free counters

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.

Tuesday, May 4, 2010

Appraisal of Plain Meaning Rule of Principles

The plain meaning says that if the meaning of a legislative text is plain, the court may not interpret it but must simply apply it as written. The court may resort to the rules and techniques of interpretation only if the text is ambiguous.
This rule presupposes that there is an important difference between the first-impression meaning of a text and post-interpretation meaning. First impression meaning is meaning that spontaneously comes to mind when a person reads a text relying on nothing but the text and her own linguistic competence. Post-interpretation meaning is meaning constructed by a person through interpretation, by relying on factors other than the text itself -- factors like the imagined purpose of a text, or its possible consequences, or extrinsic aids like legislative history. According to the plain meaning rule, when a person sets out to resolve a dispute about the correct interpretation of a legal text, the first thing he must do is read the text and form an impression of its meaning based on reading alone, he must then judge whether this meaning is plain. A text has a plain meaning if a competent reader would judge, on the basis of reading alone, that  first impression meaning is the only meaning the text can plausibly bear. A text is ambiguous if a competent reader could plausibly read it in more than one way.
When a legislative text has a plain meaning, the courts are prohibited from interpreting it; they are bound by the words of the text. Given this fundamental rule, it is perhaps surprising that even when the meaning is plain, the courts may look at non-textual evidence of legislative intent 
The key feature of the plain meaning rule, and the feature that sets it apart from other approaches to statutory interpretation, is its claim that the court's first responsibility is to give effect to the apparent meaning of a legislative text whenever this meaning is plain. If there is a conflict between what the text appears to say and what the legislature seems to have intended, the text wins. Intention governs only when the text itself is ambiguous.

The great advantage of the plain meaning rule is that, in theory at least, it creates a zone of certainty -- an interpretation-free zone, in effect. It tells the public that if the text is plain, it means what it says and it is safe to rely on it. The courts won`t come along and trick you at the last minute by importing unsuspected qualifications or implications into the text, even if these qualifications or implications were probably intended by the legislature. This emphasis on text at the expense of intention ensures that the law is certain and that the public has fair notice, both of which are prerequisites for effective law.
A second advantage of the theory is that it supports formal equality. If the courts are bound by plain meaning, and plain meaning is the same for everyone, it follows that a rule whose meaning is plain expresses the same law for everyone and will be applied in the same way, to the same effect to everyone. Plain meaning thus creates a level playing field on which we all have equal opportunity to score.
A third advantage of the plain meaning rule is that it can be used as an apparently neutral proxy for strict construction. It is no coincidence that the plain meaning rule is applied most persistently and enthusiastically to fiscal legislation, with penal legislation running a close second. The courts have always been reluctant to assist the other branches of government in limiting the freedom of subjects or taking away their property. Historically in interpretation these judicial values have been given bite primarily through the doctrine of strict construction. However, in many instances a court can achieve the same result by relying on the plain meaning rule without having to invoke the common law values. By claiming that the text is plain and does not require interpretation, a court purports to base the outcome in a case on linguistic competence alone. The appeal to judge-made law and policy is replaced by an exercise in technical expertise.
So if the words are "precise and unambiguous" then you just formalistically apply the assigned plain meaning of the statute to the facts, and you should not care about or consider the justice or injustice or reasonableness of the result. This is what Lord Atkinson said in the House of Lords, in the case of Vacher[1]:
If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this subsection be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your lordships' House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous."
Professor Zander, in The Law Making Process notes at 39:
The most rigorous expression of it was Lord Halsbury's statement in Hilder v. Dexter [2] that the draftsman of a statute was the worst person in the world to interpret a statute because he was unconsciously influenced by what he meant rather than by what he had said. He had himself drafted the statute in that case and refused to give judgment on the ground that he might not fully appreciate the literal, objective meaning of the words he had used. One of the chief reasons for this approach was said to be the length of legislation by comparison with former times. In l840 Lord Brougham said:
If we depart from the plain and obvious meaning on account of such views, we in truth do not construe the Act but alter it ... we are really making the law and not interpreting it. This becomes peculiarly improper in dealing with a modern statute because the extreme conciseness of ancient statutes was the only ground for the sort of legislative interpretation frequently put upon their words; and the prolixity of modern statutes is still more remarkable than the shortness of the old[3] In the matter of contracts ,however, the construction may not be plain meaning depending upon the intention of the parties. It was observed by the South Africa:High Courts, Gauteng that :"As was stated in Gotze v Estate Van der Westhuizen 1935 AD 300 (at 304) it is an elementary principle of law that notwithstanding that the words used in a contract may have a plain meaning, the parties to a contract can always say, as long as the matter is res integra, that they both understand a particular word or phrase to have had to them a meaning different from the true and ordinary meaning of the word or phrase. This approach is re-enforced by the Appellate Division in Louw v W.P. Kooperatief Bpk en Andere [1994] ZASCA 54; 1994 (3) SA 434 (A) at 445, where Smalberger JA having noted that the parties were ad idem as to the interpretation to be placed on the document in question, cited with approval the following statement in Breedt v Van den Berg and Others 1932 AD 283 at 292:

“If one of two parties to a contract asserts that it has a certain meaning and he and the other agrees that is the meaning to be given to it, a court of law will give effect to that meaning. If this mutually accepted meaning is in conflict with the clear construction of the contract, we have all the requisites for rectification of the documents.”
Cited from:Letseng Diamonds Limited v JCI Limited and Others (21525/06) [2007] ZAGPHC 119 (28 June 2007)..The following observation of Maxwell is worth quoting here , this shows as to when the Courts may depart from following the literal rule of construction of statutes.[blogger]: The opening paragraph of c. 11 reads at p. 228:“EXCEPTIONAL CONSTRUCTION “1. MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language usedLord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: ‘the canons of construction are not so rigid as to prevent a realistic solution.’
What is, then, being discussed here are instances in which the courts will depart from the literal rule. Such instances are, however, exceptional, and it is impossible to lay down any categories of cases in which ordinary grammatical interpretation will inevitably be abandoned: the courts are very reluctant to substitute words in a statute or to add words to it, and it has been said that they will only do so where there is a repugnancy or something which is opposed to good sense.”Rokanas v. Co-operative Fire and Casualty Company, 1976 CanLII 244 (BC S.C.)Applying the rule of construction that asks whether the “language at issue” had “a plain and unambiguous meaning with regard to the particular dispute in the case,”[3 344 F.3d 1089 (11th Cir. 2003) vacated and rehearing en banc granted, United States v. Drury, 358 F.3d 1280 (11th Cir. 2004)] the court proceeded to examine “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”[ Id. at 1098, citing, Robinson v. Shell Oil Co. 519 U.S. 337, 340 (1997)]To that end the court sought “to give effect to all statutory provisions and construe related provisions in harmony with each other.” [Id. citing, Borgner v. Brooks, 284 F.3d 1204, 1209 (11th Cir. ), cert. denied sub nom, Borgner v. Florida Bd. of Dentistry, 537 U.S. 1080 (2002).]As the Eleventh Circuit observed, this was a more difficult task than one would expect. Two circuits, the Sixth and the Fifth, had addressed this precise question and had come to opposite conclusions.[ Compare United States v. Weathers, 169 F.3d 336 (6th Cir.) (finding that § 1958 requires that the facility actually be used in interstate commerce), cert. denied, 528 U.S. 838 ] (1999); United States v. Paredes, 950 F.Supp. 584, 590 (S.D.N.Y.1996) (same), aff’d, 162 F.3d 1149 (2nd Cir.1998) (table), with United States v. Marek, 238 F.3d 310 (5th Cir.)  (finding that using a facility capable of interstate commerce is sufficient), cert. denied, 534 U.S. 813 (2001).] 
The problem is this. In the phrase “whoever . . . uses the mail or any facility in interstate commerce,” do the words “in interstate . . . commerce” modify the noun “facility” or the more distant verb “use.” If they modify “facility,” then the jurisdictional element would depend upon the type of facility used, not how it is used. On the other hand, if the words apply to “use,” then the jurisdictional element would only be satisfied if the particular use occurred in interstate or foreign commerce. A majority of the court held that since both interpretations were equally reasonable, the statute was ambiguous.[ 344 F.3d 1089 (11th Cir. 2003) vacated and rehearing en banc granted, United States v. Drury, 358 F.3d 1280 (11th Cir. 2004)]
Back to Rules o interpretation

[1] Vacher [19l3] A.C. l07 at l2l:
[2] Hilder v. Dexter [1902] A.C. 474
[3] [Gwynne v. Burnell (l840) 6 Bing N.C. 453 at 56l.].

No comments:

Post a Comment

Blog Archive