Issues in Charity Litigation in Malaysia

An Overview of Issues in Charity Litigation in Malaysia * 2001

By Mary George *  

Abstract

The Malaysian law of charities consists of a variety of legislation, both public and private, and case law from local and foreign jurisdiction.  The dearth of written literature is compounded by the legal breadth of the topic.  This article draws together the various statutes and case law on the Malaysian law of charities by reference to three additional sources of law regarding the establishment and regulation of charities, namely, the Companies Act 1965, the Societies Act 1966, and the Income-tax Act 1961.  While essentially a compilation in nature, for purposes of legal evaluation, this paper also addresses the flaws of the current system and suggests some changes for reform. 

1. Introduction

Malaysia, comprising West and East Malaysia, is a federation of 13 states and two federal territories with a parliamentary system of government based on periodic multiparty elections.  The states of Sabah and Sarawak comprise East Malaysia.  Malaysia is a developing economy and a member of the Commonwealth.  For laws passed after Independence on 31 August 1957, the Constitution is the supreme law of the land.  Laws passed before Independence, which have not been revised or repealed before this, have power under the Constitution and are deemed to be in force. 

There are several statutes dealing with the law of not-for-profit organisations.  The only not-for-profit-organisation addressed in this paper is the charity.  As far as the law of charities is concerned, those entities are governed by laws passed both before and after Independence.  The constitutional basis of a charity may vary and could fall under a trust deed, a society, or a company.  The charity may exist as a trustee corporation.  Where applicable its income may be exempt from the provisions of the income-tax legislation.

This paper discusses the following topics:

1.    description and types of charity;

2.    sources of the law of charities;

3.    constitutional bases of charities;

4.    trusts and the National Land Code 1965 and charitable trusts over land;

5.    the Pemsel model of classification of charitable trusts;

6.    the Cy-pres Scheme;

7.    unidentified donors and the issue of accountability;

8.    income-tax exemption; and

9.    the roles of the Attorney-General, the Public Trustee Company or Amanah Raya Berhad and ordinary trustees in the administration of charities.

The constitutional basis of charities in turn covers those established or registered under (a) federal statutes and state enactments; (b) the Companies Act 1965 [1] [ and associated Guidelines; (c) the Societies Act 1966 [2] and associated Guidelines; and (d) the law of trusts and those arising through wills but governed by the law of trusts. 

2. Descrption and Types of Charity

There are several descriptions, elements of, and references to the term “charity”.  A general survey of the concept shows a variation from the traditional English trust approach involving the classical public benefit test and eleemosynary element, to statutory trusts, to varying shades of philanthropic activities to the latest understanding involving an organisation that makes profit but does not distribute the same to its members.   

The term “charity” has eluded a standard definition that encompasses its substantive elements and constitutional bases under which it arises.  Though the legal environment in Malaysia cannot be said to be encouraging to the establishment of charities, it is not discouraging either.  While the older charitable objectives may be said to be considerations of religion or salvation, newer beneficent objectives include education, loyalty to the nation or encouragement of virtues of tolerance or humanity in mankind towards the animal kingdom.  With regard to the last category, these bequests could also fall under non-charitable purpose trusts where the human intention is to benefit select categories of animals.  These categories are restricted because the beneficiary is non-human and therefore could be subject to mal-administration. [3]  

“Public benefit,” “benefit of a section of the public,” “welfare of the people” are some of the phrases used to refer to charities in Malaysia.  The different types of charities include statutory charities, charitable societies, charitable companies, trust companies, charitable trusts arising from trust deeds and testamentary charitable trusts. 

3. Sources of the Law of Charities

3.1 Legislation, Local and Commonwealth Cases

3.1.1 Charitable Trusts, Charitable Societies and Corporations

The primary sources of the Malaysian law of charitable trusts are the Federal Constitution, local legislation, local cases and custom and to the extent the law is in pari materia, cases from the United Kingdom, Singapore and other Commonwealth jurisdiction are admissible.  Under the Federal Constitution, equity and trusts are governed by section 4(e) (i), Schedule 9, List 1 of the Federal List.  Charities, charitable institutions and trustees excluding wakafs and Hindu endowments are dealt with under section 15(c ), Schedule 9, List 1 of the Federal List.  Hindu endowments are covered by section IX, 1 –15 (c ).  Wakafs are dealt with under List II of the State List.  Charitable trusts in Sabah and Sarawak are governed by section 15, Schedule 9, List III A of the Supplement to Concurrent List.  What this classification implies is that while the distribution of powers between the Federal and State Lists is clear, in the case of the Concurrent List, should a conflict arise, the matter will be resolved in favour of the Federal Government. 

The applicability of English common law and equitable principles is subject to section 3 of the Civil Law Act 1956, [4] which provides for a cut-off date for West Malaysia, Sabah and Sarawak.  This section provides that the application of UK common law, rules of equity and certain statutes, “save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7 April 1956.”  In Sabah, the Court has to apply the common law of England and the rules of equity together with the statutes of general application, as administered or in force in England on 1 December 1951.  In Sarawak, the court must apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however, to sub-section (2) (ii).  This proviso states that the said common law, rules of equity and statute of general application “shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.”  Section 3(2) provides that “subject to the express provisions of this Act or any other written law in force in Malaysia or any part thereof, in the event of conflict or variance between the common law and the rules of equity with reference to the same matter, the rules of equity shall prevail.” 

The local trust case law is in turn replete with English common law, which is applied subject to local legislation and circumstances.  Unlike the Indian Trusts Act 1882, there is no legislation in Malaysia defining or describing the trust obligation.  In Malaysia, a principal statute that relates to trustees is the Trustee Act 1949 [5] .   It came into force in West Malaysia on 31 December 1965.  There are also several statutes that contain the word ‘trust’ or ‘fund’ or ‘trust fund’.  According to the case of Iskandar Gayo v Datuk Joseph Pairin Kittingan [6] , these statutes may merely contain governmental obligations that are non-justiciable before a court of law.  Therefore they are considered as trusts in a ‘higher sense’.

The applicability of the Civil Law Act 1956 to local situations has been highlighted in a number of decisions.  The general law is based on judicial precedent.  In Warren v Tay Say Geok & Ors [7] , Lord Reid, Lord Hodson and Sir Benjamin Olmerod ruled:

By s.3 of the Civil Law Act 1956 (Act 67) the Courts of Malaya apply the common law of England and the rules of equity as administered there, save in so far as other provisions are made by any written law in force in the Federation.  There is a proviso that such law and rules shall be applied so far only as the circumstances of the States comprised in the Federation and their respective inhabitants permit and subject to such qualification as local circumstances render necessary.

Where there is no written law in force in the Federation, the court will apply the common law of England and rules of equity as administered in England by virtue of sub-s.(2) of that section.  Where there is a conflict between common law and equity, equity prevails.  Privy Council decisions up to 1984 are binding on the local courts. 

By their very nature of perpetual duration, charities are not subject to the Rule Against Perpetuities.  In Malaysia, the Rule Against Perpetuity is found in Part VII, Sections 17 to 25 of the Civil Law Act 1956.  Property disposed of by Muslims and by the natives of Sabah and Sarawak are exempted under the Civil Law Act 1956.  In this context, the Singapore case of Hong Kong Bank Trustee (Singapore) Ltd v Tan Farrer & Ors [8] does not apply to Malaysia as this case relies on the Accumulations Act of 1800. 

4. Constitutional Basis

The constitutional basis of charities in Malaysia takes various forms.  Statutory charities are established by statute, federal or state.  Charitable companies are registered trustee corporations under the Companies Act 1965 which may be either:

·         a registered trust company under the Trust Companies Act 1949 [9] or

·         a corporation that is a public limited company under the Companies Act 1965 or under the laws of any other country, which has been declared by the Minister to be a trustee corporation for the purposes of the Companies Act 1965.

Charitable societies are registered societies under the Societies Act 1966.  Finally, there are the charitable trusts which arise under trust deeds, whether stamped or unstamped, and through wills. 

4.1 Federal Statutes on Trusts, Funds, Trust Funds, Charities and Charitable Trusts

The secondary sources of the law on trusts, funds, charities and charitable trusts are highlighted below:

     i.        The Trust Companies Act 1949 provides for the registration and regulation of trust companies in Malaysia.

    ii.        The Trust (State Legislatures Competency) Act 1949 [10] confers upon State Legislatures authority to pass laws providing for the establishment of trusts.  This Act only applies to West Malaysia.

   iii.        The Housing Trust Act 1950 [11] constitutes a Housing Trust for Malaysia and makes provision for the development of land for housing and for charging development rates in respect of such land.

  iv.        The Trustees (Incorporation) Act 1952 [12] provides for the incorporation of the trustees of certain bodies or association of persons.  This Act only applies to West Malaysia.

   v.        The National Trust Fund Act 1988 [13] establishes the National Trust Fund and provides for the management of that Fund and other matters incidental thereto.

  vi.        The Labuan Trust Companies Act 1990 [14] provides for the registration of companies as trust companies in Labuan, for the prescription of their powers and duties and for matters connected therewith or incidental thereto.

 vii.        The Employees Provident Fund Act 1991 [15] has nine parts spread over 86 sections of which Part I deals with preliminary matters and Part II with the establishment and composition of the Board of Trustees and the Investment Panel. Part III deals with the establishment of the Employees Provident Fund and Part IV deals with the appointment of officers and servants, their powers, functions and duties. Part V focuses on the contributions to the Employees Provident Fund whereas Parts VI, VII and VIII cover the withdrawal of contributions, offences and proceedings and the power to make regulations and rules respectively.  Part IX deals with repeal and transitional provisions.  The Employees Provident Fund Act 1991 faced a major amendment in 1995.  Amendments were made to ss.2, 4, 13, 24, 26, 27, 30, 31, 33, 34, 35, 36, 37, 43, 44, 45, 47, 48, 50, 51, 54, 55, 58, 63, 65, 66, 72, 73, and the Fourth Schedule was deleted.  The following new sections were also introduced – ss.26A and 26B which deal with the power of the Board to invest in an approved company; s.37A – provides for the power of the Board to assess contributions based on information available and s.50A deals with the additional payment of dividend.

viii.        The Pensions Trust Fund Act 1991 [16] established the Pensions Trust Fund and provides for the management of the Fund and other incidental matters.  The Fund is administered by the Accountant-General of Malaysia, who is responsible for its day-to-day management.  The Minister for Finance can apply the moneys in credit of the Fund to meet the cost of payment of pension, gratuity or other benefit granted under any written law for officers of the public service and employees of statutory and local authorities (s.9).  The Fund consists of moneys appropriated from the Federal Consolidated Fund, the Employees Provident Fund Board, monthly contributions made by employers and organisations to the Consolidated Fund, any investment of the Fund and any other source as approved by the Minister (s.8).  The trust fund has a council of trustees known as the Pensions Trust Fund Council (s.4(1)).  They are appointed by the Minister of Finance (s. 4(2)).  They can delegate in writing to any person all or any of their powers and duties (s. 4(3)).  Besides the Trust Council, there is also the investment arm of the Fund called Investment Panel.  The Investment Panel is responsible to the Minister (s.5).  Provisions regulating the appointment, revocation, resignation, vacation of office, remuneration or allowance and disclosure of interest of trustees are regulated by the First Schedule to the Act.  All members of the Council and the Investment Panel are deemed to be public servants within the meaning of the Penal Code (s.7).  There are also guidelines on investment of the Fund (s.10).  The Trust Fund has to bear all administration fees (s.11).  The Council is required to keep accounts and audit the same.  It also has to submit an annual report dealing with the investments of the Fund (s.15). 

  ix.        The functions of the Public Trustee Act 1950, [17] an Act that provided for the appointment of a Public Trustee, now repealed, have been taken over by a company called the Amanah Raya Berhad (Bhd). set up under the Public Trust Corporation Act 1995 [18] .  The Public Trust Corporation Act 1995 which came into force on 1 August 1995, applicable throughout West and East Malaysia, is a significant development in the law relating to trusts for the following reasons:

·         The Act has repealed the Public Trustee Act 1950 and all rules made thereunder.

·         Consequent upon the introduction of this law, a company by the name of Amanah Raya Bhd. has assumed the role of the Public Trustee and Official Administrator.  This company is incorporated under the Companies Act 1965 and s.3 of the Public Trust Corporation Act 1995.

·         The Act features the appointed date system where the Minister may direct different provisions of the Act to come into force on different dates in different states.  This means that the Public Trustee, a corporation solely established under the Public Trustee Act 1950 and the Official Administrator a statutory office established under the Probate and Administration Act 1959 have ceased to exist.

·         Subject to the provisions of this Act of 1995, all written laws affecting the Public Trustee and the Official Administrator in force immediately before the appointed date, shall, until amended or revoked, continue in force on and after the appointed date and be construed as if this Act had not been passed.  This Act also states that any reference to the Public Trustee and Official Administrator shall, unless the context otherwise requires, be construed as references to the Corporation, and expressions importing such references shall be construed accordingly.

·         Every order, appointment and notification made under the Public Trustee Act 1950 and in force immediately before the appointed date shall, in so far as they are not inconsistent with this Act of 1995, be deemed to have been made under this Act.

·         The Probate and Administration Act 1959 [19] had to be amended accordingly since the Amanah Raya Bhd. set up by the Trust Corporation Act 1995 assumed the roles of the Public Trustee and Official Administrator.  Hence, no more reference is to be made to the Official Administrator or to the Public Trustee.  All functions and powers of the Official Administrator are transferred to the Corporation.  An amendment to s.86 of the Act has enabled the Corporation to accept funds which a personal representative has not been able to dispose of immediately by distribution upon the conclusion of the administration of the estate of a person dying testate or intestate.

·         S.19 deals with the payment of a minor’s maintenance and advancement.  S.19(1) deals with maintenance and s.19(2) with advancement.

   x.        The Malayan Railway Provident Fund (Dissolution) Act 1995 [20] repealed the Malayan Railway Provident Ordinance 1952, dissolved the Malayan Railway Provident Fund established under the Ordinance and transferred all its properties to the new privatized entity, Keretapi Tanah Melayu Bhd or the Malayan Railway Berhad.

  xi.        The Tabung Haji Act 1995 [21] established the Lembaga Tabung Haji and the salient feature of the Act is that, inter alia, it acts as a pilgrim organiser (Ss 27 to 36) to persons professing the Muslim faith.  It was published in the Gazette on 16 February 1995.  On the appointed day, it repealed the earlier Act entrusted with such functions, the Lembaga Urusan dan Tabung Haji Act 1969 [22] and the corporate body – the Lembaga Urusan dan Tabung Haji established under the 1969 Act ceased to exist by operation of this Act.

On charities and religion, some Ordinances and Acts in force, are as follows:

1.    House to House and Street Collections Act 1947. [23]

2.    Cheng Hoon Teng Temple (Incorporation) Act 1949. [24]

3.    Girl Guides Act 1953. [25]  

4.    Visitor of the Christian Brothers’ School (Incorporation) Ordinance. [26]

5.    Lady Superior of the Society of Saint Maur (Incorporation) Ordinance 1955. [27]

6.    Methodist Church in Malaysia Act 1955. [28]

7.    Salvation Army (Incorporation) Ordinance 1956. [29]  

8.    Pure Life Society (Shuddha Samajam) Incorporation Ordinance 1957. [30]

9.    Titular Superior of the Brothers of Saint Gabriel (Incorporation) Ordinance 1957. [31]  

Religious and other similar institutions or a branch of an overseas religious institution when established under an Act of Parliament have certain advantages such as (i) acquisition of a charitable status; (ii) income-tax exemption, without the necessity of submitting the annual balance sheet reflecting a profit and loss statement; (iii) and exemption from being subject to surprise visits by various governmental officials, which are requirements of the law under the Companies Act 1965 or the Societies Act 1966.

4.2 State Enactments on Trusts, Funds, Trust Funds, Charities and Charitable Trusts

State enactments which contain the word ‘trust’ in them may not be charitable trusts following the ratio decidendi of the case Iskandar Gayo v Datuk Joseph Pairin Kittingan.  They may only be governmental obligations or trusts in the ‘higher sense’.  The State Heritage Trust Fund Enactment 1990 (Trengganu State Enactment No.2/1990) was passed in 1990 and it came into force on 6 December 1990.  The Enactment provides for the establishment and management of a fund namely, the Tabung Pegawai-pegawai Masjid (First amendment) Enactment 1991 or translated as the Mosque Officers Fund (Kedah State Enactment No.9/91).  The first amendment to the Enactment was passed on 24 August 1991 and it came into effect from 1 September 1991 vide KPU 32/91.

The Tok Kenali Trust Fund Enactment 1992 is a Kelantan State Enactment [32] [ which established the Tok Kenali Trust Fund and provides for the management of that Fund and other matters incidental thereto.  It is deemed to have come into force on 1 August 1992.

The Tabung Warisan or Inheritance Fund (Amendment) Enactment 1993, a Selangor State Enactment (No3/93), inserted new ss.7A&7B in the Tabung Warisan Enactment 1991,Selangor State Enactment (No.1/91).  It is deemed to have come into force on 1 January 1993.

4.2.1 Laws of Sarawak and Sabah

The Sarawak Charitable Trusts Ordinance 1994, Cap.7 repeals and replaces the Charitable Trusts Ordinance. [33] It strives to make better provisions in the law with respect to the creation, administration and management of charitable trusts and to provide for matters connected therewith and incidental thereto.  It has 19 sections and a Schedule that deals with the regulations of the Board of Trustees. 

S.2 of the Ordinance is the definition section.  ‘Charitable trust’ is defined as any trust or endowment over moveable or immoveable property, which is held, administered or managed for the furtherance of any charitable purpose.  ‘Charitable purpose’ means any purpose relating to the support and advancement of education, religion or sports and for the relief of poverty and the aged and for purposes, which are exclusively charitable and for public benefit according to the laws of Malaysia.  ‘Contributor/donor’ means any contributor, donor, benefactor, testator or provider of any property, which is subject to a charitable trust and includes any executor or administrator of the estate of such person.  ‘Beneficiaries’ mean any institution, person, community or class of persons deriving or receiving or entitled to any benefit from a charitable trust.  ‘Authorised investments’ refer to authorised investments specified in s.4 of the Trustee Act 1949 and includes any investment authorised by the Board subject to the trust created under s.3.

S.8 states that no trustee of a charitable trust shall be personally liable for any act or omission done or committed in good faith and without gross negligence for any debt, liability, act or omission of the Board.  Further, no trustee of a charitable trust shall be liable for breach of trust nor for any loss or damage by reason only of his continuing to hold an investment that has ceased to be an authorised investment.  Under s.9 the Minister has power to institute inquiries either generally or for particular purposes.  The outcome of such an inquiry is dealt with in s.10.  Where misconduct or mismanagement has been disclosed, s.11 provides the Minister with power to protect the trust property.

The provisions of sections 12 to 19 deal with additions to trust property, variation of charitable purposes, application to High Court, winding-up, rules of High Court that apply to any petition under the Ordinance, rule on locus standi and regulations, and repeal and savings.

The State Legislative Assembly of Sabah passed the Amanah Rakyat Negeri Sabah Enactment 1990 which provides for the establishment of a trust fund known as the ‘Amanah Rakyat Negeri Sabah’ meant for the people of the state and in 1994 passed three amendment enactments to amend the Sabah Foundation Enactment 1966, the Tun Fuad Foundation Enactment 1976 and the Government Trust Funds Enactment, 1964.  The amendments to the Sabah Foundation Enactment 1966 and the Tun Fuad Foundation Enactment 1976 deal with audit and accounts.  The third amendment was to the schedule of the Government Trust Funds Enactment 1964.  The amendment inserted immediately below the item ‘Inter-Administration Current Fund’ a new item of ‘Maintenance of Roads and Bridges Fund’.  This bears some resemblance to the Preamble to the Statute of Elizabeth 1601.

4.2.2  The Malacca Trust Fund Enactment 1994 and the Perak Foundation Enactment 1994

The Malacca Trust Fund Enactment of 1994 established the Malacca Trust Fund and provides for the management of that Fund.  The objective of the Trust Fund is not specifically stated but it may be gleaned from the four corners of the Enactment that it is for investment purposes.

The Perak Foundation Enactment is a well-worded piece of legislation that promotes a number of charitable purposes for the nationals of the State as stated in its Preamble, which is set out in the following terms:

An Enactment to establish the Perak Foundation for the purpose of improving and furthering the progress of education, sports, culture and educational facilities in the State of Perak and to encourage and promote Malaysian consciousness and for the giving of aid to charitable institutions; for the establishment of a Fund for the carrying out of purposes of the Foundation; and for matters connected therewith and incidental thereto.

It is uncertain as to whether s.4(k) amounts to a political trust under the Pemsel model of classification for political trusts are generally excluded from charities according to the case of Bowman v Secular Society Ltd. [34]   This Enactment repeals the Perak Foundation Enactment 1979.

4.3. The Companies Act 1965 as a Basis of Charities and Associated Guidelines

Article 4 of the Companies Act 1965 interprets a “trustee corporation” as

a.    a company registered as a trust company under the Trust Companies Act 1949; or

b.    a corporation that is a public company under this Act or under the laws of any other country, which has been declared by the Minister to be a trustee corporation for the purposes of this Act.

The Trust Companies Act 1949 provides for the registration and regulation of trust companies in Malaysia.

Under the Companies Act 1965, the objective of a charitable public company has to be usefulness to the community.  A “public company” is interpreted under Section 4, mentioned above, as a company other than a private company.  A “limited company” is interpreted in Section 4 as a company limited by shares or guarantee.  Under Section 4, a “company limited by guarantee” means a company formed on the principle of having the liability of its members limited by the memorandum to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up.  According to section 4, a “company limited by shares” means a company formed on the principle of having the liability of its members limited by the memorandum to the amount (if any) unpaid on the shares respectively held by them.

The terms of Section 24(2)(a) permit a public company with limited liability to be formed for the purpose of providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to the community.  Under this section, such a company is required to apply its profits if any, or other income in promoting its objects.  The section prohibits the payment of any dividend to its members. The Minister is empowered to direct that it be registered as a company with limited liability without the addition of the word “Berhad” to its name, and the company may be registered accordingly.  The distribution of profits to its members changes the charitable status of the company and the Minister is entitled to change the name of the company to reflect its profit sharing status.  This is done by revoking the license granted earlier and by changing the name of the company to Berhad.  Section 367 provides that if any person carries on a business under any name or title of “Berhad” or any of its abbreviations or uses “Limited” or any of its abbreviations, such person shall, unless duly incorporated with limited liability, be guilty of an offence under this Act, the penalty being imprisonment for three years or fifty thousand ringgit or both.  Section 19(2) provides that companies incorporated for the objectives spelt out in Section 24(2)(a) cannot own land without the license of the Minister. 

Walter Woon points out that the basic idea in a company limited by guarantee is that the members only have to contribute the amount that they have agreed to guarantee.  According to the terms of Section 18(1)(e) of the Malaysian Companies Act 1965, the amount to be contributed to by each member will be stated in the Memorandum of Association.  The advantages of a company limited by guarantee, according to Woon, is that more often than not, they are not trading companies being confined to organisations that seek the advantage of incorporation without wanting to engage in business.  This makes this type of company an excellent choice for the promotion of charitable, scientific, religious or artistic pursuits. [35]   Trust corporations fulfill several commercial purposes.  Section 74(1) provides that besides the functions listed under the Trust Companies Act, they are usually appointed as trustees for debenture-holders.

Guidelines of the Registrar of Companies

The Guidelines of the Registrar of Companies provide that the name of the company to be incorporated should reflect the charity and activity of the company.  Names that reflect profitable objectives are unacceptable.  Companies may use any of the following names, such as, Foundation, Institute, Academy, Corporation, Alliance, Federal, Chamber, Council, Fund, Memorial, and Centre.  Charitable companies are not permitted to use names such as Association, Union, and Society.  Similarly, a name that reflects or bears resemblance to any political party is also prohibited.  The powers of such companies are circumscribed under the Guidelines, for instance, these companies cannot raise public funds and cannot acquire or sell land except with the consent of the Minister.  The Memorandum and Articles of Association (M&A) cannot be amended without the consent of the Minister.  These companies can neither set up subsidiaries nor can they own more than 49 per cent shares in other companies.  In the “Model Memorandum and Articles of Association,” the Guidelines provide that the terms “Trustees” and “Board of Trustees” are suitable for companies that are named X Institute, X Fund, or X Foundation; whereas terms such as “Directors” and “Board of Directors” are suitable for companies that are styled “Academy”, “Centre”, “Memorial”, “Council” and “Institute”; and terms such as “Member of the Council/Council Member” and its body “Council” are suitable for a company referred to as a Chamber.  Following the winding up or dissolution of the company, Clause 10 of the Model Memorandum provides for a scheme very similar to cy-pres as follows: 

If upon the winding up or dissolution of the …[Foundation/Institute/Chamber/etc] …there remains, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the …[Foundation/institute/Chamber/etc] … , but shall be given or transferred to some other institution or institutions or organisation having objects similar to the objects of the …[Foundation/Institute/Chamber/etc] … and having been approved by the Director-General of Inland Revenue, Malaysia at or before the time of dissolution and if and so far as effect cannot be given to the aforesaid provision, to some other Funds of similar organisation [sic] or some charitable object approved by the Director-General of Inland Revenue, Malaysia.

Clause 11 provides for the limited liability of each of the members in the event of the company being wound up during the time that s/he is a member or within one year after he ceased to be a member for payment of debts and liabilities of the company contracted and to adjust or indemnify the other contributories amongst themselves, such amount not exceeding RM 100.00.  Clause 12 states that true accounts must be kept of the sums of money received and expended by the company and once a year, the accounts have to be examined and the correctness of the balance sheet ascertained by one or more qualified auditor or auditors.

4.4 The Societies Act 1966 as a Basis for Charities and Associated Guidelines

The laws applicable to the registration of societies are the Societies Act 1966 and the Rules of Registration 1984.  The Societies Act 1966 in section 2 interprets  “local society’ as “any society organized and established in Malaysia or having its headquarters or chief place of business in Malaysia, and includes any society deemed to be established in Malaysia by virtue of section 4.  Section 2 has an inclusive interpretation of “society” as any club, company, partnership or association of seven or more persons whatever its nature or object, whether temporary or permanent.  It does not include (i) companies registered under the Companies Act 1965; (ii) any association constituted under any written law; (iii) any registered trade union, any association, company or partnership formed for the purpose of making gain; (iv) any registered co-operative society, any organisation or association that is part of a school curriculum, and any “school, management committee of a school, parents’ association or parent-teachers’ association registered or exempted from registration under any law for the time being in force regulating schools”.  “Benefit” is interpreted as “payment made by a mutual benefit society for the relief or maintenance of the members or subscribers or on birth or death in accordance with the rules of the mutual benefit society”.  Section 5(1) of the Act empowers the Minister with absolute discretion to declare unlawful any society or branch which in his opinion, is used for purposes prejudicial to or incompatible with the interest of the security, public order or morality of Malaysia.  The Registrar of Societies (ROS) is empowered under Section 6 A (3) to refuse registration to such a local society.  The reason for refusal may be the unlawfulness of the society under the Act or any other written law or its likelihood to be used for unlawful purposes or purposes prejudicial to or incompatible with the peace, welfare, security, public order, good order or morality in Malaysia.  However, religious, social and cultural activities, women’s organisations, and activities falling under the sub-heading of advancement of education - choral singing, literature, dance and local self-defence, joint benefit, all categories of sport including the game of chess, youth, occupational advancement and generally environment, consumer related activity, international relations, population associations, Boy/Girl Brigades, and libraries are excluded from this sub-section. 

Politics has also been excluded from charitable societies.  Under section 2 of the Societies Act 1966, “political party” means:

a.    any society which by any of its objects or rules, regardless whether such object or rule is its principal object or rule, or constitutes merely an object or rule which is ancillary to its principal object or objects or to its principal rule or rules, makes provision for the society to participate, through its candidates, in elections to the Dewan Rakyat, (House of Commons) or to a Dewan Undangan Negeri (State Legislative Assembly), or to a local authority, or makes provision for it to seek the appointment or election of a person proposed or supported by it to the Dewan Negara (House of Lords); or

b.    any society which, notwithstanding anything contained in its objects or rules, carries on any activity or pursues any objective which involves its participation, through its candidates, in elections to the Dewan Rakyat, or to a Dewan Undangan Negeri, or to a local authority, or which involves its seeking the appointment or election of a person proposed or supported by it to the Dewan Negara”.

Guidelines on Charities under the Societies Act 1966

The Guidelines of the ROS provides that charitable trusts may be registered under the Societies Act 1966 where the welfare of the public is the dominant concern.  In their Information System, the Department of the ROS has classified charities under the heading of “Welfare of the People/Population”. 

There are 18 categories under this sub-heading as follows: welfare, human rights, old folks, foundations, associations by the name of Tow Teong Bernama Lim, Huay Kuang, (which means Chinese originating from the same place in China) Lion, APEX, Rotary, Jaycees, Y’s men, Freemason-Grand Lodge, welfare foundations, handicap, orphans, old-age homes, YMCA, moral uplifting, burial grounds, and women’s social organisation.  An example of a well run charitable society is a Huay Kuang Society.  In the case of the Huay Kuang societies, in practice some of them have been in existence before 1949 and are very well-administered with their own set of by-laws.  Many of them are exempt from income tax. 

A charitable society seeking registration must fulfill the following criteria:

1.    It has to be for not-for-profit.

2.    The objective has to benefit the society, for example, the Yayasan Education Foundation, or it may be of mutual benefit where a certain amount of compensation is paid upon the death of a member.

3.    There must be more than seven members.

4.    An inaugural meeting must be held and a resolution passed to form a charity.  This must be followed by the election of a pro-tem committee and the rules of the association must be passed.

5.    The duly completed registration papers must be handed in to the Registrar’s office together with the required documents.

Charitable societies registered in Malaysia have a special feature in that the members must be Malaysian.  Holders of Malaysian Permanent Resident status are barred from being members.  However, depending upon the type of society, non-citizens may be members.  While the Societies Act provides that the Registrar is competent to make decisions on applications for registration of societies, there is, it seems, an unwritten rule that provides that these powers are limited.  In the latter sense, all applications for registration are subject to the approval of the relevant ministry and are not the decision of the Registrar of Societies.  For example, in the case of mere organisations such as international organisations, religious organisations, human rights organisations, they are required to have the approval of the Home Ministry.  Charitable organisations must have the approval from the Minister of National Unity.  The Registrar of Societies merely acts on orders from the top executives of the government who are usually members of the Cabinet. [36]   However, the Assistant Registrar of Societies has stated that the Registrar of Societies is empowered to make all decisions.  

Problems

The Department of the ROS is considered a security department and is placed under the Minister of Home Affairs.  There are national charities, state charities and local charities with the maximum number found at the local level. The power of registering a society, according to the Assistant Registrar of Societies, is solely vested with the Registrar who has the additional rights of refusal and cancellation.  As far as the ROS is concerned, so long as an organisation has a charitable objective, it will be registered as one and the name adopted by the charity such as Foundation (Yayasan) has little implication for the ROS.  However, it is believed that the practice of the ROC in this matter is different requiring more stringent conditions for the use of the name Foundation (Yayasan). [37]   

With the entry into force of the Sports Development Act, [38] sports organisations no longer seek registration under the Societies Act but register under the Sports Development Act. 

One of the frequent public queries directed at the office of the ROS is on alternative methods of registration of charities and their legalisation that may be suitable for different types of organisations.  Many organisations do not wish to be governed by ROS rules but instead want permanent trustees to operate their funds.  Therefore, it is of great interest to the department of the ROS to suggest alternative methods of charity registration, such as, registration under the Companies Act or by legislation as a government trust or constitution by a trust deed.  With regard to the last form, the issues of concern identified by the ROS are, first whether the trust deed will be registered under any public body and if so what are the various terms in nomenclature that are open to them?  Second, how would the terms of the trust deed setting up the charity be enforced by the beneficiaries?  Third, are such charitable trusts to be registered under the Attorney General’s Office?  Fourth, how would the beneficiaries know of the existence of the charitable trust and how would they know of a breach of trust?  Lastly, how and in what name would the charitable trust deal with the bank and third parties?  The law in Malaysia is that trusts arising through trust deeds need not be registered under any particular legal or non-legal body for their recognition or existence.  To make known their existence, it is advisable for the charities to advertise their objectives through the local newspapers and constitute themselves as an unregistered association at the very least.  These trusts need not be registered with the Attorney General’s office.  By a public announcement in the local dailies and through the conduct of annual general meetings and passing of an audited statement of accounts, almost any association will be able to keep track of its state of affairs.  It is the legal duty of the President, Vice-President, Secretary and Board of Trustees to administer the trust funds properly.  If there is a breach of trust they will be held liable for that breach.  As an association, the charitable trust will have a name and should be able to deal with third parties, vulnerable though it may be, at this point.  It is to remove this vulnerability that most lawyers agree to a registered society or preferably, adopt the company model of a charitable trust.

The Societies Act provides for the collection of funds from the public so long as they can meet the requirements of the Act.  The House to House and Street Collections Act involves checks by the police.  Solicitation of donations and funds through the setting up of websites on the Internet do not fall within the terms of the Street Collections law.  This Act needs to be amended to cater to this new form of solicitation posed by cyber technology.  Further, the police have no enforcement role on the Internet.  An alternative is for this aspect to be governed by the Welfare Ministry, which can lay down guidelines.  It, therefore, becomes important to ascertain what these rules are and how they are going to be enforced.  Similarly, when newspapers raise funds for various purposes, the question remains what is the legal status of the monies received?  In the eventuality of a dispute, the usual argument is to impress a constructive holding trust upon such funds.

4.5. Trust Law as a Basis For Charities

The Trustee Act 1949 unifies the law relating to trustees and extends the legislation throughout Malaysia.  During British rule, legislation regulating trustees only existed in the Straits Settlements of Penang, Malacca and Singapore, the Federated Malay States of Selangor, Pahang, Perak and Negeri Sembilan and in Johore, an Unfederated Malay State.  No such legislation existed in other states.  The precursor of the present Trustee Act 1949 was the Trustee Ordinance 1949.  The Trustee Act 1949, except for section 39(2), applies to trustees of charitable trusts.  Section 39 which deals with “Limitation on the number of trustees” in sub-section 2 provides that the restrictions imposed on the number of trustees, that express private trusts may not exceed four trustees in number, do not apply in the case of property vested in trustees for charitable, religious or public purposes.  In other words, in charitable, religious and public trusts the number of trustees may exceed four in number, if necessary.  The Trustee Act of 1949 is different from the Indian Trusts Act 1882 as the latter only applies to express private trusts. 

There is no system of double ownership of land in Malaysia as in England.  Under the Malaysian Torrens System of land ownership, registration is the cornerstone.  Trusts over land are recognized by the National Land Code 1965. 

4.5.1 Trusts and the National Land Code 1965: Charitable Trusts Over Land

Based on the maxim that equity follows the law, English law states that in the operation of trusts, the legal ownership of trust property is vested in the trustees of the settlement and the equitable ownership transferred to the beneficiaries.  This split in ownership has been traced down to the nature of double estate ownership of land and chattels in England. [39]   The application of this maxim to charitable trusts is equally true except that when a charity is wound up and a cy-pres scheme cannot be applied, then subject to the law of charities in England, there is “the possibility of a claim by the Crown to the property as bona vacantia. [40]    

In Malaysia, since there is no private or public trust act, English common law is applied.  The express private trust and the public or charitable trust are little understood in the light of English common law.  This is so because in Malaysia, the National Land Code 1965 stresses that registration is the cornerstone of ownership of land and the double estate ownership of land found in England is absent here.  In this sense, only selected aspects of English law are applied. 

A charity may involve a trust over land in which case the provisions of sections 344 and 345 of the National Land Code 1965 are attracted.  Section 344 (1) provides that where any land or share or interest in such a land is transferred in favour of a trustee through a trust deed or by a court order or by a Collector, the Registrar shall record this in the memorial of registration.  A trustee under this section may be a person or persons or body or bodies.  Section 344 (2) states that the Registrar is empowered to make additions or amendments to the existing memorial of registration on the vested shares or interests of the proprietor or co-proprietor or trustee or trustees when they so apply.  Section 344 (3) adds that the words ‘as trustee/s’ have been included in any memorial of registration pursuant to sub-section (1) or (2), or the corresponding provisions of any previous land law, any instrument declaring the trusts to which the land, share or interest is subject may, upon payment of the prescribed fee, be deposited with the Registrar for safe custody and reference, and no instrument of dealing shall be unfit for registration by reason only of the fact that it refers to any instrument so deposited.  Section 344(4) states that sub-sections (1) and (2) shall have effect subject to the provisions of section 39 of the Trustee Act 1949 which provides that where any immovable property is vested in trustees for charitable, religious or public purposes, the number of trustees may exceed four unlike express private trusts.  Section 345 (1) stipulates that where pursuant to section 344 or the corresponding provisions of any previous land law, any land, share or interest is registered in the names of two or more persons or bodies as ‘trustees’, it shall be held by them jointly; and accordingly, on the death of any one of them or in the case of a body, its dissolution, the said land, share or interest shall vest exclusively in the others.  In this manner, the legal interest in the property continues.

 4.5.1.1 Legal Issues in Charities Based on the Trust Model

One of the very first tasks of the trustees is to ascertain the nature of the power given to them by the settlor.  Instructions or commands given by the settlor have to amount to a trust power also known as a duty-power before it can be said that a trustee has neglected to carry out his duty.  This is true for all trusts, and particularly so in the case of charitable trusts.  Lord Eldon distinguished between powers and duty-powers in Brown v Higgs [41] in the following terms:

"It is perfectly clear that where there is a mere power, and that power is not executed, the court cannot execute it.  It is equally clear that wherever a trust is created, and the execution of the trust fails by the death of the trustee or by accident, this court will execute the trust.  But there are not only a mere trust and a mere power, but there is also known to this court a power which the party to whom it is given is entrusted with and required to execute; and with regard to that species of power the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it the court will, to a certain extent, discharge the duty in his room and place.  If the power be one which it is the duty of the party to execute -- made his duty by the requisition of the will -- put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion whether he will exercise it or not; and the court adopts the principle as to trusts, and will not permit his negligence, accident or other circumstances to disappoint the interests of those for whose benefit he is called upon to execute it."

A long line of cases including, in chronological order, Re Gestetner Settlement [42] , Re Coates [43] and Re Sayer [44]make it clear that, in the case of a mere power, it is not necessary to ascertain every member of the class of beneficiaries but only whether a particular praepositus can be regarded as the object of the power i.e. whether he qualifies to be a member of the class.  A power may be good although in favour of an indefinite class.  On the other hand, where it is impossible to make a complete list of beneficiaries, a duty-power or a power in the nature of a trust to distribute to members of such a class is void for uncertainty.  In Ogden's case, all members of the class were identifiable and the trust survived.  After review of these authorities, the Court in Re Chionh Ke Hu, held that that clause 5 of the testator’s will did not create a valid or binding trust, charitable or otherwise.  Further, a trust cannot be saved by treating it as a power because, as Lord Evershed MR said in Endacott's case, "the proposition that if these trusts should fail as trusts they may survive as powers, is not one which I think can be treated as accepted in English law".  The Court said that it could not write the will for the testator.

A valid charitable trust must fulfill the element of public benefit, unless it is for the relief of poverty.  The usual arguments advanced on behalf of a charity are that (1) the trust contains the element of public benefit; and (2) the administration of the trust is one which a court of law can undertake, enforce and control.  It becomes critical to the Court to find an element of either purpose or advancement in the intention of the settlor of the trust.  A gift for religious purposes must fulfill the element of public benefit to be prima facie charitable, and according to Lord Hanworth MR approving Rowlatt J's observations in Keren Kayemeth Le Jisroel, Ltd v Inland Revenue Commissioners [45] , the trust must advance religion in the sense of "the promotion of the spiritual teaching of the religious body concerned and the maintenance of the spirit of its doctrine and observances". 

Counsel arguing that an enforceable non-charitable trust exists will usually rely on the following proposition contained at page 482, para 804 of Williams on Executors and Administrators, [46] which reads:

"A gift may be valid even where it is expressed to be for a specific purpose and there is no person or persons named as legatee, or where the person named must, by the terms of the will, hold the gift for some specific purpose; and this is so, even if the purpose stated in the will is not charitable, provided the purpose is sufficiently defined. But where the testator expresses his intention vaguely and in effect leaves it to another to make a will for him, the gift is void for uncertainty.  Thus, a gift of a large income to trustees on trust to apply it to maintain the horses and hounds of the testator, together with their stables, kennels and buildings, for a period of 50 years, was held to be valid.  A gift of £1,000 to a trustee, to be applied in such manner as he should in his absolute discretion think fit towards the promotion and furthering of fox-hunting was also held to be valid.  Similarly, gifts have regularly been held valid, for the erection of tombs and monuments, where there is no question of uncertainty or perpetuity; likewise a gift for the erection of a Masonic temple.  Such gifts are valid although there is no person named as beneficiary or cestui que trust, but in so far as gifts by way of trust are concerned, they are regarded as exceptional, and the class of objects to be benefited will not be extended".

It is, however, clear that, in all the cases referred to as authorities for the propositions set out above, these were purpose trusts in the sense that the purposes of the various gifts were sufficiently defined.

In a review of the anomalous cases relating to horses, dogs, graves, monuments and fox-hunting etc. in Re Astor's Settlement Trusts [47] and in Re Endacott, decd [48] the Courts have clearly laid down that the scope of such cases should not be extended. In these anomalous cases the courts discovered indirect means of enforcing the execution of non- charitable purposes but held out a caution that such concessions to human weakness or sentiment should be exercised with restraint.  The principle underlying these exceptional cases is that, not only must there be non-charitable purposes which a court can control or enforce but the relevant purposes must be stated in phrases which embody definite concepts and the means by which trustees are to try to attain them must also be prescribed with a sufficient degree of certainty. [49]

In the present case, the Court found no purpose of any kind whether defined, apparent or capable of being inferred.  As Lord Evershed MR said in Endacott's case:

"No principle perhaps has greater sanction or authority behind it than the general proposition that a trust by English law, not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries.  These (anomalous) cases constitute an exception to that general rule.   I add also that, in my judgment, the proposition stated, in Mr Morris and Professor Barton Leach's book 'The Rule Against Perpetuities (1956)' (p 308) that if these trusts should fail as trusts they may survive as powers, is not one which I think can be treated as accepted in English law." [50]

Further, in Inland Revenue Commissioners v Broadway Cottages Trust, Jenkins LJ reading the judgment of the Court of Appeal held:

"In our view, the construction placed on behalf of the Crown on the above-quoted observations of Tomlin J in Re HJ Ogden is the right one, and we see no reason for questioning the correctness of those observations of that eminent judge. On the contrary, Tomlin J's view, which we take to be that a trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment, seems to us to be based on sound reasoning, and we accept it accordingly."

4.5.2 The Pemsel Classification of Charitable Trusts

The Malaysian law of charities has been influenced by English case law on the subject.  According to English case law, a purpose, in order to be charitable, must fall within the ‘spirit and intendment’ of the Preamble to the Statute of Elizabeth, Charitable Uses Act 1601.  Though the Preamble has been repealed by section 38 of the English Charities Act 1960, it has in effect been preserved in case law as an index of charitable purposes.  The general legal meaning of charity may be gathered from the Preamble to the Statute of Elizabeth and cases such as Commissioners for Special Purposes of Income Tax v Pemsel.[51]   In this case, Lord McNaughten classified charitable trusts under four heads as follows:

1.    Trusts for the relief of poverty;

2.    Trusts for the advancement of education;

3.    Trusts for the advancement of religion;

4.    Trusts for other purposes beneficial to the community not falling under any of the other three heads.

In the following sub-sections, only trusts for the advancement of religion and other purposes beneficial to the community have been discussed.  This is because many of the cases deal with religious issues.
 

4.5.2.2 Advancement of Religion:

Malaysia is a multi-religious society and the four main religions in Malaysia are Hinduism, Buddhism, Islam, and Christianity.  According to Article 3 of the Federal Constitution, Islam is the official religion of the State.  During British rule, Mohamedan and Hindu religious and charitable endowments fell within the scope of the repealed pre-Independence legislation, namely the Mohamedan and Hindu Endowments Ordinance 1906 [52] which thereafter came to be known as the Hindu Endowments Ordinance.  The State of Penang was competent to legislate law on "Hindu Endowments" under item 15(c) of the Federal List in the Ninth Schedule to the Federal Constitution.  All matters connected with Islam fall under state jurisdiction according to the terms of the Federal Constitution. 

(a) Hinduism: Repealed Religious Legislation

In AG v Thirpooree Soonderee [53] , the court said that a gift to a person for the benefit of a temple was a good charitable gift that the court could carry out.  However, a gift of money to an idol for the benefit of a temple was void as being an absurdity and not a charity. 

In Ramasamy a/l Shanmugham v State Government of Penang and Government of Malaysia [54] , the applicant, a Hindu by religion was the Vice-Chairman of the Hindu Sangam, Seberang Perai, Penang.  In this case, the Supreme Court had to decide whether the Hindu Endowments Ordinance 1906 [55] was invalid and void.

The applicant contended that the Mohammedan and Hindu Endowments Ordinance 1906 the subject-matter of which concerned Hindu Endowment Boards, charities and charitable institutions, which came into force on 1 January 1906 was enacted by the British Colonial Government of the Straits Settlements of Penang and Malacca for purposes of administering Mohammedan and Hindu religious and charitable endowments.  Insofar as it affected Muslim endowments, the Ordinance was repealed in the State of Penang by the Muslim and Hindu Endowments Ordinance (Repeal) Proclamation 1967 vide Penang Legal Notification No 4 dated 23 February 1967 and since that date the statute was known only as Hindu Endowments Ordinance.  By Article 74(1) and item 15(c) of the Federal List in the Ninth schedule to the Federal Constitution, Parliament may make laws in respect of Hindu endowments, but there is no provision in the Constitution of the State of Penang for the State Legislature to enact laws pertaining to the practice or propagation of the Hindu religion.  It was argued that the Ordinance was anachronistic and unconstitutional and ceased to be in force on or after Independence Day.  Further, since the State Legislature had no power to enact laws pertaining to religion other than Islam, the Ordinance was inconsistent with Articles 3, 11 and 12 of the Federal Constitution and was void pursuant to Article 75 which provides that, "If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void".

The applicant argued on the unconstitutionality of the Ordinance which was based on the assumption that the Ordinance [SS Cap 175] was a State law, as there was no question that Parliament and not the Legislature of the State of Penang was competent to legislate on "Hindu Endowments" under item 15(c) of the Federal List in the Ninth Schedule to the Federal Constitution.  SS Cap 175 being a Straits Settlements Ordinance was a pre-Independence law.  It was in existence even before the Federation of Malaya Agreement 1948.  Under items 74 and 78 of the Second Schedule to the 1948 Agreement, SS Cap 175, became a federal law, although the exercise of executive authority of the Ordinance could be conferred on a State to the extent permitted by the second column of the Schedule.  According to Legal Notification No 152 dated 7 April 1949 in exercise of the powers conferred by s 3 of the Delegation of Powers Ordinance 1946 and vested in him by virtue of s 4(d) of the Transfers of Powers Ordinance 1948, the then High Commissioner delegated to the Resident Commissioner of Penang and Malacca the exercise of the powers conferred on the High Commissioner by the provision of s 3 of SS Cap 175. Consequently, from 7 April 1949 the executive powers conferred by s 3 of the Ordinance was transferred to the State, although the Ordinance itself remained a federal law. This transfer of executive power to the State was in accordance with Cl 18 of the Federation of Malaya Agreement, which states:

"Notwithstanding anything in this Agreement, the High Commissioner may entrust, either conditionally or unconditionally, to the Government of any Malay State with the consent of His Highness the Ruler of that State, or to the Government of a Settlement, or to their respective officers, functions in relation to any matter to which the executive authority of the Federation extends".

On Merdeka/Independence Day, the federal status of the Ordinance was extended by Article 162(1) read with Article 160.[56]

After Merdeka Day, the Islamic contents of the Ordinance, being a State matter under the State List of the Ninth Schedule to the Federal Constitution, and to bring the Ordinance into accord with Article 3 and Article 74(2), His Majesty the Yang di-Pertuan Agong as Head of the Islamic religion in Penang under Article 5 of the State Constitution and Article 3(2) and (3) of the Federal Constitution, were amended in the Ordinance by proclamation vide Penang Legal Notification No 4 of 1967 referred to earlier.  The proclamation was promulgated by the Yang di-Pertuan Agong under s 172(1) of the Administration of Muslim Law Enactment 1959 of the State of Penang after consultation with the Governor in Council, and it repealed SS Cap 175 insofar as it affected endowments given or to be given, for the support of any Muslim mosque or shrine or school or for other Muslim pious, religious, charitable or beneficial purpose.

The Supreme Court was satisfied that the present application had no merit whatsoever since it was clear that both immediately before and after Merdeka Day, the Ordinance has always been a federal law, and the Ordinance being an 'existing law' should in accordance with Article 162(1) continue to be in force on and after Merdeka Day.  However, Senior Federal Counsel who appeared for the Government of Malaysia argued that the present application did not come within the ambit of Article 4(3) and (4) of the Federal Constitution. His submission was adopted by the State Legal Advisor of Penang, who emphasised that this was the first time the validity of a pre-Independence legislation was challenged under Article 4.  The relevant clauses are found in Article 4 and Article 128. [57]

The Supreme Court ruled that the exclusive original jurisdiction of the Supreme Court under Article 128(1)(a) read with Article 4(3) and (4) must be strictly construed based on the case of Rethana v Government of Malaysia. [58]   The proceedings for a declaration regarding the invalidity of a law referred to in the two Articles of the Constitution related only to the validity of any law made by Parliament or the Legislature of any State, which by statutory definition must refer to law enacted after Merdeka Day.  Such proceedings for a declaration as to the invalidity of any law under Article 4(4) read with Article 128(1)(a) must be limited to any law "with respect to which Parliament or as the case may be, the Legislature of the State has no power to make laws".  Firstly, both Article 4(3) and Article 128(1)(a) do not employ the words "Federal Law" or "State Law", but they expressly refer to "law made by Parliament" and "law made by the Legislature of a State".  Secondly, the definition of "Federal Law" and "State Law" under Article 160 clearly makes a distinction between existing Federal and State law whose continuity of operation is being accommodated under Pt XIII of the Constitution (i.e. pre- Merdeka legislation) and any Act of Parliament or a law made by the Legislature of a State (i.e. post- Merdeka legislation).

As SS Cap 175 was a 1948 federal, pre-Merdeka, legislation it could not come within the ambit of Article 4(3) and (4) and Article 128(1)(a). The Ordinance, not being a law legislated by Parliament or the Legislature of a State does not come within the exclusive original jurisdiction of the Supreme Court for the purpose of adjudication on its validity as envisaged by Article 128(1)(a) read with Article 4(4).

The architect of the Constitution recognised that not all pre-Merdeka Day legislation could readily be slotted into the three newly established compartments of legislative powers as provided in the Ninth Schedule, nor was all such legislation expected to be consistent with the provisions of the Federal Constitution as required in the case of law passed after Merdeka Day by Article 4(1).  Accordingly, various provisions are introduced in Article 162 of Pt XIII of the Constitution for modification of "existing law" to enable them to continue in operation after Merdeka Day.  As alluded to earlier, such 'existing law' is constitutionally defined as "any law in operation in the Federation or any part thereof immediately before Merdeka Day".  Article 160(6) even empowers any court or tribunal to apply the provision of any existing law which has not been modified on or after Merdeka Day, provided it is applied with such modifications as may be necessary to bring it into accord with the provisions of the Constitution.  Thus, in Assa Singh v Mentri Besar Johor [59] Ong Hock Thye CJ (Malaya) accepted the argument of Salleh Abas, Solicitor General (as he then was) who said with reference to Restricted Residence Enactment, a pre-Merdeka legislation:

"…I agree that, since Article 4 speaks only of laws passed after Merdeka Day, the validity or otherwise of the pre-Merdeka Restricted Residence Enactment will have to be considered solely by reference to article 162”. [60]

The point summed up by the learned Solicitor General was as follows:

'As to post-Merdeka law, the Constitution is supreme and if any of that law is inconsistent with the provisions of the Constitution, to the extent of such inconsistency that law shall be void -- article 4(1). But as regards pre-Merdeka law, such law shall continue to be in force until repealed; in the meantime its continuity and enforceability is subject to modification, firstly by a Legislative Act or Enactment or, secondly, by process of judicial interpretation, the executive order of the Yang di-Pertuan Agong to modify the same having expired - article 162(1) and (6). It must be noted that article 162 does not use the expression that the pre-Merdeka law shall be void to the extent of the inconsistency but, instead, it expressly states that the law shall continue to be in force'.

In the circumstances, the court was of the opinion that proceeding for a declaration under Article 4(4) read with Article 128(1)(a) applied only to post-Merdeka law whether Federal or State.  Since SS Cap 175 was a pre-Merdeka law the present application should not have been brought to the Supreme Court as a court of first instance.

The notice of motion was accordingly dismissed.

(b) Buddhism

The approach of the courts towards certain practices in Chinese ancestral worship, namely ‘Sin Chew’ and ‘Chin Shong’, has been that these are not charitable activities as they cannot fulfill the element of public benefit.  They may be upheld as valid non-charitable purpose trusts provided the Rule Against Perpetuities is not infringed.  Trusts for Chinese ancestral worship must be distinguished from bequests to Chinese temples.  This point is highlighted with the aid of the following cases, namely, Re Low Kim Pong’s Settlement Trusts [61] , Phan Kin Thin v Phan Kuon Yung [62] , Choa Choon Neoh v Spottiswoode [63], Tan Chin Ngoh v Tan Chin Teat, Tan Chin Hean & Anor. [64] 
 

(1).Land given to a Buddhhist priest for purposes of a temple and orchard were valid charitable trusts.

In Re Low Kim Pong’s Settlement Trusts, the deceased through a trust deed conveyed to a Buddhist priest the following: 

     i.        12 acres of land for the construction of a temple to worship certain divinities.

    ii.        The balance of the said 12 acres, if any, for growing an orchard or other purposes deemed fit by the priest or his successors.

After the construction of the temple, the local authority required a portion of the remaining land.  They contended that land given for the orchard was not a charity and void as a gift in perpetuity, or in the alternative, such organisation caused the donor’s intention to fail and so a cy pres scheme could not be applied.  The administrators of the deed claimed this impugned land.  The court, however, held that the whole purpose of the deed was a good charity.

(2) Gifts for Chinese Ancestral Worship were Not Good Charities

In Phan Kin Thin v Phan Kuon Yung,, the principal question raised before the court was, whether a gift of shares of a Chinese testator’s estate for his father’s ‘Chin Shong’ (ancestral worship) was a good bequest.  The Court held that a bequest for ‘Chin Shong’ was a good gift and valid as a non-charitable purpose trust provided it was drawn in a way that did not infringe the Rule Against Perpetuities.  However, it was not a charitable trust.  His Lordship Murray-Aynsley ruled:

As regards the bequest to the ‘Chin Shong’ we have the authority of certain cases from the Colony and one case from the Federated Malay States (FMS).  In the case of Yap Kwan Seng, Sproule J, held that a bequest of this type was a perpetuity and that the English Rule Against Perpetuities applied to the FMS.  He followed the Colony cases holding that a bequest of this kind is not a charity. [65]

These cases all avoided declaring that such a purpose was a superstitious use although in the Colony West v Shuttleworth was cited in support of the decisions.

In Choa Choon Neoh v Spottiswoode an elaborate description was given by Maxwell CJ of the ceremonies connected with such a bequest which may be contrasted with the doctrine of the mass explained in the judgments of Bourne v Keane, [66] set out below:

…a distinction must be drawn between the purpose of the two observances, that one is limited as to its object to the benefit of a particular person, the other is not so limited, and this is the difference between what is not and what is a charitable purpose.  The result is that such a bequest is perfectly good like a bequest for the upkeep of a tombstone provided that the bequest is so drawn that the Rule Against Perpetuities is not infringed, a matter which should not be beyond the ingenuity by local conveyances.

In Tan Chin Ngoh v Tan Chin Teat, Tan Chin Hean & Anor, the Court had to consider an application for the construction of an indenture made on 26 October 1894 between a certain Lim Loh - the vendor, a certain Tan Yeok Nee - the Settlor) and a certain Tan Yeok Nee and Tan Tee Kah - the Trustees, whereby certain leasehold properties in Singapore were conveyed to the trustees, the purchase money being provided by the Settlor, to be held upon certain trusts, namely,

1.    Trust for maintenance of Joss House or Tok Kheng Tong Temple in China;

2.    Trust for Sin Chew; and

3.    Trust for settlor and his assigns.

The settlor died on 21 May 1902 and by his will directed that his residuary estate should be divided among his ten named grandsons with the provision that when the youngest grandson attained the age of twenty-one years, the residuary estate should be converted into money and divided amongst them.  The will took effect from the date of death and distribution made sometime not later than 1924 or 1925.  The plaintiff in this case was one of the named grandchildren and as such entitled to a share in the residuary estate and the third defendant was the sole surviving executor of the will.

The history of the case shows that a summons was taken out by solicitors for the plaintiff, on 9 September 1941.  On 22 September 1941, Aitken J in Chambers appointed the plaintiff to represent the ten grandsons (including the plaintiff himself) named in the will of the settlor.  Before judgment was delivered, Singapore was captured and the Court ceased to function.  Counsel for one of the defendants died in internment and another disappeared during the Japanese occupation and it was not known whether he was alive or dead. When the Court resumed again in June 1946, the plaintiff's present solicitor, asked for judgment.  The Court directed the Attorney General to be joined as the case concerned a public charity.  The Court also felt itself bound to follow the case of Re Haji Ismail, [67] which had not been referred to in the course of the argument in 1942. However, the Attorney General did not wish to be joined.  The third defendant could not be reached.  He was cited as the only surviving trustee of the settlor's will. 

Five questions arose for determination before the Court.  The first two questions were concerned with the validity of the trusts.  The Court found that the trusts were not void for repugnancy as the intention of the settlor in creating the third trust was not to give an absolute interest in the property to the settlor, but to make a disposition of the property to take effect at the expiration of the limited and consecutive periods for which the first and second trusts were created.  The reasoning of the Court is set out below.

The Court considered the first two questions together where the plaintiff argued that the effect of the trust created for the third trust period, namely the trust for the settlor, his executors, administrators or assigns, was to give the settlor an absolute interest in the property, that it was repugnant to such a gift to say that the donee shall enjoy it only many years after he has been dead, and that on the proper construction of the deed the intervening estates must be deleted, the settlor being deemed to have taken absolutely and immediately; second, he being dead the property fell into his residuary estate to be distributed as directed by the will.  This construction would nullify the deed and was not adopted by the Court.

Counsel relied upon the judgment of the Court of Appeal of the Straits Settlements in the unreported case of Tan Jiak Kim v Tan Jiak Poh & Ors [68] and supported this by reference to a number of English cases in which it was held that a condition inconsistent with a gift is void.

In Tan Jiak Kim v Tan Jiak Poh, a testator bequeathed his residuary personal estate to trustees as a "reserve fund" upon trust for his four named sons in equal shares and directed that the reserve fund should become divisible and payable at the termination of twenty-one years from the date of death of the survivor of his wife, his said four sons, his daughters and his three named grandsons.  The four sons, in whose favour the trustees were stood possessed, it seemed could never enjoy possession nor could the fund ever become divisible among them or any of them as the date fixed for payment and distribution had to be for a period that extended to at least twenty-one years after the death of the last survivor of them.  The will then directed a complicated scheme of periodic accumulation and distribution of income, the main feature of which was that the sons were to enjoy the income during their lives.  There were further directions to cover the eventuality of a son dying before his share could become due and payable.  Earnshaw J held that after a period of twenty-one years from the death of the testator, the four named sons were entitled to take the residue absolutely, share and share alike, and the learned Judge struck out all that was repugnant to that declaration. This judgment was upheld on appeal.  Sir John Bucknill CJ in the Court of Appeal, held that on the proper construction of the will there was an absolute gift to the trustees of the reserve fund in trust for the four sons and the sons therefore took at once.  The provision on postponement of enjoyment was repugnant and therefore deleted. 

In the present case, the Court was reluctant to accept this decision as being binding upon it since it was not relevant to the present case as it was a case upon the construction of a will where there was an absolute gift followed by conditions which were held to be repugnant.  The present matter before the Court was the construction of a deed and the principle to be applied, if there was a repugnancy in a deed was declared by the Privy Council in the case of Forbes v Git [69] per Lord Wrenbury in the following terms:

If in a deed an earlier clause is followed by a later clause, which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails ... But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole. 

Applying Forbes v Git to the present facts, the Court held that were it Court to hold that there was a repugnancy in this deed, that would not advance the plaintiff's case for it was the last clause which would have to be struck out.

However, in the view of the Court there was no repugnancy.  The first and second trusts were created for limited and consecutive periods and it was necessary for the settlor to make a disposition of the property to take effect at the expiration of the second of those periods if he wanted the property to revert to the use of his estate.  The Court found that this was the settlor's intention in creating the third trust period and that was the effect of the words used.

On the issue that the period of limitation mentioned was void for remoteness, the Court was referred to the passage in Jarman on Wills where the rule is stated as follows:

"It must however be remembered that if a charitable gift is not immediate but is made conditional upon a future and uncertain event it is subject to the same rules and principles as any other estate depending on its coming into existence upon a condition precedent. If the condition is never fulfilled the estate never arises. If it is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities the gift failed ab initio." [70]

In the present case, the trusts were not void, the reasons given by the Court are set out below.  On the issue of the first trust, the Court held that there was a valid trust of the income of the property for a charitable purpose, namely, the upkeep of a Temple, during the life of the testator, and that the first trust was not invalid merely because the settlor had an absolute discretion to apply the income as he thought fit for the maintenance of or otherwise in connection with the temple.  On the third question as to whether the trust for the second period was void for remoteness, the Court found that the trust for the second period contained a charitable gift made conditional upon a future event which was the death of the settlor, it was certain to occur and therefore it was not void for remoteness.

The deed spoke from delivery and during the life of the settlor there was a valid trust of the income for a charitable purpose, namely the upkeep of the temple.  The argument was that the first trust was invalid because the settlor had an absolute discretion to apply the income as he thought fit for the maintenance or otherwise in connection with the Temple. English decisions such as Waldo v Caley [71] , Horde v Suffolk [72] and Powerscourt v Powerscourt [73] lent no support to this view, and the Court held that the rule to be deduced from these and similar cases was correctly stated in Tudor on Charities as follows:

"Where income for a limited period, as during the lifetime of a particular person, is directed to be paid to a particular person to be applied at his discretion for general or special charitable purposes the Court does not take upon itself the execution of the trust. Accordingly, in cases of this kind, no scheme is directed but the Court gives liberty to any of the parties to apply as there may be occasion." [74]

A trust such as this was therefore a valid charitable trust and the Court would exercise such control as was necessary to ensure the due performance of it.

The fourth question was concerned with the enforceability of these trusts.  Counsel contended that the objects of the second trust were to be performed in China, and that whether they were valid trusts or not depended on the law of China; therefore, though the Courts of the Colony would see that the trustees here carried out the trusts by managing the property and remitting the balance of the income to the proper person in China, yet they could not enquire whether the objects on which the money was to be spent in China were valid according to Singapore law.  He referred to the case of Ng Eng Kiat v Goh Lai Mui & Ors [75] but that case was of no assistance to his argument.  There, the trust being impressed upon property situated in China and the limitations being permitted by that law of that country, it was held that the fact that such limitations would be illegal by the law of the Colony was immaterial.  But the present case was the converse of that and fell within the rule in Freke v Lord Carbery [76] that the validity of a testamentary disposition of English leasehold is governed by the law of England.  In that case, the proceeds of sale of a leasehold house in London were directed by the will of a testator domiciled in Ireland to be held upon trusts which infringed the English Rule Against Perpetuities, the Thelluson Act not applying to Ireland.  The rule applied to the present case where the trusts were impressed upon certain leasehold property in the Colony, the income from which was to be applied to the purposes of the trust.  The Court held therefore that the validity of the trusts must be determined according to the laws of the Colony.

The Rule Against Perpetuities was part of the law of the Colony but the period limited did not infringe that rule.  The law in the Colony was that a trust for Sin Chew ceremonies was not a charity but neither was it void as being for superstitious uses.  It was valid if it did not offend the Rule Against Perpetuities. [77]   It was also well settled that a trust for the upkeep of a temple or joss house was a trust for the advancement of religion and a good charitable trust. [78]   It followed that the trust for the second period was partly charitable and partly non-charitable.

The fifth and sixth questions were concerned with the validity of the trust for the second period which was partly charitable and partly non-charitable, and whether the difficulties faced by the Court in the appointment of trustees rendered the trusts unenforceable.  The Court found that in such cases, where the property impressed with the trust was certain, the trust did not fail but the Court would in default of appointment by the trustees, apportion the fund between the charitable and the non-charitable objects equally.  Further, there was no evidence of any practical difficulty in making the appointment in this case and therefore, the trust was prima facie enforceable.

On the issue of quantum, the plaintiff contended that the trust was void for uncertainty, for the reason that, although the trust property and the objects of the trust were certain, there was uncertainty as to the amount which was to be applied to each of the different objects; that is, the amount that had to be earmarked for (1) maintenance of the temple, (2) Sin Chew ceremonies or (3) each person's Sin Chew.  In the case of Re Hadjee Ismail bin Kassim decd [79] , referred to above, it was held that the objects of a gift of income being partly charitable and partly not, the whole gift, including the gifts to charitable objects, failed for uncertainty as to the subject matter of the gift.. [80]   The Court decided not to follow Hadjee Ismail's case as the Court concluded that such a reason existed in this instance.

The Court in the present case concluded that there was a failure to distinguish between cases where the whole amount of the gift was left uncertain and those where the whole amount, or the property impressed with the trust, was certain but the apportionment between different objects was uncertain.

The Court found the following proposition cited from Hunter v Attorney General [81]

"where the trustees have a discretion to apportion between charitable objects and definite and ascertainable objects non-charitable the trust does not fail; but in default of appointment by the trustees the Court would divide the fund between the objects charitable and non-charitable equally". [82]

In Halsbury's "Laws of England" [83] , the law as stated is that if the amount of a gift purporting to be made in favour of a charity cannot be ascertained the gift fails, but when a testator gives funds to be applied partly for objects which are charitable and partly for objects which are not charitable, but does not specify the proportions in which the funds are to be applied for the different objects, the Court will make an apportionment. [84]  

On the issue of the practicalities of the trusts being performed in China, the Court ruled that there was no evidence that there was in fact any such difficulty.  It was the duty of the trustees to see to the apportionment of the income and only if and when they failed to do so or could not do so, that the Court would be called upon.  The applicability of the rule could not be based on the supposition of difficulties that may never have existed.  Accordingly, the Court answered that the trusts were enforceable and further questions regarding its enforceability were unnecessary, as the parties were in agreement that the time period limited for the second trust had not yet run out.

(c) Islam

Wakafs

Wakafs are charitable endowments made by Muslims.  Whitley J in Re Syed Shaik Alkaff, [85] in defining a wakaf relied on the definition given by Syed Ameer Ali in his book entitled Mohamedan Law [86] as follows:

“Wakaf…signifies the dedication or consecration of property either in express terms or by implication for any charitable or religious objects to secure any benefit to human beings”.

The Federal Court in Re Haji Embong’s Case [87] , a case that dealt with Islamic law in the state of Trengganu, pronounced that a wakaf is recognized as an established religious Islamic institution.  With reference to the state of Trengganu, the Trengganu Administration of Muslim Law Enactment No 4 of 1955 deals with two types of wakaf, namely wakaf 'am (general wakaf) and wakaf khas (special or private wakaf). Section 2 of the Enactment defines these two wakaf as follows--

‘wakaf am' means a dedication in perpetuity of the capital and income of property for religious or charitable purposes recognised by Islamic law, and includes the property so dedicated.  

'wakaf khas' means a dedication in perpetuity of the capital of property for religious or charitable purposes, recognised by Islamic law, and includes the property so dedicated, the income of which is to be paid to a person or persons for purposes prescribed in the wakaf." 

The expression "for religious or charitable purposes recognised by Islamic law" is purposefully not explained in the Enactment for the objective of the Enactment is only to administer Islamic law.  In The Commissioner for Religious Affairs v Tengku Mariam [88] the fatwa of the Mufti of Trengganu (gazetted under s 21 of the Enactment) upheld the validity of a wakaf made in favour of the settlor's family and relatives with ultimate gifts for religious purposes.  Both the High Court and the Federal Court ruled that the fatwaas were not binding upon the court.  The Court came to this conclusion by following the Privy Council decisions in Abul Fata Mahomed Ishakv Russomoy Dhur Chowdhury [89] and Fatumah v Mohamed bin Salim. [90]   The Federal Court held that the doctrine of estoppel had precluded the beneficiaries from challenging its validity because they had by their conduct previous to the suit accepted the validity of the wakaf.  But Suffian FJ, as he then was, reaffirmed as did the East African Court of Appeal in Fatumah'scase, that the decisions of their Lordships of the Privy Council on wakaf were binding upon the court and suggested that the embarrassing situation should be rectified by legislation.

On wakafs in India, the Federal Court in Re Haji Embong’s Case pointed out that according to Mohamed Ahsanullah Chowdhry v Amarchand Kundu [91] a wakaf for the benefits of the settlor's family, children and descendants and for charity, would only be valid if there was a substantial dedication of the property to charitable uses at some period of time or other.  A wakaf is invalid if the primary object is for the aggrandisement of the settlor's family and the gift to charity is illusory either because of its small amount or its uncertainty or remoteness of objective (Abul Fata's Case).  Due to dissatisfaction, representations and protests over this decision by the Muslim scholars and jurists, the Indian legislature passed the Mussalman Waqf Validating Act, VI of 1913, which was not given retrospective effect.  This was followed by the 1930 Validating Act saving any invalid family wakaf with the ultimate object for charity whether it was created before, on or after 1913.  The belief that the decision of their Lordships in Abul Fata's Case was purely confined to Muslim law as applied in India was rejected by their Lordships in Fatumah v Mohamed bin Salimin where their Lordships re-affirmed the correctness of their decision in Abul Fata's case and cleared all doubts as to the scope of their decision being confined to India only.  Their Lordships said that they "cannot accept the theory ... that the interpretation of the Mohammadan law given by this Board in a series of cases is confined to the law as applied or administered in India." [92]

In India, a wakaf disposition in favour of a stranger is invalid.  Indian authors such as Tyabjiand Fyzee, state:-

"...Is poverty a necessary condition for obtaining benefit from a wakaf? According to Mohammadan law, wakaf may be made (i) for the affluent and the indigent alike; or (ii) for the affluent and thereafter for the indigent; or (iii) for the indigent alone. The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of a wakaf.  Poverty is one of the many qualities that are recognised as being capable of attracting the benefit of a wakaf, but it is by no means a sine qua non. Therefore, all persons, regardless of considerations of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is [sic] ultimate purpose of every wakaf. Thus it is clear that the objects of a wakaf may be different from the objects of a charitable trust as understood in English law. [93]

(d) Christianity

In some cases it has been held that the general charitable intention of the settlor could be inferred from the trust deed and hence the charitable trusts were valid and a cy-pres scheme was ordered to give effect to the settlor’s intent.

In Nai Seng Hiang & Ors v Trustees of the Presbyterian Church in Singapore Registered & Ors, [94] the trustees stated in cl (2) of their trust declaration that they held a piece of land 'upon trust to permit or allow the said land and premises to be used for the purpose of Christian works, evangelistic, social or otherwise at the discretion of the Chinese Presbyterian Church of Malaya amongst and for the benefit of the children of all Hakka speaking Chinese in Singapore and for this purpose to take all such proceedings as may be necessary to recover possession of the said land and premises'.  The trust dated 18 May 1948, was established by a certain Mr. AC Jap.  The trust property consisted of land and premises known as No 110, Race Course Road, Singapore.

The trustees, sought the court's directions on the following questions:

     i.        if the trust contained in cl 2 was a valid, charitable trust; or

    ii.        if the trust had failed, whether the land and premises were to be applied cy-pres, the donor, Mr AC Jap, having evinced a general charitable intention; or

   iii.        if the trust was void, whether the land and premises were to be held by the plaintiffs on a resulting trust for the residuary estate of the donor.

The first defendants, a body corporate registered under s 68(3) of the Trustees Act are regulated by a trust deed.  The second defendant is a widow and sole residuary beneficiary of the estate of AC Jap, deceased.  The Attorney General was joined by virtue of s 9(1) of the Government Proceedings Act. [95]

Having regard to all the facts and the provisions of the declaration of trust, the Court was of the opinion that the donor had clearly and unequivocally evinced a general charitable intention, that Christian works and evangelistic pursuits were the exclusive purposes with the other purposes 'social or otherwise' as mere adjectives describing Christian works or one aspect of them because these words were not free standing as to import separate objects.  Accordingly, the Court ordered a cy-pres scheme to fulfill the exclusive charitable intent of the donor and directed that the property be transferred to the first defendants to hold the property upon trust.

4.5.3 Trust for Other Purposes Beneficial to the Community

In Lam Joon Shu v AG, [96] the court said that ‘other purposes beneficial to the community’ was a term of art to which the law attached meaning.  In this case, the settlor in his indenture (1918) set out a trust for the education of Chinese children and adults of a particular sect in the Chinese language and other languages as the trustees deemed advisable.  Provisions were also made for a students’ residence, and a classroom, lecture room or meeting room for any educational, charitable or other purposes beneficial to the particular Chinese community or any other community the trustees deemed fit in Singapore provided however, that the said premises were not used for any purpose that was inimical to the welfare or contrary to the laws of the Settlement of Singapore.  The Indenture referred to the term ‘other purposes beneficial to the community’.  Based on this Indenture, a school was set up in 1906.  In 1947, the trustees bought more property and a conveyance was signed by the four trustees.  It stated that the property was held in trust for the use and benefit of the school.  In 1949, another deed was signed which sought to vary the terms of the 1947 Conveyance.  The 1949 deed stated that one-third of the property was held in trust for the association and the remaining two-thirds for the school.  Another deed followed in 1973, which purported to release the property from the trusts set up by the 1947 Conveyance and the 1949 deed.  It declared that all interests should thereafter be held in trust for the association.  In 1984 the school was closed down.  The issue was whether there was a valid charitable trust and if not, whether a cy-pres scheme could be applied.  The Court of Appeal ruled that a cy-pres scheme be applied to the two third share of the trust property held on trust for the school for educational or like charitable purposes as the trustees in their discretion governed by the association, thought fit.  The Court held that the 1973 deed of purported release was ineffective, as a public charitable trust once constituted could not be so terminated.  The lower courts ruling on both issues were affirmed.

5. Cy-Pres Scheme

Pre-Independence

Where the general charitable intention of the testator cannot be inferred and the trust land has been acquired by the government, it is unlikely that the Court will uphold a charitable trust.  Since cy-pres cannot be applied it is likely that the trust property will fall into residue.

In Veerasamy Krishnasamy & Anor v Jannaki Ammal, [97] two questions arose for determination out of cl 8 of the will of a certain Mr. Narainasamy Veerasamy, which provided that certain land and house situate at Bedok Road, Singapore, was to be held in trust for a period of twenty-one years after the death of the survivor of the testator’s three sons, and a grandson.  The land was to be used as a family burial ground for the testator and his family members as deemed fit and proper by his trustees.  During this period, the trustees were authorized to collect rents and profits of the said land and house and out of such rents and profits were required to pay the assessment and quit rent (if any) and repairs to the said house were to be carried out and the balance (if any) paid equally amongst his sons.

The application for a burial ground licence was refused by the Colonial Secretary.  The questions for determination of the Court were (i) whether the object of the devise contained in cl 8 failed by reason of that refusal, and the consequent impossibility of carrying out the trust to permit the land to be used as a burial ground, or whether the trust could be saved by the application of the cy-pres doctrine and (ii) whether the trust for the burial ground having failed, the land and house fell into residue.

On the failure of the objects contained in cl 8 and subsequent application of the cy-pres doctrine, the Court held that it would only be applicable if a general charitable intention was disclosed. [98]   The Court could see no such intention disclosed in this clause and expressed the view that the four principal divisions into which the word "charity" in its legal sense was divided was given by Lord Macnaughten in the Commissioners for Special Purposes of Income-tax v Pemsel. [99]  The only division which could have any bearing on this case was the last, viz. "trusts for other purposes beneficial to the community".  The trust permitted the land to be used as a family burial ground for the testator himself and such members of his family as the trustees thought fit, that is, a class of beneficiaries that was restricted to certain members of the testator's family.  The Court had no doubt that this was not a charitable trust, and on this ground ruled that a cy-pres scheme could not be applied to save this trust, and the trust failed.

The trust also authorised the trustees to collect rents and profits of the land and house and, after defraying certain outgoings, to pay the balance to the testator's sons in equal shares.  The next issue was that the trust for the burial ground having failed, whether the land and house fell into the residue of the estate.  The beneficiaries argued that they were the ‘sons’ mentioned in cl. 8 who were entitled to receive the rents and profits and entitled to the property absolutely under residuary cl 11, where they were referred to as "my male children living at my death".  The Court affirmed their right after referring to the following authorities: Saunders v Vautier [100] , Gosling v Gosling [101] and Wharton v Masterman.   [102] These cases are clear upon the principle that:

where a testator has given the corpus to a devisee, the Court will recognise such devisee's immediate right to the corpus notwithstanding any directions by the testator that he is only to enjoy the income of the property until after the expiration of a certain period or until the happening of a certain event, unless the testator has not merely expressed a clear intention that the devisee is only to have the income of the property until the period has expired or the event has happened but has, during the interval, given the property for the benefit of another.

Post Independence

Where a true construction of a will disclosed a general intention of charity or the paramount intention of the settlor to give one-third of the residuary estate for a general charitable purpose, then cy-pres may be applied to the testamentary charitable trusts so created.  Several courts have held in accordance with this principle.

The issue in Re Valibhoy Charitable Trust; Mohammed Shariff Valibhoy v British & Malayan Trustees Ltd & Ors, [103] was that the trusts declared by the settlor could not be established in India and so the trustees asked the Court to declare whether:

     i.        the trust had failed, and if so, could the capital and income be applied cy-pres;

    ii.        the Court could direct a scheme; or

   iii.        such capital and income could be distributed as on an intestacy among those persons entitled according to Muslim Law.

In this case, a certain testator, Mr. AA Valibhoy, set up the ‘Valibhoy Charitable Trust’ for the purpose of maintenance of schools for religious instruction (known as Madrasahs) and the education of persons in the English language and general matters.  Indigent beneficiaries who belonged to the Gatchee class and professed the Mohamedan Sunni Hanafee religion were given preference.  There followed provisions for scholarships, salaries, accommodation and food of teachers, managers and other staff.  Power 'to close and discontinue any school or schools so established as aforesaid if they shall so think fit and to establish another or others' was also given to his trustees.  Clause 6 of the will provided that should any government adopt, acquire or undertake the management or support of any school, then the trustees were required to use their discretion as they thought fit to apply the whole or such parts of the income arising from the Valibhoy Charitable Trust and from time to time determine the purposes of the trusts.

The actual appropriation of one-third share of the estate only took place in 1964.  After 1964, the trustees were unable to establish a school or schools for religious instruction or for the education of persons in the English language.  In May 1971, one of the trustees wrote to the Ministry of Education, Ahmedabad, India of their intention

     i.        to establish a Muslim Religious School (Madrasha) in or around the town of Jepur, Rajkot District in which first preference would be given to children of the Ghanchi Community who believed the Sunni Hanafi Sect of Islam and then to all Muslim Children who believed in the same school of Islam as the Ghanchi Community; or

    ii.        in the alternative, of their intention to establish an English Language School along with the Islamic Religious teaching subjects for such persons. 

The Director of Education, India, replied in November 1971 that the permission requested could not be granted. 

The High Court held that in the circumstances it was impracticable to give effect to the expressed objects set out in the testamentary trust.  However, a general charitable intention in favour of the advancement of education, both religious as well as in English, could be inferred and the trusts had not failed but should be carried into effect cy-pres by a scheme which conformed to the testator's directions as closely as possible.  The case went in appeal as the beneficiary entitled upon intestacy, a son of the testator, appealed against this decision.  The trustees also sought to vary the judgment.

The contention of the appellant was that the testator’s testamentary trusts were for the specific purpose of establishing one or more schools in a particular province in a particular state in India or in its neighbourhood and that as the primary or main object of the testator's gift was the establishment of a particular type of school in a particular locality of his choice, a general charitable intention for the advancement of education could not be inferred.  The appellant based his argument on Jarman on Wills [104] which reads:

Foreign charities are an exception to the general rule, for as the court has no jurisdiction to administer a foreign charity, it cannot execute the trust cy-pres, but it may give liberty to a trustee to carry into effect a scheme for the administration of the charity to be settled by a foreign court. Consequently, if the persons who are appointed by the testator to administer the charity abroad, disclaim or refuse to accept the trusts, the gift fails.

The Court of Appeal unanimously dismissed the appeal based on the English locus classicus of Re Wilson, [105]  where Parker J ruled:

First of all, we have a class of cases where, in form, the gift is given for a particular charitable purpose, but it is possible, taking the will as a whole, to say that, notwithstanding the form of the gift, the paramount intention, according to the true construction of the will, is to give the property in the first instance for a general charitable purpose rather than a particular charitable purpose, and to graft on to the general gift a direction as to the desires or intentions of the testator as to the manner in which the general gift is to be carried into effect.  In that case, though it is impossible to carry out the precise directions, on ordinary principles the gift for the general charitable purpose will remain and be perfectly good, and the court, by virtue of its administrative jurisdiction, can direct a scheme as to how it is to be carried out.  In fact, the will will be read as though the particular direction had not been in the will at all, but there had been simply a general direction as to the application of the fund for the general charitable purpose in question.

The Court of Appeal held that where no such paramount general intention could be inferred, and where the gift was in the form of a particular gift, or a gift for a particular purpose, and it was impossible to carry out that particular purpose, the whole gift failed. The question whether a particular case fell within one of those classes of cases or within the other was simply a question of construction of a particular instrument.  The leading Australian decision on this point is A-G for New South Wales v Perpetual Trustee Co. [106]

The Court of Appeal agreed with the conclusion arrived at by the learned judge of the High Court that on the true construction of the will, it disclosed a general intention of charity or, to put it in another way, the paramount intention was to give one-third (less 50,000 Rupees) of the net residuary estate for a general charitable purpose.  On the cy-pres scheme, since the trust property was found in Singapore, Malaysia, and India, the Court of Appeal ruled that the applicable law was correctly set out in Halsbury, [107] in directing that a scheme should be prepared and submitted to the High Court for approval, such scheme to conform as closely as possible to the testator's directions.  A cy-pres scheme is settled where trusts, which have been established within the jurisdiction for the endowment of a charitable object out of the jurisdiction, become impracticable but the fund and the trustees are within the jurisdiction.

6. Exemption from Income Tax under the Income Tax Act 1961 

The rationale behind granting tax exemption to charities is that there is tremendous benefit to the public or a section of it if the charity were to continue its activities. 

All registered charities whether set up under federal or state legislation or under any of the Acts: the Societies Act, or the Companies Act, or Trust Companies Act, can apply for income tax exemption under Part IX entitled “Exemptions, Remission and Other Relief” of the Income-tax Act. [108] .  Section 127 refers to Schedule 6 of the Act which lists the categories of income, which may vary from year to year, that may be exempt from income tax.  The Income Tax Department stipulates certain conditions that registered institutions, trust bodies and charities must comply with in order to qualify for tax exemption.  According to the experience of the office of the Registrar of Societies, this practice of the income tax authorities in turn has had the effect of amendments being made to the constitution of many an organisation before registration as a charitable society.  In other words, these societies come back for amendments to be made to their objectives and constitution in order to qualify for tax exemption.  Section 13 (1) (a) of Schedule 6 of the Income Tax Act 1961 provides that the tax exemption applies to the income of a charitable institution, trust body of any trust or body of persons, if the institution, trust body or body of persons in question is established in Malaysia for charitable purposes only and is approved by the Director General of Income Tax for these purposes.  Section 13 1 (b) provides that the income of a building fund approved under section 44(6) or a religious institution or organisation which is not operated or conducted primarily for profit and is established in Malaysia exclusively for the purposes of religious worship or the advancement of religion is also exempt from income tax.  Section 13 (2) (a) provides that where an institution, a trust body or body of persons carries out the primary purpose of such institution they can apply for approval from the Director-General.  Further section 13 (2) (b) adds that they shall apply its income, whether exempt or otherwise, solely for its charitable purposes or charitable objects within Malaysia and the amount so applied in a year of assessment shall not be less than seventy per cent (or such percentage as may be permitted by the Director-General) of such income for the basis period for that year of assessment. 

Section 13 (3) states that where a business is carried on by an institution, a trust body, body of persons or an organisation referred to in subparagraph (1) the income from the business shall be exempt from tax if

a.    the business is carried on in the course of the actual carrying out of a primary purpose of the institution, trust body of persons or organisation; or

b.    the work in connection with the business is mainly carried on by persons for whose benefit the institution, trust body of persons or organisation was established.

Section 13 only exempts the income and not the dividend income of such institutions.

7. Unidentified Donors and the Issue of Accountability

In 1973, the House to House and Street Collections Act 1947, [109] was revised to regulate house to house and street collections.  In Malaysia, there is no legislation governing the law of charities and in so far as unidentified street donors are concerned such as persons who have contributed to the building of a new hospital and insufficient funds were given for the purpose (facts similar to Re Ulverston and District New Hospital Building Trusts [110] ), the trend here would be to follow the decision in Re Ulverston.  There are provisions under the Disposal of Public Funds (State of Penang) Act 1961 in respect of the initial failure of certain funds raised for specific public purposes.  Under this Act, the Governor in Council can after taking into consideration any views or objections by any person who had contributed to any of the funds, by order, provide for the disposal of the funds for the purpose of building a community hall by the name of Dewan Sri Pinang or for other specified purposes similar to those for which the funds were originally established. [111] Under the powers vested in Section 67 of the Societies Act, the ROS has, for administrative purposes, drawn up a 10 point Guideline on Street Collections, which has been translated from Bahasa Malaysia (Malay), as follows:

1.    An application to collect donations has to made to the parties concerned for acquiring the approval and the release of a license, if necessary;

2.    The donation cannot make use of certain people or certain types of companies referred to as ‘syarikat perantaraan’ for which there is no official legal translation; [112]  

3.    The organizer has to show his identity card and letter of authorization from the association organizing the collection and permitting him to collect donations;

4.    The organizer of the collections cannot be less than 16 years of age;

5.    Force, duress or violence cannot be used to compel the donee to donate;

6.    All donations received must be acknowledged by a receipt or published in newspapers;

7.    All expenses involved in the collection of funds should as far as possible not exceed 1/12 of the collections made;

8.    For all donations exceeding RM 1,000/- and more, a receipt should be issued within a period of three days;

9.    An audited statement of accounts should be sent to the ROS, Malaysia within a period of three days after the last day of collection of donations;

10. The collection of donations is limited to a period of one month only from the date on which the first donation has been collected.

Public accountability of charitable trusts has proven to be a difficult question.  The ROS requires filing of returns and conduct of normal visits upon notice and surprise visits. 

8.The Role of the Attorney General, Amanah Raya Berhad and Ordinary Trustees in Charities

The official role of the Attorney General, is to initiate a suit on behalf of a charity.  The Amanah Raya Berhad, discussed earlier, amongst its other functions, also commences an action in a testamentary charitable trust.  Ordinary trustees appointed by the settlor carry out the day to day administration of the charitable trust and are governed by the trust deed and the Trustee Act 1949, discussed earlier.

In Haji Abdullah & Ors v Ibrahim & Ors [113] the question was whether a suit relating to a charitable trust was maintainable against the defendants on the ground that it could only be brought by or in the name of the Attorney General or with his consent.  The Court held as the reliefs claimed in this action were brought on behalf of a charitable trust and were not among the claims specified in s 9(1) of the Government Proceedings Act, 1956 [114] the suit should have been brought and had in the name of the Attorney General.

In Lee Chick Yet v Chen Swee Kee, [115] an action was brought by a supporter of a school against trustees and others for a declaration that the transfer of the school land to the defendants by the trustees was null and void.  The defendants objected arguing that the plaintiffs could not take action without joining the Attorney General as the trust was a charitable trust in law.  Relying on Halsbury’s Laws of England, the Court held that from the facts, it was satisfied that the land in question was held on an express trust for the “sole use and exclusive benefit of a school”.  His Lordship Hashim Yeop A Sani held that it prima facie was a public or charitable trust, the word ‘public’ meant ‘for the benefit either of the public at large or some considerable portion of it addressing a particular description’.

Section 9(1) of the Government Proceedings Act states that in the case of any alleged breach of any express or constructive trust for public, religious, social or charitable purposes or where the direction of the court is deemed necessary for the administration of any such trust, the Attorney General or two or more persons having interest in the trust and having obtained the consent in writing of the Attorney General may institute a suit or be joined as a party in any existing suit on behalf of the government or the public.  It was held in Letchumanan Nagappan v R Nadarajah & 2 Ors, [116] that section 9(1) is a mandatory provision.

9. Conclusion

Many of the trusts cases considered in this paper relate to older trusts.  Wakafs continue to be popular both in Malaysia and in India.  In the Malaysian context, only the law relating to wakafs in the state of Terengganu was highlighted.  There is a need to undertake a scholarly treatise on the law of wakafs as found in the various states of Malaysia.  Wakaf jurisprudence in India was enriched during the period of the British Raj.  However, compared to the developments in charitable trust law in England[117] , it is true to say that though the trust concept is not popular in Malaysia, charitable trusts have had some measure of acceptability.

The cases discussed show that the judges, both before and after Independence, were influenced by English common law.  The judges have to keep abreast of English common law.  Section 3 of the 1956 Civil Law Act provides different cut-off dates for the reception of English common law into the different states of Malaysia.  At present, the law of charities in Malaysia is modeled on local statutes and the English common law subject to the cut-off dates mentioned above.  This section of the law ought to be revised for it is clear that as the law stands, it means that developments in the law of charities in England can only be taken cognizance of by the local Courts provided the Courts are pro-active.  If however, the courts make no departure from the dates mentioned, it could lead to a stagnation of the law, for there has been progressive development and evolution of the law on the subject in England.  While the current state of the law seems somehow able to cater to the needs of the Malaysian public, as a legal system, there is a need for progressive development of the law to take place.  It could be argued that as a legal system, this aspect of the law needs to be revised to keep abreast of developments not only in England but also other parts of the Commonwealth and the United States.  However, where necessary, this can be fulfilled to a small extent by the local courts absorbing compatible legal provisions of the Commonwealth states and modifying them to suit local conditions where there is no precedent in Malaysia.  It is further submitted that where the situation requires new law, then only the relevant principles should be adopted.  In this way, English common law may be used on the basis of the theory of brooding omnipresence. [118]

The jurisprudential basis of charities, particularly charitable trusts, involves a donor and several voluntary recipients who have paid no consideration for the bounty that they receive.  The beneficiaries cannot compel the settlor to exercise the bounty in their favour.  The critical legal element is that like all other trust concepts the recipients are called beneficiaries and they are voluntarily in that status.  In some of the non-charitable purpose trusts discussed above, the beneficiaries are non-human, and therefore, greater reliance is placed on the trustee and next-of-kin of the settlor to see to the proper administration of the trust.  However, in the context of proper charitable trusts, since there is no loss of human dignity in having a bountiful donor and a grateful beneficiary, the practice of establishing charities, particularly charitable trusts, should be encouraged.  When a charity is wound up, it is the Court that will determine whether the proceeds will be applied cy-pres or not.  The terms, “charity”, “public benefit”, “altruism”, “benevolence”, “philanthropy”, and “not-for-profit” have been used at various times to define or express an act of giving.  All benevolent acts are not charitable, while all charities are benevolent.  The acquisition of rights by the needy under a charity, as originally understood, for the maxim is that “charity begins at home”, comes from a higher moral order, something that religion encourages and which is godly in nature to observe without boast.  In such cases, there may be beneficence in the act of giving and at other times there may be considerations of salvation.  In this sense, the receiver has a moral right only.

There is a need to define charity for there is no uniform definition or classification of charity or charitable purpose.  For example, on a more general note, as far as the list of the charitable objects is concerned, the practice of classification of the ROS does not seem to be in harmony with the classification of the law of charities as laid down by Lord McNaughten in the Pemsel case.  Very little information is available concerning the practice of the ROC on charitable companies.  The rationale for the fiscal advantages enjoyed by charities under the Income Tax Act must be in conformity with the rationale of other legislation on charities.  It is expressly recognized that trusts for politics are regarded as non-charitable.  Given the fact that any issue may be classified as a political issue, because it could fall under the Fundamental Liberties or the Directive Principles of state policy of the constitution of a nation, the blanket coverage on politics may not be the right approach to take for a distinction has to be drawn between attainment of political objects and mere issue advocacy. [119]   In this area of the law there needs to be caution, standardization, and uniformity. 

The law in Pemsel offers a much wider scope when compared to the guidelines mentioned above.  Charities are established in various ways and hence their constitutional basis also varies.  The common denominator is that they should all be for public benefit, and only if they can so qualify, should they be tax exempt.  In the ascertainment of whether a charity meets the criterion of being for public benefit, considerations of governmental support or lack of it and of a welfare or non-welfare state should be borne in mind.

There is a great deal of ethnic plurality in the various forms of religious charities making it a colorful area of the law as seen for example, in the law of Chinese ancestral worship.  The cases highlight that many of the older religious charities were made by the early settlers.  This does not mean that religious charities were not established by others.  Charity has never been race specific.

As far as the competence to establish charities is concerned, both offices of the ROS and the ROC are suitably empowered.  However, the Guidelines of both the ROS and the ROC are challengeable in a court of law. [120]   On the part of counsel and the judges, charity litigation and adjudication requires deep knowledge of the religious practices and customs of the plural communities in Malaysia, before trust law can be gathered and applied.  The question then arises whether there is a need for standardization or is the plurality acceptable?  The trust basis of charities is far wider than the directives given in the Guidelines mentioned above.  Indeed, the law would be clearer and definite if the various approaches would be made to conform with each other and legislated upon. 

It could be argued that in Malaysia, the English concept of ownership of land and property rights therein and its extension and application to the trust concept, does not apply.  The double system of ownership of land and property rights similar to England is absent in Malaysia.  At present, trust law is taught on the basis that trust property in Malaysia is similarly subject to the twin perspectives of legal ownership and equitable ownership.  In this context, the better approach may be to view trusts over any property and trusts over land as stemming from a fiduciary duty which the trustee comes under an obligation to discharge.  This approach was adopted by the Court in India.  Addressing the issue of trusts in the Hindu law context, CJ Peacock in GM Tagore v UM Tagore [121] observed:

There is, consequently, no such thing here as a bare legal estate in one man descendible to heirs side by side, with a beneficial estate of inheritance, or a succession of beneficial estates in the same property passing down another series of persons.  But I think that whether a man accepts property on the terms of giving another person specified benefits out of it, or whether he undertakes to manage property on behalf of another, or courts will, in both cases alike, know how to make him discharge the obligation under which he comes, and I do not hesitate to believe that it is in entire accordance with the genius of Hindu law that they should do so.  (emphasis added).

As mentioned above, since we do not have a double system of ownership in property in Malaysia, the basis of all trusts including charitable trusts should be trust as understood in the broad sense of a fiduciary duty where the trustee holds the property on the basis of a fiduciary obligation.  It could be argued that this is a more sensible approach to trust law in Malaysia according to the rationale of the Indian model on this point. 

Since there is no register of charities in Malaysia, there is no requirement to register trust deeds and this situation leads to vulnerability on the part of the beneficiaries.  However, stamping the trust deed according to its monetary value could give them some legal protection.  We neither have a Charity Commissioner nor any action plan on the law of charities, that should form the underlying basis of and provide a definitive framework for the law in Malaysia.  The Malaysian law on charities should be revised and consolidated based on the above recommendations, with a national register of charities in place and a Charity Commission set up.  There is a need to encourage settlors to set up charities, as the concept can be useful for more modern to several uses.  For instance, the charity concept can be utilized as a public trust doctrine in the control of environmental pollution in maritime and aero-space industries.

This paper has appraised the law of charities in Malaysia, a multi-racial and multi-religious society, with a federal system, taking into account the various federal and state laws and case law.  Most of the federal laws dealt with public trust funds and charitable institutions.  Several of the state enactments are focused on Islamic matters and a few others were concerned with state charitable trusts.  What the paper suggests as a matter for consideration is that charity law in Malaysia needs to be better rationalized, to make it more consistent with modern developments elsewhere and to ensure that charities will be encouraged more broadly than they have been to date.

* Copyright © , 2001, by Mary George, all rights reserved.  ICNL has been given the right to publish this by the author.

* Mary George is a lecturer in law at the Faculty of Law, University of Malaya, 50603 Kuala Lumpur, West Malaysia, Tel: 60-3-22847179 (Res); 60-3-79676558 (Off), E-mail: maryg@um.edu.my.

This paper is an expanded version of the paper originally presented at the International Seminar on Charity Law, jointly organized by the Centre for Civil Society, London School of Economics in association with the Charity Law Unit, University of Liverpool, and the Charity Law Association held at the London School of Economics, June 18-19 2001.  In writing this paper, I would like to express my gratitude to the Assistant Registrar of Societies, Lau Chi Swee, of the Wilayah Branch of the Registrar of Societies.  However, the author remains responsible for any error or omission in this article.  The revised title of this paper was inspired by the following source: ORICK, Critical issues in Employment Litigation, Continuing Legal Education, United States of America.

Notes

[1] (Revised 1973), Act 125.

[2] (Revised 1987), Act 335.

[3] In Re Chionh Ke Hu, Deceased, 1964-1 MLJ 270, the argument of a non-charitable purpose trust was raised based on the proposition contained at page 482, para 804 of Williams on Executors and Administrators, 14th Edn, vol 2, which reads: --

"A gift may be valid even where it is expressed to be for a specific purpose and there is no person or persons named as legatee, or where the person named must, by the terms of the will, hold the gift for some specific purpose; and this is so, even if the purpose stated in the will is not charitable, provided the purpose is sufficiently defined.  But where the testator expresses his intention vaguely and in effect leaves it to another to make a will for him, the gift is void for uncertainty. Thus, a gift of a large income to trustees on trust to apply it to maintain the horses and hounds of the testator, together with their stables, kennels and buildings, for a period of 50 years, was held to be valid.  A gift of £1,000 to a trustee, to be applied in such manner as he should in his absolute discretion think fit towards the promotion and furthering of fox-hunting was also held to be valid.  Similarly, gifts have regularly been held valid, for the erection of tombs and monuments, where there is no question of uncertainty or perpetuity; likewise a gift for the erection of a Masonic temple.  Such gifts are valid although there is no person named as beneficiary or cestui que trust, but in so far as gifts by way of trust are concerned, they are regarded as exceptional, and the class of objects to be benefited will not be extended."

The scope of these anomalous cases relating to horses, dogs, graves, monuments and fox-hunting and others was reviewed in Re Astor's Settlement Trusts [1952] Ch 534 and in Re Endacott, decd [1960] Ch 232 which, however, clearly laid the principle down that the scope of such cases should not be extended.  In these anomalous cases the courts discovered indirect means of enforcing the execution of non- charitable purposes but held out a caution that such concessions to human weakness or sentiment should be exercised with restraint.  Roxburgh J observed in Astor's Settlement Trusts, at page 547 that:

“the principle underlying these exceptional cases is that, not only must there be non-charitable purposes which a court can control or enforce but the relevant purposes must be stated in phrases which embody definite concepts and the means by which trustees are to try to attain them must also be prescribed with a sufficient degree of certainty.  So much for the anomalous and exceptional cases or trusts of imperfect obligation, as they have sometimes been called.  …As Lord Evershed MR said in Endacott's case, supra, at page 246 –

"No principle perhaps has greater sanction or authority behind it than the general proposition that a trust by English law, not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries. These (anomalous) cases constitute an exception to that general rule.  I add also that, in my judgment, the proposition stated, in Mr Morris and Professor Barton Leach's book 'The Rule Against Perpetuities (1956)' (p 308) that if these trusts should fail as trusts they may survive as powers, is not one which I think can be treated as accepted in English law."

[4] (Revised 1972), Act 67.

[5] (Revised 1978) Act 208.

[6] [1996] 3 CLJ 713.

[7] [1965] 1 MLJ 44.

[8] 1988 MLJ LEXIS 523; 1988-1 MLJ 485.  In this case, the Court had to consider whether clause 11 (cl 11) of the will of the testatrix, which created certain purpose trusts failed upon the Government of Singapore acquisition of the subject-matter of the trust.  (This case is discussed in greater detail below).  That the Accumulations Act 1800, was and still is part of the law of

Singapore was decided in Tan Jiak Kim v Tan Jiak Whye.[8]   Accordingly, the Court held that nothing in cl 11 had infringed the Accumulations Act 1800.

One of the issues in this case was the interpretation of the term ‘cash’ and the phrase ‘accumulation of income’.  In the opinion of the Court, the defraying of income for the upkeep of the plantation, the buildings, the temple and the graves thereon did not amount to an accumulation of income of the said property: see Re Gardiner [1901] 1 Ch 697 and Vine v Raleigh [1891] 2 Ch 13.  However, it was contended by counsel for the first defendant and the sixth defendant that cl 11 contained an implied direction to accumulate income during the trust period as nothing was said about the disposal of the surplus income.  The Court understood this argument to mean that the implied direction to accumulate could be inferred from the expression 'cash' in cl 11(c), which expression, it was contended, meant 'income'.  No authority was produced to show why the said expression meant income and not, for example, capital held in the form of cash.  It was suggested that since the word 'cash' was used in juxtaposition with the words 'investments' and 'plantation', which latter expressions both refer to the capital of the trust fund, the word 'cash' had to refer to 'income'.  It was also suggested that at the end of the trust period, the trustees could hold unused income in the form of cash.  Counsel did not agree with this contention for the following reasons. Firstly, cl 11 used the expression 'cash' in the opening words and paras (a) and (b) referred to the sum of $ 10,000 cash which the trustees had to invest to provide the income to carry out the purpose trusts.  At the end of the trust period, the cash and investments were to be held in trust for the male descendants under para (c). In the view of the Court, the expression 'cash' in para (c) was used in the same sense as it was used in paras (a) and (b) as no income was intended to be included in the gift over. Secondly, the testatrix had in cl 11 used the expression 'income' when she meant income. Thirdly, since cl 11 expressly directed the trustees to apply the income to carrying out the purposes trusts, without any qualification, it meant that they were required to apply all the income.  Accordingly, it would be a contradiction in terms to speak of cl 11 as containing an implied direction to accumulate.  To amount to such a direction, the property had to be given in such a manner that the accumulation became necessary: see Theobald on Wills (14th Ed) pp 616-617. An example of this would be that the amounts directed to be expended could never exhaust the income.  A direction to accumulate should not be implied where an accumulation had occurred temporarily or fortuitously or through the neglect or breach of duty on the part of the trustees in carrying out the trust. Finally, the contention appeared to be academic as there was no evidence that there was any surplus income at all at any time during the period prior to the failure of the trust. 

[9] (Revised 1973), Act 100.

[10] (Revised 1977), Act 196.The Trusts (State Legislatures Competency)(Amendment of Schedule Order 1990 (PU) (A) (404/90) was made under s.3(2) of the Trusts (State Legislatures Competency) Act 1949 (Act 196).  It amends the schedule in the Act by adding the item ‘State Heritage Trust’.  It came into force on 20 November 1990.

[11] (Revised 1970), Act 18.

[12] (Revised 1981), Act 258.

[13] Act 339.

[14] Act 442.

[15] Act 452.

[16] Act 454.

[17] (Revised 1981), Act 247, now repealed.

[18] Act 532.

[19] (Revised 1972), Act 97.

[20] Act 534.

[21] Act 535.

[22] Act 8.

[23] (Act 200) (Revised 1978).

[24] (Act 517)(Revised 1994).

[25] (Act456)(Revised 1991).

[26] 1954 (FM Ordinance No.30 of 1954).

[27] FM Ordinance No.7 of 1955.

[28]  Act 457 Revised 1991.

[29] FM Ordinance No.35 of 1956.

[30] FM Ordinance No.15 of 1957.

[31] FM Ordinance No.21 of 1957.

[32] No.8/92.

[33]   No 8/92.

[34] [1917] AC 406.

[35] Woon W., Company Law, (2nd Ed.), (FT Law and Tax Asia Pacific: Singapore: 1997) at 7.

[36] This communication was made by an officer of the Department of Registrar of Societies, Puan Zahara to Researcher, Ms Jamie Lee, a recent ex-student of the Faculty of Law, University of Malaya in an interview held on approximately 14-15 June 2001.

[37] The reasons for this stringency is unknown at the moment.

[38] Act 576.

[39] See Martin Jill E., Hanbury and Martin, Modern Equity (15th Edn), (London: Sweet and Maxwell: 1997) at pages 8 to 24.

[40] Ibid at page 443.

[41] [1843], 8 Ves 570.

[42] [1953] Ch 672.

[43] [1955] Ch 495.

[44] [1957] Ch pp 423, 425.

[45] [1931] 2 KB 465 P 477.

[46] 14th Edn. Vol 2.

[47] [1952] Ch 534.

[48] [1960] Ch 232.

[49] See Roxburgh J's observation in Astor's Settlement Trusts, supra, at page 547.

[50] Supra, at page 246.

[51] [1891] AC 531.

[52] Straits Settlement Cap 175.

[53] 1808-1884 1 KY 377.

[54] 1986 MLJ LEXIS 180; 1986-2 MLJ 188.

[55] Straits Settlement Cap 175.

[56] These provisions state:

Article 162(1): "Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by Federal or State law".

Article 160: "Existing law means any law in operation in the Federation or any part thereof immediately before Merdeka Day". 

[57] These are set out in the following terms:

Article 4(3): "The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or

(a)     if the law was made by Parliament, in proceedings;

(b)     if the law was made by the Legislature of a State, between the Federation and one or more States; in proceedings between the Federation and that State. Article 4(4): "Proceedings for a declaration that a law is invalid on the ground mentioned in cl (3) (not being proceedings falling within para (a) or (b) of the Clause) shall not be commenced without the leave of a judge of the Supreme Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under para (a) or (b) of the Clause".  

Article 128(1)(a):

"The Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jurisdiction, any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws". (emphasis supplied). 

[58] (1984) 2 MLJ 52.

[59] (1969) 2 MLJ 30.

[60] Ibid at page 35.

[61] [1938] MLJ 119.

[62] [1940] MLJ 44.

[63] 1 KY 216.

[64] 1946-1 MLJ 159.

[65] Yeap Cheah Neo v Ong Cheng Neo, LR 6 PC 382 and Choa Choon Neoh v Spottiswoode, 1 KY 216. 

[66] [1919] AC 415.

[67] [1911] 12 SSLR 74.

[68] Suit No 239 of 1915. (unreported).

[69] [1922] 1 AC 256.

[70] 7th Edn Vol I at page 197.

[71] [1809] 16 Ves 206.

[72] [1833] 2 Myl and K 59.

[73] [1824] 1 Moll 616.

[74] 5th Edn at page 183 and 184.

[75] [1940] SSLR 78 (1940) 9 MLJ 181.

[76] 16 Eq 461.

[77] See Re Khoo Cheng Teow [1932] SSLR 226; (1933) 2 MLJ 119).

[78] See Attorney General v Thirpooree Soonderee 1 Kyshe 377 and Re Low Kim Pong's Trust Settlements [1938] SSLR 144 (1938) 7 MLJ 119.

[79] [1911] 12 SSLR 74.  In Hadjee Ismail's case, a testator by his will had directed that one third share of his property be held upon trust for a named period (which did not infringe the Rule Against Perpetuities) as a "Wakaf or property set apart for charitable purposes" and he further directed that the income should from time to time be applied to five specified purposes, some of which were held to be charitable and some non-charitable. The plaintiffs contended that the charitable purposes thereupon failed for uncertainty, the quantum being indefinite. The Attorney General having argued that a charitable bequest never failed for uncertainty, the learned Judge admitted this principle as applicable to uncertainty in the object but said that the law laid down in the Encyclopaedia of the Laws of England 2nd Edn, vol 2 at page 685.  provided that: "If the amount is uncertain or if there is not a clear charitable intention expressed, the gift will fail".  He noted that the cases cited in the Encyclopaedia for that proposition were cases in which there was or was not a clear charitable intention expressed, the amount in each case being definite, and quoted a passage in the chapter on Incomplete Gifts in Tyssen on "The Law of Charitable Bequests", in support of die proposition that if the amount was uncertain the gift failed.  He also referred to Ewen v Bannerman[79][79] [1830] 2 Bow & Cl 74. and held that four of the gifts failed, two because they were neither charitable nor certain, and two because, although charitable, the amount in each case was left uncertain. The fifth gift was declared valid because the testator had directed that the amount should be at the discretion of the trustee.

The complete proposition in the Encyclopaedia reads as follows:

"If a testator has not completely expressed his intention, but has defined the property or amount intended to be given, and it is clear that he intended it for some charitable purpose or purposes, effect will be given to the gift; but if the amount is uncertain or there is not a clear charitable intention expressed, the gift will fail." 

[80] This was a decision of Sir William Hyndman-Jones CJ sitting in original jurisdiction and therefore a decision of a court of co-ordinate jurisdiction which has stood for nearly forty years and which, though not absolutely binding on the Court, ought to be followed in the absence of strong reasons to the contrary.

The Court also found that the headnote on this point in Re Choo Eng Choon [1908] 12 SSLR 120 was misleading: see XII SSLR 120 per Law A-G CJ at p 161.

[81] [1899] AC 309.

[82] Rewritten in the 2nd Edn (1921) as Chapter X "Indefinite and Incomplete Charitable Gifts" at page 124. This passage that most nearly resembled the quotation by Sir William Hyndman-Jones was the paragraph on "Blanks in wills" on page 129 where Ewen v Bannerman was cited.  These passages clearly referred only to cases where the property was left uncertain.

[83] 2nd Edn vol 4, paras 223 and 224.

[84] Further, affirmation was also found in para 228 of the same volume and to Tudor on Charities 5th Edn on "Certainty of the Subject-matter" at page 59 et seq and on "Charitable and other objects in unascertained proportions" at page 101. Other authorities include the observations of Romer J in Re Clarke [1923] 2 Ch 407.

[85] [1923] 2 MC 38.

[86] Vol II, 4th Ed., p 194.

[87] (1980) 1 MLJ 286.

[88] (1969) 1 MLJ 110, (1970) 1 MLJ 222.

[89] (1894) 22 IA 76; ILR 22 Cal 619.

[90] [1952] AC 1.

[91] (1889) 17 IA 28; ILR Cal 498.

[92] (p 14).

[93] 2nd Ed, at page 252.  Another author, Ameer Ali in vol I, 5th Ed (1976) says that a wakaf may be created for the benefit of any person or class of persons or for any object of piety or charity (page 273), and among the objects of a valid wakaf is a gift to strangers (pages 276-277). Similarly, Tyabji, 2nd Ed (1919), after observing that the Mussalman Waqf Validating Act 1913 contains no reference to the question whether the provisions in favour of others than members of the family, children and descendants of the "waqif" (settlor) are valid, goes on to say that provisions in the wakaf may be made in favour of strangers (page 571). In Hashim Aliv Iffat Ara Hamidi Begum, (1942) 46 Cal WN 561 the Calcutta High Court has taken the view that the provision for a small pension for three of the faithful servants would not render the wakaf invalid, as the main purpose of the wakaf in question was not to make settlement on those servants.  In Mt Akhtar Banu Begumv Kanhaiya Lal, AIR 1941 Oudh 492 it was held by the Oudh High Court that payments of sums of money directed to be made in the wakaf to two servants of the settlor were valid, though they were not members of the family of the settlor. In the opinion of the court, the provisions contained in the Mussalman Waqf Validating Act 1913 are not exhaustive as the words used are "among other purposes". In Abdul Wahabv Sughra Begum, AIR 1932 All 248 Allahabad High Court held that a disposition in a wakaf for the payment of salary and pensions to servants was valid.  The court in this case acting upon the opinion of Ameer Aliand Tyabji rejected the contention that for a wakaf in favour of a stranger to be valid, the stranger concerned must be poor.  Thus a review of Indian cases on a wakaf in favour of stranger shows that three High Courts, i.e. Calcutta, Allahabad  and Oudh benches upheld the validity of such wakaf.  Only Bombay High Court in Ismail Haji Aratv Umar Abdullaheld otherwise.  The Indian Act contains no provision relating to validity of a wakaf made in favour of persons other than the family of the settlor. 

Test of ‘what constitutes family’:

In Abdul Mabud Khan & Ors v Nawazish Ali Khan, AIR 1925 Oudh 301, it was held that whilst distant collaterals such as cousins in the fourth and fifth degree cannot be viewed as members of the family, the word "family" in the Mussalman Waqf Validating Act 1913 includes those persons residing in the house of the settlor for whose maintenance the settlor is mainly responsible.  In Mt Musharraf Begum & Ors v Mt Sikandar Jehan Begum AIR 1928 All 516 it was held that a wakaf in favour of a widow's son, i.e. daughter-in-law, was valid because she was held to be a member of the settlor's family. Similarly, in Ismail Haji Arat'scase, a nephew living in the house of the settlor who treated and maintained him as his son was held to be a member of the family. 

[94] 1988 MLJ LEXIS 700; 1988-3 MLJ 311.

[95] Cap 121.

[96] [1993] 3 SLR 649.

[97] 1947-1 MLJ 157.

[98] Re White's Trusts 33 Ch D 449 which is referred to in Cheang Tew Muey & Ors v Cheang Cheow Lian Neo & Ors [1930] SSLR 58. 

[99] [1891] AC 583.

[100] 41 ER 482.

[101] 70 ER 423.

[102] [1895] AC 186.

[103] 1976 MLJ LEXIS 247; 1976-1 MLJ 207, Court of Appeal.

[104] (8th Ed) at p 260 of vol I.

[105] [1913] 1 Ch 314 at p 320 and 321.

[106] (1940) 63 CLR 209 where Dixon J and Evatt J at p 225.  In this case the Court held that:

If there are insuperable objections, either of fact or of law, to a literal execution of a charitable trust, it at once becomes a question whether the desires or directions of the author of the trust, with which it is found impracticable to comply, are essential to his purpose. If a wider purpose forms his substantial object and the directions or desires which cannot be fulfilled are but a means chosen by him for the attainment of that object, the court will execute the trust by decreeing some other application of the trust property to the furtherance of the substantial purpose, some application which departs from the original plan in particular held not essential and, otherwise, keeps as near thereto as may be. The question is often stated to be whether the trust instrument discloses a general intention of charity or a particular intention only. But, in its application to cases where some particular direction or directions have proved impracticable, the doctrine requires no more than a purpose wider than the execution of a specific plan involving the particular direction that has failed. In other words 'generaI intention of the charity' means only an intention which, while not going beyond the bounds of the legal conception of charity, is more general than a bare intention that the impracticable direction be carried into execution as an indispensable part of the trust declared.  Later at p 227 Dixon J and Evatt J said:

In determining whether a wider charitable intention is the substantial purpose of the express directions by which the trust is constituted, the court is guided by the trust instrument and the conclusion is commonly said to depend on a question of construction. No doubt the terms of the document, together with any extrinsic circumstances admissible in aid of construction, form the materials for ascertaining whether the specific directions were animated by a wider charitable purpose which amounted to the true or substantial object of the trust. The process of extracting from such materials an intention implicit in the transaction which they evidence is properly called interpretation. But the construction of the language in which the trust is expressed seldom contributes much towards a solution. More is to be gained by an examination of the nature of the charitable trust itself and what is involved in the author's plan or project. In distinguishing between means and ends, between the dominant and the subsidiary, between the substance and the form, an understanding of the relative importance in fact of the component parts of the plan or purpose expressed in the trust is a first step towards forming an opinion of the respective values they possessed in the view of the testator or settlor. His forms of expression are by no means to be neglected. In the arrangement of his ideas and his use of terms the importance which he attached to the particular and to the general respectively may appear. The decided cases show that slight indications have at times been treated as enough to warrant a conclusion in favour of a wider charitable intention.

[107] On this point Halsbury's Laws of England (4th Ed) vol 5 para 669 reads as follows:

Property situated or payable abroad.

The court will not direct a scheme to be settled where the charity's property is out of the jurisdiction, or is a fund payable to trustees out of the jurisdiction. In such a case, the court may direct an inquiry whether the trust can be carried into effect according to the law of the particular country, and may pay the money to the persons selected by the testator as the instruments of his benevolence, if they are proper persons to act as trustees, but not otherwise, or may appoint new trustees for the purpose, or may retain the fund in court and direct payment of the dividends to the persons entrusted by the testator with the application of them, or may retain the fund in court to await the result of an application to the foreign court, or may give liberty to carry into effect a scheme to be settled by the foreign court.

[108] (Revised 1971), Act 53.

[109] Act 192.

[110] [1956] Ch 622.

[111] See also KL Ter, Charities in Singapore and Malaysia at p 131. 

[112] An unofficial direct translation would read as ‘in-between company’.  However, there is no such concept in Malaysian Company Law.  This information was furnished by Professor P Balan, Faculty of Law, University of Malaya in an interview held on Wednesday, 29 August 2001.

[113] (1965) 2 MLJ 189.

[114] (Revised 1988), Act 359.

[115] [1977] 2 MLJ 218.

[116] (1993) 4 CLJ 253.

[117] See Edwards R and Stockwell N, Trusts and Equity (3rd Ed) (London: Pitman Publishing: 1997) at 206 to 228.

[118] Pillai PN, Soucrebook of Singapore and Malaysian Company Law (Butterworths: Singapore: 1986) at 1to 3.

[119] For a discussion of this issue under current UK law, see Graham Moffat, Charity, Politics and the Human Rights Act 1998: Chasing a Red Herring?, also in this issue of IJNL.

[120] Personal communication with Professor P Balan, Faculty of Law, University of Malaya, Saturday, 28 July 2001.

[121] 4 BLR 134.