Issue

i.
ii.
iii.
iv.

Whether Datuk Loklak is procedurally ultra vires?

Whether Rule 3 is reasonable?
Whether Rule 18 is an ouster clause?
Whether the Subsidiary Legislation has retrospective effects?

Principle
The principle that can be used to solve this problem is the doctrine of ultra vires. This doctrine is
one way how courts review decisions made by public bodies. It can be used to determine
whether the Subsidiary Legislation made by public bodies is valid or not. Ultra vires means
beyond the power and it can be classified into three which are procedural, substantive and
extended ultra vires. Furthermore, procedure in making subsidiary legislative can be classified as
mandatory and directory. Mandatory means SL must need consultation with specific body,
opportunity for affected persons to file for objections and pre-publication of draft rules.
Directory means public bodies need not follow the procedure; non-compliance with the
procedure will not make the SL invalid. Besides that, substantive can be refers as scope, extent
and range of power conferred by the statue to make SL. It can be classified as parent act ultra
vires the federal constitution, SL ultra vires the federal constitution and SL ultra vires the parent
act. Extend ultra vires also can be classified as retrospective effect, financial levy, ouster clauses
and unreasonableness. Retrospective effects where SL has a backdated effect like the
enforcement of the SL starts on a date way before it is passed. Financial levy cannot be imposed
through administrative regulation except when the Parent Act specifically confers power for the
purpose. The ouster clause means a public body or administrative must make sure that the SL
passed must not exclude the courts from making any judicial review. Unreasonableness is
situation where one can challenge the validity of SL on the ground.
Application
First issue
In making an SL, certain procedures need to be followed. If a procedure is mandatory, it must be
followed. Otherwise the SL is void. In Howard v Bodington, the judge stressed on the
importance of procedures in the making of SL. It must be ascertained whether the procedure is
mandatory or directory. In Agricultural, Horticultural etc v Aylesbury Mushrooms Ltd, the
court held that failure to hold a discussion with certain bodies before making an order was not
according to the appropriate procedure. Hence, the decision made by the administrative body
was void.
In Ciput Local Authority case, the procedure is mandatory because it is mentioned in the Section
5 of the Trading Permit ACT 2014 that it is obligatory. Datuk Loklak not passed the regulations
to the Ministry of trade before it can be enforced. Therefore, the regulation passed by Datuk
Loklak is void.

Second issue
In making an SL, certain rule must be reasonable. If the SL is unreasonableness, anyone can
challenge the validity of the SL on the ground. As stated by Chief Judge in case of Kruse v
Johnson as a guideline, the judge mentioned that the court should jealously watch the exercise of
these powers and guard against their unnecessary or unreasonable exercise to the public
disadvantage such as bye-laws were found to be manifestly unjust, disclosed bad faith and
involved gratuitous interference. In Arlidge v Islington Corporation the court held that it was
unreasonable and invalid because it breach the contractual obligations with their tenants.
In Murni case, the general rule is that Rule 3 in Trading Regulations 2014, traders are required to
use English as a medium of communication in their trading activities. The rule is unreasonable
because the Trading Permit Act 2014 not mentioned that the traders must use English as medium
of communication in their trading activities. Therefore, the regulation passed by Datuk Loklak is
void.
Third issue
In making SL, a public body or administrator must make sure that the SL passed must not
exclude courts from making any judicial review. For instance it must not contain any provision
which does not allow any interference from the court, except if the Parent Act under which the
SL is made has expressly allowed the exclusion of the courts.
In Petaling Tin Bhd v Lee Kian Chan, the subordinate court reiterated the well-established
principle that judicial review is available in respect of jurisdictional error despite the presence of
an ouster clause. In other words, the ouster clause does not prevent the court from reviewing the
decisions where there is an error of jurisdiction.
In Murni case, the Rule 18 in Trading Regulations 2014 is ouster clause. It because the Rule 18
says, the decisions of the President under the regulation is final and conclusive. It mean any
decision made by the President cannot prefer to the court and it also does not allowed any
interference from the court. Murni can bring this case to the court because the Trading Permit
Act 2014 does not says that any SL passed can have an exclusion of the courts.
Fourth issue
In making SL, it must not backdated effect like the enforcement of the SL starts on a date way
before it is passed. As a general rule, all SLs that have retrospective effect are not valid.
However, we must first determine whether this retrospective effect is valid. Section 20 of the
Interpretation Act 1948 and 1967 stated that it omly valid when there is an express provision or
by necessary implication in the Parent Act to do so and the effect of the regulation cannot be
earlier than date of commencement of the Parent Act.
In Attorney General v Cold Storage (Singapore) Pte Ltd, the Singapore Finance Minister
passed the Singapore Port Local Authority (Property Tax) Order 1977 on 19.03.1977. The order
was made under the Port of Singapore Authority Act 1964. The order was assumed to be

enforceable since 28.10.1976. The court that the order made under Section 28 (2) of Port
Singapore Authority Act gave the Minister power to make orders having retrospective effect.
In Murni case, her permit was valid from January 2013 until December 2015. Trading
Regulations 2014 is not valid for revoke their permit because Datuk Loklak passed the rule in
2014 not 2013. The Trading Regulations 2014 is invalid as there is no provision on that Trading
Permit Act to have retrospective effect even though it does not beyond the date of
commencement Trading Permit Act 2014.
Conclusion
Trading Regulations made by the Ciput Local Authority is ultra vires and invalid. It because the
SL was procedurally ultra vires, ouster clause, unreasonableness and has retrospective effects.
Murni can challenge the validity of the SL and bring this case to the court.