subsidiary legislation pdf.pdf

7/26/2019 SUBSIDIARY LEGISLATION PDF.pdf

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BY IBTISAM ILYANA ILIASFACULTY OF LAW UiTM SHAH ALAM
http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22


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DEFINITION

Law made through powers delegated by the legislatureto a body or person via an enabling or parent statute.

S.3 of Interpretation Acts 1948 and 1967 defines suchlegislation as any proclamation, rule, regulation, order,notification, by-law or other instrument made underany Act, Ordinance or other lawful authority andhaving legislative effect.


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PARENT ACT SPECIFIC PROVISIONUNDER PARENT ACT(enabling provision)

SUBSIDIARYLEGISLATION

ROAD TRANSPORT ACT1987

Section 66 of the RoadTransport Act 1987

MOTOR VEHICLES(CONTRUCTION ANDUSE)(AMENDMENT) RULES2010


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WHYSUBSIDIARY

LEGISLATION

INSUFFICIENTTIME

HIGHLYTECHNICAL

LEGISLATIVE

PROCESS ARECUMBERSOME


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CONTROLS OVER SL:WHY ?

1. Made by executive inconsistent with the doctrineof separation of powers

2. Vulnerable to abuse :- Not elected by people

Lack of prior discussion

Excess of power

Sub delegation to other persons or bodies wherethe legislature has not clearly identified therecipient of the delegation power.


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TYPES OF CONTROL

JUDICIAL

LEGISLATIVE

PUBLICATION

CONSULTATION


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JUDICIAL CONTROL

The most important

S.23(1) AND S 87(d) of the Interpretation Act 1948 and

1967 which lays down the principle that any SL whichis inconsistent with an Act or Parliament or StateEnactment shall be void to the extent of itsinconsistency.


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When there is a challenge by the aggrieved person onthe validity of SL, the courts may declare that the SL

void under the ultra vires doctrine on the followinggrounds:-

1. Substantive ultra vires

2. Procedural ultra vires

JUDICIAL CONTROL


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JUDICIAL CONTROL : SUBSTANTIVE

ULTRA VIRES

The recipient of the delegated power has made lawbeyond the limit of the power conferred either in

terms of the1. Subject-matter

2. Purpose

3. Circumstances authorized by the enabling statute

Major Phang Yat Foo v Brigadier General DatoYahya bin Yusof & Anor [1990]


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The respondent, the convening authority of a court

martial purporting to act under r63(3) of the ArmedForces (Court Martial)Rules 1976 disapproved of anddissolved the decision of the court martial and madefresh order for a fresh court martial to be convenedand for the applicant to be retried for the same

charges. High Court ruled that r63(3) was void.


ULTRA VIRES


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Parent Act Subsidiary legislation

S.119 of Armed Forces Act 1972

Authorizes the Minister of Defenceto make rules of procedure relating toinvestigation and trial of offences by

court martial.

r63(3) of the Armed Forces (CourtMartial)Rules 1976

Authorizes convening authority toapprove or disapprove a decision of acourt martial


ULTRA VIRES


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The recipient of the delegated power has failed tofollow a mandatory procedure laid down in the

enabling statute. Datin Azizah bt Abdul Ghani v Dewan Bandaraya

Kuala Lumpur [1992]

JUDICIAL CONTROL : PRCEDURAL

ULTRA VIRES


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In this case the Datuk Bandar, Kuala Lumpur, had made adevelopment order granting planning permission on Lot4951, allowing an increase of density from 10 persons to 44persons an acre to enable the building of two blocks ofapartments, one of two storey and the other three storey.On the facts no notice as required under the Planning(Development) Rules 1970 were given to the appellants.

Supreme Court quashed the order as on the facts, nonotice of the application for planning permission asrequired under r5 of the Planning(Development) Rules1970 had been sent to the appellant.

JUDICIAL CONTROL : PROCEDURAL

ULTRA VIRES


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Parent Act Subsidiary legislation

S22 of the Federal Territory (Planning)Act 1982

R5 Planning (Development) Rules1970

JUDICIAL CONTROL : PROCEDURAL

ULTRA VIRES


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LEGISLATIVE CONTROLAFTER THE SL IS MADE

The legislature which grants the delegated powers by

an enabling statute may repeal the statute or revoke orvary the delegated powers.

BEFORE THE SL IS MADE

Laying provisions i.e. an enabling statute may require

legislation made under it to be laid before thelegislature for information or confirmation.


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Trade Marks Act 1976 Trade Unions Act 1959

s.83(3) requires the SLmade there under to belaid before both Dewan

S58(4) requires the SL to belaid before the Dewan

Rakyat only

LEGISLATIVE CONTROL


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CONSULTATION No general statutory provision requiring consultation for

SL in Malaysia.

Very few enabling acts make prior consultation mandatory. Eg:-

Though not legally imposed, consultation as a matter ofadministrative practice does take place on a discretionaryand ad hoc basis.

Financial ProcedureAct 1957

Authorizes YDPA to make regulations afterconsulting the Commodities TradingCommission


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PUBLICATION No general statutory provision requiring publication

for SL in Malaysia.

If enabling statute make it mandatory for publication,non-compliance renders the SL void.

At federal level, SL is required to be published inMalay and English in 2 parts of the Gazette :-

1. Tambahan Perundangan A= proclamation,

rules, regulations, orders, by-laws

2. Tambahan Perundangan B= other SL

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