 156, where under Section 118(5) of the
Road Traffic Ordinance 1958, the Licensing Board attached a condition to the
licences issued to Malays that only a Malay driver should be employed to
drive such a vehicle. The High Court held that the Board acted ultra vires in imposing
the said condition as it had no power to do so. The authority of the Minister was limited
to issuing directives on policy to be followed in determining applications, not matters
arising thereafter. After giving preference to a Malay for issue of a licence, the Board's
power is exhausted. The court held "no rule, regulation or by-law made under statutory
powers must go beyond or repugnant to the enactment under which they are made.

b) Consultation

In Malaysia there is no general statutory provision in making prior consultation a

formal requirement for the making of subsidiary legislation. However, enabling Acts
may make prior consultation mandatory, for example Section 36(1) or the Financial
Procedure Act 1957 (Act 61) (Revised 1972) which empowers the Yang di-Pertuan
Agong to make regulations after consulting the Commodity Trading Commission.

'\
PAGE THREE

Subsidiary Legislation

Definition

Subsidiary legislation is defined in the Interpretation Act, 1967 as

"any proclamation, rule, regulation, order, notification, by-law or other

instrument made under any Ordinance, Enactment or other lawful
authority and having legislative effect".

This type of legislation is becoming increasingly important as the business of

government gets more complicated and extensive. Further, modern governments
are multi-functional and modern legislatures work under severe limitations. The
legislature dos not have time to discuss details of the law; it confine itself to broad
principles in the law and policies underlying the bills. Parliament and the State
Assemblies may confer or delegate some of their legislative powers to
administrative authorities or bodies, usually Yang di-Pertuan Agong, a Minister or a
local authority such as a Town Board.

For instance, the Insurance Act, 1963 (Revised 1972) enacted by Parliament and
under Section 45 of the Act, power in conferred on the Minister to make regulation
for carrying into effect the objects of this Act, and for prescribing anything which
under this Act is to be prescribed. Under Section 107(1) of the Private Healthcare
Facilities and Services Act 1998, the Minister may make such regulations as
appears to him necessary or expedient for carrying out the provision of this Act.
Other reasons why the legislature had to delegate its law-making power are as
following:

(1) The legislative has insufficient time to enact all the details in every aspect,
as required in a modern society; and
(2) Such modern legislation at times is highly technical and is the best left to experts
or administrators on the job who are well versed with the technicalities involved.
(3) Current needs of legislation to overcome unforeseen contingencies or
emergency situation.

One of the important advantages of subsidiary legislation is its flexibility in

circumstances which demand this flexibility such as currency control, import duties
and etc. In such situations it may be essential for a Minister or the relevant
authority to act quickly but with the same authenticity as the Legislature. A
ministerial regulation can be easily rescinded by him if it becomes impractical or
outdated- This power originally conferred by Section 23 of the Interpretation and
General Clauses Ordinance 1948 is provided for in the Eleventh Schedule of the
Federal Constitution. It states:

"Where an Ordinance or Enactment confers power on any authority to make

subsidiary legislation, such 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, or if that person or authority has been unlawfully replaced by
another person or authority, by that other person or authority."
(c) Publication
(iii) “Affirmative resolution" laying procedure
Similarly, there is no general statutory provision requiring the publication subsidiary
legislation in Malaysia.
Section46(2) of theParticular
Exchangeenabling statutes
Control Act may require pUQlication
1953 states:
mandatory and non-compliance would render the subsidiary legislation void. Under
section 19( 1}"Allof the
suchInterpretation Acts be
regulations shall 1948
laidand 1967,
before thesubsidiary
Dewan legislation
commences onRakyat the date prescribed,
as soon or where
as practicable afternothey
dateareis made
prescribed,
but the date
immediately following
shall notthe date ofinitsforce
continue publication in the
thereafter Gazette
unless approvedSupplement.
by Under
section 19(2), the subsidiary
resolution of thelegislation
Dewan". 'shall come into operation immediately on
the expiration of the day preceding (its) commencement' .

(d) Leqislative Control - Laying Procedures

Law-making is generally the function of the legislature. If the legislature has

delegate part of its legislative powers to the executive, it has a duty to ensure that
the power is properly conducted by its agent. The main measures taken are to
ascertain a system of supervision over subsidiary legislation. The main ways are
imposing laying procedures.
PAGE FOUR
The legislature may require that the legislation be laid before the House in draft
form so that the House know what the executive proposes to do. There are three
laying procedures used in Malaysia:

(i) A simple laying formula states:

"any rules made underthis section shall be laid before

each House of Parliament"

Another variation of such toonula is in Section 36(2) of the Financial

Procedure Act 1957 which sta\es:
.
"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. n

These examples of laying procedure are informational in nature and is only

directory and failure to lay the regulations before Parliament does not affect '\
their Parliament does not affect their validity, though it amount to a technical
breach of the statute.

(ii) The second form of laying procedure requires a negative resolution, for
example, Section 19(3) of the Control of Imported Publications Act 1958
states:

"All regulation made by the Minister under this section shall be published in
the gazette and, as soon as possible, thereafter, shall be laid before the
Dewan Rakyat, and if at the next meeting of the Dewan Rakyat after the
Regulations are so laid the Dewan Rakyat passes a resolution annulling the
regulations or any part thereof, the whole or part, as the case may be, of the
regulations shall be void, but without prejudice to the validity of anything
previously done there under or to the making of any new regulations, as from
the date of notification in the gazette of the passing of the resolution."
The House must study the regulations before approving the said. The House has authority to
modify the regulation the time period to lay the order before the House is fixed and the regulation
cease to be effective unless it is confirmed by the House. Under this procedure, it is the obligation
of the government to bring forward a resolution to confirm the regulations. The government must
find time to discuss the regulations in the House, if not passed the regulations automatically came
to an end. .