Discuss the various methods of controlling subsidiary legislation.

In your opinion, are these methods sufficient to prevent the abuse

of legislative powers?

Introduction
Subsidiary legislation is an indispensable tool of modern government but it has raised
widespread concern. This is because subsidiary legislation is essentially legislation made by
the executive, and executive law-making is inconsistence with the separation of powers
doctrine. This 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 1 Moreover, such law
making by administrators who are neither elected nor directly accountable to the legislature
or the public is vulnerable to abuse, for example, lack of prior discussion and consultation
and excess of the power delegated or sub-delegation to the other persons or bodies where the
legislature has not clearly identified the recipient of the delegated power. Recognition of the
need to protect the public from such abuse necessitates controls over subsidiary legislation.

Judicial Review
Judicial control or review is the most important of the controls in Malaysia, the
foundations for such review lie in ss 23 (1) and 87 (d) of the Interpretation Acts 1948 and
1967 which, in effect, lay down the principle that any subsidiary legislation which is
inconsistent with an Act of Parliament or State Enactment (including the enabling statute)
shall be void to the extent of the inconsistency.
The courts have control over subsidiary legislation through judicial review. When in action, a
defence is raised by the accused defendant or a challenge is made by an aggrieved person
concerning the validity of the subsidiary legislation, the courts may declared the exercise of
the delegated power and the subsidiary legislation void under the ultra vires doctrine on
either one of the two grounds which is substantive or procedural.

1 Wu Min Aun, an introduction to the Malaysian Legal System, pp 64

Several local cases may be taken to illustrate the principle of Ultra vires. In Low Leng
Huat v P.P.2, the appellant was convicted by the magistrate on the charge of failing to comply
with a notice directing him to enlarge the open area of certain of his houses. This notice was
issued by the Sanitary Board as conferred by the Sanitary Board Enactment, 1907. It was held
that the bylaw was ultra vires and therefore, void.
In Ghazali v. P.P.3, the appellant was charged with breach of a condition attached to
his license which is prohibited his taxi from being driven by a person other than a Malay.
This condition was imposed as a result of a general directive issued by the Minister of
Transport under powers conferred by certain provisions of the Road Traffic Ordinace, 1958.
The Court allowed the appeal on the ground that the board was acting ultra vires by imposing
such a condition .H.T. ONG J. (as he then was) said as follows:
It is clear law that no rule, regulation or by-law made under statutory powers must go beyond or be
repugnant to the enactment under which they are made. It is also trite law that the validity of delegated
legislation as a general rule can be canvassed by the Courts, and that in the absence of express statutory
provision to the contrary, the Courts may inquire wether the rule making power has been exercised in
accordance with the provisions of the statute by which it is created. 4

In substantive ultra vires, the recipient of the delegated power has made law beyond the
limits of the power conferred either in terms of the subject matter, purposes, or circumstances
authorized by the enabling statute, For example, in Major Phang Yat Foo v Brigadier
General Dato Yahya Bin Yusof & Anor 5, the respondent the convening authority of a court
martial, purporting to act under r 63 (3) of the Armed forces (Court Martial) Rules 1976,
disapproved of, and dissolved, the decision of the court martial and made an order for fresh
court martial to be convened and for the applicant to be retried on the same charges.
In an application by the applicant for an order of certiorari to quash the respondents
decisions and an order prohibiting the respondent from thus proceeding, the High Court ruled
2 [1917] F.M.S.L.R. 162, C.A.
3 [1964] M.L.J. 156
4 Ibid., p. 158; see also Krishnasamy & Ors. V Madden (1947) M.L.J 182; Chua
Bak Heng v. R. (1957) M.L.J. 247; Government of the Federation of Malaya v.
Francis Koran (1961) M.L.J. 227.
5 [1992] 2 MLJ 252

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 119 of the Armed Forces Act
1972 (Act77). That section authorizes the Minister of Defence to make only rules of
procedure relating to investigation and trial of offences by court martial
In procedural ultra vires, the recipient of the delegated power has failed to follow a
mandatory procedure laid down in the enabling statute, for example, to give notice to affected
parties to allow them to make objections before granting planning permission. In Datin
Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lupur6 concerning a developing order
made under s 22 of the Federal Territory (Planning) Act 1982 (Act 267), granting planning
permission for the building of two blocks of apartments on a piece of land in an exclusive
residential are, the Supreme Court quashed the order as on the facts, no notice of the
application for planning permission as required under r 5 of the Planning (Development)
Rules of 1970 ( which continues in force as if made under the 1982 Act) had been sent to the
appellant. A notice had been sent to her but, due to the negligence of the officer concerned, to
the wrong address.
We have seen that subsidiary legislation made in contravention of either a parent Act
or the Constitution is void, an exception to this rule is the proclamation of emergency under
Article 150 of the Federal Constitution7. It was stated by the Federal Court that subsidiary
legislation may still be valid even if it is inconsistent with the Constitution.
This can be seen in the case of Eng Keock Cheng v. P.P.,8 In the case of Eng Keock
Cheng v. Public Prosecutor, the Yang Di-Pertuan Agong proclaimed under Article 150 the
existence of a grave emergency threatening the security of the Federation. Parliament then
passed the Emergency (Essential Powers) Act 1964, empowering the Yang Di-Pertuan Agong
to make regulations to secure public safety. His Majesty made the Emergency (Criminal
Trials) Regulation 1964; regulation 4 & 5 provide that where a person is charged with any
offence and the Public Prosecutor certifies in writing that the case is a proper one for trial
under these regulations, the case should not be tried by a jury or by a Judge with the aid of
6 [1992] 2 MLJ 393
7 Wu Min Aun, an introduction to the Malaysian Legal System, pp 71
8 [1996] I M.L.J. 18

assessors as required by the Criminal Code, but shall be tried by a Judge without the aid of
assessors and that the case shall be tried without the formality of a preliminary enquiry in the
magistrates court. Eng Keock Cheng was tried in accordance with the procedure prescribed
by the regulations on a charge under the ISA 1960, and he was sentenced to death. On appeal
it was argued that the authority under which these regulations were made could not authorize
regulations inconsistent with the constitution and these regulations did infringe Article 8
which declares that all persons are equal before the law and entitled the protection of the law.
The Federal Court rejected the argument and held that the true effect of Article 150 was that
subject to certain exceptions set out therein, Parliament had, during an emergency, power to
legislate on any subject and to any effect, even if inconsistencies with Article of the
constitution (including the provisions for fundamental liberties) were involved and that
necessarily included authority to delegate part of that power to legislate to some other
authority, and that therefore the Emergency (Essential Powers) Act 1964, was not beyond the
power of Parliament to enact, and that he Emergency (Criminal Trials) Regulations 1964
made under the Act were valid.

Legislative Control
The parent Act which authorises the making of subsidiary legislation is enacted by the
legislature.9 There are several means by which the legislature exercises control over
subsidiary legislation. The legislature which grants the delegated power by an enabling
statute may repeal the statute or revoke or vary the delegated powers.
An enabling statute may require legislation made under it to be laid before the legislature,
either for the legislatures information or confirmation. In Malaysia, laying provisions are
not very common. Examples of a simple laying formula are to be found in s 83)3) of the
Trade Marks Act 1976 (Act 175), which requires subsidiary legislation made thereunder to be
laid before the both Dewan, and s 58 (4), Trade Unions Act 1959 (Act 262) (Revised 1981),
which requires the subsidiary legislation to be laid before the Dewan Rakyat only. The laying
procedure for confirmation by the legislature may be by way of a negative or affirmative
resolution. In the negative resolution procedure, the subsidiary legislation is effective unless
the legislature passes a resolution annulling it. An example is contained in s 19(3) of the
Control of Imported Publications Act 1958 (Act No 44 of 1958). The alternative, the
affirmative resolution procedure, is the more effective method of control: the subsidiary
9 Wu Min Aun, Introduction to the Malaysia Legal System pp.67

legislation ceases to have effect unless, within the prescribed period, the legislature passes a
resolution affirming it. Section 15(1) of the Sales Tax Act 1972 (Act 64) bears an example.
Another possible method of control practised in England is to establish Scrutiny
Committees which keep under review all delegated legislation report their findings to
Parliament. So far, the Malaysian Parliament has not developed any such mechanism, this
leaving a gap in the legislative control of subsidiary legislation. Two other controls are
consultation and publication.

Consultation and Publication

In England, prior consultation with organised interest groups and advisory is
sometime done before regulations are made. This practice is well established. A minister is
unlikely to make any regulations without giving the people who will be affected an
opportunity of discussing the proposal. Some enabling Acts make it mandatory so that failure
to consult the parties named may render the delegated legislation void as being procedurally
ultra vires.10 In Malaysia, there is no general statutory provision making prior consultation a
formal requirement for the making of subsidiary legislation. Particular enabling Acts may
make prior consultation mandatory, but these are few in number. An example is s 36 (1) of
the Financial Procedure Act 1957 (Act 61) (Revised 1972), which authorizes by the Yang diPertuan Agung to make regulations after consulting the Commodities Trading Commission.
Though prior consultation as a legal requirement has not yet developed, consultation as a
matter of administrative practice does take place on a discretionary and ad hoc basis11.
Likewise, there is no general statutory provision requiring the publication of
subsidiary legislation in Malaysia. Particular enabling statutes may require publication
though this is not the norm. Where an enabling statue makes publication mandatory, noncompliance renders the subsidiary legislation void. At the federal level, subsidiary legislation
which is required to be published is published in Malay and English in two parts of the
Gazette; Tambahan Perundangan A (Legislative Supplement A) which contains all
proclamations, rules, regulations, orders and by-laws; and Tambahan Perundangan B
(Legislative Supplement B) which contains all other subsidiary legislation.
10 Wu Min Aun, Introduction to the Malaysia Legal System pp.66
11 Jain, Administrative Law of Malaysia and Singapore, pp 164-5

The subsidiary legislation is serially numbered with either the prefix PU (A) or PU
(B), depending on the part of the Gazette it is published in12.
Under s 19 (1) of the Interpretation Acts 1948 and 1967, subsidiary legislation
commences on the date prescribed, or where no date is prescribed, the date immediately
following the date of its publication in the Gazette Supplement. Under s 19(2), the subsidiary
legislation shall come into operation immediately on the expiration of the day [its]
proceeding commencement. The implications arising from these provisions appear to be,
where no date is prescribed for the commencement of the subsidiary legislation, publication
in the Gazette Supplement is essential for its effectuation, where a date is prescribed for its
commencement, publication is not a condition for its commencement as under s 19(1), the
date prescribed shall be the date of its commencement and the authority making subsidiary
legislation may bring it into immediate effect as soon as it is made without any publication.
The last implication, if correct leads to harsh consequences. Mitigating it is the
proviso to s 20, which states that no person is to be liable to any penalty in respect of any act
done before the date on which the subsidiary legislation was published, while this proviso
protects a person from criminal liability, it does not protect him from civil liability, for
violation of an unpublished regulation13.

Conclusion
In my opinion, these methods are sufficient in preventing the abuse of legislative
powers. Taking the words from Hashim Yeop Sani J (as he then was) in S Kulasingam V
Commisioner of Land, Federal Territory.14
There is nothing to prevent Parliament from delegating power to legislate on minor and administrative matters
and for this very reason, we have in addition to statutes, innumerable subordinate or subsidiary legislation
having the force of law. Without these subordinate or subsidiary legislation, the Government machinery will not
be able to function effectively.

12 PU stands for Pemberitahuan Undangan. Before 1966 the abbreviation LN, which stands for
legislative Notification, was used. Fom 1966 to 1968 there was only one series of Pemberitahuan
Undangan. It was only from 1 January 1969 that two series A and B were published.
13 Jain, Administrative Law of Malaysia and Singapore, pp 154-5.
14 [1982] 1 MLJ 204, 209

Moreover, such law making are in the hands of the administrators who are elected and
directly accountable to the legislature. It is not in the decisions of the public where it is
vulnerable to abuse, for example, theres no need for prior discussion and consultation and
excess of the power delegated or sub-delegation to the other persons or bodies where the
legislature has not clearly identified the recipient of the delegated power as there is no
general statutory provision making prior consultation a formal requirement for the making of
subsidiary legislation. It is also important to mention that subsidiary legislation saves time, as
legislature only deals with broad principles of the law and details are left to the relevant
authority. It is also flexible, where subsidiary legislation can be brought in immediately to
control a situation without the need to undergo the parliamentary procedure.