A fundamental right is one explicitly or implicitly implied guaranteed by the constitution.”
[Ballard v. Commonwealth, 228 Va. 216 (1984). See also Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)]
One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v. Northern Ireland Road Transport Board (1942) AC 520, at pp 526-527), which would operate retrospectively (see, e.g., Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 267), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g., Magrath v. Goldsbrough, Mort and Co. Ltd. [1932] HCA 10; (1932) 47 CLR 121, at p 134) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; (1920) AC 508). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at p 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.
[Ballard v. Commonwealth, 228 Va. 216 (1984). See also Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)]
One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v. Northern Ireland Road Transport Board (1942) AC 520, at pp 526-527), which would operate retrospectively (see, e.g., Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 267), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g., Magrath v. Goldsbrough, Mort and Co. Ltd. [1932] HCA 10; (1932) 47 CLR 121, at p 134) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; (1920) AC 508). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at p 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.
BROPHO v. WESTERN AUSTRALIA [1990] HCA 24; (1990) 171 CLR 1, MASON C.J., DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ.
Speaking against the right to access the Courts , that is also a fundamental principle it was observed in House of Lord Decisions following was stated in a case:"Of course, it is well known that Courts of Law have always exercised a certain authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from : and if the authority that confers them prescribes, explicitly or by implication, certain conditions as to their exercise, those conditions ought to be adhered to. It is, or may be, an abuse of power not to observe the conditions. It is certainly an abuse of power to seek to exercise it when the statute relied upon does not truly confer it, and the invalidity of the act does not depend in any way upon the question whether the person concerned knows or does not know that he is acting ultra vires. It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose. Probably most of the recognised grounds of invalidity could be brought under this head: the introduction of illegitimate considerations, the rejection of legitimate ones, manifest unreason ableness, arbitrary or capricious conduct, the motive of personal advantage or the gratification of personal ill-will. However that may be, an exercise of power in bad faith does not seem to me to have any special pre-eminence of its own among the causes that make for invalidity. It is one of several instances of abuse of power and it may or may not be involved in several of the recognised grounds that I have mentioned. Indeed, I think it plain that the Courts have often been content to allow such circumstances, if established, to speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power have actually proceeded in bad faith. [per LORD RADCLIFFE]
Speaking against the right to access the Courts , that is also a fundamental principle it was observed in House of Lord Decisions following was stated in a case:"Of course, it is well known that Courts of Law have always exercised a certain authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from : and if the authority that confers them prescribes, explicitly or by implication, certain conditions as to their exercise, those conditions ought to be adhered to. It is, or may be, an abuse of power not to observe the conditions. It is certainly an abuse of power to seek to exercise it when the statute relied upon does not truly confer it, and the invalidity of the act does not depend in any way upon the question whether the person concerned knows or does not know that he is acting ultra vires. It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose. Probably most of the recognised grounds of invalidity could be brought under this head: the introduction of illegitimate considerations, the rejection of legitimate ones, manifest unreason ableness, arbitrary or capricious conduct, the motive of personal advantage or the gratification of personal ill-will. However that may be, an exercise of power in bad faith does not seem to me to have any special pre-eminence of its own among the causes that make for invalidity. It is one of several instances of abuse of power and it may or may not be involved in several of the recognised grounds that I have mentioned. Indeed, I think it plain that the Courts have often been content to allow such circumstances, if established, to speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power have actually proceeded in bad faith. [per LORD RADCLIFFE]
