Attorney General's Reference (constitutional Questions) Act Cap 17.18 of the Revised Laws of Saint Lucia v Attorney General Referring to the Court for Hearing and Consideration of Important Questions Relating to Sections 41(2), 41(7), 107 and 108 of the Saint Lucia Constitution Order 1978 [ECSC]
| Jurisdiction | St Lucia |
| Judge | Dame Janice M. Pereira,Mitchell JA (AG),Chief Justice,LOUISE E. BLENMAN,Justice of Appeal,DON MITCHELL,Justice of Appeal [Ag.] |
| Judgment Date | 24 May 2013 |
| Judgment citation (vLex) | [2013] ECSC J0524-4 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | SLUHCVAP2012/0018 |
| Date | 24 May 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mde. Janice M. Pereira Chief Justice
The Hon. Mde. Louise E. Blenman Justice of Appeal
The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]
SLUHCVAP2012/0018
The Attorney General of Saint Lucia
2nd Floor Francis Compton Bldg.
Waterfront, Castries, St. Lucia
PEREIRA, CJ: The Parliament of Saint Lucia enacted theAttorney General's Reference (Constitutional Questions) Act1 ("the Act") in 2005. This Act enables the Court, 2 on a reference made by the Attorney General ("the AG") with the approval of the Cabinet to, inter alia, interpret the Saint Lucia Constitution Order 1978 ("the Constitution") where a question arises in respect of the interpretation of any provision of the Constitution and to certify to the AG its opinion thereon. Any question so referred is deemed to be an important question. The AG has referred, pursuant to the Act, the following questions for the Court's consideration:
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(1) Whether the reference in section 41(7)(a) of the Constitution should properly be to section 108 instead of section 107. If yes, was the reference to 107 an error.
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(2) If the answer to question 1) is yes, whether the error may be judicially corrected merely upon the determination of this application by the Attorney General, or by an application by the Attorney General to a judge of the High Court, or, must the error be corrected by an alteration to the Constitution.
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(3) If the answer to question 1) is yes, whether the Agreement Establishing the Caribbean Court of Justice signed on February14, 2001 and ratified by Saint Lucia on July 5, 2002 and enacted into the laws of Saint Lucia as the Caribbean Court of Justice (Agreement) Act, No. 34 of 2003 constitutes an international agreement to which Saint Lucia is a party for the purpose of the provisions of section 41(7)(b).
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(4) If the answer to both questions 1) and 2) is yes, whether for the purposes of an alteration of the Constitution to replace appeals to Her Majesty in Council with appeals to the Caribbean Court of Justice, the Agreement between Saint Lucia and the United Kingdom referenced in section 41(7)(a) —
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i. may validly be entered into by Saint Lucia alone or in common with one or more other States of the Organization of the Eastern Caribbean which may have similar constitutional provisions;
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ii. may validly be entered into prior to the passage of the bill referred to in section 41(2);
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iii. and, if the answer to question 4(ii) is no, at what point in the process of any such alteration of the Constitution pursuant to section 41 may the said international Agreement be entered into.
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(5) If the answer to question 1) is no, which "Court (or Courts) having jurisdiction in Saint Lucia" is referenced by section 41(7) of the Constitution.
In considering these questions the Court has been ably assisted by Senior Counsel appearing on behalf of the AG; Queen's Counsel on behalf of somemembers of the Saint Lucia Bar Association who put forward a legal opinion given by Dr. Lloyd Barnett, prepared at the request of the Saint Lucia Bar Association; counsel on behalf of other members of the Saint Lucia Bar Association; counsel on behalf of the Leader of the Opposition in Saint Lucia. Also present at the hearing was Mr. Richard Williams, attorney-at-law, attending the proceedings on behalf of the Attorney General of Saint Vincent and the Grenadines, whose Constitution is said to contain a similar reference as section 41(7)(a) of Saint Lucia's Constitution. The Court is indeed grateful to all counsel for the stimulating, thought provoking and diverse views put forward. We have benefitted tremendously from the arguments advanced. The Constitution, being the supreme law of the State of Saint Lucia, there can be no doubt that these questions which touch and concern the justice system are of great general public importance.
In this opinion reference to "Her Majesty in Council", the "Privy Council" and to the "Judicial Committee of the Privy Council" is a reference to the same court and variously so called in different enactments.
There is general consensus as to the answers to the questions posed at 2), 3) and 4). It is in relation to question 1) that the views diverge and which drew much discussion. That question may essentially be stated thus: 'Is the reference to section "107" in section 41(7)(a) of the Constitution (instead of to 108) an error, that is, a typographical or printing error, which should be corrected, or does the section read as the framers of the Constitution intended it?' In essence, 'did Homer, in the person of the draftsman of section 41(7)(a), nod'?
It is helpful to examine some general principles that are relevant to the issues that are raised. There is also general consensus that the Court is empowered to:
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(1) interpret the provisions of the Constitution. This power is expressed in the Act; and
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(2) that in the exercise of that power of interpretation, the Court may correct an error.
It is also accepted that the interpretation exercise must be conducted with great care. Sir Rupert Cross in his Treatise3 had this to say:
"The cases thus demonstrate that both today and in Lord Halsbury's time, judges have not been slow to correct mistakes which the legislature has made. Of course there must be an exceptionally strong case for the exercise of the wholly exceptional power of rectification, and of course it is essential that the courts should so far as possible stick to the ordinary meaning of statutory words, but this does not mean that they should throw their hands up in despair, not always unmingled with satisfaction, when the ordinary meaning produces a preposterous result. As often as not it is a matter of taste whether such results are avoided by the technique of necessary implication or by rectification, but avoided they should be like the plague."4
TheCivil Code of Saint Lucia, 5 enacted in the 19th Century and which has undergone many amendments over the years, contains the following articles which remain binding in Saint Lucia up to the present:
"9. The Court or Judge cannot refuse to adjudicate under pretext of the silence, obscurity, or insufficiency of the law.
10. When a law is doubtful or ambiguous, it is to be interpreted so as to fulfil the intention of the Legislature and to attain the object for which it was passed."6
InStock v Frank Jones (Tipton) Ltd. [1978] 1 WLR 2317 Viscount Dilhorne stated:
"It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it' ( Coke 4 Inst.330)." 8
Lord Scarman added these words at page 239:
"If the words used by Parliament are plain, there is no room for the 'anomalies' test unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words 'have been inadvertently used,' it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated:per MacKinnon L.J. in Sutherland Publishing Co. Ltd. v Caxton Publishing Co. Ltd. [1938] Ch. 174 [1938] Ch. 174, 201 3 Sir Rupert Cross: Statutory Interpretation (3rd edn.,Oxford University Press).4 ibid at p. 105.5 Chap. 4.01, Revised Laws of Saint Lucia 2008.6 Section II, Articles 9 & 10.7[1978] 1 WLR 231 (HL).8 At p. 234F-G. This is an acceptable exception to the general rule that plain language excludes a consideration of anomalies, i.e. mischievous or absurd consequences. If a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, e.g. used "and" when "or" was clearly intended, the courts can, and must, eliminate the error by interpretation. But mere 'manifest absurdity' is not enough: It must be an error (of commission or omission) which in its context defeats the intention of the Act." 9
InInco Europe Ltd. and Others v First Choice Distribution (a firm) and Others [2000] 1 WLR 58610 Lord Nicholls of Birkenhead, in construing a section of the Arbitration Act 1996 [UK] in respect of a provision concerning rights of appeal to the Court of Appeal stated as follows:
"… It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule,Statutory Interpretation, 3rd ed. (1995), pp. 93-105. He comments, at p. 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.'
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting...
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