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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.

Thursday, May 6, 2010

Chapter-15 Principle of Estoppel against Constitution-Part-15

The Principle of Estoppel against a Statue/Constitution

The principle applicable is embodied in the maxim privatorum conventio juri publico non derogat. It is almost universally acknowledged that estoppel cannot operate against a statute. Much less will it operate against provisions in a Constitution.[1]

Halsbury's Laws of England (4th Edn.) Vol. 16 at paragraph 1575 sets out the legal Position in England. The U.K. of course does not have a written Constitution.

"1515. Estoppel against Statute.: The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers ............. "

Spencer Bower and Turner in their work Estoppel by Representation (2nd Edn.) at page 134 deal with the waiver of the protection of a statute. Where a certain transaction or a course of action is illegal and void and absolutely prohibited, no question of waiver can arise. In other cases it has been contended that a statutory provision for the benefit of a party could be waived. They state:

". The soundness of this contention in any particular case, whether of express contract or of estoppel (for the principles which govern the former obviously govern the latter also) depends upon the question whether the right which is abnegated is the right of the party alone, or of the public also, in the sense that the general welfare of the community, or the interests of the class of persons whom it is the object of the law to protect, cannot be secured in the manner intended without prohibiting the waiver or estoppel. In the case of express contract to waive it has always been held that the doctrine embodied in the familiar formula, quilbet potest renuntiare juri pro se introducto, is subject to the limitation that the renouncing party must be able to establish that the 'jus' was intended by the legislature for his benefit only pro se solo. If the public, or a class or section of the community, are interested, as well as himself, in the general observance of the conditions prescribed by statute, it has always been held on the ground of public policy that there can be no waiver, even by express contract or consent, of the right to such observance by any individual party; but where, on the other hand, no public interest, and no interest intended to be promoted or protected by the statute, is in the least affected by the contract or consent to waive, and the matter is one which concerns the parties alone, such contract or consent has never been interfered with, but on the contrary has always been enforced. So also, in cases of waiver by conduct which gives rise to an estoppel, the same essential distinction has always been observed. On the one side of the line are the cases where the estoppel or waiver, if allowed, would defeat the objects of the statute, and injure the interests of the public, or of persons other than the immediate parties, and where therefore the affirmative answer of illegality has prevailed, and the estoppel has been defeated. On the other side of the line are the cases in which no interests, other than those of the immediate parties, can possibly be affected by allowing the estoppel, which accordingly has in such cases usually prevailed.” In a case where the Court was examing the duty of the Provincial Tender Board, Capetown wherein it was alleged hat the Board while discharging the duty acted negligently, it was observed that:‘public policy does consider any act or omission by the Board, which results in anyone else suffering damages or economic loss, to be wrongful. It is unthinkable that the Board will have carte blanche to act as it pleases, irrespective of the loss which such actions may cause to others.[2]’In Steenkamp [supra] HARMS J quoted VAN ZYL J, after a close analysis of the case law, was more circumspect but also concluded that a tender board owes a legal duty to the successful tenderer in awarding a tender to that party. Paraphrased he reasoned as follows. All tenderers, successful and unsuccessful, are entitled to a lawful and fair process. Statutes dealing with tenders are enacted in the interest of both the state and of tenderers. An unsuccessful tenderer has a remedy in the form of a review whereas a successful tenderer, such as .., has none unless a damages claim is recognised. Claim is limited to out-of-pocket expenses and a damages award will not place a serious burden on the public purse. The threat of a damages claim will not make a tender board unduly cautious but will rather lead to a higher standard of care in accordance with the constitutional concept of accountability. The floodgate argument does not apply because it will only be successful tenderers (in this case two, Balraz and Pensecure) who could have claims once awards are set aside. It is foreseeable that a failure to comply with a statutory duty in the adjudication of a tender might result in the successful tenderer, who does not know of the irregularity, incurring expenses to perform in terms of the contract, and that such a tenderer might suffer loss in the form of wasted expenses if the award were to be set aside subsequently.’ The ‘duty of care’, VAN ZYL J continued, is not general, but relative or directional and the question was therefore whether such a duty was owed to Balraz where its tender offer was a nullity. He found that the absence of a valid tender meant that there could not have been any administrative relationship between Balraz and the Board. Consequently it could not have been within the reasonable contemplation of the Board that Balraz could suffer harm or loss when it directed its mind to the acts or omissions that were questioned. Lacking foreseeability of harm there could not be wrongfulness.[3]

In Maritime Electric the House of Lords held that an estoppel should not be enforced for reasons of public policy, on the basis that it was of general benefit to society that the revenue statute be complied with. In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, Lord Bridge said (at 289)

“It is well established that a statutory body cannot by contract fetter its own freedom to perform its statutory duties or exercise its statutory powers and by parity of reasoning it has been held that no such fetter can arise from an estoppel by representation: see Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 and Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416.

[1] Bindra's Interpretation of Statutes

[2] Steenkamp v Provincial Tender Board of the Eastern Cape (528/2004) [2005] ZASCA 120 (30 November 2005) THE SUPREME COURT OF APPEAL OF SOUTH AFRICA per HARMS JA, who also observed that:” The legal position of the Board was somewhat ambiguous. The intention was to set up an organ of state, independent of the provincial government, which had to advise and protect the Province during the procurement process of goods and services. However, the Board was also an arm of the provincial government with the power to act on its behalf and to bind it contractually. The Board had the sole power to procure supplies and services for the Province, it could conclude procurement agreements on the Province’s behalf and resile from them. In an appropriate case the Board could claim damages, presumably those suffered by the Province due to a breach of a contract concluded by the Board.”

[3] Steenkamp [supra] HARMS JA quoted VAN ZYL J.

Chapter-15 Interpretation of constitution- Ordinary Methods- Part-14

Principles of Ordinary Law also applicable to Interpretation of Constitution

The legislature has clearly expressed its intention through the wording of the article[1]. The principles of interpretation that govern ordinary law are equally applicable to the provisions of the Constitution.[2]

The principles of interpretation that govern ordinary law are equally applicable to the provisions of a Constitute. For the purpose of deciding whether a provision in a constitution is mandatory one must have regard also to the aims, scope and object of the provision. The mere use of the word "shall" does not necessarily make the provision mandatory. Subba Rao,J. in the case of State of U.P. vs. Babu Ram[3] stated this in clear manner.[4]

The judgment of Cwyer, C.J., in the case of In Re C. P. Motor Spirit Act[5], sets out, at page 4, several of the principles, referred to follows:

"The Judicial Committee has, observed that a Constitution is not to be construed in any narrow and pedantic sense :per LORD WRIGHT in James vs. Comm. of Australia[6]. The rules which apply to the interpretation of other statutes apply, it is true, equally to the interpretation of a constitutional enactment. But their application is of necessity conditioned by the subject matter of the enactment itself; and I respectfully ­adopt the words of a learned Australian Judge:

“Although we are to interpret the words of the Constitution on the same principle of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and the scope of the Act that we are interpreting ‑ to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be'[7]"

Unlike statute law in the common law, the Civil Code is not a law of exception, and this must be taken into account in interpreting it. It must be interpreted broadly so as to favour its spirit over its letter and enable the purpose of its provisions to be achieved was observed by the supreme court of Canada.[8]

[1] Doré v. Verdun (City), [1997] 2 S.C.R. 862

[2] Visuwalingam and Others v. Liyanage and Others - SLR - 203, Vol 1 of 1983 [1983] LKSC 9; (1983) 1 Sri LR 203 (20 October 1983) [per : Ranasinghe. ,J. and Rodrigo, J. dissenting)

[3] State of U.P.V Babu Ram A.I.R. 1961 (SC) 765.

[4] "When a statute used the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non‑compliance with the provisions, the fact that the non‑compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered."

[5] In re C.P. Motor Spirit Act 1939 A.I.R. 4 Fed. Ct.p. 1,5.

[6]James vs. Comm. of Australia 1936 AC 578 at 64

[7] 1908, 6 Com. L.R.469, per Higgin, J.

[8] Doré v. Verdun (City), [1997] 2 S.C.R. 862 and it was stated in the continuation of the above that “The Civil Code of Québec sets out a number of guiding legal principles. According to the preliminary provision, the Code is also the foundation of all other laws dealing with matters to which the Code relates, although such laws may complement the Code or make exceptions to it. It is therefore the foundation of all statutes that draw mainly or incidentally on civil law concepts. It is also applicable to the aspects of legal persons established in the public interest that come under the Civil Code.”

Chapter-15 Constitutional provisions Mandatory-Part-13

Constitutional provisions are mandatory unless different intention is manifest

“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 …[1]

If the Court indulges itself by straining the language of the constitution to accord with its own subjective moral values then, as Holmes J said almost a century ago in his first opinion for the Supreme Court of the United States[2] Otis v Parker: [3]

“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 ...”

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.[4]

As LORD HOFFMAN said in Matadeen v Pointu[5] at 108:

“It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution … As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v Zuma [6]: ‘If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination’.”

Every provision of a statute, whether such provision be mandatory, prohibitive or penal, shall be deemed to have for its object the remedying of some evil or the promotion of some good.

Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.

The law is ever commanding; and whatever be the tense of the verb or verbs contained in a provision, such provision shall be deemed to be in force at all times and under all circumstances.[7]

It is said that as a general rule "constitutional provisions are mandatory unless by express provisions or by necessary implication, a different intention is manifest. Some cases even go so far as to hold that all constitutional provisions are mandatory[8]" But this proposition is too widely stated. No doubt a Constitution is paramount law, to the authority of which all subordinate laws are, and indeed must be, referable. As such there is a bias towards command but over the years this rigid interpretation has given way to a broad and liberal approach. A Constitution is a living and organic thing.[9] It embodies the working principles for practical Government" and its "provisions cannot be interpreted and crippled by narrow technicalities per Mukharji, J. in Ramhari vs. Nilmoni Das[10].It is also true that it is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to the decision of case.[11] It is of importance to decide whether a statutory duty is mandatory - words such as 'absolute', 'obligatory', 'imperative' and 'strict' may be used instead - or whether it is directory. ('Permissive' is sometimes used, but the use of the term 'directory' in the sense of permissive has been criticised by Craies, Statute Law, 7th ed. 1971 p. 61 n. 74.) Ordinarily, where the relevant statutory duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory the thing done will be unaffected, though there may be some sanction for disobedience imposed on the person bound[12].

[1] Reyes v The Queen [2002] 2 WLR 1034, 1045 para 26:per Lord Bingham

[2]As quoted in: Pinder v. R [2002] UKPC 46 (The Bahamas) (23 September 2002)
Cite as: [2002] UKPC 46 (The Bahamas)

[3] Otis v Parker (1903) 606, 609

[4] Pinder [supra]

[5] Matadeen v Pointu [1999] 1 AC 98, 108:

[6] State v Zuma 1995 (4) B.C.L.R. 401, 412

[7] : Acme Village School District (Board of Trustees of) v. Steele‑Smith, [1933] S.C.R. 47, and Bellechasse Hospital v. Pilotte, [1975] 2 S.C.R. 454.

[8] . (Bindra -interpretation of Statutes Edn 5 p. 860).

[9] ( Per Gwyer, C.J. In re Motor Spirit Act (29)

[10] Ramhari vs Nilmoni Das A.I.R. 1952 Calcutta 184,186.

[11] Burton v. United States 195 us 205.

[12] Quoted from Maithripala Senanayake, Governor of the North Central Province and Another v. Gamage Don Mahindasoma and Others - SLR - 333, Vol 2 of 1998 [1996] LKSC 23; (1998) 2 Sri LR 333 (4 January 1996),it is observed : If the Governor's duty to act on the advice of the Chief Minister was mandatory and not directory, then failure to comply with his duty invalidated the dissolution. Article 154 B (8) (d) uses the word shall in describing the manner in which the Governor should exercise his power of dissolution. I am in agreement with the view that although the word shall ordinarily imposes a mandatory duty, there may be cases in which it has the same meaning as 'may'. However, I find no reason adduced in the matters before us to give Article 154 B (8) (c) read with Article 154 (8) (d) any meaning other than that the Governor will have to or must, if the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council, exercise his powers of dissolution in accordance with the advice of the Chief Minister. Wade and Forsyth, op. cit., p. 245 observe that: Powers confer duties whether to act or not to act, and also in many cases, what action to take, whereas duties are obligatory and allow no option. De Smith, Woolf and Jowell, op. cit., p. 296, observe that: if only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. Since the Board of Ministers in the opinion of the Governor commanded the support of the majority of the Provincial Council, there was only one, uniquely right course of action prescribed - to follow the advice of the Chief Minister in deciding whether to exercise his power of dissolution. There was no discretion. By his failure to act in accordance with the duty imposed on him by law, the Governor acted illegally.

Chapter-15 Interpretation of constitution -Part-12-5

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, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society.[1] In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane, [2], in para. 88:

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.”

[1] (see Trop v Dulles, above, at 101).

[2] State v Makwanyane, 1995 (3) SA 391,

Chapter-15 Interpretation of constitution-Part-12-4

The general principle was stated in AG of the Gambia v Jobe[1] where LORD DIPLOCK said:

"A constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

The words of LORD WILBERFORCE in Minister of Home Affairs v Fisher [2]are also of value:

"These antecedents... call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. ... 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 principles of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."

The Constitution of India is a paramount law which represents the will of the people and is a mechanism under which laws are framed. In interpreting the Constitution, the court has to see that it is a documentation of the founding face of a nation and the fundamental directions for its fulfillment, whereas in interpreting a Statute, its pith and substance has to be looked into & the duty of the Court is to find the legislative intent. The general principle of interpretation and construction of Statute is that a court presumes its constitutionality and prefers an interpretation in favour of competency of the legislature. It is only when two meanings are inferred, whereby one results into the view of the legislature in effective result and the other results into manifest absurdity or futility or palpable injustice or anomaly, the Court should adopt the second view.[3]

A Constitution must be read as a whole, and the whole Constitution has to be examined without giving undue weight to any part[4]. In Tasmania v. Commonwealth[5] on a question as to the meaning of the Constitution of the Australian Commonwealth, O'Conner J. said: I do not think that it can be too strongly stated that our duty in interpreting a statute is to declare and administer the law according to the intention expressed in the statute itself. In this respect the Constitution differs in no way from any Act of the Commonwealth or of a State.‘The Constitution has to be looked at as a whole to see the scope of provisions. It is necessary to consider the context in which a particular provision appears and why it was framed. When an enacted law is said to be incompatible with a right protected by a constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so, it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation.[6].

[1]AG of the Gambia v Jobe [1984] AC 689 at 700

[2] Minister of Home Affairs v Fisher [1980] AC 319 at 328

[3] JUGAL KISHORE DHOOT & ORS v STATE & ORS - CW Case No. 4733 of 2004 [2007] INRJHC 5718 (7 December 2007) URL: http://www.commonlii.org/in/cases/INRJHC/2007/5718.html

[4] Madan Mohan v. Carson Cumberbatch & Co Ltd. - SLR - 75, Vol 2 of 1988 [1988] LKSC 7; (1988) 2 Sri LR 75 (3 August 1988

[5] Tasmania v. Commonwealth [1904] I C.L.R. 329

[6] see, among many other cases, Weems v United States (1909) 217 US 349 at 373; Trop v Dulles (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391; Matadeen v Pointu [1999] 1 AC 98 at 108

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