The venerable Lord Denning in his seminal book, the Closing Chapter, Butterworth’s, 1983 at page 93 on the legislative approach or purposive approach in the construction of statutes as:
“…..The judges ought not to go by the letter of the statute. They ought to by the spirit of it. As to what is meant by the spirit, Lord Denning gives this answer at page 98 of his book of the above reference.
“The Judges always say they look for the intention of the legislature. That is the same thing as looking for its purpose. They do it in this way. They go by words of the section. If they are clear and cover the situation in hand, there is no need to go further. But if they are ambiguous or doubtful the judges do not stop at the words of the section.
They will call for help in every direction open to them. They look at the statute as a whole. They look at the social conditions which gave rise to it. They look at the mischief which it was passed to remedy. They look at factual ‘matrix’. They use every legitimate aid.”
I will quote in graphic the statement by Jeremy Taylor in his book, Holy Living at page 189 as follows:
“In obedience to human laws we must observe the letter of the law where we can, without doing violence to the reason of the law and the intention of the law- giver; but where they cross each other, the charity of the law is to be preferred before his discipline, and the reason before the letter.”
This paper seeks to analyse the decision of the Supreme Court in the JUSAG case supra and the interpretation placed on the word ‘JUDICIARY’ in light with the Constitutional provisions as stated in articles 126(1), 127(4) and (5) of the Constitution 1992.
It is my humble estimation, respectfully to the Highest Court of the Land, that his Lordships placed a narrow and mechanical meaning on the word ‘judiciary’ as stated in the constitutional provisions supra. His Lordships interpretation using the narrow and literal approach to interpreting constitutional provision in this modern era of our jurisprudence runs counter to modern jurisprudence in constitutional interpretation.
This was a case that bordered on the interpretation of certain provisions of the Constitution 1992 and for the purposes of this paper I will limit my discussions to provisions of articles 126(1), 127(4) and (5) of the Constitution 1992, because most of the issues raised in the case has been brilliantly dealt with by the court. It behoves the court to apply the principles of constitutional interpretation as the yardstick in arriving at its decision. Lately, in our legal jurisprudence, constitutional interpretation abhors the primitive doctrinaire and literal approach to interpreting constitution. However, I know his lordships are not oblivious of this fact. In the celebrated case and oft-quoted case of Tufuor v Attorney the Supreme Court faced with the interpretation of the constitution said:
“The Constitution has its letter of the law. Equally, the Constitution has its spirit. 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. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of time.”
Justice Aharon Barak, President of the Supreme Court of Israel, also said thus:
“….the aim of interpretation in law is to realize the purpose of the law; the aim in interpreting a legal text (such as a constitution or a statute) is to realize the purpose for which the text was designed. Law is thus a tool designated to realize a social goal.”
The learned justice is of the view that the purposive approach to interpreting a Constitution is the preferred approach and therefore strict and doctrinaire approach has outlived its usefulness and it is therefore behind time.
In a more recent case of Sabbah(No.2) v The Republic (No.2), the Supreme stated per Wood CJ at page 422 that:
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