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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.

Monday, May 24, 2010

Presumption of constitutionality

It would be quite useful to refer to Irish Law Reform commission report about the presumption that every statute is constitutionally valid:"Where, in the case of a statute which post-dates the 1937 Constitution, two interpretations of a provision are open to a court, one which is in accordance with the Constitution and the other which would render the provision unconstitutional, the interpretation which would render the provision constitutional is presumed to have been intended by the Oireachtas. The presumption of constitutionality is a strong one, which is defeated only where the construction of a provision as constitutional would involve the effective substitution or amendment of the provision in question. It may result in a highly restrictive construction of a statutory provision, in order to save it from unconstitutionality. The rule was set out by the Supreme Court by Walsh J in East Donegal Co-op v Attorney General :

"An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they may both appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt." Although the presumption imports some consideration of legislative intent into the interpretation of a provision, it was stated, in East Donegal, to be limited by the literal approach to interpretation. Thus where the clear and unambiguous words of a provision have an effect which is unconstitutional, the provision "cannot be given an opposite meaning." Any strained interpretation which amounted to a substitution of a constitutional provision for an unconstitutional one would, it was held, infringe the separation of powers.

It is safe to presume that Parliament enacts valid legislation and that there is no conflict between the statute and the constitution.In case of conflict it is the constitution that prevails.The presumption holds good even if the court finds that a part of the statute is not as per constitution.The following judgement of Canadian Court is worth stating"

As a result, it would be safe to assume that the legislature would have passed the constitutionally sound parts of the statute without the unsound parts. See Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503, at p. 518; Schachter, supra, at p. 697.

Presumption against retrospective operation of Law

The dictum made by Judge Wright in In re Athlumney , [1898] 2 QB 547, p. 551-552, yet perfectly reflects the law against retrospective operation of law.The exact citation provided here proves the point clearly.

Perhaps no rule of construction is more firmly established than this: a retrospective effect should not be given to a statute so as to impair an existing right or obligation, except on procedural matters, unless the outcome can not be avoided without doing violence to the text. If the writing of the text may give rise to several interpretations, we must interpret it as having to take prospective effect only.

(See also Gustavson Drilling (1964) Ltd.. v. Minister of National Revenue , 1975 CanLII 4 (SCC) , [1977] 1 SCR 271, p. 279.)

The presumption that the Oireachtas does not intend an Act to apply retrospectively was stated in Hamilton v Hamilton. Henchy J said:

"When an Act changes the substantive, as distinct from procedural law then, regardless of whether
the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary."

Henchy J characterised the rule as a universal one, and emphasised that (contrary to the statement in
Maxwell ) the rule applied to all pending enactments, unless the language irrefutably stated otherwise.[Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)

List of Presumptions

General Nature of Presumptions
Presumption of the  Principle of Legality     2
Presumption against Infringement of Fundamental Rights  2
Presumption that Fundamental Rights cannot be taken away by General words of Statute  2
Presumption to that Right to seek Justice Shall not be taken Away
Presumption of Liberty and Onus:International Convention
Presumption that Statute does not Bind the crown  2
Exceptions: Rule that Statutes do not Bind the Crown
Crown Liability:International Perspective                2          Changing Approach
Crown: Immportant Decisions 
Presumption of Sovereign Immunity.USA              2   Due Process    2
Concept of Sovereignity
Presumption of Harmony with Other statutes
Presumption about Effective Date of Statute
Presumption that Parliament Acts Reasonably
Presumption against Intending what is not convenient
Presumption against interference with Vested Rights
Case Laws: Non Interference with Vested Rights
Law is not retroactive
Presumption against Extra-Territorial Effects
Presumption that Legislature is aware of existing State of Law
Presumption that Amending Acts have meaning
Presumption about Special Statute and General Statute
Presumption that Latter enactment overrides Earlier
Presumption against Implied Repeal
Presumption against Substantial Alteration of Law: Amending Statute
Presumption that Legislature expresses itself through words of Statute
Presumption in case of 'Notwithstanding anything.'. Clause
Presumption of Deference to Interpretation 
Presumption of deference and extent
Presumption that Statutory Construction is core to Judiciary
Preusmption about General awareness of Legislature
Presumption of Mens Rea     2  Scienter.US   3.US       4 
Presumption that Greater Power includes Lesser Power
Presumption that delegated Power would be used rationally            2
Presumption that Parliament Observed Procedures during Enactment
Presumption that Parliament does not want absurd results from Statute
Presumption of Delegation of Power to legislate [Incomplete Post]

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Presumption against Retroactive operation of Law

To the extent that a law is ambiguous and gives rise to two possible interpretations, we favor an interpretation of the law is not retroactive: Ford v. Quebec (Attorney General) , 1988 CanLII 19 (SCC) , [1988] 2 SCR 712, p. 742-745.

Extrinsic Aids

Extrinsic Aids: An Introduction......
Extrinsic Aids :Provide Wider Context.....
US -Approach To Extrinsic Aids .........
Why of Extrinsic Aids..............
What are Extrinsic Aids...
Courts Authority :Extrinsic Aids......2 .......

Content of Site

There is lot more to be posted on this site,it has to be linked and edited for lucidity.Kindly bear with me and suggest as to how to improve the presentation etc.

Intrinsic Aids To construction

Preamble .......2