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Presumption of statutory Interpretation

Presentation · June 2018

DOI: 10.13140/RG.2.2.20737.79209

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Shah Mohammad Omer Faruqe Jubaer

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Presumption of statutory
Interpretation
Introduction: In the law of evidence,
a presumption of a particular fact can be
made without the aid of proof in some
situations. The invocation of a presumption
shifts the burden of proof from one party to
the opposing party in a court trial.
Presumptions: When determining the meaning
of particular words the courts will make certain
presumptions about the law. If the statute
clearly states the opposite, then a presumption
will not apply and it is said that the
presumption is rebutted. The main
presumptions are:
1. A presumption against change in the
common law.It is assumed that the
common law will apply unless
Parliament has made it plain in the Act
that the common law has been altered.
2. A presumption that mens rea (‘guilty
mind’) is required in criminal cases.
Mens rea is one of the elements that
has to be proved for a successful
criminal prosecution. There is a
common law rule that no one can be
convicted of a crime unless it is shown
they had the required intention to
commit it.
3. A presumption that the Crown is not
bound by any statute unless the statute
expressly says so.
4. A presumption that a statute does not
apply retrospectively. No statute will
apply to past happenings. Each statute
will normally only apply from the date
it comes into effect. This is, however,
only a presumption and Parliament
can choose to pass a statute with
retrospective effect. This must,
however, be expressly stated in the
statutes, for example, the War Damage
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Act 1965, the War Crimes Act 1991
and the Adoption Act 1976.
5. There are two types of
presumption:
Rebuttable presumption and conclusive
presumption. A rebuttable presumption
is assumed true until a person proves
otherwise (for example the presumption
of innocence). In contrast, a conclusive
(or irrebuttable) presumption cannot be
refuted in any case (such as defense of
infancy in some legal systems).
Presumptions are sometimes categorized
into two types: presumptions without
basic facts, and presumptions with basic
facts. In the United States, mandatory
presumptions are impermissible in
criminal cases, but permissible
presumptions are allowed. An example
of presumption without basic facts
is presumption of innocence. Another
example of presumption with basic facts
is Declared death in absentia, e.g., the
law says if a person has been missing for
seven years or more (basic fact), that
person is presumed dead.
The ancient Jewish law code, the Talmud,
included reasoning from presumptions
(hazakah), propositions taken to be true
unless there was reason to believe otherwise,
such as "One does not ordinarily pay a debt
before term." The same concept was found
in ancient Roman law, where, for example,
if there was doubt as to whether a child was
really the issue of someone who had left
money in a will, the presumption was in
favour of the child.[3] Medieval Roman
and canon law graded presumptions
according to strength: light, medium or
probable, and violent.[4] These gradings and
many individual presumptions were taken
over into English law in the seventeenth
century by Edward Coke.
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Presumption means guise something
under the Constitution. (Supposed)
Grounds:
1) Statutes are presumed to be valid and
constitutionality.
We have to make a consistent assumption
with the Constitution. Those who cannot
determine which aspect of a statutory law is
constitutional and which direction is non-
constitutional cannot predict the statutory
law.
2) Whether the unconstitutional is connected
with the general effect and scope of
Statutory Law may appear with the intention
of the legislature but not along with the
unconstitutionality.
3) Any constitutional directives in the past
that were in effect under the previous
statutory law, but not currently, cannot be
used by those who do not know. To guess
the statutory law, it is necessary to know the
update of the law.
The ways presumption is needed:
1) Under the constitutional guidelines of the
authority.
2) No conjecture can be made against
fundamental rights.
3) There is no presumption against
separation of power.
4) Discrete power
There is no conjecture going against it.
5) No guesses can be made against check
and balance.
6) There is no presumption against the
fundamental principals of state policy.
7) In cases where there may be a non-
financial outcom resinable, non-renewable
and in-form, the presummation cannot be
made. ( CrPC section-125)
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BASIC PRINCIPLES:
To begin with it would be appropriate to
discuss certain basic principles hereunder in
separate headings.
Presumptions Constitutionality of a statute
there are various interpretative tools for the
determination of legal validity of a
provision. They are presumption of
constitutionality, rule of severability,
There is always a presumption in favour of
the constitutionality of an enactment and the
burden is upon him who attacks it to show
that there has been a clear transgression of
the constitutional principles;
1. that it must be presumed that the
legislature understands and correctly
appreciates the need of its own people,
that its laws are directed to problems
made manifest by experience and that its
discriminations are based on adequate
grounds;
2. that the legislature is free to recognise
degrees of harm and may confine its
restrictions to those cases where the need
is deemed to be the clearest;
3. that in order to sustain the presumption
of constitutionality the court may take
into consideration matters of common
knowledge, matters of common report,
the history of the times and may assume
every state of facts which can be
conceived existing at the time of
legislation; and
4. that while good faith and knowledge of
the existing conditions on the part of a
legislature are to be presumed, if there is
nothing on the face of the law or the
surrounding circumstances brought to
the notice of the court on which the
classification may reasonably be
regarded as based, the presumption of
constitutionality cannot be carried to the
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extent of always holding that there must
be some undisclosed and unknown
reasons for subjecting certain individuals
or corporations to hostile or
discriminating legislation. On the
question of whether principle of
constitutionality is applicable to a law
which existed prior to the constitution
Kaushal discussed article 13(1) and
article 372 of the constitution of India.
The court took support from Ram
Krishna Dalmia, 16 Keshavan Madhava
Menon v. The State of Bombay,17 Anuj
Garg v. Hotel Association of India,18
John Vallamattom v. Union of India 19
and held: Every legislation enacted by
Parliament or State Legislature carries
with it a presumption of
constitutionality. This is founded on the
premise that the legislature, being a
representative body of the people and
accountable to them is aware of their
needs and acts in their best interest
within the confines of the Constitution.
There is nothing to suggest that this
principle would not apply to pre-
Constitutional laws which have been
adopted by the Parliament and used with
or without amendment. If no amendment
is made to a particular law it may
represent a decision that the Legislature
has taken to leave the law as it is and this
decision is no different from a decision
to amend and change the law or enact a
new law. In light of this, both pre and
post Constitutional laws are
manifestations of the will of the people
through the Parliament and are presumed
to be constitutional.Self-restraint,
therefore, must be exercised and the
analysis must be guided by the
implications of presumption of
constitutionality. The court finally
concluded that: There is a presumption
of constitutionality in favour of all laws,
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including pre-Constitutional laws as the
Parliament, in its.
Doctrine of severability
The court in Kaushal referred a passage
from R.M.D. Chamarbaugwalla v. The
Union of India (UOI) where a Constitution
Bench explained this doctrine as follows:
The doctrine of severability rests, as will
presently be shown, on a presumed intention
of the legislature that if a part of a statute
turns out to be void that should not affect the
validity of the rest of it, and that that
intention is to be ascertained from the terms
of the statute. It is the true nature of the
subject-matter of the legislation that is the
determining factor, and while a
classification made in the statute might go
far to support a conclusion in favour of
severability, the absence of it does not
necessarily preclude it. A statute could be
unconstitutional because of two reasons one,
the subjectmatter being outside the
competence of the legislature and two,
provisions of statute contravening
constitutional prohibitions like part III, or
Basic Structure Theory. This is not material
for what reason invalidity exists. When a
statute is in part void, it will be enforced as
regards the rest, if that is severable from
what is invalid.
Basis of severability R.M.D.
Chamarbaugwalla summarised seven points
from American case law which was quoted
with approval by Supreme Court in Kauhal
as follows:
i. In determining whether the valid
parts of a statute are separable from
the invalid parts thereof, it is the
intention of the legislature that is the
determining factor. The test to be
applied is whether the legislature
would have enacted the valid part if
it had known that the rest of the
statute was invalid.
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ii. . If the valid and invalid provisions
are so inextricably mixed up that
they cannot be separated from one
another, then the invalidity of a
portion must result in the invalidity
of the Act in its entirety. On the
other hand, if they are so distinct and
separate that after striking out what
is invalid, what remains is in itself a
complete code independent of the
rest, then it will be upheld
notwithstanding that the rest has
become unenforceable.
iii. Even when the provisions which are
valid are distinct and separate from
those which are invalid, if they all
form part of a single scheme which
is intended to be operative as a
whole, then also the invalidity of a
part will result in the failure of the
whole. When the valid and invalid
parts of a statute are independent and
do not form part of a scheme but
what is left after omitting the invalid
portion is so thin and truncated as to
be in substance different from what it
was when it emerged out of the
legislature, then also it will be
rejected in its entirety. v. The
separability of the valid and invalid
provisions of a statute does not
depend on whether the law is enacted
in the same section or different
sections;; it is not the form, but the
substance of the matter that is
material, and that has to be
ascertained on an examination of the
Act as a whole and of the setting of
the relevant provisions therein. vi. If
after the invalid portion is expunged
from the statute what remains cannot
be enforced without making
alterations and modifications therein,
then the whole of it must be struck
down as void, as otherwise it will
amount to judicial legislation.
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Presumption against action based on
one's own wrong:
Presumption against action based on one's
own wrong generally, a person will not be
allowed to take advantage of his own wrong.
Statutes relating to succession usually do not
contain any provision excluding from their
benefit one who has killed the person to
whose property succession is claimed. But
courts in most countries have "read" such an
exception into such statutes. They will not
allow the statute to be so applied as to
enable the killer to succeed to the estate of
the person killed. The courts presume that
the legislature had impliedly assumed that
certain rules of morality will be applied. The
Latin maxim ex turpi causa non oritur actio
[an action (suit) cannot be founded on an
immorai act] is thus applied to statutory
interpretation, as it is applied in relation to
matters governed by uncodified law. A
famous American case holds that a grandson
cannot succeed under a will of his
grandfather murdered by the grandson. "No
one shall be permitted to profit by his own
fraud, or to take advantage of his own wrong
or to found any claim upon his own inequity
or to acquire property by his own crime."
PRESUMPTIONS AND THE PURPOSE
OF THE LAW:
From an argumentative perspective,
maxims, interpretive canons, and
interpretive arguments can be regarded in
terms of presumptions. However, in order to
order such presumptions and show the
different strengths of the possible arguments
based thereon, we need to identify the
organizing principle. In this section, we will
analyze the pragmatic presumption of legal
interpretation, which is commonly referred
to as the purpose of the law
The Purpose of the Law as a Presumption
Both in ordinary conversation and legal
interpretation, the addressees of the
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conversation (the hearer or the citizens) have
access only to the text of the law, from
which they need to reconstruct the speaker’s
meaning, or the legal meaning of the law.
The psychological state of the speaker or
lawmaker is inaccessible because it is
unknown (in ordinary conversation) or
attributable only to a group (the parliament),
whose discussions are not easily accessible
to the public (Easterbrook 1984). The
intention that is communicated is the one
that is retrievable from the textual and
contextual evidence provided (Carston 2013,
p. 24). The explicit content of a speech act
(such as a statement of law) is the only
accessible instrument for reconstructing the
speaker’s intention. From the point of view
of legal interpretation, the Smith case is an
extremely clear illustration of the
‘textualistic’ reconstruction of the speaker
meaning. It underlies the essential relation
between the contextual meaning and the
purpose of the enactment, retrieved through
other broader contextual information,
including background FABRIZIO
MACAGNO ET AL. knowledge (Greene
2006, p. 1920). In first place, what is
reconstructed is the meaning that can be
obtained from the co-text and the context.3
The arguments can be classified into two
general categories: (a) the ones aimed at
reconstructing the intention by means of
cotextual clues; and (b) the ones that appeal
to the purpose of the law, especially its
relevance to the more general and basic goal
of protecting the citizens’ rights. The first
type of arguments can in turn be classified
into linguistic and contextual arguments:
(1) Arguments grounded on the
presumptively shared meaning of a
linguistic expression; and
(2) Arguments based on the constraints
imposed by the co-text onto the linguistic
expressions.
Ordering Interpretive Presumptions:
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The argument from the purpose of the law
can be considered as grounded on a meta-
presumption, governing the choice and the
hierarchy of the arguments that can be
advanced to support an interpretation. The
purpose of the law can be regarded as a
macro contextual argument, in which the
statute to be interpreted is placed within its
broader context (the body of the laws), from
which it’s intended generic or specific
purpose can be retrieved. This context based
pragmatic presumption can overcome other
types of presumptions or determine the
hierarchy of the interpretive presumptions.
Types of Intentions And Levels Of
Presumptions:
The reconstruction of the ‘purpose of the
law’ can be examined within a pragmatic
framework. The meaning of a single speech
act is subordinated to dialogical intentions.
Grice (1975, p. 45) represented such a
dialogical intention using the notion of the
‘direction’ of the dialogue to which each
speech act needs to be linked (Asher and
Lascarides 2003, Chap. 7).
In order to retrieve this meaning, or
speaker’s specific intention, it is necessary
to retrieve the relationship between the
speech act and the whole text, namely its
relevance (Macagno and Walton 2013;
Walton and Macagno 2007, 2016; Macagno
2012). This mechanism of retrieval of the
speaker’s intention is clearly at work in
statutory interpretation. For example, in all
the aforementioned criminal and civil cases,
the purpose of the use of the statement of
law was retrieved by taking into account the
whole cotext of the provision in which it
occurred, addressing a specific issue (the
relationship between drug trafficking and
other crimes; the commerce of consumable
goods, etc.).
The so-called purpose of the law can be
regarded as a presumption to which other
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presumptions need to be subordinated, and
which can be reconstructed through different
types of arguments. On this perspective, the
mechanism of interpretation crucially
depends on the ordering of the presumptions
underlying the different alternatives.
Types and Levels of Presumptions:
Any reconstruction of a speaker’s intention
resulting from his or her speech act is
grounded on several presumptions different
in nature (Hamblin 1970, p. 295):
The presumptions that are at the basis of
meaning reconstruction have different
conditions of defeasibility (Kauffeld 2003;
Kauffeld 1998). The first kind of
presumption (level 0) can be called
pragmatic. It connects the generic or specific
illocutionary force of a speech act
(assertive/assertion in the context of writing
a recommendation letter) to its presumed
generic or specific intention (informing the
interlocutor/providing information to
support a decision to hire someone). The
second type (level 1) consists in the
conventional presumptive meaning of the
lexical items (Grice 1975; Levinson 2000;
Macagno 2011; Hamblin 1970). For
instance, ‘attendance’ is usually defined as
‘to be present at a place’. However, in the
case of the severe professor writing a
recommendation letter, it could mean ‘to
participate in classes actively, showing
peculiar skills’. The third type of
presumption) concerns expectations about
relations between facts or events that can be
used to interpret a specific content or an
action. For instance, attendance is not
usually considered as an indicator of
academic excellence. The last level (level 3)
includes specific mutual knowledge
(Macagno and Capone 2016).
For example, a specific professor may be
presumed to be extremely severe, and that
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his recommendation letters are usually
extremely concise.
Case 1: Presumption of evasion ‘Do you
have any bank accounts in Swiss banks, Mr.
Bronston?’ A.No, sir’.
‘Q. Have you ever?’ The company had an
account there for about six months, in
Zurich’.
In this famous cross-examination case
(Sinclair 1985; Tiersma 1990; Solan and
Tiersma 2005; Horn 2009; Shuy 2011; Solan
2002; Jacobs and Jackson 2006), the witness
actually held a bank account in a Swiss
bank, but was found to have testified
truthfully, as he had never stated the
contrary. The witness in fact only evaded the
question; however, the lawyer examining
Bronston relied on the prosecutor’s
adherence to the maxim of relevance, and
gave to the answer an interpretation
maximally relevant to the context. This case
sheds light on two fundamental aspects of
Gricean maxims. First, Gricean maxims are
hermeneutic principles (Poggi 2011),
presumptive principles (heuristics) for
retrieving what the speaker means (his
communicative intention) from what he
says. They provide general patterns for
accounting for the relationship between a
statement’s literal understanding
(conventional meaning) and the
propositional and implicated meaning that
the speaker intends to convey (Morra 2016a,
b). In this sense, they do not provide an
interpretation, but rather account for an
interpretation, bringing to light reasons to
support it (Slocum 2015, pp. 203–207;
Walton 2002, 191).
Second, these conversational heuristics are
defeasible, in the sense that they are
defeated by stronger assumptions
concerning the goal of the cooperative
activity the interlocutors are carrying out (in
this case, the goal of cross-examination is to
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elicit specific answers, to which the witness his home, or publicly represents that he
shall be considered committed, and avoid is the child's father.[9]
evasions). For this reason, the maxims need  A presumption of survivorship has
to be ordered and analyzed together with referred to a number of different
other types of presumptions governing presumptions. The term is sometimes
conversation, the foremost being the purpose used to refer to presumptions that one or
of the dialogue in which the interlocutors are another of two persons lived the longer
engaged (Grice 1975, p. 45; Morra 2016a, p. when they died together in the same
555; Butler 2016b, p. 520). accident.[10] The presumption that two or
more people who establish a joint
A number of presumptions are found in
account intend for the survivors to have
most common law jurisdictions. Examples
the assets put into the fund upon the
of these presumptions include:
death of one of the joint account holders
has also been called the "presumption of
 The presumption of death. A person who
survivorship".[11]
has been absent for seven years without
 The presumption of mailing presumes
explanation and "gone to parts
that a properly addressed letter delivered
unknown" is presumed dead at common
to the post office or a common
law.[6] The time period it takes for the
carrier was in fact delivered and
presumption to arise has often been
received by the addressee.[12]
modified by statute.
 The presumption of fraud or undue
influence arises where a person in a
position of trust over another, such as
a guardian or the holder of a power of
 The presumption of sanity. A person
attorney applies the other person's assets
who faces criminal trial is presumed
to his or her own benefit.
sane until the opposite is proved.
Similarly, a person is presumed to have
testamentary capacity until there is
evidence to undermine that presumption.
 The presumption of validity is another
 The presumption of innocence, which
way of expressing a burden of proof: the
holds that the prosecution bears the
official acts of courts are presumed
burden of proof in a criminal case with
valid, and those who would challenge
the result that the accused may be
them must overcome this
acquitted without putting forward any
presumption. This is also termed
evidence.
the presumption of regularity.
 The presumption of
legitimacy or presumption of paternity,
which presumes that a husband is
the biological father of a child born to
 The presumption of advancement in
his wife during the marriage, or within
nine months after the marriage is ended relation to transfers from husbands to
by death, legal separation, wives and from fathers to children.
[8]  In the law of the United States,
or divorce. Some jurisdictions also
hold that a presumption of paternity the presumption of
arises when a father accepts a child into constitutionality presumes that all
statutes are drafted in accordance
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with Federal and state constitutional

requirements.
 The party challenging the
constitutionality of a statute bears the
burden of proof, and any doubts are
resolved against that party. If there are
two reasonable interpretations of a
statute, one of which is constitutional
and the other not, the courts choose the
path that permits upholding the statute

Conclusion:
Statutory presumption means a rebuttable or
decisive presumption created by a statute. It
does not shift the burden of proof. It is
merely an evidentiary rule whereby the
accused must go forward with an
explanation to rebut the permissive
presumption. A statutory presumption
cannot be sustained:

If there be no rational connection between

the fact proved and the Statutory
presumption means a rebuttable or decisive
presumption created by a statute. It does not
shift the burden of proof. It is merely an
evidentiary rule whereby the accused must
go forward with an explanation to rebut the
permissive presumption. A statutory
presumption cannot be sustained.

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