LAW 507

JUDICIAL REVIEW-
SUBSIDIARY LEGISLATION

PREPARED BY :-
MUHAMMAD FIKRI BIN OTHMAN

MUHAMMAD FIKRI BIN OTHMAN - FUU 1

 HOW TO CONTROL?
 Through the process of JUDICIAL REVIEW.

What is Judicial Review?

The process where the court reviews the

decision made by public bodies when they
exercise their administrative functions.
If the court finds and agrees that the
administrator has followed the law in
making the decision, then the decision will
be upheld; if not, the court will grant a
remedy for the complainant against the
administrator
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 WHAT WOULD BE REVIEWED?
 Administrative action will be reviewed :

(2) Exercise
(1) In the making of
Quasi Judicial
subsidiary legislation-
-The Rules of
Doctrine of Ultra Vires
Natural Justice

(3) In exercising
Discretionary Powers-
Doctrine of Ultra Vires
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 IN THE MAKING OF
SUBSIDIARY
LEGISLATION
:
DOCTRINE OF ULTRA
VIRES
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Under the Small Medium Entrepreneurship Act 2012 (fictitious), the Local
Authority of Sentap Town (LAST) is empowered to make regulations regarding
the operation of a small medium industry amongst the local people of Sentap Town.
One of the objectives of the Small Medium Entrepreneurship Act 2012 is to give
opportunity to the local people to set up their own business.
 
Amongst the regulations made by the LAST are:
 
Regulation 5 : only Malays can operate the small medium industry in Sentap Town
 
Regulation 9 : the residents of Sentap Town who wishes to apply for an
entrepreneurship license shall own at least one mini van before they could start
their business.
 
The Association of Chinese Entrepreneur was not happy with the regulations made
by the LAST and wishes to challenge the validity of the regulations.
 
Advise them.

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WHAT IS SUBSIDIARY LEGISLATION(SL)

 Subsidiary Legislation means a legislation

made by the Administrator in pursuance of
the power delegated to it by the legislature.

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The Importance of SL
 S Kulasingam & Anor v Commissioner of
Lands, Federal Territory & Ors [1982] 1 MLJ 204
 Fed. Court : “There is nothing to prevent
Parliament from delegating power to legislate on
minor and administrative matters and for that
very reason we have in addition to statutes
innumerable subordinate or subsidiary legislation
having force of law. Without this subordinate or
subsidiary legislation the Government machinery
will not be able to function efficiently”

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Delegating Formulae
 The words used in the Act in delegating the
power to enact SL may vary
 Eg – the minister is empowered/authorised to
make such regulation as may be expedient or
necessary….

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 SUBSIDIARY
LEGISLATION

PARENT ACT

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 So, when the Minister/ Administrator has
power to make law, then there must be
something to control the power.
 Judicial review- court can review the validity
of SL by applying the Doctrine of Ultra Vires.

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 WHAT IS ULTRA VIRES (UV)
 UV literally means beyond the power.
 UV = in excess of power/authority given.
 When power is conferred on an administrative
body, the instrument conferring the power
may itself provide for restriction or limitations
on such exercise of the power.
 If administrator goes beyond the restrictions
or limitations  the administrator’s action is
U.V.

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 Power of Minister to
make regulations
(SL)

Scope/Limitation

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 JUDICIAL CONTROL OF SL UNDER
DOCTRINE OF UV
 By the doctrine of UV, any SL may be declared
void under the following grounds:

1. Procedural Ultra Vires

2. Substantive Ultra Vires

3. Extended Ultra Vires

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 PROCEDURAL ULTRA VIRES
 In the process of making a SL the
administrator must follow certain procedures
laid down by the parent statute/act. So that
the SL made will not be challenged in the
courts of law.
 Non-compliance of the procedures may result
in the making of SL ultra vires.
 2 types of procedure must be followed by the
administrator:-

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Procedural Ultra Vires…
It must be observed
by the administrator
in making SL
Mandatory
Non-compliance -
SL is invalid &
unenforceable
TYPES OF
PROCEDURE Not necessarily be
observed

non-compliance -
Directory will only result in
irregularity but will
not make the SL
invalid.
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Procedural Ultra Vires…
 The court will determine whether the
procedure is mandatory or directory.
 Eg of mandatory procedure are:
 Requirement of consultation with a
specified body
 Opportunity for affected persons to file for
objections
 Pre-publication of draft rules.

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Procedural Ultra Vires…
Requirement of
consultation with a
specified body

Opportunity for
affected persons to file
for objections
Pre-publication
of draft rules

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Procedural Ultra Vires…
 If statute requires the rule making authority to refer the
draft rules to a statutory body and seek its advice as to the
suitability of the proposed rules before finalising them, the
rules made without observing the procedure are ultra
vires.

 Agricultural, Horticultural & Forestry Industry

Training Board v Aylesbury Mushroom Ltd (1972)
Held: Failure to hold a discussion with certain bodies
before making an order was not according to the law.
Hence, the decision made by the administrator was void.
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Procedural Ultra Vires…
 Mandatory procedure - opportunity for
affected persons to file for objections
Datin Azizah v DBKL
Respondent did not comply with the
requirement to allow the appellant to make
objections under rule 5(2) of the Planning
(Development) Rules 1970 as the letter was
wrongly addressed and did not reach the
appellant. Therefore the decision made was
void.
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Procedural Ultra Vires…
 Mandatory procedures - Pre-publication of draft rules
Raza Buland Sugar Co. v Rampur Municipality
A statute required a Municipality to publish the draft rules
imposing tax. The publication was to be made in a a newspaper
published in Hindi (the local majority language). The
municipality published the Hindi text of the tax proposal in a
newspaper printed in Urdu (the local minority dialect). It was
argued that the mode of pre-publication deviate/did not follow
the statute.
Court : rejected the argument. It held that the requirement of
pre-publication is mandatory, but the mode of publication
made by the municipality in this case was held to be
substantial compliance of the requirement. The newspaper had
a good circulation in the locality and the text of the notice was
in the language prescribed by the statute.
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Procedural Ultra Vires…
 Directory procedure – a simple laying procedure before
Parliament
 If SL is required to be tabled before Parliament without
any effect = Directory Procedure
 If the effectiveness of SL is dependent upon Parliament
giving affirmative resolution = Mandatory Procedure
 R v Sec of State for the Environment ex parte
Leceister City Council
An Act provides that any SL made must first be
presented in Parliament before it could be enforceable.
The SL was only presented in the House of Commons.
Court held that the SL was still valid.
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Procedural Ultra Vires…

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 SUBSTANTIVE ULTRA VIRES
 Refers to the scope, extend and range of power conferred by
the statute to make SL.
 Doctrine of SUV is based on the principle that legislative power
belongs to the Parliament. No other bodies/agencies have power
to legislate UNLESS if it is conferred by Parliament to do so.
 If power is conferred by statute to make SL for certain topics or
for certain purposes or for certain circumstances only, then the
limits of such power must not be crossed.
 In other words, if the bodies/agencies so empowered to legislate
SL keeps within the boundaries of the powers delegated, then
the delegated legislation is valid.

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Substantive Ultra Vires…
 By the doctrine of Substantive UV, any SL may be
declared void under the following grounds:

1. PA Unconstitutional - Parent Act is

inconsistent with the Federal Constitution

2. SL Unconstitutional - SL is inconsistent
with the Federal Constitution

3. SL is inconsistent with the parent Act

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1. Parent Act is Unconstitutional
 This happen when parent Act has provisions
which contradict with the provisions of the
FC.
 Art 4(1) of FC - any law passed after Merdeka
which is inconsistent with FC shall to the
extend of inconsistency be void.
 T/4, if the parent act is unconstitutional, any
SL made under it will be unconstitutional.

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Parent Act is Unconstitutional…
Johnson Tan Han Seng v PP [1977] 2 MLJ 66

Parent
• Art 150(1) Act • Essential (Security
• permits the YDPA Cases)
on the advice of Regulations 1975
the PM, to • Emergency • provides for
proclaim a state of (Essential Power) special rules
emergency in the Ordinance governing trials
country • Promulgated by classified as
YDPA during the security cases
period of
FC emergency 1969
SL

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Parent Act is Unconstitutional…
Johnson Tan Han Seng v PP [1977] 2 MLJ 66
 Fact : Tan was tried under ESCAR. He challenged t he
validity of ESCAR on the ground that the Ordinance 1969 has
lapsed and ceased to be a law by the effluxion of time and
changed in circumstances. It was argued that the regulation
made thereunder was unconstitutional and therefore void.
 Federal Court (Suffian L.P) : The Proclamation of
Emergency has not been revoked nor annulled by
Parliament. The ordinance also has not been revoked nor
annulled. Therefore, they are still in force and the regulations
are valid.

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2. SL is Unconstitutional
 The parent Act is constitutional but the SL made
thereunder is unconstitutional. The court will
invalidate SL if it does not conform with the
provisions stated in the Constitution.
Teh Cheng Poh v PP [1979] 1 MLJ 50

Parent Act SL

• Emergency • Essential
(Essential (Security Cases)
Powers) (Amendment)
Ordinance 1969 Regulation, 1975

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Teh Cheng Poh…
 Fact : The appellant (charged for possession in a security
area of a revolver and ammunition) was tried under the
special procedure under the ESCAR 1975, and found guilty
and sentenced to death. An appeal to the Federal Court
was dismissed and the appellant appealed to the Privy
Council.
 He challenged the validity of the regulation made by
YDPA under the emergency (Essential Powers) Ordinance
1969 as unconstitutional under Act 150(2).
 Under Art 150(2), the YDPA had the power to promulgate
ordinances having the force of law during a Proclamation
of Emergency until both houses of Parliament were
sitting. The power would come to an end when Parliament
sat.
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Teh Cheng Poh…
 The regulation was enacted 4 years after Parliament’s
first sitting after the Proclamation of Emergency.

 Privy Council : The regulation was invalid/void (ultra

vires the constitution @ unconstitutional) YDPA no
longer had any power to make the Regulation having
the force of law after Parliament had sat. Once
Parliament had sat on 20 February 1971 the YDPA did
not have any power to make Essential Regulations
having the force of law. They are ultra vires the Federal
Constitution and for that reason void. 
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3. SL inconsistent with parent Act
 It refers to SL made beyond the powers conferred by the
parent Act.
 This ground is regulated by Sec 23 of the Interpretation
Acts 1948 and 1967
 Sec. 23(1) – Any SL which is inconsistent with an Act of
Parliament (including an Act under which the SL is
made) shall be void to the extent of inconsistency.  
 Sec. 87(d) - no SL made under any Act of Parliament
shall be inconsistent with any Act of Parliament and no
SL made under a State Enactment shall be inconsistent
with any Act of Parliament or State Enactment.

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SL inconsistent with parent Act…
 SL is substantive ultra vires when the SL goes
beyond the scope, extent and range of authority
(substance) given by parent Act and therefor
void.
 Test to determine validity
What was the power
of SL (based on the case delegated?

of McEldowney v Forde
What was in fact done?
(1969) 2 All ER 1039)
Whether SL complies
with the description
stated in the parent
act?

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SL inconsistent with parent Act…
 Ghazali v PP

• S. 118(5) of the Road Traffic SL

Ordinance 1958.
• Licensing Board shall give
• The Board attached a
preference to an application
from a Malay condition to the license
issued to Malays that only a
Parent Act Malay driver should be
employed to drive such
vehicle.
 The applicant’s license was revoked because he
allowed a Chinese man to drive his taxi.
 Held: the Board acted Ultra vires in imposing the said
condition as it has no power to do so.
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 EXTENDED ULTRA VIRES
 The SL made is still considered as UV although it
follows the prescribed procedure and made within
the powers conferred on the authority making it.
 Grounds of Extended UV:
SL with Exclusion of Courts
Retrospective Power/Jurisdiction
Effect/enforcement

Imposition of
Unreasonableness Financial Levy

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1. SL with Retrospective Effect
 “Retrospective Effect” = backward effect @ taking
effect from the date in the past.
 Art (7)1 of Federal Constitution prohibited criminal
law from having retrospective effect but not civil law.
 Section 19(1) of the Interpretation Acts:

“The commencement of subsidiary legislation shall be

the date provided in or under the Act or subsidiary
legislation or, where no date is so provided, the date
immediately following the date of its publication”.

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1. SL with Retrospective Effect
 SL should not have retrospective effect
UNLESS expressly allowed by the Parent
Act.
 In the absence of express provision in the
parent Act, a SL with retrospective effect
will not be allowed.
 Sec. 20 of Interpretation Acts allows SL to
operate retrospectively (any date, which is
not earlier than the commencement of the
parent Act).
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1. SL with Retrospective Effect

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 AG v Cold Storage (Spore) Pte. Ltd.
(1979) 1 MLJ 277
 Fact : On 19 March 1977 – Minister for Communication made
a Port of Singapore, Authority (Property Tax) Order 1977 under
the Port of Singapore Authority Act 1964. The Order provides
“The Property Tax Act shall apply to all premises of or vested in
the Port of Singapore Authority”
 The operative date of the Order was October 28, 1976. The
validity of the Order was challenged on the ground that the Act
did not enable an order to be made with retrospective effect

 Held : The Order was a SL because it had the force of law. The
order was valid as S.28(2) of the Act empowers the Minister to
make order having retrospective effect.
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2. Exclusion of Courts’ Power
 SL cannot exclude the jurisdiction of the courts
unless it is clearly worded in the statue.
 ie- there should not be any provision in the SL
which stop (exclude) the citizen from coming to
court to settle their dispute.
 Eg of provision in SL - “the decision of the
Minister shall be final and conclusive”

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Exclusion of Courts’ Power… ctd
Chester v Bateson (1920) 1 KB 829
 Fact : Under the regulation, the property owners
are prohibited
(1) to eject tenants from their houses if they were
employed in work connected with war material.
(2) to bring this matter to courts without the
consent of the minister.
 Held : The regulation that forbade property owner
from having access to courts without the consent of
the minister was invalid. The exclusion to the access of
the court can only be inflicted by direct enactment of
the legislature itself.
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3. Imposition of Financial Levy
 A charge or a financial levy cannot be imposed
through SL unless the parent Act confers
power for the purpose.
 Financial levy = an amount of money or
charge or fees or tax imposed by the
government or organisation.

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3. Imposition of Financial Levy

AG v Wilts United Dairies [1922] K.B. 897

 A regulation empowered the Food Controller
to make orders, regulating or giving
directions with respect to the production,
manufacture, use, storage, consumption and
distribution of any article.

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AG v Wilts United Dairies…
 The Food Controller issued an order that no
one should deal in milk without a license. The
Appellants were granted a license on the
condition that they paid to the controller a
levy per gallon of milk purchase.
 Held : The charge (levy) was invalid because a
regulation can only impose a charge if
expressly provided by the Parliament through
the parent Act.

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4. Unreasonableness
 The court can declare SL as invalid on the ground of
unreasonable.
How to determine
whether the SL is
unreasonable?

Meaning of unreasonable was

discussed in the case of Kruse v.
Johnson (1989) 2 QB. 91 whereby
the court held that SL will be
unreasonable and ultra vires if they
were found to be:-
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Kruse v. Johnson …
partial and unequal in their
operation as between classes

manifestly unjust

disclosed bad faith

involved such oppressive or

gratuitous interference with the
rights of those subject

no justification in the minds of

reasonable man
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 Arlidge v. Islington Corporation
[1909] 2K. B. 127

Fact: A bye law was made by the government

requiring the landlord of a lodging house to
clean the house three times a year in the
month of April, May or June. Penalty was
imposed for breach of the bye-law.
Held: The bye-law is invalid as being
unreasonable as it imposed an absolute
duty on every landlord to cause the
premises to be clean without regard to
the position in which the landlord might
be.
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 Air India v. Nergesh Meerza
AIR 1981 SC 1829
Fact:
AIR India made a rule to
retire any airhostess on her
first pregnancy after marriage

Held:
The rule was unreasonable, unfair
and unequal in its operation. It
violates A. 14 of the Indian
Constitution (A.8 of Malaysian
Federal Cconstitution)
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5. Other grounds
 In McEldowney v. Forde – SL can be declared
invalid on the grounds of:
Vagueness
Ambiguity
Arbitrariness
Uncertainty
Bad Faith
 These may render a SL void, either as a separate
ground of invalidity or as an aspect of
unreasonableness.
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 THANK YOU
FOR LISTENING

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