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Effectiveness of judicial control

Administrative Law (Universiti Malaya)

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Effectiveness of Judicial Control in Malaysia

Implied Limitations

As we have explained above, there are four types of implied limitations and we shall look at

their effectiveness one by one.

The first implied limitation is exclusion of courts. Despite case laws such as Chester v

Bateson1 and R & W Paul Ltd v The Wheat Commission2 where the court held that delegate

has no power to exclude the ruling of court on disputed questions of law, this limitation is

not very effective as the executive can easily insert ouster clause in the making of subsidiary

legislation which ousts the courts to review the legislation as long as there is an express

authorization of the Parent Act. We can say that as long as the parent act expressly provide

for the exclusion of court, it will be deemed as the intention of the parliament and must be

adhered to. Therefore, the subsidiary legislation which oust the court review is considered

valid despite violating a person’s fundamental liberty. The court has to be very creative in

interpreting the legislation so that the court will have jurisdiction to review the legislation.

In the Malaysian case of Madan Lal v Ho Siew Bee,3 the court held that a privative clause in

s15(1) of the Control of Rent Act 1966 (now repealed by the Control of Rent (Repeal) Act

1997 (Act 572)) could not exclude certiorari for jurisdictional defects in the order of the Rent

Appeal Board in that case.

The next limitation is financial levy. S44 of the Interpretation Acts 1948 and 1967 gives an

expansive dimension to the power to make subsidiary legislation prescribing charges or

fees, it can be implied that a charge or fee cannot be levied in the absence of any specific

1
[1920] 1 KB 829
2
[1937] AC 139
3
[1983] 1 MLJ 105

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authorisation from the parent act. S17A of the Interpretation Acts also directs a

construction that would promote the purpose or object underlying an Act. In Palm Oil

Research and Development Board Malaysia v Premium Vegetable Oils Sdn Bhd 4 the Federal

Court said that s17A ‘applies to all statutes including taxing statutes’. 5 Gopal Sri Ram CJ also

said that it is the courts’ constitutional duty to ensure that no excessive delegation takes

place. Therefore, only when the subsidiary legislation to impose a charge or fee is construed

strictly that this limitation will be effective. However, as long as the parent act confers the

power to the administrative power to impose fee, then the legislation is valid.

Retrospectivity may not be very effective as well as it is only applicable in criminal but not

civil cases. So, there is no constitutional restriction on Parliament enacting a retrospective

law of a civil nature. Thus, a delegate can do so through subsidiary legislation when the

parent statute authorising it either expressly or by necessary implication. S20 of the

Interpretation Acts provides that a subsidiary legislation may be made to operate

retrospectively ‘to any date’ which is not earlier than ‘the commencement of the Act’ under

which it is made. However, in the High Court case of Wong Pot Heng v Kerajaan Malaysia,6

s20 of the Interpretation Act has been excluded, ‘the power to make subsidiary legislation

with retrospective effect must be given expressly to the person or body by the section

conferring power on the person or body, in clear and unambiguous words’.7

The last implied limitation is unreasonableness. This is the only way which allows the courts

to review subsidiary legislation and it is considered the most effective way of judicial control

over subsidiary legislation. Unlike other judicial controls,where the court will refer to various

4
[2005] 3 MLJ 97.
5
Ibid at 109.
6
[1992] 2 MLJ 885.
7
Ibid at 892.

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written laws such as the Parent Act or the Federal Constitution to determine the validity of a

subsidiary legislation. We could say that these judicial controls are rigid in the sense that no

relevant consideration can be given, the question is solely whether the relevant written laws

allow for that particular subsidiary legislation. However, for unreasonableness, the court will

actually look into the contents and facts of each case to reach a judgement and it is decided

on a case-by-case basis. If the case fulfils any requirements under the test of

unreasonableness established in the case of Kruse v Johnson8, the court could declare that

particular subsidiary legislation invalid on the ground that it is nearly impossible to be

imposed or create unnecessary burden on the concerned parties as stated in the case of

Arlidge v Islington Corporation9.The doctrine of unreasonableness is fully operative in India.

Hence, the Indian courts are increasingly using article 14 of the Indian Constitution to

invalidate subsidiary legislation which it regards as unreasonable. 10 The doctrine of

unreasonableness is based on a more solid foundation than on common law principles

alone. It is possible that in the future the Malaysian courts may follow India and use article 8

of our Federal Constitution in a similar way to Indian use of article 14 as suggested by MP

Jain in his book.

Unconstitutionality

When the parent statute itself is unconstitutional, then the subsidiary legislation

automatically will become unconstitutional as well. In Johnson Tan Han Seng v Public

Prosecutor,11 however, the Federal Court rejected the argument that the Emergency

(Essential Powers) Ordinance 1969 had lapsed and ceased to be law by effluxion of time

8
[1898] 2 QB 91
9
[1909] 2 KB 127
10
Air India v Nergesh Meerza AIR 1980 SC 1829
11
[1977] 2 MLJ 66.

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causing the regulations made thereunder also void. The Court held that it was for the

executive and not for the courts to decide whether a proclamation of emergency under

article 150(1) of the Federal Constitution should or should not be terminated. In Osman v

Public Prosecutor,12 certain emergency regulations under Emergency (Essential Powers) Act

1964 were challenged as unconstitutional as they infringed article 8 of the Federal

Constitution. The Privy Council rejected the argument on the ground that emergency

regulations could not be held to be unconstitutional because of article 150(6). From the

cases stated above, it can be said that these subsidiary legislation relating particularly to

emergency provisions, constantly comes under the protection or cover of certain clauses

under the Federal Constitution such as Art 150(1) and Art 150(6). The courts were reluctant

to declare a subsidiary legislation invalid as they construe the provisions in Federal

Constitution strictly. In such a case, declaring a subsidiary legislation invalid is a rarity. Thus,

it is not an effective measure.

Therefore, the courts have to be very creative to declare the subsidiary legislation as

unconstitutional. If not, it will not be effective.

Ultra Vires

We will first look at procedural ultra vires. In the case of Wong Keng Sam v Pritam Singh

Brar,13 Wee Chong Jin CJ stated that any breach of, or non-compliance with, a rule which is

not mandatory but only directory as being ‘purely procedural’ ‘does not give a person

aggrieved thereby a legal right to redress in a court of law’. Furthermore, it is extremely

difficult to draw the difference between a mandatory and a directory procedure rule. If

there is no clear guideline regarding a mandatory or a directory procedure rule, delegates

12
[1968] 2 MLJ 137.
13
[1968] 2 MLJ 158.

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would have a hard time distinguishing the difference and mistakes are bound to be made

along the process in enacting a subsidiary legislation. Therefore, this type of control may not

be very effective.

In substantive ultra vires, as long as the parent act gives specific power to the delegates,

then the subsidiary legislation cannot be substantively ultra vires. The efficacy of judicial

review of subsidiary legislation is dependent upon the breadth of the statutory formula

conferring power to make subsidiary legislation. If the power delegated by the statute is in a

broad and general terms, there will a lesser chance of the subsidiary legislation falling

outside the scope of the power conferred. In short, it means that the court has a lesser

chance to control if a broader power has been delegated and vice versa. The biggest

problem is that when the legislature delegates power to enact a subsidiary legislation, there

are no policies or principles to act as a guideline for the extent of the power conferred for

delegate to enforce. Therefore, it is not an effective control.

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