Judges should communicate how they approached interpretation

Dear Editor,

Judges can promote social order when they use a clear interpretation methodology and display it in their rulings. The predictability and consistency so produced would enable lawmakers to better craft legislation, knowing in advance how courts will interpret the law. More so, public confidence in the court system increases when judges communicate how they approached interpretation, especially in complex or controversial cases.

In the American judicial and legal academic circle, while no uniform approach to constitutional and statutory interpretation commands consensus, much ado is made of which  school of thought should underpin judicial deliberations. Should it be textualism (the approach that holds that interpretation starts and ends with the written words themselves, or as famously stated, “The text is the law”); or purposivism (interpretation should elevate the stated purpose or problem the particular law is enacted to address); or intentionalism (the legislative history of the law matters, if not trumps); or originalism (meanings of constitutional provisions should remain what they were at the time of enactment) or its opposite, living constitutionalism (meanings should change with the times).

As numerous US cases have shown, a judge’s favoured interpretation strategy (for example: text first, anything else after, if at all) can produce different conclusions and legal guidance.  On matters where the law is ambiguous or silent, how (and not just what) judges decide becomes more critical.

It is within this self-imposed framework that I read CJ George’s ruling on the Gecom “any other fit and proper person” case and also recalled former CJ Chang’s rulings on constitutional issues, especially the so-called Jagdeo term-limit case. Elements of the different interpretation schools are clearly present in these rulings, but I did not discern a preferred interpretation strategy or methodology.  Fortunately, in the Gecom list case, had the controlling factor been either the plain text of Article 161, or its purpose, or its legislative history, the conclusion would have been the same: that “any other fit and proper person” includes non-judicial persons, such as teachers and geologists.

In contrast, however, in the term-limit case, different approaches arguably may have delivered different conclusions. Likewise, in the Scott/Felix technocratic ministers case, purposivism and textualism (at least the former CJ’s interpretation of the text) would likely clash.

So it matters how judges approach interpretation. Thus, our judges should be guided by a methodology, which they ought to reveal for the benefit of lawmakers and the public especially in contentious and hard cases. The US Supreme Court, for example, likes to highlight its approach by using wording in its opinions such as “Starting with the text of the statute… ”  or  “For those who consider legislative history relevant…” or, as in its 2015 blockbuster Obamacare II (King v Burwell) statutory purpose-over-text opinion: “A fair reading of legislation demands a fair understanding of the legislative plan”.

Outside of these concerns lurks another possible problem our courts should confront. It is this: recent rulings on constitutional cases have likely strayed into policy- and law-making, both the exclusive domains of the parliament and the voters who decide its composition. In the term-limit case, the court delved deep into political philosophy to tell us what is good for (“enhances”) and bad for (“diminishes”) democracy. In the Gecom list case, on the specific issue of whether the President ought to give reasons for rejecting a list, the court seems to be equating what is politically desirable (a legislative choice) with what is constitutionally mandated.  It is not whether the court’s opinions on these matters are right or wrong. It is that the courts have no business pronouncing on policy choices and unlegislated extensions of the law.

A final concern: to what extent should interpretation be influenced by case law that post-dates the writing (and context) of the statute or article at issue?

Yours faithfully,

Sherwood Lowe

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