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MALAYSIAN LEGAL SYSTEM Sources of law – subsidiary legislation

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Information about MALAYSIAN LEGAL SYSTEM Sources of law – subsidiary legislation
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Published on March 3, 2014

Author: xareejx

Source: slideshare.net

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Also referred to as:     Delegated legislation Subordinate legislation Secondary legislation Law made by an authority other than the legislature under powers given to it by a primary / parent legislation.

 Section 3 of the Interpretations Act 1948 & 1967: “subsidiary legislation” means any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.

 Parent Act: the Act, Enactment or Ordinance that confers power to the relevant authority to make the subsidiary legislation.  The relevant authority then makes the subsidiary legislation (either in the form of Rules, Regulations, Orders, Notifications, Bylaws, etc.) as required by the Parent Act.

 Employees Social Security (Supply) Regulations 2006  Legal Aid (Mediation) Regulations 2006

  S 601 of the Employment Act 1955: “The Minister may, by regulation…provide for the entitlement of employees to, and for the payment by the employer of – (a) termination benefits; (b) lay-off benefits; and (c) retirement benefits”.  The Minister made the regulation known as the Employment (termination and Lay-Off Benefits) Regulation 1980.

   Employment Act 1955  Parent Act (made by the legislature). In the Parent Act, the Parliament gives power to the Minister (who is not the legislature) to make regulation. The regulation made by the Minister, i.e. the Employment (Termination and Lay-Off Benefits) Regulation 1980, is called subsidiary legislation.

makes PARENT ACT Employment Act 1955 LEGISLATURE Parliament gives power to MINISTER (not legislature but executive) makes SUBSIDIARY LEGISLATION Employment (Termination and Lay-Off Benefits) Regulation 1980

S 95(2), Police Act 1967: “The YDPA may make rules relating to all or any part of the following matters: … (d) the administration of the Police Fund;..”   The Police Fund Rules 1975 was made.    Parliament gives power to YDPA Parent Act: Police Act 1967 Subsidiary legislation: Police Fund Rules 1975

   S 77, Legal Profession Act 1976: The Bar Council may, with the approval of the Attorney-General make rules for regulating the professional practice, etiquette, conduct, and discipline of advocates and solicitors. The Legal Profession (Practice and Etiquette) Rules 1978 was made.

   S 24(1) Housing Developers (Control Licensing) Act 1966 The Minister may make regulations for the purpose of carrying into effect the provisions of this Act. Housing Developers (Control and Licensing) Regulation 1989

  S 202, Insurance Act 1963: The Bank, with the approval of the Minister, or the Minister, as the case may be, may make regulations for carrying into effect the objects of this Act or any provisions of this Act and for prescribing anything which under this Act is to be prescribed.

“There is nothing to prevent Parliament from delegating power to legislate on minor and administrative matters and for this very reason, we have in addition to statutes, innumerable subordinate or subsidiary legislation having the force of law. Without these subordinate or subsidiary legislation, the Government machinery will not be able to function effectively”. -Per HashimYeop Sani J in S Kulasingam v Commissioner of Land, Federal Territory [1982] 1 MLJ 204, 209

   Saves time: Legislature only deals with broad principles of the law. Details are left to the relevant authority. Lack of expertise on the part of the legislature. E.g. technical matters are handled by the experts in the Environment. Flexibility: subsidiary legislation can be brought in immediately to control a situation without the need to undergo the parliamentary procedures.

   Offends the doctrine of separation of powers. Has the tendency of being misused or abused. The executive (as the body which makes subsidiary legislation) is not accountable for any rules made.

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