Court of Appeal
Civil Appeal No. 5 of 1994
13th May, 1994
KENNETH ST. L. HENRY P.
SIR LASCELLES ROBOTHAM J.A.
PROFESSOR TELFORD GEORGES J.A.

Mr. D.B.Courtenay, S.C., Mr. R.H.Courtenay and
Mr. J. Courtenay for the Appellants
Mr.Gandhi S.C. Solicitor General and
Ms. Ramdass for the Respondents.

Statutory interpretation - Law revision - Omission of former law from revised edition - Effect of omission - Circumstances in which recourse can be had to former laws - Legislative intent - Law Revision Ordinance, s.23 - Law Revision Act, s.12.

R E A S O N S F O R J U D G M E N T

By order dated February 22, 1994 the Appellants obtained leave pursuant to their notice of motion dated February 8, 1994 to apply to the Supreme Court for:

"(1) A declaration that the Director of Public Prosecutions acted ultra vires his powers under section 30 of the Legislative Assembly (Powers and Privileges) Act in giving his written sanction for the prosecution of the said Applicants in respect of an offence under section 19 of the said Act for reason that

(a) the said Act has no validity or force of law and was therefore incapable of constituting the offence upon which the prosecution was based; or alternatively that

(b) the said Act was spent and had had its effect and was therefore incapable of constituting the offence upon which the prosecution was based;

(2) A declaration that the Magistrate for the Court of Summary Jurisdiction in Belmopan acted ultra vires his powers under section 18 of the Summary Jurisdiction (Procedure) Act in allowing complaints to be laid and criminal proceedings to be instituted against the Applicants in respect of an offence under section 19 of the Legislative Assembly (Powers and Privileges) Act for reason that

(a) the latter Act has no validity or force of law and was therefore incapable of constituting the offence upon which the Prosecution was based; or alternatively that

(b) at the date of his decision to permit the commencement of the said proceedings the said Act was spent and had had its effect and was therefore incapable of constituting the offence upon which the prosecution was based; and

(3) A declaration that the Magistrate acted ultra vires his powers under section 29 of the Summary Jurisdiction (Procedure) Act in issuing warrants for the arrest of each of the Applicants for reason that he had no jurisdiction to issue the said warrants with respect to offences which did not form part of the laws of Belize.

(4) An order of certiorari to remove into this Honourable Court and quash

(a) the decision of the Director of Public Prosecutions to give his written sanction permitting the criminal prosecution of the Applicants;

(b) the information and complaint in respect of the said prosecution;

(c) the decision of the said Magistrate that the criminal proceedings be instituted against the Applicants;

(d) the decision of the said Magistrate to issue warrants for the arrest of the Applicants; and

(e) all other proceedings relating to the said prosecution.

(5) All other necessary and consequential orders."

A stay of the criminal proceedings against them was also granted until the hearing of the application.

On March 17, 1994 following the hearing of the application the Chief Justice refused it and removed the stay. This is an appeal against that decision.

Three grounds of appeal were filed but only one was pursued, namely that:

"The learned Chief Justice misdirected himself and erred in law in construing section 23 of Chapter 3 of the Laws of Belize in terms of Ordinance No. 5 of 1979."

Section 23 of Ordinance No. 5 of 1979 ? the Law Revision Ordinance provided as follows:

"23. No enactment omitted under the authority of any provision of this Ordinance from the revised edition, any annual supplement, the revised edition of subsidiary laws or any supplement thereto, shall be deemed to be without force and validity by reason only of its having been so omitted, but shall remain in force until the same shall have been repealed or shall have expired or become spent or had its effect."

As it appears in Cap. 3 of the 1980 Revised Edition of the Laws of Belize (the Law Revision Act) the section does not include the words "so omitted, but shall remain in force until the same shall have been".

Counsel for the Appellants submitted that the section must be construed as it appears in the Revised Edition of the Laws which, by virtue of section 12(2) of Cap. 3 is "the sole and proper statement of the Laws of Belize". So construed, counsel was constrained to submit, the section preserves the force and validity only of those enactments omitted from the Revised Edition which have been repealed or have expired or become spent or had their effect. In any event, it was submitted, resort could not be had to the original version of Cap. 3 for the purpose of construing section 23 because by virtue of section 12(2) that Ordinance had ceased to have effect. Nor, it was submitted, was it permissible to look behind section 23 as it now appears for the purpose of deciding whether the Law Revision Commissioner was empowered to include it in the Revised Edition in the form in which it appears.

A Revised Edition of the Laws of a country is in its nature essentially a consolidation of those Laws designed to present them comprehensively in a complete and convenient form replacing the former Laws. There is a presumption that the Revised Edition will merely reproduce the existing Laws with such cosmetic changes as may be appropriate, but will not alter the Laws except in so far as the statute authorizing the revision empowers the Law Revision Commissioner to do so. If difficulties of interpretation arise it may therefore be useful to refer to the replaced Laws. But because the revised edition is intended and is often expressed, as it is in Belize, to be "the sole and proper statement" of the statute law, two consequences arise. The first is that recourse to replaced Laws should only be had when "substantial difficulty or ambiguity" arises in the revised laws. The second is that omitted Laws ordinarily cease to have effect. The second consequence is usually recognized and addressed by providing specifically that Laws which the Law Revision Commissioner is authorised to omit remain valid notwithstanding such omission. This is what section 23 in its original form did.

In R v. Heron (1982) 1 All E.R. 993 at 999 Lord Scarman observed:

"The discussion in Farrell v. Alexander as to the proper approach to the construction of consolidating Acts is valuable. I would, however, add two comments to the guidance there given.

First, when construing a consolidating statute, it is particularly useful to have recourse to the legislative history if a real diffficulty arises. Consolidation is, or is intended by Parliament to be, the re-enactment 'in a more convenient, lucid and economical form' (see (1976) 2 All E.R. 721 at 733, (1977) A.C. 59 at 82 per Lord Simon) of existing statute law. It is, in its pure form (as in the 1936 Act) neither amendment nor reform nor codification, but re?enactment. Strictly, as draftsmen have always recognized, a pure consolidation must incorporate the law as it stands, including its difficulties and ambiguities. The earlier statute law therefore and judicial decisions as to its meaning and purpose are very relevant, if there be difficulty or ambiguity.

Second, I would not think it correct to distinguish between the various types of consolidation. There are now three and more may be added in the future. They are (1) 'pure' consolidation, i.e. re?enactment; (2) consolidation with 'corrections and minor improvements'; (3) consolidation with Law Commission amendments. I have discussed the first. The second was made possible by the Consolidation of Enactments (Procedure) Act 1949 which confines permissible amendment to very minor matters. Certainly that Act in no way changes the essential character of consolidation, which is re?enactment. It cannot make any less legitimate a reference to the legislative history where there is difficulty or ambiguity.

The same observations apply to consolidation with Law Commission amendments. But here there is an added feature. The Law Commission publishes a report which specifies the particular mischief (or mischiefs) which its proposed amendments are intended to remove. It is, therefore, perfectly plain to what extent one may use legislative history in the interpretation of a Law Commission consolidation.

For these reasons I would not go further than Lord Wilberforce did in Farrell v. Alexander (1976) 2 All E.R. 721 at 726, (1977) A.C. 59 at 73, where he said:
'…. recourse should only be had [to antecedents] when there is a real and substantial difficulty or ambiguity which classical methods of construction, cannot resolve.'

But when there is such a difficulty, I believe the courts should not hesitate to refer to the legislative history. In some cases, as in the present, it will still doubt and resolve difficulty."

In its present form not only in section 23 grammatically flawed but substantial difficulty in construction is apparent from the interpretation which counsel for the Appellants sought to place on it. In those circuastances it is open to the court to examine the legislative history of the section. Such an examination reveals that the present form of section 23 is clearly the result of a printing error which omitted one line of the original section. That it was not an amendment effected by the Law Revision Commissioner is apparent from the fact that no amendment of section 23 appears in the Bill prepared by him pursuant to the Law Revision Ordinance setting out the several amendments he effected to the Laws. It is clear that the intention of the legislature was, in accordance with the usual practice in law revision exercises, to preserve omitted laws until they were repealed, or expired or became spent or had had their effect.

The Chief Justice was therefore correct in interpreting the section as it originally appeared in 1979, supplying the words omitted from it in the Revised Edition of the Laws.

Counsel for the Appellants quite properly conceded that in its original form section 23 preserved the ordinances which section 3 of the Law Revision Ordinance empowered the Law Revision Commissioner to omit from the Revised Edition. One of those ordinances was the Legislative Assembly (Powers and Privileges) Ordinance, 23 of 1962. It is the statute under which the criminal proceedings against the Appellants are being brought. The application to set aside those proceedings on the basis that the statute was no longer in force could not therefore succeed.

For these reasons on May 13, 1994 we dismissed the appeal against the Chief Justice's decision.

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