Sharifah Shuanah (2012) recognised that subsidiary legislation (thereafter SL) is a

part of Malaysia's legal sources that supplements the legislative function of Malaysia's legal
system. However, the statement state that SL should be abolished due to its challenging
control and violating the separation of power. This essay will delve into the concept of SL
and weigh the benefits and drawbacks of this form of legislation and conclude whether SL
should be abolished or not.
According to s3 Interpretation Act (IA) 1948 & 1967, SL refers to the body rules and
regulations created by authorities or entities to whom the power has been delegated by the
primary legislation (parent act). Mohd Izzat (2018) agreed with its definition and listed the
criteria for binding SL, which include being appointed by the legislative power, delegation
power being made through the parent act and containing legislative effect. In contrast, those
that do not contain legislative effect are categorized as administrative order. For instance,
Parliament and state assemblies can delegate legislative power to the YDPA, ministry, or
local authority. The importance of SL in Malaysia by delegating power to legislate on minor
and administrative matters can be seen in S Kulaisngam v Commissioner of Land 1982.
Thus, SL plays a vital role in Malaysia’s legal system by enabling more effective and
responsive law-making for minor and administrative matters.
Aside from that, SL may lighten the burden on legislative bodies by saving the time of
the parliaments. Parliament may only focus on general legal principles about specific issues,
whereas delegated authority may investigate specific issues. This allows experts in specific
departments to draft rules and regulations in their area of expertise rather than having laws
created by parliament members who lack expertise and come from different backgrounds and
levels of knowledge. Muhammad Syahlan Shafie (2018) stated that by applying this
practice, delegated authorities could work better than the lay members of the legislature.
While SL can provide benefits such as expertise and efficiency, there is criticism arguing that
SL may result in the concentration of power by letting the executive branch make the law and
hence violating the separation of power. Therefore, SL can reduce the workload of parliament
by collaborating with other experts and may lead to a breach of the separation of power.
Moreover, SL allows for flexibility and efficiency in law-making, essential in a sudden
emergency. It is relatively easy to administer specific matters without undergoing the lengthy
parliamentary process and the need for constant amendments to primary legislation. Its
flexibility can help the government respond quickly to emergencies and society's rapidly
changing needs. For example, during the Covid-19 pandemic, the prime minister needed to
act quickly by creating new standard operating procedures (SOPs) to control the disease
outbreak, mainly by consulting with the Ministry of Health and the Ministry of Defence.
Once the regulations become outdated, the minister can rescind them quickly. Ensuring that
checks and balances exist is crucial to prevent the delegated authority from abusing power
during the flexibility and efficiency of SL benefits. However, the control mechanism did not
apply consistently and effectively, resulting in insufficient oversight and regulation. Hence,
the use of SL has proven to be a necessary and beneficial tool in the effective functioning of
the government. However, a lack of constantly applying control mechanisms will lead to
other ways of results.
To ensure that SL is in line with the doctrine of separation of power, there are ways to
control the SL. Firstly, judicial control is one of the ways to control the mechanism of SL,
and it is supported by Puttick & Keith (1988). In assessing the validity of SL, it is crucial to
consider the constitutionality of the parent act and the SL. SL will be considered invalid if the
parent act falls unconstitutional. As seen in Johnson Tan Han Seng v Public Prosecutor
1977, the time and change of the parent act rendered the SL void. Besides, circumstances
may arise when the parent act is constitutional, but the SL is deemed unconstitutional. As
illustrated in Osman v Public Prosecutor 1968, specific emergency regulations under the
Emergency (elemental powers) Act 1964 were questioned as infringing Art.8, and hence this
argument was rejected because, according to Art.150(6), emergency regulations could not be
held unconstitutional. These two cases also highlight inconsistencies in the legal system and
require clear guidelines to balance delegated powers and constitutional rights. Shortly, the
court will control the implementation of SL by considering the constitutionality of the parent
act and SL to prevent illegality.
Other than unconstitutional, substantive ultra vires is a challenge the court can bring in
when the SL exceeds the limits set by the parent act. For example, in the case of
McEldowney v Forde 1969, the court challenged the validity of SL on several grounds,
including the interpretation of the parent act and the SL, by examining the word used. It was
further affirmed in Wong Pot Heng v Kerajaan Malaysia 1992, and Eusuff Chin J defined
it. Additionally, in Malaysia, according to section 25 IA, the SL generally will be considered
as it is made under “all powers thereunto enabling”. However, section 28 IA state that if the
parent act is repealed, the SL remains in effect until new legislation addressing the relevant
issues is enacted. For instance, in the case of Re Lee Kian Soo 1953, it was found that the
bye-law 13 was not consistent with paragraph 8(1)(b) of the Architect Ordinance 1941
(parent act) regarding the misconduct issues. This doctrine checks the exercise of delegated
powers and ensures that SL complies with the limits set by the parent act. Briefly, substantive
ultra vires is a challenge that the court could bring to determining the validity of SL when it
exceeds the scope of the parent act.
Moreover, if the delegated legislator fails to follow the proper procedures, it may result
in procedural ultra vires, rendering SL invalid. The court will determine the validity of SL by
examining whether the required procedural is mandatory or directory. For example, in Wong
Keng Sam v Pritam Singh Bar 1968, Wee Chong Jin CJ ruled that disobeying directory
procedural rules would lead to irregularity and not affect the validity of the SL. Conversely,
in Banwarilal Agarwalla v State of Bihar 1961, the court held that the SL is invalid because
the mandatory procedural norm requiring consultation with a specific body is not complied
with. This principle is helping to prevent potential abuse of power and uphold the rule of law.
Thus, a subsidiary legislator must follow the procedural guidelines to draft valid SL, which is
necessary and does not contain self-interest.
Secondly, consultation with affected parties is a method to regulate SL by allowing
authorities to ensure that the goals are achieved and not just for making a new law. For
example, in the UK, consultation sessions are common practice, although sometimes
informal. Thirdly, publishing SL in a gazette allows for public scrutiny to govern it.
Upholding the principle of the rule of law, as individuals cannot be punished for breaking
unknown laws, the SL is not gazetted and does not mention a specific enforcement date will
be invalid. Lastly, parliamentary control plays a significant role in supervising SL, given that
the legislative body can intervene when necessary. Accordingly, by adopting these measures,
SL can be effectively managed and aligned with the public interest to align with the
separation of power.
In conclusion, I did not agree that subsidiary legislation should be abolished. By
constantly using the methods of judicial review, consultation, publication and parliamentary
control, we can prevent the violation of separation of power and ensuring transparency and
accountability in the law-making process.