Introduction to Interpretation of the Constitution:
There two broad theories of constitutional interpretation: (a) Originalism (intentions of the original drafters) and (b) Pragmatism (Gap-filling).
1. Textual:
Decision based on the actual words of the written law, if the meaning of the words is unambiguous. Since a law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be of the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters.
Latin maxims:
A verbis legis non est recedendum – From the words of the law there is not any departure.
Noscitur à sociis – Meaning of words may be ascertained by associated words.
2. Historical:
Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history. A textual analysis for words whose meanings have changed therefore overlaps historical analysis.
Latin maxim:
Animus hominis est anima scripti – Intention is the soul of an instrument.
3. Functional (Structural):
Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system.
Latin maxim:
Nemo aliquam partem recte intelligere potest antequam totum perlegit – No one can properly understand a part until he has read the whole.
4. Doctrinal:
Decision based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative.
Latin maxims:
Argumentum à simili valet in lege – An argument from a like case avails in law.
Consuetudo et communis assuetudo . . . interpretatur legem scriptam, si lex sit generalis – Custom and common usage . . . interpret the written law, if it be general.
Cursus curiæ est lex curiæ – The practice of the court is the law of the court.
Judiciis posterioribus fides est adhibenda – Credit is to be given to the latest decisions.
Judicata pro veritate accipitur – A thing adjudicated is received as true.
5. Prudential:
Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure. One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method. It also includes such considerations as whether a case is “ripe” for decision, or whether lesser or administrative remedies have first been exhausted.
Latin maxim:
Boni judicis est lites dirimere – The duty of a good judge is to prevent litigation.
6. Equitable (Ethical):
Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties.
Latin maxim:
Æquitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione consistens – Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone.
7. Natural:
Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur.
Latin maxims:
Jura naturæ sunt immutabilia – The laws of nature are unchangeable.
Impossibilium nulla obligatio est – There is no obligation to do impossible things.
Lex non cogit ad impossibilia – The law does not compel the impossible.
Lex neminem cogit ad vana seu inutilia peragenda – The law requires no one to do vain or useless things.
Legibus sumptis desinentibus, lege naturæ utendum est – Laws of the state failing, we must act by the law of nature.
In order to give a purposive interpretation of the Constitution the Appellate Division took into consideration the character and origin of the Constitution to determine the purpose of judicial review under Article 102 of the Constitution and from such determination arrived at the meaning of the expression ‘person aggrieved’ in the said Article.[1] The Appellate Division held that when the spirit and purpose emerge clearly from the scheme or express provisions of the constitution, it will be contrary to the intention of the framers, for the AD to give a construction which is not in accordance with such spirit or purpose.[2]
The court cannot adopt an interpretation that is contrary to the intent and object of the Constitution over one which conforms to it.[3]
The Appellate Division in Kudrat-E-Elahi has held that no implications can be made while interpreting the written constitution.[4] However, it must be noted that shortly before Kudrat-E-Elahi the Appellate Division in Mujibur Rahmaninvoked the ‘Doctrine of Implied Powers’[5].[6] The decision of the Supreme Court in Anwar Hossain Chowdhury was based on implications.[7]
The Supreme Court has held that the intention of the framers are primarily expressed through the language that is employed and hence, at the first instance attempt should be made to understand the intention from the words used,[8] and thereafter from the whole of the enactment.[9] A clause must not be interpreted in isolation and must be construed as part of a unified whole.Every word must be given effect to and no word; as a general rule, should be rendered meaningless or inoperative.[10]The court must lean in favour of a construction which will render every word operative rather than that which makes some words idle or nugatory.[11] If the language of the Constitution is not only plain, but admits only one meaning, the language declares the intention,[12] even if the result is harsh.[13]
[1] Dr. Mohiuddin Farooque v. Bangladesh, (1997) 49 DLR (AD) 1, para 40-48.
[2] Dr. Mohiuddin Farooque v. Bangladesh, (1997) 49 DLR (AD) 1.
[3] Aftabuddin v. Bangladesh, (1996) 48 DLR 1, 13.
[4] Kudrat-E-Elahi v. Bangladesh, (1992) 44 DLR (AD) 319, 351.
[5] Implied Powers are which can reasonably be assumed to flow from express powers, though not explicitly mentioned in the Constitution. In other words, implied powers are powers that are not enumerated but which nonetheless exist because they are needed to carry out an express power.
[6] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111.
[7] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1.
[8] Mujibur Rahman v. Bangladesh, (1992) 44 DLR (AD) 111; Aftabuddin v. Bangladesh, (1996) 48 DLR 1; Mahbooduddin Ahmed v. Bangladesh, (1998) 50 DLR 417, 423.
[9] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1; Reference by President, (1957) 9 DLR 178.
[10] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1; Begum Shamsunnahar v. Speaker, (1965) 17 DLR (SC) 21.
[11] Reference by President, (1957) 9 DLR 178.
[12] Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1.
[13] Halima Khatun v. Bangladesh, (1978) 30 DLR (AD) 207.
Farhaan Ahmed 