subsidiary legislation

Definition of Subsidiary legislation in section 2 of the Interpretation Act 1948 and 1967 to mean, any proclamation rule, regulation, order, notification, by-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legislative effect. This category of law has become important as the business of government to gets more complicated. Subsidiary Legislations are made by the people or bodies who are authorized by the legislatures. The Interpretation Act 1967 defines subsidiary legislation as rules, regulations, by laws, order, notifications made under legislations. The Legislatures provide basic law, so subsidiary legislation is very important is insufficient to govern day-to-day matters. That is why the authority is delegated to delegate their legislative powers. In Article 150 of Federal Constitution, “Parliament can pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved”. The people or bodies who are authorized by the legislatures are the Yang di-Pertuan Agong who is the nominal head of the executive and the Prime Minister and cabinet is the real executive. The Cabinet is answerable to the Yang di-Pertuan Agong as the nominal head of the executive in the country. However, according to the democratic ruling system, the Chief Executive is the Prime Minister. This does not mean that the Yang di-Pertuan Agong is unable to voice any opinion, but rather that he must act on government advice, whatever his personal view might be. The Yang di-Pertuan Agong appoints a Cabinet to advise him on country's matter. The Cabinet consists of the Prime Minister and a number of Ministers who must all be members of Parliament. Besides that, the Government has set up various agencies to ensure the smooth enforcement of the law. It comprised of three main components, namely ministries, departments and statutory bodies. Delegations power to legislate is normally confined to matter of detail as the legislature has neither the time nor the technical knowledge to enact laws on every detail. One of the important advantages of subsidiary legislation is its flexibility in circumstances which demand this flexibility such as currency control, import duties, and so forth. In such situation it may be easily rescinded by the Minister if it becomes impractical or outdated. This power, originally conferred by section 23 of the interpretation and General Clauses Ordinance 1948, is now found in the Eleventh Schedule of the Federal Constitution. It states, ”where an Ordinance or Enactment confers power on any authority to make subsidiary legislation, such subsidiary legislation may at any time be amended, varied, rescinded or revoked by the same authority and it the same manner by and in which it was made”.(Hamid bin Ibrahim and Nasser bin Hamid, 9th February 1984 (federal Constitution), Malaysia Law Publishers Sdn Bhd). In other hands, an Act of Parliament or the State Assembly can only be amended or repealed by another Act of the same legislature, unless it has expressly authorized otherwise. Furthermore, a legislature is not in convened for emergency or special sessions.Courts also review the validity of subsidiary legislation by applying the doctrine of ultra vires. By this doctrine, any subsidiary legislation might be declared void if it is made in excess of statutory authority conferred by the parent Act, or a particular mandatory procedure prescribed by the parent Acts has not been followed or it is contrary to the Federal Constitution or State Constitution. Normally if a regulation or a by-law is made within the powers conferred and in accordance with the prescribed procedure, it is as much law as the parent Act itself. Nonetheless, there is a major difference between subsidiary legislation and an Act of a legislature.
Advantage
The advantage of subsidiary legislation becomes apparent in the event of a sudden emergency caused by political, economic or natural calamities when quick measures are required to meet the contingency. Subsidiary legislation can be passed very speedily as it does not have to undergo the various stages of procedure which has to be followed by Parliament or the State Legislative Assemblies. Similarly, if the need arise, subsidiary legislation can be just as speedily rescinded to meet the changing needs of society. Parliament does not have sufficient time to deal with detailed rules necessary to implement to law. Subsidiary legislation fulfils this need.
Some matters require the special skills and knowledge of experts in that area. Parliament itself may not have sufficient experts for this purpose. Thus, subsidiary legislation fulfils this need as well. Criticism, however has been leveled against subsidiary legislation especially in the United Kingdom which has a long tradition of elected governments. The criticism is primarily focused on the ground that too much legislative power is placed in the hands of non-elected and faceless civil servants who are not directly accountable to either Parliament or other people. This contention is not without merits because there is certainly an undermining effect on an elective system particularly if power to legislate is given too freely on matters of policy, which should remain, as far as possible, within the exclusive jurisdiction of an elected body. Over delegation may amount to an abdication by the legislature of its proper constitutional role in favour of the executive, and in Malaysia, where government has always had an overwhelming majority in Parliament, the legislature is reduced to a virtual “rubber stamp”. Where delegation is necessary, there should always be adequate control over it.

CONTROL OF SUB LEGISLATION There is a control of the subsidiary legislation which is consultation, publicity and parliament control. The elaborate on control of the subsidiary legislation are combining of both of way to control and reason the control of subsidiary legislation are applying. Commonly, it give a touch of delegation in parent Act in Parliament and State Assembly to formulated an Act for a country for used in public. Consultation is a one of the control of the subsidiary legislation. The prior consultation with organized interest groups and advisory bodies is sometimes conducted before regulations are made. In the United Kingdom, this practice is well established and it is the rules rather than the exception, although such consultation in most cases is informal in nature. It without giving people who will be affected an opportunity to discuss the proposal because a Minister would be unwise make regulation. Specific parent Acts may also make consultation mandatory before regulations are made so that failure to comply may render the regulations void as being procedurally ultra vires. Secondly is a publicity which is since ignorance of the law is, in general, no excuse for breaking it, rules or regulations are readily made available to the public as soon as they come into force. In Malaysia, it is the general practice that subsidiary legislation be published in the Gazette and will come into force on the date of publication or on such other date as may be specified. If a subsidiary legislation is not gazetted as required, it may be treated as invalid. In the United Kingdom, section 3(2) of the Statutory Instruments Act 1946 provides that it shall be a defence to criminal proceedings for violation of an instrument if it can be proved that such instrument has not been issued at the date of violation. There appears to be no equivalent statute in Malaysia although the principal is probably applicable. However, the proviso to section 20 of the Interpretation Act 1948 and 1967 on the retrospective effect of subsidiary legislation does state that “no person shall be made or become liable to any penalty in respect of any act done before the date on which the subsidiary legislation was published. There is no general law requiring antecedent publicity although that would indeed be a desirable step in the direction of a more open and transparent government. In the United States, section 553 of the Administrative Procedure Act 1946 requires that general notice of the terms or substance of proposed rules be published in the Federal Register, thus providing interested persons an opportunity to make representations. In Malaysia, it is perhaps fairly accurate to state that the vast majority of subsidiary legislation is made without mush antecedent publicity and they go largely unnoticed for a host of reasons including general ignorance and inability to comprehend legal language.

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. The parent Act which authorizes the making of subsidiary legislation is enacted by the legislation. Therefore, in the theory, the legislation can always exercise control over the delegate by repealing the provision or the Act itself. In practice, such control is seldom exercised because parliamentary time is limited and if an attempt is made by the opposition to repeal a parent act, the government will use its parliamentary majority to quash it. Other general procedures to scrutinize subsidiary legislation are available but most of them are quite ineffective. For instance, a parliamentary question to the Minister responsible may be raised. There could be a debate and possibly a motion when the speech from the Yang di-Pertuan Agong is being debated after the opening of parliament. Such procedures do have the effect of drawing the attention of the relevant Minister or the public but their effectiveness depends largely on the receptiveness of the Minister and his response to public opinion. The parent Act may require regulations or rules made under it to be laid before the legislation subject to a negative resolution, there is rules are effective unless there is a negative resolution passed by the legislature. Any member may move a prayer to annual the regulations or rules so laid. But if the legislature takes no action, silence is deemed consent. For example, section 8 of the Subordinate Courts Rules Act 1955 ( Revised 1971) requires all rules made by the Subordinate Courts Rules Committee be laid before the Dewan Rakyat as soon as possible, if at the following meeting of the Dewan Rakyat after such rules have been laid, a resolution annulling them is passed, they will become void. A similar provision also exists in the Courts of judicature Act (Revised 1972). Section 16(2) reads: “ Rules of court shall be laid before the Dewan Rakyat at the first meeting after their publication, and may be disapproved in whole or in part by a resolution of the Dewan Rakyat.” In contrast to the negative resolution procedure, a parent Act may require rules or regulations made there under to be laid before the legislature subject to an affirmative resolution. Unless such a resolution procedure is a more effective method of parliamentary control but it is rarely prescribed by the parent Act because it will take up parliamentary time.

The court also review the validity of subsidiary legislation by applying the doctrine of ultra vires. By this doctrine, any subsidiary legislation may be declared void it is made in excess of statutory authority conferred by the parent Act has not been followed, or if it is contrary to the Constitution. Normally if a regulation or a by-law is made within the powers conferred and in accordance with the prescribed procedure, it is as much law as the parent Act itself. Nonetheless, there is a major difference between subsidiary legislation and an Act of the legislature. A minister or a local authority does not possess unlimited powers such a person as the case may be, is bound to act within and in accordance with the parent statute. If this has not been observedthen any individual aggrieved by the subsidiary legislation may challenge its validity in court on the ground that it is ultra vires the parent Act. In contract, an Act of the legislation may only be challenged if it is against the Constitution or for instance, where the Act has delegated functions or subject-matter in contravention of a constitutional provision. The latter situation does not arise in England where Parliament is supreme, but in Malaysia being a federal country where the Constitution is supreme, Parliament as well as the State Assemblies must act in accordance with it. Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the court has a threefold task. First, to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorized to make. Secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description. Several local cases may be taken to illustrate 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.