Statutory Interpretation Flashcards
Statutory Interpretation:
Introduction
Statutory interpretation is defined as the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning.
Doctrine of Separation of Powers
It is a model for the governance of a state.
It is the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.
Three Branches of the Government exist:
The Legislature: Power to make laws
The Executive: Implement and Administer public policy. Execute and Enforce the laws
The Judiciary: Power to interpret laws and apply it to controversies.
It is also known as the system of checks and balances as each branch is given certain powers so as to check and balance the other branches
The Literal Rule
Also known as the plain meaning rule.
When construing a statutory provision whose meaning
is ‘plain and unambiguous’, the words must be given
their literal meaning with nothing added and nothing
taken away.
The words are to be given their ordinary dictionary
meaning.
Colonial Government v. Boullé Lagane & Co. Ltd
(1923) MR 20: “In interpreting … (a statute) …, the true
question is not what the Legislature might be supposed
to have intended to mean, but what the words it has
written actually mean, on the (statute) as it stands”.
-Mason v. R (1955) MR 71: “The tribunal that has to construe an Act of the Legislature … has to determine the intention as expressed by the words used.”
-Procureur General v. Chan Kin Yuen (1953) MR 37, the
Supreme Court considered that “where the words of a statute are clear and explicit, effect must be given to them, even if it leads to a manifest injustice”.
-Uffray v. Damoo (1898) MR 10, the Supreme Court said that where the law gave no definition of certain words, the Court would infer that the legislative power used them in the sense given to them by dictionaries.
-Leclos v. R (1956) MR 86: “In interpreting statutes,
words are to be taken to be used in their ordinary
sense and reference to well-known and authoritative
dictionaries is permissible.”
-Lord Scarman: “We are to be governed not by Parliament’s intention but by Parliament’s enactments.”
-Therefore to summarize: The Judge will use the ordinary, plain and natural meaning of the words used.
If the words are clear, they must be applied, even though the intention of the legislator may have been
different or the result is harsh or undesirable. The literal rule is what the law says instead of what the law
means.
The Literal Rule
Advantages:
- It ensures that Judges do not embark on law-making
- Upholds the doctrine of separation of powers
- No scope for Judges to use their own opinions or prejudices.
The Literal Rule :
Disadvantages
- Disagreements as to what amounts to the ordinary or natural meaning of the word (fails to recognize the complexities and limitations of the English Language)
- Creates loopholes in the law
- Creates awkward precedents which require parliamentary time to correct.
The Golden Rule
-When the construction of a statute would lead to an absurdity if literally interpreted, it should be construed so as to avoid the absurdity. That is, the literal sense of words should be adhered to unless this would lead to absurdity, in which case the literal meaning may be modified.
-Plaines Wilhems S.E. Co. v. Medine Co. Ltd (1943) MR
47: “In a construction of a statute the plain, literal and
grammatical sense of the words is to be adhered to, unless that would be contrary to, or irreconcilable with, the express intention or declared purpose of the statute, or would involve some absurdity, repugnance or inconsistency with the rest of the statute, in which cases the grammatical sense may be further modified so as to avoid such an inconvenience and no further.”
-To summarise:
(a) The Judge departs from the normal meaning of the words in order to avoid an absurd result. The Judge will start with the literal rule. If it produces an absurd result, the Judge will conclude that this result cannot be the intention of Parliament.
(b) The Judge interprets a word but finds that its meaning is inconsistent with other provisions in the statute, so he departs from the literal rule.
-Becke v Smith (1836): Parke B held that if statutory
interpretation should bring about a repugnant or absurd outcome, the golden rule will seek to apply a reasonable and rational result. It is permissible for a court to modify or vary the language of the statute ‘so as to avoid such inconvenience’.
The Golden Rule
Advantages:
- Errors in drafting can be corrected immediately
- Closes loopholes
- Decision in general produces a more just result
The Golden Rule
disadvantages:
- Judges become law makers and hence infringe the doctrine of separation of powers.
- Judges still have no power to intervene for pure injustice where there is no absurdity.
The Mischief Rule
-The Judge must determine Parliament’s intention: Test: What was the mischief/defect that the statute set out to remedy?
-Heydon’s Case (1584), the court held that for the sure and true interpretation of all statutes, 4 things are to be
considered:
(i) What was the common law before the making of the Act?
(ii) What was the mischief and defect for which the common law did not provide?
(iii) What remedy the parliament has resolved and appointed to cure the disease of the commonwealth?
(iv) What is the true reason of the remedy?
-The Judges should then interpret the statute in such a way as to suppress the mischief and advance the remedy.
-R v Harris (1836), the accused bit off the end of his
victim’s nose. He was acquitted of a charge of wounding. The statute provided that “shall unlawfully
and maliciously stab, cut or wound any person”. The
Court used the mischief rule and held that the intention of Parliament was that an instrument should have been used.
-Pierrot v. De Baize (1880) MR 158: “In the construction of doubtful and ambiguous clauses in a statute, great weight is attached to the object which the legislature had in view, and such a construction will if possible be adopted as will both remove the mischief which it intended to cure and advance the remedy which it intended to apply”.
-Mootoosamy v. Ah Chuen (1964) MR 3: “every enactment must be interpreted with reference to the object appearing from the circumstances which the legislature had in view”
-How to ascertain what mischief the Act was seeking to
remedy?
Reference to pre-existing laws and circumstances.
Hansards (parliamentary debates): Madelen Clothing Co. Ltd v. Termination of Contracts of Service Board and ors. (1981) MR 284. It held that it was open to our courts to refer to “travaux préparatoires” as a lawful aid to interpretation in cases of ambiguity, provided this was done with circumspection. Same in Pepper v. Hart (1993) 1 All ER 42.
-Francoeur v. Francoeur (1989) MR 31, the Supreme
Court referred to the speech of the then Attorney
General, Sir Gaëtan Duval, QC, to discover the meaning of Article 145 of the Code Napoléon regarding “dispense d’âge du mineur.”
The Mischief Rule : Advantages
- Closes loopholes
- Allows the law to develop and adapt to changing needs
The Mischief Rule: Disadvantages
- Judges can bring their own views, sense of morality and prejudices in a case
- May create a crime after the event and thereby infringing the rule of law.
Rules of Interpretation under the
IGCA
-Words importing masculine include feminine +
neuter
-Words in singular include plural + Words in
plural includes singular
-Reference to the whole includes references to a
part (but not vice –versa) – If something is
prohibited in its entirety, then part of it cannot be
permissible.
-“Shall” may be read as imperative – shall =
must/may (E.g. a Local Authority shall issue
licences = this power is not mandatory but
discretionary)
-“may” = permissive and empowering -“or/other/otherwise” = construed disjunctively + does
not imply similarity unless similar or other word of like
meaning is added
-In penalty clauses of offences where several penalties are provided,
Or = alternatively
And = alternatively or cumulatively
Together with = cumulatively
-Definition:
If a word/expression is defined in an enactment, the
definition, with necessary modification, will extend to any grammatical variation and cognate expression of that word/expression.
-If an enactment gives a definition of a word/expression, same definition will apply of these words in a subsidiary enactment under that enactment.
Rules of Interpretation under the
IGCA : Time
-Time: If any enactment or document refers to time, time must be computed in the following manner:
-If delay for the doing an act expires or falls on a Saturday or a public holiday (including Sunday), the act may be done on the following day that is not a public holiday.
-If an act/proceeding is directed/allowed to be done/taken on a certain day and that day is a Saturday or a public holiday, the act/proceeding can be
considered as done/taken in due time if it is done/taken on the following day that is not a public holiday.
-Reference to a number of days between 2 events, whether a number of clear days or “at least a number of days” or otherwise, the days on which the events happen will be excluded in calculating the number of days.
-If reference is made to a period of time specified to run from a given date, in calculating the period of time, the given day will be included.
-If an act/thing is required to be done + no time is prescribed = that act/thing must be done without unreasonable delay + as often as due occasion arises.
-Moothen v The Queen [1981]: A lodged his appeal
on the 6th March 1981. According to the District and
Intermediate Courts (Criminal Jurisdiction) Act, he had
15 days to prosecute his appeal. He prosecuted it on the 23rd March. The court held that s 38 (1) (d) applied and that it should have been prosecuted on the 20th March.
