Statutory Interpretation

STATUTORY INTERPRETATION

By Atif Sattar Arieen, Member International Bar Association

Visiting Faculty Quaid-e-Azam Law College, Lahore

Professor John Austin (1790-1859) , a nineteenth century British legal philosopher , while delivering lecture on "Jurisprudence" in the University of London ,1831, quoted:

" Law, in fact, is a set of legally valid rules necessarily required to be obeyed to keep a certain society at peace and pace". (1)

The state; in fact: governs such a certain society through its organs. Each organ of the state has its defined responsibilities. The Legislature enacts laws , the Judiciary interprets these laws and the executive enforces these laws to keep a certain society at peace and pace. Laws must be drafted in general terms and must deal with both present and future situations. Often, a law which was drafted with one particular situation in mind will eventually be applied to quite different situations.

Legislation is drawn up by legal draftsmen, and a draftsman's capacity to anticipate the future is limited. He may not foresee some future possibility, or overlook a possible misinterpretation of the original intentions of the legislation. With this being the case, even the best drafted legislation can include many ambiguities. This is not the fault of the draftsman, simply a reflection of the fact that where people look at a text from different points of view they will naturally find different meanings in the language used. Another problem is legislation often tries to deal with problems that involve different and conflicting interests.

Once Parliament has passed an Act, it then falls to the courts to apply the statute in a particular case. It is commonly known as statutory interpretation or statutory construction. Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. A statute, which is a bill or law passed by the legislature, imposes obligations and rules on the people. Statutes, however, although they make the law, may be open to interpretation and have ambiguities. Statutory interpretation is the process of resolving those ambiguities and deciding how a particular bill or law will apply in a particular case. Many cases go to appeal on a point of interpretation.

The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters.

Legislation may contain uncertainties for a variety of reasons:

(1) Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time. The word 'let' used to mean 'prevent' or 'hinder' and now means 'allow'. The word 'peculiar' is used to mean both unusual and common, e.g. "kangaroos are peculiar to Australia," and "it's very peculiar to see a kangaroo outside Australia."

(2) Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. (Is e-mail subject to the same protection as documents held by a person, or is it considered less protected since it is in the hands of a third party?)

(3) Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.

Therefore, the court must try to determine how a statute should be enforced. This requires statutory interpretation/construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. Nevertheless, in practice, by performing the construction the court can make sweeping changes in the operation of the law. A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.

There exists The Interpretation Laws (e.g., The General Clauses Act, 1897) and The Interpretation clause as Article 260 of The Constitution of The Islamic Republic of Pakistan , which provide certain basic definitions. In addition the courts have developed rules to assist judges in interpreting statutes.

The Scope of Statutory Interpretation :

Whether one is working in a law firm, a government agency, or a public interest organization, there is a strong chance that one will be required to analyze and interpret statutes for his clients. For example, one's client may want him to determine whether a particular statute will provide the client with a cause of action given a particular set of circumstances. Or perhaps that client is a corporation trying to determine how a recently enacted statute would affect its long term business plans. Understanding the tools and techniques of statutory interpretation will help to understand the possible implications a statute may have on the client's interests.

The Aids to the Statutory Interpretation:

Words spoken or written are the means of communication. Where they are possible of giving one and only one meaning there is no problem. But where there is a possibility of two meanings, a problem arises and the real intention is to be sorted out. If two persons communicating with each other are sitting together; they can by subsequent conversation clear the confusion and make things clear. But what will happen if a provision in any statute is found to convey more than one meaning? The Judges and the Lawyers whose duty it is to interpret statutes have no opportunity to converse with the Legislature which had enacted a particular statute. The Legislature, after enacting statutes becomes functus officio so far as those statutes are concerned. It is not their function to interpret the statutes. Thus two functions are clearly demarcated. Legislature enacts and the Judges interpret.

The difficulty with Judges is that they cannot say that they do not understand a particular provision of an enactment. They have to interpret in one way or another. They cannot remand or refer back the matter to the Legislature for interpretation. That situation led to the birth of principles of interpretation to find out the real intent of the Legislature. Consequently, the Superior Courts had to give us the rules of interpretation to ease ambiguities, inconsistencies, contradictions or lacunas. The rules of interpretation come into play only where clarity or precision in the provisions of the statute are found missing.

Good enactments are those which have least ambiguities, inconsistencies, contradictions or lacunas. Bad enactments are gold mine for lawyers because for half of the litigation the legislative draftsmen are undoubtedly the cause.

The purpose of the interpretation of the statute is to unlock the locks put by the Legislature. For such unlocking, keys are to be found out. These keys may be termed as aids for interpretation and the canons and principles of interpretation.

The aids for interpretation may be divided into two categories, namely, Internal (Intrinsic) and External (Extrinsic).

The Internal Aids are those which are found within the statute. They may be as follows:-

  1. Long title of the statute.

  2. Preamble of the statute.

  3. Chapter Headings of the statute.

  4. Marginal Notes to every section of statute.

  5. Punctuations.

  6. Illustrations given below the sections.

  7. Definitions.

  8. Provisos.

  9. Explanation.

  10. Saving Clauses and non-obstante Clauses.

The External Aids for interpretation are those which are not contained in the statute but are found else-where. They may be as follows:-

  1. Historical background.

  2. Statement of objects and reasons.

  3. The original Bill as drafted and introduced.

  4. Debates in the Legislature.

  5. State of things at the time a particular legislation was enacted.

  6. Judicial construction.

  7. Legal dictionaries.

  8. Common sense.

The Canons of the statutory interpretation:

Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.

Following are the canons of the statutory interpretation: (2)

  1. Textual

  2. Substantive

  3. Deference

1. Textual:

Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.

(i) Plain meaning rule

The plain meaning rule gained popularity during the 18th and 19th centuries as the courts took an increasingly strict view of the words within statutes. Under the plain meaning rule, the words of the statute are given their natural or ordinary meaning. The plain meaning rule of statutory interpretation should be the first rule applied by judges.

One of the leading statements of the plain meaning rule was made by the Lord Chief Justice of common pleas , Sir Nicholas Conyngham Tindal in the Sussex Peerage (1844):

"The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver".

When writing statutes, the legislature intends to use ordinary English words in their ordinary senses but the strict application of the plain meaning rule can sometime result in "absurd" outcomes.

(ii) Golden rule

The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous.

This was propounded in Grey v Pearson (1857) 6 HLC 61,106 where Lord Wensleydale stated: (3)

"In construing... statutes... 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 ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther."

The degree of absurdity or ambiguity necessary to exercise the golden rule is determined on a case by case basis by the individual judge in question."

The court applies the golden rule in Adler v George (1964). Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited place. The defendant was actually in the prohibited place, rather than "in the vicinity" of it, at the time of obstruction. The courts had to determine whether "in [the] vicinity of" included on/in the premises. The court applied the golden rule. The court said 'in the vicinity' did include on or in as well. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. The defendant's conviction was therefore upheld.

(iii) Mischief rule

In Construction of Statutes , Elmer Driedger defines the mischief rule as follows:

"A statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it". (4)

Heydon's Case (1584) laid out the following statement of the principles underlying what would come to be called the "mischief rule": (5)

For the sure and true interpretation of all statutes four things are to be discerned and considered:-

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.

4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico .

(iv) Rule against surplus-age

Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.

(v) Ejusdem generis

("of the same kinds, class, or nature")

When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

(vi) Expressio unius est exclusio alterius

("the express mention of one thing excludes all others")

Items not on the list are impliedly assumed not to be covered by the statute or a contract term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

(vii) In pari materia

("upon the same matter or subject")

When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

(viii) Noscitur a sociis

("a word is known by the company it keeps")

When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

(ix) Reddendo singula singulis

("referring each to each")

"When a will says "I devise and bequeath all my real and personal property to A", the principle of reddendo singula singulis would apply as if it read "I devise all my real property, and bequeath all my personal property, to A", since the word devise is appropriate only to real property and the term bequeath is appropriate only to personal property.

(x) Generalia specialibus non derogant

("the general does not detract from the specific")

This means that if a later law and an earlier law are potentially-but not necessarily-in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

(xi) Reading down

While making such construction it is permissible for the Court even to "read down" a provision in order to so understand it as not to attempt something beyond the competence of the legislative body. This is called the principle of "reading down".

2. Substantive:

Substantive canons instruct the court to favour interpretations that promote certain values or policy results.

(i) "Charming Betsy" Canon

National statute must be construed so as not to conflict with international law. Held in an American case Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." (6)

(ii) Interpretation in Light of Fundamental Values

Statute does not violate fundamental societal values. Article 08 of The Constitution of the Islamic Republic of Pakistan , 1973 categorically guarantees: "Laws inconsistent with or in derogation of Fundamental Rights to be void.

(iii) Rule of Lenity

In construing an ambiguous criminal statute, the court should resolve the ambiguity in favour of the defendant.

(iv) Avoidance of abrogation of state sovereignty

Article 6 of The Constitution of the Islamic Republic of Pakistan, 1973 deals with the abrogation of state sovereignty confirmed by the supreme law of the land, the constitution, and categorically states that no act of the abrogation , subversion, suspension , or holding in abeyance shall be allowed and it 'II amount "High Treason" otherwise.

(v) "Native" Canon

National statute must be construed in favour of Natives of a certain society or tribe. This canon can be likened to the doctrine of contra proferentem in contract law.

3. Deference:

Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility..

(i) Deference to Administrative Interpretations (US Chevron deference)

If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). (7)

(ii) Avoidance Canon (Canon of Constitutional Avoidance)

If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the common law jurisdictions, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.

(iii) Avoiding Absurdity or Clear statement rule

The legislature did not intend an absurd or manifestly unjust result. When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.

(iv) Leges posteriores priores contrarias abrogant

(Subsequent laws repeal those before enacted to the contrary, a.k.a "Last in Time")

Later law abrogates earlier laws not consistent with it. When two statutes conflict, the one enacted last prevails.

Savigny's Methods of Interpretation:

The German scholar Friedrich Carl von Savigny (1779-1861) elaborated the four main interpretation methods which are: (8)

(i) Grammatical interpretation: using the literal meaning of the statutory text ("grammatical" is actually the wrong word, but it is commonly used for this type of interpretation. "Textual" interpretation would be better.)

(ii) Historical interpretation: using the legislative history, to reveal the intent of the legislator.

(iii) Systematic interpretation: considering the context of provisions, if only by acknowledging in which chapter a provision is listed.

(iv) Teleological interpretation: considering the purpose of the statute is considered, as it appears from legislative history, or other observations.

It should be noted that the freedom of interpretation largely varies by area of law. Criminal law and tax law must be interpreted very strictly, and never to the disadvantage of citizens, but liability law requires more elaborate interpretation, because here (usually) both parties are citizens. Here the statute may even be interpreted contra legem in exceptional cases, if otherwise a patently unreasonable result would follow.

Interpretation of International Treaties:

The interpretation of international treaties is governed by another treaty, the Vienna Convention on the Law of Treaties, notably Articles 31 through 33. (9)

Here the rule is basically that the text of the treaty is decisive, unless it ;

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable (Article. 32).

Only in that case, recourse to "supplementary means of interpretation" is allowed, like the preparatory works.

Criticism

Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislature, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process.

Conflicts between legislation and case law

Where legislation and case law are in conflict, there is a common law presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty.

Conflict of laws within a federation

Article 143 of the Constitution of Pakistan categorically states that in case of any inconsistency between federal and provincial laws , the federal shall prevail. Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule.

Some helpful techniques to understand statutes:

Before You Begin ,

1. "Read the Statute, Read the Statute, Read the Statute!"

The language of the text of the statute should serve as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, you must read the text closely, keeping in mind that your initial understanding of the text may not be the only plausible interpretation of the statute or even the correct one.

2. Understand Your Client's Goals

Make sure that you have a firm grasp of your client's goals and the underlying facts of your client's legal problem so that you will be able to determine which statutes are relevant to your case.

3. Shepardize (or KeyCite) the Statute

As time passes, lawmakers sometimes revise and rewrite the text of a statute in response to changing legal or political realities. When undertaking an assignment or research project that requires you to analyze a statute, be sure to Shepardize (or KeyCite) the statute to determine:

(a) whether the statute parts of the statute have been repealed or otherwise invalidated;

(b) whether the statute has been amended; and

(c) whether there are any court decisions that can guide your analysis of the statute.

4. Look for Cross-references

When reading complex statutes, be aware of references to other statutes. These references may lead you to other statutes that will affect the meaning and function of the statute you are trying to analyze. Be Mindful of Commonly Used Terms. Below are a few important terms that are commonly found in statutes.

Additionally the following terms are often used purposefully to change the scope and function of the statute: TermFunction
Unless ExceptThese terms usually signify an exception to the statute
Subject to... Within the meaning of For the purposes ofThese terms may limit the scope of the statute, or may indicate that a certain part of the statute is controlled or limited by another section or statute
If...then... Upon Before/After Provided that...Generally, these terms indicate that for one part of a statute to take effect, a precondition or requirement must be satisfied
NotwithstandingLiterally, "In spite of," this term usually signifies that a certain term or provision is not controlled or limited by other parts of the statute, or by other statutes
Each/Only Every/Any/AllThese terms commonly limit the class of objects that are either included in or excluded from the statute

MAY v. SHALL

Generally, the word "shall" signifies that certain behaviour is mandated by the statute, while the word "may" grants the agent some discretion.

Mandatory and Directory Provisions :

The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive. The use of words 'shall' and 'may' is not the determinant factor. Regard must be given to the context, subject matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. The rules may be as follows:

(a) The golden rule is that when consequences are provided by statute then the provisions are definitely mandatory .If no consequences then the provisions are merely directory.

The examples of mandatory provisions;

  1. The provisions relating to limitation for seeking remedy in Courts or Tribunals;

  2. The provisions relating to principles of natural justice;

  3. The provisions relating to registration of certain documents;

(b) Use of negative words shows a clear intention that the provision enacted is mandatory as enacted through the following provisions:-

Articles 9 , 10(1) , 12 , 13 , 21 , 24(1), 27 of The Constitution of The Islamic Republic of Pakistan, 1973, Articles 4,5,6,7,8,9,12,13,14 of The Qanun-e-Shahadat Order , 1984,

Sections 76, 77, 78, 79, 80, 81, 82 , 83, 84, 85, 87, 88, 89, 92, 93, 95, 96 of The Pakistan Penal Code, 1860,

Sections 10, 11, 21,56,62,66,80,86-A,99,102,111 of The Code of Civil Procedure,1908,

Section 213 of the Succession Act, 1925,

Section 7 of the Stamp Act, 1899.

Section 20(1) of the Prevention of Food Adulteration Act, 1954.

(c) Affirmative words stand at a weaker footing than negative words for reading the provision as mandatory.

(d) When no discretion, the provision is generally treated as mandatory. When discretion given then the provision is directory.

Conclusion:

The interpretive principles , techniques and terms offered through this article can help one get closer to the meaning of each statute. The theories presented in this article show one to choose interpretive techniques wisely.


Footnotes/ References :

(1) "Law's Empire" (1986) by Ronald Dworkin, ISBN: 978-0674518360

(2) "The Common Law and English Jurisprudence"(1991) by Michael Lobban, ISBN 0198252935

(3) Grey v Pearson (1857) 6 HLC 61, 106 per Lord Wensleydale

(4) Elmer Driedger, Construction of Statutes. 1983, p. 1, ISBN-13: 978-0409828009

(5) Heydon's Case (1584) 76 ER 637

(6) Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804)

(7) Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

(8) "On the Vocation of Our Age for Legislation and Jurisprudence"(1975) by Friedrich Karl von Savigny, ISBN-13: 978-0405065460

(9) The Vienna Convention on the Law of Treaties (VCLT) adopted on 22 May 1969.

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