MARCH 10: Grasp relationship between concepts

PUBLISHED : Thursday, 31 March, 2005, 12:00am
UPDATED : Thursday, 31 March, 2005, 12:00am

Dear Ms Leung,

On the question of why a legal provision has to be read in conjunction with related legal provisions in understanding or construing the meaning of that legal provision, I would like to present my views for your reference.

(1) From the perspective of legal theory, it is necessary to have a clear grasp of the relationship between 'legal norms' and 'legal provisions' in order to ensure that a piece of legislation is in harmony and consistent within itself, and is coherent, cohesive and complete. In terms of legislative theory, legal norms refer to the content of legal provisions, while legal provisions are the textual expression of such norms. These two concepts are connected and yet should be differentiated.

In actual legislative practice, generally speaking, a legal norm may be expressed with the use of one legal provision, but there are many cases in which a legal norm can only be given full expression through a number of legal provisions. There are even instances where various component parts of one legal norm are found scattered among several legal documents. The connection and differences between these two concepts must be duly noted and properly handled in the legislative process so that a coherent logical relationship is accurately expressed in the text through a number of related legal provisions which are used to express a particular legal norm. Only in this way can we guarantee that the enacted legislation will be fault-proof and easily enforceable.

(2) It is precisely for this reason that there is a key concept underlying the rule of understanding and construing a law in the mainland, namely that consideration has to be given to the overall structure of the legislation, the internal connection among provisions and the logical relationship in the arrangement of content. This is a point of great importance in statutory interpretation, for it is the basis on which the legislative intent may be correctly revealed and the meaning of certain provisions determined. Under this rule, ascertaining the meaning of a provision from the full text of the law in which it is found is a prerequisite for achieving a correct understanding and interpretation of the provision in question. The full text of a law refers to all the constituents of that piece of legislation. It does not only include its legal provisions, but also encompasses such other contents as its preamble and annexes that are closely associated with those provisions.

(3) In the legislative practice in the mainland, sometimes the legislators, based on the consideration of structural arrangement, after taking into account the legislative intent, may use another provision to further define the meaning of a provision that seems to be clear on its face with a view to filling a gap in the latter provision. Under such circumstances, there is a need to make reference to the relevant provisions so as to define the meaning of a provision that seems to be clear on its face. Theories about legal interpretation in the mainland consider that if the literal meaning of the law is narrower than its legislative intent, an interpretation broader than its literal meaning can be made by making reference to other relevant provisions. Thus, it is absolutely necessary to understand and interpret a legal term from the full text of the law, even though the term seems clear and unmistakable, and its meaning can be interpreted literally without the need to make reference to other provisions.

(4) In interpreting the law, the court follows the rule of interpretation with reference to the full text and reconciles the relevant provisions so as to accurately confirm the correct meaning of a provision that may give rise to ambiguity and to reveal the relevance of other legal provisions. By doing so, the courts are not retrained by the literal meaning of the wording, so as to avoid making an interpretation out of context or arriving at a partial understanding that may lead to a wrong judgment. This may also be the underlying principle of legal interpretation adopted in the common law jurisdictions.

It is because even under the 'golden rule' of statutory interpretation in the common law (the judges may vary the literal meaning of a legal term by reading in some implied meaning or omitting part of the literal meaning of the wording), the legislative intent and purpose as contained in the full text of the law should be ascertained.

My views are stated above for your reference.

Yours sincerely,