Discuss the role played by the judiciary in the control mechanism of subsidiary legislation and evaluate its effectiveness in the Malaysian context.

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Discuss the role played by the judiciary in the control mechanism of subsidiary legislation and evaluate its effectiveness in the Malaysian context.
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   DMINISTR TIVE L W SSIGNMENTYE R 2014/2015 Discuss the role played by the judiciary in thecontrol mechanism of subsidiary legislation andevaluate its effectiveness in the Malaysian context.  BERNARD !"E# !"A $!ERN%EB&'((&' )ANE *EA+ $,,N- *"N%EB&'(('' A%A"/AANAN M0R1*%EB&'(('2 $!AR,N A0R )E$$*%EB&'((34   Introduction  Subsidiary legislations are basically powers given to the executive oradministrating body to make rules and orders on various subject mattersbased on the delegation of the parent act. It is easy to see howarbitrariness can be possibly arise in subsidiary legislation. Moreover, thedecision of the administrative bodies are often made nal. ithoutrestraint, government may be abuse the power in a way that it coulda!ect the rights of the people. "  #his is where the role of the judiciarycomes into play. #here are three main methods of judicial control$unconstitutionality, procedural and substantive ultra vires, and impliedlimitations. #hrough these methods, the evaluation of the e!ectiveness of the Malaysian judicial control will depend on the attitude of the courtswhen it comes to interfering with the enforcement of subsidiarylegislation. Constitutionality  %udicial control over subsidiary legislation (“hereinafter SL”)  on the basisof unconstitutionality can be sought under two situations. &irstly, that theparent act is unconstitutional and non est causing the S' derived from itto also be unconstitutional. Second is on the basis that the S' itself isunconstitutional, independent from the fact that the parent act isunconstitutional. It is pertinent to note that the &ederal (onstitution is theSupreme 'aw of the land and any law inconsistent with the constitution isvoid to the extent of its inconsistency. ) " *dministrative 'aw of Malaysia and Singapore, %ain. M.+. "--/ at pp 00)  1nder the rst ground, cases of this sort often revolves around theinfamous 2mergency 2ssential +owers/ 3rdinance "-4- 5#he3rdinance6/ that challenges its validity as per the constitution. (ourtshere have adopted the view that 5#he 3rdinance6 is a legitimate lawenumerated under *rticle "78 of the &ederal (onstitution which conferslegislative power to the 9ang di$+ertuan *gong 9:+*/ to proclaim lawsunder the ordinance notwithstanding its consistency with the (onstitution.In the &ederal (ourt case of  Johnson Tan Han Seng v PublicProsecutor, 3  the appellant challenged the 2ssential Security (ouncil/;egulations "-7 2S(*;/, a S', because the parent act #he 3rdinance/was unconstitutional due to time lapse and change in circumstanceswhich cannot be a ground for the court to decide on the termination of any emergency proclamation. Subse<uently, in PP v Khong Teng Khen , 0 the court decided that 3rdinance, "-4- was properly and validlypromulgated under (lause )/ of *rticle "78 and not under *rticle "0- of the &ederal (onstitution. #he e!ectiveness of this method is remorsefullydi=cult as it relies on the judges> willingness to explore constitutionalstandings and even so, their interpretations seem to di!er accordingly.?evertheless, the constitution provides room for the existence of emergency ordinances though con@icting with constitution under *rticle ) *rticle 0 of &ederal (onstitution A B"-C ) M'% 440 B"-4C ) M'% "44A  "78 4/ and 4*/ which indirectly confers validity to the laws enactedunder its umbrella.  #he landmark decision of Teh Cheng Poh V Public Prosecutor  5  in whichthe +rivy (ouncil succeeded in declaring the 52S(*; 4 6 ultra vires the(onstitution and void regardless of the &ederal (ourt>s decision whichupheld its constitutional status because it was contrary to *rticle "78 )/.1nder art "78)/ the 9:+*>s power to issue ordinances came to an endafter the sitting of the +arliament. Dere, 'ord :iplock in his judgmentrelied on *rticle "78 )/ and advised that the 9:+* losses the power toenact laws once both houses in +arliament sits concurrently. In thispresent case, the regulation was enacted under 3rdinance "-4-, 0 yearsafter the sitting of parliament commenced. *t that point of time, the 9:+*had lost his power to declare laws even though 5#he ordinance6 was still abinding law. 1nfortunately, 52S(*;6 was <uickly elevated to ordaining thestatus of an E*ct> through a validation process that applied retrospectivelyin the +arliament. #his signicant act was done to prevent a collapse of the S' enumerated under 5#he 3rdinance6 that further strengthened itsclaws. Farious other cases brought under similar grounds have received mixedresponses.   It is safe to conclude that courts have strike down S' asunconstitutional but this approach often occurs in the cases pertaining to 7B"--C " M'% 784 #he 2ssential Security (ases/ *mendment/ ;egulations "-70  issues of fundamental liberties in which the judiciary connes itself to thelegislative approach. #his latest approach has challenged situations wherea S' has encroached into fundamental liberties and our courts have beenwise to declare them as unconstitutional simply to preserve the intentionof parliament. Retrospectivity ;etrospectivity is an implied restriction where no retrospective e!ect shalltake place in the regulations unless expressly provided in the +arent *ct. #his can be seen in The Cheng Poh v PP 8  where the court held that the2ssential Security (ases/ ;egulations "-7 can take retrospective e!ectfrom the date as stated in section ")/ of the 2mergency 2ssential +ower/3rdinance "-4-.hile *rticle "/ of the &ederal (onstitution prohibits retrospective law, itis only subjected to criminal laws and it does not apply to civil laws. #he general principle as stated above can be seen in section )8 of theInterpretation *cts "-0G and "-4 -  where subsidiary legislation may bemade to operate retrospectively up to the date no earlier than the comingof the +arent *ct. #his can be seen in  Attorney-eneral v Col!   Hajah Halimatus sadiah v Public Service Commission  B"--0C A M'% 4" H S' declared constitutional  Subramaniam a/l Gopal v PP  B)8"8C ) M'% 7)7 H S' declared unconstitutionalGB"-4C ) M'% )AG- *ct AGG7
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