Kamal McPherson Cape Law Evaluate the rules of interpretation which guides judge’s in the interpretation of statutes or acts of Parliament and the presumption they applied in this process. To gain an explicit and profound competence of statutory interpretation and rules of statutory interpretation, they are few key elements and definition that must be referred to these concepts. Statutory interpretation is a source of law, which means, where laws are taken from to aid in the decision making process by the courts, and this is how the courts apply and interpret the legislations or acts of Parliament within a situation or a court case.
To aid in the Courts’ application of the law, rules of statutory interpretation have been created; they are literal rule, golden rule and mischief or purposive rule. These are rules used by the courts to interpret the meaning of an Act. They are necessary because the meanings of an Act can be unclear, among other things, and these “rules” are used to make a judge’s task of reaching a clear understanding of an Act, much easier. I must point out that interpretation by its very nature is creative and not something you can view with specifics and in one way but with the view of conceptualizing the dynamics that interpretation itself has.The dynamics of legal interpretation are such that an interpreter must go from a general view of the statute to specific evidence and then back to the general view. As such, interpretation can be defined as the art or process of determining the intended meaning of a written document, such as a constitution, statute, contract, deed, or will.
The interpretation of written documents is fundamental to the process and Practice of Law. Interpretation takes place whenever the meaning of a legal document must be determined.Lawyers and judges search for meaning using various interpretive approaches and rules of construction. Legal interpretation may be based on a literal reading of a document. For example, when john doe signs a will that names his wife, Jane Doe, as his Personal Representative, his intent to name her the administrator of his estate can be determined solely from the specific language used in the will. There is no need to consider the surrounding facts and circumstances that went into his choice.
When the intended meaning of the words in a document is not clearly expressed and some form of guessing is needed to determine the sense in which they have been used, mixed interpretations can happen. In such a case, the words express an individual’s intent only when they are correctly comprehended. If John Doe refers only to “my wife” in his will, the court will have to determine who his wife was at the time of his death. How a lawyer or judge ascertains intent when words are unclear is typically governed by rules of statutory interpretation.The statutes or acts of Parliament may part take of the general uncertainty inherent in the language. Some legislation is not easily interpreted nor understands because of the language construct it has been written in. Language itself is ambiguous. Enacted Laws, especially the modern Acts and Rules, are drafted by legal experts and it could be expected that the language used will leave little room for interpretation.
But the experience of all those, who have to bear and share the task of application of the law, has been different.It is quite often that we find courts and lawyers busy in unfolding the meaning of ambiguous words, expressions and resolving inconsistencies. The age old process of application of the enacted law has led to formulation of certain rules of interpretation. Words in any language are not scientific symbols having any precise or definite meaning, and language is but an imperfect medium to convey one’s thought, much less of a large assembly consisting of persons of various shades of opinion.It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. The function of the courts is only to expound and not to legislate. The numerous rules of interpretation formulated by courts are expressed differently by different judges and support may be found in these formulations for apparently contradictory propositions.
Language is not a precise tool.Reason being, words often take their meaning from the given context, words are an imperfect means of communication, words very often have more than one meaning i. e. they can be ambiguous, a broad term may be used in a statute which can give rise to confusion and uncertainty, there may be errors or omissions when the statute is drafted and last but not least new developments in society can make the words used in a statute out of date and they may no longer cover the current situation.
In order for consistency in interpreting the meaning of legislation, courts use specific rules in order to resolve ambiguity appearing in statutes.Those rules are known collectively as rules of statutory interpretation. Different rules of interpretation may be applied and depend upon the nature of the ambiguity and the content in which it arises.
They are three rules of interpretation that aid the courts’ application of the law, the literal rule, golden rule and mischief rule or purposive rule. The literal rule allows that the words and phrases in a statute should be given their ordinary and literal meaning and once the ordinary meaning is clear the court is obligated to apply it even if to do so would result in injustice.Judges may use the extrinsic aid of a dictionary to give words their ordinary meaning. Although there has been a general move away the literal approach in recent years, some judges prefer to start with this method and apply the ordinary meaning of the word wherever possible. A useful illustration of the literal rule in practice is provided by Baptiste –v- Alleyne (1970). The legislation under scrutiny in this case was the then Larceny Ordinance Act. The defendant was found outside a house with his hand through a window choking a female occupant.
He was charged and convicted of the offence ‘…found…in a building with intent…’ a provision of Section 29 (d) of the then Larceny ordinance allowed that for a person to be convicted of such an offence, there be clear and unmistakable evidence that he has been, as the section says, ‘found in’ the building. As such Mr. Justice of Appeal, Micheal de la Bastide posited “he cannot in the court’s view be said to have been found in the building on a literal meaning or ordinary interpretation of the words of section 29 (d) of the Larceny Ordinance.Therefore in this case the appeal was allowed, hence the conviction was quashed. Analyzing this case we can see how the literal rule is use to the effect of the defendant because taking the literal rule ordinary meaning and assumption which exhibited that once the act or legislation is explicitly understand then the court must apply it, but in this case the defendant was found “outside” the building and not as the intended legislation remedy to which is found “inside” in the building, resulting the case being quashed.The second rule of statutory interpretation is the golden rule. This rule provide that if the literal and ordinary meaning of the words of the statute give rise to ambiguity, repugnancy, inconsistency or absurd results which Parliament could not have intended, then the judge may substitute a reasonable meaning in light of the statute as a whole.
An example of how the golden rule was used to regulate the absurdity and repugnant result that would emanate from the literal rule being used is in the civil case of R v Sigsworth (1935). Facts revealed that a son had murdered his Mother.As such, the mother had not made a will but, as per rules in Administration of Justice Act 1925, her next of kin (her son-also her murderer) would inherit her respective possessions. No ambiguity in the wording of the Act, but the court refused to let a murderer benefit from his crime. As a result, the judge using his/her discretion to ensure that all is served in the course of justice held that the literal rule should not apply and the golden rule was used to avert a repugnant situation. The third rule of statutory interpretation is the mischief or purposive rule.
The literal and golden rule determines what Parliament said. The Mischief Rule is applied to what Parliament meant. The rule was laid down in Heydon’s Case (1584) and provides that judges when deciding cases must consider three factors: * 1. What was the common law before the statute was passed. * 2. What was the problem or “mischief”, the statute was trying to remedy.
* 3. What remedy Parliament was trying to provide. The mischief rule may be applied to ascertain the purpose for which the legislation was enacted, by going beyond the actual words used in the legislation.Courts are in a most difficult position in this regard as they do not pass the legislation which they are required to interpret and the court will strive for a sensible meaning to the statute where at all possible.
An example how the mischief rule is apply in statutory interpretation is in the case of Smith v Hughes (1960) Prostitutes charged with soliciting on the streets contrary to the Street Offences Act 1958. Defence made that they were inside a building and tapping on a window to attract men (thus not on the street).Despite such, the Court applied the Mischief Rule and found them guilty because the SOA Act 1958 was designed to prevent prostitution. The protections which common law principles of statutory interpretation accorded to are “fundamental rights and liberties”. Among other rebuttable presumptions that Parliament did not intend to: * invade common law rights; * restrict access to the courts; * abrogate the protection of legal professional privilege; * exclude the privilege against self incrimination; * interfere with vested property rights; * alienate property without compensation; * interfere with equality of religion; deny procedural fairness to persons affected by the exercise of public power. The presumptions are that Parliament is supreme, the highest and of highest importance, acts of parliament should not apply to a dispute/alleged if there was no act in place at the time of its occurrence to make the dispute/alleged crime wrong, acts of parliament cannot deprive individuals of their constitutional rights, acts of parliament should not contrast Int’l law. These are assumptions judges make, however, they must be examined within the context of respective cases.
Judges operate on the basis of these presumptions to ensure accurate interpretation of law.Judicial discretion is inherent in statutory interpretation. The legislature cannot craft statutes to govern every (in) action. Thus, for example, a legislature may prohibit, without exception, the willful killing of another, entrusting the judiciary with discretion to identify exceptions, like self-defense, that existed at common law at the time of the statute’s enactment. Moreover, when a statute is enacted, the legislature knows that its chosen language may bear more than one interpretation, entrusting the judiciary with discretion to identify the correct meaning of that inevitably ambiguous language.For these and other reasons, judges must exercise discretion when interpreting statutes.
The judges interpret the law, and they do this within the cultural context of respective societies. If for example, a strict or literal interpretation of an act may create civil disturbance. The judge will use his/her discretion to ensure that all is served in the course of justice. And the mischief rule as well as the golden rule give judges this discretion.