Interpetation of Statutes and legislative draffting BA - LLB ok (1).pptx

Interpretation of Statutes and legislative drafting BA - LLB Pakistan.pptx

1. INTERPRETATION OF STATUTES l 522 AND LEGISLATIVE DRAFTING BA-LLB BY Dr. Muhammad Tahir 1

2. Syllabus Legislation Interpretation of Statue Rights of Subject Role of Courts Presumption Principles of Interpretation of Statues Rules of Interpretation of Statues External and Internal Aids in Construction of Statues Harmonious Construction and conflict of laws Interpretation of Penal Statues Interpretation of Fiscal Statues Directory and Mandatory Provisions in Statue Prospective and retrospective effect of interpretation Legislative Drafting 2

3. CHAPTER 1 Introduction of Legislation CHAPTER 2 Interpretation of Statue CHAPTER 3 Directory and Mandatory Provisions in Statue CHAPTER 4 Rights of Subjects CHAPTER 5 Role of Courts in Interpretation of statue CHAPTER 6 Presumptions CHAPTER 7 Interpretation of Penal Statues CHAPTER 8 External and Internal Aids in Construction of Statues CHAPTER 9 Harmonious Construction and conflict of laws CHAPTER 10 Interpretation of Fiscal Statues CHAPTER 11 Words and phrases CHAPTER 12 Introduction of General Clauses Act 1897 CHAPTER 13 Introduction of Legislative Drafting CHAPTER 14 Significance of Legislative Drafting Syllabus 3

4. The intent of legislature and the ends of law is something of fundamental importance in application of law. This course will elaborate the fundamental rules of interpretation, the rules of construction, etc. A discussion on the prospective and retrospective effect of a statute. General principles of interpretation as laid down in the General Clauses Act 1897. LEARNING OUTCOMES 4

5. Definition Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it. ... Whether a given bill will be proposed and is generally a matter of the legislative priorities of government. Types of Legislation There are four types of legislation: bills, joint resolutions, concurrent resolutions, and simple resolutions. Statue Law and Custom Statue and Enactments Codification LEGISLATION 5

6. Significance of Legislation Legislation is one of the most important instruments of government in organizing society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the  legislation  applies. Intention of Legislature Legislative intent is the term that the courts have given to their analysis of the historical documents originally generated when the statute in question was under consideration in the Legislature —state or Federal. LEGISLATION 6

7. LEGISLATION The source of law which consist of the declaration of legal rule by a competent authority The laying down of legal rules by a sovereign or subordinate legislator Law that has its source in legislation may be most accurately termed “enacted law” all other form are un enacted 7

8. Kinds Supreme & Subordinate Direct & Indirect Delegated Conditional LEGISLATION 8

9. Supreme Supreme legislation is the expression of the legislative will of a supreme authority in a state. It is supreme because no authority can annul, modify or control it. It proceeds from the sovereign or supreme legislative power in the state, and which is therefore, incapable of being abrogated by any other legislative authority. LEGISLATION 9

10. Subordinate Legislation that proceeds from any authority other than the sovereign legislation power, and is, therefore, dependent for its existence or validity on some superior or supreme legislative authority. It comes from a subordinate legislature or any authority and is subject to the repealing or sanctioning control of a superior legislation. In England all forms of legislative activities recognized by law, other than the power of parliament are subordinated and subject to parliamentary control. LEGISLATION 10

11. Subordinate Kinds Colonial Power of self government entrusted to colonies Executive Parliament delegates its rule making powers to departments of the executive organ Judicial Superior courts making rules for regulation of their own procedure Municipal Municipal authorities law making powers for the districts Autonomous For example Railways Companies, Universities LEGISLATION 11

12. Direct & Indirect Framing of laws by the legislature Colonial is the type of direct legislation When legal principles are declared by some other source to whom law making power is confined by the legislature. Except colonial, all other forms of subordinate legislation are instance of indirect legislation. LEGISLATION 12

13. Delegated When law making power conferred by the legislature upon some other body declare laws Growth of Delegated legislation Concept of Welfare state, more work, more legislation and parliament has less time for legislation and Difficult for parliament to lay down rules which are Technical in nature, hence powers are delegated to departments and ministries for rule making. Delegated legislation meets unforeseen contingencies Flexibility & Expediency In case of emergency LEGISLATION 13

14. Conditional Extends the operation of law to an area of territory Determines the time of application of an act to a given area Extends the duration of a temporary act Determines the extension and limits for implementation Introducing a special law if the contemplated situation has arisen in the opinion of the Government LEGISLATION 14

15. Codification A systematic collection of statues & body of laws so arranged as to avoid inconsistency and overlapping. Compilation, promulgation, collection and systematization of the body of law in a coherent form by an authority in a state competent to do so. Salmond Says that ; “The reduction of the whole corpus juris so far as practicable, in the form of enacted law” As per Bentham ; “A complete digest as such is the first rule. Whatever is not in the code ought not be law” LEGISLATION 15

16. Conditions for Codification Roscoe Says; Where legal institutions have become completely mature or where the country has no juristic post, the non- existence of such material. Uncertainty & Archaic character of Law The needs for one uniform law in a political community whose several sub-divisions has developed or received divergent local laws LEGISLATION 16

17. Classification of Codes Creativeness Make laws for the first time without any reference to any other law. Eg . Pakistan Companies act 2017 Consolidating Consolidates the whole- statutory, customary & precedent, on a particular subject & declares it. Eg ., The Transfer of Property Act 1882 Creative & Consolidating code which make law as well as consolidate the existing law on a particular subject. LEGISLATION 17

18. Merits of Codification Certain Simplicity Logical Argument Stability Planned development Unity LEGISLATION 18

19. Demerits of Codification Rigidity Incompleteness Hardship Defective Codes LEGISLATION 19

20. Act A bill which has passed through the various legislative steps required for it and which has become  law . Related Terms: Statutes, Legislation,  Law , Regulation, Enactment, Bill. Synonymous with the term enactment or statute. ARTICLE  A separate and distinct part of a written instrument, such as a contract, statute, or constitution, that is often divided into sections. A written instrument, containing a series of rules and stipulations that are each designated as an  article .   Clauses A clause inserted in a statute or contract declaring the interpretation that is to be put upon certain words. LEGAL DEFINITIONS 20

21. Enactment A  law  or a statute; a document which is published as an enforceable set of written rules is said to be  enacted . Law The art or process of determining the intended  meaning  of a written document, such as a constitution, statute, contract, deed, or will. ... In constitutional and statutory  law ,  legal interpretation  can be a contentious issue.  Legal interpretation  may be based on a literal reading of a document. LEGAL DEFINITIONS 21

22. Rule   The plain  meaning rule , also known as the literal  rule , is one of three  rules  of statutory construction traditionally applied by English courts. The other two are the "mischief  rule " and the "golden  rule ". ... The plain  meaning rule  is the mechanism that prevents courts from taking sides in legislative or political issues. REGULATION A rule of order having the force of  law , prescribed by a superior or competent authority, relating to the actions of those under the authority's control. Regulations  are issued by various federal government departments and agencies to carry out the intent of  legislation  enacted by Legislature. LEGAL DEFINITIONS 22

23. SECTION A subdivision of a written work.  Law  A distinct portion or provision of a  legal  code or set of  laws , often establishing a particular  legal  requirement:  section  5 of the Voting Rights  Act . A distinct portion of a newspaper: the sports  section . A distinct area of a town, county, or country: a residential  section . LEGAL DEFINITIONS 23

24. STATUE - CONST OF PAK 1973 The Preamble to our Constitution is important to refer and its opening para are as under “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;” 24

25. INTERPRETATION OF STATUES Statutory interpretation is the process by which courts interpret and apply legislation. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute. To find the meanings of statutes, various tools and methods of statutory interpretation are used, including traditional canons of statutory interpretation, legislative history, and purpose. 25

26. The term interpretation means “To give meaning to”. Governmental power has been divided into three wings The legislature The executive The judiciary. Interpretation of statues to render justice is the primary function of the judiciary. It is the duty of the Court to interpret the Act and give meaning to each word of the Statute. The most common rule of interpretation is that every part of the statute must be understood in a harmonious manner by reading and construing every part of it together. INTERPRETATION OF STATUTES 26

27. Principle of Plain and Unambiguous Language A basic principle of statutory interpretation is that courts should "give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed. A statute is an edict of the legislature and the conventional way of interpreting a statute is to seek the 'intention' of its maker. It is the judicature's duty to act upon the true intention of the legislature or the men's or sentential legis. The courts have to objectively determine the interpretation with guidance furnished by the accepted principles.  If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the legislature. The function of the courts is only to expound and not to legislate. LEGISLATION 27

28. INTERPRETATION OF STATUTES AIM & OBJECTIVE The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. ROLE OF COURTS Statutory interpretation is the process by which courts interpret and apply legislation. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations. 28

29. INTERPRETATION OF STATUTES ROLE OF COURTS Judges interpret legislation through a process called statutory interpretation. Judges only interpret parts of the law that are relevant to the case they are hearing. To interpret a statute, judges can consider the: Rules for interpreting legislation set out in Acts Interpretation Act 1901 ( Cth ) or Acts Interpretation Act 1954 (Qld) & Interpretive Policy of the Supreme Court of Pakistan: A Critical Analysis from the Perspective of Islamic Interpretive System. Plain meaning of the words used. Purpose of the statute. Goals or objectives set by parliament when the statute was made. 29

30. INTERPRETATION OF STATUTES To help them, judges can refer to a number of resources including: Dictionaries Legal texts Explanatory notes Speeches given by members of parliament during the reading stages of bill Other similar Acts or Subordinate legislation Precedents from other courts or jurisdictions that interpreted the same or a similar section 30

31. INTERPRETATION OF STATUTES For example, to come to his decision in Brett Cattle Company Justice Rares drew on: Decisions of previous courts Explanatory statements Similar Acts Relevant subordinate legislation 31

32. Definition of Statue A statute is a written law passed by a legislative body / legislature at the federal or province level. Statutes set forth general propositions of law. A statute may prohibit a certain act, direct a certain act, make a declaration.   Statutes  set forth general propositions of  law  that courts apply to specific situations. 32

33. INTERPRETATION OF STATUE READING THE STUTUE The language of the text of the statute serves as the starting point for any inquiry into its meaning. To properly understand and interpret a statute, one must read the text closely, keeping in mind that initial understanding of the text may not be the only plausible interpretation of the statute or even the correct one! 33

34. INTERPRETATION OF STATUE PRESUMPTION A legal  presumption  is a conclusion based upon a particular set of facts, combined with established  laws , logic or reasoning. It is a rule of  law  which allowing a court to assume a fact is true until it is rebutted by the greater weight (preponderance) of the evidence against it.   In the  law  of  evidence , a presumption  of a particular fact can be made without the aid of proof in some situations. The invocation of a  presumption  shifts the burden of proof from one party to the opposing party in a court trial. Making a  presumption  means assuming something is true or false without getting all the information necessary for verification.  You  can decipher this from the prefix pre, which means "before," together with the sume — from the Latin sumere , "to take."   A  legal  inference that must be made in light of certain facts. Most presumptions  are rebuttable, meaning that they are rejected if proven to be false or at least thrown into sufficient doubt by the evidence. 34

35. RIGHT OF SUBJECTS Legal  objects are 'things' with value in which  legal  subjects can acquire  rights . In other words, when a  legal subject  has a  right  to something (the legal  object), there is a legally protected relationship between the  subject  and the object to the extent of the entitlement.  The subject of law is a necessary element of legal relations in all branches of the law, although its status is specific in each such branch. In civil legal relations, citizens are physical persons, and state organs and public organizations are juridical persons. In administrative legal relations, the subjects of law are state organs, officials, and citizens. In recognizing the citizen as a subject of law, the state defines his legal status,  describes his relation to the state, the organs of the state and other persons. 35

36. PRINCIPLES OF INTERPRETATION The term interpretation means “To give meaning to”. Governmental power has been divided into three wings namely the legislature, the executive and the judiciary. Interpretation of statues to render justice is the primary function of the judiciary. It is the duty of the Court to interpret the law and give meaning to each word of the statute. The most common rule of interpretation is that every part of the statute must be understood in a harmonious manner by reading and construing every part of it together 36

37. OBJECT The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. ... The process of statute making and the process of interpretation of statutes are two distinct activities. The Supreme Court Pakistan has time and again held that if two interpretations are possible of the same statute, the one which validates the statute must be preferred PURPOSE OF INTERPRETATION OF STATUTES The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the Legislature – not to control that intention or to confine it within the limits, which the Judge may deem reasonable or expedient. PRINCIPLES OF INTERPRETATION 37

38. Kinds of Interpretation There are generally two kinds of interpretation Literal interpretation Logical interpretation 38

39. LITERAL INTERPRETATION Giving words their ordinary and natural meaning is known as literal interpretation. Courts are not allowed to modify the language of law and if the meaning is clear and unambiguous, effect should be given to the provisions of a statute whatever may be the consequence. The idea behind such a principle is that the legislature, being the supreme law making body must know what it intends in the words of the statute 39

40. LITERAL INTERPRETATION The bare words of the law must be construed to get the meaning of the statute and one need not probe into the intention of the legislature. The elementary rule of construction is that the language must be construed in its grammatical and literal sense. GOLDEN RULE The Golden Rule is that the words of a statute must, prima facie, be given their ordinary meaning. This interpretation is supreme and is called the golden rule of interpretation The golden rule permits the courts to depart from the plain meaning rule if the meaning leads to consequences it considers to be absurd or ambiguous. 40

41. LITERAL INTERPRETATION This was propounded in Grey V Pearson (1857) where Lord Wenslevadle stated “In construing… statutes… 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 the absurdity and inconsistency, but no farther. 41

42. LITERAL INTERPRETATION According to the fundamental principles of construction the statute should be read as a whole, then chapter by chapter, section by section and then word by word 42

43. LITERAL INTERPRETATION Exceptions to the Literal Interpretation Generally a statute must be interpreted in its grammatical sense but under the following circumstances, it may not be possible – ambiguity inconsistency incompleteness or lacunae unreasonableness 43

44. MISCHIEF RULE A statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it.” Heydon's Case  (1584) laid out the following statement of the principles underlying what would come to be called the "mischief rule": “For the sure and true interpretation of all statutes four things are to be discerned and considered:- What was the common law before the making of the Act 44

45. MISCHIEF RULE What was the mischief and defect for which the common law did not provide. What remedy the Parliament hath resolved and appointed to cure the disease of the Common wealth. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and  pro private commodo , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act,  pro bono public 45

46. LOGICAL INTERPRETATION If the words of a statute give rise to two or more constructions, the construction which validates the object of the law must be given effect while interpreting It is better to validate a thing than to invalidate it or it is better the law prevails than perish The purpose of construction is to ascertain the intention of the parliament 46

47. PURPOSIVE APPROACH The purposive approach (sometimes referred to as  purposivism , purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment (a statute, part of a statute, or a clause of a constitution) within the context of the law's purpose. Purposive interpretation is a derivation of mischief rule set in Heydon’s  Case and intended to replace the mischief rule, the plain meaning rule and the Golden Rule Purposive interpretation is used when the courts use extraneous materials from the pre-enactment phase of legislation, including early drafts, hansards , committee reports, and white papers. The purposive interpretation involves a rejection of the exclusionary rule. 47

48. PURPOSIVE APPROACH Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines elements of the subjective and objective. Barak states that the subjective elements include the intention of the author of the text, whereas the objective elements include the intent of the reasonable author and the legal system’s fundamental values. Critics of purposivism argue it fails to separate the powers between the legislator and the judiciary, as it allows more freedom in interpretation by way of extraneous materials in interpreting the law. 48

49. INTERNAL AIDS OF INTERPRETATION The general rule of interpretation is that statutes must prima facie be given their ordinary meaning. If the words are clear, free from ambiguity there is no need to refer to other means of interpretation. But if the words are vague and ambiguous then internal aid may be sought for interpretation 49

50. INTERNAL AIDS OF INTERPRETATION Context: If the words of a statute are ambiguous then the context must be taken into consideration. The context includes other provisions of the statute, its preamble, the existing state of law and other legal provisions. The intention behind the meaning of the words and the circumstances under which they are framed are to be considered 50

51. INTERNAL AIDS OF INTERPRETATION Title Title is not part of enactment. It cannot be used to restrict the plain meaning of the words in an enactment 51

52. INTERNAL AIDS OF INTERPRETATION Preamble The law starts with a Preamble. The main objective and purpose of the law are found in the Preamble the statute. Preamble is the Act in a nutshell. It contains the recitals showing the reason for enactment of the law. If the language of law is clear, the Preamble must be ignored. The preamble is an intrinsic aid in the interpretation of an ambiguous law 52

53. INTERNAL AIDS OF INTERPRETATION Headings A group of sections are given under a heading which act as their preamble. Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in the words of a statute, headings can be referred 53

54. INTERNAL AIDS OF INTERPRETATION Definition/ Interpretation clause The legislature can lay down legal definitions of its own language, if such definitions are embodied in the statute itself, it becomes binding on the Courts 54

55. INTERNAL AIDS OF INTERPRETATION Conjunctive and Disjunctive words CONJUNCTIVE Contracts, wills, instruments. A term in grammar used to designate particles which connect one word to another, or one proposition to another proposition. ... There are many cases in law, where the conjunctive and is used for the disjunctive or, and vice versa. The word “and” is conjunctive and the word “or” is disjunctive. These words are often interchangeable. The word ‘and’ can be read as ‘or’ and ‘or’ can be read as ‘and’ Gender Words using the masculine gender are deemed to include feminine also 55

56. RULE OF ‘EJUSDEM GENERIS’ Ejusdem generis means “of the same kind”. If general words follow particular words pertaining to a class, category or genus then it is construed that general words are limited to mean the person or thing of the same general class, category or genus as those particularly exposed 56

57. INTERPRETATION OF FISCAL STATUE Should courts interpret laws according to a uniform set of rules, or should they use different tools for interpreting different statutes? This simple question is increasingly at the heart of statutory interpretation scholarship and jurisprudence. If the latter position is correct--if different laws require different interpretive methods--generalizations about statutory interpretation may be of only limited value and the search for a unified theory of interpretation may be a misguided quest. But the lure of uniformity remains great, particularly for appellate courts, which must interpret a multiplicity of statutes and need at least some guiding principles to do so. This project is being divided into two parts, the first part deals with the interpretation of tax statutes & the second part deals with the interpretation of tax treaties 57

58. INTERPRETATION OF FISCAL STATUE THE THREE basic rules for the interpretation of statutes are the primary rule of construction, secondary rule of construction and the rule of harmonious construction. Primary rule of construction:  The steps to be followed while applying this rule are:  * Read and analyze a section  * Ascertain the primary meaning of the words used  * Ascertain the grammatical, literal and plain meaning of the words used in the section.  58

59. CONSTRUCTION OF TAXING STATUTES Explanations In certain provisions of a statute, explanations may be needed when doubts arise as to the meaning of that particular section. Explanations are given at the end of the section and it is part and parcel of the enactment. The effect of an explanation is taken to be from the day when the statute was first enacted 59

60. Introduction Statutes imposing taxes or monetary burdens are to be strictly construed. The logic behind this principle is that imposition of taxes is a kind of imposition of penalty which can only be imposed if the language of the statute unequivocally says so. Any kind of intendment or presumption as to tax does not exist 60 CONSTRUCTION OF TAXING STATUTES

61. Tax and Fee In case of a fee, there is a specific service rendered to the fee payer (Quid pro quo), whereas for the taxpayer, no direct services are rendered but the service assumes the form of public expenditure rendered to the public at large 61 CONSTRUCTION OF TAXING STATUTES

62. RULES OF INTERPRETATION Charging Section The section that charges tax must have clear words. Before taxing any individual it must be clearly established that the person falls within the purview of the charging section by clear words. If a person cannot be brought within the four corners of the tax law, he cannot be taxed unless the law specifies him to be taxable in clear and unequivocal terms It is a settled proposition that in case of interpreting a taxing statute, one has to look into what is clearly stated. There is no room for any intendment, presumptions or equity. Words cannot be added or substituted to find a meaning in a statute so as to serve the intention of the legislature. Every taxing statute must contain three aspects; subject of tax, person to be taxed and the rate of tax. 62

63. Strict and favorable construction Taxing enactment should be strictly construed and the right to tax should be clearly established. Equitable construction should not be taken into account Courts should not strain words and find unnatural meaning to fill loopholes. If the provision can be interpreted in two ways, then the one favoring the taxpayer must be taken into consideration 63 RULES OF INTERPRETATION

64. RULES OF INTERPRETATION Clear Intention to impose or increase tax The intention to impose or increase tax must be clear and in unambiguous language Prospective operation The cardinal principle of tax laws is that the law to be applied to a taxpayer is the law in force in the tax year unless otherwise provided expressly or by necessary implication No retrospective effect to fiscal statute is to be given unless the language of the statute is very clear and plain. It has been held that fiscal statutes are generally not retrospective unless otherwise provided expressly in clear words 64

65. Meaning in common parlance In finding out the meaning of a taxing statute, the meaning in common usage, parlance specially in commercial and trade circles ought to be considered Fiscal statute to be read as a whole The entire provisions of a fiscal statute has to be read as a whole and not in piecemeal to find out the intent of the legislature 65 RULES OF INTERPRETATION

66. Mandatory . ...  Mandatory  statutes are those that require, as opposed to permit, a particular course of action. Their language is characterized by such directive terms as "shall" as opposed to "may." A  mandatory provision  is one that must be observed, whereas a directory  provision  is optional. Directory . A  provision  in a statute, rule of procedure, or the like, that is a mere direction or instruction of no obligatory force and involves no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision , which must be followed. Mandatory statute  is a  statute  that requires a course of action as opposed to merely permitting it. It is a  statute  which leaves nothing to the discretion of the court in respect of compliance with its terms. Statutory training is required to ensure that the organization is meeting any legislative duties. On the other hand,  mandatory  training is an organizational requirement to limit risk and maintain safe working practice. 66 Directory and Mandatory Provisions

67. EXTERNAL AIDS TO CONSTRUCTION OF STATUTES EXTERNAL AIDS TO CONSTRUCTION OF STATUTES When internal aids are not adequate, court has to take recourse to External aids. External Aids may be  parliamentary material ,  historical background ,  reports of a committee or a commission ,  official statement ,  dictionary meanings ,  foreign decisions , etc. K.P. Varghese v Income Tax Officer Ernakulam ,  AIR 1981 SC 1922  [3] The Supreme Court has stated that interpretation of statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. When internal aids are not adequate, court has to take recourse to external aids. The external aids are very useful tools for the interpretation or construction of statutory provisions. As opposed to internal aids to construction there are certain aids which are external to the statute. Such aids will include parliamentary history of the legislation, historical facts and surrounding circumstances in which the statute came to be enacted, reference to other statutes, use of dictionaries, use of foreign decisions, etc . 67

68. EXTERNAL AIDS TO CONSTRUCTION OF STATUTES Parliamentary History, Historical Facts and Surrounding Circumstances Historical setting cannot be used as an aid if the words are plain and clear. If the wordings are ambiguous, the historical setting may be considered in order to arrive at the proper construction. Historical setting covers parliamentary history, historical facts, statement of objects and reasons, report of expert committees. Parliamentary history  means the process by which an act is enacted. This includes conception of an idea,drafting of the bill, the debates made, the amendments proposed etc. Speech made in mover of the bill, amendments considered during the progress of the bill are considered in parliamentary history where as the papers placed before the cabinet which took the decision for the introduction of the bill are not relevant since these papers are not placed before the parliament. The historical facts of the statute that is the external. 68

69. EXTERNAL AIDS TO CONSTRUCTION OF STATUTES Social, Political and Economic Developments and Scientific Inventions A Statute must be interpreted to include circumstances or situations which were unknown or did not exist at the time of enactment of the statute. Any relevant changes in the social conditions and technology should be given due weightage. Courts should take into account all these developments while construing statutory provisions. In  S.P. Gupta v Union of India ,  AIR 1982 SC 149 , [8] it was stated - “The interpretation of every statutory provision must keep pace with changing concepts and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirement of the fast changing society which is undergoing rapid social and economic transformation … 69

70. EXTERNAL AIDS TO CONSTRUCTION OF STATUTES Reference to Other Statutes: In case where two Acts have to be read together, then each part of every act has to be construed as if contained in one composite Act. However, if there is some clear discrepancy then the latter Act would modify the earlier. Where a single provision of one Act has to be read or added in another, then it has to be read in the sense in which it was originally construed in the first Act. In this way the whole of the first Act can be mentioned or referred in the second Act even though only a provision of the first one was adopted. In case where an old Act has been repealed, it loses its operative force. Dictionaries: When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in the selection of one out of the various meanings of a word, regard must always be had to the scheme, context and legislative history. 70

71. EXTERNAL AIDS TO CONSTRUCTION OF STATUTES Judicial Decisions: When judicial pronouncements are been taken as reference it should be taken into note that the decisions referred are of Pakistan, if they are foreign it should be ensured that such a foreign country follows the same system of jurisprudence as ours and that these decisions have been taken in the ground of the same law as ours. These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Pakistani decisions; reference to foreign decisions is of no use. Other materials Similarly, Supreme Court used information available on internet for the purpose of interpretation of statutory provision in  Ramlal v State of Rajasthan,  (2001) 1 SCC 175 . [9] Courts also refer passages and materials from text books and articles and papers published in the journals. These external aids are very useful tools not only for the proper and correct interpretation or construction of statutory provision, but also for understanding the object of the statute, the mischief sought to be remedied by it, circumstances in which it was enacted and many other relevant matters. In the absence of the admissibility of these external aids, sometimes court may not be in a position to do justice in a case. 71

72. HARMONIOUS CONSTRUCTION OF STATUE The doctrine or the rule of harmonious construction This rule of is adopted when there is a conflict between two or more statues or between the parts or provisions of the statues. As per this doctrine the courts try to avoid conflicts between the provisions of the statutes. The doctrine follows a very simple rule that every statute has made for a purpose and specific intent as per law and it should be read as a whole and interpreted accordingly. Thus the provisions are so interpreted that the conflict between the two statues or its provisions is avoided and each of them is given effect. For this purpose, the scope and meaning of one may be restricted so as to give meaning also to the other. So, The aim of the courts are:- i ) An interpretation which makes the enactment consistent . ii) A construction which avoids inconsistency or repugnancy between the various sections or parts of the statute. However, in the case in which it shall be impossible to harmonize both the provisions, the court’s decision shall prevail. 72

73. 73 LEGISLATIVE DRAFTING

74. LEGISLATIVE DRAFTING INTRODUCTION Laws should be simple, easy to understand and facilitate their compliance. Laws are meant for the community and not for lawyers alone. Most of the laws affect and have implication over a large number of people. A common man is always reminded that the ignorance of law is no excuse! But what is being done to create awareness of laws? Presently most of the legislative produce is technical and beyond normal populace. This results in non compliance, confusion, friction and litigation. 74

75. LEGISLATIVE DRAFTING  THE CONSTITUTION OF PAKISTAN 1973 Pakistan got independence from British Empire under the leadership Of Barrister Muhammad Ali Jinnah (1947) Constitutional Name Of State - “The Islamic Republic of Pakistan” Preamble and Objective Resolution Promises that: The State shall exercise its powers and authority through the chosen representatives of the people The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed 75

76. LEGISLATIVE DRAFTING CHALLENGES Law making is carried out by politicians and civil servants often with no training or expertise in this process. Lawyers have a vested interest in retention of old system. Law making is a technical and complex process. Read a need to simplify laws into An intent to comply with nation needs 76

77. LEGISLATIVE DRAFTING EXPECTATIONS FROM THE LAWS Fight hunger and employment Increase world trade Only a simple unambiguous legislation can equip a person with his civil, political and economic rights. Knowledge of law is a essential to the enforcement of one’s rights to life, privacy, employment and development. 77

78. LEGISLATIVE DRAFTING EXPECTATIONS FROM THE LAWS Fight hunger and employment Increase world trade Only a simple unambiguous legislation can equip a person with his civil, political and economic rights. Knowledge of law is a essential to the enforcement of one’s rights to life, privacy, employment and development. 78

79. LEGISLATIVE DRAFTING STRUCTURE/ COMPOSITION OF LEGISLATURE IN PAKISTAN Vide Article 50 Parliament is Composed of:- President Senate-Upper House National Assembly-Lower House 79

80. LEGISLATIVE DRAFTING KINDS OF LEGISLATION There are Two Kinds of Legislation Government or Official Bills Private Member’s Bill 80

81. LEGISLATIVE DRAFTING LEGISLATURE AND LEGISLATIVE POWERS Legislative Powers are Divided Between Federation and Provincial Assemblies Federal Legislative Powers enumerated in Fourth Schedule of Constitution Residuary Powers Lies with Provincial Legislature Federal and Provincial Legislatures Supreme in their Respective Fields 81

82. LEGISLATIVE DRAFTING PARLIAMENT AT WORK Introduction of Bill Reference to the concerned Standing Committee Consideration in the Standing Committee Report of the Standing Committee before House Consideration of the bill (First Reading) Clause by clause Consideration (Second Reading) Passing of Bill (Third Reading) Transmission of Bill to Other House Same Process shall be followed in the Other House If Passed, Bill shall be sent for Presidential Assent 82

83. LEGISLATIVE DRAFTING ROLE OF MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS IN LEGISLATION Drafting Of Bill in Legal Language Provide Consultancy regarding competence of Parliament to make a law on the proposed legislation Fulfilling other Legal requirements for Presenting Bill In the House 83

84. LEGISLATIVE DRAFTING MAJOR CHALLENGES/ PROBLEMS Coalition Government takes longer time required to develop consensus Frequent military interruptions/suspension of the Constitution Lack of grooming of Parliamentarians/Capacity issues Role of Free Media New Experience/ulterior motives Legislation - Power politics and party affiliation 84

85. LEGISLATIVE DRAFTING CONCLUDING REMARKS The Constitution is supreme law in Pakistan Parliament is supreme law making authority Pakistan is new democracy and institutions are nascent Firm-belief of all stakeholders in supremacy of the law/strengthening of democracy in Pakistan 85

86. INTRODUCTION TO GENERAL CLAUSES ACT 86

87. INTERPRETATION OF STATUTES THE END 87