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Date: 3 Oct 2010

STATUTORY INTERPRETATION
There exists the doctrine of Separation of Powers introduced by John Locke and developed by
Montesquieu. The doctrine is applied in Mauritius, though not strictly. This doctrine states that
there shall be a separation of powers for the good government of the country. The powers
should be divided between the Legislature, the Executive and the Judiciary. Here we are
concerned with the Legislature and the Judiciary. The main role of the legislature is to make,
pass and vote laws. These laws shall be known as Statutes or Acts of Parliament. The role of the
Judiciary is mainly to interpret and apply the law.

The function of the courts is to interpret and apply the statutes; they have no discretion to
refuse to apply it even if they feel that it is unjust or causes hardship in any particular case.
When legislation is drafted by Parliamentary draftsmen great care is taken to ensure that there
is no room for doubt as to the meaning of the legislation, and that it contains no ambiguity. To
assist those who may be affected by them, and also to assist the courts, Acts of Parliament
often contain an ‘interpretation’ section in which words and phrases used in the Acts are
defined. In addition, all Acts are governed by the Interpretation and General Clauses Act 1974,
which lays down certain rules of interpretation which apply generally. For example, it provides
that according to section 2(b): ““attempt", in relation to an offence, means a commencement of
execution which has been suspended or has failed in its effect through circumstances
independent of the will of the person making the attempt”.

Statutory interpretation is the process of interpreting and applying legislation. Some amount of
interpretation is always necessary when a case involves a statute. Sometimes the words of a
statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or
vagueness in the words of the statute that must be resolved by the judge. To find the meanings
of statutes, judges use various tools and methods of statutory interpretation.

According to section 10 of the Interpretation and General Clauses Act 1974:

“Where in an enactment a French term or expression is used, or an English term or expression


is explained by reference to a French term or expression, the interpretation of the enactment
shall be in accordance with that of the French term or expression.”

In the case of R v Mitra 1891, the Supreme Court decided to as both versions were accepted by
the Queen, the most convenient version was to be applied to the accused which violated the
real intention of the legislature but section 10 of the Interpretation and General Clauses Act
1974 remedied it.

There are 3 rules of interpretation which has been developed by the judges. They are the
judicial rules of interpretation.

Literal Rule or Plain Meaning Rule:


The literal rule is the primary rule which takes precedence over the others. Words and phrases
should be construed by the court in their ordinary meaning and the ordinary rules of grammar
and punctuation should be applied. If, applying this rule, a clear meaning appears, then this
must be applied, and the court will not inquire whether what the statutes says represents the
intention of the legislature: “The intention of the Parliament is not to be judged by what is in its
mind, but by the expression of that mind in the statute itself.” The term or expression used
shall be interpreted in its ordinary meaning. This rule has been strongly criticized by many
lawyers. It has been said to be “a rule against using intelligence in understanding language.

In the case of London and North Eastern Railway v Berriman 1946, where a worker working on
the railways was hit by a train and died, the wife of the worker had its application for
compensation refused. According to the Literal rule, law covered only railways’ workers who
repaired the railways and not those who maintained or greased the railways.

In the case of Mian v R, the accused was arrested for the importation of a certain quantity of
drugs where the Dangerous Drugs Act 1974 did not define the word “importation” according to
the defense counsel. Then the court interpreted “importation” as “bring” and “not cause to be
brought.”

In case the Courts apply the Literal Rule where the meaning of words in a statute, if strictly
applied in the ordinary sense, would lead to an absurdity or would be repugnant or inconsistent
with some other provision of the statutes, the Court will not apply the this rule and shall apply
the Golden Rule. The golden rule is that the courts are entitled to assume that Parliament did
not intend such absurdity, and they will construe (interpret) the Act to give it the meaning
which Parliament intended. The court may then refer to the Secondary or Technical meaning of
the term.” If the words of an Act are clear, we must follow them even though they lead to a
manifest absurdity. The court has nothing to do with the question whether the legislature has
committed an absurdity” since the decision of R. v Judge of the City of London Court 1892.
Example: In the case of an accident between two cars, the ordinary meaning of “accident” is by
chance but in this context it doesn’t apply. We must then refer to the secondary meaning of the
word which must be interpreted according to the Road Traffic Act.

In the case of Plaines Wilhems Co. Ltd v The Medine Sugar Estate Co. Ltd 1943 the court stated:

“In a construction of a statute the plain, literal and grammatical sense of the words is to be
adhered to , unless that would be contrary to or, irreconcile with, the express or declared
purpose of the statute, or would involve some absurdity, repugnant or inconcistency with the
rest of the statute, in which case the grammatical sense may be further modified so as to avoid
such an inconvenience and no further”.

Mischief Rule:
When it is not clear whether an act falls within what is prohibited by a particular piece of
legislation, the judges can apply the mischief rule. This means that the courts can take into
account the reasons why the legislation was passed; what ‘mischief’ the legislation was
designed to cure, and whether the act in question fell within the ‘mischief’. It is the process of
going back to the times where the common law was codified.

In the case of Pierrot v De baize and Others, the applicant(heirs) asked that Le Conservatoire
des Hypothèques with order of the judge of the Bankruptcy Court(master and registrar of the
supreme court), to cancel the mortgage according to the article 10 of the Ordonnance No.36 of
1863. The first reason raised is that application for renew was done after 10 years and was void.
The second reason raised was that the application had to be done after the death of the wife.
Widow was interpreted as every person who dies after the husband and not before. The
applicants was said to be the heirs of a wife died before the husband and not a widow.it was
held that: “in the construction of doubtful and ambiguous clauses in a statute, great weigh is
attached to the object which the legislative had in view, and such construction will , if possible,
be adopted as will both remove the mischief which it intended to cure and advance the remedy
which it intended to supply.”

External Aids are also available to the interpretation of statues:

Rules of Language and Maxim of Interpretation:

Ejusdem Generis:

It is a latin word for "of the same kind," used to interpret loosely written statutes where a law
lists specific classes of persons or things and then refers to them in general. The general
statements only apply to the same kind of persons or things specifically listed. It applies even if
the term “others” is not mentioned in the text.Example: if a law refers to automobiles, trucks,
tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include
airplanes, since the list was of land-based transportation. The general words are to be taken as
referring only to those things of the same class as specifically mentioned e.g. ‘cats and dogs’
does not include wild animals.

In the case of Ramtohul v The Queen 1971, this rule was experienced. The accused was
arrested and the defense counsel stated that the accused had only put stones on the road for
blocking the road as an obstacle and section 48(1) of the Public Order Act 1970, makes place for
only “structures, fence, ditch et other obstacles” and that an obstacle of stones is not in the
same category and the accused is being wrongly punished. The Supreme court held that
according to the principle of ejusdem generis or things of the same kind,this obstacle of stone
falls under this category even if the law did not mention it. The intention of the legislature was
to the obstruction of the free passage on the road and it should be interpreted widely.

Noscitur a sociis:
“A thing is known by its associates”. The meaning of the words can be understood from the
words around them. When a word is ambiguous, its meaning may be determined by reference
to the rest of the statute. The meaning of questionable or doubtful words or phrases in a
statute may be ascertained by reference to the meaning of other words or phrases associated
with it. For example the words “floors” in the Factories Act 1961, in phrase “floors, steps, stairs,
passages and gangways” which were required to be kept free from obstruction, was held “not
to apply to part of a factory floor used for storage rather than passage.

Expresso Unius Est Exclusio Alterius:

It is also known as the The Negative Implication Rule. This rule assumes that the legislature
intentionally specified one set of criteria as opposed to the other. Therefore, if the issue to be
decided addresses an item not specifically named in the statute, it must be assumed that the
statute does not apply. It refers to the fact that the exclusion of one thing is the exclusion of
another. For example if a law is making reference to horses, cows cannot form part under that
law.

There are other rules of interpretation of Acts of Parliament:


Les Travaux Préparatoires:

Another form of interpreting statutes can be by studying the parliamentary materials. These are
parliamentary materials before the bills are passed as an Act. It may contain debates of the
parliament, notes, suggestions, recommendations, etc. When a text in an statute is ambiguous,
the judiciary may return back to the time when the law was still a bill. The classic case may be
Fracoeur v Francoeur where the court looked at the parliamentary materials. The case was
about a minor girl wishing to marry but her father refused to give his assent and the mother
had asked the judge in chambers for a “dispense d’age”. It was held that the judge did not have
jurisdiction and the application was set aside. In this case the judge referred to the
parliamentary materials for the “dispense d’age” of Sir Guatan duval who had at that time
proposed that law.

Presumptions:

There are some facts which need not be proved because they are deemed by the law to require
no proof.
In the case of Masson v R 1962, presumption was defined as: A presumption, earns a rule of
law that courts and judges shall draw a particular fact or from particular evidence unless and
until the truth of such inference is disapproved”
There are many presumptions that may be applies in doubtful cases such as: presumption
against ousting the jurisdiction of the courts, presumptions in favour of a strict construction of
penal statutes or presumption against interference with vested rights.
Finally there is also an internal aid for the interpretation of the statutes. There is an interpretation
section (stated above), long title, preamble, short title, headings, side notes, punctuations,
schedules. All of them forms part of the statute and may be used for the interpretation of the
statute. According to section 6(1) of the Interpretation And General Clauses Act 1974, “ The
Schedules and appendices of an enactment shall form part of the enactment.” In the case of
Phillippe Rogers v the Controller of Customs 1994, the court stated that: “ The schedule is as
much part of the statute, and is as much an enactment in a schedule contradicts an earlier clause,
the clause prevails against the schedule.”

A doctrine stated that: “Nul n’est censé ignorer la loi”. So for the good prevalence of justice in
the country the statutes must be passed in clear and explicit terms by the legislature so that the
judiciary can administer the law properly.

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