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

i

ii

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

iii

Palm Oil Research And Development Board Malaysia & Anor v Premium Vegetable OilsSdn Bhd & Anor [2005] 3 MLJ 97

Pihak Berkuasa Negeri Sabah & Anor v Sugumar Balakrishnan [2002] 3 MLJ 72

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 MLJ289

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

iv

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 Limitationsii. Unconstitutionalityiii. 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 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

1.0 Implied Limitations

One form of control exercised by the Court over subsidiary

legislation is by way of implied limitations:

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.

3 [1920] 1 KB 829. 4 [1937] AC 139.5 [1962] 1 QB 340.6 [1998] 3 MLJ 289.7 Act 155.

2

Nevertheless, on appeal, the Federal Court in Pihak Berkuasa

Negeri Sabah & Anor v Sugumar Balakrishnan8 the Court noted that it was

Parliament’s 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.

1.2 Imposition 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

8 [2002] 3 MLJ 72.9 [1922] KB 897.

3

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, 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.

1.3 Retrospectivity

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

10 Act 388.

4

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 Kajing Tubek & 2 Ors. v Ekran

Bhd &2 Ors12 as well as in a more recent case of RHB Bank Bhd v

Ya’akob bin Mohd Khalib13 that law must work with prospective effect

only, unless there is a clear indication in the enactment that

the law should work retrospectively.

11 [1992] 2 MLJ 885.12 [1996] 3 CLJ 96.13 [2008] 1 MLJ 157.

5

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.

1.4 Unreasonableness

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

In India, the Supreme Court in Air India v Nergesh Meerza16, read

the test of unreasonableness into Article 14 of the Indian14 [1898] 2 QB 91.15 Ibid., at 99-100.16 [1981] AIR SC 1829.

6

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 society”17. 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

17 Ibid., 335.

7

unconstitutional in Muhammad Hilman bin Idham & Ors v Kerajaan

Malaysia & Ors18 stated:

“[I]n my judgment, I fail to see in what manner that s 15(5)(a) ofthe UUCA) relates to public order or public morality. I also do not findthe restriction to be reasonable… The impugned provision is irrational.Most university students are of the age of majority… Clearly theprovision 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.

2.0 Unconstitutionality

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.

18 [2011] 6 MLJ 507.19 Ibid., 523-4.

8

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 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.20 [1977] 2 MLJ 66.21 [1976] 2 MLJ 166.

9

2.2 Constitutionality of the Subsidiary Legislation

The argument here would be that the subsidiary legislation

itself is invalid vis-à-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 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 India’s direct application of Article 14 their

Constitution,23 no similar application of Malaysia’s

22 [1979] 1 MLJ 50.23 See, Senior Supdt. of Post Office v. Izhar Hussain, [1989] AIR SC 2262; Dehli Transport Corp. v. D.T.C. MazdoorCongress, [1991] AIR SC 101

10

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.

3.0 The 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 todeclare invalid a delegated legislation if in making it, the person/bodyto whom power is delegated to make the rules or regulations, actedoutside the legislative powers conferred on him/it by the Act ofParliament under which the rules or regulations were purported to havebeen made.“25

24 [1992] 2 MLJ 885.25 Ibid., at 885-6.

11

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 noexcessive delegation takes place. Hence the well settled principle thata provision in a statute conferring power on a member of the executiveto 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. 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.

12

3.2 Procedural 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

29 [1968] 2 MLJ 158.30 [1991] 3 MLJ 28.

13

issue would however, would be the circumstances of each case and

whether procedural ultra vires is applicable or otherwise.

14

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

15

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 the words of the Indian Supreme

Court, breathe consciousness into what can be the arbitrary mind

of the administration.

16

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

almost always bad men. - John Emerich Edward Dalberg-Acton, 1st

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 FederalConstitution In the Judicial Review of Public Law in Malaysia’[2002] 3 MLJ civ

Krishnan Arjunan, ‘Judicial Review and Appellate Powers: RecentTrend 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

17

Citation of Legal Authorities (OSCOLA) (4th

edition) available at <www.law.ox.ac.uk/oscola>

18