THE INTERPRETATION ACTS 1948 AND 1967 [ACT 388] AND ITS USE IN INTERPRETING THE CONSTITUTION AND OTHER LAWS IN PENINSULAR MALAYSIA

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INTRODUCTION

The Interpretation Acts 1948 and 1967 [Act 388] is a fundamental piece of legislation used to aid the interpretation of laws. It comprises of three (3) parts, i.e. Part I (sections 2 – 65); Part II (sections 66 – 129); and Part III (sections 130 – 132) which came into force on 18 May 1967, 31 January 1948 and 30 September 1967 respectively. The application of Act 388 differs according to whether the law sought to be interpreted is the Federal Constitution, the Constitution of the States, Federal law, or State law. As enumerated in the long title of the Act, the purpose of the Act is to provide for the commencement, application, construction, interpretation and operation of written laws; to provide for matters in relation to the exercise of statutory powers and duties; and for matters connected therewith.

HISTORY

Before the formation of Malaysia, the Straits Settlements; the Federated Malay States; and the States of Johore, Kedah, Terengganu and Kelantan enacted their own legislation to aid the interpretation of laws. These pieces of legislation are enumerated below:

(a)          Straits Settlements – Interpretation Ordinance (Straits Settlements Cap.2)

(b)          Federated Malay States – Interpretation and General Clauses Enactment (Federated Malay States Cap. 1)

(c)          Johore – Interpretation and General Clauses Enactment (Johore Enactment No. 2)

(d)          Kedah – Interpretation Enactment (Kedah Enactment No. 2)

(e)          Terengganu – Interpretation Enactment (Terengganu Enactment No. 8 of 1356)

(f)           Kelantan – Interpretation and General Clauses Enactment (Kelantan Enactment No. 12 of 1938)

The formation of the Malayan Union in 1946 lead to the enactment of the Transfer of Powers and Interpretation Ordinance, 1946 [Malayan Union Ordinance No. 2 of 1946] which applied to the Federated Malay States and all Malay States[1]. This Ordinance was repealed in 1948 via the introduction of the Interpretation and General Clauses Ordinance, 1948 (Malayan Union Ordinance No. 7 of 1948).

The Federal Constitution (FC) lists the ‘interpretation of federal law’ under the Federal List (Item 4(e)(i), List I, Ninth Schedule, FC). In 1967, the Interpretation Act No. 23 of 1967 was introduced at the Federal level thereby repealing the Malayan Union Ordinance No. 7 of 1948 in respect of Federal law, resulting in the Malayan Union Ordinance No. 7 of 1948 only applying to State law.

While the Malayan Union Ordinance No. 7 of 1948 remained in force insofar as the interpretation of State laws were concerned, Parliament invoked its power to legislate on matters in the State List under paragraph (b) of Clause (1) of Article 76 FC in an effort to standardize interpretation laws at the Federal and State levels. Paragraph (b) of Clause (1) of Article 76 FC provides:

Power of Parliament to legislate for States in certain cases

76. (1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:

(b) for the purpose of promoting uniformity of the laws of two or more States; …”

By virtue of that provision, Parliament introduced the Interpretation (States of West Malaysia) Act, 1967 [Act No. 57 of 1967] which provides for the interpretation of written laws of the States of West Malaysia, for shortening the language used therein, for matters generally relating thereto and for other like purposes. The introduction of Act No. 57 of 1967 does not completely replace the application of Malayan Union Ordinance No. 7 of 1948 to the States, as the Malayan Union Ordinance No. 7 of 1948 is still applicable to interpret State laws enacted prior to the date of adoption of Act No. 57 of 1967.

Consequently, there are three laws on interpretation in force in Malaysia i.e. Malayan Union Ordinance No. 7 of 1948, the Interpretation Act No. 23 of 1967 and Act No. 57 of 1967. These three laws were consolidated in 1989 into one single Act i.e. Act 388 and is currently known as Part I, Part II and Part III of Act 388 respectively.

ACT 388 AND THE FEDERAL LAW

The Interpretation Act No. 23 of 1967 (Part I of Act 388) repealed the Malayan Union Ordinance No. 7 of 1948 (Part II of Act 388) in respect of federal law.  In relation to this, section 65 of Act 388 provides:

Repeal and saving

65. (1) Part II of this Act [Interpretation and General Clauses Ordinance 1948] is repealed with effect from 18th May 1967 in so far as it is a federal law.”

By virtue of this section, Part II of Act 388 is no longer applicable for the purpose of federal law. Part I of Act 388 shall be applicable in its place as elaborated under section 2 of Act 388 that provides:

Application

2. (1)    Subject to this section, Part I of this Act shall apply for the interpretation of and otherwise in relation to—

(a)        this Act and all Acts of Parliament enacted after 18 May 1967;

(b)        all laws, whether enacted before or after the commencement of this Act, revised under the Revision of Laws Act 1968 [Act 1];

(c)        all subsidiary legislation made under this Act and under Acts of Parliament enacted after the commencement of this Act;

(d)        all subsidiary legislation, whether made before or after the commencement of this Act, revised under the Revision of Laws Act 1968;

(e)        all subsidiary legislation made after the 31 December 1968, under the laws revised under the Revision of Laws Act 1968.

(2) PART I shall not apply for the interpretation of or otherwise in relation to any written law not enumerated in subsection (1).

Under this section, Part I of Act 388 shall apply to Acts of Parliament enacted after 18 May 1967 and its subsidiary legislation, laws and subsidiary legislation revised under the Revision of Laws Act 1968   [Act 1], and subsidiary legislation made after 31 December 1968 under the laws revised under Act 1. Nevertheless, it is important to note the non-application clause under subsection 2(3) of Part I of Act 388 which provides that Part I of Act 388 shall not apply if there is an express provision to the contrary or when it is inconsistent with the subject or context of such relevant federal law. Subsection 2(3) of Part I of Act 388 is as follows:

“(3) PART I shall not apply where there is—

(a) express provision to the contrary; or

(b) something in the subject or context inconsistent with or repugnant to its application.”

It is also important to note the provision under subsection 65(2) of Act 388 which provides that Part II of Act 388 shall continue to apply to any written law enacted before 18 May 1967 and to subsidiary legislation made after that date under such law. Subsection 65(2) of Act 388 provides:

65. (2) Notwithstanding subsection (1), PART II of this Act thereby repealed shall continue to apply to any written law to which it applied immediately before 18 May 1967 and to subsidiary legislation made after that date under such a written law.”

Thus, any federal law which does not fall into any category provided under section 2 of Act 388 shall be subject to Part II of Act 388. Part II of Act 388 applies to every written law (except of course the categories under section 2 of Act 388) and the word written law is widely defined under section 66 of Act 388. Section 66 of Act 388 provides:

Definitions

66. In PART II of this Act, and in every written law as hereinafter defined, and in all public documents enacted, made or issued before or after 31 January 1948 the following words and expressions shall, as from that date and without prejudice to anything done prior thereto, have the meanings hereby assigned to them respectively, unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided—…”

““written law” means all Acts of Parliament, Ordinances and Enactments in force in the Federation or any part thereof and all subsidiary legislation made thereunder, and includes the Federal Constitution;”

In short, Part I of Act 388 applies to Acts of Parliament and subsidiary legislation enacted after 18 May 1967 or revised under Revision of Laws Act 1968 [Act 1], and subsidiary legislation made after 31 December 1968 under laws revised under Act 1; while Part II applies to all other federal laws.

THE FEDERAL CONSTITUTION

The Federal Court in the case of Lee Kwan Woh v. PP [2009] 1 LNS 778 cited that the Constitution is a document sui generis governed by interpretive principles of its own. It contains its own interpretation law under the generally known Clause (2) of Article 160 FC. The FC does not fall under any category listed under subsection 2(2) of Act 388 thus making Part I of Act 388 inapplicable to it. Part II of Act 388 should be applicable instead as the definition of ‘written law’ under section 66 of Act 388 includes the FC. Such position is reiterated in Clause (1) of Article 160 of the FC that provides:

Interpretation

160. (1) The Interpretation and General Clauses Ordinance 1948 [M.U. 7 of 1948], as in force immediately before Merdeka Day shall, to the extent specified in the Eleventh Schedule, apply for the interpretation of this Constitution as it applies for the interpretation of any written law within the meaning of that ordinance, but with the substitution of references to the Yang di-Pertuan Agong for references to the High Commissioner.

Based on that provision, the Malayan Union Ordinance No. 7 of 1948, i.e. Part II of Act 388 applies to the interpretation of the FC and this has been approved by the Federal Court in the following case:

(i)            Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 :

[7] In the first place, the Federal Constitution is the supreme law of the Federation. Though by definition it is a written law (see s 66 of the Consolidated Interpretation Acts of 1948 and 1967) it is not an ordinary statute. Hence, it ought not to be interpreted by the use of the canons of construction that are employed as guides for the interpretation of ordinary statutes. Indeed, it would be misleading to do so. As Lord Diplock said in Hinds v The Queen [1976] 1 All ER 353 at p 359:

To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in Their Lordships’ view, be misleading

[...]

[16] We next turn to consider the expression ‘law’. It is defined by art 160(2) of the Constitution as follows:

‘Law’ includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.

‘Common law’ is defined by s 66 of the Consolidated Interpretation Acts of 1948 and 1967 as follows:

‘common law’ means the common law of England

We resort to s 66 in Part II of the Consolidated Acts as it expressly states that it applies to ‘every written law as hereinafter defined, and in all public documents enacted, made or issued before or after 31st January 1948’. Since the Constitution is a written law that came into force in 1957, that is to say, after 31 January 1948, it is Part II that must be utilised to interpret the supreme law. The rule of law forms …

(ii)          Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333[2] :

[4] Article 5(1) may be selected to illustrate the point that is sought to be made since it is one of the provisions relied on in this case. That article proscribes the deprivation of life or personal liberty, save in accordance with law. “Law” wherever mentioned in Part II of the Constitution includes – by statutory direction – the common law of England (see art. 160(2) read with s. 66 of the Consolidated Interpretation Acts of 1948 & 1967).

[...]

[17] Now for the second question, namely, whether the deprivation of the appellant’s fundamental right is in accordance with law under art. 5(1). What does “law” mean? As earlier observed, by definition it includes written law and the common law of England. This is the result when art. 160(2) is read with s. 66 of the Consolidated Interpretation Acts 1948 and 1967. Also see, Lee Kwon Woh. “Law” therefore means a system of law that encompasses the procedural and substantive dimensions of the rule of law. And this is the point at which arts. 8(1) and 5(1) interact.

Therefore, based on these cases, Part II of Act 388 can be applied to interpret the provisions on the FC. However, there have been situations where the Federal Court referred to Part I of Act 388 to interpret the FC, examples of which are the cases of Yong Teck Lee v Harris Mohd Salleh & Anor [2002] 3 MLJ 230 and DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn. Bhd. & Anor [2002] 2 CLJ 57. Both these cases were cited in the recent case of Dr. Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173 as per below:

“[15] As regards the question of whether the majority judgment or the dissenting judgment of the Court of Appeal in Yong Teck Lee had made the correct interpretation of art. 121(1B) of the Federal Constitution to represent the true constitutional position of the said article, I am more inclined to agree with the decision and reasoning arrived at by the majority judgment. In Yong Teck Lee the majority judgment in interpreting art. 121(1B) of the Federal Constitution and reading with ss. 50, 67 and 68 of the CJA 1964 had adopted the “purposive approach” by relying on the provision of s. 17A of the Interpretation Acts 1948 and 1967 so as to achieve a harmonious construction amongst various provisions of a statute.

[38] Counsel for the Council then referred to the majority judgment of the Court of Appeal in Yong Teck Lee, supra, where Abdul Hamid Mohamad JCA (as he then was), in delivering the majority judgment of the court, ruled that the decision of an Election Judge is not appealable to that court and hence dismissed the appeal. As to the approach in interpreting the Constitution, the learned judge said (at page 436)-

Of late, the present Federal Court has adopted the ‘purposive approach’ of interpreting the Constitution relying, in particular, on the provision of s. 17A of the Interpretation Acts 1948 and 1967 (Act 388). The judgment of Mohamed Dzaiddin FCJ (as he then was) in Lam Kong Co. Ltd. v. Thong Guan Co. Ptd. Ltd [2000] 3 CLJ 769 (FC) is one such example. This judgment was followed in DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn. Bhd. & Anor [2002] 2 CLJ 57 (FC). Haidar Mohd. Noor FCJ, delivering the judgment of the Federal Court, said at p. 69 of the report:

‘This purposive approach has now been given statutory recognition by our Parliament enacting s. 17A in the Interpretation Acts 1948 and 1967 (Act 388) which reads:

In the interpretation of a provision of an Act, a construction that would promote the purpose of 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.

Recently, the Federal Court in a majority judgment in Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000] 3 CLJ 769 Mohamed Dzaiddin, FCJ, (now CJ Malaysia) took the purpose or object of the legislature as provided by S.17A of the Interpretation Acts 1948 and 1967 (Act 388) for the construction of s.68(1)(a) of the CJA on the “filter” principle. In view of the statutory recognition we can and should adopt a purposive approach in the interpretation of “Ruler” for the purposed of arts. 181, 182 and 183.’

It should be noted that in Lam Kong Co Ltd the Federal Court adopted the purposive approach in considering s.68(a) of the Courts of Judicature Act 1964, one of the sections presently under consideration. I shall adopt the same approach.

[51] I agree with the majority decision in Yong Teck Lee that the Courts of Judicature Act 1964 is a federal law which was intended by the legislature to be read together with art. 121(1B) of the Constitution. I would agree with the submission of counsel for the council that reading art. 121(1B) of the Constitution with s. 68 of the Courts of Judicature Act 1964 and premised on the clear and unequivocal wordings of s. 31(2) of the Act, the decision of the High Court is final and not appealable.

It is important to note that the case of Yong Teck Lee v Harris Mohd Salleh & Anor [2002] 3 MLJ 230 followed the decision of DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn. Bhd. & Anor [2002] 2 CLJ 57 which itself followed the decision of Lam Kong Co. Ltd. v Thong Guan Co. Ptd Ltd [2000] 3 CLJ 769. It is observed however, that the Federal Court in Lam Kong Co. Ltd. v Thong Guan Co. Ptd Ltd [2000] 3 CLJ 769 applied Part I of Act 388 (i.e. section 17A of Act 388) to the construction of paragraph 68(1)(a) of Courts of Judicature Act 1964 (Revised 1972) [Act  91] (which is rightly so) but not to the interpretation of the FC.

STATE LEGISLATION (PENINSULAR MALAYSIA)

The Malayan Union No. 7 of 1948 (Part II of Act 388) has been used by the States since the Malayan Union era. When Parliament introduced Act No. 57 of 1967 (Part III of Act 388), the intention was to standardize the interpretation of laws at both the Federal and States level. Being an Act enacted pursuant to paragraph (b) of Clause (1) of Article 76 FC[3], Act No. 57 of 1967 shall only extend to those States which adopted Part III of Act 388, and Part I of Act 388 shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State. Clause (3) of Article 76 FC provides:

“76. (3) Subject to Clause (3), a law made in pursuance of paragraph (b) or paragraph (c) of Clause (1) shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State, and shall then be deemed to be a State law and not federal law, and may accordingly be amended or repealed by a law made by that Legislature.”

With the adoption of Part III of Act 388 in pursuance of Clause (3) of Article 76 FC, Part I of Act 388 and the modifications and additions contained in the Second Schedule of Act 388 shall apply to such adopting State, as provided under section 131 of Act 388. Section 131 of Act 388 provides:

PART I of this Act to have effect in adopting States

131. (1) Where one of the States of West Malaysia adopts PART III of this Act in pursuance of Article 76(3) of the Federal Constitution, PART I of this Act with the modifications and additions contained in the Second Schedule, shall apply for the interpretation of and otherwise in relation to Enactments of the adopting State enacted after the date of adoption as it applies for the interpretation of and otherwise in relation to Acts of Parliament enacted after the commencement of that Act.

(2) Where by virtue of subsection (1), PART I of this Act applies for the interpretation of and otherwise in relation to an Enactment, that PART shall apply for the interpretation of and otherwise in relation to subsidiary legislation made under that Enactment.

Apart from that, section 132 of Act 388 provides that the adoption of Part III of Act 388 repeals Part II of Act 388 insofar as it is the law of a State to which Part III of Act 388 extends and Part II of Act 388 shall continue to apply to State law made before such repeal. In other words, when a State adopts Part III of Act 388, Part II of the Act will be inapplicable only with respect of State law enacted after the date of adoption. Article 132 of Act 388 provides:

Repeal and saving

132. (1) PART II of this Act [Interpretation and General Clauses Ordinance 1948] is repealed with effect from 30 September 1967[4] in so far as it is a State law of a State to which PART III of this Act extends.

(2) Notwithstanding subsection (1), PART II of this Act thereby repealed shall continue to apply to and State law to which it applied immediately before the date of repeal and to any subsidiary legislation made under any such law (including subsidiary legislation made on or after the date of repeal).

Since the application of Part III of Act 388 is subject to adoption by States, consequently the commencement of Part I of Act 388 to the respective States would be depending on the date of adoption by each States. Thus, when for example the State of Johore adopted Part III of Act 388 on 25 April 1991[5], Part I of Act 388 applied for the interpretation of the laws of the State of Johore starting from that date and Part I of Act 388 applied to the laws of the State of Johore enacted after 25 April 1991, while Part II of Act 388 shall apply to Johore laws enacted before 25 April 1991.

Therefore, in deciding which Part applies to a particular State law, one has to determine the date of adoption of Part III of Act 388 in that particular State, and if the State law was enacted on the date of adoption of Part III of Act 388 or later, Part I of Act 388 would be applicable. On the other hand, if the State law was enacted before the date of adoption, Part II of Act 388 would apply.

In relation to the interpretation of laws in Sabah and Sarawak respectively, the Interpretation and General Clauses Ordinance 1963 [No. 34 of 1963], and the Interpretation Ordinance [Cap 1 (1958) Ed.)] are applicable. Part I is not applicable to both States as Part III of Act 288 does not extend to Sabah and Sarawak.

CONSTITUTION OF THE STATES (PENINSULAR MALAYSIA)

The State Constitutions of all the States in Peninsular Malaysia provide for an interpretation clause listing the meanings assigned to the words contained therein. Nonetheless, all State Constitutions, subject to reservations in each Constitution, also provide that the interpretation under Clause (2) of Article 160 FC shall apply to the State Constitution as it applies to the interpretation of the FC. Apart from that, all State Constitutions provide that Part II of Act 388 is also applicable to interpret the State Constitutions[6]. For example, the Johore Law of the Constitution of 1895 provides:

Application of Clause (2) of Article 160 of the Federal Constitution and the provisions of the Interpretation and General Clauses Ordinance 1948, to the State Constitution

6. (1) Subject to the provisions of Article 1 of the First and Second Part, Clause (2) of Article 160 of the Federal Constitution shall apply for the interpretation of this Constitution as it applies for the interpretation of the Federal Constitution.

(2) Except where the interpretation of any word or expression is expressly provided by this Constitution or the Federal Constitution or where the context otherwise requires, the *Interpretation and General Clauses Ordinance 1948 [M.U. 7 of 1948], or any Act of Parliament substituted therefore, shall apply for the interpretation of this Constitution as it applies for the interpretation of any written law.

(3) Unless the context otherwise requires, any reference in this Constitution to a specified Article, Part or Schedule is a reference to that Article or Part of, or to that Schedule to this Constitution; and any reference to a specified clause is a reference to that clause of the Article in which the reference occurs.”

Thus, in addition to the interpretation clause in the Constitution of the States, Clause (2) of Article 160 of the FC and Part II of Act 388 can also be used to aid the interpretation of the Constitution of the States.

CONCLUSION

For ease of reference, the application of Part I and Part II of Act 388 can be summarized as follows:

To conclude, it is important to understand clearly the application of Act 388 particularly which part of Act 388 would apply to the interpretation of certain Federal or State laws. It is also important to know the date when States adopted Part III of Act 388 so that date of application of Part I of Act 388 can be determined. Having a clear understanding of Act 388 is essential in order to avoid applying the wrong provision in the interpretation of laws.


[1] The word ‘written law’ in the Ordinance defined as “in relation to the Federated Malay States or any Malay State includes all Enactments and all orders, proclamations, rules, by-laws and regulations (including Emergency Regulations) made under such Enactments by any body or person having authority under any authority or other enactment to make the same for the Federated Malay States or any Malay State as the case may be;…”

[2] This case is followed in the recent Court of Appeal judgment in the case of Nik Noorhafizi Nik Ibrahim & Ors v PP [2013] 6 MLJ 660

[3] Section 2 of Act No. 57 of 1967 provides: “2. This Act, which is enacted in pursuance of Article 76(1)(b) of the Federal Constitution for the purpose of promoting uniformity of the laws of the States of West Malaysia, shall extend only to such of those States as adopt this Act in pursuance of Article 76 (3) of the Federal Constitution.”

[4] The date 30 September 1967 is the date of coming into operation of Act No. 57 of 1967 (Part III of Act 388).

[5] via Johore Enactment No. 9 of 1990 and Johore Enactment No. 9 of 1991

[6] Article 36 of the Constitution of the State of Penang, Article 2 of the Laws of the Constitution of Perlis, Article IV of the Laws of the Constitution of Perak Darul Ridzuan, Article 53 of the Law of the Constitution of Pahang, Article XXXIV of the Laws of the Constitution of Negeri Sembilan 1959, Article IV of the Laws of the Constitution of Kelantan, Article 37 of the Constitution of the State of Malacca, Article 2 of the Laws of the Constitution of Kedah, Article II (First Part) of the Laws of the Constitution of Terengganu, and Article XCIV of the Laws of the Constitution of Selangor.

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