ENACTMENTAL COLLISION
By:
FAIZ JALBANI
Advocate
Sometimes, by tracing the history of a
particular phrase back through earlier Acts, one can throw light on its
meanings. If the language changes between one statute and another, inferences
can be drawn from the fact; alternatively sometimes understanding of meaning
can be based on the similarity of language in the present Act and some earlier
statute when the historical position was different.
In cases of doubt, Courts lean to a
construction that an enactment is not intended to impose a serious new
obligation, but only to provide new or better means enforcing an existing
obligation. An unequivocal enactment is also required for the purpose of either
adding to or taking from the jurisdictional limits of the Court.
No doubt where the words of an Act are clear,
the Courts must follow them but an attempt to seek the second meaning is
justified in case of absurdity. Following principles have been laid down by
Courts to avoid absurdity i.e.:--
(a) The
Courts have to presume that absurdity was not intended by the law-maker.
(b) When
the language used by the legislature admits of two constructions, the Courts
should not adopt a construction which leads to an absurdity.
(c) The
secondary meaning is to be preferred in view of possible absurdity only when
the absurdity is so gross as to shock the general moral and commonsense.
(d) In
case of possible absurdity the Courts can modify the meaning of the words and
even the structure of the sentence, or rejecting some words altogether or by
interpolating other words. Assuming that the legislature does not intend
irrational or incoherent directives, Court will read or even rewrite statutes
to avoid absurd results. The use of inapt or inarticulate language or words
will not vitiate a statute if the legislative intention can be ascertained, the same is equally true with reference to
awkward, slovenly or ungrammatical expression necessitating the departure from
the literal meaning of the word used.
(e) The
Courts seek to avoid a construction of an enactment that produces an unworkable or impracticable results.
(f) The
Courts seek to avoid a construction that creates an anomaly normally or
otherwise produces an irrational or illogical result.
(g) The
Courts consider a construction absurd if while curing the mischief for which
the enactment was passed the construction results in a disproportionate
counter-mischief.
Though the question of reasonableness or unreasonableness of the
consequence of a particular interpretation is primary for the legislature to
decide as it is in substance a question of legislative expediency, yet no
meaning can be given to certain words of a statute without rejecting some of
those used in it, or where a statute would reject some of those used in it, or
where a statute would become a nullity where all the words retained, the Courts
have power to read a section as though the words which make it meaningless or
nullify it were not there.
There is rule (this is not rule of law but is
rule of construction) "EXPRESSIO UNIS EST EXLUSIO ALTERIUS" (the
express mention of one thing implies the exclusion of another). Of course it is
a general principle of interpretation that the mention of one thing implies the
exclusion of another. Thus a statute that directs a thing to be done in a
particular manner, ordinarily implies that it shall
not be done in another manner.
Though this principle is to be used only as a
means of ascertaining the legislative intent where it is doubtful and not as
means of defeating the apparent intent of the legislature, yet the very principle
may be employed hereunder this situation because the mutually contradictory
provisions of sub-section (2) and sub-section (4) of Section 18 of Financial
Institutions (Recovery of Finances) Ordinance, 2001 damage the apparent
legislative intent with an overlap of inimical reciprocity.
Section 18(2) and (4) of the FIO, 2001 and Some provisions of the Qanun-e-Shahdat Order, 1984 are
reproduced as it mandates here so to be done.
Article 17 of the Qanun-e-Shahdat Order, 1984.
Competence and number of witness.--(1) The competence of a person to testify,
and the number of witnesses required in any case shall be determined in
accordance with the injunctions of Islam as laid down in the Holy Quran and
Sunnah.
(2) Unless
otherwise provided in any law relating to the enforcement of Hudood or any
other special law:--
(a) In
matters pertaining to financial or future obligations, if reduced to writing,
the instrument shall be attested by two men, or one man and two women, so that
one may remind the other, if necessary and evidence shall be led accordingly;
and
(b) In
all other matters, the Court may accept, or act on, the testimony of one man or
one woman or such other evidence as the circumstances of the case may warrant.
Section 18(2) and (4) of the FIO, 2001.
18. Banking
Documents. (2) Finance
agreements executed by or on behalf of a financial institution and a customer
shall be duly attested in the manner laid down in Article 17 of the
Qanun-e-Shahadat Order, 1984, (P.O. 10 of 1984);
(4) Notwithstanding anything contained in
this section or any other law, the Banking Court shall not refuse to accept in
evidence any document creating or purporting to create or indicating the
creation of a mortgage, charge, pledge or hypothecation in relation to any
property or assumption of any obligation by a customer, guarantor, mortgagor or
otherwise merely because it is not duly stamped or it not registered as
required by any law or is not attested or witnessed as required by Article 17
of the Qanun-e-Shahadat Order, 1984 (P.O 10 of 1984) and no such document shall
be impoundable by the Banking Court or any other Court or authority:
Provided
that nothing contained in this subsection shall operate to defeat the legal
rights of a bonafide purchaser for value without notice of a document which
ought to have been registered.
Article 79 of the Qaunoon-e-Shahdat Order, 1984.
79. Proof
of execution of document required by law to be attested.--If a document is require by law to be
attested, it shall not be used as evidence until two attesting witnesses [at]
least have been called for the purpose of proving its execution, if there be
two attesting witnesses alive, and subject to the process of the Court and
capable of giving evidence:
Provided
that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in
accordance with the provision of the Registration Act, 1908, (XVI of 1908)
unless its execution by the person by whom it purports to have been executed is
specifically denied.
Correct, there is a strong presumption that parliament does not make
mistakes but this presumption does not guarantee inerrancy on its part.
The provisions laid
down under sub-sections (2) and (4) of Section 18 of the FIO, 2001 not only
cause obfuscation but also lead to absurdity.
This may be conscious or this may be
consequence of antics on the part of legislature.
Sometimes, it seems un-understandable as to
why did the very mutually contradictory provisions require to be consecrated
through legislative Act.
If Section 18 (4) of the FIO is supposed to
be in continuance of Section 18(2) of FIO, 2001 it is self destructive
provision.
The aforerelated provisions
may be viewed upon from another angle i.e the FIO or the preceding legislation
on the same subject is/was silent about the applicability of the
Qanoon-e-Shahdat Order, 1984. This very silence, obviously, convinces to
believe that the provisions of Qanun-e-Shahdat Order would be applicable upon
the proceedings under FIO, 2001 with the exception which may be taken while
keeping in mind the limitations, impliedly or expressly, demarcated by
applicability of non-obstante clause. The enactment of Section 18 of the FIO,
2001 further clarifies that the Qanoon-e-Shahdat Order, 1984, particularly
Article 17 would be applicable.
Here, at this junctures, a
whim springs up from the depth of conscious that the Banker's Books Evidence
Act, 1891 may be resorted to but this evidently would not be helpful in coming
to the rescue of section 18 of the FIO, 2001 on two simple grounds i.e, the
preamble and the definition of Banker's Books Evidence and the very Act is sans
non-obstante clause.
In the Banking Companies (Recovery
of Loans) Ordinance, 1979, the Banking Tribunal Ordinance 1984 and the Bank Companies
(Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, no
provision akin to or identical with section 18 (2) and (4) of the FIO, 2001
were enacted. These provisions, for the first time, had been introduced in the
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997
and thereafter the same provisions were borrowed to be made the part of FIO,
2001.
Now a perusal of the
relevant provisions of Article 17 and Article 79 of the Qanun-e-Shahadat Order,
1984 gets to lay that the instruments pertaining to financial or future
obligations, if reduced to writing, the same shall be attested by two men or
one man and two women. Further a document required to be attested shall not be
used in evidence until two attesting witnesses at least have been called for
this purpose subject to the condition that the attesting witnesses are alive;
they are subject to the process of Court; and they are capable of giving
evidence.
A Division Bench of Hon'ble
Lahore High Court,
Now it is clear that the
proposition dealt with in the aforereferred judgment is distinguishable because
in the said case execution of documents was not denied. While I wonder, as my
proposition is in this essay, as to what course would be adopted by a Court in
case the execution of a document is barely denied. Either to
follow the sub-section (2) or sub-section (4) of the Section 18 of the F1O,
2001?
No doubt, in Para 41 of the
judgment reported in 2004 CLD 1289, it is laid down; "Based on the above
discussion, I hold that the personal guarantees, which have been executed by
the Defendants Nos. 2 to 8 and which form the basis of the plaintiff bank's
claim against the said defendants, can not be excluded from consideration
merely because the same are not attested in the manner required by Article 17
of the Qanun-e-Shahadat Order".
The abovequoted
A resort to harmonious
construction rule of interpretation may be helpful to extenuate the anxiety
brought forth by the enactmental collision which is subject matter of this
essay.
The principle of harmonious
construction is always recommended in order to save the provision of law i.e,
enactment. The Courts are to lean in favour of validation of the law and
normally show resistance against rendering the law invalidated. The rule of
unrestrictive interpretation may, at this juncture, come to the rescue both of
the subsections (under-discussion) of Section 18 of the FIO, 2001.
Before suggesting forward some conciliatory
measures, it seems expedient to make a reference to Article 2-A of the
Constitution of Islamic Republic of Pakistan, 1973 which reads as under:--
"The principles and provisions set out
in the Objectives Resolution reproduced in the Annex are hereby made
substantive part of the Constitution and shall have effect accordingly."
In the preamble to the Constitution, it is also mentioned that the
Muslims shall be enabled to order their lives in the individual and collective
spheres in accordance with the teachings and requirements of Islam as set out
in the Holy Quran & Sunnah. Upto the year 1984, the Evidence Act, 1872
remained in force. The said Act was repealed by the Order made by the President
on 26th of Oct, 1984 when the Quanon-e-Shahdat Order, 1984 was promulgated.
This exercise was done to revise, amend and consolidate the law of evidence so
as to bring it in conformity with the Injunctions of Islam as laid down in the
Holy Quran and Sunnah. This is now evident that the Qanun-e-Shahadat Order,
1984 was promulgated and stood in tone with the Objectives Resolution.
By no stretch of imagination the Article 17
of the Qanun-e-Shahdat Order may be supposed not to be in accordance with the
Injunctions of Islam as laid down in the Holy Quran and Sunnah.
In view of the above it becomes easier to
solve the issue. The sub-section (2) of the Section 18 of FIO, 2001 must be
given way in case any inconsistent situation arises out of an attempt to take
sides with the sub-section (4) of the Section 18 because a provision, howsoever
clear and unambiguous, ought not to be interpreted in negation to the
Objectives Resolution, Article 2-A of the Constitution and Injunctions of the
Holy Quran and Sunnah.
I am, therefore, of the view that the sub-section
2 of Section 18 of the FIO, 2001 must be, in case of inconsistency, given
precedence over the provisions laid down under sub-section (4) of the section
18 of the FIO, 2001.
The terminology employed in subsection 4 of
the Section 18 of the FIO, 2001 i.e.,
"the
Under the spotlight of what is argued
hereinbefore, the aforereferred terminology i.e.
"the banking Court shall not refuse to accept in evidence any document
.., merely refers to the authority of the Court to
take any such document and to make it part of the documentary evidence produced
by the Financial Institution. Obviously, the same can not be constructed to
confer an openended power on the Court to take that document as gospel truth.
The same still requires to be evaluated and given
effect to on the touchstone of the Article 17 of the Quanoon-e-Shahdat Order
1984.
I do'nt know either I am successful in giving
an honest interpretation to the aforereferred paradoxical provisions or not.
However a verse by Dante Alighuieri remained haunting me throughout the time I
set to write this essay; that reads:
"Midway this way of life we are bound,
I woke to find myself in a dark wood,
Where the right road was wholly lost and gone".
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