statutory presumptions
DESCRIPTION
A compilation if presumptions in Statutory Construction, compiled and comprehensively explained by UC COL 1-D students.TRANSCRIPT
[LIST OF PRESUMPTIONS IN STATUTORY CONSTRUCTION]
Atty. Nestor MondokProfessor, Statutory Construction
COLLEGE OF LAWUNIVERSITY OF THE CORDILLERAS
A.Y 2014 - 2015UNIVERSITY OF THE CORDILLERAS College of Law Baguio City
Law 1D
Prepared by:
Abnasan, Janine GraceAliping, Vreneli Nadine C.
Balad, Vincent A.
Balderas, Danika Blin M.
Baluyan, Frances Janina F.
Bañez, Rochelle Nerie S.
Bangliten, Miraldine
Baon, Kenneth Jay J.
Basto, Allan Patrick T.
Boyongan,Joyce
Cadiogan, Sarah
Cardama, Francis Pauline B.
Catubig ,Angelique
Dizon, Katherine T.
Galingana, Chevilyn
Gaudia, Elyzzar Ralph
Leal,Mary Grace T.
Lubbong,Jackie Rose G.
Lumawig,Tere Rose L.
Manaligod, Antonio C. III
Manalo, Niko Martin D.
Marquez, Princess Karina M.
Mindaro, Christian
Pablo, Esmael G.
Puyoc, Miracquel P.
Reyes, Carla Joyce B.
Salvador, Kathleen Allysa V.
Sigabu, Arcel
Ventura, Maria Teresita R.
Waggay, Fidencio P. III
Zabala, Jan Carla
RESUMPTIONS OF LEGISLATIVE INTENTION
TABLE OF CONTENTS
A. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY INTERPRETATION RELATING TO PUBLIC AND LEGAL POLICY
L 1 PRESUMPTION AGAINST CONFLICT WITH INTERNATIONAL LAW
L 2 PRESUMPTION AGAINST EXTRA-TERRITORIAL OPERATION
L 3 PRESUMPTION THAT STATUTE LAW PROMOTES THE PUBLIC INTEREST
L 4 PRESUMPTION OF CONSTITUTIONALITY
L 5 GENERAL PRESUMPTION IN FAVOUR OF THE LIBERTY OF THE INDIVIDUAL
L 6 PRESUMPTION AGAINST BINDING THE SOVEREIGN LEGISLATIVE POWER OF PARLIAMENT IN THE FUTURE
L 7 GENERAL PRESUMPTION AGAINST THE DELEGATION BY CONGRESS OF ITS LEGISLATIVE POWERS
l 8 PRESUMPTIONS AGAINST DELEGATION BY CONGRESS OF CERTAIN OF ITS LEGISLATIVE POWERS
l 8.1 Presumption against the undue delegation of legislative powers
l 8.2 Presumption against delegation of Congress’ taxing powers (“No Taxation Without Representation”)
l 8.3 Presumption against delegation of Congress’ penal powers
l 8.4 Presumption against delegation of Congress’ power to abridge individual rights
l 8.5 Presumption against delegation of Congress’ power to exempt any person or class of persons from compliance with its laws
L 8.6 Presumption against delegation of Congress’ power to enlarge or restrict the State’s eminent domain or to diminish the public domain
L 9 PRESUMPTION IN FAVOUR OF EQUALITY OF TREATMENT
L 10 PRESUMPTION AGAINST RETROSPECTIVITY
L 11 PRESUMPTION AGAINST PREJUDICING VESTED RIGHTS
l 12 PRESUMPTION AGAINST OUSTING, RESTRICTING OR ENLARGING THE JURISDICTION OF THE COURTS
l 12.1 General presumption against ousting or restricting the jurisdiction of the superior courts of inherent jurisdiction
l 12.2 Presumption against expanding or varying the jurisdiction of the courts
l 12.3 Assignment of exclusive original jurisdiction over certain matters to certain authorities or inferior courts, tribunals or executive authorities
L 12.4 Disallowing appeals on the merits of a case
l 13 PRESUMPTIONS RELATING TO THE EXERCISE OF STATUTORY POWERS
l 13.1 Presumption against delegation of statutory functions generally.
l 13.2 Presumption against delegation of delegated lawmaking powers
l 13.3 Presumption that, statutory powers, including the exercise of a regulation making power, must be exercised intra-vires the enabling statute
L 13.4 Presumption against non-prescription of statutory fees and that statutory fees should be reasonable.
l 14 PRESUMPTIONS RELATING TO OFFENSES AND PENALTIES
l 14.1 Presumption against doubtful penalization and in favour of the liberty of the individual.
l 14.2 Presumption against punishment for offense without prior conviction
l 14.3 Presumption that mens rea is a requirement for criminal liability
l 14.4 Presumption against reversing the onus of proof in criminal cases.
l 14.5 Presumption that penalties ought to be proportionate to the offense
l 14.6 Presumption against mandatory penalties
l 14.7 Presumption against double penalization for the same actus reus.
l 14.8 Presumption that criminal penalties are no bar to civil remedies or disciplinary proceedings.
l 14.9 Presumption that powers of search and detention of persons and property to be exercised under warrant
l 14.10 Presumption in favour of the privilege against self-incrimination and against disclosure of privileged communications
l 14.11 Presumption against immunity from prosecution.
l 14.12 Presumptions about the prosecution and punishment of corporate bodies
l 14.13 Presumption about compounding of offenses and condonation of statutory breaches
L 14.14 Presumption about contracts entered in violation of the criminal law
L 15 PRESUMPTION AGAINST INJUSTICE AND UNREASONABLENESS
L 16 PRESUMPTION IN FAVOUR OF NATURAL JUSTICE OR DUE PROCESS
L 17 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND ABSURD OR ANOMALOUS RESULTS
L 18 PRESUMPTION THAT THE LAW IS A COMPLETE SYSTEM WITHOUT LACUNAE
L 19 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND TO ALTER THE EXISTING LAW MORE THAN IS NECESSARY
L 20 PRESUMPTION AGAINST THE STATE BEING BOUND BY STATUTE.
L 21 PRESUMPTION AGAINST BLANKET IMMUNITY FROM CIVIL SUIT.
L 22 PRESUMPTION AGAINST BLANKET INDEMNITY
l 23 OTHER PRESUMPTIONS RELATING TO PUBLIC AND LEGAL POLICY
l 23.1 The presumption of Omnia rite etc.
l 23.2 Presumption about validity of acts of employees of the State where the validity of their title to office is questioned (de facto officers’ doctrine)
l 23.3 The presumption of In bonampartem
l 23.4 Presumption that taxation statutes will be interpreted against the fiscus
l 23.5 Presumption that statutory rights override conflicting private common law ones,
l 23.6 Presumption of the validity of statutes
l 23.7 Presumption in favour of the severability of statutory provisions to save validity
l 23.8 Presumption against ignorance of the law
l 23.9 Presumption of legal incapacity on the part of certain classes of persons
l 23.10 Presumption against monopolies.
l 23.11 Presumption that the courts must take judicial notice of certain facts
l 23.12 Presumption that “costs follow the event”
l 23.13 Cost recovery for remedial action undertaken by public authorities not to be presumed
L 23.14 Presumption about the destination of public moneys.
B. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 1 GENERAL RULES AND PRESUMPTIONS ABOUT THE MEANINGS OF WORDS AND PHRASES
l 1.1 A word or expression is presumed to have the same meaning wherever it appears in an enactment.
l 1.2 Different words in a statute are to be given different meanings.
l 1.3 Presumption that the Legislature intends that words are to be given their ordinary dictionary meaning.
l 1.4 Presumption that the legislature is aware of the existing judicial interpretation given to words and provisions.
l 1.5 The presumption Omnemaius in se minus continet
l 1.6 The Expressiouniusestexclusioalterius Rule.
l 1.7 The Eiusdem Generis (“Of the same kind”) Rule.
l 1.8 The Reddendosingulasingulis Rule
l 1.9 Presumption about gender.
L 1.10 Presumptions about peremptory and directory statutory provisions
l 2 PRESUMPTIONS CONCERNING THE COMMENCEMENT AND TERMINATION OF STATUTES
l 2.1 Presumption that the legislature intends its laws to commence on the date of their promulgation
l 2.2 Presumption that a statute once enacted will have effect until repealed by Congress
l 2.3 Presumption about continuity where a statute is repealed and substantially re-enacted.
l 2.4 Presumption against the continuance or of repealed statutory rights
l 2.5 Presumption of validity of things done under a repealed statute prior to its repeal
l 2.6 Presumption about repeal of repealing statute
L 2.7 Presumption about suspensive amendments
l 3 PRESUMPTIONS CONCERNING THE CONFLICT OR HARMONY OF STATUTES AND STATUTORY PROVISIONS
l 3.1 Presumption against the repugnance of statutes and statutory provisions
l 3.2 Presumption favouring later over earlier conflicting statutes.
l 3.3 Presumption favouring specific over general statutes.
L 3.4 Presumption favouring primary over secondary statutes.
l 4 PRESUMPTIONS CONCERNING THE USE OF INTRINSIC AND EXTRINSIC STATUTORY MATERIAL TO ASCERTAIN THE MEANING AND INTENTION OF THE LEGISLATURE
l 4.1 The Cardinal Principle.
l 4.2 The Golden Rule.
l 4.3 Presumption in favour of contextual interpretation.
l 4.4 Priority of intrinsic over semi-extrinsic (peripheral) matter in a statute.
l 4.5 Use of matter extrinsic to a statute for purposes of disambiguation.
l 4.6 Presumption about statutes in pari materia.
L 4.7 Use of legislative history and legislative antecedents as aids to statutory interpretation
l 5. PRESUMPTIONS CONCERNING STATUTORY TIME-LIMITS, STATUTORY RIGHTS OF APPEAL AND STATUTORY DISCRETIONS
l 5.1 Presumption that generally time limits in statutes are mandatory
l 5.2 Presumption that where a right of appeal is given by statute against the exercise of a Statutory power, such appeal suspends such exercise until the determination of the appeal
L 5.3 Presumption that a statutory discretion requires an objective (i.e. judicial) construction
l 6. PRESUMPTIONS RELATING SPECIFICALLY TO CORPORATE BODIES AND TRUSTS (STATUTORY OR NON-STATUTORY) AND EMPLOYMENT
l 6.1 Presumption that a “person” includes a juristic person.
l 6.2 Presumption against “piercing the corporate veil”
l 6.3 Presumption of strict liability for breach of corporate statutory duties.
l 6.4 Presumption about validity of acts of members of statutory bodies
l 6.5 Presumptions about the property of statutory corporations
l 6.6 Presumption that statutory corporations are autonomous in relation to the State
l 6.7 Presumption against continuity of statutory bodies or authorities
l 6.8 Presumption that a decision of a statutory body requires the votes of an absolute majority of the members of that body
l 6.9 Presumption that members or directors of statutory or private corporate body are not employees of that body
l 6.10 Presumptions about statutory and implied powers of statutory corporate body
l 6.11 Powers of investment of surplus funds of statutory corporate body not to be inferred
l 6.12 Presumptions with respect to statutory trustees
L 6.13 Presumption about suspension of employees
l 7 OTHER PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 7.1 The Mischief Principle.
l 7.2 Presumption that th legislature intends the courts to apply a purposive construction to a statute
l 7.3 Presumption that the repeal of a statute involves also the repeal of any subsidiary legislation made under it.
l 7.4 General presumption that a person may act through an agent
l 7.5 Presumption against continuity of statutory bodies or authorities.
l 7.6 The Casus Omissus presumption.
l 7.7 Presumption about rules of evidence
l 7.8 Presumption against the continuity of State pensions and terminal benefits
RELATED PRESUMPTIONS-
BASIC PRESUMPTIONS OF LEGISLATIVE INTENTION
The language of statutes is seldom unambiguous, and the courts frequently have to decide which of two possible interpretations was intended by the lawmaker. In such cases the courts will have regard to various rules or presumptions to guide them in ascertaining the lawmaker’s intention.
The following are some of the more important common rules and presumptions employed by our courts in the interpretation of enactments. Drafters should always bear them in mind and raise and discuss them where necessary in the course of consultations during the drafting of legislation. The rules and presumptions are generally classifiable under two headings, namely, (a) presumptions of legislative intention and rules of statutory interpretation relating to public and legal policy and (b) presumptions of legislative intention and rules of statutory interpretation that are intrinsic to statutory texts.
General Nature of Presumptions
They are not reflections which are capable of determining the construction of the Act once it has been passed, unless there is something that one can lay hold of in the context of the Act which justifies the introduction of the exception sought for. Merely to say that Congress cannot be presumed to have intended to bring about a consequence which many people might think to be unjust is not, a principle of construction for this purpose. In point of fact, whatever innocence of view may have been allowable to the lawyers of the 18th and 19th centuries, the 20th century lawyer is entitled to few assumptions in this field. It is not open to him to ignore the fact that the Legislature has often shown indifference to the assertion of rights which Courts of Law have been accustomed to recognize and enforce and that it has often excluded the authority of Courts of Law in favor of other preferred tribunals. [per Lord Radcliffe] Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956)
A. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY INTERPRETATION RELATING TO PUBLIC AND LEGAL POLICY
l 1 Presumption against conflict with international law
If a statutory provision is ambiguous, the courts will favor the interpretation that is in compliance with international law. Note, however, that remains valid even if it conflicts with a rule of international law, unless the rule of international law has been incorporated into our law by or under an Act of Congress.
Where an international treaty has been approved by Congress and ratified by the President in accordance with the Constitution, the presumption in favor of compliance with International law operates as follows:
1 Where the international treaty is domesticated and the statute in question conflicts with it, the statute is invalid to extent that it conflicts with the treaty.
2 Where the international treaty is not domesticated but is partially or wholly self-executing, and the statute in question conflicts with it, the statute is invalid to the extent that it conflicts with the self-executing part of the treaty.
In certain rare cases where an international obligation is not embodied in any treaty or, if so embodied, is not approved by Congress and ratified by the President in accordance with the Constitution, or is not domesticated, a statute may still be held to be overridden by such an obligation if it is part of customary international law e.g. the prohibition of genocide, slavery and torture. (see Ex Parte Simon Mann, 2007 (ZHC)).
A rule of legal interpretation whereby domestic law is read, wherever possible, consistently with international law and comity.
Presumption that a statute will not be interpreted so as to violate a rule of international law or obligation.
It requires the courts to seek an interpretation of a statute that will not make domestic law in conflict with international law.
Presumption of Compatibility with International Laws
This presumption of compatibility with international obligations was stated by Henchy J. as follows:
"one must assume that the statute was enacted (there being no indication in it of a contrary intention) subject to the postulate that it would be construed and applied in consonance with the State's obligations under international law, including any relevant treaty obligations."
This was raised in O Domhnaill v Merrick where it is concerned with the interpretation of sections of the Statute Limitations. In this case, the Supreme Court considered whether the stipulation of Article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms that cases should be heard "within a reasonable time" affected the meaning of the Statute
"a statute must be construed, so far as possible, so as not to be
inconsistent with established rules of international law and ... one should avoid a construction which will lead to a conflict between domestic and international law."
? The 1987 Philippine Constitution (Section 2, Article II) provides that
“The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
? This shows that even our country follows the international law and from time to time, also adopts laws and principles that are internationally accepted.
l 2 Presumption against extra-territorial operation
There is a strong presumption that all the laws of a State apply only within its own territory. If the State wishes to legislate extra-territorially, especially for its citizens abroad, it must insert an express provision to this effect in the Bill. Extra-territorial legislation by subsidiary legislation is never to be countenanced unless specifically authorized by the Act under which the subsidiary legislation is made. Desirably, extra-territorial legislation should respect the principle of reciprocity, including in the case where extra-territorial offenses and penalties are legislated (this is because it is usually impossible to secure the extradition of your citizens from a country in which the extra-territorial conduct in question is not a crime).
l 3 Presumption that statute law promotes the public interest
This presumption (embodied in the Latin maxim sales populi suprema lex est) tells us that if a statute can be interpreted in two ways, one that favours an individual or sectional interest and another that favors the public interest, the latter will prevail. However, this presumption does not override individual rights except to the extent of any derogation allowed by the Bill of Rights (e.g.public order, public health etc) or where a state of emergency is declared (S v. Posel 1977 45A 475(N); S V De Castro 1979 2 SA 1(A) 23-24)
l 4 Presumption of constitutionality
If an enactment is capable of two meanings, one of which would render it unconstitutional, the court will assume that the lawmaker intended the enactment to conform with the Constitution. If an enactment is challenged in court on the ground that it contravenes the Declaration of Rights in the Constitution, the onus
is on the challenger to prove that it is unconstitutional (Zim Township Developers (Pvt) (Ltd) v Lou’s Shoes Pvt Ltd 1983 (2) ZLR 376).
The presumption arises in almost every constitutional democracy where the constitution is the supreme law of the land. An Act of Congress is presumed to be constitutional until the contrary is shown. Further if a provision is capable of two meaning, with one of the possible interpretations falling within the meaning of the constitution while others do not, it will be presumed that the legislature intended to act constitutionally and that one possible meaning within the constitution will be adopted.
l 5 General presumption in favor of the liberty of the individual
All persons have the “residual freedom” to do anything that is not expressly prohibited by law and not transgressive of any other person’s freedom. In most constitutional and democratic systems the primary bearers of rights are individual citizens, and Bills of Rights and Freedoms are generally framed in accordance with that principle. Almost any exercise of State power, whether through the Executive, the Legislature or the Judiciary, may potentially abridge or infringe a person’s life, freedom or property; accordingly, no such exercise is reasonably justifiable in a democratic society except under the clear terms of a law. One of the ways in which this presumption operates in the field of statutory interpretation is the “Doubtful Law Principle”, namely that “doubtful laws do not bind” (Lexdubia non obligat). The laws referred to in this maxim are those that are mandatory in character or that infringe upon a person’s residual freedom in any way. If such a law is framed in an intractably ambiguous way, the courts will generally choose the interpretation that favours the residual liberty of the individual. This principle informs many other presumptions listed here, including especially the presumptions referred to in paragraphs 8.4, 11,14 and 15.1.Some rights and freedoms are considered so essential to individual liberty that they are specifically enshrined in the Bill of Rights embodied in different countries’ Constitution/laws as follows:
1 Provisions safeguarding the right to personal liberty, or, to put it negatively, safeguarding against detention without trial, or deportation. Derogations from these provisions are not to be countenanced except on the following grounds allowed by the Constitution:
2 in consequence of a person’s unfitness to plead to a criminal charge or in execution of the sentence or order of a court, with respect to a criminal offense of which he or she has been convicted;
3 in execution of the order of a court punishing a person for contempt of that court or of another court or tribunal or in execution of the order of the Congress punishing him or her for a contempt;
4 in execution of the order of a court made in order to secure the fulfillment of an obligation imposed on a person by law (for example, civil imprisonment to enforce a matrimonial maintenance award or other debt);
5 for the purpose of bringing a person before a court in execution of the order of a court or an officer of a court or before the Congress in execution of the order of the Senate or the House of Assembly;
6 upon reasonable suspicion of his having committed, or being about to commit, a criminal offense;
7 for the protection and promotion of the right to health of the people and instill health consciousness among them;
8 if a person is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his or her care, treatment or rehabilitation or the protection of the community; or
9 for the purpose of preventing a person’s unlawful entry into the territorial jurisdiction of one’s country or for the purpose of effecting his or her expulsion, extradition or other lawful removal from the territory or the taking of proceedings relating thereto.
10 The right to freedom of speech or expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with one’s correspondence. Derogations from this right are not to be countenanced except on the following grounds allowed by the Constitution (and even then, they must be of such a character as not to offend against what is “reasonably justifiable in a democratic society”):
11 A person’s freedom of expression may be curtailed by his or her own consent, or as a consequence of the exercise of parental discipline over a child or other person under guardianship.
12 Limitations in the interests of defense, public safety, public order, the economic interests of the State, public morality or public health;
13 Limitations for the purpose of—i Protecting the reputations, rights and freedoms of other
persons or the private lives of persons concerned in legal proceedings;
ii preventing the disclosure of information received in confidence;
iii maintaining the authority and independence of the courts or tribunals or the Congress;
iv regulating the technical administration, technical operation or general efficiency of telephony, telegraphy, posts, wireless
broadcasting or television or creating or regulating any monopoly in these fields;
v preventing (in the case of correspondence) the unlawful dispatch therewith of other matter:
1 The freedom of expression of public officers may be curtailed in the interests of upholding public confidence in the civil and uniformed services of the country.
2 Limitations curtailing the exercise of a person’s freedom of expression in or on any road, street, lane, path, pavement, side-walk, thoroughfare or similar place which exists for the free passage of persons or vehicles.
3 The right of free assembly and association, that is to say, a person’s right to assemble freely and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his or her interests. This right encompasses the right not to be compelled to belong to an association. Derogations from this right are not to be countenanced except on the following grounds allowed by the Constitution (and even then, they must be of such a character as not to offend against what is “reasonably justifiable in a democratic society”):
4 Limitations in the interests of defense, public safety, public order, public morality or public health;
5 Limitations for the purpose of protecting the rights or freedom of other persons;
6 Limitations in connection with the registration of companies, partnerships, societies or other associations of persons, other than political parties, trade unions or employers’ organizations;
7 The freedom of assembly and association of public officers may be curtailed in the interests of upholding public confidence in the civil and uniformed services of the country.
8 Limitations curtailing the exercise of a person’s freedom of freedom of assembly and association in or on any road, street, lane, path, pavement, side-walk, thoroughfare or similar place which exists for the free passage of persons or vehicles.
9 The right to freedom of movement, that is to say, the right to move freely throughout the state, the right to reside in any part of the country, the right to enter and to leave the state and immunity from expulsion from the country. Derogations from this right are not to be countenanced except on the following grounds allowed by the Constitution (and even then, they must be of such a character as not to offend against what is “reasonably justifiable in a democratic society”):
10 Limitations for the imposition of restrictions on the freedom of movement of persons generally or any class of persons that are
required in the national interest, or in the interests of defense, public safety, public order, public morality, public health, the public interest or the economic interests of the State;
11 for the imposition of restrictions on the acquisition or use of land or other property of the government;
12 for the imposition of restrictions by order of a court on the movement or residence within the country of any person or on any person’s right to leave —
i in consequence of a person having been found guilty of a criminal offense under the law or for the purpose of ensuring that he or she appears before a court for trial for such a criminal offense or for proceedings preliminary to trial;
ii for proceedings relating to a person’s extradition or lawful removal from the territory; or
iii for the purpose of ensuring that he appears before a court as a witness for the purposes of any criminal proceedings;
1 for the imposition of restrictions on the movement or residence within the country of any person who is neither a citizen nor regarded by virtue of a written law as permanently resident in the state; or whether or not he or she is married or related to another person who is a citizen of or permanently resident in the state;
2 for the imposition of restrictions by order of a court on the right of any person to leave the country that are required for the purpose of ensuring that he or she appears before a court or other adjudicating authority as a party or a witness or to secure the jurisdiction of the court or other adjudicating authority for the purposes of any civil proceedings; or
3 for the imposition of restrictions on the residence within Communal Land of persons who are not traditionally resident therein, to the extent that such restrictions are reasonably required for the protection of the interests of persons who are traditionally resident therein or their well-being;
4 Proposals of a discriminatory nature on grounds of race, religion, sex, etc. (section 23 of the Constitution)(as to which see Presumption A.14.9);
Presumption that Fundamental rights cannot be taken away by general words of statute.
Under the principle of legality, it is presumed that Congress does not intend the abrogation of fundamental rights and freedoms (Brennan, 2010). "Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. in the absence of express language or necessary implication to the contrary ,
the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual"
l 6 Presumption against binding the sovereign legislative power of Parliament in the future
The Constitution assigns to Congress almost absolute sovereignty in the legislative sphere as the supreme lawmaking body. Any restraint upon that sovereignty can only be effected by the Constitution itself. Accordingly no law may purport to bind, restrict or prohibit the exercise of the legislative power of Congressional in the future, whether during an existing Congress or in any future Congress, by, for example, specifying that a law, whether enacted by Congress or by an authority delegated by Congress, cannot be repealed or amended, or that a future law on a particular subject cannot be enacted by Parliament (however “Sunset Clauses”, which relate to the demise of an existing law and which Congress is not expressly forbidden to amend or repeal, are permissible)
l 7 General presumption against the delegation by Parliament of its legislative powers
Under the Constitution and the doctrine of the separation of powers, Congress is the primary lawmaking body. However, Congress (or the Constitution) can through an Act delegate some of its lawmaking powers to the Executive Branch (usually a President or some other specified body or authority) and also to the Judicial Branch (empowering the judiciary to frame rules of court). The delegation of lawmaking powers to the Executive Branch happens very frequently nowadays, particularly on matters of detail for which it would not be practicable to make extensive provision in the enabling Act. Such a power can never be inferred. It must be expressly legislated in the Act, and the Act must specify some parameters within which the Minister or other delegated lawmaker must operate when enacting delegated legislation. Even then, Congress’s power to delegate its lawmaking function is not an unqualified one, as the next presumption will show. Theoretically, every delegated lawmaker is ultimately accountable to Congress for the manner in which the delegated lawmaking power is exercised, either directly accountable indirectly accountable through the President who administers the Act under which that power was delegated.
l 8 Presumptions against delegation by Parliament of certain of its legislative powers
The power of Parliament to delegate its lawmaking function is quite broad, but is subject to greater restriction or even excluded altogether in the following cases.
l 8.1 Presumption against the undue delegation of legislative powers
A not infrequent instance of what might be “undue delegation” in this respect is the delegation to the Executive of the power to amend an Act of the Congress. This kind of provision is known historically as a “Henry VIII clause”, because it was much used or abused during the reign of King Henry VIII in the early part of 16th Century England. Congress, parliament in this case at that time was very much under the shadow of the Executive, to such an extent that it was persuaded or intimidated into passing many laws containing a clause to the effect that the President could, by simple proclamation, alter anything in that law whatsoever. In this way the President practically usurped the lawmaking power of Congress. Nowadays this practice is usually confined to empowering a President to amend by statutory instrument a Schedule to an Act, but in such cases, to prevent abuse of the President’s powers, the drafter should make provision in the Act concerned for the statutory instrument to be confirmed by a “positive” resolution or “negative” resolution of Congress. There is also a presumption against the Congress delegating its power to repeal its own statutes, even where the statute in question has lapsed through obsolescence (see Presumption B.2.2). This presumption may be overturned by a provision included in the statute (known as a “sunset clause”) declaring in what circumstances a statute shall be deemed to be repealed without Congress having to repeal the statute itself. Sometimes a sunset clause may take the form of a provision empowering a President to repeal the statute by statutory instrument.
l 8.2 Presumption against delegation of Congress’s taxing powers (“No Taxation Without Representation”)
The principle of “No Taxation Without Representation” is a fundamental principle of democracy grounded in the doctrine of the “separation of powers”. It applies equally at the national and local government level. Although it is not expressly written into our Constitution, it is a well-established and widely recognized principle in all countries deriving their
constitutional traditions from the parliamentary model of democracy (see, for example, City Treasury & Rayes Collection, Newcastle TC v Shaikjee 1983 (1) 506 SA; “The power to impose or vary taxation is, in general, too important to be delegated by Congress” (de Smith, Constitutional and Administrative Law, 3rd Edition, p. 328).
No statutory instrument can impose a charge or levy in the nature of a tax unless the making of such a statutory instrument is specifically authorized by an Act of Congress: even then, a drafter should insist upon—
1 including a provision in the enabling Act for the statutory instrument to be confirmed by a “positive” or “negative” resolution of Congress; or
2 specifying in the enabling Act that no such statutory instrument that is made and published shall come into effect until it has been confirmed by Congress by means of an express provision in the next Finance Act.
Note that a “tax” should be distinguished from a “fee”: the latter denotes a charge for some item or service provided to the payer, and a statutory instrument imposing fees does not normally require Parliamentary confirmation. No fee may, however, be imposed by statutory instrument unless the imposition is specifically authorized by the enabling Act.
l 8.3 Presumption against delegation of Parliament’s penal powers
No statutory instrument can impose criminal or civil liability upon a person unless the imposition and the extent of the imposition is specifically authorized by the enabling Act.
8.4 Presumption against delegation of Congress’s power to abridge individual rights
Allowable derogations from the rights and freedoms of individuals that are enshrined in the Bill of Rights must be spelt out in the statute itself and not left to be determined by a President or other official or delegated lawmaker by statutory instrument, general notice or administrative action.
l 8.5 Presumption against delegation of Congress’s power to exempt any person or class of persons from compliance with its laws
Such exemptions and the extent to or circumstances under which they may be granted must be spelt out in the statute itself and not left to be determined by a Minister or other official or delegated lawmaker by
statutory instrument, general notice or administrative action. In addition, the allowable exemptions must not be such as to conflict with the presumption in favor of equality of treatment discussed in Presumption A.9 below.
l 8.6 Presumption against delegation of Congress’s power to enlarge or restrict the State’s eminent domain or to diminish the public domain
A power bestowing upon the State, a statutory corporation or other arm of the State a power of enlarging the State’s eminent domain (that is, to compulsorily acquire private property for public purposes) cannot be inferred but must be expressly granted by or under the authority of an Act of Congress. Conversely,
1 the exemption of any private property from the scope of the State’s eminent domain; or
2 any diminution or alienation of immoveable property belonging to the State, a statutory corporation or other arm of the State, whether or not vesting by virtue of the exercise of the State’s eminent domain cannot be inferred but must be expressly granted by or under the authority of an Act of Parliament.
l 9 Presumption in favor of equality of treatment
This presumption may also be expressed negatively as the presumption against arbitrary discrimination or differentiation. The “presumption of equality before the law” is another positive way of describing it.The lawmaker is presumed to intend to treat everyone affected by its laws on the basis of equality. All persons are equally liable to the obligations imposed or rights conferred by statute. This presumption is reinforced by the law, which prohibits discrimination on the grounds of race, tribe, place of origin, political opinions, color, creed, physical disability, sex or gender. If a law proposes to discriminate on any of these grounds, the discriminatory provision must fall under one of the derogations from this safeguard. One of these derogations is that affirmative discrimination on the basis of sex and race is permissible to redress past discriminatory laws and practices.
l 10 Presumption against retrospectivity
Observance of the presumption against retrospectivity is a fundamental principle of our law. So far as possible, legislation should not be given retrospective effect.
“It is wrong in principle to change the character of past acts and transactions which were validly carried out upon the basis of the then existing law.”
If the lawmaker intends an enactment to have retrospective effect, then that must be stated expressly and clearly in the enactment. However, penal provisions can never be given retrospective effect, even by Congress itself. In regard to subordinate legislation, only Congress has the power to legislate retrospectively or to authorize retrospective legislation, so that retrospective operation of the provisions of subsidiary legislation is never to be countenanced unless specifically authorized by the Act under which the subsidiary legislation is made. An exception to the general presumption against retrospectivity is that alterations in the form of procedure can operate retrospectively unless there is some good reason why they should not.
Presumption against retrospective legislation
In the absence of expressed provision, to the contrary no statute is presumed to operate retrospectively. The legislator is presumed to legislate only for the future.
l 11 Presumption against prejudicing vested rights
Somewhat related to the foregoing presumption is the presumption against interfering with existing rights. Many, perhaps most,new statutes interfere in some way or another with existing rights. In order for the interference with existing or vested rights to be lawful—
1 the interference or the authority to interfere is imposed by Congress itself through its; and
2 The extent of the interference is prescribed by the Act of Congress or, if prescribed by a delegated lawmaker, the limits within which the delegated lawmaker may interfere must be defined by the Act; and
3 the nature of the prescribed interference must be clear and unambiguous; and
4 the application of the statute’s requirements must be expressly extended to those whose existing or vested rights will be affected, or at least must be necessarily implicit.
For example, a statute that requires all hotels to be registered which is enacted in accordance with condition 1 may (subject to the fulfillment of conditions 3 and 4) lawfully interfere with an existing hotel-keeper’s right to continue to operate without any formality of registration or other interference by the State. That is to say, the statute’s requirements are clear and unambiguous (condition 3), and must explicitly or by necessary implication apply to existing hotel-keepers.
However, a requirement under a regulation made in terms of that statute which compels hotel-keepers to make and keep certain records that may be time-consuming and expensive, will probably not be upheld by the courts, unless the statute under which that regulation is made specifically empowers a regulation to be made compelling hotel keepers to make and keep the records in question (condition 2). Furthermore, interference with vested rights “by necessary implication” will probably not be allowed by the courts if the exercise of the rights in question is not inherently contrary to public policy*, and interference is not occasioned by the need to remedy some immediate public mischief. Thus, persons who lawfully practiced a trade or profession before the enactment of a statute requiring practitioners of any such trade or profession to be registered, will not be required to register unless the statute in question specifically adverts to the need for such persons to register. Even where there is no intention to interfere with vested rights, It is often desirable, “for the avoidance of doubt” or “out of an abundance of caution”, to include express words to the effect that the statute does not interfere with vested rights.
l 12 Presumption against ousting, restricting or enlarging the jurisdiction of the courts
l 12.1 General presumption against ousting or restricting the jurisdiction of the superior courts of inherent jurisdiction
It is impossible under our constitutional system to entirely oust the jurisdiction of the courts of inherent jurisdiction (that is to say the High Court and the Supreme Court) by any provision contained in an Act of Congress in view of the constitutionally protected right of every individual to be afforded the protection of the law.
In addition, the Supreme Court is given jurisdiction under the Constitution to hear the application of any person who alleges that the Declaration of Rights has been- is being or is likely to be, contravened in relation to him or her. However, it is possible by means of primary legislation to delay or qualify the operation of the inherent jurisdiction of the superior courts by one or both of two means, namely, assignment of exclusive original jurisdiction over certain matters to certain authorities or inferior courts or tribunals and disallowing appeals on the merits of the case (see sub-items 12.3 and 12.4 below))
Presumption that statutes should not be construed so as to oust the jurisdiction of superior courts.
In order to oust the jurisdiction of the court of law, it must be clear that such was the intention of the legislature. In a constitutional democracy like Philippines, the presumption has little relevance. The Constitution provides every person to the protection of the law and for an independent judiciary. Therefore any statute purporting to oust jurisdiction of the court will be declared unconstitutional.
Further, our courts are all creatures of statutes.
l 12.2 Presumption against expanding or varying the jurisdiction of the courts
Conversely, additional jurisdiction cannot be conferred on courts of limited jurisdiction except by Act of Congress. Nor can additional jurisdiction be conferred on the Supreme Court or the other Appellate Courts, as the case maybe by way of bypassing the established route that all criminal or civil cases, reviews and appeals must take (for instance, by legislating that any specific class of cases, appeals or reviews must bypass the Appellate Courts and proceed directly to the Supreme Court, or that a matter ordinarily within the jurisdiction of a magistrates court must originate in the Appellate Courts), except by express and unambiguous provision in an Act of Congress.
l 12.3 Assignment of exclusive original jurisdiction over certain matters to certain authorities or inferior courts, tribunals or executive authorities
Exclusive original jurisdiction in respect of certain matters of a civil nature may be assigned to special courts (for instance, the Labor Court has exclusive original jurisdiction over all labor matters), or to an established court of limited jurisdiction which ordinarily would not have had the jurisdiction to adjudicate that matter or even to an executive authority (for instance, a Minister, official or statutory body), but such jurisdiction must be specially conferred by Act of Congress, and the scope of the jurisdiction of such a court or authority must be stated in the Act in precise and unambiguous terms. The assignment of such original jurisdiction cannot derogate from the final appellate jurisdiction of the Supreme Court, nor from the ultimate review jurisdiction of the High Court. With respect to the latter, the High Court, in relation to matters not connected with the Declaration of Rights, has under the common law inherent review jurisdiction to review the exercise of any statutory, administrative, judicial or other official action on the grounds of review set in section.
1 The absence of jurisdiction on the part of the court, tribunal or authority concerned;
2 Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned;
3 Gross irregularity in the proceedings or the decision of the court, tribunal or authority concerned.
The power of review on the grounds above outlined cannot be ousted by any statute.
l 12.4 Disallowing appeals on the merits of a case
It is possible by Act of Congress to legislate that a decision of a special court, court of limited jurisdiction or executive authority is “final” in the sense that the decision is not subject on appeal to an adjudication of its merits, but to scrutiny on the grounds of review alone. However, in order to do this
1 The kinds of decisions in question must be described in express and unambiguous terms in an Act of Congress; and
2 The Act of Congress must ensure that due process is observed in arriving at the decision; and
a It must be expressly or implicitly clear from the Act of Cingress that a review of the decision in question is not excluded; and
1 Especially in the case where an executive authority makes the decision, gross unreasonableness of the decision must be allowed as an additional ground for reviewing the decision in question.
2 Presumptions relating to the exercise of statutory powers
? The presumption that statutory powers must be exercised reasonably
l 13.1 Presumption against delegation of statutory functions generally
Where Congress by statute has assigned the exercise of specified functions, powers and duties to a specified official, that official alone must exercise those functions except to the extent that Congress in the same statute allows the official to delegate the same to another person. This principle is embodied in the Latin maxim: delegatus non potestdelegare
l 13.2 Presumption against delegation of delegated lawmaking powers
Where Parliament has delegated to a person or body the power to make regulations, by-laws, rules, etc. such person or body must not delegate the exercise of that power to another person or authority, or, at any rate, must expressly approve the regulations, by-laws, rules, etc. before they come into force.
l 13.3 Presumption that, statutory powers, including the exercise of a regulation making power, must be exercised intra-vires the enabling statute
This presumption cannot be overturned. A provision of subsidiary legislation (a statutory instrument) is said to be ultra vires (“beyond the powers”) of the enabling Act under which it is made, and will be declared invalid by the courts, if that provision:—
• exceeds the powers which the enabling legislation expressly or by necessary implication conferred on the person who made the subsidiary legislation; or
• purportedly overrides any provision of the enabling Act or any other Act, unless the enabling Act expressly authorizes such overriding.
Note in particular the following points:—
• A power to raise revenue is not to be presumed, so for example a local authority that has power to cause animal carcasses to be inspected does not, in the absence of authority, have power to charge a fee for inspection.
• A power to impose penalties is not to be presumed (see presumption A.8.3 above)
• A power to regulate and control does not include the power to prohibit altogether; this does not mean that “subsidiary legislation with regulation alone as its authorized purpose must be untainted by any element or measure of prohibition”, but rather “the crucial question about such legislation is not whether it contains a prohibition affecting the activity liable to to be regulated, but whether any ban embodied in it has such a character and extent that the activity itself has been substantially prohibited” (S. V. Perumal 1977 (1) SA 526 (N))
• There is a presumption against the power to delegate, which is expressed in the maxim delegatus non potestdelegare. It means that a person or authority to whom a power has been delegated by statute may not, in the absence of an express or necessarily implied power to do so, delegate that power to anyone else.
A provision of an Act of Congress may also be held to be ultra vires the Constitution, which is the supreme law.
l 13.4 Presumption against non-prescription of statutory fees and that statutory fees should be reasonable
A power to levy fees for services provided under a statute must be express, and the fees themselves should be prescribed by statutory instrument and not be excessive, that is to say, must not incorporate any
element of profit. The requirement of reasonableness as to the level of statutory fees is necessitated by the fact that the Government often has a monopoly over the services that it provides to the public.
l 14 Presumptions relating to offences and penalties
l 14.1 Presumption against doubtful penalization and in favor of the liberty of individual
“Nobody suffers a detriment by the application of a doubtful (penal) law”. This presumption is the negative expression of the positive presumption in favor of the liberty of the individual in a democratic society. It is also a restatement in different terms of the principle of nulla poene sine lege, that no person’s life, freedom or property may be put in jeopardy except under the clear terms of a law that existed at the time the alleged offence was committed. For this reason, penal statutes will be very strictly construed. It is almost impossible to secure a conviction for an offence which is vaguely framed. The criteria for avoiding the presumption are set out in Mullins v. District Judge Harnett and Others 1997/346 JR:—
1 There must be express language for the creation of an offense2 Words setting out the offense must be strictly interpreted3 Fulfillment of the letter of the statutory conditions precedent to the
infliction of its punishment is required.4 There must be insistence on a strict observance of technical
provisions concerning criminal procedure and jurisdiction
l 14.2 Presumption against punishment for offense without prior conviction
The mere prescription by law that specified conduct is criminal does not suffice to put a person’s life, freedom or property in jeopardy: a person may only be deprived of these things after due process of law, that is, after trial and conviction by a court of law in which the case against the accused person is proved beyond a reasonable doubt. See in this respect item 3.3 of the Drafting Office Manual.
l 14.3 Presumption that mens rea is a requirement for criminal liability
This means that there is an unassailable presumption* against imposing absolute liability in criminal cases, i.e. liability even where the accused person can prove any or all of the following circumstances (the first two relating to mens rea, the last to voluntariness)—
• The absence of intentional wrongdoing; and• The absence of negligent wrongdoing; and • That his or her conduct was compelled by a human or natural
agency beyond his or her control
However, the presumption does not prevent Congress from legislating a strict liability offense (that is, an offense imposing liability for the slightest degree of negligence, the disproof whereof lies on the accused). According to State v Zemura 1973 (2) RLR 357 (A), the courts may even interpret a statutory offense to be a strict liability offense, if:—
1 requiring proof of a mental element for that offense would render the detection or prosecution of the offense impossible or practically impossible; and
2 the offense’s object would be defeated if proof of a mental element were to be required; and
3 the penalty for the offense is not mandatory imprisonment or imprisonment without the option of a fine.
Nevertheless, in deference to the principle against doubtful penalization, drafters must not to allow so important a matter to be hostage to judicial interpretation. If the legislator intends to create a strict liability offense, this must be made clear by the use of express words contained in a provision such as the following:—
• in a case (introductory clause to the legal action)“Unless the accused person proves beyond a reasonable doubt [or on a balance of probabilities, depending on how strictly the legislator wishes to frame the liability]that he or she took every reasonable precaution [to prevent the occurrence of the act or omission constituting the actus]”.
• Stipulating a defense of due diligence* in a sub clause of the clause containing the offense, i.e. ) “A person is not guilty of the offense specified in subsection (1) if he or she proves beyond a reasonable doubt [or on a balance of probabilities, depending on how strictly the legislator wishes to frame the liability] that he or she took the following precautions [to prevent its occurrence of the act or omission constituting the actus]
In addition, strict liability offenses are generally only appropriate for the acts or omissions of corporate persons, unless there are compelling public policy reasons for making individuals liable for such offenses.
The presumption that mens rea (legal intention) is required in statutory crimes:
There is a presumption in favor of mens rea – that is, even if the statute is silent as to mens rea the courts will assume that some is required unless there is evidence to the contrary; can be rebutted by express wording in the statute or by necessary implication; is stronger where the offense is truly criminal – as opposed to merely regulatory. Factors such as the stigma attaching to a conviction and the penalty imposed will be significant there; may be rebutted by the subject matter of the offense, for example where the prohibition relates to a grave social danger or matter of public concern; is less likely to be rebutted where there is little evidence that the imposition of strict liability will help to achieve the aims and objectives of the legislation.
Presumption of Intent means a permissive presumption that a criminal defendant who intended to commit an act did the act. For example, where a defendant along with two codefendants was found guilty of felonious possession of burglarious tools and implements with intent to commit a felony, conviction will be imposed on no proof of a crime or an attempt to commit a crime. Therefore, the court's view that no proof of a crime or an attempt to commit a crime was necessary was proclaimed on a statutory presumption of intent to commit a felony.
l 14.4 Presumption against reversing the onus of proof in criminal cases
This presumption (also referred to as the “presumption of innocence”) is codified in the laws. Some sections section allow exceptions to this safeguard “to the extent that the law in question imposes upon any person charged with a criminal offense the burden of proving particular facts” (whether relating to mens rea or the actus reus), especially with regard to facts within the exclusive knowledge of the person concerned. Where it is desirable to shift the onus of proof in the manner allowed by the Constitution, the drafter must do so in the clearest terms. Furthermore, it is often desirable (depending on the context) to add that the person may discharge this onus “on a balance of probabilities” to avoid any suggestion that the onus must be discharged “beyond a reasonable doubt”. Reversing the onus of proof in subsidiary legislation is never to be countenanced unless specifically authorized by the Act under which the subsidiary legislation is made. See in this respect item 3.4 of the Drafting Office Manual.
l 14.5 Presumption that penalties ought to be proportionate to the offense
Drafters must endeavor to ensure that the maximum penalty for any offense (in terms of the fine and period of imprisonment) must represent the appropriate penalty for the most aggravating occurrence of the offense in question. Even though courts have a discretion to impose any lesser sentence than the maximum which the statute allows (except in the case of mandatory penalties), penalties must not, on the face of them, be such as to “induce a sense of shock”. If a lower court imposes the statutory maximum penalty in relation to an offense whose factual details do not appear to justify such penalty, an appellate court will most likely find such a sentence to be in violation of section 15(1) of the Constitution, which bans “inhuman or degrading punishment”:
l 14.6 Presumption against mandatory penalties
Mandatory penalties may offend against the doctrine of the separation of powers if they completely remove from the judiciary the power to exercise a discretion on the imposition of penalties However, this presumption can be overturned by statute under certain specified conditions: see S v Arab 1990 (1) ZLR 253.
l 14.7 Presumption against double penalization for the same actus reus
See State v Gabriel 1970 RLR 251. This presumption is also known as the principle against double jeopardy, which states that no person shall be in jeopardy of being tried for and convicted of the same offense more than once. However, civil liability is not excluded by the penalization of the same actus reus.
l 14.8 Presumption that criminal penalties are no bar to civil remedies or disciplinary proceedings
The imposition of a statutory criminal penalty for an offense shall not be construed to deprive an injured person of the right to recover from the offender civil damages sustained by reason of the offense. Similarly, if the offender is a member of a disciplined force or a statutory professional body which also punishes the act for which the offender has been convicted, such conviction is no bar to proceedings by the force or body in question. This presumption holds even where the offender is acquitted by
the criminal court, because the degree of proof is different in the civil court or disciplinary authority i.e. proof on a balance of probabilities.
? Presumption that when a person is deprived of his property, compensation will be paid
When a statute deprives a person of property, there is a presumption that compensation will be paid. Unless so stated it is presumed that an Act does not interfere with rights over private property.
As stated in Article 17 of the Universal Declaration of Human Rights (UDHR) enshrines the right to property as follows:
1 Everyone has the right to own property alone as well as in association with others.
2 No one shall be arbitrarily deprived of his property.
Thus, in connection with the Presumption of Compatibility with International Laws, it is also deemed pre-set that when a person is deprived of his or her property, compensation will be supplementary.
l 14.9 Presumption that powers of search and detention of persons and property to be exercised under warrant
Where an enactment confers a power on the police or any other official to enter and search premises or to search persons, or to seize any thing, document or article found during the search, or to arrest or detain persons, it is to be presumed (in the absence of the consent of the person affected by the power) that such power is exercisable only after obtaining a warrant from a court or Justice of the Peace issued upon reasonable suspicion that an offense has been, is being or is about to be committed. An Act of Congress may permit warrantless, seizures and detentions on certain specified grounds (see item 5 of Checklist of Substantive Drafting Requirements).
l 14.10 Presumption in favor of the privilege against self-incrimination and against disclosure of privileged communications
Where an enactment confers a power on the police or any other official to question any person, whether in the course of an authorized search of a premises or after the detention of a person or during a public hearing or other formal inquiry, the privilege against self-incrimination and the privilege against disclosure of inter-spousal and attorney-client communications may be successfully invoked by the person subjected to
questioning, even where the statute expressly penalizes the refusal to answer any questions, unless the statute also expressly excludes such privileges. However, the legislature should never exclude such privileges except on compelling public policy grounds (which must be justified by reference to any one or more of the derogable grounds allowed by the Bill of Rights, that is, the interests of defense, public safety, public health, public morals or public order or on some other specified derogable ground allowed by the Bill of Rights). Even then, it is questionable whether evidence obtained through the statutory exclusion of the privilege against self-incrimination can be used in a criminal trial of the person who answered any questions to his or her personal prejudice.
l 14.11 Presumption against immunity from prosecution.
Complete and unqualified impunity is contrary to public policy and cannot be countenanced. Accordingly, immunity from criminal prosecution will never be inferred by the courts. Such an immunity can only be:—
a legislated by Act of Congress in the form of :iii a “statutory amnesty” (if relating to past criminal acts only);oriv a “statutory immunity” properly so-called (if it covers
specified criminal conduct prospectively as well as, or to the exclusion of, past criminal acts); or
a granted by way of a Presidential (or constitutional) amnesty (or “pardon”);
A statutory amnesty must:—
1 be unambiguously expressed by the Act of Congress conferring the amnesty;
2 not relate to conduct already adjudicated in a criminal court; and3 relate to past acts only, not future ones (this requirement also applies
to a pardon); and4 be so framed that, in relation to the specified person(s) or classes of
persons, and in the specified circumstances, the amnestied conduct is not deemed to be criminal conduct and therefore not subjected to the exclusive constitutional discretion to prosecute such conduct; and
5 be unconditional, that is, the amnesty must not be dependent on the beneficiary doing certain things in the future in order to qualify for the “amnesty”.
• a Clemency Order may be unconditional or conditional, that is, the Presidential amnesty may depend on the beneficiary doing certain things in the future in order to qualify for the amnesty or pardon; this is because, although such conditionality may render the amnestied conduct potentially criminal, the Presidential prerogative of mercy
overrides the exclusive constitutional discretion to institute criminal proceedings at any stage.
• for the same reason, a Clemency Order does not need to be so framed that the amnestied conduct is deemed to be not criminal.
A statutory immunity covering prospective as well as retrospective criminal acts, or prospective criminal acts only, may only be legislated if:—
1 conditions 1, 4 and 5 above relating to a statutory amnesty are met; it does not relate to conduct already adjudicated in a criminal court; and
2 must be limited to cases where the act or omission constituting an essential element of the offense in question was done “in good faith” and “for the purposes of or in connection with” some specified end
3 must never entirely exclude the possibility of recourse to the civil courts on the part of any person who has suffered a civil wrong as a result of the immunized action (although the immunized person may also be immunized against civil liability to the extent specified in presumption A.21below)
4 to the extent that it is prospective in character (an example where a prospective immunity may be justified is where health workers are granted an immunity against charges of assault or unlawful detention in order to quarantine and vaccinate people during an ongoing medical emergency), the immunity:—a must never be granted for crimes which by their nature or by the
rules of international customary law it would be inconceivable to immunize anyone against, such as sexual crimes, genocide, slavery and torture
b should desirably be circumscribed by a “sunset clause”, allowing the President by statutory instrument or Parliament by a special resolution (or preferably either the President or Parliament) to terminate the immunity without further ado.
In addition, drafters who are instructed to draft statutory amnesty or statutory immunity provisions must satisfy themselves that —
1 the amnesty or immunity sought is justified by countervailing public policy considerations that are applicable to the case in question; and
2 the countervailing public policy considerations:3 are justified by reference to any one or more of the general
derogations to the Bill of Rights (defense, morality, public health, public order, etc.); and
4 are otherwise reasonably justifiable in a democratic society.
l 14.12 Presumptions about the prosecution and punishment of corporate bodies
Where a corporate body is prosecuted for a criminal offense:—1 the directors of that body must be cited together with that corporate
body in the indictment2 however, the directors or employees thus cited are presumed to be
acting in a representative capacity only on behalf of the corporate body, and accordingly cannot be punished in their personal capacities, and in particular cannot be imprisoned, nor fined in addition to any fine imposed on the corporate body. Although the Criminal Law Code sought to overturn this presumption by imputing the “conduct’ and “intention” of the corporate body to every director or employee actually responsible for that conduct or actually forming that intention shall be liable to be prosecuted and punished personally for the crime concerned”), this general provision runs counter to the presumption of innocence, the presumption in favor of liberty (presumption 5 above) and against doubtful penalization (because in many instances the directors or employees will be acting in the interests of the corporate body, not their personal interests, see presumption 14.1 above); accordingly the courts will be reluctant to punish in their personal capacities directors and employees who are cited in the indictment of a corporate body. There may be good public policy grounds for holding the directors of a corporate body jointly and personally liable for the offenses of the corporate body, but such liability must never be assumed by implication in an enactment. Accordingly, where the drafter is satisfied that such public policy grounds exist, he or she must expressly provide for the punishment of the directors in question in their personal capacities, whether alternatively or additionally to the punishment of the corporate body itself. Even in such cases, however, the enactment must expressly allow a defense to individual directors (or employees) to the effect that “if a director (or employee) of the corporate body took no part in the conduct subject to prosecution (the proof whereof shall lie on him or her) he or shall not be held criminally liable therefor”. See item 11(f)(iii) of theChecklist of Substantive Drafting Requirements.
l 14.13 Presumption about compounding of offences and condonation of statutory breaches
Statutory provisions that grant a power to an official to “compound” an offense potentially offend against four fundamental principles:—
• The fundamental constitutional right of every person to have the existence or extent of his or her civil rights or obligations
determined by a court or other adjudicating authority that is independent and impartial;
• The constitutional competence to institute, take over or discontinue criminal proceedings;
• The fundamental principal of natural justice that no one should be a judge in his or her own cause (by making the official prosecutor and judge of the compoundable offense).
• Such a power bestows upon an executive branch official a discretion that should ordinarily be exercised by a court.
Such provisions are permissible if the law in question specifically applies or adapts the deposit fine provisions of the Criminal Procedure and Evidence Act to the payment of deposit fines under the law. These provisions anticipate any objections based on the principles above mentioned by:—
1 requiring that the offender concerned must have made an “admission of guilt”; and
2 enabling a court of competent criminal jurisdiction to review the payment of the deposit fine, and empower the court to substitute its own judgment in the matter in appropriate cases.
Alternatively, “compounding” is permissible if the “offense” is framed as a civil infringement of the law. This enables the official concerned to assess an appropriate monetary penalty not exceeding a specified maximum amount and to impose it with or without any admission of liability on the part of the offender. If the civil penalty is imposed without an admission of liability by the offender, or the offender admits liability but disputes the amount of the assessed civil penalty, the statute in question must make provision for a court of civil jurisdiction to determine the liability or assess the appropriate penalty, as the case may be.Similar objections to the foregoing may be raised where an executive branch official is endowed with the power to “condone” a breach of the law, but the objections are less serious because in such cases the offender benefits from the condonation by being absolved completely. Nevertheless, condonation provisions may be open to additional objection that the official in question may exercise his or her power arbitrarily in favor of some persons to the exclusion of others. On this question, be guided by item 10(h) of theChecklist of Substantive Drafting Requirements.
l 14.14 Presumption about contracts entered in violation of the criminal law
Read this together with Presumption A.23.4 below. Drafters must be alert to the possibility that persons may conclude “contracts” (either wittingly or unwittingly) that are impugnable on either or both of the following grounds: (a) the contract may be illegal by virtue of constituting, or being entered in furtherance of, a criminal offense (such as a contract of betrothal with or between two minors, or an agreement to deliver contraband goods); or (b) the contract is contrary to public policy (such as a promise to pay a sex worker, or to pay a gambling debt to an unregistered casino, or a claim for revocation of a donation made by a paramour in contemplation of his lover divorcing her current spouse and marrying the paramour). In such cases the in pari delicto rule will apply to the unlawful contract, namely that, unless public policy or the justice of the case demands it, the loss of anything (money, goods or incorporeal rights) delivered in pursuance of the “contract” will lie where it falls, that is to say, the party who takes delivery of the thing keeps possession of it. The courts have ruled that certain conditions must apply before the rule will be applied, namely that:—
1 an illegal agreement which has not yet been performed (wholly or partly) will never be enforced by the courts; and
2 the thing must be in the actual possession of either of the parties seeking to keep it, without requiring the intervention of the court to “recover” it from a third party or “restore” it to either party
Where the foregoing conditions have been met, the possessor of a thing obtained pursuant to an unlawful contract will generally be allowed to keep it. Public policy or the justice of the case may, however, persuade the courts to relax the rule in favor of the party seeking to recover the thing. Two major considerations will sway the courts in this direction, namely:—
1 the “contract” in question is by its nature so illicit that public policy will, on balance, be more prejudiced by allowing the possessor to keep the thing than by ordering its surrender to the other party; or
2 if the “contract” is not so “illicit that a court cannot look at it”, it may order recovery of the thing to prevent the possessor (who may not have paid or done anything at all to “honor” his or her part of the “bargain”) being “unjustly enriched” (on the basis that, if the “contract” is a crime in addition to being a nullity, it was sufficient
punishment for the claimant to suffer the criminal penalty without suffering further loss)
The significance of this rule for drafters is that they must consider whether it is possible that the Legislature may contemplate overturning this the application of this rule in a particular set of circumstances, especially if the public policy considerations it wishes to advance may not be obvious to the courts unless they are expressed in the statute itself. See in this regard by item 10(h) of the Checklist of Substantive Drafting Requirements.
? Statutory Presumption means a rebuttable or decisive presumption created by a statute. It does not shift the burden of proof. It is merely an evidentiary rule whereby the accused must go forward with an explanation to rebut the permissive presumption. A statutory presumption cannot be sustained:
• If there be no rational connection between the fact proved and the ultimate fact presumed; or
• If the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.
? Morgan Presumption is a presumption that shifts the burden of proof. It requires that the person against whom it operates to produce sufficient evidence to outweigh the evidence that supports the presumed fact. As in requiring a criminal defendant who was arrested while in possession of an illegal substance. It is thereby presumed to have knowingly possessed it. To produce sufficient evidence to entitle the juryneed to find that the defendant's evidence outweighs the evidence of knowing possession.
? Heeding Presumption means a presumption that if the manufacturer of a product had given a warning label then the consumer of such product would have followed the warning. In other words, a heeding presumption allows the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given. Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning. It is a rebuttable presumption.
? Presumption of Innocence
This is a presumption commonly used in criminal law. It says that one is considered innocent until proven guilty. In the Philippines, the presumption of innocence is a legal right of the accused in a criminal trial that is why the burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact since the accused guilt must be based on beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted.
A popular phrase for this presumption is the phrase innocent until proven guilty which is coined by the English lawyer, Sir William Garrow (1760–1840).
l 15 Presumption against injustice and unreasonableness
The legislature is presumed to be reasonable. So:—1 A statute is to be construed so as to impose the least possible burden upon those affected by it. Statutes that encroach the people’s rights, whether as regards persons or property, will be strictly construed.
In regard to property rights, there is a presumption that expropriation should be accompanied by compensation. If a law proposes to expropriate any person, it must either provide for compensation in the manner provided in the Constitution. In regard to taxing statutes, see presumption A.23.4
In cases of doubt the most beneficial interpretation will be adopted.
The Statute law, like the common law, is not presumed to require the impossible.
2 The right to legal representation before any adjudicative or quasi-judicial body (other than any of the established courts) is not excluded unless there is express provision in the Act of Congress to that effect. However, no such exclusion should be made where any matter is to be heard by a court of inherent jurisdiction, or any of the established courts of limited jurisdiction.
Presumption that a statute is not intended to be unreasonable or to cause injustice
The cornerstone of this presumption is the natural law theory that law should be just1. Where a statute is clear the court must give effect to the intention of the legislature however harsh its operations may be to individuals affected thereby. Where however two meanings may be given to a section, and the one meaning leads to harshness and injustice, Whilst the other does not, the court will hold that the legislature rather intended the milder than the harsher meaning. In view of the doctrine of separation of powers, the presumption is clearly rebuttable.
This presumption is the basis of the following rules:
The legislature is presumed not to have intended to deprive an individual of existing vested rights.
1
Taxation and penal statutes should be strictly construed.
Presumption against Intending what is not convenient
It is presumed that the intention that is “most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one” (Maxwell, 1969: 199). It must be understood that the intention of the authors of the law does not intend the law to be inconvenient or unreasonable. “The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events” (Maxwell, 1969: 199).
l 16 Presumption in favour of natural justice or due process
This is a special case of the foregoing presumption. When an enactment confers quasi-judicial powers on a person or authority, or empowers such person or authority to exercise a power that may diminish or deprive another person’s rights, then it is presumed that those powers must be exercised in accordance with the rules of natural justice, that is to say, the person affected by exercise of a statutory power should receive prior notice of the action should have an opportunity to be heard (the audi alteram partem rule). should have an opportunity for an impartial hearing
There are two main principles of natural justice:
Audi alteram partem rule (a person must be given the right to be heard before an adverse decision is taken)
Nemo judex principle (a person must not be judge in his own cause)
The presumption that administrative tribunals and other statutory bodies will act in accordance with the principles of natural justice.
l 17 Presumption that the lawmaker does not intend absurd or anomalous results
This is a corollary of the Golden Rule below mentioned. This presumption tells the courts that when interpreting statutes they should avoid a result that is: unworkable or impossible inconvenient anomalous or illogical
futile or pointless; orl artificial.
Accordingly, if two or more interpretations of a provision are possible, the one rendering the provision valid or effective should be preferred over a competing interpretation that results in ineffectiveness or invalidity or confusion. The court must not, however, adopt an interpretation that would violate a fundamental principle of the common law — for example the principle nullum crimen sine lege (in order to attract punishment, conduct must be expressly defined as a crime by the law). This presumption, like others, requires a judicious weighing up of competing interests in order to ensure that justice is done to the parties according to both the letter and the spirit of the law. There is a corollary to this presumption: words in a statute are not to be regarded as tautologous or meaningless. But as one learned author says:
“Regrettably … tautology is not uncommon in legislation, and the interpreter must of necessity take this into account when confronted with phrases or words that are in essence repetitious.”
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. (2) That the General Assembly intends the entire statute to be effective and certain. (3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth. (4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language. (5) That the General Assembly intends to favour the public interest as against any private interest.
l 18 Presumption that the law is a complete system without lacunaeThe law is presumed to be a complete self-sufficient body of statutory and common law rules. An apparent ‘lacunae’ must be resolved in favour of vested or individual rights. Thus, if a statute provides for a Registrar to approve applications for citizenship by registration, and the Constitution subsequently provides for such applications to be approved by a constitutional body, leaving the composition and procedure of that body to be regulated by an Act of Congress, the Registrar may continue to act as the approving authority until such time as relevant Act of Congress is enacted.
l 19 Presumption that the lawmaker does not intend to alter the existing law more than is necessary
This applies to alteration of both the common law and the statute law. So a statute will not be presumed to have amended a previous statute that is still in force except by necessary implication. Common law is always favoured by courts unless it is expressly or by necessary implication overridden by statute. On the other hand, in the event of any direct conflict between Statute and Common law, Statute law always prevails.
(Presumption against the alteration of the common law more than is necessary)
In the absence of clear language, the courts will not rule that the legislature intended a significant departure from the common law. Statute should be construed in conformity with the common law rather than against it.
l 20 Presumption against the State being bound by statute
It is presumed that the State is not bound by its own statutes, so if there is an intention that the State should be bound by an enactment, the enactment must state such expressly. This presumption is no longer applied in an absolute sense. Accordingly, even without an express provision subjecting the State to an enactment, some enactments may be interpreted as binding the State by necessary implication.
l 21 Presumption against blanket immunity from civil suit.
Complete and unqualified immunity from civil suit is contrary to public policy and potentially transgressive of the rights and freedoms of others. Nor can they be so framed as to oust entirely the jurisdiction of the courts or the constitutionally guaranteed right of persons to be afforded the protection of the law. Such an immunity provision, if it is legislated: must be unambiguously expressed by an Act of Congress; must generally be granted only to a statutory body and its members, employees or agents acting in good faith and within the scope of their employment must not generally be granted to individuals, even if acting “in good faith” in a specified official capacity, if they can be given an indemnity instead. must never exclude liability for “gross” negligence or breach of contract, even if committed “in good faith”. should desirably (except in the case where it is granted to a statutory body and its members, employees or agents acting in good faith and within the
scope of their employment) be circumscribed by a “sunset clause”, allowing the President by statutory instrument or Congress by a special resolution (or preferably either President or Congress) to terminate the immunity without further ado.
l 22 Presumption against blanket indemnity
Blanket indemnity clauses (clauses compensating or reimbursing defendants for civil or criminal liabilities), whether made in favour of individuals or public officials or bodies, are contrary to public policy for two main reasons: (1) when granted to public officials or bodies, they have practically the same effect as blanket immunity clauses, in that they confer virtual impunity on the actions of public officials and bodies who should be accountable to the public for their actions; and (2) the potentially unlimited indemnification expenses constitute an abuse of public funds. Such an indemnity provision, if it is legislated, must be limited to indemnifying the individuals, public officials or statutory bodies concerned against any costs incurred by them in— defending any proceedings, whether civil or criminal, which arise out of their functions in an official or statutory capacity in which judgment is given in their favour or they are acquitted, as the case may be (if civil proceedings are unsuccessfully defended, the indemnity should not be automatic, but be paid at the discretion of the State or corporate body concerned); and making any application to court in an official or statutory capacity or on behalf the State or the statutory body in question.In addition, where the indemnity sought is not confined to acts or omissions:1 . that were done or omitted to be done by individuals on behalf of the State or a statutory corporation; or2 . that were suffered by individuals in consequence of anything done or omitted to be done by or on behalf of the State or a statutory corporation drafters who are instructed to include such clauses must first satisfy themselves that – 3 . the indemnity sought is justified by countervailing public policy considerations that are applicable to the case in question; and4 . the countervailing public policy considerations:5 . are justified by reference to any one or more of the general derogations to the Bill of Rights (defense, morality, public health, public order, etc.); and6 . are otherwise reasonably justifiable in a democratic society
The presumption that no person shall be allowed to gain advantage from his wrong.
l 23 Other presumptions relating to public and legal policy
l 23.1 The presumption of Omnia rite etc.
The maxim Omnia rite esseactapraesumuntur (“All official acts are presumed to have been lawfully done”) is also known as the “presumption
of regularity”: where the State is required to perform anything in its administrative capacity, it is always presumed to have done so (a) in good faith and (b) with due propriety. It is because of this presumption that it is generally not necessary to include in a statute words to the effect that “non-compliance on the part of a State official with any internal formality [i.e. a formality to which, ordinarily, that official alone is privy] required to be fulfilled in connection with the performance any official action, will not invalidate that action”
Presumption of Regularity.
It is a principle applied in evidentiary evaluation that transaction made in the normal cause of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise.
l 23.2 Presumption about validity of acts of employees of the State where the validity of their title to office is questioned (de facto officers’ doctrine)
This presumption is somewhat related to the foregoing one. While the statutory requirements for the appointment and qualifications of members of statutory bodies are to be strictly construed (see presumptionB.6.4below), the same presumption does not apply to public officers or other employees of the State, including judges and legislative branch officers. In the United States or Philippines, this presumption is called the “de facto officer doctrine”. It was developed to protect the public from the chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the officials' titles. The doctrine has generally been applied to individuals—
1 . who are in possession of an office and performing the duties of the office, which, to all appearances, the officer in question has a right to hold;2 . the exercise of whose official functions involve the interests of the public and third persons;3 . whose appointment or election to the office in question was vitiated by reason of some want of qualifications attaching to the office, or by some defect or irregularity in the manner of the appointment or election, but without that ineligibility, defect or irregularity being known to the public at the time the official in question exercised his or her public functions (or at any rate, without the issue of the ineligibility, defect or irregularity being litigated and determined by court at the time the official in question exercised his or her public functions)
Even where the tenure of a public officer is invalidated by the courts on the basis of ineligibility, or defect or irregularity in his or her appointment or election, his or her previous acts exercised or performed by virtue of that tenure are not thereby invalidated. This doctrine has minimal impact insofar as legislative drafting is concerned. Only in very exceptional circumstances should it be considered necessary for this presumption be restated, much less overturned, by an express provision in a statute. Sometimes it may be considered expedient to ratify the acts of an officeholder whose eligibility, appointment or election has been or is likely to be impugned by the courts, in which event a “Validation Bill” or validation provision should be enacted.
l 23.3 The presumption of In bonampartem
The legislature is presumed to intend that only lawful acts are referred to in all its laws. This is known as the in bonampartempresumption.
l 23.4 Presumption that taxation statutes will be interpreted against the fiscus
Statutory provisions that impose pecuniary burdens, such as taxing statutes, will be strictly construed by the courts, i.e. a court will only decide that a tax is payable when satisfied that the language of the statute has clearly imposed that tax in the circumstances of that particular case before it; in a case where the statute is ambiguous on the issue whether a potential taxpayer is indeed to be subjected to a tax, the statute be interpreted contra fiscum (against the fiscus) in favour of the potential taxpayer.
l 23.5 Presumption that statutory rights override conflicting private common law ones
Statutory provisions will override contractual ones (except those that vested prior to the statute) to the extent that the contractual provisions are in conflict with them. However, if the statute does not expressly forbid such agreements, a person can agree to waive (“contract out of”) the benefits conferred on him or her by the statute, unless it can be shown that such agreements are, in the circumstances, opposed to public policy. Whether or not public policy is in issue depends on whether the legislature expressly or implicitly intended the statute to remedy a public or social mischief, or to strengthen a weaker party to a transaction, rather than simply bestow an advantage or benefit on one or another party.
Thus no person can contract out of a minimum wage statute that is intended to prohibit exploitative labour contracts.
It refers to a presumption that unless there is a specific, applicable statute in another state, a court will presume that the common law has developed elsewhere identically with how it has developed in the court's own state, so that the court may apply its own state's law.
l 23.6 Presumption of the validity of statutes
A statute is presumed to be valid until declared otherwise by a court of law; accordingly, until such time, it must be complied with even if, on the face of it, it appears to be invalid.
l 23.7 Presumption in favour of the severability of statutory provisions to save validity
This is a corollary to the previous presumption of validity. It provides that, if any provision of a statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provisions to other persons or circumstances, shall not be affected thereby (unless the court finds that the remaining provisions of the statute are so essentially and inseparably connected with, and so depend on, the void provision or application, that it cannot be presumed that the legislature would have enacted the provisions without the void one; or unless the court finds that the remaining provisions, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent).
l 23.8 Presumption against ignorance of the law
The Legislature presumes that everyone knows the law i.e. ignorance or mistake of the law is no excuse (but it may, in certain cases, be mitigating). Particular statutes may depart from this presumption by express words to the contrary.
l 23.9 Presumption of legal incapacity on the part of certain classes of persons
Minors, persons of unsound mind, insolvents and prodigals are presumed not to be as capable in all respects as other persons of exercising rights or fulfilling obligations under the law, nor to be equally culpable as other persons for failing exercise or fulfil such obligations. Accordingly, minors should generally be assisted by their guardians in exercising their rights or
fulfilling their obligations, and similarly the curators or legal representatives of other persons without full legal capacity must act on behalf of such persons. As regards the criminal liability of such persons, this has been codified in the Criminal Law Code. There is accordingly no need to restate in a statute any of the exceptions to civil and criminal liability made on behalf of such persons, unless it is desired to depart from this presumption in certain very limited circumstances. For example, the lawmaker may wish to capacitate minors above a specified age where the nature of the transaction is such that the assistance of the guardian may be superfluous, or where there are good public policy grounds for excluding the rights of the guardian.
l 23.10 Presumption against monopolies
A monopoly power (that is, a power to restrict a person’s freedom of contract in any way) is never to be inferred, but must be expressly granted by or under the authority of an Act of Congress.
l 23.11 Presumption that the courts must take judicial notice of certain facts
A court will take judicial notice of a fact (that is, recognize it without requiring the production of any proof in court in support of it) that is indisputable by common notoriety, e.g. commonly known facts of history, geography or science that are capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be challenged. It must judicially notice any case law precedents within the territorial jurisdiction where it sits, and any enactments published in the Gazette, but not foreign laws or enactments, whose existence and content need to be established by expert evidence. This presumption may be modified in a statute, either by requiring a court to take judicial notice of something that is not ordinarily held to be indisputable by common notoriety or by requiring a court not to take judicial notice of something that is ordinarily held to be indisputable by common notoriety of the Criminal Law Code.
l 23.12 Presumption that “costs follow the event”
In general, in civil litigation arising out of common law or statutory claims, it is presumed that “costs follow the event”, in other words that the successful party to litigation is entitled to seek an order from the court, tribunal or quasi-judicial authority that the unsuccessful party must pay the
first-mentioned party’s recoverable costs of litigation (recoverable costs being limited in most cases to the fees and charges of the successful legal practitioner, and witnesses’ allowances, including fees paid to expert witnesses). A statement in a statute empowering a court, tribunal or quasi-judicial authority to make such order as to the costs of any statutory civil litigation as “appears to it just” or ”just and reasonable” or “just and fair” is usually interpreted as a restatement of the foregoing rule. If the issue of civil litigation arises in the context of a statute, drafters should be hesitant to depart from this rule, unless there are good public policy reasons for legislating a different rule in the statute in question. Such public policy considerations may require the risks of statutory litigation to be reduced requiring each party bear its own costs, or increased by making the unsuccessful party bear certain additional costs not allowed by the ordinary rule. Public policy may also require that, in certain types of statutory claims, claims for costs be limited to:
1 the scale of costs applicable to the inferior courts (e.g. “a person instituting proceedings under this Act shall not recover any costs exceeding the amount of the costs which he or she would have recovered had he or she instituted the proceedings in a magistrates court”)2 very specific items only (for instance, in the Small Claims Courts Act, which is intended to facilitate access to justice by small claimants, recoverable costs are limited to the fee for the summons and the fees and expenses of the messenger).
l 23.13 Cost recovery for remedial action undertaken by public authorities not to be presumed
Whenever the State, an arm of the State, local authority or statutory body undertakes any work in pursuance of its public or statutory functions that is occasioned by any default or breach of the statute in question on the part of any person (“the defaulting person”), it is not to be presumed that the costs of such work to the State, local authority or statutory body can be recovered from the defaulting person.
l 23.14 Presumption about the destination of public moneys
It is presumed that all public moneys* received or collected by any public authority, whether in the form of taxes or fees or otherwise, are to be credited to the Consolidated Revenue Fund*, unless a different fund or destination for the public moneys in question is expressly permitted by or under an Act of Parliament
B. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 1 General rules and presumptions about the meanings of words and phrases
Presumptions of general application
These are fundamental legal principles that should always be kept in mind, even where the language is clear and unambiguous. They are presumed to apply unless excluded by express words or necessary implication. When all relevant contextual considerations have been duly weighed, the interpreter should again test his conclusions in light of the presumptions.
Presumption that all Laws bear a Meaning
It is presumed that no words of a statute are enacted without a reason. This is so as not to waste the words used in a statute. It would be absurd for the legislative body to make a law that for some of the words to be meaningless.
The presumption is illustrated (US jurisprudence) in the case of Cork Co Council v Whillock, which turned on the interpretation of the Malicious Injuries Act, 1981. O'Flaherty J applied a literal interpretation to the section according to the ordinary and natural meaning of its words. He also stated that "a construction which would leave without effect any part of the language of the statute will normally be rejected." Egan J endorsed the same principle, stating: "There is abundant authority for the presumption that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain."
l 1.1 A word or expression is presumed to have the same meaning wherever it appears in an enactment.
If a word or expression appears more than once in an enactment, it is presumed to have the same meaning.
l 1.2 Different words in a statute are to be given different meanings.
This is the converse of the above presumption.
l 1.3 Presumption that the Legislature intends that words are to be given their ordinary dictionary meaning.
The Legislature intends that words are to be given their ordinary dictionary meaning (this presumption may be overturned by the use of a definition in the statute that limits, broadens or varies the ordinary dictionary meaning of the word or phrase defined.
Use of “And/or”. The use of the conjunctive “and” in a list means that all of the listed requirements must be satisfied. The use of the disjunctive “or” means that only one of the listed requirements need be satisfied. Courts do not apply these meanings inexorably, however, if a “strict grammatical construction” will frustrate evident legislative intent, a court may read “and” as “or”, “or” as “and”. Furthermore, statutory construction can render the distinction secondary.
Use of shall/ may. Shall is mandatory and may is permissive. Moreover, these words must be read in their broader statutory context. When these two words are both used in the same provision, their distinction may be underscored.
Singular/plural. It is basic in statutory construction that the singular includes the plural. According to the Dictionary Act, “unless the context indicates otherwise, words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular”.
l 1.4 Presumption that the legislature is aware of the existing judicial interpretation given to words and provisions.
Where the courts have construed the language in a statute, the legislature is presumed to intend that the same construction is to be placed upon such language in subsequent statutes on the same subject matter.
l 1.5 The presumption Omnemaius in se minus continet
It is presumed that in interpreting statutes, the less is always included in the greater, and the particular is always included in the general. Accordingly, when a power to grant or refuse is conferred upon a statutory body, that power is taken to include a power to grant subject to conditions, even if the latter is not expressly written into the statute.
l 1.6 The Expressiouniusestexclusioalterius Rule.
The courts will generally construe a statutory list of words or terms (whether belonging to the same class or not) to be exhaustive rather than illustrative. In accordance with this rule, any omission from that list will be construed as a deliberate omission on the part of the Legislature, unless omitting the item in question from the list leads to a manifest absurdity . The presumption can be avoided by the use of phrases like “including but not limited to......”
l 1.7 The Ejusdem Generis (“Of the same kind”) Rule.
Generally speaking if a general word or phrase precedes or concludes a list of specific words or phrases related in meaning to that general word or phrase, the legislature is often presumed to have intended that the general word or phrase is limited in scope to the same class as the specific words or phrases that follow or precede it (thus the phrase “vehicles such as cars, motor cycles and omnibuses” will not be construed to include animal-drawn carts or other “vehicles” not driven by their own power). This rule is avoided by including in the list at least one item of every class intended to be encompassed by the general word or phrase.
l 1.8 The Reddendosingulasingulis Rule
Where a complex legislative sentence has more than one subject and more than one object, it may be necessary to read the sentence distributively by matching each object to its appropriate subject; similarly, if two or more verbs (or adjectives, or other parts of speech) in the same sentence are followed by two or more subjects, it may be necessary for the appropriate part of speech to be matched to its appropriate subject in order to arrive at a sensible meaning of the sentence. E.g. “No one shall draw or load a sword or gun”: “draw or load” can reasonably be applied to the subject “gun”, but only “draw” can be applied to “sword”. The phrase “as the case may be” can be usefully employed to alert the courts to apply this rule, e.g. “Members of the Board shall be entitled to the reimbursement of their reasonable travelling expenses by the Corporation or the State, as the case may be”: i.e. members of the Board in the employ of the State will be reimbursed by the State, while other members will be reimbursed by the Corporation
l 1.9 Presumption about gender.
This is a statutory presumption created by “Rules as to gender and numbers” - of which references to persons in statutes, unless otherwise expressly or implicitly provided, include male, female and corporate persons.
l 1.10 Presumptions about peremptory and directory statutory provisions
The following presumptions are applicable in determining whether a particular statutory injunction is “peremptory” (or mandatory or imperative) or simply “directory” (permissive, discretionary or optional):
I. Presumption that “shall (or “must”) indicates a peremptory provision, not a directory one: Though this rule holds true for most cases, it is not an absolutely inflexible one, as the following considerations illustrate. The use of “shall” can, in very exceptional circumstances, be interpreted as “may” (in other words, as not requiring compliance with the injunction in question), if the latter appears to a court to be more conformable to the intention of the Legislature or the fundamental rights of individuals, or even (taking into account other indications that the legislature did not intend that invalidity should result merely for want of compliance with an apparently peremptory statutory formality) where the provision in question is purely formal in nature. In particular, where the peremptorily worded statutory injunction is directed at the State or some other statutory authority, and such injunction constitutes a condition precedent for the exercise by the person affected by it of a right of review or appeal or the exercise of some other fundamental right by the affected person, the courts will favour an interpretation of the injunction most favourable to the affected person, which may, according to the circumstances of the case, result in the injunction being interpreted as a directory or peremptory one.
The use of “shall”, “must” or other peremptory expression does not necessarily mean that “exact” rather than “substantial” compliance with a peremptory statutory injunction is required in every case.Substantial compliance will suffice in those cases where, having regard to the particular facts, the object intended by the legislature will be achieved However:
Where the rights of third parties interested in the matter depend upon “exact” rather than “substantial’ compliance with the imperative statutory injunction concerned, the courts will insist on exact compliance. Where the statutory injunction concerned makes the doing of something (“the primary statutory injunction”) dependent upon the doing of something else (“the secondary statutory injunction”), such secondary statutory injunction must be strictly complied with, especially where the primary statutory injunction will
subject someone to a criminal penalty or some other diminution of his or her fundamental rights.
Presumption that “may” indicates a directory provision, not a peremptory one : “may” is a permissive or enabling expression, and can be safely relied upon as such in most cases; however, as observed in other jurisprudence, “there are cases in which, for various reasons, as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it [even if its exercise is framed as a discretion.
l 2 Presumptions concerning the commencement and termination of statutes
l 2.1 Presumption that the legislature intends its laws to commence on the date of their promulgation
It is presumed that the legislature intends its laws to commence on the date of their promulgation (this presumption may be overturned by an express provision otherwise, usually by means of a commencement clause)
l 2.2 Presumption that a statute once enacted will have effect until repealed by Congress
It is presumed that a statute once enacted will have effect until repealed by Congress. This presumption may be overturned by the following expedients or circumstances:
by the courts in the following circumstances:
by the application of the maxim Cessante ratio legiscessatipsalex (“If the reason for the law falls away, the law itself falls away”); or
by the application of Presumption B.3.2 below.
In addition, it is in principle possible for Congress; lawmakers to omit all Acts that are considered to be “spent” (no longer in force by reason of the Act’s desuetude or of the Act having had its full effect). The effect of such an omission is the same as repeal.
l 2.3 Presumption about continuity where a statute is repealed and substantially re-enacted.
Whenever a statute is repealed and its provisions are at the same time and without any interval re-enacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as
continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced.
Presumption of Continuity.
A substantive law requires native title claimants to prove continuity in the acknowledgment and observance of traditional laws and customs and the continued existence of the rights and interests which derived from those laws and customs from sovereignty through until the present day.
l 2.4 Presumption against the continuance of repealed statutory rights
The foregoing presumption does not apply to repeals and re-enactments of statutes in which any interval of time intervenes between the repeal and re-enactment. Rights conferred exclusively by statute can be extinguished by statute unless they have vested in individuals who have previously enjoyed them. There is no presumption against creating a hiatus in the statute law even where individuals’ prospective claims to statutory rights may be affected. Thus where such statutory right is repealed in order to be replaced by the same or a similar statutory right, and there is a delay in implementing the latter, the repealed statutory provision is not deemed to continue beyond its repeal unless express statutory provision is made to provide for this interval.
l 2.5 Presumption of validity of things done under a repealed statute prior to its repeal
The repeal of an enactment does not by itself invalidate or call into question the validity of anything done in terms of the repealed enactment prior to the date of its repeal. It is accordingly not necessary (except rarely out of an abundance of caution or for the avoidance of doubt) to enact in the repealing statute that “the repeal shall not affect the validity of anything previously done under the repealed enactment”. This does not mean that everything so done was indeed valid, only that there is a presumption (the burden of overturning which lies with the person alleging otherwise in relation to any particular act) that every pre-repeal act wasvalidly done in accordance with the repealed statute at the time that it was in force.
l 2.6 Presumption about repeal of repealing statute
The repeal of a statute that repealed an earlier statute shall not be construed to revive the earlier statute.
l 2.7 Presumption about suspensive amendments
Where a statute is amended in such a way that the amendment is expressed to expire on a certain date or upon the happening of a certain event, the expiry of that amendment shall be construed to revive the statute in its previous form.
A. Presumption of Abandonment.
A statutory presumption that a party that has not used its mark for three years has abandoned its rights in the mark. This presumption of abandonment shows that the party has discontinued use with intent not to resume use. It is international trademark practice to presume that marks are abandoned if they are not used for a certain fixed period of time. This presumption of nonuse can be countered with contrary evidence.
l 3 Presumptions concerning the conflict or harmony of statutes and statutory provisions
l 3.1 Presumption against the repugnance of statutes and statutory provisions
They must as far as possible be interpreted in a manner calculated to harmonize them with each other, in conformity with the general principle that the law should be consistent and self-coherent.
l 3.2 Presumption favouring later over earlier conflicting statutes.
In the absence of express repeal, later enactments repeal earlier enactments dealing with the same subject matter, to the extent of any inconsistency between them (Lex posterior derogat priori). See, however, the following presumption.
l 3.3 Presumption favouring specific over general statutes.
Despite the foregoing presumption, the Legislature is presumed to have intended that general provisions in a later statute do not override pre-existing specific provisions in an earlier statute bearing on the same subject-matter. To quote the relevant Latin maxim:
Generalibusspecialibus non derogant(“Provisions couched in general terms do not derogate from those expressed in specific terms”).
l 3.4 Presumption favouring primary over secondary statutes.
It is an irreversible presumption that if the provisions of any subsidiary legislation made under one Act conflict with provisions contained in another Act, the provisions of the latter Act will prevail over the conflicting provisions of the subsidiary legislation.
Presumption Against Implicit Changes in the Law
This presumption entails that a part of the law or provision in it which is ambiguous as to whether or not it effects a change in the law shall be regarded as not effecting any such change.
The Supreme Court reiterated the general principle that general words in a later Act should not be presumed to repeal or amend earlier legislation, so long as they were capable of reasonable construction without effecting any such amendment, (as raised in the US Supreme Court), noted that there was no authority regarding the application of this principle to criminal law statutes. The principle that criminal statutes should be strictly construed for the benefit of the individual could have an impact on the operation in this area of the presumption against unclear changes. The Court applied the principle and found that the two statutes which were at issue in the case could stand together and operate separately and individually, without one being considered to have implicitly repealed another.
l 4 Presumptions concerning the use of intrinsic and extrinsic statutory material to ascertain the meaning and intention of the Legislature
l 4.1 The Cardinal Principle.
The Cardinal Principle, or fundamental rule of interpretation of statutes, is that the court must endeavour to arrive at the intention of the law-giver exclusively from the actual language used in the enactment. The effect of this rule is that the courts should not look outside a statute in order to ascertain its meaning, but see 4.5 below.
l 4.2 The Golden Rule.
The Golden Rule states that the court must take the language of the enactment, or of the relevant portion of the enactment, as a whole, and, where the words are clear and unambiguous, must place upon them their
grammatical construction and give them their ordinary effect. If the words of an enactment are precise and unambiguous, no more is necessary than to expound them in their ordinary and natural sense. The Golden Rule may be departed from if adherence to it would lead to an absurdity so glaring that the lawmaker could not have intended it. In that event the court may vary or modify the language so as to avoid the absurdity, but no further.
l 4.3 Presumption in favour of contextual interpretation.
The Legislature is presumed to intend that a statute is to be construed as a whole and not piecemeal, in other words, no provision is to be construed in isolation but in the context of the whole statute.
l 4.4 Priority of intrinsic over semi-extrinsic (peripheral) matter in a statute.
The Legislature is presumed to intend that, the body of a statute or statutory provision must be interpreted first, before resort is had to peripheral matter in the statute. i.e. the long title, preamble, headings of sections or parts and footnotes.
l 4.5 Use of matter extrinsic to a statute for purposes of disambiguation.
If the Legislature’s intention cannot be unambiguously ascertained in the first instance by reference to the statute itself, resort may be had to certain extrinsic materials pertinent to that intention. (Contemporaneous Circumstances, Judicial Constructions, Executive Construction, Policy.)
l 4.6 Presumption about statutes in parimateria.
It is to be presumed that statutes in parimateria (dealing with the same or analogous subject matter) are to be given a uniform interpretation.
l 4.7 Use of legislative history and legislative antecedents as aids to statutory interpretation
As respects legislative history, this aspect of the matter is largely governed under item 4.5 above. As regards legislative antecedents, the following dictum is pertinent: “In the interpretation of statutes a court may have regard to those external and historical facts, such as the prior existence of some law, custom or practice, which are necessary for the comprehension of the legislation, and to consider whether the statute
which is the subject matter of interpretation was intended to alter the existing law or merely to codify it”.
l 5. Presumptions concerning statutory time-limits, statutory rights of appeal and statutory discretions
l 5.1 Presumption that generally time limits in statutes are mandatory
Unless the statute specifically condones non-compliance or allows the extension of statutory time limits, such time limits are generally to be construed as mandatory; however, the same does not apply for statutory time limits on the State for the performance of its obligations.
l 5.2 Presumption that where a right of appeal is given by statute against the exercise of a Statutory power, such appeal suspends such exercise until the determination of the appeal
This presumption may be overturned by an express provision in an Act of Congress to the contrary.
l 5.3 Presumption that a statutory discretion requires an objective (i.e. judicial) construction
This presumption applies unless a contrary intention is expressly indicated in the statute in question. Use expressions such as: “in the opinion of”, “in the discretion of”, “is satisfied that”, in order to make clear that the discretion is exercised subjectively (i.e. that the discretion is dependent upon the judgment of the person or authority upon whom the legislature bestows it, and not potentially dependent upon the judgment of the courts). If a subjective discretion is exercised reasonably it cannot be challenged before the courts, nor can the courts exercise their own discretion in substitution for a statutorily bestowed discretion that is exercised reasonably.
l 6. Presumptions relating specifically to corporate bodies and trusts (statutory or non-statutory) and employment
l 6.1 Presumption that a “person” includes a juristic person
This important presumption (as embodied in the definition of a “person”) states that, unless the context of the provision requires otherwise, every reference to a “person” includes a reference to a juristic (corporate) entity.
Accordingly, express words are required in a statute where it is desired to restrict its application to individuals (natural persons) only, or, conversely, to restrict its application to corporate persons only.
l 6.2 Presumption against “piercing the corporate veil”
A company or other corporate body has a separate legal persona from its members. Its acts, omissions, rights and liabilities are not attributed to any of its individual members (shareholders). Accordingly, express words are required in a statute to render the board, directors, members or employees of the corporate body liable in their personal capacities, whether jointly with the corporate body or independently of it.
l 6.3 Presumption of strict liability for breach of corporate statutory duties
Corporate bodies created by statute (and their employees and agents) are strictly liable for the delictual consequences arising from the exercise or non-exercise of their statutory functions, unless the statute excludes such liability. This liability is generally excluded in the statute creating the corporate body by means of a limited immunity clause (see Presumption A.21 above)
l 6.4 Presumption about validity of acts of members of statutory bodies
This assumes that the statutory requirements for the appointment and qualifications of members of statutory bodies are to be strictly construed; accordingly, where any question arises about the validity of their acts in pursuance of their statutory functions, any defect in their appointment or qualifications at the time the act in question was exercised is fatal to that act; the presumption can be overturned by an express provision in the statute to the contrary. (This presumption does not apply to the statutory requirements for the appointment and qualifications of employees of the State. See Presumption A.23.2 above)
l 6.5 Presumptions about the property of statutory corporations
The property of a statutory corporation is ultimately State property, but is held by the statutory corporation in its own name. Accordingly, the statutory corporation can deal with such property in the same way as any other non-statutory corporate body (except where the property in question
is pre-existing State land which is not specifically ceded to or acquired by the corporation, in which event the land is managed by the statutory corporation in a similar capacity to that of a trustee without power of encumbrance or disposal). Consequently, the property of statutory corporations is not protected from attachment, except where the founding statute expressly provides otherwise, or in certain other very limited circumstances (see Presumption B.6.6 below). When the founding statute of a statutory corporation is repealed, the assets of the founding statute automatically become State property subject to Regulation. The assets cannot be disposed of to another statutory corporation or to a wholly or partly State-owned company registered in the Companies Registry, or to any other entity or individual, unless express provision to that effect is made in the Statute which terminates the statutory corporation.
l 6.6 Presumption that statutory corporations are autonomous in relation to the State
A statutory corporation is a distinct legal entity separate from the State, albeit that it is an arm of the State. Accordingly, such statutory corporations may not sue and be sued like any other non-State entity, unless there are compelling public policy reasons for doing so. This presumption may be overturned by express words in the founding statute indicating that those responsible for the statute exercise real control over the day-to-day running of the statutory corporation
l 6.7 Presumption against continuity of statutory bodies or authorities.
There is no presumption of continuity of statutory bodies or authorities accordingly if a statute that created a statutory body or authority is replaced by another statute creating the same or a similar body the tenure of office of the authority in question or of the members of the previous body is automatically terminated unless the contrary intention is expressly indicated by the replacing statute
l 6.8 Presumption that a decision of a statutory body requires the votes of an absolute majority of the members of that body
“Where an enactment authorizes or requires an act or thing to be done collectively by more than two persons, a majority of those persons may do
that act or thing, unless a quorum fixed by that enactment has not been formed.” Accordingly, if an enactment fails to specify a quorum of members who may make collective decisions, an absolute majority is required for collective decision-making.
l 6.9 Presumption that members, directors, agents and external auditors of statutory or private corporate body are not employees of that body
Neither the members of a statutory corporate body nor the directors of a company are to be regarded as “employees” or “staff” of that body or company unless the founding statute or articles of association, as the case may be, define them to be such for certain specific or general purposes. The same presumption applies to the agents and external auditors of a statutory corporate body or company.
l 6.10 Presumptions about statutory and implied powers of statutory corporate body
1 . Consistently with the Expressio Unius rule of statutory interpretation (see Presumption B.1.6 above), the itemization of the powers of a statutory corporate body (whether in a Schedule of Ancillary Powers or otherwise) will be interpreted as exhaustive (despite the broad scope of the incorporation clause). This presumption also applies to statutory corporations the intra vires rule concerning companies (that a company is strictly bound by its objects clause in its memorandum of association). Accordingly, if it is desired to circumvent this presumption, a statement must be included in the founding statute to the effect that the powers so itemized “shall not be construed as derogating from the generality of powers given to the Corporation.
2 . Where the founding statute does not contain an incorporation clause or does not itemize the powers of a statutory body, or both, but there other indications in the statute that it acts in a corporate capacity (for instance, where it is empowered to employ persons and control its own funds), it is necessarily implicit that such a body has perpetual succession, and is capable of suing and being sued in its corporate name, and of performing all such acts as bodies corporate may perform by law. However, the full scope of such implied powers is uncertain, and drafters must never leave such important matters to be implied by the courts.
l 6.11 Powers of investment of surplus funds of statutory corporate body not to be inferred
A statutory corporate body does not have freedom to invest its surplus funds in any manner desired by the board of that body. Such a power
must be expressly provided for in the founding statute, and is usually exercised with the prior knowledge or approval of executive responsible for administering the founding statute.
l 6.12 Presumptions with respect to statutory trustees
1 . Common law trustee powers not to be inferred in favour of statutory trustees: Just as a statutory corporation cannot be vested with the powers of a non-statutory corporate person except by express provision in the founding statute, so also the powers of a statutory trustee (whether an individual or corporate person) must not be inferred to be the same as those of a common law trustee. The powers of the statutory trustee in relation to the trust (often, but not always, a statutory fund) must be expressly stipulated in the statute, either in itemized form (preferably in a schedule to the statute) or by a general provision that the statutory trustee “may exercise any power conferred upon a trustee by the common law”.
2 . Power of delegation of the administration of a statutory trust not to be inferred. A statutory trustee must himself/herself/itself administers the trust unless there is an express provision in the statute establishing the trust permitting the trustee to delegate the power of administration to a specified person.
3 .Recovery of administration expenses from statutory fundor trust by administrator of fund or trust not to be inferred. The expenses that a statutory administrator or trustee incurs in administering a statutory fund or other statutory trust cannot be charged on or recovered from that fund or trust unless express provision to that effect is made in the statute establishing the fund or trust in question.
l 6.13 Presumption about suspension of employees
The suspension of an employee, whether employed by the State, a statutory corporation or a private employer, does not automatically entail the suspension of that employee’s remuneration or allowances during his/her suspension unless the terms of employment applying to him/her by virtue of an enactment or the contract of employment specifically provide for the automatic suspension of his/her remuneration or allowances in whole or in part. Nor must a suspension affecting the whole or any part of employees remuneration or allowances be indefinite so as to amount to constructive dismissal.
l 7. Other presumptions of legislative intention and rules of statutory interpretation that are intrinsic to statutory texts
l 7.1 The Mischief Principle.
As said above in connection with the Cardinal Principle and the Golden Rule, the first recourse in establishing the Legislature’s intention must be to the language of the Statute itself. If this does not suffice, recourse may be had to extrinsic materials and the language of the Statute may be modified to arrive at the true intention of the Legislature. You will note that the common element in both of these expedients is to establish the intention of the Legislature. This is where the Mischief Rule comes into play. The most direct way of ascertaining legislative intention is to ask “What was the mischief that led to the promulgation of the law being interpreted?” In other words, what was the reason for the Act or what prompted the change in the old law? This question is embodied in the just-mentioned “Mischief Rule”. The rule was laid down in an old English case reported in 1584, where the judges expounded the rule as follows:
“For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
What was the law before the passing of the Act?
What was the mischief and the defect for which the law did not provide?
What remedy has the Parliament resolved and appointed to cure the disease of the commonwealth?
The true reason of the remedy.
And then the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy.” As a consequence of this rule,I it is presumed that the legislature wants the courts to apply the appropriate remedy provided for the identified mischief.
l 7.2 Presumption that the legislature intends the courts to apply a purposive construction to a statute
This is an expression in broader terms of the Mischief Principle. Where a strict or literal construction of a statutory provision clearly conflicts with the evident purpose of the statute, and an alternative purposive construction is not absolutely excluded by the provision in issue, the latter construction will be preferred.
l 7.3 Presumption that the repeal of a statute involves also the repeal of any subsidiary legislation made under it.
To overturn this presumption you must insert a saving provision in the replacing legislation.
l 7.4 General presumption that a person may act through an agent
There is a general presumption that a person may act personally or through an agent, and that in the latter case the acts of the agent are to be imputed to the person as the principal (Qui facit per aliumfacit per se, “whoever acts through another acts himself/herself”). Accordingly, any act required to be performed in terms of a statute, such as the completion or submission of a form or return, may be performed on behalf of the person required to complete or submit it through the agency of his or her lawyer or other authorized representative, unless the statute in question explicitly or by necessary implication requires otherwise. This presumption does not apply to statutory office-bearers or to the exercise of certain statutory powers (see presumptionsA.12.1 and A.12.3 above). With respect to the acts of a corporate body, the board of such a body may, by analogy to the relationship of principal and agent, be regarded as the “principal”, while the corporate body’s employees, including in particular its chief executive officer, are its “agents”. In a non-statutory corporate body the articles of association may limit or exclude the operation of the agency principle with respect to any of the body’s employees. The founding enactment of a statutory body may do likewise with respect to its employees. In the absence of such limitations, the presumption of agency will favour the validity of all transactions between the statutory body’s employees and third parties that are not ostensibly unauthorised (such as criminal acts). It is not practicable to insist that every act of a statutory body’s employees must be specifically authorized or ratified by its governing body, as this will hinder the smooth functioning of the body with respect to third parties (in this respect, when defining the word “Corporation”, “Authority” or other term by which the statutory body will be known in a statute, add a paragraph to the definition along the following lines: “Corporation... (a) in relation to anything done or to be done by the Corporation, means the Corporation acting through its Board or through an employee in terms of this Act”)
l 7.5 The Casus Omissus presumption.
Formerly, this presumption required the courts to find that anything omitted from a statute was deliberately omitted by the Legislature. This presumption has since been modified into a presumption that the legislature intends the courts to correct obvious drafting errors and obvious drafting omissions. The basis for this presumption is that obvious drafting errors and obvious drafting omissions should not vitiate a statute. The courts may, for this purpose:
supply a word or phrase that has manifestly been omitted from a provision through a drafter’s or printer’s error;
transpose words or clauses in a sentence where the sentence is without meaning as it stands;
supply, omit or transpose punctuation marks to render sentences meaningful.
However, there are 3 conditions for the presumption’s application by the courts, namely that:
1 . The mischief intended to be remedied by the statute must be capable of precise determination.
2 . The omission on the part of the drafter or printer must be apparent and inadvertent.
3 . The language that the legislature/drafter would have employed must be capable of being determined with certainty.
l 7.7 Presumption about rules of evidence
In judicial or quasi-judicial proceedings conducted pursuant to any statute, the ordinary common law rules of evidence apply unless the statute in question expressly excludes or modifies them.
7.8 Presumption against the continuity of State pensions and terminal benefits
There is a presumption against the continuation of the pension rights of members of the Public Service who are transferred out of the Public Service to some other form of direct or indirect State employment. Where a statute transfers members of the Public Service to the employment of a statutory body, the members in question will become entitled only to those terminal benefits applicable to the abolition of their offices, unless the statute provides for the preservation or transfer of the Public Service pension rights of such members.
RELATED PRESUMPTIONS
Presumption against Infringement of Fundamental Rights
“A fundamental right is one explicitly or implicitly implied guaranteed by the constitution.” [Ballard v. Commonwealth, 228 Va. 216 (1984).
One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result.
Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights, which would operate retrospectively or which would take away property without compensation. The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at p 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.
Presumption of Liberty and Onus: International Convention (US)
As per the European Convention of Human Right, Art. 5 deals with liberty: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”. The presumption of liberty of an individual
is based on this convention. It operates as per the international obligations.
Presumption of Liberty and Onus was accepted by the parties that there is a presumption in favor of liberty at common law in Scotland as well as in England and no doubt other jurisdiction. This has not been removed by paragraph 2 of Schedule 3 to the 1971 Act which does not create a presumption in favor of detention on completion of a sentence of imprisonment. The onus lies on the Secretary of State to justify detention and continued detention pending removal.
Presumption of Sovereign Immunity: Concept of Sovereignty (US)
Presumption of Sovereign Immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, "the king (or queen) can do no wrong".
There is a strong presumption of sovereign immunity in US. The presumption is like non applicability of statutes against the Crown or that no statute shall apply to crown unless it is expressly stated so. The federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortuous act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.
In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment re-affirms that states possess sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak, the court explained that we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the
judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." In Alden v. Maine, the Court explained that while it has sometimes referred to the States’ immunity from suit as "Eleventh Amendment immunity [,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.
In other cases decided: "The United States is entitled to immunity from suit without its consent". Muirhead v. Mecham, [2005] USCA1 333; 427 F.3d 14, 17 (1st Cir.2005). In the case Of Muirhead [supra] the Court stated some principles on the concept of Sovereignty and to whom the umbrella of protection would be available .It observed thus:
“It is beyond cavil that, as the sovereign, the United States is immune from suit without its consent”, and it was also observed that:
“Because the mandamus statute applies only to officers and employees of the United States, rather than to the United States itself, the statute does not create any new cause of action against the government. It simply gives the court’s jurisdiction in those instances in which substantive law already provides a remedy. Accordingly, the provisions of the mandamus statute do not waive the sovereign immunity of the United States.[ Coggeshall Dev. Corp. v. Diamond, [1989] USCA1 416; 884 F.2d 1, 3 (1st Cir.1989); Doe v. Civiletti, [1980] USCA2 856; 635 F.2d 88, 94 (2d Cir.1980).]
It was also stated in the Case of Muirhead [supra] that:
“These holdings do not end our odyssey. Although the government enjoys broad protection through the operation of the sovereign immunity doctrine, that doctrine does not necessarily shield federal officers to the
same extent. Sloan Shipyards Corp. v. U.S. Shipping Bd. Emerg. Fleet Corp., [1922] USSC 91; 258 U.S. 549, 567[1922] USSC 91; , 42 S.Ct. 386, 66 L.Ed. 762 (1922) finds that, although government officers may act as instrumentalities of the government, a government agent, "because he is an agent, does not cease to be answerable for his acts"; Coggeshall Dev., 884 F.2d at 3, notes that certain suits against individual government officers "will not be considered against the United States, and thus will not be barred by sovereign immunity". Where, as here, a plaintiff brings suit against a federal employee rather than against the government itself, an inquiring court must analyze the claim to ascertain whether, despite the nomenclature, the suit is, in reality, a suit against the United States.
The court in this case also made an observation in regard to a test in this regard as what is not Sovereign in the meaning of the test. It observed thus:
“This is a unitary test, but both the conduct challenged and the relief sought may have a bearing on its outcome. As for conduct, "if the [challenged] actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign" and come under the protective umbrella of sovereign immunity, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 695[1949] USSC 108; , 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). As for relief, a suit, although nominally aimed at an official, will be considered one against the sovereign "if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act", Dugan v. Rank, 372 U.S. 609, 620[1963] USSC 64; , 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). When a plaintiff seeks specific performance, the answer to the inquiry about relief hinges on whether the redress obtained against the officer will, in practical effect, be obtained through the sovereign, Larson,337 U.S. at 688, 69 S.Ct. 1457.”
Presumption against Retrospective Operations: Exceptions
Perhaps no rule of construction is more firmly established than this: a retrospective effect should not be given to a statute so as to impair an existing right or obligation, except on procedural matters, unless the
outcome cannot be avoided without doing violence to the text. If the writing of the text may give rise to several interpretations, we must interpret it as having to take prospective effect only.
The presumption that the legislative does not intend an Act to apply retrospectively was stated in Hamilton v Hamilton. Henchy J said:
"When an Act changes the substantive, as distinct from procedural law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary."
Henchy J characterized the rule as a universal one, and emphasized that (contrary to the statement in Maxwell ) the rule applied to all pending enactments, unless the language irrefutably stated otherwise.[Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)
Presumption against Interference with Pending Litigation
If an enactment operates retroactively, as it does in this case then, by definition, it applies to pending litigation. It would be illustrated with the following Citation.
In general, new statutes affecting substantive matters do not apply to pending cases, even those under appeal. Since the judicial process is generally declaratory of rights, the judge declares the rights of the parties as they existed when the cause of action arose: the day of the tort, the conclusion of the contract, the commission of the crime, etc. A new statute that is substantive will not apply to pending cases, unless it is retroactive in the true sense of the word, that is, unless it operates in the past and modifies the law in effect on the day of the tort, the crime, the contract, etc. A pending case, even one under appeal, can be affected by a retroactive statute, even one enacted pending appeal.
Presumption of Correctness
Presumption of Correctness is a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Constitutional Validity of Statute (Weakens-US Courts)
A central tenet of constitutional law is that the judicial power to declare a statute unconstitutional is an exceptional one, which should be used only when “unavoidable.” It is therefore hardly surprising that federal courts have placed limits on their power of judicial review. One of the principal limitations is the presumption of constitutionality.
Under that presumption, courts assume facts necessary to satisfy constitutional tests developed by the courts. Thus, for example,when a court reviews legislation for reasonableness, the presumption of constitutionality requires the court to assume facts necessary to establish the reasonableness of the law. The presumption, in other words, involves a form of factual deference.
The burden of proof is on the one attacking the constitutionality of a statute, a certain presumption of constitutionality is to be attached to legislative action. formulation of this doctrine can be traced back to the early part of the nineteenth century.
As applied to the general field of the law of evidence, the concepts of burden of proof and presumptions are to be distinguished. the former refers to the duty of going forward with the evidence, and the risk of non- persuasion of the judge or jury.
Presumption that Legislature is aware of existing State of Law
This particular presumption falls under the category of the presumption of correctness of a statute. It is a strong presumption that the legislature is aware of the laws. It is more of a common-sense approach to presumption. But it has its significance if there are two statutes on the same subject or if there are provisions of the statutes that are in conflict. Tension is then resolved by referring to this presumption. Hence it is the underlying reason for the general rule in statutory construction that the courts must first harmonize the statutes existing since they are both deemed to be correct by the legislature.
"The legislature is presumed to know the law when enacting legislation. [Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005)] We must therefore presume that the legislature knew that both a preliminary hearing and a grand jury indictment operate as screening procedures for probable cause determination when the legislature enacted Code § 19.2-218. Nevertheless, the legislature decreed that "no indictment shall be returned in a court of record against any such person prior to such hearing . . . ."
By the plain language of the statute, the validity of any indictment against a person who has been arrested prior to the indictment depends on the occurrence of a preliminary hearing or a valid waiver. To decide that a subsequent indictment cures any violation of Code § 19.2-218 would be to ignore the command of the legislature."
Under it, there are several possible interpretations including the Presumption that the legislature is aware of the existing judicial interpretation given to words and provisions. Where the courts have construed the language in a statute, the legislature is presumed to intend that the same construction is to be placed upon such language in subsequent statutes on the same subject matter.
Presumption that Amending Acts Have Meaning
There is a general presumption that amendments are carried out for some purpose and every statute has an object. The same is stated as follows: "However, when current and prior versions of a statute are at issue, there is a presumption that the General Assembly, in amending a statute, intended to effect a substantive change in the law."
Presumption about Special Statute and General Statute
The Supreme Court repeatedly has affirmed that it is a presumption of statutory construction that, “where both general and specific statutes appear to address a matter, the General Assembly intends the specific statute to control the subject."
Presumption against Substantial Alteration of Law: Amending Statute
When amendments are enacted soon after controversies arise "as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act, a formal change-rebutting the presumption of substantial change."
In other words, it is to be understood that when an act is amended, it may serve as an interpretation to the original law.
Presumption of Deference and Weight to Interpretation
"The construction of statutes by agencies charged with administration of those statutes is entitled to great weight.”
A decision of an agency charged by the General Assembly with statewide administration, unless it is clearly wrong, carries great weight and is entitled to deference.
The grant of regulatory authority extends only to duties or powers conferred by law. As such, "regulations, promulgated pursuant to definitive statutory authority, have the force and effect of law. Moreover, those regulations which "clearly and explicitly mirror" statutory authority are likeliest to be sustained.
Any regulation of the Department must be reasonably grounded in an identifiable and definitive statutory foundation.
"Generally, the court accords substantial deference to an agency's interpretations of its own regulations.”
Provided the interpretation "does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.”
Presumption that Statutory Construction is Core to Judiciary (US)
The core interpretive concepts on which principles of legislative interpretation are based are not, of course, unique. Nor are they limited to the interpretation of legal documents.
Electronic research tools make writing about statutory interpretation both exciting and a little daunting. If most cases decided by Australian courts in recent years have involved the application of legislation, all of those cases are worthy of investigation. The process of selecting cases on which to concentrate is therefore not without risk. But the task is worthwhile.
“The law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of the law are determined entirely by statute. No area of the law has escaped statutory modification.”
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the Latin phrase Stare decisis et non quieta movere: stand by decisions and do not disturb the undisturbed. In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.
Presumption about General Awareness of Legislature
Aside from the presumption that congress knows the rules of statutory construction, and that congress knows the old laws. It is also presumed that the congress knows the valid customs, traditions, and it is also presumed that congress knows the needs of the public.
Presumption that Greater Power includes Lesser Power
The principle that the grant of a greater power includes the grant of a lesser power is a bit of common sense that has been recognized in virtually every legal code from time immemorial. It has found modern expression primarily in the realm of constitutional law.
While this principle has nested less frequently in the criminal law context, it is fully applicable in that milieu. To illustrate, we use an example that bears a strong family resemblance to the problem at hand. The federal sentencing guidelines originally stated that "an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." Three courts of appeals, including this one, refused to understand this provision to require an all-or-nothing choice between imposing an incarcerative sentence within the guideline range or imposing no prison sentence. The courts reasoned that, despite the unvarnished
language of the provision, the greater departure (no incarceration) necessarily included the lesser departure (a prison sentence below the bottom of the guideline sentencing range).
Presumption that delegated Power would be used rationally
The Court has historically been reluctant to entertain facial attacks on statutes, i.e., claims that a statute is invalid in all of its applications. Our normal approach has been to determine whether a law is unconstitutional as applied in the particular case before the Court.
There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorize the interference of a court.
There being no showing that the law had been unconstitutionally applied to plaintiff in error, his conviction was affirmed. "One who is required to take out a license will not be heard to complain, in advance of application, that there is a danger of refusal. He should apply and see what happens." Other cases are to the same effect. Thus, the usual rule is that a law requiring permits for specified activities is not unconstitutional because it vests discretion in administrative officials to grant or deny the permit. The Constitution does not require the Court to assume that such discretion will be illegally exercised.
Presumption that Parliament Observed Procedures during Enactment (US)
Judiciary has no authority to look into Parliamentary proceedings for the purpose of enactment and process. Courts have no powers whether explicit or implicit in this regard.
Presumption of Delegation of Power to legislate
This presumption ponders on the difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary contrues the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is subject of delicate and difficult inquiry, into which a court enter unnecessarily. In other words, there is a recognized necessity of permitting the legislature to give to the other departments of government the necessary leeway in the execution or instruction of the law and the delegation to them of power to establish rules and regulations designed to effectively carry out the legislative intention.