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Common law rules

• rules of statutory interpretation
• language rules
• internal and external aids

Rules of statutory interpretation

• no binding force hence no obligation upon judges to follow
• acting as mere guidelines

Mischief rule
• what was the common law before the act?
• what was the mischief and defect for which common law did not provide?
• what remedy had parliament decided upon to cure the mischief?
• what was the true reason for the remedy?
• Basically, when interpreting a statute, role of the court is to determine what mischief or
problem the parliament was trying to resolve and what means the parliament was trying
to use the resolve that problem

Case law: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and Another Appeal [1996]
Concerned with the interpretation of section 30(3) of the industrial relations act 1967.
Section confers upon Minister of Labour and manpower the discretion whether or not to refer
to an industrial dispute to the industrial court
Issue: whether in exercising his discretion, the minister made a decision in a legal sense and
was therefore subject to judicial review.
Held: The act was intended by parliament to elevate the weak and subordinate position of a
Workman at common law to a much stronger position and the parliament wanted to alter
employer Workman relationship which was a consensual one capable of termination by the
employed will to one which gives Workman security of tenure by equating the right to
employment with a proprietary rate that may not be forfeited except for just cause.
Consequently section 20 must be given a broad and liberal interpretation which would advance
rather than thwart the purpose for which parliament enacted the act.
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Liberal rule
• Uses plain ordinary grammatical meaning of words and avoids judicial law making,
• Can lead to absurd decisions and injustices and assumes unattainable perfection in
draftsmanship.
• If legislation is drafted at length and in detail, this would imply that the legislation has
expressed its intention in the words used and there is no need to imply any additional
meaning.
• Lord Ersher: If the words of an act are clear, you must follow them, even though they
lead to manifest absurdity. the court had nothing to do with the question whether the
legislature has committed an absurdity.
Case law: Public Prosecutor v Chin Kim Foo
The copyright in the sound recording of two titles, which were first published in Malaysia on
14 and 18 July 1998 was infringed on 19 July 1998. defendant contended that the copyright
only subsisted from one January 1989 which is the beginning of the calendar year following
the year in which the sound recordings were first published. this was based on section 19 of the
Copyright Act 1987 where it states that “copyright in a sound recording shell subsist until 50
years from the beginning of the calendar year next following the year in which the recording
was first published.”
Held: sessions court accepted the submission as on a literal reading of section 19, there was no
copyright until 1 January 1989. learn judge acknowledge that such an interpretation led to an
absurdity but said the clear words of section 19 did not allow her to reach any other conclusion.

Golden Rule
• This starts from the literal approach but avoids absurdity or inconsistency and the court
can modify or add words. It is limited in scope and there is no definition or measurement
for an absurdity
• The grammatical and ordinary sense of the word is adhered to unless that would lead to
some absurdity or some repugnance or inconsistency with the rest of the instrument in
which case grammatical and ordinary sense of the word maybe modified to avoid such
absurdity.
• Basically, literal rule minus absurdity.
• What is meant by absurdity?
• Example would be if I said, “My grandson can have my lands in England, provided
those lands are in Germany.” That would be absurd.
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Case law: Leaw Mei Lee v Attorney General & Ors [1972] 2 MLJ 62
Concerned the interpretation of Section 5(3) of the Advocates and Solicitors Ordinance 1947.
section was concerned with fixing the period of local chambering which is a prerequisite for
admission into the bar.
Paragraph a determined that. By reference to any period of chambering previously undergone
in England with the post final course conducted either by the English council of legal education
or the university of Malaya.
Issue: Whether the university of Malaya post final course must proceed the local chambering,
having regard to the word previously in paragraph (a). Petitioner attended the course and
chamber Co currently and her petition for admission was objected by the Bar Council, bar
committee and the attorney general which was upheld by the High Court.
Held: Federal court had two alternatives on whether to give a literal interpretation with the
result that chambering after completing the post final course would qualify their petitioner for
admission but chambering currently with the course would not or the alternative interpretation
which would avoid such an absurd and unjust result.

Purposive approach
• Has its origins in the mischief rule and the overall approach requires judges to seek and
promote the purpose underlying the legislation.
• Looks for the intention of Parliament and allows for judicial law making
• Purposive approach has received statutory recognition as parliament had enacted
section 17a of the interpretation acts 1948 and 1967 which directs the court 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 we preferred to UN construction that would not promote that
purpose or object.”
Case law: Syed Mubarak Syed Ahmad v Majlis Peguam Malaysia [2000] 3 CLJ 659.
The appellant was a practicing public accountant and his application to the Bar Council in 1997
for an annual certificate to practice law was rejected on the grounds that he was disqualified
under section 30(1)(c), Legal Profession Act 1976 (Act 166) which states that no advocate and
solicitor shall apply for a practicing certificate if he is gainfully employed by any other persons,
firm or body in a capacity other than as an advocate and solicitor.
Issue: Whether and advocate Angeles later may simultaneously practice another profession.
Held: The appellants application to the High Court for the certificate was refused where the
learned High Court judge held that the words “gainfully employed by any other person, firm
or body” must be construed to include employment by one's own clients meaning a public
accountant is gainfully employed and is disqualified from obtaining a practicing certificate.
Furthermore, the objective of the parliament is to maintain high standards in the profession and
parliament intended that persons who choose to be advocates and solicitors must exclusively
practice as such.
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Unified/Contextual Approach
• The three traditional rules to statutory interpretation seem to be merging.
• This is because judges are becoming increasingly aware of the importance of context
in construing the meaning of statutory provisions.
• Professor Driedger: Today there is only one principle namely, the words of an act are
to be read in the entire context in the grammatical and ordinary sense harmoniously
with the scheme of the act, the object of the act and the intent of the parliament.
• Professor Freeman: there seems now to be just one rule of interpretation which is the
revamped version of the literal rule that requires the general context and purpose to be
taken into consideration before any decision is reached concerning the ordinary
meaning of statutory words.
• Basically, unified approach requires the whole statute to be read in its appropriate
context before determining the ordinary meaning of the words.

Language rules:
Ejudsem Generis
• Where there is a list of words which are followed by general words the general words
can only mean the same kind of thing as what is in the list of words.
• For example: The (made up) Cooked Breakfast Act 1992, This act applies to Bacon,
Sausage, Fried Egg or Similar foods.
• Would Lettuce, Turkey or Toast be relevant within this Act?
• Toast as the list in the provided example was of foods that are traditionally served as
part of an English cooked breakfast and the general words were similar foods. Because
of the fact that neither lettuce or Turkey are traditionally served as part of an English
breakfast, this act only applies to toast.

Expressio Unius Est Exclusio Alterius

• Where there is a list of words but no general words, then the Act applies only to the
words in the list.
• For example: The mentioned Cooked Breakfast Act 1992 now only applies to Bacon,
Sausage or Fried Egg.
• As the term “similar foods” is absent, this act will now exclusively only apply to Bacon,
Sausage or Fried Eggs and nothing more.
Noscitur a Sociis
• When trying to find out the true meaning of a word, it is important to look at other
words in the act.
• For example: The (made up) TV program Act 2015 applies to Supernanny, Keeping up
with the Kardashians and other reality TV shows.
• Because of the words “other reality TV shows”, the act only applies to that kind of
Television program.
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Case law: Sykt Perniagaan United Aces & Ors v Majlis Perbandaran Petaling Jaya [1997]1
MLJ 394
It was held that the term “parking place” must be associated with the words which are
accompanied it ie “open space”, “garden”, “recreation” and “pleasure ground” all of which
refer to places for pleasure and recreation and not a thoroughfare thus “Parking place” it's not
comparable to “street”.

Presumptions
Certain principles are important in upholding justice and the courts protect by presuming them
to apply in interpreting statutes unless otherwise indicated by the legislature by express words
or necessary implication. Few examples are listed below.
• presumption against retrospective operation
• presumption against changes in common law
• presumption against imposition of liability without fault (mens rea)

Internal Aids
Short title
The short title of the Act is only its name and is given solely for the purpose of facility of
reference. It is merely a name given for identification of the Act and not for description and
generally ends with the year of passing of the Act. High Court ruled in Public Prosecutor v
Chief Executive Secretary, MCA (1958) 24 MLJ 151 but the short title is part of the legislation
and can be used as an aid in interpretation.

Long title/ Preamble

A statute is headed by a long title whose purpose is to give a general description about the
object of the act. The Preamble to the Act contains the aims and objectives sought to be
achieved, and is therefore, part of the Act. It is a key to unlock the mind of the law makers
Traditional view concerning the use of the long title and the preamble in construing statutes is
that while each is a part of the act, it is not an operative part and may be looked at to resolve
doubt or ambiguity only when the provision being interpreted it's capable of two or more
meanings.

Schedule
Schedule is an extension of the section which introduces it. schedule may be used to construe
an act only if not inconsistent with it.
Schedules attached to an Act generally deals with as to how claims or rights under the Act are
to be asserted or as to how powers conferred under the Act are to be exercised. The Schedules
are appended towards the end of the enactment
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Marginal Notes
Marginal notes are those notes which are inserted at the side of the sections in the Act and
express the effect of the sections. These are also known as side notes. Courts in Malaysia hold
the view that marginal notes are part and parcel of a statute and may be used as an aid to
interpretation.
Lim Phin Khian v Kho Su Ming, Edgar Joseph Jr DCJ and Gopal Sri Ram JCA referred to the
marginal note of section 17 of A909 which states that that section is a saving provision.

Punctuation
In modern times statutes contain punctuation. Therefore, whenever a matter comes before the
courts for interpretation, the courts first look at the provision as they are punctuated and if they
feel that there is no ambiguity while interpreting the punctuated provision, they shall so
interpret it.
However, while interpreting the provision in the punctuated form if the court feels repugnancy
or ambiguity, the court shall read the whole provision without any punctuation and if the
meaning is clear will so interpret it without attaching any importance whatsoever to the
punctuation.
Palaniapah Chetty v Lim Poh [1882] stated that punctuation and capital letters are material to
the meaning of statutory terms.

Illustrations
Illustrations are sometimes appended to a section of a statute with a view to illustrate the
provision of law explained therein.
Mohamed Syedol Ariffin v Yeoh Ooi Gark [1916] 1 MC 165, an appeal from the street
settlements stated that it is the duty of the court to accept, if that can be done, illustrations
appended to sections as relevant in the interpretation of the text. illustration merely explains
the section and it does not qualify the plane and unambiguous meaning of the section itself.
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External Aids
• Dictionaries
• Interpretation statutes
• Previous and subsequent statutes on the same subject matter
• Judicial decisions interpreting statutes in para materia (word for word the same)
Pepper v Hart [1993] 1 ALL ER 42, until recently hence it remained a closed book however
relaxation of the prohibition came in a majority decision by their lordships which allowed
reference to Hansard interpreting the words of a statute only if
• The legislation is ambiguous, or the literal meaning leads to an absurdity.
• Material relied on consists of one or more statements made by a minister or promoter
of the bill which led to the enactment of the legislation together, if necessary, with other
parliamentary materials necessary to understand such statements.
• Statements to be relied upon are clear.