Principles of Ordinary Law also applicable to Interpretation of Constitution
The legislature has clearly expressed its intention through the wording of the article[1]. The principles of interpretation that govern ordinary law are equally applicable to the provisions of the Constitution.[2]
The principles of interpretation that govern ordinary law are equally applicable to the provisions of a Constitute. For the purpose of deciding whether a provision in a constitution is mandatory one must have regard also to the aims, scope and object of the provision. The mere use of the word "shall" does not necessarily make the provision mandatory. Subba Rao,J. in the case of State of U.P. vs. Babu Ram[3] stated this in clear manner.[4]
The judgment of Cwyer, C.J., in the case of In Re C. P. Motor Spirit Act[5], sets out, at page 4, several of the principles, referred to follows:
"The Judicial Committee has, observed that a Constitution is not to be construed in any narrow and pedantic sense :per LORD WRIGHT in James vs. Comm. of Australia[6]. The rules which apply to the interpretation of other statutes apply, it is true, equally to the interpretation of a constitutional enactment. But their application is of necessity conditioned by the subject matter of the enactment itself; and I respectfully adopt the words of a learned Australian Judge:
“Although we are to interpret the words of the Constitution on the same principle of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and the scope of the Act that we are interpreting ‑ to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be'[7]"
Unlike statute law in the common law, the Civil Code is not a law of exception, and this must be taken into account in interpreting it. It must be interpreted broadly so as to favour its spirit over its letter and enable the purpose of its provisions to be achieved was observed by the supreme court of Canada.[8]
[1] Doré v. Verdun (City), [1997] 2 S.C.R. 862
[2] Visuwalingam and Others v. Liyanage and Others - SLR - 203, Vol 1 of 1983 [1983] LKSC 9; (1983) 1 Sri LR 203 (20 October 1983) [per : Ranasinghe. ,J. and Rodrigo, J. dissenting)
[3] State of U.P.V Babu Ram A.I.R. 1961 (SC) 765.
[4] "When a statute used the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non‑compliance with the provisions, the fact that the non‑compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered."
[5] In re C.P. Motor Spirit Act 1939 A.I.R. 4 Fed. Ct.p. 1,5.
[6]James vs. Comm. of Australia 1936 AC 578 at 64
[7] 1908, 6 Com. L.R.469, per Higgin, J.
[8] Doré v. Verdun (City), [1997] 2 S.C.R. 862 and it was stated in the continuation of the above that “The Civil Code of Québec sets out a number of guiding legal principles. According to the preliminary provision, the Code is also the foundation of all other laws dealing with matters to which the Code relates, although such laws may complement the Code or make exceptions to it. It is therefore the foundation of all statutes that draw mainly or incidentally on civil law concepts. It is also applicable to the aspects of legal persons established in the public interest that come under the Civil Code.”
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