There is such a thing as what the intent of the framers of the 1999 constitution was/is....in other to get that, in rules of statutory interpretation, you must consider the whole and indeed sometimes extraneous records, we operate a a principle of stare decisis and it is settled in the case of Fawehinmi v IGP (2002) NWLR page 606, held that the group under immunity can be investigated but not prosecuted till the end or their tenure. If the investigation is hobbled by a free access to account, then it freeze does not breach the intent and spirit of the immunity clause. The purport of the constitution and indeed law is not and cannot be to aid and abet criminal acts, it is ultimately to emancipate the people and create social justice. You have to take the constitution together with case law and of course other statute to obtain coherence of purpose.....I will below open up a discourse on statutory interpretation by copying and pasting copiously below.
"The term statutory interpretation refers to the action of a court in trying to understand and explaining the meaning of a piece of legislation. Many cases go to appeal on a point of interpretation, Indeed, Lord Hailsham, a senior English judge, once said that “probably 9 out of 10 cases heard by the Court of Appeal and the House of Lords turn upon or involve the meaning of words contained in statute or secondary legislation.”
Why is this the case? First, laws must be drafted in general terms and must deal with both present and future situations. Often, a law which was drafted with one particular situation in mind will eventually be applied to quite different situations. A classic example is the UK Criminal Justice Act, part of which was originally designed to curb illegal warehouse parties but which was later used to crush demonstrations, often involving people from very different backgrounds to those attending the so-called raves.
Legislation is drawn up by draftsmen, and a draftsman’s capacity to anticipate the future is limited. He may not foresee some future possibility, or overlook a possible misinterpretation of the original intentions of the legislation. Another problem is legislation often tries to deal with problems that involve different and conflicting interests.
Both legal and general English contain many words with more than one meaning. In fact, some of the terms in TransLegal’s Legal English Dictionary have seven or more distinct definitions. With this being the case, even the best drafted legislation can include many ambiguities. This is not the fault of the draftsman, simply a reflection of the fact that where people look at a text from different points of view they will naturally find different meanings in the language used.
Judges in England generally apply three basic rules of statutory interpretation, and similar rules are also used in other common law jurisdictions. The literal rule, the golden rule and the mischief rule. Although judges are not bound to apply these rules, they generally take one of the following three approaches, and the approach taken by any one particular judge is often a reflection of that judge’s own philosophy.
The Literal Rule
Under the literal rule (also: the ordinary meaning rule; the plain meaning rule), it is the task of the court to give a statute’s words their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v Sirs (1980) said “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application.” The literal rule is often applied by orthodox judges who believe that their constitutional role is limited to applying laws as enacted by Parliament. Such judges are wary of being seen to create law, a role which they see as being strictly limited to the elected legislative branch of government. In determining the intention of the legislature in passing a particular statute, this approach restricts a judge to the so called black letter of the law. The literal rule has been the dominant approach taken for over 100 years.
The Golden Rule
The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey v Pealson (1857), Lord Wensleygale said : “The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further.”
One example of the application of the golden rule is the case of R v Allen – Defendant is charged with bigamy, an offence prohibited in Offences Against Persons Act 1861 which reads “whoever is married, marries another commits bigamy.” The court held that the word “marries” need not mean a contract of marriage as it was impossible for a person who is already married to enter into another valid contract of marriage. Hence, the court interpreted it as “going through marriage ceremony”.
The Mischief Rule
The final rule of statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854): “…for the sure and true interpretation of all statutes in general, four things are to be discerned and considered:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?
4. The true reason of the remedy; and then the office of all the judge is always to make such construction or shall suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
This system of relying on external sources such as the common law in determining the true intention of the parliament is now seen as part of the purposive approach, the approach generally taken in the civil law jurisdictions of mainland Europe. Although the literal approach has been dominant in common law systems for over a century, judges now appear to be less bound by the black letter of the law and are more willing to try to determine the true intention of the Parliament. The task of the judge is now seen as being give effect to the legislative purpose of the statute in question.
As well as these three rules of interpretation, there are a number of rules that are held to apply when determining the meaning of a statute:
1. The statute is presumed not to bind the Crown
2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law)
3. They do not interfere with legal rights already vested
4. They do not oust the jurisdiction of the courts
5. They do not detract from constitutional law or international law
Finally, there are a number of intrinsic (=interal) and extrinsic (=external) aids to statutory interpretation."
No comments:
Post a Comment