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

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

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

Construction and Interpretation distinguished: Strictly speaking, construction and

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

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

TYPES OF INTERPRETATION

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

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

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

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

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

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

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

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

PROBLEMS OF ORDINARY LANGUAGE

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

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

THE DISEASES OF LEGAL LANGUAGE

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

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

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

Lord Hailsham said that probably as many as nine out of ten cases heard on appeal by the Court
of Appeal and the House of Lords in England turn upon or involve the meaning of words
contained in statutes or secondary legislation. 2 It is hardly surprising that in legal affairs there are

1
F. Leiber, Legal and Political Hermeneutics (3rd edn. 1880), p. 18.
2
The same statement is true for the Supreme Court of Pakistan and the Provincial High Courts since they are tasked
with the duty to interpret statutes.
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plenty of ways in which things may go wrong. For one thing, legal documents – whether statutes,
contracts, leases, mortgages, wills, bills of exchange – tend to be complex. Their subject-matter
is difficult. They use a mixture of ordinary language and technical jargon. They are apt to be
long-winded. They are frequently the result of drafting by several hands or at least of
consultation with a variety of people. The final draft may reflect a compromise between different
points of view. Each of these factors militates against simplicity and clarity of expression.

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

Moreover, space will not permit him to put down everything that he does think of. In order to
avoid the danger of misconstruction of the simple request ‘fetch some meat for soup’, the careful
draftsman/communicator would be best advised to specify that he means – from the shop at the
bottom of the road; before lunch; at the customary price; meat of the kind normally eaten by the
family; that the change be returned, etc. In ordinary life, time and patience do not permit such
tedious prolixity. Much is left to common sense. But precisely the same is true of legal
documents. However pedantic the draftsman, there will be much that he will have to leave to
common sense. If everything had to be defined, there would be no end to the document. The
draftsman must perforce select what he thinks are the most important matters to be set down.
Moreover, there are some things that he cannot foresee simply because later developments are
not within the knowledge of anyone at the time. The draftsman who uses the word “vehicle” in
the days of horse-drawn carriages cannot be blamed for any uncertainty as to whether the word
applies to motorcars or aeroplanes.
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The third and most important reason for the singular tendency of legal documents to give rise to
difficulties is that they commonly reflect attempted solutions to problems affecting different and
conflicting interests. A will is the sharing out of property amongst individuals each of whom
might prefer to have more than their allotted share; a contract is an agreement between, say, a
buyer and a seller who have contrary points of view on the deal; a lease is an allocation of rights
and responsibilities between landlord and tenant whose interests diverge at many points. A
statute commonly prescribes a new way of dealing with a particular range of problems as
between the different groups affected. The problem of drafting language so as to avoid ambiguity
and uncertainty is great enough where the relevant parties have broadly the same point of view.
It is infinitely greater where they have an incentive to find different meanings in the words used.
The English language is richly endowed with words that bear multiple meanings and there is
almost no limit to the number of ambiguities that can be found in the ordinary legal document
once ingenious and motivated lawyers start picking it over. It is not necessarily a matter of the
lawyers being “bloody-minded”. They may simply be doing their job by looking for ways in
which the document can be construed to serve the best interests of their client. Ambiguity here is
not the fault of the draftsman nor is it a reflection of the shortcomings of the language; it is
simply the result of the obvious fact that where people look at a text from different points of
view, they are apt to find different meanings in the language used.

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

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

1. The Common Law style which is used in English speaking countries e.g., Britain,
Canada, Australia, etc. and previous colonies of Britain e.g., Pakistan, India, etc.; &
2. The Continental or Civil Law style which is used in countries on the Continent - virtually
all of these countries have codified legal systems e.g., Belgium, the Netherlands,
Germany, France, etc.
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From a legal standpoint, the distinction between the two styles is found in the manner in which
ruling principles are set out. In the Common Law style, the draftsman strives to make provision
for virtually every possible and foreseeable set of facts - this is done by means of setting out a
complex combination of factual possibilities. As regards the Continental style, the ruling
principle is set out broadly and it is left to the courts to decide on the scope and ambit of the rule.

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

1. Short sentences are used.

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

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

The characteristics of the British literary style are:

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

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

3
Sir William Dale (Legal Drafting: A New Approach)
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5. Ideas are not necessarily arranged in a logical manner - excessive forwards and
backwards referencing is present.
6. The statements strive to include every / any possible set of facts which may arise in future
and in some instances, this leads to absurd and illogical combinations.

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

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

CONSISTENCY: It has been said:

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

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

Accelerate-stop distance is...

Air carrier means...

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

Approved... shall mean...

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

Alaska air-carrier includes...

Category shall indicate...

4
Reed Dickerson (Materials on Legal Drafting)
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What is the most remarkable about these examples is that they all occurred in the same section.
Although the particular variations probably did not have important direct consequences, they
served notice on the reader that he could not be sure whether a change in wording signified a
change in substance or not.

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

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

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

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

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

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

In many cases, it may prove vital to explain complex concepts fully and precisely. The objective
is to provide people with as complete a picture as possible but in a simplified manner. Consider
the following examples of wordiness:

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

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

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

The preceding discussion appropriately raises the issue of ambiguity within a paragraph or a
section. Ambiguity is defined as a state of language in which the meaning to be conveyed is
subject to uncertainty, in which the writing can plausibly mean one thing, or another, or still
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another or more. Written material is ambiguous if on its face it has two or more meanings
distinct and mutually exclusive meanings. Usually an ambiguity is an equivocation, that is, an
uncertainty between two meanings. The writing literally says two things. There are three kinds of
ambiguity: semantic, syntactic and contextual.

Semantic ambiguity: This ambiguity arises from the use of polysemous words. Polysemous
words have more than one “dictionary meaning”. Dictionaries do not give meanings; they only
give potential meanings. The correct (potential) meaning is activated by the context in which the
word is used. Consider the following general examples and determine where the ambiguity lies:

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

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

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

1. The burglar threatened the student with the knife.

2. They are hunting dogs.
3. Look at that dog with one eye.
4. Visiting relatives can be boring.
5. I’m glad I’m a man, and so is Ariel.
6. John saw the man on the mountain with a telescope.
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7. The chicken is ready to eat.

8. He fed her cat food.
9. The passer-by helps dog bite victim.
10. Jack ate a salad with biryani from Hyderabad for lunch on Tuesday.

Contextual Ambiguity: A third, and likewise prevalent, kind of ambiguity, is contextual

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

1. An agreement that calls for payment of 75, 000 in six monthly instalments of 15, 000. Six
payments of 15, 000 will, of course, total 90, 000. So, does the agreement require
payment of 75, 000 or 90, 000?
2. A marital settlement agreement required the husband to pay alimony to the wife ‘until
20/02/20, Yasmeen’s 18th birthday’. As it so happens, the specified date would be the
18th birthday of the couple’s youngest daughter, Mariam. The couple’s middle daughter,
Yasmeen, turned 18 on August 1, 2018.5 So, which date controls?
3. All judicial proceedings arising out of or relating to this Agreement shall be brought in a
court of competent jurisdiction in the District of Columbia, and Borrower accepts the
exclusive jurisdiction of the aforesaid courts and waives any defence of forum non
conveniens.6 Nothing herein shall limit the right of Lender to bring proceedings against
Borrower in the courts of any other jurisdiction.7

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

VAGUENESS: Vagueness is the imprecise or unclear use of language. It arises from the use of
terms that are inherently vague. With reference to vagueness, language is uncertain in its
respective applications to a number of particulars. Whereas the uncertainty of ambiguity is
8
The first sentence purports to give either party the right to terminate at any time, upon thirty days notification. The
latter purports to obligate the insurer for three years.
9
In isolation, the middle sentence appears to be a waiver of a right to bring or participate in a class action. However,
because the clause was sandwiched between two sentences dealing with arbitration, the Southern District of New
York ruled last month that the waiver was limited to arbitration proceedings and did not apply to actions as to which
arbitration had been waived.
10
The third sentence appears to refer to all alterations. However, the prior two sentences both refer to alterations
made ‘after Tenant’s Initial Build-Out.’
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central, with an
“either-or” challenge, the uncertainty of vagueness lies in marginal questions of degree. This
uncertainty is said to result from the open texture of concepts. Most words that denote classes or
categories (these words include most of the words of which statutes are composed) have
elements of vagueness. For example, the word “red” or “near” is vague.

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

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

GENERALITY: A concept that sometimes makes it difficult to understand the statute is that of
generality. It is often confused with vagueness and sometimes even with ambiguity. A term is
‘general’ when it is not limited to a unique referent and thus can denote more than one. It would
be hard to imagine a statute that did not contain at least one general term. The confusion of
generality with ambiguity is most likely to occur with respect to heterogeneous classes that
include different referents that it is often useful to distinguish. For example, the general term
“grandmother” is not ambiguous merely because it includes a paternal grandmother as well as a
maternal one. Similarly, for the general term “brother-in-law”, which includes both a wife’s or
husband's brother and a sister’s husband. The difference between such hetero-generality and
 17

ambiguity is that the former permits simultaneous reference, whereas the latter permits only
alternative reference. Which is present usually depends on the context in which the term is used.
In the sentence, ‘A grandmother sometimes has heavy responsibilities’, the word
“grandmother” is general. In the sentence, ‘My grandmother sometimes has heavy
responsibilities’, it may well be ambiguous, if both grandmothers are living.

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

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

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

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

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

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

1. Obtain prior approval before;

2. Surviving widow;
3. True facts;
4. Written instrument;
5. Close proximity;
 18

6. Final conclusion;
7. False pretence;
8. Unexpected emergency;
9. New beginning;
10. Tuna fish.

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

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

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

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

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

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

‘(2) Any person who has been subpoenaed to appear before the committee and who,
without sufficient cause, fails to attend at the time and place specified in the subpoena or to
remain in attendance until he is excused by the chairman from further attendance, or having
attended, refuses to be sworn or to make an affirmation after he has been asked by the
chairman to do so, or, having been sworn or having made an affirmation, fails to answer fully
and satisfactorily any question lawfully put to him, or fails to produce any book, document or
other object in his possession or under his control which he has been subpoenaed to produce,
shall be guilty of an offence.’
 19

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

Examples of active voice:

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

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

Examples of passive voice:

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

Regarding the above sentences:

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

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

REPETITON: Lawyers have a bad habit of repeating themselves. Unless there is a special
reason to repeat, saying it once is sufficient. This only complicates matters within the statute and
 20

makes it harder to understand. For example, a statute makes it a crime to mutilate plants. It
describes the plants as:

‘Any tree or shrub, or fern or herb or bulb or cactus or flower, or huckleberry or

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

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

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

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

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

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

Legal language is not really ordinary language. That is certainly one reason why we need rules
of interpretation to help understand what has been said or written. The rules provide us with a
guide. Statutes are interpreted by the courts which, in effect, extend their meaning by
interpretation. Those interpretations are authoritative statements as to that meaning. They
provide lawyers and the population in future with a further source of understanding the meaning
of the statute.
21
 22

DETERMINATION OF THE LEGISLATIVE INTENT

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

‘Statutory interpretation is an exercise which requires the court to identify the

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

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

Legislative meaning: In all ordinary cases and primarily, the language employed is the
determining factor of intention. The first and primary rule of construction is that the intention of
the Legislature must be found in the words used by the Legislature itself. The question is not
 23

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

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

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

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

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

Similarly:

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

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

Naturally, the legislative purpose is the reason why the particular enactment was passed by the
Legislature. Perhaps the reason was to remedy some existing evil, or to correct some defect in
11
How do you decide that the word or words used are not plain? Who gets to decide them? This will be discussed in
detail under the heading of the literal rule of construction.
 24

existing law, or to create a new right or a new remedy. Consequently, in seeking to ascertain the
legislative purpose, the courts will resort, among other things, to the circumstances existing at
the time of the law’s enactment, to the necessity for the law and the evil intended to be cured by
it, to the intended remedy, to the law prior to the new enactment, and to the consequences of the
construction urged.

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

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

Justice Learned Hand observed:

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

The interpretation of statutes is a complex area of law and also an essential one. In the complex
area of interpretation, recourse can be had to the rules and aids of statutory interpretation.
 25

RULES OF INTERPRETATION

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

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

Lord Reid said:

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

LITERAL RULE OF CONSTRUCTION

The first and primary rule of construction is that is to be assumed that the words and phrase of
technical legislation are used in their technical meaning, if they have acquired one, and otherwise
in their ordinary meaning, and the second is that the phrases and sentences of statutes are to be
construed according to the ordinary rules of grammar and speech. The rule of construction is to
12
Also called the canons of construction.
 26

intend the Legislature to have meant what they actually expressed. The object of all
interpretation is to discover the intention of the Parliament, but the intention must be deduced
from the language used. Lord Evershed M. R. said:

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

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

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

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

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

The rationale behind this rule is that courts do not go beyond the words in the statute itself.
These words are the outcome of the formal process by which the parliament has expressed its
decision on what the law is. The statute is the formal expression of the will of parliament. The
 27

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

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

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

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

‘Whenever you have to construe a statute or document you do not construe it

according to the mere ordinary general meaning of the words, but according to the ordinary
meaning of the words as applied to the subject – matter with regard to which they are used.’

Professor H. A. Smith observed:

13
8 B. and C. 99
 28

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

As put by Justice Holmes:

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

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

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

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

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

As stated by Lord Jowitt L. C.:

‘It is, I think, legitimate in construing a statute relating to a particular industry to give
to the words used in a special technical meaning if it can be established that at the date of the
 29

passing of the statute such special meaning was well understood and accepted by those
conversant with the industry.’

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

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

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

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

14
(1888) 57 LJ QB 455
 30

literal construction of the words, the conduct of the bus driver who drove it in such a
manner as to alarm some of his passengers.15 The argument on behalf of the defendant
that the intention of the enactment was to prohibit misconduct in the management of a
vehicle towards public outside on the road was unsuccessful.
c. In Whitely v. Chappel,16 the defendant pretended to be someone who had recently died in
order to use that person’s vote. It was an offence to “impersonate any person entitled to
vote”. The Court held that the defendant could not be convicted of impersonation since
the person he had impersonated was dead. Applying the literal rule in this case, it was
observed by the court that the statute relating to voting rights required a person to be
living in order to be entitled to vote and dead person is not entitled to vote.
d. In Maradana Mosque (Board of Trustees) v. Mahmud,17 a provision empowered the
Minister to make a certain order if satisfied that a school “is being administered” in
contravention of the Act. The counsel for the Minister argued that it was permissible to
take account of the past running of the school. It was held that only the current method of
administration at the time of the order could be considered.
e. In R v. Maginnis,18 the defendant was charged with possession of a controlled drug with
intent to supply it to another under Section 5 (3) of the Misuse of Drugs Act, 1971. A
package containing £ 500 /- worth of cannabis was found in his car. The defendant stated
the cannabis belonged to a friend and that the friend was picking it up later. The trial
judge ruled that his action in handing the drugs back to the friend was an action of
supply. The defendant then pleaded guilty and appealed. The Court of Appeal quashed
the conviction. In the House of Lords, the conviction was reinstated. Lord Keith, giving
the leading speech, said:
‘The word “supply”, in its ordinary natural meaning, conveys the idea of
furnishing or providing to another something which is wanted or required in order to
meet the wants or requirements of that other, it connotes more than the mere transfer
of physical control of some chattel or object from one person to another... In my
opinion, it is not a necessary element in the conception of supply that the provision

15
Jones v. Powell [1965] 2 Q.B. 216
16
(1868) LR 4 QB 147
17
[1967] 1 AC 13
18
[1987] AC 303 HL
 31

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

19
Commissioner of Sales Tax, M. P. Indore v. Jaswant Singh Charan Singh AIR 1967 SC 1454
20
[1969] 2 AC 31
 32

an American dictionary gives a meaning of poultry as including pheasants, are irrelevant

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

MEANING PLAIN, EFFECT MUST BE GIVEN REGARDLESS OF CONSEQUENCES:

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

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

According to Viscount Simonds L. C.:

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

Lord Esher said:

21
(1891) 2 QB 115 (CA)
 33

‘If the words of an Act are clear then you must follow them even though they lead to a
manifest absurdity. The Court has nothing to do with the question whether the Legislature has
committed an absurdity or not.’

Lord Diplock observed:

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

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

R v. Ojibway

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

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

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

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

In light of the definition section, my course is quite clear. Section 1 defines “bird” as “a two-
legged animal covered with feathers”. There can be no doubt that this case is covered by this
section.
 34

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

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

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

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

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

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

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

It remains then to state my reason for judgment which, simply, is as follows: Different things
may take on some meaning for different purposes. For the purpose of the Small Birds Act, all
two-legged, feather-covered animals are birds. This, of course, does not imply that only two-
legged animals qualify, for the legislative intent is to make two legs merely the minimum
 35

requirement. The statute therefore contemplated multi-legged animals with feathers as well.
Counsel submits that having regard to the purpose of the statute only small animals “naturally
covered” with feathers could have been contemplated. However, had this been the intention of
the legislature, I am certain that the phrase “naturally covered” would have been expressly
inserted just as “Long” was inserted in the Longshoreman’s Act.

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

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

EXAMPLES
a. In London & North Eastern Railway Co. v. Berriman,22 no lookout had been provided,
consequently, a person was killed while oiling the railway track. The widow sued for
compensation. Compensation, under the Fatal Accidents Act, was only payable for those
“relaying or repairing” the track. The Court held that oiling was maintaining the line and
not “relaying or repairing” it.23
b. In R v. Harris,24 the defendant bit off the nose of his victim. The statute, under which he
was charged, made it an offence “to stab, cut or wound”. The Court held that under the
literal rule of construction the act was of biting and it did not come within the meaning of

“stab, cut or wound” as these words implied an instrument had to be used. Therefore, the
defendant’s conviction was quashed.
c. Section 71 of the Representation of the People Act sets out the maximum number of
persons who may be employed in the election and prescribes the amount to be spent in
the election by the candidate contesting election. Section 123 (7) of the same Act states
that in order to amount to a corrupt practice, the excess expenditure must be incurred or
authorised by the candidate or his agent and the employment of extra persons must also

22
(1946) 1 All ER 255
23
Lord Jowitt L. C. said: ‘The question is essentially one of degree and that it is impossible to fix any definite
point at which “maintenance” ends and “repair” begins.’
24
(1836) 7 C & P 446
 36

be by a candidate or his agent. In Rananjaya Singh v. Baijnatli Singh,25 the question was
regarding the interpretation of “corrupt practice” as used in Section 123 (7). The servants
of the father of a candidate contesting the election assisted the candidate in the election
by adopting corrupt practices. The question was whether the candidate had participated in
the acts of corruption and whether the servants of the father were his agents as well. In
construing these two sections of the Representation of the People Act, the court held that,
in relation to the son (the candidate contesting the election), those persons were mere
volunteers and not employed by him. The Court rejected the argument that such a
construction would give candidates with rich family members/relatives and friends an
unfair advantage over a poor candidate and would, therefore, be against the spirit of the
election laws. It was held this was a case where a father assisted the son in the matter of
the election. These persons were employed by the father and at the request of the father,
these persons assisted the son in the election. It was also held that for the section to apply,
the people ought to have been employed by the candidate himself or his agent. The Court
said:
‘If all that can be said of these statutory provisions is that construed according
to the ordinary, grammatical and natural meaning of their language they work
injustice by placing the poorer candidates at a disadvantage, the appeal must be to
Parliament and not to this court.’

GOLDEN RULE OF CONSTRUCTION

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

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

25
AIR 1954 SC 749
 37

people from using lifts where, for example, someone lights a cigarette to smoke or a stove to
cook food.

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

‘In construing wills and indeed statutes and all written instruments, the grammatical
and ordinary sense of the word is adhered to, unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the instrument in which case the
grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity,
and inconsistency, but no further.’

In another case, it was said:

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

Similarly:

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

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

EXAMPLES
a. Section 3 of the Official Secrets Act, 1920 provided that ‘no person in the vicinity of
any prohibited place shall obstruct, knowingly mislead or otherwise interfere with or
impede, the chief officer or a superintendent or other officer of police, or any member
of His Majesty’s forces engaged on guard, sentry, patrol, or other similar duty in
relation to the prohibited place, and, if any person acts in contravention of, or fails to
comply with, this provision, he shall be guilty of a misdemeanour.’ In Adler v. George,26
the defendant had obtained access to and was on the Air Force station on May 11, 1963,
and there and then, it was found that he had obstructed a member of Her Majesty’s Royal

26
[1964] 2 QB 7
 38

Air Force. The defendant referred to the natural meaning of “vicinity”, which is the state
of being near in space, and argued that it does not cover being in fact on the station as in
the present case. The Courts had to determine whether “in the vicinity of” included “on /
in” the premises. Applying the golden rule and upholding the defendant’s conviction, the
Court said the in the vicinity did include on or in the premises as well. It said that it
would be absurd for a person to be liable if they were near to a prohibited place and not if
they were actually in it.
b. Under the Motor Vehicles (Construction and Use) Regulations 1973, it was an offence to
park a motor vehicle overnight on the road with the offside (driver’s side) against the
kerb.27 However, this is not an offence if a uniformed police officer has given permission
to park in this way. In Keene v. Muncaster,28 the defendant was a uniformed police
officer who parked his car overnight with its offside against the kerb. He was prosecuted
and relied on the defence that he had given himself permission. Rejecting the defence, the
Court held that “permission” meant that permission had to be given by one person to
another.
c. In Re Sigsworth,29 the issue revolved around the word “issue” as mentioned in the
Administration of Justice Act, 1925. In this case, a son murdered his mother and then
committed suicide. Since the mother died intestate, the question in this case was who was
entitled to inherit her estate; the son’s descendants or the other relatives of the mother.
Had the literal rule been applied in the interpretation of the word “issue”, the estate
would have passed on to the son or the descendants of the son but the Court decided
otherwise. Applying the golden rule, it said that the mother’s family was entitled to
inherit her estate and not her son as it would be against public policy if a person would be
allowed to benefit from his crimes.
d. Section 57 of the Offences against the Person Act, 1861 states ‘whosoever being married
shall marry any other person during the lifetime of the former husband or wife is
guilty of an offence’. In R v. Allen,30 the defendant married a second time and was
charged under this Act. The defendant, relying on the literal rule, argued that since civil

27
Kerb: A stone or concrete edging to a street or path.
28
[1980] RTR 377
29
[1935] 1 Ch. 98
30
(1872) LR 1 CCR 367
 39

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

MISCHIEF RULE OF CONSTRUCTION

31
Ruther v. Harris (1876) 1 ExD 97
32
(1885) 34 LJMC 149
33
(1967) 2 Q.B. 442
 40

The mischief rule is a certain rule, within the context of statutory interpretation, which the judges
can apply in order to discover and determine the legislation’s intention. The main aim is to
discover the “mischief and defect” that the statute in question has set out to remedy, and what
ruling would effectively implement this remedy. Originating from a sixteenth century case
known as the Heydon’s case,34 the Barons of the Exchequer resolved as follows:

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

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

And then the office of all the judges is always to make such construction as shall:

 Suppress the mischief and advance the remedy,

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

The Earl of Halsbury stated the rule as follows:

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

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

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

34
(1584) 3 Co Rep 7a
 41

In other words, the mischief rule is to be applied where even the golden rule fails to resolve the
problems of interpretation. Here, in effect, the context of interpretation of the words in the statute
is being widened. The court will look at the position of the law before the statute was passed and
interpret the statute in light of those provisions.

EXAMPLES
a. A person could be arrested if found drunk in charge of a “carriage” on the highway under
Section 12 of the Licensing Act, 1872. In Corkery v. Carpenter,35 the defendant had been
arrested for being drunk in charge of a bicycle on the highway. It was held that the
bicycle was a ‘carriage’ and the mischief aimed at was to prevent people from using any
form of transport on a highway whilst in a state of intoxication.
b. In Bradford v. Wilson,36 a man was arrested in his car for glue-sniffing. He was convicted
with being in charge of a motor vehicle whilst unfit through drink or drugs. He appealed
on the ground that neither glue nor any of its constituents is a drug. Dismissing his
appeal, it was observed by the superior Court that the list of prohibited drugs mentioned
in Schedule 2 of the Misuse of Drugs Act, 1971 could not be taken as conclusive. The
mischief aimed at in the statute was persons being in charge of motor vehicles when they
had taken substances impairing the control of their body movements.
c. In Elliot v. Grey,37 the defendant's car was parked on the road. It was jacked up and had
its battery removed. He was charged with an offence under the Road Traffic Act 1930 of
using an uninsured vehicle on the road. The defendant argued he was not “using” the car
on the road as clearly it was not drivable. The court applied the mischief rule and held
that the car was being used on the road as it represented a hazard and therefore insurance
would be required in the event of an incident. The statute was aimed at ensuring people
were compensated when injured due to the hazards created by others.
d. In Royal College of Nursing v. DHSS,38 the Royal College of Nursing brought an action
challenging the legality of the involvement of nurses in carrying out abortions. The
Offences against the Person Act 1861 makes it an offence for any person to carry out an
abortion. The Abortion Act, 1967 provided that pregnancies had to be “terminated by a
35
[1951] 1 KB 102
36
(1983) 78 Cr App R 77
37
[1960] 1 QB 367
38
[1981] 2 WLR 279
 42

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

39
[1995] QB 88
40
Street prostitutes: The committee also made recommendations to ‘clean up the streets’ of London and other
major cities of prostitutes by introducing much higher penalties for soliciting. But the report did acknowledge that
by forcing prostitutes off the streets there could be a rise in the number of ‘call girls’ and small ads in newspapers
referring to ‘masseuses, models or companions’.
(available at [Link]
41
[1960] 1 WLR 830
 43

‘Observe that it does not say there specifically that the person who is doing the
soliciting must be in the street. Equally, it does not say that it is enough if the person
who receives the solicitation or to whom it is addressed is in the street. For my part I
approach the matter by considering what the mischief is aimed at by this Act.
Everybody knows that this was an Act intended to clean up streets, to enable people to
walk along the streets without being molested or solicited by common prostitutes.
Viewed in that way, it can matter little whether the prostitute is soliciting while in the
street or is standing in a doorway or on a balcony, or at a window, or whether the
window is shut or open or half open; in each case her solicitation is projected to and
addressed to somebody walking in the street.’

REMEMBER AGAIN, THAT THE RULES ARE APPROACHES TO

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

Francis Bennion says:

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

STATUTE TO BE READ AS A WHOLE

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

Lord Davey observed:

42
Of the same matter; of the same subject.
 44

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

Viscount Simonds held:

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

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

Lord Halsbury stated:

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

Similarly, Lord Coke stated:

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

Moreover, a statute ought to be construed as a whole because it is not to be presumed that the
Legislature has used any useless words, and also because it is a dangerous practice to base an
interpretation upon only a part of it, since one portion may be qualified by other portions. If the
 45

statute is not considered in its entirety, the intention of the Legislature is likely to be defeated.
The Legislative intent is likely to be lost where a word, phrase or sentence of the statute is
rejected as where they are read in isolation from other words, phrases and sections of the statute.
The omission or addition of a word from a sentence may easily cause it to express an idea quite
different from the one actually intended or expressed.

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

As Greene M. R. said:

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

Viscount Simonds said:

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

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

43
51 L. J. Q. B. 112
44
AIR 1967 SC 773
 46

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

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

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

THE RULE OF HARMONIOUS CONSTRUCTION

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

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

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

Likewise:
 48

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

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

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

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

A familiar approach in all such cases is to find out which of the two apparently conflicting
provisions is more general and which is more specific and to construe the special provision in a
manner so that it controls the general provision. This principle is expressed by the maxim
Generalia Specialibus Non Derogant i.e., the provisions of a general statute must yield to those
of a special one. The question as to the relative nature of the provisions, general or special, has to
be determined with reference to the area and extent of their application either generally or
specially in particular situations. While general and special provisions are both sources of
legislative intent, and both are entitled to consideration in the construction of statutes by virtue of
 49

the rule requiring the construction as a whole, the reason for granting the special provision the
power to control the general provision is obvious.48

In a case, the court held:

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

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

It has been said:

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

EXAMPLES
a. Section 17 (1) of the Act requires the Government to publish every award of a Labour
Tribunal within thirty days of its receipt. 49 Under sub – section (2),50 the award shall be
final on its publication. Section 18 (1) of the Act provides that a settlement between an
48
Two different statutes are also to be read in harmony where provisions of the statutes are conflicting with each
other, particularly when both the statutes are in pari materia. However, if the provisions of a special Act and a
subsequent general Act cannot be reconciled with, the Courts will be forced to give effect to the later general Act.
 50

employer and his workmen shall be binding on the parties to the agreement. In The
Sirsilk Ltd. and others v. Govt. of Andhra Pradesh and others,51 a settlement was arrived
at after the award was forwarded to the Government for publication by the Labour
Tribunal. The question was whether the Government was still required to publish the
award under Section 17 (1) or was it possible for it to withhold the publication of the
award. In the construction of these two mandatory provisions, 52 the Supreme Court
observed that observed that in the present case, there is a conflict between settlement
under Section 18 and the duty of the government under Section 17 of the Industrial
Disputes Act, 1947. It took the view that the only way to resolve the controversy was to
hold that by the settlement, which becomes effective from the date of signing, the
industrial dispute comes to an end and the award of the Labour Tribunal becomes
fruitless and the Government must refrain from publishing it. The Supreme Court held
that in special circumstances of the case and with a view to avoiding a conflict between
the two provisions, it held that the only solution is to withhold the publication of the
award.
b. Clause 5 (a) of the Government Order empowered, among others, a recognised
association of employers to refer an industrial dispute for adjudication to the Conciliation
Board.53 Clause 23 provided that no employer shall discharge or dismiss any workman
during the pendency of an inquiry except with the written permission of the Regional
Conciliation Officer.54 Clause 26 of the Government Order provided for penalties for
contravention of Clause 23. In The J. K. Cotton Spinning & Weaving Mills Co., Ltd. v.

49
Section 17 (1): Every award shall within a period of thirty days from the date of its receipt by the appropriate
government be published in such manner as the appropriate government thinks fit.
50
Section 17 (2): Award published under sub-section (1) shall be final and shall not be called in question by any
court in any manner whatsoever.
51
AIR 1964 SC 160
52
Both provisions were held to be mandatory provisions and it was mandatory to give effect to both of them.
53
Clause 5 (a): Any employee or recognised association of employers or registered Trade Union of workmen or,
where no registered trade union of workmen exists in any particular concern or industry, the representatives not
more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the
workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in
writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial
dispute or disputes which are to be the subject of such inquiry.
54
Clause 23: Save with the written permission of the Regional Conciliation Officer or the Additional Regional
Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation
Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no employer, his
agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman;
 51

The State Of Uttar Pradesh & others,55 the appellant (an employer) proposed to dismiss
certain workmen. Though, at the time, there was a dispute pending inquiry before a
Regional Conciliation Officer against these workmen, the appellant did not seek
permission under clause 23 to dismiss the workmen; but the Employers’ Association of
Northern India made an application under clause 5 (a) to the Board to adjudicate and give
an award that the appellant was entitled to dismiss the workmen. On behalf of the
workmen, it was contended that the reference under clause 5 (a) was incompetent as the
appellant had not first taken proceedings under clause 23. Holding that the reference
under clause 5 (a) was not maintainable; the Court observed that this was a case
involving a general provision and a special provision. It sought to harmonise both the
clauses by holding that clause 5 (a) was a general provision and clause 23 was a special
one. The employer could not take advantage of clause 5 (a) during the pendency of an
inquiry when clause 23 was applicable. If clause 5 (a) and clause 23 were held to apply at
the same time, there would be disharmony between the two provisions as by resorting to
clause 5 (a) when clause 23 was applicable, the employers would be contravening clause
23 and rendering themselves liable to the penalties under clause 26 of the Government
Order. However, there was complete harmony if it was held that clause 5 (a) applied in
all other cases of dismissal or discharge except in those cases where an inquiry was
pending within the meaning of clause 23.
c. In Hakim Khan v. Government of Pakistan,56 the presidential powers to commute, pardon
and remit under Article 45 of the Constitution were challenged. 57 Ms. Benazir Bhutto, on
assuming power as Prime Minister of Pakistan, gave advice to the President to issue a
“commutation order” to pardon, commute and remit all those convicted by military
courts by General Zia’s Martial Law Regulations. On 8 th December, 1988, the President
issued a commutation order to commute, pardon and remit the sentence awarded by
military courts. This action was challenged by the petitioners. On behalf of the
petitioners, it was contended that since the order of commutation was in violation of
Article 2A of the Constitution, it must be declared illegal. 58 The crux of the argument of
the petitioner was that under Article 2A, Allah is the only supreme authority to pardon or
55
[1960] RD-SC 289 (12 December 1960)
56
PLD 1992 SC 595
57
Article 45: The president shall have power to grant pardon, reprieve, respite, and to remit, suspend or commute
any sentence passed by any court tribunal or other authority.
 52

commute in matters relating to death sentences and the President has no power or
authority whatsoever to pass an order of commutation. In the light of this contention, the
petitioner asserted the point that since there was a conflict between Articles 2A and 45 of
the Constitution, Article 2A is a supra-constitutional provision and can, therefore, be used
to strike down other parts of the Constitution. The Court, while accepting the importance
of the Objectives Resolution i.e. (which later on became Article 2A of the Constitution),
declared that the said Article cannot be granted power to test of repugnancy of any
provision of the Constitution on the touchstone of it. In the Court’s view, the President of
Pakistan had no such power to commute the death sentence awarded in matters of
Hudood, Qisas and Diyat Ordinance. In this view of the matter, the power of pardon in
such cases only vests with the heirs of the deceased. Therefore, the cases in which death
sentences have been awarded, the President had no power to commute, remit or pardon
such sentences. However, the cases would be on different footings, if a person has been
punished by way of Tazir as in such cases, the Head of the State has the power to pardon
the offender and that too in public interest. The Court further noted that if Article 2A is
given power to strike down the provisions, then Constitution of Pakistan will have to be
re-written afresh and that if any article of the Constitution is in conflict with article 2A
the appropriate procedure is to have it amended in accordance with the prescribed
provision for the purpose. However, it does not absolve the courts of their duty to give
effects to the provisions of article 2A as it has been made “substantive part of the
constitution”. A constitution is an organic whole. All its articles have to be interpreted in
a manner that its sole or spirit is given effect to by harmonising various provisions.

WHERE HARMONIOUS CONSTRUCTION IS NOT POSSIBLE

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

58
Article 2A: The principles and provisions set out in the objectives resolution reproduced in the annex1 are hereby
made substantive part of the constitution and shall have effect accordingly.
 53

is in cases such as these where the courts are forced to give preference to one particular provision
over another.

Lord Evershed M. R. asserted:

‘It is no doubt true that if two sections of an Act of Parliament are in truth
irreconcilable, then prima facie the later will be preferred. But these are arguments of the last
resort. The first duty of the Court must be, if the result is fairly possible, to give effect to the
whole expression of the parliamentary intention.’

Of further relevance are the words of Lord Macmillan:

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

EXAMPLES
a. In King v. Dominion Engineering Co. Ltd,59 the issue was with regard to the provisions of
Section 86 (1) of the Special War Revenue Act. In this case, Dominion Engineering
executed a contract with Pulp Company whereby it undertook to manufacture for and
supply to the Pulp Company a pulp drying machine with spare parts and accessories. The
price was to be paid in instalments and the contract expressly stipulated that the property
and right of possession of the apparatus was to pass to the Pulp Company only when all
the stipulated payments had been made in cash. The earlier instalments were paid to the
Dominion Company and sales tax was paid on all of these instalments. However, the Pulp
Company was unable to tender the remaining four instalments because it fell into serious
financial difficulties and went into liquidation. Since the instalments were not paid, the
Dominion Company stopped working on the machine as well as it was never delivered to
the Pulp Company. Under Section 86 (1), 60 the point in time, generally speaking, selected
59
[1944] S.C.R. 371
60
Section 86 (1): There shall be imposed, levied and collected a consumption or sales tax of eight percent on the
sale price of all goods---
(a) Produced or manufactured in Canada, payable by the producer or manufacturer at the time of the delivery of such
goods to the purchaser thereof.
(b) Provided that in the case of any contract for the sale of goods wherein it is provided that the sale price shall be
paid to the manufacturer or producer by instalments as the work progresses, or under any form of conditional sales
agreement, contract of hire – purchase or any form of contract, whereby the property in the goods sold does not pass
to the purchaser thereof until a future date, notwithstanding partial payments by instalments, the said tax shall be
 54

for imposing, levying and collecting sales tax is the time of delivery of the goods to the
purchaser. However, as the goods were never delivered, the general rule of delivery was
inapplicable. But the section is followed by two provisos, which are both designed to
qualify the generality of the rule laid down in the section in matters of delivery. The first
proviso introduces the concept of a notional delivery which is to be held to take place in
certain specified cases, a feature of which is that the property in the goods does not pass
to the purchaser until a future date. In particular, when the contract provides that the sale
price shall be paid to the manufacturer or producer as the work progresses the tax is to be
payable pro tanto at the time each of such instalments falls due and becomes payable in
accordance with the contract. The Crown argued its claim of the sales tax on the
remaining instalments based on proviso 1 of Section 86 (1). However, the Court, rather
than reviewing and countering the Crown’s argument regarding proviso 1, held that
proviso 2 provided a complete and sufficient answer to the issue. The second proviso
qualifies both the general rule of delivery and the first proviso as it provides “further”
that “in any case where is no physical delivery of the goods”, the tax is to be payable
when the property passes to the purchaser. Thus, where there is no physical delivery, the
concept of notional delivery introduced by the first proviso is rendered inapplicable.
Under this second proviso, the Crown’s claim was rejected as it was an impossible hurdle
in the Crown’s claim. The proviso enacts that “in any case” where there has been no
physical delivery the tax is to be payable when the property passes. The Court observed
that if the second proviso was in conflict with the first proviso, it must override the first
proviso as it is the last intention of the law makers.
b. Article 203-C provides for the establishment of the Federal Shariat Court in Pakistan and
the manner in which Judges are to be appointed to this particular Court. 61 Under Article

paid pro tanto at the time each of such instalments falls due and becomes payable in accordance with the terms of
the contract, and all such transactions shall for the purposes of this section, be regarded as sales and deliveries.
Provided further that in any case where there is no physical delivery of the goods by the manufacturer or producer,
the said tax shall be payable when the property in the said goods passes to the purchaser thereof.
61
Article 203(C): The Federal Shariat Court:
(1) There shall be constituted for the purposes of this Chapter a Court to be called the Federal Shariat Court.
[(2) The Court shall consist of not more than eight Muslim [Judges], including the [Chief Justice], to be appointed
by the President].
[(3) The Chief Justice shall be a person who is, or has been, or is qualified to be, a Judge of the Supreme Court or
who is or has been a permanent Judge of a High Court.
(3A) Of the Judges, not more than four shall be persons each one of whom is, or has been, or is qualified to be, a
Judge of a High Court and not more than three shall be Ulema who are well – versed in Islamic Law.]
 55

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

(4) The [Chief Justice] and a [Judge] shall hold office for a period not exceeding three years, but may be appointed
for such further term or terms as the President may determine:
Provided that a Judge of a High Court shall not be appointed to be a [Judge] for a period exceeding [two years]
except with his consent and [except where the Judge is himself the Chief Justice,] after consultation by the President
with the Chief Justice of the High Court.
[(4A) The [Chief Justice], if he is not a Judge of the Supreme Court, and a [Judge] who is not a Judge of a High
Court, may, by writing under his hand addressed to the President, resign his office.]
[(4B) The President may, at any time, by order in writing:
a. Modify the term of appointment of a Judge:
b. Assign to a Judge any other office; and
c. Require a Judge to perform such other functions as the President may deem fit;
And pass such order as he may consider appropriate.
Explanation: In this clause and clause (4c), ‘Judge’ includes Chief Justice.]
(5) A Judge of the High Court who does not accept appointment as a Judge shall be deemed to have retired from his
office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of service
as Judge and total service, if any, in the service of Pakistan.
62
Article 209 (5): If, an information received from the Council or from any other source, President is of the opinion
that a Judge of the Supreme Court or of the High Court:
a. May be incapable of properly performing the duties of his office by reason of physical or mental incapacity;
b. May have been guilty of misconduct,
The President shall direct the Council to inquire into the matter.
63
Article 209 (6): If, after inquiring into the matter, the Council reports to the President that it is of the opinion:
a. That the Judge is incapable of performing the duties of his office or has been guilty of misconduct; and
b. That he should be removed from office;
The President may remove the Judge from office.
64
Article 209 (7): A Judge of the Supreme Court or of a High Court shall not be removed from office except as
provided by this Article.
65
PLD 1996 Supreme Court 324
 56

appointment of a permanent sitting Chief Justice of a High Court or a sitting

permanent Judge thereof is in fact a fresh appointment in a different Court. Factually,
it cannot be treated as a transfer from one High Court to another High Court or a
Court equivalent to it. The above fresh appointment in fact impliedly involves removal
from office of a Chief Justice or a Judge of a High Court, as the case may be, for the
period for which he is appointed in the Federal Shariat Court. It may further be
observed that once a sitting Chief Justice of a High Court or a permanent Judge
thereof appointed in the Federal Shariat Court without his consent, he becomes
susceptible under clause (4B) of Article 203-C to actions detrimental to his security of
tenure which is guaranteed by the above Article 209 (7) of the Constitution, inasmuch
as the President may at any time by an order in writing modify the terms and of
appointment of such a Judge or he may assign to such Judges any other office, i.e. any
office other than of a Judge or require him to perform such other functions as the
President may deem fit, which may not necessarily be judicial functions. In the past,
Mr. Justice Aftab Hussain, who was the Chief Justice of Federal Shariat Court, was
made an Officer on special duty in a Ministry. He declined and took retirement.
A Chief Justice of the High Court, who may be senior to a Chief Justice of the Federal
Shariat Court, after appointment in the Federal Shariat Court, becomes the junior
most Judge. For example, Mr. Justice Nasir Aslam Zahid was appointed in 1980. Mr.
Justice M. Mahboob Ahmad had not joined the Federal Shariat Court, whereas Mr.
Justice Nasir Aslam Zahid joined the same, with the result that he became junior to all
the Judges of the Federal Shariat Court at the time when he joined including the Chief
Justice; though all of them were junior to him on the basis of dates of their respective
induction in the High Court. This also adversely effects the terms of a Judge.
Since there is a conflict between the above two Articles, efforts are to be made to
resolve the same by reconciling it. The Constitution is to be read as a whole as an
organic document. A close scrutiny of the various provisions of the Constitution
highlights that it envisages that the independence of judiciary should be secured as
provided by the founding fathers of the country by passing Objectives Resolution and
by providing security of tenure. The Constitution also envisages separation of judiciary
from the executive. Keeping in view the various provisions of the Constitution, it is not
 57

possible to reconcile the above provisions of Article 203-C and Article 209. In such a
situation, the question arises, which of the Article should prevail. One view can be that
since Article 203-C was incorporated subsequent to Article 209, the former should
prevail. The other view can be that since Article 209 was incorporated by consensus by
the framers of the Constitution and whereas Article 203-C was incorporated by the
then Chief Martial Law Administrator and as the same is detrimental to the basic
concept of independence of judiciary and the separation of judiciary, the former
should prevail. I am inclined to prefer the latter interpretation as it will be more in
consonance with the various provisions of the Constitution and in accord with justice
and fair play. A person cannot be appointed on adverse terms in a new Court without
his consent.
The effect of the above view, which I am inclined to take, would be that any
appointment of a sitting Chief Justice of a High Court or a permanent Judge thereof
without obtaining his consent, would be violative of Article 209 of the Constitution
and, therefore, would be void.’

LANGUAGE OF THE STATUTE SHOULD BE READ AS IT IS

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

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

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

‘We have been warned time and again not to substitute other words for the words of a
statute. And there is very good reason for that. Few words have exact synonyms. The
overtones are almost always different. This is especially true in case of an ordinary English
 58

word of common use for “the easiest word, whatever it may be, can never be translated into
one more easy.”’

CASUS OMISSUS: This Latin expression means, a case omitted from the language of the
section, but within the general scope of the statute, and which appears to have been omitted by
inadvertence or because it was overlooked or unforeseen. Omissions in a statute cannot, as a
general rule, be supplied by construction. Thus, if a particular case is omitted from the terms of
the statute, the view generally is, though, such a case is within the obvious purpose of the statute
and the omission appears to have been due to accident or inadvertence, the court cannot include
the omitted case by supplying the omission. This is equally true where the omission was due to
the failure of the Legislature to foresee the missing case. As is obvious, to permit the court to
supply the omissions in statutes would generally constitute an encroachment upon the field of the
Legislature. As observed by Lord Russell of Killowen:

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

Devlin L. J. said:

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

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

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

Similarly, Lord Loreburn L. C. opined:

 59

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

The above discussion begs the question that how does one determine whether the omission is
deliberate or not for this is no easy task. Attempts to supply the omission, even where the
omission is because of a mistake, would operate to add to the enactment a meaning not intended
by the Legislature. It would seem, in this regard, that when a court is faced with such a dilemma,
it should bear in mind the intended purpose of the statute and the statutory provision which is at
issue; the fact that due to an unintentional mistake on part of the law makers, such omission was
made; that the Legislature had in fact intended to include the omitted case but actually failed to
use language which, prima facie, would cover the omitted scenario; and, the words which the
Legislature would have used had their attention been drawn to the omission in the Bill. Denning
L. J. observed:

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

EXAMPLES
a. The statute provided that ‘no person, firm or corporation conducting a barroom…
should permit any woman or minor child to serve therein’ but omitted to declare the
proprietor guilty if he did so. In State v. Trapp,66 the issue was whether the proprietor
could be held guilty by the court even though there existed no provision in the statute. In
holding that the proprietor was not guilty for allowing a woman or a minor child to serve
in a barroom or a drinking saloon, the court took the view:
‘As the statute does not declare that a proprietor of a barroom or drinking
saloon who permits a woman or minor child to serve in a barroom or drinking room,
shall be deemed guilty of a misdemeanour, the courts cannot declare him guilty,
66
140 La. 425, 73 So. 255, 256
 60

however certain that the omission on the part of the Legislature was inadvertent.
Courts of justice have nothing more to do with criminal statutes than to apply them to
the cases to which the Legislature has declared they shall be applied. If the Legislature
has accidentally or inadvertently failed to express the intention that certain conduct
shall constitute a crime or misdemeanour, the courts cannot correct the error or supply
the omission, no matter how plainly the conduct in question is within the mischief
intended to be remedied.’
b. In Hancock v. Lablache,67 the defendant, a singer and actress, purchased a locket from the
plaintiff and promised to pay the amount in four instalments from her wages which were
her separate property. After the payment of two instalments, she left two instalments
unpaid and the plaintiff sued her for the balance. The plaintiff argued that the balance be
paid out of the defendant’s earnings, which were her own separate property following the
passing of the Married Women’s Property Act, 1870. The objection raised by the
defendant was she could not be sued unless her husband was joined as a defendant in the
case as the Legislature had omitted to enact any provisions involving those cases where
married women were defendants.68 Resultantly, the question was whether the court could
hold the actress liable to pay the balance instalments. The court refused to hold her
responsible to pay the balance as doing so would be adding a new case to the Act.
c. Order 21 rule 89 of the Code of Civil Procedure enables any person, claiming an interest
in a property sold in execution of a decree, apply to have the execution sale set aside on
his depositing, within thirty days from the date of sale, 69 five percent of the purchase
money for payment to the purchaser and the amount payable to the decree holder for
recovery of which the sale was held. The period of limitation for applying under rule 89

67
3 C. P. D. 197
68
Prior to the enactment of the Married Women’s Property Act, 1870, the position in common law was that married
women were not allowed to hold property in their own names. Their husbands became the co – owners of their
properties once the women got married. Similarly, a suit could not be instituted by or against a married woman
without the husband being a party. This position was altered by the passing of Married Women’s Property Act,
1870. The aim of enacting the Married Women’s Property Act, 1870 was to ameliorate the conditions of married
women. Amongst other things, following the passing of the Act, women were allowed to hold properties in their
own names as well as Section 11 granted them the right to sue others without impleading their husbands as co –
plaintiffs. But the Legislature did not enact anything regarding those cases where married women were sued by
others.
69
Rule 92 (2) of Order 21 stipulates a period of thirty days within which the deposit for setting aside an execution
sale has to be made. In India, this period was enlarged to sixty days in 2002. The period in Pakistan, however, still
remains the same.
 61

was also previously thirty days as provided under Article 127 of the Limitation Act,
1963.70 The period of thirty days in the Limitation Act, 1963, was enlarged to sixty days.
The object for enlargement as indicated in the object and reasons of the amending Bill
was that the period of thirty days was too short often resulting in hardship to the person
making the application. However, no amendments were made to rule 89 or 92 of the
Code. In P. K. Unni v. Nirmala Industries,71 it was contended before the Supreme Court
that not only the period for making the application for setting aside the sale was enlarged
to sixty days, but also the period for making the deposit under rule 89 must be taken to
have been extended to sixty days. The court held that though the application itself may be
made within sixty days, the deposit to support the application has to be made within thirty
days. The court said that it would have been more rational to enlarge the period for
making the deposit so as to make it identical with that prescribed for making the
application and this would have better served the object of Parliament, but that was for
the Parliament to legislate upon and the court could not supply the omission.
d. Entry 70 of Schedule I of the Gujarat Gram and Nagar Panchayats Taxes and Fees Rules,
1964 was in question. Entry 70 provided as follows: ‘Silica, Quartz, Zircon sand,
Felspar, Gypsum, Grog72 and Minerals and Oxides used as raw materials . In Gujarat
Composite Ltd. v. Ranip Nagarpalika, JT,73 the question was in relation to Grog Minerals;
do these words in the said Entry 70 refer to (1) Grog and (2) Minerals, or do they refer to
one item known as Grog Minerals. The court said that there being no such item known to
the technical world as Grog Minerals, it was obvious that the said Entry 70 was intended
to cover (1) Grog and (2) Minerals.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

It is a settled rule of statutory construction that the express mention of one person, thing or
consequence implies the exclusion of all others. To state a thing expressly ends the possibility
that something inconsistent with it is implied. This is known as the rule of ‘expressio unius est
exclusio alterius’ (Latin for ‘to express one thing is to exclude another’). It is applied where a

70
Article 166 of the Pakistani Limitation Act, 1908 states a period of thirty days for the making of an application to
set aside an execution sale.
71
AIR 1990 SC 933
72
Crushed unglazed pottery or brick used as an additive in plaster or clay.
73
AIR 2000 SC 135
 62

statutory proposition might have covered a number of matters but in fact mentions only some of
them. In such cases, those matters which are left unmentioned are taken to be excluded from the
proposition.

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

‘Express enactment shuts the door to further implications.’

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

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

EXAMPLES
a. In Intpro Properties (UK) Ltd v. Sauvel,74 it was alleged that a private dwelling occupied
by a financial counsellor at the French embassy in London was the subject of diplomatic
immunity as being “premises of the mission”. The definition of this phrase in Article 1 of
the Vienna Convention on Diplomatic Relations, 1961 is ‘the buildings or parts of
buildings and the land ancillary thereto, irrespective of ownership, used for the
purposes of the mission including the residence of the head of the mission.’ It was held
that the specific mention of the residence of the “head” of the mission made it clear that
the residences of other members of the mission could not form part of the premises of the
mission.

74
[1983] Q. B. 1019
 63

b. In R v. Midland Railway Co,75 an Act imposed ‘a tax on houses, buildings, works,

tenements, and hereditaments.’ Under the provision, the question was whether an open
or unburdened land fell within the ambit of the Act. The court said it did not as the law
makers did not include it within the list of things mentioned.
c. An Act stated that a ship was to be treated as the property of the person in whose name it
was registered. In Curtis v. Perry,76 a man named Nantes, in whose name a ship was
registered, had for years allowed the ship to be regarded in the trade as the joint property
of himself and his partners. The court held, on petition of the creditors of Nantes, that the
long-continued acquiescence of Nantes could not operate as a waiver of his statutory
right to be considered sole owner.
d. In Gomez v. Ventura,77 a physician prescribed opium to his patient even though his
physical condition did not require the use of the drug. The question was whether the
prescription of the drug by the physician constituted “unprofessional conduct” so as to
justify revocation of the physician’s license to practise. The counsel for the physician
argued that the statute enumerated five instances constituting “unprofessional conduct”.
None of the instances enumerated mentioned the prescription of opium to the patient,
thus, the same cannot be a valid ground for revocation of the physician’s license in light
of the rule of expressio unis est exclusio alterio. Repelling the argument, the court said
that the list was merely illustrative and the Legislature never intended to wipe out all
other forms of unprofessional conduct.
e. Section 14 (1) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920
stated that in case of overpayment by the tenant ‘the sum so paid shall be recoverable
from the landlord… who received the payment or his legal personal representative by
the tenant.’ There was no mention of recovery by the legal personal representative of the
tenant. In Dean v. Wiesengrund,78 it was contended that the mention only of the
landlord’s legal personal representative meant that where the tenant had died before
claiming a repayment his legal personal representative could not claim it on behalf of his
estate. It was held that that there was no room for applying the maxim expressio unius est

75
(1855) 4 E & B 958
76
(1802) 6 Ves. 739
77
54 Phil. 726 (1930)
78
[1955] 2 QB 120
 64

exclusio alterius in these circumstances. Rejecting the landlord’s argument, the court took
the view that this was a provision in an Act which expressly provided the tenant the right
to recover for overpayments, therefore, it does not follow that the tenant’s representative
could not also recover for the overpayments when the tenant had died.

NOSCITUR A SOCIIS

‘A statutory term is recognised by its associated words.’ The Latin maxim noscitur a sociis
states this contextual principle, whereby a word or phrase is not to be construed as if it stood
alone but in the light of its surroundings. The rule has given rise to particular precepts such as the
ejusdem generis principle and the rank principle. A word or phrase in an enactment must always
be construed in the light of the surrounding text. Words, and particularly general words, cannot
be read in isolation; their colour and their content are derived from their context. The rule of
construction noscitur a sociis as explained by Lord Macmillan means:

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

As stated by the Privy Council:

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

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

According to Stamp J.:

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

EXAMPLES

a. In Commrs. v. Savoy Hotel,79 while dealing with a Purchase Tax Act, which used the
expression ‘manufactured beverages including fruit – juices and bottled waters and
syrups, etc.’, it was held that that the description fruit – juices as occurring therein should

79
1966 2 All ER 299
 65

be construed in the context of the preceding words and that orange juice unsweetened and
freshly pressed was not within the description.
b. In Bageshwari Charan Singh v. Jagannath,80 the word “declare” as occurring in the
phrase ‘to create, declare, assign, limit or extinguish’ of Section 17 of the Registration
Act, 1908 was in issue. The Privy Council held that though the word “declare” was
capable of bearing a wider meaning but in Section 17, being in association with other
words, its meaning was restricted to connote a definition change of legal relationship as
distinct from a mere statement of facts.
c. In Muir v. Keay,81 in the phrase ‘for public refreshment, resort and entertainment’ in
Section 6 of the Refreshment Houses Act, 1860, “entertainment” was held to mean
reception of the public rather than entertaining them by a theatrical, etc. performance.
d. In Pengelly v. Bell Punch Co. Ltd.,82 the word “floors” as used in ‘floors, steps, stairs,
passageways and gangways’ of the Factories Act, 1961 required interpretation. The court
had to decide whether a floor used for storage fell within the description of the provision.
Applying the principle of noscitur a sociis, the court held that all the words used in the
phrase indicated passage. It said that floors meant parts of floors over which workmen
were likely to pass or repass and a floor used exclusively for storage does not fall within
the description of the Act.
e. In Inland Revenue v Frere,83 the respondent sought to deduct the interest paid on a short-
term loan from his income for the purposes of assessing his liability to pay tax. The
Income Tax Act of 1952 allowed ‘the amount of interest, annuities or other annual
interest to be deducted from the income.’ Under the noscitur a sociis rule, the mention of
amount of interest related only to annual interest as the other items related to annual
payments. The respondent’s interest payment was not an annual interest payment;
therefore, he could not deduct it from his income and he was required to pay tax on it.
f. Section 2 of the Ecclesiastical Courts Jurisdiction Act, 1860 penalises ‘riotous, violent or
indecent behaviour’ in churches and churchyards. In Abrahams v. Cavey,84 prosecution
was brought under Section 2, where the defendant had shouted in a Methodist church
80
AIR 1932 PC 55
81
(1875) LR 10 QB 294
82
[1964] 1 WLR 1055
83
[1964] 3 All ER 796
84
[1968] 1 QB 479
 66

service (held in connection with the Labour Party conference): ‘Oh, you hypocrites, how
can you use the word of God to justify your policies?’ It was held that in Section 2, the
word “indecent” did not have its usual sexual/obscene connotation, but, because of the
surrounding words, must be taken to refer to the indecency of creating some disturbance
within a sacred place.

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

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

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

85
An easy way to differentiate between the noscitur a sociis principle and the ejusdem generis principle is that the
former applies to specific words while the latter applies to general words.
 67

The rule applies when:

 The statute contains an enumeration of specific words;

 The subjects of enumeration constitute a class or category;
 If the subjects differ, the rule is not applicable;
 That class or category is not exhausted by the enumeration;
 That general terms follow the enumeration; and
 There is no indication of a different legislative intent.

Cockburn C. J. said:

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

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

Farwell L. J. commented as follows:

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

Rigby L. J. observed:

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

For the ejusdem generis principle to apply, there must be a sufficient indication of a category that
can properly be described as a class or genus, even though not specified as such in the
enactment. Furthermore, the class must be narrower than the general words it is said to regulate.
The nature of the class is gathered by implication from the express words which suggest it. For
 68

example, if a legal provision specified that ‘boots, shoes, and other articles are not to be
exported’, then this would indicate the class of footwear.

Dixon J. said:

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

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

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

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

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

Maxwell said:

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

Craies goes so far as to have stated:

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

EXAMPLES
 69

a. In Wood v. Metropolitan Police Comr.,86 the appellant was convicted of being armed with
an offensive weapon with intent to commit an arrestable offence, contrary to Section 4 of
the Vagrancy Act, 1824. This applies to ‘every person… being armed with any gun,
pistol, hanger, cutlass, bludgeon, or other offensive weapon.’ The appellant was armed
with a piece of broken glass which had just accidentally fallen out of a panel in his front
door. Applying the ejusdem generis principle, it was held that the term “offensive
weapon” in this phrase was to be construed as confined to articles made or adapted for
use for causing injury to the person.
b. Section 43 of the Customs Consolidation Act 1876 stated that ‘the importation of arms,
ammunition, gunpowder or any other goods may be prohibited by Proclamation or
Order in Council.’ A Proclamation was passed whereby a certain quantity of pyrogallic
acid which had been imported was seized. The acid is a well-known component of
gunpowder and ammunition generally. In A. G. v. Brown,87 the question was whether the
Proclamation and the seizure were valid or not. It was argued that the importation of
chemicals was prohibited by the Proclamation. It was held that the words “any other
goods” must be deemed to be restricted to things of the same class as those previously
specified, and therefore the seizure was illegal. The chemicals were not included in the
category of prohibited goods, and the Proclamation was therefore invalid.
c. Section 1 of the Betting Act 1853 made it an offence to ‘keep a house, office, room or
other place for the purposes of betting.’ In Powell v. Kempton Park Racecourse Co.,88
the House of Lords had to decide whether the section applied to the defendant’s place as
the place in question was an outdoor betting stall set up at the racecourse. The court
applied the ejusdem generis rule and held that the other items mentioned in the statute
related to places indoors whereas the defendant’s enclosure was outside. There was, thus,
no offence committed.
d. In National Association of Local Govt. Officers v. Bolton Corporation,89 in construing the
definition of “workmen” in the Industrial Courts Act, 1919, which reads: ‘means any
person who entered into or works under a contract with an employer whether the

86
[1986] 2 All ER 570
87
[1920] 1 K.B. 773
88
[1899] AC 143
89
(1942) 2 All. ER 425 (HL)
 70

contract be by way of manual labour, clerical work or otherwise’; Viscount Simon, L.

C. said:
‘The use of words “or otherwise” does not bring into play the ejusdem generis
principle for “manual labour” and “clerical work” do not belong to a single limited
genus.’
e. In Hamdard Dawakhana v. Union of India,90 the Fruits Product Order, 1955, made under
Section 3 of the Essential Commodities Act, 1955, required that the minimum percentage
of fruit juice in the final product of a fruit syrup should be 25 percent. Clause 2 (d) (v) of
the Fruits Product Order, 1955 mentioned squashes, crushes, cordials, barley water,
barrelled juice and ready-to-serve beverages or any other beverages containing fruit
juices or fruit pulp. The appellants contended that the requirement as laid out in Section 3
did not apply to its products known as Rooh Afza though it contained fruit juices. 91 The
appellants stated that Rooh Afza is not a foodstuff but a medicinal product, and cannot be
regarded as an essential commodity under the Essential Commodities Act, 1955,
therefore, it is outside the purview of the Fruits Order, 1955. Its intended use is for
common ailments during hot season, particularly for ailments like loss of appetite, sun
stroke, nausea, sleeplessness, etc. It was contended on behalf of the appellants that the
words be read ejusdem generis with the previous categories of beverages. The court
rejected the argument holding that a simple examination of the said beverages will
disclose the fact that there is no genus by reference to which the rule of ejusdem generis
can be properly invoked. Besides, the context of the clause clearly suggests that it is
intended to take in all beverages other than those earlier specified, provided they contain
fruit juices or fruit pulp. Therefore, the court had no difficulty in holding that the sharbat
in question falls within the purview of clause 2 (d) (v) of the Fruits Order and as such, its
production can be controlled by its relevant provisions.
f. In Re Brickman’s Settlement,92 in the phrase ‘an officer or examiner of the court or
other person’ in RSC Ord 39 r 4(a), the residuary words have been held not to include
judges.
90
AIR 1965 SC 1167
91
The ingredients used in Rooh Afza as set out in the judgment are: Kasni Seeds, Khus, Pumpkin Juice, Watermelon
Juice, Chharila, Ripe Grapes, Spinach, Nilofar, Sandal, Gul Gaozaban, Coriander, Carrot, Mint, Kulfa, Keora, Rose,
Citrus Flower, Orange Juice, Pineapple Juice, Water, Sugar.
92
[1981] 1 WLR 1560
 71

g. In Casher v. Holmes,93 in the phrase ‘copper, brass, pewter, and tin, and all other
metals’, in a local Act of 1825, the residuary words were held not to include precious
metals such as gold and silver.

REDDENDO SINGULA SINGULIS

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

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

things such general words are to be construed distributively, reddendo singula singulis; and if
the general words will apply to some things and not to others, the general words are to be
applied to those things to which they will, and not to those to which they will not apply; that
rule is beyond all controversy.’

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

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

EXAMPLES
93
(1831) 2 B & Ad 592
94
Immovable property.
95
Movable property.
 72

a. Section 1 of the Immigration Act, 1971 states ‘All those who are in this Act expressed to
have the right of abode in the United Kingdom shall be free to live in, and to come and
go into and from, the United Kingdom without let or hindrance…’ The phrase “to come
and go into and from” requires construction. Applying Reddendo Singula Singulis, it is
to be read as if it said ‘to come into the United Kingdom and go from it’.
b. In Koteshwar Vittal Kamat v K Rangappa Baliga,96 the question was regarding the
construction of the proviso to Article 304 of the Indian Constitution which reads,
‘Provided that no bill or amendment for the purpose of clause (b), shall be introduced
or moved in the Legislature of a state without the previous sanction of the President’. It
was held that the word “introduced” applies to “bill” and “moved” applies to
“amendment”. The Supreme Court stated that, where a sentence contains several
antecedents and several consequents, they are to be read distributively. That is, the words
are to be applied to the subjects to which they appear by context most properly to relate
and to which they are most applicable.
c. Section 59 (1) of the Local Government Act, 1933 reads: ‘A person shall be disqualified
for being elected97 or “being a member of a local authority98 if he has within five years
before the day of election or since his election been convicted of any offence and
ordered to be imprisoned for a period of not less than three months without the option
of fine.’ In Bishop v. Deakin,99 the defendant was convicted of perjury on 6th July, 1932
and sentenced to six months imprisonment, without the option of a fine; she was
subsequently elected as a councillor on 1st November, 1934. Almost a year after the
election, an action was brought for a declaration that she was disqualified from acting as
a member of the local authority. The difficulty arose from a limitation period in the
relevant legislation which created a six months limitation period for challenging
elections. As the defendant had been in office for almost a full year before the case
challenging her election was issued, the case was outside the limitation period. The

96
AIR 1969 504
97
A person shall be disqualified for being elected if he has within five years before the day of election been
convicted of any offence and ordered to be imprisoned for a period of not less than three months without the option
of fine.
98
A person shall be disqualified for being a member of a local authority if he has within five years since his election
been convicted of any offence and ordered to be imprisoned for a period of not less than three months without the
option of fine.
99
[1936] 1 All ER 255
 73

plaintiffs consequently sought to challenge the defendant’s right to continue holding

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

NON OBSTANTE CLAUSE

The expression “non obstante” means “notwithstanding”. A section sometimes begins with the
phrase “notwithstanding anything contained etc.” Such a clause is called a non obstante clause
and its purpose is to give the provision contained in the non obstante clause an overriding effect
in the event of a conflict between it and the rest of the section. Thus, there is generally a close
relation between the non obstante clause and the main section and in case of ambiguity the non
obstante clause may throw light on the scope and ambit of the rest of the section. The very
purpose of non-obstante clause is that the provision shall prevail over any other provision and
 74

that other provisions shall not be of any consequence. In case there is any inconsistency or a
departure between a non-obstante clause and other provisions, one of the objects of such a clause
is to indicate that it is the non-obstante clause that would prevail over the other clauses.

EXAMPLES

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

1. The President may, by notification in the official Gazette, establish one or more
Service Tribunals and, where there are established more than one Tribunal, the
President shall specify in the notification the class or classes of civil servants In
respect of whom, or the territorial limits within which, or the class or classes of cases
in respect of which, each such Tribunal shall exercise jurisdiction under this Act.
2. A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms
and conditions of service of civil servants, including disciplinary matters.
3. A Tribunal shall consist of—
a. A Chairman, being a person who is, or has been, or is qualified to be. Judge of
a High Court; and
b. Such number of members not exceeding three, each of whom is a person who
possesses such qualifications as may be prescribed by rules, as the President
may from time to time appoint.
4. The Chairman and members of a Tribunal shall be ap*pointed by the President on
such terms and conditions as he may determine.
5. The Chairman or a member of a Tribunal may resign his office by writing under his
hand addressed to the President.
6. The Chairman or a member of a Tribunal shall not hold any other office of profit in
the service of Pakistan if his remuneration is thereby increased.
7. NOTWITHSTANDING anything contained in sub-section (3), sub-section (4),
sub-section (5) or sub-section (6), a Tribunal established to exercise jurisdiction
in respect of a specified class or classes of cases may consist of one or more
persons in the service of Pakistan to be appointed by the President.
b. Article 44 of the Constitution of Pakistan provides:
 75

1. Subject to the Constitution, the President shall hold office for a term of five years
from the day he enters upon his office:
Provided that the President shall, NOTWITHSTANDING the expiration of his
terms, continue to hold office until his successor enters upon his office.
2. Subject to the Constitution, a person holding office as President shall be eligible for
re-election to that office, but no person shall hold that office for more than two
consecutive terms.
3. The President may, by writing under his hand addressed to the Speaker of the
National Assembly, resign his office.

CONJUNCTIVE / DISJUNCTIVE SENSE

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

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

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

EXAMPLES
a. In Federal Steam Navigation Co Ltd v. Department of Trade and Industry,100 the words
‘owner OR master’ as they occur in Section 1(2) of the Oil in Navigation Waters Act,
1955 were construed by the House of Lords to mean ‘owner and master’ making both of
them guilty of the offence under that section. In the court’s view, reading it disjunctively

100
[1974] 2 All ER 97
 76

would have produced an absurd result by giving a choice to the Executive to select either
the owner or master for prosecution without the Act giving any guidance. Such a result
would have been against constitutional practice.
b. In Re H (a minor) (foreign custody order: enforcement),101 the Court of Appeal held that
in Article 10 of the European Convention on the Recognition and Enforcement of
Decisions Concerning Custody of Children, given the force of law by the Child
Abduction and Custody Act, 1985, the statement that “recognition AND enforcement” of
a foreign judgment may be refused was to be construed disjunctively. This meant that a
judgment might be recognised but not enforced. The Court had regard to the statement in
Dicey and Morris on the Conflict of Laws that ‘while a court must recognise every
foreign judgment which it enforces, it need not enforce every foreign judgment which
it recognises’.
c. In section 7 of the Official Secrets Act, 1920, which reads ‘any person who attempts to
commit any offence under the principal Act or this Act, or solicits or incites or
endeavours to persuade another person to commit an offence, or aids or abets AND
does any act preparatory to the commission of an offence’, the word “and” before
“does any act” was read as “or” for by reading it conjunctively the result produced was
unintelligible and absurd and against the clear intention of the Legislature. Thus, a person
who does an act preparatory to the commission of an offence is equally liable even when
he has not done any of the other aforementioned acts.102

MANDATORY / DIRECTORY SENSE

The study of numerous cases on this topic does not lead to formulation of any universal rule
except this that language alone most often is not decisive, and regard must be had to the context,
subject-matter and object of the statutory provision in question, in determining whether the same
is mandatory or directory. The Privy Council has said:

‘The question whether provisions in a statute are directory or imperative has very
frequently arisen in this country, but it has been said that no general rule can be laid down,
and that in every case the object of the statute must be looked at. The cases on the subject will
be found collected in Maxwell on Statutes, 5th ed., p. 596 and following pages...’
101
[1994] Fam. 105
102
R v. Oakes (1959) 2 All ER 92
 77

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

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

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

1. The periods prescribed in the Schedule to the Limitation Act, 1908, for bringing a legal
proceeding are mandatory as the consequence of the expiry of the period of limitation is
provided by Section 3 of the Act in that the Court is enjoined to dismiss a legal
proceeding instituted after expiry of the prescribed period.104
2. The requirement as to registration of certain documents prescribed by Section 17 of the
Registration Act, 1908, is mandatory since the consequence of non-registration is
provided by Section 49 of the Registration Act in that such documents if not registered do
not affect the property comprised therein.105

103
Ghulam Hassan v. Jamshed Ali 2008 SCMR 1001
104
Section 3 of the Limitation Act, 1908: Subject to the provisions contained in sections 4 to 25 (inclusive), every
suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First
Schedule shall be dismissed although limitation has not been set up as a defence.
105
Section 49 of the Registration Act, 1908: No document required to be registered under this Act, or under any
earlier law providing for or relating to registration of documents shall:
a. Operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or
interest, whether vested or contingent, to or in immovable property; or
b. Confer any power to adopt;
Unless it has been registered.
 78

3. The provisions of Order 21 rules 84 106 and 85107 of the Code of Civil Procedure, 1908,
requiring an auction-purchaser to deposit twenty five percent of the purchase money
forthwith and the balance on the fifteenth day from the sale is mandatory, as on failure in
making either of these deposits within the time prescribed, the property has to be re-sold
as provided in Order 21 rule 86.108

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

EXAMPLES
a. Section 5 of the Sindh Rented Premises Ordinance, 1979 where “shall” is interpreted as
“may”.
b. The word “may” appearing in Section 431 (1) of the National Land Code was in
question.109 The Court took the view that the ownership of immovable property is a very
valuable right and is a fundamental right by Article 13 of the Federal Constitution.

106
Order XXI rule 84: 1) On every sale of immovable property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five percent on the amount of his purchase-money to the
officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
2) Where the decree holder is the purchaser and is entitled to set off the purchase-money under rule 12, the Court
may dispense with the requirements of this rule.
107
Order XXI rule 85: The full amount of purchase-money payable shall be paid by the purchaser into Court before
the Court closes on the fifteenth day from the sale of the property;
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-
off to which he may be entitled under rule 72.
108
Order XXI rule 86: In default of payment within the period mentioned in the last preceding rule, the deposit may
if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government and the property shall
be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it
may subsequently be sold.
109
Section 431(1) of the National Land Code:
Without prejudice to any other method of service, a notice MAY BE SERVED on a person or body for the purposes
of this Act –
(a) by delivering the notice to the person; or
(b) by delivering the notice –
(i) at the person’s usual or last known place of abode or business to his servant or to an adult member of his
family; or
(ii) at the body’s registered office or usual or last known place of business to its servant or agent; or …
 79

Accordingly, any deprivation of immovable property must be in strict compliance of both

substantial and procedural law. The effect of an order for sale, including the holding of a
public auction, are designed to permanently deprive a registered proprietor of his land. It
is of utmost importance that such deprivation is undertaken in strict compliance of the
law. Thus, the word “shall” was read instead of the word “may”.110
c. The word “shall” in Section 11 of the Madhya Pradesh Opium Act was held to be a
directory provision even though the word “shall” was used.111 In State Of Madhya
Pradesh v. Azad Bharat Finance Co. & another,112 an Excise Officer, while searching a
truck parked at a bus station, found opium in the truck and challaned five persons
including the owner for the alleged illegal possession and the transportation of the opium.
The owner of the truck had taken a truck under a hire-purchase agreement from a third
party. He was acquitted but the lower courts ordered that the truck be confiscated on the
basis that the provision was mandatory and it had to be forfeited in all circumstances.
However, the apex Courts said that the word “shall” occurring in Section 11 of the Act
means “may” and that it confers discretion on the court to confiscate the vehicle provided
it belongs to the offender.113 It said that the owner of the truck had neither authorised the
offender to transport opium, nor was there any reason to believe that the owner knew that
his vehicle was likely to be used for transporting contraband opium. Therefore, it should
not be confiscated because confiscation in such circumstances would be tantamount to
punishing a person, who has not committed any offence under the Opium Act.
d. In Prida v. Transamerica Ins. Finance Corp.,114 Transamerica Insurance Finance
Corporation [TIFCO], a premium finance company, mailed the insured a notice of
cancellation stating that the motor vehicle liability insurance policy was cancelled. As
required by Section 627.848(3), Florida Statutes (1993),115 the notice of cancellation
110
Kekatong Sdn Bhd v. Bank Bumiputra Malaysia Bhd [1998] 2 CLJ 266 (CA)
111
Section 11: In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been
committed, the property detailed herein below SHALL be confiscated:-
(d) the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found,
and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals,
carts, vessels, rafts and conveyances used in carrying it.
112
1966 SCR 473
113
The Supreme Court also held that the provisions of Section 11 are directory.
114
651 So.2d 763 (1995)
115
Every notice of cancellation shall include, in type or print of which its face SHALL not be smaller than 12 points,
a statement that, if the insurance contract or contracts provide motor vehicle liability insurance required by the
financial responsibility law, proof of financial responsibility is required to be maintained continuously for a period
 80

contained language advising the insured that certain insurance coverage is required by the
financial responsibility law. Section 627.848(3) also requires that this language be ‘in
type or print of which its face SHALL not be smaller than 12 points’. In the instant
case, the required language was set forth in the notice of cancellation in contrasting red
colour. The language, however, was only in 9.5-point type. The plaintiffs moved for
summary judgment arguing that the 12-point type requirement of Section 627.848(3) is
mandatory. The plaintiffs further alleged that because TIFCO failed to strictly comply
with the 12-point type requirement, the insurance policy was not cancelled. The court
found that the use of the smaller type size did not nullify the notice as Section 627.848(3)
did not provide for the consequences of a violation of that section.

of 3 years, pursuant to chapter 324, and the operation of a vehicle without such financial responsibility is unlawful.
 81

JUDICIAL LEGISLATION

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

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

However, there are few today who deny that the interpreter of legislation exercises some creative
role. Many commentators have taken the view that the role of judiciary to merely interpret and
declare the law is a concept of a bygone age. In recent years this has become conventional
wisdom even amongst the judges themselves. Since it is fairly settled that the Courts can mould
and lay down the law formulating principles and guidelines as to adopt and adjust to the
changing conditions of a society, the ultimate object being to administer justice. When judges, by
judicial decisions, lay down a new principle of general application of the nature specifically
reserved for the Legislature, they may be said to have legislated and not merely declared the law.
In a revealing lecture given forty years ago at Birmingham University, Lord Diplock, however,
had no doubt that statutory interpretation could amount to legislation:
 82

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

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

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

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

Evidently Humpty Dumpty was very angry, though he said nothing for a minute or
two. When he DID speak again, it was in a deep growl. ‘It is a — MOST — PROVOKING —
 83

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

365
1
----
364
----

Humpty Dumpty took the book, and looked at it carefully. ‘That seems to be done right
—’ he began. ‘You’re holding it upside down!’ Alice interrupted. ‘To be sure I was!’ Humpty
Dumpty said gaily, as she turned it round for him. ‘I thought it looked a little queer. As I was
saying, that SEEMS to be done right — though I haven’t time to look it over thoroughly just
now — and that shows that there are three hundred and sixty-four days when you might get
un-birthday presents — ’ ‘Certainly,’ said Alice. ‘And only ONE for birthday presents, you
know. There’s glory for you!’ ‘I don’t know what you mean by “glory”, Alice said. Humpty
Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice
knock-down argument for you!”’ ‘But “glory” doesn’t mean “a nice knock-down argument,”’
Alice objected. ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means
 84

just what I choose it to mean — neither more nor less.’ ‘The question is,’ said Alice, ‘whether
you CAN make words mean so many different things.’ ‘The question is, ‘said Humpty
Dumpty, ‘which is to be master — that’s all.’

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

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

This then brings us to the next impending issue and that is: How to describe the extent of judicial
creativity in statutory interpretation? A helpful image was that used by Reed Dickerson in his
book, The Interpretation and Application of Statutes (1975). Dickerson used the simile of the
restorer of an ancient vase. Everything depends on how much of the original vase was available
to him. Sometimes he was simply making a substitute for a small piece missing from the body of
the vase. ‘Here he is guided by the adjacent contours, and, if he is skilful, the result blends
well enough to attract little or no attention. . . . His job is harder if the vase has been
decorated, but the difficulty is small if the decoration follows a discernible pattern’. In this
activity there was some creativity but it was of the lowest order. It still fell within the general
heading of “ascertainment of meaning” in the sense of discovering something that is in a real
sense latent in the material. But the position was plainly very different if the craftsman had only
a single piece and the decoration was free and non-recurring. Here by imaginative speculation he
must attempt to produce something “in the general style” of the original without being able to
pretend that his effort would necessarily approximate to it very closely. Here the element of
 85

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

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

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

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

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

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

observed if judicial independence is not to be put at risk. For if people and Parliament come to
think that the judicial power is to be confined by nothing other than the judge’s sense of what
is right, confidence in the judicial system will be replaced by fear of it becoming uncertain and
arbitrary in its application. Society will then be ready for Parliament to cut the power of
judges. Their power to do justice will become more restricted by law than it needs to be, or is
today.’
86