In case of conflict between the statute and the Constitution
The scheme of the Act is in accordance with the constitutional limitation. That is in itself a cogent reason for restricting the generality of a word as it might be read in another context[1] and LORD LOREBURN Drummond v. Collins[2]
The task of statutory interpretation is, at least in part, one that involves individual impressions. As many cases demonstrate, different judicial readers, trained in the same tradition, examine the same language yet come to different conclusions. The object of legal analysis is to ensure, so far as possible, that each decision-maker takes into account the same considerations before reaching a conclusion, and that such legal analysis is as candid as exposition of judicial reasons permits, concerning the chief factors that have led to one conclusion rather than another.[3]
‘Under our Constitution, court decisions, and the orders giving effect to them, have an authority derived from the powers and functions of the courts that pronounce them. This extends to cases where the decisions and orders give effect to an opinion about the unconstitutionality of specified legislation. Recognition of this fact is important for one of the key questions in these proceedings.[4]’
In Kanda v Government of the Federation of Malaya[5] LORD DENNING said, at p 333:
"If there was in any respect a conflict between the existing law and the Constitution … then the existing law would have to be modified so as to accord with the Constitution."
A little later he observed, at p 334, that
"In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution."
In interpreting that language the warning of Kentridge AJ (Ag) in State v Zuma [6] para 17 is as salutary as it is succinct: “it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.”
The Constitution does not simply control what the law, whether written or unwritten, may provide; it exists also to place limits on what the state may do[7]. In State v Petrus [8] in the Court of Appeal of Botswana, AGUDA JA referred to Corey v Knight [9]and observed that :”“it is another well known principle of construction that exceptions contained in constitutions are ordinarily to be given strict and narrow, rather than broad, constructions
“…..therefore, the presumption of constitutionality can sometimes serve to rebut the presumption that the legislature intended that effect be given to the "plain meaning" of its enactments. It is important to note, however, that the process of invoking the presumption of constitutionality so as to arrive at an interpretation different from that that would ordinarily result from applying the rules of statutory construction leads to essentially the same result as would be reached by adopting the ordinary interpretation, holding that the legislation is unconstitutional, and "reading it down" as a remedy …..under s. 52 of the Constitution Act, 1982[10].”
American Citations
Under that doctrine, when "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.[11]"
Resolution of the Conflict"Reading down, reading in, severance and notional severance are all tools that can be used either by themselves or in conjunction with striking out words in a statute for the purpose of bringing an unconstitutional provision into conformity with the Constitution, and doing so carefully, sensitively and in a manner that interferes with the legislative scheme as little as possible and only to the extent that is essential[15]" (emphasis added).
“This is a quasi-legislative power, not a purely interpretative one; for the court is not constrained by the language of the statute in question, which it may modify (ie amend) in order to bring it into conformity with the constitution. In R v Hughes [16] the Privy Council deleted (ie repealed) express words in the statute. In doing so it exercised a legislative, not an interpretative, power. Such a power is appropriate where the constitution (particularly one based on the separation of powers) is the supreme law, and where statutes inconsistent with the constitution are to the extent of the inconsistency automatically rendered void by the constitution. A finding of inconsistency may leave a lacuna in the statute book which in many cases must be filled without delay if chaos is to be avoided and which can be filled only by the exercise of a legislative power. But it is not appropriate in the United Kingdom, which has no written constitution and where the prevailing constitutional doctrine is based on the supremacy of Parliament rather than the separation of powers. Accordingly section 4(6) provides that legislation which is incompatible with a Convention right is not thereby rendered void; nor is it invalidated by the making of a declaration of incompatibility. It continues in full force and effect unless and until it is repealed or amended by Parliament, which can decide whether to change the law and if so from what date and whether retrospectively or not.[17]”Where the choice of means is unequivocal, to further the objective of the legislative scheme through different means would constitute an unwarranted intrusion into the legislative domain.
However, it has been observed that:” In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government.[18]” In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch[19].
[1] Watney, Combe, Reid & Co. v. Berners (1915) A.C. 885, at p. 891 per LORD HALDANE L.C
[2] Drummond v. Collins (1915) A.C. 1011, at p. 1017 per LORD LOREBURN
[3] Stevens [supra] per GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ.who further observed in relation to the paragraph quoted above that:” Take the present case. The main textual considerations that support the conclusion of the primary judge are as follows. The drafter of the Australian provision has, apparently deliberately, chosen a distinctive way of expressing the prohibition in s 116A of the Copyright Act. This is by using references to technological expressions ("technological protection measure" and "circumvention device") that are defined in s 10(1) of the Copyright Act. Moreover, whilst a particular "device" might, in general terms, be regarded as a "circumvention device" - just as the primary judge was willing to accept the appellant's modifications were in the present case - they only have the relevant statutory significance in so far as they circumvent, or facilitate the circumvention of, a TPM. The drafting is thus tight. Apparently, it is deliberately expressed in terms of defined measures.
Those measures, in turn, are not described in general terms as measures preventing or inhibiting access to a work or to subject matter entitled to copyright protection under the Act. Instead, two elements are stated as prerequisites to the existence of a TPM, as defined. These are that the TPM must be a "device or product, or a component incorporated into a process" - implying (as the word "technological" in the expression TPM itself suggests) a measure having an ordinary operation of the designated type. Moreover, what is to be prevented or inhibited is not, as such, "access" to a work or subject matter that is entitled to copyright. It is the infringement of copyright in that work that is to be prevented or inhibited; and inferentially, the infringement is to be prevented or inhibited by such technological means.
[4] Residual Assco Group v Spalvins [2000] HCA 33; 202 CLR 629; 172 ALR 366; 74 ALJR 1013 (13 June 2000,High Court of Australia,per KIRBY J
[5] Kanda v Government of the Federation of Malaya [1962] AC 322
[6] State v Zuma 1995 (2) SA 642, 652 para 17
[7] Hughes, R v (Saint Lucia) [2002] UKPC 12 (11 March 2002)
URL: http://www.bailii.org/uk/cases/UKPC/2002/12.html
Cite as: [2002] 2 WLR 1058, [2002] 2 AC 259, [2002] UKPC 12, 12 BHRC 243
[8] State v Petrus [1985] LRC (Const) 699, 720D-F
[9] Corey v Knight (1957) 150 Cal App 2d 671
[10] Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031
[11] United States ex rel. Attorney General v. Delaware & Hudson Co., [1909] USSC 120; 213 U. S. 366, 408
[16] R v Hughes [2002] 2 AC 259
[17] As quoted in para.64 of : Ghaidan v. Godin-Mendoza [2004] UKHL 30 (21 June 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/30.html,” In some cases (In re S (Minors)(Care Order: Implementation of Care Plan) [2002] 2 AC 291 and R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 are examples) it would have been necessary to repeal the statutory scheme and substitute another. This is obviously impossible without legislation, and cannot be achieved by resort to section 3. In other cases (Bellinger v Bellinger [2003] 2 AC 467 is an example) questions of social policy have arisen which ought properly to be left to Parliament and not decided by the judges.”[para 65 of Ghaidan [supra].
[18] See Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 90-91, and Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 362.
[19] Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525
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