The Book of Prof Shad.docx

The regulations were an ordinance in disguise and

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law-making must cease, no matter by what name it is called. The Regulations were an Ordinance in disguise and because they had been framed after the King’s law-making power under Article 150 had lapsed, they were unconstitutional 103 . In constitutional law “the court must look behind the label to the substance”. The Monarch’s law making power comes to an end as soon as Parliament first sits after the Proclamation. The King cannot prolong it by empowering himself to make subsidiary legislation. As a comment on Teh Cheng Poh , it must be noted that what the Privy Council condemned was the making of law by the executive on its own authority. If after Parliament had come back to session, Parliament had delegated Regulation making power to the King, that would have been perfectly valid. During an emergency, can the delegate violate the provisions of the Constitution? In Eng Keock Cheng v PP [1966] 1 MLJ 18, the Emergency (Essential Powers) Act 1964 authorised the King to make “any regulations whatsoever … which he considers desirable or expedient for securing the public safety … “. The act was challenged as an abdication of Parliament’s legislative responsibility because it gave away blank-cheque, unrestricted power to the delegate and this was a violation of the doctrine against 103 The earlier decision in PP v Khong Teng Khen [1976] 2 MLJ 166 is not authority any more. 96
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excessive delegation. The Regulations were challenged as unconstitutional because they violated Article 8. The first argument was rejected because the Act, though wide, was not an abrogation by Parliament of all its power to legislate. On the second issue, the court held that subject to certain exceptions, Parliament has, under Article 150, power to enact laws inconsistent with the Constitution. This necessarily includes authority to delegate part of that power to some other authority. Basically, the court said that whatever Parliament can legislate, it can delegate. As Parliament can, during an emergency, violate fundamental rights, it can authorize a delegate to do the same on its behalf! Likewise in Osman v PP [1968] 2 MLJ 137, the Emergency Essential Powers Act 1964 authorised the delegate by Regulations to amend, suspend or modify “any written law”. It was argued that “written law” cannot and should not include the Constitution. But the court relied on the Interpretation and General Clauses Ordinance 1948 to hold that “written law” included the Constitution. The consequence of Eng Keock Cheng and Osman is that during an emergency, not only Parliament and the Yang di-Pertuan Agong but also their delegates can violate the Constitution. COMPARISON BETWEEN ARTICLES 149 & 150 ARTICLE 149 ARTICLE 150 Purpose Empowers Parliament to enact laws to combat subversion. Empowers Parliament and the Yang di-Pertuan Agong to take legislative action.
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