STATUTORY

INTERPRETATION
LECTURE 8
INTRODUCTION
• Countries which have inherited the common law system have seen a
major shift from judge-made laws emanating from the courts to
statutory laws being enacted by the bulk in the legislative chambers.
Malaysia is one of those countries.
• The function of Parliament is to enact laws, and the judiciary have to
interpret the law as it stands, and not as it fancies it to be.
• In doing so, the judiciary must be mindful not to usurp the legislative
function of the legislative branch. It follows from this that there are
‘rules’ of statutory interpretation.
The need for Statutory Interpretation
• F.A.R. Bennion (Statute Law, 1990), has identified a number of factors
that may cause doubt:
1. The draftsman may refrain from using certain words that he or she regards as
necessarily implied. The problem here is that the users may not realise that this
is the case.
2. The draftsman may use a broad term (“a word or phrase of wide meaning”)
and leave it to the user to judge what situations fall within it.
3. Ambiguous words may be used.
4. There may be unforeseeable developments.
5. There are many ways in which the wording may be inadequate. There may be
a printing error, a drafting error or another error.
• Peter Goodrich, another academician - explained that these rules
came about when judges, in delivering their judgements, sought to
justify their own conclusions and provide for models of behaviour as
to how judges should approach the task of interpretation as
opportunities arose.
• He also added that not only do these judgements provide
precedence, but its content and taxonomy provide a good reflection
of balance of power between the judiciary and legislature at a
particular point of time.
• It is notable that the general methods of statutory interpretation are
not themselves regulated by Parliament, but have been developed by
the judges.
• The Interpretation Act 1948 & 1967 which from its title might seem
to fulfil such a function, has the comparatively unambitious aim of
providing certain standard definitions of common provisions, and
thereby enables statutes to be drafted more briefly than otherwise
would be the case.
• Modern statutes commonly include “definition sections” in which the
meaning of words and phrases found in the statute are explained,
either comprehensively (X “means” ABC) or partially (X “includes”
ABC).
• However, unlike the rules of statutory interpretation,
these guidelines ( with respect to the interpretation in
other statutes) are binding on the courts, ensuring
some degree of consistency across the vast literature
of statutory enactments.
THE RULES
• The three common law rules are: the ‘mischief rule’; the ‘literal rule”;
and the ‘golden rule’.
• The common thread shared by the rules is that they all set out to
ascertain the ‘intention of the legislature’. Francis Bennion described
this as the paramount criterion of statutory construction.
• The Malaysian judges have subsequently adopted these rules in
reaching and in justifying their decisions.
THE MISCHIEF RULE
• The mischief rule is contained in Heydon’s Case (1584) 3 Co Rep 7,
where it was stated that for the true interpretation of all statutes four
things are to be considered:
• 1st - What was the common law before the making of the Act.
• 2nd - What was the mischief and defect for which the common law did not
provide.
• 3rd - What remedy Parliament resolved and appointed to cure the disease.
• 4th- The true reason of the remedy; and then the function of the judge is to
make such construction as shall suppress the mischief and advance the
remedy.
• The mischief rule was the product of a time when statutes were a
minor source of law by comparison with the common law, when
drafting was by no means as exact a process as it is today and before
the supremacy of Parliament was established.
• The mischief could often be discerned from the lengthy preamble
normally included.
• The rule is obsolete.
• Today, it is very rare that reference be made to any ‘common law
mischief’ when Parliament proposes new legislation. This is because
the Federal Court can choose to depart from the common law as and
when it considers appropriate and the main bulk of legislation is
usually concentrated on advancing policies than remedying
deficiencies in current law.
• This is more so in the absence of a Law Reform Commission in
Malaysia.
• It has also been argued that the mischief rule assumes that legislation
is “only designed to deal with evil and not to further a positive social
purpose”
• Additionally, there are other avenues besides than the common law
to discover what wrong Parliament had intended to right. Although
very rarely used nowadays, much of the “mischief” can be discerned
in the preamble of an Act.
• A preamble is an introductory and expressionary statement in a
document that explains the document's purpose and underlying
philosophy. When applied to the opening paragraphs of a statute, it
may recite historical facts pertinent to the subject of the statute
• Furthermore, s.15 of the Interpretation Acts 1948 and 1967 now
provides that the preamble shall be construed and have effect as if it
were a part of the Act.
• In addition to the usage of preambles, Gopal Sri Ram JCA stated that
the courts have in recent years extended the rule beyond the
common law position at the time of the passing of an Act to include
“the whole state of the law at the time an Act was passed to see the
mischief it sought to cure.”
• Consequently, the mischief rule has been extended and is nowadays
known as a purposive construction.
THE LITERAL RULE
• The eighteenth and nineteenth centuries saw a trend towards a more
literal approach.
• Courts took an increasingly strict view of the words of a statute: if the
case before them was not precisely covered they were not prepared
to countenance any alteration of the statutory language. One of the
leading statements of the literal rule was made by Tindal CJ in
the Sussex Peerage Case (1844) :-
“… the only rule for the construction of Acts of Parliament is, that they should
be construed according to the intent of the Parliament which passed the Act. If
the words of the statute are in themselves precise and unambiguous, then no
more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such case, best declare the
intention of the lawgiver.”
• The justification for this rule according to Coté is that the judge, who
is not cloaked with democratic legitimacy, must confine himself to
being, in the words of Montesquieu, “the mouthpiece for the words
of the law”.
• The literal approach was adopted in the case of Wong Pot Heng. The
provision in dispute, reg.13 of the Emergency Essential (Protection of
Depositors) Regulations 1986, provides: ”All proper costs, charges and
expenses, including remuneration, of receivers and other persons
appointed under these Regulations shall be payable out of the assets
of the deposit taker in priority to all other claims.”
• The question that arose was whether, in the face of an unambiguous
provision, the courts could extend the intention of the legislature as
expressed in that regulation so as to give priority to the depositors
immediately after the receivers. Mohamed Azmi SCJ who delivered
the judgment of the court said:
• “...the legislature has made its intention very clear in reg.13 of the
Emergency Regulations. There can be no doubt that the legislature
intends to give priority only to the receivers and certain other persons
and to no one else. In the absence of uncertainty in the terms
employed, the legislative will must prevail, and as such we hold that
the learned judge erred in law in giving priority of payments to the
depositors in preference to the appellants.”
• The literal rule was favoured by the Law Commission on a variety of
grounds:
• * It encouraged precision in drafting.
• * Should any alternative approach be adopted, an alteration of the
statutory language could be seen as a usurpation by non-elected
judges of the legislative function of Parliament, and other statute
users would have the difficult task of predicting how doubtful
provisions might be rewritten” by the judges.
• On the other hand the literal rule was criticised by the Law
Commission (1969) on the ground that:
• * Judges have tended excessively to emphasise the literal meaning of
statutory provisions without giving due weight to their meaning in
wider contexts.
• * To place undue emphasis on the literal meaning of the words is to
assume an unattainable perfection in draftsmanship.
* It ignores the limitations of language.
• Unfortunately, this rule cannot be applied where the words of an Act
are not clear, precise or unambiguous.
• Since no parliamentary draftsman can be taken to have been able to
foresee every eventuality in which the Act might be called into
question, legislation is usually drafted in a broad manner, making
clear only of the legislative intent.
• Secondly, the courts must not be impervious towards a literal
construction that produces an absurd result, bearing in mind that it is
highly unlikely that such a result was intended by Parliament in the
first place.
• As the law developed, a modified version of the literal rule was
subsequently recognised as the golden rule.
The Golden Rule
• The ‘golden rule’ is a relaxation of the ‘literal rule’. It allows some
degree of freedom where the application of the literal rule “would
lead to absurdity, or repugnance, or inconsistency with the rest of the
instrument...”, but only to the extent that it “avoid(s) that absurdity
and inconsistency...”
• One obvious example of the golden rule in operation to avoid
absurdity is the case of Leaw Mei Lee v Attorney General & Ors
[1967] , which centred on the interpretation of s.5(3) of the
Advocates and Solicitors Ordinance 1947.
• The issue which arose was whether the University of Malaya post-
final course must precede the requirement of local chambering,
having regard to the word ‘previously’ in paragraph (a), where the
appellant had attended the course and chambered concurrently.
• The Federal Court avoided the absurd and unjust result that would
have ensued from a rigid construction of the words ‘previously’ and
held that the appellant could qualify for admission to the bar as an
advocate and solicitor.
• In Kesultanan Pahang v Sathask Realty Sdn Bhd [1998] , the
Federal Court explicitly referred to the golden rule in holding
that the definition of ‘persons’ in s.2 of the General Clauses
Enactment 1897 should not be looked at in isolation and
without regard to the context of the Enactment as a whole.
• A meaning that would be repugnant to or inconsistent with
other provisions of the Enactment could not be applied.
• The Law Commission (1969) noted that:
• * The rule provided no clear means to test the existence of the
characteristics of absurdity, inconsistency or inconvenience, or to
measure their quality or extent.
•
* As it seemed that “absurdity” was in practice judged by
reference to whether a particular interpretation was irreconcilable
with the general policy of the legislature “the golden rule turns out
to be a less explicit form of the mischief rule”.
• The rules of statutory interpretation were analysed by Professor John
Willis in his influential article “Statutory Interpretation in a Nutshell”
(1938). He suggested that:
• ‘a court invokes whichever of the rules produces a result that satisfies its
sense of justice in the case before it. Although the literal rule is the one most
frequently referred to in express terms, the courts treat all three as valid and
refer to them as occasion demands, but, naturally enough, do not assign any
reason for choosing one rather than another.’
• Thus, on some occasions the literal rule would be preferred to the
mischief rule: on others the reverse would be the case. It was
impossible to predict with certainty which approach would be
adopted in a particular case.
PURPOSIVE APPROACH
• A technique which is reminiscent of the rule in Heydon’s case is
known as the ‘purposive approach’.
• The technique developed in Britain as a result of both the increased
role of the legislative branch and the Civil Law influence the European
Community had on the English courts.
• It embodies the general ethos of its precursor such that it emphasises
the importance of reading a provision in the light of the purpose for
which it had been made.
• Yet it differs in the sense that “it does not locate the approach purely
in the context of common law, nor does it confine objectives to their
historical origin...”
• In Malaysia, this approach has received statutory recognition via
s.17A of the Interpretation Acts 1948 and 1967 which directs the
courts to use “a construction that would promote the purpose or
object underlying the Act (whether that purpose or object is expressly
stated in the Act of not)...”
•
• It is stated that the purposive approach “stresses the role of the judge
as an active participant in the process of creating legal meaning and
the need for the judge to resort to the whole range of resources
within the legal culture which may lead variously to references to
social policy, economics, and other broad-ranging administrative and
political considerations of the consequences of the rules to be
applied.”
• However, a purposive interpretation may only be adopted if
judges “can find in the statute read as a whole or in material
to which they are permitted by law to refer as aids to
interpretation an expression of Parliament’s purpose or
policy” (per Lord Scarman in R v Barnet LBC [1983] 2 AC 309).
RULES OF LANGUAGE
• 1. EJUSDEM GENERIS
• General words following particular ones normally apply only to such
persons or things as are ejusdem generis (of the same genus or class) as
the particular ones.
• Denoting a principle for interpreting legal texts that assumes that, if there
is a general term accompanying a list of specific terms, then the general
term is restricted to things of the same character as the specific terms.
• For example, if a law refers to automobiles, trucks, tractors, motorcycles,
and other motor-powered vehicles, a court might use ejusdem generis to
hold that such vehicles would not include airplanes, because the list
included only land-based transportation
• 2. NOSCITUR A SOCIIS
• This tag refers to the fact that words “derive colour from those which
surround them” (per Stamp J. in Bourne v Norwich
Crematorium [1967])
• Literal Meaning. The meaning of a word may be known from
accompanying words.
• For example :- A law required that explosives must be held within a
“case or canister.” The matter before the court involved a defendant
who used a bag made of cloth. By reading words that appear around
the statute and from a discussion of the matter by legislature, it
became clear that the intent of legislature was that the container for
carrying should be at least as strong the canister. See Foster v Diphwys
Casson (1887) 
INTERNAL AIDS TO INTERPRETATION
• 1. LONG TITLE
• It became established in the nineteenth century that the long title could be
considered as an aid to interpretation. The long title should be read as part of the
context, “as the plainest of all the guides to the general objectives of a statute”.
• 2. PREAMBLE
• When there is a preamble it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is therefore clearly permissible to
have recourse to it as an aid to construing the enacting provisions.
• 3. SHORT TITLE
• There is some question whether the short title should be used to resolve doubt.
• 4. HEADINGS, SIDE-NOTES AND PUNCTUATION
• Headings, side-notes and punctuation may be considered as part of the context.
EXTERNAL AIDS TO INTERPRETATION

• 1. DICTIONARIES AND OTHER LITERARY SOURCES

• Dictionaries are commonly consulted as a guide to the meaning of statutory
words. Textbooks may also be consulted
• 2. OFFICIAL REPORTS
• Legislation may be preceded by a report of a Royal Commission, the Law
Commissions or some other official advisory committee. This kind of material
may be considered as evidence of the pre-existing state of the law and the
“mischief” with which the legislation was intended to deal. However, it has
been held that the recommendations contained therein may not be regarded
as evidence of Parliamentary intention as Parliament may not have accepted
the recommendations and acted upon them