MEIKTILA UNIVERSITY OF ECONOMICS

MPA Programme

Judicial Control of Legislative Power of the

Administration
 
 Judicial Control of Legislative Power of the
Administration
The court can only control  the legislative powers of the
Administration after the proposals have been duly
promulgated as Acts of Parliament or subordinate
legislation.

The courts can declare delegated legislation to be void on

the ground that it is ultra vires the authorizing statute.
Concerning with the judicial control of delegated
legislative power the following points should be noted:

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 Judicial Control of Legislative Power of the
Administration
First, the courts do not of course
  invalidate legislation on
theirown motion, only in the course of proceedings
brought before them.
Second, the courts can set aside delegated legislation
even though it has been approved by resolution of both
Houses of Parliament.
Third, until an order has been set aside by court it is to
be treated as part of the law and enforced accordingly.
Delegated legislation is presumed to be valid in the
absence of rebuttal.
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Fourth, the argument that a regulation is ultra vires can
be a regulation, or by way of defense to a civil action
where the claim is based on a regulation. The argument
can also be raised by a plaintiff in proceedings against
the administration alleging that an 13 Act done by it and
affecting him is unlawful as sit was founded on an ultra
vires regulation.
There are two grounds on which delegated legislation
may be invalidated, the procedural and substantive.
The first relates to the procedure, which the
administration is required to follow in making
subordinate laws, and includes the laying before
Parliament of these laws.
The second relates to the subordinate laws themselves.
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 Procedural Ultra Virus

We have already been noted  that the Parent Act may refer
to certain procedures to be followed before a statutory
instrument or other form of delegated legislation is made.
 It may say that the authority ' shall' or ' may' follow a
certain procedure.
If the word is may failure to carry out the procedure
referred to would not affect the validity of the consequent
instrument.
If the word is ' shall' the affect of a failure to do what is
required depends on whether the requirement is regarded
by the courts as mandatory (or imperative) or discretion.

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Failure to observe the minatory will invalidate the
regulations whereas failure to observe directory will not
invalidate the regulations.
The Administration may be required by statute to consult
with particular bodies, before making subordinate
legislation.
 It may also be required to publish draft proposal and to
hear representations or objections.
 It is probable that a failure to consult publish or hear will
invalidate any document subsequently made.

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It was contended by the appellants that the Income -Tax
Rules promulgated by Notification No. 11 of 4th June
1954 which admittedly were not laid at the next ensuing
session of Parliamen t but war so laid only in 1958, were
rendered null and void by such failure to comply with the
mandatory provision of the Act.
The learned Judge U Myint Thein C. J observed that: -
Parliament is jealous of its powers of making laws but
since a statute of the nature of Income-Tax Act cannot be
comprehensive so as to contain detailed provisions as to its
application, it is usual to delegate to a subordinate
authority the power to frame rules and regulations to carry
out the purposes of the Act
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This is permitted by the proviso to S. 90 of the
Constitution which is four parts, these being:
The Act may authorize any person or authority to frame
rules and regulations consonant with the Act, and which
would have the force of law.
Such rules and regulations framed by the competent
authority must be laid before each Chamber of Parliament
at it is next ensuing session.
(3) Within three months of their being so laid a motion
carried in both Chambers can annul them.
Such annulment does not affect the validity of any action
previously taken under the rules or regulations.

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The purpose of laying them before Parliament is to enable
annulment, if such a course of action is desired.
Even if they were annulled, action taken on the authority
of the rules, prior to annulment, would remain valid.
It follows therefore that if no annulment takes place, the
rules would continue to have the force of law.

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 Substantive Ultra Vires  

The doctrine of ultra vires depends for the extent of its

application on two separate factors.
It depends on the empowering provisions and it depends
on the attitude which the courts adopt.
Delegated legislation may be void if the Parent Act does
not authorize it.
 It follows that the wider the authorization given by the
Parent Act, the less the possibility of invalidity on this
ground.

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Sometimes the power to legislate is very widely phrased
especially in wartime or times of economic crisis.
 For example – The Emergency Powers (Defense) Act
1939, which was enacted during the wartime, gave the
authority so wide that it was difficult to see how any
Defense Regulation could have beyond it's scope.
In such cases, the doctrine of ultra vires scarcely operates
at all.

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 In Myanmar, dealing with substantive ultra vires can be
exemplified by the case of U Khin and seven other s V.
The Deputy Commissioner, Myaung mya and two others.
The point for decision was whether in view of the fact
that the Burma Agriculturists Debt Relief Act nowhere
provides that any officer can perform the duties of the
Debt Settlement Board, Rules 3 and 4 made under
Section 31 of the Act authorizing the Deputy
Commissioner and Subdivisional Officers to perform the
duties of the Board till the Debt Settlement Board is
established are ultra vires
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 It was held that S 31 of the Burma Agriculturists Debt
Relief Act gives the President power to make rules to car
-ry out all or any of the purposes of the Act and not
inconsistent there with.
The Burma Agriculturists Debt Relief Act was passed
with the object of giving immediate relief to the
agriculturists' debtors.
The object of the Act may be partially defeated if there is
delay in the constitution of the Board or reconstitution in
case the Board is dissolved.

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 Therefore in order to give effect to the main purpose of
the Act the Rules 3 and 4 were made authorizing the
Deputy Commissioner and the Subdivisional Officers to
perform the functions of the Board till the Deht
Settlement Board is constituted, and they are not
inconsistent with any of the provisions of the Act and in
view of the wide terms of S.31 those rules are not ultra
vires.
It was also held that Rules which have been made under
Act for the purpose of achieving the objects of the Act
will be intra vires so long as they are not inconsistent
with any of the provisions of theAct.
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In conclusion we have now seen various forms of control
which exist over delegated legislation.
It is generally agreed that while modern government
demands the use of delegated legislation certain controls
are at the same time necessary.
In deciding whether or not they are adequate in any
particular case all the various methods must be
considered.
Since then there has been increasing reliance on
delegated legislation, but at the same time new techniques
of control and scrutiny have been evolve.
It is still very much alive issue, and further development
can be expected.

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Thank you

Group - 5