Definition
Section 3 of the Interpretation Act defines Subsidiary Legislation (SL) as "Any proclamation, rule, regulation, order, notification, bye-law or other instrument made under any Act, Enactment or other lawful authority.
In simpler words it means law made by bodies or persons pursuant to a power delegated by the legislature to them having the force of law. This type of law has the same effect as if they were passed in Pt or State Legislature itself.
Reason for the growth of Subsidiary Legislation
A number of factors have contributed to the growth of SL :
1) T : The Time Factor
Parliament does not have enough time to legislate all the laws in the land. The Public requires a vast quantity and type of law, which the Parliament, on it's own is unable to make and meet. Thus, to resolve this issue, Parliament would enact the broad principles of law in the 'Parent Act' and allow the bodies or persons authorized in the Act to deal with the details.
2) D : Details and Technicalities of the Law
Members of Parliament enacts the law, indeed, however so, they may not be an expert in the area of law they are legislating. For instance, MPs generally may not be able to enact an Act which deals with all the complexity and technicalities of Marine Law, often only experts specialised in the subject-matter can work them out. Therefore, to overcome this, again the Parliament enacts only the 'Parent Act' and leave the details to such experts.
3) F : Flexibility of Subsidiary Legislation
A SL is very flexible as compared to an Act of Parliament (AoP). For instance, if something needs to be changed in an Act of Parliament, it would have to pass an amending legislation. This is not the case for SLs as it is possible to rapidly change details of the SL from time to time so as to adapt to formerly unforeseen and unknown future problems.
4) E : Emergency Situations
Should there be a time when the country is under emergency and there is a need for a legislation immediately to handle the situation, Parliament can't be convened nor can they enact laws immediately. They have mandatory procedures that they have to adhere to. This is when SL comes in handy as it allows for the administration to promulgate the necessary rules and regulations according to the needs of the emergency situations.
Reference : M.P Jain, 4th Edition, Page 45-47.
Showing posts with label M.P Jain. Show all posts
Showing posts with label M.P Jain. Show all posts
Friday, January 11, 2013
Doctrine of Separation of Power
The doctrine of Separation of Power (SOP) was first coined by Montesquieu (I've always imagined him as a short man with a curly moustache. Apparently not the case). Anyways, back to the main point, his argument was that no one person should hold all the powers as it will lead to arbitrariness, and Montesquieu knew this very well as that was the reality back then in France. Louis XIV, the then ruler of France had absolute authority over everything and this caused oppression unto the citizens as nothing could be done to remedy the injustice (Louis XIV held all the powers alone).
Thus, due to that bitter tragedy, Montesquieu formulated the doctrine of SOP.
So how does this doctrine works? It basically separates the three organs of a government, that being the :
- Legislative : To enact laws
- Executive : To implement laws
- Judiciary : To interpret the laws and adjudicate disputes
And the doctrine operates based on these principles :
- No one person can be in any two or all organs of the government at the same time.
- Each organ must exercise only their function.
That's it for the Doctrine. Coming up if I'm up to it is the Application of the doctrine in Malaysia.
Dicey's postulation of Rule of Law
Rule of Law, in bahasa is 'kedaulatan undang-undang'. I will subdivide this topic into three limbs, namely :
1) Dicey's postulation of Rule of Law
2) Rule of Law in the perspective of the International Commission of Jurists as per the Delhi Declaration.
3) The application of Rule of Law in Malaysia.
Dicey's postulation of Rule of Law
Rule of Law (ROL) according to Dicey means the absolute supremacy or predominance of regular law. It excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.
Dicey is of the idea that his Englishmen were ruled by law, and law alone without any exercise of discretionary power by the government. Thus, he said that Administrative Law does not exist in England as the Executive has no such power that needs to regulated. He also said that ROL emphasises on 'equality before the law', meaning that every single person is subject to the same law. With regards to this view of his, he criticised the French system of Droit Administratif (DA) which we have touched on in the previous posts. This is because the French system of DA exempts the government and public authorities from being tried by the ordinary courts, instead they are tried by the administrative tribunals.
However so, quite a number of scholars have come to the conclusion that Dicey had erred in saying as such. This is because the Crown of the UK (and thus the whole government) themselves are immune from any lawsuit. This is by way of the constitutional maxim 'the King can do no wrong'. The immunity enjoyed by the Crown was abolished only in 1947. Not only that, some of the statutes in the UK did grant the Executive discretionary powers which Dicey failed to see. There were even administrative tribunals outside of the judicial hierarchy set up to address the violated rights of the people. Besides that, Dicey saw the operation of the DA from a wrong angle, he thought that it was to protect the government and the public authorities when in essence it was actually to control their powers and act as a medium to address individuals aggrieved by their actions! Thus, Dicey's observation that there is no Administrative Law in England is described by scholars a his gravest and most unfortunate error as it does exist.
It was only after the case of Rice v Aldridge that Dicey reluctantly agreed with his fellow Englishman, Maitland that Administrative Law indeed has a place in England.
As a conclusion, Dicey's idea of ROL is that written law is the supreme law of the land. It is the standard by which every vessel of the government and public operates. There is no room for discretionary power by the government, not even a tiny speck as such power is a sign of arbitrariness. However so, he failed to see that Administrative Law has always been in England. That's about it for Dicey's postulation.
1) Dicey's postulation of Rule of Law
2) Rule of Law in the perspective of the International Commission of Jurists as per the Delhi Declaration.
3) The application of Rule of Law in Malaysia.
Dicey's postulation of Rule of Law
Rule of Law (ROL) according to Dicey means the absolute supremacy or predominance of regular law. It excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government.
Dicey is of the idea that his Englishmen were ruled by law, and law alone without any exercise of discretionary power by the government. Thus, he said that Administrative Law does not exist in England as the Executive has no such power that needs to regulated. He also said that ROL emphasises on 'equality before the law', meaning that every single person is subject to the same law. With regards to this view of his, he criticised the French system of Droit Administratif (DA) which we have touched on in the previous posts. This is because the French system of DA exempts the government and public authorities from being tried by the ordinary courts, instead they are tried by the administrative tribunals.
However so, quite a number of scholars have come to the conclusion that Dicey had erred in saying as such. This is because the Crown of the UK (and thus the whole government) themselves are immune from any lawsuit. This is by way of the constitutional maxim 'the King can do no wrong'. The immunity enjoyed by the Crown was abolished only in 1947. Not only that, some of the statutes in the UK did grant the Executive discretionary powers which Dicey failed to see. There were even administrative tribunals outside of the judicial hierarchy set up to address the violated rights of the people. Besides that, Dicey saw the operation of the DA from a wrong angle, he thought that it was to protect the government and the public authorities when in essence it was actually to control their powers and act as a medium to address individuals aggrieved by their actions! Thus, Dicey's observation that there is no Administrative Law in England is described by scholars a his gravest and most unfortunate error as it does exist.
It was only after the case of Rice v Aldridge that Dicey reluctantly agreed with his fellow Englishman, Maitland that Administrative Law indeed has a place in England.
As a conclusion, Dicey's idea of ROL is that written law is the supreme law of the land. It is the standard by which every vessel of the government and public operates. There is no room for discretionary power by the government, not even a tiny speck as such power is a sign of arbitrariness. However so, he failed to see that Administrative Law has always been in England. That's about it for Dicey's postulation.
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