OCTOBER 5 — Sixty-one years ago in 1965, one K.C.I. Reddy commenced an action in the High Court of Malaya at Kuala Lumpur by way of an Originating Summons (OS) for declaration that he was entitled to withdraw the whole of the money standing to his credit with the Employees Provident Fund (EPF).
At the time of the action, Reddy was a magistrate in the Judicial and Legal Service of the Government of the Federation of Malaysia.
He had applied for service in the Judicial and Legal Service of the Government of the Borneo States, intending to leave the States of Malaya for Borneo and had no intention of returning.
In 1965, High Court Judge Raja Azlan Shah (as he then was) was the youngest judge to be appointed, not only to the High Court of Malaya but a superior court in the Commonwealth.
By the time the OS was heard by the learned judge, Reddy was already a judicial officer serving in the Borneo States.
The only pertinent issue before the learned judge was the construction of the provisions of Section 13(1)(d) of the Employees Provident Fund Ordinance (as it was then known) which then read as follows:
“No sum of money standing to the credit of a member of the fund may be withdrawn from the fund except with the authority of the board and, subject to any regulations and rules made under Sections 20 and 21 of this Ordinance, such authority shall not be given unless the board is satisfied that: (d) the employee is about to leave Malaya with no intention of returning there”.
The EPF Board conceded to (d) above.
Given the concession, the sole question to be resolved was whether the word “Malaya” in (d) above meant “Malaya” or “Malaysia”. If it meant the latter, it would be fatal to the OS.
The learned judge took time to consider the history of the statute. His Lordship said:
“The Employees Provident Fund Ordinance has quite a long statutory history, and I must consider it. The Ordinance came into force on October 1, 1951. It is singularly significant to note that throughout the Ordinance the only place where the word ‘Malaya’ is used is under Section 13(1)(d).
“In four other places, that is Section 2 … and Section 3, the phrase ‘Government of the Federation’ is used, and in Section 4 … [and] Section 5 … the word ‘Federation’ is used to denote the identity of the country. None of those phrases or words, that is, ‘Government of the Federation’, ‘Federation’ or ‘Malaya’ have been defined in the Ordinance and therefore it is necessary to resort to the Interpretation and General Clauses Ordinance, 1948.
“Under Section 2 which deals with definitions it is perfectly clear that ‘Malaya’ was defined to include all the Malay States and Settlements comprising the Federation of Malaya as well as the Colony of Singapore. The important distinction here is that ‘Federation’, which was defined as ‘The Federation of Malaya established pursuant to the Federation of Malaya Agreement, 1948’, was not to include Singapore, whereas ‘Singapore’ has been included within the definition of ‘Malaya’ as early as 1948.
“The Ordinance was amended from time to time, but for purposes of present consideration no significant amendment was made until 1959. In that year, consequent upon the establishment of the State of Singapore, the Ordinance pertaining to Singapore was amended and the definition of ‘Malaya’ then was defined as ‘States of the Federation and Singapore’. The changes made in 1959 have remained until to-day in the Ordinance. The legislature has thought fit not to alter the meaning of the word.
“Insofar as the Employees Provident Fund Ordinance is concerned, various amendments were made but Section 13(1)(d) has left the word ‘Malaya’ untouched. With the emergence of Malaysia, the provisions of Part IV of the Malaysia Act have effect as if embodied in the Constitution (see Article 159A). It is therefore necessary to consider the relevant transitional and temporary provisions.”
The learned judge duly considered Section 73 of the Malaysia Act 1963 and ruled that the “Employees Provident Fund Ordinance is accordingly a present law”.
(Read “Legal effect of the laws of Sabah and Sarawak passed or made before Malaysia Day necessitates looking into the Federal Constitution and Malaysia Act 1963” as to what “present law” means.)
Given the ruling, it was necessary to consider whether Section 13(1)(d) of the Ordinance was inconsistent with any provisions of the Federal Constitution, to which the learned judge said:
“[W]here a statute does not define words, it is proper to determine their meaning and the intention of the legislature in enacting them by a consideration of the whole statute and every part of it.
“And in order to understand these words it is natural to enquire what is the subject-matter and the object in view (Direct US Cable Co Anglo-American Telegraph Co (1877) 2 App Cas 394, 412). As was stated by Lord Goddard C.J. in Barnes Jarvis [1953] 1 WLR 649: ‘A certain amount of common sense must be applied in considering statutes. The object of the Act must be considered’.
“What then is the object of the Employees Provident Fund Ordinance? It is to provide financial security to an employee in his old age. The Ordinance was originally drafted for Malaya and Singapore. The intention is that unless a contributor leaves Malaya and Singapore with no intention of returning as distinct from leaving one State for another State within the constituent part of Malaya and Singapore, he is not entitled to withdraw his money. That is consistent with the Ordinance read as a whole.
“With the emergence of the Federation of Malaya in 1957 as an independent and sovereign State, the provisions of the Ordinance in conformity with the new constitutional changes were made to apply to the whole of the new emerging State. Thus, item (48) of the Interpretation and General Clauses Ordinance defines ‘Malaya’ as ‘The States of the Federation and Singapore’. ‘States of the Federation’ as defined in item (86C) of the Interpretation and General Clauses Ordinance means the nine Malay States and the two former Settlements of Penang and Malacca.
“Such is the intention of the Employees Provident Fund Ordinance in the light of the new constitutional set-up. Although ‘Malaya’ in the Ordinance is not amended, the Interpretation and General Clauses Ordinance is amended to fit in the new changes.
“With the emergence of Malaysia, neither ‘Malaya’ in the Employees Provident Fund Ordinance nor ‘States of the Federation’ in the Interpretation and General Clauses Ordinance were amended to fit in the new changes.
“However, Part IV of the Malaysia Act is embedded in the [Federal] Constitution and the proviso of Section 73(1) of the Act enacts ‘that references to the Federation shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly’.
“It therefore follows that reference to ‘States of the Federation’ would now bear reference to ‘States of Malaysia and Singapore’, and with the secession of Singapore it would now mean ‘States of Malaysia’.
“That is my interpretation of ‘Malaya’ in the Employees Provident Fund Ordinance as defined by the Interpretation and General Clauses Ordinance having regard to the proviso of Section 73(1) of the Malaysia Act.
“That, to my mind, is not inconsistent with the provisions of Article 1(2) of the [Federal] Constitution which declares ‘States of the Federation’ as the eleven States of Malaya and the two States of Borneo.
“As a matter of deduction, Section 13(1)(d) of the Employees Provident Fund Ordinance, which derives its definition of ‘Malaya’ from the Interpretation and General Clauses Ordinance, is not inconsistent with any provision of the Constitution.
“If the result appears grotesque, that is not a reason why the law should not be enforced, but it may be a reason why the law should be altered.”
Accordingly, the learned judge dismissed the OS with costs.
The judgment was delivered on April 18, 1967. Little is known that it was on the eve of His Lordship’s 39th birthday. (See the case of Reddy v Employees Provident Fund Board [1967] 2 MLJ 82)
In July of that year, three months after the judgment, the word “Malaya” was substituted with “Malaysia” vide Sub. P.U. 644/67.
The case was the first reported case which considered and gave effect to Article 159A that was amended into the Merdeka Constitution of 1957 vide Section 71 of the Malaysia Act 1963.
As Justice Raja Azlan Shah said, to read “Malaya” as “Malaysia” might be grotesque.
But it wasn’t.
It was His Lordship being years ahead of the legislature when he considered a canon of construction of statutes — that is, where a statute does not define words, it is proper to determine their meaning and the intention of the legislature in enacting them by a consideration of the whole statute and every part of it.
It took the legislature more than 30 years (not three months) later to amend the Interpretation Acts 1948 and 1967 in 1997 to insert Section 17A which mandates that regards to the purpose of a statute shall be had to interpret the provisions in the statute.
Importantly also, the judgment set out in no uncertain terms, and so early in the life of the new Federation, that no provision of a statute shall be inconsistent with any provision of the Federal Constitution.
That’s what supremacy of the Constitution means.
It was elucidated with conviction, so as to do justice and uphold the rule of law.
There is nothing grotesque about it.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
