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Federal Court of Malaysia |
] [Hide Context] DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO:
02-4-2002 (W)
1.
Palm Oil Research and Development Board Malaysia
2.
Director General of Palm Oil Research Institute
Perayu
Premium Vegetable Oils Sdn Bhd …Responden
(Dalam Perkara
Rayuan Sivil No. W-02-150-1997
dalam Mahkamah
Rayuan Malaysia bersidang di Kuala Lumpur
Premium Vegetable Oils Sdn Bhd …Perayu
1. Palm Oil Research and Development Board Malaysia
2. Director General of Palm Oil Research Institute
Responden)
RAYUAN SIVIL NO: 02-5-2002 (W)
Lembaga
Penyelidikan & Kemajuan Minyak
Kelapa Sawit …Perayu
Premium Vegetable
Oils Sdn Bhd
…Responden
(Dalam Perkara
Rayuan Sivil No. W-02-671-2000
dalam Mahkamah
Rayuan Malaysia bersidang di Kuala Lumpur
Premium Vegetable
Oils Sdn Bhd
…Perayu
Lembaga
Penyelidikan & Kemajuan Minyak
Kelapa Sawit …Responden)
Coram: Haidar bin Mohd. Noor, H.B.M.
Steve Shim Lip
Kiong, H.B.S.S.
Gopal Sri Ram,
H.M.R.
1. On October 2, 2002, a differently constituted Bench of this Court granted the appellant leave to appeal in respect of the following two issues:
(i) Whether
the Palm Oil Research and Development Act 1979 is a taxing statute; and
(ii) If
the answer is in the affirmative, then what interpretation/approach should be
taken.
2. When this appeal was called on for hearing
on June 16, 2003, learned counsel for the respondent, in the course of his
submissions,
said that the two questions framed bear no relevance whatsoever to
the real issues in this case. Having
read and re-read the appeal record for the purpose of writing this judgment I
must say at once that I am entirely in agreement
with this submission. In my respectful view, the real and live
issue in this case concerns the vires
of certain subsidiary legislation brought into existence by the Honourable Minister. The question whether the Palm Oil Research
and Development Act 1979 (“the 1979 Act”) is a taxing statute is only
collaterally relevant
to the real issue.
3. Does this relieve this Court of its duty
to hear and determine this appeal on its merits? With respect, I do not think that it does. Although this Court should give leave
sparingly, once leave is granted, it is not bound hand and foot to limit itself
to the framed
issues. It may deal with
any matter which it considers relevant for the purpose of doing complete
justice according to the substantial merits
of a particular case. Edgar Joseph Jr FCJ put the point beyond
doubt in his judgment delivered in this Court in Menteri Sumber Manusia v Association of Bank Officers, Peninsular
Malaysia [1999] 2 MLJ 337. His
lordship there said:
“A preliminary question arises whether Counsel for
ABOM is precluded from raising points other than the threshold jurisdiction
point
in order to hold the judgment he had obtained in the Court of Appeal
bearing in mind that the sole ground upon which the Court of
Appeal had
reversed the High Court and quashed the decision of the Minister was the
threshold jurisdiction point and, furthermore,
that in accordance with r 108(1)
of the Rules of the Federal Court 1995, (‘the Rules’) the order of this Court
granting leave to
appeal specified only that issue for determination on the
appeal to itself.
We
are aware of the decision of this Court in Sababumi
(Sandakan) Sdn Bhd v Datuk Yap Pak Leong [1998] 3 MLJ 151 where separate
judgments were delivered and one of the Judges held (at p 173 E) that having
regard to the provisions
of r 108(1)(c) of the Rules only the issues or
questions framed by this Court when granting leave would be heard or
entertained on
the appeal to itself.
It
should be noted, however, that in Sababumi
the Court was dealing with an objection taken by Counsel for the respondent,
the effect of which was that certain grounds raised
in the memorandum of appeal
were outside the scope of the issues in respect of which leave to appeal had
been granted by the Federal
Court and, that consequently, it was not open to
the appellant to raise those grounds.
Although
it might appear that what the Court had there said was expressed in terms wide
enough to preclude either party from raising
in the Federal Court a point
outside the scope of the issue in respect of which leave to appeal was given,
whatever the circumstances,
we do not consider this was what was intended by
the Court. As a matter of principle,
there can be no justification whatsoever for depriving a respondent to an
appeal of his general right to
take any point open to him in order to hold his
judgment. (See, Viking Askim Sdn Bhd v NUECM [1990] 2 ILR 634 at p 638; Waller & Son, Ltd v Thomas [1921] 1
KB 541; Property Holding Co Ltd v Clark
[1948] 1 KB 630 at p 637 (CA); Errington
v Errington & Woods [1952] 1 KB 290 at p 300 (CA).) Apart from these cases we consider it
pertinent to refer to the following passage in the judgment of Willmer LJ in Thomas v Marconi’s Wireless Telegraph Co Ltd
[1965] 2 All ER 598, CA (at p 600) which we consider especially relevant:
‘… On principle, I should have thought, it is plain that the position
of a respondent, who is brought to this court on appeal against
his will, is necessarily
quite different from that of an appellant who initiates the proceedings in this
court. It is right that an appellant
should be precluded from raising here for the first time a point not taken
below; but there is no similar
justification for shutting out a respondent, who
is brought here on appeal, from taking any
point in support of the judgment which he has obtained.’ (Italics supplied)
In
our view, therefore, it was open to ABOM to raise these other points in order
to hold their judgment and both Counsel for the Minister
and NUBE were quite
correct in taking no objection.
We
would go further and say that notwithstanding the Sababumi case, it would be wrong to assume that the last word has
been spoken regarding the position of even an appellant who seeks to argue
in
this Court — a Court of Last Resort — a ground which falls outside the scope of
the issues regarding which leave to appeal has
been granted.
Looking
at the Rules, we note that sub-r 4 of r 47 shows that the appellant is
‘confined to matters, issues or questions in respect
of which leave to appeal
has been granted’, and sub-r 1 of r 57 emphasizes
the same point by providing that ‘Subject to Rule 47(4) … the appellant shall
prepare a memorandum of appeal setting forth the grounds
of objection to the
decision appealed against and specifying the points of law or fact which are
alleged to have been wrongly decided
…’, but sub-r 2 of r 57 makes the
important concession to the appellant
by providing that ‘the appellant shall not at the hearing without the leave of
the Court put forward any other ground
of objection … .’ (Emphasis added.)
Clearly,
therefore, having regard to these provisions, the Federal Court has the power and therefore the discretion to permit an appellant to
argue a ground which falls outside the scope of the questions regarding which
leave to appeal had been
granted in order to avoid a miscarriage of
justice. These are matters which Sababumi does not appear to have
addressed — perhaps, because they were not raised in argument — and so, the
focus of the decision lay elsewhere,
more particularly, having decided the
question of power against the appellant, understandably, it did not address the
issue of discretion.”
4. The framing of one or more issues for
consideration by this Court is a matter governed by the Rules of the Federal
Court 1995. And, as may be seen from
the above quoted passage those rules in themselves contain one or more safety
valves to ensure no injustice
is done in consequence of procedural departures.
5. In this context, I would refer to the
judgment of Ahmad Fairuz JCA (now Chief Justice) in United Malayan Banking Berhad v Ernest Cheong Yong Yin [2001] 1 MLJ
561 where his lordship said:
“Our Federal Court in the case of Tan Chwee Geok & Anor v Khaw Yen-Yen
& Anor [1975] 2 MLJ 188 at p 189 said:
‘The Rules of the Supreme Court are intended to facilitate,
not impede, the administration of civil justice.
In
the bad old days in England from where we took our Rules, if you put a comma
wrong you were thrown out of court, so strict were
they about technicalities.
But
over the years this strictness gave way to common sense, and every time the
Rules were amended it was with the object of removing
fussy technicalities, and
making it easier for parties to get justice.
This
changed attitude was reflected in the remarks of Lord Collins MR about 70 years
ago in Re Coles and Ravenshear [1907]
1 KB 1:
“Although a court cannot conduct its business
without a code of procedure, the relation of the rules of practice to the work
of justice
is intended to be that of handmaid rather than mistress; and the court ought not to be so far bound and
tied by rules, which are after all only intended as general rules of procedure,
as to be
compelled to do what will cause injustice in the particular case.” (Emphasis added.)
And
in the same case, Ali FJ, said (at p 192):
‘The general principle, I think, is that rights of
parties in an action are not to be defeated by technical objections.’
In
this connection, we would also like to quote what this court had said in Boustead Trading (1985) Sdn Bhd v
Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, at p 342, ie:
‘…After
all, courts exist to do justice according to the law as applied to the substantial merits of a particular
case …’ (Emphasis added.)
Kaikaus
J, in Imtiaz Ahmad v Ghulam Ali PLD 1963
SC 382 at p 400 said:
‘Any system which by giving effect to the
form and not to the substance defeats
substantive rights is defective to that extent. The ideal must always be a system that gives to every person
what is his. (Emphasis added.)
Bearing
in mind the abovementioned authorities, I feel that the preliminary objection
should not be allowed. The objection is indeed
on a mere technicality.”
6. It is probably with this in mind that
learned counsel for the respondent did not pursue with any zeal his argument
that this appeal
ought to be dismissed out of hand on the ground that the
questions posed bear no direct relevance whatsoever to the facts and live
issues in this case. Speaking for
myself, I find no difficulty seeing where my task lies. It lies in adopting that course which will
produce complete justice as between the parties. And I do not intend for a moment to allow any technicality to
stand in my way of achieving that end.
7. The factual matrix against which this
appeal rests is not in dispute. It is
set out in full in the judgment of the Court of Appeal delivered by my learned
brother Mokhtar Sidin JCA. I would
gratefully adopt his lordship’s narrative.
However, it is necessary to bear in mind when reading the narrative that
the respondent before us was the appellant in the Court of
Appeal. This is his lordship’s summary of the
facts.
“The appellant is a company incorporated in
Malaysia. They have two factories, one at Kulai engaged in the extraction of
crude palm
oil (‘CPO’) only from the whole fruits and the other at Pasir
Gudang, Johor engaged in the extraction of crude palm kernel oil (‘CPKO’)
from
the kernel of oil palm fruits. It is
not disputed that the appellant are palm oil millers within the definition as
provided for under the Palm Oil Research and Development
Act 1979 (‘the 1979
Act’) and the Palm Oil (Research Cess) Order 1979 (‘the 1979 Order’). Clauses 2
and 3 of the Palm Oil (Research
Cess) Order 1979 provide as follows:
‘2. In this
Order “palm oil miller” means a person who carries on the business of
extracting oil from oil palm fruits and/or seeds.
3. Every
palm oil miller shall pay a cess of four ringgit for every metric ton or part
of a metric ton of crude palm oil produced by
him.’
It
is also not disputed that the 1979 Order was amended in 1982 and 1984. The amendment in 1984 is not relevant for
the purpose of this appeal. The 1982
amendment is relevant in view of the definition found in para 2:
‘2. The Palm
Oil (Research Cess) Order 1979 is amended by substituting the following
paragraph or para 1;
Citation and commencement
1 This Order may be cited as the Palm Oil
Commencement (Research Cess) Order 1979 and shall come into force on the 1st
January 1980
in respect of cess on crude palm oil extracted from oil palm
fruits and on the 1st July 1980 in respect of cess on crude palm oil
extracted
from oil palm seeds.’
As
can be seen from this paragraph, cess was imposed on crude palm oil extracted
from oil palm fruits and from 1 July 1980, cess was
to be imposed on crude palm
oil extracted from oil palm seeds.
Pursuant
to the 1979 Order, the respondents imposed cess in respect of the crude oil
extracted from the oil palm fruits (‘CPO’) and
from 1 July 1980 imposed cess in
respect of crude oil extracted from the kernel of the oil palm fruits
(‘CPKO)’. The respondents imposed cess
on CPKO on the ground that it was crude oil extracted from the seed. The appellant did not dispute the
imposition of cess on CPO but disputed the cess imposed on CPKO. In the present appeal, the respondents had
imposed the sum of RM363,034 as cess on CPKO to which the appellant had
paid. As I have stated earlier, the
appellant disputed the imposition of cess in respect of CPKO and took up the
present action seeking
a declaration that the respondents were not empowered to
levy and collect the cess on CPKO and for the refund of the cess imposed
and
paid by the appellant. The respondents
in turn counterclaimed for the sum of RM255,300 where the cess imposed on CPKO
had not been paid by the appellant.
The
appellant contended that the 1979 Act and the Orders made thereunder did not
cover CPKO. The imposition of cess was
only on CPO and not on CPKO.
In
order to understand the difference between CPO and CPKO, the appellant
submitted and not disputed by the respondents, that CPO
is the crude oil
extracted from the oil palm fruits while CPKO is the crude oil extracted from
the kernel of the crushed fruits of
the oil palm. The crude oil extracted from the kernel is done chemically
whereas the CPO is extracted by crushing the whole fruits. As I have stated earlier, it is also not
disputed that the appellant maintained two factories, one in Kulai and the
other in
Pasir Gudang. The factory at
Kulai extracted CPO by crushing the whole oil palm fruits. The kernel of the crushed fruits were then
collected and sent to the Pasir Gudang factory where CPKO were extracted
chemically.
It
is the contention of the learned counsel for the appellant that CPKO is not
crude oil from the oil palm fruits or seeds as stipulated
by s 2 of the 1979
Act which provides the following definition:
‘palm oil’ means oil, whether in crude or further
processed form, extracted from oil palm fruits and seeds.
The
respondents, on the other hand, contended that CPKO is crude oil extracted from
the seeds of the oil palm, and as such, the respondents
have the right to
impose cess on CPKO under the 1979 Act and the orders made thereunder. The learned judge in the court below held
that CPKO is crude oil extracted from the seeds of the oil palm and the
respondents were
right in imposing the cess on CPKO extracted by the appellant
at their Pasir Gudang factory. Being
dissatisfied with the decision, the appellant appealed to this court.”
8. All that remains for me to add is that the
Court of Appeal allowed the appeal, reversed the High Court and entered
judgment for the
instant respondent.
The present appellant then sought and obtained leave to appeal against
the decision of the Court of Appeal.
9. I am in agreement with learned counsel for
the respondent that the central question in this appeal is whether the Palm Oil
(Research
Cess) Order 1979 (“the 1979 Order”) is ultra vires the parent statute, namely, the 1979 Act. This is a question of law of considerable
public importance having regard to the impact of the cess levy by the
appellants on one
of our economic lifelines.
10. Three items of ultra vires were identified by learned counsel for the
respondent. First, the absence of any
authority in the 1979 Act, in particular, sections 2 and 14 thereof to collect
cess from palm oil millers. Second the
levying of cess on CPKO is in itself ultra
vires sections 2 and 14 of the 1979 Act because the definition of “palm
oil” in section 2 does not include “kernel”.
Third, the 1979 Order is an unauthorised enlargement of sections 2 and
14 of the 1979 Act through the use of the expression “and/or”
in paragraph 2
which purports to define a “palm oil miller”.
To elaborate, section 2 of the 1979 Act uses the single conjunction
“and” to define “palm oil” as meaning “oil, whether in crude or
further
processed form, extracted from oil palm fruits and seeds”.
However, paragraph 2 of the 1979 Order uses the alternative conjunctions
“and/or” in place of the single conjunction “and” when defining
a “palm oil
miller” as meaning “a person who carries on the business of extracting oil from
oil palm fruits and/or
seeds”. It is counsel’s argument that
the Honourable Minister has therefore enlarged the definition in section 2 of
the 1979 Act without sanction
from the parent statute. This is what is known as substantive ultra vires.
11. Before considering the three alleged
instances of ultra vires, it is
apposite to re-state the law governing unauthorised action by the Executive as
authoritative guidance for the courts in the
hierarchy of our judicature. For this purpose, it is convenient to
identify executive acts as being either purely administrative in nature on the
one hand or as
quasi-legislative.
Quasi-legislative power is exercised by a member of the administration –
usually one of His Majesty’s Ministers – pursuant to a power
conferred by
Parliament to make subsidiary legislation.
12. The starting point for the present
discussion is the source in our jurisdiction of what Anglo-Saxon jurisprudence
initially termed
as “administrative law” and which it now refers to by the more
generic expression “public law” and in which is housed the concept
of ultra vires or illegality. I use the expression “illegality” as an
alternative to ultra vires by freely
borrowing it from Lord Diplock’s Delphic pronouncement in Council of Civil Unions v Minister for the Civil Service [1985] AC
374. Lord Diplock there said:
“By ‘illegality’ as a ground for Judicial Review I
mean that the decision maker must understand directly the law that regulates
his
decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to
be decided, in the event of a dispute, by those persons, the judges,
by whom
the judicial power of the state is exercisable.”
13. In R
Rama Chandran v Industrial Court Malaysia [1997] 1 MLJ 145, Edgar
Joseph Jr FCJ interpreted this part of Lord Diplock’s speech as follows:
“Lord Diplock’s first ground for challenge, namely,
‘illegality’, involves insisting that the authority or
body whose decision is being impugned has kept strictly within the perimeters
of their powers. A good
example of this is the case of Westminster
City Council v Great Portland Estates plc [1985] AC 661, an ultra vires case, involving
judicial construction of the Town and Country Planning Act 1971. The question for decision was whether the
Act permitted the relevant authorities, by resort to their development plans,
to support
the retention of traditional industries or was the ambit of the Act
such as to permit only ‘land use’ aims to be pursued? It was held that ‘the character of the use of the land, not the
particular purpose of a particular occupier was the concern of planning
and
therefore the authority could not be seen to favour any particular occupant or
class of occupant. By thus confining
the relevant authority strictly to the four walls of the powers conferred upon
them by the Act, the court was involved
in the exercise of reviewing the
impugned decision for substance and not just process.” (Emphasis added.)
14. The relevant source of public law in our
jurisdiction is the Federal Constitution, for, it declares by its own terms in
Article 4(1)
that it is the supreme
law. It follows that what English
lawyers refer to as “administrative law” or “public law” has no separate
existence dehors the Constitution
in our jurisdiction. All principles of administrative law or
public law must find their place within the Constitution. These principles are to be derived through
an interpretation of those provisions falling within Part II of the
Constitution which
guarantee to our citizens all those fundamental rights that
are inherent in all human beings. It
is the solemn duty of the judicial arm of Government – the courts who are the
guardians of constitutional rights – to interpret
the fundamental rights
provisions in Part II of the Constitution prismatically, so that our citizens
obtain the full benefit and
value of those rights. And it is in this simple way, through the exercise of the
court’s interpretive jurisdiction that our public law gains momentum. Accordingly, it cannot be over-emphasised
that on no account should our courts adopt a narrow and pedantic approach to
constitutional
interpretation.
15. In truth, no authority is required for these
axiomatic propositions. But should it
be required then it may be found in at least three cases. The first of these is Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 where in an
oft quoted passage Lord Diplock said:
“In a constitution founded on the Westminster model
and particularly in that part of it that purports to assure to all individual
citizens the continued enjoyment of fundamental liberties or rights, references
to ‘law’ in such context as ‘in accordance with law’,
‘equality before the
law’, ‘protection of the law’ and the like, in their Lordships’ view, refer to
a system of law which incorporates
those fundamental rules of natural justice
that had formed part and parcel of the common law of England that was in
operation in
Singapore at the commencement of the Constitution. It would have been taken for granted by
makers of the Constitution that the ‘law’ to which citizens could have recourse
for the protection
of fundamental liberties assured to them by the Constitution
would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of
language to speak of law as something which affords ‘protection’ for the individual
in
the enjoyment of his fundamental liberties, and the purported entrenchment
(by article 5) of articles 9(1) and 12(1) would be little
better than a
mockery.”
16. Although Ong Ah Chuan concerns the interpretation of the fundamental
rights provisions in the Singapore, the observations of Lord Diplock there
applies
with equal force to our Constitution: see, S Kulasingam & Anor v Commissioner of Lands, Federal Territory
& Ors [1982] 1 MLJ 204.
17. The second authority is Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin
Syed Idrus [1981] 1 MLJ 29, where Raja Azlan Shah Ag LP said:
“In interpreting a constitution two points must be
borne in mind. First, judicial
precedent plays a lesser part than is normal in matters of ordinary statutory
interpretation. Secondly, a
constitution, being a living piece of legislation, its provisions must be
construed broadly and not in a pedantic way
— ‘with less rigidity and more
generosity than other Acts’ (see Minister
of Home Affairs v Fisher [1979] 3 All ER 21. A constitution is sui generis, calling for its own principles of
interpretation, suitable to its character, but without necessarily
accepting
the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord
Wilberforce in that case: ‘A
constitution is a legal instrument given rise, amongst other things, to
individual rights capable of enforcement in a court of
law. Respect must be paid to the language which
has been used and to the traditions and usages which have given meaning to that
language. It is quite consistent with
this, and with the recognition that rules of interpretation may apply, to take
as a point of departure
for the process of interpretation a recognition of the
character and origin of the instrument, and to be guided by the principle
of
giving full recognition and effect to those fundamental rights and
freedoms.’ The principle of
interpreting constitutions ‘with less rigidity and more generosity’ was again
applied by the Privy Council in Attorney-General
of St Christopher, Nevis and Anguilla v Reynolds [1979] 3 All ER 129, 136.
It
is in the light of this kind of ambulatory approach that we must construe our
Constitution.”
18. It is imperative that every word in the
above quoted passage should be carved indelibly in our minds if we are to
meaningfully perform
our duty as interpreters of the supreme law.
19. The third authority is Reyes v The Queen [
2002] 2 AC 235 where Lord Bingham said:
“As in the case of any other instrument, the court
must begin its task of constitutional interpretation by carefully considering
the
language used in the Constitution.
But it does not treat the language of the Constitution as if it were
found in a will or a deed or a charterparty.
A generous and purposive
interpretation is to be given to constitutional provisions protecting human
rights. The court has no
licence to read its own predilections and moral values into the Constitution,
but it is required to consider the
substance of the fundamental right at issue and ensure contemporary protection
of that right in the light of evolving
standards of decency that mark the
progress of a maturing society: see Trop
v Dulles (1958) 356 US 86.
(Emphasis added.)
20. In the context of the present appeal, it is Article
8(1), particularly the second limb of that Article, which is the relevant
constitutional
provision which houses the ultra
vires doctrine.
21. Article 8(1) has two limbs. The first limb guarantees equality before
the law. In other words, it requires
fairness in all forms of State action.
As Thommen J said of the equipollent Article 14 of the Indian
Constitution in Shri Sitaram Sugar Co
Ltd v Union of India & Ors (1990) 3 SCC 223 at p 251:
“Any arbitrary action, whether in the nature of a
legislative or administrative or quasi-judicial exercise of power, is liable to
attract the prohibition of art 14 of the Constitution. As stated in EP Royappa v State of Tamil Nadu (1974) 4 SCC3 ‘equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic
while the other, to the
whim and caprice of an absolute monarch’. Unguided and unrestricted power is affected
by the vice of discrimination: Maneka
Gandhiv Union of India. The principle of equality enshrined in
art 14 must guide every State action, whether it be legislative, executive, or
quasi-judicial: Ramana Dayaram
Shettyv International Airport Authority of India (1979) 3 SCC 489, 511-12, Ajay Hasia v Khalid Mujib Sehravardi
[1981] 1 SCC 722 and DS Nakara v Union of
India (1983) 1 SCC305.”
22. The second limb guarantees equal protection
of the law. This is the limb directly
relevant to the present appeal. The
act or omission of a member of the administration (whether a Minister or a
civil servant) which is either (i) beyond the power
conferred upon him or her
by an Act of Parliament or (ii) constitutes an abuse of that power, denies to
the person affected thereby,
equal protection of the law and consequently runs
foul of Article 8(1). Accordingly, the
doctrine of ultra vires in respect of
acts whether purely administrative or in the exercise of a power to produce
delegated legislation finds its place within
the second limb of Article 8(1).
23. There are two additional matters that call
for emphasis. Firstly, in our jurisdiction
– unlike England – any subsidiary legislation to be valid must be intra vires the parent statute and the Federal
Constitution. In MP Jain’s Administrative Law of Malaysia and
Singapore 3rd edition, the learned author, whose views are
entitled to great respect, has this to say:
“The parent statute may be constitutional, but
the subsidiary legislation made thereunder
may be unconstitutional. The court
will strike down delegated
legislation, as it strikes down any statute, if it comes in conflict, or does not conform, with a
constitutional provision. Here again, reference has to be made to Constitutional
Law to assess whether the regulation
in question infringes a constitutional provision. The frame of reference
to adjudge the validity of the regulation or subsidiary legislation is the Constitution.”
24. This view is amply supported by
authority. In Supreme Court Employees Welfare Association v Union of India AIR
1990 334, Thommen J distilled from decided cases the principles that
operate in the environment of administrative as well as delegated legislative
acts by the Executive. These
principles apply with equal force in our jurisdiction. His Lordship said:
“Where the validity of a subordinate legislation
(whether made directly under the Constitution or a statute) is in question, the
Court
has to consider the nature, objects and scheme of the instrument as a
whole, and, on the basis of that examination, it has to consider
what exactly
was the area over which, and the purpose for which, power has been delegated by
the governing law.
Rules
are liable to be declared invalid if they are manifestly unjust or oppressive
or outrageous or directed to an unauthorised end
or violative of the general
principles of the law of the land or so vague that it cannot be predicated with
certainty as to what
is prohibited by them or so unreasonable that they cannot
be attributed to the power delegated, or otherwise disclose bad faith.
In the
words of Lord Russel of Kilowen, C. J in Kruse
v. Johnson, (1898) 2 QB 91,99:
‘If,
for instance, they were found to be partial or unequal in their operation as
between different classes; if they were manifestly
unjust; if they disclosed
bad faith; if they involved such oppressive or gratuitous interference with the
rights of those subject
to them as could find no justification in the minds of
reasonable men, the Court might well say, “Parliament never intended to give
authority to make such rules; they are unreasonable and ultra vires”’.
In Union of India v. Cynamide India Ltd.
AIR 1987 SC 1802, 1805 Chinnappa Reddy, J. observed that price fixation being a
legislative activity, it was:
‘neither the function nor the forte of the court. We concern ourselves neither with the
policy nor with the rates. But we do
not totally deny ourselves the jurisdiction to enquire into the question, in
appropriate proceedings, whether relevant
considerations have gone in and irrelevant-considerations kept out of the
determination of the price.’ (Emphasis
supplied by Thommen J)
In S.I. Syndicate Ltd. v. Union of India,
AIR 1975 SC 460, this Court stated (at p. 464 of AIR):
‘Reasonableness, for purposes of judging whether there was an “excess
of power” or an “arbitrary” exercise of it, is really the demonstration
of a
reasonable nexus between the matters which are taken into account in exercising
a power and the purposes of exercise of that
power.’
In P.C.S. Mills v. Union of India, AIR 1973
SC 537, this Court, referring to statutory fixation of fair price, stated (at
p. 546 of AIR) :
‘.......But this does not mean that Government can
fix any arbitrary price or a price fixed
on extraneous considerations or is such that. it does not secure a reasonable
return on the capital employed in the industry. Such a fixation would at once evoke a challenge, both on the
ground of its being inconsistent with the guidelines built in the sub-section
and its being in contravention of Arts. 19(1)(f) and (g) .......’(Emphasis
supplied by Thommen J)
See
also observation to the same effect in Shree
Meenakshi Mills v. Union of India, AIR 1974 SC 366.
Any
arbitrary exercise of power by a public authority, whether or not it is in the
nature of subordinate legislation, is liable to
be condemned as violative of
Article 14. As stated in E. P. Royappa v. State of Tamil Nadu,
AIR 1974 SC 555:
‘.......... equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the other, to the
whim
and caprice of an absolute monarch .......’
See
also Maneka Gandhi v. Union of India,
AIR 1978 SC 597, Ajay Hasia v. Khalid
Mujib, AIR 1981 SC 487 and D. S.
Nakara v Union of India, AIR 1983 SC 130.
An
act is ultra vires either because the authority has acted in excess of its
power in the narrow sense, or because it has abused
its power by acting in bad faith
or for an inadmissible purpose or on irrelevant grounds or without regard to
relevant considerations
or with gross unreasonableness see the principle stated
by Lord Greene M. R. in Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER
.680, 685. Power is exercised in bad
faith where its repository is motivated by personal animosity towards those who
are directly affected by
its exercise.
Power is abused even when it is exercised in good faith, but for an
unauthorised purpose or on irrelevant grounds, etc. As stated by Lord Macnaghten in Westminster Corporation v. London and North Western Railway (1905)
AC 426, 430:
‘.........It is well settled that a public body
invested with statutory powers such as those conferred upon the Corporation
must take
care not to exceed or abuse its powers. It must keep within the limits of the authority committed to
it. It must act in good faith. And it must act reasonably. The last proposition is involved in the
second, if not in the first ........’
This
principle was restated by this Court in Barium
Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 (at p. 323).
‘.......... Even if (the statutory order) is passed
in good faith and with the best of intention to further the purpose of the
legislation
which confers the powers, since the Authority has to act in
accordance with and within the limits of that legislation, its order
can also
be challenged if it is beyond those limits or is passed on grounds extraneous
to the legislation or if there are no grounds
at all for passing it or if the
grounds are such that no one can reasonably arrive at the opinion or
satisfaction requisite under
the legislation.
In any one of these situations it can well be said that the authority
did not honestly form its opinion or that in forming it, it
did not apply its
mind to the relevant facts.’
The true position thus
appears to be that, just as in the case of an administrative action, so also in
the case of subordinate legislation
(whether made directly under the
Constitution or a Statute), its validity is open to question if it is ultra
vires the Constitution
or the governing Act or repugnant to the general
principles of the laws of the land or it is so arbitrary or unreasonable that
no
fair minded authority could ever have made it.” (Emphasis added.)
25. Secondly, when determining whether a
particular piece of subsidiary legislation is intra or ultra vires its
parent statute, the court is wholly unconcerned with its underlying principles
or policy. The subsidiary legislation
may have the most laudable social policy at its heart: yet if it is beyond the
terms of the delegation
extended by Parliament it is invalid.
26. In McEldowney
v Forde [1971] AC 632, Lord Diplock while explaining the role of the
courts in the context of the unwritten
constitution of the United Kingdom had this to say:
“The division of functions between Parliament and
the courts as respects legislation is clear.
Parliament makes laws and can delegate part of its power to do so to
some subordinate authority. The courts
construe laws whether made by Parliament directly or by a subordinate authority
acting under delegated legislative powers.
The view of the courts whether
particular statutory or subordinate legislation promotes or hinders the common
weal is irrelevant. The
decision of the courts as to what the words used in the statutory or
subordinate legislation mean is decisive.
Where the validity of subordinate legislation made pursuant to powers
delegated by Act of Parliament to a subordinate authority is
challenged, the
court has a three-fold task: first to determine the meaning of the words used
in the Act of Parliament itself to
describe the subordinate legislation which
that authority is authorised to make, secondly to determine the meaning of the
subordinate
legislation itself and finally to decide whether the subordinate
legislation complies with that description.”
(Emphasis added.)
27. Despite these views appearing in Lord
Diplock’s dissenting speech in the House, it has acquired much repute and has
been quoted by
Peh Swee Chin FCJ in this Court in Kerajaan Malaysia v Wong Pot Heng [1997] 1MLJ 437. In Wong
Pot Heng, Eusoff Chin J at first instance reported in [1992] 2 MLJ 885 quoted the
foregoing passage in Lord Diplock’s dissent in McEldowney v Forde and said:
“There is also no doubt whatsoever that the courts
have jurisdiction to declare invalid a delegated legislation if in making it,
the
person/body to whom power is delegated to make the rules or regulations, acted
outside the legislative powers conferred on him/it
by the Act of Parliament
under which the rules or regulations were purported to have been made.”
28. That a court is entirely unconcerned with
the underlying principles or policy or popularity of a piece of subsidiary
legislation is
a proposition that applies equally in a jurisdiction with a
written constitution. Thus in Maharashtra SBOS & HS Education v
Paritosh AIR 1984 SC 1548, Balakrishna Eradi J when delivering the
judgment of the Indian Supreme Court said:
“The Court cannot sit in judgment over the wisdom of
the policy evolved by the legislature and the subordinate regulation-making
body. It may be a wise policy which
will fully effectuate the purpose of the enactment or it may be lacking in effectiveness
and hence calling
for revision and improvement. But any drawbacks in the policy incorporated in a rate or
regulation will not render it ultra vires and the Court cannot strike it
down
on the ground that in its opinion, it is not a wise or prudent policy, but is
even a foolish one, and that it will not really
serve to effectuate the
purposes of the Act. The legislature
and a delegate are the sole repositories of the power to decide what policy
should be pursued in relation to matters
covered by the Act and there is no
scope for interference by the Court unless the particular provision impugned
before it can be
said to suffer from any legal infirmity, in the sense of its
being wholly beyond the scope of the regulation-making power or its
being
inconsistent with any of the provisions of the parent enactment or in violation
of any of the limitations imposed by the Constitution.”
29. A little later, in the same judgment, the
learned judge added:
“In the light of what we have stated above, the constitutionality
of the impugned regulations has to be adjudged only by a three-fold
test,
namely, (1) whether the provisions of such regulations fall within the scope
and ambit of the power conferred by the statute
on the delegate; (2) whether
the rules/regulations framed by the delegate are to any extent inconsistent
with the provisions of the
parent enactment and lastly (3) whether they
infringe any of the fundamental rights or other restrictions or limitations
imposed
by the Constitution.”
30. In my considered judgment, it is the
threefold test formulated by Balakrishna Eradi J in the above quoted passage
that should be applied
by our courts when determining the validity of a piece
of subsidiary legislation. It must
never be forgotten by our courts when adjudicating upon a public law case that
all State action must in appropriate cases
be in accordance with the terms of
any relevant written law but must in
all cases be in accordance with the provisions of the Federal
Constitution, in particular the fundamental liberties guaranteed by Part II
thereof.
31. It is with these principles in mind that I
now turn to consider the question whether the 1979 Order is tainted by
substantive ultra vires. To recapitulate, the first submission is
that the 1979 Act does not authorise the collection of cess from palm oil
millers. To determine if there is
merit in this complaint, all that is necessary is to examine the Act
itself. There is no dispute – indeed
there cannot be any – that the 1979 Act does not define the term “palm oil
miller”. Section 14(1) by which
Parliament delegates subsidiary law making authority to the Minister reads as
follows:
“14. (1) The Minister may,
after consultation with the Board and
with the Minister of Finance, make orders for the imposition, variation or cancellation of a research
cess on palm oil; and the orders may
specify the nature, the amount and rate and the manner of collection of the
cess.”
32. Be it noted that the section empowers the
Minister, inter alia, to impose
research cess on palm oil:
not on palm oil millers. The point of
construction here is therefore uncomplicated and straightforward. The 1979 Act did not give the Minister power
to make orders imposing a research cess on palm oil millers. And it is not open to this Court to read
into the section an implied power enabling the Minister to do so. Such a course would constitute unauthorised
judicial legislation and a breach of the doctrine of separation of powers
enshrined in
the Federal Constitution.
33. In Malaysia, the Federal Constitution has
entrusted the law making power to Parliament and the State Assembly of each of
the several
States of the Federation.
While the courts through the common law recognise the power of Parliament
to delegate some of its legislative power, it is equally
the constitutional
duty of the courts to ensure that no excessive delegation takes place. Hence the well settled principle that a
provision in a statute conferring power on a member of the Executive to enact
subsidiary legislation
must be construed strictly. This is particularly so where the subsidiary legislation is one
that imposes a financial levy – call it a tax or charge or cess or
whatever you
may – upon the whole or any section of the public. It is difficult to find a clearer authority on the point than
the decision of the English Court of Appeal in Attorney General v Wilts United Dairies Ltd (1921) 37 TLR 884,
which was affirmed by the House of Lords.
See, (1922) 38 TLR 781. In that case Atkin LJ said:
“In these circumstances, if an officer of the
executive seeks to justify a charge upon the subject made for the use of the
Crown (which
includes all the purposes of the public revenue), he must show, in
clear terms, that Parliament has authorized the particular charge. The intention of the Legislature is to be
inferred from the language used, and the grant of powers may, though not
expressed, have
to be implied as necessarily arising from the words of a
statute; but in view of the historic struggle of the legislature to secure
for
itself the sole power to levy money upon the subject, its complete success in
that struggle, the elaborate means adopted by the
Representative House to
control the amount, the conditions and the purposes of the levy, the
circumstances would be remarkable indeed
which would induce the Court to
believe that the Legislature had sacrificed all the well-known checks and
precautions, and, not in
express words, but merely by implication, had
entrusted a Minister of the Crown with undefined and unlimited powers of
imposing charges
upon the subject for purposes connected with his department.”
34. And in a later passage, Atkin LJ said:
“It makes no difference that the obligation to pay
the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an
agreement as a condition of any licence.
It was illegal for him to enter into such an agreement. The agreement itself is not enforceable
against the other contracting party; and if he had paid under it he could, having
paid under
protest, recover back the sums paid, as money had and received to
his use.”
35. In the same case, Scrutton LJ said:
“It is conceivable that Parliament, which may pass
legislation requiring the subject to pay money to the Crown, may also delegate
its powers of imposing such payments to the Executive, but in my view the
clearest words should be required before the Courts hold
that such an unusual
delegation has taken place. As Chief Justice Wilde said in Gosling v Veley ((1850) 12 QB 328 at 407, 116 ER 891 at 921): ‘The
rule of law that no pecuniary burden can be imposed upon the subjects of this
country, by whatever name it may be called, whether tax, due, rate or toll,
except upon clear and distinct legal authority established
by those who seek to
impose the burthen, has been so often the subject of legal decision that it may
be deemed a legal axiom, and
requires no authority to be cited in support of
it.’”
36. In Gruen
Watch of Canada Ltd v Attorney General of Canada [1950] OR 429, McRuer
CJ, after citing Attorney General v
Wilts United Dairies Ltd said:
“It is for the legislative body to decide in every
case what power is to be delegated to any administrative body, and in each case
the administrative tribunal is confined to the express authority delegated to
it and to the authority that may arise by necessary
implication. In
no case is the exercise of the delegated authority more carefully scrutinized
than in the case where it is claimed that it gives
a right to impose any
financial burden on the subject.”
(Emphasis added.)
37. More recently, the House of Lords in McCarthy & Stone (Developments) Ltd
v Richmond Upon Thames Borough Council [1992] 2 AC 48, referred to with
approval the passages in the judgments of Atkin and Scrutton LJJ in Attorney General v Wilts United Dairies
Ltd.
38. So much for the requirement of clear
statutory language in the delegation of powers: particularly, taxation power in
the context of
section 14 of the 1979 Act.
But there is another aspect of section 14 that calls for
discussion. It is this. If you look carefully enough at the
section, you will find that it does not identify the payer of the research
cess. Now, it is for Parliament to
identify the person who is to pay the particular levy. In other words, if a person is to be made
liable for a tax, charge or other levy, such liability must be expressed in
plain and unambiguous
language in the particular statute. If Parliament does not do so, then it is
not open to a delegate of the power to impose the levy to make the
identification. Both these
propositions are well settled and have been expressed on more than one
occasion.
39. Thus, in Comptroller-General of Inland Revenue, Malaysia v T [1970] 2 MLJ 35,
Gill FJ, in relation to the first of the propositions, said:
“In the absence of a clear intention that tax should
be imposed, the respondent is not liable to payment for the sum granted for the
abrogation of his contract. It is an
important canon in the construction of revenue Acts that the subject is not to
be taxed unless there are clear words in the
Act imposing such a tax. In this connection, Lord Blackburn said in
the House of Lords in Coltness Iron
Company v Black (1880–81) 6 App Cas 315, 330:
‘No tax can be imposed on the subject without words
in an Act of Parliament clearly shewing an intention to lay a burden on him. …
and I think the only safe rule is to look at the words of the enactment and see
what is the intention expressed by those words.’
Lord
Simonds in Russell v Scott [1948] 2
All ER 1, 5 reasserted the same rule of construction when he addressed the
House of Lords in the following words:—
‘My Lords, there is a maxim of income tax law which,
though it may sometimes be over-stressed, yet ought not to be forgotten. It is that the subject is not to be taxed
unless the taxing statute unambiguously impose the tax on him. It is necessary that this maxim should on
occasion be reasserted and this is such an occasion.’”
40. So far as the second of the propositions is
concerned one need only cite Deputy
Commissioner of Taxation v Truhold Benefit Pty Ltd. [1985] 158 CLR 678,
where at page 684, the High Court of Australia in its joint judgment said:
“In MacCormick
v FC of T [1983] 158 CLR 622, it was held that the recoupment tax, for
which the Act provides, answers the usual description of a tax. Amongst the characteristics which were said
by the majority to bring it within that description was the fact that the tax
is not arbitrary. This was, as the
relevant passage shows, a reference to the fact that liability can only be
imposed by reference to ascertainable
criteria with a sufficiently general
application and that the tax cannot
lawfully be imposed as a result of some administrative decision based upon
individual preference unrelated to any test
laid down by the legislation. To say that a tax may not be arbitrary in
that sense does not, of course, preclude the pejorative description of a tax as
arbitrary
in the sense that the criteria which are laid down for its
application give it a harsh or unreasonable incidence with regard to either
its
subject-matter or objects. To describe
a tax as arbitrary in the latter sense is to do so in a manner which does not
go to its validity.” (Emphasis added.)
41. Applying the foregoing principles to the
present instance two matters emerge.
First, the 1979 Act does not authorise the imposition of the research
cess upon palm oil millers. Second,
section 14 of the 1979 Act does not impose any liability upon oil palm millers
to pay research cess. Based on these
matters it is my considered judgment that the 1979 Order is ultra vires the 1979 Act. The 1979 Order is therefore null and void
and of no effect. This conclusion
makes it unnecessary for me to consider the other grounds on which ultra vires is asserted. It is equally unnecessary to consider the
arguments concentrated on the issues framed.
However, in deference to the effort that counsel on both sides have put
into presenting their respective arguments, it is only proper
that I express my
views on the framed issues.
42. The test as to whether a particular written
law is a taxing statute is that formulated by Lord Thankerton when delivering
the advice
of the Board in Lower
Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy Ltd [1933]
AC 168, 175:
“The main issue of this appeal is whether the
adjustment levies are taxes, and, if so, whether they are direct taxes. If both these questions are to be answered
affirmatively, it matters not that they incidentally affect property and civil
rights in
the Province, for taxation necessarily has that effect, and the
closing words of s. 91 will exclude any operation of para. 16 of
s. 92. In that event it would be unnecessary to
consider the remaining contentions of the respondents.
In
the opinion of their Lordships, the adjustment levies are taxes. They
are compulsorily imposed by a statutory Committee consisting of three
members, one of whom is appointed by the Lieutenant-Governor in Council, the
other two
being appointed by the dairy farmers within the district under s. 6
of the Act. They are enforceable by law, and a certificate in writing
under the hand of the chairman of the Committee is to be prima facie evidence
in all Courts that such
amount is due by the dairy farmer (s. 11). A dairy farmer who fails to comply with
every determination, order or regulation made by a Committee under the Act is
to be guilty
of an offence against the Act (s. 13), and to be liable to a fine
under s. 19. Compulsion is an essential feature of taxation: City of Halifax v. Nova Scotia Car Works,
Ld. [1914] AC 992. Their Lordships
are of opinion that the Committee is a public authority, and that the
imposition of these levies is for public purposes.”
43. There is no requirement that the levy must
be imposed by a public authority in order for it to be judged a tax. See, Air
Caledonie International v The Commonwealth [1988] 165] CLR 462; Australian Tape Manufacturers Ltd The Commonwealth [1991] 177 CLR 480.
44. In the present case, the 1979 Order makes
non payment of research cess an offence punishable by a fine of RM 1000 or to a
term of
imprisonment not exceeding 6 months or to both such punishments. There you have the element of compulsion
required by the Thankerton
test. Accordingly, it is my considered
judgment that the research cess is indeed a tax.
45. The next issue posed by the appellant is
whether the 1979 Act as a taxing statute should receive a purposive
interpretation. I must be forgiven if
express my astonishment at the need for a question the answer to which is so
obvious and covered by high authority.
Yet, we were regaled by authorities by counsel on both sides, each
urging a different resolution of the question. Now, when it comes to a question of statutory interpretation,
this Court – or indeed any court –is not bound to select one or the
other of
the rival interpretations advanced by counsel. The court should think for itself and come to its own conclusion
because the responsibility to interpret a statute rests with the
court.
46. In Accident
Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR
529 the court was pressed by counsel not to adopt a construction that
was not supported by the appellant in that case. McGarvie J’s response merits recall. His Honour said:
“During the hearing of the appeals when it was
suggested from the Bench that the right to be on the register depends on the
location
of the authorized depot the suggestion received little, if any,
support from counsel for the Authority.
For the respondents, Mr. Magee vigorously contested the suggestion. More
than once Mr. Magee submitted that it was not open to the
Court to adopt a
construction of the legislation which the appellants had not in argument
supported. A pertinent response to
that submission is that: ‘Judges are more than mere selectors between rival
views - they are entitled to and
do think for themselves’: Saif Ali v Sydney Mitchell and Co (A Firm) [1980] AC 198, at p.
212, per Lord Wilberforce.”
47. Pepper
v Hart [1993] AC 593, a case with which the whole if not a substantial
number of the legal profession is familiar was a case that had to with a taxing
statute, the Finance Act 1976. Lord
Griffiths there said:
“The days have long passed when the courts adopted a
strict constructionist view of interpretation which required them to adopt the
literal meaning of the language. The
courts now adopt a purposive approach which seeks to give effect to the true
purpose of legislation and are prepared to look at
much extraneous material
that bears on the background against which the legislation was enacted.”
48. Further, Parliament via section 17A of the
Interpretation Acts 1948 and 1967 requires the court to adopt a purposive
approach. That section reads:
“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.”
49. So, there is no doubt that even a taxing
statute must be given a purposive approach.
But that is quite different from saying, as learned counsel for the
appellant is saying, that a taxing or revenue law statute may
be read so as to
confer power upon a member of the administration to collect a tax when there is
neither an identification of the
taxpayer nor conferment of a power to make
subsidiary legislation in that behalf.
If this Court were to accept the argument of counsel for the appellant, then
we would not be promoting the purpose or object of the
1979 Act but be
defeating it. For, in such event we
would, through unauthorised legislative power, be re-writing statute.
50. In my judgment section 17A has no impact
upon the well established guidelines applied by courts from time immemorial
when interpreting
a taxing statute.
Section 17A and these guidelines co-exist harmoniously for they operate
in entirely different spheres when aiding a court in the exercise
of its
interpretive jurisdiction. The correct
approach to be adopted by a court when interpreting a taxing statute is that
set out in the advice of the Privy Council
delivered by Lord Donovan in Mangin v Inland Revenue Commissioner
[1971] AC 739:
“First, the words are to be given their ordinary
meaning. They are not to be given some
other meaning simply because their object is to frustrate legitimate tax
avoidance devices. As Turner J said in
his (albeit dissenting) judgment in Marx
v Inland Revenue Commissioner [1970] NZLR 182 at 208, moral precepts are
not applicable to the interpretation of revenue statutes.
Secondly,
‘... one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a
tax. There is no presumption so to a
tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language
used.’ (Per Rowlatt J in Cape Brandy Syndicate v Inland Revenue
Commissioners [1921] 1 KB 64 at 71, approved by Viscount Simons LC in Canadian Eagle Oil Co Ltd v Regeim
[1945] 2 All ER 499, [1946] AC 119.
Thirdly, the object of the construction of a statute
being to ascertain the will of the legislature, it may be presumed that neither
injustice nor absurdity was intended.
If therefore a literal interpretation would produce such a result, and
the language admits of an interpretation which would avoid
it, then such an
interpretation may be adopted.
Fourthly,
the history of an enactment and the reasons which led to its being passed may
be used as an aid to its construction.”
51. In my respectful view, section 17A of the
Interpretation Acts 1948 and 1967 neatly fits into and is complementary with
the third principle
in the judgment of Lord Donovan. Hence, the governing principle is this. When construing a taxing or other statute,
the sole function of the court is to discover the true intention of
Parliament. In that process, the court
is under a duty to adopt an approach that produces neither injustice nor
absurdity: in other words, an
approach that promotes the purpose or object
underlying the particular statute albeit that such purpose or object is not
expressly
set out therein. Imposing a
tax by means of subsidiary legislation on a person not identified in the parent
Act produces an absurd and unjust result
and therefore does promote its purpose
or object.
52. For the reasons already given, this appeal
fails. It is dismissed. The orders made by the Court of Appeal are
affirmed. The appellant must pay the
costs of this appeal to the respondent to whom the deposit in court shall be
paid out.
Dated this day of
27th day of February, 2004.
Gopal Sri Ram
Judge Court of
Appeal, Malaysia
Putrajaya
Counsel for the appellants: Shahul Hameed Amirudin (Woo Lai Mei with
him)
Solicitors for
the appellants: T/n Zul Rafique &
Partners
Counsel for the respondent: Dato’ Dr. Cyrus Das (Arjunan Subramaniam and
Geraldine Yeoh with him)
Solicitors for the respondent: T/n Geraldine Yeoh, Arjunan & Associates
Arguments heard
on June 16, 2003.
] [Hide Context]
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