By Emdadul Haque Senior Lecturer Dept. of Law & Justice Southeast University Fall Semester-2013 October 1, 2013.

Statute- in narrower sense any law made by Parliament e.g. the Bangladesh Labour Act 2006. A. K. Badrul Haque J. in Al-Amin and others v. State, 51 DLR 154, 166 held: A statute is the edict of the Legislature. Act- any bill passed by Parliament e.g. the Village Courts Act 2006. Ordinance promulgated by President in absence of Parliamentary session but in case of immediate legislative necessity is a also a statute. Presidential Order when President is the chief executive of a state e.g. the Bangladesh Bank Order 1972. Regulation- Bangladesh Energy Regulatory Commission Act, 2003, Police Regulation of Bengal 1943. Rules made by administrative authority- Bangladesh Environment Conservation Rules, 1997. Bye-law: enacted by semi-government and autonomous bodies such City Corporations, Public Universities.

Enact-make or the process of making sth. Enactment-means law made by other authorities except Parliament. Alahabad High Court in Director, Public Prosecutions v. Lumb, (1941) AIR ALL ER p. 499 held: An enactment may mean something other than an Act of Parliament, but an Act means an Act of Parliament. In Wakefield etc. Co. v. Vakefield Corporation, (1880) 5 Ex D 287, 293 the court held: Act means the whole Act whereas section or part of a section in any Act may be an enactment.

Authenticity of a statute: Any Act published in an official gazette is termed as authentic text of the statute. Supremacy/ Priority as to language of a statute: If any statute is enacted in English and has a Bangla translation of the same or vice versa and in case of conflict of in between these two versions, then the statute enacted in the original language will be given priority. Article 153 of Bangladesh Constitution 1972. The Constitution will have a authentic translated version in Bangla. In case of conflict between English and Bangla, Bangla will be given priority. In India also original text will be given supremacy in case of conflict between Hindi and English.

.
4

A conventional system is followed Law enacted by the Parliament is numbered, placed and organized chronologically Every Act after the signature of the President numbered using Roman numerals For example- The Evidence Act 1872 (Act No I of 1872), the General Clauses Act 1897 (Act No X of 1897). Private University Act 2010 (Act No 35 of 2010), Hindu Marriage Registration Act 2012 (Act No 40 of 2012), Children Act 2013 (Act No 24 of 2013). Rules made by administrative authorities and approved by Cabinet is not numbered necessarily like statutes. However, administrative Orders and decisions are recorded.

There is a wide range of materials familiar as parts or aids to interpretation used by judges while interpreting statutes. Mainly these two materials are- Internal aids and external aids. They are also known as intrinsic and extrinsic aids. Internal aids: Some of these aids are found within the statute and known as internal parts or aids to statutory interpretation e.g. Title, preamble, proviso, marginal note etc. External aids: On the other hand, others parts are not available in the statute but used for understanding of the statutes and known as external parts or aids to statutory interpretation e.g. Text books, dictionary, hansard, case reports etc. Both internal & external aids play vital role in the process of statutory interpretation.

(1) Title- name and designation of the statute. Title may be (a) short title and (b) long title. (a) short title-is merely used for convenience and purely for reference. E.g. the Penal Code, 1860. (b) long title- is intended to provide a summary description of the general purpose or scope of the Act. E.g. the Prevention of Food Adulteration Act, 1954, with the long title reads as An Act to make provisions for the prevention of adulteration of food.

(2) Preamble- an aim of the Act with introductory statement. It explains the inner purpose, reasons, underlying philosophy and summary. It is an important part of a statute and it is often used as interpretative tool of an enactment. (3) Headings- a group of Articles or Sections are given under a heading. Every part Bangladesh Constitution has a heading, e.g. Part II as FPSP and Part III as FR. (4) Marginal notes-stay at the left side or right side of the margin of a section and also knows as side notes.

(5) Proviso- a conditional clause and sometimes it is started as provided that in a section or in a clause. (6) Interpretation clause- under a section or a clause some useful definitions are given as tool of interpretation. It is also called definition clause. (7) Articles/ Sections- main part of an Act. Articles or sections bear similar meaning. Subsections, clauses and sub-clauses are used in a section. (8)Punctuations and brackets- used after 1850 and have significance. For example what does [***], etc. mean?
9

(9) Illustrations- explanations with examples or facts used as guidance and directions in a section or clause. Helpful to understand particular provision of an Act. (10) Exceptions- exempt or exclude the application of a provision of an Act. For example- law passed by Indian Parliament is not applicable in Indian occupied Kasmir. (11) Saving clause- save the earlier functions of a repealed Act and also protect immunity of a person or an authority under an Act. (12)Schedule- an applied part of an Act. But all laws may not have schedules. The Limitation Act, 1908, The Court Fees Act, 1870, The Code of Criminal Procedure, 1898, the Constitutions of the Peoples Republic of Bangladesh, 1972 etc have schedules.

10

(1) Text books- used to understand laws and

referred in many contexts, e.g. Constitutional and Administrative Law by Hilary Burnet, Statutory Interpretation by Maxwell etc. (2) Dictionary- useful tool to know word meaning and terminology, e.g. Black Law Dictionary. (3) History, objects and reasons- handy documents used to know the context and significance of enactment of an Act. (4) Case reports- integral part of an Act because judicially interpreted words are to accepted by all.

11

(5) Government publications- by different departments such as survey reports, maps, policies etc. (6) Bill a proposed law which contains its history, purpose and justification. When the language of an Act is ambiguous then the bill can be referred. (7) Hansard- debates and proceedings of a Parliament. (8)International Conventions- if any state is a party
to any relevant Convention then compliance is needed, e.g. ICCPR 1966, ICESCR 1966 and Part III and Part II of Bangladesh Constitution.

12

(9) Foreign judicial decisions- subject to relevancy of

the same issue of a state may follow foreign judicial decisions which have a persuasive value but not binding effect. (10) Contemporaneous exposition- a proposed law which contains its history, purpose and justification. When the language of an Act is ambiguous then the bill can be referred. (11) Previous English Law- British legal system was a

mother legal system and so their statutes and judicial decisions are useful parts for interpretation.

(12) Analogy and legal fiction- use of legal reasoning and logical inference. Deductive and inductive reasoning. Also presumption as to law, fact and evidence such as SEU is a legal person.

13

Classification as to nature

General statutes- applicable to all irrespective of colour, caste, creed or religion. For example the Contract Act 1872. Special statutes- applicable to particular group of people. For example Bangladesh Labour Act 2006. Classification as to durationTemporary statutes- with fixed period of time like Speedy Trial Tribunal Act 2002 enacted for six years under section 2(1) but extended step by step. Now it is effective up to 2014. Temporary laws are the outcomes of immediate necessity. Permanent statutes- with specific or fixed period of time like the Code of Civil Procedure 1908, the Penal Code 1860 and Code of Criminal Procedure 1898 etc. Permanent laws are the results of matured thought of the legislature and most laws are of permanent in nature. But situation dictates law as either as temporary or permanent.
14

Classification as to procedure by Jurist Maxwell

Imperative/ mandatory statutes- everybody is absolutely bound to follow. May be domestic law and international law. The Constitution of India, 1950, the UN Charter 1945 etc. Directory/ permissive statutes- not mandatory but may be followed like soft law. For example many government policies, declaration in international law such as UDHR 1948. Classification as to purposeDeclaratory statutes- declares and removes ambiguity in law such as the Laws Continuance Enforcement Order 1971, the Presidential Order 1972, the Bangladesh Laws (Revision and Declaration) Act 1973 etc. Codified and consolidating statutes- codified means unified on a particular area like Muslim Family Laws Ordinance 1961, Family Court Ordinance 1985 etc. Consolidating means extended such as the General Clauses Act 1897 because two previous GCAs of 1868 and 1887 were consolidated. Remedial statutes- deal with remedy and damages such as NATA 1949, SATA 1950 etc.

15

Classification as to purpose

Enabling statutes- empowers an authority sth special such as preventive detention under the Special Powers Act 1974 and acquisition of immovable property under the Acquisition and Requisition of Immovable Property Ordinance 1982 etc. Validating statutes- tests and validates the standard and functions such as BSTI under the Bangladesh Pure Food Ordinance 1959, PUC 2010 etc. Amending statutes- adding, altering and substituting in a text of a statute. For example 15th Amendment of BD Constitution. Penal v. Remedial statutes- one deals with penalty, correction and rehabilitation of offenders and another deals with remedy as specific performance of cntract, damages etc. General law to follow special law- priority must be given to special law in case of conflict between the provisions of general law and special law. For example BECA 1995, will be given priority in case of conflicts with other existing environmental laws.
16

Interpret means explain, analyze, clarify and construct Interpretable (adj.) means worthy of, capable of interpretation or qualified to be interpreted. Interpretation (n) the process or technique of finding meaning of law. Meaning of law may be narrower and wider depends on contexts. Aids to interpretation- (i) internal aids and (ii) external aids. Approaches/ kinds of interpretation- (i) narrower approach and (ii) wider/ broader or purposive approach. Rules of interpretation- (i) literal rule (ii) golden rule and (iii) mischief rule. Rules of language- ejusdem generis means of the same kind.
17

Ambiguous, inconsistent, unreasonable Incomplete, incapable, inalienable Equality/ non-discrimination, round etc. Liberty, independence, freedom, emancipation. Did you know? Of the 500 most-used words in the English language, each has, on average, 23 different meanings. The word round has 70 different meanings! So, the meaning of legal expression may bear different sense in context to context. Discrimination can be used positively?
18

Eve teasing (now sexual harassment) in BD Bullying (intimidation of weaker person) in USA in common in schools. Grouping (sexual harassment) in Japan. So, different words expressing same theme. The word Act (with Capital A) denotes law made by parliament but act (with small a) denotes any activity. Initial letter of every word of a law has to capital letter generally not always e.g. in USA.
19

F.A.R. Bennion (Statute Law, 1990) has identified a number of problemsThe draftsman may refrain from using certain words and keeps implied e.g. definition of vehicle as bus, truck, car etc. Draftsman may use a broad term or phrase with wide meaning and leave it to the user to judge to contextualize .. Ambiguous words may be used. There may be unforeseeable developments. There are many ways in which the wording may be inadequate. There may be a printing error, a drafting error or another clerical error. Language is an imperfect medium of expression and the power of expression in any language lags behind the power of thought. When the law speaks of residence of a person then does it imply permanent place of abode or dwelling house or a temporary residence? Interpretation helps to understand, analyze and use of law to a law student, academic, lawyer, judge and legal researcher..

20

Duty of interpretation goes to appellate/ superior courts. In case of BD the SC (HCD & AD) is imbibed with authority. In India and Pakistan the duty goes to HC and SC as HC and SC are the highest judicial entities. The SC of BD is the court of last resort as to justice and statutory interpretation. It is like all in one about interpretation of all laws whether ordinary law or Constitutional law. There are separate Constitutional Courts in France, Germany, South Africa, Egypt dealing with interpretation of Constitutions. There are regional court to deal with interpretation of laws of a particular region e.g. ECJ founded in 1952. In case of international law ICJ (1945), ICC, (1998) ITLOS (1996) are with the authority to interpret international Treaties, Conventions and Protocols. Firstly international courts determine the jurisdiction and secondly the merit of the case. WTO, WB laws are interpreted by Board of Directors. However, powers and jurisdictions of courts relating to interpretation depend on laws and demarcated by laws.
21

Interpretation and construction are generally used synonymously expressing overlapping meanings. But there are some differences between these twoInterpretation finds out natural and thematic meaning of an enactment whereas construction draws conclusion of the enactment. Interpretation is needed when the meaning of a statute is less complex while construction is required when the meaning of the statute is more complex and also contested. Originalists (who do not want to change the statutory law) engage in interpretation and nonoriginalists engage in construction.

22

However, Salmond finds no difference between these two. Crawford observed the distinction interpretation and construction relegated the realm of academic discussion and not practically possible. Sutherland says the distinction between these two is erroneous. Majority jurists opine the difference between these two is rather academic than of practical significance. These two are interchangeable and almost the same as well as helpful to each other.
23

Q & A/ FAQs Thank You!

24