General Common Law Rules On Statutory Interpretation

1. General Common Law Rules On Statutory Interpretation

2. General Common Law Rules On Statutory Interpretation • Plain Meaning Rule: According to the plain meaning rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. • In Re: Akoto, the courts preferred the plain meaning approach in interpreting the provisions of Article 13(1) and the Preventive Detention Act. • It was held that the use of the word “should” rather than “shall” in Article 13(1) of the 1960 Constitution imposed a moral obligation, rather than a legal one, on the President. Thus the Declaration of Fundamental Principles did not create legally enforceable rights. • Further, the term “Security of the State” was not limited to the defence of Ghana against a foreign power, and thus the PDA could not be said to illegal in the absence of war.

3. General Common Law Rules On Statutory Interpretation • According to Professor Larry Solum in Legal Theory Lexicon: “A text that means one thing in a legal context might mean something else if it were in a technical manual or a novel.” So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type

4. General Common Law Rules On Statutory Interpretation • The Golden Rule: Provides that wordings should be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd or totally obnoxious result. In other words the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but no further.

5. General Common Law Rules On Statutory Interpretation • In Professor Stephen KwekuAsare v AG, Prof Kludze in his concurring opinion stated that Unless we interpret "unable to perform the functions of the President" in article 60(11) by accepting absence from Ghana as one of the reasons for the inability, as in article 60(8), we may be faced with an absurdity. It will mean that while under article 60(8) the Vice-President may act for the President if the President is absent from Ghana and thus constitutionally presumed to be unable to discharge presidential functions, there will be no person in Ghana to perform the functions of the President if both he and the Vice-President are absent from Ghana. This will produce internal inconsistency and absurdity, quite apart from the predictable constitutional crisis that such a construction may portend.

6. General Common Law Rules On Statutory Interpretation • The golden rule may be used in two ways. • It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. • In Republic v Yebbi & Avalifo, the Supreme Court interpreted the and in Article 143 (1) of the 1992 Constitution (which provides that “ A Regional Tribunal shall have jurisdiction to try such offences against the State and the public interest as Parliament may, by law, prescribe.”) to mean “and/or”. • The court therefore concluded that regional tribunals had jurisdiction under article 143 (1) to try such offences against both the State and the public interest, or against the State or against the public interest

7. General Common Law Rules On Statutory Interpretation • The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. • In Professor Stephen KwekuAsare v AG 2004, the Supreme Court held, per Prof Kludze, JSC that “Unless we interpret "unable to perform the functions of the President" in article 60(11) by accepting absence from Ghana as one of the reasons for the inability, as in article 60(8), we may be faced with an absurdity. It will mean that while under article 60(8) the Vice-President may act for the President if the President is absent from Ghana and thus constitutionally presumed to be unable to discharge presidential functions, there will be no person in Ghana to perform the functions of the President if both he and the Vice-President are absent from Ghana. This will produce internal inconsistency and absurdity, quite apart from the predictable constitutional crisis that such a construction may portend”.

8. General Common Law Rules On Statutory Interpretation • The mischief rule attempts to determine the legislator's intention. It originated from the 16th century in Heydon’s Case. Its main aim is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. • It asks the question: By creating an Act of Parliament what was the "mischief" that the previous law did not cover? • This legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes. • This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied.

9. General Common Law Rules On Statutory Interpretation • In the 31stDecember Case, the Court held, per Adade JSC that, If the people have a constitutional duty to protect and defend the Constitution, 1992, then the same people cannot by themselves, or by anyone in their name, lay out moneys and resources to play up the idea of coups, well knowing that this is bound to undermine the Constitution, 1992. Celebrating the occasion with carnivals, festivities and riotous merry-making is telling ourselves that the event was a happy one; it was a good one.  Such conduct will clearly be inconsistent with the duty to defend the Constitution, 1992. Adade JSC,

10. Theories on Statutory Interpretation

11. Theories on Statutory Interpretation • Living Constitution: TheLiving Constitution Theory (or loose constructionism) is the claim that the Constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it changes. • The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.

12. Theories on Statutory Interpretation • In Tuffuor v Attorney General, Sowah JSC stated in his judgment that The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. (…) Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development.

13. Theories on Statutory Interpretation • The arguments for the Living Constitution can generally be broken into two categories. • First, the pragmatist view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary. Sowah v Attorney General • The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. Roe v Wade • Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that allowing judges to determine an ever-changing meaning of the constitution undermines democracy. For example, in the Constitutional Law of Ghana, Bennion stated inter alia, while analysing the 1960 Constitution that; • [The Constitution] is a mechanism, and all of its operative provisions are intended to have the precise effect indicated by the words used – no more, no less • It is drafted on the assumption that the words used have a fixed and definite meaning and not a shifting or uncertain meaning; that they mean what they say and not what people would like them to mean; and if they prove unsuitable they will be altered formally by Parliament and not twisted into new meanings by ‘interpretation’...

14. Theories on Statutory Interpretation • Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis," the notion that an utterance's semantic content is fixed at the time it is uttered.Originalistsseek one of two alternative sources of meaning: • The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. That is currently a minority view among originalists. • The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be.

15. Theories on Statutory Interpretation • Strict construction requires a judge to apply the text only as it is written. Once the court has a clear meaning of the text, no further investigation is required. Judges—in this view—should avoid drawing inferences from a statute or constitution and focus only on the text itself. • In Re: Akoto, the courts preferred the plain meaning approach in interpreting the provisions of Article 13(1) and the Preventive Detention Act. • It was held that the use of the word “should” rather than “shall” in Article 13(1) of the 1960 Constitution imposed a moral obligation, rather than a legal one, on the President. Thus the Declaration of Fundamental Principles did not create legally enforceable rights. • Further, the term “Security of the State” was not limited to the defence of Ghana against a foreign power, and thus the PDA could not be said to illegal in the absence of war.

16. Theories on Statutory Interpretation • The Purposive theory is a theory of statutory interpretation that holds that statutes should be interpreted in the light of the purpose behind the legislation. • The Purposive Approach to interpretation takes account of the words of the Act according to their ordinary meaning as well as the context in which the words are used. Reliance is not placed solely on the linguistic context, but consideration is given to the subject-matter, the scope, the purpose and, to some extent, the background. Thus with the Purposive Approach to the interpretation of legislation there is no concentration on language to the exclusion of the context. The aim, ultimately, is one of synthesis. • The Purposive Approach uses aids to interpretation such as Context, Early Drafts, Hansards, Committee Reports, And White Papers, Historical Settings, Objects And Reason, Text Books And Dictionaries etc etc.

17. Theories on Statutory Interpretation • Textualism"looks at the statutory structure and hears the words as they would sound in the mind of a skilled, objectively reasonable user of words.“ • The textualist thus does not give weight to legislative history materials when attempting to ascertain the meaning of a text. Textualism is often erroneously conflated with originalism, and was advocated by US Supreme Court Justices such as Hugo Black and Antonin Scalia; the latter staked out his claim in his 1997 Tanner Lecture: "[it] is the law that governs, not the intent of the lawgiver."  • Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured this philosophy, and its rejection of intentionalism: "We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used ... We do not inquire what the legislature meant; we ask only what the statutes mean."

18. General Principles Of Constitutional Interpretation – BimpongButa

19. General Principles Of Constitutional Interpretation – BimpongButa • First, a national constitution must be given a benevolent, broad, liberal and purposive construction so as to promote the apparent policy of its framers. In effect, a strict, narrow, technical and legalistic approach must be avoided. • Locus Classicus: Tuffuor v Attorney General

20. General Principles Of Constitutional Interpretation – BimpongButa • The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.

21. General Principles Of Constitutional Interpretation – BimpongButa • Second, a constitution must be construed as a political document capable of growth. Tuffuor v Attorney General. • The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. (…) Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development.

22. General Principles Of Constitutional Interpretation – BimpongButa • Third, a national constitution is a document sui generis and must therefore be interpreted according to principles suitable to its character and not necessarily according to the ordinary rules and presumptions of statutory interpretation • Finally the court will observe that the narrow rules of construction applicable in the cases of contracts, wills, statutes and ordinary legislation may or may not be adequate when it comes to the interpretation of a Constitution or law intended to govern the body politic.  In the instant case, the court is interpreting provisions relating to an organ of State, namely the judiciary.  Our interpretation should therefore match the hopes and aspirations of our society and our predominant consideration is to make the administration of justice work. Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511 per SowahJSC • "A constitution is a legal instrument instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. [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." Kuenyehiav Archer [1993-94] per Francois JSC

23. General Principles Of Constitutional Interpretation – BimpongButa • Fourth, the court must avoid importing into the constitution what does not appear therein. In other words, the constitution must be interpreted in the light of its own wording and not on the basis of words found in other constitutions. The court must therefore generally recognisethat judicial pronouncements in other common law jurisdictions founded on the wording of their constitutions are not likely to be of assistance. This is especially so where passages are lifted out of context. • Attorney-General (No 2) v TsatsuTsikata (No 2) [2001-2002] SCGLR 620 where AcquahJSC in his opinion in support of the majority decision, setting aside on review, the earlier majority decision of the ordinary bench in the same case, said: “The majority’s insistence on putting words into article 139 (3) of the 1992 Constitution when such words are not in the article, with a view to imposing restrictions on the exercise of the Chief Justice’s discretion, is not a permissible exercise of the judicial function.” • See also Judges on Judging 1997 (David M O’Brien ed) at page 226 where United States Supreme Court Justice Felix Frankfurter was quoted as saying that in interpreting legislation a judge “ must not read in by way of creation. He must not read out except to avoid patent nonsense of internal contradictions.” • In interpreting the relevant provisions of the Constitution, 1992 we must be very careful to avoid importing into the written document what does not appear therein. 24 See Francois JSC in Kuenyehia v Archer [1993-94] GLR 525 at 562

24. General Principles Of Constitutional Interpretation – BimpongButa • Fifth, the court may have to take into account the spirit of the constitution as a tool for constitutional interpretation. • The Constitution has its letter of the law. Equally, the Constitution has its spirit (…) when a particular interpretation leads to two, shall we say "inconsistent" results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to.Tuffuor v Attorney General • Besides, those few persons pardoned, few, that is considering the total population of Ghana, cannot, should they happen to control the levers of power within the State, cock a snook at the public and the Constitution, 1992 which have given them this pardon, by a public commemoration of the very acts for which they have been pardoned, using public money and resources in the process! Such conduct must certainly offend if not the letter, at least the spirit or (as the Committee of Statutory Experts put it) "the conscience" of the Constitution.31st December Case

25. General Principles Of Constitutional Interpretation – BimpongButa • Sixth, the provisions of the Interpretation Act may be relevant in construing the provisions of our national constitution. • The proper role of the Interpretation Act, 1960 (CA 4) was that unless the contrary intention appeared in any enactment, the interpretation of words provided in CA 4 should be applied, except where the context in which the word was used would not permit such an interpretation or where the enactment itself provided an interpretation of any particular words used therein. A "person" was defined in section 32 of CA 4 to include a body corporate. Since that meaning fitted the context in which "person" was used in article 2( 1) of the Constitution, 1992 there was no necessity for applying the canons of statutory interpretation to determine its meaning. Moreover, the word "person" had been defined in article 297 of the Constitution, 1992 to include a natural as well as a legal person or a corporate person such as the plaintiff. Accordingly, the plaintiff had locus in the case.NewPatriotic Party v Attorney-General (Ciba Case)

26. General Principles Of Constitutional Interpretation – BimpongButa • Seventh, the court may resort to the Directive Principles of State Policy embodied in chapter 6 of the Constitution, 1992 as a tool for constitutional interpretation • The experts recognised that the directive principle were not justiciable. Nevertheless, they gave convincing reasons for including them in the Constitution, 1992 and concluded at p 49, para 95 that their usefulness lies in the fact that "they provide goals for legislative programmes and a guide for judicial interpretation. New Patriotic Party v Inspector-General of Police

27. General Principles Of Constitutional Interpretation – BimpongButa • Ninth, in construing a constitution, the court must look at all the provisions thereof as a whole. • In the words of Acquah JSC, in delivering the leading opinion of the Supreme Court in National Media Commission v Attorney-General“in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework…” • Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):"For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing ? If the whole were hearing, where were the smelling . . . ? But now are they many members, yet but one body.“(…) We must have recourse to the Constitution as a whole. Tuffuor v Attorney General

28. General Principles Of Constitutional Interpretation – BimpongButa • Tenth, the Supreme Court has held, per Bamford-AddoJSC, in New Patriotic Party v Attorney-General (Ciba Case) that in testing any law for unconstitutionality, the court should not concern itself with the propriety or expediency of that impugned law but what the law itself provides. • It was therefore held that “the highest motives and the best of intentions are not enough to displace constitutional obstacles”

29. General Principles Of Constitutional Interpretation – BimpongButa • Lastly, but by no means the least, Bamford-Addo JSC in her dissenting opinion in New Patriotic Party v Attorney-General ( 31st December Case) (supra) was also of the view that public policy considerations cannot be used as a tool for constitutional interpretation just as public policy cannot be relied upon in interpreting statutes. The reason is that public policy is a vague and unsatisfactory term which may lead to uncertainty and error. When applied to the decision of legal rights, it is capable of being understood in different senses. Public policy has thus been described as a “very unruly horse.”