Legislation And Delegated Legislation

Study Guide

Explain legislation and delegated legislation and its importance including controls over delegated legislation.

Past Year Questions

June 2004 Q1, Dec 2007 Q1, Dec 2009 Q1 

Subsidiary (delegated) legislation, though necessary, needs to be sufficiently controlled. In relation to the Malaysian legal system:
a. explain and distinguish ‘legislation’ from ‘delegated legislation’; and 

b. the advantages/ importance of subsidiary (delegated) legislation,c. its disadvantages and the ways in which it may be controlled.


Suggested Model Answer

This question tests the candidates’ knowledge on the difference between legislation and delegated legislation, as well as of the importance of subsidiary legislation, its disadvantages and the ways in which it is controlled.

a. Legislation Vs Delegated Legislation

• Legislation refers to the laws which have been formally passed by the properly elected bodies, i.e. the Parliament (at the Federal level) and the State Legislative Assemblies (at the State level). Legislation passed by Parliament is generally called an Act of Parliament, while those passed by the State Legislative Assemblies are called Enactments (with the exception of Sabah and Sarawak, where they are called Ordinances).
• Delegated legislation (also known as subsidiary legislation) refers to the rules and regulations, which are passed by some person or body under some enabling parent legislation. The Interpretation Act 1967 defi nes it as ‘any proclamation, rule, regulation, order, bye-law or other instrument made under any Act, Enactment, Ordinance, or other lawful authority and having legislative effect’.

b. Advantages of Subsidiary Legislation
The importance of subsidiary legislation lies in its many advantages, which may be summarized as follows:

• Subsidiary legislation can be passed very speedily as it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, subsidiary legislation can be just as speedily rescinded to meet the changing needs of society.
• Parliament does not have sufficient time to deal with detailed rules necessary to implement the law. Subsidiary legislation fulfils this need.
• Some matters require the special skill and knowledge of experts in that area. Parliament itself may not have sufficient experts for this purpose. Thus, subsidiary legislation fulfils this need as well.

c. Disadvatages of Subsidiary Legislation

However, subsidiary legislation has several disadvantages as well. The main complaints are the following:

• The growth of subsidiary legislation goes against the doctrine of separation of powers.  This is because law is not being passed by persons elected for that purpose (i.e. the legislature). Instead it is being passed by officers of government departments.
• As parliament cannot effectively supervise the making of subsidiary legislation due to lack of time, many rules and regulations may have been passed without proper consideration of some very important factors.
• Too much law is passed through subsidiary legislation. In view of these disadvantages there is a need to control the proliferation of subsidiary legislation. 

d. Forms of Control Over Subsidiary (Delegated Legislation)

Several forms of control over subsidiary legislation have been developed. The following are the main ones:

• Consultation - Prior consultation with relevant advisory bodies and interest groups are quite often required to be had before the finalisation of the subsidiary legislation. Sometimes the parent legislation makes such consultation compulsory. Disregard of this requirement may result in the subsidiary legislation becoming ultra vires and void.
• Parliamentary Control - Parliament may exercise control over subsidiary legislation by repealing the parent legislation or the subsidiary legislation. However this is rarely done. More commonly, the parent legislation will require the rules or regulations made under it to be laid before the legislature. The rules or regulations will become effective if there is no negative resolution against it. Occasionally the parent legislation may require the subsidiary legislation to be subject to an affirmative resolution. In such cases the subsidiary legislation will become effective only when such an affirmative resolution is passed.
• Judicial Review - Where the subsidiary legislation is outside the powers contained in the enabling legislation, the court may declare such legislation as ultra vires the parent legislation and therefore invalid.
• Publicity - As a general rule the 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.