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PRESUMPTION IN AID OF STATUTORY CONSTRUCTION AND INTERPRETATION
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PRESUMPTIONS

In construing a doubtful or ambiguous statute, the Courts will presume that it was the intention of the legislature to enact a valid, sensible and just law, and one which should change the prior law no further than may be necessary to effectuate the specific purpose of the act in question.

For example know in Criminal law the presumption is that the accused person is innocent until the prosecutor has proved its case against the accused. In corruption cases the accused person has to proved its case against the accused (Article 13 (6) (b)).

In corruption cases the accused person has to prove how he came by what might be alleged to have been acquired corruptly.

In the Law of Marriage under section 160 of the Law of Marriage Act 1971 when parties have lived together for a period of two or more years under circumstances in which the community conclude they are man and wife there is a rebuttable presumption by the law that they are man and wife. Such a presumption will affect the type of results that a court will arrive at in case there is a problem in the parties' relationship on matters of divorce, custody and maintenance.

Cross maintains that presumptions are of two types. He shares the same view with Granville Williams, Leaning the Law 1982 p 108. They are either negative or restrictive and they form a background of legal principles which an Act or piece of legislation under consideration should be interpreted and that such interpretation must conform with what Parliament intended. For both Cross and Granvile Williams Courts will enforce the Will of Parliament when the law is express and clear because no law is enacted in a vacuum.

PRESUMPTION AGAINST UNCONSTITUTIONALITY

Laws are presumed constitutional. To justify nullification of law, there must be a clear and unequivocal breach of the constitution. The theory is that, as the joint act of the legislative and executive authorities, a law is supposed to have been carefully studied and determined to be constitutional before it was finally enacted. All laws are presumed valid and constitutional until or unless otherwise ruled by the Court.
PRESUMPTION AGAINST INJUSTICE

The law should never be interpreted in such a way as to cause injustice as this never within the legislative intent. We interpret and apply the law in consonance with justice. Judges do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence.

Generally this presumption embody traditional notions of justice. It is expected that bodies which the law confers discretionary powers will exercise them reasonably and will act in accordance with the principles of Natural Justice. In case this is not done courts can invoke presumptions to resque those under the wrath of unjust bodies or tribunals [SYLVESTER CYPRIAN & ZIO OTHERS V THE UNIVERSITY OF DAR ES SALAAM, MISC. CIVIL APPEAL NO. 68 OF 1994 (UNREPORTED), Kyando, J.]

PRESUMPTION AGAINST IMPLIED REPEALS

The two laws must be absolutely incompatible, and clear finding thereof must surface, before the inference of implied repeal may be drawn. In the absence of an express repeal, a subsequent law cannot be construed as repealing a prior law unless an irreconcilable inconsistency and repugnancy exists in terms of the new and old laws.

PRESUMPTION AGAINST INEFFECTIVENESS

In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective statute.

PRESUMPTION AGAINST ABSURDITY

Statutes must receive a sensible construction such as will give effect to the legislative intention so as to avoid an unjust and absurd conclusion. P
resumption against undesirable consequences were never intended by a legislative measure.

PRESUMPTION AGAINST VIOLATION OF INTERNATIONAL

LAW Tanzania as democratic and republican state 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.

In Tanzania such a development has been unshared in by the formal enactment of the Bill of Rights into the Constitution in 1984 (Acts 15 and 16 of 1984) and since then we have noticed judges like Justice James Mwalusanya taking a lead to interpret certain laws depriving
people of their liberty or rights in the light of the Bill of Rights and principles of International law [Daudi Peters ' Case, Mtikila's case, Manyweles's]

PRESUMPTIONS AGAINST EXTRATERRITORIALITY

There are presumptions about the geographical operation of the law in question (presumption against extraterritoriality). In the Union of Tanzania are laws which apply to both Tanzania mainland and Zanzibar and such laws as they are restricted to Tanzania mainland or Zanzibar.

PRESUMPTION AGAINST RETROSPECTIVE OPERATION

What is meant by retrospective operation can be illustrated by the following example: In Tanzania a law was passed in 1984 but it was intended to cover offenses which had been committed in an earlier period i.e. December 1983. The Act was Penal and it did provide that it was to operate retrospectively. Courts in East Africa have had to deal with cases involving laws which were supposed to operate retrospectively and the way courts have dealt with issues arising from such situations can be illustrated by the following: Ibrahim's case [1963] EA 179(?) Uganda v. Nyengeya [1963] EA 106 Municipality of Mombasa v. Nyali , [1963] EA 373

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KEY PRINCIPLES APPLIED IN INTERPRETING THE PROVISION OF THE CONSTITUTION
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The constitution is supreme, it emanates from the supreme power in the state, and therefore, it is incapable of being repealed, annulled or controlled by any other legislative authority.
Despite the fact that Constitution is the supreme and fundamental law of our country but Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to interpretation of the constitution as well. As is the case with any other statute, the court tries to find out the intention of the framers of the constitution from the words used by them.
It is for the courts to pronounce the validity of enactments with reference to a definite rule of law. courts have the power to review the validity of a statute by reference to fundamental principles as laid down or fundamental rights as guaranteed by the constitution.
Having said the above, the fact remains that Constitution is a special act. It is a fact that every provision of the constitution is constitutional and no part of it can be held unconstitutional. This casts an important duty on the interpreters of the constitution to interpret its provisions such that the spirit of the constitution is not maligned.
The constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. To ensure that the new laws are consistent with the basic structure of the constitution, the constitution must be interpreted in broad and liberal manner giving affect to all its parts and the presumption must be that no conflict or repugnancy was intended by its framers.
Applying the same logic, the provisions relating to fundamental rights have been interpreted broadly and liberally in favor of the subject. Similarly, various legislative entries mentioned in the Union, State, and Concurrent list have been construed liberally and widely.
The following are some of the key principles applied specially in interpreting the provisions of the constitution:-

Principle of Harmonious Construction

Principle of harmonious interpretation is similar to the idea of broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. As per Kelly: “Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.
” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme.

When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort.


Doctrine of Pith and Substance

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature
of a statute. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list.

The doctrine is concerned with the issue whether classes of subjects covered under the Act come within an item in the central list. It is applied by Courts to determine the “legislative competence” of a legislature in regard to a particular enactment when challenged with reference to the entries in the various list. For example, the list of “Union matters” in the Constitution of the United Republic of Tanzania, 1977 (as amended).

Doctrine of Colourable Legislation

This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a round about manner is also unconstitutional. This doctrine is found on the wider doctrine of "fraud on the constitution". A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.

Objectives based on colourable legislation have relevance only in situations when the power of the legislature is restricted to a particular topic and an attempt is made to escape legal fetters imposed on its power, by resorting to forms of legislation calculated to make the real subject matter.

Principle of Incidental or Ancillary Powers

This principle is an addition to the doctrine of Pith and Substance. What it means is that the power to legislate on a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is not always sufficient to determine the constitutionality of an act by just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter referred in the act is essential to give affect to the main subject of the act. For example, power to impose tax would include the power to search and seizure to prevent the evasion of that tax.

Similarly, the power to legislate on Land reforms includes the power to legislate on mortgage of the land. However, power relating to banking cannot be extended to include power relating to non-banking entities. However, if a subject is explicitly mentioned in a
State or Union list, it cannot be said to be an ancillary matter. For example, power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of t

Doctrine of Parliamentary supremacy or Sovereignty

Parliament should not take away the power of Courts to strike down ordinary legislation when tested against the Constitution. Courts have no power to pronounce on the validity of a Constitutional amendment if the prescribed procedure for amendment has been followed by Parliament. I n principle the constitution has no retrospective effects.

The Doctrine of Severability

This doctrine is applied mostly in human rights cases where the Court is called upon to strike off particular provisions of legislation that are found to breach Constitutional provisions that guarantee human rights DPPV Daud Pete [1997] LRC (Const.) 553

The doctrine of Eclipse

Can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening Constitutional in consistency

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QUESTIONS FOR FURTHER REFLECTION
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Qn.1 Discuss the principles of Constitutional Interpretation in detail. Explain, "In the interpretation of constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and elastic than rigid". Describe - Harmonious Construction, Doctrine of Pith and Substance, Colourable Legislation, Proviso, Doctrine of Eclipse, Principle of separation. What is the proper function of a proviso? Can it affect the enacting portion of a section as well?

Qn. 2 Discuss the rules of statutory interpretation with the help of decided cases. Explain - Literal Rule, Mischief Rule (aka Rule in Haydon's care), Golden Rule, Rule of Harmonious Construction, Noscitur a sociis, Ejusdem generis, Reddendo singul singuis. State the circumstances when these rules are applied by the courts.

Qn. 3 Conceptual development of the law of negligence (tort(s) is examined as a process not as something, which just developed at once. Explain the validity of this statement with reference to law of negligence in Tanzania.

Proviso is a clause or part of a clause in the statute, the office of which is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent. “Provided” is the word used in introducing a proviso

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APPLICATION OF THE COMMON LAW DOCTRINE IN ENGLAND
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The common law doctrine of precedent works on the basis of hierarchy of authority. The core of the doctrine is that previous binding decisions of superior courts within the same judicial hierarchy are accorded authority by the courts lower in hierarchy (vertical obligation) and appellate courts are bound by own decisions (horizontal obligation.

STARE DECISIS IN ENGLAND

Before 1966 (The Old Rule): After 1966 (The New Rule)

The decisions of the House of Lords bind all courts below it.
The house of lords was bound by its own previous decisions.
This has been stated in the case of BEAMISH V. BEAMISH [1895] VOL 9 HL 274as well as LONDON STREET TRAMWAY CO. V. LONDON COUNTRY COUNCIL [1898] AC 375

Note: Obiter dicta by itself are not a precedent but it can be taken as formation of the new rule.

EXCEPTION TO THE OLD RULE

(i)

Decision in ignorance of statute
Even though a court may know of a statute, yet it does not appreciate its relevance to the matter, such a mistake is such incuriam as to vitiate the decision.
(ii)

Conflicting decisions

The House of Lords is not bound by its own previous decisions that are in conflict with one another. Such a situation can arise in two ways as follows;
The conflicting decision may have originated at a time when the binding force of the precedent was not recognized.
The conflicting may have arisen due to inadvertence that is in forgetfulness of an existing precedent.
Whether a relevant prior decision has not been cited before the court, the court must have acted in ignorance or forgetfulness of it, and the new decision if given in conflict with the old it is given per incuriam and it is not binding on some public policy particularly commercial was not binding if social conditions have changed.

AFTER 1966 (THE NEW RULE)

The House of Lords can depart from its own previous decisions when it appears right to do so. This has been the base Per Lord Chancellor in the PRACTICE STATEMENT was given (1966) 1 W.L.R. 1234 or [1966] VOL 3 ALL ER 77
APPLICATION OF PRECEDENT IN ENGLAND (THE COURT OF APPEAL
In England we may success in the old version system of the court and between the new versions of the court system. In England the court decision were binding to that apex court to that particular time. The court which is referred as the apex court is the House of Lords. The previous decision or current decisions of House of Lords bind to the other courts as well as the House of Lords itself.

THE COURT OF APPEAL OF ENGLAND

(a)

House of lords decision is binding Exception: Conflicting decisions and
Per Incuriam decisions.

BROOME V. CASS [1971] 2 QB 354
The Court of Appeal was not supposed to follow the previous decision of the House of Lords because it was given per incuriam.
The Court of Appeal is bound by its own previous decisions. The Court of Appeal of England is absolutely bound by its own decisions and by those of older courts of co-ordinate authority for example The Court of Exchequer Chamber. This has been given in the case of YOUNG V. BRISTOL AEROPLANE CO. [1944]K.B. 718
Exceptions for not being bound by own decisions.
If the decision is in conflict with another, it is bound to choose between the conflicting decisions.
If the earlier decision of the court though not overruled, cannot stand with the decision of the House of Lords.
If the decision was given per incuriam, that is, in ignorance of a statute or rule having statutory effect which would have affected the decision had it been brought to the notice of earlier court?
If the decision is disapproved by the Privy Council.
WORKS FINANCE CO. V. GOO [1971] VOL 1 ALL ER

The Court of Appeal is not bound to follow its own previous decision if it was disapproved by the Privy Council.
The Court of Appeal is not bound by decisions of the Court of Appeal. They are courts of co-ordinate jurisdiction so they cannot be bound by its decisions. The decisions of the Privy Council are only persuasive, that is, do not bind courts in English legal system.

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2024 Calendar para tukod sa bag-ong Simbahan
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𝙌𝘼𝘾𝙎 𝙐𝙋𝘿𝘼𝙏𝙀 | QACS Seminarians Sing Carols to the Bishop of Tagum

Tagum City, Philippines - The beloved Bishop of Tagum, Most Rev. Medil S. Aseo, DD., was serenaded with Christmas songs by the seminarians of the Queen of Apostles College Seminary today, December 18, 2023.

The seminarians of the prestigious seminary offered a heartwarming performance of traditional Christmas carols to express their love and gratitude to the Bishop.

The event was a joyous occasion that brought together the seminarians, the Bishop, and the faculty of the seminary.

The Bishop was deeply touched by the performance and expressed his gratitude to the seminarians. He also took the opportunity to remind everyone of the true meaning of Christmas and the importance of spreading love and compassion during the holiday season.

The serenade was a testament to the strong bond between the Bishop and the seminary, and highlighted the importance of fostering relationships between the Church and its institutions.

In memory of Most Rev. Ronald Lunas, D.D., we invite you to join us for the Wake Mass with special live coverage 4 AM, then his departure to the Diocese of Digos will follow.

Your presence and prayers are deeply appreciated.