Constitutional provisions are mandatory unless different intention is manifest
“As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charter party. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution …[1]”
If the Court indulges itself by straining the language of the constitution to accord with its own subjective moral values then, as Holmes J said almost a century ago in his first opinion for the Supreme Court of the United States[2] Otis v Parker: [3]
“a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions ...”
A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn; not to substitute the judges' views where it should be drawn.[4]
As LORD HOFFMAN said in Matadeen v Pointu[5] at 108:
“It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution … As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v Zuma [6]: ‘If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination’.”
Every provision of a statute, whether such provision be mandatory, prohibitive or penal, shall be deemed to have for its object the remedying of some evil or the promotion of some good.
Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.
The law is ever commanding; and whatever be the tense of the verb or verbs contained in a provision, such provision shall be deemed to be in force at all times and under all circumstances.[7]
It is said that as a general rule "constitutional provisions are mandatory unless by express provisions or by necessary implication, a different intention is manifest. Some cases even go so far as to hold that all constitutional provisions are mandatory[8]" But this proposition is too widely stated. No doubt a Constitution is paramount law, to the authority of which all subordinate laws are, and indeed must be, referable. As such there is a bias towards command but over the years this rigid interpretation has given way to a broad and liberal approach. A Constitution is a living and organic thing.[9] It embodies the working principles for practical Government" and its "provisions cannot be interpreted and crippled by narrow technicalities per Mukharji, J. in Ramhari vs. Nilmoni Das[10].It is also true that it is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to the decision of case.[11] It is of importance to decide whether a statutory duty is mandatory - words such as 'absolute', 'obligatory', 'imperative' and 'strict' may be used instead - or whether it is directory. ('Permissive' is sometimes used, but the use of the term 'directory' in the sense of permissive has been criticised by Craies, Statute Law, 7th ed. 1971 p. 61 n. 74.) Ordinarily, where the relevant statutory duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected, though there may be some sanction for disobedience imposed on the person bound[12].
[1] Reyes v The Queen [2002] 2 WLR 1034, 1045 para 26:per Lord Bingham
[2]As quoted in: Pinder v. R [2002] UKPC 46 (The Bahamas) (23 September 2002)
URL: http://www.bailii.org/uk/cases/UKPC/2002/46.html
Cite as: [2002] UKPC 46 (The Bahamas)
[3] Otis v Parker (1903) 606, 609
[4] Pinder [supra]
[5] Matadeen v Pointu [1999] 1 AC 98, 108:
[6] State v Zuma 1995 (4) B.C.L.R. 401, 412
[7] : Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47, and Bellechasse Hospital v. Pilotte, [1975] 2 S.C.R. 454.
[8] . (Bindra -interpretation of Statutes Edn 5 p. 860).
[9] ( Per Gwyer, C.J. In re Motor Spirit Act (29)
[10] Ramhari vs Nilmoni Das A.I.R. 1952 Calcutta 184,186.
[11] Burton v. United States 195 us 205.
[12] Quoted from Maithripala Senanayake, Governor of the North Central Province and Another v. Gamage Don Mahindasoma and Others - SLR - 333, Vol 2 of 1998 [1996] LKSC 23; (1998) 2 Sri LR 333 (4 January 1996),it is observed : If the Governor's duty to act on the advice of the Chief Minister was mandatory and not directory, then failure to comply with his duty invalidated the dissolution. Article 154 B (8) (d) uses the word shall in describing the manner in which the Governor should exercise his power of dissolution. I am in agreement with the view that although the word shall ordinarily imposes a mandatory duty, there may be cases in which it has the same meaning as 'may'. However, I find no reason adduced in the matters before us to give Article 154 B (8) (c) read with Article 154 (8) (d) any meaning other than that the Governor will have to or must, if the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council, exercise his powers of dissolution in accordance with the advice of the Chief Minister. Wade and Forsyth, op. cit., p. 245 observe that: Powers confer duties whether to act or not to act, and also in many cases, what action to take, whereas duties are obligatory and allow no option. De Smith, Woolf and Jowell, op. cit., p. 296, observe that: if only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. Since the Board of Ministers in the opinion of the Governor commanded the support of the majority of the Provincial Council, there was only one, uniquely right course of action prescribed - to follow the advice of the Chief Minister in deciding whether to exercise his power of dissolution. There was no discretion. By his failure to act in accordance with the duty imposed on him by law, the Governor acted illegally.
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