Home Letters The decision must be based on a legal principle
Please permit me to make a comment on the recent Court of Appeal ruling with regards to the Validity of the no-confidence motion. I make no claim to be an attorney- at-law or an expert on constitutional law. However, based on my schooling on the general principles of English and European Law as a certified Paralegal and Certified Legal Secretary, I do have a limited understanding of the interpretation of law.
Having listened attentively to the rulings of the judges that allowed the appeal, one can only conclude that in arriving at their decisions two things occurred: (a) the law was cast aside and a mathematical calculation became the basis for their decisions. (b) Words that do not appear in the Constitution were inserted to arrive at a particular outcome.
Judges make good and bad decisions all the time; hence the reason for appeal to a higher Court. In the meantime, we must respect the judges and abide by the majority decision until the pronouncement of the final court of appeal that the vote of no confidence motion was not properly passed by a majority i.e. 33 votes. This case has now been filed with the CCJ, Guyana’s final court of appeal.
Over a period of time, a number of generally recognised rules or cannons of interpretation have evolved by judges. Some of the most important ones are now mentioned, so that it may be determined as to whether the rules were given consideration in the recent Court of Appeal ruling.
The Mischief rule
Under this rule, the judge will look at the Act to see what its purpose was, and what mischief in the common law it was designed to prevent. (Heydon’s case 1583). Broadly speaking, this rule means that where a statute has been passed to remedy a weakness in the law, the interpretation which will correct that weakness is the one that will be adopted. The big question is whether there is any weakness in the situation that 33 is not the majority of 65. Our parliament is made up of 65 seats, which is an off-number.
The Literal rule
According to this rule, the working of the Act must be construed according to its literal and grammatical meaning, regardless of the result. It is therefore improper to include into the statute words that are not there in order to arrive at a particular outcome. Where the statute speaks of ‘majority’, it is highly improper to insert the prefix ‘simple’ and/or ‘absolute’. The same words of the statute must normally be construed throughout the Act in the same sense.
The Golden rule
This can be seen as an extension of the Literal rule. Under this rule, the words of a statute will, as far as possible, be construed according to their plain, ordinary and natural meaning, unless this leads to an absurd result. It is used by the courts where a statutory provision is capable of more than one literal meaning. This will cause a judge to select one which avoids any absurdity.
Expressio unius est exclusion alterius (The expression of one thing implies the exclusion of another)
Under this rule, where specific words are used and are not followed by general words, the Act applies only to the instances mentioned.
In addition to the major rules of interpretation, there are also several considerations which a judge will have in mind. The judge will concern himself/herself only with the wordings of the Act. He/she will not go to Hansard to look up reports of the debates during the passage of the Act.
In the handing down of a decision, a judge can make reference to a number of comments/situations and things in the “Obita”; however, the decision must be based on a legal principle. Obita dicta are things said in passing, and they do not have any binding force, but can be of a persuasive nature. The reason that Obita dicta are merely persuasive is because the prerogative of a judge in not to make the law by formulating and declaring it (that is for the legislature), but to make the law by applying it to cases coming before the court.
If the division of people and then rounding then up to whole persons within an odd number Parliament in Guyana can be upheld at the CCJ, then the law is indeed an ass.