Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Index of Authorities..........................................................................................ii
Legislation.....................................................................................................ii
Cases.............................................................................................................ii
Introduction.....................................................................................................1
1.3 Retrospectivity.....................................................................................3
1.4 Unreasonableness................................................................................4
2.0 Unconstitutionality..................................................................................6
Conclusion.....................................................................................................10
Bibliography...................................................................................................11
Books..........................................................................................................11
Articles........................................................................................................11
1
Index of Authorities
Legislation
Cases
Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340
Kajing Tubek & 2 Ors. v Ekran Bhd &2 Ors [1996] 3 CLJ 96
Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ
507
Palm Oil Research And Development Board Malaysia & Anor v Premium
Vegetable Oils Sdn Bhd & Anor [2005] 3 MLJ 97
Pihak Berkuasa Negeri Sabah & Anor v Sugumar Balakrishnan [2002] 3 MLJ
72
2
Public Prosecutor v Khong Teng Khen [1976] 2 MLJ 166
RHB Bank Bhd v Ya akob bin Mohd Khalib [2008] 1 MLJ 157
Wong Keng Sam & Ors v Pritam Singh Bar [1968] 2 MLJ 158
3
Introduction
i. Implied Limitations
ii. Unconstitutionality
Seeing as how the Courts have limited forms of control, the effectiveness of
paper.
1.0Implied Limitations
One form of control exercised by the Court over subsidiary legislation is by
1 MP Jain, Administrative Law of Malaysia and Singapore (Damien Cremean ed, 4th Edition, LexisNexis 2011) 45. (MP
Jain, 4th Edition)
2 Section 3, Interpretation Acts 1948 and 1967, Act 388. (Interpretation Acts)
1
1.1 Exclusion of Courts
W Paul Ltd v The Wheat Commission4, and even in the landmark case for
Deeley Ltd.5 , the English Courts aptly summarised the position of the law:
Malaysia, fortunately, the Courts have taken the same position. For example,
Negeri Sabah & Anor6 the Court was firm to hold that section 59A of the
Immigration Act 1959/637 could not operate to exclude the jurisdiction of the
law.
Sabah & Anor v Sugumar Balakrishnan8 the Court noted that it was
3 [1920] 1 KB 829.
4 [1937] AC 139.
5 [1962] 1 QB 340.
7 Act 155.
2
Parliaments intention not to allow for judicial review against the decision of
position. Courts can only sidestep ouster clauses if at all they are present in
the subsidiary legislation but not if they are made for in the parent Act. As
such, we reach the conclusion that this form of control over subsidiary
legislation is not all that effective in light of the narrow circumstance it can
be relied on.
Hence, the general would seem that if and only if a parent Act expressly
endorses the ability to charge taxes or levies, only then would said
seem that unlike in the common law, by virtue of our Interpretations Act,
9 [1922] KB 897.
10 Act 388.
3
even if a parent Act does not expressly allow the imposition of a levy, this
seem that the effectiveness of this form of control by the judiciary is next to
useless.
1.3Retrospectivity
retrospective effect unless the parent Act expressly allows it. We are quick to
even if the parent Act does not provide so and in absence of a contrary
of enforcement of the Act or any other written law under which it is made.
Thus, it becomes the duty of the Courts to whether the parent Act
Malaysia11 the Court held that by virtue of the strict language used in
section 2(1) of the Emergency (Essential Powers) Act 1979, the powers of the
Yang Di-Pertuan Agong (YDPA) were confined to whatever the Act expressly
retrospective was declared null and void to the extent of its retrospective
4
Kajing Tubek & 2 Ors. v Ekran Bhd &2 Ors 12 as well as in a more recent
case of RHB Bank Bhd v Yaakob bin Mohd Khalib 13 that law must work
narrow in nature in that Courts can only interfere effectively in times where
the parent Act in itself does not expressly allow the subsidiary legislation to
operate retrospectively.
1.4Unreasonableness
limitation seems more flexible and subjective in nature. The test for
the Court held in essence, that if a particular bye-law was partial and
unequal in its operation interfering with the rights of those affected such that
the minds of reasonable men could find no justification for it, such a bye-law
14 [1898] 2 QB 91.
15 Ibid., at 99-100.
5
In India, the Supreme Court in Air India v Nergesh Meerza16, read
the test of unreasonableness into Article 14 of the Indian Constitution (in pari
case concerned a rule by Air India where they could retire any air hostess if
they get their first pregnancy after marriage. The Indian Supreme Court
deemed the rule as that the rule violated the equal protection clause under
article 14 of the Indian Constitution and that the regulation was [an]
In Malaysia however, there has yet to be a case that applied the test of
17 Ibid., 335.
6
[I]n my judgment, I fail to see in what manner that s 15(5)(a) of the UUCA)
relates to public order or public morality. I also do not find the restriction to be
reasonable The impugned provision is irrational. Most university students are
of the age of majority Clearly the provision is not only counter-productive
but repressive in nature.19
legislation that may be the epitome of abuse of power. Hence, unlike other
forms of implied controls, it would seem that this form of control is the most
effective control as it gives greater flexibility to the Courts (not bound strictly
Rule of Law.
2.0Unconstitutionality
The judiciary can, by virtue of Article 4(1) of the Federal Constitution,
constitutionality and if the need be, declare invalid either (1) the parent Act
only known case on this matter, the validity of the Essential (Security Cases)
19 Ibid., 523-4.
7
delegating legislation, the Emergency (Essential Powers) Ordinance 1969 (
Ordinance) had ceased to be law by lapse of time and hence rendering the
Federal Court where Lord President Suffian held that since the Ordinance had
not yet been revoked by Parliament, the Ordinance remained in effect and
the 1975 Regulations were therefore valid in this regard. A similar stance was
Teng Khen,21 in holding that the 1975 Regulations was valid under section 2
of the Ordinance and that the Yang Di-Pertuan Agong had power to make
sitting.
Khong Teng Khen, counsel for the accused argued that the 1975
Regulations were inconsistent with Article 7(1), Article 8, and Article 131 of
the Federal Constitution. The court rejected all these arguments, and held
that the 1975 Regulations were in compliance with Articles 150(2) and (6) of
the Constitution and hence, not unconstitutional. It was finally in the case of
8
exercises legislative power after Parliament has sat and the 1975 Regulations
Substantive ultra vires is one of the limbs in which the courts have
a good platform for our courts to control the subsidiary legislation as can be
seen from the case of Wong Pot Heng24 where it was proven that the
have been substantively ultra vires in which His Lordship Eusoff Chin stated:
There is also no doubt whatsoever that the courts have jurisdiction to declare invalid
a delegated legislation if in making it, the person/body to whom power is delegated
to make the rules or regulations, acted outside the legislative powers conferred on
23 See, Senior Supdt. of Post Office v. Izhar Hussain, [1989] AIR SC 2262; Dehli Transport Corp. v. D.T.C. Mazdoor
Congress, [1991] AIR SC 101
9
him/it by the Act of Parliament under which the rules or regulations were purported to
have been made.25
broad and general terms, ultra vires would then be rendered useless as it
would be very arduous to regard any regulation as falling outside the rule-
making power.26 The lack of efficacy in using ultra vires has resulted in the
doctrine was mentioned in the Palm Oil Research27 case, where the Federal
[I]t is equally the constitutional duty of the courts to ensure that no excessive
delegation takes place. Hence the well settled principle that a provision in a statute
conferring power on a member of the executive to enact subsidiary legislation must
be construed strictly.28
substantive ultra vires the Courts have relied on a concept similar to that of
25 Ibid., at 885-6.
26 MP Jain, Administrative Law of Malaysia and Singapore (3rd Edition, Butterworths Asia 1997) 90.
27 Palm Oil Research And Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & Anor [2005] 3
MLJ 97.
28 Ibid., 125.
10
3.2Procedural Ultra Vires
the case of Wong Keng Sam & Ors v Pritam Singh Bar29 the Court found
that such procedures were only directory and by not following them does not
found that the procedure in this case was mandatory, by applying the
relevant legal test and the failure to comply therefore, was found to be
would be the circumstances of each case and whether procedural ultra vires
is applicable or otherwise.
11
Conclusion
In conclusion, it would seem from the above analysis that the controls
nature. In three out of four of the implied limitations, the Courts only have
Courts can, in very limited and strictly construed circumstances assess the
legality of subsidiary legislation i.e. whether they comply with the Federal
Constitution or the parent Act (or any other written law) respectively.
subjective manner. This particular test has never been applied by name in
Malaysia.
In any case, the Courts should opt for higher scrutiny in assessing the
12
the words of the Indian Supreme Court, breathe consciousness into what can
men are almost always bad men.- John Emerich Edward Dalberg-Acton,
13
Bibliography
Books
Sir William Wade and Christopher Forsyth, Administrative Law (9th Edition,
Oxford University Press 2004)
Articles
Choo Chin Thye, The Role of Article 8 of the Federal Constitution In the
Judicial Review of Public Law in Malaysia [2002] 3 MLJ civ
14