INTERPRETATION

OF STATUTES
Notes Compiled by Aznee Marzook

DEPARTMENT OF LAW
UNIVERSITY OF JAFFNA
 Interpretation of Statutes | Aznee Marzook

INTERPRETATION OF STATUTES
OUTLINE

1. Introduction to Interpretation of Statutes

2. Jurisprudential Concepts
 Naturalist Interpretation
 Positivist Interpretation
 Purposive Interpretation
 Realist Interpretation

3. Rules of Interpretation
 Literal Rule
 Golden Rule
 Mischief Rule

4. Theories of Interpretation
 Literal Theory
 Purposive Theory
 Judicial Tree Theory
 Teleological Theory

5. Internal Aids & External Aids

6. Constitutional Interpretation

7. Maxims

8. Presumptions

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INTRODUCTION
Interpretation is the process by which the court of law ascertains the will/intention of the
legislation through the wording of enactment is technically called interpretation.

The function of a court is to give meaning to a statute according to the intention of legislators.
From that function the court may not deviate from the will of the parliament/legislature. The
courts only “produce/draw out” the intention of Parliament from the actual words of statutes.
The primary aim of interpretation is to find out the legislative intention in order to solve the
ambiguity.

 Statute - The will of the Legislature.

 Ambiguity - A word has no meaning or it has more than one meaning
 A conceptual ambiguity - Where the provisions of an Act conflicts with the object and
purpose of the Act.
 A syntactic ambiguity - Where there is a doubt as to the meaning of the words or
phrases used in the statute.
 A contextual ambiguity - Where two sections of a statute conflict with each other and
creates difficulties for interpretation.

Interpretation focuses on the ordinary/objective meaning of statutory provisions, it is

important to analyze what is meant by the key phrases/words which are used to describe that
meaning. Objective meaning covers both the meaning of the words in everyday language and
technical meanings appropriate to the context. Thus, an 'ordinary meaning' or 'grammatical
meaning' does not imply that the judge attributes a meaning to the words of a statute
independently of their context or of the purpose of the statute. The governing idea here is that
if a statutory provision is understandable in the context of ordinary language, it ought, without
more, to be interpreted in accordance with the meaning an ordinary speaker of the language
would ascribe to it as its obvious meaning, unless there is sufficient reason for a different
interpretation.

By enabling citizens to rely on ordinary meanings unless notice is given to the contrary, the
legislature contributes to legal certainty and predictability for citizens and to greater
transparency in its own decisions, both of which are important values in a democratic society

Hazarimad Kuthilia v Income Tax Officer Ambala – Stated rules for construction of statutes –
1. Where the language is plain and unambiguous, no need to resort to the rules of
interpretation
2. Words should be given their ordinary and familiar meaning having regard to the context in
which they are used
3. It must be assumed that the legislature knew in its mind and understood the meaning of
the terms employed by it and thus the terms do not contain a hidden meaning which only
the study of a powerful intellect can discover

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CHALLENGES IN INTERPRETING STATUTES

 Ellipsis - when the draftsman refrains from using certain words that they regard as implied
automatically.
 Use of broad terms – broad terms may change over time.
 Unforeseeable developments – when there have been social or economic changes that
influence the meaning of words.
 Inadequate use of words – printing errors, drafting errors.

TRADITIONAL RULES RELATING TO STATUTORY INTERPRETATION

1. Literal Rule - This rule states that if the words of a statute are clear, it is mandatory to
follow them even though they lead to manifest absurdity;
2. Mischief rule - This rule requires the suppression of the mischief and advance the remedy
proposed by the statute;
3. Golden Rule - This rule gives effect to the plain meaning to the words used by the
Legislature, unless injustice and absurdity would result.

SUBORDINATE RULES RELATING TO STATUTORY INTERPRETATION

Subordinate rules relating to statutory interpretation deal with legal maxims, presumptions,
internal aids, ouster clauses, mandatory and directory provisions and other statutory words or
phrases which have acquired special interpretation.

MODERN RULES RELATING TO STATUTORY INTERPRETATION

1. Purposive rule - An expansive approach is taken in regard to statutory interpretation by

reference to extrinsic aids (Pepper vs Hart).

Many parliaments have amended Interpretation Acts outlining various documents that could
be consulted in order to ascertain the intention of parliament.

2. Dynamic rules - Have been devised by courts;

(a) To interpret the Constitution, as a living document which must change with changing
times;
(b) To interpret legislation giving effect to treaties, so that uniformity of international
standards is maintained;
(c) To fill gaps in legislation or correcting any errors in legislation in a manner consistent
parliamentary or constitutional supremacy.

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FUNDAMENTAL JURISPRUDENTIAL CONCEPTS

NATURALISTS’ INTERPRETATION

Thomas Aquinas defines Natural Law as “an ordinance of reason for the common good”

Thus the naturalists’ interpretation of statute must fulfill two purpose

1. Quality – a qualitative interpretation (reflect the aspirations of people)
2. Potential Good – the law must be interpreted in a manner that achieves maximum
potential good for the society at large (maximum benefit)

Quality of Law

Once Parliament enact a statute on particular subject (Restriction on right to publication)

general public voluntarily abandoning their legislative power on that subject. But that does not
mean they are abandoning their natural rights on that subject. They are voluntarily delegate
the power of legislation to Legislature in trust and they permit Legislature place the restriction
upon their natural rights for legitimate purposes only. On the other hand general public expect
that the legislature shall not authorize the immoral and unreasonable Laws. (Parliament shall
not legislate to legalize Torture) Society expect some quality from the law to maintain or
preserve their natural rights of individual. That quality should be in line with their conscience.
The law should reflect aspiration of the people. Therefore, at the end, the interpretation of a
statute is to maintain and bring out the quality of law.

Smith vs. Hughes - Some prostitutes were accused of soliciting contrary to the street offences
Act 1958 which made it offence to “soliciting in a street… for the purpose of prostitution” D
along with other prostitutes sat on the balcony tapping on the widow to attract the attention of
men in the street. In this case interpretation of statute should bring out the quality, through
the legislative intention, to prevent the immoral and to ensure the natural rights of people.
Court held it is an offence.

Naturalists’ interpretation of constitution

The duty of the judge is to interpret the Constitutional provisions in a manner that enhance the
social security, equality and protection of individual rights.

Article 12 of the Constitution read as “everyone is equal before the law and are entitled to
equal protection by the law” The interpretation of this article ought to have enhanced the
equal protection of individual. In practice naturalist interpretation lacks in Sri Lanka.

Vimalaruban Case - Vimalaruban was arrested by the armed forces and detained in a camp. He
was tortured during his detention. He filed a FR case under Art.12. However, Mohan Peries J.
Held that to some extent the protection given under A.12 read with 15 (7) can be suspended
for prisoners.

 Nallaratnam Sinharaja Case

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POSITIVISTS’ INTERPRETATION

H.L.A. Hart claims that morality and law have no connection necessarily.

John Austin defines law as a ‘command by a sovereign for habitual obedience, which is backed
by the threat of sanctions’

Positivists’ interpretation is loyal to the doctrine of Parliamentary Supremacy – Court will

directly honor the Natural and ordinary meaning of statute

R v Harris (1836) 7 C & P 446 - Stabbing, cutting, shooting or causing hurt by the weapons is
punishable offences under the “Offences Against the Persons Act” D caused hurt by hitting on
the nose. Whether such person is committed any offence under the act? Court strictly interpret
the act and held that such hurt has not caused by weapon; therefore the suspect did not cause
any offence.

REALISTS’ INTERPRETATION

Oliver Holmes defines law as “the prophecies of what the court will do, i.e. whatever the judge
pronounces from the bench is law”

In this sense, Realists apply their own beliefs and convictions into the interpretation

Jayaranjan vs. Jeyaranjan - Preferential right of the father Vs. Best interest of the child. Court
ruled that the best interest of the child was paramount.

A.G. vs. Kamaladharachi - Prior to this case the position of the law was that when the
prosecutrix voluntarily enters into a room with the accused there is consent. Dissenting Judge
refused to accept that the mere act of voluntary walking into the room with accused is not a
consent.

Tennakoon v Tennakoon - The interpretation of “either spouse” means the innocent spouse –
continuation of the Matrimonial fault principle.

SOCIOLOGICAL INTERPRETATION

The interpretation of the Statute must reflect the social changes and needs.

As per the Maintenance Ordinance of 1889, only the husband had a duty to maintain the wife,
now as per the Maintenance Act both spouses have a reciprocal obligation to maintain each
other.

Sepala Ekanayake vs. The A.G. – When the plane was hijacked, there was no law to make the
act a punishable offence, however, the magnitude of the act required penal sanctions. The law
was interpreted in a manner which gave retrospective effect to the statute in order to impute
liability.

Bulankulama Vs. Minister of Defense (Eppawala Case) - Natural resources must be used for
the benefit of the public in manner which preserves the common good.

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LEGISLATIVE INTENTION
Statutory interpretation means, the judiciary / judges find the finding a legal meaning in a
particular factual situation. So the duty of judges is to find what was the intention or
willingness of the parliament at the time of enactment of statutes. Some theorists maintain
that the Parliament is legal person (is a non-existing person) is not capable of forming or having
intention in its own.

Black-Clawson case - Lord Simon emphasised that the courts are to ascertain the meaning of
what Parliament has said, and not what Parliament meant to say.

Stock v Franks Jones Ltd. [1978] 1 AER 948 - A statute is to be construed according to the
intent of them that makes it, and the duty of the judicature is to act upon the true intention of
the legislature.

There are 4 types of views on legislative interpretation

1. It is to construct meaning of the text intended by legislature
2. It is to supplement the meaning intended by the legislature
3. To perform quasi legislation
4. To input the ideas of the judges

Statutory interpretation involves in three sets of enquiries

1. Inquiry upon statutory text
2. Inquiry upon intention of parliament
3. Inquiry to harmonize the two

Moray V. Fayles Meat Ltd. [1999] 1 AER 769 – Courts must lay down general working
principles to resolve these issues. But in doing so, they should avoid laying down so-called tests
to be applied in every case because the danger in prescribing and designating such tests is that
it may divert attention from the language used in the statutory provision and instead
encourage an approach not intended by the legislature.

Union of India V. Elphinstoe – The legislative intent in cases that fall in the penumbra of
uncertainty is a fiction representing the attitude of judges in arriving at a solution by striking a
balance between the letter and spirit of the statute without acknowledging that they have in
any way supplemented the statute.

Per Lord Scarman in 418 HL Official Report Col 65 (9 March 1981) - “If Parliament … says one
thing but means another, it is not for the courts to correct it. That general principle must surely
be acceptable in our society. We are not to be governed by Parliament’s intention but by
Parliament’s enactment.”
Criticism – Judges are too tied to the wording of the statutory text. They are looking at the
wrong subject-matter when interpreting statutes. They are adopting too narrow view of the
context in which the statutory text is to be read.

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THE INTENTION OF THE PARLIAMENT

The statute is involving in different level of enactment process

1. A member/ Committee drafts a statute: based on their ideas or intention
2. Legal draftsman department drafts the bill
3. They place the draft in Parliament for debate
4. Members debate and adopt amendments for the bill
5. If majority members accept by voting the bill it becomes a law/statute

If different set of people have involved and contributed to the enactment of a statute; whose
intention is the intention of legislature? Role of the Judge is to seek the intention of the
legislative author from what is written in the text, and not to seek to construct a text on the
basis of the subjective intention of the Judge.

In Re Race Relationship Board case - “What was the original intention of the Parliament when
statute embodied.”

There are two models to find the intention of parliament

1. Majoritarian Model/Approach - What was the intention/will of the majority when they
pass the law
Criticism - Equally plainly the phrase cannot mean the intention of the majority who voted
for the statute as this will almost certainly have been constituted by different persons at
the different stages of the passage of the Bill and, in any event, it would be rash to assume
that all those who voted for it have the same purpose/intentions with regard to the a
particular piece of legislation.

2. Agency Model/Approach - What was the intention of the draft man of the statutes / the
intention of the committee those appointed to draft the statutes. Or the intention of the
Political party/ experts who proposed the statutes shall consider as “intention of
parliament”. Principal is responsible for the acts of agent. The drafters of the bill are agents
of the parliament. promoters give instructions to the drafter who can be regarded as their
agent.

Black Clawson International vs. Paper werek - Lord Reid, “we often say that we are looking for
the intention of Parliament but that is not quite accurate. We are seeking the meaning of
words which parliament used and not what they meant”

Ealing London Borough Council vs Race Relationship Board (1972) AC 342 - As Per Lord
Simon; “The court sometimes asks itself what the draftsman must have intended. This is
reasonable enough; the draftsman knows what the intention of the legislative initiator is; he
knows what Law of construction the courts will apply; and he will express himself in such a way
as accordingly to give effect to the legislative intention”

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CONSTRUCTIVE INTENTION – JUDICIAL CONSTRUCTION

The duty of the Judiciary is to maintain a balance between the intention of Parliament and the
textual meaning of statute. English law takes the view that the two are closely connected, but
that primacy is to be given to the text in which the intention of Parliament has been expressed.

Blackstone (Commentaries on the Laws of England, University of Chicago Press, 1979) - The
fairest and rational method of interpret the will of the legislator is by exploring intention at the
time when the law was made, by signs the most natural and probable. And these signs are
either the words, the context, the subject matter, the effect and consequence or the spirit and
reason of the law”

According to Blackstone words are generally to be understood ‘in their usual and most known
signification’. If words happen still to ambiguous, judges may construct their meaning from the
context, which includes the preamble and laws made by the same legislators”

FINDING THE INTENTION

Intention can be divided into two

1. Subjective intention/Traditional View - Finding intention of parliament from the words of
the statutes (Literal Approach)
2. Objective Intention/Purposive View - Finding the intention of the parliament with the aids
of external materials. (Contextual Approach)

Traditional View

The legislature expresses its intention through the statutes, the wording used therein is the
sole and best source of the legislature's intent. In all ordinary cases, hence, the language
employed is the determinative factor of legislative intention. The intention of the legislature
must be found in the words used by the legislature itself. The question is what may be
supposed to have been intended but what has been said in the statute.

Northern Securities Co. v US 193 US 197 - Justice Holmes: "[The judges'] function is merely
academic to begin with - to read English intelligently. I do not care what their - the legislature's
- supposed intention was; I only want to know what the words mean."

Newbury District Council v SOS for the Environment [1980] 1 AER 731 - When words have a
plain meaning, courts are not to busy themselves with supposed intention or with the policy
underlying the statute.

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Purposive View

As we have noted, the words used by the legislature do not always bear a plain meaning.
Moreover, judges often differ on the issue of whether certain words are plain. Even when they
agree on it, differences of opinion may result in disagreement. Furthermore, a bare mechanical
interpretation of the words and application of a legislative intent devoid of concept of purpose
will reduce most of the remedial and beneficient legislation to futility. Hence, it is better to look
at the purpose and object - the spirit - of the statute to interpret the meaning.

In intention of the legislature according to purposive view assimilates two aspects:

1. Meaning of the words
2. Purpose and object/reason and spirit pervading through the statute

Henrietta Muir Edwards v AG of Canada AIR 1930 PC 120 - K.Iyer J: "The interpretive method
must be illuminated by the goal though guided by the word... [T] o be literal in meaning is to
see the skin an miss the soul. The judicial key to construction is the composite perception of the
deha (body) and the dehi (spirit) of the provision."

Court typically focus on the objective meaning which be attributed to a provision in the context
of the usages of ordinary language, how the provision fits into the rest of the law, or how the
words relate to the declared purpose. But the courts may arrive at their interpretation on
appropriated occasions in the light of evidence as to what was subjectively intended.

As per Pepper V. Hart, Even where Hansard is consulted, it is clear that its content can only be
used to resolve ambiguities in the enacted words, not to justify disregarding those words
altogether.

There are three principal situations in which people in general and judges in particular speak of
the intention of Parliament.

First – whenever the meaning of specific words is under consideration, the idea that a
particular meaning is that which would or would not have been attached to a word or phrase
by the average Member of Parliament, sitting at the time when the statute was passed, may be
expressed by some such statement

Second - when the consequences of a particular construction/interpretation are under

consideration, the idea that a particular consequence might well have been in the mind of the
average Member of Parliament is often expressed by some such statement as ‘that was likely
to have been the intention of Parliament’

Third - although it is impossible to identify the individual members whose purpose it was, it is
common to speak of the purpose, aim or object of a statute as the intention of Parliament.

Modern trend - what the average Member of Parliament of a particular epoch (era) would
have meant by certain words or expected as the consequences of statutory provision.

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English Law - By giving effect to the meaning which the normal speaker of English would
attribute to the words in their context, the judges are giving effect to the normal expectations
of citizens are upholding this conception of Rule of Law.

Whether statutory wording could be ignored or the meaning of statutory language ironed out
in order to prevent an injustice, or supposed injustice, which, it was thought, could not have
been contemplated by Parliament. Answer is always been negative, and the established view
seems to be that, when the question is whether Parliament did or did not intend a particular
result, the intention of Parliament is what the statutory words mean to the normal speaker of
Sinhala.

THREE CONSTITUTIONAL REASONS TO FIND THE INTENTION OF THE PARLIAMENT

1. It expresses the subordination of the judiciary to Parliament.

JW Hurst (In dealing with statutes -1982, New York) p 33 - This formula reminds all who deal
with a statute that they are operating in a field of law in which they are not free to define
public policy simply according to their own judgment.

The courts try to give effect to the instructions they have received from Parliament and do not
simply decide as they think best. Subordinates do receive instructions, but they are usually left
with a degree of autonomy about how to execute them.

2. Desire of the judiciary to deny/misplay a large creative role in the interpretation of statutes.

Magor and St Melons RDC v Newport Corpn – Denning, 'We do not sit here to pull the
language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy
thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the
intention of Parliament and of Ministers and carry it out, and we do this better by filling in the
gaps and making sense of the enactment than by opening it up to destructive analysis.'

Duport Steels Ltd vs. Sirs 1980 1 All ER 529 - Sec 13(1) of the Trade Union and Labour Relations
Act 1974 (as amended) gave an immunity from suit for 'an act done by a person in
contemplation or furtherance of a trade dispute'. There was no specific provision which
prevented this immunity extending to actions directed against employers other than the one
with whom the employees were in dispute. Nevertheless, the Court of Appeal, presided over by
Lord Denning MR, granted an injunction against union officials who were seeking to induce
their members working for private steel companies to come out on strike in order to make more
effective their strike action against the nationalized British Steel Corporation. The House of
Lords unanimously reversed the decision, and categorically denounced the approach of the
Court of Appeal.

“My Lords, legislation which gives effect to policies that are the subject of bitter public and
parliamentary controversy, it cannot be too strongly emphasized that the British Constitution,
though largely unwritten, is firmly based upon the separation of powers: Parliament makes the
laws, the judiciary interprets them. When Parliament legislates to remedy what the majority of
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its members at the time perceive to be a defect or lacuna in the existing law... the role of the

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judiciary is confined to ascertaining from the words that Parliament has approved as expressing
its intention what that intention was, and giving effect to it. Where the meaning of the
statutory words is plain and unambiguous. It is not for the judges to invent ambiguities as an
excuse for failing to give effect to its plain meaning because they themselves consider that the
consequences of doing so would be inexpedient, or even unjust or immoral. In controversial
matters such as are involved in industrial relations there is room for differences of opinion as to
what is expedient, what is just and what is morally justifiable. Under our Constitution it is
Parliament's opinion on these matters that is paramount."

3. Legal certainty

The intention of Parliament differs from judge to judge. The certain injustice of a legislative text
may be preferable for the citizen in the long run than the uncertainty caused by judicial
interventions to correct injustices. Therefore, Judges were expected to adhere with Intention
of Parliament.

RECENT DEVELOPMENTS

Driedger in ‘Construction of Statutes’ states that the intention of the legislature is a fiction. It
may be obtained from
1. Ordinary meaning of words of statute
2. Inference or presumptions flowing from the enacted words
3. Declaratory statement of Parliament as to the precise meaning of words

Wickremaratne V. Kamalawickrema - The interpretation shall maintain and obey the intention
of Parliament but not prevent the development of the Law. That is the basic principle of the
interpretation

In Ravikarunanayake case (Anticipatory bail case) - The court examine the intention of the
parliament they referred the speech of Mr. G.L. Peries but at the time he was the member of
opposition party (UNP member). Still there is criticism that court has no authority to refer the
speech of G.L. Peries

Black Clawson International Ltd case - It was criticized that, the words used in a statutes are
not the true intention of the parliament. The judiciary shall not determine the intention of
parliament from the limited words of the statutes.

Solaman vs Solaman - The intention of Parliament is an invisible concept created by the Court.
In ordinary sense, the intention of parliament may be identified from the statements of MP or
Judges. Now court of law rejected the proposition of literal approach and started to interpret
based on “what the mischief/ wrong the statute seeks to cure”. It is proper to name as
“Statutory intention than the Parliamentary intention”

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BASIC PRINCIPLES OF INTERPRETATION

1. FIND LEGISLATIVE INTENT AND GIVE EFFECT TO IT

It has two elements; (1) Words; (2) Purpose or object, to be considered to find the intent.

2. STATUTE MUST BE READ AS A WHOLE IN ITS CONTEXT

When a question arises as to the meaning of a certain provision in a statute, it is both

legitimate and proper to read that provision in its context. The intention of the legislature must
be found by reading the statute as a whole in its context. The same word may mean one thing
in one context and another in a different context. For this reason the same word used in
different sections of a statute or even when used at different places in the same clause or
section of a statute may bear different meaning. The conclusion that the language used by the
legislature is plain or ambiguous can only be truly arrived at by studying the statute as a whole.

AG v HRH Prince Ernest Augustus [1957] 1 AER 49 - The context here means:
1. The statute as a whole;
2. The previous state of the law;
3. Other statutes dealing with the same subject material;
4. The general scope of the statute and;
5. The mischief it was intended to remedy/problem it was intended to solve

Bently v Rotherham [1876] 4 Ch D 588 - This rule is of general application as even the plainest
terms may be controlled by the context.

Two points to remember:

1. Context must be considered in the first instance, not merely at some later stage when
ambiguity might be thought to arise; and,
2. Consideration of context is to assist the court in its fundamental duty to give meaning
to the legislative intent and not to deflect from it

Jennning v Kelly [1939] 4 AER 464 - The principle that the statute must be read as a whole is
equally applicable to different parts of the same sections. The section must hence be construed
as a whole whether or not one of the parts is a saving clause or a proviso — a section is to be
made of all the parts together; it is not permissible to omit any part of it; the whole section
should be read together. Subsections in a section must be read as parts of an integral whole
and as being interdependent, each portion throwing light, if need be, on the rest.

3. STATUTE TO BE CONSTRUED TO MAKE IT EFFECTIVE AND OPERATIVE

A statute or any enacting provision therein must be so construed to make it effective and
operative. A construction which renders any provision in the Act insignificant and defeats the
object of the provision is avoided even if the language of the statute suffers from a slight
change.

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Maxim: ut res magis valeat quam pereat - It is better for a thing to have effect than to be made
void- the construction of a rule should give effect to the rule rather than destroy it. Intention of
the legislature must not be allowed to go in vain.

Nakes v Doncaster Amalgamated Collieries [1940] 3 AER 549 - When there are two
constructions possible from a provision, of which one gives effect to the provision and the
other renders the provision inoperative, the former which gives effect to the provision is
adopted and the latter is discarded on the view that Parliament would legislate only for the
purpose of bringing about an effective result.

Manchester Ship Canal Co. v Manchester Racecourse Co. [1904] 1 Ch 352 - Harwell J: “Unless
the words were so absolutely senseless that I could do nothing at all with them, I should be
bound to find some meaning, and not to declare them void for uncertainty.”

Two exceptions:

1. It is impossible to resolve the ambiguity

Fawcett Properties v Buckingham County Council [1960] 3 AER 503 - Lord Cohen: “A law which
affects fundamental rights and is so vague that the person applying it are in a boundless sea of
uncertainty may be declared unconstitutional and void.”

2. Absolute intractability of the language used

State of Punjab v. Prem Sukhdas [1977] 3 SCR 403 - This doctrine, however, cannot be pushed
so far as to alter the meaning of the clear words used in an enactment and to, in effect, repeal
statutory provisions, by making these useless without holding them void.

4. IF MEANING IS PLAIN EFFECT MUST BE GIVEN TO IT IRRESPECTIVE OF CONSEQUENCES

When the words of a statute are clear, plain or unambiguous i.e., they are reasonably
susceptible to only one meaning, the courts are bound to give effect to that meaning
irrespective of consequences. It is said that in such a situation the Act speaks for itself. This
rule, in reality, means that after you have construed the words and have come to the
conclusion that they can bear only one meaning, your duty is to give effect to that meaning.

Sussex Peerage Case [1844] 11 Cl & F 85 - Tindal C.J.: “If the words of the statute are in
themselves precise and unambiguous, then no more can be necessary than to expound those
words in their natural and ordinary sense. The words themselves do alone in such cases best
declare the intent of the lawgiver.”

Emperor v Benoarilal Sarma AIR [1945] PC 48 - Viscount Simons: “Again and again [we have]
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.”

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GUIDING RULES
1. 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 and what has not been said. Hence,
an interpretation that is only justified by addition/subtraction/rejection of words should be
avoided.

A. Avoiding addition or substitution of words

Crawford v Spooner [1846] 6 Moore PC1 - We cannot aid the legislature's defective phrasing of
an act, we cannot add or mend and, by construction, make up deficiencies which are left there.

Blyth v Blyth [1966] 1 ALL ER 524 - HOL refused to read the word 'satisfied' in section 4 of the
Matrimonial Causes Act 1950 to mean 'satisfied beyond reasonable doubt' even though the
latter would have made it more precise.

B. Judiciary cannot supplement the statute - it cannot legislate for causes omissus in a statute

When a matter should have been included in the statute but is not, the statute cannot be
supplied by courts. In other words, when the legislature has overlooked something, the court
cannot remedy it with any additional words or phrases. It is to be normally presumed that the
legislature does not make causes omissus.

Gladstone v Bower [1960] 3 AER 353 - The Agricultural Holdings Act, 1948 in section 23, which
applied to a tenancy from year to year, provided that notice to quit shall be invalid if it
purported to terminate the tenancy before the expiration of twelve months from the end of
the then current year of tenancy. Section 2(1) applied the same provision to cases where land
was let for an interest less than a tenancy from year to year and by section 3(1) provision was
made that a tenancy for a term of two years or more was to continue after the expiration of
the term as a tenancy from year to year. These provisions of the Act, decided in the court of
Appeal, did not cover the case of a tenancy for eighteen months which terminated on expiry of
the term without a quit notice. The Act so interpreted, applied to tenancies for two or over two
years, from year to year and under one year, but not to those between one and two years.
There was no apparent reason why they should not have been included by the Legislature.

Devlin LJ pointing out that this was apparently casus omissus, observed: "The court will always
allow the intention of a statute to override the defects of wording but the court's ability to do
so is limited by recognized canons of interpretation. The Court may, for example, prefer an
alternative construction which is less well fitted to the words but better fitted to the intention
of the Act. But here, there is no alternative construction; it is simply a case of something being
overlooked. We cannot legislate for casus omissus. I may be sure in this case that I know
exactly what Parliament would do if it perceived a gap. But, 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."

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C. Avoid rejection of words

Efforts should be made to give meaning to each and every word used by the Legislature. An
interpretation that would omit or avoid a word used in the statute should be avoided. The
courts always presume that the Legislature inserted every part and every word of a statute for
a purpose and the legislative intention is that every part of the statute should have effect.

Quebec Railway, Light, Heat & Power Co v Vandry, AIR [1920] PC 181 - The Legislature is
deemed not to waste its words or to say anything in vain.

Hill v Williams Hill (Park Lane) Ltd, [1949] 2 All ER 452 (HL) - Gaming Act of 1845, s.18: All
contracts or agreements—by way of gaming or wagering, shall be null and void, and no suit
shall be brought or maintained in any court of law and equity for recovering any sum of money
or valuable thing alleged to be won upon any wager.

Facts: Plaintiffs lost a certain sum in a betting transaction and in consideration of the plaintiffs
refraining from following up the procedure with Tattersall's Committee which would have led
to the defendant being then and there posted as a defaulter, promised to pay the said sum in
instalments to the plaintiffs. On the defendant failing to pay, the plaintiffs brought the suit for
recovery of the sum basing their claim on this fresh agreement as distinct from the betting
transaction.

Held: Countering the argument that the second limb of section 18 beginning with "and no suit
shall be filed" was only a procedural counterpart of the first and was applicable only to suits
brought on wagering contracts declared by first limb to be void, the House of Lords held that
although the agreement contained a new promise for good consideration, which did not fall
within the first limb of section 18, nevertheless, it was a promise to pay money "won upon a
wager" and was not enforceable under the second limb of section 18.

Viscount Simon observed: "Though a parliamentary enactment (like parliamentary eloquence)

is capable of saying the same thing twice over without adding anything to what has already
been said once, this repetition in the case of any Act of Parliament is not to be assumed. When
the Legislature enacts a particular phrase in a statute the presumption is that it is saying
something which has not been said immediately before. The rule that a meaning should, if
possible, be given to every word in the statute implies that, unless there is good reason to the
contrary, the words add something which would not be there if the words were left out."

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Exceptions to the rule

Inco Europe Ltd v First Choice Distribution (a firm), [2000] 2 All ER 109 (H L) - In discharging its
interpretative function, the court can correct obvious drafting errors and so in suitable cases
"the court will add words, or omit words or substitute words". But "before interpreting a
statute in this way the court must be abundantly sure of three matters:
1. The intended purpose of the statute or provision in question,
2. That by inadvertence the draftsman and Parliament failed to give effect to that purpose in
the provision in question; and,
3. The substance of the provision Parliament would have made, although not necessarily the
precise words Parliament would have used, had the error in the Bill been noticed.

Even then courts must refrain from doing so if the alteration in language is too far-reaching or
too big or when the subject matter calls for strict interpretation such as a penal provision. The
mischief rule or purposive rule is generally used to add/subtract/remove words.

ADDITION OF WORDS

Craies Statute Law, 7th Edn, p 109: "Where the alternative lies between either supplying by
implication words which appear to have been accidentally omitted, or adopting a construction
which deprives certain existing words of all meaning, it is permissible to supply the words."

Jones v Wrotham Park Settled Estates, [1979] 1 All ER 286, (HL) - Lord Diplock: But before any
words are read to repair an omission in the Act, it should be possible to state with certainty
that these or similar words would have been inserted by the draftsman and approved by
Parliament had their attention been drawn to the omission before the Bill passed into law.

Ramaswamy Nadar v State of Madras, AIR [1958] SC 56 - When a choice has to be made out
of two constructions, both of which require reading of some additional words, the court will
naturally prefer that which is more in consonance with reason or justice.

REJECTION OF WORDS

Since courts strongly lean against reducing a statute to a futility, it is permissible in such cases
to reject the surplus words to make the statute effective and workable.

McMonagle v Westminster City Council, [1990] 1 All ER 993 - The court had to interpret the
Local Government (Miscellaneous Provisions) Act which provided that it was an offence to use
premises as a live sex encounter establishment without a licence from the local authority. The
definition of 'sex encounter establishment' in the 1982 Act referred to performances, services
and entertainments 'which are not unlawful'. The defendant claimed that the use of his
premises for peep shows was unlawful and that therefore he could not be convicted.

Held: The literal reading of the words as contended by the appellant would have frustrated
substantially the purpose of the enactment and would have led to the absurdity of supposing

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that the intention of the legislation was to subject to licensing control only those
establishments conducted in the least offensive way and to leave those which pander more
outrageously to the taste of voyeur immune from any control or legal restraint. The House of
Lords, therefore, held that the words "which is not unlawful" should be treated as surplusage
and as having been introduced by incompetent draftsmanship.

Lord Bridge: "It is a canon of construction that, if it be possible, effect must be given to every
word of an Act of Parliament or other document; but that, if there be a word or a phrase
therein to which no sensible meaning can be given, it must be eliminated...I recognise that this
is a strong course to take in construing a statute and one which imputes an unusual degree of
ineptitude to the draftsman .. the presumption that every word in a statute must be given
some effective meaning is a strong one, but the courts have on occasion been driven to
disregard particular words or phrases when, by giving effect to them, the operation of the
statute would be rendered insensible, absurd or ineffective to achieve its evident purpose."

SUPERFLUOUS WORDS OR PROVISIONS

Shri Gopal Jalan & Co v Calcutta Stock Exchange Association, AIR [1964] SC 250 - It is only
when other provisions of an Act give out that a provision in the Act owes its origin to a
confusion of ideas or to a misunderstanding of the law or to abundant caution, the court
reaches the conclusion that that provision is superfluous.

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RULES OF INTERPRETATION
There are four rules of interpretation
1. Literal Rule
2. Golden Rule
3. Mischief Rule
4. Purposive Rule

These Rules can be categorized in to two

Text Based Approach Text in Context Based Approach

Traditional Rules Modern Rule
(Literal, Golden rules of Interpretation) (Purposive rules of interpretation)

English Law Approach Roman Dutch Law approach

 Influenced by Positive Law  Influenced by Natural Law
 Distinction is made between ‘black-  Law and morality live simultaneously
letter law’ and morality.

It is the primary rule of interpretation that, The purpose or object of the legislation are
if the meaning of the text is clear it should primary concern. Social and political policy
be applied. directions, is also taken into account to
establish the purpose of the legislation
Ordinary and Natural (plain) meaning of the
text is equated with the legislature’s The intra-textual and extra-textual factors,
intention are accommodated to frame intention of
(Principal Immigration Officer v Hawabu parliament.
1936 AD 26).
According to the text-in-context approach,
If the ‘plain meaning’ of the words is the judiciary has inherent law-making
ambiguous, vague or misleading, or if a discretion during statutory interpretation
strict literal interpretation would result in
absurd results, then the court may deviate
from the literal meaning to avoid such an
absurdity
(Venter v R 1907).

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TEXT BASED APPROACH/TEXUAL INTERPRETATION

Wordings are sole and best source of interpretation. It is not what the parliamentarian owe to
have intended, but what they have expressly said in legislation.

However, there are two exceptions,

1. When the words of the test are defective or ambiguous
2. Where the interpretation of the text leads to a result that is so unreasonable or absurd

Union Government v Mack 1917 AD 731 and Farrar’s Estate v CIR 1926 TPD 501 - It was held
that the intention of the legislature should be deduced from the words used in the legislation;
in other words, the plain meaning of the text is the intention of legislature.

Bhyat v Commissioner for Immigration 1932 AD 125 129 – “… in construing a provision of an

Act of Parliament the plain meaning of its language must be adopted unless it leads to some
absurdity, inconsistency, hardship…”

Swanepoel v Johannesburg City Council 1994 (3) SA 789 - The rules of statutory [exegesis] are
intended as aids in resolving any doubts as to the Legislature’s true intention. Where this
intention is proclaimed in clear terms either expressly or by necessary implication the
assistance of these rules need not be sought.

SARS v Executor, Frith’s Estate 2001 (2) SA 261 (SCA) 273 - The primary rule in construction of
a statutory provision is (as is well established) to ascertain the intention of the legislator and
(as is equally well established) one seeks to achieve this, in the first instance, by giving the
words under consideration their ordinary grammatical meaning, unless to do so would lead to
an absurdity so glaring that the Legislature could not have contemplated it.

Duport Steels vs Sirs - The Role of the Judiciary is confined to ascertaining the intention of
Parliament from the express words used in the statute. Where the meaning of the words in a
statute are plain and unambiguous, it is not for judges to invent ambiguities.

LITERAL RULE = PLAIN MEANING RULE

If the words of a statute are clear, it’s mandatory for Courts to give effect to the Natural and
Ordinary meaning to the words of the statute, whether the result leads to an absurdity or
unreasonableness. The rational being that the plain meaning of the words carry the intention
of the Parliament.

Somawathie v Weerasinghe – No more can be necessary than to expound those words in their
plain, natural, ordinary, grammatical and literal sense

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 The literal rule is different to other rules as its emphasis is on technicality and it is applied
despite its absurd consequence/ injustice/ ambiguity.

Abley vs Dale - If the Language is clear and unequivocal, it must be enforced however harsh,
absurd or contrary to common sense the result may be.

Sussex peerage case - If the words of a statute are in themselves precise and unambiguous,
then no more can be necessary than to explain them in their natural and ordinary sense. (The
words themselves best declare the intention of the Law giver)

Yeats vs United States - Where there is no ambiguity in the words, there is no room for
construction

 Literal Rule requires that wide language be construed widely and Narrow language should
not unnecessarily extend, in order to comply with the intention of the parliament

Sithi vs Kareem - The land lord gave notice of the termination of tenancy. The tenant was in
arrears at the time notice was issued. The COA held that notice was bad in law as it failed to
specify the reason for the termination of tenancy. S.C. held that; the words of the statute are
unambiguous a prerequisite for filing action on arrears of rent is a notice of termination of
tenancy. The primary source of legislative intent is the language of statute.

Srimavo Bandaranayake vs. Premadasa - The object of all interpretation is to discover the
intention of Parliament from the language used. Where the language is plain and admits one
meaning, the task of interpretation hardly arises.

 Lliteral construction has given rise to unjust, immoral and imprudent consequences

R vs Judge of the City of London Court [1892] - Court held that “If the words of an Act are clear,
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.”

London & North Eastern Railway vs. Berriman - Railway worker was killed while doing
maintenance work on a railway line. ‘Compensation Act’ provides that person who engaged in
the repairing works is entitled to the compensation. Mr. Berriman was killed when he oiled the
railway lines. Court held that, judges are bound to applied the words in a statute are given their
ordinary and natural meaning in other words the legislation is to be read literally not be
analyzed further for different meanings. The word repairing shall not include the maintenance
work

R. vs Harris - In interpreting an offence to “unlawful and maliciously stab, cut or wound any
person”, court decided that a defendant who bit off the end of the victim’s nose had not
committed offence.

Whitely vs Chappel - It was an offence to impersonate any person entitled to vote. The
defendant impersonate a dead person. Court held that the dead person is not “entitled to
vote” and so the defendant was acquitted.

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ADVANTAGES OF LITERAL RULE OF INTERPRETATION

1. Application of the law is predictable / enhance the certainty of the legal system
2. Respect the Supremacy of Parliament and the Separation of Powers
3. Maintains an Objective approach / Neutrality of courts (Free from individual convictions)

SHORT COMINGS OF THE LITERAL RULE

1. Prevents the development of the law
2. Inadequate consideration of the moral aspects, consequences caused by the interpretation
3. Adversely affect the individuals
4. The language cannot be modified according to the prevailing social needs
5. Judges can’t exercise discretion.

GOLDEN RULE

The Golden Rule is a modification of the literal rule, applied in the event of an absurdity arising
out of the application of the literal rule. It was conceived by the need to attain the justice and
fairness.

Day vs. Simpson - Theater Act of U.K. prescribed a penalty for the performance of plays
without license on stage. A group of players performed the play via ‘mirrors’ from the bottom
of the stage. Court thought that direct application of statutory provision would cause injustice/
absurdity therefore decide to modify the language of the statute. Held, the players even
though not playing on the stage are bound to take license under the act.

 Mere absurdity is insufficient to necessitate the application of Golden Rule; there needs to
be a manifest absurdity and absurdity must specifically arise from the meaning of the words
used.

Becke vs. Smith - It is use full to adhere to the ordinary meaning of the words used unless it
varies with the intention of the legislature (to be collected from the statute itself) or leads to
manifest absurdity in which case the language may be varied or modified to avoid
inconsistency.

Grey vs Pearson - There arose a narrow approach of applying the golden rule of interpretation;
where absurdity must specifically arise from the meaning of the words used.

Jones vs D.P.P - If the word is ambiguous, the judge must choose between possible meanings
of the word in order to avoid an absurdity

Jayasinghe vs A.G. - Mark Fernando J, where rights are involved and the literal rule caused
injustice, the Golden Rule must be applied

Lee vs Knapp - Traffic offences Act requires a person to stop after an accident. The Motorist
stopped momentarily and then drove away. Held, stop requires the motorist to wait until a
solution has been reached.

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 Subsequently the courts applied a wider approach to the golden rule. Even where there is
only one meaning and it would lead to an absurdity or repugnant situation court can depart
from the literal rule.

Re Sigsworth case - Under the Administration of Estate Act, the property of a person who died
intestate passes to the next of kin. Sigsworth had murdered his mother and he was not allowed
to inherit her mother’s property.

Alder vs George - Under the Official Secrets Act, it was an offence to be found in the vicinity of
a prohibited place. The accused was arrested inside the place and so was argued that he should
not be convicted. Court departed from the literal rule and held he’s guilty. Words “in the
vicinity” were amended by the court for the words “in or in the vicinity”

Tennakoon v Tennakoon - The interpretation of “either spouse” means the innocent spouse

MISCHIEF RULE

The Mischief rule is resorted to when the application of the literal rule leads to ambiguity -
where a word is open to different meaning. The Mischief Rule requires a court to suppress the
mischief at Common Law and advance the remedy provided in the statute. The Mischief Rule
came about in an era where statutes were merely enacted and thus, Judges were asked to look
at the common law to understand what was the statute was trying to remedy. It is preamble
that generally reflect the mischief that is sought to remedied, so if the preamble does not exist,
the rule cannot be applied.

Heydons’ Case - Explained the criteria for the application of the mischief rule
1. What was the common law before the Act?
2. What was the mischief which the existing law did not provide?
3. What remedy has Parliament decided upon?
4. True reason for the remedy

Smith vs. Hughes - Some prostitutes were accused of soliciting contrary to the street offences
Act 1958 which made it offence to “soliciting in a street… for the purpose of prostitution” The
‘D’ along with other prostitutes sat on the balcony tapping on the widow to attract the
attention of men in the street. Therefore, many accidents caused in the street. Held that the
intention of the statute is to “prevent the soliciting”, it did not matter that the women were
not themselves in the street, as they were still soliciting men in the street.

Corkery vs Carpenter - It was an offence to be drunk and in charge of a carriage on the

highway. The defendant was riding a bicycle under influence of liquor. Held, the purpose of the
statute was to prevent danger to road users – thus the bicycle was considered to be a
“carriage”

Royal College of Nursing vs DHSS - The Statute provided that only ‘Registered medical
Practitioners’ could perform abortions. In this case, registered nurses had performed abortions.
These abortions were held to be legal as the statute indented to remedy the situation where
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people had abortions in unhygienic backstreet places, since the nurses were registered, they
exercised proper skill, clean and care

Domorthy De Silva vs Inspector of Police - Defendant was charged with managing a brothel,
however she only ran a waiting room but prostitution was not taking place in the premises.
Held, based on the Heydon’s Rule Defendant was guilty of an offence

CONTEXT BASED APPROACH

Formerly the dominant approach to statutory interpretation was the 'literal rule', where its
gloss is known as the 'golden rule', supplemented by the 'mischief rule', where the courts
consider the purpose of the Act. Whichever approach the courts took, they were clear that:
courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be
found within the four comers of the Act itself.

Since the end of the Second World War, however, and following on the recommendations of
the Law Commission's report, 'The Interpretation of Statutes ' in 1969, the 'purposive'
approach has been increasingly favored by the British courts. Under the purposive approach,
which is really a development of the old mischief rule, the courts construe statutes in the light
of the overall purpose of the legislation.

Intention of Parliament is considered when interpretation the language of the law which is read
in its ‘context’. The context is not limited to the words of a statute but also the factual positions
which were known to the Parliament at the time of enactment i.e. the historical background.
These can be derived from Hansards, Parliamentary Reports and existing similar statutes. All
these are extraneous to the text of the statute itself.

PURPOSSIVE RUE

The Purposive Rule has origins in many legal systems. In civil law countries, the Purposive Rule
of interpretation has been in existence for a long time. The Purposive Rule has been introduced
to countries with common law tradition only in the recent past. Mischief Rule is the forerunner
of the Purposive Rule as expounded in Heydon’s Case (1584). The Mischief Rule looks into the
mischief created by common law and the remedial measures taken by an Act of Parliament.
Hence, the Purposive Rule is certainly a modern version of the Mischief Rule, as it empowers a
court to resolve an ambiguity in a statute by using external aids.

Henvietta V. AG Canada – Purpose illuminates the goal guided by words

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Aharon Barak, former Chief Justice of Israel, describes the purposive rule as the ultimate rule
of statutory interpretation, as it looks into statutory interpretation in a holistic manner. He
divides the purposive rule into two dimensions.

1. Subjective dimension - May consult extrinsic material such as the Hansard, Law Reform
Reports, Parliamentary Committee Reports, White Papers, Green Papers or any other
relevant Report, in order to ascertain the intention of the Legislature.

2. Objective dimensions – May consult human rights standards, constitutional standards

including vested and transitional rights. Hence, the courts need not stick to the letter of the
law enacted by Parliament in order to resolve any interpretative difficulties.

Judges adopting a purposive approach to interpretation are taking a wider view and essentially
trying to decide what parliament intended to achieve in passing an Act. This approach
encourages the judges to look for the “spirit of the Act” and to read words into or out of the
Act when this is necessary. In many common law countries, the Interpretation Act is amended
to provide the basis for the application of the Purposive Rule of interpretation. Also it has been
introduced through judicial activism.

Trinidad Cement Company Limited vs AG of Guyana (2008) - The issue was whether a juristic
person has locus standi in the Caribbean Court of Justice under article 222 to vindicate their
rights against a Member State of the Caribbean Community. The court held that by reference
to the travaux preparatoire of the treaty negotiations and the Recommendations made by
Ministers of Justice and Legal Affairs, such a right was recognized at the time of negotiations.
The Purposive Rule was therefore fundamental in the determination of the scope of article 222
of the Revised Treaty of Chaguaramas.

Pepper V. Hart - “The days have long passed when the court adopted a strict constructionist
view of interpretation which requires them to adopt the literal meaning of the language. The
Courts now adopt a purposive approach which seeks to give effect to the true purpose of
legislation and are prepared to look at much extraneous material that bears upon the
background against which the legislation was enacted”

Sriyani Silva vs Iddamalgoda [2003] 1 SLR 14, Justice Bandaranayake dispensed with the Literal
Rule in favour of the Purposive Rule with respect to the fundamental rights action instituted
under article 126(2) of the 1978 Constitution of Sri Lanka. In this case, the wife of the person
imprisoned was allowed to bring an action in court, as the aggrieved person was unable to
institute such action due to circumstances beyond his control.

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EXTRINSIC MATERIALS
External aids are those processes or outputs which do not form part of the statute. There are
two kinds of external aids:

1. Those that are generated as part of the law-making process.(eg: Parliamentary Debates and
notes on clauses). These have an inextricable connection with the mischief rule of
interpretation as they help in identifying the nature of mischief that the statute was aiming to
remedy.

2. That which are independent of the process (dictionaries and Encyclopaedias). These provide
general information on the meaning of words and state of things, which help in constructing
the popular context within which the statute has to operate.

The following is a rough list of the type of external materials which may be resorted to be courts
for the interpretation of statutes –
1. Hansard or Parliamentary Speeches
2. Discussion preceding the enactment of a statute
3. Explanatory Notes
4. International Conventions or Treatise
5. Historical Background to the Statute
6. Earlier or Subsequent Acts
7. Legal Dictionaries & Legal Text Books
8. Similar Statutes including definitions
9. Government Publications
a. Committee Report
b. Other publications – Permission granted by the statute itself (Eg. Section 2 of TO)

HANSARD

It includes anything brought to the attention of the legislature or generated by the legislature
during the enactment process. Typical examples of legislative history material are government
white papers, commission reports, background materials tabled in the legislature, briefs and
testimony submitted to legislative committees, committee reports and the records of
legislative debate (Hansard). Judicial approach regarding these has evolved through three
stages.

1. The Exclusionary Rule: According to the traditional English view the intent of the
Parliament which passed the Act, is not to be gathered from the parliamentary history of
the statute". A Bill in its original form, or the amendments considered during its progress in
the Legislature, are not admissible aids to construction. The language of a minister
proposing in Parliament a measure which eventually becomes law is inadmissible and the
same rule applies to the reports of the debates and to the resolutions passed by
Parliament.

Millar v. Taylor - "The senses and meaning of an Act of parliament, it was supposed must
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be collected from what it says... not from the changes it underwent in the House it took its
rise. That history is not known to the other House or to the Sovereign"

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Fothergill V. Monarch Airlines - The meaning of 'damage to baggage' under Article 26 of

Warsaw Convention on Carriage of Goods by Air was in issue and it was sought to introduce
as aid to construction, the minutes of the working meetings in 1955 at which the Hague
protocol was negotiated. The House of Lords did not find it necessary to rely on these
convention materials. Lord Wilberforce thought they should be admitted only if such
material was public and accessible.

2. Relaxation of the Exclusionary Rule: However, since the courts are entitled to consider
such external or historical facts as may be necessary to understand the subject matter to
which the statute relates, or to have regard to the mischief which the statute is intended to
remedy, the exclusionary rule was relaxed to admit the reports of the commissions
preceding a statutory measure as evidence of surrounding circumstances with reference to
which the words in the statute are used. The bar on referring to legislative debate,
however, remained. (see, Kodakkan Pillar v Punchi Banda Mudanayake, [1955] 2 All ER 833)

Criticism of the exclusionary rule: The distinction drawn between the refusal to admit the
report of a commission for purpose of finding out the intention of Parliament and its
relevance as evidence of surrounding circumstances was attacked as artificial. If the court’s
task is to find the intention of legislature, then disregarding the statement made by the
member of parliament that introduced the bill that shed light on the intention or purpose
behind the statute or the mischief it is intended to remedy seems illogical. The distinction
that allows commission reports but bars Parliamentary proceedings is when the latter
expresses the intention behind the legislation tenable at best.

3. Modern Trend: The adoption of the purposive approach allows the court to give recourse
to external aids that were previously not permitted. The reports of the committee which
preceded the enactment of legislation, report of joint parliamentary committee, report of a
commission set up for collecting information leading to the enactment, are permissible
external aids to construction. Hansard can be referred to in ascertaining the intention of
the legislature. It is, however, subject to certain limitations.

Pepper v Hart [1993] 1 All ER 42

Lord Browne Wilkinson: “I therefore reach the conclusion, subject to any question of
parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference
to parliamentary materials where: (a) the legislation is ambiguous or obscure or lead to an
absurdity; (b) the material relied on consisted of one or more statements by a minister or other
promoter of the Bill together if necessary with such other parliamentary material as is
necessary to understand such statements and their effect; (c) the statements relied on are
clear.”

“Reference to parliamentary material should be permitted as an aid to the construction of

legislation which is ambiguous or obscure or the literal meaning of which leads to absurdity.
Even in such cases references in court to parliamentary material should only be permitted
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where such material clearly discloses the mischief aimed at or the legislative intention lying
behind the

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ambiguous or obscure words. In the case of statements made in Parliament, as at present

advised, I cannot foresee that any statement other than the statement of the minister or other
promoter of the Bill is likely to meet these criteria.”

Accordingly, the court must satisfy itself with the following before referring to parliamentary
proceedings:
1. The statute or provision thereof is unclear or ambiguous or literal construction leads to
absurdity;
2. The material the court intends to refer to is a statement made by the promoter of the bill;
3. It discloses the mischief aimed at or the intention behind the provision; and,
4. The statement is clear.

The following observations with regard to external aids are significant:

1. The absolute prohibition against any reference to the Parliamentary record as an extrinsic
aid to statutory interpretation ought to be abolished for the following main reasons...It is
irrational for the Courts to maintain an absolute rule depriving themselves of access to
potential relevant evidence or information for this purpose.

2. The history of a statute, including the Parliamentary debates, may be relevant (i) to confirm
the meaning of a provision as conveyed by the text, its context and purpose; (ii) to
determine the meaning where the provision is ambiguous or obscure; or (iii) to determine
the meaning where the ordinary meaning is manifestly absurd or unreasonable.

3. The Parliamentary record may be of real assistance to the Court (a) by showing that
Parliament has considered and suggested an answer to the issue of interpretation before
the Court, (b) by showing the object and purpose of the legislation and the mischief which
the Act was designed to remedy, (c) by explaining the reason for some obscurity or
ambiguity in the wording of the legislation and (d) by providing direct evidence of the
origins, background and historical context of the legislation.

4. Where a statutory provision has been enacted following an authoritative ministerial

statement as to the understanding by the Executive of its meaning and effect, such a
statement may provide important evidence about the object and purpose of the provision
and the intention of Parliament in agreeing to its enactment, and may create reasonable
expectations among Members of Parliament and those affected by the legislation.

5. There is no basis in principle or logic for the Courts to be willing to have regard to extrinsic
aids contained in white papers, reports of official committees, and the travaux
preparatoires to international treaties, while rigidly excluding any recourse to
Parliamentary debates, except for “special” categories of legislation. The reports of
Parliamentary debates, and especially of authoritative statements by Ministers or other
Members of Parliament responsible for the introduction of legislation.

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Criticism against Inclusionary Rule

Steyn's argument was that Pepper was inconsistent with a judge's constitutional duty to
determine the intent of Parliament through the interpretation of the actual text of the
legislation. He supported his argument by reference to the experience of judges in the
application of the ruling in Pepper. Lord Steyn's main criticism can be summarized as follows;

1. The freedom offered by Pepper v Hart has become too much of an expensive luxury in our
legal system, and has substantially increased the cost of litigation to very little advantage.
2. The intention of the executive, and even of individual members of the executive, should not
be allowed to be substituted for that of Parliament: "Only relevant intention of Parliament
can be the intention of the composite and artificial body to enact the statute as printed".
3. The decision permits an ambiguous statute to be interpreted against the citizen as well as
against the state.
4. It encourages courts to find that legislation is ambiguous when it is not, once it is apparent
that there is a relevant indication of opinion by Parliament.
5. It introduces a "new form of literalism" and restricts the courts' capacity to cope with
changing conditions.

Wilson v Secretary of State for Trade and industry – HOL imposed restrictions on when the
courts could refer to Hansard. Held, only statements made by a Minister or other promoter of
legislation could be looked at, other statements recorded in Hansard had to be ignored.

That v DP - Hansard should not be called in aid of a criminal prosecution as it could lead to a
situation in which a person was made criminally liable not on the basis of the words in a
statute, but rather on the basis of supporting material that extended the ambit of liability in
that statute.

Melluish (Inspector of Taxes) v BM (No. 3) Ltd, 1995] 4 All ER 453 - The permissive rule should
not be misused and that under this rule the only materials which can properly be introduced
are clear statements made by a minister or other promoters of the Bill directed to the very
point in question in the litigation.

R (National Grid has plc) v Environment Agency, [2007] 3 All ER 877, (HL) - Pepper v Harf is no
authority for recourse to Hansard in order to alter plain and unambiguous statutory language.
Weight to be attached to the statement in Hanasard will depend on all the circumstances.

R v Hicks, [2000] 4 All ER 833, (HL) - Relevant publicly available contextual material, eg, reports
of Law Commissions and Law Revision Committees, are readily admitted in aid of the
construction of statutes; but the court cannot delve into the intention of individual members of
the commission or committee and will not admit their communications as aid to construction.

R (on the application of Westminister City Council) v National Asylum Support Service,[2002]
4 AH ER 654, (HL) - Explanatory notes issued by the departments concerned before a Bill is
introduced in Parliament, though not forming part of the Bill, may also be admitted in so far as
they cast light on the objective setting or contextual scene of the statute, and the mischief at

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which it is aimed.

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Sri Lankan Aproach

The Sri Lankan judiciary has followed the approach adopted in Pepper v Harf in Gunasekera ct
al v Ravi Karunanayake 2005] 1 Sri LR 18 and subsequent cases and thereby has shown its
willingness to adopt the purposive approach and referred to Hansard as an aid.

Gunasekera ct al v Ravi Karunanayake 2005] 1 Sri LR 18 - The court had to determine the
scope of the Bail Act and decide if it would apply to offences covered by the Offences Against
the Public Property Act. To do that, it referred to the statement made during the course of the
Parliamentary debate by the then Minister of Justice GL Pieris — who introduced the Bill to the
Parliament.

JB Textiles v Minister of Finance SC held that, the Court of Appeal had erred in holding that
Hansard containing statements made in parliament could not be used by the petitioner as
evidence in support of their case. Hansard is admissible to prove the course of proceedings in
the Legislature subject to the qualification that the statement therein must be accepted in to
without question. Hansard is the official publication of Parliament. It is published to keep the
public informed of what takes place in Parliament. It is neither sacrosanct nor untouchable

Sirisena and Other v. Minister of Agriculture and lands" – Vythyalingam J held that we ought
not to do so unless there is such great ambiguity in the words that looking at Hansard alone
would be decisive. Wijesundera J, in his dissenting judgment where he held that there is room
for an exception when examining the Hansard would almost certainly settle the matter one
way or other

Shiyam v. Officerin-Charge, Narcotics Bureau and Another – SC held that it is therefore

apparent that the Court which now adopts a purposive approach could refer to the Hansard for
the purpose of ascertaining the intention and the true purpose of the legislature in order to
interpret the legislation which is ambiguous, obscure or leading to an absurdity.

HISTORICAL BACKGROUND TO THE STATUTE

The court is entitled to take into account external or historical facts that are necessary to
understand the subject matter of the statute. Likewise, recourse could be had to surrounding
circumstances that existed at the time of passing of the statute.

Bindra on Interpretation: ‘It is only when the words used are ambiguous that they would stand
to be examined and construed in the light of surrounding circumstances and constitutional
principle and practice.’

Herron v Rathmines and Rathgar Improvement Commissioners, [1892] AC 498, (HL) - Lord
Halsbury: “The subject-matter with which the Legislature was dealing, and the facts existing at
the time with respect to which the Legislature was legislating are legitimate topics to consider
in ascertaining what was the object and purpose of the Legislature in passing the Act.”

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Especially in case of older statutes a knowledge of the historical facts relating to them helps in
understanding the meaning of ambiguous words and expressions used in them. "For the
purpose of appreciating the scope and object of an old statute and for explaining its language
which may be susceptible of different meanings it may be useful to remember the well-known
historical facts that led to the enactment.

Doypack Systems Pvt Ltd v UOI, AIR [1988] SC 782 - Mukherjee J: “It is a settled canon of
construction that the interpreter should place himself, as far as possible, in the position of
those whose words he is interpreting and the meaning of certain words and terms used in an
ancient document or a statute can be properly explained only by reference to the
circumstances existing at the time when the statute was enacted or the document was
written.”

Henrietta Muir Edwards V. AG Canada – Sec 24 of North American Act provided the power to
the Governor General to appoint any qualified persons to the Senate. Issue raised was whether
the term ‘persons’ included women. SC applied literal rule and held that it denotes only men.
In the appeal PC applied purposive approach and held both men and women fall within the
purview of ‘persons’

AG Ceylon V. De Livera – Section 14(a) of Ceylon Bribery Act stated if any person with the
capacity of judicial officer, senate or house of representative obtains bribe, he is guilty of a
crime. Mr. Livera given bribe to a member of house of representative for not to acquire his
land. SC applied literal rule and held ‘capacity’ means the authority and as he does not belong
to Land Development Authority, he is not guity. PC applied purposive approach and held
‘capacity’ includes authority + individual capacity and he is guilty after referring to history of
the statute.

AG V. Greyford UDC – Section 111(1) of Housing Act provided the power of management of
houses and apartments to the Local Authority. Local Authority contracted with a private
insurance company to collect taxes from the houses. Questions was whether collection of taxes
falls within the purview of ‘management’ or it includes only physical management. Court held
they have the power by finding the intention through previous enactment.

OTHER STATUTES

Statutes must be read in their context. The extension of this permits reference to other
statutes in part materia, i.e. statutes dealing with the same subject matter or forming part of
the same system. (Stassen Exports Limited v Brooke Bond (Ceylon) Limited ct al [1990] 2 Sri LR.
Amerasinghe J.)

R v Loxdale, [1758] 97 ER 394 - Lord Mansfield: “Where there are different statutes in pari
materia though made at different times, or even expired, and not referring to each other, they
shall be taken and construed together, as one system and as explanatory of each other.”

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When can other statues be considered to be in pari materia?

Craies, Statute Law (7th Edn) 134 (citing United Society v Eagle Bank, [1829] 7 Connecticut
457)
- Statutes are in part materia which relate to the same person or thing, or to the same class of
persons or things. The word par must not be confounded with the word simfis. It is used in
opposition to it intimating not likeness merely but identity. It is a phrase applicable to public
statutes or general laws made at different times and in reference to the same subject. Statues
that deal with the same matter or subject, simply put, are considered pari material of each
other.

The application of this rule of construction has

1. The merit of avoiding any apparent contradiction between a series of statutes dealing with
the same subject;
2. It allows the use of an earlier statute to throw light on the meaning of a phrase used in a
later statute in the same context;
3. It permits the raising of a presumption, in the absence of any context indicating a contrary
intention, that the same meaning attaches to the same words in a later statute as in an
earlier statute if the words are used in similar connection in the two statutes; and,
4. It enables the use of a later statute as parliamentary exposition of the meaning of
ambiguous expressions in an earlier statute.

Webb v Outrim, [1907] AC 81, (PC) - The use of the same words in similar connection in a later
statute gives rise to a presumption that they are intended to convey the same meaning as in
the earlier statute. On the same logic, when words in an earlier statute have received an
authoritative exposition by a superior court, the use of same words in a similar context in a
later Act will give rise to a presumption that Parliament intends that the same interpretation
should also be followed for construction of those words in the later statute.

Limitations:

1. Smith v Braintree District Council, [1989] 3 All ER 897, (HL) - When the new legislation,
although re-enacting many provisions from earlier statutes, contains a good deal of fresh
material and deals with a subject on which social views have drastically changed, it may not
be proper to rely on the earlier authorities for construing the new legislation.
2. State of Punjab v Okara Grain Buyers Syndicate Ltd 1964] 5 SCR 387 - When there is no
ambiguity in the statute, it may not be permissible to refer to, for purposes of its
construction, any previous legislation or decisions rendered thereunder.
3. Change of language in a later statute in pari materia is suggestive that a change of
interpretation is intended. (DC Fraser Co Ltd v Minister of National Revenue, AIR [1949] PC
120, Lord Macmillan: “When an amending Act alters the language of the principal statute,
the alteration must be taken to have been made deliberately.”)

The evolution of the legislation - repealed acts or provisions dealing with the same matter - can
also be considered to ascertain the change intended by the amendment.

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Abdur Rahim v Syed Abu Mahomed Barkat Ali Shah, AIR [1928] PC 16 - When it is contended
that the Legislature intended by any particular amendment to make substantial changes in the
pre-existing law, it is impossible to arrive at a conclusion without considering what the law was
previously to the particular enactment and to see whether the words used in the statute can
be taken to effect the change that is suggested as intended.

GOVERNMENT PUBLICATION

Katinge of Buganda V. AG – White paper (gazette) containing recommendations of a

constitutional conference was referred as it was the only document related to the Buganda
Agreement.

Assam Railway & Trading Co. Ltd. V. IRC – To give meaning to the section 27(1) of the Finance
Act of 1920, report of the income tax commission was considered. Held, it was not an official
report and had no connection to the intention of the parliament.

Weatherly V. Weatherly – To find the meaning of the malicious desertion, court referred the
report of the Divorce and matrimonial causes commission.

INTERNATIONAL CONVENTIONS

When interpreting a statute that is enacted to give domestic effect to an international

convention, such convention can be legitimately referred to. There exists a presumption of
conformity to justify courts’ recourse to treaties when the statute in question makes reference
to it. However, the extent to which such a presumption applies to Sri Lanka needs to be
authoritatively settled.

Article 27(15) of SL constitution – Permit to interpret the statutes in line with international
conventions and treaties

Ceylon Tobacco V. Ministry of Health – To decide on the percentage of warning to be given on

the cigarette packet, court referred the Framework Convention on Tobacco Control (WHO)

Bulankulama V. Ministers of Industrial Development (Epawala Case) – To give meaning to

National Environment Act, court referred to Stockholm and Rio De Janiro Declarations.

 Water Edge Case

 Chunnagam Power Plant Case
 Nallaratnam Singarja Case
 Sepala Ekanayake Case

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LEGAL DICTIONARIES & LEGAL TEXT BOOKS

R v Peters, [1886] 16 QBD 636 - When a word is not defined in the Act itself, it is permissible to
refer to dictionaries to find out the general sense in which that word is understood in common
parlance.

The value attached to dictionaries as aids is minimal. Judges are generally expected to find the
meaning based on context, in which course dictionary may be of some assistance but the
meaning provided by it cannot be held to be absolute and authoritative.

R v Peters - Lord Coleridge: “Dictionaries can hardly be taken as authoritative exponents of the
meanings of the words used in legislative enactments, for the plainest words may be controlled
by a reference to the context. Similarly, lexicons would only define an expression in terms of a
decision given by a court of law, and unless this decision was given under the Act in which the
expression is used in it involves a dangerous method of interpretation.”

Judge Learned Hand cautioned “not to make a fortress out of the dictionary” but to pay more
attention to “the sympathetic and imaginative discovery” of the purpose or object of the
statute as a guide to its meaning. (Cabell v Markham, 148 F 2d 737)

Kerr V. Kennedy – in the absence of any judicial authority, the judiciary can consult the
dictionaries

Hadwick Game Farm V. Suffolk – ‘poultry’ was referred in Webster’s 3rd New Int. Dictionary.

Authoritative textbooks and commentaries on the statute under construction can be referred
to. Similarly, verified and recognized encyclopedias can also be used.

Isherwood V. Old Know – If a book is repeatedly used by judiciary, book cannot be simply

ignored Re Castle – To find meaning to political crime, referred the text book on History of

Criminal Law Bastin V. Davies – To interpret ‘substance’, the book named Sale of Food and

Drugs was referred

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INTRINSIC AID TO INTERPRETATION

The primary and best guides to the intention of the legislature are sections found in a statute,
i.e., enacting provisions. Aids are intended to supplement/assist them. Internal aids are those
that are found in the statute itself that the court can legitimately refer to in constructing the
meaning of a statute or provision thereof. Not all, however, that are found in the statute can
be taken as an aid to interpretation. Some are there for reference purposes only and cannot,
therefore, be taken in to assist in construction. And others though they can be taken in for
construction, are nevertheless under restriction as to the extent to which they can assist in
interpretation. Those that are found in a statute can, based on their utility for interpretation,
be divided into two categories:
1. Purely for convenience
2. Can assist in interpretation but is limited in scope

1. LONG TITLE

Long title are that which precedes the preamble and are good guides regarding the object,
scope or purpose of the Act. It states what the Act is about. English law used to deny the utility
of long title as an aid to interpretation but has now recognised its use. It is now settled that
Long Title of an Act is a part of the Act and is admissible as an aid to its construction. It can be
used to ascertain the scope, object and purpose of the Act.

Black-Clawson International Ltd v Papierwerke W.A A.G. [1975] UKHL J0305-1 - Lord Simon:
The long title should be read as part of the context, “as the plainest of all the guides to the
general objectives of a statute.”

Limitation: Long title cannot be used to control the clear meaning of a provision. Long titles are
useful when the provision is unclear or ambiguous, but they cannot be used to override when
the meaning of a provision is clear and unambiguous.

R v Bates and Russell, [1952] 2 All ER 842 - Donovan J:“The Long Title is a legitimate aid to the
construction—. When Parliament proclaims what the purpose of an Act is, it would be wrong
to leave that out of account when construing the Act in particular, when construing some
doubtful or ambiguous expression. In many cases the Long Title may supply the key to the
meaning. The principle, as I understand it, is that where something is doubtful or ambiguous,
the Long Title may be looked to resolve the doubt or ambiguity, but in the absence of doubt or
ambiguity, the passage under construction must be taken to mean what it says, so that if its
meaning be clear, that meaning is not to be narrowed or restricted by reference to the Long
Title.”

2. SHORT TITLE

The short title is an abbreviation of the act inserted for the purpose of reference. It usually
consists of the name of the act, the year in which it was passed and the number assigned. It is
simply put a label given to an act for identification and cannot be taken in as an aid to

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interpretation. See be Boaler [1915] 1 KB 21

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3. PREAMBLE

The preamble is the part of a statute that succeeds the long title, and it sets out the scope,
object and purpose of the act more comprehensively than the Long Title. It may recount the
reason behind the enactment of the particular statute or may set out the mischief the statute
intends to remedy or the doubt the statute tries to clarify/settle. It is an admissible aid to
interpretation.

Brett v Brett [1826] 162 ER 456 - Sir John Nicholl: “It is to the Preamble more specially that we
are to look for the reason or spirit of every statute, rehearsing this, as it ordinarily does, the
evils sought to be remedied, or the doubts purported to be removed by the statute, and so
evidencing, in the best and most satisfactory manner, the object or intention of the Legislature
in making or passing the statute itself.”

Stowel v Lord Zouch, [1569] 1 Plowd 353 - Dyer C.J.: “[The Preamble] is the key to open the
minds of the makers of the Act, and the mischiefs which they intended to redress.”

AT v HRH Prince Ernest Augustus 1957 AC 436(HL) - The decision establishes these propositions:
1. the Preamble can be read along with other portions of the Act to find out the meaning of
words in the enacting provisions;
2. to decide whether enacting provisions are clear or ambiguous;
3. the Preamble in itself is not an enacting provision and is not of the same weight as an aid to
construction of a section of the Act as are other relevant enacting words to be found
elsewhere in the Act;
4. If the meaning of the provision is clear and unambiguous, the preamble is of little use and
cannot override or limit the meaning thereof.

Preamble in Constitution: The Preamble of the Constitution like the Preamble of any statute
furnishes the key to open the mind of the makers of the Constitution more so because the
Constituent Assembly took great pains in formulating it so that it may reflect the essential
features and basic objectives of the Constitution. The Preamble is a part of the Constitution.
The Constitution, including the Preamble, must be read as a whole and in case of doubt
interpreted consistent with its basic structure to promote the great objectives stated in the
Preamble.

4. HEADINGS

Headings are titles prefixed to a section or a group of sections that provide a brief idea of the
general subject matters the section/group of sections deal with. Headings can be referred to in
interpretation. See, Hammer Smith City Ry v Brand, [1869] LR 4 HLC 171

There are however two conflicting views as to the utility of headings:

1. The Heading is to be regarded as giving the key to the interpretation of the clauses ranged
under it, unless the wording is inconsistent with such interpretation. Toronto Corp v
Toronto Ry Co, [1907] AC 315, (PC)
2. The Heading can only be taken when the enacting words are ambiguous. fi v $urrey [1947]

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2 All ER 276

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Headings, side notes and punctuation are inserted by the draftsman and are not generally
debated and scrutinised in the Parliament. They therefore cannot be treated on the same
footing as enacting provisions.

Director of Public Prosecutions v $childkamp [1970] 2 WLR 279 (HL) - Viscount Dilhorne:
“While I would not suggest that, when one is considering an Act of Parliament, one is not
entitled to look at the title given to a part of the Act and to cross headings, the weight to be
attached to them is, in my opinion, very slight and less than that which should be given to a
preamble—. In my view the title given to a part of an Act and the cross-heading to a modern
Act which are inserted by the draftsman and not subject to amendment by the members of
either House, are no more than guides to the contents of the part or sections which follow.
They are not meant to control the operation of the enacting words and it would be wrong to
permit them to do so.”

However, a contrary view was provided in the same case by Lord Reid: “It may be more realistic
to accept the Act as printed as being the product of the whole legislative process, and to give
due weight to everything found in the printed Act. I say more realistic because in very many
cases the provision before the court was never even mentioned in debate in either House, and
it may be that its wording was never closely scrutinised by any member of either House. In
such a case it is not very meaningful to say that the words of the Act represent the intention of
Parliament but that punctuation, crossheadings and side notes do not... I would not object to
taking all these matters into account provided that we realise that they cannot have equal
weight with the words of the Act. A cross-heading ought to indicate the scope of the sections
which follow it but there is always a possibility that the scope of one of these sections may
have been widened by amendment.”

5. MARGINAL NOTES

Marginal notes/side notes are brief notes or captions that appear at one side of an enacting
provision, giving general indication as to what the particular section is about. It is inserted for
identification.

The traditional view is that marginal notes cannot be considered as an aid to interpretation as
they are inserted by the draftsman after the enactment for identification.

Director of Public Prosecution v Schildkamp, 1970] 2 WLR 279 (HL) - Lord Reid: “A side-note is
a poor guide to the scope of a section for it can do no more than indicate the main subject with
which the section deals.”

The recent practice though has been to insert the marginal notes at the bill stage - when
presenting the bill to the Parliament. Some judges taking note of this trend have started to give
some weightage to marginal notes.

R v Montila, [2005] 1 All ER 113 (HL). - “The question then is whether headings and sidenotes,
although unamendable, can be considered in construing a provision in an Act of Parliament.
Account must, of course, be taken of the fact that these components were included in the Bill

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not for debate but for ease of reference. This indicates that less weight can be attached to
them

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than to the parts of the Act that are open for consideration and debate in Parliament. But it is
another matter to be required by a rule of law to disregard them altogether. One cannot ignore
the fact that the headings and sidenotes are included on the face of the Bill throughout its
passage through the Legislature. They are there for guidance. They provide the context for an
examination of those parts of the Bill that are open for debate. Subject, of course, to the fact
that they are unamendable, they ought to be open to consideration as part of the enactment
when it reaches the statute book.”

Nevertheless, the weight of authority is in favour of the view that the marginal note appended
to a section cannot be used for construing a section. Until Supreme Court settles this matter,
the traditional view continues to apply in Sri Lanka.

6. PUNCTUATIONS

Punctuations are minor elements in an enacting provision and can only be considered when
they are inserted properly.

Aswini Kumar Ghose v Arabinda Bose - BK Mukherjea J: “Punctuation is after all a minor
element
in the construction of a statute, and very little attention is paid to it by English Courts. It seems,
however, that in the vellum copies printed since 1850, there are some cases of punctuation,
and when they occure they can be looked upon as a sort of contemporanea exposition
When a
statute is carefully punctuated and there is doubt about its meaning, a weight should
undoubtedly be given to punctuation I need not deny that punctuation may have its uses in
some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed
to control the plain meaning of a text.”

7. ILLUSTRATIONS

Illustrations are examples attached to sections. They, although do not form part of the section,
are aids to interpretation unless they are repugnant to the section to which they are attached.

Mohomed Shydol Ariffin v Yeah Oai Park, AIR [1916] PC 242 - Lord Shaw: “It is the duty of a
court of law to accept, if that can be done, the Illustrations given as being both of relevance
and value in the construction of the text. The Illustrations should in no case be rejected
because they do not square with ideas possibly derived from another system of jurisprudence
as to the law with which they or the sections deal. And it would require a very special case to
warrant their rejection on the ground of their assumed repugnancy to the section themselves.
It would be the very last resort of construction to make this assumption. The great usefulness
of the Illustrations which have, although not part of the sections, been expressly furnished by
the Legislature as helpful in the working and application of the statute, should not be thus
impaired.”

Limitation: Illustrations cannot be allowed to detract from the prime importance of the
language of the section. They cannot have the effect of modifying the language of the section

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and they cannot either curtail or expand the ambit of the section.

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8. INTERPRETATION CLAUSES

They are definitions provided for words appearing in the enacting provisions. They are
accepted aids to interpretation and when are included in a statute, recourse to them should be
given when interpreting the words to which definitions are provided.

Whether the definition provided in the statute is exhaustive or not depends on the intention in
which they are included:

1. If the definition is used in a restrictive sense — to restrict the meaning of the word — then
such definition shall be treated as exhaustive. The court must stick with the definition
provided.

Inland Revenue Commissioner v Joiner, [1975] 3 All ER 1050 (HL) - When a word is defined to
‘mean’ such and such, the definition is prima Jamie restrictive and exhaustive.

2. If the definition is used in an extensive sense — to expand the meaning of the word to
include something or by providing examples — then the definition is not exhaustive. The
court is not restricted to the meaning provided.

Dilworth v Commissioner of Stamps, [1899] AC 99 (PC) - Where the word defined is declared to
‘include’ such and such, the definition is prima facie extensive.

9. EXPLANATION

An explanation is generally appended to an enacting provision and explains or clarifies the

meaning of a section or word therein. It becomes part and parcel of the provision and
therefore is an aid to interpretation. An Explanation may be added to include something within
or to exclude something from the ambit of the main enactment or the connotation of some
words occurring in it.

Sundaram Pillar v Pattabiraman 1985] 1 SCC 591 - Fazal Ali J: The following as objects of an
Explanation to a statutory provision:

1. to explain the meaning and intendment of the Act itself,

2. where there is any obscurity or vagueness in the main enactment, to clarify the same so as
to make it consistent with the dominant object which it seems to subserve.
3. to provide an additional support to the dominant object of the Act in order to make it
meaningful and purposeful,
4. an Explanation cannot in any way interfere with or change the enactment or any part
thereof but where some gap is left which is relevant for the purpose of the Explanation, in
order to suppress the mischief and advance the object of the Act it can help or assist the
court in interpreting the true purport and intendment of the enactment, and
5. it cannot, however, take away a statutory right with which any person under a statute has
been clothed or set at naught the working of an Act by becoming an hindrance in the
interpretation of the same.

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PRESUMPTIONS
Presumptions are the default position from where courts begin the exercise of interpretation.
These are priori assumptions/statements that inform the interpretation process. They provide
a useful guide with regard to the initial direction that the Courts will assume in the process of
interpretation. All presumptions of statutory interpretation are rebuttable however the burden
of rebutting them primarily lies on the person challenging their operation.

1. STATUTES ARE PRESUMED TO BE TERRITORIAL IN APPLICATION

The ordinary principle of construction is that is legislature is dealing with the subject-matter
situated within its own territorial jurisdiction. The presumption is that, if the statute is silent on
the point, the intention of the legislature is to confine the operation of statute to the territorial
limits of the state.

2. STATUTES ARE PRESUMED TO BE IN CONFORMITY WITH INTERNATIONAL LAW

Legislature is presumed not to enact contrary to International Law. Every statute is to be so

interpreted and applied, as far as its language admits, as not to be inconsistent with the comity
of nations or with the established rules of international law.

Maxwell, Interpretation of Statutes, 12th edn, 183: If there are two construction, one of which
runs contrary to the international law and the other conforms the international law, the courts
shall adopt that which adheres to international law.

The courts would be inclined to favour an interpretation which would bring the enactment into
consonance with international law unless the intention of the legislature to contravene
international law is expressly clear from the enactment.

Rochefoucauld v Boustead [1896] 66 LJ Ch 75 - The judges may not pronounce an Act ultra
vires as contravening international law, but may recoil, in case of ambiguity, from a
construction which would involve a breach of the ascertained and accepted rules of
international law.

3. THE LEGISLATURE IS PRESUMED TO MAKE NO MISTAKE

The legislature is presumed to be a good writer in its own field. It is not competent for the
court to proceed on the assumption that the legislature knows not what it says or that it has
made a mistake. We cannot assume a mistake in the Act of parliament.

Commissioner for Special Purposes of Income-Tax v Pemsel [1891] AC 531 - Lord Halsbury: "I
do not think it is competent to any court to proceed upon the assumption that the legislature
has made a mistake. Whatever the real fact may be, I think a court of law is bound to proceed
upon the assumption that the legislature is an ideal person that does not make mistakes. It

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must be assumed that it had intended what it has said, and I think any other view of the mode
in which

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one must approach the interpretation of a statute, would give authority for an interpretation of
the language of an Act of Parliament which would be attended with the most serious
consequence."

Everett v Wells [1841] 10 LJ CP 81 - Tindal CJ: "It is our duty neither to add nor to take from a
statute unless we seed good grounds for thinking that the legislature intended something
which it has failed precisely to express."

Salmon v Duncombe [1886] 11 AC 627 - It is an equally recognized principle of interpretation

that where the main object and intention of a statute are clear, it must not be reduced to a
nullity by the draftsmen unskillfulness or ignorance of the law except in case of necessary or
the absolute intractability of the language used.

On this principle, words in a statute may be added, altered or even rejected according to the
requirements of the case.

4. LEGISLATURE DOES NOT WASTE ITS WORDS

The Legislature is deemed not to waste its words or to say anything in vain. The presumption is
always against superfluity in a statute. An Act hence should be construed as to avoid
redundancy or surplusage.

Bindra on Interpretation:

A. Where the law provides a remedy to a person, the provision has to be so construed in case
of ambiguity as to make the availing of the remedy practical and the exercise of the power
conferred on the authority as meaningful and effective. A construction which would render
the provision nugatory ought to be avoided.
B. No word should be regarded as superfluous unless it is not possible to give a proper
interpretation to the enactment, or the meaning given is absurd or inequitable. A court
should not be prompt to ascribe and indeed should not, without necessity or some sound
reason, impute to the language of a statute, tautology or superfluity.
C. No part of a provision of a statute can be just ignored by saying that the legislature enacted
the same not knowing what it was saying. We must assume that the legislature deliberately
used that expression and it intended to convey some meaning thereby.

5. LEGISLATURE IS PRESUMED TO KNOW THE LAW, JUDICIAL DECISIONS AND GENERAL

PRINCIPLES

The legislature must be presumed to know the course of the legislation, as well as the course
of judicial decisions in the country.

Wilberforce, Statute Law: "The presumption that the legislature knows what is the existing law
at the time when it passes any statute, is a most important element in the consideration of the
changes which such statute may effect. It would be impossible to form a consistent or

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harmonious view of our law if each statute were to be regarded as an independent act of
legislation, and not as a part of a general system. We are, therefore, bound to assume that in
passing a statute, the legislature has before its mind's eye an exact outline of the law affecting
the particular subject with which it is dealing. The new statute is intended, as far as possible, to
fix into the existing framework."

This presumption plays an important role in two instances;

(a) Where the legislature codifies common law into a statute; and,
(b) When a statute is repealed and re-enacted.

When the legislature codifies an area hitherto covered by the common law, it is presumed that
the common law will supplement the legislation even if the codification is not comprehensive.
Additionally, when the language used in such codifying statute is capable of various
interpretations, the one that does not alter the common law shall be adopted. In case of purely
consolidating statutes the presumption is that such a statute is not intended to alter the law.
When however a statute is intended to alter the existing common law, this presumption
requires court to adopt a strict interpretation of such a statute.

Dalsingar Singh v Jainathkuer AIR [1940] Oudh 138 - Hamiltan J: "There is a presumption that
the legislature does not intend to make any substantial alteration in the law beyond what it
explicitly declares either in express terms or by clear implication, or, in other words, beyond
the immediate scope and object of the statute. It is in the last degree improbable that the
legislature would overthrow fundamental principles, infringe rights, or depart from the general
system of law, without expressing its intention with irresistible clearness."

Bengal Immunity Co v State of Bihar AIR [1955] SC 661 - When a statute is repealed and re-
enacted, and words in the repealed statute are reproduced in the new statute, they should be
interpreted in the sense which had been judicially put on them in the repealed Act, because
the legislature is presumed to be acquainted with the construction which the courts have put
upon the words, and when they repeat the same words, they must be taken to have accepted
the interpretation put on them by the court as correctly reflecting the legislative mind.

Graham v Van Wyck 14 Barb 53 - It is also presumed that the legislature is aware of the
general principles of law and did not intent to overthrow a fundamental legal principle, in the
absence of a contrary intention expressed in unmistakable terms.

6. PRESUMPTION AGAINST RETROSPECTIVITY

Every statute is deemed to be prospective, unless by express provision or necessary implication

it is to have a retrospective effect. Retrospection is not to be presumed. If the court is in doubt
whether the statute was intended to operate retrospectively, it should resolve the doubt
against such operation.

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Black, Construction and Interpretation of Law, second edn, p 385: "Except in the case of
remedial statutes and those which relate to procedure in the courts, it is a general rule that
Acts of legislature will not be so construed as to make them operate retrospectively, unless the
legislature has explicitly declared its intention that they should so operate, or unless such
intention appears by necessary implication from the nature and words of the Act so clearly as
to leave no room for a reasonable doubt on the subject."

7. THE LEGISLATURE DOES NOT INTEND TO OUST THE COURT'S JURISDICTION

If a statute purports to exclude the ordinary jurisdiction of civil courts, it must do so either by
express terms or by the use of such terms as would necessarily lead to the inference of such
exclusion. When the language is doubtful, the courts will lean against an ouster of the
jurisdiction of the ordinary courts, except in cases which are clearly and specifically indicated
by the legislature. Any statute which encroaches on the jurisdiction of courts is subject to a
strict interpretation, and it is, therefore, expected that if such was the intention of the
legislature, care should be taken to manifest it, if not in express words, at least by clear
indication and beyond reasonable doubt. It is practically impossible to oust the jurisdiction of
the superior courts.

 Interpretation Ordinance No.18 of 1972,s 22

 Anisminic Ltd. s Foreign Compensation Tribunal [1968]

8. WORDS INTERPRETED IN ORDINARY SENSE UNLESS TECHNICAL

Words of common use are generally to be construed according to their natural, plain and
ordinary significance, particularly when they are themselves precise and unambiguous. It is
presumed unless indicated otherwise that the legislature intends the words to be understood
in their natural and plain meaning.

Martison v Hart [1854] 14 CB 357 - By plain and natural meaning is meant the literal and
popular as opposed to a figurative or technical meaning.

Deputy Commissioner of Agricultural Income-tax and Sales-tax v Chandra Corporation [1976]

Ker LT 22 - The expression 'refrigerator' in Kerala General Sales Tax Act, 1963 was up for
construction. The State argued that this definition included water coolers, if the expression
refrigerator were to be construed in its general sense.

Held: "One has to ascertain whether water-coolers and refrigerators are expressions which are
ordinarily used in common parlance or they are expressions of a technical or scientific
character so as to attribute to them only the technical or scientific meaning. In our opinion,
both water- coolers and refrigerators are commonly understood in the commercial world as
goods serving different purposes...These popular words are well-understood as meaning
different things and the legislature could not have intended to give them any meaning other
than that which is prevalent in the commercial world."

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Technical words are to be given technical meaning. Where a word used by the legislature has a
fixed technical meaning, it is to be taken in that sense, unless the context or other evidence of
meaning indicates a contrary legislative intent.

London & North Eastern Rly Co v Berriman, [1946] AC 278 (HL) - Lord Jowitt LC: "It is, I think,
legitimate in construing a statute relating to a particular industry to give to the words used 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."

This presumption entails the followings:

A. 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.
B. The words and phrases of technical legislation are used in their technical meaning.
C. Terms of art should be understood according to their usage in the art, commerce,
profession or science etc. to which they belong.

9. SAME WORDS SAME MEANING, DIFFERENT WORDS DIFFERENT MEANING

When the Legislature uses same word in different parts of the same section or statute, there is
a presumption that the word is used in the same sense throughout, unless context indicates
otherwise.

Madras Electric Supply Corp Ltd v Boarland, (Inspector of Taxes), (1955) 1 All ER 753760 (HL) -
Lord Macdermott: "The presumption that the same word is used in the same sense throughout
the same enactment acknowledges the virtues of an orderly and consistent use of language,
but it must yield to the requirements of the context and it is, perhaps, at its weakest when the
word in question is of the kind that readily draws its precise import, its range of meaning, from
its immediate setting or the nature of the subject with regard to which it is employed."

Conversely, when in relation to the same subject-matter, different words are used in the same
statute, there is a presumption that they are not used in the same sense.

10. FAIRNESS IN FAVOUR OF STATUTES GRANTING ADMINISTRATIVE POWER

R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 (HL) - Lord
Mustill: "Where an Act of Parliament confers an administrative power, there is a presumption
that it will be exercised in a manner which is fair in all the circumstances. The standards of
fairness are not immutable. They may change with the passage of time. The principles of
fairness are not to be applied by rote identically in every situation. What fairness demands is
dependant on the context of the decision, and this is to be taken into account in all its aspects."

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11. STRICT CONSTRUCTION OF PENAL STATUTES

It is presumed that penal statutes are construed strictly, and in case of doubt, it should be
resolved in favour of the accused.

Crawford, Statutory Constructions: "Criminal and penal statutes must be strictly construed,
that is, they cannot be enlarged or extended by intendment, implication, or by any equitable
considerations. In other words, the language cannot be enlarged beyond the ordinary meaning
of its terms in order to carry into effect the general purpose for which the statute was enacted.
Only those persons, offenses, and penalties, clearly included, beyond any reasonable doubt,
will be considered within the statute's operation. They must come clearly within both the spirit
and the letter of the statute, and where there is any reasonable doubt, it must be resolved in
favor of the person accused of violating the statute; that is, all questions in doubt will be
resolved in favor of those from whom the penalty is sought."

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MAXIMS OF INTERPRETATION
The maxims of interpretation encapsulate the body of legal practice regarding certain matters
they refer to in interpretation. They are sometimes referred to as auxiliary rules of
construction, beings of secondary assistance in interpretation. They are also principles that
guide the courts in interpretation. As such, they are not conclusive, and the weight to be
attached to a maxim depends on the circumstances.

1. ABUNDANS CAUTELA NON-NOCET (ABUNDANT CAUTION DOES NO HARM)

This literally means there is no harm done by the legislature’s caution in drafting a statute. It is
a general presumption that the legislature wastes no words. However, that might always be
the case. This maxim is therefore used to rebut in appropriate circumstances that presumption.

Craies, Statute Law, 5th edn. 199: “Sometimes a term is defined in an interpretation clause
merely ex abundanti cautela that is to say, to prevent the possibility of some common law
incident relating to that term escaping notice.”

This allows the court to treat certain words in a statute to have been added by legislature’s
caution, relieving the court from the burden of pronouncing the word concerned as redundant.

2. ACTUS NON-FACIT REUM NISI MENS SIT REA (ACT DOES NOT MAKE ONE GUILTY UNLESS
IT IS ACCOMPANIED BY A GUILTY INTENTION)

As a general rule of our law, a guilty mind is an essential ingredient of crime at common law,
and that prima facie penal statutes should be so construed as to make mens rea an ingredient
of any offence created.

Salmond, Jurisprudence, tenth edn, p 367: “The general conditions of penal liability are
indicated with sufficient accuracy in the legal maxim Actus non tacit reum nisi mens sit rea the
act alone does not amount to guilt, it must be accompanied by a guilty mind. That is to say,
there are two conditions to be fulfilled before penal responsibility can rightly be imposed. The
one is the doing of some act by the person to be held liable. A man is to be accounted
responsible only for what he himself does, not for what other persons do or for events
independent of human activity altogether. The other is the mens rea or guilty mind with which
the act is done. It is not enough that a man has done some act which on account of its
mischievous results, the law prohibits; before the law can justly punish the act, an inquiry must
be made into the mental attitude of the doer. For although the act may have been objectively
wrongful, the mind and the will of the doer may have been innocent.”

Exception: If the legislative intent in a statute is such that mental element be disregarded for
the purpose of that statute.

Sherras v De Rutzen [1895] 1 QB 918 - Wright J.: “[T]hat the presumption that mens rea is an
essential ingredient in every offence is liable to be displaced either by the words of the statute
creating the offence or by subject matter with which it deals, and that both must be
considered. The answer to the question of whether the legislature intended that no one should
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be deemed

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to contravene its provisions so long as he was honestly ignorant depends upon the terms of the
statute or ordinance creating the offence.”

3. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (EXPLICIT MENTION OF ONE THING IS THE
EXCLUSION OF ANOTHER)

Product of logic and common sense, this maxim implies that when something is expressed —
something is saved — it naturally means that something else is excluded — something else is
discarded. It therefore logically follows that if a statute enumerates the things upon which it is
to operate, everything else must necessarily, and by implication, be excluded from its
operation and effect. For instance,
 If the statute in question enumerates the matters over which a court has jurisdiction, no
other matters may be included.
 Where a statute forbids the performance of certain things, only those things expressly
mentioned are forbidden.
 If the statute directs that certain acts shall be done in a specified manner, or by certain
person, their performance in any other manner than that specified, or by any other
person than one of those named, is impliedly prohibited.

R v Inhabitants of Sedgley 1831] 109 ER 1068 - Facts: The Poor Relief Act 1601 read “shall raise
weekly or otherwise by taxation of every occupier of lands, houses, tithes, ... coalmines or
saleable Underwoods.” Issue: Are other mines such as limestone mines included? Held:
Applying this maxim, court held that express inclusion of ‘coalmines’ excludes all other types of
mines.

Exception: Where the intention clearly reveals that the law-makers did not mean that express
mention of one thing should operate to exclude all others, of course, the principle is not
applicable.

4. NOSCITUR A SOCIIS (A WORD OR PHRASE IS KNOWN BY THE COMPANY IT KEEPS).

The meaning of a word is to be judged by the company it keeps. This applies where there is a
list of words and/or phrases. The meaning of any one word or phrase is determined by
reference to words or phrases associated with it. Sometimes few words or phrases may have
two or more meanings. Choosing of correct meaning is important for proper implementation.
When such kinds of difficulties arise, the words or the phrase’s meaning is determined by its
surrounding words or accompanying words.

Maxwell on Interpretation: “Where two or more words, susceptible of analogous meaning, are
coupled together, noscitur a sociis, they are understood to be used in their cognate sense. They
take as it were, their colour from each other, that is, the more general is restricted to a sense
analogous to the les general.”

Before the principle of noscitur a sociis can be pressed into service, it must be shown that the
words are employed in the same sense or that they are susceptible of analogous meaning. It is
a rule wider than the rule of ejusdem genesis, rather the latter rule is only an application of the

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former.

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Pengelley v Bell Punch Co Ltd [1964] 1 WLR 1055 (CA) - Fact: The case concerned section 28 of
the factories act 1961 of England which provided that ‘floors, steps, stairs, passageways and
gangways’ must be kept free from obstruction. Issue: The court had to decide whether a floor
used for storage came under the section. Held: As all the other words were used to indicate
passage, a floor used exclusively for storage did not fall within the Act.

The principle of noscitur a sociis applies to sections and sentences in a manner similar to the
application of the doctrine of in pari materia to statutes covering the same subject matter.
Otherwise, the rule of noscitur a sociis and the rule of ejusdem generis operate identically in
most situations.

5. EIUSDEM GENERIS (OF THE SAME GENUS OR CLASS)

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.
Broadly speaking, where general words follow a particular word, then the general words
should not be construed in their widest sense but should be held as applying to objects,
persons/ things/ the same general nature or class as those specifically enumerated, unless, of
course, there is a clear manifestation of a contrary purpose. Principle underlying the doctrine is
designed to reconcile an incompatibility between specific and general words in view of other
rules of construction.

Used when there is an open list of key words, i.e. list ends with ‘and any other/such like’ - use
the specific key words to understand what they mean, the specific examples will have
generated a class - using the specific to understand the general. It is considered as one of the
specific application of the maxim noscitur a Sociis.

Amar Chandra v Collector of Excise, Tripura, AIR [1972] SC 1863 - The rule applies when:
1. the statute contains an enumeration of specific words;
2. the subjects of enumeration constitute a class or category;
3. that class or category is not exhausted by the enumeration;
4. the general terms follow the enumeration; and,
5. there is no indication of a different legislative intent.

Tillmans H Co v SS Knutsford Ltd, [1908] 2 KB 385 - Farwell LJ, in applying this rule, so as to
limit the phrase “in consequence of war, disturbance or any other cause” to causes of the same
kind as the two named instances, stated: “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.”

Later in his judgment he said: “Now if the words in this case had been ‘in consequence of war,
disturbance or any other cause whatsoever, whether similar to those preceding or not’, there
would have been no room for the argument, because there would be no real category at all; it
is universality, and not a category; it is whole range of causes, but, inasmuch as you have
simply the words’ any other cause’ which are ambiguous, then the rule does apply.”
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Powell v Kempton Park Racecourse Co. Ltd. 1899] AC 143 - Facts: 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. Issue: The House of Lords had to decide if this section applied to an enclosure at
Kempton Park Racecourse in Surrey, where betting had taken place. Held: The court applied the
ejusdem generis rule and held that the other items mentioned in the list related to indoor
places, whereas the enclosure was outside. Hence, the enclosure was not an ‘other place’ and
hence no offence had been committed.

Bindra on Interpretation: The doctrine of ejusdem generis should not be invoked:

1. where the intention of the legislature is clear;
2. where it would result in disregarding the plain language of the statute;
3. where a perusal of the statute as a whole indicates that the legislature intended the
general words to go beyond the class specially designated;
4. where the specific things enumerated have no common characteristic and differ greatly
from one another; or
5. where the particular words embrace all objects of their class so that the general words
must bear a different meaning from the particular words or be meaningless.

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CONSTITUTIONAL INTERPRETATION
THE CHALLENGES OF CONSTITUTIONAL INTERPRETATION

Constitution differs from statutes for the reasons of it being,

 Unique and dominant document
 Lays down special procedure for its enactment, amendment and repeal
 Protector of collective bargain
 Provides fundamental framework for governance
 Embodies basic norms and aspirations of people
 Intentended to last for a longer period

Therefore, there are different opinions among scholars in relation to its interpretation
1. Interpreted in conservative way to safeguard its integrity by not allowing substantial
changes; should be maintained as it was adopted by enforcing the intent of the enactors
2. Interpreted in a broader way incorporating new social, political and historical realities often
unimagined by its framers; framers anticipated the future changes

Hunter v Southam Inc [1984] 2 S.C.R. 145 - Dickson J.: “The task of expounding a Constitution is
crucially different from that of construing a statute. A statute defines present rights and
obligations. It is easily enacted and easily repealed. A Constitution, by contrast, is drafted with
an eye to the future. It must, therefore, be capable of growth of development over time to
meet new social, political & historical realities often unimagined by its framers. Judiciary is the
guardian of Constitution and must, in interpreting its provisions, bear these conditions in
mind.”

The provisions of national constitutions, like other laws, are often ambiguous, vague,
contradictory, insufficiently explicit, or even silent as to constitutional disputes that judges
must decide. In addition they sometimes seem inadequate to deal appropriately with
developments that threaten principles the constitution was intended to safeguard,
developments that its founders either failed, or were unable to anticipate.

How judges resolve these problems through ‘interpretation’ is problematic and controversial,
mainly because legitimate interpretation can be difficult to distinguish from illegitimate change.
Judges believed to have improperly changed a constitution while purporting to interpret it are
vulnerable to criticism for usurping the prescribed power of amendment, violating their duty of
fidelity to law, flouting the principles of democracy and federalism (if the amending procedure
requires special majorities to protect regional interests), and straying beyond their legal
expertise into the realm of politics.

How judges interpret other laws can also be controversial, but the stakes are much higher
where constitutions are concerned. As fundamental laws, they allocate and regulate the
powers of government and the rights of citizens. Their interpretation can have profound effects
on the institutional structure of society, and the exercise of political power within it. It can
affect the distribution of powers or rights between organs of government (legislature,

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executive, and judiciary), levels of government (national and state), and government and
citizen.

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Moreover, legislatures can readily change other laws if they disapprove of the way judges have
interpreted them, but constitutions are usually much more difficult to amend, and erroneous
or undesirable judicial interpretations therefore more difficult to correct

On the other hand, the greater difficulty of amending constitutions might be regarded as a
reason for judges to be more creative when interpreting them, compared with other laws.
Consider the extent to which judges should remedy failures on the part of the constitution’s
founders to expressly provide for problems, whether or not they should have anticipated them.
When interpreting statutes judges are often reluctant to rectify failures of that kind, preferring
to leave it to the legislature to do so. But when dealing with a constitution, it is arguable that
they should be more willing to provide a solution. If, because of the founders’ oversight, a
constitution might fail to achieve one of its main purposes, the potential consequences are
grave. They include the danger of constitutional powers being abused, of the democratic
process or the federal system being subverted, of human rights being violated, and so on. If the
constitution is difficult to amend formally, or if amendment requires action by the very
politicians who pose the threat that needs to be checked, there may be good moral reasons for
the judges to act. Yet there is an obvious risk of such reasoning being used to justify extensive
judicial rewriting of the constitution, especially if the founders’ purposes are pitched at a very
abstract level ('they wanted to achieve a just society, and this is necessary to achieve justice’).
Judges are not supposed to be 'statesmen’, appointed to fill the shoes of the founders and
continue the task of constitution making as an on-going enterprise, correcting mistakes and
omissions wherever they see them.

Much of the controversy surrounding constitutional interpretation concerns two issues. The
first is a version of a conundrum that has perplexed lawyers for millennia: should the
interpretation of a law be governed mainly by its ‘letter’, or by its ‘spirit’? Should a constitution
be regarded as a set of discrete written provisions, authoritative because they were formally
adopted or enacted, or as a normative structure whose written provisions are founded on, and
derive their authority from, more abstract principles and values that may not be expressly
stated? To what extent should ‘implications’ and 'unwritten principles’ be recognized and given
effect? The second issue is the extent to which the meaning of a constitution can, and should,
be determined by the original intentions, purposes, or understandings of its founders. This
issue pits so-called 'non-originalists’ against 'originalists’. The former argue that the
interpretation of a constitution in the modern world should be guided by contemporary needs
and values, rather than the 'dead hand of the past’. The latter reply that such an approach
would allow judges too much power to change the constitution according to their own political
ideologies, contrary to the procedure for formal amendment prescribed by the constitution
itself.

Both issues pose the following question: if the courts are the ‘guardians’ of their nation’s
constitution, what exactly is it that they are guarding? Is it a set of reasonably fixed rules and
principles, laid down at the founding, that must not be changed except by formal amendment?
Or does the force of those rules and principles ultimately depend on abstract principles and
values, whose effective protection may justify considerable judicial creativity in response to

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perceived threats?

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BASIC RULES OF CONSTITUTIONAL INTERPRETATION

Fundamental rules of statutory interpretation mutatis mutandis apply to the interpretation of

the constitution.

Visuvalingam ct al v Liyanage [1983] 2 Sri LR 203 - ‘In regard to the interpretation of a

Constitution it has to be remembered that, although a Constitution, being essentially in the
nature of a statute, the general rules governing the construction of statutes in the main apply
to the construction of Constitutions also, and that the fundamental rule of interpretation is the
same, namely that the Court will have to ascertain the intention gathered from the words of
the Constitution, yet, by reason of the special nature of a Constitution as being the
fundamental law, there are some special rules for the interpretation of a Constitution: The
language of a Constitution should be interpreted as if it were a living organism capable of
growth and development, if interpreted in a broad and liberal spirit, and not in a narrow and
pedantic sense. That, although a broad and liberal spirit should inspire those who interpret a
Constitution, they are however not free to interpret of pervert- the language of the enactment
in the interests of legal or constitutional theory: Where two constructions are possible, that
one which would ensure a smooth and harmonious working of the Constitution should be
adopted, and that the Court should adopt that which will implement, and discard that which
will stultify the apparent intention of the makers of the Constitution: That before making a
choice between two alternative meanings, the Court must read the Constitution as a whole,
take into consideration its different parts and try to harmonise them: that the Court should
proceed on the assumption that no conflict or repugnancy between different parts was
intended by the framers of the Constitution. That, if the Simplest and most obvious'
interpretation of a Constitution is in itself sensible, it is then most likely to be that which was
meant by the people in its adoption; and that words or terms used in a Constitution must be
understood in the sense most obvious to the common understanding at the time of its
adoption, although a different rule might be applied in interpreting Statutes and Acts of
Parliament.’

Rajavarothiam Sampanthan v Attorney General - Constitution was interpreted holistically.

Where two constructions with regard to the President’s power to remove the Prime Minister
from office presented itself, the Supreme Court adopted that one that ensured a smooth and
harmonious working of the Constitution.

Additionally, the constitution must be interpreted so as to give effect to fundamental

constitutional doctrines such as constitutionalism, separation of power and check and balance,
rule of law, independence of judiciary and fundamental rights.

The Queen v Liyanage ct al 60 NLR 64 (Supreme Court) - ‘The authorities are quite clear that
once a Constitution creates a separation of powers, there need not be express words to say
that one branch or function of Government cannot trench in on the other.’ The court, having
found that the constitution was drafted with separation of power in mind, interpreted it so as
to give effect to that doctrine.

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Marbury v Madison [1803] 5 U.S. 137 - The US Supreme Court interpreted the Constitution to
include the implied power of judicial review over legislation so that the doctrine of check and
balance could be given full effect.

APPROACHES TO CONSTITUTIONAL INTERPRETATION

According to Jack M. Balkin, approach much depends on how the constitution is viewed as,
1. constitution as a ‘framework’; or
2. constitution as a ‘skyscraper’.

Constitution as a ’skyscraper’

According to the skyscraper model of a constitution, an adopted constitution is like a

completed building. A constitution is a finished product, although always subject to further
amendment or to a new constitutional convention. People live within the constitution as they
would live within a building. Just as finished buildings provide walls that shelter inhabitants and
create spaces for them to live and work, the constitution-as skyscraper, sets boundaries on
ordinary politics and creates a space for ordinary politics and lawmaking. Constitutional
interpretations—whether by members of the judiciary or by others—do not change the
constitution, at least if the interpretations are correct. Rather, correct interpretations simply
implement or apply the constitution to new situations.

The only way to change a constitution is through amendment or by replacing the constitution
with a new one. Politics outside the amendment or adoption process is not constitutional
politics and it cannot legitimately change the proper interpretation of the constitution. Thus,
once a constitution is adopted, the skyscraper model offers relatively limited opportunities for
constituent power. Constituent power is exercised rarely: it occurs only through amendment, a
new convention, or the dissolution of the constitution and the formation of a new regime.

In this model, democratic legitimacy occurs through engaging in ordinary politics permitted by
the completed constitutional edifice. Judicial review is consistent with democracy to the extent
that it enforces the constitution already in place; its job is to police the constitutional bargain
and preserve the space for ordinary politics created by the constitution. Otherwise, judges
must leave ordinary politics alone.

According to the skyscraper model, judges are constrained by the constitutional bargain in the
finished constitution and must use the appropriate methodology for ascertaining the
constitution’s meaning. To the extent that judges fail to do this, they are unconstrained, and
the danger is that they are merely imposing their own political beliefs and policy preferences.
Judges must apply that proper methodology to limit their temptation to foist their personal
values on an unsuspecting public. Therefore judges and commentators must devote
considerable efforts to ascertain what the correct methodology is and to make sure that all
judges follow it all the time.

Textualism and originalism are examples of the skyscraper model of constitution.

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Constitution as a ‘framework’

The framework model, by contrast, views a constitution as always unfinished. It is an initial

framework for governance, a platform that enables future political development. The
constitution sets politics in motion, and it must be filled out over time through constitutional
construction.

In the skyscraper model, adoption completes a constitution. In the framework model, adoption
is only the beginning of the job. Subsequent actors must implement the constitution-in-
practice. Constitutional construction both by the political branches and by the judiciary is
crucial to this process. Under the framework model, when people interpret the constitution,
they are not simply applying content already known and fixed. Rather, they are building the
constitution-in- practice.

Judges are obligated to enforce the constitutional framework and they may not vary from it.
Nevertheless, by definition, that framework is unfinished, offering an economy of delegation
and constraint to future actors, including judges. By itself the basic framework will not be
sufficient to decide many if not most constitutional controversies that arise over time.
Therefore good judging requires constitutional construction within the basic framework.
Judges must build constitutional doctrines that best serve constitutional functions and
purposes, and they must apply them to ever-new situations leading to further constructions.

Consensus on a single correct interpretive methodology is less urgent in the framework model
than in the skyscraper model.

McCulloch v Maryland 1819] 17 U.S. 316 - Marshall CJ: ‘A constitution, to contain an accurate
detail of all the subdivisions of which its great powers will admit, and of all the means by which
they may be carried into execution, would partake of the prolixity of a legal code, and could
scarcely be embraced by the human mind. It would probably never be understood by the
public.

'Only its great outlines should be marked, its important objects designated, and the minor
ingredients which compose those objects be deduced from the nature of the objects
themselves.’

[The Constitution was] 'intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs.’

Purposive interpretation for the most part and dynamic interpretations are examples of
interpretive methodologies that adhere to the framework model of the constitution.

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ORIGINALISM AND DYNAMIC INTERPRETATION: AN OVERVIEW

Originalism

Originalism is the idea that the task of interpreting a constitution is to ascertain the ‘original
understanding’—the meaning intended by the original framers— and to give effect to that
understanding. Fidelity to the original meaning will provide constant and consistent
interpretation over time, despite changes in the composition of the final court. Fidelity to the
original meaning will also provide an answer to the legitimacy of judicial review. If judicial
review merely gives effect to the original understanding of the framers, then non-elected
judges do not trespass on democratic values when they strike down a statute enacted by an
elected legislative body. As to the admitted necessity of adapting the constitution to new
conditions and new values, the originalist argues that this should be accomplished by the
constitutional amending process, not by the ‘interpretations’ of judges.

Mostly famous among the 'conservative’ judges of the US Supreme Court.

Dynamic Interpretation

Viewing constitution as norm setting ‘framework’ allowing future developments, the dynamic
interpretation says that it should be interpreted 'dynamically,’ that is, in light of their present
societal, political and legal context. It includes what is popularly known as the ‘living
constitution’ approach (the constitution is a living organ that evolves and changes with the
passage of time and reflects the changes in society that such passage brings) and 'progressive
interpretation’ (the idea that the constitution should be interpreted broadly and progressively).

It is, according to Ronald Dworkin, a mode of constitutional construction that remains faithful
to an unchanging text while supporting changes in the interpretation of that text. And what
justifies this claim is perhaps the best-known distinction of his legal philosophy: the distinction
between constitutional concepts and competing conceptions of those concepts.

[Concepts are general ideas, whereas conceptions are a particular person’s view of what that
concepts entail. 'Justice’ is a concept. Various theories explaining what justice entails are
conceptions. 'Due process’ is another concept. Views as to what it consists of are conceptions.]

Dworkin tries to demonstrate it through the following thought experiment:

‘Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt
have in mind examples of the conduct I mean to discourage, but I would not accept that my
“meaning” was limited to these examples, for two reasons. First I would expect my children to
apply my instructions to situations I had not and could not have thought about. Second, I stand
ready to admit that some particular act I had thought was fair when I spoke was in fact unfair,
or vice versa, if one of my children is able to convince me of that later; in that case I should
want to say that my instructions covered the case he cited, not that I had changed my
instructions. I might say that I meant the family to be guided by the concept of fairness, not by
any specific conception of fairness I might have had in mind.’

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On the strength of this thought experiment, Dworkin is able to conclude that judges who would
be faithful to the constitutional text would be sensitive to the fact that the grand normative
provisions of the Constitution, like “equal protection” and “due process,” are written as general
concepts, not particular conceptions. For that reason, judges who seek to be faithful to the text
as written have no choice but to decide for themselves what these provisions mean for the
cases they have to decide. These judges will follow a policy of judicial activism (i.e., a policy of
deciding for themselves) as opposed to policies of deferring either to legislative opinion
(statutes) or to the opinions of past judges (precedents). For deferring to others is fidelity to
them (albeit perhaps for good reasons), not fidelity to the constitutional text.

Like the father in Dworkin’s thought experiment, the framers of general constitutional concepts
(along with everyone else, legislators and judges included) have to admit that their conceptions
of these concepts can be no more than were conceptions—i.e., conceptions that can be wrong.
Fidelity to the general concepts that are actually written in the text therefore requires that, like
the children in Dworkin’s thought experiment, future interpreters decide constitutional
meaning for themselves in a spirit of continuing self-criticism and willingness to change for the
better, the better to realize our constitutional commitments. Dworkin points out that had the
children’s thinking for themselves not been consistent with their father’s instructions, he would
have meant something quite different from what he said. He would have meant not “treat
others fairly,” but “do as I say fairness demands.” In the latter case, what’s uppermost in the
father’s mind isn’t fairness or his children’s being fair or their reputations for fairness; it’s his
authority over his children.

The father in Dworkin’s thought experiment stands to his children as the Constitution’s framers
stand to us. Like the father in Dworkin’s thought experiment, the founding generation
expresses an interest not in its authority over its posterity, but in the latter’s well-being, that is,
in our well- being. Constitution lays down only the concepts. The framer’s conception of what
those concepts entail need not bind the succeeding generations if the conceptions have
changed. This means that constitution must be dynamic so as to reflect what is best for each
generation.

[Eg: Let’s imagine that the Framers had a conception of what ‘due process’ entailed. But the
changes in societal conditions have altered what it entails. Amidst such a change, the judiciary
interprets the term ‘due process’ to give effect to the contemporary changed meaning.]

Edwards v AG Canada [1930] A.C. 124 (P.C.) - Five women challenged the Canadian federal
government’s interpretation of section 24 of the British North America Act, 1867 as blocking
the appointment of women to the Senate. The government had justified its decision on the
basis that at the time of enactment a woman was not considered to be a ‘person’ under the
BNA Act and therefore cannot hold the post of senator.

Held: The Privy Council held that women are ‘person’, justifying that constitution should be
interpreted in a way that adapts to changing times. Instead of originalism that is narrow,
technical and appeals to history, a “large and liberal” style of interpretation that conceives of
the constitution as “a living tree capable of growth and expansion within its natural limits”

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ought to be adopted.

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McCulloch v Maryland [1819] 17 U.S. 316 - Congress established the second National Bank of
the United States in 1816. Many states did objected to the establishment of a National Bank as
an unconstitutional exercise of Congress’s power. For, nowhere in the US Constitution was it
stated that Congress is vested with the power of chartering a bank.

Held: Congress has also been provided general powers under the necessary and proper clause,
which states Congress can make laws it deems necessary and proper to carry out these
enumerated powers. The function of the necessary and proper clause is not to limit but expand
Congresses power. Here, Congress decided that the necessary and proper method of raising
revenue to carry out its enumerated taxing and spending power was to charter the bank of US

John Marshall C.J.: “We must never forget that it is a Constitution we are expounding... A
constitution intended to endure for ages to come, and consequently, to be adapted to the
various crises of human affairs.”

APPROACH OF THE SRI LANKAN JUDICIARY

Although the Sri Lankan judiciary has recognized the paramount and unique nature of the
constitution, it has not always interpreted it in such a way. The judicial approach has been
mixed. At times the effect of interpretation is such that it had the effect of treating the
constitution like any other statute. Nevertheless, recent decisions are predisposed towards
giving effect to the unique nature of the constitution.

Visuvalingam ct al v Liyanage [1983] 2 Sri LR 203 - The court had to decide inter alia if Article
126 (5) of the Constitution was mandatory or directory. In deciding that it despite the word
‘shall’ is directory, Samarakoon C.J. commented on constitutional interpretation thusly: “No
doubt a Constitution is paramount law, to the authority of which .all subordinate laws, are, and
... indeed must be, referable. As such there is a bias towards command. But over the years this
rigid interpretation has given way to a broad and liberal approach. A Constitution is a "living
and organic thing" (per Gwyer, C.J. In re Motor Spirit Act). It embodies "the working principles
for practical Government" and its "provisions. cannot be interpreted and crippled by narrow
technicalities" per Mukharjir J. in Ramhari vs Nilmoni Das, The principles of interpretation that
govern ordinary law are equally applicable to the provisions of a Constitution. For the purpose
of deciding whether a provision in a Constitution is mandatory one must have regard also to
the aims, scope and object of the provision. The mere v s e of the word "shall" does not
necessarily make the provision mandatory.”

Somawathi v Weerasinghe [1990] 2 Sri LR 121 - In the course of interpreting and determining
the scope of Article 126 (2) of the Constitution, courts adopted the textual approach that had
the effect of treating the constitution like any other statute.

Amerasinghe J.: “How should the words of this provision of the Constitution be construed? It
should be construed according to the intent of the makers of the Constitution. Where, as in the
Article before us, the words are in themselves precise and unambiguous, and there is no
absurdity, repugnance or inconsistency with the rest of the Constitution, the words themselves
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do best declare that intention. No more can be necessary than to expound those words in their
plain, natural, ordinary, grammatical and literal sense.”

Sriyani Silva v Iddamalgoda [2003] 1 Sri LR 14 - In expanding the standing under article 126 (2)
of the Constitution, Shirani Bandaranayake J held: “In my view, a strict literal construction
should not be resorted to where it produces such an absurd result. Law, in my view, should be
interpreted to give effect to the right and to suppress the mischief.”

Although a purposive approach was adopted, the judgement suggests that the constitution was
treated akin to statutes, albeit a special one. Edussuriya J’s dissenting judgement had the effect
of equating the constitutional interpretation to the statutory interpretation:

Rajavarothiam Sampanthan v Attorney General - It is unclear what approach the court

favoured. But the discussion of Bindra, albeit dictum, points in the direction that the court was
receptive to dynamic interpretation. [Thus, Bindra [10th ed. at p. 1262] states, “A Constitution
is a documentation of the founding faiths of a nation and the fundamental directions for their
fulfilment. So much so, an organic, not pedantic, approach to interpretation, must guide the
judicial process... [T]he language of the constitution should be interpreted as if it were a living
organism capable of growth and development if interpreted in the broad and liberal spirit, and
not in a narrow and pedantic sense.”

‘However, when interpreting provisions in a Constitution, a Court must approach its‘ task
keeping in mind that the document before the Court is the foundation, charter of governance
and guiding light of the nation. The Court is duty bound to carry out that task in a manner
which correctly understands and interprets the provisions of the Constitution so as to uphold
the Rule of Law and constitutional certainty. The Court must remain alive to the need to
understand and apply the Constitution in accordance with the intention of its makers and also
take into account social, economic and cultural developments which have taken place since the
framing of the Constitution.’

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