Statutory Interpretation Lecture 2024-2025 (University of Guyana)

STATUTORY INTERPRETATION UNIVERSITY OF GUYANA FACULTY OF SOCIAL SCIENCES DEPARTMENT OF LAW LA 10A : LAW & LEGAL SYSTEMS OCTOBER 29TH 2024  BRIEF OVERVIEW (SOURCES OF LAW,...

STATUTORY INTERPRETATION UNIVERSITY OF GUYANA FACULTY OF SOCIAL SCIENCES DEPARTMENT OF LAW LA 10A : LAW & LEGAL SYSTEMS OCTOBER 29TH 2024  BRIEF OVERVIEW (SOURCES OF LAW, LEGISLATION AND LEGISLATION A SOURCE OF LAW)  THE RELATIONSHIP BETWEEN LEGISLATION AND ITS USE IN THE COURT: THE COURT AS AN INTERPRETER OF LEGISLATION.  STATUTORY INTERPRETATION.  WHAT ARE THE SOURCES OF LAW?  There are several types of sources of law in any particular legal system. These include (a) legal sources, (b) literary sources and (c) historical sources. The legal sources shapes and informs the legal system.  The legal source is the basis of the law’s validity and therefore it gives the law its authority. The identification of a legal source occurs after the process by which rules of conduct acquire the character of law, becoming objectively definite, uniform and enforceable.  The legal sources of law in the Commonwealth Caribbean are (a) the Constitution; (b) legislation; (c) the common law and judicial precedent; (d) custom; (e) international law, including the law of regional treaties; and (f) equity.  WHAT IS LEGISLATION?  According to Bentham and John Stuart Mill, “Legislation comprises both the legislative process and the law that emerges from it.” Legislation, or ‘hard law’ includes two main categories/types: primary legislation, (statute/acts of parliament) and subsidiary legislation (delegated legislation: regulations, orders, rules, bylaws, notices etc.). Autonomic legislation is a special type of delegated legislation  The functions of legislation can be categorized to include: law reform, filling the gaps found in other sources of law such as the common law or equity and creating, altering or revoking law to comply with the intention of the legislative body, public policy and civic groups et al.  LEGISLATION AS A SOURCE OF LAW Legislation is an important source of law in the Commonwealth Caribbean because:  Legislation encompasses all approaches to making laws, whether direct or indirect.  Legislation encompasses all expressions of the legislature’s will, whether making law or not.  The jurisdiction of courts are statutorily defined.  The legislation serves as the foundation for the rules of law promulgated by appropriate authorities.  Legislation is creative and dynamic. It can embody radical and new principles of law. It is an agency of law reform.  The principles of law that are derived from common law and equity are embodied in a statute.  Legislation is authoritative and its own legal source. It looks inward to itself and does not need to refer to other legal sources.  THE COURT AS AN INTERPRETER OF LEGISLATION  Bennion identifies the court as a type of interpreter who may interpret and even cross over into legislating. As a consequence judges seek to interpret legislation using statutory interpretation.  However deciphering the true intention of a statute may be complicated for various reasons. According to Gifford and Jeffery, “[d]ifficulties can arise in understanding an Act of Parliament because of a drafter’s oversight, a misprint, or even a mistake as to the law as it existed when the Act was made by Parliament….”  In these instances, case law and precedent are used as tools to understand and interpret the intention of parliament. STATUTORY INTERPRETATION  WHAT IS STATUTORY INTERPRETATION?  WHY IS STATUTORY INTERPRETATION IMPORTANT?  THE RULES OF STATUTORY INTERPRETATION?  THE RULES OF LANGUAGE, PRESUMPTIONS AND AIDS TO INTERPRETATION.  THE CARIBBEAN APPROACH TO STATUTORY INTERPRETATION.  What is statutory interpretation?  Statutory interpretation is, the interpretation of statutes which are enacted by the legislative arm of Government. Francis Bennion noted that the sole object of statutory interpretation is to arrive at the legislative intention.  Lord Reid in Black-Clawson International Limited v Papierwerke Waldhof- Aschaffenburg AG AC 591 that we “are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.” Bennion stated that there is no real distinction between “construe” and “interpret.” The interpreter of the statute “must arrive at the legal meaning.”  What is Statutory Interpretation?  Statutory interpretation is the prerogative of the courts.  Lord Wilberforce in the Black- Clawson case noted that : “It is the function of the courts to say what the application of the words used to particular cases or individuals is to be. This power which has been devolved upon the judges from the earliest of times is an essential part of the constitutional process by which subjects are brought under the rule of law - as distinct from the rule of the King or the rule of Parliament; and it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say.”  Why is Statutory Interpretation necessary?  Written laws may not always communicate the intention of the policy-maker in a clear, concise and unambiguous manner. Even if the drafter communicates the intention of the policymaker, the policy itself may be flawed because it infringes some constitutional or administrative law principle, or some rule of law.  In addition, Gifford and Jeffery, “difficulties can arise in understanding an Act of Parliament because of a drafter’s oversight, a misprint, or even a mistake as to the law as it existed when the Act was made by Parliament….” THE RULES/CANNONS OF STATUTORY INTERPRETATION.  RULES OF STAUTORY INTERPRETATION OVERVIEW  Generally, the courts in the Commonwealth have followed the principles of interpretation developed under the common law.  The basic rules of statutory interpretation have three approaches. The first approach is the traditional approach which includes the: literal, golden and mischief rules. The second approach is the contemporary approach which includes the: unified contextual approach, policy approach and the purposive approach. Finally, there is the Caribbean approach to statutory interpretation. These rules are complemented by the rules of language, the aids to interpretation and the presumptions.  In Maunsell v Olins AC 373, Lord Reid describes these rules in the following manner: “They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one “rule” points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’. THE TRADITIONAL APPROACH TO STAUTORY INTERPRETATION  The Literal Rule  As the supremacy of Parliament took root in the 18th and 19th centuries, the courts applied a very strict interpretation to the words used in legislation and promoted a literal approach to the interpretation of statutes. This rule is often the starting point for a judge, who will examine the express provisions of the law to determine whether the words used express the intention of Parliament.  The Literal Rule was best stated by Chief Justice Tindal in the Sussex Peerage Case (1844) 11 Cl & Fin 85: “…the only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.”  Literal Rule: Case Application  Old examples: 1836 UK case of R v Harris (1836) 7 C&P 446: Biting does not fall within the meaning of “stab, cut or wound” as those words implied the use of an instrument. See also Whiteley v Chappell (1868): The defendant was found not guilty of “impersonating [someone] “entitled to vote” when he impersonated a dead man, since a dead person is not “entitled to vote”. In Fisher v Bell 1 QB 394. The defendant had a flick knife displayed in his shop window with a price tag on it. Statute made it a criminal offence to 'offer' such flick knives for sale. His conviction was quashed as goods on display in shops are not 'offers' in the technical sense but an invitation to treat. The court applied the literal rule of statutory interpretation.  See the excessively narrow application of the literal rule in the Trinidad and Tobago case of Baptiste v Alleyne (1970) 16 WIR 437 where the accused was standing on the ground outside of a window with both hands inside the house. The Court of Appeal held that if a person is to be convicted of the offence of being ‘found in any building with intent …’, there must be clear and unmistakable evidence that the person has been, ‘found in’ the building. The conviction was quashed on a literal interpretation of the words “found in.”  The implications of the rule: R v Judges of the City of London Court 1QB 273 at p. 290 per Lord Esher: “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurd it.”  Literal Rule: Case Application See Baptiste v Alleyne (1970) 16 WIR 437 where the accused was found outside a house, with his hand through a window choking a female occupant. He was charged with the offence of being ‘found in any building with intent...’, and was convicted. He appealed against the conviction. The Court of Appeal found that if a person is to be convicted of such an offence, there must be clear and unmistakable evidence that he has been, as the section said, ‘found in’ the building. De la Bastide, JA, for the Court of Appeal, said: There was no such evidence in the instant case, for on a full and reasonable interpretation of the evidence which was that the appellant was standing on the ground outside of a window with both hands inside the house, he cannot in this court’s view be said to have been ‘found in the building’ on a literal meaning or ordinary interpretation of the words of s 29(d) of the Larceny Ordinance. The Court of Appeal allowed the appeal, quashing the conviction. The decision in Baptiste is consistent with a correct interpretation of the literal rule. See R v Ramsonhai and Duke (1961) 3 WIR 535  LITERAL RULE: ADVANTAGES AND DEFICIENCIES  The Rule is deemed advantageous because it restricts the role of the judge, provides no scope for judges to use their own opinions or prejudice, upholds the separation of powers and it recognises Parliament as the supreme law maker.  However, the Literal Rule has been criticised for the following reasons:  Judges have tended to emphasise the literal meaning of statutory provisions without giving due weight to their sense or meaning in a wider context.  Note Professor Rosemarie Bell-Antoine’s comments on the literal rule. Narrow concentration on actual words to the exclusion of surrounding circumstances avoids other statutory interpretative aids. She also notes that the assumption that words have plain, ordinary meanings apart from their context is based on a false premise, as demonstrated in the case law.  Also note the views of the Law Commission of England in their Report on The Interpretation of Statutes (Law Com No 21, 1969) para 29, “[T]o place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsman can always choose words to describe the situations intended to be covered by the provisions which will leave no room for a divergence of opinion as to their meaning.”  Reliance on the Literal Rule also ignores the limitations of language.  AN ENLIGHTENED APPROACH TO THE LITERAL RULE  In the Bahamian case of Betts and Others v Chief of Police BS 1991 SC 36, Chief Justice Gonsalves-Sabola affirmed that an “intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”  Savarin v William (1995) 51 WIR 75 at 77, Civil App No 7 of 2001, para 10, giving the rule more latitude and credibility by utilising a contextual approach. Floissac stated: I start with the basic principle that the interpretation of every word or phrase of a statutory provision is derived from the legitimate intention in regard to the meaning which that word of phrase should bear. That legislative intention is an inference drawn from the primary meaning of the word or phrase with such modifications to that meaning as may be necessary to make it concordant with the statutory context.  The Law Reform Commission of Ireland, in its Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC-CP 14-1999) para 1.006, reinforces the view that it is now generally recognised that the literal approach must be tempered by at least some flexibility in order to avoid an application of a statutory provision by a court which would be absurd or unreasonable. ‘Thus, not only are ‘artificial or anomalous constructions to be avoided … [but] where two possible constructions present themselves, the more reasonable one is to be chosen.’ Further, Professor Antoine suggests that a modern expression of the literal rule requires judges to ascribe the literal meaning to words used in a statute, but they must not do so to the exclusion of other relevant factors. Factors may include the contentious nature of the words used and the context of their use.  THE GOLDEN RULE  Described as a rule of common sense in Barnes v Jarvis 1 WLR 649 at p. 652, the golden rule is invoked where the literal rule would produce an absurd and unreasonable result not intended by Parliament. In such a case, the judge can substitute a reasonable meaning in light of the other provisions in the statute. Words will be implied into a statute if they are absolutely necessary.  The golden rule, also known as Lord Wensleydale’s Golden Rule, is described by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61: “…that in construing…statutes…the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary meaning sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”  THE GOLDEN RULE : CASE APPLICATION  R v Allen (1872) LR 1 CCR 36 The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage. The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.  Re Sigsworth 1 Ch 98 A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. The court applied the Golden rule holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing.  Adler v George 2 QB 7. Under the Official Secrets Act 1920 it was an offence to obstruct a member of the armed forces 'in the vicinity' of a prohibited palace. The defendant was actually in the prohibited place, rather than 'in the vicinity' of it, at the time of obstruction. The court applied the golden rule. It would be absurd for a person to be liable if they were near to a prohibited place and not if they were actually in it. His conviction was therefore upheld.  GOLDEN RULE : DEFICIENCIES.  The rule contemplates that errors or omissions were made only in the language and does not attempt, in a fundamental way, to go behind the words used or should have been used in the statute.  Absurdity is a concept no less vague and indefinite than ‘plain meaning’. See the remarks of Michael Zander in his book “The Law Making Process”: “[O]ne can never know whether a particular conclusion will be so offensive to the particular judge to qualify as an absurdity and if so, whether the court will feel moved to apply the golden rule rather than the literal rule’.  The golden rule, like the literal rule, avoids the utilisation of other aids such as parliamentary debates to discover Parliament’s true intention, yet it allows changes to Parliament’s words.  The alteration of the actual words of a statute can be viewed as a usurpation by non-elected judges of the legislative function of Parliament.  Despite its shortcomings, the courts still refer to the golden rule as a means of modifying the stringent application of the literal rule.  The Golden rule or judicial law making?  Edwards J, in Jalousie v The Labour Commissioner and Attorney General of St Lucia No 2004/1998, decided 26 July 2006 (HC, St Lucia) at p 6 explained:  ‘The other relevant rule of English statutory interpretation, allows a judge to read in words which he/she considers to be necessarily implied by words which are already in the statute. The judge has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligent, absurd, totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.’ He continued: ‘The line between judicial legislation, which our law does not permit, and judicial interpretation in a way best designed to give effect to the intention of Parliament is not an easy one to draw... before our courts can imply words into a statute the statutory intention must be plain and the insertion not too big or too much at variance with the language used by the legislature.’  THE MISCHIEF RULE  The mischief rule was articulated in the 16th century in Heydon’s Case (1584) 3 Co. Rep 7 before the advent of the concept of the supremacy of Parliament and reflected a system in which legislative intervention to address a “mischief” or “defect” in the common law was an exception rather than the rule. Heydon’s case required judges to consider the following:  (a)What was the common law position before the written law was passed? The laws that Parliament passed were generally declaratory of the common law and were measured against what was already established by the courts in their decisions.  (b)What was the mischief or defect for which the common law did not provide? Bennion describes a legal mischief as “a condition which constitutes a defect in the law, or is regarded by Parliament as constituting such a defect. Either the law is defective in not providing, to the fullest extent possible for statute law, a remedy for a corresponding social mischief (or alleged social mischief), or there is a purely legal defect in the law without a corresponding social mischief.”  (c) What remedy did Parliament provide to cure the mischief or defect? How is the new legislative provision going to fix the defect in the existing law?  (d)What was the true reason for the remedy? Are there gaps in the existing law?  MISCHIEF RULE : CASE APPLICATION  In Smith v Hughes 1 WLR 830 the defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public. The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place.  In Royal College of Nursing v DHSS 2 WLR 279 the Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses. The court held that it was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.  In DPP v Bull QB 88 Divisional Court of the Queen's Bench Division a man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a 'common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution'. The magistrates found him not guilty on the grounds that 'common prostitute' only related to females and not males. The prosecution appealed by way of case stated. The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes. See also Corkery v Carpenter 1 KB 102 and Elliot v Grey 1 QB 367.  THE MISCHIEF RULE DEFICIENCIES  The reborn mischief rule was described by Lord Reid in the Black Clawson Case AC 591 at p. 614: “The word ‘mischief’ is traditional. I would expand it this way. In addition to reading the Act you look at the facts presumed to be known to Parliament … and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act. The broad view of the mischief rule has been accepted in Commonwealth Caribbean courts. In Bailey v Daniel (1910) 1 T&T Sup Ct R. 379, the court held that – “… the true meaning [of a statute] is to be found, not merely from the words of the Act, but from the cause and necessity of its being made, which are to be ascertained not only from a comparison of its several parts, but also from extraneous circumstances.”  Criticisms of the mischief rule:  Where is the court to look to identify the mischief?  The broad view of the Mischief Rule, although useful, may not be as liberal as it first appears. However, Lord Diplock, while advocating a broader approach in Black-Clawson, did not clarify how far the court is allowed to look.  In practice, the rule remains rather inward-looking and there are limits placed on the ‘extraneous’ factors (e.g. Hansard reports) which cannot be used to discern Parliament’s intention. STATUTORY INTERPRETATION: CONTEMPORARY APPROACHES  THE PURPOSIVE APPROACH  The purposive approach to statutory interpretation seeks to look for the purpose of the legislation before interpreting the words. As Professor Antoine noted, “the courts are willing to use a variety of rules in a single case and are not confined to a single rigid rule. Flexibility in substance is seen in their drive to examine many more indices of Parliament’s intention.”  Advantages of the purposive approach It is a flexible approach which allows judges to develop the law in line with Parliament's intention (eg Maunsell v Olins) It allows judges to cope with situations unforeseen by Parliament (eg Quintavalle) It allows the law to develop to cover advances in medical science (eg Quintavalle) and it allows reference to Hansard makes it easier for the courts to discover Parliament's intention (Pepper v Hart)  Criticisms of the purposive approach: 1. Although the approach may lead to justice in individual cases, it makes the law less certain. 2. Filling in gaps in the law by the courts leads to judicial law-making. 3. Although a broad interpretative approach may cover more situations, it makes it a little more difficult to discover the intention of Parliament.  THE PURPOSIVE APPROACH  In Pepper (Inspector of Taxes) v Hart AC 593, Lord Browne-Wilkinson referred to the “purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature.”  Lord Simon explained the purposive approach in Maunsell v Olins AC 373 'The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language.’  UNIFIED CONTEXTUAL APPROACH  The courts are being urged to adopt a unified contextual approach to interpretation. Under this approach greater prominence is given to the context of words used in a statute. The essential components of the approach are as follows:  the judge must first give effect to the ordinary or, where appropriate the technical meaning of the word.;  if the judge finds that the primary meaning of the words produces injustice, absurdity, anomaly, or contradiction, then he may move on to consider other possibilities.  A judge may also include words necessarily implied by the words in the statute or exclude or alter words. THE CARIBBEAN APPROACH TO STATUTORY INTERPRETATION  THE CARIBBEAN  The local circumstances rule – The local circumstances rule provides an exception to the general reception of law doctrine and allows the court to deviate from previous UK statutory interpretation where local conditions which are different to those which obtain in the UK exist in the jurisdiction at hand. Pollock v Manitoba 2006 DLR LEXIS 322 : A statute must be interpreted in the context of the common law in which it was enacted.  Special approaches to interpreting constitutions. The Constitution is a special form of legislation. It is to be expected that the general rules of interpreting statutes will apply to Constitutions: Pinder v R (2002) 61 WIR 13.  SPECIAL APPROACHES TO INTERPRETING CONSTITUTIONS  The courts have carved out special rules of construction which apply to Constitutions. These rules or approaches are in keeping with the special character of the Constitution which mandate a sensitivity to the underlying values, ideals and philosophy of that instrument. These include:  The presumption that legislation is intra vires the Constitution: A presumption of constitutionality attaches to Commonwealth Caribbean Constitutions. This presupposes that Parliament does not act arbitrarily or overreach its powers or boundaries beyond what is acceptable as good constitutional governance. Legislation is presumed to be constitutional. In order to rebut the presumption their Lordships would have to be satisfied that no reasonable member of the Parliament who understood correctly the meaning of the relevant provisions of the Constitution could have supposed that [the law enacted] was reasonably required for the protection of any of the interests referred to, or in other words, that Parliament was either acting in bad faith, or had misinterpreted the provision of the Constitution under which it purported to act : Hinds v R AC 195, at p 224.  See AG v Caterpillar Americas Co (2000) 62 WIR 135 at p 148. Where legislation is found to be ultra vires the consitution it will be struck down.  SPECIAL APPROACHES TO INTERPRETING CONSTITUTIONS.  The purposive construction of Constitutions: It is now well-established that Commonwealth Caribbean Constitutions are to be interpreted purposively, bringing to life the important aims, objectives and values of the Constitution as a living social instrument. The grounding principle in pro-rights cases is that a Constitution is a unique instrument which must be interpreted in the light of the ideals and principles which ground it. The courts should give life to the meaning of the Constitution by interpreting it in a broad and purposive manner. The underlying presumption of such an instrument is that the State, through its legislature, intends to secure the broadest spectrum of rights to its citizens.  In the case of Minister of Home Affairs v Fisher (1979) 44 WIR 107 the Privy Council affirmed that a purposive and generous approach should be adopted in interpreting the Constitution, avoiding the ‘austerity of tabulated legalism. Their Lordships also emphasised that Constitution should be interpreted with ‘less rigidity... than other Acts.’ ‘The Constitution could be treated as ‘sui generis, calling for principles of interpretation of its own, suitable to its character... without necessary acceptance of all of the presumptions that.are relevant to legislation of private law.’  THE CARIBBEAN: SPECIAL APPROACHES TO INTERPRETING CONSTITUTIONS.  Treating with Saving law or existing law clauses. The provision in issue must be interpreted in conjunction with the saving law clauses. The Constitution itself often allows severability of offending legislation so as to bring it into conformity with the Constitution.  See Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana CCJ 30 (AJ) Justice Saunders reiterated, “Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest” This Court was therefore not precluded by the savings law clause from testing section 153(1)(xlvii) for its compatibility with the Constitution.  THE CARIBBEAN: SPECIAL APPROACHES TO INTERPRETING CONSTITUTIONS.  International law influences on the constitution as an aid to interpretation. International human rights norms have impacted Commonwealth Caribbean jurisprudence, particularly in relation to human rights.  See Attorney General v. Joseph, CCJ 1 (AJ) and Quincy McEwan, Seon Clarke, Joseph Fraser, Seyon Persaud and the Society Against Sexual Orientation Discrimination (SASOD) v The Attorney General of Guyana CCJ 30 (AJ). RULES OF LANGUAGE , PRESUMPTIONS AND AIDS TO INTERPRETATION.  RULES OF LANGUAGE  Ejusdem generis literally means “of the same kind or species”. Ejusdem Generis- This rule says that general words which follow two or more particular words in an Act must be confined to a meaning of the same class (ejusdem generis) as the particular words. See Powell v Kempton Park Racecourse Co AC 143.  Expressio unius est exclusio alterius- Another important rule of language seeks to exclude by implication that which is not specifically mentioned in the description of a class of things. Muir v Keay (1875) LR 10 QB 594  Noscitur a sociis- This rule states that words derive colour and meaning from those which surround them. For example, in Pengelly v Bell Punch Co Ltd, the word ‘floors’ in the phrase ‘floors, steps, stairs, passages and gangways’ which were required to be kept free from construction, was held not to apply to part of a factory floor used for storage rather than passage.  Mandatory versus directory-Certain words used in a statute may raise the question whether they impose strict requirements or whether they allow latitude. The words ‘shall’ and ‘may’ have often fallen into contention in this manner. To determine whether the statute is mandatory or directory we must look to the subject matter, consider the importance of the provision to the general subject intended to be secured by the Act.  PRESUMPTIONS  The presumption against changes in the common law.  The presumption against ousting the jurisdiction of the courts.  The presumption against altering existing rights.  The presumption that persons should not be penalised except under clear law.  The presumption against the retroactive operation of statutes.  The presumption that ordinary statutes do not bind or affect the Crown.  The presumption toward fairness and justice.  The presumption of constitutionality.  The presumption that a later statute repeals the former.  The presumption where provisions within a statute conflict.  The presumption against contradicting ratified international treaties where they do not conflict with domestic law.  AIDS TO INTERPRETATION: INTRINSIC AIDS AND EXTRINSIC  A judge may consult a wide range of material when he seeks to give meaning to the words in a statute. These materials are referred to as ‘aids to interpretation.’ Aids to statutory interpretation are divided into internal aids and external aids. These are sometimes referred to as intrinsic aids and extrinsic aids to interpretation.  Internal aids: Internal aids are those contained in the statute itself and consist of Internal aids- The long title; The Preamble; The short title; Headings; Marginal or side notes; and Punctuation.  External aids: Some of these aids may be found outside of the statute. These include dictionaries, text books, academic writings, Law Commission Reports, Hansard. Previously reference to Hansard was not allowed by the courts : Davis v Johnson 2 WLR 553. However, this position was changed in: Pepper (Inspector of Taxes) v Hart AC 593. Other external aids include dictionaries, judicial precedent, statutes in pari materia, and statutory instruments.  TAKE AWAY!!!!  Generally, the courts in the Commonwealth have followed the principles of interpretation developed under the common law.  The basic rules of statutory interpretation have three approaches. The first approach is the traditional approach which includes the: literal, golden and mischief rules. The second approach is the contemporary approach which includes the: unified contextual approach, policy approach and the purposive approach. Finally, there is the Caribbean approach to statutory interpretation.  These rules are complemented by the rules of language, the aids to interpretation and the presumptions. QUESTIONS!