Lord Diplock in McELDOWNEY v FORDE [1971] AC 632 at 638 summarized the judicial

task in applying the doctrine as follows:

“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 the authority is
authorised to make, secondly, to determine the meaning of the subordinate
legislation itself and finally to decide whether the subordinate legislation complies
with that description”.
How judicial review is operated? Within a trial of case either a criminal case or a civil
action the accused person or the defendant raised a defence or challenged by any
aggrieved party the validity of the subsidiary legislation, court will decide that the
subsidiary legislation is void under the doctrine of ultra vires either in respect of
substantive or procedural matter. The journey into the decision on validity from
court is another matter that falls under court procedure, but the most important
thing is the court has discretion to declare that the subsidiary legislation is void
and inapplicable.

Substantive ultra vires occurred when the recipient of the power (administrative) has
made law beyond their capacity. The scope of the capacity existed either in the
subject-matter, purpose or circumstances authorized by parent act (the Act which
gives such power to make subsidiary legislation).

In MAJOR PHANG YAT FOO v BRIGADIER GENERAL DATO’ YAHYA BIN YUSOF & ANOR
[1990] 1 MLJ 252, the respondent, the convening authority of a court martial,
purporting to act under r 63(3) of the Armed Forces (Court Martial) Rules 1976,
disapproved of, and dissolved, the decision of court martial and made an order for
a fresh trial to be convened and for the applicant for an order to be retried on the
same charges.
In an application by the applicant for an order of certiorari to quash the respondent’s
decision and an order prohibiting respondent from thus proceeding, the High
Court ruled that r 63(3) was void to the extent that it confers jurisdiction on the
convening authority to approve or disapprove a decision of a court martial
contrary to s.119 of the Armed Forces Act 1972. That section authorizes the
Minister of Defence to make only rules of procedure relating to investigation and
trial of offences by court martial.

In procedural ultra vires, the recipient has failed to follow a mandatory procedure laid
down in the enabling statute. In DATIN AZIZAH BTE ABDUL GHANI v DEWAN
BANDARAYA KUALA LUMPUR [1992] 2 MLJ 393, concerning a developing order
made under s.22 of the Federal Territory (Planning Act) 1982, granting planning
permission for the building of two blocks of apartments on a piece of land in an
exclusive residential area, the Supreme Court quashed the order as on the facts,
no notice of the application for planning permission as required under r 5 of the
Planning (development) Rules 1970 (which continues in force as if made under
the 1982 Act) had been sent to the appellant. A notice had been sent to her, due
to the negligence of the offence concerned, to the wrong address.
In LOW LENG HUAT v PP (1917) FMSLR 162, C.A, the appellant was convicted by the
Magistrate on the charge of failing to comply with a notice directing him to
enlarge the open area of some of his house. This notice was issued by the sanitary
Board in accordance with a by-law. The appellant challenged the by-law as being
in excess of the powers of the Sanitary Board as conferred by the Sanitary Board
Enactment 1907. It was held that the by-law was ultra vires and therefore void.

In GHAZALI v PP [1964] MLJ 156, the appellant was charged with breach of a condition
attached to his licence which prohibited his taxi from being driven by a person
other than a Malay. This condition was imposed as a result of a general directive
issued by the Minister of Transport under powers conferred by certain provisions
of the Road Traffic Ordinance 1958. The court allowed the appeal on the ground
that the Board was acting ultra vires by imposing such a condition.

In PORT SWETTENHAM AUTHORITY v T W WU AND COMPANY [1978] 2 MLJ 137, the

respondents lost some goods which were unloaded at Port Klang and kept in the
custody of the Port Authority (the appellants). The respondent brought an action
against the appellants to recover the loss. Among other things, the appellant
attempted to disclaim liability by relying upon a by-law made by them in exercise
of the powers conferred by section 29(1) of the Port Authority Act 1963 which
stated:
“The authority may with approval of the Minister make by-laws for:
(g) limiting the liability of the authority in respect of lost occurring without the actual
fault or the privity of the authority .......”
Under powers conferred by this section, the following by-law was made:
“The authority shal not be liable for any loss ...... of goods .... from any cause unless
such loss ....has been caused solely by the misconduct or negligence of the
authority or its officers or servants ...”
The Privy Council ruled that the above by-law was invalid as it was ultra vires section
29(1)(g) of the 1963 parent Act on two grounds. First, it purported to limit the
Port Authority’s liability in respect of a loss occurring with the actual fault or
privity of the Authority and secondly, it did not only limit but wholly excluded the
liability of Port Authority for the loss of any goods cause by their own misconduct
or negligence. In their Lordship’s view, the Port Authority had clearly exceeded
the powers conferred upon them by the parent Act. Thus, they were liable for the
loss.

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3. LEGISLATIVE CONTROL
Parent Act or enabling statute made provision to confer the rights of making law
vested on executive, and then subsidiary legislation is made. However, parent Act
was made by legislature or parliament (at federal level). Therefore, the source of
subsidiary legislation is parliament which also has the power to repeal parent Act.
Parliament also has power to revoke or vary the delegated powers.
One of the mechanisms to control subsidiary legislation is by making provision that
subsidiary legislation to be laid before the legislature. The objective for the laying
provisions is either for information of the legislature or to get confirmation from
legislature.

Under s 83(3) of the Trade Marks Act 1976, requires subsidiary legislation made there
under to be laid before both Dewan Rakyat and Dewan Negara. Under s 58(4)
Trade Union Act 1959 also requires the subsidiary legislation to be laid before the
Dewan Rakyat only. These two provisions are examples of laying provisions from
parent Act. However, laying provisions is not a rare practice, because one the
reason for subsidiary legislation is not enough time for parliamentary to discuss or
debate this subsidiary legislation. Therefore, if the laying provision exists it will
burden parliament to discuss the matter.
Maybe it is a good step to set up a committee at the parliament level to discuss and
debate (or review) subsidiary legislation (the practice is like PAC). This committee
will report to the parliament their findings. This method will save the time of
parliament and the members of the committee will be more focus.

Members of parliament also should take action to control subsidiary legislation. They
may raise questions to the responsible of that subsidiary legislation, there could
be a debate, and possibly a motion when the speech from Yang Dipertuan Agong
is being debated after opening of parliament. The action will pay attention of
either the minister concerned or the public however the effectiveness depends on
the reception of the minister concerned and his response to the public opinion.

4. CONSULTATION
Before the regulations are made, minister or the recipient of delegated powers
usually conducts consultation with organised interest group and advisory bodies.
Actually, there is no statutory provision making consultation a formal requirement
for the making of subsidiary legislation.

It would be unwise for a minister to make regulations without giving the people who
will be affected an opportunity to discuss the proposal.

5. PUBLICATION
Since ignorance of law is, in general no excuse for breaking it rules or regulations are
readily made available to the public as soon as they come into force. In Malaysia,
it is the general practice that subsidiary legislation be published in the gazette and
will come into force on the date of publication or on such date as may be
specified.

At the federal level, subsidiary legislation which is required to be published is

published in Malay and English in two parts of the gazette:
i. Tambahan perundangan ‘A’ (Legislature Supplement ‘A’) which contains all
proclamations, rules, regulations, orders, and by-laws.
ii. Tambahan Perundangan ‘B’(Legislature Supplement ‘B’) which contains all
 other subsidiary legislation.

The subsidiary legislation is serially numbered with either the prefix PU (A) or PU (B),
depending on the part of the gazette it is published in. PU stands for
Pemberitahuan Undangan.

There are controls in place in relation to delegated legislation to ensure that those
who make law under it are doing it in an appropriate manner. Parliament
exercises control over delegated legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of Parliament the parameters with regard
to delegated legislation. Further, there are scrutiny committees which consider
delegated legislation within a Bill as it passes through the Houses of Parliament.
Delegated legislation is also subject to control through the Court. A piece of
delegated legislation can be deemed by the Court to be ultra vires. This means
that the body that created the delegated legislation acted beyond the powers
conferred to them by statute. An example where a body would have acted ultra
vires would be if the delegated legislation goes beyond what Parliament intended
or where the procedural rules to be followed in relation to the delegated
legislation have not been followed. Any Court action which is brought challenging
delegated legislation is done through the means of Judicial Review. If the Court
finds that a piece of delegated legislation is ultra vires then that legislation can be
declared void.

The legislative control over local bodies is exercised by the state legislature through
enactments on the subject. Often this power is delegated by the state legislature
to the state government to frame rules and regulations and byelaws to regulate
and control the administration of urban local bodies.

‘Judicial Control’ is one of the main methods of controlling subsidiary

legislation.Judicial control is the most important of the controls. In Malaysia, the
foundations for suchreview lie inss 23(1) and 87(d) of the Interpretation
Actsstates that if a subsidiary legislationwas to provide laws which are not
consistent with an Act of Parliament or State Enactmentshallbe void to the extent
of the inconsistency. The courts have the power of judicial review oversubsidiary
legislation. The courts may declare the exercise of the subsidiary legislation
voidunder theultra viresdoctrine on either one of two grounds which
aresubstantiveorprocedural.Insubstantiveultra vires,the recipient of the delegated
power has made law beyond thelimitsof the power conferred. As in the case
ofMajor Phang Yat Foo v Brigadier GeneralDato’ Yahya bin Yusof & Anor,the High
Court ruled thatr 63(3) of the Armed Forces Rules1976was void to the extent that
it confers jurisdiction on the convening authority to approve ordisapprove a
decision of a court martial. This is contrary withSection 119 of the Armed
ForcesAct 1972authorizes the Minister of Defence to make only rules of
procedure relating toinvestigation and trial of offences by court
martial.Inproceduralultra vires,the recipient of the delegated power has failed to
follow amandatory procedurelaid down in the enabling statute. As in the case
 ofDatin Azizah bte AbdulGhani v Dewan Bandaraya Kuala Lumpur,which is about
to give notice to the affected partiesto allow them to make objections before
granting planning permission. The Supreme Court
quashed the order as on the facts that there is no notice of the application for
planning permissionhad been sent to the appellant (Datin Azizah) because it was
negligently sent to the wrongaddress.In conclusion, there are four methods of
controlling subsidiary legislations which areconsultation, legislative control,
judicial control and publication. For judicial control, the courtshave the power of
judicial review over subsidiary legislation. The courts may declare theexercise of
the subsidiary legislation void under theultra viresdoctrine on either one of
twogrounds which are substantive or procedural.

Legislation can have many purposes: to regulate, to authorize, to outlaw, to

provide (funds), to sanction, to grant, to declare or to restrict.

LEGISLATIVE PROCESS

Procedure for Constitutional Amendment

Federal Constitution provides four ways to amendment the laws. According to Article 159
(1), constitutional amendments made by referring to the federal law. This means that
the amendment will go through the process of legislation in Parliament. However,
Article 159, read with several other provisions, establishes special conditions in the
amendment of the clauses that have been determined.

1st Way: The Present Simple Majority

According Article 159 (1) & (4) read with Article 62 (3), the Constitution, a Bill to amend the
regulation can be approved by a simple majority of board members present.

To provide an overview, the House of Representatives (12th Parliament) has 222 members
(Article 46 (1), PP). For example, if a quorum of the House of Representatives is 30
members and a Speaker of the Honourable House (Speaker); only 50 members present
of the Honourable, not including the Chairman of the Board as he just present for the
session to approve the bill this constitutional amendment. The Constitution
Amendment Bill would require only 26 votes to support the draft bill voiced by the
assembly.

Quorum Systems

In parliamentary systems, a board or committee may set the number of a quorum to meet.
The number of quorum shall be construed as the minimum number of voting members
present to convene a conference. The number of quorum stipulated by the relevant
 council; of the Parliament of Malaysia, the power is delivered to the assembly through
Article 62, PP. When the number of members of the House of Representatives or the
Senate to attend the conference less than a quorum, the conference action on the
procedure to be valid for less or do not meet the quorum.

2nd Way: A majority of 2 / 3 Two-Two Board Members

Unlike the first method, Method 2 is a frequently used method of amendment. Compared
to other 3 methods, this method is the most common way to amend the clause
contained in the Federal Constitution.

According this way or Article 159 (3) of the Federal Constitution, a bill of the amendment
must receive the support of at least 2 / 3 members of the Board on the Second and
Third Readings.

Back to the illustration above, a draft amendment to the constitution need the support of
at least 148 members of the House of Representatives in the Second and Third
Readings. After the approve by the Parliament, the same bill will go through the same
process. This time, 47 Senators must support this Bill on Second and Third Reading in
the Senate.

Then, as same as federal bill and another bill that has passed both Houses of Parliament, it
will be presented to the Yang Di Pertuan Agong for his assent. Before it took effect, the
new amendments shall be enacted.

3rd Way: A majority of 2 / 3 Two-Two Board Members of Parliament and the assent of the
Council of Rulers

If Parliament wants to amend matters affecting the sovereignty, dignity and position of the
Majlis Raja-Raja or any of the Malay rulers, as set out on Article 159 (5), as same
procedures with 2nd Way. The only difference is that it needed consent of the Majlis
Raja-Raja. Without this consent, the constitutional amendment‘s bill will not be valid.

4th Way: A majority of 2 / 3 membership of both chambers of Parliament and the assent of
the President of the State of Sabah or Sarawak

The position of Sarawak and Sabah in Malaysia are protected by imposing additional
requirements in terms of the amendment method that involves both states of Borneo.

In addition to the 2nd procedure, all the amendments written in Article 161E (2) of the
Federal Constitution, should be approved by the President of Sarawak or Sabah. (C3)