The interpreting provision is similar to the declaratory provision. An interpreting provision is not actually a true interpretation, because the very principle of the separation of powers means that it is the function of the courts to interpret legislation and the Legislature to enact it. Accordingly, when the Legislature interprets legislation which it has enacted, in reality this is not interpretation but legislation. Lest anyone regard this as a mere subtlety, I should at once mention a consequence which results from this. It is that interpreting legislation does not have retroactive effect unless it is made in the form of a declaratory statute. If the Legislature "interprets" legislation it has passed, from the standpoint of the courts such "interpretation" is legislation and thus subject to the rule that the new statute is not retroactive. The courts will accordingly give effect to the legislative interpretation once the Legislature has enacted it, but in respect of past events will apply the statute according to their interpretation, even if this is contrary to the subsequent legislative "interpretation". If the Legislature intends the courts to be bound by the legislative interpretation as to past events, it must make the statute declaratory: it is not declaratory simply because it is interpreting. If it is to be interpreting and declaratory, it must contain an unambiguous statement of the intent to impose the new meaning "ab initio".
In Craies on Statute Law (7th ed. 1971), it is stated at p. 58:
For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective.
The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes
In Maxwell on the Interpretation of Statutes (12th ed. 1969), it is stated at p. 215:
Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication[1].
"Perhaps no rule of construction is more firmly established than this ‑‑ that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only"[2].
“If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have a retrospective operation, for "the rule against the retrospective effect of statutes is not a rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject‑matter with which the statute is dealing.[3]"
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