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Friday, May 7, 2010

Chapter-15-Principles of Interpretation of Constitution and Role of Courts explained in Pinder v. The Queen-Part-16

Principles of Interpretation of Constitution and Role of Courts explained in Pinder v. The Queen

In Pinder v The Queen [1], Lord Millett described the essential nature of a constitution and the role of the judges when interpreting it. He said:

"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.” Although he was referring in particular to the constitution of the Bahamas, his words are equally applicable to the constitutions of other countries, including Trinidad and Tobago[2]”.

Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences[3]."

In order to achieve the proper interpretation, respect for the language of the constitution and for the traditions and usages that have given it meaning must march hand in hand with the principle of giving full recognition and effect to the fundamental rights and freedoms which it enshrines. This is only to reiterate what LORD BINGHAM of Cornhill said in Reyes v The Queen[4]:

"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 …"

The Board pointed out in Pinder v The Queen [5] that, if a court indulges itself by straining the language of the constitution to accord with its own subjective values, then, as Holmes J said in Otis v Parker[6]:

"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 ..."

The observations of Supreme Court of Canada per Lamer C.J: [worthy of being quoted here]:

This Court, however, has adopted a different approach to the question of standing in Canada, in recognition of the Canadian constitution's distinct structure -- in particular, the existence of s. 52 of the Constitution Act, 1982, which declares that laws that are inconsistent with the provisions of the Constitution are "to the extent of the inconsistency, of no force or effect". As DICKSON J. observed in R. v. Big M Drug Mart Ltd[7] :

Section 52 [of the Constitution Act, 1982] sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. …[8]

This principle has been reconfirmed by the Supreme Court of Canada on many subsequent occasions. For instance, in R. v. Morgentaler,[9], Dr. Morgentaler was allowed to argue that the law under which he was charged violated s. 7 as a consequence of its impact on some women, and his acquittal was restored. Similarly, in R. v. Wholesale Travel Group Inc.,[10], the Court confirmed that a corporation was entitled to challenge the constitutionality of the law under which it was charged, notwithstanding the fact that the constitutional challenge was based on s. 7, which does not grant rights to corporations.[11]

[1] Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620, 628–629, para 15,

[2] Roodal v. The State (Trinidad and Tobago) [2003] UKPC 78 (20 November 2003)

[4] Reyes v The Queen [2002] AC 235, 246, para 26

[5] Pinder v The Queen [2003] 1 AC 620, 628, para 14,

[6] Otis v Parker (1903) 187 US 606, 609

[7] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 313-14:

[8] Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031

[9] R. v. Morgentaler, [1988] 1 S.C.R. 30

[10] R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154

[11] (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927

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