LXEB 1101: Legal Methods Zalina Abdul Halim Statutory Interpretation Interpretation When Parliament passes a law, the words of the Act are the authoritative words. It is a problem of commun communica icatio tion, n, of unders understan tandin ding g meanin meaning. g. These These words words have have passed passed throu through gh the legal legal machinery of law-making. Individual Members of Parliament cannot be put into the witness box to supplement or interpret what has been formally enacted. In legal documents, the terms of the agreement that binds the parties are embodied within the words of the document of of which, in ensuing disputes disputes may give rise to interpretive problems. problems. To resolve the dispute, the words in the document have to be interpreted. Why legal documents give rise to difficulties 1. The words of the Act carry a disembodied or dehumanized meaning: they may not necessarily carry the meaning of any actual person, but the meaning that is conventionally attached to those words. Its meaning must not be expanded too much although the legislation has a broad purpose expressed in the words. Legal documents documents are generally generally complex and not usually clearly understood understood by the laymen laymen whether they be statutes, contracts, leases, mortgages, wills, bills of exchange. Zander says: Their subject matter is difficult. They use a mixture of ordinary language and technical jargon. They are apt to be long winded. They are frequently the result of drafting by several hands or at least of consultation with a variety of people. The final draft may reflect a compromise between different points of view. Each of these factors militates against simplicity and clarity of expression .1
2. A legal document speaks not only to the present but is usually intended to cope with the future. However the draftsman’s capacity to anticipate the future is limited. 2 Many of the necessary inclusions in the statute have to be left to common sense, not everything can be defined in the document or statute. Accordingly: The draftsman must perforce select what he thinks are the most important matters to be set down. Moreover, there are some things that he cannot foresee simply because later developments are not within the knowledge of anyone at the time. The draftsman who uses the word ‘vehicle’ in the days of horse-drawn carriages cannot be blamed for any uncertainty as to whether the word applies to motorcars or aeroplanes. 3
3. Legal documents reflect attempted solutions affecting different and conflicting interests. These may be wills, contracts, leases while statutes deal with ways of handling particular range of problems between different affected groups. 1
Zander, The Lawmaking Process, London: Butterworths, (5th ed. 1999), 107. Ibid. 3 Ibid, 108. 2
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The problem rises in understanding legal documents and statutes when people look at a text from different points of view and find different meanings in the language used .4 If a law is properly enacted, the usual approach is to interpret the words of the statute as the law of the parliament. Judges are duty bound to give effect to the meaning of the statute without considering policy matters. Their role is two fold: 1. to ascertain the meaning of statutory provisions in the application to a particular circumstance; 2. to accommodate the particular statute to the existing body of law, that is common law and statute law. The resulting meaning of the provision so determined becomes a precedent. *** There are several statutes providing for statutory interpretation in Malaysia. 1. Interpretation Acts 1948 and 1967(Act 388) (Consolidated and Revised 1989) came into force on 19 October 1989. This consolidates 3 superseded statutes: The Interpretation and General Clauses Ordinance 1948 (MU Ordinance No. 7 of 1948) • which applies to all laws in Peninsular Malaysia in force before 18 May 1967, including any such laws which had been extended to Sabah and Sarawak; The Interpretation Act 1967 (act No. 23 of 1967) which applies to all Acts of Parliament • passed on or after 18 May 1967, subsidiary legislation made thereunder and revised versions by any federal law, whether that law was made before or after 18 May 1967, provided the revised versions were prepared and published under the Revision of Laws Act 1968 (Act 1); and The Interpretation (States of West Malaysia) Act 1967 (Act No. 57 of 1967) which was • enacted under Article 76(1)(b) of the Federal Constitution to promote uniformity of the laws and which applied only to those states which had adopted uniform laws. 2.
Interpretation and General Clauses Enactment of Sabah (No. 34 of 1963), applicable to all Sabah enactments in force at its commencement and to all subsequent enactments.
3.
Interpretation Ordinance of Sarawak 1953 (Cap. 1), applicable to all ordinances in force at its commencement and all subsequent ordinances, unless otherwise indicated.
(1) Statutory rules
(a) Definition of terms Statutes on statutory interpretation in Malaysia define common terms and phrases and gives general directions. A phrase such as masculine gender includes the feminine; singular included plural, and vice versa; ‘person’ includes corporation. Usually the definition section defining the terms used in the statute is provided in section 2 of the Act. The Interpretation Act 1948 and 1967 will always be referred to when drafting a statute which defines certain terms. For example section 66. Section 17A of the Interpretation Acts 1948 and 1967 directs that in the interpretation of a statutory provision, a construction that would promote the purpose (whether expressly stated or not) underlying the statute shall be preferred to a construction that would not. (b) Commencement: An Act or subsidiary legislation comes into force: i. on the date provided by the Act or the subsidiary legislation – s.19 4
Ibid, 108.
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ii. the date of commencement is immediately following the date of publication if no date is given – s.19 (c) Amendments: can be drafted independently or by reference Question 1: Explain the principle or rule regarding method of amendment in this case. See: Sia Kwong Sang v Inspector General of Police [1991] 1 MLJ 502
For subsidiary legislation, section 20 of the Interpretation Act 1948 and 1967 allows the amending section to operate retrospectively so long as it did not exceed the commencement date of the Act. Question 2: Explain the rule regarding power to legislate subsidiary legislation in this case. Kerajaan Malaysia v Wong Pot Heng [1997] 1 MLJ 437
(d) Repeal: Repeal is defined to include rescind, revoke, cancel and replace (s.3 of the Interpretation Act 1948 and 1967) - See sections 73 – 77.
(2) Common law rules + (3) language rules and (4) internal and external aids to interpretation
The Malaysian courts have adopted and modified English common law principles of interpreting statutes in interpreting local legislation. These are: i. rules of statutory interpretation These are ‘rules’ or canons of statutory interpretation taken as approaches or guidelines for judges. They are not strictly binding and judges are not obliged to follow them. There is no order of priority which rule to apply in interpreting statutes. This depends of the individual judge’s belief regarding the judicial function. a. Literal rule This rule approaches statutory interpretation literally where the court has to construe their literal meaning regardless of whether the result is sensible or not. This has been the dominant rule. Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 at 290 stated: If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity. This is because if the legislation is drafted at length and in detail, this shows that the legislature has expressed its intention fully in the words used and there is no need to imply any additional meaning. The words in the statute must be given their literal or grammatical meaning.
Question 3: Explain how the literal rule was applied to interpret the statutory meaning in these cases. Wong Pot Heng v Zainal Abidin Putih [1990] 2 MLJ 410
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Government of Malaysia v Selangor Dredging [1971] 2 MLJ 7 Munby v Furlong [1977] 2 All ER 953 H Rubber Estate v DG of Inland Revenue [1979] 1 MLJ 115 Foo Loke Ying v Television Broadcast Limited [1985] 2 MLJ 35 The Court will depart from using the literal rule if: (a) Thompson v Goold [1910] AC 409; Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 (b) In re Sigworth Bedford v Bedford [1934] CH 89; R v National Insurance Commissioner (Ex parte Connor) [1981] 1 All ER 769; ex parte Puttick [1981] 1 All ER 776
b. Golden rule The golden rule is based on the literal rule. Parke B. explained the golden rule in these terms: …in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. 5 Therefore the court is supposed to follow the literal approach unless the literal meaning produces absurdity (also inconvenience and inconsistency) and therefore some other meaning should be found. The problem with this rule is that there are usually two fairly plausible arguments to support one meaning over the other. There is no way of predicting what will strike a court as an absurdity sufficiently clear to justify this exceptional response. 6 A critique regarding the golden rule was made by John Willis in his article, he said: What is an ‘absurdity’? When is the result of a particular interpretation so ‘absurd’ that a court will feel justified in departing from a ‘plain meaning’? There is the difficulty. ‘Absurdity’ is a concept no less vague and indefinite than ‘plain meaning’; you cannot reconcile the cases upon it. It is infinitely more a matter of personal opinion and infinitely more susceptible to the influence of personal prejudice. The result is that in ultimate analysis the ‘golden rule’ does allow a court to make quite openly exceptions which are based not on the social policy behind the Act, not even the total effect of the words used by the legislature, but purely on the social and political views of the men who happen to be sitting on the case… What use do the courts make of the ‘golden rule’ today? Again the answer is the same- they use it as a device to achieve a desired result, in this case as a very last resort and only after all less blatant methods have failed. In those rare cases where the words in question are (a) narrow and precise, and (b) too ‘plain’ to be 5 6
Grey v Pearson (1857) 6 HL Cas. 61, 106. Zander (1999) 128.
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judicially held not plain, and yet to hold them applicable would shock the court’s sense of justice, the court will, if it wishes to depart from their plain meaning, declare that to apply them literally to the facts of this case would result in an ‘absurdity’ of which the legislature could be held guilty, and, invoking the ‘golden rule’ will work out an implied exception. 7 Question 4: Explain how the golden rule was applied to interpret the statutory meaning in these cases. Adler v George [1964] 2 QB 7 Re Advocate (1964) 30 MLJ 1 Leaw Mei Lee v Attorney General [1967] 2 MLJ 62
c. Mischief rule The Heydon’s case8 laid out the mischief approach in interpreting statutes where the court has to consider: What was the common law before the Act; • What was the mischief and defect for which the common law did not provide a remedy; • What remedy had Parliament decided upon to cure the mischief; and • What was the true reason for the remedy? • The court has the duty of construing the legislation so as to suppress the mischief and advance the remedy. Question 5: Explain how the mischief rule was applied to interpret the statutory meaning in these cases. Corkery v Carpenter [1951] 1 KB 102 Smith v Hughes [1960] 1 WLR 830 Lim Moh Joo v PP [1970] 2 MLJ 113 Hong Leong Equipment v Liew Fook Chuan [1996] 1 MLJ 481
d. Purposive approach This approach requires the judges to seek and promote the purpose underlying the legislation, or the spirit of the law. 9 English judges have been influenced by the civil law systems in Europe. England is a member of the European Community and its judges have had to adopt the purposive approach in interpreting the European Community legislation. The purposive approach accommodates the drafting style of legislation in the civil law system. e. Unified or contextual approach The rules of interpretation have become indistinct as judges construe and read the ‘words of the Act in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intent of Parliament’. 10
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John Willis, ‘Statutory Interpretation in a Nutshell’, 16 Canadian Bar Review, 1938, 13-14.
8
(1584) 76 ER 637; (1584) 3 Co Rep 7.
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Lord Denning, The Closing Chapter , London: Butterworths, 1983, 97. 10 Driedger, E.A., The Construction of Statutes, Toronto: Butterworths, 174, 1191.
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Question 6: Explain how the purposive approach was applied to interpret the statutory meaning in these cases. R v Pigg [1983] 1 ALL ER 56 United Golden Cemeteries Penang v The Board of Majlis Perbandaran Pulau Pinang [1979] 2 MLJ 121 Lim Phin Kian v Khoo Su Ming [1996] 1 MLJ 1 Question 7: Explain how the unified contextual approach was applied to interpret the statutory meaning in these cases. Foo Loke Ying v Television Broadcasts Ltd [1985] 2 MLJ 35 Vengadasalam v Khor Soon Weng [1985] 2 MLJ 449
(3) Language Rules The statute must be read as a whole. The word or phrase has to be read in the context of the rest of the section, and each section must be read subject to every other section which may explain or modify it. This is illustrated by language rules or ‘maxims of interpretation’.
(c) Ejusdem generis General words which follow particular and specific words all of one genus are presumed to be restricted to the same genus as the particular words. Question 8: Explain how the language rule was applied to interpret the statutory meaning in these cases. PP v Wilson [1988] 1 MLJ 243 Nadimuthu v PP [1974] 1 MLJ 20 Hashim v PP [1967] 1 MLJ 257 Azizah Zainal Abidin v Dato’ Bandar KL [1999] 5 MLJ 405
(d) Expressio unius est exclusio alterius express mention of one or more things or persons of a particular class implies the exclusion of all others of that class. Question 9: Explain how the language rule was applied to interpret the statutory meaning in these cases. Lee Ngak Piew v PP [1999] 4 MLJ 79 PP v Guan Seng Trading Sdn Bhd [1997] 4 MLJ 20 Muthuraku v KL Municipality Workers Trade Union [1972] 1 MLJ 165
(c) Noscitura a sociis A word derives its meaning from its context. Wan Arfah in her book highlights one example of how this maxim is applied in the case of Sykt Perniagaan United Aces v Majlis Perbandaran Petaling Jaya11 . The case held that the term ‘parking space’ must be associated with the words which accompanied it, i.e. ‘open space’, ‘garden’, ‘recreation’, and ‘pleasure ground’. These words refer to places for pleasure and recreation unlike a thoroughfare. Therefore the term ‘parking space’ is not analogous to ‘street’. 11
[1997] 1 MLJ 394, 401-2.
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Question 10: Explain how the language rule was applied to interpret the statutory meaning in these cases. Merdeka University Bhd v Government of Malaysia [1982] 2 MLJ 243 Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513
(d) Presumptions The administration of justice entails particular important principles and values. The courts protect these values by applying certain presumptions in interpreting statutes. Such presumptions commonly used are: Presumption against retrospective operation o Presumption against changes in the common law o o Presumption against the imposition of liability without fault or mens rea Penal statutes should be construed strictly and in favour of the liberty of the subject. o (4) Internal and external aids Internal aids are parts of the statute itself which may be used as aids in interpretation. Short title – the short title is part of the legislation and can be used as an aid in interpretation. Section 72 of the Interpretation Acts referred to the Act by its short title. The short title is part of the Act, see PP v Executive Secretary [1958] 24 MLJ 151 Long title – the long title is found at the beginning. Section 15 of the Interpretation Acts provides that the long title is part of the Act, see Noor Jahan v Md Yusoff [1994] 1 MLJ 156 Preamble – the preamble immediately follows the long title. They function to set out the purpose of the legislation. The traditional view is that although the long title and the preamble are each a part of the Act, but they are not an operative part. They may be looked at to resolve doubt or ambiguity only when the provision being interpreted is capable of two or more meanings. If the provision is unambiguous, the provision must be given its clear meaning and such meaning is not to be modified by the long title or the preamble. It is part of the Act, see Tan Boon Liat [1976] 2 MLJ 83 Schedule – a schedule is an extension of the section which introduces it. Items are inserted in the schedule because it is too lengthy or detailed to be accommodated in a section. Sometimes the item is a separate document for instance a treaty. The schedule is a part of the Act but if there is a conflict between the body of the Act and the schedule, it will give way. Under section 15 of the Interpretation Acts 1948 and 1967, as amended by the Interpretation (Amendment) Act 1997 (Act A996) the long title, preamble and schedule are part of the Act although the clear words of a substantive will prevail and given effect in the event of a conflict. The section provides: The long title, preamble and every schedule (together with any note or table annexed to the schedules) to any Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation.
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Marginal notes – They are part and parcel of the statute and may be used as an aid to interpretation. See Re Tan Keng Tin [1932] MLJ 134. Punctuation – Punctuation and capital letters are material to the meaning of statutory terms. They are part of the Act, see Dato Mohamad Hashim Shamsudin v AG, Hong Kong [1986] 2 MLJ 112. Illustrations – These are examples to illustrate the working of its provisions. The Privy Council in an appeal from the Straits Settlements in Mohamed Syedol Ariffin v Yeoh Ooi Gark 12 , stated that it is the duty of a court to accept illustrations appended to sections as relevant in the interpretation of the text. It would require a very special case and justification to reject the illustrations on the basis of their inconsistency to the sections themselves. Additionally in Hassan bin Isahak v Public Prosecutor 13, Pretheroe Ag. C.J. of the Court of Appeal stated that the illustration does not qualify the plain and unambiguous meaning of the section but merely explains it. Proviso – the proviso is not to be treated as inferior to the rest of the section and must be given their full effect, see Ketua Pengarah Hasil Dalam Negeri v Malaysia Cooperative Society Ltd [2000] 1 MLJ 561 (5) External aids External aids are materials outside the statute. These may be dictionaries, interpretation statutes, previous and subsequent statutes on the same subject matter, judicial decisions interpreting statutes in pari material . Other external aids such as pre-parliamentary materials like Reports of Commissions and Committees, Hansard 14 may be referred to, to assist the court although the judges are more cautious to adopt their use freely. These external aids are useful for the courts to investigate the mischief which the legislation is intended to remedy. In England the House of Lords in Pepper v Hart 15 allowed reference to the Hansard only if: the legislation is ambiguous or obscure or the literal meaning leads to an absurdity; o the material relied on consists of one or more statements made by a Minister or other o promoter of the Bill which led to the enactment of the legislation, together, if necessary, with any other Parliamentary material necessary to understand such statements; and the statements relied upon are clear. o The case of Chor Phaik Har v Farlim PropertiesI 16 adopted this decision in the Pepper case.
List of Cases Adler v George [1964] 2 QB 7 Azizah bte Zainal Abidin & Ors v Dato’ Bandar Kuala Lumpur [1999] 5 MLJ 405 HCT Corkery v Carpenter [1951] 1 KB 102 Fisher v Bell [1961] 1 QB 394 Foo Loke Ying v Television Broadcasts Ltd & Ors [1985] 2 MLJ 35 SCT Hashim v PP [1967] 1 MLJ 257 12
[1916] 1 MC 163. (1948-9) MLJ Supp 179, 180. 14 Hansard is the verbatim report o f parliamentary proceedings. 13
15 16
[1993] 1 All ER 42. [1994] 3 MLJ 345.
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Heydon’s case (1584) 76 ER 637 Hong Leong Equipment v Liew Fook Choon [1996] 1 MLJ 481 IRC v Gittus [1920] 1 KB 563 Kerajaan Malaysia v Wong Pot Heng [1997] 1 MLJ 437 Leaw Mei Lee v Attorney General [1967] 2 MLJ 62 Lee Ngak Piew v PP [1999] 4 MLJ 79 Lim Moh Joo v PP [1970] 2 MLJ 113 Munby v Furlong [1977] 2 All ER 953 Muthuraku v Kuala Lumpur [1972] 1 MLJ 165 PP v Guan Shen Trading Sdn Bhd [1997] 4 MLJ 20 PP v Michael Anayo akabogu [1995] 3 MLJ 42 R v National Insurance Commissioner [1981] 1 All ER 769 R v Pigg [1983] 1 All ER 56 PP v Wilson [1988]1 MLJ 243 Syed Mubarak Syed Ahmad v Majlis Peguam [2000] 3 CLJ 659 Merdeka University Bhd v Government of Malaysia [982] 2 MLJ 243 Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] 2 MLJ 513 Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] 2 MLJ 289 United Hokkien Cemeteries Penang v The Board, Majlis Perbandaran Pulau Pinang [1979] 2 MLJ 121 Sia Kwong Sang v Inspector General of Police [1991] 1 MLJ 502 Su Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 Teh Cheng Poh v PP [1979] 1 MLJ 50 Thompson v Goold [1910] AC 409 Wong Pot Heng v Zainal Abidin Putih [1990] 2 MLJ 410
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