INTRODUCTION

Federation of Malaysia, which applies a system of parliamentary

democracy, consists of thirteen states. Article 4 (1) of the Malaysia Act
1963 states that the Federal Constitution is the supreme law of the
federation. As provided by Article 32 (1) FC, the King (Yang Di-Pertuan
Agong, YDPA) acts as the Head of the Federation and is assisted by three
main bodies of the government, which are named as the Executive, the
Legislative, and the Judiciary. All of them have their own role and
responsibility, however, subjects of the Constitution, in which their powers
were derived from it.
It can be said that they do not clash with each other because each
body are obstructed from influencing the decision taken by another body.
This is done so that the court is not afraid of carrying out duties that can
affect adversely the process of administering justice. This practice also
braces societys confidence in the body as a neutral institution.1
Briefly, the executive body is in charge of matters of governing and
administration, either at the federal or state level. This body is responsible
for implementing the laws that have been passed by the legislative body
and act as an advisory body to the YDPA. Among members of the
executive body are the Prime Minister himself and ministers of the
government.
Meanwhile, the legislatives function is to enact, amend and pass
laws. It is a must for the laws drawn up by the legislative body, called as
1Mahyuddin Daud et. al., Introduction To Law, CFS IIUM Petaling Jaya

the Bill, to have the consent of the YDPA (for the Federation) and the
Sultan (for the State) within a stipulated time before it can be enforced.

The Judiciary, on the other hand, is responsible for keeping eyes on

the executive so that it does not abuse its power in creating up laws which
may probably go against the provisions in the Federal Constitution itself.
Hence, the judiciary can determine whether the laws are enforceable or
not. Apart from that, this body also has the role in upholding justice where
it judges all offences, imposes punishment and settles disputes between
parties in the Federation.

SUBSIDIARY LEGISLATION
The legislation is the law enacted by the legislature, while that
made through powers delegated by the legislature to a body or person via
an enabling or parent statuteis called delegated or subsidiary legislation.
Section 3 of the Interpretation Act 1948 & 1967 (Act 388)

defines such

legislation asany proclamation, rule, regulation, order, notification, by-law

or other instrument made under any Act, Ordinance or other lawful
authority and having legislative effect. Simply, subsidiary legislation is a
piece of written law that acts as enhancement or supplement to the
parent Act of Parliament.

2(Consolidated and Revised 1989)

The main factor for the subsidiary legislationbecome desirable and

necessary are that modern governments are multifunctional and modern
legislatures work under severe limitations.As the legislatures provide basic
law, so subsidiary legislation is very vital to governs day-to-day matters
because its function is to provide a detailed discussion on specific
matters.
One of the important reasons why the legislature has to delegate its
law-making power is that the legislature has insufficient time to enact all
legislation and go precisely in every aspect as required in a modern
society. By allowing the government, ministers or other concerned
authority to have the power to regulate administrative details by means of
delegated, this help to economise parliamentary time and reduce
pressure on them in making non-essential law.
Moreover, much modern legislation is highly deal with technical and
scientific matters, for example, on environmental safety, industrial
problems and health regulations, among others. By having subsidiary
legislation, the technical matters can be handled by the experts or
administrators on the job who are well versed with the technicalities
involved somehow the Parliament can focus on the main areas of
principles only.3
Besides,

the

parliamentary

is

not

continuously

in

session

throughout the year and its legislative procedures are generally quite slow
and complex [Ali, 2015]. Hence, in circumstances where the laws need to
3Wan Arfah Hamzah, A First Look At The Malaysian Legal System (1st Edition),
(Oxford Fajar, 2009), p. 59

be made quickly, such as in an emergency, delegation necessarily needs

to be done. Therefore by having subsidiary legislation, it enables the
relevant authority to respond to new or unexpected situations by
amending or developing statutory instruments.4
Likewise, subsidiary legislation is flexible and able to cope with the
current requirement in situations such as currency control, import duties,
and so forth. This power is conferred by s 22 of the Interpretation Acts
1948 and 1967, where it provides that subsidiary legislation may at any
time be amended, varied, added to or revoked by the same authority and
it the same manner by and in which it was made.5

CONTROLS OVER SUBSIDIARY LEGISLATION

The

subsidiary

legislation

is

momentous

tool

of

modern

government. However, it has raised widespread concern. This is because

the practice of delegating power to another body to make subsidiary
legislation has several defects.
First is the delegation of power to make the delegated legislation
may lead to abuse of power. For instance, lack of prior discussion and
consultation, and excess of the power delegated or sub-delegation to
other persons or bodies where the legislature has not clearly identified the
4 Ashghar Ali Ali Mohamed, Malaysian Legal System (1st Edition), p. 221
5Hamid bin Ibrahim and Nasser bin Hamid, 9th February 1984 (Federal
Constitution, 11th Schedule), Malaysia Law Publishers Sdn Bhd).

recipient of the delegated power.6 This is because such law may probably
be made by administrators who are neither elected nor directly
accountable to the legislature or the public. Also, the recipient of the
delegated legislation will tend to be ultra vires, where it makes law
beyond the framework provided by the parent act.
The second defect is, subsidiary legislation is offending the doctrine
of separation of power. This is because subsidiary legislation is essentially
legislation

made

by

the

executive,

and

executive

law-making

is

inconsistent with the separation of power notion where only the

legislature has the power to make law and there cannot be any
interference to the legislative to make law.7
The third defect is the problem in apprehending the subsidiary
legislation. This refers to situations when the law is enacted by the expert
person in that particular field. It will be difficult for the layperson to
understand the language or terms of the law since it is quite technical and
require advance knowledge in that area.
Therefore, there is a need for the controls and safeguard to be
imposed upon subsidiary legislation in order for it benefits to be fully
utilized and its disadvantages to be minimized. This can be done either by
judicial control or legislative control.
JUDICIAL CONTROL
6Ibid at 3
7Amir A. F. (2012), Malaysian Legal System - Past years attempt 2
[online]Retrieved at:http://www.slideshare.net/AhmadFarouqAmir/past-yearsattempt-2[Accessed 19 Nov.2016].

In this view, the focus is on judicial control. Also known as judicial

review, it is the most important of the controls. This refers to the control of
the courts over subsidiary legislation by applying the doctrine of ultra
vires when a defence is raised by the accused or a challenge is made by
an aggrieved person on the validity of subsidiary legislation. 8The rule
under the doctrine of ultra vires is that no one may overstep the
boundaries of the power confer on him.
The purpose of the judicial review jurisdiction is to ensure that the
individual is given fair treatment by the authority in the exercise of its
decision making power; it is not part of the purpose of judicial review
jurisdiction to substitute the opinion of the judiciary for that of the
authority constituted by law to decide the matters in question.9
Judicial review within Malaysian context has been defined as the
process by which the High Court exercises its supervisory jurisdiction over
the proceedings and decisions of inferior courts, tribunals and other
bodies or persons who carry out quasi-judicial functions who are charged
with the performance of public acts and duties.10

8Ibid at 3, p. 60
9Mokhtar, K. A. and Alias, S. A. (2011), The Role Of Judicial Review in Malaysia as
a Tool of Check and Balance under Doctrine of Separation of Powers [online]
Chapter 24, p. 148.Available at: https://gms101.files.wordpress.com/2013/02/therole-of-judicial-review-in-malaysia-as-a-tool-of-check-and-balance-under-thedoctrine-of-seperation-of-powers.pdf [Accessed 19 Nov.2016].
10 Wan Azlan Ahmad and Andri Aidham, Judicial Review Handbook (2nd Edition),
(LexisNexis, 2007) p. 76.

The High Court in Malaysia exercise judicial review under the following
grounds:
i.

Unconstitutionality

The judiciary can, by virtue of Article 4(1) of the Federal Constitution,

exercise

control

over

subsidiary

legislation

by

determining

the

constitutionality and if there is a need, declare invalid either (1) the

subsidiary legislation or (2) the parent Act itself.
(1)Subsidiary legislation is unconstitutional
For a subsidiary legislation to be valid, it must be intra vires the parent
statute and the Federal Constitution. It cannot goes beyond the scope of
the authority conferred by the statute pursuant to which it is made or in
other words, ultra vires the constitution.For this purpose, judicial review
on the subsidiary legislation can be made by virtue of Section 23(1) of the
Interpretation Acts 1948 & 1967 which stated that, Any subsidiary
legislation that is inconsistent with an Act (including the enabling statute)
shall be void to the extent of the inconsistency.
The principle behind this ground is that if the subsidiary legislation is
contradicted with any constitutional provisions, hence that subsidiary
legislation can be stroked down by courts. The application of this ground
can be seen in several cases. For example, in the case Victoria Jayasalee
Martin v Majlis Agama Islam Wilayah Persekutuan & Anor.11The Court of
11[2013] 6 MLJ 646

Appeal held that r. 10 of the Peguam Syarie Rules 1993, which provides
that a person may be admitted as a peguam syarie if he is a Muslim had
infringed the s. 59(1) of the Administration of Islamic Law (Federal
Territories) Act 1993 which does not limit the power of the Majlis to admit
a person as a peguam syarie to Muslims only.
The same decision in the Victorias case was upheld in case of Teh Cheng
Poh,12 where the Privy Council declared that the Regulations 197513 that
was issued by YDPA under Ordinance 1969,14 was ultra vires the
Constitution hence void as per Article 150(2)on the argument that
Parliament had sat after the Proclamation, making YDPA to no longer
possess power to make essential legislations having the force of
law.However, in Ooi Kean Thong & Anor v. PP,

15

it was held that s. 8(1) of

the Parks (Federal Territory) By-laws 1981 which deals with prohibiting any
person behaving disorderly in the public park of DBKL did not contrary to
any of the rights as enshrined in Arts. 5 or 8 of the Constitution.16
Upon the discussion above, the effectiveness of this control mechanism
can be said to exist as court may declared the concerned subsidiary
legislation to be void on the ground that its contradicting with any
constitutions provision, although at the same time this power is
12Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238
13Essential (Security Cases) Regulations 1975
14Emergency (Essential Power) Ordinance 1969
15[2006] 3 MLJ 389
16Ibid at 4, p. 224

subjected to the certain special circumstances such as proclamations

issued during emergency with reference to the Article 150 (1) FC, which
mentioned that 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.
(2)Parent Act is unconstitutional
It is important to look atthe parent Act to ensure whether is constitutional
or not. This ground is subjected to the judicial review as per under
Constitutional Law. The principle here is that if the parent act which
delegated

legislative

powers

to

the

authority

concerned

is

itself

unconstitutional, thus, any subsidiary legislation made pursuant to the

parent act shall become void automatically.
In the case of Public Prosecutor v Khong Teng Khen, 17the validity of the
Essential (Security Cases) Regulations, 1975 and the Essential (Security
Cases) (Amendment) Regulations1975 was challenged by the learned trial
judge on the ground that the Regulations are inconsistent with certain
provisions of the Federal Constitution and Clause. Unfortunately, such
argument was rejected by the Federal Court where Suffian L.P. and Wan
Suleiman F.J. held that by virtue of subsection (4) of section 2 of the
Emergency (Essential Powers) Ordinance 1969, the regulations were valid
notwithstanding that they are inconsistent with the Constitution, but in
fact it had not been shown that the regulations were inconsistent with the
17 [1976] 2 MLJ 166

Constitution.Here, the effectiveness of this control will highly depend on

the discreetness of the judges in balancing the right of an individual and
the public interest as whole.
ii.

Ultra vires

This section is going to present the doctrine of ultra vires. More

specifically, it is going to discuss substantive ultra vires and procedural
ultra vires as two of other grounds in which the high court in Malaysia
exercises judicial review on subsidiary legislations.
We have noted above that the practice of giving the power to another
body instead of the parliament - to make subsidiary legislation may lead
to abuse. This doctrine of ultra vires is the basic doctrine in administrative
law. It envisages that an authority can exercise only so much power as is
conferred on it by law. An action of the authority is intra vires when it falls
within the limits of the power conferred on it but ultra vires if it goes
outside this limit.18
In other words, it implies that discretionary powers must be exercised for
the purpose for which they were granted. At the inception, the application
of the doctrine was designed exclusively to ensure that administrative
authorities do not exceed or abuse their legal powers. If they did so, the
courts declared such acts ultra vires and therefore, invalid.19

18"Doctrine Of Substantive Ultra Vires Constitutional Law Essay." UKessays.com.

11 2013. All Answers Ltd. 12 2016 <http://www.lawteacher.net/free-lawessays/administrative-law/doctrine-of-substantive-ultra-vires-constitutional-lawessay.php?cref=1>.

Administrative power is generally derived from legislation. Legislation

confers power on administrative authorities for specified purposes,
sometimes, laying down the procedure to be followed in respect of
exercise of such power. More often than not, this legislation stipulates the
limits of such conferred power. If an administrative authority acts without
power, in excess of power or abuses power, such acts are liable to be
rendered invalid on the ground of substantive ultra vires.
When an administrative authority acts in contravention of mandatory
rules stipulated in the legislation or does not comply with the principles of
natural justice, such acts are liable to be rendered invalid on the ground of
procedural ultra vires.20 Therefore, the doctrine of ultra vires has two
aspects, which are substantive ultra vires and procedural ultra vires.
These two aspects are going to be discussed in details in the following
lines with related decided cases.
(1)Substantive ultra vires
We have noted above that if an administrative authority acts without
power, in excess of power or abuses power, such acts are liable to be
rendered invalid on the ground of substantive ultra vires. Thus,
substantive ultra vires means that the rule making authority has no
substantive power under the empowering act to make rules in question. It

19Chamila S Talagala, THE SCOPE OF THE DOCTRINE OF LEGITIMATE

EXPECTATION AS A GROUND OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION,
JOUR, n.d., 10.
20ibid

refers to the scope, extent and range of power conferred by the parent
statute to make delegated legislation.21
The principle underlying is that subordinate agencies have no power to
legislate on any matter more than the scope or power that had been
conferred towards them by the Parliament. Here, the court is said to have
power to declare such excessive of power on part of the subordinate
agencies to be invalid, thus making the law made by them also to be void.
A typical case of substantive ultra vires is of Arunamari v Lembaga 22where
in 2007 the Government was informed about the losses suffered by the
local millers and packers of cooking oil as a consequence of a combined
effect of rising prices of crude oil and the ceiling price imposed by the
Ministry of Domestic, Trade and Consumer Affairs on the sale of the
cooking oil to local consumers. To mitigate the losses suffered by the
millers and packers of cooking oil, the Government reactivated the
Cooking Oil Subsidy Scheme (COSS). A similar scheme was successfully
introduced in year 1999 and 2004.
In order to finance the COSS, the Minister, after consultation with the
Ministry of Finance, issued the 2007 Order. It was made under s. 35 of the
Malaysian Palm Oil Board Act 1998 ("the Act").

It was held that the

Malaysian palm oil board 2007 was ultra vires s.33 of the Malaysian palm
oil ACT 1998.
21"Doctrine Of Substantive Ultra Vires Constitutional Law Essay." UKessays.com.
11 2013. All Answers Ltd. 12 2016 <http://www.lawteacher.net/free-lawessays/administrative-law/doctrine-of-substantive-ultra-vires-constitutional-lawessay.php?cref=1>.
22 [2015] 7 CLJ 149

Another case is Major Phang v Brigadier Jeneral Dato Yahya bin

Yusof23where the respondent, the convening authority of a court martial,
purporting to act under r 63(3) of the Armed Forces (Court Martial) Rules
1976, disapproved of, and dissolved, the decision of court martial and
made an order for a fresh trial to be convened and for the applicant for an
order to be retried on the same charges.
In an application by the applicant for an order of certiorari to quash the
respondents decision and an order prohibiting respondent from thus
proceeding, the High Court ruled that r 63(3) was void to the extent that it
confers jurisdiction on the convening authority to approve or disapprove a
decision of a court martial contrary to s.119 of the Armed Forces Act 1972.
That section authorizes the Minister of Defence to make only rules of
procedure relating to investigation and trial of offences by court martial.
(2)Procedural ultra vires
Occurs when procedures under the enabling act have failed to be followed
and refers mainly to the situation where a public authority has over
stepped its powers. Instruments will be held to be ultra vires if a
mandatory procedural requirement has not been followed, but will not be
if the procedure is only directory.
In other words, procedural ultra vires occurs when procedures laid down in
the enabling act have failed to be followed, for example, to give notice to
affected parties to allow them

to make objections before granting

planning permission. Refers mainly to the situation where a public

23[1990] 1 MLJ 252

authority has overstepped its powers. 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.
A

practical

example

can

be

found

in

Datin

Azizah

Dewan

Bandaraya,24where a developing order made under s 22 of the Federal

Territory (Planning Act), was squashed by the Supreme Court as on the
facts, no notice of the application for planning permission as required
under r 5 of the Planning (Development) Rules of 1970 had been sent to
the appellant. A notice had been sent to her but, due to the officer
concerned, to the wrong address.

CONCLUSION
Thus, if the subordinate or delegated legislation goes beyond the scope of
authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the
subordinate or delegated legislation may be challenged before the Courts
on this ground. It is a mechanism to curb down the exploitation of power
by the administrative authority as we all know that power corrupts and
absolute power corrupts absolutely". However in this field there is lack of
development and there is no substantial change in the concept all though
24[1997] 2 CLJ 248

the changing nature of the current legislative method has widen the
horizon of the power of the authority by giving them power to act
according to the need of the time, even sometimes travelling beyond the
restrictions.

BIBLIOGRAPHY
Books
1. Ali Mohamed, A. (2016) Malaysian Legal System(1st Edition),
2. Daud, M., Md. Sidek, M. S., Termizi M. Introduction To Law, CFS IIUM
Petaling Jaya,
3. Hamzah, W. A., A First Look At The Malaysian Legal System (1st
Edition), (Oxford Fajar, 2009).
Article
1. Mokhtar, K. A. and Alias, S. A. (2011), The Role Of Judicial Review in

Malaysia as a Tool of Check and Balance under Doctrine of

Separation of Powers