Q.
That being said about the influence of Executive in the making of Subsidiary Legislation, what are the available controls over such influence. What are the controls mechanism to ensure separation of powers?
A.
There are various controls in place and below are grouped under 3 areas.
- Judicial Control;
- Legislative Control; and
- Other Controls.
Judicial Control - Judicial Review is the most important of the controls. The Courts have control over subsidiary legislation through the process of judicial review. In Malaysia, the foundations for such review lie in subsection 23(1) and 87(d) of the Interpretation Acts 1948 and 1967 which, in effect, lay down the principle that any subsidiary legislation which is inconsistent with an Act of Parliament or State Enactment (including the enabling statute) shall be void to the extent of the inconsistency.
The Ultra Vires doctrine in judiciary review of subsidiary legislation.
Substantive ultra vires and Procedural ultra vires;
In substantive ultra vires, the recipient of the delegated power has made a subsidiary legislation beyond the limits of the power conferred either in the terms of the subject-matter, purposes or circumstances authorized by the enabling statute.
In procedural ultra vires, the recipient of the delegated power has failed to follow a mandatory procedure laid down in the enabling statute, for example, to give notice to affected parties to allow them to make objections before granting planning permission.
A case relating to building was sited for subsidiary legislation contravening procedural ultra vires, hence was declared void. This case is summarized here.
Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur (1992) 2 MLJ 393.
In this case concerning a developing order made by Dewan Bandaraya KL under section 22 of the Federal Territory (Planning) Act 1982 (Act 267), granting planning permission for the building of two blocks of apartments on a piece of land in an exclusive residential area, the Supreme Court quashed the order as on the facts, no notice of the application for planning permission as required under r5 of the Planning (Development) Rules of 1970 (which continues in force as if made under the 1982 Act) had been sent to the appellant. A notice had been sent to her but, due to the negligence of the officer concerned, to the wrong address. Thus, the developing order has contravened in the form of procedural ultra vires of the parent statute (Federal Territory (Planning) Act.
Legislative Control - As legislative is the machinery which enact the parent statute, it has the power to repeal the statute or revoke or vary the delegated powers.
An enabling statute may require legislation made under it to be laid before the legislature, either for the legislature's information or confirmation. Hence, subsidiary legislation are reviewed by the legislature, in theory. However, in Malaysia, 'laying provisions' are not very common. The original intention is to empower the 'administrators and experts' to draw out the subsidiary legislation, thus overlooking it again would not be very sensible or rendering the original intention redundant.
Thus, the 'laying provisions' are merely a way of a negative resolution or a affirmative resolution. For negative resolution, it means that unless it has a resolution annulling it in the Parliament, the subsidiary legislation is in force as it supposed to be. On the other hand, a affirmative resolution means a subsidiary legislation is not in effect, until within a prescribed period, the legislature passes a resolution affirming it.
Another possible method within legislative control on the subsidiary legislation is practised in England, which is called the 'Scrutiny Committee'. This committee keeps under review all subsidiary legislations and report its findings to the Parliament. But, again, this committee comprises of the members of the Dewan, thus may be just adding job redundant to the purpose of delegation of legislative powers.
Other Controls - Consultation and Publication.
For example, Act specifically provides that the Yang di-Pertuan Agong in consultation with the Commodities Trading Commission before making regulations for Financial Procedure Act 1957 (revised 1972). In Malaysia, there is no general statutory provision making prior consultation a formal requirement for the making of subsidiary legislation. Thus, consultation as a legal requirement has not yet developed, however, consultation as a matter of administrative practice does take place on a discretionary and ad hoc basis.
On Publication, likewise there is no general statutory provision requiring the publication of the subsidiary legislation in Malaysia. Thus, unless it is also published in the Gazette (for federal subsidiary legislation), under:
Tambahan Perundangan 'A'
Tambahan Perundangan 'B'
it is not publicised. And, in certain conditions, the authority making the subsidiary legislation may bring it into immediate effect as soon as it is made without any publication!
Ref:
Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 59-63.