Special Laws, General Laws and Exclusive Laws


By Shayaan A.S. Essa, Of Lincoln's Inn, Barrister, Karachi

The proposition that a special law prevails over a general law is a common feature of legal discourse in Pakistan. It isn't unusual to find lawyers or law students engaged in argument or debate where one of them ventures "but a special law prevails over a general law", and that is taken to be the end of the matter.

Special laws have prevailed over general laws as a matter of fact, but is this prevalence some sort of legal principle as well, as it would seem to be posited as sometimes?

It is the assumption of the statement "a special law prevails over a general law" as a legal principle which, in my opinion, calls for clarification and that is the subject of this small piece.

The essence of the clarification is that specialty is not in itself a ground of prevalence. Exclusivity is a ground of prevalence. Something which is special may or may not be exclusive. A special law relating to customs may state that a claimant may bring his claim to the customs tribunal. Clearly, such a provision does not preclude a general civil action. It is thus a special provision but not an exclusive one.

According to the Honourable Supreme Court of Pakistan^1^ special laws prevail over general laws so as to give effect to the principle of harmonious statutory interpretation and so that resort is not made to implied repeal. This line of reasoning assumes an active conflict between a special and a general law, and if taken as a general rule, will always attribute an intention of preclusion of a general law to Parliament when it passes a special law. This assumption has jumped the gun by discarding the possibility of the co-existence of a special and general law which ironically is the pinnacle of harmonious statutory interpretation. If harmonious statutory interpretation is the starting point, then the onus lies on he who claims disharmony and not on he who claims harmony.

Furthermore, there is no innate legal problem with the idea of multiple remedies. The existence of one option does not naturally preclude the existence of another. Thus, special and general laws which are distinct may co-exist and it is preclusion that needs to be proven. That is done through words like "shall be heard by", "exclusively", "shall prevail over all other laws" etc.

Still further, we have laws which expressly stipulate exclusivity, indicating that it is misplaced to always assume preclusion of a general law where a special law exists in the field without examining whether it is intended to be exclusive. If argued that this line of reasoning is impractical as special laws will in practice usually if not always provide for exclusivity; such an argument may be correct in conclusion but will, in my opinion, be flawed in method and concept.

What is needed for preclusion is an expression of the exclusivity of the special law or a clear conflict between the two laws which gives rise to an implication of preclusion by virtue of the principle of harmonious interpretation (this conflict in practice will also only exist where one law envisages or expressed exclusivity).^2^ Automatic preclusion in the absence of these seems is, with respect, misplaced for the reasons earlier stated.

The actual conflict will hence arise only when one law claims exclusivity. It is this exclusivity that is to be given effect and not some blanket legal principle relating to special nature.

But what if there is no claim to exclusivity express or implied? In such a situation both laws should co-exist and provide recourse in their own right.

Having looked at the difference between specialty and exclusivity and having stated how the latter only manifests the unequivocal parliamentary intention of preclusion of other laws, we may say that the statement "exclusive laws prevail over general laws and special laws" rather than "special laws prevail over general laws", may be called a legal principle, as it is the clear and expressed purpose of these laws to preclude others in the field. Again, I will stress, that in practice special laws may perhaps nearly always be intended to be exclusive - however, what I have stated above is a matter of using the correct method and concept (because specialty and exclusivity are conceptually similar but not same even though they will usually overlap) and not of simply having the correct result for that may have been obtained through an incorrect method albeit correctly on favourable probability.

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