The parliamentary control in Malaysia do have the initiatory power of the parent act even though the control of parliament has over subsidiary legislation is not that superb. They can contemplate and select the boundaries in which the subsidiary legislation is to be made such as about how the regulations will affect, which Government Minister can make them and if the department making the regulations must consult anyone before making them final. Besides, parliament can refuse powers in the Enabling Act at any given point. Therefore, as the body to make the law, Malaysia practises parliamentary democracy system. This body governs special right or task as a principal to ascertain that the executive with delegated power does not abusing their power. Thus, this parliamentary control system is one of the effective methods to control subsidiary legislation. In general, there are three types of control of parliamentary control in Malaysia which are a simple laying procedure, the affirmative and negative resolutions and the scrutiny committee.
The first type of control is simple laying procedure. A simple laying procedure happens where any subsidiary legislation will be laid before each House. The subsidiary legislation comes into force as soon as made and there is no need of waiting period. The laying procedure is informational in function and is only directory. The principle in this idea is that it does not affect their validity even if they fail to lay the subsidiary legislation before the parliament. The subsidiary legislation can be laid down after it has been made in the case where the subsidiary legislation had turned out to be viable before before its being informed upon the legislature or it can be laid down in a draft form. There are three methods to be referred under this simple laying procedure.
In the case of PP v Ooi Kek Saik, the law stated that if the declaration of emergency had been issued when the parliament is not sitting, the YDPA shall request all the parliament as soon as may be applicable. It was postponed of one year and nine months in requesting the parliament. Hence, the Federal Court held that “his majesty is the sole judge when it is possible to summon parliament and the matter is above judicial review”. Thus, that long time lag of one year and nine months in requesting the parliament did not affect the validity of either the declaration. The example of this type of control is in section 83 of the Trade Mark Act 1967 stated that “the regulations were to be laid before both Houses of parliament as soon as after their publication in gazette”. No time frame within which the regulations were to be laid and it had been left to the accommodation of the government.
The first method is laying with negative or annulment resolution. Commonly, the subsidiary legislation legislated will takes force as soon as it is made. The doctrine is that the subsidiary legislation will continues to take force until there is a dissolution determination being passed by Parliament. This can be seen for example in a demonstration which subjected the directions made to the abrogation strategy of the Dewan Rakyat. This idea is just significance to the annulment of the instrument and not to the act of amendment. Hence, the efficiency of this laying procedure in governing the subsidiary legislation only just developed the matter identified with the revocation and not the change.
The second method implied is known as ‘laying simpliciter’. It is a laying procedure which intends to render information and its directory in nature. It is express that the subsidiary legislation had to be presented before the parliament however the inability to do so will not affect its validity. For example is in Section 36(2) of Financial Procedure Act 1957 provided that the “Regulations made shall be laid before Dewan Rakyat”.
The last method inferred is laying in draft subject to annulment. Section 6(1) of the Statutory Instrument Acts 1946 laid down that the instrument shall not be enforced until after the termination date of forty days starting from the day of the laying. If within those period either House chooses to invalidate the instrument then it shall not be forced. Nevertheless, another draft of proposed instrument perhaps exhibited without any discrimination. This indirect way will give a possibility to Parliament to express its objection upon the proposed instrument. Compare to the first method, this third method is a bit different in the way that the instrument will comes into force only forty days after laying unless dissolved within those period, whereas in the first method, the statutory instrument is already been implemented before it being annullable.
The second type of control is the affirmative and negative resolution. The statutory instrument cannot become a law without specific approval from the parliament. For example, an affirmative resolution is needed before the revised police codes of practice due to the police and criminal evidence act. The need for an affirmative resolution will be in the enabling act. An encumbrance of this procedure is that the parliament cannot amend the statutory instrument. It can only approve, annul or withdraw it. A majority number of statutory instruments will be subject to a negative resolution, meaning that statutory instrument will become law unless rejected by parliament within forty days.
While the example for affirmative procedure is in section 15(1) of the Sales Tax Act stated that the minister had the power to fix the rate of sales tax from time to time. Any order shall be laid on the table of each House at the next meeting at Dewan Rakyat. It shall have effect if at the expiration of the ten days from time being so laid, by resolution direct or cease, it is not confirmed by a resolution passed by the Dewan Rakyat within ten days. It is the responsibility of the government to bring forward a resolution because the regulation will automatically come to an end if such resolution is not passed. Applying to this example, the order have to be laid on the table of each House and have to vote within ten days. If not, the vote will be void.
Besides, for the negative resolution when any act comprises provision for this type of laying, the draft rules shall be placed on the table of the House and shall come into force after forty days from the date of laying unless disapproved before that period.
The example of negative resolution is in section 19 of the Control of Imported Publications Act 1959 stated that “all regulations made by minister shall be published in the gazette, and as soon as possible thereafter, shall be laid before the Dewan Rakyat passes a resolution annulling the regulations…the regulations shall be void as from the date of notification in the gazette of the passing of the resolution”. In this case, the regulations were to be laid as soon as possible in Dewan Rakyat and at the next meeting, the House could pass a negative resolution. When such resolution was passed, the disapproved allotment of the regulations automatically become void. Applying to this example, the regulations have to be laid before the Dewan Rakyat and until the next meeting, they can pass the resolution. If the resolution was passed, the rejected regulations become void.
In the case of Daihatsu (M) Sdn Bhd v PP, if the statute made under which by-law is repealed then these by-law are impliedly repealed. The by-laws made by MPPJ in accordance to the Town Board enactment ceased to be valid on repeal of section 16(1) of the enactment by section 166of the Local Government Act 1976.
The third type of control is scrutiny committee. There is a Joint Select Committee on statutory instruments called the scrutiny committee. The objective is to make report to the parliament of any subsidiary legislation made. This committee’s role is to inspect statutory instruments and if needed, get the attention of both Houses of Parliament to indicate through a statutory instrument which are thought to need further consideration. Common reasons for this comprise the statutory instrument imposing a tax or charge. It somehow being unclear, appearing to have retrospective effect not provided by the enabling Act and it is going beyond the powers set out within the enabling Act. The Scrutiny Committee can only report back the Houses. It does not have any power to alter or amend statutory instruments.
In conclusion, Malaysia do practices parliamentary control. This control has its own effectiveness. From the above explanation, we know that this control has three types of control.