Statutes are the main source of law. A statute is a formal expression of the will of the legislature. Most of the legal research revolves around the analysis of statutes in one way or another. Statutes can be classified based on subject matters they deal with, their underlying objectives, and different types of the law-making process.
A distinction of practical importance is often made between consolidating statutes and codifying statutes. A consolidating statute collects the statutory provisions relating to a particular topic and embodies them in a single Act of Parliament, making only minor amendments and improvements.
On the other hand, a codifying statute purports to state the whole of the law exhaustively upon a particular subject. It follows that consolidation does not change the law but merely reorganizes it to improve its accessibility.
Another important distinction is made between principal Acts and amending Acts.
When a statute is initially enacted by the legislature and contains all the relevant elements of the legislation, it is called the ‘principal’ statute. It can stand alone and has complete provisions on a particular subject matter.
An amending statute is made to alter the provisions of the original one.
Depending on the source of creation, legislation is classified as a parent and delegated.
While the parent Act or legislation proceeds directly from the legislature, delegated legislation emanates from authority subordinate to the legislature. Delegated legislation is formulated by authorities or departments of government in the exercise of powers delegated or conferred on them by the legislature itself.
The nomenclature of delegated legislation may include ‘regulations,’ ‘rules,’ ‘orders,’ ‘bye-laws,’ ‘schemes,’ and so on. The most fundamental rule of construction is that delegated legislation can never be intended to override the specific provisions of the parent Act itself.
Legal Research Structure and Interpretation Statutes
Structure of the Statute
Irrespective of the various types, statutes invariably contain the following elements:
Title
The title describes the general scope of the statute and indicates its objectives and underlying policy. A statute can contain both short and long titles. Usually, a short title is used for the citation of the statute.
Preamble
The Preamble of the Act is used as an aid in interpreting the Acts. The Preamble explains the underlying reasons for the enactment and is often used as an interpretative tool. Although Preamble is a part of the Act, it is not an operating part thereof. It is a prefatory statement of the statute explaining or declaring the reasons and the object sought to be accomplished by the statute’s enactment.
Definition Clause
Definition clause defines the scope of various ‘words’ and phrases used in the Act. The main objectives of the definition clause are to shorten the language used in the body of the Act and explain the meaning of difficult words.
Sections
A statute may be divided into sections, subsections, and clauses.
Each section begins with a heading. Sections are usually cited in an abbreviated form as s. 1 or s.2 or ss. 2 and 3. Each section will often be divided into subsections-cited as s. 1(1) or 2(4). After the subsection, there may be a paragraph cited as s. 1(1)(a)
Heading
The heading is explanatory of the sections which follow under it. The heading prefixed to sections or sets of sections statutes is regarded as preambles to those sections. The headings can not control the statute’s plain words, but they may explain ambiguous words. Sections of the statute may contain illustrations that help elucidate the legislature’s intention.
Marginal or Side notes
The notes often found printed at the side of sections in an Act, which purports to summarise the effect of the sections, are called marginal notes. These are used as a quick reference to help locate sections and may also help to clarify sections or subsections.’
However, marginal notes are rarely used m modem statutes. They are obviously relevant to the interpretation process if they are used in a statute.
Proviso
A proviso is usually inserted below a section, subsection, clause, or sub-clause, as the case may be. It should be read with the mam clause, whose operation restricts, controls, modifies, and interprets. The mam’s purpose of a proviso is to modify the general principles enunciated in the section.
Thus, a proviso is designed rather than enlarges the provision to which it is appended. Unless a different intention appears from the language of the section, the proviso must be taken to govern the main provision which immediately precedes such proviso.
Exceptions
Sometimes the section may contain exceptions. The exceptions make it clear that the provision shall apply to all cases except those expressly excluded by them and they must be construed strictly and confined within their limits.
Schedules
Schedules can be found at the end of most Acts of Parliament. Schedules are parts of an Act that provide more detail regarding sections. In the following circumstances, Schedules are inserted:
- where a scheme for the working of an institution or body is to be described in detail;
- where a table of fees, duties, taxes, or the like is to be incorporated;
- where detailed provisions regarding mathematical calculations are to be made;
- where forms of application, notices, licenses, registers, records, and the like are to be prescribed.
Schedules must be read with the main text of the statute. It is always better to clearly spell out the section to which it belongs. Distinguishing the main part of an Act and a Schedule is purely a matter of form, not substance. According to Bennion,
It is often convenient to incorporate part of the operative provisions of an Act in the form of a Schedule. The Schedule is often used to hive off provisions that are too long or detailed to be put in the body of the Act. This does not mean they are unimportant.
Principles of Interpretation of Statutes
One of the judiciary functions is to interpret and analyze the provisions of statutes in reaching a decision or clarifying the enactment’s true meaning.
The necessity of interpretation of statute arises when adjudication of a dispute involves a statute. Sometimes the provisions of a statute have a plain and straightforward meaning.
But in most cases, the judge must determine some ambiguity or vagueness in the statute’s words. Sometimes, the judges have to fill the gaps in statutes on the footing that the legislature might be presumed to cover such gaps.
Interpretation of statutes also becomes necessary as they are written mostly abstractly and do not cover every situation.
| This was expressed in the French Civil Code in 1803: The function of a statute is to establish through a broad view the general maxim of the law, establish principles rich in consequences, and not descend into ‘the detail of questions which could arise on every question. It is up to the judge and the jurist, imbued with the general spirit of the law, to direct their applications. |
Interpretation has been defined as an intellectual activity concerned with determining the normative message that arises from the text. Interpretation can give the legal text a meaning that actualizes objective standards.
Law has an interpretative character, and the law itself has been defined as an interpretative process. Legal practice is an exercise in interpretation when lawyers interpret documents or statutes and generally.
Propositions of law are not simply descriptive of legal history in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, combining description and evaluation elements, but are different from both.
The judiciary interprets the statute based on some established principles and methods called principles of interpretation of statutes. These principles are also frequently applied in the interpretation of treaties concluded under international law.
The Literal Rule
If the words used in a statute carry their ordinary and plain meanings, which are unambiguous, the court should give effect without any difficulty. This rule assumes that words must be given their plain and literal meaning without a contrary definition within the statute.
It means that the statute must be construed in the ordinary and natural meaning of the words and sentences if there is nothing to modify, alter or qualify the language. The fundamental principle for the construction of the Act of Parliament is that they should be construed according to the intention expressed in the Act itself.
According to the literal rule, the judges consider themselves bound by the words of a statute when these words clearly govern the situation before the court. Thus, the court can neither extend the statute to a case not within its term nor curtail it by leaving out a case that the statute literally includes.
The literal rule is founded on the premise that the words were chosen by Parliament in the Act clearly show their intentions in passing that Act. The main argument in favor of the literal rule is that judges should not legislate because there is always the danger that a particular interpretation may be equivalent to making a law.
However, the literal rule has been subjected to some criticisms.
- First, it is based on a false premise: words have plain, ordinary meanings. But meaning attaches not to individual words but sentences and paragraphs.
- Second, the literal approach is based on the ‘discretionary meaning’ of the question words, but dictionaries normally provide alternative meanings.
- Third, the plain-meaning approach can not be used for general words capable of bearing several meanings.
The literal rule no longer characterizes the judicial approach to statutory interpretation. The modem approach is rather contextual-ism which is expressed in the golden rule of interpretation.
The Golden Rule
It seeks to ascertain what legislature intended by these words by looking at the general purpose of the section and its social, economic, or political context.
According to this rule, if the natural meaning of the statute leads to injustice or hardship, then the court may modify the statute’s meaning to such an extent as would be required to find out the legislature’s intention.
The golden rule allows the court to prefer an interpretation that departs from a word’s normal meaning to avoid an absurd result.
This rule suggests that every clause of a statute is to be construed regarding the context and other clauses of the Act for making a consistent interpretation of the whole statute.
Preambular and initial provisions of statutes and international treaties often serve as internal sources of such legislative purposes.
In contrast, a survey of the legislative history (e.g., the so-called travaux preparatory), legislative debates, and researching pertinent periodicals written during the negotiation phase might provide useful insights into this issue.
Lord Wensleydale has succinctly stated the rule in Grey vs. Pearson.
| “…the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, to avoid that absurdity or inconsistency, but no farther.” |
The golden rule may be used in a narrow and broader sense. In the narrow sense, it is applied where there is ambiguity or absurdity in the words themselves. In a broader sense, it is used to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning.
The Mischief Rule
It looks to the history of the Act-what was wrong with the law (what was the mischief) that Parliament sought to remedy. It means that if there is the mischief in an Act, the same should be construed in such a way as to suppress the mischief and advance the remedy.
The rule’s utility depends to some extent upon the means the courts are entitled to employ to ascertain what mischief the Act intended to remedy. To take recourse to the mischief rule, the following four issues are to be considered:
- What was the common law and the statute law before the making of the Act?
- What was the mischief and defect for which the common law and the statute law before the making of the Act did not provide?
- What remedy had Parliament resolved to cure the defect?
- The reason for the remedy.
Judges must suppress the mischief and advance the remedy through the purposive construction of an enactment.
According to Maxwell, such construction has two aspects.
- Firstly, in taking recourse to Mischief Rule, the court will not be astute to narrow the statute’s language to allow persons within its purview to escape its net.
- Secondly, the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances that parties may have devised in the hope of falling outside the Act.
Canons of Statutory Interpretation
Expression unius est exclusio alterius
It means the express mention of one thing excludes all others. In other words, it means items not on the list are assumed not to be covered by the statute.
Harmonious Construction
When two or more provisions of the same enactment are contradictory to each other, the court will try to give effect to both by harmonizing them. This kind of interpretation is known as harmonious construction.’
The rule of harmonious construction is based upon the premise that the legislature must not have intended to contradict itself. It is generally presumed that the legislature cannot have the intention to contradict itself by enacting two conflicting provisions in the same enactment.
The statute should be read as a whole
A fundamental rule of statutory construction is that every part of a statute is presumed to have some effect. For this purpose, a statute should be read as a whole to understand its’ meaning and purpose. A provision of a statute can not be interpreted in isolation.
Strict Construction of the Penal Statutes
It is an established principle that penal statutes should be construed strictly against the state and in favor of an accused. The principle is founded on the law’s tenderness for individuals’ rights.
According to Maxwell, the strict construction of penal statutes should be manifested in four ways: first, in the requirement of express language to create an offense.
It means the penal statutes are required to be unambiguous because the words used in a penal statute should be plain having a clear single meaning.
Second, in interpreting words strictly setting out the elements of an offense; third, in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment.
It implies that punishment can be imposed only if the circumstances of the case fall clearly within the words of the enactment.
Fourth, in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
In pari materia
Statutes are part of material when they deal with the same person, thing, or class. It is well settled that statutes relating to the same subject should not be read in isolation.
Rather, they should be construed together to achieve a harmonious result, resolving conflicts to affect legislative intent.
However, it is not necessary that they should have been enacted simultaneously or referred to one another.
Last in Time (Leges posteriores priores contrarias abrogant)
When two statutes conflict, the one enacted last prevails. In other words, subsequent laws repeal those before being enacted to the contrary.
General Law follows Special Law.
If general law and special law exist on the same subject matter, it is well accepted that special law prevails over general law.
Thus, if the special legislation is adopted after the general Act, it is intended that the legislature has in mind its general legislation when it makes a Special law. It is based on the established principle that ‘general words do not derogate from the special.’
Presumptions
There are some principles the courts call presumptions and observe in interpreting statutes.
There is no universal list of the presumptions. It is an established principle that they should not conflict with each other and with the other principles of interpretation.
Presumption of Correctness
All laws are presumed to be constitutional, and consequently, the burden to show the constitutional defect is on the person making the challenge. The corollary notion to this principle is that a court will not rule upon the constitutionality of a statute unless such a determination is vital to deciding the merits of the case.
Presumption of Supremacy of International Law
National statutes must be construed so as not to conflict with international law.
Under the general presumption that the legislature does not intend to exceed its jurisdiction, every statute is interpreted not to be inconsistent with the established rules of international law. The court will also avoid a construction that would give rise to such inconsistency.
Presumption against retrospective
It is a general of construction that every statute is deemed to be prospective. It means any new law that is made should ordinarily affect future transactions, not past ones. As such, no statute shall be construed to have a retrospective operation unless it is to have a retrospective effect by express provision or necessary implication.
Thus, every statute that takes away or impairs a vested right acquired under existing law or creates a new obligation imposes a new duty regarding past transactions or considerations must be deemed perspective.
A fundamental principle of criminal justice is that a statute imposing a new penalty or liability will not be construed retrospectively.
Presumption against gaining advantage from wrongdoing
It means that people should not be allowed to profit from their wrongdoing.
Aids to Interpretation of Statute
Two types of aid for interpreting statutes are intrinsic aid and extrinsic aid. Intrinsic aid refers to all matters in the document containing the text of the Act. This includes headings, titles, preambles, and anything else not appearing in a section of the Act.
Extrinsic aid to interpretation includes the following matters:
- Any relevant report of the Law Commission, which is usually responsible for law reform in a country, can be used as an interpretative guide in the construction of the statute. Where the report’s recommendations are adopted, it can be assumed that the ideas within the report will be embodied in the legislation.
- Involved in the law-making process.
- Any treaty or other international agreement that is referred to in the Act.
- Proceedings in Parliament and the speech made to a parliament by a law minister on the occasion of Bill’s motion are considered the legislative history of an enactment. However, such legislative history can not be used as conclusive as to the meaning of the word or provision of the enactment.
