Saturday, January 12, 2013

Control over Subsidiary Legislation : Judiciary

Some form of control is needed over subsidiary legislators an persons authorised to enact law as a safeguard. This is to minimise the disadvantage of the system and to maximise it's benefits.

Therefore, several forms of control have been formulated and they are :

1) Parent Act Ultra Vires FC     :  PA UV FC

2) Subsidiary L Ultra Vires FC   :  SL UV FC

3) Substantive Ultra Vires           :  S UV (will be discussed in a separate post)

4) Procedural Ultra Vires            :  P UV


Parent Act Ultra Vires FC

Article 4 FC provides that the FC is the Supreme Law of the Land and every law inconsistent with it shall be void to the extent of it's inconsistency. Therefore, should a Parent Act be found to be inconsistent with the FC, and thus vois, so shall any subsidiary legislation made pursuant to the Parent Act

                                                Johnson Tan Heng Seng v Public Prosecutor

In this case, the validity of the ESCAR was challenged (the ESCAR is a SL made pursuant to it's Parent Act, the Emergency Ordinance 1959). The claimant said that since the situation have now changed (not an emergency situation any more) therefore the Emergency Ordinance is invalid and consequently the ESCAR too.

Decision : The Court held that it was up to the Executive and not for the Courts to decide whether a proclamation of emergency under Article 150(1) should or should not be terminated. Therefore, in this case, the Emergency Ordinance 1959 was deemed to be valid and so does the ESCAR.


Subsidiary Legislation Ultra Vires

If the Parent Act does not contradict the FC but the SL contradicts the FC, only the latter will be invalid.
The Parent Act will remain valid.

                                                  Teh Cheng Poh v Public Prosecutor

In this case, again the validity of ESCAR was challenged. It was argued that the ESCAR was made 4 years after Parliament had sat. Article 150(2) FC states that the YDPA may not make regulations having the force of law after Parliament sat. Therefore, the SL ultra vires the FC.

Decision : The Privy Council overturned the FC's decision. They held that the power of the YDPA to promulgate regulations having the force of law lapsed as soon as Parliament sat and this power would not revive even during periods when Parliament was not sitting.

Procedural Ultra Vires

SL may be held invalid on the ground of procedural ultra vires. A Parent Act may stipulate procedures that the subsidiary legislators have to follow in making a regulation. Non-compliance with the procedure may result in the SL deemed invalid, depending if the procedure is directory or mandatory. With regards to that, it is the Court that will decide whether a procedure is directory or mandatory.

                                                 Wong Keng Sam v Pritam Singh Bar

Court held in this case that a person may not seek for redress in a court for any breach or non-compliance with a rule which not mandatory and only directory.


So this is about it for Judiciary Control, as for Substantive Ultra Vires, it'll be in a separate post. Probably :-\


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