DALAM MAHKAMAH
PERSEKUTUAN
( BIDANG KUASA RAYUAN )
RAYUAN SIVIL NO
BETWEEN
ALL MALAYAN ESTATES STAFF
AND
1. RAJASEGARAN
2. SURUHANJAYA PERKHIDMATAN AWAM
3. KERAJAAN MALAYSIA RESPONDENTS
( DALAM PERKARA
MAHKAMAH RAYUAN
RAYUAN SIVIL NO W-01-99-2004
BETWEEN
1. RAJASEGARAN
2. SURUHANJAYA PERKHIDMATAN AWAM
3. KERAJAAN
MALAYSIA APPELLANTS
AND
ALL MALAYAN
ESTATES STAFF UNION RESPONDENT
DALAM PERKARA
MAHKAMAH TINGGI
PERMOHONAN
UNTUK SEMAKAN KEHAKIMAN NO R2-25-05-2004
BETWEEN
ALL MALAYAN ESTATES STAFF UNION APPLICANT
AND
1. RAJASEGARAN
2. SURUHANJAYA PERKHIDMATAN AWAM
3. KERAJAAN
MALAYSIA RESPONDENTS )
CORAM
RICHARD MALANJUM, C.J. (SABAH &
SARAWAK)
ALAUDDIN MOHD SHERIFF, F.C.J.
AUGUSTINE PAUL, F.C.J.
JUDGMENT OF THE COURT
The First Respondent (“the
Respondent”) was admitted and enrolled as an Advocate and Solicitor of the High
Court on
This action was commenced by the
Appellant in the High Court challenging the appointment of the Respondent as a
Chairman of the Industrial Court on the ground that he did not satisfy the
requirements of section 23A(1). The
section reads as follows:
“A person is qualified for
appointment as President under section 21(1)(a) and as Chairman under section
23(2) if, for the seven years preceding his appointment, he has been an
advocate and solicitor within the meaning of the Legal Profession Act 1976 or a
member of the judicial and legal service of the Federation or of the legal
service of a State, or sometimes one and sometimes another.”
Section 3 of the
Legal Profession Act 1976 (“section 3”) defines an “Advocate and Solicitor” as:
“In this Act unless the context
otherwise requires –
‘advocate and solicitor’, and
‘solicitor’ where the context requires means an advocate and solicitor of the
High Court admitted and enrolled under this Act or under any written law prior
to the coming into operation of this Act;”
It was
the contention of the Appellant in the High Court that the period of seven
years stipulated in section 23A(1) is a reference to being in practice and not
merely being admitted and enrolled as an advocate and solicitor for the said
period. Learned counsel referred to
cases such as Chor Phaik Har v Farlim
Properties Sdn Bhd (1994) 3 MLJ 346 and Akberdin
Hj Abdul Kader & Anor v Majlis Peguam Malaysia (2002) 4 CLJ 689 and
argued that the purposive method of interpretation should be adopted in
interpreting section 23A(1). The learned
Senior Federal Counsel who appeared for the Respondents contended that as the
words of section 3 and section 23A(1) are clear and unambiguous it would be
wrong in law to read into them a requirement for being in practice as what is
stipulated is only for a person to have been admitted and enrolled as an advocate
and solicitor for the required number of years.
The learned Judicial Commissioner agreed
with the Appellant and ruled that the Respondent was not a qualified person
within the meaning of section 23A(1). As
she said in her Grounds of Judgment:
“Having considered both these
submissions, I am inclined to agree with the Applicant’s submissions. As mentioned in the Court of Appeal decision
of Akberdin Hj Abdul Kader, the
modern approach to interpreting statutes is by adopting the purposive
approach. I also agree that in adopting
the approach, this Court is entitled to refer to Hansard as an aid to
interpretation when there is some ambiguity in the words of a statute or where
a literal interpretation would lead to an absurdity. I believe that taking a literal approach to
the provision in question would lead to an absurdity. The then Deputy Minister of Labour Dato’ Wan
Abu Bakar bin Wan Mohamad had this to say when addressing the President of the
Senate during the introduction of Act A 781:
‘Tuan Yang Di Pertua, perbicaraan di
Mahkamah Perusahaan masa kini semakin menjadi lebih legalistic, dengan
izin. Oleh itu, adalah dicadangkan
Presiden dan semua Pengerusi Mahkamah Perusahaan hendaklah berkelulusan
undang-undang dan berpengalaman sekurang-kurangnya 7 tahun sebagai peguambela
dan peguamcara atau telah berkhidmat selama 7 tahun dalam Perkhidmatan
Perundangan dan Kehakiman ataupun di dalam keduanya perkhidmatan sekali. Pindaan ini adalah dicadangkan dalam Fasal
12.’
Therefore clearly in introducing the
provision in question, Parliament had in mind that the Chairman of the
The Respondent appealed to the Court
of Appeal. The appeal was allowed. The Appellant obtained leave of this Court to
appeal on the following issue:
“Whether an Advocate and Solicitor
within the meaning of the Legal Profession Act 1976 who has not been practising
for the 7 years preceding his appointment is qualified to be appointed as
Chairman of the Industrial Court under section 23A Industrial Relations Act
1967.”
In his submission before us learned counsel for the
Appellant contended that the crux of the matter is the meaning to be ascribed
to the term “advocate and solicitor” in section 23A(1). He said that as section 23A(1) refers to an
advocate and solicitor “within the meaning of the Legal Profession Act 1976” a
determination of the meaning of the term as used in the whole of the Legal
Profession Act 1976 is required and not merely section 3. He then referred to various sections of the
Act where the term has been used in different senses. Thus, he said, the proper meaning of the term
must be its definition provided in section 3 of the Interpretation Act
1967. Accordingly, in order for a person
to be qualified to be a Chairman of the
In his reply the learned Senior Federal Counsel referred to
the definition of the term advocate and solicitor in section 3 and said that it
does not refer to the active practice of a person. He referred
to Kerajaan Malaysia v Yong Siew
Choon (2006) 1 MLJ 1 where it was held that if a word used in a statute is
clear and unambiguous the definition provided for it cannot be amended or
corrected in order to change the meaning of
the word. In further support he
relied on Ghazi bin Mohd Sawi v Mohd
Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor (1994) 2 MLJ 114
where it was held that words cannot be added to a legislation when it was not
intended. He said that the object of
section 23A(1) is to provide for the qualification of a Chairman of the
Industrial Court and it must be so construed in accordance with section
17A. Thus the term “active practice”
cannot be read into the precise, clear and unambiguous meaning of section
23A(1). He then referred to PP v Tan Tatt Eek (2005) 1 CLJ 713 where
it was held that when the words of a statute are clear, plain and unambiguous,
that is to say, they are reasonably susceptible to only one meaning, the courts
are bound to give effect to that meaning irrespective of the consequences. Accordingly, he said, the Court of Appeal was
correct in adopting the literal interpretation to give effect to the words in
section 23A(1).
The central theme of the submission of both parties is the
correct meaning to be accorded to the term “advocate and solicitor” in section
23A(1). As the answer to the problem
posed involves a question of statutory interpretation what is of immediate concern
is the nature and effect of section 17A.
It reads as follows:
“In the interpretation of a
provision of an Act, a construction that would promote the purpose or object
underlying the Act (whether that purpose or object is expressly stated in the
Act or not) shall be preferred to a construction that would not promote that
purpose or object.”
In
order to appreciate the scope of section 17A it is perhaps useful to refer to
the judgment of the House of Lords in R
(on the application of Quintavalle) v Secretary of State for Health (2003)
2 All ER 113 where Lord Bingham said at pp 118 – 119:
“Such is the skill of Parliamentary
draftsmen that most statutory enactments are expressed in language which is
clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach
the courts, or at any rate the appellate courts. Where parties expend substantial resources
arguing about the effect of a statutory provision it is usually because the
provision is, or is said to be, capable of bearing two or more different
meanings, or to be of doubtful application to the particular case which has now
arisen, perhaps because the statutory language is said to be inapt to apply to
it, sometimes because the situation which has arisen is one which the draftsman
could not have foreseen and for which he has accordingly made no express
provision.
The basic task of the court is to
ascertain and give effect to the true meaning of what Parliament has said in
the enactment to be construed. But that
is not to say that attention should be confined and a literal interpretation
given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense
prolixity in drafting, since the draftsmen will feel obliged to provide
expressly for every contingency which may possibly arise. It may also (under
the banner of loyalty to the will of Parliament) lead to the frustration of
that will, because undue concentration on the minutiae of the enactment may lead
the court to neglect the purpose which Parliament intended to achieve when it
enacted the statute. Every statute other
than a pure consolidating statute is, after all, enacted to make some change,
or address some problem, or remove some blemish, or effect some improvement in
the national life. The court’s task,
within the permissible bounds of interpretation, is to give effect to
Parliament’s purpose. So the
controversial provisions should be read in the context of the statute as a
whole, and the statute as a whole should be read in the historical context of
the situation which led to its enactment.
There is, I think, no inconsistency
between the rule that statutory language retains the meaning it had when Parliament
used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act
applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to
animals which were not regarded as dogs when the Act was passed but are so
regarded now. The meaning of ‘cruel and
unusual punishments’ has not changed over the years since 1689, but many
punishments which were not then thought to fall within that category would now
be held to do so. The courts have
frequently had to grapple with the question whether a modern invention or
activity falls within old statutory language:
see Bennion Statutory
Interpretation (4th edn, 2002) Pt XVIII, s 288. A revealing example is found in Grant v Southwestern and County Properties
Ltd (1974) 2 All ER 465, (1975) Ch 185 where Walton J had to decide whether
a tape recording fell within the expression ‘document’ in the Rules of the
Supreme Court. Pointing out (1974) 2 All
ER 465 at 469, (1975) Ch 185 at 190) that the furnishing of information had
been treated as one of the main functions of a document, the judge concluded
that the tape recording was a document.
Limited help is in my opinion to be
derived from statements made in cases where there is said to be an omission in
a statute attributable to the oversight or inadvertence of the draftsman: see Jones
v Wrotham Park Settled Estates (1979) 1 All ER 286 at 289, (1980) AC 74 at
105; Inco
Europe Ltd v First Choice Distribution (a firm) (2000) 2 All ER 109, (2000)
1 WLR 586. This is not such a case. More pertinent is the guidance given by the
late Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the UK v Department of Health and Social
Security (1981) 1 All ER 545, (1981) AC 800. The case concerned the Abortion Act 1967 and
the issue which divided the House was whether nurses could lawfully take part
in a termination procedure not known when the Act was passed. Lord Wilberforce said:
‘In interpreting an Act of
Parliament it is proper, and indeed necessary, to have regard to the state of
affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s
policy or intention is directed to that state of affairs. Leaving aside cases of omission by
inadvertence, this being not such a case when a new state of affairs, or a
fresh set of facts bearing on policy, comes into existence, the courts have to
consider whether they fall within the parliamentary intention. They may be held to do so if they fall within
the same genus of facts as those to which the expressed policy has been
formulated. They may also be held to do
so if there can be detected a clear purpose in the legislation which can only
be fulfilled if the extension is made.
How liberally these principles may be applied must depend on the nature
of the enactment, and the strictness or otherwise of the words in which it has
been expressed. The courts should be
less willing to extend expressed meanings if it is clear that the Act in
question was designed to be restrictive or circumscribed in its operation
rather than liberal or permissive. They
will be much less willing to do so where the new subject matter is different in
kind or dimension from that for which the legislation was passed. In any event there is one course which the
courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question. “What
would Parliament have done in this current case, not being one in
contemplation, if the facts had been before it?”, attempt themselves to supply
the answer, if the answer is not to be found in the terms of the Act
itself.’ (See (1981) 1 All ER 545 at 564
– 565, (1981) AC 800 at 822.)
Both parties relied on this passage,
which may now be treated as authoritative.”
Lord Steyn said at pp 122 – 123:
“In reaching a conclusion that cell
nuclear replacement is a process covered by s 1(1) of the 1990 Act the Court of
Appeal ((2002) 2 All ER 625 at (27)) adopted a purposive approach. The extensive interpretation adopted by the
Court of Appeal could only be justified by a purposive approach. It was a necessary step in the reasoning of
the Court of Appeal but not a sufficient one.
The Court of Appeal found the basis for such an approach in the fact
that the Human Rights Act 1998 extended ‘the boundaries of purposive
interpretation … where needs must’.
Given that the 1998 Act is not applicable in the present case I would
accept the submission of counsel for the appellant that this approach is not
appropriate. On the other hand, the
adoption of a purposive approach to construction of statutes generally, and the
1990 Act in particular, is amply justified on wider grounds. In Cabell
v
‘Of course, it is true that words
used, even in their literal sense, are the primary, and ordinarily the most
reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a
mature developed jurisprudence not to make a fortress out of the
dictionary; but to remember that
statutes always have some purpose or object to accomplish, whose sympathetic
and imaginative discovery is the surest guide to their meaning.’
The pendulum has swung towards
purposive methods of construction. This
change was not initiated by the teleological approach of European Community
jurisprudence, and the influence of European legal culture generally, but it has
been accelerated by European ideas: see,
however, a classic early statement of the purposive approach by Lord Blackburn
in River Wear Comrs v Adamson (1877)
2 App Cas 743 at 763, (1874 - 80) All ER Rep 1 at 11. In any event, nowadays the shift towards
purposive interpretation is not in doubt.
The qualification is that the degree of liberality permitted is
influenced by the context, eg social welfare legislation and tax statutes may
have to be approached somewhat differently.”
In summarising
the principles governing the application of the purposive approach to
interpretation Craies on Legislation
8th Ed says at p 566:
(1)
Legislation is always to be understood first in accordance
with its plain meaning.
(2)
Where the plain meaning is in doubt, the courts will start
the process of construction by attempting to discover, from the provisions
enacted, the broad purpose of the legislation.
(3)
Where a particular reading would advance the purpose
identified, and would do no violence to the plain meaning of the provisions
enacted, the courts will be prepared to adopt that reading.
(4)
Where a particular reading would advance the purpose
identified but would strain the plain meaning of the provisions enacted, the
result will depend on the context and, in particular, on a balance of the
clarity of the purpose identified and the degree of strain on the language.
(5)
Where the courts conclude that the underlying purpose of the
legislation is insufficiently plain, or cannot be advanced without any
unacceptable degree of violence to the language used, they will be obliged,
however regretfully in the circumstances of a particular case, to leave to the
legislature the task of extending or modifying the legislation.
The choice
prescribed in section 17A of “ … a construction that would promote the purpose
or object underlying the Act … shall be preferred to a construction that would
not promote that purpose or object …” can only arise when the meaning of a
statutory provision is not plain and is ambiguous. If, therefore, the language of a provision is
plain and unambiguous section 17A will have no application as the question of
another meaning will not arise. Thus it
is only when a provision is capable of bearing two or more different meanings
can section 17A be resorted to in order to determine the one that will promote
the purpose or object of the provision.
Such an exercise must be undertaken without doing any violence to the
plain meaning of the provision. This is
a legislative recognition of the purposive approach and is in line with the
current trend in statutory interpretation.
The principles set out in the preceding paragraphs will therefore be
relevant to the operation of section 17A.
It is now apposite to consider the meaning
of section 23A(1) read with section 3.
The Court of Appeal was of the view that the term “advocate and
solicitor” in section 23A(1) means an advocate and solicitor of the High Court
admitted and enrolled under the Legal Profession Act 1976 as defined in section
3. In writing for the Court Nik Hashim Nik
Ab Rahman JCA (as he then was) said:
“In our judgment the qualification
for the appointment as Chairman of the
Thus, we agree with the learned
Senior Federal Counsel that the learned JC erred in opting to give a wider
interpretation to section 23A(1) by requiring an advocate and solicitor to
maintain a practising certificate for 7 years to qualify for appointment as
Chairman. This interpretation of section
23A(1) clearly exceeds the definition intended by Parliament to the phrase
‘advocate and solicitor’ in section 3 of Act 166.
… … …
In the present case, section 23A(1)
of the Act read together with section 3 of Act 166 are clear and unambiguous in
their terms. Thus, when she adopted the
purposive approach in interpreting the provisions by adding words which were
not intended, the learned JC was employing a construction that produces an
unjust result and therefore such an approach does not promote the purpose or
object underlying the Act. Purposive
approach in the interpretation of a statute as required under section 17A of
Act 388 does not mean that literal approach in the interpretation should be
disregarded. A construction be it
purposive or literal, that would promote the purpose or object underlying a
statute that matters to the court in the interpretation of a statute.
It must be noted that section 23A(1)
of the Act was enacted especially for a specific purpose that is to provide for
the qualification of President and Chairman of the
‘Where the meaning of the statutory
words is plain and unambiguous it is not for the judges to invent fancied
ambiguities as an excuse for failing to give effect to the plain meaning … ’
Since the provisions of section
23A(1) of the Act are precise and unambiguous, it is therefore superfluous for
the learned JC to resort to the introduction speech of the Deputy Minister of
Human Resources in moving the Bill of Act 166 as the words of the Deputy
Minister cannot be determinative of the provisions in the section since the
speech is only available as an aid to interpretation. Edgar Joseph Jr FCJ in Chor Phaik Har v Farlim Properties Sdn Bhd (1994) 4 CLJ 285 at p
299 cautioned:
‘We hasten to add, however, that
when resort to Hansard is permissible, that by itself although meriting serious
consideration cannot be determinative of the issue since it is only available as an aid to
interpretation. To hold otherwise, would
amount to substituting the words of the Minister or other promoter of the Bill
for the words of the statute, and that cannot be the law.’
(emphasis added)
Obviously, in reaching her decision,
the learned JC failed to take into consideration the clear words employed by
the draftsman in section 23A(1) of the Act.
If indeed it was Parliament’s intention for only legally qualified
appointees who have maintained a practising certificate for at least 7 years to
qualify for appointment as Chairman, as understood by the learned JC, the
draftsman would have surely employed different words in crafting the section.”
The meaning accorded to the term
“advocate and solicitor” in section 23A(1) by the Court of Appeal brings to the
forefront certain aspects of the section for consideration. Firstly, the words “has been” in section
23A(1), that is to say, “ … he has been an advocate and solicitor … ”, means,
on the authority of Mubarak Mazdoor v KK
Banerji AIR 1958 Al 323, that he has at sometime been an advocate and
solicitor and that it is not necessary for him to be one at the time of the
appointment. This means that a person
who has been admitted and enrolled as an advocate and solicitor for a period of
seven years in the past is now qualified in law to be a Chairman of the
“It is a familiar rule in the
construction of legal instruments, alike dictated by authority and common
sense, that common words in a statute are to be extended to all the objects
which, in their usual acceptation, they describe or denote, unless the context
indicates that such a construction would frustrate the real intention of the
draftsman.”
Thus the
purpose of the seven-year period in relation to a member of the judicial and
legal service can be used to determine the purpose of the same period in the
case of an advocate and solicitor. There
can be no dispute that the reference to a member of the judicial and legal
service is a reference to a person who has been employed as a legal
officer. The seven-year period in
relation to such an officer is therefore a reference to his working experience
in that capacity for the prescribed number of years. Similarly the need for a person to have been
an advocate and solicitor for seven years preceding his appointment is
obviously a reference to his practice or experience as such. The rationale
underlying the equation of the seven-year requirement for an advocate and
solicitor with a member of the judicial and legal service would promote and not
frustrate the intention of Parliament. The
conclusion is consistent with the speech from the Hansard of the Deputy
Minister of Labour in the Senate where he said:
“Tuan Yang Di-Pertua, perbicaraan di
Mahkamah Perusahaan masa kini semakin menjadi lebih legalistic, dengan
izin. Oleh itu, adalah dicadangkan
Presiden dan semua Pengerusi Mahkamah Perusahaan hendaklah berkelulusan
undang-undang dan berpengalaman sekurang-kurangnya 7 tahun sebagai peguambela
dan peguamcara atau telah berkhidmat 7 tahun dalam Perkhidmatan Perundangan dan
Kehakiman ataupun di dalam keduanya perkhidmatan sekali.”
It must
be added, as observed by the learned Judicial Commissioner in her Grounds of
Judgment, that a Court is entitled to refer to the Hansard as an aid to
interpretation when there is some ambiguity in the meaning of the words in a
statute or when a literal interpretation of it would lead to an absurdity (see Chor Phaik Har v Farlim Properties Sdn Bhd (1994)
4 CLJ 285). It is therefore clear that
the object of section 23A(1) in requiring a person to have been an advocate and
solicitor for seven years preceding his appointment is to ensure that he has
experience as one during the period specified.
It can now be discerned that the interpretation of section 23A(1) by the
Court of Appeal is one that is ambiguous while the High Court had adopted the
correct approach. The difference of
judicial opinion on the construction of section 23A(1) in the Courts below is
itself sufficient evidence of its ambiguity (see Restick v Crickmore (1994) 1 WLR 420; Chief
Adjudication Officer v Foster (1993) AC 754). The term “advocate and solicitor” must
therefore be construed in accordance with the preference stipulated in section
17A.
Be that as it may, such an approach will
only be possible if the language of section 23A(1) read with section 3 permits
it. As this Court observed in Kerajaan
“As the definition is clear and
unambiguous it cannot be ignored. As Bindra’s Interpretation of Statutes (7th
Ed) says at p 39:
‘When a Legislature defines the
language it uses, its definition is binding upon the Court and this is so even
though the definition does not coincide with the ordinary meaning of the word
used. It is not for the Court to ignore
the statutory definition and proceed to try and extract the true meaning of the
expression independently of it (Nand Rao
v Arunachalam AIR 1940 Mad 385). If
the Legislature’s intention is clear and unambiguous, it is obviously outside
the jurisdiction of the Court to correct or amend the definition in the
interpretation clause (Mordhwaj Singh v
State of
Thus
where a particular word is defined in a statute which narrows and restricts its
ordinary meaning the meaning given in the definition must be applied to the
word wherever it appears in the statute, unless the contrary is clearly
indicated (see Gian Chand v Bahadur Singh
AIR 1961 Punj 164). In this case
such a contrary intention appears in section 3 itself which makes the
definitions provided applicable “ … unless the context otherwise requires …
”. Thus where the definition provided is
inconsistent with the language and context of a section then it will not apply
to the interpretation of the section. In
support reference is made to the judgment of this Court in Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd (2006) 4 MLJ 113
at pp 123 - 124:
“In determining the proper
construction to be accorded to the word ‘proceeding’ in section 44(1) it must
be observed that the meaning of a word given in an Act of Parliament cannot be
blindly and slavishly applied each time it appears in the Act. This is made manifestly patent by section 3
itself which, like other definition provisions, makes the definitions provided
applicable ‘ … … … unless the context otherwise requires … … … ’. Thus as S K Das J said in Ram Narain v State of
‘The meanings of words and
expressions used in an Act must take their colour from the context in which
they appear.’
In Laxmana Rao v
This
principle is re-emphasised in section 3 because not only does the enacting part
of the section contain the words “ … unless the context otherwise requires … ”
but also the definition of “advocate and solicitor” itself is made applicable
only “ … where the context requires … ”.
The language of section 3 in its definition of “advocate and solicitor”
is therefore flexible and only applies where the context requires it. It can be ignored to suit the context in
which it is used.
It is therefore permissible to construe the term “advocate
and solicitor” in section 23A(1) as a reference to one in practice, as discussed
in an earlier part of the judgment, without being bound by section 3. This approach is also supported by section 3
of the Interpretation Act 1967 which defines an “advocate”, though not an
“advocate and solicitor”, as:
“ ‘advocate’ means a person entitled
to practise as an advocate or as an advocate and solicitor under the law in
force in any part of
A
person who is entitled to practise as an advocate and solicitor under the Legal
Profession Act 1976 is one with a practising certificate. Accordingly, the term “advocate and
solicitor” in section 23A(1) must be construed as a reference to an advocate
and solicitor who has been in practice under the Legal Profession Act
1976. This interpretation does not do
any violence to the language employed in section 23A(1) and is consistent with
the object of the section as discussed earlier.
It must thus be preferred in accordance with the requirement of section
17A. The answer to the question posed
for our determination would therefore be in the negative.
Our conclusion raises the critical
question of the validity of the awards handed down by the Respondent while
officiating as a Chairman of the
“We are unable to agree with the
submissions of the learned counsel for the appellants. The doctrine is now well established that
‘the acts of the Officers de facto performed by them within the scope of their
assumed official authority, in the interest of the public or third persons and
not for their own benefit, are generally as valid and binding, as if they were
the acts of officers de jure’ (Pulin
Behari v King Emperor, (1912) 15 Cal LJ 517 at page 574). As one of us had occasion to point out
earlier ‘the doctrine is founded on good sense, sound policy and practical
experience. It is aimed at the
prevention of public and private mischief and the protection of public and
private interest. It avoids endless
confusion and needless chaos. An illegal
appointment may be set aside and a proper appointment may be made, but the acts
of those who hold office de facto are not so easily undone and may have lasting
repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine’ (vide Immedisetti Ramkrishnaiah Sons v State of
In Pulin Behari v King Emperor, Sri Asutosh Mookerjee J, noticed that
in
In Milward v Thatcher, (1787) 2
TR 81 at p 87, Buller J said:
‘The question whether the judges
below be properly judges or not, can never be determined, it is sufficient if
they be judges de facto. Suppose a
person were even criminally convicted in a Court of Record, and the Recorder of
such Court were not duly elected, the conviction would still be good in law, he
being the judge de facto’.
In Scadding v Lorant, (1851) 3 HLC 418, the question arose whether a
rate for the relief of the poor was rendered invalid by the circumstance that
some of the vestry men who made it were vestry men de facto and not de
jure. The Lord Chancellor observed as
follows:
‘With regard to the competency of
the vestry men, who were vestry men de facto, but not vestry men de jure, to
make the rate, your Lordship will see at once the importance of that objection,
when you consider how many public officers and persons there are who were
charged with very important duties, and whose title to the office on the part
of the public cannot be ascertained at the time. You will at once see to what it would lead if
the validity of their acts, when in such office, depended upon the propriety of
their election. It might tend, if doubts
were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to
the obedience to public officers and it might also lead to persons, instead of
resorting to ordinary legal remedies to set right anything done by the
officers, taking the law into their own hands’.
Some interesting observations were
made by the Court of Appeal in
‘Where an office exists under the
law, it matters not how the appointment of the incumbent is made, so far as the
validity of his acts are concerned. It
is enough that he is clothed with the insignia of the office, and exercises its
powers and functions. … The official acts of such persons are recognised as
valid on grounds of public policy, and for the protection of those having
official business to transact’.
Scarman L J who differed from Lord
Denning on the question whether the High Court of Rhodesia was a
‘He (Lord Denning) invokes the
doctrine of recognition of the de facto judge and the doctrine of implied
mandate of necessity. I agree with much
of the thinking that lies behind his judgment.
I do not think that in an appropriate case our courts will recognise the
validity of judicial acts, even though they be the acts of a judge not lawfully
appointed or derive their authority from an unlawful government. But it is a fallacy to conclude that, because
in certain circumstances our Courts would recognise as valid the judicial acts
of an unlawful Court or a de facto judge, therefore, the Court thus recognised
is a British Court’.
The de facto doctrine has received
judicial recognition in the
‘We think that principle of public
policy, declared by the English Courts three centuries ago, which gave validity
to the official acts of persons who intruded themselves into an office to which
they had not been legally appointed, is as applicable to the conditions now
presented as they were to the conditions
that then confronted the English Judiciary.
We are not required to find a name by which officers are to be known,
who have acted under a statute that has subsequently been declared
unconstitutional, though we think such officers might aptly be called de facto
officers’.
In Norton v
‘The doctrine which gives validity
to acts of officers de facto whatever defects there may be in the legality of
their appointment or election is founded upon considerations of policy and
necessity, for the protection of the public and individuals whose interests may
be affected thereby. Offices are created
for the benefit of the public, and private parties are not permitted to inquire
into the title of persons clothed with the evidence of such offices and in
apparent possession of their powers and functions. For the good order and peace of society their
authority is to be respected and obeyed until in some regular mode prescribed
by law their title is investigated and determined. It is manifest that endless confusion would
result, if in every proceeding before such officers their title could be called
in question’.
In Cooley’s ‘Constitutional
Limitations’, Eighth Edition, Volume II p 1355, it is said:
‘An officer de facto is one who by
some colour or right is in possession of an office and for the time being
performs its duties with public acquiescence, though having no right in
fact. His colour of right may come from
an election or appointment made by some officer or body having colourable but
no actual right to make it; or made in
such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer
illegally removed or made in favour of a party not having the legal
qualifications; or it may come from
public acquiescence in the qualifications;
or it may come from public
acquiescence in the officer holding without performing the precedent
conditions, or holding over under claim of right after his legal right has been
terminated; or possibly from public
acquiescence alone when accompanied by such circumstances of official
reputation as are calculated to induce people, without inquiry, to submit to or
invoke official action on the supposition that the person claiming the office
is what he assumes to be. An intruder is
one who attempts to perform the duties of an office without authority of law,
and without the support of public acquiescence.
No one is under obligation to
recognise or respect the acts of an intruder, and for all legal purposes they
are absolutely void. But for the sake of
order and regularity, and to prevent confusion in the conduct of public
business and in security of private rights, the acts of officers de facto are
not suffered to be questioned because of the want of legal authority except by
some direct proceeding instituted for the purpose by the State or by some one
claiming the office de jure, or except when the person himself attempts to
build up some right, or claim some privilege or emolument, by reason of being
the officer which he claims to be. In
all other cases the acts of an officer de facto are as valid and effectual,
while he is suffered to retain the office as though he were an officer by
right, and the same legal consequences will flow from them for the protection
of the public and of third parties.
There is an important principle, which finds concise expression in the
legal maxim that the acts of officers de facto cannot be questioned
collaterally’.
In Black on judgments it is said,
‘A person may be entitled to his
designation although he is not a true and rightful incumbent of the office, yet
he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments
rendered and other acts performed by such a person who is ineligible to a judgeship
but who has nevertheless been duly appointed, and who exercises the power and
duties of the office is a de facto judge, and his acts are valid until he is
properly removed’.
The de facto doctrine has been
recognised by Indian Courts also. In Pulin Behari v King Emperor, (1912 – 15
Cal LJ 517) Sir Asutosh Mukerjee, J after tracing the history of the doctrine
in
‘The substance of the matter is that
the de facto doctrine was introduced into the law as a matter of policy and
necessity, to protect the interest of the public and the individual where these
interests were involved in the official acts of persons exercising the duties
of an office without being lawful officers.
The doctrine in fact is necessary to maintain the supremacy of the law
and to preserve peace and order in the community at large. Indeed, if any individual or body of
individuals were permitted, at his or their pleasure, to collaterally challenge
the authority of and to refuse obedience to the Government of the State and the
numerous functionaries through whom it exercised its various powers on the
ground of irregular existence or defective title, insubordination and disorder
of the worst kind would be encouraged.
For the good order and peace of society, their authority must be upheld
until in some regular mode their title is directly investigated and
determined’.
In P
‘This doctrine was engrafted as a
matter of policy and necessity to protect the interest of the public and
individuals involved in the official acts of persons exercising the duty of an
officer without actually being one in strict point of law. But although these officers are not officers
de jure they are by virtue of the particular circumstances, officers, in fact,
whose acts, public policy requires should be considered valid’.
In the judgment under appeal
Kuppuswami and Muktadar, JJ observed:
‘Logically speaking if a person who
has no authority to do so functions as a Judge and disposes of a case the
judgment rendered by him ought to be considered as void and illegal, but in
view of the considerable inconvenience which would be caused to the public in
holding as void judgments rendered by judges and other public officers whose
title to the office may be found to be defective at a later date, Courts in a number of countries have, from
ancient times evolved a principle of law that under certain conditions, the
acts of a Judge or officer not legally competent may acquire validity’.
A Judge, de facto, therefore, is one
who is not a mere intruder or usurper but one who holds office, under colour of
lawful authority, though his appointment is defective and may later be found to
be defective. Whatever be the defect of
his title to the office, judgments pronounced by him and acts done by him when
he was clothed with the powers and functions of the office, albeit unlawfully,
have the same efficacy as judgments pronounced and acts done by a Judge de
jure. Such is the de facto doctrine,
born of necessity and public policy to prevent needless confusion and endless
mischief. There is yet another rule also
based on public policy. The defective
appointment of a de facto Judge may be questioned directly in a proceeding to
which he may be a party but it cannot be permitted to be questioned in a
litigation between two private litigants, a litigation which is of no concern
or consequence to the Judge except as a Judge.
Two litigants litigating their private titles cannot be permitted to
bring in issue and litigate upon the title of a Judge to his office. Otherwise so soon as a Judge pronounces a
judgment a litigation may be commenced for a declaration that the judgment is
void because the Judge is no Judge. A
Judge’s title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on
validity of judicial appointments. To
question a Judge’s appointment in an appeal against his judgment is, of course,
such a collateral attack.”
This
rule of public policy is encapsulated in section 41(a) of the Interpretation
Act 1967 which provides that the proceedings of a board, commission, committee
or similar body established by law shall not be invalidated by any defect
afterwards discovered in the appointment or qualification of a person
purporting to be a member. The legal
position is therefore clear. Even though
the appointment of the Respondent is invalid the awards handed down by him were
done so in his capacity as a Chairman of the
In the upshot the appeal is allowed
with costs.
Date: 6
September 2006
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Federal Court
Counsel:
For the Appellant: V
K Raj
(
Ramdhari JBS and
Solicitors: Messrs
P Kuppusamy & Co
Advocates
and Solicitors
No
75-B, Jalan 1/12
46000
Petaling Jaya
For the Respondents:
(
Narkunavathy Sundareson with him )
Bahagian Guaman
Jabatan
Peguam Negara
Pusat
Pentadbiran Kerajaan Persekutuan
62512
Putrajaya
Watching Brief for
Bar Council: Anand
Ponnudurai