Judicially Recognised Social Legislation

by | Jan 6, 2022 | Law

Social legislation are “a specific set of laws passed by the legislature for the purpose of regulating the relationship between a weaker class of persons and a stronger class of persons.”[1]

The rationale behind social legislation was stated by the Federal Court in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 (FC):

“Given that one side always has the upper hand against the other due to the inequality of bargaining power, the state is compelled to intervene to balance the scales of justice by providing certain statutory safeguards for that weaker class.”[2]

When it comes to interpreting social legislation, the courts are to “[construe] its provisions to give [its] provisions a construction which would assist to achieve the object of the Act.”[3]

The following is a non-exhaustive list of legislation (arranged alphabetically) which have been expressly recognised by the courts as social legislation.

1. Drug Dependants (Treatment and Rehabilitation) Act 1983

In the Supreme Court case of Ang Gin Lee v Public Prosecutor [1991] 1 MLJ 498, Hashim Yeop A Sani CJ (Malaya) held:

“[The Drug Dependants (Treatment and Rehabilitation) Act 1983] is a social legislation of sort.”[4]

2. Employees Provident Fund Ordinance 1951

The Federal Court in Employees Provident Fund Board v Dr Chelliah Bros [1969] 1 MLJ 161 enunciated the following:

“The Employees Provident Fund is essentially a social legislation enacted to benefit employees.”[5]

The Employees Provident Fund (“EPF”) Ordinance 1951 later became the EPF Act 1951, and subsequently was repealed and replaced by the EPF Act 1991.[6]

3. Employees Provident Fund Act 1991

In Lembaga Kumpulan Wang Simpanan Pekerja v Ong Lian Chee (suing as administrator of the estate of Goh Tin Poh, deceased) [2010] 4 MLJ 762, Low Hop Bing JCA stated:

“… the EPF Act 1991 which is a piece of social, legislation wherein the underlying purpose or object is no doubt the promotion of the welfare of the members, in the context of beneficient social legislation, the provisions therein must receive a broad, liberal and functional or purposive interpretation — see Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v Sarawathy Kathan [2009] 1 MLJ 611; [2009] 3 CLJ 335 (CA).”[7]

See also Sivamurthy s/o Muniandy & Ors v Lembaga Kumpulan Wang Simpanan Pekerja [2013] 5 MLJ 533 (CA), at para 14.

4. Employees’ Social Security Act 1969

The Federal Court in Rethana v Government of Malaysia [1984] 2 MLJ 52 recognised that the Employees’ Social Security Act 1969 is a social legislation:

“In the present case the Employees’ Social Security Act, 1969 is being challenged not on the basis that Parliament has no power to enact it, but on the ground that some of its provisions are inconsistent with certain provisions of the Constitution. Being a social legislation involving matters pertaining to labour and social security …”[8]

See also Sri Mahanum bt Yup (suing as widow to Mohd Yusof bin Sahak, deceased) v Representative of the estate for Raden Benni bin RS Tanuwidjaja, deceased & Anor [2019] 4 MLJ 362 (CA), at para 8; Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v Saraswathy a/p Kathan [2009] 1 MLJ 611 (CA), at para 17.

5. Employment Act 1955

Low Hop Bing JCA in Golden Hope Plantations (Peninsular) Sdn Bhd (Ladang Sungei Senarut) v Saraswathy a/p Kathan [2009] 1 MLJ 611 enunciated the following:

“The question for determination in the instant appeal calls for an examination and interpretation of the Employment Act 1955 and the SOCSO Act. Both these Acts come within the category of social legislation.”[9] (Emphasis mine)

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Accrual of Cause of Action for Liquidated Damages in Housing Development Contracts of Sale

by | May 25, 2021 | Law

Section 24 of the Housing Development (Control and Licensing) Act 1966 [“HDA 1966”] empowers the Minister of Housing and Local Government to make regulations for the purpose of carrying into effect the provisions of the HDA 1966.

Pursuant to Section 24 of the HDA 1966, the Minister introduced the Housing Development (Control and Licensing) Regulations 1989 [“HDR 1989”] which came into force on 1st April 1989.

Clause 22(3) of Schedule G to the HDR 1989 states:

“For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Building.” (underline mine)

Clause 25(3) of Schedule H to the HDR 1989 provides the following:

“For the avoidance of doubt, any cause of action to claim liquidated damages by the Purchaser under this clause shall accrue on the date the Purchaser takes vacant possession of the said Parcel.” (underline mine)

Both clauses were first introduced by way of the Housing Developers (Control and Licensing) (Amendment) Regulations 2002 [PU(A) 473/2002].[1] Subsequently, when the Housing Developers (Control and Licensing) (Amendment) Regulations 2007 [PU(A) 395/2007] was introduced, both clauses remained in Schedules G and H of the HDR 1989 respectively.

The Minister’s intention in introducing Clause 22(3) of Schedule G and/or Clause 25(3) of Schedule H to the HDR 1989 may have been noble, namely to prevent limitation from setting in[2] and barring claims for liquidated damages from purchasers.

However, a plain reading of both clauses results in an undesirable scenario whereby purchasers are unable to bring a civil suit against the developer for liquidated damages until and unless they have received vacant possession.

Assuming a developer is x years late and vacant possession has not yet been delivered to the purchasers, a civil suit by a purchaser against the developer would be legally premature and could possibly be struck out e.g. for lack of a reasonable cause of action.

Unscrupulous developers would be better off not completing the housing development rather than completing it late.

This would undoubtedly defeat the intention of Parliament (in relation to the HDA 1966) and the Minister (in relation to the HDR 1989) in enacting such social legislation for the protection of the purchasers.[3]

Some of the options considered to avoid the above undesirable scenario include the parties’ modification, sidestepping the clauses, and the controller’s modification.

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