DIPLOMA IN PUBLIC ADMINISTRATION

AM110

ADMINISTRATIVE LAW
LAW309

GROUP LAW ASSIGNMENT: QUESTION 1 & 2

PREPARED BY:

NAME STUDENT I.D.

DARREN NAZARENE DONALD LESON 2021115907
MOHD FAZRI BIN BANJAR 2021107365
HASSAN BASRI BIN WAHI 2021111279
KHAIRULANWAR BIN MOHAMAD KEEFLI 2021107961

CLASS/GROUP:
LAW299G3 GROUP 5

PREPARED FOR:
MR MUHAMMAD IZWAN IKHSAN

DATE OF SUBMISSION:
14th OF MAY 2023
 CONTENTS
Page
ASSIGNMENT QUESTION (QUESTION 1) ………………………………………. 1
ANSWER QUESTION 1…………...…………………………………………………. 2-3
ASSIGNMENT QUESTION (QUESTION 2)……………………………………….. 4
ANSWER QUESTION 2) ………………..…………………………………………… 5-6
REFERENCES ………………………………………………………………………... 7
QUESTION 1
Under section 11 of the Private Hospitals Act 2018 (fictitious), the Minister of Health is empowered to make
regulations as may be necessary or expedient for giving full effect to the provisions of the Act, including the
power to prescribe forms, fees, and records for the purpose of the Act. Section 13 of the Act requires the Minister
to consult with the Medical Council before approving any application to operate private hospitals.

Pursuant to the Act, the Minister of Health made the Private Hospital Regulations 2023 (fictitious) which contain,
inter alia, the following:
Regulation 4: The fees for private hospital new license and annual renewal of license shall be
provided under the Second Schedule of the Regulations:

Category Fee (RM)

Hospital with 10 beds or less RM500
Hospital with 11 to 20 beds RM700
Hospital with 21 beds of more RM1000

Regulation 12: The Minister may impose any conditions that he thinks fit and such decisions are final and cannot
be appealed.
Azmeer Azman is interested to establish a new private hospital, Gorgon Hospital at Kota Kinabalu Sabah and is
not satisfied with the regulations. He also found out that the regulations were enforced in February 2023 without
any consultation with the Medical Council.
Advise Azmeer Azman.
[20 MARKS]

1
ANSWER QUESTION (1)

ISSUE

The issue that arises in this case is whether the applicant can challenge the validity of the regulations made

under the Private Hospitals Act 2018 (fictitious) under the grounds of procedural and extended ultra vires.

LAW & APPLICATION

Section 3 of the Interpretations Act 1948/1967 defines “subsidiary legislation” as “any proclamation, rule,

regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment, or other lawful

authority and giving legislative effect.” In this case, the Private Hospitals Act 2018 is the parent Act while the

regulations made by the Minister of Health is the subsidiary legislation. The validity of subsidiary legislation may

be challenged on the grounds which are substantive, procedural and extended ultra vires. As far as the question

is concerned, procedural and extended has occurred in this situation. Procedural ultra vires may be defined as

the processes of making the subsidiary legislation and the administrative authority must comply with the

procedures laid down by the parent Act. The ground for procedural ultra vires that are related to the question is

mandatory consultation. Mandatory consultation defines as if the Act requires mandatory consultation with

certain bodies as procedures in making the subsidiary legislation thus failure to conduct the consultation will

render the subsidiary legislation ultra vires. As illustrated in the case of Agricultural, Horticultural & Forestry

Industry Training Board v Aylesbury Mushrooms [1972], the court held that the consultation is only an invitation,

in a form of advice thus the Secretary of State could not proceed without consulting the representatives from the

mushroom industry. Next, extended ultra vires can be defined as to a situation where a subsidiary legislation

can still be considered ultra vires even though the procedures were followed thoroughly and within the scope of

powers bestowed on the authority who is responsible for making. Exclusion of courts or Ouster Clause is the

ground that are related to question. Naturally, a subsidiary legislation cannot or must not exclude the jurisdictions

of the courts unless it is provided by the parent Act. As illustrated in the case of Rovin Joty Kodeeswaran v.

Lembaga Pencegah Jenayah & Ors and Other Appeals [2021], the court held that Section 15B of the Prevention

of Crime Act are unconstitutional as it is inconsistent with Article 4(1) Federal Constitution.

In applying this principle to the above question, Azmeer Azman is interested to establish a new private hospital

and not satisfied with the regulations, regulation 4 and regulation 12 that were enforced in February 2023 without

any consultation with the Medical Council. Regulation 4, the fees for private hospital new license and annual

2
renewal of license shall be provided under Second Schedule of the Regulation. This regulation does not follow

the provision of procedural ultra vires because the fee for the private hospital new license and annual renewal

according to the number of beds in the hospital, the fee gets higher if the number of beds increase. This

regulation is related with mandatory consultation because the Minister of Health set the amount of the fee based

on quantity of bed in the hospital in and it’s considered invalid because the mandatory need to consultation with

certain bodies, the Minister didn’t do consultation with Medical Council. For regulation 12, the Minister may

impose any condition that he think fit and such decision are final and cannot be appeal. This regulation is also

invalid because in the question above state, the decision is made on his own. Extended ultra vires has related

with the regulation 12 is ouster clause because the decision was made by the Minister shall be final. But, the

regulation has been made still didn’t consultation with Medical Council. So, both of the regulation that Minister

of Health made is invalid.

CONCLUSION

To sum up, Azmeer Azman may challenge the validity of the regulation because both regulation are based on

procedural and extended ultra vires. The regulation was enforced without any consultation with Medical Council.

The court may declare the regulation as invalid.

3
QUESTION 2

Under section 25 of the Pineapple Industry Act 2010 (fictitious), the Pineapple Industry Board is empowered to
make regulations for carrying out the purposes of the Act. Section 29 of the Act requires the draft of the
regulations to be tabled in both Houses of the Parliament before it can take effect.

Pursuant to the Act, the Minister of Agriculture made regulations, inter alia, regulation 12 which provides that:

“To be registered as a pineapple farmer, the applicant must possess a degree qualification
in agriculture related course from any Malaysian university.”

The said regulations were tabled in Dewan Rakyat on 13 January 2023, and were subsequently enforced on 1
March 2023.

Suhaimi Sopian, a 40-year-old pineapple farmer, with SPM qualification, is dissatisfied with the regulations.

Advise him whether he can challenge the validity of the said regulations.

[20 MARKS]

4
ANSWER QUESTION (2)

ISSUE

The issue is whether Suhaimi Sufian can challenge the validity of the regulation made by the Minister of

Agriculture under the Substantive Ultra Vires.

LAW & APPLICATION

The doctrine of substantive ultra vires refers to the scope, extent and range of power conferred by the statute to

make subsidiary legislation. Legislative power belongs to the Parliament and other agency may only exercise

power within the limits conferred by the Parliament. The test in determining the validity of a subsidiary legislation

based on substantive ultra vires doctrine. There are three grounds for substantive ultra vires which are Parent

Act is unconstitutional, Subsidiary legislation is unconstitutional and Subsidiary legislation is ultra vires the

Parent Act. When subsidiary legislation is ultra vires with the parent act, it means the subsidiary legislation is

inconsistent with parent Act. This covers situation where the subsidiary legislation was made beyond the power

conferred by the Parent Act. Section 23(1) Interpretations Act 1948 & 1967 any subsidiary legislation, which is

inconsistent with an Act of Parliament, shall be void to the extent of inconsistency. Subsidiary legislation must

be parallel to the parent act and must operate within the context of the parent act and should not be broader

than the legal provisions in the parent act that enable it. This principle of general statutory interpretation is

provided for in section 23 of the Interpretation Acts 1948 and 1967. There are several ways to the validity on the

grounds of inconsistency which are what was the power delegated, what was in fact done by the authority and

whether the subsidiary legislation complies with the description of the parent Act. Majlis Agama Islam Wilayah

Persekutuan v Victoria Jayaseele Martin and another appeal [2016] 2 MLJ 309. Victoria Jayaseele Martin ('the

respondent') is an advocate and solicitor of the High Court of Malaya and holds a Diploma in Syariah Law and

Practice ('DAUS') awarded by the International Islamic University of Malaysia. Federal Territory Islamic Religious

Council v Victoria Jayaseele Martin and another appeal [2016] 2 MLJ 309. Section 59. Syarie Lawyer (1) Subject

to subsection (2), the Council may accept any person who has sufficient knowledge of Hukum Syarak to be a

Syarie Lawyer to represent the parties in any proceedings in the Syariah Court. the respondent was not accepted

as a syariah lawyer on the grounds that he was not a Muslim under rule 10 of the 1993 Rules of Syariah Lawyers,

it is a requirement that the applicant applying to be accepted as a syariah lawyer is a Muslim. Rule 10 is clearly

5
ultra vires its parent law Section 59, because it has exceeded the limits set by the Act and is inconsistent. By

accepting only Muslims as syariah lawyers.

In applying this principle to the above question, Suhaimi Sopian, a 40-year-old pineapple farmer, with SPM

qualification, is dissatisfied with the regulation 12 made by the Minister of agriculture which provides that to be

registered as a pineapple farmer, the applicant must possess a degree qualification in agriculture related course

from any Malaysian university which caused Suhaimi Sopian to be disqualified from meeting the requirements.

Under section 25 of the Pineapple Industry Act 2010 (fictitious), the Pineapple Industry Board is empowered to

make regulations for carrying out the purposes of the Act. Section 29 of the Act requires the draft of the

regulations to be tabled in both Houses of the Parliament before it can take effect. The said regulations were

tabled only in Dewan Rakyat on 13 January 2023, and were subsequently enforced on 1 March 2023. The

minister of agriculture tabled the regulation only in the Dewan Rakyat but not in the Dewan Negara as stipulated

by Section 29. Therefore, the validity of the said regulation is inconsistent with parent Act and void. Federal

Territory Islamic Religious Council v Victoria Jayaseele Martin and another appeal [2016] 2 MLJ 309. Victoria

Jayaseele Martin ('respondent') is an advocate and solicitor of the High Court of Malaya and holds a Diploma in

Syariah Law and Practice (' DAUS ') awarded by the International Islamic University of Malaysia. Federal

Territories Islamic Religious Council v. Victoria Jayaseele Martin and another appeal [2016] 2 MLJ 309. Section

59. Syarie Lawyers (1) Subject to subsection (2), the Council may accept any person who has sufficient

knowledge of Hukum Syarak to become a Syarie Lawyer to represent the parties in any proceedings in the

Syariah Court. the respondent was not accepted as a syarie lawyer on the grounds that he is not a Muslim under

rule 10 of the 1993 Syarie Lawyer Rules, it is a condition that the applicant applying to be accepted as a syarie

lawyer is a Muslim. Regulation 10 is clearly ultra vires its parent law Section 59, as it has exceeded the limits

set by the Act and is inconsistent. By only accepting Muslims as syarie lawyers. Subsidiary legislation does not

comply with the description of the parent Act which will cause the regulations made to be null and void.

CONCLUSION

As a conclusion, Suhaimi Sopian may challenge the validity of the regulation based on Pineapple Industry Act

2010 on the ground of substantive ultra vires due to inconsistency with parent act. The court may declare the

regulations as invalid/void.

6
REFERENCES

Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors and other appeals. (n.d.).
https://www.elaw.my/JE/01/JE_2021_17.html

(2022, February 23). Retrieved May 13, 2023, from https://advance-lexis-

com.ezaccess.library.uitm.edu.my/document/MAJLISAGAMAISLAMWILAYAHPERSEKUTUANvVICTORIAJA
YASEELEMARTINANDANOTHERAPPEAL[2016]2MLJ309.(n.d.).