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STATUTE: DEFINITION
A statute is a formal written enactment of a legislative authority that governs a country, state, city,
or province. In general, it may be defined as an act of the Legislature as an organised body. It is
the written will of the Legislature expressed according to the form necessary to constitute it a law.
Typically, statutes command or prohibit something, or declare policy. It is an act of the Legislature
declaring, commanding or prohibiting something. The word is often used to distinguish law made
by legislative bodies from the judicial decisions of the common law and the regulations issued by
Government agencies.

Law includes any act, ordinance, order, bye-law, rule, regulation, notification, custom or usage
having the force of law. A statute is a will of the Legislature conveyed in the form of a text. Statutes
generally refer to the laws and regulations of every sort, every provision of law which permits or
prohibit anything. A statute may generally be classified with reference to its duration, nature of
operation, object and extent of application, subject – matter, e.g. perpetual or temporary statutes,
statutes with immediate effect, retrospective statutes, repealing statutes, codifying statutes,
substantive statutes, procedural statutes, penal statutes, etc.

INTERPRETATION OF STATUTES
Legislation is one of the sources of law. The law which comes into being on account of legislation
is named as enacted law or statute law. Enacted laws, particularly Acts, Ordinances, Rules, etc. are
drafted by legal experts and it could be expected that the language used will leave little room for
interpretation or construction. But the experience of all those, who have to bear and share the task
of application of the law, has been different. It is quite often that we fin-d courts and lawyers busy
in unfolding the meaning of ambiguous words, phrases and expressions and resolving
inconsistencies. The age-old process of application of the enacted law has led to the formulation
of certain canons of interpretation. Statutory interpretation refers to the process by which a court
looks at a statute and determines what it means. Statutes either imposes obligations and rules or
confers rights on the people. But these statutes may have countless ambiguities and, thus, be open
to interpretation. Statutory interpretation is the process of resolving those ambiguities and deciding
how the enacted law will apply in a particular case. Salmond says:
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‘By interpretation or construction is meant the process by which the courts seek to
ascertain the meaning of the Legislature through the medium of authoritative forms in which
it is expressed.’

Construction and Interpretation distinguished: Strictly speaking, construction and

interpretation are not the same, although the two terms are often used interchangeably.
Construction is the drawing of conclusions with respect to subjects that are beyond the direct
expression of the text, from elements known and given in the text. Interpretation is the process of
discovering the true meaning of the language used. Thus, the court will resort to interpretation
when it endeavours to ascertain the meaning of a word found in a statute, which when considered
with the other words in the statute, may reveal a meaning different from that apparent when the
word is considered abstractly or when given its usual meaning. But when the court goes beyond
the language of the statute and seeks the assistance of extrinsic aids in order to determine whether
a given case falls within the statute, it resorts to construction.

The distinction between the two processes is often vague. So far as the courts are concerned, the
distinction apparently has little or no importance. Generally, the whole matter has been largely
relegated to the realm of academic discussion, since for most practical purposes it is sufficient to
designate the whole process as either interpretation or construction. This appears to be the
customary judicial practise.

TYPES OF INTERPRETATION

Interpretation is of two kinds, legal or doctrinal. It is legal interpretation when there is an actual
rule of law which binds the judge to place a certain interpretation. It is doctrinal when its purpose
is to discover the real or true meaning of the statute.

Legal interpretation is again divided into authentic and usual. It is authentic when the rule of
interpretation is derived from the legislator himself. It is usual when it comes from some other
source such as a custom or usage.

Doctrinal interpretation can either be grammatical or logical. Grammatical interpretation is the

application to a statute of the ordinary laws of speech to find the meaning of the words used; it is
logical interpretation when the court goes beyond the words and tries to discover the intention of
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the statute by a comparison of the statute with other statutes and with the whole system of law, and
for the consideration of the time and circumstances in which the statute was passed.

Interpretation has also been divided into genuine and spurious. The former has as its object the
discovery of the rule which the law makers intended to establish, the discovery of the intention
with which the law makers made the rule, or the sense which they attached to the words wherein
the rule is expressed, while the object of the latter is to make, unmake or remake, and not merely
to discover. Spurious interpretation has been referred to as “judicial law making under the guise
of interpretation”. Genuine interpretation, on the other hand, is purely judicial in character.

In relation to statute law, interpretation is of considerable significance because of the inherently

ambiguous nature of legislation as a source of law. The process of statute making and the process
of interpretation of statutes are two distinct activities. In the process of interpretation, several aids
are used. They may be statutory or non-statutory. Statutory aids may be illustrated by the General
Clauses Act, 1897 and 1956 and by specific definitions contained in individuals Acts whereas non-
statutory aids is illustrated by the canons of interpretation (including certain presumptions relating
to interpretation) and also by case laws relating to the interpretation of statutes.
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PURPOSE OF STATUTORY INTERPRETATION

The traditional way of interpreting or construing statutes is always to seek the intent of its maker.
The task of the judiciary is to act upon the intent of the law makers which it accomplishes by
construing the statute according to the intent of those who have enacted such statute i.e. the
Legislature, and to make it effective. The ascertainment of the legislative intent is the sole
legitimate purpose of construction. The object or purpose of all interpretation is to determine the
intention of the law makers and to make it effective.

PROBLEMS OF ORDINARY LANGUAGE

Before discussing legislative intent, we must examine how problematic and challenging the task
of interpretation is. Determining the intent of the law makers is quite a difficult task and difficulties
arise because of many reasons. People communicate in many ways, e.g. by means of signals
(signs), sounds (for instance, honking the horn of a motorcar), and of course language. Language
is the most important medium of communication used by human beings. Although we can express
ourselves quite clearly through the spoken or the written word, language actually is a rather
imprecise and imperfect medium in which to communicate. Words are not scientific symbols
having precise or definite meaning and language is an imperfect medium to convey one’s thought.
How so?

Oral, in-person communication is infinitely richer in nuance and detail arising from the meaning(s)
imparted by the personae and relationship of the speakers, body language, facial expression,
proximity, gestures, tone of voice, rhythm, emphases, pauses, pacing, articulation, inflection, and
more. Although much oral communication relates to simple subjects or tasks, even in complex and
sustained presentations, like an appellate oral argument or a law school lecture, a speaker receives
almost instantaneous signals of comprehension, confusion, or doubt from his interlocutors. Even
if only one person is speaking, oral communication is reciprocal, an ongoing feedback loop of
communication. A written text, by contrast, is much more limited in its reach and power. The
printed word is presented to us in a linear way, with syntax supreme in conveying the sense of the
words in their order. We read privately, mentally listening to the writer’s voice and translating the
writer's thoughts. Statutes face the additional expressive challenge of universality, trying to
regulate (or exempt) every foreseeable occurrence or omission of a certain kind or class.
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For example, if Sara said, “My grandfather retired from the army last year”, this requires an
explanation because we do not know whether she is talking about her paternal or maternal
grandfather. Another example is where Faizan says, “I have a blue pen”, two questions arise here
regarding the colour blue: 1) Firstly, is he referring to the body of the pen or its ink; & 2) Secondly,
which shade of blue is he implying? Yet a third question may arise regarding the type of pen Faizan
has. Is it a ballpoint pen, fountain pen, felt-tip pen, rollerball pen, etc.? In both of the instances
mentioned, if these statements were made today, the matter may be resolved easily as one may
simply ask the two to clarify their statements. However, it may be difficult to question them if the
statements were made, for example, a century before.

THE DISEASES OF LEGAL LANGUAGE

Language is the main medium of communication in law. Since words are not always capable of
bearing one meaning in nearly every case, the courts quite often differ on the words and their usage
as expressed in a statute. A word may appear to be plain and simple to one court but at the same
time, it would not be so for a different court. Even when there is an agreement that the words are
plain, difference of opinion may result on the question as to what the plain meaning is. Lawyers
especially will testify to this fact, as they tend to be as precise as possible when using words and
concepts. Interpretation may be required and justified by various factors. Statutes should be
construed not as geometrical theorems but with some imagination of the purposes which lie behind
them. Statutory interpretation is a particular form of a general problem – the understanding of
meaning or, more broadly still, communication. Even the simplest statement usually relies on an
understanding of habits, knowledge, values and purposes shared between the author and the
recipient of the communication. Even the simplest statement usually relies on an understanding of
habits, knowledge, values and purposes shared between the author and the recipient of the
communication. The point was made in a homely example over a hundred years ago:

Suppose a housekeeper says to a servant: ‘Fetch some soup meat’ accompanying the act
with giving some money to the latter; he will be unable to execute the order without
interpretation, however easy and, consequently, rapid the performance of the process maybe.
Common sense and good faith tell the servant, that the housekeeper’s meaning was this: 1) He
should go immediately, or as soon as his other occupations are finished; or, if he be directed to
do so in the evening, that he should go the next day at the usual hour; 2) That the money handed
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him by the housekeeper is intended to pay for the meat thus ordered, and not as a present to
him; 3) That he should buy such meat and of such parts of the animal, as, to his knowledge, has
commonly been used in the house he stays at, for making soup; 4) That he buy the best meat he
can obtain, for a fair price; 5) That he go to that butcher who usually provides the family, with
whom the servant resides, with meat, or to some convenient stall, and not to any unnecessarily
distant place; 6) That he return the rest of the money; 7) That he bring home the meat in good
faith, neither adding anything disagreeable nor injurious; 8) That he fetch the meat for the use
of the family and not for himself. Suppose, on the other hand, the housekeeper, afraid of being
misunderstood, had mentioned these eight specifications, she would not have obtained her
object, if it were to exclude all possibility of misunderstanding. For, the various specifications
would have required new ones. Where would be the end? We are constrained then, always, to
leave a considerable part of our meaning to be found out by interpretation, which, in many
cases, must necessarily cause greater or less obscurity with regard to the exact meaning, which
our words were intended to convey.1

Interpretation, in other words, is not something that happens only in cases of doubt or difficulty; it
happens whenever anyone tries to understand language used by another person. Usually the
process of understanding is instinctive and immediate. It requires no conscious thought and is
therefore not even noticed. For the most part we manage in ordinary life without too many
difficulties created by misunderstandings. On the other hand, even in family life where the
members of the household share broadly common values and common objectives and have a great
deal of knowledge about each other’s use of language, misunderstandings are far from rare.
Interpretation therefore occurs inevitably wherever there is communication; the problem of
interpretation occurs only when something goes wrong.

Lord Hailsham said that probably as many as nine out of ten cases heard on appeal by the Court
of Appeal and the House of Lords in England turn upon or involve the meaning of words contained
in statutes or secondary legislation.2 It is hardly surprising that in legal affairs there are plenty of
ways in which things may go wrong. For one thing, legal documents – whether statutes, contracts,
leases, mortgages, wills, bills of exchange – tend to be complex. Their subject-matter is difficult.

1
F. Leiber, Legal and Political Hermeneutics (3rd edn. 1880), p. 18.
2
The same statement is true for the Supreme Court of Pakistan and the Provincial High Courts hearing cases on the
appellate side.
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They use a mixture of ordinary language and technical jargon. They are apt to be long-winded.
They are frequently the result of drafting by several hands or at least of consultation with a variety
of people. The final draft may reflect a compromise between different points of view. Each of
these factors militates against simplicity and clarity of expression.

Secondly, a legal document speaks not only to the present but is usually intended to cope with the
future. That indeed is normally its chief function. But the draftsman’s capacity to anticipate the
future is necessarily limited. Even if he provides for thirteen possible contingencies, he may
overlook the possibility of the fourteenth which happens to be the one that actually occurs. The
late Professor Lon Fuller of Harvard posed the example of a statute that provides ‘It shall be an
offence punishable by a fine of five dollars to sleep in any railway station’. Does the offence
cover the case of a passenger waiting for a delayed train who was found at 3 a.m. on a station
bench, sitting upright but asleep and even snoring? Equally, does it cover the case of the tramp
who was stopped on his way into the station carrying a bed-roll and heading for a bench, apparently
with a view to settling down for the night? Neither case is adequately dealt with in the statute. No
draftsman, however fertile his imagination, can think of everything.

Moreover, space will not permit him to put down everything that he does think of. In order to avoid
the danger of misconstruction of the simple request ‘fetch some meat for soup’, the careful
draftsman/communicator would be best advised to specify that he means – from the shop at the
bottom of the road; before lunch; at the customary price; meat of the kind normally eaten by the
family; that the change be returned, etc. In ordinary life, time and patience do not permit such
tedious prolixity. Much is left to common sense. But precisely the same is true of legal documents.
However pedantic the draftsman, there will be much that he will have to leave to common sense.
If everything had to be defined, there would be no end to the document. The draftsman must
perforce select what he thinks are the most important matters to be set down. Moreover, there are
some things that he cannot foresee simply because later developments are not within the
knowledge of anyone at the time. The draftsman who uses the word “vehicle” in the days of horse-
drawn carriages cannot be blamed for any uncertainty as to whether the word applies to motorcars
or aeroplanes.

The third and most important reason for the singular tendency of legal documents to give rise to
difficulties is that they commonly reflect attempted solutions to problems affecting different and
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conflicting interests. A will is the sharing out of property amongst individuals each of whom might
prefer to have more than their allotted share; a contract is an agreement between, say, a buyer and
a seller who have contrary points of view on the deal; a lease is an allocation of rights and
responsibilities between landlord and tenant whose interests diverge at many points. A statute
commonly prescribes a new way of dealing with a particular range of problems as between the
different groups affected. The problem of drafting language so as to avoid ambiguity and
uncertainty is great enough where the relevant parties have broadly the same point of view. It is
infinitely greater where they have an incentive to find different meanings in the words used. The
English language is richly endowed with words that bear multiple meanings and there is almost no
limit to the number of ambiguities that can be found in the ordinary legal document once ingenious
and motivated lawyers start picking it over. It is not necessarily a matter of the lawyers being
“bloody-minded”. They may simply be doing their job by looking for ways in which the document
can be construed to serve the best interests of their client. Ambiguity here is not the fault of the
draftsman nor is it a reflection of the shortcomings of the language; it is simply the result of the
obvious fact that where people look at a text from different points of view, they are apt to find
different meanings in the language used.

The language used in law suffers from quite a few ailments similar to ordinary language. These
are some of the diseases one may come across when attempting to understand and interpret the
language used in a statute:

STYLE: A brief overview is given of the style used in the drafting of statutes in order to
comprehend why the need to interpret occurs. Traditionally, a distinction has broadly been made
between two styles in legislative drafting:

1. The Common Law style which is used in English speaking countries e.g. Britain, Canada,
Australia, etc. and previous colonies of Britain e.g. Pakistan, India, etc.; &
2. The Continental or Civil Law style which is used in countries on the Continent - virtually
all of these countries have codified legal systems e.g. Belgium, the Netherlands, Germany,
France, etc.

From a legal standpoint, the distinction between the two styles is found in the manner in which
ruling principles are set out. In the Common Law style, the draftsman strives to make provision
for virtually every possible and foreseeable set of facts - this is done by means of setting out a
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complex combination of factual possibilities. As regards the Continental style, the ruling principle
is set out broadly and it is left to the courts to decide on the scope and ambit of the rule.

Seen from a linguistic point of view, the characteristics of the Continental literary style (which
includes manner of expression, format in general, length of sections, sentences, paragraphs and
phrases) are as follows:

1. Short sentences are used.

2. The sections are short, sometimes only one short sentence in length, and without
subsections.
3. The definitions are limited to an absolute minimum
4. The purpose is set out clearly
5. Ideas / information unites are arranged logically
6. Statements that set out principles are made - there is thus an absence of complex and
detailed statements
7. A straight-forward and clear method of expression is used.

Short sentences contain only one information unit. A logical arrangement has as spin-off the fact
that ideas are stated orderly and in an economical manner, without repetition and “no going back
on its tracks”, in other words, as little as possible reference is made to previous statements.3

The characteristics of the British literary style are:

1. Long sentences having a linguistically complex structure is used.

2. The sections, which contain sub-sections, are long and are made up of long sentences. One
section may even be pages long.
3. Definitions are used extensively. Apart from the definition section, definitions sometimes
appear in the text as well.
4. The principle is not always set out within the rule - principles are sometimes found in
schedules.
5. Ideas are not necessarily arranged in a logical manner - excessive forwards and backwards
referencing is present.

3
Sir William Dale (Legal Drafting: A New Approach)
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6. The statements strive to include every / any possible set of facts which may arise in future
and in some instances, this leads to absurd and illogical combinations.

Many reasons have been tendered why the Common Law style is as it is. It could be Parliament’s
distrust in the courts. It could lie in the fact that the executive organ must be controlled strictly. It
may have to do with the culture and thought processes of a particular people or nation.

Whether one follows the Common Law style of the Civil Law style, there are nevertheless
particular aspects that are universal in legal styles. We will now study some of these aspects.

CONSISTENCY: It has been said:

‘Each time an idea is expressed in a legal text, it should be expressed the same way. Each
time a different idea is expressed, it should be expressed differently. Where comparable ideas
are similar in some respects and different in others, their expressions should be correspondingly
similar and different. The consistency principle also calls for maintaining parallel sentence or
paragraph structure for substantively comparable provisions.’4

Study the following examples of inconsistency which appears in one statute. Different words are
used to express the same verbal connection between the term being defined and its definition:

Accelerate-stop distance is...

Air carrier means...

The approach or take-off area shall be...

Approved... shall mean...

An extended over-water operation shall be considered...

Alaska air-carrier includes...

Category shall indicate...

What is the most remarkable about these examples is that they all occurred in the same section.
Although the particular variations probably did not have important direct consequences, they

4
Reed Dickerson (Materials on Legal Drafting)
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served notice on the reader that he could not be sure whether a change in wording signified a
change in substance or not.

OVER-SPECIFICITY / DETAIL: A good example of too much detail or over-specificity is that

used by Dickerson where he quotes from the Wisconsin Bar Bulletin:

‘When an ordinary man wants to give an orange to another, he would merely say, ‘I give
you this orange’. But when a lawyer does it, he says it this way: ‘Know all men by these presents
that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title,
interest, benefit and use whatever in, of, and concerning this chattel, otherwise known as an
orange, or citrus aurantium, together with all the appurtenances thereto of skin, pulp, pip, rind,
seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds,
and juice for his own use and behalf, to himself and his heirs in fee simple forever, free from
all liens, encumbrances, easements, limitations, restraints or conditions whatsoever, any and all
prior deeds, transfers or other documents whatsoever, now or anywhere made to the contrary
notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give
away the same, with or without its skin, pulp, pip, rind, seeds, or juice.’

One may consider this as lawyers being overly precise and specific in their expressions, and this
leads to problems in the field of comprehension and in interpretation.

BREVITY: Brevity is a virtue when it saves the reader’s time and patience; not when it costs him
both. Wordiness ‘is a natural enemy of clarity; the language simplification process frequently turns
up shorter ways of saying things.

Wordiness takes many forms. One common drafting sin is to use synonyms such as “alter and
change”, “authorise and empower”, “sole and exclusive”, and “null and void”. Today, there is
no excuse for adding synonyms. One must choose the most familiar term and stay with it. Another
drafting sin is to include in pairs of words or expressions one of which includes the other. This,
not only is unnecessarily wordy, but may create uncertainty as to which term is intended to be
controlling and which, consequently, is surplusage. For example, do not say “authorise and
direct”, if this is intended to mean what it says. “Authorise and” should be deleted, because every
direction includes the authority to comply with it. The best guide here is simply to exclude words
or expressions that contribute nothing to the legal message e.g., “it is herein provided that”.
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In many cases, it may prove vital to explain complex concepts fully and precisely. The objective
is to provide people with as complete a picture as possible but in a simplified manner. Consider
the following examples of wordiness:

1. The story of the creation of the universe is told in Genesis in 400 words.
2. The world’s greatest moral code - the Ten Commandments - contains 227 words.
3. Lincoln’s immortal Gettysburg address is but 238 words in length.
4. The Declaration of Independence required only 1821 words to set up a new concept of
freedom.
5. But the Office of Price Administration is credited with using 2800 words in announcing a
reduction in the prices of cabbage seed.

AMBIGUITY: The problem of interpretation is a problem of meaning of words and their

effectiveness as medium of expression to communicate a particular thought. Each word is but a
symbol which may stand for one or a number of objects. That which is referred to is termed as
“referent”. A referent may be an object or a situation. When a word is used to indicate to a referent,
that reference brings up an image in one’s mind which refers to that referent. But words are capable
of referring to different referents in different contexts. One may say that a word has different
shades of meaning in different situations. From the very nature of things, it is impossible to
anticipate fully the different situations arising in future in which the application of the legislation
in hand may be called for, and, words chosen to communicate such indefinite referents are bound
to be, in many cases, lacking in clarity and precision and thus giving rise to controversial questions
of construction. It is impossible even for the most imaginative legislature to forecast exhaustively
situations and circumstances that may emerge after enacting a statute where its application may be
called for.

The preceding discussion appropriately raises the issue of ambiguity within a paragraph or a
section. Ambiguity is defined as a state of language in which the meaning to be conveyed is subject
to uncertainty, in which the writing can plausibly mean one thing, or another, or still another or
more. Written material is ambiguous if on its face it has two or more meanings distinct and
mutually exclusive meanings. Usually an ambiguity is an equivocation, that is, an uncertainty
between two meanings. The writing literally says two things. There are three kinds of ambiguity:
semantic, syntactic and contextual.
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Semantic ambiguity: This ambiguity arises from the use of polysemous words. Polysemous words
have more than one “dictionary meaning”. Dictionaries do not give meanings; they only give
potential meanings. The correct (potential) meaning is activated by the context in which the word
is used. Consider the following general examples and determine where the ambiguity lies:

1. You know, somebody actually complimented me on my driving today. They left a little
note on the windscreen; it said, ‘Parking Fine’. So that was nice.
2. Alice is in a terrible place.
3. The priest married my sister.
4. How do you make a turtle fast? Take away his food bowl.
5. She is looking for a match.
6. The fisherman went to the bank.
7. Each of us saw her duck.
8. Steve stoned in a rally in England.
9. Fetch me Nadia’s organ.
10. I saw a bat outside.

Syntactic ambiguity: Syntactic ambiguity, also called structural ambiguity or grammatical

ambiguity, is the presence of two or more possible meanings within a single sentence or sequence
of words. By far the most prevalent kind of ambiguity is syntactic ambiguity. Syntactic ambiguities
are uncertainties of modification or reference within the particular statute. Pinpoint the ambiguity
in the following examples:

1. The burglar threatened the student with the knife.

2. They are hunting dogs.
3. Look at that dog with one eye.
4. Visiting relatives can be boring.
5. I’m glad I’m a man, and so is Ariel.
6. John saw the man on the mountain with a telescope.
7. The chicken is ready to eat.
8. He fed her cat food.
9. The passer-by helps dog bite victim.
10. Saad ate a salad with biryani from Hyderabad for lunch on Tuesday.
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Contextual Ambiguity: A third, and likewise prevalent, kind of ambiguity, is contextual

ambiguity. Even when the words and syntax of a statute are clear, it may still be uncertain which
of two or more alternatives was intended. An internal contextual ambiguity may result, for
example, from an internal inconsistency: when one provision plainly contradicts another, which is
intended to prevail? Contextual ambiguities may also be external. Thus, a statute may bear a
similarly ambiguous relationship to another statute with which it is inconsistent. Examine the
examples given below:

1. An agreement that calls for payment of 75, 000 in six monthly instalments of 15, 000. Six
payments of 15, 000 will, of course, total 90, 000. So, does the agreement require payment
of 75, 000 or 90, 000?
2. A marital settlement agreement required the husband to pay alimony to the wife ‘until
20/02/20, Yasmeen’s 18th birthday’. As it so happens, the specified date would be the 18th
birthday of the couple’s youngest daughter, Mariam. The couple’s middle daughter,
Yasmeen, turned 18 on August 1, 2018.5 So, which date controls?
3. All judicial proceedings arising out of or relating to this Agreement shall be brought in a
court of competent jurisdiction in the District of Columbia, and Borrower accepts the
exclusive jurisdiction of the aforesaid courts and waives any defence of forum non
conveniens.6 Nothing herein shall limit the right of Lender to bring proceedings against
Borrower in the courts of any other jurisdiction.7
4. A written agreement dated June 2014 between an insurance company and a broker, for the
broker to market and the insurance company to issue a new type of life insurance policy,
contained the following terms:
Term of Agreement: This Agreement will continue indefinitely, until terminated by either
party upon thirty days written notification.

5
Contextual ambiguity can occasionally be latent. That is, the ambiguity might not be apparent on the face of the
document and instead become evident only after reference to external facts.
6
Forum non conveniens (Latin for forum not agreeing) is a common law legal doctrine whereby courts may refuse to
take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the
conflict of laws, forum non conveniens applies between courts in different countries and between courts in different
jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within
a state.
7
If the first sentence is, as it purports to be, a statement mandating a forum for the litigation of disputes, the second
sentence is in conflict.
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Commitments: Insurer shall accept at least 100, 000, 000 /- of premiums for each twelve-
month period from July 1, 2014 until June 30, 2017.8
5. An agreement between Uber and its drivers provides: You and Uber agree that any dispute,
claim or controversy arising out of or relating to this Agreement will be settled by binding
arbitration. You acknowledge and agree that you and Uber are each waiving the right to a
trial by jury or to participate as a plaintiff or class member in any purported class action or
representative proceeding. Further, unless both you and Uber otherwise agree in writing,
the arbitrator may not consolidate more than one person’s claims, and may not otherwise
preside over any form of any class or representative proceeding.9
6. After the tenant’s Initial Build-Out, the tenant shall not make any alterations
involving structural, weight bearing changes, changes which affect any building
systems, or changes to the storefront… without securing landlord’s written consent,
which consent shall not be unreasonably withheld, conditioned or delayed. After
tenant’s Initial Build-Out, the tenant may make all other alterations or additions,
including, without limitation, non-weight bearing alterations to the premises as tenant
may desire... without obtaining landlord’s written consent. Any alterations or
additions made by tenant will be made in compliance with all applicable laws, in a
good workmanlike manner without cost to landlord.10

VAGUENESS: Vagueness is the imprecise or unclear use of language. It arises from the use of
terms that are inherently vague. With reference to vagueness, language is uncertain in its respective
applications to a number of particulars. Whereas the uncertainty of ambiguity is central, with an
“either-or” challenge, the uncertainty of vagueness lies in marginal questions of degree. This
uncertainty is said to result from the open texture of concepts. Most words that denote classes or
categories (these words include most of the words of which statutes are composed) have elements
of vagueness. For example, the word “red” or “near” is vague.

8
The first sentence purports to give either party the right to terminate at any time, upon thirty days notification. The
latter purports to obligate the insurer for three years.
9
In isolation, the middle sentence appears to be a waiver of a right to bring or participate in a class action. However,
because the clause was sandwiched between two sentences dealing with arbitration, the Southern District of New York
ruled last month that the waiver was limited to arbitration proceedings and did not apply to actions as to which
arbitration had been waived.
10
The third sentence appears to refer to all alterations. However, the prior two sentences both refer to alterations made
‘after Tenant’s Initial Build-Out.’
 16

Example: The cabinet minister who says, ‘My officials are monitoring this situation very closely,
and I can promise that we shall take all appropriate measures to ensure that the situation is
resolved in a way that is fair to all the parties involved.’ should be challenged on grounds of
vagueness. Despite the appearance of having promised to do something specific, the minister has
not really promised to do anything at all. What are appropriate measures? They could be anything
or nothing. What does fair to all the parties mean? There is no clue. Such phrases are inherently
vague and can mean almost anything. The following are some vague words as they lack precision:

1. Many
2. Early
3. Hot
4. Most
5. Others
6. Poor Student
7. Very Rich
8. Soon
9. Furniture

GENERALITY: A concept that sometimes makes it difficult to understand the statute is that of
generality. It is often confused with vagueness and sometimes even with ambiguity. A term is
‘general’ when it is not limited to a unique referent and thus can denote more than one. It would
be hard to imagine a statute that did not contain at least one general term. The confusion of
generality with ambiguity is most likely to occur with respect to heterogeneous classes that include
different referents that it is often useful to distinguish. For example, the general term
“grandmother” is not ambiguous merely because it includes a paternal grandmother as well as a
maternal one. Similarly, for the general term “brother-in-law”, which includes both a wife’s or
husband's brother and a sister’s husband. The difference between such hetero-generality and
ambiguity is that the former permits simultaneous reference, whereas the latter permits only
alternative reference. Which is present usually depends on the context in which the term is used.
In the sentence, ‘A grandmother sometimes has heavy responsibilities’, the word “grandmother”
is general. In the sentence, ‘My grandmother sometimes has heavy responsibilities’, it may well
be ambiguous, if both grandmothers are living.
 17

Generality is not necessarily a disease of language. It is an indispensable tool of communication.

The diseases, rather, are over-generality and under-generality. The classes denoted in a statute
should be neither broader nor narrower than those appropriate to carrying out the legislature's
objectives. Thus, unless context reaches the intended result, the legislative draftsman should be
careful not to say “crime” when he means felony. And conversely.

Generality is more easily confused with vagueness than with ambiguity. That most general terms
are also vague in their marginal applications makes it easy to overlook that the leeway permitted
by vagueness is not the same as the leeway permitted by generality. The word “many”, for
example, is both vague and general. So also the word “automobile”. The generality of the latter is
exemplified by its capacity for simultaneously covering both Fords and Chevrolets without a tinge
of uncertainty. Its vagueness is exemplified by the uncertainty whether it covers a three-wheeled
Messerschmitt, which bear a strong resemblance also to motorcycles.

The most important difference between ambiguous or vague language and general language is that
ambiguity and vagueness constitute uncertainties of meaning, whereas mere generality does not.

REDUNDANT MODIFIERS: Some words require no modification as they are capable of

standing on their own. A redundant modifier uses an adjective or adverb that simply restates the
word it modifies and add nothing. These redundant phrases have worked their way into our written
and verbal communications. Consider the examples given below:

1. Obtain prior approval before;

2. Surviving widow;
3. True facts;
4. Written instrument;
5. Close proximity;
6. Final conclusion;
7. False pretence;
8. Unexpected emergency;
9. New beginning;
10. Tuna fish.
 18

EMBEDDING: Embedding is most probably the greatest factor that bedevils understanding
(intelligibility).

‘...legal language, contain a substantial number of “embeddings” - the use of numerous

subordinate clauses within one sentence.... Linguistic theory would predict that the types of
embeddings used should influence comprehension more than the absolute number of
embeddings. However, if a writer indiscriminately embeds subordinate clauses, the likelihood
that a difficult to comprehend embedding will be used in a sentence should increase as the
number of embeddings increases. The results of the experiment revealed a high negative
correlation between performance and the number of embeddings uses: as the number of
embeddings increased, comprehension decreased.’

The following is a good example of embedding: The boy whom the girl whom the gentleman in
the white car hit kissed lives next door to me.

It is a well-known fact that legal language makes excessive use of the linguistic device of
embedding. If one were to pick at random any piece of legislation and start reading any section or
subsection, one will come across instances of embedding. The following example will suffice:

Subsection 4D (2) of the Trade Practices Act, No 76 of 1976 (South Africa) reads as follows:

‘(2) Any person who has been subpoenaed to appear before the committee and who, without
sufficient cause, fails to attend at the time and place specified in the subpoena or to remain in
attendance until he is excused by the chairman from further attendance, or having attended,
refuses to be sworn or to make an affirmation after he has been asked by the chairman to do so,
or, having been sworn or having made an affirmation, fails to answer fully and satisfactorily
any question lawfully put to him, or fails to produce any book, document or other object in his
possession or under his control which he has been subpoenaed to produce, shall be guilty of an
offence.’

PASSIVE VOICE: The passive voice construction to a limited extent bedevils understanding.
One of the reasons is that the subject of the sentence is usually unidentified - the reader of the text
thus has to guess who the subject is. The active voice construction, on the other hand, is much
easier to understand.
 19

Examples of active voice:

1. The Minister shall from time to time determine the number of directors...
2. The Minister shall appoint any member of the board...
3. The deputy chairman may, if the chairman is absent, perform the functions of the chairman.

These sentences are clear and straightforward. The reader knows exactly who is to do what.
Unfortunately the passive voice construction is overused in legislative texts as well.

Examples of passive voice:

1. Different dates may be so fixed in respect of the Development and Finance Corporation...
2. A decree of divorce shall not be granted until the court is satisfied that...
3. Different notices may in terms of subsection (1) be published in respect of...
4. Any reference in this Act or in any other law to a practitioner or to a partner or partnership
in relation to practitioners, shall be deemed to include a reference to a company under this
section...

Regarding the above sentences:

1. Who fixes the dates? The Minister? The Secretary? A clerk?

2. The decree shall not be granted by whom? By the court? Yes, perhaps so, but we as lawyers
know that. What about the man in the street?
3. Who publishes the notices?
4. Who deems, or who does the deeming? The court? The Minister? Officials who implement
and enforce the provisions of the Act?

REPETITON: Lawyers have a bad habit of repeating themselves. Unless there is a special reason
to repeat, saying it once is sufficient. This only complicates matters within the statute and makes
it harder to understand. For example, a statute makes it a crime to mutilate plants. It describes the
plants as:

‘Any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or redwood
greens, or portion of any tree or shrub, or fern of herb or bulb or cactus or flower, or huckleberry
or redwood greens...’
 20

It is not within the human powers to foresee the manifold variations and combinations that may
arise in the actual implementation of the act and also to provide for each one of them in terms free
from all ambiguities. Hence, interpretation of statutes becomes an ongoing exercise as newer facts
and conditions continue to arise. The difficulty with courts is that they cannot say that they do not
understand a particular provision of an enactment. It is their duty to interpret the law one way or
another. They cannot remand or refer back the matter to the Legislature for interpretation. In all
real controversies of construction, if it were open to consult the Legislature as to its intention, the
answer of most of the legislators, if they are alive, in all probability will be:

‘Such a problem never occurred to us, solve it as best as you can, consistent with the
words used, and the purpose indicated by us in the statute.’

Furthermore, they become functus officio after the statute has been enacted. Their task is
completed and they cannot be called in court as witnesses when an issue of interpretation arises.
They have no right to interpret the statute in question once it has completed the legislative phase.
Lord Denning said:

‘English knowledge is not an instrument of mathematical precision… It would certainly

save the judges from the trouble if the acts of parliament were drafted with divine precision and
perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold hands
and blame the draftsman…’

Legal language is not really ordinary language. That is certainly one reason why we need rules of
interpretation to help understand what has been said or written. The rules provide us with a guide.
Statutes are interpreted by the courts which, in effect, extend their meaning by interpretation.
Those interpretations are authoritative statements as to that meaning. They provide lawyers and
the population in future with a further source of understanding the meaning of the statute.
 21

DETERMINATION OF THE LEGISLATIVE INTENT

In the construction of statutes, seeking the intention of the Legislature is of supreme importance.
It is the essence of the statute. A statute is to be construed according to the intent of those that
make it and the duty of the judicature is to act upon the true intention of the Legislature. It is
axiomatic that Parliament is to be taken to have an intention in everything it enacts; and that the
function of the court is to find out and declare that intention. This is the paramount, indeed only
ultimate criterion. Lord Nicholls of Birkenhead said:

‘Statutory interpretation is an exercise which requires the court to identify the meaning
borne by the words in question in the particular context. The task of the court is often said to be
to ascertain the intention of Parliament expressed in the language under consideration. This is
correct and may be helpful so long as it is remembered that the “intention of the Parliament” is
an objective concept, not subjective. The phrase is a shorthand reference to the intention which
the court reasonably imputes to Parliament in respect of the language used. It is not the
subjective intention of the persons who promoted the legislation. Nor is it the subjective intention
of the draftsman, or of individual members or even a majority of individual members of either
House. These individuals will often have widely varying intentions. Their understanding of the
legislation and of the words used may be impressively complete or woefully inadequate. Thus,
when the courts say that such-and-such a meaning “cannot be what Parliament intended”, they
are saying only that the words under consideration cannot reasonably be taken as used by
Parliament with that meaning.’

The basic principle has been announced time after time that if the statute is plain, certain and free
from ambiguity, a bare reading suffices and interpretation is unnecessary. Or stated conversely, if
the statute is ambiguous, or its meaning uncertain, interpretation is required in order to ascertain
what the law makers meant. It must be noted that the intention of Legislature includes two concepts
– that of purpose and that of meaning. In one aspect, intent carries the concept of what the words
mean; and, in the other aspect, it conveys the concept of “purpose and object” or the “reason and
spirit” encompassing the statute.

Legislative meaning: In all ordinary cases and primarily, the language employed is the
determining factor of intention. The first and primary rule of construction is that the intention of
the Legislature must be found in the words used by the Legislature itself. The question is not what
 22

may be supposed to have been intended but what has been said. Justice Scalia, agreeing with
Justice Holmes’ remark, quoted approvingly by Justice Frankfurter in his article on the
construction of statutes:

‘Only a day or two ago – when counsel talked of the intention of a legislature, I was
indiscreet enough to say I do not care what their intention was. I only want to know what the
words mean.’

This opinion, amongst other opinions, emphasise on one aspect of intention, i.e. WHAT THE
WORDS MEAN. Where the words have a clear meaning, the Courts are not supposed to busy
themselves with finding out the intention or with the policy underlying the statute. If, applying this
rule, a clear meaning appears, then this must be applied.

Time and again, the courts have observed that where the statute is incapable of providing more
than one meaning, then a plain reading of the statute or that particular provision of law will suffice.
When the Legislature uses clear words, then there is absolutely no necessity of using the principles
of interpretation and finding out the intent of the law maker. It has been stated:

‘If the words of the statute are in themselves are precise and unambiguous, then no more
can be necessary than to expound those words in their natural and ordinary sense. The words
themselves do alone in such cases best declare the intent of the law giver.’

Similarly:

‘Where a language is plain and unambiguous and admits of only one meaning, no
question of construction of a statute arises, for the Act speaks for itself.’

Legislative Purpose: If the statutory provision is open to more than one meaning, 11 then the
Court’s task is to choose and apply the interpretation which best represents the intent of the
Legislature. Since the law makers are always presumed not to lay down any laws which, on the
face of it, are not illogical or unreasonable, it is obligatory upon the Courts to construe the statute
in a manner that brings out the true meaning of the statute.

11
How do you decide that the word or words used are not plain? Who gets to decide them? This will be discussed in
detail under the heading of the literal rule of construction.
 23

Naturally, the legislative purpose is the reason why the particular enactment was passed by the
Legislature. Perhaps the reason was to remedy some existing evil, or to correct some defect in
existing law, or to create a new right or a new remedy. Consequently, in seeking to ascertain the
legislative purpose, the courts will resort, among other things, to the circumstances existing at the
time of the law’s enactment, to the necessity for the law and the evil intended to be cured by it, to
the intended remedy, to the law prior to the new enactment, and to the consequences of the
construction urged.

Thus, where the language used in the statute is not unambiguous, it is always safe to have an eye
on the object and purpose of the statute, or reason and spirit behind it. Each word, phrase or
sentence is to be construed in the light of general purpose of the Act itself. Blackstone stated:

‘The most fair and rational method for interpreting a statute is by exploring the intention
of the Legislature through the most natural and probable signs which are “either the words, the
context, the subject – matter, the effects and consequences, or the spirit and reason of the law.”’

Justice Learned Hand observed:

‘… Remember that statutes always have some purpose or object to accomplish, whose
sympathetic and imaginative discovery is the surest guide to their meaning.’

The interpretation of statutes is a complex area of law and also an essential one. In the complex
area of interpretation, recourse can be had to the rules and aids of statutory interpretation.
 24

RULES OF INTERPRETATION

At the outset, it is necessary to bear in mind that when one discusses the rules of construction,12
they should keep in mind that these rules are not rules of law. They do not have the status of legal
rules themselves. If the court fails to apply a particular rule of interpretation, no harm is done and
the court has made no legal error. The rules are more properly approaches or guides to the
interpretation of statutes. On this basis, there is a degree of flexibility about the application of the
rules to statutes. The question is whether judges really use the rules of statutory interpretation. If
yes, which rule do they use first? – Judges rarely if ever, volunteer the information that they are
now applying a certain rule of interpretation. Often, some judges look to see if there can be a literal
meaning to the words used in the disputed statutory provision. However, there is no rule that states
that the judges must use the literal rule first. No legal rules exist which state which rule of
interpretation can be used and the rules of interpretation that have been identified, are not
themselves legal rules. For this very reason, it has been noted:

‘Rules of interpretation are not our masters, they are our servants. They are aids to
construction, presumptions and pointers. They are meant to assist the Court in advancing the
ends of justice.’

Lord Reid said:

‘When doubt arises, rules of construction are relied on. They are not rules in the
ordinary sense of having some binding force. They are our servants not our masters. They are
aids to construction, presumptions or pointers. Not infrequently one “rule” points in one
direction, another in a different direction. In each case we must look at all relevant
circumstances, and decide as a matter of judgment what weight to attach to any particular
“rule”.’

LITERAL RULE OF CONSTRUCTION

The first and primary rule of construction is that is to be assumed that the words and phrase of
technical legislation are used in their technical meaning, if they have acquired one, and otherwise
in their ordinary meaning, and the second is that the phrases and sentences of statutes are to be

12
Also called the canons of construction.
 25

construed according to the ordinary rules of grammar and speech. The rule of construction is to
intend the Legislature to have meant what they actually expressed. The object of all interpretation
is to discover the intention of the Parliament, but the intention must be deduced from the language
used. Lord Evershed M. R. said:

‘The length and detail of modern legislation has undoubtedly reinforced the claim of
literal construction as the only safe rule.’

If there is nothing to modify, alter or qualify the language which the statute contains, it must be
construed in the ordinary and natural meaning of the words and sentence. It has been observed by
Warrington L. J.:

‘The safer and more correct course of dealing with a question of construction is to take
the words themselves and arrive if possible at their meaning without, in the first instance,
reference to cases.’

Determining how a statute is to be applied often comes down to considering what a particular word
or phrase means as used in the statute. In this exercise, a threshold inquiry is whether language is
being used in the “ordinary”, “general dictionary” sense or in a narrower, specialised sense or
as a “term of art”. Also, the appropriate reference is what a term meant to the Legislature when
the statute was enacted, not its meaning at the time the statute is being adjudicated.

To avoid ambiguity, the Legislature often include a section or sections reserved for “definitions”
within a statue, which explicitly define the most important or most commonly used terms in the
statute. Even if a word or phrase is not defined in a statute, it may have an accepted meaning in
the area of law addressed by the statute, it may have been borrowed from another statute under
which it had an accepted meaning, or it may have had an accepted and specialised meaning at
common law. In each of these situations, the accepted meaning governs and the word or phrase is
considered a technical term of term of art. Words that are not terms of art and that are not statutorily
defined are customarily given their ordinary meanings, frequently derived from the dictionary.

The rationale behind this rule is that courts do not go beyond the words in the statute itself. These
words are the outcome of the formal process by which the parliament has expressed its decision
on what the law is. The statute is the formal expression of the will of parliament. The courts see
themselves as merely interpreters of the will of parliament. It is not their function to speculate
 26

about what parliament really intended by looking behind the statute at parliamentary debates, for
example. In interpreting the law under the literal approach, the courts look at the statute itself and
try to formulate the meaning intended by the parliament on that basis. It does not matter whether
the statute is a constitution or an ordinary statute of the parliament.

One of the reasons for this approach is that it appears to be a politically neutral one. There is a long
tradition of the courts seeing themselves as beyond politics and issues of political ideology. By
merely relying on the words in the statute, they have maintained some sense of political neutrality
by putting themselves outside the issues which lead to the adoption of any particular statute before
them. Put another way, such an approach to interpretation reinforces the legitimacy of the courts
in the eyes of the citizens at large. That is to say, by encouraging the belief that the courts are
neutral in their approach, it is more likely that people will have faith in the operation of the judicial
system of the country. This approach reinforces the theory of separation of powers. In Regina v.
Braham,13 Lord Tenderden said:

‘Our decision may, in this particular case, operate to defeat the object of the Act; but it
is better to abide by this consequence than to put upon it a construction not warranted by the
words of the Act in order to give effect to what we may supposed to have been the intention of
the Legislature… we must give effect to the plain and obvious meaning of the clause, no matter
what the result may be, and the Legislature meant what it said.’

When it is said that words are to be understood first in their natural, ordinary, proper, popular or
primary sense, what is meant is that the words must be assigned that natural, ordinary, proper,
popular or primary meaning which they have in relation to the subject – matter with reference to
which and the content in which they have been used in the statute. Brett M. R. said:

‘Whenever you have to construe a statute or document you do not construe it according
to the mere ordinary general meaning of the words, but according to the ordinary meaning of
the words as applied to the subject – matter with regard to which they are used.’

Professor H. A. Smith observed:

13
8 B. and C. 99
 27

‘No word has an absolute meaning, for no words can be defined in vacuo, or without
reference to some content.’

As put by Justice Holmes:

‘A word is not a crystal, transparent and unchanged: it is the skin of a living thought
and may vary greatly in colour and content according to the circumstances and the time in
which it is used.’

Therefore, in determining the meaning of any word or phrase in a statute, the first question to be
asked is – ‘What is the natural or ordinary meaning of that word or phrase in the context of the
statute?’ However, it should also not be forgotten that a word may have a secondary meaning
which is less common e.g. technical or scientific meaning. The justification of the rule that words
are to be understood in their ordinary and plain sense is well expressed by Justice Frankfurter:

‘After all legislation when not expressed in technical terms is addressed to common run
of men and is therefore to be understood according to the sense of one thing, as the ordinary
man has a right to rely on ordinary words addressed.’

As a necessary consequence of the principle that words are understood in their plain, ordinary or
natural meaning in relation to the subject – matter, in legislation relating to a particular trade,
business, profession, art or science, words having a specific meaning are understood in that
particular sense. Such a special meaning is called the technical meaning to distinguish it from the
more common or ordinary meaning that the word may have. According to Lord Esher M. R.:

‘If the Act is one passed with reference to a particular trade, business or transaction and
words are used which everybody conversant with that trade, business or transaction knows and
understands to have a particular meaning in it, then the words are to be construed as having
that particular meaning.’

As stated by Lord Jowitt L. C.:

‘It is, I think, legitimate in construing a statute relating to a particular industry to give
to the words used in a special technical meaning if it can be established that at the date of the
passing of the statute such special meaning was well understood and accepted by those
conversant with the industry.’
 28

On the same principle, when words acquire a technical meaning because of their consistent use by
the Legislature in a particular sense or because of their authoritative construction by superior
courts, they are understood in that sense when used in a similar context in subsequent legislation.
This is also sometimes referred to as the legal sense of the words. When a word has acquired a
special connotation in law, ordinary dictionaries cease to be helpful in interpreting that word.
Venkatarama Aiyer J. explained this as follows:

‘The ratio of the rule of interpretation that words of legal import occurring in a statute
should be construed in their legal sense is that those words have, in law, acquired a definite and
precise and that, accordingly, the legislative must be taken to have intended that they should be
understood in that sense. In ascertaining an expression used in a legal sense, therefore, we have
only to ascertain the precise connotation which it possesses in law.’

Sometimes, words have a meaning that is peculiar to a particular region or country. For instance,
during the apartheid era in South Africa, the word “Asiatic” referred to Indians only, and not to
any other person coming from Asia such as Chinese or Japanese. Despite developments in
international law, statute making is still very much focused on what is put in place by parliaments
in nation states. Hence, the meaning of statutes is not to be taken as universal or international in
every sense. Local meaning is assumed to be relevant.

EXAMPLES
a. In Kenyon v. Eastward,14 the Act provided for orders for committal to be made “in open
court”. The order made by the judge, not in the actual Court room but in the room next to
it, which was also open to the public, was held to be invalid. The object of the enactment
was found to cover the entire criminal trial in an open and regular court including the final
order of the court. Thus, if the meaning is plain and fulfils the object, then the literal rule
of construction must be followed.
b. A provision which makes it an offence to drive a motor vehicle “without reasonable
consideration for other persons using the road” was held by the Court to cover, on the
literal construction of the words, the conduct of the bus driver who drove it in such a
manner as to alarm some of his passengers.15 The argument on behalf of the defendant that

14
(1888) 57 LJ QB 455
15
Jones v. Powell [1965] 2 Q.B. 216
 29

the intention of the enactment was to prohibit misconduct in the management of a vehicle
towards public outside on the road was unsuccessful.
c. In Whitely v. Chappel,16 the defendant pretended to be someone who had recently died in
order to use that person’s vote. It was an offence to “impersonate any person entitled to
vote”. The Court held that the defendant could not be convicted of impersonation since the
person he had impersonated was dead. Applying the literal rule in this case, it was observed
by the court that the statute relating to voting rights required a person to be living in order
to be entitled to vote and dead person is not entitled to vote.
d. In Maradana Mosque (Board of Trustees) v. Mahmud, 17 a provision empowered the
Minister to make a certain order if satisfied that a school “is being administered” in
contravention of the Act. The counsel for the Minister argued that it was permissible to
take account of the past running of the school. It was held that only the current method of
administration at the time of the order could be considered.
e. In R v. Maginnis,18 the defendant was charged with possession of a controlled drug with
intent to supply it to another under Section 5 (3) of the Misuse of Drugs Act, 1971. A
package containing £ 500 /- worth of cannabis was found in his car. The defendant stated
the cannabis belonged to a friend and that the friend was picking it up later. The trial judge
ruled that his action in handing the drugs back to the friend was an action of supply. The
defendant then pleaded guilty and appealed. The Court of Appeal quashed the conviction.
In the House of Lords, the conviction was reinstated. Lord Keith, giving the leading speech,
said:
‘The word “supply”, in its ordinary natural meaning, conveys the idea of
furnishing or providing to another something which is wanted or required in order to
meet the wants or requirements of that other, it connotes more than the mere transfer of
physical control of some chattel or object from one person to another... In my opinion,
it is not a necessary element in the conception of supply that the provision should be
made out of the personal resources of the person who does the supplying. Thus if an
employee draws from his employer’s store materials or equipment which he requires for

16
(1868) LR 4 QB 147
17
[1967] 1 AC 13
18
[1987] AC 303 HL
 30

purposes of his work, it involves no straining of language to say that the storekeeper
supplies him with those materials or that equipment, notwithstanding that they do not
form part of the storekeeper's own resources and that he is merely the custodian of
them.’
Lord Goff, however, dissented:
‘I do not feel able to say that either the delivery of goods by a depositor to a
depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be
described as an act of supplying goods to another. I certainly cannot conceive of myself
using the word supply in this context in ordinary speech. In ordinary language, the
cloakroom attendant, the left luggage officer, the warehouseman and the shoe mender
do not ‘supply’ to their customers the articles which those customers have left with them.’
f. In construing the word “coal” in a Sales Tax Act,19 the court ruled in favour of the popular
meaning by applying the test: ‘What would be the meaning which persons dealing with
coal and consumers purchasing it as fuel would give to that word?’ On this test, coal was
held to include charcoal and not restricted to coal obtained as mineral. In contrast, it was
said in the Colliery Control Order, the word “coal” will be understood in its technical or
scientific sense and will be interpreted as a mineral product and will, therefore, not include
charcoal. The Court said that the Colliery Control Order dealt with collieries and
obviously, therefore, the term there was used as a mineral product.
g. In Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association,20 the court
held that the word “poultry” in construction of the phrase “for use as food for cattle or
poultry” in the Fertilisers and Feeding Stuffs Act, 1926 does not include pheasants. The
court said that the word “poultry”, being a common English word, should be construed in
its ordinary sense, i.e. the sense which an ordinary educated Englishman would attach to
the word. It was pointed out that the fact that according to scientific evidence, pheasants
and servant hens are ancestrally of the same species or the fact that an American dictionary
gives a meaning of poultry as including pheasants, are irrelevant considerations.

19
Commissioner of Sales Tax, M. P. Indore v. Jaswant Singh Charan Singh AIR 1967 SC 1454
20
[1969] 2 AC 31
 31

h. In Unwin v Hanson,21 the court, looking at the meaning of the words “waist” and “skin”
said:
‘If the Act is directed to dealing with matters affecting everybody generally, the
words used have the meaning attached to them in the common and ordinary use of
language. If the Act is one passed with reference to a particular trade, business or
transaction, and words are used which everybody conversant with this trade, business or
transaction knows and understands to have a particular meaning in it, then the words
are to be construed as having that particular meaning though it may differ from the
common or ordinary meaning of the words. For instance, the “waist” or “skin” are well-
known terms as applied to a ship, and nobody would think of their meaning the waist or
skin of a person when they are used in an Act of Parliament dealing with ships.’

MEANING PLAIN, EFFECT MUST BE GIVEN REGARDLESS OF CONSEQUENCES:

When the words of a statute are clear, plain or unambiguous, i.e. they only have one meaning, the
courts are bound to give effect to that meaning irrespective of the consequences. To go beyond the
plain meaning of the words is to invite complications, and, in the words of Lord Cranworth, to
launch into a sea of difficulties which it is not easy to fathom. Lord Morris of Borth-y-Gest said:

‘Where, by the use of clear and unequivocal language capable of only one meaning,
anything is enacted by the Legislature, it must be enforced however harsh or absurd or contrary
to common sense the result may be.’

According to Viscount Simonds L. C.:

‘Again and again, it has been insisted that in construing enacted words we are not
concerned with the policy involved or with the results, injurious or otherwise, which may follow
from giving effect to the language used.’

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 or not.’

21
(1891) 2 QB 115 (CA)
 32

Lord Diplock observed:

‘Where the meaning of the statutory words are plain and unambiguous, it is not then for
the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain
meaning because they consider the consequences for doing so would be inexpedient or even
unjust or immoral.’

Read the following case to examine how the far the judge is willing to apply the literal rule of
construction.

R v. Ojibway

Blue J.: This is on appeal by the Crown by way of a stated case from a decision of the magistrate
acquitting the accused of a charge under the Small Birds Act RSO., 1960, c 724, s 2. The facts are
not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen's Park on January 2,
1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy
pillow, in lieu of the said saddle. On this particular day, the accused's misfortune was further
heightened by the circumstance of his pony breaking its right foreleg. In accordance with Indian
custom, the accused then shot the pony to relieve it of its awkwardness.

The accused was then charged with having breached the Small Birds Act, s2 of which states:

‘Anyone maiming, injuring or killing small birds is guilty of an offense and subject to a
fine not in excess of two hundred dollars.’

The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not
a small bird. With respect, I cannot agree.

In light of the definition section, my course is quite clear. Section 1 defines “bird” as “a two-
legged animal covered with feathers”. There can be no doubt that this case is covered by this
section.

Counsel for the accused made several ingenious arguments to which, in fairness, I must address
myself.
 33

He submitted that the evidence of the expert clearly concluded that the animal in question was a
pony and not a bird, but this is not the issue. We are not interested in whether the animal in question
is a bird or not in fact, but whether it is one in law.

Counsel also contended that the neighing noise emitted by the animal could not possibly be
produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for
a bird is no less a bird because it is silent.

Counsel for the accused also argued that since there was evidence to show accused had ridden the
animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this
avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or
not, for to ride a pony or a bird is no offense at all. I believe counsel now sees his mistake.

Counsel contends that the iron shoes found on the animal decisively disqualify it from being a
bird, I must inform counsel, however, that how an animal dresses is of no concern to this court.

Counsel relied on the decision in Re Chickadee, where he contends that in similar circumstances
the accused was acquitted. However, this is a horse of a different colour. A close reading of that
case indicates that the animal in question there was not a small bird, but, in fact, a midget of a
much larger species. Therefore, that case is inapplicable to our facts.

Counsel finally submits that the word 'small' in the title Small Birds Act refers not to “Birds” but
to “Act”, making it The Small Act relating to Birds. With respect, counsel did not do his homework
very well, for the Large Birds Act, RSO 1960, c 725, is just as small. If pressed, I need only refer
to the Small Loans Act RSO 1960, c 727 which is twice as large as the Large Birds Act.

It remains then to state my reason for judgment which, simply, is as follows: Different things may
take on some meaning for different purposes. For the purpose of the Small Birds Act, all two-
legged, feather-covered animals are birds. This, of course, does not imply that only two-legged
animals qualify, for the legislative intent is to make two legs merely the minimum requirement.
The statute therefore contemplated multi-legged animals with feathers as well. Counsel submits
that having regard to the purpose of the statute only small animals “naturally covered” with
feathers could have been contemplated. However, had this been the intention of the legislature, I
am certain that the phrase “naturally covered” would have been expressly inserted just as “Long”
was inserted in the Longshoreman’s Act.
 34

Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a
bird, and a fortiori, a pony with feathers on its back is a small bird.

Counsel posed with the following rhetorical question: If the pillow had been removed prior to the
shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of
a bird without its feathers?

EXAMPLES
a. In London & North Eastern Railway Co. v. Berriman,22 no lookout had been provided,
consequently, a person was killed while oiling the railway track. The widow sued for
compensation. Compensation, under the Fatal Accidents Act, was only payable for those
“relaying or repairing” the track. The Court held that oiling was maintaining the line and
not “relaying or repairing” it.23
b. In R v. Harris,24 the defendant bit off the nose of his victim. The statute, under which he
was charged, made it an offence “to stab, cut or wound”. The Court held that under the
literal rule of construction the act was of biting and it did not come within the meaning of
“stab, cut or wound” as these words implied an instrument had to be used. Therefore, the
defendant’s conviction was quashed.
c. Section 71 of the Representation of the People Act sets out the maximum number of
persons who may be employed in the election and prescribes the amount to be spent in the
election by the candidate contesting election. Section 123 (7) of the same Act states that in
order to amount to a corrupt practice, the excess expenditure must be incurred or authorised
by the candidate or his agent and the employment of extra persons must also be by a
candidate or his agent. In Rananjaya Singh v. Baijnatli Singh,25 the question was regarding
the interpretation of “corrupt practice” as used in Section 123 (7). The servants of the
father of a candidate contesting the election assisted the candidate in the election by
adopting corrupt practices. The question was whether the candidate had participated in the
acts of corruption and whether the servants of the father were his agents as well. In

22
(1946) 1 All ER 255
23
Lord Jowitt L. C. said: ‘The question is essentially one of degree and that it is impossible to fix any definite point
at which “maintenance” ends and “repair” begins.’
24
(1836) 7 C & P 446
25
AIR 1954 SC 749
 35

construing these two sections of the Representation of the People Act, the court held that,
in relation to the son (the candidate contesting the election), those persons were mere
volunteers and not employed by him. The Court rejected the argument that such a
construction would give candidates with rich family members/relatives and friends an
unfair advantage over a poor candidate and would, therefore, be against the spirit of the
election laws. It was held this was a case where a father assisted the son in the matter of
the election. These persons were employed by the father and at the request of the father,
these persons assisted the son in the election. It was also held that for the section to apply,
the people ought to have been employed by the candidate himself or his agent. The Court
said:
‘If all that can be said of these statutory provisions is that construed according to
the ordinary, grammatical and natural meaning of their language they work injustice by
placing the poorer candidates at a disadvantage, the appeal must be to Parliament and
not to this court.’

GOLDEN RULE OF CONSTRUCTION

The golden rule is an alteration of the literal rule of interpretation. The rule states that the words
of a statute should be given their plain and ordinary meaning. However, where the words are
capable of more than one meaning (the words themselves are ambiguous) or where the plain or
ordinary meaning would lead to an absurd or repugnant situation, which the Legislature in its
wisdom never intended, the Courts should look for another meaning of the words.

For example, suppose that there is a sign which says ‘DO NOT USE LIFTS IN CASE OF FIRE’.
Applying the literal rule, people must never use lifts in case there is a fire. But this interpretation
would lead to an absurd result as the sign was intended only to prevent people from using lifts in
case there was a fire nearby. The sign obviously was not fixed to prevent people from using lifts
where, for example, someone lights a cigarette to smoke or a stove to cook food.

Lord Wensleydale, who is credited for formulating the golden rule, stated it thus:

‘In construing wills and indeed statutes and all written instruments, the grammatical
and ordinary sense of the word is 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
 36

ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency,
but no further.’

In another case, it was said:

‘We are to take the whole statute together and construe it altogether, giving the words
their ordinary signification, unless when so applied they produce an inconsistency, so as to
justify the court in placing on them some other signification, which, though less proper, is one
which the court thinks the words will bear.’

Similarly:

‘Where the language of a statute leads to inconvenience, absurdity, hardship or injustice

presumably not intended by the Legislature, the court may, in appropriate circumstances, depart
from natural meanings and grammatical construction, and even clear words may be made to
give way to good sense.’

EXAMPLES
a. Section 3 of the Official Secrets Act, 1920 provided that ‘no person in the vicinity of any
prohibited place shall obstruct, knowingly mislead or otherwise interfere with or impede,
the chief officer or a superintendent or other officer of police, or any member of His
Majesty’s forces engaged on guard, sentry, patrol, or other similar duty in relation to the
prohibited place, and, if any person acts in contravention of, or fails to comply with, this
provision, he shall be guilty of a misdemeanour.’ In Adler v. George,26 the defendant had
obtained access to and was on the Air Force station on May 11, 1963, and there and then,
it was found that he had obstructed a member of Her Majesty’s Royal Air Force. The
defendant referred to the natural meaning of “vicinity”, which is the state of being near in
space, and argued that it does not cover being in fact on the station as in the present case.
The Courts had to determine whether “in the vicinity of” included “on / in” the premises.
Applying the golden rule and upholding the defendant’s conviction, the Court said the in
the vicinity did include on or in the premises as well. It said that it would be absurd for a

26
[1964] 2 QB 7
 37

person to be liable if they were near to a prohibited place and not if they were actually in
it.
b. Under the Motor Vehicles (Construction and Use) Regulations 1973, it was an offence to
park a motor vehicle overnight on the road with the offside (driver’s side) against the
kerb.27 However, this is not an offence if a uniformed police officer has given permission
to park in this way. In Keene v. Muncaster,28 the defendant was a uniformed police officer
who parked his car overnight with its offside against the kerb. He was prosecuted and relied
on the defence that he had given himself permission. Rejecting the defence, the Court held
that “permission” meant that permission had to be given by one person to another.
c. In Re Sigsworth, 29 the issue revolved around the word “issue” as mentioned in the
Administration of Justice Act, 1925. In this case, a son murdered his mother and then
committed suicide. Since the mother died intestate, the question in this case was who was
entitled to inherit her estate; the son’s descendants or the other relatives of the mother. Had
the literal rule been applied in the interpretation of the word “issue”, the estate would have
passed on to the son or the descendants of the son but the Court decided otherwise.
Applying the golden rule, it said that the mother’s family was entitled to inherit her estate
and not her son as it would be against public policy if a person would be allowed to benefit
from his crimes.
d. Section 57 of the Offences against the Person Act, 1861 states ‘whosoever being married
shall marry any other person during the lifetime of the former husband or wife is guilty
of an offence’. In R v. Allen,30 the defendant married a second time and was charged under
this Act. The defendant, relying on the literal rule, argued that since civil law does not
recognise a second marriage if the person is already married, he could not be tried and
convicted of bigamy as any attempt to marry in such circumstances would not be
recognised as a valid marriage. This argument called in for the interpretation of the word
“marry” and whether the word meant “to become legally and lawfully married to the other
person” or ‘to take part in a ceremony of marriage as the bride or groom”. Preferring the
second meaning, the Court held the defendant guilty of the offence because someone

27
Kerb: A stone or concrete edging to a street or path.
28
[1980] RTR 377
29
[1935] 1 Ch. 98
30
(1872) LR 1 CCR 367
 38

cannot legally marry another person if he or she is already married. If the literal meaning
was followed, then no one could be convicted of the offence of bigamy.
e. The Salmon Fishery Act, 1861 provided that if salmon poachers were caught then the
bailiff could confiscate “all fish taken and any net used in taking the same”. In an action
based on such a seizure, 31 the Court said that this should be construed to allow the
confiscation of nets even where the poachers had been apprehended before they had
actually caught any fish.
f. In Day v. Simpson, 32 under the Theatres Act, 1843, a penalty was prescribed for the
performance of plays without a license on stage. A group of actors performed the play in a
chamber below the stage. The figures were reflected by mirrors so that it appeared to the
spectators that the players are on the stage. The Court, holding them guilty, said that though
not performing on the stage, the actors are bound to take license under the Act.
g. Section 77 (1) of the Road Traffic Act, 1960 requires the driver of a motor vehicle to “stop”
after an accident. In Lee v. Knapp, 33 the driver of a vehicle involved in an accident
momentarily stopped after the accident and then drove away. The Court said:
‘The phrase “the driver of the motor vehicle shall stop” is properly to be
construed as meaning the driver of the motor vehicle shall stop it and remain where he
has stopped it for such a period of time as in the prevailing circumstances, having regard
to the particular to the character of the road or place in which the accident happened,
will provide a sufficient period to enable persons who have a right so to do, and
reasonable ground for so doing, to require of him direct and personally the information
which may be required under the section.’

MISCHIEF RULE OF CONSTRUCTION

The mischief rule is a certain rule, within the context of statutory interpretation, which the judges
can apply in order to discover and determine the legislation’s intention. The main aim is to discover
the “mischief and defect” that the statute in question has set out to remedy, and what ruling would

31
Ruther v. Harris (1876) 1 ExD 97
32
(1885) 34 LJMC 149
33
(1967) 2 Q.B. 442
 39

effectively implement this remedy. Originating from a sixteenth century case known as the
Heydon’s case,34 the Barons of the Exchequer resolved as follows:

‘That for the sure and true interpretation of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law), four things are to be discerned and
considered:

▪ What was the common law before the making of the Act?
▪ What was the mischief and defect for which the common law did not provide?
▪ What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth?
▪ What is 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,

▪ Suppress subtle inventions and evasions for the continuance of the mischief, and
▪ Add force and life to the cure and remedy according to the true intent of the makers of
the Act.’

The Earl of Halsbury stated the rule as follows:

‘My Lords, it appears to me that to construe the statute in question, it is not only
legitimate but highly convenient to refer both to the former Act and to the ascertained evils to
which the former Act had given rise, and to the later Act which provides the remedy. These three
being compared, I cannot doubt the conclusion.’

Although, the Judges are unlikely to propound formally in their judgments the four questions in
the abovementioned case, the Courts, in applying the rule, is essentially asking the question:

‘What was the “mischief” that the previous law did not cover, which Parliament was
seeking to remedy when it passed the law now being reviewed by the Court?’

In other words, the mischief rule is to be applied where even the golden rule fails to resolve the
problems of interpretation. Here, in effect, the context of interpretation of the words in the statute

34
(1584) 3 Co Rep 7a
 40

is being widened. The court will look at the position of the law before the statute was passed and
interpret the statute in light of those provisions.

EXAMPLES
a. A person could be arrested if found drunk in charge of a “carriage” on the highway under
Section 12 of the Licensing Act, 1872. In Corkery v. Carpenter,35 the defendant had been
arrested for being drunk in charge of a bicycle on the highway. It was held that the bicycle
was a ‘carriage’ and the mischief aimed at was to prevent people from using any form of
transport on a highway whilst in a state of intoxication.
b. In Bradford v. Wilson,36 a man was arrested in his car for glue-sniffing. He was convicted
with being in charge of a motor vehicle whilst unfit through drink or drugs. He appealed
on the ground that neither glue nor any of its constituents is a drug. Dismissing his appeal,
it was observed by the superior Court that the list of prohibited drugs mentioned in
Schedule 2 of the Misuse of Drugs Act, 1971 could not be taken as conclusive. The
mischief aimed at in the statute was persons being in charge of motor vehicles when they
had taken substances impairing the control of their body movements.
c. In Elliot v. Grey,37 the defendant's car was parked on the road. It was jacked up and had its
battery removed. He was charged with an offence under the Road Traffic Act 1930 of using
an uninsured vehicle on the road. The defendant argued he was not “using” the car on the
road as clearly it was not drivable. The court applied the mischief rule and held that the car
was being used on the road as it represented a hazard and therefore insurance would be
required in the event of an incident. The statute was aimed at ensuring people were
compensated when injured due to the hazards created by others.
d. In Royal College of Nursing v. DHSS,38 the Royal College of Nursing brought an action
challenging the legality of the involvement of nurses in carrying out abortions. The
Offences against the Person Act 1861 makes it an offence for any person to carry out an
abortion. The Abortion Act, 1967 provided that pregnancies had to be “terminated by a
registered medical practitioner”. Due to advances in medical science, part of the abortion

35
[1951] 1 KB 102
36
(1983) 78 Cr App R 77
37
[1960] 1 QB 367
38
[1981] 2 WLR 279
 41

process was carried out by nurses under the supervision of a doctor. It was argued on behalf
of the Royal College that a nurse is not a registered medical practitioner, therefore, any
abortions conducted by a nurse were illegal. Rejecting that contention, the House of Lords
held that it was legal for nurses to carry out such abortions. The Act was aimed at doing
away with back street abortions which were unsafe as no medical care was available. The
actions of the nurses were therefore outside the mischief of the Act of 1861 and within the
defence under the 1967 Act.
e. Section 1 (1) of the Street Offences Act, 1959 provided that it shall be an offence for a
common prostitute to loiter or solicit in a street or public place for the purpose of
prostitution. In Director of Public Prosecutions (DPP) v. Bull, 39 the defendant, a male
prostitute, was accused of prostitution under the Act. The magistrates found him not guilty
on the ground that “common prostitute” only related to females and not males. The
prosecution appealed by way of case stated. The court held that the Act did only apply to
females. Applying the mischief rule of construction, the court took the view that the word
prostitute was ambiguous. The Street Offences Act was introduced as a result of the work
of the Wolfenden Report into homosexuality and prostitution.40 The Report only referred
to female prostitution and did not mention male prostitutes. The court, therefore, held that
the mischief the Act was aimed at was controlling the behaviour of only female prostitutes.
f. In Smith v. Hughes, 41 the defendants were charged under Section 1 (1) of the Street
Offences Act, 1959 because they had been calling to men in the street from balconies and
tapping on windows. It was contended on behalf of the defendants, inter alia, that the
balcony was not in a street within the meaning of section 1(1) of the Street Offences Act,
1959, and that accordingly no offence had been committed. Upholding their convictions,
it was said:
‘Observe that it does not say there specifically that the person who is doing the
soliciting must be in the street. Equally, it does not say that it is enough if the person who

39
[1995] QB 88
40
Street prostitutes: The committee also made recommendations to ‘clean up the streets’ of London and other major
cities of prostitutes by introducing much higher penalties for soliciting. But the report did acknowledge that by forcing
prostitutes off the streets there could be a rise in the number of ‘call girls’ and small ads in newspapers referring to
‘masseuses, models or companions’.
(available at http://news.bbc.co.uk/onthisday/hi/dates/stories/september/4/newsid_3007000/3007686.stm)
41
[1960] 1 WLR 830
 42

receives the solicitation or to whom it is addressed is in the street. For my part I approach
the matter by considering what the mischief is aimed at by this Act. Everybody knows
that this was an Act intended to clean up streets, to enable people to walk along the streets
without being molested or solicited by common prostitutes. Viewed in that way, it can
matter little whether the prostitute is soliciting while in the street or is standing in a
doorway or on a balcony, or at a window, or whether the window is shut or open or half
open; in each case her solicitation is projected to and addressed to somebody walking in
the street.’

REMEMBER AGAIN, THAT THE RULES ARE APPROACHES TO INTERPRETATION

OF STATUTES, NOT RULES INDEED. THERE ARE OTHER AIDS TO STATUTORY
INTERPRETATION AS WELL. JUDGES GIVE MEANING TO WORDS ALL THE
TIME BUT SELDOM MENTION WHAT RULES THEY USE.

Francis Bennion says:

‘So in seeking to find the “legal meaning” of a statutory provision, there is no rule of
law that dictates which approach a judge must take. It is largely up to the discretion of the
individual judge. Historically, judges have tended to adopt one of a number of approaches,
sometimes referred to as “three rules of interpretation”. These so called “rules” are not rules at
all, but it is worth briefly noting the differences between the approaches and the impact that a
different approach to interpretation might have on the outcome of a case.’

STATUTE TO BE READ AS A WHOLE

When the question is raised regarding the meaning of a certain provision in a statute, it is both
legitimate and correct to read that provision in its “context”. The context here means, the statute
as a whole, the previous state of the law, other statutes in “pari materia”,42 the general scope of
the statute and the mischief that it was intended to remedy.

Lord Davey observed:

42
Of the same matter; of the same subject.
 43

‘Every clause of a statute should be construed with reference to the context and other
clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute
or series of statutes relating to the subject – matter.’

Viscount Simonds held:

‘I conceive it to be my right and duty to examine every word of a statute in its context,
and I use context in its widest sense as including not only other enacting provisions of the same
statute, but its preamble, the existing state of the law, other statutes in pari materia, and the
mischief which I can, by those and other legitimate means, discern that the statute was intended
to remedy.’

It is a fundamental rule of interpretation that construction is to be made of all the parts together
and not of one part by only itself. The Courts have time and again took the view that one of the
safest guides to construction of sweeping general words which are hard to apply in their full literal
sense is to examine other words of like import in the same instrument, and to see what limitations
must be imposed on them. If it is found that a number of such expressions or phrases have to be
subjected to limitations and qualifications and that such limitations or qualifications are of the
same nature, and the circumstance forms a strong argument for subjecting the disputed expression
or phrase to a like limitation or qualification.

Lord Halsbury stated:

‘You must look at the whole instrument inasmuch as there may be an inaccuracy and
inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a
whole in order to give it effect, if it be possible to do so, to the intention of the framer of it.’

Similarly, Lord Coke stated:

‘It is the most natural and genuine exposition of a statute to construe one part of a statute
by another part of the same statute, for that best expresseth the meaning of the makers.’

Moreover, a statute ought to be construed as a whole because it is not to be presumed that the
Legislature has used any useless words, and also because it is a dangerous practice to base an
interpretation upon only a part of it, since one portion may be qualified by other portions. If the
statute is not considered in its entirety, the intention of the Legislature is likely to be defeated. The
 44

Legislative intent is likely to be lost where a word, phrase or sentence of the statute is rejected as
where they are read in isolation from other words, phrases and sections of the statute. The omission
or addition of a word from a sentence may easily cause it to express an idea quite different from
the one actually intended or expressed.

In other words, to determine the meaning of a clause in a statute it is necessary that the Court,
when interpreting a particular provision, analyses the entire statute, at what precedes and what
succeeds and not merely at the clause itself.

As Greene M. R. said:

‘The method of constructing statutes that I prefer is to read the statute as a whole and
ask oneself the question: “In this state, in this context, relating to this subject – matter, what is
the true meaning of that word?”’

Viscount Simonds said:

‘… That no one should profess to understand any part of a statute or of any other document
before he had read the whole of it. Until he has done so he is not entitled to say that it or any
part of it is clear or unambiguous.’

EXAMPLES
a. In Moyle v. Jenkins,43 the court took the view that if one section of an Act required that
“notice” should be “given”, a verbal notice would generally suffice but if another section
provided that it should be “served” on a person, or “left” with him, in a particular manner
or place, it would obviously show that a written notice is intended.
b. Section 13 (a) (ii) of the Punjab Rent Restriction, 1949, enables a landlord to obtain
possession in the case of rented land if ‘(a) he requires it for his own use; (b) he is not
occupying in the urban area for the purpose of his business any other such rented land;
and, (c) he has not vacated such rented land without sufficient cause after the
commencement of the Act in the urban area concerned’. In Attar Singh v. Inder Kumar,44
the High Court of Punjab held that the words “for his own use” in clause (a) permitted the
landlord to claim eviction of his tenant for his own use whatever the nature of the use may

43
51 L. J. Q. B. 112
44
AIR 1967 SC 773
 45

be. In reversing this decision, the Supreme Court of India held that all three clauses were
to be read together and clause (a) was restricted to business use as were clauses (b) and (c).
It was held that if this restricted meaning was not given, then it would have the effect of
rendering clauses (b) and (c) inapplicable and redundant.
c. In Gibson v. Ryan,45 the question was whether an inflatable rubber dinghy and a fish basket,
found on the person of the appellant, fell within the term “instrument” in Section 7 (1) of
the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. 46 The Court held
that it did not come within the definition of instrument. Relying on Section 10 of the same
Act, the Court said:
‘It is evident that, so far as that section is concerned, a distinction is drawn
between instruments on the one hand, boats on the other hand and baskets on, if there
is such a thing, the third hand.’
d. In Associated Newspapers Ltd v. Registrar of Restrictive Trading Agreements,47 the issue
which the apex Court had to resolve was whether the concerned Court had the jurisdiction
to adjudicate references of existing trade agreements only or those agreements as well
which have terminated or ended before the reference has begun. The question was what
effect should be given to the words “in respect of any agreement of which particulars are
for the time being registered” under Section 20. If Section 20 was read without regard to
the rest of the statute, the conclusion arrived at was that the jurisdiction of the concerned
Court was restricted to subsisting agreements only. This view, however, was not accepted
as the Court was of the view that the Act ought to be read in its entirety. Lord Evershed
said:

45
[1968] 1 QB 250
46
Section 7 (1): If any person is found in possession of any salmon or trout, or any instrument, explosive, poison or
other noxious substance which could be used in the taking of salmon or trout, in circumstances which afford reasonable
ground for suspecting that he has obtained possession of such salmon or trout, or such instrument, explosive, poison
or substance as the result or for the purpose of his committing an offence against any of the provisions of sections one
to four of this Act, that person may be charged with unlawful possession as aforesaid of such salmon or trout, or of
such instrument, explosive, poison or substance.
Section 10 (1): Any water bailiff within his district may do all or any of the following things—
(a) Examine any dam, fixed engine or obstruction, or any lade, and for that purpose enter on any land;
(b) Stop and search any boat which is used in fishing or any boat which there is reasonable cause to suspect of
containing salmon or trout;
(c) Search and examine nets or other instruments used in fishing or any basket, pocket or other receptacle capable of
carrying fish, which there is reasonable cause to suspect of containing salmon or trout illegally taken;
(d) Seize any fish, instrument or article, boat or vehicle liable to be forfeited in pursuance of this Act.
47
[1964] 1 All ER 55 (HL)
 46

‘It is no doubt true that if s 20 and s 21 are looked at without regard to the context
supplied by the rest of the Restrictive Trade Practices Act, 1956, the natural conclusion
which their language suggests would be to confine the jurisdiction of the court to
agreements subsisting (at any rate) when the jurisdiction of the court was invoked. By
way of example I refer to the use (strongly relied on by counsel for the appellants) of the
formula in s 20 (1) that the court should have jurisdiction to declare whether or not “any
restrictions are contrary to the public interest”; and perhaps more strongly to the use of
the formula in sub-s (3) of the same section “the agreement shall be void”. Nor do I
forget the terms of sub-s (5) of s 20 or the language of para (a) to para (g) of s 21 (1). To
these last-mentioned subsections, I shall return later. But in truth it is not, as I conceive,
legitimate to read Section 20 and 21, bereft of their context – more particularly without
having first read the nineteen sections of the act. There is, indeed, solid and respectable
authority for the rule that you should “begin at the beginning and go on till you come to
the end; then stop”; and in my opinion the rule is – I conceive – peculiarly proper when
construing an Act of Parliament and seeking to discover from the Act the Parliamentary
Intention.’

THE RULE OF HARMONIOUS CONSTRUCTION

Interpreting statutes as a whole has the advantage of avoiding any inconsistency or repugnancy
either within a section or between a section and other parts of a statute. It is the duty of the Courts
to avoid a “head-on clash” between two provisions or sections of the same Act and, construe
conflicting provisions in a manner that results in harmony between them. It has been stated:

‘The sub-sections must be read as parts of an integral whole and as being

interdependent; an attempt should be made in construing them to reconcile them if it is
reasonably possible to do so, and to avoid repugnancy.’

Likewise:

‘The rule of construction is well settled that when there are in an enactment two
provisions which cannot be reconciled with each other, they should be interpreted that, if
possible, effect should be given to both. This is what is known as the rule of harmonious
construction.’
 47

Thus, an interpretation that reduces one of the provisions to a “useless number” or “dead letter”
is not harmonious construction and is to be avoided. The drafting of a statute is not easy, and what
may appear to be a conflict between two provisions to a reader may not have seemed so to the
draftsman. It has been noted on many occasions that every provision was inserted into the statute
for a definite reason and, it is only by reading the enactment as a whole does one enter into a
position to resolve an apparent conflict and reconcile the “conflicting provisions”.

To summarise, the five main principles of this rule are:

i. The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.
ii. The provision of one section cannot be used to defeat the provision contained in another
unless the court, despite all its effort, is unable to find a way to reconcile their differences.
iii. When it is impossible to completely reconcile the differences in contradictory provisions,
the courts must interpret them in such as way so that effect is given to both the provisions
as much as possible.
iv. The court must also keep in mind that interpretation that reduces one provision to a useless
number or dead letter is not harmonious construction.
v. To harmonise is not to destroy any statutory provision or to render it fruitless.

A familiar approach in all such cases is to find out which of the two apparently conflicting
provisions is more general and which is more specific and to construe the special provision in a
manner so that it controls the general provision. This principle is expressed by the maxim
Generalia Specialibus Non Derogant i.e., the provisions of a general statute must yield to those
of a special one. The question as to the relative nature of the provisions, general or special, has to
be determined with reference to the area and extent of their application either generally or specially
in particular situations. While general and special provisions are both sources of legislative intent,
and both are entitled to consideration in the construction of statutes by virtue of the rule requiring
the construction as a whole, the reason for granting the special provision the power to control the
general provision is obvious.48

48
Two different statutes are also to be read in harmony where provisions of the statutes are conflicting with each other,
particularly when both the statutes are in pari materia. However, if the provisions of a special Act and a subsequent
general Act cannot be reconciled with, the Courts will be forced to give effect to the later general Act.
 48

In a case, the court held:

‘Implied exception (generalia specialibus non derogant). When two provisions are in
conflict and one of them deals specifically with the matter in question while the other is of more
general application, the conflict may be avoided by applying the specific provision to the
exclusion of the more general one. The specific prevails over the general; it does not matter
which was enacted first. This strategy for the resolution of conflict is usually referred to by the
Latin name generalia specialibus non derogant. The English term “implied exception” is
adopted ... for, in effect, the specific provision implicitly carves out an exception to the general
one....’

Acts very often contain general provisions which, when read literally, cover a situation for which
specific provision is made elsewhere in the Act. This maxim gives a rule of thumb for dealing with
such a situation: it is presumed that the general words are intended to give way to the particular.
This because the more detailed a provision is, the more likely it is to have been tailored to fit the
precise circumstances of a case falling within it.

It has been said:

‘It is common sense that the draftsman will have intended the general provisions to give
way should they be applicable to the same subject matter as it dealt with specifically… The
draftsman often indicates his intention that this should be so by the inclusion of such words
such as “subject to this Act” in a general provision. But these words are included more by way
of abundant caution as the overriding idea that an Act should be read as a whole has the effect
of making all provisions subject to one another.’

EXAMPLES
a. Section 17 (1) of the Act requires the Government to publish every award of a Labour
Tribunal within thirty days of its receipt.49 Under sub – section (2),50 the award shall be
final on its publication. Section 18 (1) of the Act provides that a settlement between an
employer and his workmen shall be binding on the parties to the agreement. In The Sirsilk

49
Section 17 (1): Every award shall within a period of thirty days from the date of its receipt by the appropriate
government be published in such manner as the appropriate government thinks fit.
50
Section 17 (2): Award published under sub-section (1) shall be final and shall not be called in question by any court
in any manner whatsoever.
 49

Ltd. and others v. Govt. of Andhra Pradesh and others,51 a settlement was arrived at after
the award was forwarded to the Government for publication by the Labour Tribunal. The
question was whether the Government was still required to publish the award under Section
17 (1) or was it possible for it to withhold the publication of the award. In the construction
of these two mandatory provisions,52 the Supreme Court observed that observed that in the
present case, there is a conflict between settlement under Section 18 and the duty of the
government under Section 17 of the Industrial Disputes Act, 1947. It took the view that the
only way to resolve the controversy was to hold that by the settlement, which becomes
effective from the date of signing, the industrial dispute comes to an end and the award of
the Labour Tribunal becomes fruitless and the Government must refrain from publishing
it. The Supreme Court held that in special circumstances of the case and with a view to
avoiding a conflict between the two provisions, it held that the only solution is to withhold
the publication of the award.
b. Clause 5 (a) of the Government Order empowered, among others, a recognised association
of employers to refer an industrial dispute for adjudication to the Conciliation Board.53
Clause 23 provided that no employer shall discharge or dismiss any workman during the
pendency of an inquiry except with the written permission of the Regional Conciliation
Officer.54 Clause 26 of the Government Order provided for penalties for contravention of
Clause 23. In The J. K. Cotton Spinning & Weaving Mills Co., Ltd. v. The State Of Uttar
Pradesh & others,55 the appellant (an employer) proposed to dismiss certain workmen.
Though, at the time, there was a dispute pending inquiry before a Regional Conciliation
Officer against these workmen, the appellant did not seek permission under clause 23 to
dismiss the workmen; but the Employers’ Association of Northern India made an

51
AIR 1964 SC 160
52
Both provisions were held to be mandatory provisions and it was mandatory to give effect to both of them.
53
Clause 5 (a): Any employee or recognised association of employers or registered Trade Union of workmen or,
where no registered trade union of workmen exists in any particular concern or industry, the representatives not more
than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the
workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in
writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial dispute
or disputes which are to be the subject of such inquiry.
54
Clause 23: Save with the written permission of the Regional Conciliation Officer or the Additional Regional
Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation
Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no employer, his agent
or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman;
55
[1960] RD-SC 289 (12 December 1960)
 50

application under clause 5 (a) to the Board to adjudicate and give an award that the
appellant was entitled to dismiss the workmen. On behalf of the workmen, it was contended
that the reference under clause 5 (a) was incompetent as the appellant had not first taken
proceedings under clause 23. Holding that the reference under clause 5 (a) was not
maintainable; the Court observed that this was a case involving a general provision and a
special provision. It sought to harmonise both the clauses by holding that clause 5 (a) was
a general provision and clause 23 was a special one. The employer could not take advantage
of clause 5 (a) during the pendency of an inquiry when clause 23 was applicable. If clause
5 (a) and clause 23 were held to apply at the same time, there would be disharmony between
the two provisions as by resorting to clause 5 (a) when clause 23 was applicable, the
employers would be contravening clause 23 and rendering themselves liable to the
penalties under clause 26 of the Government Order. However, there was complete harmony
if it was held that clause 5 (a) applied in all other cases of dismissal or discharge except in
those cases where an inquiry was pending within the meaning of clause 23.
c. In Hakim Khan v. Government of Pakistan,56 the presidential powers to commute, pardon
and remit under Article 45 of the Constitution were challenged.57 Ms. Benazir Bhutto, on
assuming power as Prime Minister of Pakistan, gave advice to the President to issue a
“commutation order” to pardon, commute and remit all those convicted by military courts
by General Zia’s Martial Law Regulations. On 8th December, 1988, the President issued a
commutation order to commute, pardon and remit the sentence awarded by military courts.
This action was challenged by the petitioners. On behalf of the petitioners, it was contended
that since the order of commutation was in violation of Article 2A of the Constitution, it
must be declared illegal.58 The crux of the argument of the petitioner was that under Article
2A, Allah is the only supreme authority to pardon or commute in matters relating to death
sentences and the President has no power or authority whatsoever to pass an order of
commutation. In the light of this contention, the petitioner asserted the point that since there
was a conflict between Articles 2A and 45 of the Constitution, Article 2A is a supra-

56
PLD 1992 SC 595
57
Article 45: The president shall have power to grant pardon, reprieve, respite, and to remit, suspend or commute any
sentence passed by any court tribunal or other authority.
58
Article 2A: The principles and provisions set out in the objectives resolution reproduced in the annex1 are hereby
made substantive part of the constitution and shall have effect accordingly.
 51

constitutional provision and can, therefore, be used to strike down other parts of the
Constitution. The Court, while accepting the importance of the Objectives Resolution i.e.
(which later on became Article 2A of the Constitution), declared that the said Article cannot
be granted power to test of repugnancy of any provision of the Constitution on the
touchstone of it. In the Court’s view, the President of Pakistan had no such power to
commute the death sentence awarded in matters of Hudood, Qisas and Diyat Ordinance. In
this view of the matter, the power of pardon in such cases only vests with the heirs of the
deceased. Therefore, the cases in which death sentences have been awarded, the President
had no power to commute, remit or pardon such sentences. However, the cases would be
on different footings, if a person has been punished by way of Tazir as in such cases, the
Head of the State has the power to pardon the offender and that too in public interest. The
Court further noted that if Article 2A is given power to strike down the provisions, then
Constitution of Pakistan will have to be re-written afresh and that if any article of the
Constitution is in conflict with article 2A the appropriate procedure is to have it amended
in accordance with the prescribed provision for the purpose. However, it does not absolve
the courts of their duty to give effects to the provisions of article 2A as it has been made
“substantive part of the constitution”. A constitution is an organic whole. All its articles
have to be interpreted in a manner that its sole or spirit is given effect to by harmonising
various provisions.

WHERE HARMONIOUS CONSTRUCTION IS NOT POSSIBLE

If it is not possible to read two provisions or sections of an Act in harmony, as they may absolutely
contradict each other, it is often said that the provision that was last in order of position will prevail,
since it is the latest expression of the Legislative will. However, it is to be noted that this principle
of interpretation is only applied as a last resort and is applicable where the provisions of a statute
are so diametrically opposed that they cannot be reconciled with at all, and after all other means
of ascertaining the meaning of the Legislative have been exhausted. It is in cases such as these
where the courts are forced to give preference to one particular provision over another.

Lord Evershed M. R. asserted:

‘It is no doubt true that if two sections of an Act of Parliament are in truth irreconcilable,
then prima facie the later will be preferred. But these are arguments of the last resort. The first
 52

duty of the Court must be, if the result is fairly possible, to give effect to the whole expression of
the parliamentary intention.’

Of further relevance are the words of Lord Macmillan:

‘If proviso 2 is repugnant in any way to proviso 1, it must prevail for it stands last in the
enactment and so to quote Lord Tenderden C. J., “speaks the last intention of the makers”.’

EXAMPLES
a. In King v. Dominion Engineering Co. Ltd,59 the issue was with regard to the provisions of
Section 86 (1) of the Special War Revenue Act. In this case, Dominion Engineering
executed a contract with Pulp Company whereby it undertook to manufacture for and
supply to the Pulp Company a pulp drying machine with spare parts and accessories. The
price was to be paid in instalments and the contract expressly stipulated that the property
and right of possession of the apparatus was to pass to the Pulp Company only when all
the stipulated payments had been made in cash. The earlier instalments were paid to the
Dominion Company and sales tax was paid on all of these instalments. However, the Pulp
Company was unable to tender the remaining four instalments because it fell into serious
financial difficulties and went into liquidation. Since the instalments were not paid, the
Dominion Company stopped working on the machine as well as it was never delivered to
the Pulp Company. Under Section 86 (1),60 the point in time, generally speaking, selected
for imposing, levying and collecting sales tax is the time of delivery of the goods to the
purchaser. However, as the goods were never delivered, the general rule of delivery was
inapplicable. But the section is followed by two provisos, which are both designed to
qualify the generality of the rule laid down in the section in matters of delivery. The first

59
[1944] S.C.R. 371
60
Section 86 (1): There shall be imposed, levied and collected a consumption or sales tax of eight percent on the sale
price of all goods---
(a) Produced or manufactured in Canada, payable by the producer or manufacturer at the time of the delivery of such
goods to the purchaser thereof.
(b) Provided that in the case of any contract for the sale of goods wherein it is provided that the sale price shall be
paid to the manufacturer or producer by instalments as the work progresses, or under any form of conditional sales
agreement, contract of hire – purchase or any form of contract, whereby the property in the goods sold does not pass
to the purchaser thereof until a future date, notwithstanding partial payments by instalments, the said tax shall be paid
pro tanto at the time each of such instalments falls due and becomes payable in accordance with the terms of the
contract, and all such transactions shall for the purposes of this section, be regarded as sales and deliveries.
Provided further that in any case where there is no physical delivery of the goods by the manufacturer or producer,
the said tax shall be payable when the property in the said goods passes to the purchaser thereof.
 53

proviso introduces the concept of a notional delivery which is to be held to take place in
certain specified cases, a feature of which is that the property in the goods does not pass to
the purchaser until a future date. In particular, when the contract provides that the sale price
shall be paid to the manufacturer or producer as the work progresses the tax is to be payable
pro tanto at the time each of such instalments falls due and becomes payable in accordance
with the contract. The Crown argued its claim of the sales tax on the remaining instalments
based on proviso 1 of Section 86 (1). However, the Court, rather than reviewing and
countering the Crown’s argument regarding proviso 1, held that proviso 2 provided a
complete and sufficient answer to the issue. The second proviso qualifies both the general
rule of delivery and the first proviso as it provides “further” that “in any case where is no
physical delivery of the goods”, the tax is to be payable when the property passes to the
purchaser. Thus, where there is no physical delivery, the concept of notional delivery
introduced by the first proviso is rendered inapplicable. Under this second proviso, the
Crown’s claim was rejected as it was an impossible hurdle in the Crown’s claim. The
proviso enacts that “in any case” where there has been no physical delivery the tax is to be
payable when the property passes. The Court observed that if the second proviso was in
conflict with the first proviso, it must override the first proviso as it is the last intention of
the law makers.
b. Article 203-C provides for the establishment of the Federal Shariat Court in Pakistan and
the manner in which Judges are to be appointed to this particular Court. 61 Under Article

61
Article 203(C): The Federal Shariat Court:
(1) There shall be constituted for the purposes of this Chapter a Court to be called the Federal Shariat Court.
[(2) The Court shall consist of not more than eight Muslim [Judges], including the [Chief Justice], to be appointed by
the President].
[(3) The Chief Justice shall be a person who is, or has been, or is qualified to be, a Judge of the Supreme Court or who
is or has been a permanent Judge of a High Court.
(3A) Of the Judges, not more than four shall be persons each one of whom is, or has been, or is qualified to be, a Judge
of a High Court and not more than three shall be Ulema who are well – versed in Islamic Law.]
(4) The [Chief Justice] and a [Judge] shall hold office for a period not exceeding three years, but may be appointed
for such further term or terms as the President may determine:
Provided that a Judge of a High Court shall not be appointed to be a [Judge] for a period exceeding [two years] except
with his consent and [except where the Judge is himself the Chief Justice,] after consultation by the President with the
Chief Justice of the High Court.
[(4A) The [Chief Justice], if he is not a Judge of the Supreme Court, and a [Judge] who is not a Judge of a High Court,
may, by writing under his hand addressed to the President, resign his office.]
[(4B) The President may, at any time, by order in writing:
a. Modify the term of appointment of a Judge:
b. Assign to a Judge any other office; and
c. Require a Judge to perform such other functions as the President may deem fit;
 54

209 (5),62 an inquiry is made against the Judge who is to be removed from service by the
Supreme Judicial Council, and Article 209 (6) provides for the removal of a Judge of the
Supreme Court or of a Provincial High Court if the inquiry of the Supreme Judicial Council
results in the conclusion that the Judge is to be removed.63 Article 209 (7) categorically
states that a Judge of the Supreme Court or of the High Court cannot be removed from
office except under the provisions of Article 209. 64 In Al – Jehad Trust and others v.
Federation of Pakistan and others,65 J. Ajmal Mian noted of the conflict between Articles
203-(C) and 209 of the Constitution of Pakistan. Justice Ajmal Mian took the following
view:
‘The Federal Shariat Court is a new Court created by the Martial Law Regime.
It does not fit in the hierarchy of the Courts originally provided under the Constitution.
It may be pointed out that Article 203-GG lays down that subject to Articles 203-D and
203-F, any decision of the Court in exercise of its jurisdiction under this Chapter shall
be binding on a High Court and on all Courts subordinate to a High Court, meaning
thereby, that the Federal Shariat Court is not equated with a High Court. The
appointment of a permanent sitting Chief Justice of a High Court or a sitting permanent
Judge thereof is in fact a fresh appointment in a different Court. Factually, it cannot be
treated as a transfer from one High Court to another High Court or a Court equivalent
to it. The above fresh appointment in fact impliedly involves removal from office of a
Chief Justice or a Judge of a High Court, as the case may be, for the period for which
he is appointed in the Federal Shariat Court. It may further be observed that once a

And pass such order as he may consider appropriate.

Explanation: In this clause and clause (4c), ‘Judge’ includes Chief Justice.]
(5) A Judge of the High Court who does not accept appointment as a Judge shall be deemed to have retired from his
office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of service as
Judge and total service, if any, in the service of Pakistan.
62
Article 209 (5): If, an information received from the Council or from any other source, President is of the opinion
that a Judge of the Supreme Court or of the High Court:
a. May be incapable of properly performing the duties of his office by reason of physical or mental incapacity;
b. May have been guilty of misconduct,
The President shall direct the Council to inquire into the matter.
63
Article 209 (6): If, after inquiring into the matter, the Council reports to the President that it is of the opinion:
a. That the Judge is incapable of performing the duties of his office or has been guilty of misconduct; and
b. That he should be removed from office;
The President may remove the Judge from office.
64
Article 209 (7): A Judge of the Supreme Court or of a High Court shall not be removed from office except as
provided by this Article.
65
PLD 1996 Supreme Court 324
 55

sitting Chief Justice of a High Court or a permanent Judge thereof appointed in the
Federal Shariat Court without his consent, he becomes susceptible under clause (4B) of
Article 203-C to actions detrimental to his security of tenure which is guaranteed by the
above Article 209 (7) of the Constitution, inasmuch as the President may at any time by
an order in writing modify the terms and of appointment of such a Judge or he may
assign to such Judges any other office, i.e. any office other than of a Judge or require
him to perform such other functions as the President may deem fit, which may not
necessarily be judicial functions. In the past, Mr. Justice Aftab Hussain, who was the
Chief Justice of Federal Shariat Court, was made an Officer on special duty in a
Ministry. He declined and took retirement.
A Chief Justice of the High Court, who may be senior to a Chief Justice of the Federal
Shariat Court, after appointment in the Federal Shariat Court, becomes the junior most
Judge. For example, Mr. Justice Nasir Aslam Zahid was appointed in 1980. Mr. Justice
M. Mahboob Ahmad had not joined the Federal Shariat Court, whereas Mr. Justice
Nasir Aslam Zahid joined the same, with the result that he became junior to all the
Judges of the Federal Shariat Court at the time when he joined including the Chief
Justice; though all of them were junior to him on the basis of dates of their respective
induction in the High Court. This also adversely effects the terms of a Judge.
Since there is a conflict between the above two Articles, efforts are to be made to resolve
the same by reconciling it. The Constitution is to be read as a whole as an organic
document. A close scrutiny of the various provisions of the Constitution highlights that
it envisages that the independence of judiciary should be secured as provided by the
founding fathers of the country by passing Objectives Resolution and by providing
security of tenure. The Constitution also envisages separation of judiciary from the
executive. Keeping in view the various provisions of the Constitution, it is not possible to
reconcile the above provisions of Article 203-C and Article 209. In such a situation, the
question arises, which of the Article should prevail. One view can be that since Article
203-C was incorporated subsequent to Article 209, the former should prevail. The other
view can be that since Article 209 was incorporated by consensus by the framers of the
Constitution and whereas Article 203-C was incorporated by the then Chief Martial Law
Administrator and as the same is detrimental to the basic concept of independence of
 56

judiciary and the separation of judiciary, the former should prevail. I am inclined to
prefer the latter interpretation as it will be more in consonance with the various
provisions of the Constitution and in accord with justice and fair play. A person cannot
be appointed on adverse terms in a new Court without his consent.
The effect of the above view, which I am inclined to take, would be that any appointment
of a sitting Chief Justice of a High Court or a permanent Judge thereof without
obtaining his consent, would be violative of Article 209 of the Constitution and,
therefore, would be void.’

LANGUAGE OF THE STATUTE SHOULD BE READ AS IT IS

The intention of the Legislature is primarily to be gathered from the language used, which means
that attention should be paid to what has been said as also to what has not been said. Interpretation
which calls in for the substitution of words or the rejection of words or where words have been
omitted, to supply them by construction, are most likely avoided as courts find such interpretations
to be against the intent of the law makers. The Privy Council has said:

‘We cannot aid the Legislature’s defective phrasing of an Act; we cannot add or amend
and, by construction cannot make up deficiencies which are left there.’

It is considered wrong and dangerous by the courts to proceed by substituting some other words
for words of the statute. The courts cannot reframe the legislation as they simply do not possess
the power or authority to legislate. As observed in a case:

‘We have been warned time and again not to substitute other words for the words of a
statute. And there is very good reason for that. Few words have exact synonyms. The overtones
are almost always different. This is especially true in case of an ordinary English word of
common use for “the easiest word, whatever it may be, can never be translated into one more
easy.”’

CASUS OMISSUS: This Latin expression means, a case omitted from the language of the section,
but within the general scope of the statute, and which appears to have been omitted by inadvertence
or because it was overlooked or unforeseen. Omissions in a statute cannot, as a general rule, be
supplied by construction. Thus, if a particular case is omitted from the terms of the statute, the
view generally is, though, such a case is within the obvious purpose of the statute and the omission
 57

appears to have been due to accident or inadvertence, the court cannot include the omitted case by
supplying the omission. This is equally true where the omission was due to the failure of the
Legislature to foresee the missing case. As is obvious, to permit the court to supply the omissions
in statutes would generally constitute an encroachment upon the field of the Legislature. As
observed by Lord Russell of Killowen:

‘Even when there is casus omissus, it is, for others than the Courts to remedy the defect.’

Devlin L. J. said:

‘We cannot legislate for casus omissus…. If this rule were to be relaxed, sooner or later
the court would be saying what Parliament meant and might get it wrong and thus usurp the
law – making function.’

However, it has also time and again been stated by courts that nothing is to be added to or taken
from a statute unless there are adequate grounds to justify the inference that the Legislature
intended something which it omitted to express. Since the whole purpose of construction is to
determine the intent of the Legislature, it is acceptable if omissions are supplied to find out such
intent. Therefore, words which have been omitted by oversight are allowed to be supplied, if the
statute would otherwise lead to a meaningless construction or to correct obvious errors of the
statute. Lord Mersey said:

‘It is a strong thing to read into an Act of Parliament words which are not there, and in
the absence of clear necessity it is a wrong thing to do.’

Similarly, Lord Loreburn L. C. opined:

‘We are not entitled to read words into an Act of Parliament unless clear reason for it is
to be found within the four corners of the Act itself.’

The above discussion begs the question that how does one determine whether the omission is
deliberate or not for this is no easy task. Attempts to supply the omission, even where the omission
is because of a mistake, would operate to add to the enactment a meaning not intended by the
Legislature. It would seem, in this regard, that when a court is faced with such a dilemma, it should
bear in mind the intended purpose of the statute and the statutory provision which is at issue; the
fact that due to an unintentional mistake on part of the law makers, such omission was made; that
 58

the Legislature had in fact intended to include the omitted case but actually failed to use language
which, prima facie, would cover the omitted scenario; and, the words which the Legislature would
have used had their attention been drawn to the omission in the Bill. Denning L. J. observed:

‘When a defect appears, a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of the Parliament and then
he must supplement the written words so as to give ‘force and life’ to the intention of the
Legislature. A judge should ask himself the question how, if the makers of the Act had
themselves come across this ruck in the texture of it, they would have straightened it out? He
must then do as they would have done. A judge must not alter the material of which the Act is
woven, but he can and should iron out the creases.’

EXAMPLES
a. The statute provided that ‘no person, firm or corporation conducting a barroom… should
permit any woman or minor child to serve therein’ but omitted to declare the proprietor
guilty if he did so. In State v. Trapp,66 the issue was whether the proprietor could be held
guilty by the court even though there existed no provision in the statute. In holding that
the proprietor was not guilty for allowing a woman or a minor child to serve in a barroom
or a drinking saloon, the court took the view:
‘As the statute does not declare that a proprietor of a barroom or drinking saloon
who permits a woman or minor child to serve in a barroom or drinking room, shall be
deemed guilty of a misdemeanour, the courts cannot declare him guilty, however certain
that the omission on the part of the Legislature was inadvertent. Courts of justice have
nothing more to do with criminal statutes than to apply them to the cases to which the
Legislature has declared they shall be applied. If the Legislature has accidentally or
inadvertently failed to express the intention that certain conduct shall constitute a crime
or misdemeanour, the courts cannot correct the error or supply the omission, no matter
how plainly the conduct in question is within the mischief intended to be remedied.’
b. In Hancock v. Lablache,67 the defendant, a singer and actress, purchased a locket from the
plaintiff and promised to pay the amount in four instalments from her wages which were

66
140 La. 425, 73 So. 255, 256
67
3 C. P. D. 197
 59

her separate property. After the payment of two instalments, she left two instalments unpaid
and the plaintiff sued her for the balance. The plaintiff argued that the balance be paid out
of the defendant’s earnings, which were her own separate property following the passing
of the Married Women’s Property Act, 1870. The objection raised by the defendant was
she could not be sued unless her husband was joined as a defendant in the case as the
Legislature had omitted to enact any provisions involving those cases where married
women were defendants.68 Resultantly, the question was whether the court could hold the
actress liable to pay the balance instalments. The court refused to hold her responsible to
pay the balance as doing so would be adding a new case to the Act.
c. Order 21 rule 89 of the Code of Civil Procedure enables any person, claiming an interest
in a property sold in execution of a decree, apply to have the execution sale set aside on his
depositing, within thirty days from the date of sale,69 five percent of the purchase money
for payment to the purchaser and the amount payable to the decree holder for recovery of
which the sale was held. The period of limitation for applying under rule 89 was also
previously thirty days as provided under Article 127 of the Limitation Act, 1963.70 The
period of thirty days in the Limitation Act, 1963, was enlarged to sixty days. The object
for enlargement as indicated in the object and reasons of the amending Bill was that the
period of thirty days was too short often resulting in hardship to the person making the
application. However, no amendments were made to rule 89 or 92 of the Code. In P. K.
Unni v. Nirmala Industries,71 it was contended before the Supreme Court that not only the
period for making the application for setting aside the sale was enlarged to sixty days, but
also the period for making the deposit under rule 89 must be taken to have been extended

68
Prior to the enactment of the Married Women’s Property Act, 1870, the position in common law was that married
women were not allowed to hold property in their own names. Their husbands became the co – owners of their
properties once the women got married. Similarly, a suit could not be instituted by or against a married woman without
the husband being a party. This position was altered by the passing of Married Women’s Property Act, 1870. The aim
of enacting the Married Women’s Property Act, 1870 was to ameliorate the conditions of married women. Amongst
other things, following the passing of the Act, women were allowed to hold properties in their own names as well as
Section 11 granted them the right to sue others without impleading their husbands as co – plaintiffs. But the Legislature
did not enact anything regarding those cases where married women were sued by others.
69
Rule 92 (2) of Order 21 stipulates a period of thirty days within which the deposit for setting aside an execution sale
has to be made. In India, this period was enlarged to sixty days in 2002. The period in Pakistan, however, still remains
the same.
70
Article 166 of the Pakistani Limitation Act, 1908 states a period of thirty days for the making of an application to
set aside an execution sale.
71
AIR 1990 SC 933
 60

to sixty days. The court held that though the application itself may be made within sixty
days, the deposit to support the application has to be made within thirty days. The court
said that it would have been more rational to enlarge the period for making the deposit so
as to make it identical with that prescribed for making the application and this would have
better served the object of Parliament, but that was for the Parliament to legislate upon and
the court could not supply the omission.
d. Entry 70 of Schedule I of the Gujarat Gram and Nagar Panchayats Taxes and Fees Rules,
1964 was in question. Entry 70 provided as follows: ‘Silica, Quartz, Zircon sand, Felspar,
Gypsum, Grog72 and Minerals and Oxides used as raw materials. In Gujarat Composite
Ltd. v. Ranip Nagarpalika, JT,73 the question was in relation to Grog Minerals; do these
words in the said Entry 70 refer to (1) Grog and (2) Minerals, or do they refer to one item
known as Grog Minerals. The court said that there being no such item known to the
technical world as Grog Minerals, it was obvious that the said Entry 70 was intended to
cover (1) Grog and (2) Minerals.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

It is a settled rule of statutory construction that the express mention of one person, thing or
consequence implies the exclusion of all others. To state a thing expressly ends the possibility that
something inconsistent with it is implied. This is known as the rule of ‘expressio unius est exclusio
alterius’ (Latin for ‘to express one thing is to exclude another’). It is applied where a statutory
proposition might have covered a number of matters but in fact mentions only some of them. In
such cases, those matters which are left unmentioned are taken to be excluded from the proposition.

The rule is formulated in a number of ways. One variation of the rule is the principle that what is
expressed puts an end to what is implied: Expressum Facit Cessare Tacitum. Thus, where a
statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters. As Lord Dunedin put it:

‘Express enactment shuts the door to further implications.’

72
Crushed unglazed pottery or brick used as an additive in plaster or clay.
73
AIR 2000 SC 135
 61

Another variation of the rule is the canon that a general expression followed by exceptions
therefrom implies that those which do not fall under the exceptions come within the scope of the
general expression. Stated differently, a thing not being excepted must be regarded as coming
within the purview of the general rule, expressed in the maxim: Exceptio Firmat Regulam In
Casibus Non Exceptis.

However, the rule is only meant to serve as a guideline and is to be ignored where the language of
the provision dictates that it should be excluded or the circumstances of the case indicate that the
case should not be governed by the rule or where the list is not intended to be exclusive. The rule
is not one of universal application and cannot be used to defeat the manifest intent of the
Legislature.

EXAMPLES
a. In Intpro Properties (UK) Ltd v. Sauvel,74 it was alleged that a private dwelling occupied
by a financial counsellor at the French embassy in London was the subject of diplomatic
immunity as being “premises of the mission”. The definition of this phrase in Article 1 of
the Vienna Convention on Diplomatic Relations, 1961 is ‘the buildings or parts of
buildings and the land ancillary thereto, irrespective of ownership, used for the purposes
of the mission including the residence of the head of the mission.’ It was held that the
specific mention of the residence of the “head” of the mission made it clear that the
residences of other members of the mission could not form part of the premises of the
mission.
b. In R v. Midland Railway Co, 75 an Act imposed ‘a tax on houses, buildings, works,
tenements, and hereditaments.’ Under the provision, the question was whether an open or
unburdened land fell within the ambit of the Act. The court said it did not as the law makers
did not include it within the list of things mentioned.
c. An Act stated that a ship was to be treated as the property of the person in whose name it
was registered. In Curtis v. Perry, 76 a man named Nantes, in whose name a ship was
registered, had for years allowed the ship to be regarded in the trade as the joint property

74
[1983] Q. B. 1019
75
(1855) 4 E & B 958
76
(1802) 6 Ves. 739
 62

of himself and his partners. The court held, on petition of the creditors of Nantes, that the
long-continued acquiescence of Nantes could not operate as a waiver of his statutory right
to be considered sole owner.
d. In Gomez v. Ventura,77 a physician prescribed opium to his patient even though his physical
condition did not require the use of the drug. The question was whether the prescription of
the drug by the physician constituted “unprofessional conduct” so as to justify revocation
of the physician’s license to practise. The counsel for the physician argued that the statute
enumerated five instances constituting “unprofessional conduct”. None of the instances
enumerated mentioned the prescription of opium to the patient, thus, the same cannot be a
valid ground for revocation of the physician’s license in light of the rule of expressio unis
est exclusio alterio. Repelling the argument, the court said that the list was merely
illustrative and the Legislature never intended to wipe out all other forms of unprofessional
conduct.
e. Section 14 (1) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 stated
that in case of overpayment by the tenant ‘the sum so paid shall be recoverable from the
landlord… who received the payment or his legal personal representative by the tenant.’
There was no mention of recovery by the legal personal representative of the tenant. In
Dean v. Wiesengrund,78 it was contended that the mention only of the landlord’s legal
personal representative meant that where the tenant had died before claiming a repayment
his legal personal representative could not claim it on behalf of his estate. It was held that
that there was no room for applying the maxim expressio unius est exclusio alterius in these
circumstances. Rejecting the landlord’s argument, the court took the view that this was a
provision in an Act which expressly provided the tenant the right to recover for
overpayments, therefore, it does not follow that the tenant’s representative could not also
recover for the overpayments when the tenant had died.

NOSCITUR A SOCIIS

‘A statutory term is recognised by its associated words.’ The Latin maxim noscitur a sociis states
this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but

77
54 Phil. 726 (1930)
78
[1955] 2 QB 120
 63

in the light of its surroundings. The rule has given rise to particular precepts such as the ejusdem
generis principle and the rank principle. A word or phrase in an enactment must always be
construed in the light of the surrounding text. Words, and particularly general words, cannot be
read in isolation; their colour and their content are derived from their context. The rule of
construction noscitur a sociis as explained by Lord Macmillan means:

‘The meaning of a word is to be judged by the company it keeps.’

As stated by the Privy Council:

‘It is a legitimate rule of construction to construe words in an Act of Parliament with

reference to the words found in immediate connection with them.’

According to Stamp J.:

‘English words derive colour from those which surround them, Sentences are not mere
collection of words to be taken out of the sentence, defined separately by reference to the
dictionary or decided cases, and then put back into the sentence with the meaning which you
have assigned to them as separate words…’

EXAMPLES

a. In Commrs. v. Savoy Hotel, 79 while dealing with a Purchase Tax Act, which used the
expression ‘manufactured beverages including fruit – juices and bottled waters and
syrups, etc.’, it was held that that the description fruit – juices as occurring therein should
be construed in the context of the preceding words and that orange juice unsweetened and
freshly pressed was not within the description.
b. In Bageshwari Charan Singh v. Jagannath,80 the word “declare” as occurring in the phrase
‘to create, declare, assign, limit or extinguish’ of Section 17 of the Registration Act, 1908
was in issue. The Privy Council held that though the word “declare” was capable of bearing
a wider meaning but in Section 17, being in association with other words, its meaning was
restricted to connote a definition change of legal relationship as distinct from a mere
statement of facts.

79
1966 2 All ER 299
80
AIR 1932 PC 55
 64

c. In Muir v. Keay,81 in the phrase ‘for public refreshment, resort and entertainment’ in
Section 6 of the Refreshment Houses Act, 1860, “entertainment” was held to mean
reception of the public rather than entertaining them by a theatrical, etc. performance.
d. In Pengelly v. Bell Punch Co. Ltd.,82 the word “floors” as used in ‘floors, steps, stairs,
passageways and gangways’ of the Factories Act, 1961 required interpretation. The court
had to decide whether a floor used for storage fell within the description of the provision.
Applying the principle of noscitur a sociis, the court held that all the words used in the
phrase indicated passage. It said that floors meant parts of floors over which workmen were
likely to pass or repass and a floor used exclusively for storage does not fall within the
description of the Act.
e. In Inland Revenue v Frere,83 the respondent sought to deduct the interest paid on a short-
term loan from his income for the purposes of assessing his liability to pay tax. The Income
Tax Act of 1952 allowed ‘the amount of interest, annuities or other annual interest to be
deducted from the income.’ Under the noscitur a sociis rule, the mention of amount of
interest related only to annual interest as the other items related to annual payments. The
respondent’s interest payment was not an annual interest payment; therefore, he could not
deduct it from his income and he was required to pay tax on it.
f. Section 2 of the Ecclesiastical Courts Jurisdiction Act, 1860 penalises ‘riotous, violent or
indecent behaviour’ in churches and churchyards. In Abrahams v. Cavey,84 prosecution
was brought under Section 2, where the defendant had shouted in a Methodist church
service (held in connection with the Labour Party conference): ‘Oh, you hypocrites, how
can you use the word of God to justify your policies?’ It was held that in Section 2, the
word “indecent” did not have its usual sexual/obscene connotation, but, because of the
surrounding words, must be taken to refer to the indecency of creating some disturbance
within a sacred place.

EJUSDEM GENERIS

81
(1875) LR 10 QB 294
82
[1964] 1 WLR 1055
83
[1964] 3 All ER 796
84
[1968] 1 QB 479
 65

It is presumed that a statute will be interpreted so as to be internally consistent. A particular section

of the statute shall not be divorced from the rest of the act. When particular words pertaining to a
class, category or genus are followed by general words, the general words are construed as limited
to things of the same kind as those specified or enumerated. This is the rule known as “Ejusdem
Generis”, and it is founded upon the idea that if the Legislature intended the general words to be
used in an unrestricted sense, the particular classes would not have been mentioned.

It has been said and agreed by many legal scholars that when the Legislature enacts a statute, it is
very difficult to make it exhaustive. Therefore, in order to make sure that maximum term is
incorporated into the statute, general words like “and other devices” are added by the legislature
after some specific words. The ejusdem generis (Latin for “of the same kind”) rule applies to
resolve the problem of giving meaning to groups of words where one of the words is ambiguous
or inherently unclear. The wide words associated in the text with more limited words are taken to
be restricted by implication to matters of the same limited character. The effect of the principle is
to curtail the literal meaning of the residuary words so as to confine it to the genus implicitly
described.

Stating about the principle of noscitur a sociis, it has been stated that this general principle of the
law of interpretation has a number of specific sub-principles including the ejusdem generis rule.85
The relevant sub-principle for present purposes is the maxim propounded by Lord Bacon:
Copulatio Verborum Indicat Acceptationem In Eodem Sensu – the linking of words indicates
that they should be understood in the same sense. As Lord Kenyon C. J. once put it, where a word
“stands with” other words it “must mean something analogous to them”.

The rule applies when:

▪ The statute contains an enumeration of specific words;

▪ The subjects of enumeration constitute a class or category;
▪ If the subjects differ, the rule is not applicable;
▪ That class or category is not exhausted by the enumeration;
▪ That general terms follow the enumeration; and

85
An easy way to differentiate between the noscitur a sociis principle and the ejusdem generis principle is that the
former applies to specific words while the latter applies to general words.
 66

▪ There is no indication of a different legislative intent.

Cockburn C. J. said:

‘According to well – established principles rules in the construction of statutes, general

terms following particular ones apply only to such persons or things as are ejusdem generis with
those comprehended in the language of the Legislature.’

Farwell L. J. commented as follows:

‘When there is a clear category followed by words which are not clear, unambiguous
general words, it would violate rule of construction to strike out and render unmeaning two
words which were presumably inserted for the purpose of having some meaning.’

Rigby L. J. observed:

‘In modern times I think greater care has been taken in the application of the doctrine
[of ejusdem generis] but the doctrine itself as laid down by great judges from time to time has
never been varied; it has been one doctrine throughout. The main principle upon which you
must proceed is, to give all the words their common meaning; you are not just fled in taking
away from them their common meaning, unless you can find something reasonably plain upon
the face of the document itself to show that they are not used with that meaning, and the mere
fact that general words follow specific words is certainly not enough.’

For the ejusdem generis principle to apply, there must be a sufficient indication of a category that
can properly be described as a class or genus, even though not specified as such in the enactment.
Furthermore, the class must be narrower than the general words it is said to regulate. The nature
of the class is gathered by implication from the express words which suggest it. For example, if a
legal provision specified that ‘boots, shoes, and other articles are not to be exported’, then this
would indicate the class of footwear.

Dixon J. said:

‘For the purposes of that canon to apply, you must first find in your particular instances
which precede the general words some common attributes or characteristics which enable you
to formulate a category or description.’
 67

RANK PRINCIPLE: An outcome of the rule of ejusdem generis is that statutes which deal with
persons or things in inferior rank are not extended to those of superior degree by introduction of
general words and the general words following particular words will not cover anything of a class
superior to those to which the particular class relate. This is an instance of the application of a
particular aspect of the ejusdem generis principle known as the rank principle. Where a statute
enumerates persons of an inferior rank, dignity or importance, it is not extended by addition of
general words to persons of a higher rank, dignity or importance than that of the highest
enumerated, if there are any of a lower species to which the general words can apply.

THE NON-EXISTENCE OF THE INVERSE EJUSDEM GENERIS: The ejusdem generis

principle is presumed not to apply where apparently general words are followed by narrower words
suggesting a genus more limited than the general words, if taken by themselves, would indicate.
According to Cohen L. J.:

‘I have never heard of an inverse application of the ejusdem generis rule and I think it
would be very dangerous here to attempt to cut down by the application of any such principle
the wide words which precede…’

Maxwell said:

‘The ejusdem generis principle applies only to general words following words which are
less general.’

Craies goes so far as to have stated:

‘There cannot be an inverse application of the rule.’

EXAMPLES
a. In Wood v. Metropolitan Police Comr.,86 the appellant was convicted of being armed with
an offensive weapon with intent to commit an arrestable offence, contrary to Section 4 of
the Vagrancy Act, 1824. This applies to ‘every person… being armed with any gun, pistol,
hanger, cutlass, bludgeon, or other offensive weapon.’ The appellant was armed with a
piece of broken glass which had just accidentally fallen out of a panel in his front door.
Applying the ejusdem generis principle, it was held that the term “offensive weapon” in

86
[1986] 2 All ER 570
 68

this phrase was to be construed as confined to articles made or adapted for use for causing
injury to the person.
b. Section 43 of the Customs Consolidation Act 1876 stated that ‘the importation of arms,
ammunition, gunpowder or any other goods may be prohibited by Proclamation or Order
in Council.’ A Proclamation was passed whereby a certain quantity of pyrogallic acid
which had been imported was seized. The acid is a well-known component of gunpowder
and ammunition generally. In A. G. v. Brown,87 the question was whether the Proclamation
and the seizure were valid or not. It was argued that the importation of chemicals was
prohibited by the Proclamation. It was held that the words “any other goods” must be
deemed to be restricted to things of the same class as those previously specified, and
therefore the seizure was illegal. The chemicals were not included in the category of
prohibited goods, and the Proclamation was therefore invalid.
c. Section 1 of the Betting Act 1853 made it an offence to ‘keep a house, office, room or
other place for the purposes of betting.’ In Powell v. Kempton Park Racecourse Co.,88 the
House of Lords had to decide whether the section applied to the defendant’s place as the
place in question was an outdoor betting stall set up at the racecourse. The court applied
the ejusdem generis rule and held that the other items mentioned in the statute related to
places indoors whereas the defendant’s enclosure was outside. There was, thus, no offence
committed.
d. In National Association of Local Govt. Officers v. Bolton Corporation,89 in construing the
definition of “workmen” in the Industrial Courts Act, 1919, which reads: ‘means any
person who entered into or works under a contract with an employer whether the
contract be by way of manual labour, clerical work or otherwise’; Viscount Simon, L. C.
said:
‘The use of words “or otherwise” does not bring into play the ejusdem generis principle
for “manual labour” and “clerical work” do not belong to a single limited genus.’
e. In Hamdard Dawakhana v. Union of India,90 the Fruits Product Order, 1955, made under
Section 3 of the Essential Commodities Act, 1955, required that the minimum percentage

87
[1920] 1 K.B. 773
88
[1899] AC 143
89
(1942) 2 All. ER 425 (HL)
90
AIR 1965 SC 1167
 69

of fruit juice in the final product of a fruit syrup should be 25 percent. Clause 2 (d) (v) of
the Fruits Product Order, 1955 mentioned squashes, crushes, cordials, barley water,
barrelled juice and ready-to-serve beverages or any other beverages containing fruit juices
or fruit pulp. The appellants contended that the requirement as laid out in Section 3 did not
apply to its products known as Rooh Afza though it contained fruit juices.91 The appellants
stated that Rooh Afza is not a foodstuff but a medicinal product, and cannot be regarded as
an essential commodity under the Essential Commodities Act, 1955, therefore, it is outside
the purview of the Fruits Order, 1955. Its intended use is for common ailments during hot
season, particularly for ailments like loss of appetite, sun stroke, nausea, sleeplessness, etc.
It was contended on behalf of the appellants that the words be read ejusdem generis with
the previous categories of beverages. The court rejected the argument holding that a simple
examination of the said beverages will disclose the fact that there is no genus by reference
to which the rule of ejusdem generis can be properly invoked. Besides, the context of the
clause clearly suggests that it is intended to take in all beverages other than those earlier
specified, provided they contain fruit juices or fruit pulp. Therefore, the court had no
difficulty in holding that the sharbat in question falls within the purview of clause 2 (d) (v)
of the Fruits Order and as such, its production can be controlled by its relevant provisions.
f. In Re Brickman’s Settlement,92 in the phrase ‘an officer or examiner of the court or other
person’ in RSC Ord 39 r 4(a), the residuary words have been held not to include judges.
g. In Casher v. Holmes,93 in the phrase ‘copper, brass, pewter, and tin, and all other metals’,
in a local Act of 1825, the residuary words were held not to include precious metals such
as gold and silver.

REDDENDO SINGULA SINGULIS

The rule may be stated from a case in the following words:

‘Where there are general words of description, following an enumeration of particular

things such general words are to be construed distributively, reddendo singula singulis; and if

91
The ingredients used in Rooh Afza as set out in the judgment are: Kasni Seeds, Khus, Pumpkin Juice, Watermelon
Juice, Chharila, Ripe Grapes, Spinach, Nilofar, Sandal, Gul Gaozaban, Coriander, Carrot, Mint, Kulfa, Keora, Rose,
Citrus Flower, Orange Juice, Pineapple Juice, Water, Sugar.
92
[1981] 1 WLR 1560
93
(1831) 2 B & Ad 592
 70

the general words will apply to some things and not to others, the general words are to be applied
to those things to which they will, and not to those to which they will not apply; that rule is
beyond all controversy.’

Simply put, the rule is used to refer each phrase or expression to its corresponding and appropriate
object, or let each of the words be put in their proper places, i.e. the words should be read
distributively. The reddendo singula singulis principle concerns the use of words distributively.
Where a complex sentence has more than one subject, and more than one object, it may be the
right construction to provide each to each, by reading the provision distributively and applying
each object to its appropriate subject. A similar principle applies to verbs and their subjects, and
to other parts of speech. For example, 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”,94 and “bequeath all my personal property”,95 to A’, since according
to the rules of legal drafting, the word devise is appropriate only to real property and the term
bequeath is appropriate only to personal property. Perhaps the simplest and best example of
reddendo singula singulis is quoted from Wharton’s law lexicon:

‘If anyone shall draw or load any sword or gun, the word draw is applied to sword only
and the word load to gun only, the former verb to former noun and latter to latter, because it is
impossible to load a sword or to draw a gun, and so of other applications of different sets of
words to one another.’

EXAMPLES
a. Section 1 of the Immigration Act, 1971 states ‘All those who are in this Act expressed to
have the right of abode in the United Kingdom shall be free to live in, and to come and
go into and from, the United Kingdom without let or hindrance…’ The phrase “to come
and go into and from” requires construction. Applying Reddendo Singula Singulis, it is to
be read as if it said ‘to come into the United Kingdom and go from it’.
b. In Koteshwar Vittal Kamat v K Rangappa Baliga, 96 the question was regarding the
construction of the proviso to Article 304 of the Indian Constitution which reads, ‘Provided

94
Immovable property.
95
Movable property.
96
AIR 1969 504
 71

that no bill or amendment for the purpose of clause (b), shall be introduced or moved in
the Legislature of a state without the previous sanction of the President’. It was held that
the word “introduced” applies to “bill” and “moved” applies to “amendment”. The
Supreme Court stated that, where a sentence contains several antecedents and several
consequents, they are to be read distributively. That is, the words are to be applied to the
subjects to which they appear by context most properly to relate and to which they are most
applicable.
c. Section 59 (1) of the Local Government Act, 1933 reads: ‘A person shall be disqualified
for being elected97 or “being a member of a local authority98 if he has within five years
before the day of election or since his election been convicted of any offence and ordered
to be imprisoned for a period of not less than three months without the option of fine.’
In Bishop v. Deakin, 99 the defendant was convicted of perjury on 6th July, 1932 and
sentenced to six months imprisonment, without the option of a fine; she was subsequently
elected as a councillor on 1st November, 1934. Almost a year after the election, an action
was brought for a declaration that she was disqualified from acting as a member of the
local authority. The difficulty arose from a limitation period in the relevant legislation
which created a six months limitation period for challenging elections. As the defendant
had been in office for almost a full year before the case challenging her election was issued,
the case was outside the limitation period. The plaintiffs consequently sought to challenge
the defendant’s right to continue holding office as a councillor. Clauson J., ruling in favour
of the defendant, observed that the sections provided for two disqualifications and two
definitions:
‘The section provides for two matters: first what is to be disqualification for
election? And, secondly what is to be disqualification for being a member after election?
And it provides for two disqualifications: First, conviction within five years before the
day of election; and secondly, conviction since election. It is obvious that the second
disqualification mentioned does not fit the first case mentioned, namely that of the

97
A person shall be disqualified for being elected if he has within five years before the day of election been convicted
of any offence and ordered to be imprisoned for a period of not less than three months without the option of fine.
98
A person shall be disqualified for being a member of a local authority if he has within five years since his election
been convicted of any offence and ordered to be imprisoned for a period of not less than three months without the
option of fine.
99
[1936] 1 All ER 255
 72

election, but does fit the second case only. It is also obvious that the first qualification
mentioned fits the first case, and it does not seem at all apt to fit the second case.’
After referring to certain strange results, if the first disqualification, were applied to the
second case, the judge proceeded on to say:
‘All difficulty can be avoided by applying the well – known method of
construction commonly known as reddendo singula singulis; and applying the first
disqualification mentioned to first case dealt with, and the second disqualification to the
second case dealt with.’
The result reached seems to be quite sensible, namely, that conviction with five years
before the day of election, disqualifies from election, and conviction after election
disqualifies from continuance in office. It was, therefore, held that a conviction prior to
election, although, a disqualification for the election, was not a disqualification for
continuing to be a member and if the election was not challenged by an election petition
within the time limited therefor, the member could not be directed to vacate his seat.

NON OBSTANTE CLAUSE

The expression “non obstante” means “notwithstanding”. A section sometimes begins with the
phrase “notwithstanding anything contained etc.” Such a clause is called a non obstante clause
and its purpose is to give the provision contained in the non obstante clause an overriding effect in
the event of a conflict between it and the rest of the section. Thus, there is generally a close relation
between the non obstante clause and the main section and in case of ambiguity the non obstante
clause may throw light on the scope and ambit of the rest of the section. The very purpose of non-
obstante clause is that the provision shall prevail over any other provision and that other provisions
shall not be of any consequence. In case there is any inconsistency or a departure between a non-
obstante clause and other provisions, one of the objects of such a clause is to indicate that it is the
non-obstante clause that would prevail over the other clauses.

EXAMPLES

a. Section 3 of the Service Tribunals Act, 1973 states:

1. The President may, by notification in the official Gazette, establish one or more Service
Tribunals and, where there are established more than one Tribunal, the President shall
specify in the notification the class or classes of civil servants In respect of whom, or
 73

the territorial limits within which, or the class or classes of cases in respect of which,
each such Tribunal shall exercise jurisdiction under this Act.
2. A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms
and conditions of service of civil servants, including disciplinary matters.
3. A Tribunal shall consist of—
a. A Chairman, being a person who is, or has been, or is qualified to be. Judge of
a High Court; and
b. Such number of members not exceeding three, each of whom is a person who
possesses such qualifications as may be prescribed by rules, as the President
may from time to time appoint.
4. The Chairman and members of a Tribunal shall be ap*pointed by the President on such
terms and conditions as he may determine.
5. The Chairman or a member of a Tribunal may resign his office by writing under his
hand addressed to the President.
6. The Chairman or a member of a Tribunal shall not hold any other office of profit in the
service of Pakistan if his remuneration is thereby increased.
7. NOTWITHSTANDING anything contained in sub-section (3), sub-section (4),
sub-section (5) or sub-section (6), a Tribunal established to exercise jurisdiction
in respect of a specified class or classes of cases may consist of one or more persons
in the service of Pakistan to be appointed by the President.
b. Article 44 of the Constitution of Pakistan provides:
1. Subject to the Constitution, the President shall hold office for a term of five years from
the day he enters upon his office:
Provided that the President shall, NOTWITHSTANDING the expiration of his
terms, continue to hold office until his successor enters upon his office.
2. Subject to the Constitution, a person holding office as President shall be eligible for
re-election to that office, but no person shall hold that office for more than two
consecutive terms.
3. The President may, by writing under his hand addressed to the Speaker of the National
Assembly, resign his office.

CONJUNCTIVE / DISJUNCTIVE SENSE

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In ordinary use, “and” is normally conjunctive and “or” is normally disjunctive that marks an
alternative which generally corresponds to the word “either”. A departure from the same is not
available unless the very aim and purpose of the Statute so requires. Despite their ordinary and
common meaning, these words are used interchangeably in construction. On many occasions, the
court may substitute one for the other but as mentioned earlier, this cannot be done if the meaning
of the statute is clear. It is proper only in order to more accurately express, or to carry out the
obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the
legislature, and especially where it will avoid absurd or impossible consequences or operate to
harmonise the statute and give effect to all its provisions. As stated by Scrutton L. J.:

‘You do sometimes read “or” as “and” in a statute. But you do not do it unless you are
obliged because “or” does not generally mean “and” and “and” does not generally mean “or”.’

Take a look at the examples of the charitable/educational institutions.

EXAMPLES
a. In Federal Steam Navigation Co Ltd v. Department of Trade and Industry,100 the words
‘owner OR master’ as they occur in Section 1(2) of the Oil in Navigation Waters Act, 1955
were construed by the House of Lords to mean ‘owner and master’ making both of them
guilty of the offence under that section. In the court’s view, reading it disjunctively would
have produced an absurd result by giving a choice to the Executive to select either the
owner or master for prosecution without the Act giving any guidance. Such a result would
have been against constitutional practice.
b. In Re H (a minor) (foreign custody order: enforcement),101 the Court of Appeal held that
in Article 10 of the European Convention on the Recognition and Enforcement of
Decisions Concerning Custody of Children, given the force of law by the Child Abduction
and Custody Act, 1985, the statement that “recognition AND enforcement” of a foreign
judgment may be refused was to be construed disjunctively. This meant that a judgment
might be recognised but not enforced. The Court had regard to the statement in Dicey and
Morris on the Conflict of Laws that ‘while a court must recognise every foreign judgment
which it enforces, it need not enforce every foreign judgment which it recognises’.

100
[1974] 2 All ER 97
101
[1994] Fam. 105
 75

c. In section 7 of the Official Secrets Act, 1920, which reads ‘any person who attempts to
commit any offence under the principal Act or this Act, or solicits or incites or
endeavours to persuade another person to commit an offence, or aids or abets AND does
any act preparatory to the commission of an offence’, the word “and” before “does any
act” was read as “or” for by reading it conjunctively the result produced was unintelligible
and absurd and against the clear intention of the Legislature. Thus, a person who does an
act preparatory to the commission of an offence is equally liable even when he has not
done any of the other aforementioned acts.102

MANDATORY / DIRECTORY SENSE

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, and regard must be had to the context, subject-
matter and object of the statutory provision in question, in determining whether the same is
mandatory or directory. The Privy Council has said:

‘The question whether provisions in a statute are directory or imperative has very
frequently arisen in this country, but it has been said that no general rule can be laid down, and
that in every case the object of the statute must be looked at. The cases on the subject will be
found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages...’

Generally speaking, the presence of the word “shall” indicates that the statutory provision is a
mandatory one and the presence of the word “may” indicates a directory provision. However, it
has been stated:

‘The courts have taken a view that where the expression ‘shall’ has been used it would
not necessarily mean that it is mandatory. It will always depend upon the facts of a given case,
the conjunctive reading of the relevant provisions along with other provisions of the Rules, the
purpose sought to be achieved and the object behind implementation of such a provision. This
Court, in Sarla Goel v. Kishan Chand, took the view that where the word “may” shall be read
as “shall” would depend upon the intention of the Legislature and it is not to be taken that once
the word “may” is used, it per se would be directory. In other words, it is not merely the use of
a particular expression that would render a provision directory or mandatory. It would have to

102
R v. Oakes (1959) 2 All ER 92
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be interpreted in the light of the settled principles, and while ensuring that intent of the rule is
not frustrated.’

It has time and again been observed that when consequence of nullification on failure to comply
with a prescribed requirement is provided by the statute itself, there can be no manner of doubt
that such statutory requirement must be interpreted as mandatory.103

1. The periods prescribed in the Schedule to the Limitation Act, 1908, for bringing a legal
proceeding are mandatory as the consequence of the expiry of the period of limitation is
provided by Section 3 of the Act in that the Court is enjoined to dismiss a legal proceeding
instituted after expiry of the prescribed period.104
2. The requirement as to registration of certain documents prescribed by Section 17 of the
Registration Act, 1908, is mandatory since the consequence of non-registration is provided
by Section 49 of the Registration Act in that such documents if not registered do not affect
the property comprised therein.105
3. The provisions of Order 21 rules 84106 and 85107 of the Code of Civil Procedure, 1908,
requiring an auction-purchaser to deposit twenty five percent of the purchase money
forthwith and the balance on the fifteenth day from the sale is mandatory, as on failure in

103
Ghulam Hassan v. Jamshed Ali 2008 SCMR 1001
104
Section 3 of the Limitation Act, 1908: Subject to the provisions contained in sections 4 to 25 (inclusive), every
suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First
Schedule shall be dismissed although limitation has not been set up as a defence.
105
Section 49 of the Registration Act, 1908: No document required to be registered under this Act, or under any
earlier law providing for or relating to registration of documents shall:
a. Operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, to or in immovable property; or
b. Confer any power to adopt;
Unless it has been registered.
106
Order XXI rule 84: 1) On every sale of immovable property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five percent on the amount of his purchase-money to the officer
or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
2) Where the decree holder is the purchaser and is entitled to set off the purchase-money under rule 12, the Court may
dispense with the requirements of this rule.
107
Order XXI rule 85: The full amount of purchase-money payable shall be paid by the purchaser into Court before
the Court closes on the fifteenth day from the sale of the property;
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-
off to which he may be entitled under rule 72.
 77

making either of these deposits within the time prescribed, the property has to be re-sold
as provided in Order 21 rule 86.108

Take a look at the following example: If a young daughter wants to go out with friends for the
evening and her parents’ agree, but tell her that she must be home by eleven o’clock. What is her
duty? Does this also mean that her duty is to return by then or not at all in the event that she is
unable to come home by eleven? If a contract is executed with a conjuror to perform at the
daughter’s birthday party, this naturally indicates that one would want the conjuror and his tricks
only for the party. What is his duty? Should he fail to turn up at the birthday party, can he discharge
it later?

EXAMPLES
a. Section 5 of the Sindh Rented Premises Ordinance, 1979 where “shall” is interpreted as
“may”.
b. The word “may” appearing in Section 431 (1) of the National Land Code was in
question.109 The Court took the view that the ownership of immovable property is a very
valuable right and is a fundamental right by Article 13 of the Federal Constitution.
Accordingly, any deprivation of immovable property must be in strict compliance of both
substantial and procedural law. The effect of an order for sale, including the holding of a
public auction, are designed to permanently deprive a registered proprietor of his land. It
is of utmost importance that such deprivation is undertaken in strict compliance of the law.
Thus, the word “shall” was read instead of the word “may”.110

108
Order XXI rule 86: In default of payment within the period mentioned in the last preceding rule, the deposit may
if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall
be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it
may subsequently be sold.
109
Section 431(1) of the National Land Code:
Without prejudice to any other method of service, a notice MAY BE SERVED on a person or body for the purposes
of this Act –
(a) by delivering the notice to the person; or
(b) by delivering the notice –
(i) at the person’s usual or last known place of abode or business to his servant or to an adult member of his
family; or
(ii) at the body’s registered office or usual or last known place of business to its servant or agent; or …
110
Kekatong Sdn Bhd v. Bank Bumiputra Malaysia Bhd [1998] 2 CLJ 266 (CA)
 78

c. The word “shall” in Section 11 of the Madhya Pradesh Opium Act was held to be a
directory provision even though the word “shall” was used.111 In State Of Madhya Pradesh
v. Azad Bharat Finance Co. & another, 112 an Excise Officer, while searching a truck
parked at a bus station, found opium in the truck and challaned five persons including the
owner for the alleged illegal possession and the transportation of the opium. The owner of
the truck had taken a truck under a hire-purchase agreement from a third party. He was
acquitted but the lower courts ordered that the truck be confiscated on the basis that the
provision was mandatory and it had to be forfeited in all circumstances. However, the apex
Courts said that the word “shall” occurring in Section 11 of the Act means “may” and that
it confers discretion on the court to confiscate the vehicle provided it belongs to the
offender. 113 It said that the owner of the truck had neither authorised the offender to
transport opium, nor was there any reason to believe that the owner knew that his vehicle
was likely to be used for transporting contraband opium. Therefore, it should not be
confiscated because confiscation in such circumstances would be tantamount to punishing
a person, who has not committed any offence under the Opium Act.
d. In Prida v. Transamerica Ins. Finance Corp., 114 Transamerica Insurance Finance
Corporation [TIFCO], a premium finance company, mailed the insured a notice of
cancellation stating that the motor vehicle liability insurance policy was cancelled. As
required by Section 627.848(3), Florida Statutes (1993), 115 the notice of cancellation
contained language advising the insured that certain insurance coverage is required by the
financial responsibility law. Section 627.848(3) also requires that this language be ‘in type
or print of which its face SHALL not be smaller than 12 points’. In the instant case, the
required language was set forth in the notice of cancellation in contrasting red colour. The

111
Section 11: In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed,
the property detailed herein below SHALL be confiscated:-
(d) the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and
the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts,
vessels, rafts and conveyances used in carrying it.
112
1966 SCR 473
113
The Supreme Court also held that the provisions of Section 11 are directory.
114
651 So.2d 763 (1995)
115
Every notice of cancellation shall include, in type or print of which its face SHALL not be smaller than 12 points,
a statement that, if the insurance contract or contracts provide motor vehicle liability insurance required by the
financial responsibility law, proof of financial responsibility is required to be maintained continuously for a period of
3 years, pursuant to chapter 324, and the operation of a vehicle without such financial responsibility is unlawful.
 79

language, however, was only in 9.5-point type. The plaintiffs moved for summary
judgment arguing that the 12-point type requirement of Section 627.848(3) is mandatory.
The plaintiffs further alleged that because TIFCO failed to strictly comply with the 12-
point type requirement, the insurance policy was not cancelled. The court found that the
use of the smaller type size did not nullify the notice as Section 627.848(3) did not provide
for the consequences of a violation of that section.
 80

JUDICIAL LEGISLATION

“Judicial legislation” is a name sometimes given to the fact that, by reason of the doctrine of
precedent and the rules of interpretation, the apex courts make new law in the same manner as the
Parliament does.

In the process of interpretation of statutes, judges exert a very considerable influence on the statute
law. This influence is so obvious and clear that sometimes the judges have been considered to be
making law. Interpretation is the process through which the Courts keep abreast of the time. By
this device, the Courts save time and energy of law makers as law makers cannot make changes in
laws every now and then to keep pace with the changing and dynamic conditions of the society.
In other words, the Legislature is not often successful to keep pace with the changing needs and
values nor is it realistic to express that it will have provided for all contingencies and eventualities.
It is, therefore, not necessary but obligatory on the Courts to step in and fill the lacuna. When
Courts perform this function, this begs the question as to whether they do legislate or not.
Undoubtedly, the answer to the question that the courts do legislate judicially. However, that is a
kind of legislation which stands implicitly delegated to them to further the object of the legislation
and to promote the goals of the society. The judiciary may lay down principles, guidelines and
exhibit creativity in the field left open and unoccupied by legislation. In this context, the courts are
merely performing their role that has been assigned to them under the tripartite theory of separation
of powers, i.e. their objective is ascertainment of the legislative intent. Their duty is to find out the
meaning of the law enacted.

However, there are few today who deny that the interpreter of legislation exercises some creative
role. Many commentators have taken the view that the role of judiciary to merely interpret and
declare the law is a concept of a bygone age. In recent years this has become conventional wisdom
even amongst the judges themselves. Since it is fairly settled that the Courts can mould and lay
down the law formulating principles and guidelines as to adopt and adjust to the changing
conditions of a society, the ultimate object being to administer justice. When judges, by judicial
decisions, lay down a new principle of general application of the nature specifically reserved for
the Legislature, they may be said to have legislated and not merely declared the law. In a revealing
lecture given forty years ago at Birmingham University, Lord Diplock, however, had no doubt that
statutory interpretation could amount to legislation:
 81

‘. . . There are also cases – many more than one would expect – where there is room for
dispute as to what the rule of conduct really is. This is so as much with rules laid down by Act
of Parliament as with those which have evolved at common law. . . .

[E]very revenue appeal that comes before the court – generally after any dispute of fact
there may have been has already been decided by the Commissioners – involves a dispute as to
whether a particular kind of gain is taxable, whether a particular kind of document attracts
stamp duty. Whenever the Court decides that kind of dispute it legislates about taxation. It makes
a law taxing all gains of the same kind or all documents of the same kind. Do not let us deceive
ourselves with the legal fiction that the court is only ascertaining and giving effect to what
Parliament meant. Anyone who has decided tax appeals knows that most of them concern
transactions which Members of Parliament and the draftsman of the Act had not anticipated,
about which they had never thought at all. Some of the transactions are of a kind which had
never taken place before the Act was passed: they were devised as a result of it. The court may
describe what it is doing in tax appeals as interpretation. So did the priestess of the Delphic
oracle. But whoever has final authority to explain what Parliament meant by the words that it
used makes law as much as if the explanation it has given were contained in a new Act of
Parliament.’

Lord Diplock was of course fully aware of the many ways in which judicial decisions are different
from legislation but his last sentence recognises the important truth that, within its limits,
interpretation is a form of legislation. It reminds us of a passage of Lewis Carroll’s Through the
Looking Glass:

‘What a beautiful belt you've got on!’ Alice suddenly remarked. (They had had quite
enough of the subject of age, she thought: and if they really were to take turns in choosing
subjects, it was her turn now.) ‘At least,’ she corrected herself on second thoughts, ‘a beautiful
cravat, I should have said — no, a belt, I mean — I beg your pardon!’ she added in dismay, for
Humpty Dumpty looked thoroughly offended, and she began to wish she hadn’t chosen that
subject. ‘If I only knew,’ she thought to herself, ‘which was neck and which was waist!’

Evidently Humpty Dumpty was very angry, though he said nothing for a minute or two.
When he DID speak again, it was in a deep growl. ‘It is a — MOST — PROVOKING — thing,’
he said at last, ‘when a person doesn't know a cravat from a belt! ‘I know it's very ignorant of
 82

me,’ Alice said, in so humble a tone that Humpty Dumpty relented. ‘It’s a cravat, child, and a
beautiful one, as you say. It’s a present from the White King and Queen. There now!’ ‘Is it
really?’ said Alice, quite pleased to find that she HAD chosen a good subject, after all. ‘They
gave it me,’ Humpty Dumpty continued thoughtfully, as he crossed one knee over the other and
clasped his hands round it, ‘they gave it me — for an un-birthday present.’ ‘I beg your pardon?’
Alice said with a puzzled air. ‘I’m not offended,’ said Humpty Dumpty. ‘I mean, what IS an un-
birthday present?’ ‘A present given when it isn’t your birthday, of course.’ Alice considered a
little. ‘I like birthday presents best,’ she said at last. ‘You don’t know what you’re talking about!’
cried Humpty Dumpty. ‘How many days are there in a year?’ ‘Three hundred and sixty-five,’
said Alice. ‘And how many birthdays have you?’ ‘One.’ ‘And if you take one from three hundred
and sixty-five, what remains?’ ‘Three hundred and sixty-four, of course. Humpty Dumpty
looked doubtful. ‘I’d rather see that done on paper,’ he said. Alice couldn’t help smiling as she
took out her memorandum-book, and worked the sum for him:

365
1
----
364
----

Humpty Dumpty took the book, and looked at it carefully. ‘That seems to be done right
—’ he began. ‘You’re holding it upside down!’ Alice interrupted. ‘To be sure I was!’ Humpty
Dumpty said gaily, as she turned it round for him. ‘I thought it looked a little queer. As I was
saying, that SEEMS to be done right — though I haven’t time to look it over thoroughly just
now — and that shows that there are three hundred and sixty-four days when you might get un-
birthday presents — ’ ‘Certainly,’ said Alice. ‘And only ONE for birthday presents, you know.
There’s glory for you!’ ‘I don’t know what you mean by “glory”, Alice said. Humpty Dumpty
smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-
down argument for you!”’ ‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice
objected. ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just
what I choose it to mean — neither more nor less.’ ‘The question is,’ said Alice, ‘whether you
 83

CAN make words mean so many different things.’ ‘The question is, ‘said Humpty Dumpty,
‘which is to be master — that’s all.’

Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began
again. ‘They’ve a temper, some of them — particularly verbs, they’re the proudest — adjectives
you can do anything with, but not verbs — however, I can manage the whole lot of them!
Impenetrability! That’s what I say!’ ‘Would you tell me, please,’ said Alice ‘what that means?’
‘Now you talk like a reasonable child,’ said Humpty Dumpty, looking very much pleased. ‘I
meant by “impenetrability” that we’ve had enough of that subject, and it would be just as well
if you’d mention what you mean to do next, as I suppose you don't mean to stop here all the rest
of your life.’ ‘That’s a great deal to make one word mean,’ Alice said in a thoughtful tone.
‘When I make a word do a lot of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’
‘Oh!’ said Alice. She was too much puzzled to make any other remark. ‘Ah, you should see ‘em
come round me of a Saturday night,’ Humpty Dumpty went on, wagging his head gravely from
side to side: ‘for to get their wages, you know.’

(Alice didn’t venture to ask what he paid them with; and so you see I can’t tell YOU.)

This then brings us to the next impending issue and that is: How to describe the extent of judicial
creativity in statutory interpretation? A helpful image was that used by Reed Dickerson in his
book, The Interpretation and Application of Statutes (1975). Dickerson used the simile of the
restorer of an ancient vase. Everything depends on how much of the original vase was available to
him. Sometimes he was simply making a substitute for a small piece missing from the body of the
vase. ‘Here he is guided by the adjacent contours, and, if he is skilful, the result blends well
enough to attract little or no attention. . . . His job is harder if the vase has been decorated, but
the difficulty is small if the decoration follows a discernible pattern’. In this activity there was
some creativity but it was of the lowest order. It still fell within the general heading of
“ascertainment of meaning” in the sense of discovering something that is in a real sense latent in
the material. But the position was plainly very different if the craftsman had only a single piece
and the decoration was free and non-recurring. Here by imaginative speculation he must attempt
to produce something “in the general style” of the original without being able to pretend that his
effort would necessarily approximate to it very closely. Here the element of creativity was very
 84

considerable. The greater the range of choice open to the judge, the greater his law-making as
opposed to his law-finding function.

Whatever be the case, the Courts are warned that they are not entitled to usurp the legislative
function under the guise of interpretation. Caution is all the more necessary in dealing with a
legislation enacted to give effect to policies that are the subject of bitter public and parliamentary
controversy for in controversial matters there is room for differences of opinion as to what is
expedient; what is just and what is morally justifiable; it is the Parliament’s opinion in these matters
that is paramount.

Judges should not go on proclaiming that they are playing the role of the law. Some judges do
proclaim that they perform creative function even in interpretation. But such an attitude may lead
less disciplined amongst them to forget the dividing line between adjudication and legislation and
lead to conclusions which have a strong legislative flavour. So it is wise to follow the traditional
expression and to call every process of construction a search for “intention”, express or implicit
in the statute. Lord Radcliffe said:

‘Judges will serve the public interest better if they keep quiet about their legislative
function. No doubt, they will discreetly contribute to changes in the law, because they cannot
do otherwise, even if they would. But the judge who shows his hand, who advertises what he is
about may indeed show that he is a strong spirit, unfettered by the past; but I doubt very much
whether he is not doing more harm to the general confidence in the law as a constant, safe in
the hand of the judges, than he is doing good to the laws’ credit as a set of rules nicely attuned
to the sentiment of the day.’

The judges have no doubt a genuine creative role but as warned by Lord Scarman:

‘The Constitution’s separation of powers, or more accurately functions, must be

observed if judicial independence is not to be put at risk. For if people and Parliament come to
think that the judicial power is to be confined by nothing other than the judge’s sense of what
is right, confidence in the judicial system will be replaced by fear of it becoming uncertain and
arbitrary in its application. Society will then be ready for Parliament to cut the power of judges.
Their power to do justice will become more restricted by law than it needs to be, or is today.’