Sempena dgn Bersih 2.0 pd 9/7/2011 aku post di sini kertas kerja drpd seorang Hakim yg aku amat hormati yg aku pernah beberapa kali hadir di hadapan beliau.
HUMAN RIGHTS AND THE MALAYSIAN JUDICIAL SYSTEM*
by
DATO' ABDUL MALIK ISHAK**
I have the honour and the singular privilege of presenting this paper to this august gathering of international jurists, human rights advocates and legal luminaries.
In Malaysia, there is a universal concept of justice. We respect human life and we treat criminals justly and in accordance with law. We have attained a national system of justice for all. We do not exercise multiple justices. Everyone is equal before the law.
Our law has been fair and it is in accordance with human rights standards. We are very clear on this. It is for the well being of all Malaysians and for those who come to Malaysia.
Malaysia is a democratic country. The essential elements of democracy include respect for human rights and fundamental liberties. The link between democracy and human rights would be the rule of law. We are acutely aware of the need to administer the law peppered with human rights principles.
Even the Malaysian Government has acknowledged the importance of a national human rights commission to further promote and protect human rights in Malaysia. Towards this end, the Malaysian Government has set up SUHAKAM in the year 2000 via the Human Rights Commission of Malaysia Act 1999 (Act 597) (hereinafter referred to as the "Human Rights Act").
Briefly, the main functions of SUHAKAM are as follows:
(i) to promote awareness and provide education in relation to human rights;
(ii) to advise and assist the Government in formulating legislations and administrative directives and procedures and recommend the necessary measures to be taken;
(iii) to recommend to the Government to subscribe to certain treaties and other international instruments in the field of human rights; and
(iv) to enquire into complaints regarding infringements of human rights.
The phrase "human rights" is defined in s. 2 of the Human Rights Act by making reference:
to fundamental liberties as enshrined in Part II of the Federal Constitution.
Articles 5 to 13 of the Federal Constitution are found in Part II of the said Constitution. Article 5 makes reference to the liberty of the person. Article 6 talks of the prohibition of slavery and forced labour. Article 7 refers to the protection against retrospective criminal laws and repeated trials. According to art. 8 all persons are equal before the law and entitled to the equal protection of the law. Article 9 states that no citizen shall be banished or excluded from the Federation. Article 10 talks of freedom of speech, assembly and association. Whereas art. 11 allows freedom of religion. And art. 12 makes reference to the rights in respect of education. Finally, the rights to property can be found in art. 13.
It is the law that "an accused person is presumed to be innocent until he is proved guilty" (Yaakub bin Ahmad v. Public Prosecutor [1975] 2 MLJ 223, 224). And the Federal Constitution guarantees the right to be heard, the right to be defended by counsel of his or her choice as well as the right to a fair trial.
Two very important constitutional principles are contained in art. 5(3) of the Federal Constitution. The first would be in regard to the right to be informed of the grounds of arrest as soon as may be. Such constitutional right must be accorded in all cases of arrest irrespective of the statute under which the arrest was made. However, there may be occasions where this is not possible or it may not be necessary as stated by the House of Lords in Christie And Another v. Leachinsky [1947] AC 573 and cited with approval by the Federal Court in Abdul Rahman v. Tan Jo Koh [1967] 1 LNS 1. The circumstances may be stated as follows:
(i) where the arrested person must know the general nature of the alleged offence for which he is arrested particularly when he is caught red handed; and
(ii) where the arrested person creates a situation which makes it practically impossible to inform him - two examples need to be mentioned here, firstly, where the arrested person resists arrest by attacking the officer and, secondly, where the arrested person evades arrest by running away.
The second important constitutional principle concerns the right to counsel. That right appears to be an absolute right. According to the case of Saul Hamid Pakir Mohamed v. Public Prosecutor [1987] 2 CLJ 257; [1987] CLJ (Rep) 967, an arrested person has a right to be represented by a legal practitioner under remand proceedings before a Magistrate under s. 117 of the Criminal Procedure Code, unless the police can discharge the onus of satisfying the Magistrate that to allow the arrested person to exercise that right would result in undue interference in the course of investigation.
In Malaysia, when a case is brought before the court, the skill of the lawyers will be brought into play in that the outcome of the case would be dependent on the expertise of the lawyers in creating a reasonable doubt or establishing a technical flaw in the prosecution's case in order to secure an acquittal for the accused. And, on appeal, the appellate court may disagree entirely with the initial verdict and may substitute the acquittal with a conviction. This certainly speaks well for the process of justice in Malaysia.
The courts in Malaysia have administered the law effectively and promptly without distinction of any kind. We are not influenced by race, colour, gender, religion, language, political affiliation, national or social origin, accident of birth or any other factors. We administer the law fairly and without prejudice. All persons are entitled to equal protection of the law.
Judges and Magistrates hand down their decisions based on their own reasonings without outside interferences. All decisions are decided based on the evidence and the law. The Malaysian Judiciary uphold the rule of law vigorously. We are aware of the preamble to the Universal Declaration of Human Rights 1948 which states, inter alia, that human rights should be protected by the rule of law.
According to the late Justice Arulanandom in Re P.E. Long @ Jimmy & Ors; P.E. Long & Ors. v. Menteri Hal Ehwal Dalam Negeri Malaysia & Ors. [1976] 2 MLJ 133, 134, the question of deprivation of liberty in art. 5 of the Federal Constitution requires strict compliance with the law.
In Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors. v. Datuk James Wong Kim Min [1976] 1 LNS 129, the late Lee Hun Hoe CJ (Borneo), speaking for the Federal Court, laid down the law lucidly in this way:
In a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person of his liberty. The material provisions of the law authorising detention without trial must be strictly construed and safeguards which the law deliberately provides for the protection of any citizen must be liberally interpreted. Where the detention cannot be held to be in accordance with the procedure established by the law, the detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty.
The detainee was released by the court in Re Datuk James Wong Kim Min.
In Andrew s/o Thamboosamy v. Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156, 158, the Lord President of the then Federal Court, Suffian LP, writing for the Federal Court succinctly said:
With respect, we agree that any form of detention does violence to section 5(1) of the Constitution which reads:
5(1) No person shall be deprived of his ... personal liberty save in accordance with law.
and hence power given by law to detain must be construed strictly and in cases of doubt or ambiguity the court should lean in favour of the subject. Government is the most powerful body in the country and the court should be vigilant to see that Government does not exceed its power when dealing with individuals. But at the same time we are of the opinion that the problem of dealing with illegal immigrants is a matter of public policy to be decided by Parliament and by the Executive, that in this matter the proper authority for enacting the necessary legislation is Parliament and that if the Government exercises a power conferred on it by Parliament and keeps within the law, then the duty of the court is quite clear; the court should simply apply the law, no matter how harsh its effect may be on the immigrant. His remedy is then not judicial, but political and administrative.
Clause (1) of art. 5 of the Federal Constitution states that, "No person shall be deprived of his life or personal liberty save in accordance with law". According to the Federal Court in Government of Malaysia & Ors v. Loh Wai Kong [1979] 2 MLJ 33, the words "personal liberty" in cl. (1) of art. 5 does not include the right to travel overseas or the right to a passport. In delivering the judgment of the court, Suffian LP said at p. 36 that "... a citizen ... does not have a right, not even a qualified right, to a passport ..." And his Lordship continued to say that "... the issue of a passport is, ... only a privilege ... The Executive has a discretion whether or not to issue a passport." But, his Lordship added further that, "If it is established that Government has acted mala fide or has in other ways abused this discretionary power, the court may, ... review Government's action and make the appropriate order ..."
In Attorney-General, Malaysia v. Chiow Thiam Guan [1983] 1 CLJ 27; [1983] CLJ (Rep) 462, Hashim Yeop Sani J, held that if Parliament deems it necessary that the death penalty should be mandatory for a person convicted under s. 57(1) of the Internal Security Act neither art. 5(1) nor art. 8 of the Federal Constitution would bar the sentence from being imposed.
Interestingly, Ajaib Singh J, in PP v. Yee Kim Seng [1983] 1 CLJ 38; [1983] CLJ (Rep) 824 held that the Internal Security Act was a perfectly valid law passed by Parliament. At p. 826, His Lordship said that, "art. 5(1) ... is not infringed because the accused is not going to be deprived of his life or personal liberty except in accordance with law".
It is comforting to know that a death row convict has still recourse to seek a pardon. This is provided for in art. 42 of the Federal Constitution which deals with the powers of the Yang di-Pertuan Agong, the Rulers and Governors to grant pardons, reprieves and respites to convicted death row prisoners. This must surely be another human rights norm.
All the judges in Malaysia honourably carry out their tasks by giving recognition to the fundamental values of liberty, equality and justice. It is correct to say that the Malaysian Judiciary is not a monolithic institution. Currently, there are 175 Magistrates, 118 Sessions Court Judges, 38 Judicial Commissioners, 47 High Court Judges, 20 judges in the Court of Appeal and 5 Federal Court judges excluding the top four heads of the Judiciary. They are all independent and competent to decide on any issue that may crop up.
Superior Court Judges have each taken their oath of office that they will faithfully discharge their judicial duties to the best of their ability and that they will bear true faith and allegiance to Malaysia and will preserve and defend its Constitution.
When we talk about justice, we directly bring with it the whole array of legislations and the way in which they are implemented. We also recognise that human rights, in the context of the administration of justice, is not simple and straightforward. It is both complex and challenging. It encompasses a wide field. However, it is quite easy to integrate human rights into the structures and practices of any judicial system. The pertinent question to ask is this: What do we understand by the concept of human rights? Broadly speaking, it concerns the plight of the people.
Notwithstanding the definition of "human rights" in s. 2 of the Human Rights Act as alluded to earlier, some sceptics may argue that human rights cover a wider field and have no limits and are absolute and that it should be preserved at all costs. Others would argue otherwise.
A fair and an effective administration of justice are the hallmarks of the rule of law. Firstly, it is a well established human rights norm that any individual must have unrestricted and effective right of access to the courts to establish his or her rights against the State and its agencies. A classic example would be the case of an individual who is unlawfully arrested and detained by the police. That individual has the right to gain access to the court to obtain his or her release by an urgent writ of habeas corpus application. But a writ of habeas corpus will not lie in respect of an accused who has been tried, convicted and sentenced by a court of competent jurisdiction (Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481, CA). In Malaysia, the right of unimpeded access to the courts exist notwithstanding that the outcome may be negative and this means that Malaysia has satisfied the human rights norm. Secondly, another human rights norm is this. That every individual has a right to a fair trial in both civil and criminal cases before an independent and impartial judge.
In Malaysia, a judge decides according to the facts and the law. And when a judge decides, one party is bound to be dissatisfied. You cannot please everyone. Sometimes, both parties are not satisfied and, if this happens, the Rules provide for cross-appeals. This is quite common in Malaysia. When this happens, it can be said that the Malaysian Judiciary is independent.
If a law is unconstitutional, the court should strike it out. And if an Executive act is unlawful, the court should not hesitate to quash it. In my view, the Legislature, the Executive and the Judiciary should act in accordance with law.
There is a paradigm shift in favour of applying human rights principles within the Malaysian Judiciary. Two cases that relate to native customary rights such as Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [2002] 4 CLJ 259; and Kerajaan Negeri Selangor & Ors v. Sagong Tasi & Ors [2005] 4 CLJ 169, are classic examples of that paradigm shift.
In Adong Kuwau, the Federal Court speaking through Abdul Malek Ahmad FCJ affirmed the quantum of RM40,000 for getting up and also awarded interest even though it was not specifically claimed. The judgment was handed down in favour of each of the 52 aborigines.
Gopal Sri Ram JCA writing for the Court of Appeal in Sagong bin Tasi aptly said at p. 182, "... that the fact that the radical title to land is vested in the Sovereign or the State (as is the case here) is not an ipse dixit answer to a claim of customary title". And at p. 185, his Lordship said:
Now, the extrinsic material to which I have referred makes it abundantly clear that the purpose of the 1954 Act was to protect and uplift the First Peoples of this country. It is therefore fundamentally a human rights statute. It acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation.
No one should be condemned unless he or she has been fairly tried in accordance with law. And when the court quashes a conviction obtained after an unfair trial, the right to a fair trial will be affirmed and vindicated.
The existence of the rule of law demands that the Judiciary should be independent and impartial. There is no place for judicial independence in an authoritarian State. Fortunately, in Malaysia the rule of law prevails.
A fair pre-trial disclosure too ought to be recognised as a universal human rights norm. And that must be left to the discretion of the prosecution to decide whether to disclose to the defence all relevant information which has a bearing in the case. Ultimately it is the court who has to be the final arbiter whether to allow disclosure or otherwise.
With that, Ladies and Gentlemen, I thank you.
Endnotes:
* This paper was presented by the author at the Judicial Colloquium On The Domestic Application Of International Human Rights Norms organised by the OHCHR Regional Office for South East Asia on 23 to 25 March 2009 held in Bangkok, Thailand. The Malaysian delegation was led by the Right Honourable Tan Sri Dato' Seri Zaki bin Tun Azmi, Chief Justice of Malaysia accompanied by the author together with YA Dato' Ahmad bin Haji Maarop JCA, YA Dato' Rohana binti Yusof J, YA Puan Rhodzariah binti Bujang JC, and Tuan Syed Adam Alhabshi (Special Officer to the Chief Justice).
** Judge Court of Appeal.
Tuesday, June 21, 2011
Thursday, June 9, 2011
Friday, June 3, 2011
Cabaran TKP PAS
Tahniah kpd Nik Abduh yg menang jawatan Timbalan Ketua Pemuda PAS baru baru ini.Kemenangan ini sedikit se
Banyak di dorong oleh nama besar dibawa oleh Nik Abduh itu sendiri.Walau apapun sebab perwakilan memilih beliau dlm pertandingan empat penjuru ini sudah tidak penting tetapi ahli ahli dan umum akan melihat apakah peranan dan tanggungjawab yg akan dipegang dan dibawa oleh beliau selepas ini khususnya dlm menghadapi PRU13.
Dengan report card yg sederhana sebelum ini apakah beliau mampu untuk menggerakkan pemuda ke arah yg lebih progresif utk memenangi PRU13 yg jelas kini boleh dicapai.Ramai yg takut jika hasrat besar ini tidak kesampaian dan akhirnya beliau hanya dipetiaiskan shj oleh KP yg menang tanpa bertanding setelah pencabar beliau menarik diri.Adakah pencabar KP ini sebenarnya di cah keting hanya Allah Taala yg tahu walaupun ada suara suara sumbang berbisik begitu.
Penulis juga ingin menunggu dan melihat adakah KP akan meminta kerusi selamat ketika PRU13 nanti sesuai dgn jawatan Ketua yg dipegang beliau.
Pemilihan telah selesai maka diharapkan team baru ini akan terus memulakan gerakkerja khususnya dlm menghadapi PRU13 dan mengeratkan hubungan kerjasama di dlm Pakatan spt ditekankan oleh Tuan Guru Presiden dlm ucapan semalam.
Banyak di dorong oleh nama besar dibawa oleh Nik Abduh itu sendiri.Walau apapun sebab perwakilan memilih beliau dlm pertandingan empat penjuru ini sudah tidak penting tetapi ahli ahli dan umum akan melihat apakah peranan dan tanggungjawab yg akan dipegang dan dibawa oleh beliau selepas ini khususnya dlm menghadapi PRU13.
Dengan report card yg sederhana sebelum ini apakah beliau mampu untuk menggerakkan pemuda ke arah yg lebih progresif utk memenangi PRU13 yg jelas kini boleh dicapai.Ramai yg takut jika hasrat besar ini tidak kesampaian dan akhirnya beliau hanya dipetiaiskan shj oleh KP yg menang tanpa bertanding setelah pencabar beliau menarik diri.Adakah pencabar KP ini sebenarnya di cah keting hanya Allah Taala yg tahu walaupun ada suara suara sumbang berbisik begitu.
Penulis juga ingin menunggu dan melihat adakah KP akan meminta kerusi selamat ketika PRU13 nanti sesuai dgn jawatan Ketua yg dipegang beliau.
Pemilihan telah selesai maka diharapkan team baru ini akan terus memulakan gerakkerja khususnya dlm menghadapi PRU13 dan mengeratkan hubungan kerjasama di dlm Pakatan spt ditekankan oleh Tuan Guru Presiden dlm ucapan semalam.
Monday, May 30, 2011
Local Authority
[1998] 5 CLJ 367
LEE HAY v. YANG DI PERTUA MAJLIS DAERAH HULU LANGAT & ANOR
HIGH COURT MALAYA, SHAH ALAM
FAIZA TAMBY CHIK J
[SUIT NO: 22-81-93]
25 FEBRUARY 1998
[Order in terms of plaintiff's application.]
Kes yg menarik
LEE HAY v. YANG DI PERTUA MAJLIS DAERAH HULU LANGAT & ANOR
HIGH COURT MALAYA, SHAH ALAM
FAIZA TAMBY CHIK J
[SUIT NO: 22-81-93]
25 FEBRUARY 1998
[Order in terms of plaintiff's application.]
Kes yg menarik
Had Masa Buat KWSP
LEMBAGA KUMPULAN WANG SIMPANAN PEKERJA v. CARIMONDE SDN BHD & ORS
HIGH COURT, PENANG
VARGHESE GEORGE VARUGHESE JC
[CIVIL APPEAL NO: 12A-403-2010]
31 JANUARY 2011
IN THE HIGH COURT OF MALAYA AT PENANG
[CIVIL APPEAL NO: 12A-403-2010]
BETWEEN
LEMBAGA KUMPULAN WANG SIMPANAN PEKERJA
... Appellant
AND
1. CARIMONDE SDN BHD
... Respondents
2. SOO BENG CHENG
3. TEH BENG CHNEAH
GROUNDS OF DECISION
1. This was an appeal by the Appellant/Plaintiff (Plaintiff) against the Learned Session Judge's decision of 12.05.2010 striking out the Summon and Statement of Claim on the grounds that the Plaintiff's action was statute-barred. No 'Alasan Penghakiman' was available but it appears that the Sessions Judge was persuaded to do so on an oral application of the Respondents/Defendants (Defendants), on the grounds that the Plaintiff, regardless of sections 46 (1) and 65 (1) of the Employees Provident Fund Act, 1991 (EPF Act), was not exempted from the statutory force of the Limitation Act 1953 (LAct).
Background
2. The Plaintiff commenced an action at the Session Court on 21.07.2006 to recover jointly and severally from the Defendants what is alleged to be unremitted contributions for the employees of the 1st Defendant for the period July 1999 to October 2000 (arrears), together with certain "dividends' and "interest" accruing upon the said sum in arrears. The 2nd and 3rd Defendants were the Directors of the 1st Defendant.
3. The Defendants had on 27.10.2006 filed a Statement of Defence to the said claim.
4. In May 2007 the Plaintiff proceeded to file an application pursuant to Order 26A of SCR 1980 for summary judgment to be entered against all the Defendants in the action. However before that application was dealt with, the Plaintiff filed applications to amend the Statement of Claim and also to amend the Order 26A application via Kandungan 8 (21.05.2007) and Kandungan 10 (31.05.2007), respectively.
5. In response to the Plaintiffs applications, the 3rd Defendant, on behalf of the Defendants, filed two separate Affidavit Balasan (both affirmed on 17.07.2007) contesting the said applications of the Plaintiff to amend the Statement of Claim and the Order 26A application.
6. It is noteworthy that in the two Afidavit Balasan, the Defendants did raise the issue that the Plaintiff's action was statute-barred. We find identical averments in the said affidavits in the following terms:
"..... selanjutnya menegaskan bahawa tuntutan Plaintif sama sekali adalah terhalang oleh had masa memandangkan tuntutan Plaintiff adalah untuk tunggakan caruman daripada tempoh Julai 1999 sehingga Oktober 2000 di mana Plaintiff sepatutnya telah memfailkan tuntutan Plaintiff tersebut sebelum Julai 2005 akan tetapi Plaintif hanya menfailkan Saman dan Pernayataan Tuntutan Plaintif pada 12.07.2006 iaitu di luar masa yang diperuntukkan di bawah Undang-Undang ..."
7. From the Appeal Record, there does not appear to be any affidavit in response filed for the Plaintiff, further in the matter.
8. The Defendants' oral application to strike out the Summon and Statement of Claim adverted to above, was apparently made during the hearing of Kandungan 8 and Kandungan 10.
9. In the event both Kandungan 8 and Kandungan 10 of the Plaintiff were dismissed on the 23.04.2010.
On 12.05.2010 the Learned Judge proceeded to allow the oral application of the Defendants to strike out the Summons and Statement of Claim and it is against that decision to strike out that this appeal is being brought by the Plaintiff.
10. By the time this appeal came up for disposal the 1st. Defendant had been wound-up and the 2nd. Defendant had been adjudicated a bankrupt. The appeal was only being contested by the 3rd. Defendant.
Plaintiff's contention in summary
11. The Plaintiff's principal contention was that the terms "... notwithstanding anything to the contrary in this Act or in any other written law ..." in section 46(1), and "Notwithstanding the provisions of any other written law ..." in the opening lines of section 65(1) of the EPF Act excluded or ousted as a whole the provisions of the LAct in respect of all proceedings brought by the Plaintiff to recover arrears of contribution. In other words, actions to recover such arrears against errant employers and their directors as empowered under the EPF Act (a unique statute for the benefit of employees as was argued) were not caught by the statute-bar of six years under the LAct for any such recovery action to be commenced.
12. Basically the Plaintiff cited three decisions of the courts in support of the argument above. It was contended that in Kekatong Sdn Bhd v. Bumiputra-Commercce Bank Berhad & Anor [2002] 7 CLJ 175; [2002] 6 MLJ 186, where there arose a conflict between two written law, it had been held that the provisions of a specific and subsequent legislation, there the Pengurusan Danaharta Nasional Bhd Act 1998, prevailed over the operation of the general provisions of the LAct.
13. Counsel for the Plaintiff also referred to two recent decisions where a similar issue as to the effect of the highlighted terms in s. 46(1) and 65(1) as above, were considered. Hadariah JC in Lembaga Kumpulan Wang Simpanan Pekerja v. Lim Kek Bee & Anor - (unreported) had considered those provisions and also specifically the effect of the amendment made to s. 65(1) (by Act A914) by the insertion of the words/clause "Notwithstanding the provisions of any other written law ..." and had held that the intention of the legislature was to exclude applicability of other written law including the LAct in so far as proceedings brought under the EPF Act was concerned.
14. Similarly, Zabariah JC (as she then was) in Lembaga Kumpulan Simpanan Wang Pekerja v Manfred Smisek & 5 Ors [2009] 1 LNS 1719 had concluded that by those qualifying words in s. 46(1) and 65(1) of the EPF Act, the provisions of the LAct had been effectively excluded in the case of proceedings brought pursuant to the EPF Act.
15. The Plaintiff in reply-submissions also raised the issue that 'limitation' as a defence had not been expressly pleaded by the Defendants as required under section 4 of the LAct. This therefore, it was further argued, precluded the Defendants from pursuing with this line of defence to the Plaintiff's action, in any event.
Defendants' contention in summary
16. The Defendants' position was that the monies being sought to be recovered from the Defendants were in respect of alleged unremitted contributions in 1999 and the action filed in 2006 was clearly statute-barred pursuant to the provisions of the LAct. The applicability of the LAct to such recovery actions by the Plaintiff, it was contented, was not excluded at all by s. 46(1) and s. 65(1) of the EPF Act as presently worded.
The words "... notwithstanding anything to the contrary in this Act or in any other written law ..." in section 46(1) and "Notwithstanding the provisions of any other written law ..." in the opening lines of section 65(1) of the EPF Act, it was pointed out by Counsel for the 3rd Defendant, was in the nature of what is recognized in law as 'non obstante' clause (see: Balakrishnan v. Ketua Pengarah Perhidmatan Awam Malaysia & Anor [1981] 1 LNS 64; [1981] 2 MLJ 259 at p 262 where the Federal Court observed: "... GO 44 ... opens with the significant non obstante clause 'Notwithstanding these General Orders ...' making it quite separate and distinct from the preceding three parts of the GO dealing with conduct, disciplinary procedure and general provisions pertaining to disciplinary punishments. GO 44 goes therefore beyond and is additional to what precedes it").
17. The effect of such a non obstante clause, it was argued, was not to exclude fully the whole of all other written law but only those provisions in other legislation or such part of other law which were in conflict, or which contradicted or clashed when the subject matter or intention or the scope behind the provision bearing the non-obstante which was to be established upon a further examination. Here, it was contended that the object behind s. 46 (1) and 65 (1) of the EPF Act did not involve or deal with the subject of "limitation period" as was stipulated in the LAct, at all.
18. It was also argued for the Defendants that should it have been the intention of the legislature to exclude the limitation period from applying to all recovery actions under the EPF Act, then the provisions should have mirrored the more specific words found in section 11P(d) of the National Service Act, 1952 which was in the following terms:
"Nothing in any other written law which prescribes for a period of limitation respecting the time for the hearing and determining of offences shall apply in the case of any proceedings so instituted as aforesaid."
19. It was further contented for the Defendants that for an exclusion of the LAct to be valid in law, section 3 of the LAct itself made it a requirement that the other written law in question should prescribe some other or alternative period of limitation. This, it was highlighted by Counsel, was glaringly absent in the case of the EPF Act in any event.
20. In response to the Plaintiff's contention that for 'limitation' to be pursued as a defence, it ought to be in the first place specifically pleaded, the Defendants' position was that this was not an absolute must as the highest courts in the country have allowed the defence of limitation to be still pursued, notwithstanding that it was not expressly pleaded, particularly, where the other party had notice that this was a defence that would be taken in the action.
Issues before the Court
21. In my assessment there were therefore two basic issues before the Court for determination in this appeal. They were:
(i) Whether the 'non obstante' clauses in s. 46(1) and s. 65(1) of the EPF Act had the effect of completely ousting the applicability of LAct, with the result that any recovery action commenced by the Plaintiff against an errant employer (incorporated company) and personally against the Directors of the entity, as was the case here, was not subject to any limitation period at all; and
(ii) Whether the Defendants in this case were absolutely precluded from raising the defence of 'limitation' since no such defence had been expressly pleaded in the Statement of Defence of the Defendants that had been filed in the action.
The approach when dealing with a non obstante clause
22. In the recent decision of the Federal Court in Perbadanan Kemajuan Kraftangan Malaysia v. DW Margaret David Wilson [2010] 5 CLJ 899, Heliliah Mohamed Yusoff FCJ noted that: "The term 'notwithstanding' means generally 'not to stand against' or 'in the way' or overriding" and went on to cite with approval a quote from the judgement of the Indian Supreme Court in Union of India v. I C Lala [1973] 2 SCC 72 at p. 77 which was as follows:
"The words notwithstanding anything contained in the Code of Criminal Procedure found at the beginning of s. 5A(1) of the Prevention of Corruption Act, 1947 (now s. 17 Prevention of Corruption Act 1988) merely carve out a limited exemption from the provision of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate offences mentioned in the section and to arrest without warrant. It does not mean that the whole of the Code of criminal procedure ... is made inapplicable."
(underlining mine for emphasis)
23. The approach to be taken in interpreting a provision containing an non obstante clause was more pointedly stated in yet another judgment of the Indian Supreme Court, that is in the case of A.G. Varadarajulu & Anor v. State of Tamil Nadu & Ors AIR [1998] SC 1388 where at p. 1392 it declared:
"It is well settled that in dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. .... the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from the provisions of the same statute or other statute but for that reason alone we must determine the scope of the provision strictly. When the section containing the said clause does not refer to any particular provision which it intends to override but refers to the statute generally, it is not permissible to hold that it excludes the whole Act and stands alone all by itself. A search has, therefore, to be made with a view of determining which provision answers the description and which does not."
(Emphasis mine)
In that case, the issue of interpretation centered on whether one section excluded the application of another section in the same statute but to me the principle to be drawn was the same, namely, that where the non obstante clause refers generally without stating the specific provision or statute to be overridden, it is not permissible to exclude per se all other legislation or provisions in force in other legislations. It does not automatically displace or override all other legal provisions.
24. The extent of such intended exclusion must however be worked out from a further examination of the objective or scope or purpose behind the provisions where the non obstante clause is adopted. Only where then there arise a clash or a conflict between the specific statutory objective behind that provision and such other law on the same subject, would the other law be held to be excluded from being operative.
25. I therefore agree with submission of Counsel for the 3rd. Defendant that the Court should in the instant case, firstly, embark upon a further examination to determine the intention or objective behind s. 46(1) and s. 65(1) of the EPF Act. This was to ascertain whether the statutory intent or scope behind those two sections were in conflict with the limitation provisions of the LAct.
26. It is my conclusion therefore that in law the non obstante terms in s. 46 (1) and/or s. 65 (1) of the EPF Act, generally worded as they are without specific reference to any particular provision or legislation, does not go to exclude or oust the provisions of the LAct as a whole. Following from that there must then be a further examination undertaken by the court as to what was the specific legislative objective or the 'mischief intended to be cured by those sections in the EPF Act and whether in applying the law, a conflict or clash arose between that statutory objective and the law as found in those sections of the EPF Actand the other legislation or provisions on the same area of law.
Only if there was any such a conflict or clash between those provisions on the same subject, would the area in law covered by those sections in the EPF Act prevail to the exclusion of any conflicting other legal provision on that subject.
27. The attention of my sisters Hadariah JC and Zabariah JC in Lembaga Kumpulan Wang Simpanan Pekerja v. Lim Kek Bee & Anor and Lembaga Kumpulan Simpanan Wang Pekerja v. Manfred Smisek & 5 Ors respectively, appear not to have been drawn to the serious implication that surround the use of a non obstante clause in legislations and also to the proper approach to be adopted in interpreting the effect of such a clause as is found in s. 46 (1) and s. 65(1) of the EPF Act. With respect therefore, I have to disagree with the conclusions reached in those two decisions where it was held in a broad sweep, so to speak, that recovery actions by the Plaintiff under the EPF Act were not subject to or restricted by such limitation period as spelt out in the LAct.
Section 46 (1)
28.Section 46 (1) of the EPF Act reads as follows:
46. Joint and several liability of directors, etc
(1) Where any contributions remaining unpaid by a company, a firm or an association of persons, then, notwithstanding anything to the contrary in this Act or any other written law, the directors of such company during such period in which contributions were liable to be paid, or the partners of such firms, including any persons who were directors of such firms during such period in which contribution were liable to be paid, or the office-bearers of such association of persons, including any persons who were office-bearers of such association during such period in which contributions were liable to be paid, as the case may be, shall together with the company, firm or association of persons liable to pay the said contributions, be jointly and severally liable for the contribution due and payable to the Fund."
The language of s. 46(1), Counsel argued, clearly demonstrated that where, amongst others, an incorporated company with limited liability was the defaulting party the provision was intended 'to lift the corporate veil' and to impose personal liability on Directors of the company in default to settle the debts of the company.
Such a conclusion, it was contented further, was fortified by the marginal notes to that s. 46(1) in the following terms: 'Joint and several liability of directors etc.' It is settled law now that assistance in interpretation of statutory provisions may also be drawn from marginal notes to that section in the legislation itself: (Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105 (FC); Chai Siew Yin v. Leong Wee Shin [2004] 1 CLJ 752 (CA).)
29. I accept those submissions of Counsel for the 3rd Defendant and hold that it is clearly discernable from a reading of s. 46 of the EPF Act in its entirety that the legislative intent or purpose behind s. 46(1) was definitely to provide an additional right or recourse, jointly and severally, against directors or responsible individuals or officers of a defaulting company, partnership or association when, as the law ordinarily stood, there was no such right where the debtor was an incorporated company or the law was ambiguous in the case of partnerships and associations. (See also the decisions in Ong Kim Chuan & Anor v. Lembaga Kumpulan Wang Simpanan Pekerja [2009] 6 CLJ 586 (CA) and Lembaga Kumpulan Wang Simpanan Pekerja v. Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236). In effect therefore, an unequivocal statutory cause of action against directors or responsible individuals and officers of errant entities was being created by this provision, namely s. 46 (1) in the EPF Act.
30. Accordingly, what was being excluded by the non obstante clause in s. 46(1)- '... notwithstanding anything contrary in this Act or any other written law ...' - were only such specific provisions in the EPF Act itself or in other legislation that were not in accord with this statutory objective or scope underlying s. 46(1) namely to impose liability, inter alia, on directors of company to pay for the arrears of employees' contributions owed by a company.
Section 65(1)
31.Section 65 (1) of the EPF Act was as follows:
"65. Civil proceedings to recover contributions
(1) Notwithstanding the provisions of any other written law all contributions payable under this Act may, without prejudice to any other remedy, be recoverable by the Board summarily as a civil debt."
Counsel for the 3rd Defendant in his submissions emphasized that this was an enabling provision to provide for a right to civil recovery simultaneously with criminal prosecution and, more importantly, to overcome any contention that the cause of action to recover defaulted contributions was only vested in the employees concerned and not the Plaintiff's Board. In other words, it was contended that the provision was intended to give locus standi to the Board of the Plaintiff to institute civil proceedings to recover dues -notwithstanding the provisions of any other written law.(See: Lembaga Kumpulan Wang Simpanan Pekerja v. Shaharuddin Omar & Ors [2008] 8 CLJ 684).
32. Accordingly, any provision in any other legislation that had the effect of denying the right of the Plaintiffs Board to bring civil proceedings independently in its name to recover arrears of contributions (including dividends and interest due on any contribution - s. 65(3)) as a civil debt was what was intended to be excluded and s. 65(1) would prevail in such event of conflict between this section and such provisions of the other written law.
33. Counsel for the Plaintiff however pointed out that the non obstante clause in s. 65(1) - 'Notwithstanding the provision of any other written law ...' - was not in the original legislation but was only later introduced as an amendment (Act A914) to the EPF Act (effective from 01.08.1995). It was her argument that the provision as it existed before the amendment was sufficient enough to provide the Board of the Plaintiff with the locus standi to pursue a civil debt and accordingly the amendments were in particular intended to oust the LAct since the Plaintiff was under the scheme of the EPF Act, the 'trustee of the Fund' (s. 25 EPF Act) and monies to be recovered as a civil debt were for the benefit of employees, the beneficiaries of the Fund.
I could not however see any nexus between those facts as they may be and how they expressly or impliedly could have displaced as claimed the statutory limitation period laid out in the LAct.
Could that have been the legislative intent behind the amendment to s. 65(1) of the EPF Act which introduced the non obstante terms to that section? Surely if that was the intention of the legislature behind the amendments, as argued, then it ought to have been laid down in more precise and express terms as we have in section 11P(d) of the National Service Act 1952:-
"Nothing in any other written law which prescribes for a period of limitation respecting the time for the hearing and determining of offences shall apply in the case of any proceedings so instituted as aforesaid".
Although in this National Service Act 1952 it referred to exclusion of limitation period in regard to criminal proceedings to be instituted, I do not see any reason why the same principles of statutory interpretation and exactitude should not have been adopted if that was the intent behind the use of the non obstante clauses not just in s. 65(1) but in both s. 45(1) and s. 65(1)of the EPF Act.
34. Similarly, as in the case of s. 45(1) of the EPF Act, the Court therefore in interpreting what was the extent of exclusion allowed by the non obstante terms in s. 65(1) - 'Notwithstanding the provisions of any other written law'- had firstly to determine the statutory objective or purpose behind that section. In this respect, I agree with the submissions of Counsel for the 3rd. Defendant that the statutory intent of s. 65(1) was to enable the Board to have the locus standi to bring proceedings to recover unremitted contributions as a civil debt apart from the criminal proceedings envisaged in the EPF Act. What could therefore be effectively overridden or excluded by the use of the non obstante clause was only provisions in any other written law that conflicted or clashed with this statutory objective or scope of s. 65(1) of the EPF Act.
35. The question then before the Court was whether there was any conflict or clash between the statutory objective or purpose behind s. 45(1) and s. 65(1) of the EPF Act (or either of them) with the terms of the LAct, in particular the provisions therein setting the statutory deadlines for bringing actions in contract or tort, generally within six years of the cause of action arising. I could not find any such conflict or clash between such objective and the subject of time-bar or limitation found in the LAct. The statutory intent or scope of sections 45 and 65 of the EPF, as discussed above, were not at all or remotely even connected to the issue of limitation.
The non obstante clauses in those sections, that is, s. 45(1) and s. 65(1) of the EPF Act, were in wide and general terms and for the reasons discussed above did not in my assessment override or exclude the LAct as a whole or any specific limitation provision of that legislation.
36. For completeness I should also state that I also found merit in the submission of Counsel for the 3rd Defendant that s. 3 of the LAct required another period of limitation to be prescribed in whatever legislation that intended to displace or vary the statutory limitation period laid out in the LAct. Section 3 of the LAct reads:
"This Act does not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration ....".
As noted above no such alternative period of limitation was provided for in any event in the EPF Act.
37. Obviously, there are good policy reasons why an alternative limitation period should be prescribed in any legislation whose intention was to displace the provisions of the LAct, that is, either reducing or extending the time-bar for civil proceedings to be brought against a subject. For otherwise it would have meant that one is left open for his entire lifetime exposed to likely suits or proceedings in certain situations. The law only assist those who proceed without delay to enforce whatever rights and remedies they have and generally (subject to some exceptions) the period of six years from the time a cause of action arising has been fixed by statute to be a fair period obviously giving consideration to the burden on a likely defendant to preserve documents and secure relevant witnesses to resist any such potential action against him in the future.
38. I therefore hold that the Plaintiff had not been excluded or exempted from any of the provisions of the LAct by virtue of s. 45(1) and/or s. 65(1) of the EPF Act, as those provisions are presently worded and found in the statute book. The role of the court is to interpret and apply the law and not to create new law.
'Limitation' not pleaded as a defence
39. Counsel for the Plaintiff referred to s. 4 of the LAct and submitted that the Defendants should in any event be precluded from relying on the issue of 'limitation' to strike out the Summons and Statement of Claim as the defence of "limitation" was not in the first place specifically pleaded in the Statement of Defence filed by the Defendants in the action. Section 4 reads:
"4. Limitation not to operate as a bar unless specially pleaded.
Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded."
40. The rationale for the requirement that the defence of limitation must be expressly pleaded has been drilled into us from our 'procedure and pleadings' classes in law school. Whether limitation has set in or not is a question of fact (as opposed to law) and therefore it had to be specifically pleaded for the opposing party not to be taken by surprise by that issue in the conduct of their case.
41. Counsel for the Defendants on the other hand contended that this was not an absolute rule or one cast in stone. He relied on the Federal Court judgments in Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663, and Hj Hussain Hj Ali & Ors v. Datuk Hj Mohamed Yaacob & Ors [1983] CLJ (Rep) 165; [1983] 2 CLJ 68 as support for the proposition that so long as the Plaintiff knew that the Defendants were going to raise the issue of 'limitation', there was no requirement that it should be expressly set in a statement of defence.
Counsel for the 3rd Defendant also drew attention to the fact that the Plaintiff had not raised any such objection at the Sessions Court stage when the Defendants' oral application to strike out was considered and the Plaintiff had only now in reply to Defendants' submissions against the appeal chosen to raise this issue pertaining to the absence of a specific defence of 'limitation' in the Statement of Defence.
42. The two Federal Court decisions cited by the 3rd Defendant's Counsel, no doubt were cases where no statements of defence had been filed and they were in the context of proceedings to strike out the actions under O. 18 r. 19 of the Rules of the High Court 1980 before any defence was filed.
Would it then be any different that in this instant case a Statement of Defence had been filed but at an early stage of the proceedings itself (in the context of Plaintiff's applications for amendment including to the Statement of Claim), the Defendants had already given notice through their Afidavit Balasan that their defence would be that the action was not sustainable as it was statute-barred? I should not think so.
43. The Plaintiff had sufficient notice of this defence to be mounted by the Defendants to the action.
The same principles that can be extracted from the Federal Court decisions can be applied in the situation obtaining in this case, particularly if one is mindful that should the Plaintiff had been successful in amending their Statement of Claim, the Defendants would have had a corresponding right to amend their Statement of Defence. Nothing would have restricted the Defendants from then amending their pleadings to include a specific defence that the action was statute-barred. In short the so called defect in the pleading could and would have been cured in any case if the matter proceeded further.
44. Such an objection should have been taken by the Plaintiff in any case earlier in the proceedings and not just at this stage if the Plaintiff was indeed serious about the same. It however appears to me that the Plaintiff and the learned Sessions Judge acted or proceeded to deal with the Defendants' oral application to strike out the action (notwithstanding no express defence of limitation being pleaded), fully conscious of and recognising the Defendants' right always to amend their Statement of Defence to include the defence of 'limitation' if it came to that.
45. I am therefore constrained to reject the Plaintiff's contention that the failure by the Defendants to plead the defence of "limitation" in the Statement of Defence was fatal to the Defendants' case that the action was statute-barred and consequently the Defendants were also precluded from advancing their contention on the effect of non obstante clauses as found in s. 45 (1) and s. 65 (1) in the EPF Act in this appeal.
Conclusion
46. I am not therefore persuaded that the learned Sessions Judge had erred in law when he struck out the Plaintiff's Summons and Statement of Claim. Accordingly the Plaintiff's appeal is dismissed.
The decision of the Sessions Court of 12.05.2010 is affirmed.
There will be no order as to cost.
Delivered on 31 JANUARY 2011
t.t
(VARGHESE A/L GEORGE VARUGHESE)
Judicial Commissioner
High Court of Malaya in Penang
HIGH COURT, PENANG
VARGHESE GEORGE VARUGHESE JC
[CIVIL APPEAL NO: 12A-403-2010]
31 JANUARY 2011
IN THE HIGH COURT OF MALAYA AT PENANG
[CIVIL APPEAL NO: 12A-403-2010]
BETWEEN
LEMBAGA KUMPULAN WANG SIMPANAN PEKERJA
... Appellant
AND
1. CARIMONDE SDN BHD
... Respondents
2. SOO BENG CHENG
3. TEH BENG CHNEAH
GROUNDS OF DECISION
1. This was an appeal by the Appellant/Plaintiff (Plaintiff) against the Learned Session Judge's decision of 12.05.2010 striking out the Summon and Statement of Claim on the grounds that the Plaintiff's action was statute-barred. No 'Alasan Penghakiman' was available but it appears that the Sessions Judge was persuaded to do so on an oral application of the Respondents/Defendants (Defendants), on the grounds that the Plaintiff, regardless of sections 46 (1) and 65 (1) of the Employees Provident Fund Act, 1991 (EPF Act), was not exempted from the statutory force of the Limitation Act 1953 (LAct).
Background
2. The Plaintiff commenced an action at the Session Court on 21.07.2006 to recover jointly and severally from the Defendants what is alleged to be unremitted contributions for the employees of the 1st Defendant for the period July 1999 to October 2000 (arrears), together with certain "dividends' and "interest" accruing upon the said sum in arrears. The 2nd and 3rd Defendants were the Directors of the 1st Defendant.
3. The Defendants had on 27.10.2006 filed a Statement of Defence to the said claim.
4. In May 2007 the Plaintiff proceeded to file an application pursuant to Order 26A of SCR 1980 for summary judgment to be entered against all the Defendants in the action. However before that application was dealt with, the Plaintiff filed applications to amend the Statement of Claim and also to amend the Order 26A application via Kandungan 8 (21.05.2007) and Kandungan 10 (31.05.2007), respectively.
5. In response to the Plaintiffs applications, the 3rd Defendant, on behalf of the Defendants, filed two separate Affidavit Balasan (both affirmed on 17.07.2007) contesting the said applications of the Plaintiff to amend the Statement of Claim and the Order 26A application.
6. It is noteworthy that in the two Afidavit Balasan, the Defendants did raise the issue that the Plaintiff's action was statute-barred. We find identical averments in the said affidavits in the following terms:
"..... selanjutnya menegaskan bahawa tuntutan Plaintif sama sekali adalah terhalang oleh had masa memandangkan tuntutan Plaintiff adalah untuk tunggakan caruman daripada tempoh Julai 1999 sehingga Oktober 2000 di mana Plaintiff sepatutnya telah memfailkan tuntutan Plaintiff tersebut sebelum Julai 2005 akan tetapi Plaintif hanya menfailkan Saman dan Pernayataan Tuntutan Plaintif pada 12.07.2006 iaitu di luar masa yang diperuntukkan di bawah Undang-Undang ..."
7. From the Appeal Record, there does not appear to be any affidavit in response filed for the Plaintiff, further in the matter.
8. The Defendants' oral application to strike out the Summon and Statement of Claim adverted to above, was apparently made during the hearing of Kandungan 8 and Kandungan 10.
9. In the event both Kandungan 8 and Kandungan 10 of the Plaintiff were dismissed on the 23.04.2010.
On 12.05.2010 the Learned Judge proceeded to allow the oral application of the Defendants to strike out the Summons and Statement of Claim and it is against that decision to strike out that this appeal is being brought by the Plaintiff.
10. By the time this appeal came up for disposal the 1st. Defendant had been wound-up and the 2nd. Defendant had been adjudicated a bankrupt. The appeal was only being contested by the 3rd. Defendant.
Plaintiff's contention in summary
11. The Plaintiff's principal contention was that the terms "... notwithstanding anything to the contrary in this Act or in any other written law ..." in section 46(1), and "Notwithstanding the provisions of any other written law ..." in the opening lines of section 65(1) of the EPF Act excluded or ousted as a whole the provisions of the LAct in respect of all proceedings brought by the Plaintiff to recover arrears of contribution. In other words, actions to recover such arrears against errant employers and their directors as empowered under the EPF Act (a unique statute for the benefit of employees as was argued) were not caught by the statute-bar of six years under the LAct for any such recovery action to be commenced.
12. Basically the Plaintiff cited three decisions of the courts in support of the argument above. It was contended that in Kekatong Sdn Bhd v. Bumiputra-Commercce Bank Berhad & Anor [2002] 7 CLJ 175; [2002] 6 MLJ 186, where there arose a conflict between two written law, it had been held that the provisions of a specific and subsequent legislation, there the Pengurusan Danaharta Nasional Bhd Act 1998, prevailed over the operation of the general provisions of the LAct.
13. Counsel for the Plaintiff also referred to two recent decisions where a similar issue as to the effect of the highlighted terms in s. 46(1) and 65(1) as above, were considered. Hadariah JC in Lembaga Kumpulan Wang Simpanan Pekerja v. Lim Kek Bee & Anor - (unreported) had considered those provisions and also specifically the effect of the amendment made to s. 65(1) (by Act A914) by the insertion of the words/clause "Notwithstanding the provisions of any other written law ..." and had held that the intention of the legislature was to exclude applicability of other written law including the LAct in so far as proceedings brought under the EPF Act was concerned.
14. Similarly, Zabariah JC (as she then was) in Lembaga Kumpulan Simpanan Wang Pekerja v Manfred Smisek & 5 Ors [2009] 1 LNS 1719 had concluded that by those qualifying words in s. 46(1) and 65(1) of the EPF Act, the provisions of the LAct had been effectively excluded in the case of proceedings brought pursuant to the EPF Act.
15. The Plaintiff in reply-submissions also raised the issue that 'limitation' as a defence had not been expressly pleaded by the Defendants as required under section 4 of the LAct. This therefore, it was further argued, precluded the Defendants from pursuing with this line of defence to the Plaintiff's action, in any event.
Defendants' contention in summary
16. The Defendants' position was that the monies being sought to be recovered from the Defendants were in respect of alleged unremitted contributions in 1999 and the action filed in 2006 was clearly statute-barred pursuant to the provisions of the LAct. The applicability of the LAct to such recovery actions by the Plaintiff, it was contented, was not excluded at all by s. 46(1) and s. 65(1) of the EPF Act as presently worded.
The words "... notwithstanding anything to the contrary in this Act or in any other written law ..." in section 46(1) and "Notwithstanding the provisions of any other written law ..." in the opening lines of section 65(1) of the EPF Act, it was pointed out by Counsel for the 3rd Defendant, was in the nature of what is recognized in law as 'non obstante' clause (see: Balakrishnan v. Ketua Pengarah Perhidmatan Awam Malaysia & Anor [1981] 1 LNS 64; [1981] 2 MLJ 259 at p 262 where the Federal Court observed: "... GO 44 ... opens with the significant non obstante clause 'Notwithstanding these General Orders ...' making it quite separate and distinct from the preceding three parts of the GO dealing with conduct, disciplinary procedure and general provisions pertaining to disciplinary punishments. GO 44 goes therefore beyond and is additional to what precedes it").
17. The effect of such a non obstante clause, it was argued, was not to exclude fully the whole of all other written law but only those provisions in other legislation or such part of other law which were in conflict, or which contradicted or clashed when the subject matter or intention or the scope behind the provision bearing the non-obstante which was to be established upon a further examination. Here, it was contended that the object behind s. 46 (1) and 65 (1) of the EPF Act did not involve or deal with the subject of "limitation period" as was stipulated in the LAct, at all.
18. It was also argued for the Defendants that should it have been the intention of the legislature to exclude the limitation period from applying to all recovery actions under the EPF Act, then the provisions should have mirrored the more specific words found in section 11P(d) of the National Service Act, 1952 which was in the following terms:
"Nothing in any other written law which prescribes for a period of limitation respecting the time for the hearing and determining of offences shall apply in the case of any proceedings so instituted as aforesaid."
19. It was further contented for the Defendants that for an exclusion of the LAct to be valid in law, section 3 of the LAct itself made it a requirement that the other written law in question should prescribe some other or alternative period of limitation. This, it was highlighted by Counsel, was glaringly absent in the case of the EPF Act in any event.
20. In response to the Plaintiff's contention that for 'limitation' to be pursued as a defence, it ought to be in the first place specifically pleaded, the Defendants' position was that this was not an absolute must as the highest courts in the country have allowed the defence of limitation to be still pursued, notwithstanding that it was not expressly pleaded, particularly, where the other party had notice that this was a defence that would be taken in the action.
Issues before the Court
21. In my assessment there were therefore two basic issues before the Court for determination in this appeal. They were:
(i) Whether the 'non obstante' clauses in s. 46(1) and s. 65(1) of the EPF Act had the effect of completely ousting the applicability of LAct, with the result that any recovery action commenced by the Plaintiff against an errant employer (incorporated company) and personally against the Directors of the entity, as was the case here, was not subject to any limitation period at all; and
(ii) Whether the Defendants in this case were absolutely precluded from raising the defence of 'limitation' since no such defence had been expressly pleaded in the Statement of Defence of the Defendants that had been filed in the action.
The approach when dealing with a non obstante clause
22. In the recent decision of the Federal Court in Perbadanan Kemajuan Kraftangan Malaysia v. DW Margaret David Wilson [2010] 5 CLJ 899, Heliliah Mohamed Yusoff FCJ noted that: "The term 'notwithstanding' means generally 'not to stand against' or 'in the way' or overriding" and went on to cite with approval a quote from the judgement of the Indian Supreme Court in Union of India v. I C Lala [1973] 2 SCC 72 at p. 77 which was as follows:
"The words notwithstanding anything contained in the Code of Criminal Procedure found at the beginning of s. 5A(1) of the Prevention of Corruption Act, 1947 (now s. 17 Prevention of Corruption Act 1988) merely carve out a limited exemption from the provision of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate offences mentioned in the section and to arrest without warrant. It does not mean that the whole of the Code of criminal procedure ... is made inapplicable."
(underlining mine for emphasis)
23. The approach to be taken in interpreting a provision containing an non obstante clause was more pointedly stated in yet another judgment of the Indian Supreme Court, that is in the case of A.G. Varadarajulu & Anor v. State of Tamil Nadu & Ors AIR [1998] SC 1388 where at p. 1392 it declared:
"It is well settled that in dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. .... the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from the provisions of the same statute or other statute but for that reason alone we must determine the scope of the provision strictly. When the section containing the said clause does not refer to any particular provision which it intends to override but refers to the statute generally, it is not permissible to hold that it excludes the whole Act and stands alone all by itself. A search has, therefore, to be made with a view of determining which provision answers the description and which does not."
(Emphasis mine)
In that case, the issue of interpretation centered on whether one section excluded the application of another section in the same statute but to me the principle to be drawn was the same, namely, that where the non obstante clause refers generally without stating the specific provision or statute to be overridden, it is not permissible to exclude per se all other legislation or provisions in force in other legislations. It does not automatically displace or override all other legal provisions.
24. The extent of such intended exclusion must however be worked out from a further examination of the objective or scope or purpose behind the provisions where the non obstante clause is adopted. Only where then there arise a clash or a conflict between the specific statutory objective behind that provision and such other law on the same subject, would the other law be held to be excluded from being operative.
25. I therefore agree with submission of Counsel for the 3rd. Defendant that the Court should in the instant case, firstly, embark upon a further examination to determine the intention or objective behind s. 46(1) and s. 65(1) of the EPF Act. This was to ascertain whether the statutory intent or scope behind those two sections were in conflict with the limitation provisions of the LAct.
26. It is my conclusion therefore that in law the non obstante terms in s. 46 (1) and/or s. 65 (1) of the EPF Act, generally worded as they are without specific reference to any particular provision or legislation, does not go to exclude or oust the provisions of the LAct as a whole. Following from that there must then be a further examination undertaken by the court as to what was the specific legislative objective or the 'mischief intended to be cured by those sections in the EPF Act and whether in applying the law, a conflict or clash arose between that statutory objective and the law as found in those sections of the EPF Actand the other legislation or provisions on the same area of law.
Only if there was any such a conflict or clash between those provisions on the same subject, would the area in law covered by those sections in the EPF Act prevail to the exclusion of any conflicting other legal provision on that subject.
27. The attention of my sisters Hadariah JC and Zabariah JC in Lembaga Kumpulan Wang Simpanan Pekerja v. Lim Kek Bee & Anor and Lembaga Kumpulan Simpanan Wang Pekerja v. Manfred Smisek & 5 Ors respectively, appear not to have been drawn to the serious implication that surround the use of a non obstante clause in legislations and also to the proper approach to be adopted in interpreting the effect of such a clause as is found in s. 46 (1) and s. 65(1) of the EPF Act. With respect therefore, I have to disagree with the conclusions reached in those two decisions where it was held in a broad sweep, so to speak, that recovery actions by the Plaintiff under the EPF Act were not subject to or restricted by such limitation period as spelt out in the LAct.
Section 46 (1)
28.Section 46 (1) of the EPF Act reads as follows:
46. Joint and several liability of directors, etc
(1) Where any contributions remaining unpaid by a company, a firm or an association of persons, then, notwithstanding anything to the contrary in this Act or any other written law, the directors of such company during such period in which contributions were liable to be paid, or the partners of such firms, including any persons who were directors of such firms during such period in which contribution were liable to be paid, or the office-bearers of such association of persons, including any persons who were office-bearers of such association during such period in which contributions were liable to be paid, as the case may be, shall together with the company, firm or association of persons liable to pay the said contributions, be jointly and severally liable for the contribution due and payable to the Fund."
The language of s. 46(1), Counsel argued, clearly demonstrated that where, amongst others, an incorporated company with limited liability was the defaulting party the provision was intended 'to lift the corporate veil' and to impose personal liability on Directors of the company in default to settle the debts of the company.
Such a conclusion, it was contented further, was fortified by the marginal notes to that s. 46(1) in the following terms: 'Joint and several liability of directors etc.' It is settled law now that assistance in interpretation of statutory provisions may also be drawn from marginal notes to that section in the legislation itself: (Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105 (FC); Chai Siew Yin v. Leong Wee Shin [2004] 1 CLJ 752 (CA).)
29. I accept those submissions of Counsel for the 3rd Defendant and hold that it is clearly discernable from a reading of s. 46 of the EPF Act in its entirety that the legislative intent or purpose behind s. 46(1) was definitely to provide an additional right or recourse, jointly and severally, against directors or responsible individuals or officers of a defaulting company, partnership or association when, as the law ordinarily stood, there was no such right where the debtor was an incorporated company or the law was ambiguous in the case of partnerships and associations. (See also the decisions in Ong Kim Chuan & Anor v. Lembaga Kumpulan Wang Simpanan Pekerja [2009] 6 CLJ 586 (CA) and Lembaga Kumpulan Wang Simpanan Pekerja v. Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236). In effect therefore, an unequivocal statutory cause of action against directors or responsible individuals and officers of errant entities was being created by this provision, namely s. 46 (1) in the EPF Act.
30. Accordingly, what was being excluded by the non obstante clause in s. 46(1)- '... notwithstanding anything contrary in this Act or any other written law ...' - were only such specific provisions in the EPF Act itself or in other legislation that were not in accord with this statutory objective or scope underlying s. 46(1) namely to impose liability, inter alia, on directors of company to pay for the arrears of employees' contributions owed by a company.
Section 65(1)
31.Section 65 (1) of the EPF Act was as follows:
"65. Civil proceedings to recover contributions
(1) Notwithstanding the provisions of any other written law all contributions payable under this Act may, without prejudice to any other remedy, be recoverable by the Board summarily as a civil debt."
Counsel for the 3rd Defendant in his submissions emphasized that this was an enabling provision to provide for a right to civil recovery simultaneously with criminal prosecution and, more importantly, to overcome any contention that the cause of action to recover defaulted contributions was only vested in the employees concerned and not the Plaintiff's Board. In other words, it was contended that the provision was intended to give locus standi to the Board of the Plaintiff to institute civil proceedings to recover dues -notwithstanding the provisions of any other written law.(See: Lembaga Kumpulan Wang Simpanan Pekerja v. Shaharuddin Omar & Ors [2008] 8 CLJ 684).
32. Accordingly, any provision in any other legislation that had the effect of denying the right of the Plaintiffs Board to bring civil proceedings independently in its name to recover arrears of contributions (including dividends and interest due on any contribution - s. 65(3)) as a civil debt was what was intended to be excluded and s. 65(1) would prevail in such event of conflict between this section and such provisions of the other written law.
33. Counsel for the Plaintiff however pointed out that the non obstante clause in s. 65(1) - 'Notwithstanding the provision of any other written law ...' - was not in the original legislation but was only later introduced as an amendment (Act A914) to the EPF Act (effective from 01.08.1995). It was her argument that the provision as it existed before the amendment was sufficient enough to provide the Board of the Plaintiff with the locus standi to pursue a civil debt and accordingly the amendments were in particular intended to oust the LAct since the Plaintiff was under the scheme of the EPF Act, the 'trustee of the Fund' (s. 25 EPF Act) and monies to be recovered as a civil debt were for the benefit of employees, the beneficiaries of the Fund.
I could not however see any nexus between those facts as they may be and how they expressly or impliedly could have displaced as claimed the statutory limitation period laid out in the LAct.
Could that have been the legislative intent behind the amendment to s. 65(1) of the EPF Act which introduced the non obstante terms to that section? Surely if that was the intention of the legislature behind the amendments, as argued, then it ought to have been laid down in more precise and express terms as we have in section 11P(d) of the National Service Act 1952:-
"Nothing in any other written law which prescribes for a period of limitation respecting the time for the hearing and determining of offences shall apply in the case of any proceedings so instituted as aforesaid".
Although in this National Service Act 1952 it referred to exclusion of limitation period in regard to criminal proceedings to be instituted, I do not see any reason why the same principles of statutory interpretation and exactitude should not have been adopted if that was the intent behind the use of the non obstante clauses not just in s. 65(1) but in both s. 45(1) and s. 65(1)of the EPF Act.
34. Similarly, as in the case of s. 45(1) of the EPF Act, the Court therefore in interpreting what was the extent of exclusion allowed by the non obstante terms in s. 65(1) - 'Notwithstanding the provisions of any other written law'- had firstly to determine the statutory objective or purpose behind that section. In this respect, I agree with the submissions of Counsel for the 3rd. Defendant that the statutory intent of s. 65(1) was to enable the Board to have the locus standi to bring proceedings to recover unremitted contributions as a civil debt apart from the criminal proceedings envisaged in the EPF Act. What could therefore be effectively overridden or excluded by the use of the non obstante clause was only provisions in any other written law that conflicted or clashed with this statutory objective or scope of s. 65(1) of the EPF Act.
35. The question then before the Court was whether there was any conflict or clash between the statutory objective or purpose behind s. 45(1) and s. 65(1) of the EPF Act (or either of them) with the terms of the LAct, in particular the provisions therein setting the statutory deadlines for bringing actions in contract or tort, generally within six years of the cause of action arising. I could not find any such conflict or clash between such objective and the subject of time-bar or limitation found in the LAct. The statutory intent or scope of sections 45 and 65 of the EPF, as discussed above, were not at all or remotely even connected to the issue of limitation.
The non obstante clauses in those sections, that is, s. 45(1) and s. 65(1) of the EPF Act, were in wide and general terms and for the reasons discussed above did not in my assessment override or exclude the LAct as a whole or any specific limitation provision of that legislation.
36. For completeness I should also state that I also found merit in the submission of Counsel for the 3rd Defendant that s. 3 of the LAct required another period of limitation to be prescribed in whatever legislation that intended to displace or vary the statutory limitation period laid out in the LAct. Section 3 of the LAct reads:
"This Act does not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration ....".
As noted above no such alternative period of limitation was provided for in any event in the EPF Act.
37. Obviously, there are good policy reasons why an alternative limitation period should be prescribed in any legislation whose intention was to displace the provisions of the LAct, that is, either reducing or extending the time-bar for civil proceedings to be brought against a subject. For otherwise it would have meant that one is left open for his entire lifetime exposed to likely suits or proceedings in certain situations. The law only assist those who proceed without delay to enforce whatever rights and remedies they have and generally (subject to some exceptions) the period of six years from the time a cause of action arising has been fixed by statute to be a fair period obviously giving consideration to the burden on a likely defendant to preserve documents and secure relevant witnesses to resist any such potential action against him in the future.
38. I therefore hold that the Plaintiff had not been excluded or exempted from any of the provisions of the LAct by virtue of s. 45(1) and/or s. 65(1) of the EPF Act, as those provisions are presently worded and found in the statute book. The role of the court is to interpret and apply the law and not to create new law.
'Limitation' not pleaded as a defence
39. Counsel for the Plaintiff referred to s. 4 of the LAct and submitted that the Defendants should in any event be precluded from relying on the issue of 'limitation' to strike out the Summons and Statement of Claim as the defence of "limitation" was not in the first place specifically pleaded in the Statement of Defence filed by the Defendants in the action. Section 4 reads:
"4. Limitation not to operate as a bar unless specially pleaded.
Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded."
40. The rationale for the requirement that the defence of limitation must be expressly pleaded has been drilled into us from our 'procedure and pleadings' classes in law school. Whether limitation has set in or not is a question of fact (as opposed to law) and therefore it had to be specifically pleaded for the opposing party not to be taken by surprise by that issue in the conduct of their case.
41. Counsel for the Defendants on the other hand contended that this was not an absolute rule or one cast in stone. He relied on the Federal Court judgments in Kerajaan Malaysia & Ors v. Lay Kee Tee & Ors [2009] 1 CLJ 663, and Hj Hussain Hj Ali & Ors v. Datuk Hj Mohamed Yaacob & Ors [1983] CLJ (Rep) 165; [1983] 2 CLJ 68 as support for the proposition that so long as the Plaintiff knew that the Defendants were going to raise the issue of 'limitation', there was no requirement that it should be expressly set in a statement of defence.
Counsel for the 3rd Defendant also drew attention to the fact that the Plaintiff had not raised any such objection at the Sessions Court stage when the Defendants' oral application to strike out was considered and the Plaintiff had only now in reply to Defendants' submissions against the appeal chosen to raise this issue pertaining to the absence of a specific defence of 'limitation' in the Statement of Defence.
42. The two Federal Court decisions cited by the 3rd Defendant's Counsel, no doubt were cases where no statements of defence had been filed and they were in the context of proceedings to strike out the actions under O. 18 r. 19 of the Rules of the High Court 1980 before any defence was filed.
Would it then be any different that in this instant case a Statement of Defence had been filed but at an early stage of the proceedings itself (in the context of Plaintiff's applications for amendment including to the Statement of Claim), the Defendants had already given notice through their Afidavit Balasan that their defence would be that the action was not sustainable as it was statute-barred? I should not think so.
43. The Plaintiff had sufficient notice of this defence to be mounted by the Defendants to the action.
The same principles that can be extracted from the Federal Court decisions can be applied in the situation obtaining in this case, particularly if one is mindful that should the Plaintiff had been successful in amending their Statement of Claim, the Defendants would have had a corresponding right to amend their Statement of Defence. Nothing would have restricted the Defendants from then amending their pleadings to include a specific defence that the action was statute-barred. In short the so called defect in the pleading could and would have been cured in any case if the matter proceeded further.
44. Such an objection should have been taken by the Plaintiff in any case earlier in the proceedings and not just at this stage if the Plaintiff was indeed serious about the same. It however appears to me that the Plaintiff and the learned Sessions Judge acted or proceeded to deal with the Defendants' oral application to strike out the action (notwithstanding no express defence of limitation being pleaded), fully conscious of and recognising the Defendants' right always to amend their Statement of Defence to include the defence of 'limitation' if it came to that.
45. I am therefore constrained to reject the Plaintiff's contention that the failure by the Defendants to plead the defence of "limitation" in the Statement of Defence was fatal to the Defendants' case that the action was statute-barred and consequently the Defendants were also precluded from advancing their contention on the effect of non obstante clauses as found in s. 45 (1) and s. 65 (1) in the EPF Act in this appeal.
Conclusion
46. I am not therefore persuaded that the learned Sessions Judge had erred in law when he struck out the Plaintiff's Summons and Statement of Claim. Accordingly the Plaintiff's appeal is dismissed.
The decision of the Sessions Court of 12.05.2010 is affirmed.
There will be no order as to cost.
Delivered on 31 JANUARY 2011
t.t
(VARGHESE A/L GEORGE VARUGHESE)
Judicial Commissioner
High Court of Malaya in Penang
Saman Kerajaan Malaysia
KFH IJARAH HOUSE (M) SDN BHD v. KERAJAAN MALAYSIA
HIGH COURT MALAYA, KUALA LUMPUR
LAU BEE LAN J
[SUIT NO: S-21-186-2003]
3 NOVEMBER 2010
ADMINISTRATIVE LAW: Public servants - Authority - Authority of government servant to enter into contracts binding government - Assistant Curator of Muzium awarding contract without knowledge or approval of Jabatan Muzium - Whether contract binding upon Jabatan Muzium - Whether officer had express or ostensible authority to award contract - Whether exception to Turquand's case applied - Whether Jabatan Muzium had by conduct represented officer as having requisite authority - Whether Jabatan Muzium estopped from denying authority of officer
AGENCY: Agent - Public servants - Authority of government servant to enter into contracts binding government - Assistant Curator of Muzium awarding contract without knowledge or approval of Jabatan Muzium - Whether contract binding upon Jabatan Muzium - Whether officer had express or ostensible authority to award contract - Whether exception to Turquand's case applied - Whether Jabatan Muzium had by conduct represented officer as having requisite authority - Whether Jabatan Muzium estopped from denying authority of officer
Panji Alam Creative (M) Sdn Bhd ("Panji Alam") was awarded a contract by Jabatan Muzium Dan Antikuiti Malaysia ("Jabatan Muzium") to supply historical artifacts for Kompleks Kota Ngah Ibrahim or Kompleks Sejarah Matang and Muzium Perak ("Kompleks Kota Ngah Ibrahim") valued at RM1,212,650. Panji Alam applied to the plaintiff for an Al-Murabaha facility to finance the purchase of the historical artifacts and for this purpose, absolutely assigned the payment under the said contract to the plaintiff. By a letter dated 11 September 2000 Jabatan Muzium acknowledged and agreed to the assignment of the payment to the plaintiff and also of payment directly to the plaintiff. The plaintiff then purchased and paid for the historical artifacts which were delivered to Kompleks Kota Ngah Ibrahim. However, no payment was made to the plaintiff by the defendant and hence this claim by the plaintiff. The defendant claimed that it had no knowledge about the plaintiff and of the contract allegedly awarded to the plaintiff. It was argued that any purported award of contract was made by Encik Abdul Latib, the then Assistant Curator ("Latib") without any direction, knowledge, agreement and approval by the Jabatan Muzium and the Ministry of Finance Malaysia ("MOF") and that the former had acted in his own personal capacity in dealings with Panji Alam. According to the defendant, Latib had wrongfully used the defendant's letterhead without the consent, knowledge or permission of the defendant and he acted in his own capacity. Hence, the defendant contended that the contract was in contravention of the procedures in accordance to s. 2 of the Government Contracts Act 1949 ("the Act") and therefore the plaintiff was not entitled to any claim for payment. The issues arising for determination were: (i) whether Latib had express and/or ostensible authority to award the contract to supply historical artifacts to Kompleks Kota Ngah Ibrahim; (ii) whether the defendant was bound by the letter of 11 September 2000 to effect payment for the historical artifacts to the plaintiff; and (iii) whether the defendant was in any event liable to pay to the plaintiff for the historical artifacts.
Held (allowing the plaintiff's claim):
(1) The exception to the Turquand's case did not apply in the factual matrix of this case. The fact that Latib was the Assistant Curator of Muzium Perak was confirmed. Latib and all other officers of the Muzium Department were a single composite known as the government; each of their act was an act of the government; the acts carried out by Latib was part of a chain of command and the decision made by the government through him was indicative of a devolution of power from a higher authority which was an integrated part of the system of government. (paras 11-11.4)
(2) Latib was provided with letterheads of Jabatan Muzium from the headquarters for him to issue letters for his daily duties as the highest ranking officer at Kompleks Kota Ngah Ibrahim. Latib dealt with members of the public as part of his daily duties. There was no limitation or restriction printed on the letterheads with regard to Latib's authority to issue or sign letters on behalf of Jabatan Muzium. (paras 11.3 & 11.4)
(3) Panji Alam and the plaintiff had honestly and reasonably believed in the existence of the authority to the extent apparent to Latib. In addition, the defendant as principal had held out Latib as their agent to have the authority to deal with the public including Panji Alam and the plaintiff on matters relating to Kompleks Kota Ngah Ibrahim. (para 11.6)
(4) Even if Latib did not have the authority to sign the disputed letters, the defendant had by their conduct represented or permitted to be represented to the plaintiff that Latib had the authority to act on the defendant's behalf and consequently the defendant was bound by Latib's acts to the same extent as if he had the authority. The defendant was now estopped from denying the authority of Latib. Latib had apparent or ostensible authority, if not actual authority, to enter into the contract with Panji Alam and also to acknowledge the assignment to pay the plaintiff. (para 11.8)
(5) The defendant through Jabatan Muzium had entered into the contract and were now trying to escape liability to invalidate the same on the ground that s. 2 of the Act was not followed. The court should be slow to declare the contract void and unenforceable; and "would not be astute to lend its aid" to enable the defendant to avoid liability under s. 2 of the Act having regard to the fact that Kompleks Kota Ngah Ibrahim had used the items supplied for ten years. (paras 14.2-15)
(6) The assignment of the debt from Panji Alam to the plaintiff was an absolute assignment. The defendant had on a balance of probabilities received the notice of assignment.
Subscribe to:
Posts (Atom)