Exclusion of Courts

The general rule is that any subsidiary legislation which excludes the court from revising
the decision made via the subsidiary legislation is deemed to be invalid unless the Parent Act
expressly allows it. This is because an individuals right to access to court ought not to be
deprived to uphold the rule of law.
This doctrine has been successfully applied in several English cases. In the case of
Chester v Bateson1, the court declared the prohibition of property owners from accessing the
courts without getting consent from the Minister as unlawful. In the case of R & W Paul Ltd v
The Wheat Commission2, the Wheat Commission enacted a bye-law saying that all dispute shall
be ruled by the determination of arbitration. The court had ruled that the Wheat Commission had
no power to do so without express power given by the Parent Act. The bye-law is deemed as
invalid as it amounts to an exclusion of courts. In Commissioners of Customs & Excise v Cure &
Deeley Ltd3, the court had held that the act of subsidiary legislation to exclude the power of court
to review the decision made by the Commissioner was to be declared void as it ultra vires the
Parent Act and also violates the individual right to make an appeal.
From the English cases discussed, we observe that the English courts have always
adopted this general principle to preserve its jurisdiction to exercise adjudicatory power. In our
opinion, we humbly believe that all the application of subsidiary legislation shall always be

1 [1920] 1 KB 829.
2 [1937] AC 139.
3 [1962] 1 QB 340.

subjected to the scrutiny of the court. This is to prevent abuse of power and arbitrariness. It is
also to safeguard the right of citizens to have access to courts.
In Malaysia context, subsidiary legislation under the exclusion of courts is rarely
challenged. In the case of Soilchem Sdn Bhd v Standard-Elektrik Lorenz Ag4, the High Court
struck out the applicants proceedings saying that s 34(1) of the Arbitration Act 1952 was meant
to and does exclude the jurisdiction of the court. It can be seen that Malaysian courts always
choose to follow the intention of the Parliament most of the time. It is suggested that Malaysian
courts should follow the English position to strike down the bye-laws excluding the jurisdiction
of courts to ensure there is no arbitrary power on the executives.
Financial Levy
Another general principle is a financial levy cannot be imposed through regulations except when
the parent Act has specific grant of power to authorize a financial levy. Therefore, when a levy is
unauthorized, it cannot become valid even if the purpose is good.
In India, the courts follow strictly this general principle. However, in Singapore, even
though the courts recognized it, they would still look into the purpose of legislation to see
whether there is an intention to impose levy.
Looking back to Malaysia, we may refer to the case of Palm Oil Research and
Development Board Malaysia v Premium Vegetable Oils Sdn Bhd5 where Gopal Sri Ram CJ
stated that it is important to find out the true intention of the Parliament. S44 of the Interpretation
Acts 1948 and 1967 provides power to make subsidiary legislation prescribing fees or charges.
4 [1993] 3 MLJ 68.
5 [2005] 3 MLJ 97.

However, this section could only come into operation after the parent Act confers specific power
in the parent Act.
It is good to see that Malaysian courts construe this principle strictly and keep it within
the bounds of power delegated. A recent example is that the imposition of taxes is allowed in the
power granted to the Minister to impose goods and services tax is conferred by s 177(1) of the
Goods and Services Tax Act 2014. Since the parent Act itself specifically authorizes it, financial
levy can be imposed.