Professional Documents
Culture Documents
The
requirement
of
publication
of
the new
law
and
consultation with affected interests before the laws are finalized and
promulgated and thus laying procedure before the legislature may
render a subsidiary legislation so made in open defiance of a
mandatory procedure laid down by the Parent Act null and void and of
no effect. On the other hand, non-compliance with a directory
procedure will not render the subsidiary legislation so made null and
void.
In a case of Palm Oil Research and Development Board Malaysia &
Anor v Premium Vegetable Oils 1 before the Federal Court, it was
pronounced that the ultra vires doctrine has its roots in Art. 8(1) of the
Federal Constitution. Ultra vires laws (including subsidiary legislation)
are prohibited under Art. 4(1) of the Federal Constitution. In Malaysia,
retrospective civil laws may be enacted even if there is no specific
authorization in the Parent Act. 2 The Federal Constitution merely
prohibits retroactive criminal laws.3
In the case of Puvaneswaran v Menteri Hal Ehwal Dalam Negeri,
Malaysia4, an order for preventive detention were made under the
Emergency (Public Order and Prevention of Crime) Ordinance 1969 5
was nulled for non-observance of a mandatory rule. Rule 3(2) of the
Public Order and Prevention of Crime (Procedure) Rules 1972 stated
that it shall be the duty of the officer-in-charge of the detention camp
to provide the detainee with two copies of Form I. The court
characterized the giving of Form I as not a concession but as a right
designed to enable, and not just to assist. Accordingly, rule 3(2) was
1
2
3
4
Lexis Nexis, Administrative Law of Malaysia and Singapore, MP Jain, Fourth Edition,
page 403