3.1. Definition of Interpretation
An Act, statutes or Code is enacted in brief. Its language is not very detail. While applying the principles laid down in the Act, statute or Code the authority very often finds it difficult to be sure if particular section, sub-section or clause applies to the problem in hand or not. The authority, however, must ensure whether the alleged principle shall apply or not. This process of applying, the principle laid down in the Act is termed as interpretation. For example, if a person is alleged to have committed theft one has to see what are the ingredients of the offence of ‘theft’ as defined in Section 378 of the Penal Code, and whether the allegated act falls squarely within the definition of theft or not. If it does, it is a case of theft otherwise not.1
3.2. Who is competent to interpret Statute?
The responsibility to interpret and apply the existing statutory law rests on the Court. One of the most important functions of the Courts is the construction of statutes. In Statutory law the written words (litera scripta or literal legis) constitute a part of law itself. The actual words used themselves are the part of law. The words not only contain the law, they themselves are the law. Thus in a statutory law, every word is important and the judge has to interpret or construct these words. They are to be construed according to the intention and spirit of the Legislature which has enacted it.
1H.N.Tewari, Legal Research Methodology (Faridabad: Allahabad Law Agency, 1997), p.90.
In other words, the role of the Court is very important in making a statutory law effective and efficient.2
3.3. Principles of Interpretation of Statutes
Necessity of interpretation of statute arises when a case involves a statute. One of the functions of the judiciary is to interpret and analyse the provisions of statutes in reaching a decision or providing clarification of true meaning of the enactment. Sometimes the provisions of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or vagueness in the words of the statute that must be determined by the judge. Sometimes, the judges have to fill the gaps in statute on the footing that the legislature might be presumed to cover such gaps. The judiciary interprets the statute on the basis of some established principles, and methods, which are called principles of interpretation of statutes. These principles are also frequently applied in interpretation of treaties concluded under international law.3
3.4. Rules of Statutory Interpretation
There are three traditional rules of interpretation which are as follows:-
(I).The Literal Rule
(II).The Golden Rule
(III).The Mischief Rule
(I).The Literal Rule: – Under this rule the judge is required to consider what the legislation actually says rather than what it might mean. In other words, words used in a statute must be given their plain, ordinary or literal meaning even if the outcome of that meaning would be undesirable.4According to the literal rule; the judges consider themselves as 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.5
Lord Esher said “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.”6
In Whiteley vs. Chappell 7, The defendant pretended to be someone who had recently died in order to use that person’s vote. It was an offence to ‘personate any person entitled to vote’. As dead people cannot vote, the defendant was held not to have committed an offence. Obviously the purpose of the Act was to stop voter fraud, here a fraud had taken place but the narrow interpretation applied meant the person escaped punishment.
(II).The Golden Rule:-According to golden rule, if the natural meaning of the statute leads to injustice, or hardship, then the court may modify the meaning of the statute to such an extent as would be required to find out the intention of the legislature.8This rule of interpretation also called Wensleydale’s9 golden rule is applied in circumstance where the application of literal rule is likely to produce an absurd result.
Lord Wensleydale said “the grammatical and ordinary sense of the words is to be 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 farther.” 10
In R v. Allen 11 ,The defendant was married and married again. It was an offence for a married person to ‘marry’ again unless they were widowed or divorced. When caught the defendant argued that he did not commit this offence as the law regarded his second marriage as invalid. The court held that the word ‘marry’ could also mean a person who ‘goes through a ceremony of marriage’ and so the defendant was guilty.
(III).The Mischief Rule:-The mischief rule is contained in Heydon’s Case12 and allows the court to look at the state of the former law in order to discover the mischief in it which the present statute was designed to remedy. The utility of the rule depends to some extent upon the means that the courts are entitled to employ in order to ascertain what mischief the Act was intended to remedy.13
In order to take recourse to mischief rule, the following four issues are to be considered:-
(a).What was the common law and the statute law prior to the making of the Act?
(b).What was the mischief and defect for which the common law and the statute law before the making of the Act did not provide?
(c).What remedy Parliament had resolved to cure the defect?
(d).The reason of the remedy. 14
In Smith v. Hughes15, Six women had been charged with soliciting “in a street or public place for the purpose of prostitution”. However, one woman had been on a balcony and others behind the windows of ground floor rooms. The court held they were guilty because the mischief aimed at was people being molested or solicited by prostitutes.
In DPP v. Bull 16, a man had been charged with loitering or soliciting in a street or public place for the purpose of prostitution. The court held that the term ‘prostitute’ was limited to female prostitute. The mischief the Street Offences Act 1959 was intended to remedy was a mischief created by woman.
3.5. Purposive Approach
The purposive approach is one that will “promote the general legislative purpose underlying the provisions”.17There will be a comparison of readings of the provision in question based on the literal or grammatical meaning of words with readings based on a purposive approach.
Lord Browne Wilkinson said “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”.18
In Jones v. Tower Boot Co Ltd19, The complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under section 32 of the Race Relations Act 1976.The CA applied the purposive approach and held that the acts of discrimination were committed “in the course of employment”. Any other interpretation can counter to the whole legislative scheme and underlying policy of s.32.
3.6. Gap Filling Role of the Supreme Court of Bangladesh:-
Though the legal system in Bangladesh is based on common law system as opposed to continental system, courts here have all along adhered to the doctrine of purposive approach wherever necessary. Unlike in the UK, this has been possible because of the absence of the doctrine of parliamentary supremacy. Bangladesh has a written constitution with constitutional supremacy and the constitution has invested the Supreme Court with the power of judicial review. This power of judicial review is the source of purposive construction. It has been held that where a plain construction will lead to absurd result and fail to carry out the purpose, the legislature had in view; the court has the power to supply the desideratum and fill in the gap.20Likewise, an omission, which the context shows with reasonable certainty to have been unintended may be supplied.21 It has also been held that the language of a statute may be modified by court to give effect to manifest and undoubted intention of the legislature.22 The safest course for getting legislative intent is to supply the golden rule of construing an enactment as a whole.23
3.7. Role of the Supreme Court of Bangladesh in interpreting a statute:-
In a tripartite system of government, it is for the legislature to make the law and the court’s duty is to enforce the law as passed by the legislature.24It is often said that the function of the judiciary is to apply the law to settle disputes coming before it and the court cannot in the name of interpretation of a law create a new law.25
According to Maxwell, the function of a court is to interpret a statute according to the intent of the legislature and in doing so it must be bear in mind that its function is jus dicere, not jus dare 26 : the words of a statute must not be overruled by the judges, but reform of the law must be left in the hands of Parliament.27 In the construction of statutes, courts in Bangladesh are to ascertain the intention of Parliament. The courts in Bangladesh are to apply the law as expressed by the legislature. However, the Constitution of Bangladesh has set certain norms limiting the power of Parliament and the Constitution conferred power on the Supreme Court to oversee that Parliament in exercising its plenary power of legislation does not transgress the limit. Thus, notwithstanding the clear and unambiguous language used in the statute to keep it within the bounds set forth by the Constitution. The Supreme Court may modify the meaning of a provision to avoid the conflict of the statute with the provisions of the Constitution.28 Article 31 of our Constitution has adopted the due process concept in general and without any limitation and properly construed article 31 of our Constitution prohibits anything arbitrary, unreasonable or unjust. Having regard to the provisions of article 31 of the Constitution, the courts cannot enforce a law which is arbitrary, unreasonable or unjust even if the language used by Parliament is clear beyond doubt. In such situation the maxim of ut res magis valear quam pereat(it may rather become operative than null) comes into play. The court is required to examine whether any other interpretation avoiding the apparent arbitrariness, unjustness or injustice is available and, if so available, adopt that interpretation. If this is not possible in view the specific language used by Parliament, the court is duty bound to refuse enforcement of the law as being inconsistence with the provisions of article 31and may be with the provision of article 27 of the Constitution. Even though the court cannot make a law for the Parliament, reading down a statute in such situation is a well-established constitutional principle.29
In order to provide a constitutional dress-up, the court may limit the reach of the offending law even though the language of the statute permits its reach far beyond.30 It is for this reason, that notwithstanding the plenary power of legislation remaining vested in Parliament, article 111 of the Constitution specifically provides that pronouncement of the Supreme Court as regards law would operate as the law of the land. It is said that there is no need of interpretation when the meaning of the words is clear and beyond doubt and the court will not go for interpretation if the language of the provision is clear and beyond doubt ant the court will not for interpretation if the language of the provision is clear. But this isolationist approach is not correct. The court is to read a provision of a statute in its context which includes other provisions of the statute and to see if on reading of the statute in its context the language appears to be vague, ambiguous or equivocal needing interpretation. A statute should be given an informed construction taking into account its context and the court is to find the legal meaning of the provisions of the statute which corresponds to the original legislative intention.31Court is not concerned with the presumed intention of the legislature-its task is to get at the intention as expressed in the statute.32When the language of an enactment is ambiguous and admits of more than one meaning, then the court is to find out which one of the meaning is in accord with the legislative intent and that meaning is the legal meaning.33But when the literal meaning is found to be contrary to the purpose of the legislation, Court can modify the language of a statute to affect the manifest and undoubted intention of the legislature.34 Where two meanings are possible, the one that avoids absurdity or anomaly should be adopted. Hamooddur Rahman, CJ.in Rasid Ahmed v. State (1969)35 states: “If the words used by a legislature, in their primary sense, do not mean what the legislature intended then it is for the legislature to amend the statute and not for the courts to attempt the necessary amendment by speculating as to the true intent of the legislature. It is only where the words of a statute are obscure or doubtful or the literal construction involves the creation of un-intended anomalies that a departure from this rule is permissible.”
3 M.Shah Alam, Somokalin Antojartik Ain (Contemporary International Law), 2nd ed. (Dhaka: New Warsi Book Corporation, 2008), pp.276-82.
4 Md.Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.252.
5 James A, Webb, Julian S & Holland, Learning Legal Rules, 5th ed.(Oxford: Oxford University Press, 2003), p.201.
6 R v. Judge of the City of London Court (1982) 1QB 273.
7 (1868) LR QB 147.
8 H.K.Mukherjee, A handbook of Legal Language Legal Writing and General English(Kolkata:Law Point,2004),p.133.
9 Lord Wensleydale called this rule “golden rule” and adopted it in Grey vs. Pearson (1857) 6 HL 61,106 and thereafter it is usually known as Lord Wensleydale’s Golden Rule.
10 Grey v. Pearson (1857) 6 HL Cas 61
11 (1872) LR 1 CCR 367.
12 (1584) 3 Co Rep 7.
13 Glanville Williams, Learning the Law, 11th ed. (London: Stevens and Sons, 1982), p.103.
14 H.K.Mukherjee, Ibid., p.132.
15 (1960) 2 All ER 859.
16 (1994) 4 All ER 411.
17 Notham v. London Borough of Barnet (1978) 1 WLR 220.
18 Pepper (Inspector of Taxes) v. Hart (1993) AC 593.
19 (1997) 2 All ER 406.
20 Abdus Sattat v.Arag Ltd (1964) 16 DLR 335.
21 Jadu Nath v.Bangladesh, 25 DLR 335.
22 13 DLR (SC) 105, 27 DLR 523.
23 Jadu Nath ,Ibid., 25 DLR 335.
24 Duport Steels Ltd v. Sirs, (1980) 1 All ER 529.
25 Abdus Sattar,Ibid., 16 DLR 335.
26 P.St .J.Langan, Maxwell on the Interpretation of Statutes, 12th ed.(Bombay: LexisNexis, 2003), pp.1-2.
27 Md .Ismail v. State, 21DLR (SC) 161.
28 Mahmudul Islam, Interpretation of Statutes and documents, 1st ed.(Dhaka: Mullick Brothers, 2009), p.13.
29 Ibid., p.16.
30 A.B.Mohiuddin v. Bangladesh, 49 DLR 353.
31 Bennion, Bennion on Statute Law, 3rd ed. (London: LexisNexis, 2007), p.204.
32 40 DLR (AD) 116.
34 48 DLR 170.
35 21 DLR (SC) 297.