Interpretation of Statutes
3.1.
Definition of Interpretation
An Act,
statutes or Code is enacted in brief. Its language is not very detail. While
applying the principles laid down in the Act, statute or Code the authority
very often finds it difficult to be sure if particular section, sub-section or
clause applies to the problem in hand or not. The authority, however, must
ensure whether the alleged principle shall apply or not. This process of
applying, the principle laid down in the Act is termed as interpretation. For
example, if a person is alleged to have committed theft one has to see what are
the ingredients of the offence of ‘theft’ as defined in Section 378 of the
Penal Code, and whether the allegated act falls squarely within the definition
of theft or not. If it does, it is a case of theft otherwise not.1
3.2. Who is
competent to interpret Statute?
The
responsibility to interpret and apply the existing statutory law rests on the
Court. One of the most important functions of the Courts is the construction of
statutes. In Statutory law the written words (litera scripta or literal
legis) constitute a part of law itself. The actual words used themselves
are the part of law. The words not only contain the law, they themselves are
the law. Thus in a statutory law, every word is important and the judge has to
interpret or construct these words. They are to be construed according to the
intention and spirit of the Legislature which has enacted it.
1H.N.Tewari, Legal Research
Methodology (Faridabad: Allahabad Law Agency, 1997), p.90.
In other
words, the role of the Court is very important in making a statutory law
effective and efficient.2
3.3. Principles of Interpretation of Statutes
Necessity of
interpretation of statute arises when a case involves a statute. One of the
functions of the judiciary is to interpret and analyse the provisions of
statutes in reaching a decision or providing clarification of true meaning of
the enactment. Sometimes the provisions of a statute have a plain and
straightforward meaning. But in most cases, there is some ambiguity or
vagueness in the words of the statute that must be determined by the judge.
Sometimes, the judges have to fill the gaps in statute on the footing that the
legislature might be presumed to cover such gaps. The judiciary interprets the
statute on the basis of some established principles, and methods, which are
called principles of interpretation of statutes. These principles are also frequently
applied in interpretation of treaties concluded under international law.3
3.4. Rules
of Statutory Interpretation
There are
three traditional rules of interpretation which are as follows:-
(I).The
Literal Rule
(II).The
Golden Rule
(III).The
Mischief Rule
(I).The
Literal Rule: - Under this rule the judge is required to consider what the
legislation actually says rather than what it might mean. In other words, words
used in a statute must be given their plain, ordinary or literal meaning even
if the outcome of that meaning would be undesirable.4According to
the literal rule; the judges consider themselves as bound by the words of a
statute when these words clearly govern the
2 Ibid.
3 M.Shah Alam, Somokalin
Antojartik Ain (Contemporary International Law), 2nd ed.
(Dhaka: New Warsi Book Corporation, 2008), pp.276-82.
4 Md.Abdul Halim, Constitution,
Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB
Foundation, 2006), p.252.
situation
before the court. Thus, the court can neither extend the statute to a case not
within its term nor curtail it by leaving out a case that the statute literally
includes.5
Lord Esher said “If
the words of an Act are clear then you must follow them even though they lead
to a manifest absurdity. The court has nothing to do with the question whether
the legislature has committed an absurdity.”6
Case
Illustration:-
In Whiteley
vs. Chappell 7, The defendant pretended to be someone who
had recently died in order to use that person’s vote. It was an offence to
‘personate any person entitled to vote’. As dead people cannot vote, the
defendant was held not to have committed an offence. Obviously the purpose of
the Act was to stop voter fraud, here a fraud had taken place but the narrow
interpretation applied meant the person escaped punishment.
(II).The
Golden Rule:-According to golden rule, if the natural meaning of the statute
leads to injustice, or hardship, then the court may modify the meaning of the
statute to such an extent as would be required to find out the intention of the
legislature.8 This
rule of interpretation also called Wensleydale’s9 golden
rule is applied in circumstance where the application of literal rule is likely
to produce an absurd result.
Lord Wensleydale said “the grammatical and ordinary sense of the words is
to be adhered to, unless that would lead to some absurdity or some repugnance
or inconsistency with the rest of the instrument, in which case the grammatical
and______________________________________________________________________________
5 James A, Webb, Julian S &
Holland, Learning Legal Rules, 5th ed.(Oxford: Oxford University
Press, 2003), p.201.
6 R v. Judge of the City of London
Court (1982)
1QB 273.
7 (1868) LR QB 147.
8 H.K.Mukherjee, A
handbook of Legal Language Legal Writing and General English(Kolkata:Law
Point,2004),p.133.
9 Lord Wensleydale called this
rule “golden rule” and adopted it in Grey vs. Pearson (1857) 6
HL 61,106 and thereafter it is usually known as Lord Wensleydale’s Golden Rule.
ordinary
sense of the words may be modified, so as to avoid that absurdity and
inconsistency, but no farther.” 10
Case
Illustration:-
In R
v. Allen 11 ,The defendant was married and married
again. It was an offence for a married person to ‘marry’ again unless they were
widowed or divorced. When caught the defendant argued that he did not commit
this offence as the law regarded his second marriage as invalid. The court held
that the word ‘marry’ could also mean a person who ‘goes through a ceremony of
marriage’ and so the defendant was guilty.
(III).The
Mischief Rule:-The mischief rule is contained in Heydon’s Case12 and
allows the court to look at the state of the former law in order to discover
the mischief in it which the present statute was designed to remedy. The
utility of the rule depends to some extent upon the means that the courts are
entitled to employ in order to ascertain what mischief the Act was intended to
remedy.13 In
order to take recourse to mischief rule, the following four issues are to be
considered:-
(a).What was
the common law and the statute law prior to the making of the Act?
(b).What was
the mischief and defect for which the common law and the statute law before the
making of the Act did not provide?
(c).What
remedy Parliament had resolved to cure the defect?
(d).The
reason of the remedy. 14
_______________________________________________________________________________
10 Grey v. Pearson (1857)
6 HL Cas 61.
11 (1872) LR 1 CCR 367.
12 (1584) 3 Co Rep 7.
13 Glanville Williams, Learning
the Law, 11th ed. (London: Stevens and Sons, 1982), p.103.
14 H.K.Mukherjee, Ibid., p.132.
Case
Illustration:-
In Smith
v. Hughes15, Six women had been charged with soliciting “in
a street or public place for the purpose of prostitution”. However, one woman
had been on a balcony and others behind the windows of ground floor rooms. The
court held they were guilty because the mischief aimed at was people being
molested or solicited by prostitutes.
In DPP
v. Bull 16, a man had been charged with loitering or
soliciting in a street or public place for the purpose of prostitution. The
court held that the term ‘prostitute’ was limited to female prostitute. The
mischief the Street Offences Act 1959 was intended to remedy was a mischief
created by woman.
3.5.
Purposive Approach
The
purposive approach is one that will “promote the general legislative purpose
underlying the provisions”.17There will be a comparison of readings
of the provision in question based on the literal or grammatical meaning of
words with readings based on a purposive approach. Lord Browne Wilkinsonsaid “the
purposive approach to construction now adopted by the courts in order to give
effect to the true intentions of the legislature”.18
Case
Illustration:-
In Jones
v. Tower Boot Co Ltd19, The complainant suffered racial abuse at
work, which he claimed amounted to racial discrimination for which the
employers were liable under section 32 of the Race Relations Act 1976.The CA
applied the purposive approach and held that the acts of discrimination were
committed “in the course of______________________________________________________________________________
15 (1960) 2 All ER 859.
16 (1994) 4 All ER 411.
17 Notham v. London Borough of
Barnet (1978) 1 WLR 220.
18 Pepper (Inspector of Taxes)
v. Hart (1993) AC 593.
19 (1997) 2 All ER 406.
employment”.
Any other interpretation can counter to the whole legislative scheme and
underlying policy of s.32.
3.6. Gap
Filling Role of the Supreme Court of Bangladesh:-
Though the
legal system in Bangladesh is based on common law system as opposed to
continental system, courts here have all along adhered to the doctrine of
purposive approach wherever necessary. Unlike in the UK, this has been possible
because of the absence of the doctrine of parliamentary supremacy. Bangladesh
has a written constitution with constitutional supremacy and the constitution
has invested the Supreme Court with the power of judicial review. This power of
judicial review is the source of purposive construction. It has been held that
where a plain construction will lead to absurd result and fail to carry out the
purpose, the legislature had in view; the court has the power to supply the
desideratum and fill in the gap.20Likewise, an omission, which the
context shows with reasonable certainty to have been unintended may be
supplied.21 It has also been held that the language of a
statute may be modified by court to give effect to manifest and undoubted
intention of the legislature.22The safest course for getting
legislative intent is to supply the golden rule of construing an enactment as a
whole.23
3.7. Role of
the Supreme Court of Bangladesh in interpreting a statute:-
In a
tripartite system of government, it is for the legislature to make the law and
the court’s duty is to enforce the law as passed by the legislature.24It
is often said that the function of the judiciary is to apply the law to settle
disputes coming before it and the
________________________________________________________________
20 Abdus Sattat v.Arag
Ltd (1964) 16 DLR 335.
21 Jadu Nath v.Bangladesh,
25 DLR 335.
22 13 DLR (SC) 105, 27 DLR 523.
23 Jadu Nath ,Ibid., 25
DLR 335.
24 Duport Steels Ltd v. Sirs,
(1980) 1 All ER 529.
court cannot
in the name of interpretation of a law create a new law.25
According to Maxwell, the function of a court is to interpret a statute
according to the intent of the legislature and in doing so it must be bear in
mind that its function is jus dicere, not jus dare 26 : the
words of a statute must not be overruled by the judges, but reform of the law
must be left in the hands of Parliament.27 In the
construction of statutes, courts in Bangladesh are to ascertain the intention
of Parliament. The courts in Bangladesh are to apply the law as expressed by
the legislature. However, the Constitution of Bangladesh has set certain norms
limiting the power of Parliament and the Constitution conferred power on the
Supreme Court to oversee that Parliament in exercising its plenary power of
legislation does not transgress the limit. Thus, notwithstanding the clear and
unambiguous language used in the statute to keep it within the bounds set forth
by the Constitution. The Supreme Court may modify the meaning of a provision to
avoid the conflict of the statute with the provisions of the Constitution.28
Article 31 of our Constitution has adopted the due process concept in general
and without any limitation and properly construed article 31 of our Constitution
prohibits anything arbitrary, unreasonable or unjust. Having regard to the
provisions of article 31 of the Constitution, the courts cannot enforce a law
which is arbitrary, unreasonable or unjust even if the language used by
Parliament is clear beyond doubt. In such situation the maxim of ut res
magis valear quam pereat(it may rather become operative than null) comes
into play. The court is required to examine whether any other interpretation
avoiding the apparent arbitrariness, unjustness or injustice is available and,
if so available, adopt that interpretation. If this is not possible in view the
specific language used by Parliament, the court is duty bound to refuse
enforcement of the law as being inconsistence with the provisions of article 31and
______________________________________________________________________________
25 Abdus Sattar,Ibid., 16
DLR 335.
26 P.St .J.Langan, Maxwell
on the Interpretation of Statutes, 12th ed.(Bombay: LexisNexis, 2003),
pp.1-2.
27 Md .Ismail v. State,
21DLR (SC) 161.
28 Mahmudul Islam, Interpretation
of Statutes and documents, 1st ed.(Dhaka: Mullick Brothers,
2009), p.13.
may be with
the provision of article 27 of the Constitution. Even though the court cannot
make a law for the Parliament, reading down a statute in such situation is a
well-established constitutional principle.29 In order to
provide a constitutional dress-up, the court may limit the reach of the
offending law even though the language of the statute permits its reach far
beyond.30 It is for this reason, that notwithstanding the
plenary power of legislation remaining vested in Parliament, article 111 of the
Constitution specifically provides that pronouncement of the Supreme Court as
regards law would operate as the law of the land.
It is
said that there is no need of interpretation when the meaning of the words is
clear and beyond doubt and the court will not go for interpretation if the
language of the provision is clear and beyond doubt ant the court will not for
interpretation if the language of the provision is clear. But this isolationist
approach is not correct. The court is to read a provision of a statute in its
context which includes other provisions of the statute and to see if on reading
of the statute in its context the language appears to be vague, ambiguous or
equivocal needing interpretation. A statute should be given an informed
construction taking into account its context and the court is to find the legal
meaning of the provisions of the statute which corresponds to the original
legislative intention.31Court is not concerned with the presumed
intention of the legislature-its task is to get at the intention as expressed
in the statute.32When the language of an enactment is ambiguous and
admits of more than one meaning, then the court is to find out which one of the
meaning is in accord with the legislative intent and that meaning is the legal
meaning.33But when the literal meaning is found to be contrary to
the purpose of the legislation, Court can modify the language of a statute to
affect the manifest and undoubted intention of the legislature.34
29 Ibid., p.16.
30 A.B.Mohiuddin v. Bangladesh,
49 DLR 353.
31 Bennion, Bennion on Statute
Law, 3rd ed. (London: LexisNexis, 2007), p.204.
32 40 DLR (AD) 116.
33 Bennion,Ibid.,p.204.
34 48 DLR 170.
Where two
meanings are possible, the one that avoids absurdity or anomaly should be
adopted.Hamooddur Rahman, CJ.inRasid Ahmed v. State (1969)35 states:
“If the words used by a legislature, in their primary sense, do not mean what
the legislature intended then it is for the legislature to amend the statute
and not for the courts to attempt the necessary amendment by speculating as to
the true intent of the legislature. It is only where the words of a statute are
obscure or doubtful or the literal construction involves the creation of
un-intended anomalies that a departure from this rule is permissible.”
35 21 DLR (SC) 297.
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