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The Golden Rule What is a statutory interpretation ? A statutory interpretation is the process of interpreting and applying legislation. Some amount of the interpretation is always necessary when a case involves a statute. Besides, in most cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge and the judge will use various tools and methods of the statutory interpretation such as traditional canons of statutory interpretation, legislative history, and purpose to find the meaning of statutes.It is not easy for the judges to decide its true meaning. Therefore judges used a certain method to aid them in interpreting a particular statute. The different approaches used by the courts of England, which have been adopted by the courts of Malaysia can be summarized under four categories, which are Literal Rule, Mischief Rule, Golden Rule and Purposive Approach. Law exists or are created or enacted by the Legislature. These laws are called statutes. The courts only apply and interpret the statutes when a case is put before them. More often than not, the wordings of a certain provision(s) of the statutes are unclear or carrying more than one meaning. A modification of the Literal Rule is recognized as “the Golden Rule” may be applied during this type of situation. The Golden Rule is a modification of The Literal Rule to be used to avoid an absurd outcome. The Golden Rule will only be applied if the literal rule creates an absurd or unjust result and leads to absurdity inconsistency and uncertainty in the actual meaning. In short , it is a rule used to modify the ordinary, natural meaning or choose between the different meanings. In other words it is used when words carry more than one meaning. In the interpretation of the statutes, the courts provide ‘a broad and wider meaning to the words or phrases in question in order to achieve the object of the legislature. The Golden Rule has nothing to do with the literal meaning of the word ‘gold’. This rule operates on the assumption that the legislature had made a mistake in the wording of the provision which is to be construed by the court. The court can apply this rule in two different ways, which are the narrow approach and the broader approach. The courts may then apply a secondary meaning of a word in the statute which have more than one meaning and the word is ambiguity. Parke J (Lord Wensleydale) stated in the case of Becke v Smith [1836] 2 M&W 195, , “It is a very useful rule in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, to avoid such inconvenience, but no farther.” The rule was defined by Lord Wensleydale in the Grey v Pearson case (1857) as: “The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further.” Some judges have suggested that a court may depart from the ordinary meaning where that would lead to absurdity. The Golden Rule is an adaptation of the plain meaning rule. It provides that wordings should be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd or totally obnoxious result. This became the “Lord Wensleydale’s Golden Rule”. It only applies where the word are ambiguous.

In the case of R v Allen [1972] LR 1 CCR 367. The British Law Commission in 1969 stated that, the rule provided no clear means to test the existence of the characteristics of absurdity,

inconsistency or inconvenience, or to measure their quality or extent. As it seemed that “absurdity” was in practice judged by reference to whether a particular interpretation was irreconcilable with the general policy of the legislature “the golden rule turns out to be less explicit form of the mischief rule.” The Golden Rule will be applied if the literal approach leads to absurdity, inconsistency and uncertainty in the actual meaning. The court can use this rule in two ways which is narrow way and boarder way . It applied most frequently in narrow sense where there is some ambiguity or absurdity in the words themselves. For example, imagine you see a sign saying “Do not use lifts in case of fire”. If we try to interpret the sign literally, you will never use the lifts unless there is a fire. The second use of the Golden Rule is in a wider and broader sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. The Golden Rule lays down that if the words are ambiguous, the court must adopt an interpretation, which avoids an absurd result. In the narrow way, the rule may be applied in the narrower sense where there is some ambiguity or absurdity in the words themselves where the context in narrow, just involved in law area. In the case of R v Allen [1872] LR 1 CCR 367 which was stated above, the defendant was charged with bigamy under Section 57 of the Offences against the Person Act 1861. The statute states ‘whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence’. Under a literal interpretation of this section bigamy would be impossible to commit since civil law or courts does not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage. In order to overcome the absurdity ,the court applied the narrow way of the golden rules and held that the word ‘marry’ could not in that context mean ‘become legally married’ since that could never apply to someone who is already married to someone else. The court is try to make sense of the provision, thus the word should be interpreted as meaning to ‘go through a second ceremony of marriage’. The court applied the golden rule and held that the word 'marry' should be interpreted as ‘to go through a marriage ceremony’. The defendant's conviction was upheld. In this case, we can know the advantage of the application of the golden rule which has successfully prevent the absurdity in the result of a case. In Malaysia, the golden rule with a narrow way also can be illustrated in the case of the Re Advocate (1964) 1 MLJ 1. This case involved the interpretation of Section 12 (g) of the Advocates Ordinance, which stated that ‘any advocate may be suspended from practising in the state of Sarawak, or his name may be struck off the roll of advocates by order of a judge for any of the following cases, one of which was clause (g) which stated, ‘if he does any act which if done in England, would render him liable to be disbarred or struck off the roll of the court, suspended from practice, if a barrister or solicitor in England.’ The issue of this case is whether his conduct fell within Section 12(g) of the Advocates Ordinance because if he did he could be struck off the roll of advocates or suspended from practice, this issue is related to the interpretation of the word ‘or’ in the phrase, ‘if a barrister or solicitor in England’. In the case of England where the legal profession is divided into solicitors and barristers or ‘split profession’, a person could either be struck off the roll of the court or suspended from practice depending on whether he was a barrister or a solicitor. However, in Malaysia where the legal profession is fused, the word ‘or’ is inappropriate as Malaysia practices a fused profession and its literal interpretation would lead to an absurdity. Thus the court, applying the golden rule, held that the word “or” in the section could not be given a literal interpretation but should be read as “ and” , because to do so, would make all legal

practitioners in countries where the two branches of the legal profession were fused not liable to be struck off the roll, or suspended from practice. The court held that the word “or” should be read as “and” in order to avoid absurd consequences. In England, they differentiate solicitor and barrister, but we only have a lawyer who is a solicitor and is a barrister at the same time.Wylie CJ in his judgement made the following remark: “…. Although this is a departure from the meaning of the language used in the case where, taken on its own, the meaning of the provision is clear, I am satisfied, notwithstanding the judicial warnings of recent years about relying on absurd results to justify departing from the language of a statute, that this case where the literal meaning would produce a result repugnant to the other provisions of the Ordinance and defeat their purpose including one of the Ordinance. Consequently this departure from the literal meaning is justified.”

The leading case on the broader way is Adler v George [1964] 2 QB 7 in which the defendant was charged with obstructing a military guard in the execution of his duty. Under section 3 of the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited palace. To succeed, the prosecution had to show that the act took place 'in the vicinity of' a military establishment. Adler was arrested for obstructing forces whilst in a prohibited area. Under The Literal Rule, Adler was not in the vicinity of the area as he was in the area and so he was not infringing the terms of the act. The Golden Rule was applied to extend the meaning of ‘vicinity’ and avoid the possible absurd outcome. The defendant argued that ‘in the vicinity’ meant ‘outside or in the proximity or area’ of the establishment, whereas he was inside the establishment. The matter of fact is that the defendant was actually in the prohibited place, rather than ‘in the vicinity’ of it, at the time of obstruction. The court decided that such an interpretation would lead to an absurd result, and interpreted ‘in the vicinity of’ to cover a person already on the premises. The court applied the golden rule which mean it would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld.

The rule was applied in this sense in In Re Sigsworth [1935] 1 Ch 98 in the context of the Administration of Estates Act 1925. A son had murdered his mother and then committed suicide. She had not made a will .Under the plain terms of Section 46 of the Act, as the woman had died intestate her murderer stood to inherit substantially her entire estate, which would then have passed to his descendants. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. This was challenged by other members of the woman's family as the literal rule would lead to a repugnant and absurdity result. The court applied the golden rule to find in favour of the family, preventing the son's descendants as a matter of public policy from profiting from his crime. Thus , . Sigsworth was thus entitled to nothing. The rule as applied in that particular case has subsequently been put onto a statutory footing in the Forfeiture Act 1982 and the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 Besides the narrow way there is also the broader way which in its wider sense the rule may be used to avoid a result that is obnoxious to principles of public policy, even where words may prima facie (based on the first impression) carry only one meaning. It involves a modification of the words of an Act, where their ordinary meaning creates an absurdity. Courts would not follow its literal meaning if words lead to absurdity. This is especially so where considerations of public policy intervene to discourage the obnoxious interpretation.

In the case of Leaw Mei Lee v Attorney-General & Ors (1967)2MLJ 62, the golden approach was taken by the court. One obvious example of the golden rule in operation to avoid absurdity is the case of Leaw Mei Lee , which centred on the interpretation of s.5(3) of the Advocates and Solicitors Ordinance 1947. In this case, the appellant, a barrister-at-law was called to the English Bar in July 1965.She attended the post-graduate course organised by the University of Malaya. She was on the same time reading in the chambers of a local practitioner. The appellant applied for admission as an advocate and solicitor with contention she had complied with the provisions of Section 5(3) (a) of the Advocates and Solicitors Ordinance 1947. The appellant’s petition was rejected and thus she appealed to the Federal Court. The issue which arose was whether the University of Malaya post-final course must precede the requirement of local chambering, having regard to the word ‘previously’ in paragraph, where the appellant had attended the course and chambered concurrently. The Federal Court avoided the absurd and unjust result that would have ensued from a rigid construction of the words ‘previously’ and held that the appellant could qualify for admission to the bar as an advocate and solicitor. The Federal Court avoided the absurd and unjust result that would have ensued from a rigid construction of the words ‘previously’ and held that the appellant could qualify for admission to the bar as an advocate and solicitor. If a too literal adherence to the words of an enactment appears to produce an absurdity or an injustice, it should be the duty if the courts to ascertain whether the language is capable of any other fair interpretation.

In the case of London and North Eastern Railway v Berriman [1946] AC 278, where Mr Berriman, a railway worker, was knocked down by a train while topping up the oil in the boxes which lubricated the points. Not look-out man had been provided to warn Mr Berriman of the approaching train. His widow claimed compensation under the Railway Employment (Prevention of Accidents) Act 1900 which provided that the railway company were under an obligation to provide a look-out man whenever an employee was engaged in ‘relaying and repairing’ the line. Under the literal rule oiling did not come into either of these categories. This result although very harsh could not be said to absurd so the golden rule could not be applied . The Golden Rule can prevent absurdity and injustice caused by the literal rule, but it also doesn’t provide a clear meaning of what is an absurd result. Hence a broader way must be applied when applying the Golden Rule to expand the meaning of ‘relaying and repairing’ and require the London and Northern Railway to compensate the widow for the loss of his husband. But the House of Lords interpreted the words literally and decided that as Mr Berriman was maintaining the track, rather than ‘relaying and repairing’ it, he was not covered by the Act and unfortunately that the widow was entitled to nothing including any sorts of compensation. This result although very harsh could not to be said to be absurd so the Golden Rule could not be applied as there was no ambiguity in the words therefore mischief rule could also not be applied in this case.

In conclusion , we can conclude that the Golden Rule will bring many advantages as it allows the court to make sensible decisions and prevents Parliament from having to pass amending legislation. Besides, it also respects the authority of Parliament as it only allows wording to be altered in very some special situations when the results or outcomes would be absurd or repugnant. In the R v Allen (1872) LR 1 CCR 367 case where the loopholes were closed, the decision was in line with Parliament’s intentions and it gave a more just outcome. This is

because the Golden Rule can be used in the drafting errors in statutes, thus the words and the its meaning can be corrected immediately. But at the same time, there is not doubt that it also will creat a not so favouring outcome because it only allows judges to change the wording of the statutes in very limited circumstances. It could not be applied in the case of London and North Eastern Railway v Berriman [1946] AC 278 because although the situation could be considered unfair and it was not absurd or repugnant, the widow couldn’t get compensation because the wording of the statute didn’t allow for this circumstance. It is also unpredictable and lacks of guideline because the rule does not allow judges to change the wording of the statute. A major disadvantages of the Golden Rule is that judges can technically change the law by changing the meaning of words in statutes. They can potentially infringing the separation of powers between legal and legislature. The Golden Rule won’t help if there is no absurdity in the statute. So as we can see from those cases, we can conclude that golden rule is a rule that can help the judges to prevent absurdity outcomes but at the same time, it will lead to an unfair outcomes , such as in the case of London and North Eastern Railway v Berriman, so the judges must consider cautiously and must be wise before they make any judgement by applied any rules such as Golden Rule....