Procedural Ultra Vires

At common law, ultra vires doctrine generally encompasses

excesses of powers by an administrator or a tribunal. In the scope of
subsidiary legislation, it is concerned with the excesses of law-making
power. The doctrine has two aspects which is substantive and
procedural. In the era of globalization, the doctrine may also be
extended to the misconduct of private bodies or enterprises which take
over the running of activities or provision of services traditionally
provided by governmental bodies. In a country with a written
Constitution which committed to the Rule of Law like Malaysia, the
ultra vires doctrine, implied its relevance, significance and amplitude in
the powerful constitutional parlance unconstitutionality. Sometimes,
judges and administrative lawyers tend to use various nomenclatures
relating to judicial review loosely or generally to denote specific
aspects of the ultra vires doctrine.
Procedural ultra vires refers to any non-compliance with mandatory
procedural requirement by the law-making authority in the law-making
process.

The

requirement

of

publication

of

the new

law

and

consultation with affected interests before the laws are finalized and
promulgated and thus laying procedure before the legislature may
render a subsidiary legislation so made in open defiance of a
mandatory procedure laid down by the Parent Act null and void and of
no effect. On the other hand, non-compliance with a directory

procedure will not render the subsidiary legislation so made null and
void.
In a case of Palm Oil Research and Development Board Malaysia &
Anor v Premium Vegetable Oils 1 before the Federal Court, it was
pronounced that the ultra vires doctrine has its roots in Art. 8(1) of the
Federal Constitution. Ultra vires laws (including subsidiary legislation)
are prohibited under Art. 4(1) of the Federal Constitution. In Malaysia,
retrospective civil laws may be enacted even if there is no specific
authorization in the Parent Act. 2 The Federal Constitution merely
prohibits retroactive criminal laws.3
In the case of Puvaneswaran v Menteri Hal Ehwal Dalam Negeri,
Malaysia4, an order for preventive detention were made under the
Emergency (Public Order and Prevention of Crime) Ordinance 1969 5
was nulled for non-observance of a mandatory rule. Rule 3(2) of the
Public Order and Prevention of Crime (Procedure) Rules 1972 stated
that it shall be the duty of the officer-in-charge of the detention camp
to provide the detainee with two copies of Form I. The court
characterized the giving of Form I as not a concession but as a right
designed to enable, and not just to assist. Accordingly, rule 3(2) was

1
2
3
4

[2005] 3 MLJ 97, (FC).

S 20, Interpretation Acts 1948 and 1967.
Art. 7(1).
[19991] 3 MLJ 28
(PU (A) 187/1969)

characterized as mandatory by the court as the matter involved the

liberty of a person.6
Procedures for the exercise of discretionary powers may prove to be
an important control mechanism on the exercise of discretion. Fair
procedures must be laid down as a guideline for authority on exercising
discretionary powers. Procedural safeguards assume significance when
the substantive is lacking.

Lexis Nexis, Administrative Law of Malaysia and Singapore, MP Jain, Fourth Edition,
page 403