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CONTROL OVER SUBSIDIARY LEGISLATION

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Nursyhrah Ramli

on 18 March 2014

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Transcript of CONTROL OVER SUBSIDIARY LEGISLATION

What is Subsidiary Legislation?
Subsidiary legislation has been practiced in most all democratic countries.
The legislature will confer some powers to the administration authority to make law.
Subsidiary legislation is actually any rule,proclamation,order,notification,bye-law or other instrument made from the Parent Act.(refer to sec 3 of Intepretation Act 1967)

The courts in Malaysia exercise the control over the subsidiary legislation in many ways:
1) The Parents Act which delegates the power is unconstitution.
2) The parent act is constitution but the subsidiary legislation itself is unconstitution.
3) Substantive Ultra Vires
4) Procedural Ultra Vires.

If the statute is unconstitutional, it cannot be the source of subsidiary legislation.
For this purpose, judicial review can be made under the constitutional law.
Any legislation infringes the constitution,the provision will be void.(refer to Art 4 of Federal Constitution).

Although there was emergency proclamation, the parliament still on going and the election were held during that time.
Case referred: Teh Cheng Poh v PP
Issue: The issue is whether the regulations were valid
Held : The Privy Council held that the regulation was void because it violates Art 150(2)

JUDICIAL CONTROL
Image by Tom Mooring
The Parents Act which delegates the power is unconstitutional.
CONTROL OVER SUBSIDIARY LEGISLATION
Case referred: PP V Khong Teng Khen
Issue : The issue is whether the Emergency Security Cases Regulation 1975 is void due to be unconstitutional with Art 149 of the Federal Constitution.
Held: The ESCAR is valid because it was made under Art 150 and not Art 149.

The parent act is constitution but the subsidiary legislation itself is unconstitution
The court may strike down if it comes into conflict with the constitutional provision.
Here, the constitutional law can decide whether it infringes the constitutional or not.
On May 1969, YDPA proclaimed emrgency under Art 150(2) Of FC.
On the same day, he promulgated the Emergency ( Essential Powers ) Ordinance 1969 to give power to himself to make regulation for certain purposes.

During the process of making the law, the legislature will confine themselves in setting out the general principles and delegate the powers to other agencies.
If the powers are not delegated, the legislature will unable to cope with all the details.

Case referred: Hjh Halimatussadiah v Public Service Commission
Issue: The issue is whether the rules for dress code in civil servant was valid.
Held: The Supreme Court rejected the argument saying that it does not affect her constitutional right to practice her religion.

Substantive Ultra Vires
The subsidiary legislation also can be challenge before the courts on the ground that it is ultra vires with the parent act.
Substantive ultra vires is when its go beyond the scope of the parents act.
The legislative power is belong to the Parliament.

Case referred: Kong Kim Shing v PP
Issue: A proclamation under Sec 47 was ultra vires.
Held: The court rejected the argument and upheld the validity of the proclamation as it did not declare the whole of the Federation as a “security area”.

Procedural Ultra Vires
It occurs when the prescribed procedure is not complied with while making the subsidiary legislation.
Principles: -when the rules are laid down down before before Parliament and effectiveness is depend upon Parliament passing on an affirmative resolution may be treated as mandatory.
- Similarly when draft rules are required to be laid before the parliament,the procedure ought to be treated as mandatory.
Case referred : wong keng sam v pritam singh brar

Other reasons
Retrospective
Exclusion power of the court
Financial levy
Unreasonableness
Uncertainty
Wrong purpose/ bad faith
Full transcript