Introduction
In the Malaysian system of government, which is based on the principle of the separation of powers, the primary authority to make law for the Federation rests with Parliament. However, the complexity and volume of legislation required to govern a modern state mean that it is not practical for Parliament to legislate on every single detail. Consequently, Parliament often delegates its law-making powers to other bodies, such as Government Ministers, statutory bodies, and local authorities. The laws created by these bodies are known as subsidiary legislation. This essay will explain the meaning of subsidiary legislation in the Malaysian context, discuss its importance in the administrative process, and examine the principal mechanisms that are used to control its creation and application. By doing so, it will demonstrate that while subsidiary legislation is an essential tool of governance, its use is subject to important checks and balances designed to uphold the rule of law.
The Meaning of Subsidiary Legislation
Subsidiary legislation, also commonly referred to as delegated or subordinate legislation, is law made by a person or body under powers conferred by an Act of Parliament. This Act, known as the 'parent Act' or 'enabling statute', sets out the broad legal framework and principles, but delegates the authority to fill in the finer details to another body. The legal definition of subsidiary legislation in Malaysia is provided by Section 3 of the Interpretation Acts 1948 and 1967, which states that it is ‘any proclamation, rule, regulation, order, notification, by-law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect’.
This definition covers a wide range of legal instruments. For example, 'regulations' are often made by Ministers to implement the provisions of a parent Act, such as the Food Regulations 1985, which were made by the Minister of Health under the authority of the Food Act 1983. 'By-laws' are typically made by local authorities like City Councils (Majlis Bandaraya) to govern local matters such as parking, sanitation, and public parks, under powers given by the Local Government Act 1976. 'Orders' can be used for various purposes, such as bringing an Act of Parliament into force on a specific date. The key characteristic of all these instruments is that their legal authority is derived not from Parliament itself, but from a power delegated by Parliament through a parent Act.
The Importance of Subsidiary Legislation
The delegation of legislative power is a crucial feature of modern administration in Malaysia for several practical reasons. Without it, the legislative process would be slow and inefficient, and the government would struggle to respond effectively to the needs of society.
First, subsidiary legislation saves a significant amount of Parliament's time. The legislative timetable is already crowded with debates on major policy issues and the passing of primary Acts. It would be impossible for Members of Parliament to also debate and scrutinise every detailed rule needed for the day-to-day administration of the country. By delegating the power to make these detailed rules, Parliament can concentrate on the fundamental principles and policies of legislation, leaving the technical specifics to the executive branch (Wan Arfah, 2009).
Second, many areas of law require a high degree of technical expertise that Members of Parliament may not possess. Fields such as environmental protection, occupational safety and health, and telecommunications involve complex scientific and technical issues. Subsidiary legislation allows these details to be formulated by civil servants and experts within the relevant government ministries who have the necessary specialist knowledge. For instance, the detailed rules governing the safe handling of chemicals in the workplace are better drafted by experts at the Department of Occupational Safety and Health than by politicians in Parliament.
Third, subsidiary legislation provides much-needed flexibility. The process of passing an Act of Parliament is lengthy and formal. In contrast, subsidiary legislation can be created, amended, or revoked relatively quickly. This speed is vital when the government needs to respond to emergencies or rapidly changing circumstances. For example, during the COVID-19 pandemic, the government used regulations made under the Prevention and Control of Infectious Diseases Act 1988 to swiftly implement movement control orders and other public health measures. Amending these rules to adapt to the evolving situation was far quicker than if each change had required a new Act of Parliament.
Mechanisms of Control
While the delegation of legislative power is necessary, it is not without its dangers. It transfers law-making power from the elected legislature to the unelected executive, which could potentially lead to an abuse of power. Therefore, a number of control mechanisms are in place in Malaysia to ensure that delegated powers are exercised within their proper limits. These controls can be broadly categorised as legislative control and judicial control.
Legislative and Procedural Controls
The first layer of control is exercised by Parliament itself. The parent Act that delegates the power also sets the boundaries for its use. It specifies who can make the law, what subject matter it can cover, and sometimes, the procedure that must be followed.
A key procedural control is the requirement for subsidiary legislation to be published. Section 19 of the Interpretation Acts 1948 and 1967 mandates that subsidiary legislation must be published in the official Government Gazette to come into force. This ensures that the law is accessible to the public and that people are not held accountable to secret laws.
Another important parliamentary control is the 'laying' procedure. Many parent Acts require that the subsidiary legislation made under them must be laid before both houses of Parliament, the Dewan Rakyat and the Dewan Negara. This allows parliamentarians to scrutinise the regulations. There are different types of laying procedures. The most common is the negative resolution procedure, where the instrument is laid before Parliament for a set period (often 40 days), and it will remain law unless a Member of Parliament successfully tables a motion to annul it. A stricter form is the affirmative resolution procedure, which requires the subsidiary legislation to be actively approved by a parliamentary vote before it can become or remain law. This is usually reserved for regulations that have significant impacts, such as those imposing taxes.
Judicial Control
The courts provide the most significant check on the exercise of delegated power through the process of judicial review. The courts cannot question the merits or policy of subsidiary legislation, but they can examine whether it was made lawfully. If a court finds that a piece of subsidiary legislation is unlawful, it can declare it to be ultra vires (beyond the powers) and therefore void and of no effect.
Judicial review on the grounds of ultra vires can be divided into two main types. The first is substantive ultra vires, which occurs when the content of the subsidiary legislation goes beyond the scope of the power granted by the parent Act. For example, if a parent Act gives a Minister the power to make regulations for "regulating traffic", a regulation that also imposes a tax on all vehicle owners would likely be struck down as substantively ultra vires, because the power to regulate does not automatically include the power to tax. A key Malaysian case illustrating this principle is Port Swettenham Authority v TW Wu and Co (M) Sdn Bhd [1979] AC 580, where the Privy Council held that a by-law which sought to exclude the authority from liability for the loss of goods was ultra vires because the parent Act did not grant the power to make such a wide-ranging exclusion clause.
The second type is procedural ultra vires. This happens when the body making the subsidiary legislation fails to follow a mandatory procedure prescribed in the parent Act. For example, if the parent Act requires the Minister to consult with a specific advisory board before making regulations, and the Minister fails to do so, the resulting regulations can be challenged as procedurally ultra vires (Wan Arfah, 2009). The case of Palm Oil Research and Development Board Malaysia v Premium Vegetable Oils Sdn Bhd [2005] 3 MLJ 97 demonstrates the court's willingness to invalidate decisions, including those with a legislative effect, where procedural fairness requirements have not been met.
Furthermore, the courts can also strike down subsidiary legislation on the grounds of unreasonableness. Following the classic English case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, which is applied by Malaysian courts, a rule can be deemed invalid if it is so unreasonable that no reasonable authority, acting within its powers, would have ever considered making it.
Conclusion
In summary, subsidiary legislation is a vital component of the Malaysian legal and administrative system. It provides the detailed rules necessary for the functioning of government, offering flexibility, speed, and technical expertise that the parliamentary process cannot match. However, the delegation of law-making power from the legislature to the executive is a significant constitutional matter that requires careful supervision. In Malaysia, a system of controls exists to provide this supervision. Legislative controls, through the parent Act and laying procedures, ensure parliamentary oversight, while procedural requirements like publication ensure transparency. Most importantly, the courts, through the doctrine of judicial review, act as the ultimate guardians, ensuring that subsidiary legislation remains within the substantive and procedural boundaries established by Parliament and complies with the basic principles of reasonableness. These mechanisms, working together, aim to strike a balance between administrative efficiency and the fundamental principle of the rule of law.
References
- Associated Provincial Picture Houses Ltd v Wednesbury Corporation* [1948] 1 KB 223.
- Food Act 1983 (Act 281) (Malaysia).
- Interpretation Acts 1948 and 1967 (Act 388) (Malaysia).
- Local Government Act 1976 (Act 171) (Malaysia).
- Palm Oil Research and Development Board Malaysia v Premium Vegetable Oils Sdn Bhd [2005] 3 MLJ 97.
- Port Swettenham Authority v TW Wu and Co (M) Sdn Bhd [1979] AC 580.
- Prevention and Control of Infectious Diseases Act 1988 (Act 342) (Malaysia).
- Wan Arfah Hamzah. (2009) A First Look at the Malaysian Legal System. Oxford Fajar.
