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Saturday, June 5, 2010

Presumption that Legislature Knows the State of existing Laws

It is a strong presumption that the legislature is aware of the laws.It is more of a common-sense approach to presumption. But it has its significance if there are two statutes on the same subject or if there are  provisions of the statutes that are in conflict. Tension is then resolved by referring to this presumption.[Blogger]
"The legislature is presumed to know the law when enacting legislation. [See Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005).] We must therefore presume that the legislature knew that both a preliminary hearing and a grand jury indictment operate as screening procedures for probable cause determination when the legislature enacted Code § 19.2-218. Nevertheless, the legislature decreed that "no indictment shall be returned in a court of record against any such person prior to such hearing . . . ." 
By the plain language of the statute, the validity of any indictment against a person who has been arrested prior to the indictment depends on the occurrence of a preliminary hearing or a valid waiver. To decide that a subsequent indictment cures any violation of Code § 19.2-218 would be to ignore the command of the legislature." 
Wright v. Commonwealth, __Va. App. __, S.E.2d __,__ (2008).
" [The General Assembly] is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law."
 Isbel v. Commercial Invetsments Associates, Inc., 273 Va. 605, 644 S.E.2d 72 (2007). See Also: Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003). 

 The decision of the Privy Council in Bribery Commissioner v Ranasinghe [1965] AC 172 is also important. It was an appeal from Ceylon. An Act was passed but not in conformity with the constitutional legislative procedure. Lord Pearce delivered the judgment of the Privy Council. He observed, at pp197-198:

"A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is 'uncontrolled,' as the board [in McCawley's case [1920] AC 691] held the constitution of Queensland to be. Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process."
This dictum is consistent with the analysis already explained.

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