PURPOSIVE APPROACH TO INTERPRETATION: A JUDICIAL USURPATION OF LEGISLATIVE POWER? by Frederick Agaaya Adongo

In enacting laws, the legislator may, out of oversight or for purposes of legislative convenience, be unable to state all that he intended to be included in that particular piece of legislation. Also, there may be uncertainty as regards the import of a statutory or constitutional provision. Then again, in determining the validity or otherwise of a statutory provision, that is, in testing the provision in the legal laboratories to see whether it is in tandem with the spirit and letter of the Constitution, attempts may be made to ascertain what exactly the provision means. For these and many apparent reasons, the framers of the 1992 Constitution have given the Supreme Court the power to interpret laws and enforce the Constitution by the consolidated effect of articles 130 and 2(1) of the Constitution, 1992. In an attempt to interpret laws, the courts have, on a case by case basis, developed a number of approaches that could be used in interpreting laws. The commonest and predominant approach in modern constitutional jurisprudence is the modern objective and purposive approach to interpretation. Concerns have been raised by many legal luminaries that this approach amounts to judicial legislation under the guise of interpretation. Is this contention tenable? This piece, brief as it shall be, seeks to find answers to the question whether the purposive analytical interpretative approach sins against any fundamental principle(s) of our legal system.

Proceeding therefrom, one is entitled to ask whether this power to interpret laws gives judges the unfettered right to do whatever they wish with the laws which they are called upon to interpret? Can they substitute their own ideas for what the framers of the law intended? The cause of the maintenance of sanctity in our legal system and the promotion of trust in the judicial system would necessarily trigger one to answer this question with thoughtless haste in the negative. The critical question, therefore, is as regards what should guide the judiciary in discharging its duty of statutory and constitutional interpretation. In an attempt to unravel the rules governing the construction of statutes or constitutions, one comes close to a piece of legislation which serves as a guide to the judge in his task of interpretation, that is the Interpretation Act, 2009 (Act 792). The section of the Act that is germane to the present discourse is the entirety of section 10 of the Act which deals with the aids to interpretation. It provides as follows:

(1) Where a Court is concerned with ascertaining the meaning of an enactment, the Court may consider;

(a) the indications provided by the enactment as printed, published and distributed by the Government Printer;

(b) a report of a Commission, committee or any other body appointed by the Government or authorised by Parliament, which has been presented to the Government or laid before Parliament as well as Government White Paper;

(c) a relevant treaty, agreement, convention or any other international instrument which has been ratified by Parliament or is referred to in the enactment of which copies have been presented to Parliament or where the Government is a signatory the explanatory memorandum as required by article 106 of the Constitution and the arrangement of sections which accompanied the Bill;

(b) pre-parliamentary materials relating to the enactment;

(c) a text-book, or any other work of reference, a report or a memorandum published by authority in reference to the enactment, and the papers laid before Parliament in reference to the enactment;

(d) the parliamentary debates prior to the passing of the Bill in Parliament.

(2) Subject to article 115 of the Constitution, a Court shall have recourse to parliamentary debates under subsection (2), where the legislative intention behind the ambiguous or obscure words is clearly disclosed in the parliamentary debate.

(3) Without prejudice to any other provision of this section, a Court shall construe or interprete a provision of the Constitution or any other law in a manner

(a) that promotes the rule of law and the values of good governance,

(b) that advances human rights and fundamental freedoms,

(c) that permits the creative development of the provisions of the Constitution and the laws of Ghana, and

(d) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana.”

Following from the above, it is worth deciphering whether these aids to interpretation have any binding force. At least the obiter dictum of the Supreme Court in the case of Prof. Stephen Kwaku Asare v. Attorney General [2003-2004] SCGLR 823 suggests that they are not. Therein, S.K Date-Bah JSC stated that “rules of interpretation are not to be understood as binding courts in the same way as the ratio decidendi of a case is binding on subsequent courts. The so-called “rules” of interpretation are merely guides or aids to judges in deciphering the meaning of words they are required to interpret.” Essentially, the courts are not mandated to adopt a particular aid to interpretation. Thus, from the provisions of the Interpretation Act as produced in extenso above, a court confronted with the issue of interpretation can fall on any of the aids to interpretation to fulfil its obligation of interpretation. The Interpretation Act has basically sought to give statutory backing to all the rules of interpretation as enunciated by the courts on a case by case basis, namely the ordinary meaning (lexical definition) rule, the golden rule, the mischief rule and the modern objective and purposive approach to interpretation, as rules to which recourse can be had by any court interpreting a statutory or constitutional provision. The author does not intend to expend time discussing all these rules of interpretation in detail, as they are already familiar friends of every student of our country’s legal system and methods.

But regardless of the rule of interpretation that one adopts, the authorial intent must always be realized in the interpretation that would be given, in order for same to be regarded as perfectly within the four walls of the law. The court has, on numerous occasions, sought to advance an interpretative approach that brings to the fore what the authors of the provision, the meaning of which is the subject of contention, intended. Thus, the courts held in Home Building & Loans Association v. Blundell [1934] 290 US 398, Tuffour v. Attorney General [1980] GLR 634 and Republic v. Tommy Thompson [1996-97] SCGLR 486 to the effect that a court in interpreting any provision must be careful in doing so, in order to effectuate the intention of those who framed it. The Halsbury’s Laws of England has also effectively sought to advance this methodology of interpretation in several volumes of it. Halsbury vol.12 para.1459, for instance, advocates that the object of all interpretation of a written instrument should be the realization of the real intention the ones who authored it, as same is regarded to be the written declaration of the minds of those who framed it. To do this, the courts are required to construe it contextually and wholly to bring out the probably hidden meaning of the text. On this point, Prof. Kludze JSC poignantly opined in the case of Prof. Stephen Kwaku Asare v. Attorney General [2003-2004] SCGLR 823 that “language is a tool for expressing the wishes of the speaker, author or writer. Therefore, regardless of the theoretical classification of the methodology of construction, the fundamental rule is for the court to construe every enactment with the purpose of effectuating the true intent of the lawmaker, in this case the intent of the framers of the 1992 Constitution. All other canons of construction have the ultimate purpose of achieving this goal. I do not think that mere recourse to dictionaries of the English language will resolve the issues which confront us or render any easier the task we are called upon to perform.”

The task of interpretation becomes even more herculean and calls for more diligence and caution when constitutional interpretation is involved. In the Tuffour case, the oft quoted dictum of Sowah JSC is instructive. He there said: the language of the Constitution “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. 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 the time. And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law.”

In the words of Acquah JSC in the Tommy Thompson case, “what is required of us is originality in the interpretation of our Constitution paying attention to the words in such a way as to advance the intent of the framers – intent nurtured on our peculiar history and social circumstances.”

Despite the numerous styles of interpretation, the recent jurisprudence of our country suggests that the courts have virtually moved away from the construction of statutes according to the ordinary lexical meanings of the words embodied in the statutes and leaned towards the modern objective and purposive approach to statutory interpretation, which is by far the predominant approach adopted by the Supreme Court of Ghana. This trend of judicial attitudinal metamorphosis is what Lord Steyn described in the case of R v Secretary of State for Health; Ex Parte Quintavalle [2003] UKHL 13 as a swing of the pendulum towards the purposive construction of statutes. One significant point to note is that, these rules of interpretation are not watertight compartments. Any of the approaches may be applied in a matter to enable the judge to unveil the true import of the text under consideration, provided that would be the most plausible approach in the particular instance. Hence, it is not the case that a judge in interpreting a statute is bound to apply a particular approach. The circumstances of the case and the provision to be interpreted may inform a judge’s decision to adopt a particular rule of interpretation or another or a combination of several. Thus, Prof. Modibo Ocran JSC exquisitely posited in the case of Nii Nortey Omaboe III and Others v. Attorney General and Lands Commission [2005-2006] SCGLR 579 that the rules of interpretation “are not necessarily pitted against one another. In constitutional interpretation, it is not a matter of making an a priori selection of one technique of interpretation to the utter exclusion of the others, but of reading the text and appraising the context to decide which of the plausible techniques of interpretation would be more appropriate under the circumstances.” To that extent, therefore, the court may begin its interpretative task by adopting preferably the plain meaning approach, and if that does not aid the court in arriving at the best of interpretations, the court can then explore other approaches, towards providing a sound interpretation of the text involved in a manner that is in near rigorous conformity with the intention of its framers.

To my mind also, a judge may have recourse to an interpretative approach that draws from a combination of any two or more of the rules of interpretation, if that would more advance the cause of justice and reveal also the intent of those who framed the provision which calls for interpretation.

With this background, I shall now revert to the crux of this essay. Here, I would endeavour to discuss briefly what the purposive approach to interpretation entails. Thereafter, this approach would be considered jurisprudentially to determine its veracity and justification or otherwise.

Having said that, the purposive approach to statutory interpretation was popularized in the Ghanaian legal system by S.K Date-Bah JSC in the case of Prof. Stephen Kwaku Asare v. Attorney General [2003-2004] SCGLR 823. This approach to interpretation requires judges to look beyond the written text of the provision in question and seek to ascertain the intention of the framers of the legislation in question to be able to give a sound interpretation of it. By means of this theory of interpretation, as advocated by the learned justice, where the intention of the legislature, though ascertained, is not what a hypothetical reasonable man would have intended, taking into account the prevailing legal system in question, the court may interpret the provision under consideration to give effect to the intention of that hypothetical reasonable man. In this light, he distinguished between two different purposes: the subjective and objective. In effect, the court should first look out for the intention of the framers of the provision in question. Once this is ascertained, the task may not end there. The court may be required to test the intention of the framers as identified against the background of what a hypothetical reasonable man would have intended, given the particular legal system. This was poignantly summed up by Date-Bah JSC in the following terms.

“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute. On the other hand, the objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values, etc of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realization, through the given legal text, of the fundamental or core values of the legal system. … The distinction between subjective and objective purposes of a legal text can be significant. An emphasis on the objective purpose may be important in order to respond to social and other change. At the same time, authorial intent (subjective purpose) cannot be ignored. The interplay between subjective and objective purposes, therefore, has an important influence on a judge’s approach to constitutional and statutory interpretation.”

On the same point, the Supreme Court, again speaking through Date-Bah JSC in the case of Frank Agyei Twum v. Attorney General and Bright Akwetey [2005-2006] SCGLR 732, noted that “…though an initial superficial reading of a provision may convey a particular meaning, further reflection on the provision, taking into account the context and core values of the Constitution, may lead to a different construction of the provision. This further reflection may identify a gap in a provision, whereas at first sight it might have been thought to be complete and to bear a particular plain meaning. Having identified such gap, the issue then arises as to whether the gap is to be filled and whether it is legitimate for judges to fill the gap.” He thereby indicated that it may in certain circumstances be necessary for the court to imply words into a statutory or constitutional provision, in order to reveal the true meaning of that provision, provided such an implication of words would not be at variance with the spirit of the Constitution, which he described as “the unspoken core underlying values and principles of the Constitution.”

Having considered briefly what the purposive approach to interpretation is, it is necessary to consider whether or not this approach to interpretation is called for. Much as this approach may be progressive in its outlook, it is, construed as whole, unnecessary and amounts to an unjust and unwarranted usurpation of legislative power by the judiciary, thus blurring the distinction between the legislature and the judiciary which are supposed to be independent of each other by virtue of one of the structural pillars and foundation stones of our legal system: the concept of separation of powers. Perhaps, the oft quoted statement of Oliver Wendell Holmes Jnr, one of the key and instrumental proponents of the realist school of jurisprudence, that “the prophesies of what the courts will do in fact and nothing more pretentious are what I mean by the law” is seen glaringly by the application of this approach to interpretation. By this approach to interpretation, laws are treated like malleable clay in the hands of judges who can twist and turn the laws in whatever manner they deem fit, perhaps to suit their whims and caprices, with almost no limitation. Thus, probably nothing outside the opinion of the judge can be considered as law, except where same can be envisaged as a possible opinion of a court of interpretation.

Apart altogether from the immediately preceding observation, what constitutes a great worry to me is not so much the adoption of the purposive approach to interpretation as the distinction between objective and subjective purposes. The subjective purpose allows the judge to go beyond the written words of the statutory or constitutional provision to seek to ascertain with exact certainty the intention of the legislators or drafters. To that extent, it is perfectly lawful, as the ascertainment of the intention of the framers of any statute should and must be the primary consideration in the interpretation of it. However, the objective purpose which gives the judge the power to reject the discovered intention of the framers if that intention is not what a hypothetical reasonable man in the shoes of the drafters would have intended, given the circumstances, is not rightly within the purview of the law. The question that arises is: who is the supposed hypothetical reasonable man? The judge? Most probably, or should I say certainly!

If that be the case, provided what is to be construed is a statute, can the judge be more reasonable than the numerous parliamentarians? Benjamin Cardozo famously noted in his seminal article titled ‘The Nature of the Judicial Process’ that the courts “are free … to shape their judgments in accordance with reason and justice. That does not mean that in judging the validity of statutes they are free to substitute their own ideas of reason and justice for those of the men and women whom they serve.” Back to the question I posed earlier about whether the judge is more reasonable than the parliamentarians, I answer this in the negative without any reservation. The judge who has knowledge probably only of the law cannot be deemed to be more reasonable than the numerous parliamentarians who are a conglomeration of people with diverse qualifications and who have a wealth of knowledge in several other disciplines, apart from the law. There are lawyers, doctors, technocrats, bankers, accountants, teachers, engineers, and several other professionals in Parliament. The expertise of people from these different backgrounds is brought together in the enactment of laws, since laws are made which cover most, if not all, of these areas of specialization. So if all these numerous professionals are unable to revert their minds to the underlying legal system, values, history etc of the country and make appropriate laws thereto, is it the judge or a few judges alone who, as I indicated, may only have knowledge of the law, who would be in a better position to determine the objective purpose of the provision by disguising himself or themselves as the “hypothetical reasonable author”? Can the judge be more knowledgeable and reasonable as regards principles of accounting for instance, which may be embodied in a statute, than an expert in accounting who may have taken part in the legislative process of that law which hinges on accounting principles? This is doubtful. Hence, what parliament has not intended should never come within the contemplation of the judge in carrying out his interpretative duties. In consequence thereof, the objective purpose is uncalled for.

That is not to say that the judge cannot quash what parliament has passed into law. What I am saying is simply that the court cannot provide an interpretation that runs counter to the intention of parliament or the lawmaker. If the court interprets the law as parliament intended it and finds it as sinning against any constitutional provision, the court should not be timorous. It should be bold enough to say so without fear and trembling, and proceed to declare same as unconstitutional, and should not seek to interpret the provision by bringing into it what the framers never contemplated and hiding under the cloaks of the hypothetical reasonable man.

Therefore, it is my opinion that only when the intention of the legislature is found that the courts may imply what is not stated expressly in a statute, because the call for brevity or legislative oversight may have accounted for the inability to express fully what parliament actually intended. Accordingly, therefore, the court in carrying out its interpretative duty is required to look for the real intention of the framers of the statute, and when that cannot be found in the provision itself, recourse can be had to the travaux preparatoires, parliamentary records or other relevant ancillary documents as stated in section 10 of the Interpretation Act to identify what parliament or the lawmaker intended. When that is identified, same and nothing more should be considered as the meaning of the provision. For this reason, the interpretation given by the court in the case of Frank Agyei Twum v. Attorney General and Bright Akwetey [2005-2006] SCGLR 732 can be justified.

By way of a brief exposition of the facts of the case, the second defendant, who is a lawyer and a citizen of Ghana, on 16th January 2006 sent a petition, dated 13th January 2006, to the President, with a copy to the Chief Justice. Further copies were also sent to the Secretary of the Ghana Bar Association, the Attorney-General and the Judicial Secretary. The petition sought the removal of the Chief Justice on the grounds of judicial misconduct and abuse of power. On March 9th 2006, the President’s Press Secretary issued a public statement that in compliance with article 146 of the Constitution, the President was setting up a committee to inquire into the petition. The Plaintiff complained that the appointment of a committee by the President to inquire into the petition was unwarranted and unconstitutional. He therefore invoked the original jurisdiction of the Supreme Court, in his capacity as a citizen of Ghana seeking, inter alia, a declaration that article 146(6) of the Constitution shall be construed concurrently with Article 146(3) and (4) which requires the establishment of a prima facie case prior to the setting up of a Committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court. To be able to have a reasonable apprehension of the case, it is relevant to reproduce the clauses of article 146 that were germane to the resolution of the case.

(3) If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.

(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.

(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.

In its holding, the court noted, inter alia, as follows: “a literal reading of the provision, therefore, could lead to the floodgates being opened for frivolous and vexatious petitions being continuously filed against a serving Chief Justice, with two Supreme Court judges being perpetually tied down to hearing such petitions, alongside the other members of the committee that the President has to appoint. This is a scenario that would weaken the efficacy of the top echelon of the Judiciary.” The justification on the basis of the opening of floodgates, it must be noted with due respect to the apex court, is not so sound a justification. If the judges and other appointees are tied down to hearing such cases involving the removal of a sitting Chief Justice, they ought to hear those matters and determine them on their merits, because that is part of their duties. If the appointees are tired of doing so, they can resign! Other willing souls will readily take their place. “E no be force”!

It goes without saying that the reasonable justification however that one can find in the judgement of the court in that case, to which there is a call to obeisance, is the fact that the court identified some evidence from the legislative history of article 146(6) which confirms that the failure to provide for a prima facie determination may have been the result of legislative oversight, as the Proposals for a Draft Constitution of Ghana, prepared by the Committee of Experts actually provided for a prima facie determination to be made against the Chief Justice before the removal processes proper could commence. Therefore, quite clearly, the failure to include a prima facie determination was most likely a mere legislative inadvertence. The court therefore concluded that “it is clear that the Committee of Experts which formulated the original draft of the 1992 Constitution intended that the Chief Justice should also have the benefit of a prima facie determination, before a committee was empanelled to examine a petition for his or her removal.” This position taken by the court is unimpeachable. It would have been too absurd and outside the functions of the judiciary if the court had not found any such extrinsic evidence and went on a frolic of its own to insert any words into the provision.

In conclusion, it is worth noting that there is a reason why governmental powers are dispersed among different branches of government. The judiciary should not be seen to be making unnecessary incursions into the spheres of any of the other organs of government, especially the legislature, as that would be tantamount to an afront to the concept of separation of powers. Bearing this in mind, it would be too far-fetched and patently out of context, therefore, for a court, in seeking to find the meaning of a statute or its provision thereof, to look for any possible construction of it that sharply deviates from the intention of those who framed it. That will be tantamount to judicial legislation, and must be condemned at all cost. Hence, the objective purpose as advocated by Date-Bah JSC should be rejected as irrational and not necessary. That which is necessary is the subjective purpose which seeks to identify what the law maker intended. This is because, as Lord Denning, who has been described by Prof. Modibo Ocran JSC in the Nii Nortey Omaboe case as the indomitable judicial spirit of all times, and who is a chief advocate of the purposive approach to interpretation, indicated in Notham v London Borough of Barnet [1978] 1 WLR 220) the purposive approach is one that seeks to “promote the general legislative purpose underlying the provisions”. Then again, in Pepper (Inspector of Taxes) v. Hart [1993] AC 593, Lord Browne Wilkinson referred to “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature”. It is not for the judge to pose as a reasonable man, just so he could render nugatory any legislation through interpretation, hence reducing to futility the work of they whose duty it is to make laws.

To adopt the words of one poet, hope is my young girl that wakes up fresh every morning. It is hoped that one day, the Supreme Court will heed this clarion call to reject the application of the objective purpose in interpretation and always seek to advance the intendment of those who are called upon to make laws.

SAY NO TO OBJECTIVISM IN STATUTORY AND CONSTITUTIONAL INTERPRETATION!