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Opinions of Sunday, 25 December 2005

Columnist: Asare, Kwaku S.

Plain Meaning v. Purposive Interpretation

▬ Constitutional Jurisprudence at a Crossroad

In Asare v. Attorney General , the Supreme Court announced the death of the ?plain meaning? approach to judicial interpretation. Writing for a unanimous Court (Justice Kludze filed a concurring opinion), Justice Date-Bah provided the epitaph:

?What interpretation is to be given the words should depend upon the court?s perception of the purpose of the provision and the context of the words, rather than on their dictionary meaning. The ?plain meaning? approach to judicial interpretation is not necessarily the most apposite. In my view, words hardly ever have a meaning in vacuo. Words take on a meaning in association with the other words in whose context they are used. Therefore, the interpretation of words almost invariably means doing more than finding their mere dictionary (or ?literal? or ?plain?) meaning.?

The Court did not define the ?plain meaning? approach but the approach is commonly thought of as one where a Judge looks at the words of the constitution and give effect to the ordinary meaning of those words, without trying to infer any intended meanings. The rational behind this approach, which is also called the literalist or textualist approach, is that Judges should interpret the words as written and promulgated to the people, not the unexpressed, and probably hard to discern, intent of the constitutional framers. A plain meaning approach looks for key phrases like "A person who alleges that an enactment . . . is inconsistent with this Constitution may bring an action in the Supreme Court for a declaration to that effect? and finds that ?a person? means any person, not just citizens. Proponents of the plain meaning approach argue that it produces a value-free jurisprudence and it is fair because it gives effect to the law that was promulgated, rather than the law that the lawmaker intended. Critics, like Justice Date-Bah, claim the literalist approach represents a static, non-living document view of the Constitution.

In place of the literalist approach, the Court ?outdoored? its purposive approach to judicial interpretation and applied the approach to the facts of Asare to hold that ?where both the President and the Vice-President are absent from Ghana, they are to be regarded as unable to perform the functions of the President and thus the Speaker is obliged to perform those functions.?
In this note, I show that the pursuit of the purposive approach could lead to absurdities, including, as in Asare, inferring the meaning of article 60(11) of the current constitution from article 38(3) of the 1969 constitution, in spite of the remarkable differences between the constitutions. I also argue that the Court?s purposive approach is incompatible with democratic government and impermissibly allows the Justices to extend their common law powers to the constitutional field.
The facts of Asare are as follows: On 21 February 2002, President Kuffuor wrote to the then Speaker of Parliament, Mr. Ala Adjetey, informing the Speaker that the President would be traveling to Australia to attend the Commonwealth Heads of Government Meeting, scheduled to take place form 2 to 5 March 2002 and that he would be away from Ghana from 24 February until 10 March. He further informed the Speaker that during that period, because the Vice-President would also be absent from the country from the 24 to 27 February, the Speaker was, pursuant to article 60(11) of the Constitution, to act as President for those four days. Accordingly, on 24 February, the Speaker swore the Presidential oath and acted for the President from the 24 to 27 February.

Asare filed a writ at the Supreme Court, invoking the original jurisdiction of the court and sought [1] a declaration that upon a true and proper interpretation of article 60(11) of the 1992 Constitution, the purported swearing-in of the Speaker as President of Ghana, on or about Monday 24 February 2002, is inconsistent with, or is in contravention of the said provision of the Constitution and is therefore unconstitutional, void and of no effect; [2] a perpetual injunction to restrain the Speaker of Parliament and any other person succeeding to the Office of Speaker of Parliament, from performing the functions of President of the Republic of Ghana except in the event of the President and the Vice-President being unable to perform the functions of the President.

Article 60(11) of the 1992 Constitution provides that:

?Where the President and the Vice-President are both unable to perform the functions of the President, the Speaker of Parliament shall perform those functions until the President or the Vice-President is able to perform those functions or a new President assumes office, as the case may be.?

Other relevant provisions of article 60 provide that:
?(6) Whenever the President dies, resigns or is removed from office, the Vice-President shall assume office as President for the unexpired term of office of the President with effect from the date of the death, resignation or removal of the President.
(8) Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the functions of the President until the President returns or is able to perform his functions.?
(9) The Vice-President shall, before commencing to perform the functions of the President under clause (6) of this article, take and subscribe the oath set out in the Second Schedule to this Constitution in relation to the office of the President.?
(12) The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.?

The issue was whether the President and Vice-President were unable to perform the functions of the President during their temporary absence from Ghana to perform official functions overseas.
The Court commenced its interpretative task by acknowledging that ?though there are some Ghanaian cases which appear to lend support to the literalist approach to the interpretation of legal instruments, there are other cases, on the other hand, which lend support to the purposive approach.? The Court then cited 3 cases (Tuffuor v. Attorney-General [1980] GLR 637; Yeboah v J. H. Mensah [1998-99] SCGLR 492; and Benneh v The Republic [1974] 2 GLR 47) that are illustrative of the purposive approach to interpretation and properly noted that these illustrative cases are not to be regarded as binding precedents on the subject of interpretative approach. Curiously, the Court did not cite any illustrative cases of the literalist approach, nor did it even attempt to distinguish the cases that used the literalist approach from those that used the purposive approach.

On this incomplete citation, scant analysis and citing to a 1969 British case (Corocraft Ltd v Pan American Inc [1969] 1 QB 622), the Court provides the conclusory opinion:
?. . . I consider the purposive approach to be more likely to achieve the end of justice in most cases. It is a flexible approach which enables the judge to determine the meaning of a provision, taking into account the actual text of the provision and the broader legislative policy underpinnings and purpose of the text.?
This is hardly satisfying to a curious reader who should want to know why and when the purposive approach serves the end of justice. In the case at bar, the literalist approach would have given effect to the meaning of ?unable to perform,? perhaps by consulting the dictionary that the framers used or perhaps by consulting the common law as it existed at the time the constitution was promulgated to find the meaning that was commonly ascribe to those words. Why is such an approach any less flexible or fail to serve the ends of justice? What is so obscured about the phrase ?unable to perform? that compels us to abandon our linguistic comprehension of those words, in favor of a purposive approach?
But even more fundamentally what is the purposive approach? The Court repaired to a definition provided by an English textbook (Francis Bennion, Statutory Interpretation, 4th edition 2002, at p. 810):
?A purposive construction of an enactment is one which gives effect to the legislative purpose by: (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.?
In other words, the purposive approach is not a search for a meaning of the words at all; it is a search for the purpose behind those words. But whose purpose and where should the Court go the find this purpose? The Court appears to have found the answer from Justice Aharon Barak, President of the Supreme Court of Israel, who points out that:
?[I]n carrying out a purposive interpretation of a constitution or a statute, it is necessary to distinguish between its subjective and objective purposes. The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the farmers 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.?
Put simply, the Court could give effect to the purposive interpretation by searching for the actual intent of the constitutional framers ─ the subjective approach ─ or it could ignore the actual intent of the constitutional framers and search for what a hypothetical reasonable person would have intended given certain core values of the constitution or statute ─ the objective approach.
What determines whether a Court should use the subjective approach or the objective approach when deciding a particular case? Justice Date-Bah does not provide any useful discussion in that direction, except that the Court should balance the subjective and objective purposes of constitutional provisions in order to arrive at an appropriate interpretation.
Applying the subjective-purposive approach to the facts of Asare, the Court held that the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana (presented to the PNDC on 31 July 1992) is the primary source of information for discovering the subjective purposes of the provisions to be construed. Further, because section 19 of the Interpretation Act, 1960 (CA 4), expressly excludes debates on parliament from being used as an aid to construction, the Court held that ?the actual debates in the Consultative Assembly? should be excluded as an ad in the search for the subjective purposes of the provisions of the constitution.
So what did the Court?s search in the Report of the Committee of Experts reveal about article 60(11) and when the Speaker should act for the President on account of the latter?s inability to perform his functions? The Court did not find much help there on this question but appeared to have ?struck gold? in Paragraph 3 of the Report, which states that:
?The Committee operated on the cardinal principle that we should not re-invent the wheel. Accordingly, wherever we found previous constitutional arrangements appropriate, we built on them. In this connection, with appropriate modifications, we relied substantially on some of the provisions of the 1969 and 1979 Constitutions of Ghana to the extent that they are relevant to the general constitutional structure proposed in this report.?
On that paragraph alone, the Court reasoned that the subjective purpose of article 60(11) and its related provisions may be discerned by comparing the relevant provisions in the 1969 and 1979 Constitutions with the provisions in the 1992 Constitution. The Court noted that the 1969 Constitution did not provide for a Vice-President and, therefore, the relevant provision on the performance of the President?s functions during his absence from Ghana resorts to the Speaker.
Article 38(2) and (3) of the 1969 constitution provided as follows:
?38(2) The President shall not leave Ghana without the consent of the Cabinet. (3) Whenever the President dies, resigns, is removed from office or is absent from Ghana or is by reason of illness unable to perform the functions of his office, the Speaker of the National Assembly shall perform those functions until the assumption of office of the President or the President is able to perform those functions.?
Thus, in the 1969 constitution, the framers unequivocally stated that when the President is absent from Ghana, the Speaker is to perform the functions of the office. While the Court properly noted that real executive power, under the 1969 constitution, was wielded by the Cabinet and not by the President, the Court, nevertheless, observed that articles 38(2) and (3) ?may be regarded as possibly the origin of the practice or convention, if there is such, whereby the Speaker may be expected to act for the President when absent from Ghana.? Curiously, Justice Date-Bah did not discuss the differences between the 1969 parliamentary system and the 1992 Presidential system and whether those differences had any implications for discerning the framers? intent in changing the language in the 2 constitutions.
Moving on to the 1979 constitution, the comparable provisions are in articles 47(6)-(8) and (10)-(11): ?47(6). Whenever the President dies, resigns or is removed from office, the Vice-President shall resume office as President for the unexpired term of the office of the President with effect from the date of the death, resignation or removal of the President.
(7). Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office the Vice-President shall perform the functions of the President until the President is able to perform his functions.
(8). The Vice-President shall, before commencing to perform the functions of the President under the provisions of clause (6) of this article, take and subscribe the oath in relation thereto set out in the Second Schedule to this Constitution.
(10). Where the President and the Vice-President are both unable to perform the functions of the President the Speaker of Parliament shall perform those functions until the President or Vice-President is able to perform those functions or a new President assumes office, as the case may be.
(11). The Speaker shall, before commencing to perform the functions of the President under the provisions of clause (10) of this article, take and subscribe the oath of office in relation thereto.?
And how do these provisions from 1979 help us to discern the framers? intention for the wording of current article 60(11)? According to the Court ?it is obvious that articles 59 and 60 of the 1992 Constitution are based on these provisions of the 1979 Constitution with which they are largely in pari materia.? Further,
?Article 47(7) of the 1979 Constitution provides stronger evidence, than the current provision, that absence from Ghana is regarded by the drafters of the Constitution as constituting inability to perform the functions of the President. For, whereas the current article 60(8) speaks in terms of the Vice-President performing the functions of the President, ?whenever the President is absent from Ghana or is for any reason unable to perform the functions of his office? ?until the President returns or is able to perform his functions,? the 1979 provision lumps the two situations into one, proving that the Vice-President is to perform the functions ?until the President is able to perform his functions.? The1979 provision is thus a stronger statement that absence from Ghana is a subset of inability to exercise the functions of the President.?
But why did the framers change the wording in 1992 when they could simply adopt the language from 1979? This question is important because of significant structural changes adopted by the 1992 constitution. For instance, in 1992 there was a fusion of the Presidential and the Parliamentary systems and the President chose majority of his ministers from Parliament. In 1979, the ministers were chosen from outside of Parliament. While the Court appeared to be concerned with this question, it offered a completely unsatisfactory response ? ?Given the declaration by the Committee of Experts referred to above, it is more likely to have been a clarification than a change in policy. In other words, it would seem that the drafters of the Constitution of Ghana since 1969 (my emphasis) have taken the view that the absence of a President from Ghana renders him unable to perform the functions of his office. Accordingly, the Vice-President, or in his absence, the Speaker, is to exercise his functions whilst he is thus disabled.?
I disagree with the Court?s reasoning, even on its own terms of applying the subjective-purposive approach and using the prior constitutions as the tool for this application. It is obvious that the drafters have been rather deliberate in their statements on the succession arrangement and those statements have varied from 1969 to 1992, coextensive with changes in the system of governance. It is highly unlikely that the framers intended the same succession arrangements and varied the words used for no apparent purpose, even though the framers admitted to working with previous drafts of the constitution. Even at paragraph 3 of the Report of the Committee of Experts, on which the Court puts so much reliance, the ?experts? indicate that they built on previous constitutional arrangements whenever appropriate; they built on and relied on some of the provisions of the 1969 and 1979 Constitutions only to the extent that they are relevant to the general constitutional structure proposed in this report. It cannot be sincerely doubted that the constitutional structures of 1969, 1979 and 1992 are different!
Regarding the objective-purposive scale (i.e., what should a prudent or reasonable framer have provided on this issue), the Court indicated that an answer must be ?formulated by reference to the fundamental or core values and the underlying scheme of the 1992 Constitution.? Citing to the plaintiff?s argument of law, the Court noted that the potentially offended core value is the doctrine of separation of powers since the Speaker is the organic head of the legislature and since on swearing in, he assumes, succeeds to and performs the whole functions of another organic head.
Thus framed, the issue becomes whether a hypothetical reasonable drafter of the Constitution would have intended to include absence of the President from the jurisdiction as one of the situations authorizing the Speaker to act for him, in light of the fundamental concept of separation of powers ─ should the Court purposively interpret article 60(11) to avoid undermining the doctrine of separation of powers? In effect, because separation of powers is a core constitutional value, should an objective-purposive interpretation of ?unable to perform the functions? embrace situations of real inability to perform the functions such as grave or terminal illness affecting physical or mental capacity, kidnapping, absconding, missing, etc. and exclude the temporary travel of the President to meet with other Heads of State and Governments?
The Court conceded that ?in theory, there is much persuasive force in the plaintiff?s contention that merely because the President is away from Ghana does not necessarily mean that he is unable to perform the functions of his office, particularly, in the light of modern technological developments in the area of telecommunications and also because of his authority to delegate power to appropriate subordinates.? Nevertheless, the Court sidestepped the theoretical appeal, choosing, instead to focus on the lack of empirical evidence on whether the President is able to exercise his executive authority from abroad. In the words of the Court:
?In practice, however, this argument raises the empirical question whether, given the circumstances of contemporary Ghana and the means of secure communication available to the President when abroad, it is realistic to expect the President to exercise his executive authority from abroad. Neither party provided any evidence on this issue. The [C]ourt, therefore, has not received any assistance on this score.?
The Court concluded the objective analysis on a rather confusing note: ?The express provision of the 1969 Constitution which . . ., is the ultimate origin of the current article 60(11) of the 1992 Constitution, carries with it the implication, . . ., that given the means of communications available to a Ghanaian President when traveling abroad, it is impractical to expect the President to remain fully in charge of the executive branch of government. The issue arising therefore is whether this judgment of the framers of the recent constitution of Ghana remains valid. No evidence was made available to this court to rebut this judgment of the framers.
The reference to ?express provision? of the 1969 constitution has a literalist flavor and, in any event, does not control the express provisions of the 1992 constitution. Further, whatever the implications of the 1969 constitution are or might be, they do not address the doctrine of separation of powers, which the Court earlier concluded was at the heart of the objective inquiry. Finally, it appears that the Court needed evidence, of unspecified character, to be swayed that the President is able to exercise his executive authority from abroad. Apparently, the President?s letter to the Speaker that he was attending the Commonwealth summit was not evidence that he was exercising his executive authority! How all of these fit in with separation of powers and the purposive-objective approach remain unclear.
Putting together (or is balancing?) the subjective and objective analysis, the Court held that ?the purposive interpretation to be given to article 60(11) is that where both the President and the Vice-President are absent from Ghana, they are to be regarded as ?unable to perform the functions of the President? and thus the Speaker is obliged to perform those functions. As the Court puts it:
?the purpose of the framers of the Constitution was to ensure that whoever exercises the functions of the President is physically present in Ghana. This has to do with the framers? assessment of the empirical conditions in Ghana and the efficacy with which executive power may be exercised in Ghana from abroad. There are insufficient counterbalancing considerations from the core values and underlying scheme of the Constitution to justify interpreting the words of article 60(11) in a way which overrides this framers? purpose. The framers? assumption that the President or, in the absence the Vice-President, needs to be present in Ghana in order to perform the functions of the President effectively has not been rebutted.?

In obiter dicta, the Court noted that ?the alleged mischief caused by allowing the Speaker to act as President is not so great as to require departing from the [Court?s] subjective interpretation of the framers? intent. Further, the Court added ?the period during which the Speaker will ordinarily be required to act for the President will be short? and, accordingly, ?such short periods of the executive power being exercised by the presiding officer of the legislature are unlikely to impair the long-term underlying balance of the Constitution.? ?Moreover, in spite of the headship of the executive and the legislature devolving on one person, the legislature, as an institution, and the executive, as an institution, will each maintain their distinct and separate zones of authority. In this regard, it would be desirable for a convention or practice to be observed whereby when the Speaker is performing the functions of President, he does not at the same time exercise the powers of the Speaker and he devolves his presiding and other roles to a deputy.?

Having successfully divined the subjective intent of the framers and discounted the objective intent of a reasonable drafter, the Court in dicta, identified various issues that arise from holding that the Speaker may carry out the functions of the President whilst he is abroad: [1] If the Speaker is exercising the functions of the President pursuant to article 60(11), does this imply that the President no longer has executive authority whilst traveling abroad? [2] Can the President not execute agreements and other documents on behalf of the Republic? [3] Would he need authorization from the Speaker to act on behalf of the Republic? [4] If the President whilst abroad retains the authority to carry out at least some of his functions, how are the respective roles of the President and the Acting President to be coordinated and reconciled?

Apparently those questions are not germane to discerning the subjective purpose of the framers and the objective purpose of the reasonable person. For, as the Court observed, ?those questions do not need to be answered in this case. They should be reserved for future cases whose decision requires the determination of those questions. In the meantime, Parliament, suo motu, or at the instigation of the Executive, would do well to address these questions and enact appropriate gap-filling legislation.?

Was the Court?s purposive odyssey necessary to interpreting article 60(11)? Does the court?s analysis convince anyone that it was able to discern the subjective intent of the constitutional framers? Are the express words of the 1969 and 1979 constitution diagnostic of their framers? intention, let alone the intention of the framers of 1992 constitution? Should the Court labor to discern the purpose of a provision of the constitution when the meaning is obvious from an ordinary reading (that is, should the purposive approach not be called upon only when the plain meaning approach fails us)?
I share the opinions of those who consider the subjective-purposive approach as being incompatible with democratic government. The subjective-purposive approach invites Government by unexpressed intent, which is as tyrannical as rule by military decrees, which the 1992 constitution firmly rejects. In a rule of law, the meaning of any law must be determined by what the lawmaker promulgated not what he meant. As Justice Scalia of the US Supreme Court puts it, ?men may intend what they will; but it is only the laws that they enact which binds us.?

Similarly, I share the opinions of those who believe that the objective-purposive approach is an open invitation to judges to pursue their own objectives and desires. When any intelligent person, including an intelligent judge, is told to ascertain what a hypothetical reasonable person would have intended when writing a law, her only reasonable shot is to interpret the law as what she thinks it ought to mean. This effectively transforms the Court into a Constitutional framer, contrary to the intentions of the constitutional framer and the people.

The Supreme Court has the power to interpret the constitution. This is an onerous responsibility that requires the Court to remain faithful to the text of the constitution. However, the Court is not free to write the constitution anew, under the guise of searching for the unexpressed intent of the framers. Let us be ruled by the framers? expressed words not their unexpressed intent.



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