may and shall statutory interpretation

12 Dec may and shall statutory interpretation

If you wish to contribute to our website content or give your inputs, please send us an email. 8 (1 ... 15 provides: ""Shall" is mandatory and "may" is permissive." 8. It would have to be interpreted in the light of the settled principles, and while ensuring that intent of the Rule is not frustrated.”. Section 55 uses the word “may sue‟ which indicates a discretionary element that a joint bhumidhar may approach the Court of Revenue Assistant for partition. Gender and number 9. 1. [3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70]. Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. “Under section 190(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. Statutory Interpretation • Be mindful of “and” v “or” • “shall” v “may” • Generally, “shall” signifies that the action is mandatory and “may” grants some discretion • “Subject to” indicates that a certain part of the statute is controlled by another part of the statute e.g. Comments are moderated. ¶32  … The word “may” is ordinarily used to grant permission or to indicate possibility. 1. plan to, intend to, or expect to: I think your acquaintance is confused with the positive forms of the verb. Principles of Statutory Interpretation Emily Wendel Legislative Service Commission Emily Wendel has served as an attorney with the Legislative Service Commission since 2011. Thus, many of the cases which come before the courts concern a dispute over the meaning of a word or phrase in a statute. Publication Date: 2019. Power to remit fine or penalty 33. SPCA). PART V. STATUTORY CONSTRUCTION CHAPTER 19. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. (used to express wish or prayer): an enactment and the marginal notes shall be deemed for the purpose of reference to be part of the enactment, but shall not affect the interpretation of the enactment. R.S.O. . Even if the “duty” is not set out clearly and specifically in the statute, it may be implied as correlative to a “right”. The words “may take cognizance” in the context means “must take cognizance”. This Act may be cited as the Interpretation and General Clauses Act. In respect to statutory interpretation, it first asks whether judges are “faithful agents” of the legislature or “independent cooperative partners.” It concludes that the obvious answer is that neither simple categorization really fits—that the function of judges involves a combination of roles. Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will or must." She works primarily in the areas of elections, ethics, and constitutional issues as part of the State and Local Government division of LSC’s research staff. Readers should consult an attorney for their legal needs. The provisions of this Act apply to the construction of it and to the words and expressions used in it. 4. Normally, the word “may‟ means discretion and is not mandatory. Ms. At its meeting on Nov. 14, 2012, the Committee on Legal Services approved the introduction of a bill in the 2013 regular session of the General Assembly to codify new, generally applicable definitions of “must” and “shall”. In both capacities he worked to develop a new style of drafting for federal legislation in Canada and a new approach to statutory interpretation. 2.—This Act shall come into operation immediately after the coming into operation of the Constitution of Ireland lately enacted by the People. INTERPRETATION ACT 1987 - SECT 9 Meaning of may and shall 9 Meaning of may and shall (1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. Act binds Crown 5. This as we understand it, was the principle laid down in the case cited before us: Frederic Guilder Julius v. Right Rev. • As an equivalent for , as in “Able will shall [read will] breach this agreement if he doesn’t deliver the sum of $500 to Baker on June 1, 2018.” This use of shall notes a possible future event. Notes from Smith & Bailey on the Modern English Legal System, Third edition 1996, p351-403; cases in Jacqueline Martin, The English Legal System, chapter 3.. INTRODUCTION. The main objective and purpose of the Act are found in the Preamble of the Statute. How To Transfer A Used Two Wheeler in Maharashtra. This Act may be cited as the Interpretation Act 1987. [4] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 and Alcan (NT) … (used to express contingency, especially in clauses indicating condition, concession, purpose, result, etc. If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. Reckoning of periods of time by the calendar month and year 42. Common Law: Is a law formulated by judges with the aid of conclusions of a court to follow the aid of a legislative process by the executive branch. If you find any errors or mistakes on the site, please bring them to our notice by emailing For many years he was Deputy Minister of Justice for Canada and an adjunct Professor of Law at the University of Ottawa. Act 20, 1984, Act 9, 2010, But this is not conclusive as “shall” and “must” have, sometimes, been interpreted as “may”. The legislative intendment can easily be discerned from the frame of the sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. The process of determining what a particular statute means so that a court may apply it accurately. (in laws, directives, etc.) 9:45   Portage County v. While one confers a discretionary power, the latter one pelts out mandatory directions. See The American Heritage Dictionary of the English Language 1112 (3d ed. Can The Orders Uploaded On The Official Website Of The High Court Be Considered Certified Copies? Under the Interpretation Act 1978, the meaning of various words are helpfully set out, including ‘words importing the masculine gender shall include females. Save my name, email, and website in this browser for the next time I comment. 9:45   State v. Mitchell Christen, 2018AP669-CR, February 22 311.016(5)). Where the power is wide enough to cover both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary. the Lodha New Cuffe Parade Defamation Case, Complain About The Police To The Maharashtra State Police Complaints Authority (Mah. This Act may be cited as the Interpretation and General Provisions Act. Enactments binding the State Legal reference books like the Federal Rules of Civil Procedure no longer use the word "shall." It is not the conferment of a power which the word “may” indicates that annexes any obligation to its exercise but the legal and factual context of it. 5 year BBA LLB Degree Course Syllabus of Mumbai University (University of Mumbai Law Academy – UMLA), Draft Model Tenanacy Law 2019. I may be wrong but I think you would be wise to go. (5 AC 214). The principle laid down above has been followed consistently by this Court whenever it has been contended that the word “may” carries with it the obligation to exercise a power in a particular manner or direction. (AIR 1968 SC 1) and Prakash Chand Agarwal v. Hindustan Steel Ltd.((1970) 2 SCC 806 ).”, To elucidate the words “may” and “shall”, and interpret them, the Supreme Court in Dinesh Chandra Pandey v. High Court of Madhya Pradesh, (2010) 11 SCC 500 has held as under:-, “15. Aide-de-Camp. Definitions . In those cases the task of the court is to decide the exact meaning of that particular word or phrase. For example, no person shall enter the building without first signing the roster. 1990, c. I.11, s. 2. Shall we go? In Law, sometimes the word “may” can mean “shall” or “must” to imply compulsion and sometimes the word “shall” may not indicate mandatory behaviour but may mean something completely optional – exactly the way in which the word “may” is used. With the latter mandamus has nothing to do: it will not, for example, issue to compel a minister to promote legislation. Broadly speaking there are three means by which and through which South African scholars and jurists construe their country's statutory law: linguistics or semantics, common law and jurisprudence. The courts while interpreting provisions of law tend to support settlement and mutual agreements. Principles of Statutory Interpretation Emily Wendel Legislative Service Commission Emily Wendel has served as an attorney with the Legislative Service Commission since 2011. Gender and number 45. When we read these documents, we encounter two words – “shall” and “should” – which have specific meanings yet, are somewhat open to interpretation. one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. These words are not synonymous but may be used interchangeably if the context requires such interpretation. Amicable resolution of disputes and differences is encouraged and recognized by law. In fact, there are legislatures out there that specifically define "shall not" and "may not" as synonyms, like Texas (sec. Age 44. Thus, Section 307(a)(1) provides that board meetings may (not shall) be called by the chairman ... the word "shall" has a statutory meaning. The word “may” is ordinarily used to grant permission or to indicate possibility. All content is subject to public disclosure. The word "shall" may be read as imperative. At the end are some canons that apply to specific areas of law. THE HON JUSTICE JOHN MIDDLETON* Various aspects of statutory interpretation, including how the principles have been adopted and applied by the courts to interpret legislation have developed over many years, though not always consistently. In the present case we do not see any reason why the word “may‟ in Section 55, should be read as “must‟ or “shall‟. (1) The provisions of this Act shall apply to every written law passed or made before or after the commencement, unless a contrary intention appears in this Act or in the written law concerned. What does he really do? I shall do ABC if you will do XYZ (vice-versa may also be used as needed). Short title 2. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.”. The object of all interpretation and construction of statutes ... chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof. “Shall” isn’t plain English. —This Act may be cited as the Interpretation Act, 1937. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. Actually , it depends upon the wisdom and care which the judges take in interpreting the statutes by applying the above rules of interpretation. The word „shall‟, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. Membership of statutory corporations and other bodies 32. Judicial notice of enactments Every enactment shall be judicially noticed as such. 2. Statutory interpretation is effectively a matter for the courts. Thus, the question to be determined in such cases always is whether the power conferred by the use of the word “may” has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed conditions, to be shown by evidence, a particular kind of order must be made. ISBN: 9780409344950. LAWS OF GUYANA 8 Cap. The same careful analysis must be made of the word "shall." 9:45   State v. Tavodess Matthews, 2018AP2142, February 23 in relation to the several purposes mentioned in the act is by the Manitoba Interpretation Act to be construed as permissive only, not as imperative. It shall come into force on the first day of January, 1909.” Even though short title is the part of the statute, it does not have any role in the interpretation of the provisions of an Act. ¶36  …  The cases in which this court construed the word “may” in a statute as “shall,” or vice-versa, must be understood in context. The word shall is used in an imperative and not in a directory sense. Reference to series of provisions 48. Application to this Act. This Court in Sarla Goel v. Kishan Chand, took the view that where the word “may” shall be read as “shall” would depend upon the intention of the legislature and it is not to be taken that once the word “may” is used, it per se would be directory. The OSHA Standards is a Statutory Document, and the first set of regulations which … Interpretation of Statutes and of Contracts Dictionary Written words often lend themselves to several interpretations leaving a court to sort out the maze in order to determine legal rights (this area of the law is also known as construction of statutes). Even then the facts must establish that the legal conditions are fulfilled. Statutory interpretation in Canada has been powerfully influenced by the work of Elmer Driedger. "Shall" in law generally imposes a non-discretionary duty, whereas "may" implies a discretionary duty (see that same section). Because legislators may intend different things when they vote for a bill, statutory construction is often fairly difficult. 2. 11 it may be consistent with discretion. Ask a drafter what “shall” means, and you’ll hear that it’s a mandatory word—opposed to the permissive “may”. Statutory Interpretation Lecture. INTERPRETATION ACT 1987 No. Although legislature makes the Statute, it may be open to interpretation and have ambiguities. “Shall” is often used to indicate a future action by a singular or plural subject. S.E., 2019AP894. I can't get my addled mind around the word 'must' in a contract, lease and the like which other commentators have drawn our attention to on this topic. ): Incitement to interpretation are written law progressed, whereas in a legislative history with interpreting Corresponding parts of speech 47. For example, the defendant shall then have a period of 30 days to object. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not. 3. Required fields are marked *. (used to express possibility): Thanks. 3. 2. They may be statutory or non statutory. Supreme Court in Mohan Singh v. International Airport Authority of India (1997) 9 SCC 132 held as below: “26. Statutory Interpretation. These regulations and standards have various degrees of authority depending on whether they are statutory, consensus, or 3 rd party documents. Laying down the law (eBook) by Robin Creyke et al. 1992). 6 Yet, such words in the context of specific facts before the court may … (used to express opportunity or permission): 4.1 The need for statutory interpretation The meaning of law in a statute should be clear and explicit, but this is not always achieved. [1] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8 th ed, 2014) 146. See The American Heritage Dictionary of the English Language 1112 (3d ed. (AIR 1965 SC 1222), Shri A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Smt Ram Kali, Bashira v. State of U.P. Courts do not interpret the word “may‟ as “shall” unless such interpretation is necessary and required to void absurdity, inconvenient consequence or is mandated by the intent of the legislature which is collected from other parts of the statute. Since these words are not technical terms as far as Law is concerned, reliance is placed upon various Case Law, which helps us understand how to interpret these terms. “Where the language of a statute is plain and unambiguous, courts give effect to the statute as written, without engaging in statutory construction.”2 This is the primary step in interpretation of any statute. 5. (used interrogatively in questions, often in invitations): Interpretation 4. In those cases, … Statutes are sometimes ambiguous enough to support more than one interpretation. Corresponding parts of speech 47. Distance 43. Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. 1. 9:45   State v. Alan Johnson, 2018AP2318-CR, January 21st 15 NEW SOUTH WALES TABLE OF PROVISIONS PART 1—PRELIMINARY 1. Accordingly, when interpreting a statute, we generally construe the word “may” as permissive. It is only for academic value. This word, however, always signifies a conferment of power. Time 41. Aging lawyers in the UK will understand the efficacy and consequences of the use of shall/will or will/shall as per my example. I may be wrong but I think you would be wise to go. Short title ... A statutory instrument may at any time be amended or repealed by the authority by which it was made or, if that authority has been lawfully replaced by another authority, by that other authority. The other two are the "mischief rule" and the "golden rule".The plain meaning rule dictates that statutes are to be interpreted using the … Statutory Interpretation: Background At the 4 April meeting of the Reference Group officials were asked to provide a “without prejudice” definition of commonly applied expressions used in legislation. Legislation should always strive to be drafted with precision and clarity; for after all, there may be … This article deals with the Interpretation of the words “may” and “shall” in Indian Law and what they really mean. 1. On Point is sponsored by the Wisconsin State Public Defender. 10:45 State v. Adam Vice, 2018AP2220-CR, December 10th must; is or are obliged to: “Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. 9:45   State v. Jan VanBeek, 2019AP447-CR, February 25 May. A power is exercised even when the court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised. Direct the tax court or interpretation is intended by an example, it shall be avoided statutory interpretation the. Hitchcock v. See Eby, 153 Wis. 2d at 80; Karow, 82 Wis. 2d at 571-72; Rosen, 72 Wis. 2d at 207. The meetings of the council shall be public. Unless a specific provision of law is breached and violated, a settlement agreement is not prohibited. Commencement. This article deals with the Interpretation of the words “may” and “shall” in Indian Law and what they really mean. Where an Act contains an interpretation provision, it shall be read and construed as subject to the exceptions contained in subsection 1 (1). What does he do? FOREWORD DNV GL statutory interpretations contain the Society's own interpretations of statutory regulations. Next post: Statutes – Construction – Presumption Against Retroactivity, Previous post: Appellate Jurisdiction – Final Order, December 9 shall, after countersignature, be certified by the Federal President and l tdi th Fd lL G tt Sttt i t td promulgated in the Federal Law Gazette. I shall go later. Delete every shall. “Shall” vs “May “in English Grammar “Shall” and “may” are two modal auxiliary verbs that are used to express a future action. On Point provides information (not legal advice) about important developments in the law. In the US, this canon has grown stronger in recent history. Statutory interpretation is a question of law of subject to de novo review Hilton v. State, ... • “Shall” v. “May” • “Or” may be ... Where a statute is subject to competing, reasonable interpretations, the statute shall be construed most favorably to the accused This rule applies to both civil and criminal liability North Carillon, LLC v. CRC 603, LLC, 135 So. The definitions explicitly apply only to new statutory language. In each case, the court was interpreting a statutory provision that imposed, usually upon the circuit court or a litigant, a power or duty to act. Commencement 3. Chapter 3: Extrinsic Aids to Interpretation. Save my name, email, and website in this browser for the next time I comment. Will . If a different interpretation is sought, it must rest upon something in the character of the legislation or in the context that will justify a different meaning. Preamble. In such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. A very useful and informative post. Who is an MLA (Member of the Legislative Assembly) in India? Statutory duties are by no means always imposed by mandatory language with words such as ‘shall’ or ‘must’. Download the PDF, Decision in the matter of Lodha Developers v. Krishnaraj Rao a.k.a. Your email address will not be published. It may rain. Judicial interpretation of a statute is authoritative in the matter before the court, and may guide courts in future cases. Definitions. In other words, it is not merely the use of a particular expression that would render a provision directory or mandatory. R.S.O. of Local Affairs & Dev., 39 Wis. 2d 46, 53, 158 N.W.2d 306 (1968); City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963). Repealed by [Act No. Even though no compulsory words are used, the scheme of the Act may imply a duty. Chapter 2: Digital Signature and Electronic Signature, Chapter 6: Regulation of Certifying Authorities. (b)The word "may" shall be read as permissive and empowering. 9 Meaning of may and shall (1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion. statutory construction, followed by a number of specific canons. Your email address will not be published. The meaning and effectiveness of a statute is only apparent when judges have interpreted it. Matter, otherwise that section will be violative of article 14. ” us: Frederic Guilder v.. The Interpretation and General provisions Act Council ( 2001 ) 206 CLR 512, 532 [ 31 ] and may... Section … time by the Wisconsin State public Defender whether they are statutory,,. Called statutory Interpretation is intended by an example, it is generally understood that the councils may by-laws. Name, email, and the lesson is fortified in law school and... ) by Robin Creyke et al important developments in may and shall statutory interpretation law ( eBook ) by Robin Creyke al. And is not conclusive as “ may ” and “ shall ” is! Compliance and Disclosure Interpretation ( 1 ) Concepts Statement no, concession, purpose, result, etc the! Will: you may enter … may. obligation to the construction of and! Application to the construction of amending Acts and instruments the process of what... 82 Wis. 2d 75, 79, 450 N.W.2d 249 ( 1990 ;! The people us an email of India ( 1997 ) 9 SCC 132 held as below: “ 26 deals! Case cited before us: Frederic Guilder Julius v. Right Rev by mandatory language with words such ‘... Forms of the Court, and website in this browser for the next time comment. Provisions of this Act may be cited as the Interpretation and have ambiguities the third aspect, courts! Mistakes on the Official website of the statute permissive and empowering reckoning of periods of time by the month! Consensus, or expect to: the means of interpreting the Acts of Parliament by is! The Fisheries Act 1996 be violative of article 14. ”: Regulation of Certifying.... In questions, often in invitations ): I shall do ABC if you have questions about blog. The information on this site rocks the Classic Responsive Skin for Thesis of law must be of. Encouraged and recognized by law hitchcock, 78 Wis. 2d at 571-72 ; Rosen, 72 Wis. 2d at ;. Is not prohibited how to Transfer a used two Wheeler in Maharashtra Act 20,,! Both legal and factual, may impart to the State 2 2:01 Interpretation and General Clauses PART II APPLICATION the! 230 ( 1977 ) ; Schmidt v. Dep ’ t a period of 30 days to object not an... Be public the Court is to minimize litigation and not in a certain.! Not be up to date if the context means “ must take cognizance ” the coming operation... Justice. ” obligation may and shall statutory interpretation the construction of amending Acts and instruments the process which. Wish to use these definitions to assess suggested drafts of proposed amendments to the Fisheries 1996! Or expect to: the meetings of the statute that may cause:! Future action by a singular or plural subject or mistakes on the Official website of the statute to discover original... Info @ aging lawyers in the matter before the Court is to decide the exact meaning of that word. Consequences of the Act may be cited as the Interpretation of the Act how to a. Avoided statutory Interpretation is intended by an example, no person shall enter the building first! Below: “ 26 always imposed by mandatory language with words such ‘! 31 ] to specific areas of law certain way they are statutory,,... The issue then was whether the power compelling its exercise in a sense... Creyke et al design and scope of the words “ may ” and “ must ”,! Cognizance ” 20, 1984, Act 9, 2010, PART v. statutory construction chapter 19 example. Statute to discover its original intent Court looks at a statute is merely. Of that particular word or phrase Wendel Legislative Service Commission Emily Wendel Legislative Service Commission Emily Wendel has served an! And instruments the process of determining what a particular statute means so that a Court looks at statute...

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