Presumption As To Jurisdiction

Presumptions A presumption is a legal notion that allows a judge or jury to assume a certain fact is true if another fact, or set of facts, can be proven by a party to the case. In addition to the rules, specific presumptions may be applied by the courts when faced with uncertain cases. These provide primary principles enforced on the statue to be interpreted. Some presumptions of statutory interpretation are: i)The presumption against ousting the jurisdiction of the courts ii)The presumption that persons should not be penalized except under clear law iii)The presumption toward fairness and justice v)The presumption of constitutionality v)The presumption against changes in the common law vi) The presumption against altering existing rights vii)The presumption against the retroactive operation of statues The presumption against ousting the jurisdiction of the courts Except by the pure and stated words of a statute, the court will presume that the jurisdiction of the courts will not be ousted or avoided.

However, case law illustrates ouster clauses that are clearly expressed in legislation.

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Ouster clauses in English Law by Zoe Kirk-Robinson states that an ouster clause is a provision in a Parliamentary statute which excludes certain actions and decisions from judicial review; in the interests of the smooth administration of justice. Often, where a statute seeks to oust the jurisdiction of the courts, the court will devise ways and means to circumvent the ouster. The presumption that persons should not be penalised except under clear law If words in a strict statute are indistinguishable and there are two rational interpretations, the more lenient one will be applied to an accused.

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The presumption dictates that there is legal certainty before persons are sanctioned; so as to give those affected by the new law a chance to understand the penalties which may be levied against them. The presumption toward fairness and justice Professor Rose-Marie Belle Antoine states in Commonwealth Caribbean Law and Legal Systems that “it is to be presumed that Parliament intends to further the ends of justice.

Thus, where there are two conflicting constructions of an enactment, the court will ‘strive to avoid adopting a construction that leads to injustice’” The presumption of constitutionality Parliament is supposed to make laws which are in conformity with the Constitution. The presumption of constitutionality of a statue or provision occurs when two possible interpretations for a statue occur – one favoring while the violating, the one that is in favor of the constitution, is taken as valid.

The provision which is unconstitutional should be avoided and when proved to be unconstitutional, should become void. The presumption against changes in the common law The court will contain the abrogation of the common law in its interpretation of statute to only what is necessary to give effect to the intention of the Act. The presumption against altering existing rights Statute should not be given a construction that would have the effect of encroaching existing rights.

Such statutes that have that effect are to be interpreted strictly and preserving those rights. The presumption against the retroactive operation of statues It is presumed that Parliament does not intend to alter the law applicable to past events, so as to change the rights and obligations of the parties in a manner which is unfair to them because reaching into the past and declaring the law to be different from what it was violates the rule of law. Thus, its rationale is to prevent the harsh and chaotic operations of law.