Subsidiary Legislation In Malaysian Administrative Law: Definition, Advantages And Grounds To Challenge It

Abstract

This article discusses on the definition of subsidiary legislation in Malaysian administrative law, its advantages and how to challenge it. Subsidiary legislation is part of Malaysian legal sources that supplements the legislative function of Malaysian legal system. Although the Parliament and State Assembly are the main bodies that have been vested with the legislative power in Malaysia, other non-elected members are also conferred to exercise the same function to assist the Parliament and the State Assembly in their law making roles. The abundance of subsidiary legislation in the legal systems serve a great deal of benefits and advantages especially to ease the burden of the legislative bodies especially in dealing with the details of the law and also to gain expert views on certain issues. However the power mandated in the hands of these authorised bodies comprising of non-elected civil servants could also result in illegality and abuse of power, thus, this article attempts to outline grounds on which the subsidiary legislation can be challenged. This article is a descriptive and comparative analysis research which involves library-based method. This method is based on the analysis of various literature materials from books, articles, journals, Acts of Parliament, as well as reference to decided cases from Malaysian courts and commonwealth countries. It is the finding of this article that the court has the power of judicial review over the subsidiary legislation if the subsidiary legislation is ultra vires its conferring Act (parent Act), substantively or procedurally and the parent Act or the subsidiary legislation itself is unconstitutional. The court will look into the provisions of the parent Act and also the subsidiary legislation to determine its constitutionality and if it is within the scope of the parent act and the Federal Constitution. It is recommended that the power to enact subsidiary legislation conferred to the delegated body shall not be abused to overstep legal and constitutional boundaries and the Parliament shall not over-delegate its power to subsidiary legislation since it may be seen as abdication or ‘giving up’ its actual constitutional role i.e. to make law. Index Terms- Administrative Law; Advantages; Challenge; Subsidiary Legislation