Está en la página 1de 17

Table of Contents

Index of Authorities..........................................................................................ii

Legislation.....................................................................................................ii

Cases.............................................................................................................ii

Introduction.....................................................................................................1

1.0 Implied Limitations..................................................................................1

1.1 Exclusion of Courts...............................................................................1

1.2 Imposition of tax or financial levy........................................................2

1.3 Retrospectivity.....................................................................................3

1.4 Unreasonableness................................................................................4

2.0 Unconstitutionality..................................................................................6

2.1 Constitutionality of the Parent Act........................................................6

2.2 Constitutionality of the Subsidiary Legislation....................................7

3.0 The Doctrine of Ultra Vires......................................................................8

3.1 Substantive Ultra Vires.........................................................................8

3.2 Procedural Ultra Vires...........................................................................9

Conclusion.....................................................................................................10

Bibliography...................................................................................................11

Books..........................................................................................................11

Articles........................................................................................................11

1
Index of Authorities
Legislation

Emergency (Essential Powers) Act 1979 (Act 216)

Emergency (Essential Powers) Ordinance 1969

Environmental Quality Act 1974 (Act 127)

Federal Constitution of Malaysia

Federal Constitution of India

Immigration Act 1959/63 (Act 155)

Interpretation Acts 1948 and 1967 (Act 388)

University and University Colleges Act 1971 (Act 30)

Cases

Air India v Nergesh Meerza [1981] AIR SC 1829

Attorney-General v Wilts United Dairies [1922] KB 897

Chester v Bateson [1920] 1 KB 829

Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340

Dehli Transport Corp. v. D.T.C. Mazdoor Congress, [1991] AIR SC 101

Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66

Kajing Tubek & 2 Ors. v Ekran Bhd &2 Ors [1996] 3 CLJ 96

Kruse v Johnson [1898] 2 QB 91

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

Puvaneswaran v Menteri Hal Ehwal Dalam Negeri, Malaysia [1991] 3 MLJ 28

R & W Paul Ltd v The Wheat Commission [1937] AC 139

RHB Bank Bhd v Ya akob bin Mohd Khalib [2008] 1 MLJ 157

Senior Supdt. of Post Office v. Izhar Hussain, [1989] AIR SC 2262

Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3


MLJ 289

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50

Wong Keng Sam & Ors v Pritam Singh Bar [1968] 2 MLJ 158

Wong Pot Heng v Kerajaan Malaysia [1992] 2 MLJ 885

3
Introduction

Subsidiary legislation in their barest bones, represent the voluntary

delegation of legislative powers by the Legislature to the Executive branch of

Government (the administrative arm) crucial to prevent the monopolizing of

law-making power by the Legislature by sharing it with the Executive. 1 The

exact definition of subsidiary legislation is as follows:2

There are only conferred three main forms of judicial controls:

i. Implied Limitations

ii. Unconstitutionality

iii. The doctrine of Ultra Vires.

Seeing as how the Courts have limited forms of control, the effectiveness of

said controls is of an utmost necessity as will be discussed further in this

paper.

1.0Implied Limitations
One form of control exercised by the Court over subsidiary legislation is by

way of implied limitations:

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

Under the Common Law, in cases such as Chester v Bateson3 , R &

W Paul Ltd v The Wheat Commission4, and even in the landmark case for

judicial activism: Commissioners of Customs and Excise v Cure &

Deeley Ltd.5 , the English Courts aptly summarised the position of the law:

that subsidiary or delegated legislation cannot exclude the jurisdiction of the

Courts without the express intention by Parliament in the Parent Act. In

Malaysia, fortunately, the Courts have taken the same position. For example,

the Court of Appeal in Sugumar Balakrishnan v Pengarah Imigresen

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

Courts unless it concerned administrative actions not tainted with errors of

law.

Nevertheless, on appeal, the Federal Court in Pihak Berkuasa Negeri

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.

6 [1998] 3 MLJ 289.

7 Act 155.

8 [2002] 3 MLJ 72.

2
Parliaments intention not to allow for judicial review against the decision of

the relevant administrative body save for reasons of procedural defects.

Such an interpretation by the Federal Court, with all due respect, is

problematic as it renders this limitation by this Court into a very narrow

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.

1.2Imposition of tax or financial levy

In the case of Attorney-General v Wilts United Dairies,9 the Court

declared, similar to the reasoning espoused in the exclusion of Courts

principle, that an administrative body, such as the Food Controller in this

case could not impose a levy unless expressly authorized by Parliament.

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

administrative body be empowered to do as such. In the Malaysian context

however, section 44 of the Interpretations Acts 1948 and 196710 impliedly

allow subsidiary legislation to impose fees and charges. Hence, it would

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

power can be implied by virtue of the Interpretations Act. As such, it would

seem that the effectiveness of this form of control by the judiciary is next to

useless.

1.3Retrospectivity

Similar to the above, subsidiary legislations, generally, cannot have

retrospective effect unless the parent Act expressly allows it. We are quick to

place the caveat generally under section 20 of the Interpretation Acts as

even if the parent Act does not provide so and in absence of a contrary

provision, subsidiary legislation may have retrospective effect up to the date

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

permits retrospective application. However, in Wong Pot Heng v Kerajaan

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

allowed. Hence, section 20 of the Interpretation Acts was excluded from

application and in the absence of clear and unambiguous words allowing

retrospective application, the said subsidiary legislation created with

retrospective was declared null and void to the extent of its retrospective

application. Similar positions were held by the Courts in cases such as

11 [1992] 2 MLJ 885.

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

with prospective effect only, unless there is a clear indication in the

enactment that the law should work retrospectively.

Hence, we come to the understanding that this form of control is

narrow in nature in that Courts can only interfere effectively in times where

the application of section 20 if the Interpretation Acts is excluded and when

the parent Act in itself does not expressly allow the subsidiary legislation to

operate retrospectively.

1.4Unreasonableness

Unlike the other forms of implied limitation, this particular form of

limitation seems more flexible and subjective in nature. The test for

unreasonableness is enunciated in the case of Kruse v Johnson14, where

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

may be declared invalid by the Court on grounds of unreasonableness.15

12 [1996] 3 CLJ 96.

13 [2008] 1 MLJ 157.

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

materia with article 8 of the Federal Constitution of Malaysia) to invalidate

subsidiary legislation which is regarded as arbitrary or unreasonable. The

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]

unreasonable and arbitrary provision which shocks the conscience of the

Court which was extremely detestable and abhorrent to the notions of a

civilized society17. Therefore, the approach by the Indian courts to use

article 14 of the Indian Constitution is admirable as it is the Supreme law to

protect rights of the citizen.

In Malaysia however, there has yet to be a case that applied the test of

unreasonable in the admirable manner adopted by the Indian Courts, in

regards to subsidiary legislation. Nevertheless, the Court of Appeal in holding

section 15(5)(a) of the University and University Colleges Act 1971 to be

unconstitutional in Muhammad Hilman bin Idham & Ors v Kerajaan

Malaysia & Ors18 stated:

16 [1981] AIR SC 1829.

17 Ibid., 335.

18 [2011] 6 MLJ 507.

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

As such, the test can similarly be applied widely to combat subsidiary

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

by parent Acts) to ensure greater compliance of subsidiary legislation to the

Rule of Law.

2.0Unconstitutionality
The judiciary can, by virtue of Article 4(1) of the Federal Constitution,

exercise control over subsidiary legislation by determining either the

constitutionality and if the need be, declare invalid either (1) the parent Act

or (2) the subsidiary legislation itself.

2.1 Constitutionality of the Parent Act

In Malaysia, this effort of declaring parent Act unconstitutional has not

yet proven to be all that successful in specific reference to cases involving

subsidiary legislation. In Johnson Tan Han Seng v Public Prosecutor20 the

only known case on this matter, the validity of the Essential (Security Cases)

Regulations 1975 (1975 Regulations) was challenged on grounds that its

19 Ibid., 523-4.

20 [1977] 2 MLJ 66.

7
delegating legislation, the Emergency (Essential Powers) Ordinance 1969 (

Ordinance) had ceased to be law by lapse of time and hence rendering the

regulations void. Unfortunately, such an argument was rejected by 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

taken by the Court scenario in the case of Public Prosecutor v Khong

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

regulations under the Ordinance regardless of whether the Parliament is

sitting.

2.2 Constitutionality of the Subsidiary Legislation

The argument here would be that the subsidiary legislation itself is

invalid vis--vis the Constitution rendering itself unconstitutional. Again, in

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

Teh Cheng Poh v Public Prosecutor,22 the Privy Council adopting a

different approach in holding that it is a fatal constitutional flaw if a Ruler


21 [1976] 2 MLJ 166.

22 [1979] 1 MLJ 50.

8
exercises legislative power after Parliament has sat and the 1975 Regulations

for that reason were declared void.

The above precedence have limited scope of application and unlike

Indias direct application of Article 14 their Constitution, 23 no similar

application of Malaysias constitutional provision has emerged to be the

potent provision to control subsidiary legislation. Perhaps the local cases on

validity of subsidiary legislation were usually assessed by the doctrine of

ultra vires, so the development of judicial control over subsidiary legislation

under the limb of constitutionality is unavailing.

3.0The Doctrine of Ultra Vires


3.1 Substantive Ultra Vires

Substantive ultra vires is one of the limbs in which the courts have

used in administering control over subsidiary legislation. Although it provides

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

Courts have power to invalidate subsidiary legislation which was found to

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

24 [1992] 2 MLJ 885.

9
him/it by the Act of Parliament under which the rules or regulations were purported to
have been made.25

However, the efficacy of substantive ultra vires is very dependent on

the phrasing of the delegated provision and is indirectly subjected to the

vagueness of the terms used in statute in conferring the power to make

subsidiary legislation. Therefore, if power is delegated by statute in very

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

need of using the Doctrine of Excessive Delegation. In Malaysia, the

doctrine was mentioned in the Palm Oil Research27 case, where the Federal

Court held that:

[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

Hence, it would seem that in order to cure the ineffectiveness of the

substantive ultra vires the Courts have relied on a concept similar to that of

an implied limitation against unreasonableness, which further cements the

effectiveness and need for it.

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 efficacy of using this method relies solely on whether the

procedure that is to be followed is either mandatory or merely directory. In

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

render the impugned inquiry procedurally ultra vires but in Puvaneswaran

v Menteri Hal Ehwal Dalam Negeri, Malaysia,30 however, the Court

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

procedurally ultra vires.

As such the effectiveness of procedural ultra vires cannot be answered

objectively as it is reliant on the parent act and interpretation of the courts

on whether a particular rule was meant to be either mandatory or directory.

If it is found to be mandatory, procedural ultra vires can then be applied and

would indeed be an effective form of a judicial control mechanism as the

application of it is relatively straightforward. The real issue would however,

would be the circumstances of each case and whether procedural ultra vires

is applicable or otherwise.

29 [1968] 2 MLJ 158.

30 [1991] 3 MLJ 28.

11
Conclusion
In conclusion, it would seem from the above analysis that the controls

by the judiciary over subsidiary legislation can be very dichotomous in

nature. In three out of four of the implied limitations, the Courts only have

the narrow power to review whether the provisions of the impugned

subsidiary legislation overstepped any of those strict limitations.

In regards to the concepts of unconstitutionality and ultra vires the

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.

However, one form of control becomes particularly of interest. The test

of unreasonableness seems to be one form of control afforded to the Courts

to determine whether any particular subsidiary legislation in a flexible and

subjective manner. This particular test has never been applied by name in

any case specifically in regards to cases involving subsidiary legislation, in

Malaysia.

The Courts have applied the concept of excessive delegation the

examination of subsidiary legislation on grounds of unreasonableness by

virtue of Article 8 of the Constitution still remains an exciting venture.

In any case, the Courts should opt for higher scrutiny in assessing the

reasonableness of subsidiary legislation and should, borrowing in essence

12
the words of the Indian Supreme Court, breathe consciousness into what can

be the arbitrary mind of the administration.

Power tends to corrupt, and absolute power corrupts absolutely. Great

men are almost always bad men.- John Emerich Edward Dalberg-Acton,

1st Baron Acton.

13
Bibliography

Books

MP Jain, Administrative Law of Malaysia and Singapore (Damien Cremean ed,


4th Edition, LexisNexis 2011)

MP Jain, Administrative Law of Malaysia and Singapore (3rd Edition,


Butterworths Asia 1997)

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

Krishnan Arjunan, Judicial Review and Appellate Powers: Recent Trend in


Hong Kong and Malaysia [2000] 2 MLJ lxx

Gan Ching Chuan, Malaysian Administrative Law at the Crossroads: Qua


Vadis? [2006] (Private Article by University of Malaya)

*Note: For the examiners knowledge, the citing style for


both footnotes and bibliography are according to the
Oxford Standard for the Citation of Legal Authorities
(OSCOLA) (4th edition) available at
<www.law.ox.ac.uk/oscola>

14