Discuss the power of Parliament to control the content of delegated legislation.

Subsidiary or delegated legislation according to section 3 Interpretation Act 1948 & 1967 is any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect.

However, the practice of delegating power to another body to make subsidiary legislation may lead to abuse; therefore, there is a need for control such as Parliament control. The legislature which grants the delegated powers via parent Act may repeal or revoke the delegated legislation. The parent Act may require legislation made under it to be laid before the legislature. As an example, section 83 (3) of Trade Mark Act 1976 requires subsidiary legislation made to be laid before both Dewan. There must be a laying procedure for confirmation by the legislature before the delegated legislation has any legislative effect.

Another possible method to control as practiced in England is to establish Scrutiny Committees which keep under review all delegated legislation and report their findings to Parliament. However, so far, Malaysian Parliament has not developed such method.

Explain judicial control as one of the main controls of the subsidiary legislation.

Subsidiary or delegated legislation according to section 3 Interpretation Act 1948 & 1967 is any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect.

However, the practice of delegating power to another body to make subsidiary legislation may lead to abuse; therefore, there is a need for control such as judicial control or judicial review. The foundation for such review lie in section 23 (1) of Interpretation Act 1948 & 1967, which in effect, lay down the principle that any subsidiary legislation which is inconsistent with an act of Parliament or State Enactment shall be void to the extent of inconsistency. The court shall have the power to review the legality of subsidiary legislation and to declare it void on basis of ultra vires. It can be either on the ground of substantive ultra vires or procedural ultra vires.

For substantive ultra vires, the recipient of subsidiary legislation has made law beyond the power limit either in the subject matters, purposes or circumstances as authorized by the parent act, as illustrated in case of Major Phang Yat Foo b Brigadier General Dato’ Yahya bin Yusof.

For procedural ultra vires, the recipient of the subsidiary legislation has failed to follow the mandatory procedure laid down in the parent act, for example, to give notice to affected parties to allow them to make any objection as illustrated in case of Datin Azizah Abdul Ghani v DBKL.

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Critically evaluate the defects of delegated legislation and the various controls available.

Subsidiary or delegated legislation according to section 3 Interpretation Act 1948 & 1967 is any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect. However, the practice of delegating power to another body to make subsidiary legislation has several defects.

First is the delegation of power to make the delegated legislation may lead to abuse of power. The recipient of the delegated legislation will tend to be ultra vires, where it makes power beyond the framework provided by parent act; the ultra vires can be either substantive or procedural.

The second defect of subsidiary legislation is lack of accountability. When a power to make subsidiary legislation is conferred to the person or body who has expertise, he will only be accountable and responsible to the Minister and not directly accountable to the people, as he is only performing his statutory duty illustrated in the parent act. He is also not elected by the people; therefore, it is vulnerable to abuse of power.

Third defect of subsidiary legislation is the problem in understanding the subsidiary legislation. When the law is made by the person who is an expert in that particular field, it is difficult for the lay person to understand the language of the law since it is quite technical and require advance knowledge in that particular field.

The fourth defect of subsidiary legislation is it inconsistent with the doctrine of separation of power. This is because subsidiary legislation is essentially legislation made by the executive, and executive law-making is inconsistent with the notion of separation of power where only the legislature has the power to make law and there cannot be any interference to the power to make law.

Therefore, there is a need for a scrutiny and control to the subsidiary legislation in order to protect the public from the effect of the abuse of power. The first control is Parliamentary control or legislative control. The legislature which grants the delegated powers via parent Act may repeal or revoke the delegated legislation. The parent act may require legislation made under it to be laid before the legislature. As an example, section 83 (3) of Trade Mark Act 1976 requires subsidiary legislation made to be laid before both Dewan. There must be a laying procedure for confirmation by the legislature before the delegated legislation has any legislative effect. Another possible method to control as practiced in England is to establish Scrutiny Committees which keep under review all delegated legislation and report their findings to Parliament. However, so far, Malaysian Parliament has not developed such method.

The second control is judicial review or judicial control. The foundation for such review lie in section 23 (1) of Interpretation Act 1948 & 1967, which in effect, lay down the principle that any subsidiary legislation which is inconsistent with an act of Parliament or State Enactment shall be void to the extent of inconsistency. The court shall have the power to review the legality of subsidiary

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legislation and to declare it void on basis of ultra vires. It can be either on the ground of substantive ultra vires or procedural ultra vires. For substantive ultra vires, the recipient of subsidiary legislation has made law beyond the power limit either in the subject matters, purposes or circumstances as authorized by the parent Act, as illustrated in case of Major Phang Yat Foo b Brigadier General Dato’ Yahya bin Yusof. For procedural ultra vires, the recipient of the subsidiary legislation has failed to follow the mandatory procedure laid down in the parent act, for example, to give notice to affected parties to allow them to make any objection as illustrated in case of Datin Azizah Abdul Ghani v DBKL.

The third control is consultation. In Malaysia, there is no general statutory provision making prior consultation a formal requirement for the making of subsidiary legislation. However, parent Act may make prior consultation as a requirement for subsidiary legislation. As an example, under section 36 (1) of Financial Procedure Act 1957, which authorizes the YDPA to make regulations after consulting the Commodities Trading Commission. Though prior consultation is not a requirement, consultation does take place on a discretionary and ad hoc basis.

The fourth control is publication. In Malaysia, there is no general statutory provision requiring the publication of subsidiary legislation. However, parent Acts may require publication for the subsidiary legislation. As an example, in section 17 (4) of CJA 1964, the subsidiary legislation shall be published in the Gazette and shall come into force on the date of publication.

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