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MALAYSIAN LEGAL SYSTEM Sources of law – subsidiary legislation part 2

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Information about MALAYSIAN LEGAL SYSTEM Sources of law – subsidiary legislation part 2
Education

Published on March 6, 2014

Author: xareejx

Source: slideshare.net

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 By the following methods:  Preliminary control Parliamentary control Judicial control  

   By consulting the effected groups and advisory bodies before making the subsidiary legislation. This is more common in UK and US. In Malaysia, the Parent Act determines whether consultation is mandatory or merely recommended.

 By publication in the Gazette.  Section 86 Interpretation Act 1948 & 1967  (1) Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.

 (2) Any such subsidiary legislation may be made to operate retrospectively to any date not being a date earlier than the commencement of the Act of Parliament, Ordinance or Enactment under which such subsidiary legislation is made.

 E.g. s 77(2) Legal Profession Act 1976: “Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette”.

  1. Parliament can revoke or rescind the subsidiary legislation by repealing the Parent Act. (Since it was Parliament that authorised subsidiary legislation). However, in practice this seldom happens.

 Daihatsu (M) Sdn Bhd v PP [1987] 1 MLJ 88  Court: If a statute under which by-laws are made is repealed, these by-laws are impliedly repealed. 

The appellants were charged for using their premises for the trade of a motor car dealer without a licence from the municipal council --Majlis Perbandaran Petaling Jaya (MPPJ).  Contravened by-law 1(51) of Part VI of the Petaling Jaya Town Area (Amendment) By-Laws 1975.  The by-law was made pursuant to section 16(1) of the Town Boards Enactment which empowered the MPPJ to make such by-laws. 

 Section 166 of the Local Government Act 1976 repealed the whole of the Town Boards Enactment. By virtue of this section 166 thereby repealed section 16(1) of the Town Boards Enactment.  Held: The by-laws made by the MPPJ pursuant to the Town Board Enactment ceased to be valid on repeal of section 16(1) of the Enactment by section 166 of the Local Government Act 1976.

    2. Laying procedure Subsidiary legislation has o follow the procedure set by Parliament (if any). E.g. S 36(2) Financial Procedure Act provides: “Regulations made under this section shall when made have full force and effect and shall be laid before the Dewan Rakyat as soon as possible after they are made”.

 E.g. S 8(2) Summons and Warrants (Special Provision) Act: “Any rules made under this section shall be laid before each House of Parliament”.

   3. Parliamentary Scrutiny Committee To report to the Parliament of any subsidiary legislation made. (effective in UK, India and Australia)

   Control by the courts. By applying the doctrine of ultra vires (in Latin “beyond powers”). The rule under the doctrine of ultra vires is that no one may overstep the boundaries of the power conferred to him.

 It is the power of the High Court to exercise judicial review under the following grounds: i. Subsidiary legislation is unconstitutional Parent Act is unconstitutional Substantive ultra vires Procedural ultra vires ii. iii. iv.

   Subsidiary legislation is inconsistent with a provision in the Federal Constitution. In other words, it is ultra vires the constitution. Effect: subsidiary legislation becomes void.

 Exception: proclamations issued during emergency shall be valid notwithstanding it being inconsistent with the constitution. Article 150. (1) FC: “If the YDPA is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a proclamation of emergency making therein a declaration to that effect.” 

   The appellants were charged with possession of firearms or ammunition in a security area. The Essential (Security Cases) (Amendment) Regulations 1975 were declared to be ultra vires the Constitution because it was contrary to Article 150 (2). Once Parliament had sat on February 20, 1971, the YDPA no longer had any power to make Essential Regulations having the force of law.

  The parent act which delegated legislative powers to the authority concerned is itself unconstitutional. Therefore, any subsidiary legislation made pursuant to the parent act shall become void.

  The subsidiary legislation is ultra vires the parent act. In other words, the subsidiary legislation goes beyond the scope of the authority conferred by the parent act.

 Court has power to review the subsidiary legislation by virtue of Section 23(1) of the Interpretation Acts 1948 & 1967: “Any subsidiary legislation that is inconsistent with an Act (including the Act under which the subsidiary legislation was made) shall be void to the extent of the inconsistency.”

 S 118(5) Road Traffic Ordinance 1958: “… the Licensing Board in exercising its discretion under this section shall give preference to an application from a Malay…”  The Board was therefore acting ultra vires in imposing a further condition that only a Malay driver could be employed on the vehicle

Court: It is clear law that no rule, regulation or by-law made under statutory powers must go beyond or be repugnant to the enactment under which they are made. It is also trite law that the validity of delegated legislation as a general rule can be canvassed by the Courts, and that in the absence of express statutory provision to the contrary, the Courts may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created. 

  Goods belonging to the resp in the custody of the appl went missing. Appl enacted a by-law pursuant to the Port Authority Act 1963 to limit its liability.

  Court By-law 91(1) of the Port Swettenham Authority By-laws, 1965 is invalid as it is ultra vires section 29(1)(g) of the Port Authorities Act, 1963, in so far as it purported to limit the Port Authority's liability in respect of a loss occurring with the actual fault or privy of the Authority; and also because it did not only limit but wholly excluded the liability of the Port Authority for the loss of any goods caused by their own misconduct or negligence.

 Section 29(1)(g) of the 1963 Act confers no power to exclude but only to limit liability.

  The subsidiary legislation was not made in accordance with the procedures laid down by the parent act. The procedural requirement in the parent act must be a mandatory procedure in order for the subsidiary legislation to be declared invalid on the ground of procedural ultra vires.

   Example: “…the authority shall consult the affected group…” “Regulations made under this section shall when made have full force and effect and shall be laid before the Dewan Rakyat as soon as they are made”

   Delegatus non potest delegare A delegate cannot further delegate his power to someone else Exception: when subdelegation is expressly authorised by statute.

   Example: Article 144(5B) “… all the powers and functions of the Public Services Commission or the Education Service Commission established under Article 139 and Article 141A … may be exercised by a board appointed by the YDPA”.

PUBLIC SERVICES COMMISSION subdelegate PUBLIC SERVICES DISCIPLINARY BOARD

  Eleventh Schedule, FC Subsidiary legislation may be revoked, rescinded, amended, or varied by the same authority

  S 87 Interpretation Acts “subsidiary legislation may at any time be amended, varied, rescinded or revoked by the same authority and in the same manner by and in which it was made”

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