Where, however, the invalidity of a statutory provision results from an omission, it is not possible, in my view, to achieve notional severance by using words such as “invalid to the extent that”, or other expressions indicating notional severance. An omission cannot, notionally, be cured by severance. This is implicit in the constitutional jurisprudence of Canada and the United States dealt with later in this judgment and has been expressly so held in Germany. The only logical equivalent to severance, in the case of invalidity caused by omission, is the device of reading in. In the present case there are only two options; declaring the whole of section 25(5) to be invalid or reading in provisions to cure such invalidity.
- See BVerfGE 18, 288 at 301 and 22 BVerfGE 349 at 360.