INTRODUCTION
Federat ederation ion of Malays Malaysia, ia, which which applie applies s a system system of parlia parliamen mentar tary y democracy, consists of thirteen states. Article 4 (1) of the Malaysia Act 1963 19 63 stat states es that that the the Feder ederal al Cons Consti tit tti tion on is the the s spr prem eme e law law of the the federation federation..
As pro!ided pro!ided "y Article 3# (1) FC, the $in% (&an% (&an% 'ierta 'iertan n
A%on%, &'A) &'A) acts as the *ead of the Federation Federation and is assisted "y three main "odies of the %o!ernment, which are named as the +ecti!e, the -e%is e%isla lati ti!e !e,, and and the the di dici ciar ary y. All All of them them ha!e ha!e thei theirr own own role ole and and responsi"ility, howe!er, s"/ects of the Constittion, in which their powers were deri!ed from it. 0t can "e said that they do not clash with each other "ecase each "ody are o"strcted from inencin% the decision ta2en "y another "ody. his is done so that the cort is not afraid of carryin% ot dties that can aect ad!ersely the process of administerin% /stice. his practice also "races society5s condence in the "ody as a netral instittion.1 7riey, the eecti!e "ody is in char%e of matters of %o!ernin% and administration, either at the federal or state le!el. his "ody is responsi"le for implementin% the laws that ha!e "een passed "y the le%islati!e "ody and and act act as an ad!i ad!iso sory ry "ody "ody to the the &' &'A. Amon Amon% % mem"e em"ers rs of the the eec eect ti! i!e e "ody "ody are are the the rim rime e Mini Minist ster er hims himsel elff and and mini minist ster ers s of the the %o!ernment. Meanwhile, the le%islati!e5s fnction is to enact, amend and pass laws. 0t is a mst for the laws drawn p "y the le%islati!e "ody, called as 1Mahyddin 'ad et. al., 0ntrodction o -aw, CF8 00M etalin% aya
the 7ill, to ha!e the consent of the &'A (for the Federation) and the 8ltan (for the 8tate) within a stiplated time "efore it can "e enforced.
he diciary, on the other hand, is responsi"le for 2eepin% eyes on the eecti!e so that it does not a"se its power in creatin% p laws which may pro"a"ly %o a%ainst the pro!isions in the Federal Constittion itself. *ence, the /diciary can determine whether the laws are enforcea"le or not. Apart from that, this "ody also has the role in pholdin% /stice where it /d%es all oences, imposes pnishment and settles disptes "etween parties in the Federation.
SUBSIDIARY LEGISLATION
he le%islation is the law enacted "y the le%islatre, while that made thro%h powers dele%ated "y the le%islatre to a "ody or person !ia an ena"lin% or parent statteis called dele%ated or s"sidiary le%islation. 8ection 3 of the 0nterpretation Act 194: ; 196< (Act 3::) # denes sch le%islation asany proclamation, rle, re%lation, order, notication, "ylaw or other instrment made nder any Act, =rdinance or other lawfl athority and ha!in% le%islati!e eect. 8imply, s"sidiary le%islation is a piece of written law that acts as enhancement or spplement to the parent Act of arliament.
#(Consolidated and >e!ised 19:9)
he main factor for the s"sidiary le%islation"ecome desira"le and necessary are that modern %o!ernments are mltifnctional and modern le%islatres wor2 nder se!ere limitations.As the le%islatres pro!ide "asic law, so s"sidiary le%islation is !ery !ital to %o!erns daytoday matters "ecase its fnction is to pro!ide a detailed discssion on specic matters. =ne of the important reasons why the le%islatre has to dele%ate its lawma2in% power is that the le%islatre has ins?cient time to enact all le%islation and %o precisely in e!ery aspect as re@ired in a modern society. 7y allowin% the %o!ernment, ministers or other concerned athority to ha!e the power to re%late administrati!e details "y means of dele%ated5, this help to economise parliamentary time and redce pressre on them in ma2in% nonessential law. Moreo!er, mch modern le%islation is hi%hly deal with technical and scientic matters, for eample, on en!ironmental safety, indstrial pro"lems and health re%lations, amon% others. 7y ha!in% s"sidiary le%islation, the technical matters can "e handled "y the eperts or administrators on the /o" who are well !ersed with the technicalities in!ol!ed somehow the arliament can focs on the main areas of principles only.3 7esides,
Bthe
parliamentary
is
not
continosly
in
session
thro%hot the year and its le%islati!e procedres are %enerally @ite slow and comple DAli, #E1G. *ence, in circmstances where the laws need to 3Han Arfah *amIah, A First Look At The Malaysian Legal System (1st +dition), (=ford Fa/ar, #EE9), p. 9
"e made @ic2ly, sch as in an emer%ency, dele%ation necessarily needs to "e done. herefore "y ha!in% s"sidiary le%islation, it ena"les the rele!ant athority to respond to new or nepected sitations "y amendin% or de!elopin% stattory instrments.4 -i2ewise, s"sidiary le%islation is ei"le and a"le to cope with the crrent re@irement in sitations sch as crrency control, import dties, and so forth. his power is conferred "y s ## of the 0nterpretation Acts 194: and 196<, where it pro!ides that s"sidiary le%islation may at any time "e amended, !aried, added to or re!o2ed "y the same athority and it the same manner "y and in which it was made5.
CONTROLS OVER SUBSIDIARY LEGISLATION
he
s"sidiary
le%islation
is
a
momentos
tool
of
modern
%o!ernment. *owe!er, it has raised widespread concern. his is "ecase the practice of dele%atin% power to another "ody to ma2e s"sidiary le%islation has se!eral defects. First is the dele%ation of power to ma2e the dele%ated le%islation may lead to a"se of power. For instance, lac2 of prior discssion and consltation, and ecess of the power dele%ated or s"dele%ation to other persons or "odies where the le%islatre has not clearly identied the 4 Ash%har Ali Ali Mohamed, Malaysian Legal System (1st +dition), p. ##1 *amid "in 0"rahim and Jasser "in *amid, 9th Fe"rary 19:4 (Federal Constittion, 11th 8chedle), Malaysia -aw "lishers 8dn 7hd).
recipient of the dele%ated power.6 his is "ecase sch law may pro"a"ly "e made "y administrators who are neither elected nor directly acconta"le to the le%islatre or the p"lic. Also, the recipient of the dele%ated le%islation will tend to "e ultra vires, where it ma2es law "eyond the framewor2 pro!ided "y the parent act. he second defect is, s"sidiary le%islation is oendin% the doctrine of separation of power. his is "ecase s"sidiary le%islation is essentially le%islation
made
"y
the
eecti!e,
and
eecti!e
lawma2in%
is
inconsistent with the separation of power notion where only the le%islatre has the power to ma2e law and there cannot "e any interference to the le%islati!e to ma2e law.< he third defect is the pro"lem in apprehendin% the s"sidiary le%islation. his refers to sitations when the law is enacted "y the epert person in that particlar eld. 0t will "e di?clt for the layperson to nderstand the lan%a%e or terms of the law since it is @ite technical and re@ire ad!ance 2nowled%e in that area. herefore, there is a need for the controls and safe%ard to "e imposed pon s"sidiary le%islation in order for it "enets to "e flly tiliIed and its disad!anta%es to "e minimiIed. his can "e done either "y /dicial control or le%islati!e control. JUDICIAL CONTROL 60"id at 3
etrie!ed atKhttpKLLwww.slideshare.netLAhmadFaro@AmirLpastyears attempt#DAccessed 19 Jo!.#E16G.
0n this !iew, the focs is on /dicial control. Also 2nown as /dicial re!iew, it is the most important of the controls. his refers to the control of the corts o!er s"sidiary le%islation "y applyin% the doctrine of ultra vires when a defence is raised "y the accsed or a challen%e is made "y an a%%rie!ed person on the !alidity of s"sidiary le%islation.: he rle nder the doctrine of ultra vires is that no one may o!erstep the "ondaries of the power confer on him. he prpose of the /dicial re!iew /risdiction is to ensre that the indi!idal is %i!en fair treatment "y the athority in the eercise of its decision ma2in% power it is not part of the prpose of /dicial re!iew /risdiction to s"stitte the opinion of the /diciary for that of the athority constitted "y law to decide the matters in @estion.9 dicial re!iew within Malaysian contet has "een dened as the process "y which the *i%h Cort eercises its sper!isory /risdiction o!er the proceedin%s and decisions of inferior corts, tri"nals and other "odies or persons who carry ot @asi/dicial fnctions who are char%ed with the performance of p"lic acts and dties.1E
:0"id at 3, p. 6E 9Mo2htar, $. A. and Alias, 8. A. (#E11), he >ole =f dicial >e!iew in Malaysia as a ool of Chec2 and 7alance nder 'octrine of 8eparation of owers DonlineG Chapter #4, p. 14:.A!aila"le atK httpsKLL%ms1E1.les.wordpress.comL#E13LE#Lthe roleof/dicialre!iewinmalaysiaasatoolofchec2and"alancenderthe doctrineofseperationofpowers.pdf DAccessed 19 Jo!.#E16G. 1E Han AIlan Ahmad and Andri Aidham, Judicial Review Handbook (#nd +dition), (-eisJeis, #EE<) p. <6.
he *i%h Cort in Malaysia eercise /dicial re!iew nder the followin% %rondsK i.
nconstittionality
he /diciary can, "y !irte of Article 4(1) of the Federal Constittion, eercise
control
o!er
s"sidiary
le%islation
"y
determinin%
the
constittionality and if there is a need, declare in!alid either (1) the s"sidiary le%islation or (#) the parent Act itself. (1)8"sidiary le%islation is nconstittional For a s"sidiary le%islation to "e !alid, it mst "e intra vires the parent statte and the Federal Constittion. 0t cannot %oes "eyond the scope of the athority conferred "y the statte prsant to which it is made or in other words, ultra vires the constittion.For this prpose, /dicial re!iew on the s"sidiary le%islation can "e made "y !irte of 8ection #3(1) of the 0nterpretation Acts 194: ; 196< which stated that, BAny s"sidiary le%islation that is inconsistent with an Act (incldin% the ena"lin% statte) shall "e !oid to the etent of the inconsistency. he principle "ehind this %rond is that if the s"sidiary le%islation is contradicted with any constittional pro!isions, hence that s"sidiary le%islation can "e stro2ed down "y corts. he application of this %rond can "e seen in se!eral cases. For eample, in the case Nictoria ayasalee Martin ! Ma/lis A%ama 0slam Hilayah erse2tan ; Anor.11 he Cort of 11D#E13G 6 M- 646
Appeal held that r. 1E of the e%am 8yarie >les 1993, which pro!ides that a person may "e admitted as a peguam syarie if he is a Mslim had infrin%ed the s. 9(1) of the Administration of 0slamic -aw (Federal erritories) Act 1993 which does not limit the power of the Ma/lis to admit a person as a peguam syarie to Mslims only. he same decision in the Nictoria5s case was pheld in case of eh Chen% oh,1# where the ri!y Concil declared that the >e%lations 19<13 that was issed "y &'A nder =rdinance 1969,14 was ultra vires the Constittion hence !oid as per Article 1E(#)on the ar%ment that arliament had sat after the roclamation, ma2in% &'A to no lon%er possess power to ma2e essential le%islations ha!in% the force of law.*owe!er, in =oi $ean hon% ; Anor !. ,
1
it was held that s. :(1) of
the ar2s (Federal erritory) 7ylaws 19:1 which deals with prohi"itin% any person "eha!in% disorderly in the p"lic par2 of '7$- did not contrary to any of the ri%hts as enshrined in Arts. or : of the Constittion.16 pon the discssion a"o!e, the eecti!eness of this control mechanism can "e said to eist as cort may declared the concerned s"sidiary le%islation to "e !oid on the %rond that its contradictin% with any constittion5s pro!ision5, altho%h at the same time this power is 1#eh Chen% oh ! "lic rosector D19<9G # M- #3: 13+ssential (8ecrity Cases) >e%lations 19< 14+mer%ency (+ssential ower) =rdinance 1969 1D#EE6G 3 M- 3:9 160"id at 4, p. ##4
s"/ected to the certain special circmstances sch as proclamations issed drin% emer%ency with reference to the Article 1E (1) FC, which mentioned that B0f the &'A is satised that a %ra!e emer%ency eists where"y the secrity, or the economic life, or p"lic order in the Federation or any part thereof is threatened, he may isse a proclamation of emer%ency ma2in% therein a declaration to that eect. (#)arent Act is nconstittional 0t is important to loo2 atthe parent Act to ensre whether is constittional or not. his %rond is s"/ected to the /dicial re!iew as per nder Constittional -aw. he principle here is that if the parent act which dele%ated
le%islati!e
powers to the
athority
concerned
is itself
nconstittional, ths, any s"sidiary le%islation made prsant to the parent act shall "ecome !oid atomatically. 0n the case of "lic rosector ! $hon% en% $hen,1e%lations, 19< and the +ssential (8ecrity Cases) (Amendment) >e%lations19< was challen%ed "y the learned trial /d%e on the %rond that the >e%lations are inconsistent with certain pro!isions of the Federal Constittion and Clase. nfortnately, sch ar%ment was re/ected "y the Federal Cort where 8?an -.. and Han 8leiman F.. held that "y !irte of s"section (4) of section # of the +mer%ency (+ssential owers) =rdinance 1969, the re%lations were !alid notwithstandin% that they are inconsistent with the Constittion, "t in fact it had not "een shown that the re%lations were inconsistent with the 1< D19<6G # M- 166
Constittion.*ere, the eecti!eness of this control will hi%hly depend on the discreetness of the /d%es in "alancin% the ri%ht of an indi!idal and the p"lic interest as whole. ii
!ltra vires
his section is %oin% to present the doctrine of ultra vires. More specically, it is %oin% to discss s"stanti!e ultra vires and procedral ultra vires as two of other %ronds in which the hi%h cort in Malaysia eercises /dicial re!iew on s"sidiary le%islations. He ha!e noted a"o!e that the practice of %i!in% the power to another "ody O instead of the parliament to ma2e s"sidiary le%islation may lead to a"se. his doctrine of ultra vires is the "asic doctrine in administrati!e law. 0t en!isa%es that an athority can eercise only so mch power as is conferred on it "y law. An action of the athority is intra vires when it falls within the limits of the power conferred on it "t ltra !ires if it %oes otside this limit.1: 0n other words, it implies that discretionary powers mst "e eercised for the prpose for which they were %ranted. At the inception, the application of the doctrine was desi%ned eclsi!ely to ensre that administrati!e athorities do not eceed or a"se their le%al powers. 0f they did so, the corts declared sch acts ultra vires and therefore, in!alid.19
1:P'octrine =f 8"stanti!e ltra Nires Constittional -aw +ssay.P $essays.com. 11 #E13. All Answers -td. 1# #E16 QhttpKLLwww.lawteacher.netLfreelaw essaysLadministrati!elawLdoctrineofs"stanti!eltra!iresconstittionallaw essay.phpRcrefS1T.
Administrati!e power is %enerally deri!ed from le%islation. -e%islation confers power on administrati!e athorities for specied prposes, sometimes, layin% down the procedre to "e followed in respect of eercise of sch power. More often than not, this le%islation stiplates the limits of sch conferred power. 0f an administrati!e athority acts withot power, in ecess of power or a"ses power, sch acts are lia"le to "e rendered in!alid on the %rond of s"stanti!e ultra vires. Hhen an administrati!e athority acts in contra!ention of mandatory rles stiplated in the le%islation or does not comply with the principles of natral /stice, sch acts are lia"le to "e rendered in!alid on the %rond of procedral ultra vires.#E herefore, the doctrine of ultra vires has two aspects, which are s"stanti!e ultra vires and procedral ultra vires hese two aspects are %oin% to "e discssed in details in the followin% lines with related decided cases. (1)8"stanti!e ultra vires He ha!e noted a"o!e that if an administrati!e athority acts withot power, in ecess of power or a"ses power, sch acts are lia"le to "e rendered in!alid
on the %rond of
s"stanti!e
ltra
!ires.
hs,
s"stanti!e ltra !ires means that the rle ma2in% athority has no s"stanti!e power nder the empowerin% act to ma2e rles in @estion. 0t
19Chamila 8 ala%ala, B*+ 8C=+ =F *+ '=C>0J+ =F -+U00MA+ +V+CA0=J A8 A U>=J' =F '0C0A- >+N0+H =F A'M0J08>A0N+ AC0=J, =>, n.d., 1E. #Ei"id
refers to the scope, etent and ran%e of power conferred "y the parent statte to ma2e dele%ated le%islation.#1 he principle nderlyin% is that s"ordinate a%encies ha!e no power to le%islate on any matter more than the scope or power that had "een conferred towards them "y the arliament. *ere, the cort is said to ha!e power to declare sch ecessi!e of power on part of the s"ordinate a%encies to "e in!alid, ths ma2in% the law made "y them also to "e !oid. A typical case of s"stanti!e ltra !ires is of Arnamari ! -em"a%a##where in #EE< the Uo!ernment was informed a"ot the losses sered "y the local millers and pac2ers of coo2in% oil as a conse@ence of a com"ined eect of risin% prices of crde oil and the ceilin% price imposed "y the Ministry of 'omestic, rade and Consmer Aairs on the sale of the coo2in% oil to local consmers. o miti%ate the losses sered "y the millers and pac2ers of coo2in% oil, the Uo!ernment reacti!ated the Coo2in% =il 8"sidy 8cheme (C=88). A similar scheme was sccessflly introdced in year 1999 and #EE4. 0n order to nance the C=88, the Minister, after consltation with the Ministry of Finance, issed the #EE< =rder. 0t was made nder s. 3 of the Malaysian alm =il 7oard Act 199: (Pthe ActP).
0t was held that the
Malaysian palm oil "oard #EE< was ultra vires s.33 of the Malaysian palm oil AC 199:. #1P'octrine =f 8"stanti!e ltra Nires Constittional -aw +ssay.P $essays.com. 11 #E13. All Answers -td. 1# #E16 QhttpKLLwww.lawteacher.netLfreelaw essaysLadministrati!elawLdoctrineofs"stanti!eltra!iresconstittionallaw essay.phpRcrefS1T. ## D#E1G < C- 149
Another case is Ma/or han% ! 7ri%adier eneral 'ato5 &ahya "in &sof #3where the respondent, the con!enin% athority of a cort martial, prportin% to act nder r 63(3) of the Armed Forces (Cort Martial) >les 19<6, disappro!ed of, and dissol!ed, the decision of cort martial and made an order for a fresh trial to "e con!ened and for the applicant for an order to "e retried on the same char%es. 0n an application "y the applicant for an order of certiorari to @ash the respondent5s decision and an order prohi"itin% respondent from ths proceedin%, the *i%h Cort rled that r 63(3) was !oid to the etent that it confers /risdiction on the con!enin% athority to appro!e or disappro!e a decision of a cort martial contrary to s.119 of the Armed Forces Act 19<#. hat section athoriIes the Minister of 'efence to ma2e only rles of procedre relatin% to in!esti%ation and trial of oences "y cort martial. (#)rocedral ultra vires =ccrs when procedres nder the ena"lin% act ha!e failed to "e followed and refers mainly to the sitation where a p"lic athority has o!er stepped its powers. 0nstrments will "e held to "e ltra !ires if a mandatory procedral re@irement has not "een followed, "t will not "e if the procedre is only directory. 0n other words, procedral ultra vires occrs when procedres laid down in the ena"lin% act ha!e failed to "e followed, for eample, to %i!e notice to aected parties to allow them
to ma2e o"/ections "efore %rantin%
plannin% permission. >efers mainly to the sitation where a p"lic #3D199EG 1 M- ##
athority has o!erstepped its powers. >e@irement in the parent act mst "e a mandatory procedre in order for the s"sidiary le%islation to "e declared in!alid on the %rond of procedral ultra vires. A
practical
eample
can
"e
fond
in
'atin
AIiIah
!
'ewan
7andaraya,#4where a de!elopin% order made nder s ## of the Federal erritory (lannin% Act), was s@ashed "y the 8preme Cort as on the facts, no notice of the application for plannin% permission as re@ired nder r of the lannin% ('e!elopment) >les of 19
CONCLUSION
hs, if the s"ordinate or dele%ated le%islation %oes "eyond the scope of athority concerned on the dele%ate or it is in conict with the arent or +na"lin% Act, it is called s"stanti!e ultra vires he !alidity of the s"ordinate or dele%ated le%islation may "e challen%ed "efore the Corts on this %rond. 0t is a mechanism to cr" down the eploitation of power "y the administrati!e athority as we all 2now that Bpower corrpts and a"solte power corrpts a"soltelyP. *owe!er in this eld there is lac2 of de!elopment and there is no s"stantial chan%e in the concept all tho%h #4D199
the chan%in% natre of the crrent le%islati!e method has widen the horiIon of the power of the athority "y %i!in% them power to act accordin% to the need of the time, e!en sometimes tra!ellin% "eyond the restrictions.
BIBLIOGRAPHY
7oo2s 1. Ali Mohamed, A. (#E16) Malaysian Legal System(1st +dition), #. 'ad, M., Md. 8ide2, M. 8., ermiIi M. "ntroduction To Law, CF8 00M etalin% aya, 3. *amIah, H. A., A First Look At The Malaysian Legal System (1st +dition), (=ford Fa/ar, #EE9). Article 1. Mo2htar, $. A. and Alias, 8. A. (#E11), The Role #$ Judicial Review in
Malaysia as a Tool o$ %heck and &alance under 'octrine o$ Separation o$ (owers
