Decision No. 1/2005 (Majority Decision)

1. Issue
Whether Para 701.3 (a) of the Book of Discipline of The Methodist Church in Malaysia, 2004 applies to Rev. Ng Ee Lin and if so, his term of office as a member of the Judicial Council ceases on 11 January, 2005 when he attained age 70.

2. Coram
Before the following Council Members:-
a) Mr Hii Ching Chiong (President)
b) Rev. Ting Moy Hong (Vice President)
c) Mr. Desmond Wee Tian Peng (Secretary)
d) Mr. V. Tharumaraj
e) Rev. Steward Damat

In the presence of:
Mr. Anthony Row and Mr.Tung Kam Seng, both as Counsel for the Petitioner

In the absence of:
Rev. Ng Ee Lin, the Affected Party.

3. Jurisdiction
The Judicial Council has jurisdiction under paragraph 714 of the Methodist Discipline, 2004 (hereinafter referred to as the "Discipline").

4. Statement of Facts
(a) The Petitioner is the General Conference Executive Council of the Methodist Church in Malaysia (hereinafter referred to as "the GCEC")
(b) The Petition is filed by Mr. Tung Kam Seng, Secretary of GCEC, on behalf of the Petitioner and as directed by the Petitioner.
(c) That the Petitioner is seeking the declaration as stated in Para (h) hereunder in pursuance of Para. 714 of the Methodist Book of Discipline, 2004.
(d) Para. 701.3 of The Book of Discipline of The Methodist Church in Malaysia, 1996 (hereinafter referred to as "the 1996 Book of Discipline") provides that "the term of office of a member of the Judicial Council shall be a maximum of eight years; provided however, that a member whose seventieth birthday precedes the first day of the regular session of a General Conference shall be released at the close of the General Conference from membership or responsibility in the Council, regardless of the date of expiry of his term of office".
(e) Para 701.3 of the 1996 Book of Discipline was amended, deleted and replaced by Para 701.3 (a) of the Book of Discipline of The Methodist Church in Malaysia, 2004 (hereinafter referred to as "the 2004 Book of Discipline") at the 8th Session of the General Conference in 2004 and which now provides that "a member's term of office shall be eight years, or shall cease upon the member attaining age of seventy, whichever is earlier"
(f) The amended provision, Para. 701.3 (a) of the 2004 Book of Discipline came into effect on January 1, 2005 in accordance with Para 43, Article 1 of the 2004 Book of Discipline unless otherwise specified.
(g) Rev. Ng Ee Lin was elected to the Judicial Council at the 7th Session of the General Conference in 2000 for a term of eight (8) years. His date of birth is January 11, 1935 and he attained age 70 on January 11, 2005. Had Para 701.3 of the 1996 Book of Discipline not been amended, it appears that his term of office as Judicial Council member continues until the 9th Session of the General Conference in 2008.
(h) The Petitioner therefore sought a declaratory decision whether Para. 701.3 (a) applies on Rev. Ng Ee Lin's term of office as a member of the Judicial Council, and if so, his term of office as a member of the Judicial Council ceases on 11 January, 2005 when he attained age 70.

5. Grounds and analysis of Decision
We allow the Petition on the following grounds and analysis:-

1) We take into consideration the Petitioner's submission that the intention of the Legislature to amend Para. 701.3 of the 1996 Book of Discipline to Para. 701.3(a) of the 2004 Book of Discipline is to ensure that the term of office of the member of Judicial Council is consistent with the eligibility and age limit of the elected members that is fixed at 70. The amendment was made to streamline the term of office with the age limit in the present provision, which is similar to other provisions existing in the 1996 and 2004 Book of Discipline. They are seen at Para 1104.2 which states that "a member of any agency is eligible to serve provided that during the quadrennium for which he is elected to serve, his/her 70th birthday does not fall within it"; At the local church level, Para 149.2 states that "The elective stewards shall not be less than 21 years of age nor more than 70……." and Para 150 of the 2004 Book of Discipline states that "all ex-officio officers……… shall not be less than 21 years of age nor more than 70 years of age" .

2) It is expressly mentioned in Para. 43, Article 1 of the 1996 and 2004 Book of Discipline that "all legislation of the General Conference of the Methodist Church in Malaysia and amendments to the Rules of Organization and Administration shall become effective January 1, following the Session of the General Conference at which it is enacted unless otherwise specified". In this particular case, the effective date for enforcement of Para. 701.3 (a) shall be on January 1, 2005 and when Rev. Ng Ee Lin's age attains 70 on 11 January, 2005, the amendment certainly applies to him because the date falls within the time period of the effective date.

3) On the overall interpretation of the Discipline and the specific date of coming into force of the amendment, we are of the opinion that the Legislature has a clear intention to apply Para. 701.3 (a) to members of the Judicial Council on the specific date on 1 January, 2005 and hence the issue of whether the amendment did apply retrospectively or prospectively does not arise.

4) There is an argument that generally, the amendment should not operate retrospectively unless a contrary intention appearing in the written law (See Section 77 of the Interpretation Acts, 1948 and 1967 (Act 388)). This is only a general rule of presumption that may be rebutted by express words in the Statute. We are of the opinion that the specific provision of Para 43, Art. 1 reflects that contrary intention of the Methodist Book of Discipline. In other words, the express words of the Methodist Book of Discipline have thus rebutted the general rule presumption against giving statutes a retrospective operation.

6) DECISION
In light of the above reasons, the majority held the view that Rev. Ng Ee Lin's term of office as a member of the Judicial Council ceased on 11, January, 2005, the date on which he attained age 70

Dated this 5th day of November, 2005.
 
Hii Ching Chiong                                    Desmond Wee                                       Daphne R.N. Sebastian
Rev. Steward Damat                               Rev. Yau Kah Fatt                                  Tan Foong Luen

Decision No. 1/2005 (Dissenting Decision)

The facts of the matter are as stated in the petition.

The question before us is whether para 701 (3) of the Methodist Book of Discipline 2004 applies to Rev. Ng Ee Lin and if so, his membership with the Judicial Council ceases on 11 January 2005 when he attained the age of 70.

We hold that his membership with the Judicial Council only ends at the close of the next General Conference.

The following are the grounds for our decision-
1. He was elected to the office during the 7th General Conference. The relevant provision in effect then was para 701 (3) of the Methodist Book of Discipline 1996. Such provision governs his membership with the Judicial Council.
2. There being no retrospective effect provided for with regards to the amended para 701 (3) of the 2004 Book of Discipline, the relevant provision which pertains to his position upon his attaining 70 years of age can only be para 701 (3) of the 1996 Book of Discipline.
3. The argument by the petitioner that there is a lacuna in the para 701(3) of the 1996 Book of Discipline with regards to members of the Judicial Council attaining the age of 70 before the next general conference cannot be upheld. Para 701(3) of the 1996 provision says very clearly that the said person shall be released only at the close of the General Conference…regardless of the date of expiry of his term of office.
4. Submissions were made that Rev. Ng Ee Lin's membership should cease also by virtue of his irregular election to the Judicial Council at the 6th Session of the General Conference. We are humbly of the opinion that we are confined to the petition before us, that is, if Rev Ng Ee Lin's membership with the present Judicial Council cease upon his attaining age 70 by virtue of the amended para 701(3) which came into effect on 1 January 2005. Hence, the argument alluding to the irregular election to the Judicial Council during the 6th General Conference is irrelevant and therefore disregarded in our consideration of the petition before us.

Dated this 5th day of November, 2005

Rev. Dr. Ezra Kok Hon Seng                            V. Tharumaraj                                     Rev. Ting Moy Hong