Whether a law is general or special.. the courts will look
to its substance and practical operation, rather than to its title, form and
phraseology. The fact that a statute is expressed in general terms is not
conclusive that it is a general, rather than a special or local law. “A law is
general one where it relates to persons, entities, or things as s class, or
operates equally or alike upon all of a class, omitting no person, entity or
thing belonging to the class.” (American Jurisprudence, vol. 50, P.19, s.6, as
quoted in Understanding Statues, 2008 ed by SM Zafar).
A
general law is one which embraces a class of subjects or places and does not
omit any subject or place naturally belonging to such class. A special act is
one which relates to particular persons or things of a class. ( Crawford’s Interpretation of Laws, Pakistan Law
House, p.103)
Where
general law can be made operative, special enactment will be against the spirit
of law [74 F.2d 286 (1934)].
Special
law can be seen from the language of the enactment. It is departure from and
contrast to a general law. If special laws provide particular procedure, it has
to be followed and general law cannot be given effect in this regard impliedly.
Likewise, if a forum is provided in special law, it excludes other forums
provided in general law. Further, a later general law cannot repeal an earlier
special enactment, unless the intention is clear from the language of the
enactment. It is particular to mention that sometimes, in given circumstance of
a case, if the identical provisions are found in general and special enactment,
the general law may prevail. If also it is found that the special enactment is
contradictory, conflicting and inconsistent with later general law, the general
law will prevail. Pakistani and Indian case law is quite in consonance on these
points.
In US jurisdiction, it
has been established that where general law is to be applied for uniformity,
special law cannot be enacted.
A.
PAKISTANI CASE
LAW:
Special
law is departure from and contrast to general law containing provisions
relating to such subject for which a special statute was made operative. (The
State v. Mst Fazeelat Bibi, PLD 2010 Lahore 498 at p. 508.)
When
there is no special law, the ordinary / general laws come forward to fill in
the vacuum. (Air League of PIAC Employees v.
Federation of Pakistan and others, 2011 SCMR 1254, at p. 1279.)
Special
law dealing with specific matter and providing special procedure
thereof---effect---such special procedure in such matter would be followed and
not that provided under general law (Shehzad Khan Khakwani v. Aamir Hayat Haraj
and others, 2011 CLC 25, at p. 28; see also Muhammad Bashir v. Yaseen, 2011 CLC 1464, at p. 1469)
It
would not be justified to disregard conditions for use of a power mentioned in
special law by giving reference to general law. (Royal PVC v. Registrar of Trade Marks, 2011 CLD 833, at p. 841)
If a
special law ousts jurisdiction of a forum, same cannot be assumed under a
general law. (Murshid Ali v. SHO Police Station Saddar, 2011 CLD 1539, at pp. 1541-2)
A
general later law does not abrogate an earlier special class of objects.
Principle Generalia specialibus non
derogant, or in other words, where there are general words in a later Act
capable of reasonable and sensible application without extending them to
subjects specially dealth with by earlier legislation, one is not to hold that
earlier and special legislation indirectly repealed, altered, or derogated from
merely by force of such general words, without any indication of a particular
intention to do so. (Inspector
General of Police v. Mushtaq
Ahmad, PLD 1985 SC 159, at p.173.)
It has
been held in R.B. Alvi v. Custodian, Evacuee Property, (PLD 1962 (WP) Lahore
84, at pp. 89-90, that if subject-matter
is identical in general and special law, in given circumstances of the
case, the principle that special law will prevail over general law will not
apply.
In the
same enactment, special provisions to
prevail over the general provisions. (Muhammad Hossain MEA v. Member Board of
Revenue, PLD 1963 Dacca 971, at pp. 978 & 980)
A.
INDIAN CASE
LAW:
Indian Supreme Court held in S.
Prakash & Anr vs K.M. Kurian & Ors on 13 May, 1999, as under:
“But the rule must not be pressed
too far, for, as Bramwell L.J. said in Pellas vs. Neptune Marine Insurance Co.
(1980) 5 C.P.D. 34, 40 a general statute may repeal a particular statute/ And
if a special enactment, whether it be in a public or a private Act, and a
subsequent general Act are absolutely repugnant and inconsistent with one
another, the courts have no alternative but to declare the prior special
enactment repealed by the subsequent general Act.”
(Copy Attached)
Where
there are general words in a later Act capable or reasonable and sensible
application without extending them to subjects specially dealt with earlier
legislation, the earlier and special
legislation cannot be held to have been indirectly repealed or derogated from
merely by force of such general words without any indication of particular
intention to do so. (E G Barsay v. The State, AIR 1958 Bombay 354, at p. 364) See
also AIR 1931 Madras 152.
Speciality
in respect of locality has greater importance than in respect of subject-matter.
(AIR 1930 Madras 963, at p. 968)
To
which extent a special law overrides the provisions of general law depends upon
the language of special Act. (AIR 1926
Patna 232, at p. 236).
A.
UK Case
Law:
Seward v. The Vera Cruz case,
(1884) 10 AC 59 at p. 68, as quoted in Maxwell on Interpretation of Statutes,
12th Ed, is the case that has been relied by the Bombay High Court
in AIR 1958 Bombay 354, at p. 364, just
mentioned above.
Maxwell on Interpretation of
Statutes, 12th Ed, p. 198, also refers to another situation, on the
basis of Earl of Abergavenny v. Brace (1872) LR 7 Ex. 145, that:
“Thus, the Fines and Recoveries
Act, 1833 which, in the most comprehensive terms, authorized, “every tenant in
tail” to bar his entail would have no application to the tenant in tail of
property entailed by special Act of Parliament, such as the Shrewsbury,
Marlborough, Wellington, and other estates.”
A special provision in an earlier
law has to prevail over a general law which is later in time, unless the
legislature has intention to say otherwise. R v. Bridge (1890) 24 QBD
609.
A.
US CASE
LAW:
74
F.2d 286 (1934) UNITED STATES v. MULLENDORE et al
"Laws of a general nature shall have a uniform
operation throughout the State, and where a general law can be made applicable,
no special law shall be enacted."
The requirement of generality and uniformity thus
exacted does not necessarily mean that a statute must operate upon every person
and in every locality within the state. A
law may be general and uniform within the meaning of the constitutional
provision, if it operates alike upon all within designated classes and places.
The Legislature has power to classify persons or counties to be included within
a statute. That classification must not be unreasonable, arbitrary, or
capricious. On the contrary, it must be reasonable and substantial. Those
included must bear some distinctive characteristics from those excluded. Burks
v. Walker, 25 Okl. 353, 109 P. 544; Hatfield
v. Garnett, 45 Okl. 438, 146 P. 24; Key
v. Donnell, 107 Okl. 157, 231 P. 546; Roberts
v. Ledgerwood, 134 Okl. 152, 272 P. 448; State
v. Board of Commissioners, 77 Kan. 527, 94 P. 1004.
(Annexed. Soft copy available)
Mere time limit does not make a law local or special. (See
Crawford’s Interpretation of Laws, published by Pakistan Law House, p. 117.)
General Law has to
operate uniformly on all subjects:
In Austintown Township Bd. of Trustees v. Tracy, 76 Ohio St. 3d 353 - Ohio:
Supreme Court 1996, it has been held:
…that general laws "cannot
operate upon the named subject matter in one part of the state
differently from what it operates upon it in other parts of the state. That is,
the law must operate uniformly on the named subject matter in every part of the
state, and when it does that it complies with this section of the
Constitution."
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