rule has apparently taken place in Australia and New Zealand.[1] Whether our Courts should follow these examples and extend the scope of what is admissible as background material for the purpose of interpreting statutes does not arise in the present case. We are concerned with the interpretation of the Constitution, and not the interpretation of ordinary legislation. A constitution is no ordinary statute. It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of State, including Parliament, the executive, and the courts as well as the fundamental rights of every person which must be respected in exercising such powers.
[16]In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted.[2] The German Constitutional Court also has regard to such evidence.[3] The Canadian Supreme Court has held such evidence to be admissible, and has referred to the historical background including the pre-confederation debates for the purpose of interpreting provisions of the Canadian Constitution, although it attaches less weight to such information than the United States Supreme Court does.[4] It also has regard to ministerial statements in Parliament in regard to the purpose of particular legislation.[5] In India, whilst speeches of individual members of Parliament or the Convention are apparently not ordinarily admissible, the reports of drafting committees can, according to Seervai, "be a helpful extrinsic aid to construction."[6] Seervai cites Kania CJ in A. K. Gopalan v The State[7] for the proposition that whilst not taking "…into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular
- ↑ Id. at 637 F.
- ↑ Rotunda and Nowak, Treatise on Constitutional Law: Substance and Procedure §23.6 (2d ed. 1992).
- ↑ In the decision on the constitutionality of life imprisonment, [1977] 45 BVerfGE 187, the German Federal Constitutional Court took into account that life imprisonment was seen by the framers of the constitution as the alternative to the death sentence when they decided to abolish capital punishment. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 315 (1989).
- ↑ Reference re s.94(2) of the Motor Vehicle Act (British Columbia) (1986) 18 CRR 30 at 47-50; United States v Cotroni (1990) 42 CRR 101 at 109; Mahe v Alberta (1990) 46 CRR 193 at 214.
- ↑ Irwin Toy Ltd. v Quebec (AG) (1989) 39 CRR 193 at 241.
- ↑ H M Seervai, Constitutional Law of India, 3rd ed. (1983) Vol. I, para. 2.35 et seq.
- ↑ (1950) SCR 88 at 111, as cited in Seervai, id., Vol. II, para. 24.7, note 25.
