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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Friday, May 7, 2010

Chapter-24 Role of Parliament and Judiciary-Part-2

Role of Parliament and of Court: interrelationship

It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution . . . They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints[1].Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene.[2] Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution[3].However,’ where an individual comes before the courts and establishes that action on the part of the Executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they cannot and should not.[4]

In R v Johnstone [5], ‘courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified.[6]

It is a principle that has often been asserted, and bears reassertion, that just as the making of the laws is exclusively the province and function of Parliament, so is their interpretation the province and function exclusively of the courts. In the total and exclusive commitment of this function to the care of the courts, tradition, law and reason all combine ; nor is any organ of the State so-well equipped in factor so amply authorised by law to discharge this function. It is self-evident that Parliament is not nor ever can be the authority for the interpretation of the laws which it enacts. In the view stated above, the courts as the sole interpreters of the law are committed to the duty. Any other view of the law seems fraught with danger to the subject for it would free the acts of creatures of the legislature from the checks and scrutinies which alone are effective in ensuring that the delegated authority while operating to the uttermost limits of its powers does not travel beyond..[7]

LORD STYNE:If Parliament disagrees with an interpretation by the courts under section 3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility.[8] To the same extent it has been observed by the house of Lords: “Whatever can be done by way of interpretation must be done by the courts and anyone else who is affected by the legislation in question. The rest is left to Parliament and amounts to amendment of the legislation[9].”

“In approaching this issue, as noted in R v Johnstone ,[10] courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate.” Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria [11]. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene[12].

The Supreme Court of Srilanka has been emphasizing the role of Courts in the matter of construing statutes. The following is an excellent piece of a narration that appeared in a case.[13]

“The golden rule of interpretation is that the words of a statute must prima facie be: given their ordinary meaning. The court must not shrink from interpretation, which ill reverse the previous law. Judges are not called upon to apply their notions of good policy so as to modify the plain meaning of statutory words; but, where, in construing general words the meaning of which is not entirely plain there is good reason for doubting whether legislature could have been intending so wide an interpretation as would disregard fundamental principles, then a court may be justified in adopting a narrower construction. It is to be taken as a fundamental principle, standing as it were on the threshold of the whole subject' of interpretation, that the plain intention of the' legislature as expressed by the language employed is invariably to be accepted and implemented, whatever may be the opinion of the Judge of its wisdom or justice. A sense of possible injustice of an interpretation ought not to induce a judge to do violence to well settled rules of construction but it may lead to the selection of one rather than the other of two reasonable interpretations. A statute must be given effect to whether the Judge likes it or not.[14]”However, in taxing statutes there may be some difficulties as was observed in the case of special commissioner:[15]” Is it true, as a matter of fact, that we always find in these taxing Acts that the words used are words of ordinary meaning, understood by everybody in the three kingdoms in the same sense, and not technical legal terms in use in one part of the United Kingdom? I could wish it were so. But we are not living in Utopia, where a perfect or ideal lawgiver may be had very readily. The Income Tax Acts themselves form an instructive commentary on the proposition of the Lord President. In the earliest Income Tax Act, the Act of 1799, except when it deals with commissioners for districts in Scotland, the language is the language of an English lawyer. So little attention was paid to the legal phraseology of Scotland, that the word "heritages" does not, I think, occur in the Act. The term used to denote real property is the expression "lands, tenements, and hereditaments." In the Acts of 1803 and 1806 the word "heritages" is introduced, but it will not be found inserted in all places where it seems to be required. Even in the Act of 1806 you will find the words "hereditaments" and "messuages" - words I should suppose not of ordinary meaning in Scotland, nor familiar in their English sense to Scotch lawyers - used as applicable to all parts of Great Britain. Another example not without some bearing on the present question is presented by the Succession Duty Act 1853. That is a taxing Act. It extends to the three kingdoms. No statute was ever drawn with more care. Studiously and with great skill it avoids technical expressions wherever they would be likely to create confusion. Yet there we find the very word "charity," which has given rise to all this argument, used in its technical sense according to English law, and applied to property belonging to public trusts in Scotland as well as to property dedicated to charitable purposes in England. In sect. 16 the Act provides for the case of "a succession to property subject to a trust for any charitable or public purposes," and it goes on to give the trustee of any such property, who is made responsible for the duty and a debtor to the Crown in the event of non-payment, power to raise the duty. How is it to be raised? All the Act says is, "Upon the security of the charity property."It was further observed by LORD MACNAGHTEN that:” Again, I ask, is the Lord President correct in saying that in construing a taxing Act extending to the whole of the United Kingdom, the Court must always take it for granted "that the words used by the legislature are used in their popular signification"? I can find no authority for such a proposition.”

The Court's implication doctrine encourages, as a corollary to the political default by Congress, an increase in the governmental power exercised by the federal judiciary. The dangers posed by judicial arrogation of the right to resolve general societal conflicts have been manifest to this Court throughout its history[16]. As the Court observed only last Term:

"Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While '[i]t is emphatically the province and duty of the judicial department to say what the law is,[17] , it is equally—and emphatically—the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.

"Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.[18]

It is true that the federal judiciary necessarily exercises substantial powers to construe legislation, including, when appropriate, the power to prescribe substantive standards of conduct that supplement federal legislation. But this power normally is exercised with respect to disputes over which a court already has jurisdiction, and in which the existence of the asserted cause of action is established. Implication of a private cause of action, in contrast, involves a significant additional step. By creating a private action, a court of limited jurisdiction necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve[19].Our role, of course, is as interpreters of the words chosen by Congress, not as policymakers or enlargers of congressional intent. This role requires that we start with the statutory text[20].

Division of Functions of parliament and courts

McEldowney v Forde

Lord Diplock

The division of functions between Parliament and the Courts as respects legislation is clear. Parliament makes laws and can delegate part of its power to do so to some subordinate authority. The Courts construe laws whether made by Parliament directly or by a subordinate authority acting under delegated legislative powers. The view of the Courts as to whether particular statutory or subordinate legislation promotes or hinders the common weal is irrelevant. The decision of the Courts as to what the words used in the statutory or subordinate legislation mean is decisive. Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the Court has a three-fold task: first to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorized to make, secondly to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with
that description.

What is Parliament

Jackson & Ors v Her Majesty's Attorney General


The concept of the Parliament in the present context has been stated by LORD STYEN

“. The word Parliament involves both static and dynamic concepts. The static concept refers to the constituent elements which make up Parliament: the House of Commons, the House of Lords, and the Monarch. The dynamic concept involves the constituent elements functioning together as a law making body. The inquiry is: has Parliament spoken? The law and custom of Parliament regulates what the constituent elements must do to legislate: all three must signify consent to the measure. But, apart from the traditional method of law making, Parliament acting as ordinarily constituted may functionally redistribute legislative power in different ways. For example, Parliament could for specific purposes provide for a two-thirds majority in the House of Commons and the House of Lords. This would involve a redefinition of Parliament for a specific purpose. Such redefinition could not be disregarded. Owen Dixon neatly summarised this idea in 1935:

". . . The very power of constitutional alteration cannot be exercised except in the form and manner which the law for the time being prescribes. Unless the Legislature observes that manner and form, its attempt to alter its constitution is void. It may amend or abrogate for the future the law which prescribes that form or that manner. But, in doing so, it must comply with its very requirements.[21]"

It was further stated by LORD STEYN:”The decision of the Privy Council in Bribery Commissioner v Ranasinghe [22]is also important. It was an appeal from Ceylon. An Act was passed but not in conformity with the constitutional legislative procedure. Lord Pearce delivered the judgment of the Privy Council. He observed, at pp197-198:

"A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is 'uncontrolled,' as the board[23] held the constitution of Queensland to be. Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process." Almost to the same extent we find “Where a legislature is given plenary powers by its founding legislation, it can pass such Acts as it sees fit, including enactments abolishing one of the houses of the legislature; where, on the other hand, the founding legislation contains limitations, the enactments of the body founded will not be valid if they contravene those limitations[24].

LORD REID in Madzimbamuto v Lardner-Burke [25] at 723 expressed with his customary clarity the accepted principle governing the powers of Parliament:

"It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid.[26]"

[1] Crotty v An Taoiseach [1987] IR 713 at page 778

[2] Ghaidan v. Godin-Mendoza [2004] UKHL 30 (21 June 2004)

[3] Boland v An Taoiseach [1974] IR 338 Fitzgerald CJ at page 362

[4] Boland [supra], per Finlay CJ stated at page 775

[5] R v Johnstone [2003] UKHL 28 para 51

[6] see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53.

[7] Ram Banda v. River Valleys Development Board - NLR - 25 of 71 [1968] LKSC 2; (1968) 71 NLR 25 (10 July 1968)

[8] See para 43 Ghaidan v. Godin-Mendoza [2004] UKHL 30 (21 June 2004)

[9] Ghaidan [supra] @para 112.

[10] R v Johnstone [2003] UKHL 28 para 51

[11] Mellacher v Austria (1989) 12 EHRR 391, 411, para 53

[12] In the present case the matter Regarding the Human Rights Act,1998 were being explained and discussed.

[13] Tennekoon v. Somawathie Perera Alias Tennekoon - SLR - 90, Vol 1 of 1986 [1986] LKSC 17; (1986) 1 Sri LR 90 (31 January 1986

[14] Section 1-3-65 of MISSISSIPPI CODE OF 1972 explains as to how to Construct a statute.The section is reproduced here . SEC. 1-3-65. Construction of terms generally. All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.[SOURCES: Codes, 1857, ch. 66, art. 1; 1871, Sec. 2930; 1880, Sec. 10; 1892, Sec. 1522; 1906, Sec. 1603; Hemingway's 1917, Sec. 1370; 1930, Sec. 1394; 1942, Sec. 702. ]

[15] Special Commissioners of Income Tax v Pemsel [1891] UKHL 1 (20 July 1891)

[16] See Schlesinger v. Reservists to Stop the War, [1974] USSC 150; 418 U.S. 208, 222[1974] USSC 150; , 94 S.Ct. 2925, 2932[1974] USSC 150; , 41 L.Ed.2d 706 (1974); United States v. Richardson, [1974] USSC 152; 418 U.S. 166, 188-197[1974] USSC 152; , 94 S.Ct. 2940, 2952-2957[1974] USSC 152; , 41 L.Ed.2d 678 (1974) (POWELL, J., concurring); Eccles v. Peoples Bank, [1948] USSC 48; 333 U.S. 426, 432[1948] USSC 48; , 68 S.Ct. 641, 644[1948] USSC 48; , 92 L.Ed. 784 (1948); Ashwander v. TVA, [1936] USSC 36; 297 U.S. 288, 345-348[1936] USSC 36; , 56 S.Ct. 466, 482-483[1936] USSC 36; , 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Muskrat v. United States, [1902] USSC 164; 219 U.S. 346, 362[1902] USSC 164; , 31 S.Ct. 250, 255[1902] USSC 164; , 55 L.Ed. 246 (1911); Sinking-Fund Cases[1878] USSC 149; , 99 U.S. 700, 718[1878] USSC 149; , 25 L.Ed. 496 (1879) ("One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule"); Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792).

[17] ' Marbury v. Madison, [1803] USSC 16; 1 Cranch 137, 177[1803] USSC 16; , 2 L.Ed. 60 (1803)

[18] TVA v. Hill, [1978] USSC 115; 437 U.S. 153, 194-195[1978] USSC 115; , 98 S.Ct. 2279, 2301-2302[1978] USSC 115; , 57 L.Ed.2d 117 (1978).See also United States v. New York Telephone Co., [1977] USSC 194; 434 U.S. 159, 179[1977] USSC 194; , 98 S.Ct. 364, 375[1977] USSC 194; , 54 L.Ed.2d 376 (1977) (STEVENS, J., dissenting) ("The principle of limited federal jurisdiction is fundamental . . .").

[19] Cf. Jacobson v. New York, N. H. & H. R. Co., [1953] USCA1 57; 206 F.2d 153 (CA1 1953) (Magruder, C. J.), aff'd per curiam, 347 U.S. 909, 74 S.Ct. 474, 98 L.Ed. 1067 (1954);

[20]United States v Gibbens [1994] USCA1 279; 25 F.3d 28 (1 June 1994)

[21] See: The Law and the Constitution, 51 LQR 590, 601. This formulation can be traced to the majority judgment in Attorney General for New South Wales v Trethowan (1931) 44 CLR 394, and in particular to the judgment of Dixon J at 424. The Parliament of New South Wales had amended the Constitution to require that any Bill to abolish the Upper House had to be approved at a referendum before being presented for Royal Assent, and that any Bill to remove this requirement also had to be submitted to a referendum. A non-conforming statute was held to be void.

[22] Bribery Commissioner v Ranasinghe [1965] AC 172

[23] [in McCawley's case [1920] AC 691]

[24] This is the explanation for the decision of the Privy Council in Bribery Commissioner v Ranasinghe [1965] AC 172, upon which Sir Sydney particularly relied, as distinct from such cases as McCawley v The King [1920] AC 691, R v Burah (1878) 3 App Cas 889 and Hodge v The Queen (1883) 9 App Cas 117, together with the Australian decisions in Taylor v Attorney General of Queensland (1917) 23 CLR 457 and Clayton v Heffron (1960) 105 CLR 214. In Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282 at 289

[25] Madzimbamuto v Lardner-Burke [1969] 1 AC 645 at 723

[26]Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) [ per LORD CARSWELL]

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