Originalism:
From US, prominent were Judges Wilkinson and Scalia, original meaning of the word because words by growing becomes adulterated, meaning of word at the time of drafting or making so long as no absurdity arises, interpretation to be within context and history, amendment not always material, judges restrained from introducing own values.
Per Date-Bah inGh Lotto Operators Ass v NLA adopting originalism doesn’t produce right interpretative results as one could make a case for non-justiciability of the directive principles of state policy, doesn’t necessarily produce right results but constitution be seen as living organism modern interpretation approach which is a departure from subjective purpose of Barak-Ibid, Justice Dennis posits that this doesn’t represent the true originalism US approach, it looks for the original intent of the text and interpret it to meet society’s changing needs but not to respond to contemporary needs of the people, they don’t suggest that original intent must be applied at all cost but be used in interpreting to meet needs of contemporary society.
Literalism:
Like the positivists, what is obvious on face or written must be given effect to whether rational or not, foundation is that parliament don’t make mistake as in UK, if there were they would have been corrected before publication, per R v City of London Court not interpreter’s duty to give meaning to words, given ordinary or literal meaning even if result isn’t sensible, also technical words must be given their technical meaning irrespective of consequences, no distinction between letter and spirit of text
Political Process Theory:
From SA, Norway and Philippines, judges should influence political decisions by protecting the vulnerable through interpretations, e.g. women to men ratio in parliament in passing laws making law favouring men and as a result interpretation is bend to favour the women and children, principle of advancement, principle of equality is equity, per SA case of Minister of Health v Treatment Campaign Action (No2) gov’t ordered to supply Nevirapine drug of preventing mother to child transmission of HIV to all section of populace that initial plan to benefit only 10%.
Mensah v Mensah common sense and gen principles of fundamental HR require that person married to another who has performed all marital duties must not be discriminated against in property distribution acquired during marriage upon dissolution especially women, 4th Memorandum of Interpretation Act gen rules for construction are formulated by judges not enacted by parliament, Quartson v Quartson despite parliament’s failure under Art 22(2) to enact laws to regulate property distribution acquired during marriage subsistence, court will still apply the equality is equity principle to do justice and will be injustice to wait for parliament and same isn’t usurpation by court of parliament’s powers.
Pragmatism:
From US, proponent judges Wilkinson and Posner, adjudication should be practical, no stare decisis, decisions based on future effects rather than text, considers overall interest not only that of litigants, flexible adjudication, Roe v Wade analytical valuation of competing interests higher interest suffices, where of different values one with better consequences suffice, state’s interest in protecting pre-natal life and women’s health outweighs women’s decision to abort pregnancy,
Textualism:
In deeds or doc context is everything, words have limited range of meanings and an interpretation going beyond range isn’t permissive, uses interpretation cannons and presumptions-ibid, no external aids to interpret, not to go beyond context and intention. Two forms 1-Old textualism interpret doc as expressed in text but depart when absurdity arises unlike literalism, emphasis is on written not intent 2-
Living Constitutionalism:
Tuffour v AG foundation of concept, constitution is a living organism capable of growth and development, has letter and spirit, broad and liberal but no doctrinaire approach to interpretation required for it.
Interpret constitution as a living organism capable of growth, Art 2(1) a person file to SC for declaration regarding act, omission, conduct, law is inconsistent with constitution which per Art 1 is supreme law and SC make declarations as deem fit despite the nullity or voidness, Asare v AG (Adjaho’s case) SC agreed that failure of speaker to take presidential oath was unconstitutional but declined invitation by P for impeachment despite the voidness not voidable. Seen as a legal and political testament, supreme made by citizenry to all other laws made by parliament, interpret to respond to changing time and circumstances taking into consideration social, cultural, economic and political factors to bridge gap between old and modern regimes, without recourse to amendments avoidable if its spirit is duly recognized, per Adjei Ampofo v AG per Sophia Akuffo constitution is living doc having letter and spirit, however Archer CJ in 31st Dec Case where is the spirit? In whole doc or part?
We don’t rely on spirit to interpret, when words are clear and unambiguous we don’t imagine or speculate on what they mean although at times we find the intention of legislature, whether spirit is metaphysical or transcendental I refrain from it as it may lead me to Kantian Obfuscation, I would rather rely on letter and intendment of constitution.
Intentionalism:
Uses purposive, creative and modern purposive approaches to look for legislative intent and mischief law seeks to cure, step begins with literal for intention, if absurd secondary meaning given (golden rule) by striking out words, adding, etc. to reveal intention, SC in Rep v HC Ex Parte Eastern Region Development Corporation quoted with approval Intentionalists approach in Heydon’s Case, 4 things to consider 1-what was CL before making Act? 2-What mischief or defect did CL not provide? 3-What remedy has parliament appointed to cure disease? 4-Judge construct to supress mischief and advance remedy, refer to ibid cases Nana Osei Yaw and Biney.
Per Sasu v Amua-Sakyi Taylor JSC employed intentionalists approach that in statute construction true meaning and purport of words in text not to be taken in isolation but considering their context, the term ‘such leave’ as first used in the enactment without any prior mention of leave made it absurd and obvious of an omission, the courts will fill in the gaps by adding missing words ‘with such leave’ as similar language in other section to make it sensible,
Purposivism:
Look for purpose for which text was created, no limit to text, S 10(4) of Act 792-ibid enjoins judges to use Purposive Approach to constitution or other laws Interpretation, per Memorandum from mischief in Heydon to Literal in Sussex to Golden in Grey, courts have moved to purposive approach and abandoned strict construction approach.
Word in ordinary as well as context (scope, purpose, extent, background) per Pepper v Hart and In Re Atta (Decd) Kwako v Tawiah Act 792 makes possible for courts to seek assistance from 1-legislative antecedents of provision 2-pre-parliamentary materials relating to provision e.g. committees and commissions report, foreign law influencing bill 3-parliamnetary materials e.g. bill, debates, are all rich sources of parliamentary intent. Debates are relied on only where 1-legislation and literal meaning is absurd 2-material relied on consist of statement made by minister in charge or promoter of bill and 3-statement of said minister or promoter is clear. Appiah v Bini-Ibid, Ex Parte Expendable Polystyrene Products Ltd whether a judgement delivered after the mandatorily 6 weeks without leave of CJ was void, held that whole rule must be considered not only 3 sub-rules, considering both internal and external context, purposive approach not rigid format but considers any rational decision to ascertain purpose after ordinary meaning proves absurd.
Modern Purposivism:
Modern Purposive Approach (MOPA) embraces purpose but suggests a formula unlike purposive approach, modern purposive approach is application of purposive approach just in different manners as shown by the following authors:
AHARON BARAK: 3 tier approach, a tier or prong and not a step because can’t be separated unlike Intentionalism, thus all three must be satisfied, Date-Bah didn’t consider ultimate purpose inAsare v AG and Wood CJ refer to it as 2 tier in Ex Parte Yalley. Consists of subjective, objective and ultimate purposes, may start with either subjective or objective and ultimate always last to resort to after first two fulfilled.
–Subjective Purpose [actual intent of author of text at time of creation not time of interpretation, context of text determines legal meaning, two sources 1-Internal or textual-intention as expressed in text, rebuttable presumption that author’s words are fair representation of his intent and 2-External or contextual-beyond text where absurdity in draft by resort to context and circumstance before and after text was created to know intent; judges may rely on both sources to arrive at intent, must read text as whole to know purpose or subjective meaning, per Viscount Simmons in AG v Prince Ernest Augustus of Hanover elementary rule that no one should profess to understand statute unless he has read it as a whole]
–Objective Purpose [test of hypothetical reasonable man’s intention not that of the author, intent of system at time of interpretation not time of text creation, intent of sys are values, objectives, interests, policy and function of text designed to be actualize in a democracy in every society which differs from societies, objective purpose controlled by text and intent of sys, must promote fairness and justice, two sources 1-Internal- written and unwritten words, explicit and implicit meaning to ascertain intent of system and 2-External-similar text or related texts, pari materia thus where words in statute are repeated in similar statute, nearby text or natural environment, gen, social and historical background, values (equity, justice, HR, ROL, SOP, integrity, dignity, speech, peace, security, NJ), culture, case law, etc. statutes don’t stand alone it constitutes part of legislative alignment as a whole influencing purpose of statute, latter statute influences purpose of prior statute, per Afendza III v Tenga V SC held judicial construction on similar words in statute applies to other, per Prof J Kludze in Asare v AG where enactment gives meaning to a word or phrase in another section, we may refer to said section to construe word or phrase, Date-Bah distinguished between subjective the actual intent of framers or legislature at time of making constitution or statute, and objective not what framer actually intended but what a hypothetical reasonable man would have intended given the context, history and values of the society, so purposive interpretation I give to Art 60(11) is that where both president and vice are absent from Gh they are regarded as unable to perform function] and
–Ultimate Purpose [formulated from objective and subjective purposes, ascertain intent of author, where conflict between objective and subjective purposes presumptions are used to resolve to arrive at ultimate purpose, where conflict still results objective purpose taken to connote ultimate purpose even when subjective purpose can be proved by reliable, certain and clear evidence, per Church of Holy Trinity v US SC interpreted labour to exclude pastors who are to provide services as the subjective purpose of the law preventing foreigners into US to perform labour on contract according to history was to stay influx of cheap unskilled labour, and objective purpose was exclusion of some people from gen word though they should have fallen within generic term, common sense to accept that whoever drew blood in streets be punished doesn’t apply to surgeon who pens vein of person that fell in street or a prisoner who breaks prison shall be guilty of felony doesn’t extend to prisoner who breaks out when prison is on fire]
-Summary of 3 prong approaches in constitutional interpretation: Subjective purpose-goals, values and principles constitutional assembly sought to achieve at time of enactment, original intent, Objective purpose-goals, values and principles constitutional text is design to achieve in modern democracy at time of interpretation, Ultimate purpose-arrived at after synthesizing and integration of both subjective and objective purposes, per Barak constitution is interpreted different from other texts.
FRANCIS BENNION: foundation of purposive interpretation is the mischief rule enunciated in Heydon’s case-ibid, two step approaches 1-purposive-and-literal construction-ascertain legislative purpose by giving words their ordinary plain meaning in a purposeful manner and 2-purpose-and-strained construction strained meaning given where literal not in accordance with legislative purpose as explained by Date-Bah JSC in Asare, not same as two step approach in golden rule, Wood CJ in Yalley to me there purposive-and-literalist approach of Bennion which in my view is synonymous with subjective purpose of Barak advances the framer’s intent and no ambiguity then not proper to apply purposive-and-stained meaning or objective purpose,