The
issues that can be raised from this question are:-
1) Whether
rule 1 is reasonable or not.
2) Whether
rule 2 ouster clauses or not.
3) Whether
rule 3 is financial levy or not.
4) Whether
rule 4 has retrospective effects.
The
principle that can be used to solve this problem is the doctrine of ultra
vires. This doctrine is one way how courts review decisions made by public
bodies. It can be used to determine whether the subsidiary legislation made by
public bodies is valid or not. Ultra vires means beyond the power and it can be
classified into three which are procedural, substantive and extended ultra
vires. Furthermore, procedure in making subsidiary legislative can be
classified as mandatory and directory. Mandatory means SL must need
consultation with specific body, opportunity for affected persons to file for
objections and pre-publication of draft rules. Directory means public bodies
need not follow the procedure; non-compliance with the procedure will not make
the SL invalid. Besides that, substantive can be refers as scope, extent and
range of power conferred by the statue to make SL. It can be classified as
parent act ultra vires the federal constitution, SL ultra vires the federal
constitution and SL ultra vires the parent act. Extend ultra vires also can be
classified as retrospective effect, financial levy, outer clauses and
reasonable.
In
answering first issue, it can be gathered from the facts of the problem that
all published printed material shall have at least 70% of local content.
Sections 2 of the Publication Act 2005 empower the home minister to make rule
for the purpose of controlling. The principle that can be used to solve this
problem is unreasonableness under extended ultra vires.
This
is the situation where one can challenge the validity of the SL on the ground
that is unreasonable. As stated by Chief
Judge in case of Kruse v Johnson [1898] 2 QB 91 as a guideline. The general
rule is that section 2 of the act empowers the home minister to make rule for
the purpose of controlling the contents of the printed materials. It is the
task of the court to decide whether the rule is an unreasonable or not. The
rule is unreasonable because from the parent act, home minister have authority
to make rule for the purpose of controlling the contents of the printed
material.
To
support above argument are cases of Arlidge
v Islington Corporation and AIR
India v Nergesh Mirza AIR.
Thus,
the subsidiary legislation made by the local authority is ultra vires and
invalid because rule 1 is unreasonable because it was manifestly unjust as the
foreign news only included for 30% in published material. It indicates
ignorance of government towards foreign news globally.
In
answering second issue, it can be gathered from the facts of the problem that
rule 2 says no printed on entertainment shall be published without the consent
of the minister and his decision shall be final and conclusive. The principle
that can solve this dispute is ouster clause. The ouster clause means a public
body or an administrator must make sure that the subsidiary legislation passed
must not exclude the court from making any judicial review. Example the
subsidiary legislation must not contain any provision which does not allow any
interference from the court, except if the Parent Act under which the
subsidiary legislation is made has expressly allowed the exclusion of the
court.
Generally,
the jurisdiction of the courts should be allowed because if any party is not
satisfied with the decision made or action taken by the public body, there will
not be enough platform for him/her to challenge.
So
that I think that this rule is ouster clause. This is because in that rule says
‘his decision shall be final and conclusive’ so every decision that had made by
them cannot prefer to the court and it also does not allowed any interference
from the court. Moreover, we can bring this case into the court because Parent
Act does not says that any SL pass can have an exclusion of courts clause
To
support the above argument are the cases of Chester v Bateson (1920) and Petaling
Tin Bhd v Lee Kian Chan (1994).
As
doing so, this subsidiary legislation that made by the parliament is ultra
vires and invalid because rule 2 is ouster clause. Association is thus advised
to bring the case to the court for judicial review.
In
answering third issue, it can be gathered from the facts of the problem that rule 3, that Malaysian publishers’ association must
pay a fee of 5% to make sure all printed material that was sold in the market.
The principle that can be used in this problem is financial levy under extended
ultra vires. This principle show that financial levy cannot be imposed through
administrative legislation under the general power to make regulation except
when parent act specially and expressly confers power for that purpose .A
general grant of power to make
regulation does not warrant imposition has a financial levy through
legislation. Thus, the court has a task to determine whether the charge imposed
is actually financial levy or not. If it is, its validity depends on
availability of express provision in the parent act to charge as such.
The general rule is that administrative bodies like
local authorities cannot impose any charge or payment in the bye laws passed by
them except if the parent act allows them to do so. It is the task of the
courts to decide whether the charge is levy or not. The 5% fee that Malaysian
publishers’ association must pay to the local authority can be regarded as levy
since it is formed as tax. In addition, there is no express provision in parent
act which permits the imposition of such charge to Malaysia publishers’
association in the bye laws made by local authorities.
To support the above argument are cases of AG v Wilts United dairies and MP Pillay v PP.
Thus, the subsidiary legislation made by the local
authority is financial levy and Malaysian publishers’ association does not need
to pay fee 5% as they regarded as tax.
In
answering fourth issue, it can be gathered from the facts of the problem that rule
4 indicating that rules are applicable to all printed material that was
published since 2005. The principle that can be used to settle the dispute is
extended ultra vires which has retrospective effects. This is a situation where
the SL has a backdated effect like the enforcement of the SL starts on a date
way before it is passed. As a general rule, all SLs that have retrospective
effect are not valid. However, we must first determine whether this
retrospective effect is valid. It is only valid when there is an express
provision or by necessary implication in the parent act to do so and the effect
of the regulation cannot be earlier than the date of commencement of the parent
act.
Since
the rule 4 is applicable since 2005, it does not beyond the date of
commencement Publication Act 2005. It clearly passes the first principle but in
Publication Act 2005, there are no provision that allow any SL to pass with
retrospective effects and automatically the SL against the second principle.
To support the above argument are cases of Attorney General v Cold Storage
(Singapore) State and
Kerajaan Malaysia v Wong Pot Heng.
Thus,
the rule 4 is invalid as there is no provision on that Publication Act to have
retrospective effect even though it does not beyond the date of commencement
Publication Act 2005.
The
conclusion is the SL made by the local authority is ultra vires and invalid
because rule 1 is unreasonable, rule 2 is ouster clause, rule 3 is financial
levy and rule 4 has retrospective effect. Thus, the Malaysian Publishers’
Association advised to bring the case to the court for judicial review.
SALEHUDDIN
AL- AYUBI (MAM 110 4A)
1. MUHD. HAIRUDDIN BIN BAKRIN
2. MOHD. SHAFIQ BIN SHAFEE
3. MOHD. MUZAMMIR BIN SALIM
4. MUHD. AMIN BIN AMIR
5. ZULAMIRUL AIMAN BIN ZULKIFLI
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