DEFINITION

— Law made through powers delegated by the legislature

to a body or person via an enabling or parent statute.
— S.3 of Interpretation Acts 1948 and 1967 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.
PARENT ACT SPECIFIC PROVISION SUBSIDIARY
UNDER PARENT ACT LEGISLATION
(enabling provision)
ROAD TRANSPORT ACT Section 66 of the Road MOTOR VEHICLES
1987 Transport Act 1987 (CONTRUCTION AND
USE)
(AMENDMENT) RULES
2010
 HIGHLY
TECHNICAL

LEGISLATIVE
INSUFFICIENT
PROCESS ARE
TIME
CUMBERSOME

WHY
SUBSIDIARY
LEGISLATION
 CONTROLS OVER SL:WHY ?
1. Made by executive – inconsistent with the doctrine
of separation of powers
2. Vulnerable to abuse :-
§ Not elected by people
§ Lack of prior discussion
§ Excess of power
§ Sub delegation to other persons or bodies where
the legislature has not clearly identified the
recipient of the delegation power.
 TYPES OF CONTROL
JUDICIAL

CONSULTATION LEGISLATIVE

PUBLICATION
 JUDICIAL CONTROL
— The most important
— S.23(1) AND S 87(d) of the Interpretation Act 1948 and
1967 which lays down the principle that any SL which
is inconsistent with an Act or Parliament or State
Enactment shall be void to the extent of its
inconsistency.
 JUDICIAL CONTROL
— When there is a challenge by the aggrieved person on
the validity of SL, the courts may declare that the SL
void under the ultra vires doctrine on the following
grounds:-
1. Substantive ultra vires
2. Procedural ultra vires
JUDICIAL CONTROL : SUBSTANTIVE
ULTRA VIRES
— The recipient of the delegated power has made law
beyond the limit of the power conferred either in
terms of the
1. Subject-matter
2. Purpose
3. Circumstances authorized by the enabling statute

— Major Phang Yat Foo v Brigadier General Dato’

Yahya bin Yusof & Anor [1990]
JUDICIAL CONTROL : SUBSTANTIVE
ULTRA VIRES
— The respondent, the convening authority of a court
martial purporting to act under r63(3) of the Armed
Forces (Court Martial)Rules 1976 disapproved of and
dissolved the decision of the court martial and made
fresh order for a fresh court martial to be convened
and for the applicant to be retried for the same
charges.
— High Court ruled that r63(3) was void.
JUDICIAL CONTROL : SUBSTANTIVE
ULTRA VIRES
Parent Act Subsidiary legislation

S.119 of Armed Forces Act 1972 r63(3) of the Armed Forces (Court
Martial)Rules 1976

§Authorizes the Minister of Defence §Authorizes convening authority to

to make rules of procedure relating to approve or disapprove a decision of a
investigation and trial of offences by court martial
court martial.
 JUDICIAL CONTROL : PRCEDURAL
ULTRA VIRES
— The recipient of the delegated power has failed to
follow a mandatory procedure laid down in the
enabling statute.
— Datin Azizah bt Abdul Ghani v Dewan Bandaraya
Kuala Lumpur [1992]
JUDICIAL CONTROL : PROCEDURAL
ULTRA VIRES
— In this case the Datuk Bandar, Kuala Lumpur, had made a
development order granting planning permission on Lot
4951, allowing an increase of density from 10 persons to 44
persons an acre to enable the building of two blocks of
apartments, one of two storey and the other three storey.
On the facts no notice as required under the Planning
(Development) Rules 1970 were given to the appellants.
— 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
1970 had been sent to the appellant.
JUDICIAL CONTROL : PROCEDURAL
ULTRA VIRES

Parent Act Subsidiary legislation

S22 of the Federal Territory (Planning) R5 Planning (Development) Rules

Act 1982 1970
 LEGISLATIVE CONTROL
— AFTER THE SL IS MADE
— The legislature which grants the delegated powers by
an enabling statute may repeal the statute or revoke or
vary the delegated powers.
— BEFORE THE SL IS MADE
— Laying provisions i.e. an enabling statute may require
legislation made under it to be laid before the
legislature for information or confirmation.
 LEGISLATIVE CONTROL
Trade Marks Act 1976 Trade Unions Act 1959

s.83(3) requires the SL S58(4) requires the SL to be

made there under to be laid before the Dewan
laid before both Dewan Rakyat only
 CONSULTATION
— No general statutory provision requiring consultation for
SL in Malaysia.
— Very few enabling acts make prior consultation mandatory.
— Eg:-
Financial Procedure Authorizes YDPA to make regulations after
Act 1957 consulting the Commodities Trading
Commission

— Though not legally imposed, consultation as a matter of

administrative practice does take place on a discretionary
and ad hoc basis.
 PUBLICATION
— No general statutory provision requiring publication
for SL in Malaysia.
— If enabling statute make it mandatory for publication,
non-compliance renders the SL void.
— At federal level, SL is required to be published in
Malay and English in 2 parts of the Gazette :-
1. Tambahan Perundangan “A” = proclamation,
rules, regulations, orders, by-laws
2. Tambahan Perundangan “B” = other SL