Q.
What is subsidiary legislation, and what are the purposes and challenges of such legislation?
A.
Laws made by legislature is called primary legislation. In circumstances that the Legislature empowers another agency or authority to make law under a parent legislation or parent statue, it is called subsidiary legislation. Other terms used are delegated or subordinate legislation.
In Malaysia, section 3 of the Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989) defines such legislation as 'any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Ordinance or other lawful authority and having legislative effect.'
A local government by-law is an example of a subsidiary legislation. A code of conduct regulation in a professional body to expel an unethical member is also a subsidiary legislation.
The reasons for having subsidiary legislation are many, among others are listed below.
Modern governments are limited with time and expertise, technically required to formulate laws and regulations suited to the setting at different scenarios.
- the legislature has insufficient time to enact all the legislation, detailed in every aspect, required in a modern society;
- much modern legislation is highly technical and is best left to experts or administrators on the job;
- the legislature is not continuously in session and its legislative procedure are cumbersome. Hence, delegation is necessary in situations where laws need to be made quickly, such as in emergencies, or to be amended or repealed quickly.
However, there is argument of executive power infringing into the legislative by having these subsidiary legislation. This is because subsidiary legislation is essentially legislation made by the executive, and executive law-making is inconsistent with the separation of power doctrine.
Moreover, such law-making by administrators who are neither elected nor directly accountable to the legislature or the public is vulnerable to abuse, for example, lack of prior discussion and consultation, and excess of the power delegated to other persons or bodies where the legislature has not clearly defined.
Ref:Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 59-60.