Zia-ur-Rehman Tajik
As per Mariam Webster Dictionary. statutes mean a law enacted by the legislative branch of a government and the Oxford Dictionary defines statute as a law passed by a government and formerly, written down.
Blacks’ law dictionary define statute as a particular law enacted and established, by the well of the legislative department of the government. In Pakistan, statute means an Act passed by the Parliament or provincial assembly and in the case of a money bill by the National Assembly. Interpretation of statute means the ascertainment of the meaning and well of the Lawmaker. In other words, interpretation of statute means the process or act of explaining the meaning of the legal text.
While construction of a statute means building the statute over time through arguments from history, precedent, consequences, structure ethics, and successful social and political movements which change the mind of the court. For interpretation the text is considered as a whole and for ascertaining the meaning of the statute the court looks to the language and design of the statute. Interpretation gives effect to the drafter’s subjective intent and also uses legislative history when the text is ambiguous.
The world used in the statute are to be understood in the ordinary meaning unless the context indicates that they bear a technical sense. If any section of the law is intricate or doubtful then the proper mode for ascertainment of its true meaning is by comparing it with other sections of the statute. The courts always try to discover the intention of the Legislature. Judiciary has vast power and interprets the laws as enacted and cannot depart from the plain meaning of the expression used in the statute. Aristotle says that to seek to be wiser than the law is the very first thing which is Forbidden by every good law.
But before the implementation of the law, it has to be interpreted by the court which is the function, role and authority of the judges. It is the ability and power of the judges to clarify the unclear law because the absence of clarity is destructive of the rule of law. (According to President Roosevelt that the chief lawmakers in America may be and often are the judges because they are the final seat of authority. Every time they interpret Law, contracts, Property rights, vested rights, due process of law, and Liberty. They enact into parts of a system of social philosophy and as such interpretation is fundamental they give direction to all the law-making. understanding statutes by S M Zafar page 999)
For the interpretation of statutes, the principle of textualism is applied and it means exclusive Reliance on the text and it begins and ends with what the text says and no meaning is given to a word or sentence that itself cannot bear, words are given the meaning they had when the text was adopted. Judges are the cooperative partners of the legislature in making Law and the basic function of a judge is to interpret the law and not to make the law. The Preamble of the statute also plays an important role in the interpretation of the statute because Preamble provides an introduction, purpose and object of the statute and it is also considered a key to opening the mind of the maker. For the interpretation of the statute, the parliamentary debate at the time of passing the bill is also considered. Through the side debate, the court explores the intent, spirit and reason of the Lawmaker at the time when the law was made.
But some Jurists oppose the use of parliamentary debate for interpretation and their view is that a law must be construed from the fact of it and nothing extraneous to it could be admitted and the view of the Legislature could not be derogated from the nature of the law.
Furthermore, the court derives the meaning from the text and not from outside sources such as legislative history and parliamentary debate. parliamentary debates are not the appropriate source of information for discovering the meaning of the language of a statute passed by the Parliament. parliamentary debate cannot be considered the opinion of the whole house because the Act is passed by the majority of the Parliament. The job of the court is to discover the true intention of the law rather than the meaning of the statutory text. The purpose of parliamentary debate on the floor of the house by the member of parliament is to inform the other members who will vote in favour or against the bill. Those statements are also considered authoritative expressions of legislative intent.
Legislative history supplements the traditional principles of interpretation. But before Reliance on the legislative history, it is the basic duty of the court to look primarily to the statute itself to find out the legislative intent because the court is not governed by the Parliament’s intent but by the Parliament’s enactment.
When Pakistan came into existence the courts in Pakistan applied various rules of interpretation. we can see that until 1955 the approach was mainly lateral. But as the legislation increased with the writ jurisdiction a large number of statutes were brought under challenge and scrutiny. The literal rule was replaced and the Mischief rule was adopted in several cases. presently our judges are relying more on more on the mischief rules and purposive approaches. In an extension of the above the basic principle of Natural Justice is required to be read into every statute irrespective of whether the same is incorporated therein or not. understanding statute by SM Zafar page 29).
Casus omisus is a doctrine of Law which is also applied in the interpretation of statutes and it means case omitted. It refers to a situation that is not covered by a statute and is governed by case law or judge-made law. Casus omisus could in no way be supplied by the court of law as that would amount to altering the provision. Court of law was not entitled to read words into the statute or constitution unless a clear reason was found within the four corners of either of them. 2013 SCMR 1062.
But where the language of the statute is such that it leads to a manifest contradiction of the apparent purpose of the enactment then the meaning of the word may be modified because where the intention is clear it cannot be Nullified on the mere basis of the inability of the draftsman to be articulated. PLD 1969 SC 241. For the interpretation of statutes, three different rules are used, Literal, Mischief and Golden rules and it is the sole discretion of a judge to apply any one of the rules for interpreting any clause of a statute. Literal rules mean Words of a statute were to be first understood in their natural, ordinary or popular sense.
The praise and sentences were to be construed according to their grammatical meaning unless that leads to some absurdity or unless there was something in the context or in the object of the statute to suggest the contrary by necessary implication.PLD 2012 SC 1089. Under the literal rules statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. PLD 2011 Supreme Court 260.
Mischief rules. Under the said rules the court attempted to determine the legislature’s intent and history which suppressed the Mischief and provided the remedy. The judge considered what was the common law before the Act was passed and what was defect for which the common law did not provide. what was the reason for the remedy and what remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? In other words, the Mischief Rules have encouraged the court to give the widest meaning to the statute for protecting the rights of the parties.
Golden rules of interpretation are the modification of the literal rules and allow a judge to depart from a word’s normal meaning to avoid an absurd result. under the said rules the judge is allowed to choose the most sensible meaning where there is more than one meaning to the words in the statute. It also provides an escape route where there is a problem with using the literal meaning. Under the said rule the judge technically changes the Law by changing the meaning of the word in the statute and the drafting error in the statute can be corrected immediately.
In other words, golden rules also mean that if the language of the statute is not clear or leads to more than one meaning or not showing the intention of the Legislature then the language used in the statute could be reformed and the other rules of interpretation can be used for the help. The basic object of the interpretation is to provide justice to the litigants and to ascertain the intention of the Legislature about matters which has been left unexpressed. The court does not resort to the interpretation when the text itself is clear and self-evident. Through interpretation, the cracks and gaps in the law are filled up by the court.
Interpretation guides courts in future cases, Interpretation also guides legislatures, drafters and implementing agencies. Interpretation also allowed judges to apply their minds and consider the social and economic changes. under the process of interpretation, the judge is better placed to deal with the issues that Parliament did not consider when it was drafting and passing the legislation.
The writer is Advocate Supreme Court of Pakistan based at Peshawar. LLM constitutional law and can be reached as; ziaurrahmantajik123@gmail.com
