LEGISLATIVE DRAFTING AND INTERPRETATION OF STATUTES

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 LEGISLATIVE DRAFTING AND
INTERPRETATION OF
STATUTES
LEGISLATIVE DRAFTING

What is meant by the term “legislative drafting? What are the challenges encountered by a
Legislative Drafter at the preparatory and drafting stages? [Oct. 2015]

Legislative drafting is an “art-form” which is interpreted by the political masters, lawyers, judges and
policy-makers. At Colombia University, New York, late professor Frank Grad of the Legislative
Drafting Fund defined legislative drafting as al legal problem-solving. It is absolutely true as most
legislation is designed to resolve legal problems associated with social, economic and political
problems with substantive, administrative and ancillary provisions.

Challenges that are encountered by a legislative drafter at the preparatory and drafting stages can
be divided as:

1. Preparatory challenges

2. Compositional challenges

Preparatory challenges

01. Understanding the policy

Understanding the policy in detail is an important preparatory challenge faced by many legislative
drafters. Policy instructions may arise due to various reasons. It can arise due to an Election
Manifesto, Civil Service Proposal, and Law Reform Proposal or as a result of unexpected and
unforeseen events occurring in the state. Hence, it is necessary for a legislative drafter to analyze the
policy critically to decipher the policy issues relating to the subject matter of the legislation. It is also
necessary to establish a good relationship with the line Ministries in order to get full cooperation. At
times it is also useful to contact persons who are knowledgeable in the subject matter of legislation,
as they can shed light on the legal issues pertaining to the policy. In this process, a legislative drafter

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plays a role in re-shaping the policy as and when he develops an institutional and interdisciplinary
knowledge of the subject matter.

02. Ensuring harmony with the constitution, Interpretation Act etc.

Another important preparatory challenge is to ensure that the legislative policy is in harmony with
the constitution, as a draft bill could be challenged later on as ultra vires the constitution.
Inadequate consideration regarding constitutional matters is detrimental to draft legislation.
Another important preparatory challenge is to take not of the various provisions of the
Interpretation Act with respect to repeals, commencement, savings and transitional provisions.
Hence, the Interpretation Act is a good companion to the legislative drafting in the same way as the
compass and the slide-rule are the companions for a mariner and a structural engineer.

03. Use of a legislative precedent

At the preparatory stage, a legislative drafter may use a legislative precedent from another
jurisdiction to structure the legislative scheme relating to the draft bill by using the internet to
obtain appropriate legislative precedents from all over the world. It is a useful technique, as the
wheel need not be re-invented if it there is a relevant precedent from another jurisdiction. Prof.
Helen Xanthaki, Professor of legislative drafting at the University of London described such
legislative techniques as legislative transplants. However, such legislative transplants need adaption
and dovetailing to suit the legislative style of the adopting state.

Compositional challenges

01. Plain language

One of the compositional challenges faced by a legislative drafter is to produce legislation in plain
language for the benefit of statute users. It is a difficult exercise, as legislation deals with complex
situations. In 1975, the Renton Committee was appointed by the British government as there was
public dissatisfaction in regard to the form of legislation enacted in the UK. This committee made
128 recommendations of which only a few have been implemented so far in the UK.

02. Drafting of various provisions

The legislative drafter must also learn to draft various provisions of a draft bill. These provisions
include Preliminary Provisions (long title, short title, commencement clause interpretation section,
purpose clauses, etc.), Substantive Provisions and Administrative Provisions (establishment of a
corporation, imposition of a tax and regulation of a licensing procedure), Final or Miscellaneous

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Provisions (offences and penalties, regulation-making powers, savings and transitional provisions). In
drafting various provisions, paragraphing, punctuation and proper arrangement are useful to
enhance and comprehensibility.

03. Shorter Act and longer Regulations

Another important compositional challenge for a legislative drafter is to determine whether to have
shorter parliamentary Act with longer Executive Regulations or vice versa. In this context, the
legislative drafter should take into account many factors very carefully in a manner consistent with
parliamentary and constitutional requirements.

04. Scrutinizing the draft provisions

A legislative drafter must scrutinize the draft bill, presumably after a few days, so that he can correct
his own mistakes. Alternatively, he can request a colleague to do so. He must also interpret various
provisions of the draft bill in accordance with the established rules relating to interpretation of
legislation. According to Francis Bennion, there are many rules relating to interpretation of
legislation. Hence, a legislative drafter should constantly upgrade his knowledge of the interpretative
rules, subordinate rules, presumptions, maxims, etc., so that the draft bill can fall in line with the
established rules relating to interpretation of legislation.

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Are there any special rules pertaining to the interpretation of legislation giving effect to treaties? If
so, explain two such rules in relation to interpretation of legislation giving effect to treaties. [April
2015]

01. Understanding the legal character is of paramount importance for the transformation of
treaties into national legislation. (Lord McNair). Treaty is an agreement between states or between
states and IGOs or between IGOs as defined in VCLT 1969 and VCLT 1986. These Vienna Conventions
describes the legal nature of treaties and their operational validity. Treaties can be classified as
multilateral or bilateral treaties or as law making or contractual treaties.

02. Understanding the subject matter of a treaty is essential for transformation of a treaty
into national legislation. It is also necessary to know the international law and concepts relating to
such treaties. For an example, in the drafting of legislation relating to human rights, marine
pollution, diplomatic or state immunity or international humanitarian law, a Legislative Drafter must
have sufficient knowledge of international law in relation to the subject matter.

03. Understanding the Final Clauses of a treaty is also important in the drafting legislation
relating to treaties. The final clauses of a treaty deal with reservations, interpretative declarations,
implementing requirements and the entry into force of such treaty at national level.

In many countries, various compositional legislative techniques are used to transform treaties into
domestic legislation. It is proposed to illustrate some of these legislative techniques used by
legislative drafters for such transformation.

01. Francis Bennion, a leading practitioner on legislative drafting, has classified such
compositional legislative techniques into direct and indirect methods. The direct method involves
“re-drafting” or “re-phrasing” the treaty provisions into an Act of parliament. The indirect method
involves the incorporation of a treaty by way of s schedule in an Act of parliament and granting it the
force of law. Such legislation may contain ancilliary provisions necessary for legislative
implementation.

02. Thornton outlines four legislative techniques for transformation of treaties into national
legislation. According to Thornton, these four legislative practices are: (a) the legislation may
contain no reference to the treaty; (b) the legislation may refer to the treaty but not set ot out in the
Act, or may give effect to it by separate substantive provisions without granting the force of law; (c)
the legislation may set out the treaty in a schedule informationis causa (reference purposes only);

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(d) the legislation may set out the treaty in a schedule and endow it or a part of it with the force of
law.

03. Professor Winston Anderson, now a judge of the Caribbean Court of Justice, has outlined
two techniques, namely, re-enactment of treaty provision into national legislation and incorporation
of the treaty by reference, as expounded in a leading article relating to treaty-implementation in the
Caribbean Law Journal.

However, it is possible to outline six distinctive compositional legislative techniques in regard to the
transformation of treaties into national legislation:

01. The legislation may contain no reference to any kind of treaty.

02. The legislation may refer to the treaty but not set it out and nay give effect to it by separate
substantive provisions.

03. The legislation may set out the treaty in a schedule only for the purpose of information or
reference.

04. The legislation may set out the treaty in a schedule and endow it or part of it with the force of
law.

05. The legislation may give effect to a treaty without reproducing it in a schedule.

06. The legislation may empower a Minister to give effect to a treaty by way of subsidiary legislation.

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 RULES OF INTERPRETATION

Outline the merits and demerits of literal rule, golden rule and mischief rule with reference to
decided cases. [Oct. 2015]

Examine critically the following rules relating to interpretation of statutes:

(a) Literal rule

(b) Mischief rule
(c) Golden rule

[April 2015]

“The object of all interpretation is to discover the intention of parliament, but the intention of
parliament must be deduced from the language used”. Cape v. Baldwin (1965) Q.B. 53 per Lord
Parker CJ at p.61. Identify the most appropriate interpretation rule (primary rule) that supports
the above view and discuss its applicability in interpretation of statutes.[April 2014]

“It is very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the
words used and to the grammatical construction, unless that is at variance with the intention of
the legislature, to be collected from the statute itself, or leads to any manifest absurdity or
repugnance, in which case the language may be varied or modified, so as to avoid such
inconvenience, but no further”. Becke v. Smith (1836) 2 M & W 191 at p. 195. Discuss with
reference to the above statement the importance of ‘golden rule’ for interpretation of statutes.
[April 2014]

01. Tradition rules – literal rule, golden rule, mischief rule

02. Modern rules – purposive theory, subjective theory, value-coherent theory, judicial/free
theory, objective theory

A reader of a document attempts to discover the meaning of what he is reading by adopting several
methods. He may try to read it against known background, correct any apparent errors or make
implications as to its meaning similarly in ascertaining the meaning of a statute. The court too has
adopted over the years various approaches commonly known as Rules to ascertain the intention of
the legislature. Of these rules, the three basic and most restored to are the following:-

1. The literal rule

2. The golden rule
3. The mischief rule

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It is important to remember however, that though these are called rules in their application the
court is asking no more than that legislation should be read fairly and with the same attitude as
would be adopted in regard to any other document. They are in that sense “rules of common sense”.

1. Literal rule

This may be regarded as the first and the most elementary rule of interpretation where the intention
of the legislature is determined by giving the words in the statute their ordinary and literal meaning.
Cross commenting on these rules stated that, “the essential rule is that the words should generally
be given the meaning which the normal speaker of the English language would understand them to
bear in the context in which they were used”. It was also stated in a certain case that, “the safer and
most correct course of dealing with a question of interpretation is to take the words themselves and
arrive if possible at their meaning without in the first instance reference to cases”. For an instance in
the case of Sussex Peerage case, only rule of construction construed according to the intent of
parliament. When words are clear and unambiguous they should be given the natural and ordinary
meaning. Words themselves alone will best declare the intention of the parliament. In another case
of Sttassen Export v. Brookebond Ltd. & others, the court was held that the duty of the court is to
construe Acts of parliament according to the intent or will of the legislature and to give the words
their meaning even if that intention appears to the court to be just or unjust, right or wrong etc. in
the case of Somawathie v. Weerasinghe and others, the court was held that whereas in the article
before us (which is article 126) the words are by themselves precise and unambiguous and there is
no absurdity, repugnance or inconsistency with the rest of the constitution the words themselves do
best declare that intention. No more can be necessary than to expound those words in their plain,
natural, ordinary, grammatical and literal sense. In a South African case, Ibrahim v. Minister of
Interior, section 15 of the South African Citizenship Act provided that a “South African citizen would
lose his nationality if he acquired a foreign nationality while out of the union”. Majority of the judges
held that Ibrahim, who was a SA seaman and who applied for British citizenship in order to secure
employment falsely claiming to be an ordinary citizen in UK, when a fact he was living in Durban (SA)
did not forfeit his SA citizenship since at the date on which British nationality was conferred on him
was on a ship within SA waters. In the case of Matthews v. Dobbins, a provision in a statute that
where a lessor proceeding to enforce against a lessee a right to re-entry or forfeiture for
nonpayment into court of all the arrears of rent and costs by lessee at least five days before the
return date was literally interpreted so that the action was held not to cease upon payment being
made by a stranger. In another case decided in 1836, Beckey v. Smith observed on the application of
the literal rule, “if the precise words used (statute) are plain and unambiguous in our judgment we

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are bound to interpret them in their ordinary sense even though it leads in our view of the case to
an absurdity or manifest injustice words maybe modified or vary where the meaning is doubtful or
obsecure but we assume the function of legislators when we depart from the ordinary meaning of
the precise words used merely because we see or fancy we see an absurdity or manifest injustice
from an adherence to their literal meaning”.

The following may be considered as the merits or the positive features of the applications of the
literal rule:

1. The rule promotes understanding and as a result certainty so that even an ordinary person is
able to understand the meaning.
2. Promotes consistency.
3. This rule upholds parliamentary sovereignty and respects the theory of separation of
powers.
4. These rules promote neutrality of the courts and judges cannot be accused of being biased
when interpreting the words as they are.

But there are more to be said of the negative features in the application of these rules:

1. The rule is based on a false argument that words cannot have meanings apart from their
context. It also tends to forget that meanings attached not only to individual words but to
sentence and paragraphs.
2. The tendency to use dictionary meaning but overlooking the fact that dictionaries normally
provide a number or alternative meanings to a single word.
3. Even where judges hold a meaning of a word to be plain can sometimes disagree on the
interpretation to be given to the words.
4. ‘Interpretation’ involves more than arriving at the ‘meaning’ of a word.
5. Prevents a judge from being creative.
6. Harsh consequences may flow as a result of the application of this rule.
7. In a case where two parties are arguing over the same word one party may content for the
obvious meaning while the other may content for a secondary meaning and a right meaning
cannot e arrived sensibly without having regard to the context in which the word was used.

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 2. Golden rule

This rule is a modification of the literal rule and enables a court to depart from a strict literal
meaning being given to the words of a statute, in order to avoid an absurdity. This rule is also used
to modify the language of a statute to overcome an error or a defect found in the text. In the case of
Beckey v. Smith, it was observed: “it is a very useful rule in the construction of a statute to adhere to
the ordinary meaning of the words used and to their grammatical construction unless that is at
variance with the intention of the legislature to be collected from the statute itself or leads to any
manifest absurdity or repugnance in which case the language may be varied or modified so as to
avoid such inconvenience but no further”. In an early case decided in Grey v. Pearson, this rule was
used by the court and it was observed there that in applying the golden rule the court is not trying to
review the policy underlined in the statute and modify the language of the statute if it considered
the result to be absurd but only to correct a mistake that has been made in the words of a statute.
(The court cannot change the purpose of law). In a certain English case decided in 1964, a nurse
made an application to adopt a child. The child lived with her, but when she was on duty, the child
was looked after by her sister. However, there was a legal requirement under the statute under
which the adoption was obtained that a child adopted should ‘continuously’ be in the care of the
person who adopts the child. In this case the court took the view that the word ‘continuously’ did
not mean that the child should not ‘continuously’ be in the physical care of the person adopting but
rather that the child should be continuously looked after. In this case a strict interpretation adopting
a literal approach would have resulted in unreasonableness. In the SA context, in a case decided
there in 1964, Devinish observed that the literal rule may be departed from only when it would lead
to a absurdity or a result which in unjust, unreasonable in consistent with the other provisions and
the general policy of the statute. Cross in this book on ‘Interpretation’ has summarized this rule in
the following manner, “a judge may read in words which he considers to be necessarily implied by
the words which are already in the statute, and have a limited power to add to or to alter or ignore
statutory words in order to prevent a provision from being uninterrigible or absurd or totally
unreasonable”. In the case of Adler v. George, the absurdity that is sought to be avoided by the
application of the golden rule should an absurdity appearing on the face of the statute itself, from
the words used there in. a review of the policy underlying that Act and modifying that policy where
the court considers is to be absurd is not contemplated by this rule. This very fact is also the
weakness of the rule. One difficulty faced by courts in adopting this rule s how the court can
distinguish between an absurdity on the face of the Act or an Act producing what the judges may
consider an absurd result. The Indian author Sarathi in his book on Interpretation on statutes
observes that the golden rule approach has failed because there is no objective criteria by which one

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can say that a particular interpretation is absurd. It leaves each judge to determine on his own,
whether an interpretation is absurd or not. Basically the courts have used this rule to make certain
changes or modifications to the text of any law before them in two instances:

(i) To correct an abvious error in the law before them. For an example printing error etc.
(ii) To enable the text to operate in a manner that the court considers parliament must have
intended. In the 2nd instance the court will have to deal very carefully when trying to
read in words that are not there because in the absence of clear necessity it would be
the wrong thing to do. But here again judges has expressed contrary views. Fir an
example in the case of Mayor of St. Melons v. New Port Corporation, the court held
that “we (judges) sit here to find the intention of parliament and carry it out. We do this
better by filling in the gaps and making sense of the enactment than opening it up to
destructive analysis”.

Viscount Simonds refusing the approach of this rule has said, “it is a naked interference with the
functions of the legislature, under the disguise of interpretation”. In the case of Lee v. Knapp, sec.
77(1) of the Road Traffic Act 1960 required the driver of a motor vehicle to ‘stop’ after an accident. It
was held that a momentary pause after an accident would except the driver from the necessity of
stopping to give particulars. The phrase “the driver of the motor vehicle shall stop” should properly
be constructed as meaning of the driver of the motor vehicle shall stop it and remain where he has
stopped it for such a period of time as in this case, having regard in 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 to do so, and reasonable grounds for so doing, to require of him direct and personally
the information which may be required under this section. In conclusion the main weakness of this
rule is the very issue of absurdity. Absurdity is a concept which is vague and indefinite as in the
literal meaning. So that what appears to be absurd to one judge may not appear absurd to another.
In SA the courts have in order to get over this problem have developed the criteria “utterly glaring
absurdity” thereby implying that a mere ‘absurdity’ will not be sufficient. But here again the
distinction between what is ‘absurd’ and ‘what is utterly absurd’ can cause difficulty.

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 3. Mischief rule

Parliament when it enacts a law intends to achieve some purpose. It either wish to remedy a social
evil or provide for a short coming in the existing law. It is always presumed that the parliament has a
reason for enacting a particular law, so that the enactment of a law is generally said to be for the
purpose of curing a defect in the existing law. This defect is considered for the purpose of this rule to
be the ‘mischief’ when a law has been enacted by parliament so as to remedy a particular defect or a
mischief the court is expected to resort to the interpretation which will assist the court in remedying
that mischief and thereby give effect to the intention of parliament in enacting that law. This rule
was laid down in an old English case of Heydon’s Case 1584. It was said in that case that a court
should consider four things in order to give a sure and true interpretation if statutes that come up
before them:

(a) What was the common law prevailing before the statute was enacted?
(b) What was the mischief or defect for which the common law did not provide?
(c) What was the remedy parliament resorted and appointed to cure this defect?
(d) What was the true reason behind the remedy?

The function of the judges is to give an interpretation that would suppress the mischief and advance
the remedy according to the true intention of parliament which enacted the law. In the case of
Smith v. Hughes, it was held that prostitutes who attracted the attention of passer-by from
balconies or window were soliciting “in a street” with sec. 1(1) of the Street Offences Act. This act
intended to clean up the streets without being molested or solicited by common prostitutes.
Further, the court was held that in this case, “I approach the matter by considering what is the
mischief aimed by the Act? Everybody knows that this was an Act to clean up the streets to enable
people to walk along the streets without being molested or solicited by common prostitutes”. In the
case of Dorothy Silva v. Inspector of Police Vice Squad, it was held that the aim of the Brothel’s
Ordinance is to suppress prostitution, if any premise is used to promote such activities such
premises have all the attributes of a brothel for the purpose of the Brothel’s Ordinance. An
interpretation that fulfils the objective of the legislature (suppression of prostitution) should be
adopted. The weakness in this rule according to Pierce is due to the fact that this rule pre-supposes
that all statutes are directed towards changing the common law, whereas many statutes may be
enacted for purpose of new areas of law. The purpose of the law as opposed to a defect being cured
is a fact which has in recent times to have led to the mischief approach being termed as the
‘purposing approach’. Not all laws are brought to cure a defect, new laws may be enacted to deal

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and cover new areas. However, by resorting to the mischief rule the court sometimes gave very
restricted interpretations to statutes.

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What is meant by the Purposive Rule? Describe the manner in which it is incorporated into the
legal systems of common law countries. [Oct. 2015]

The Purposive Theory – this theory may be identified or explained as a modern version of the
mischief rule. There is a presumption that the parliament intended the court in interpreting a statute
should do so by advancing the remedy which is indicated by the words of an Act for the mischief
dealt with it. An interpretation which promotes the remedy which the parliament has provided is
now known as a purposive construction. Lord Wilberforce in a certain case observe that consider of
the purpose of a law is always a legitimate part of the process of interpretation.

In the case of Pepper v. Hart, the court was held that, “the days long passed when the courts
adopted a strict view of interpretation which required them to adopt the literal meaning of the
language. The courts now adopt a purposive approach which seeks to give effect to the true purpose
of the legislation and are prepared to look at much external material that bears upon the
background against which the legislation was enacted”.

According to Devinish, the purposive theory adopts the objective concept of purpose, so as to avoid
the suggestion of subjective design. Legislative purpose is a more general and a more objective
concept than that of legislative intent. In the case of Ibrahim v. The Minister of Interior, the
dissenting judges applied this purposive approach and held that the object of the statute was to
preclude SAs from obtaining dual citizenship while abroad and that his presence on board of a ship
in the SA territorial waters should not be allowed to diminish the essential objects of the statute.

The purpose of a statute may not always be clearly seen. According to certain jurists, the purpose or
reason for a certain statute may itself be a subject of controversy no less difficult to resolve than the
ultimate question of intent or meaning. For an instance in the leading case of Pepper v. Hart, the
House of Lords accepted that judges could refer to the parliamentary debates reported in the
hansards in order to ascertain the meaning or the purpose of an Act of the parliament.

Also in the case of Wickremeratne v. Somawickrema & others, it was observed, “the basic rule of
interpretation is that the legislator’s objective should be advanced and that the provisions be
interpreted in keeping with the purpose of the legislature”. In another case of D (Minor) v. Berkshire
Country Council, the House of Lords held that to achieve the purpose of the law it was necessary to
take into consideration a continuous period beginning before the birth of a child and still continuing
at the time the ‘care order is made’, the word ‘is’, “a child’s proper development ‘is’ being neglected
or he ‘is’ being ill-treated”. Appearing in that section had therefore to be applied to the period taken
as a whole. In yet another case the House of Lords applied the purposive approach to the phrase

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“information contained in a publication” in the content of Court Act 1981 and widened it to include
‘information communicated and received for the purpose of a publication’ has not yet taken place
and may never take place.

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 INTERPRETATION OF LEGISLATION AND CONSTITUTION

Is retrospective legislation permitted under the 1978 constitution of the Democratic Socialist
Republic of SL? Can such retrospective legislation be enacted with respect to war crimes and
crimes against humanity? [April 2015]

Retrospective legislation is permitted under the 1978 constitution of the Democratic Socialist
Republic of SL. (a) Should retrospective application be expressly stated in the Act or could it arise
by necessary or distinct implication, having regard to the provisions of the Act? (b) Could ex-post
facto and ad hominem legislation be rendered void vis-à-vis the 1978 constitution? [Oct. 2014]

Article 75 of the constitution grants power to parliament to male laws including laws having
retrospective effect which declares as: “parliament shall have power to make laws, including laws
having retrospective effect and repealing or amending any provision of the constitution, or adding
any provision to the constitution: provided that parliament shall not made any law – (a) suspending
the operation of the constitution or any part thereof, or (b) repealing the constitution as a whole
unless such law also enacts a new constitution to replace it”. According to article 13(6), it states that
“no person shall be held guilty of an offence on account of any act or omission which did not, at the
time of such act or omission, constitute such an offence, an no penalty shall be imposed for any
offence more severe than the penalty in force at the time such offence was committed. Nothing in
this article shall prejudice the trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general principles of law recognized
by the community of nations. It shall not be a contravention of this article to require the imposition
of a minimum penalty for an offence provided that such penalty does not exceed the maximum
penalty prescribed for such offence at the time such offence was committed”.

There are two elements of retrospective legislation:

1. Retrospective legislation (vested rights)

2. Retrospective legislation (existing rights)

In the case of West v. Gwyenne, the distinction between above two elements was illustrated in this
case. The court was held that the rule against retrospectivity was applied only to save vested rights
and not existing rights. In another case of Re a Solicitor’s Clark, where an Act provides that it shall be
deemed to have come into the effect in a past date, it is retrospective legislation. Prima facie an Act
of parliament deals with the future and not past. There is a presumption that a law speaks only as to
the future. Most Acts of parliament interfere with existing rights. The question whether an Act

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operates prospectively or retrospectively is one of legislative intentions. According to Maxwell, a
statute is operative only in cases or on facts which come into existence after the statute is passed
unless a retrospective effect is clearly intended.

In the case of Young v. Adams, it was observed that retrospective operation ought not to be given to
the statute unless the intention of the legislature that it should be so construed is expressed in plain
and unambiguous language. In another case of Chebaro v. Chebaro, the underline motive against
retrospectivity is to ensure that justice is done to the individual but there is also a practical
consideration.

According to Maxwell, the presumption against retrospectivity has two aspects because it involves
another subordinate rule to the effect that the statute is not to be construed to have a greater
retrospective operation than its language renders necessary. For an instance in the case of Carson v.
Carson, the court was held that the rule against retrospective legislation is not a rigid one nor is an
inflexible one but it is to be applied always in the language and the subject matter of the statute.

In the case of Panjab University v. Subash Chandra, an amending Act however, is not retrospective
as it applied also to those whom the pre-amended statute was applicable. In another case of Blyth v.
Blyth, the court was observed that the rule against retrospectivity does not apply to a statute which
only alters the form of procedure or the admissibility of the evidence or the effect which the court
gives evidence.

Effect of holding a statute as retrospective can be beneficial or detrimental. However, parliament

can make laws with retrospective effect. But that presumption could be rebutted by an express
provision in law itself to the contrary. Finally, the strongest case against retrospectivity is in regard to
penal legislation. (Sepala Ekanayake v. AG and De Mel v. De Mel).

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 MAXIMS

“Maxims are useful devices in the interpretation of statutes”. Discuss. [Oct. 2015]

A maxim may be defined as an attempt to capture an essential principle of law. It is an accepted

principle that unless a contrary intention appears within the statute itself, the law implication
imports the principle of any legal maxim which prevails in that temporary of law which the statute
operates. According to Bennion, the term ‘maxim’ is derived from the Latin phrase ‘maxima
propositio’. A certain judge has observed that he detest the attempts to fetter the law with maxims.
According to Devinish, maxims are not rules of interpretation but useful devises that is used for
difficulties and permissible solutions which may be applied when the context warrants it. However, a
maxim becomes reliable when the extent of application has been tested by cases brought before
courts.

01. An act of god causes legal injury to no one.

02. Audi alteram partem.

03. No one should be a judge in his own case

04. A person alleging his own wrong doing is not to be heard.

05. Good faith does not suffer the same thing to be exacted twice.

06. All things are presumed to be correctly or solemnly done.

07. The law does not concern itself with try field matters.

08. Lex non cogilact impossiblia.

09. Necessity knows no law.

10. Delegates non potest delegare.

11. No one should be allowed to profit from his own fault.

When it comes to “an act of god causes legal injury to no one”, an act of god connotes a natural
disaster or any other event which cannot be avoided and it is no one’s fault. It is unjust that a person
should suffer legal detriment y reasons of acts of god so that the statutory duty does not apply.

When it comes to “audi alteram partem”, the meaning of this term is that all parties should e heard.
This is the basic principle of natural justice. Both parties must e given an opportunity of being heard.

When it comes to “no one should be a judge in his own case”, this is the second principle of natural
justice. It applies in a wider sense to mean that no one acting judicially sow biased in favour of one
side or the other.

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When it comes to “a person alleging his own wrong doing is not to be heard”, if a plaintiff requires
any aid from an illegal transaction to establish his cause of action, he shall not have any assistance
from the courts.

When it comes to “good faith does not suffer the same thing to e exacted twice”, application of this
maxim is founded on the principle that law does not intend to inflict injustice. Two actions cannot be
brought in respect of the same cause of action which gave rise to the doctrine of res judicata.

When it comes to “all things are presumed to e correctly or solemnly done”, this maxim established
the presumption that an act of parliament is properly enacted or delegated legislation is correctly
made.

When it comes to “the law does not concern itself with try field matters”, when parliament enacts
legislation by implication is presumed to have intended that its enactment shall not apply in any
case.

When it comes to “lex non cogitact impossiilia”, the law does not compel a person to do something
which cannot possibly be done.

When it comes to “no one should be allowed to profit from his own fault”, this is a principle of
public policy. In a decided case a widow who applied for a widow’s allowance under a social security
law refused to grant the allowance on the ground that she killed her husband and was convicted of
manslaughter.

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 PRESUMPTIONS

What are the presumptions applicable to statutory interpretation? Explain two presumptions
briefly. [April 2015]

Presumption can be considered as certain guidelines which have arisen out of the nature of
legislation as to the legislature’s prima facie intention regarding the legal meaning of an enactment
the common law has laid down various presumptions about what parliament is likely to intend
regarding the operation of a law.

1. All legislation is presumed not to have extra-territorial application.

2. Legislation is presumed not violate rules of International law.

3. Crown (state) is presumed not to be bound by its own statutes.

4. Presumption against intending what is harsh, unjust or unreasonable.

5. Presumption against absurdity.

6. Presumption against ousting established jurisdiction

7. Presumption against retrospectively.

8. Statutes are presumed to be valid.

9. Words are to be interpreted in their ordinary sense unless they are technical.

10. Presumption in favour of preserving vested rights.

When it comes to “all legislation is presumed not to have extra-territorial application”, in the case
of British Coal Corporation, it is generally presumed that parliament confines its laws to its own
subjects (citizens) over whom it has authority and to whom it owes a duty in return for their
obedience, nothing is more clear than that it may also extend its provisions to foreigners in certain
cases and may without express words make it appear that such is the intention of those provisions.
However, the presumption is against such extension. It is important that this presumption is not
confused with a question whether or not a state is able to legislate extra-territorially.

When it comes to “legislation is presumed not violate rules of International Law”, every statute is
to be interpreted and applied as far as its language admits so as not to be inconsistent with the
established rules of IL. Courts generally endeavour to give effect to this presumption while
conceding that it is possible for a domestic law to differ from an IL. Where a statute which seeks to
give effect to an IL conversion is ambiguous the courts will adopt an interpretation which best

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facilitates the operation of the convention, but where the statute is clear the courts are required to
give effect to the statute even though it is inconsistent with established rules of IL. For an instance in
the case of England Revenue Commissioner v. Collco Dealings Ltd, a judge may not pronounce a
statute ultra vires as contravening IL, but may be discouraged from adopting an interpretation which
would involve a breach of accepted roles of IL. The reason for this presumption lies in the respect a
state has for diplomatic privileges and sovereign power is always presumed to respect the subjects
and the rights of all other sovereign powers outside its territory.

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 SUBORDINATE RULES

“According to a well-established rule in the construction of statutes, genersl terms following

particular ones apply only to such persons or things as are eiusdem generis with those
comprehended in the language of the legislature”. R v. Cleworth (1864) 4 B & S. 927, per Cockburn
C.J. at p. 932. Discuss how eiusdem generis rule would help interpret statutes. Support you
answers with decided cases. [April 2014]

Subordinate rules contribute immensely towards statutory interpretation. These rules are generally
expressed in the form of Latin phrases or maxims, as they may have originated due to the influence
of Roman law in European countries.

Similarly presumptions also contribute to statutory interpretation and the courts of law are guided
by the presumptions whenever they are confronted with uncertainties or unambiguities. In this
context presumptions refer to the presumed intention of parliament.

Some of the important subordinate rules can be classified as follows:

1. Ut magis valeat quam pereat (it is better for a thing to have effect than rendered futile)

This rule of interpretation has been adopted when there are two possible and equally forceful
interpretations of a particular statutory provision. In such situations the courts of law adopt the one
which makes the statutory provisions effective and not inoperative. In the case of Trinidad Cement
Company Ltd. v. AG Guyana, the legal issue in this case was whether a natural or juristic person
could bring legal proceedings before the court as the relevant legislative provisions were not clear ex
facie.

2. Noscitur a sociis (the meaning of the words can be gathered from the context)

The meaning of the word or phrase can be understood by reference to other words or phrases used
in the same statute. Words are not generally read in isolation in the interpretation legislative
provisions and their color and meaning are derived from their context. (AG v. Prince Ernest
Augustus of Hanover). In the case of Gunasinghe v. De Silva, Weeramanthry J. refused this rule
when a person was bitten by another and was prosecuted under a statute which made cutting,
stabbing or wounding an offence. The judge was of the view that biting is different from cutting,
stabbing or wounding and therefore he disregarded the application of this rule.

3. Eiusdem generis rule (it means of the same kind or nature)

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This is an important rule in statutory interpretation. When specific words follow a general word, it
takes the meaning of the general word, so long as the specific words belong to the category or genus
of the general word. For example, a person is allowed to walk in a public park with a dog, cat or any
other per as permitted by the Park Authority. Under this rule, other pets must fall into the same
category as dog and cat. It cannot include a snake or python. In the case of Shirani Bandaranaike’s,
the SC held that the court of appeal has no power to hear the legality of the termination of the CJ
under art. 140 of the 1978 constitution by way of a writ application as the Parliamentary Select
Committee does not fall within the ambit of any inferior court, tribunal or institution. In this case the
SC applied the eiusdem generis construction for the determination of the jurisdiction of the court of
appeal. Francis Bennion, in his monumental book has expressed the view that the eiusdem generis
rule is a ranch of the rule noscitur a sociis (Sohil Captain v. Comissioner of Inland Revenue)

4. Expression unius est exclusion alterius (it means the express mention of one excludes the
other)

If a statute states it applies to cats, it cannot apply to dogs or lions or if a statute says that children
under 12 can enter the park without buying a ticket, a child of 12+ cannot enter the park. This rule
can have constitutional implications. It can make discriminatory or unjust legislation which could be
challenged as ultra vires the fundamental rights unless such discrimination is based on reasonable
differentia.

There are other important subordinate rules relating to interpretation of statutes which are too
numerous to mention. Some of them are:

(a) De minimis non curat lex (the law does not take trivialities into account).

(b) Generalia specialibus non derogant (general law does not abrogate a special law on the
same subject)

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Composed By:
Hasangi Basnayake (LLB)
Legal Researcher in International Human Rights Law & International Humanitarian Law.
Member in United for Human Rights, USA

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