Week 11 & 12

Rules of Statutory Interpretation

What is statutory interpretation?

• Statutory interpretation is a process where the judiciary needs to

interpret the statutes in order to apply the law that has been
legislated by the legislators.
• This is necessary because, when the legislators make the law, it would
normally be general and broad in nature.
• Therefore, in order to apply the law that has been made, the judiciary
needs to interpret them so that it would be able to apply the law as
how the legislators intends the law to be.
How many approaches are there to interpret the statutes?

• There are two approaches in interpreting the statues and they are
literal approach and purposive approach.
• Literal approach is taken when judges would look primarily to the
words of the legislation in order to construe its meaning.
• According to this approach, judges will not look outside, beyond or
behind the legislation in their attempt to find the meaning of the
words.
• On the other hand, purposive approach is taken when judges look
beyond the statute in their attempt to know the reasons why the
law was made.
What is Purposive Approach?

• The purposive approach applies when the Court would look at the
intention of the Parliament when passing the new law.
• The purposive approach is a modern version of the mischief
approach.
• The application of purposive approach can be seen in the case of Mudajaya Corp Bhd v
Leighton Contractors (M) Sdn Bhd [2015] 10 MLJ 745, where the High Court Kuala Lumpur
held that legislation must be read as a whole. Any specific provision must be read with or
against the rest of the Act or in the case of any orders issued, such orders must be read
against the substantive or parent Act. In so doing, the court must strive to give a
harmonious reading to the law enacted by Parliament, and that would include any orders
made by the relevant Minister under that relevant law. Generally, legislation must be
construed according to its plain meaning and understanding. However, when that plain
meaning is in doubt, a purposive approach must be explored. A reading which would
advance the intent and purpose for which the legislation was enacted in the first place
ought to be adopted; provided of course such an approach does not strain or do violence to
the language used in the legislation. This principle is encapsulated in s 17A of the
Interpretation Acts of 1948 and 1967.
• Joint Management Body of Gurney Park Condominium v Majlis
Perbandaran Pulau Pinang [2013] 10 MLJ 600
• In this case, the court held that the modern approach to the construction
of statutes (spearheaded by Lord Hoffman since two decades ago) is the
purposive approach. In Malaysia this is statutorily fortified, in that s 17A
of the Interpretation Acts 1948 and 1967 provides as follows:
• In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act (whether that purpose
or object is expressly stated in the Act or not) shall be preferred to a
construction that would not promote that purpose or object.
• Lembaga Hasil Dalam Negeri Malaysia v Alam Maritim Sdn Bhd [2014] 2 MLJ 1
• The Federal Court observed that in gist,(intipati) when interpreting provisions in an Act the
intention of Parliament must be construed from the language used and for the court to
interpret it accordingly. The matter may be summarily dealt with if the language is plain and
unambiguous and admits of only one meaning. On the other hand if the words are not so
explicit, then it is incumbent upon the court to undertake an exercise to seek out the
purpose of Parliament, but without sacrificing justice or importing the absurd. The purposive
approach is not a new concept as way back in Attorney General v Carlton Bank [1899] 2 QB
158 Lord Russel of Killowen CJ shot a salvo when he stated that all Acts ought to be
construed no differently. This is consistent with s 17A of the Interpretations Act 1948 and
1967 which provides that in the interpretation of a provision of an Act, a construction that
would promote the purpose or object underlying the Act (whether that purpose or object is
expressly stated in the Act or not) shall be preferred to a construction that would not
promote that purpose or object.
How many rules are there to interpret the statutes?

• There are two general rules in which a statutory can be interpreted.

They are primary rule and secondary rule.
• Primary rule consists of literal rule, golden rule and mischief rule and
secondary rule consists of Noscitur a sociis, Ejusdem Generis and
Reddendo Singula Singulis.
What is Reddendo Singula Singulis?

• When a list of words has a modifying phrase at the end, the phrase
refers only to the last word, e.g., firemen, policemen, and doctors in a
hospital.
• Here, "in a hospital" only applies to doctors and not to firemen or
policemen.
• The application of this rule can be found in the case of Foo Loke Ying & Anor v
Television Broadcasts Ltd & Ors [1985] 2 MLJ 35, where the Supreme Court held
that video-tape comes within the definition of "cinematograph film" in section 2(1)
of the Cinematograph Films Act, 1969. The definition of "cinematograph film"
makes no reference to cinematography or any other process but concentrates
chiefly on the essential characteristic of a sequence of visual images capable of
being shown as a moving picture The definition does not require that the visual
images should be in a state ready for projecting in order to qualify as a
cinematograph film and it would be enough that they be recorded on any material,
translucent or otherwise, and that it should be possible to translate them into a
moving picture — a conclusion evident even without having recourse to the
reddendo singula singulis canon of construction, that words should be read
distributively. (secara asing)
What is Noscitur a sociis?

• When a word is ambiguous, its meaning may be determined by reference to the rest
of the statute.

• The application of this rule can be found in the case of NV Alliance Sdn Bhd v Ketua
Pengarah Hasil Dalam Negeri [2012] 1 MLJ 441, where the Court of Appeal observed
that according to this rule of interpretation, where two or more words which are
susceptible of analogous meaning are coupled together in a statutory provision, they
are understood to be used in their cognate sense. They take as it were, their colour
from each other, the meaning of the more general being restricted to a sense
analogous to that of the less general. It followed then that the meaning of the more
general words 'or hospitality of any kind' must be restricted to a sense analogous to
that of the less general words, namely, 'food, drink, recreation‘.
Ejusdem Generis

• When a list of two or more specific descriptors are followed by more

general descriptors, the otherwise wide meaning of the general
descriptors must be restricted to the same class, if any, of the specific
words that precede them e.g. vehicles in "cars, motor bikes, motor
powered vehicles" would be interpreted in a limited sense and
therefore cannot be interpreted as including air planes.
• The application of this rule can be found in the case of Pacific &
Orient Insurance Co Sdn Bhd v Kathirvelu [1992] 1 MLJ 249, where
the Supreme Court in this case observed that it is a well-known canon
of construction that where a particular enumeration is followed by
such words as 'or other' the latter expression ought, if not enlarged by
the context, to be limited to matters ejusdem generis with those
specially enumerated. The cannon is attended with no difficulty
except in its application. Whether it applies at all, and if so, what
effect should be given to it, must in every case depend upon the
precise terms, subject matter and context of the clause under
construction.
What is mischief rule?

• Mischief rule in statutory interpretation happens when judges would

consider the intention of the legislators when they made the
statutes.
• According to this rule, the judges will interpret the law based on the
intention of the Parliament.
• The weakness with mischief rule lies on the fact that the legislators
cannot always foresee the problem in the future thus cannot provide
a solution to these problems.
• The application of mischief rule can be found in the case of Kerajaan
Negeri Selangor & Ors v Sagong Bin Tasi & Ors [2005] 6 MLJ 289,
where the Court of Appeal observed the development of mischief rule
to statutory interpretation. The court referred to the English case of R
v Secretary of State for the Environment Transport and the Regions,
ex p Spath Holme Ltd [2001] 2 AC 349 where the court re-affirmed the
availability of non-statutory material to a court interpreting a statute:
• “Use of non-statutory materials as an aid to interpretation is not a
new development. As long ago as 1584 the Barons of the Exchequer
enunciated the so-called mischief rule. In interpreting statutes courts
should take into account, among other matters, 'the mischief and
defect for which the common law did not provide': Heydon's Case
(1584) 3 Co Rep 7a, 7b. Nowadays the courts look at external aids for
more than merely identifying the mischief the statute is intended to
cure. In adopting a purposive approach to the interpretation of
statutory language, courts seek to identify and give effect to the
purpose of the legislation. To the extent that extraneous material
assists in identifying the purpose of the legislation, it is a useful tool.”
• Bruno Phillipe Fehrenbach v Pegawai Penerima, Malaysia (Selaku
Pelikuidasi Han Pacific Sdn Bhd) [1999] 5 MLJ 321
• The High Court of Johor Bahru observed that experience has shown,
and it has greatly enriched us, that no lawmakers can foresee all
things which may happen in the future. Therefore it is only fitting that
if there be any defect in the law, it should be reformed by equity. In
applying the mischief rule, one must adopt a fairly liberal approach to
problems of interpretation so as to prevent evasion of its term.
Statutes are interpreted in accordance with the judicially presumed
parliamentary concern for common sense and justice.
• Public Prosecutor v Sidek bin Abdullah [2006] 3 MLJ 357

• In this case, the High Court of Shah Alam stressed that Section 17A of the
Interpretation Acts 1948 and 1967 provides: In the interpretation of a
provision of an Act, a construction that would promote the purpose or object
underlying the Act (whether that purpose or object is expressly stated in the
Act or not) shall be preferred to a construction that would not promote that
purpose or object. Section 17A is a codification of the common law principle
of statutory interpretation: the mischief rule (also known as the rule in
Heydon's case [1584] 3 Co Rep 7a). As of late, it is common practice where
the courts refer to the Hansard for statutory interpretation.
What is Literal Rule?

• Literal rule in statutory interpretation happens when judges would use

only the ordinary meaning of the word that is used by the legislation.
• According to this rule, judges would take a strict view in interpreting
the statute based on the actual word stated in the statute.
• These words are interpreted based on their literal or ordinary
meaning, even if it may appear unjust or undesirable. In other words,
under the literal rule, judges would look at what the legislation says
rather than what it might mean.
• The weakness of the literal rule is the assumption that there is only
one single, uncontentious, literal meaning of a word.
• The application of literal rule can be found in the case of Fairise Odyssey Sdn Bhd v Tenaga
Nasional Bhd [2015] 8 MLJ 625, where the High Court of Kuala Lumpur observed that it is a
fundamental principle of statutory construction that words in a statute must be given their
plain, ordinary and natural meaning unless Parliament cannot have intended this meaning
because it gives rise to difficulties which are so serious as to make the statutory provision
unworkable or impracticable. If indeed the draftsman had intended to give the word
'approval' a restrictive meaning as contended for by the plaintiff, he could have done so by
express provision. The draftsman could have easily inserted the words 'in writing' to the
provision as in the case of the Indian electrical law. In the absence of express words
requiring the approval to be in writing, the statutory language must be read in its plain and
ordinary context. In the court’s judgment, the words in both provisions permit both express
and implied approval of the state authority. This interpretation accords with an important
principle that in trespass, consent whether, express or implied affords a good defence.
• Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd [2000] 5 MLJ 576
• The High Court of Penang held that the starting point in statutory interpretation is to consider
the ordinary meaning of the word or phrase in question. The meaning of an enactment must
first be penetrated through the medium or vehicle of language; thereafter it is contextualized.
The first canon of construction — the literal rule — is to give the 'ordinary, plain and natural
meaning' of the words contained in a statute. Applying the words and phrases of a statute in
their ordinary meaning has been said to be the first and most elementary rule of construction
and the second is said to be to construe the phrases and sentences according to the rule of
grammar. Once the language of an enactment is clear and unambiguous, and 'it is assumed
that the legislature used them in the popular sense, unless they have acquired a different
technical meaning in legal nomenclature or unless the context or subject matter clearly shows
that they were intended to be used in a different case. Further, where the words are simple
and clear, it is the duty of the court of law to give those words their natural meaning.
• Public Prosecutor v Sukumaran a/l Sundram [1999] 4 MLJ 462
• The High Court of Penang held that in the interpretation of any written law, the first
canon of construction — the literal rule — is to give the 'ordinary, plain and
natural meaning' of the words contained in a statute. Applying the words and
phrases of a statute in their ordinary meaning has been said to be the first and
most elementary rule of construction and the second is said to be to construe the
phrases and sentences according to the rule of grammar. There will only be a
departure from the literal rule where 'the application of the words in their
grammatical and ordinary sense would produce a result which is contrary to the
purpose of the statute or would produce a result repugnant to the other provisions
of the Ordinance and defeat their purpose, including one of the principal purposes
of the Ordinance. (In which circumstance, the literal rule would not be used)
What is Golden Rule?

• Golden rule in statutory interpretation happens when judges would

modify literal approach.
• According to this approach, words in the legislations may be modified
in order to avoid absurdity. (mengarut)
• There are two versions on how judges apply the golden rule, and they
are through giving the word a narrow meaning or wider meaning.
• Narrow meaning is applied when there are two contradictory
meanings of a word. Under this situation, golden rule is applied by
giving preference to the meaning that does not deliver an absurd
result.
• On the other hand, wider meaning is applied when, although there
may be only one possible meaning of a word, the judge would
considers that a literal interpretation of the word will result in
inconsistency, absurdity or inconvenience.
• The application of golden rule can be found in the case of Hariram
A/L Jayaram & Ors v Sentul Raya Sdn Bhd [2003] 1 MLJ 22, where
the High Court of Kuala Lumpur emphasized that under the golden
rule of statutory interpretation, you are to apply statutory words and
phrases according to their natural and ordinary meaning without
addition or subtraction, unless that meaning produces injustice,
absurdity, anomaly or contradiction, in which case you may modify
the natural and ordinary meaning so as to obviate such injustice etc.
but no further.
• Hooman Khanloo v PP [2015] 6 CLJ 1005

• The Court of Appeal observed that the golden rule of statutory

interpretation is that ordinary words must be given their ordinary
meanings and technical words their technical meanings, unless
absurdity would result.
• Tetuan Kumar Jaspal Quah & Aishah v Far Legion Sdn Bhd & Ors [2007]
3 MLJ 305
• In this case, the Court of Appeal observed that the words of a statute
must prima facie be given their ordinary meaning. The grammatical
sense of the word is to be adhered (dipatuhi) to. However, if that is
contrary to, or inconsistent with any expressed intention, or declared
purpose of the statute, or if it would involve any absurdity, repugnance,
or inconsistency, the grammatical sense must then be modified,
extended, or abridged so far as to avoid such inconvenience. The court
may interpret the words 'by reading words in' and adopt a construction
that will 'promote the general legislative purpose'.
What assistance are available in assisting the judges to interpret the statutes?

• There are two aids available in assisting the judges to interpret the
statutes. They are intrinsic aids and extrinsic aids.
What is intrinsic aids?

• Intrinsic aids refers to the assistance that the court receives from the statute
itself. (intrict- IN-STATUTE ITSELF)
• Under this situation, Judges will look at all the wordings in the statute in order
for them to understand the meaning of any word contained therein.
• This will include words used in the statutes’ long and short titles, preamble and
schedule.
• However, if there is a conflicting meaning between the title or preamble of the
statute with the meaning contained in the main body or schedules of the
statute, then the meaning contained in the main body or schedule shall prevail.
(if contra dgn tajuk atau preamble, the meaning will be prevailed)
What is Extrinsic aids?

• Extrinsic aids refers to the assistance that the court receives from
sources outside of the statute.
• These sources may include legal or non-legal dictionaries, textbooks
or earlier statutes.
• All these sources are used to assist the judges to identify the meaning
of the words used in the statutes.
What is the disadvantage of statutory interpretation?

• One of the disadvantages of statutory interpretation lies on the fact

that, because the power to interpret is given to the judiciary, the
judiciary will be involve in the process of creating the law.
• This situation is not consistent with the doctrine of separation of
powers where according to this doctrine, where it is the legislator
that create the law and not the judiciary.
• The judiciary is only supposed to apply the law that has been made by
the legislatures (Parliament or State Assemblies Legislative).