Avoiding an absurd result: the spirit of the Constitution
The nature of the 1992 Constitution necessitates adopting a broad approach in its construction and interpretation. The above cases have expressed that interpretations leading to absurd outcomes should be avoided. In cases where a particular interpretation yields two inconsistent results, the spirit of the Constitution compels the preference for the more reasonable outcome. It is essential to consider the Constitution as a whole; therefore, when a literal interpretation would result in an absurdity, it becomes the duty of the Supreme Court to avert that absurdity by championing an interpretation that aligns with the spirit of the Constitution.
Interpretation of the Constitution must be done with the basic premise that it will not lead to absurdity. This principle must function in tandem with the principle of predictability which requires that there is an avoidance of negative surprises in the making and enforcement of law.
Benevolent construction of provisions conferring a right of appeal
Before embarking upon a detailed discussion, it is necessary to preface it by saying that it is the manifest intention of the Constitution to provide within defined limits a further forum of appeal, see articles 105 and 106 of the Constitution. In considering these articles pertaining to appeals and rights of appeal to the Supreme Court, this court ought to lean towards such interpretation as will convey the intention into effect unless, of course, there are express provisions to the contrary.
Construction of fundamental human rights provisions
Constitutional human rights and freedoms provisions are entitled to the most benevolent and liberal construction on account of their very essence - entrenched constitutional laws pertaining to fundamental rights and freedoms. Thus, a narrow and restrictive interpretation, in a manner that fail to advance individual rights and liberties is not permissible. Article 14 (1) explicitly delineates the constitutional and therefore only valid limitations to the right to personal liberty. Article 14(1)-(4) which enumerates the conditions for curtaliment, is thus subject to a strict and narrow construction. Also, any substantive or procedural legislation which is inconsistent with the enumerated grounds, risks nullification on grounds of unconstitutionality.
Duty of the courts where the legislature fills a gap
Where judges have pointed out a gap in legislation and the legislature acts to fill the gap, it becomes the duty of judges to implement the corrective measure enacted by the legislature and not to defeat it.
Effect of a change in the law on pending proceedings
As a general rule, when there is an alteration in the law during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was commenced, unless there is a clear intention in the new statute that it is to apply to pending proceedings.
The property insured under this item was described as “contents, consisting of stocks of sugar, milk powder, syrup, essence and the like.” Bicycles cannot be the like of sugar, milk powder, etc. True, bicycles may be used with advantage in the ice cream trade but to say that it is of the same genus as sugar, milk powder and essence, would be doing too much violence to language. I think the two bicycles were not insured and ought to be held excluded from the property insured in item one by the rule of construction known as the ejusdem generis rule.
Counsel for the applicant-company has shown that this maxim is one of the aids of construction and where its application would result in manifest injustice, it is never applied. In Dean v. Wiesengrund [1955] 2 Q.B. 120, C.A. the English Court of Appeal refused to apply the maxim where its application would lead to injustice and be capricious in its operation. The court adopted the passage from Colquhoun v. Brooks (1888) 21 Q.B.D. 52 at p. 65, C.A. namely, “The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”
Following an earlier judicial interpretation of the same provision
The position of the law remains steady and firm that in construing a statute, it is legitimate for the court to refer to an earlier decision of a court that has pronounced on and or given judicial interpretation to some provisions of the Act in question, as a guide. Put differently, when a court is faced with a provision in an enactment that has already been authoritatively interpreted upon, it is legitimate for the previous decision to be followed to ensure consistency and predictability.
There is no need to strike down the phrase “as at date of making declaration,” because it is not in itself repugnant to Article 286 when the statute is properly administered. For it is “trite law that all the provisions of a statute are intended to have effect and such construction should be made that, if possible, all such provisions have effect. It is also trite law that the courts must always interpret a statute ut res magis valeat quam pereat.”
The recognised hierarchy of laws in common law countries including Ghana are: Constitution/constitutional statutes (if any); primary legislation (Acts of Parliament); secondary legislations made under constitutional or statutory authority (subsidiary/delegated legislation; common law including decisions of the superior courts, practice directions and notices issued under enactments and judgments; local bylaws; and purely advisory such as guidelines, circular, and internal memoranda.
Implied provisions and the spirit of the Constitution
In my view, the purposive approach to interpretation of our Constitution requires that in the context of this case implicit words be read into the Constitution to avert a manifest absurdity. It has to be remembered that there is room for the unwritten in a written constitution. The fact that a country has a written constitution does not mean that only its letter may be interpreted. The courts have the responsibility for distilling the spirit of the Constitution, from its underlying philosophy, core values, basic structure, the history and nature of the country’s legal and political systems etc., in order to determine what implicit provisions in the written constitution flow inexorably from this spirit.
The authority of the courts to imply such a provision through purposive interpretation is not a licence for the judges to re-write the constitution. The interpretative authority is a limited one to make explicit what is implied within the penumbra of the letter of the Constitution, given the Constitution’s objective purpose, core values and underlying philosophy. The living Constitution, as famously referred to by Sowah JSC (as he then was) in Tuffuor v. AG [1980] G.L.R 637 at p. 647, comprises both the letter and spirit of the Constitution. From within the penumbra of the letter of the Constitution may be implied such provisions as are essential for effectuating the purpose and spirit of the Constitution.
We are fortified in our view by the established principles of constitutional interpretation, which require that constitutional provisions should be interpreted broadly, liberally, generously, or expansively in line with the Constitution's spirit, history, aspirations, core values, principles, and to promote and enhance human rights rather than diminishing them.
Numerous decisions of this Court make clear that, when it comes to the interpretation of a provision of the Constitution, a purposive, expansive and contextualist approach to construction best serves our purposes. In Kuenyehia v. Archer [1993-1994] GLR 525, this Court opined that: "A constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. It appears that the overwhelming imperatives are the spirit and objectives of the Constitution itself, keeping an eye always on the aspirations of the future and not overlooking the receding footsteps of the past. It allows for a liberal and generous interpretation rather than a narrow legalistic one."
The basic rule in the interpretation of statutes including the Constitution is that, courts must strive to uphold the plain meaning of the statutory provisions under construction. In the case of Republic v. High Court, Accra (Commercial Division); Ex parte Hesse (Investcom Consortium Holdings SA and Scancom Ltd. - Interested Parties) [2007-2008]2 SCGLR 1230, Wood CJ referred to her earlier decision in the case of Republic v. High Court, Accra; Ex-parte Yalley (Gyana and Attor Interested Parties) [2007–2008] SC GLR 512 in which her ladyship examined the case law on statutory interpretation and observed that in the construction of statutes, the literalist, ordinary, plain, or grammatical meaning, should be adhered to, if it clearly advances the legislative purpose or intent and does not lead to any outrageous or absurd consequences.
It appears to us that both the Court of Appeal and the Supreme Court in Asante-Appiah v Amponsah were looking for a magic word "witness" with a signature against it on the document. This approach places form over substance but there is no basis for such an extreme literalist interpretation from even a casual reading of the Act as a whole. The Act contains a precedent form for a general power of attorney as a Schudule to section 6 of the Act. That precedent form is very simple and no portion with the word witness is to be found on it. In the interpretation of statutes, a court ought to render an interpretation that would achieve the purpose of the enactment and not to defeat it. See Abu Ramadan & Nimako v EC & A-G [2013-2014] 2 SCGLR 1654.
In interpreting constitutional language, one should ordinarily start with a consideration of what appears to be the plain or literal meaning of the provision. But that should not be the end of the process. That literal meaning needs to be subjected to further scrutiny and analysis to determine whether it is a meaning which makes sense within its context and in relation to the purpose of the provision in question. In other words, the initial superficial literal meaning may have to yield to a deeper meaning elicited through a purposive interpretation.
The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation.
The state of the law of interpretation is that the Long Title and Preamble to an enactment form part of the law and an aid to interpretation. See: Den v Urison 2 N.J.L 212 (1807). Indeed, if there was any lingering doubt as to whether long title and preamble did form part of our laws, Section 13 of the Interpretation Act, 2009 [Act 792] has put the matter to rest. For, that provision of the law is to the effect that the long title and the preamble form part of an Act intended to assist in explaining the intent and object of the Act. Thus, the current state of the law in Ghana is that the Long Title and Preamble form part of the law.
It is often said that the preamble is the key to an Act of Parliament and section 2 of the Interpretation Act, 1960 (C.A.4.), lays it down that the “long title and preamble form part of an Act intended to assist in explaining the purport and object of the Act.”
The first thing to note in article 19(2)(d) of the 1992 Constitution is the fact that it is mandatorily couched. This is confirmed by the use of the word “shall” appearing in the provision. Section 42 of the Interpretation Act requires the Court to place a mandatory meaning on the word “shall” wherever it appears in a statutory provision unless the context otherwise requires.
The phrase "shall be deemed" is a legislative device which is resorted to when a thing is said to be something else which it, in fact, is not. When a thing is to be "deemed" something else, it is to be treated as that something else with its attendant consequences.
Persuasive value of foreign decisions on a constitution
As a general rule, decisions of Constitutional and other Superior Courts interpreting their countries’ constitutions are not binding on the Supreme Court of Ghana because our Constitution is sui generis. At best, such decisions have a persuasive effect on our courts, and, in the past, we did rely on some of these decisions whose ratio we found relevant to the issues before us.
It is settled rule of construction of statutes that when the words are clear and unambiguous, the fundamental rule is that they need not be interpreted or construed. They are given effect to, per Tindal CJ in Alban v Pyke 134 ER 172 @ 174 as adopted and applied by this court in Koglex (No. 2) v Attieh (No. 2) [2003-2004] SCGLR 75 @ 85.
The framers of the Constitution used the phrase “before taking office” must be given its ordinary meaning, as nothing in the context suggests a special or technical meaning. It signifies that, the act of declaration is a condition precedent to entering office, not a retrospective duty that can be fulfilled at the pleasure of a person after assumption of office.
In interpreting the constitutional provisions, we ought to first resort to the plain ordinary meaning of the words of the provisions and apply them as they appear, unless the plain meaning will lead to an absurdity.
In summary then, whereas the original jurisdiction to interpret and enforce the provisions of the 1992 Constitution is vested solely in the Supreme Court, every court and tribunal is duty-bound or vested with jurisdiction to apply the provisions of the Constitution in the adjudication of disputes before it. And this jurisdiction is not taken away merely by a party's reference to or reliance on a provision of the Constitution. If the language of that provision is clear, precise and unambiguous, no interpretation arises and the court is to give effect to that provision.
If the words of the statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature…. Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise”
It is said that the application of the maxim in this case would work injustice or hardship. But an answer to that argument is that if the precise language of an enactment is clear and unambiguous it is the duty of the court to enforce it, though the result may be unjust, arbitrary or inconvenient. It is not the duty of the court to make the law reasonable, but to expound it as it stands.
In the interpretation of statutes there is a fundamental principle that a legislative enactment ought to be construed more in harmony with the established common law principles than in opposition to it, for, as Dr. Carleton K. Allen states in his famous book Law in the Making (1964) (7th ed.) (Oxford Paperbacks), 456, “A general intention is presumed in the legislature to fit new enactments into the general structure of the law and to effect no more change than the occasion strictly demands.
It is a fundamental principle in the construction of statutes that they operate only on cases and facts which came into existence after the statute was passed, unless a retrospective effect is clearly intended. It is also a well-recognised principle that a statute is not to be construed to have greater retrospective operation than its language renders necessary.
The Supreme Court, which is the only body clothed with the interpretation of the Constitution of Ghana, should interpret it as a living instrument whose letter requires broad and benevolent interpretation to reveal its spirit or purpose, notwithstanding how narrow its language may seem to be, to be able to discover its objective purpose which is the objective meaning at the time of its interpretation. In constitutional interpretation, account shall be taken of time, circumstances, political, economic, social, and cultural developments to be able to ascertain both subjective purpose and objective purpose.
There is a long line of decisions by this Court which have reiterated the fact that when it comes to the interpretation of the constitution, a living, breathing document which is the heartbeat of the aspirations of the Ghanaian people, a purposive, expansive and contextualist approach to its construction may best serve our purposes.
Reading a statute consistently with the Constitution
The Court’s task is to interpret legislation in a manner that upholds the Constitution wherever possible, rather than hastily invalidating statutory provisions that are capable of a constitutional construction. This principle of harmonious or benevolent interpretation has been part of our constitutional jurisprudence.
He conveniently creates such a connection by reading into Article 187(3) an exclusive right of the Auditor-General to the documents of a public office needed to conduct an audit. No such exclusivity is evinced by the provision. The express OMISSION of the word SOLE, (which word has been used in the first relief sought by the plaintiff) in the wording of the provision prevents this court from granting the said relief because it would mean importing a restrictive meaning into those clear provisions.
Taylor JSC thus expresses himself in favour of gap filling in a limited range of circumstances. He regards this as part of the process of judicial interpretation in the common law tradition. The principle that I derive from Sasu v. Amua Sakyi is that, in exceptional cases, additional text may be imported into an enactment in order to give effect to its purpose.
It is the Courts that give flesh to statute law and without the interpretation and application of the law by the Court, no legally cognizable meaning and effect may attach to any statute however plain the language of a statute may seem to be.
Rules made under an Act as an aid to its construction
It is a principle in the interpretation of statutes that where the language of an Act is ambiguous and difficult to construe the court may call in aid in its construction the rules made under the provisions of the Act.
In the words of the late Rowlatt J. whose outstanding knowledge of this subject was coupled with a happy consciences of phrase, “in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied.
