Interpretation of constitution and international Law.
The presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations is a valid presumption in almost all cases of legislation[1].
Whatever historical concepts and byways may be traced the reality is that the Constitution sets out constitutional rights, duties and powers. The Constitution is a living document. It must be construed as a document of its time. In McGee v. Attorney General [2] Walsh J. stated: “ . . . no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
The approach to construction outlined by Costello J. in Attorney General v. Paperlink Ltd [3]seems to me appropriate. He said:-
“The Constitution is a political instrument as well as a legal document and in its 
interpretation
the Courts should not place the same significance on differences of language used in two succeeding subparagraphs as would, for example be placed on differently drafted sub-sections of a Finance act. A purposive, rather than a strictly literal approach to the interpretation of the subparagraphs is appropriate”.
Similarly, Dixon J. in O’Byrne v. The Minister for Finance [4] said:-
“......... It may be that the literal meaning rather than the intention should prevail, although, in the case of a constitution, which is a unique fundamental document concerned primarily with the statement of broad principles in general language, I am inclined to the view that it is not to be parsed with the particularity appropriate to ordinary legislation and that the intention, if it can be reasonably be gathered, should prevail”.
These two statements, I think, illustrate and expand what was aphoristically expressed by Chief Justice John Marshall in McCulloch v. Maryland [5]:- “........ we must never forget, that it is a constitution we are expounding”.
[1] Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55 (14th December, 1999)
[2] In McGee v. Attorney General [1974] IR 284
[3] Attorney General v. Paperlink Ltd [1984] ILRM 373
[4] O’Byrne v. The Minister for Finance [1959] IR 1
[5] McCulloch v. Maryland (1819) 17 US 316:
No comments:
Post a Comment