Peh Swee Chin FCJ:

Many material facts and much history leading to this appeal before us have been marshalled with clarity in the judgment of the Court below, (see [1992] 3 CLJ 1497 ). We will only refer to such facts very briefly and only when necessary in order to avoid wholesale repetition. This written judgment is predicated by having to set a very short but very important principle at rest; the principle being whether any subsidiary legislation can be made with retrospective effect notwithstanding the absence of power expressly given by the parent Act. In this connection, s. 20 of the Interpretation Act (Act 388) has been argued with vigour as dispensing with the need for such express power. We will consider this section later.

The respondents are the plaintiffs and the appellant, the defendant. Both plaintiffs were employees of the Cooperative Central Bank Ltd. (hereafter referred to as 'the CCB') at all material times. The 1st plaintiff obtained an award for RM424,428.81 in the Industrial Court, being Award No. 32/89 in connection with his wrongful dismissal by CCB and similarly, the 2nd plaintiff obtained a judgment for RM425,412.50 also against CCB from Kuala Lumpur High Court in connection with the termination of his service by CCB.

As a result of CCB's financial collapse and as a rescue operation for its depositors, the Central Bank of Malaysia, more popularly known as Bank Negara Malaysia, under reg. 9(1)(c) of the Essential (Protection of Depositors) Regulations 1986 (hereafter called 'the Regulations of 1986') applied to the High Court for the appointment of two receivers to manage the affairs and property of CCB. The receivers applied to the High Court for an order of priority of payment by CCB to various persons. It is to be remembered that CCB has been at all material times, a deposit-taker, i.e. it could take the deposits of money like a commercial bank.

The High Court determined that the plaintiffs herein, for priority purpose, would be paid after (1) costs, charges and expenses and (2) depositors. The plaintiffs herein appealed and the Supreme Court held that the plaintiffs herein, who were also the plaintiffs therein, "should rank equally" with the depositors. The Central Bank subsequently applied to the Court that the sum of RM523 million injected into CCB by the Central Bank should be classified under the category of "costs, charges and expenses" under reg. 13 of the Regulations of 1986, the money from the Central Bank was apparently meant for depositors of CCB who were in dire straits. The same High Court dismissed the application. Regulation 13 of the Regulations of 1986 is set out below:

Regulation 13. Costs

All proper costs, charges and expenses, including remuneration, of receivers and other persons appointed under these Regulations shall be payable out of the assets of the deposit-taker in priority to all other claims.

After the aforesaid application, the Yang di-Pertuan Agong, made amendments to the Regulations of 1986 by regulations known as Essential (Protection of Depositors) (Amendment) Regulations 1991 (hereafter called the Regulations of 1991). It is to be remembered that the Regulations of 1986 and the Regulations of 1991 were made under the Emergency (Essential Powers) Act, 1979 (hereafter called 'the parent Act') .

Fearing that the Regulations of 1991 might invalidate the award obtained by the 1st plaintiff and also the judgment obtained by the 2nd plaintiff, both plaintiffs once again went to Court by originating summons herein citing the Malaysian Government as defendant claiming (1) that the Regulations of 1991 were ultra vires and void and/or (2) that the Regulations of 1991 did not (in any event) invalidate such judgment or award aforesaid. The Court below found, in effect or to the effect, in two parts; (1) that regs. 9B and 13(2) of the Regulations of 1991 were ultra vires and void because they were made retrospectively (therefore they could not affect the plaintiffs