Presumption that statute is constitutionally valid
In American Natural Soda Ash Corporation and Another v Competition Commission of South Africa[1] the Supreme Court of Africa while deciding the Jurisdiction of the Court referred to some earlier settled cases and expressed that First, s 1(2)(a) of Labor Relation Act, 1995 [LRA i.e. 66 of 1995] provides expressly that the Act ‘must be interpreted – ‘in a manner that is consistent with the Constitution’. That governs the entire Act and each of its provisions. Second, it is a principle of statutory interpretation – by now above debate or citation of authority – not only that all legislation must be interpreted in the light of the Constitution, but that ‘legitimate interpretive aids’ must, where possible, be employed to avoid a finding of unconstitutionality. Only if this is not possible should a statutory provision be found unconstitutional[2].
In Ryan [supra]: The Court has no concern with the legislative policy of the Oireachtas [legislatures]. Its [courts] function is only to examine the statute in which that policy is embodied and to see if its provisions contravene the provisions of the Constitution. There is a presumption that a statute is constitutional and the onus of showing that it is unconstitutional rests on the plaintiff who attacks it. Where on the face of the statute nothing unconstitutional appears and the attack is based on its alleged effect, and the conclusion as to the effect has to be based on evidence of a disputed character, a plaintiff must fully satisfy the Court that its effect is such as he contends[per O'DálAIGH C.J.]
In R v Poumako,[3] the majority of the Court of Appeal, in discussing section 6 of the Bill of Rights Act and its impact on retrospective penal legislation, said that: ”The meaning to be preferred is that which is consistent (or more consistent) with the rights and freedoms in the Bill of Rights. It is not a matter of what the legislature (or an individual member) might have intended. The direction is that whenever a meaning consistent with the Bill of Rights can be given, it is to be preferred.” WALSH J in the course of his judgment in East Donegal Co-Operative Livestock Mart Limited and Ors v The Attorney General[4] are relevant. At page 341 of the Report he stated:
"In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an apposite meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that the proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice." While the judicial arm of Government is not entitled to interfere with the right of the people to cast their votes at a referendum or with the results of the Referendum, it is entitled to intervene in order to protect the rights of the citizens to exercise freely their constitutional right to vote if the constitutional rights of the citizens in regard thereto are violated by any body or individual. What are constitutional rights have been explained in the course of his judgment in Meskell v Coras Iompair Eireann [5] WALSH J stated at page 132-133 of the Report that:-
"it has been said on a number of occasions in this Court, and most notably in the decision of Byrne v Ireland, that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Mr JUSTICE BUDD in Educational Company of Ireland Ltd v Fitzpatrick (No 2)[6] it follows that 'if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it'. He went on to say that the courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected."
[1] American Natural Soda Ash Corporation and Another v Competition Commission of South Africa (554/2003) [2005] ZASCA 42
[2] See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1 (CC) paras 23-24 and particularly National Director of Public Prosecutions and another v Mohamed NO [2002] ZACC 9; 2002 (4) SA 843 (CC) para 33.
[3] R v Poumako [2000] 2 NZLR 695 (CA)
[4] East Donegal Co-Operative Livestock Mart Limited and Ors v The Attorney General [1970] IR 317
[5] Meskell v Coras Iompair Eireann [1973] IR p 121
No comments:
Post a Comment