Subsidiary Legislation

What is a subsidiary legislation?

• Subsidiary Legislation is a legislation made by other law-makers,

usually the government ministers or public bodies, though the powers
given to them by Acts of Parliament. It is also known as delegated
legislation.
• The definition of subsidiary legislation can be found under Section 3
of the Interpretation Acts 1948 and 1967 (Act 388), where it is
provided that ‘subsidiary legislation’ is to mean ‘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’.
• An example of a subsidiary legislation is the Legal Profession (Practice and Etiquette)
Rules 1978.

• This subsidiary legislation is made by the Bar Council through the power given to it by
the Legal Profession Act 1976. According to section 77 of the Legal Profession Act
1976, it is provided that ‘the Bar Council may, with the approval of the Attorney-
General make rules for regulating the professional practice, etiquette, conduct, and
discipline of advocates and solicitors’.

• Based on this example, whilst the Legal Profession Act 1976, which is made by the
Parliament, is known as the parent act, the Legal Profession (Practice and Etiquette)
Rules 1978, which is made by the Bar Council, is known as the subsidiary legislation.
• A case to highlight the definition of subsidiary legislation can be found in
the case of Dato' Muhamad Farid Bin Haji Ahmad Ridhwan Lwn
Pendakwa Raya [2009] 3 MLJ 378, where the High Court Kuala Lumpur
referred to s 3 of the Interpretation Acts 1948 and 1967 which defines
'subsidiary legislation' as 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. Based
on existing legislative authority, Parliament and State Legislative
Assemblies can delegate the power available to any individual or entity,
usually Yang di-Pertuan Agong, the Minister of the Cabinet or local
authorities, individuals or entities that are delegated authority.
• Subsidiary legislation must be consistent with the parent act. It may
not be ultra vires the parent act.
• This principle can be found under section 23(1) of the Interpretation
Acts 1948 and 1967 (Act 388), where it is stated that ‘any subsidiary
legislation that is inconsistent with an Act shall be void to the extent
of the inconsistency’.
• In the case of S KULASINGAM & ANOR v COMMISSIONER OF LANDS,
FEDERAL TERRITORY & ORS [1982] 1 MLJ 204, the Federal Court
highlighted that Acts of Parliament are the direct acts of the supreme
legislative body of the country; delegated legislation are laws made
under authority of Acts of Parliament.
• In the case of DIANA CHEE VUN HSAI v CITIBANK BHD [2009] 5 MLJ 643, the High Court
observed that The Bank Negara Credit Card Guidelines BNM/RH/GL 1014-1 was issued
under the enabling provision of s 70 of the Payment Systems Act 2003. The court took a
view that the said guidelines is a piece of subsidiary legislation. 'Subsidiary Legislation' is
defined under s 3 of the Interpretation Acts 1948 and 1967 as:
• Any proclamation by law, rule, regulation, order, notification, by law or other instrument
made under any Act, Enactment, Ordinance or other lawful authority and having
legislative effect.
• The Bank Negara Guidelines comes under the category of 'other instrument' and is
therefore a subsidiary legislation, having legislative effect and force of law. To quote
Shakespeare in Romeo and Juliet, Juliet said, 'what's in a name? That which we call a rose
by any other name, would smell just as sweet'.
What are the functions of subsidiary legislation?
 

• Subsidiary legislation is an important feature in Malaysian legal

system.
• Basically, there are two main reasons why Malaysia need to have
subsidiary legislation.
 
• Firstly, to assist the Parliament in making the law due to its lack of
time.
• Due to the time constraint, Parliament is unable to legislate all laws
that are required to regulate all individuals, bodies or agencies in this
country.
• Secondly, to assist the Parliament in making the law due to its lack of expertise.
• Many legislations involve technical and specific matters and therefore experts
are needed to legislate them.
• By having a subsidiary legislation, the experts who are directly involved with
the subject matter can make the law.
• In other words, as the main function of subsidiary legislation is to regulate
specific matters that cannot be provided in detail by the parent act, therefore
subsidiary legislation gives powers to certain bodies, people, local authorities
and government minister the right to make the law.
• The importance of subsidiary legislation can be found in the case of
Kulasingam v Commissioner of Land, Federal Territory [1982] 1 MLJ
204 where in this case, Hashim Yeop Sani J stated that ‘there is
nothing to prevent Parliament from delegating power to legislate on
minor and administrative matters and for this very reason we have in
addition to statutes innumerable subordinate or subsidiary legislation
having the force of law. Without these subordinate or subsidiary
legislation the Government machinery will not be able to function
efficiently. Delegation in the nature of section 6(4) of the Constitution
(Amendment) (No. 2) Act 1973 is a normal legislative device today’.
What are the similarities between
legislation and subsidiary legislation?
• Basically, there are two similarities between legislation and subsidiary
legislation.

• Firstly, both of them must be consistent with the Federal

Constitutions and thus, these laws are not supreme.

• Secondly, as both of them are made by Parliament (legislation) or

through the power given by Parliament (subsidiary legislation), these
laws have legislative effect.
What are the differences between legislation and subsidiary legislation?

• There are four differences between legislation and subsidiary

legislation.

• Firstly, legislation refers to the laws which have been made by the
Parliament (at the Federal level) and the State Legislative Assemblies
(at the State level), whilst subsidiary legislation refers to the laws
which have been made by persons or bodies who are given the power
to do so by the Parliament or State Legislative Assemblies.
• Secondly, whilst the regulations contained in the legislation are general
in nature, the laws contained in the subsidiary legislations are more
complex and technical.

• Thirdly, whilst legislation needs to go through various stages of

procedure before it can be passed as law, subsidiary legislations do not
need to go through similar process.

• Fourthly, whilst it is cumbersome to amend a legislation, subsidiary

legislation can be amended and modified easily.
What are the advantages of Subsidiary
Legislation?
• There are four advantages of subsidiary legislation.

• Firstly, unlike the various stages of procedure that needs to be followed by

the Parliament or State Legislatives Assemblies when making the law,
subsidiary legislation can be passed very quickly because it does not have
to go through the same process. Similarly, subsidiary legislation can also
be amended or rescinded quickly.

• Secondly, due to the fact that Parliament has insufficient time to make
laws which are detailed and technical, subsidiary legislation fulfils this gap.
• Thirdly, due to the fact that Parliament has insufficient expertise to
make laws which are detailed and technical, subsidiary legislation
fulfils this gap as well. This is because, legislations made by Parliament
only deals with general and broad principles of the law.

• Fourthly, if the parent act were to contain all the specific details in it,
then the process of making it will be very lengthy and tedious. The
legislation itself will be very bulky and technical.
What are the disadvantages of Subsidiary Legislation?

• There are two disadvantages of subsidiary legislation.

• Firstly, due to the fact that subsidiary legislations are made by other individuals or
bodies than the Parliament, this is not consistent with the doctrine of separation of
powers.  According to this doctrine, the power to make law is with the Parliament or
the State Legislative Assemblies and not any other persons or bodies.

• Secondly, due to the fact that parliament cannot effectively supervise the making of
subsidiary legislation due to lack of time and expertise, many rules and
regulations have been passed through the subsidiary legislation without proper control
over the individuals or bodies whose making the law. In this regard, the concern is on
the misused or abuse of power by the individuals or bodies who made the law.
How can subsidiary legislation be
controlled?
• There are four ways by which subsidiary legislation can be controlled.

• Firstly, through the process of consultation.

• According to this method, before a subsidiary legislation is made, the
relevant individuals or bodies who are going to make the law must first of all
seek prior consultation from relevant advisory bodies and interest groups
who are involved with the subject matter. This must be done before the
subsidiary legislation is finalized. Some parent act makes a requirement for
the consultation to be compulsory. If this process is not being followed,
then the subsidiary legislation can be said to be ultra vires and becomes
void.
• Secondly, through the process of parliamentary control.
• There are two methods that the Parliament can use under this control.
• The first method is where Parliament may exercise control over subsidiary
legislation by repealing the parent legislation or the subsidiary legislation and,
• the second method is where the Parliament, through its parent act, requires
that the rules or regulations made under it to be laid before the Parliament.
Under this method, the rules or regulations will only become effective if there
is no negative resolution against it by the Parliament. Some parent act makes
a requirement for the subsidiary legislation to be approved by the Parliament
before it can be effective. In this regard, the subsidiary legislation will only
become effective when an affirmative resolution is passed by the Parliament.
• Thirdly, through judicial review.
• According to this method, if a subsidiary legislation was to provide
laws which are not consistent with the parent act or outside the
powers given to it by the parent act, then the court may declare
such subsidiary legislation as ultra vires the parent legislation and
therefore becomes invalid.
• Fourthly, through publicity.
• According to this method, subsidiary legislation must be published in
the Gazette. It will become effective only from the date of such
publication or on such other date as may be specified.
• FEDERAL EXPRESS BROKERAGE SDN BHD & ORS V MALAYSIA AIRPORTS (SEPANG) SDN
BHD & ANOR [2012] 6 MLJ 190

• The Court of Appeal observed that it is a well settled principle that a provision in statute
conferring power on a member of the executive to enact subsidiary legislation particularly
one that imposes a financial levy or charges upon any section of the public must be
construed strictly. The power from any subsidiary legislation can never rise above that in
its parent Act. Parliament may delegate some of the powers to a Minister or any
administrative body; and such delegation must be confined to the express authority
delegated to it. It is the duty of the court to carefully scrutinise the extent of the
delegation particularly in cases which involves a right to impose any financial burden on a
person or class of persons.
• RAMACHANDRAM S/O APPALANAIDU & ORS V DATO BANDAR KUALA
LUMPUR & ANOR [2012] 6 MLJ 519

• In this case, the Court of Appeal stressed that the general principle of
statutory interpretation for subsidiary legislation is 'that subsidiary legislation
may not be broader than the enabling legislation.’ In Malaysia, that general
principle of statutory interpretation is codified in s 23 of the Interpretation
Act, which provides that 'Any subsidiary legislation that is inconsistent with an
Act (including the Act under which the subsidiary legislation was made) shall
be void to the extent of the inconsistency’. The effect of s 23 is as plain as a
pikestaff. Subsidiary legislation that is inconsistent with the parent Act is void.
• UNITED MALAYAN BANKING CORP BHD v ERNEST CHEONG YONG YIN [2002] 2 MLJ
385

• The Federal Court held that if there was any conflict between Bankruptcy Act 1967
(parent Act) and the Bankruptcy Rules 1969 (subsidiary legislation), the court would
regard s 3(1)(i) of the Bankruptcy Act as having overriding effect since it ranked as
principal legislation whereas the Bankruptcy Rules are subsidiary legislation. S 23 of
the Interpretation Acts 1948 and 1967 which reads as follows:
• (1) Any subsidiary legislation that is inconsistent with an Act (including the Act under
which the subsidiary legislation was made) shall be void to the extent of the
inconsistency.
• (2) In this section 'Act' includes a federal law styling itself an Ordinance or Enactment.
• WONG POT HENG & ANOR v KERAJAAN MALAYSIA [1992] 2 MLJ 885
• The High Court applied Lord Diplock’s judgment in McEldowney v Forde [1969] 2 All ER 1039 at p 658:
• Parliament makes laws and can delegate part of its power to do so to some subordinate authority. The
courts construe law whether made by Parliament directly or by a subordinate authority acting under
delegated legislative powers. The view of the courts as to whether particular statutory or subordinate
legislation promotes or hinders the common weal is irrelevant. The decision of the courts as to what the
words used in the statutory or subordinate legislation mean is decisive. Where the validity of subordinate
legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is
challenged, the court has a threefold task: first, to determine the meaning of the words used in the Act of
Parliament itself to describe the subordinate legislation which that authority is authorized to make,
secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the
subordinate legislation complies with that description. There is also no doubt whatsoever that the courts
have jurisdiction to declare invalid a delegated legislation if in making it, the person/body to whom
power is delegated to make the rules or regulations, acted outside the Legislative powers conferred on
him/it by the Act of Parliament under which the rules or regulations were purported to have been made.