Question:
The principles of statutory interpretation applied by judges in the republic of Convenia are the same as those which apply in English law. According to Convenia’s Electoral Integrity Act 2010, s 15(1):
“If a political party accepts a donation from a donor who is not registered on the electoral register at the time when the donation is made, the party must return the donation within 30 days of receiving it.”
According to s 15(2):
“If the party fails to return the donation within 30 days, the court may order the party to forfeit an amount corresponding to the value of the donation.”
Since 2011, Max has made over forty donations, amounting to 200 million Convenian dollars, to the Convenian Radical Reform Party (RRP). Until January 2019, Max was unaware that he was not registered on the electoral register (although he is a Convenian citizen, he remains unregistered to this day). As soon as Max learnt that he was not on the register, he notified the RRP. The RRP has never returned any of Max’s donations, and in July 2019 it accepted a donation from Max amounting to C$30,000.
In December 2019, the Convenian Electoral Commission sought a forfeiture order under s 15(2). At first instance, the judge ordered the RRP to forfeit C$200m. But in November 2020, Convenia’s Court of Appeal overruled the judge’s decision and held that the RRP was obliged to forfeit only C$30k. The RRP, a minority party which has been very effective in holding governments to account on environmental and human rights issues, will fold if it is ordered to forfeit the higher amount. The case is now before Convenia’s five-member Supreme Court.
Four of the five judges are divided. Emin and Saville JJ are of the view that s 15(2) confers a wide discretion on the Court, and that the Court of Appeal was therefore right to confine the forfeiture order to the one donation which the RRP had accepted from Max after having become aware that he was not on the electoral register. This wide discretion should be applied to the benefit of the RRP, they observe in their joint opinion, “because the legislative history confirms – indeed, it is common knowledge – that the point of enacting s 15 was to ban foreign donations to political parties. Parliament never intended to outlaw donations from persons who are entitled to be, but who happen not to be, on the electoral register.” For Kapoor and Banksy JJ, by contrast, the RRP must forfeit C$200m because “the language of s 15 could not be clearer: political parties must not accept donations from any individual not registered on the electoral register.”
The fifth Supreme Court judge, Hockney J, is about to write the tie-breaking opinion. Imagine you’re Hockney. What would your opinion say about how to interpret s 15?
Answer:
Hockney J, In Judgement
1. The Questions Raised
1.1. It appears to me that there are two questions, both of statutory interpretation, that must be answered in order to ascertain a verdict in this case. Firstly, was the Court of Appeal correct in judging that the Convenian Radical Reform Party (‘RRP’) can only be held liable for donations received after their becoming aware that Max (‘M’) is/was not on the electoral register? If they were correct in this finding then this court is potentially obligated to order the forfeiture of the July 2019 donation, summing C$30,000. If they were not correct in this finding however, this court is potentially obligated to order the forfeiture of the full C$200 million that M has donated since the passing of the Electoral Integrity Act 2010 (‘the act’).
1.2. Notably, I write that the court may be “potentially” obligated to order either forfeiture, for whether the court must rest on the second question: In the act s 15(2) it is written that the court “may” order a forfeiture. This raises a question as to how the courts should exercise their discretion.
1.3. Throughout this judgement I cite English law as precedent. Whilst Covenian law does not recognise English law as binding, with our being as a new common law jurisdiction, it feels appropriate to take guidance from the oldest.[1]
2. Was the Court of Appeal correct in judging that the RRP can only be held liable for donations received after their becoming aware that M is/was not on the electoral register?
2.1. It is good practice in common law jurisdictions for a judge to begin by applying the law’s plain meaning (as applied in Whitely v Chappel (1868)[2]) in questions of statutory interpretation.[3] In this case such an approach leaves little doubt that the Court of Appeal (CA) was wrong in concluding RRP’s liability for forfeiture was limited to M’s donations post-notification of illegality.
2.2. The act leaves no room for considerations of intent; it imposes liability for the act of “accept[ing] a donation from a donor who is not registered on the electoral register”, effectively rendering it a pure status offence, as in R v Larsonneur (1933).[4] In this case, there is no question that the RRP accepted the donation, and M does not deny he was/is not on the electoral register. Therefore, this court must find that the RRP is liable for the full amount of M’s donations.
2.3. It is also difficult to argue that this is an outcome like that in Berriman,[5] where the result is so clearly unjust it calls for a different method of statutory interpretation, for if the RRP had undertaken any level of due diligence (i.e taken reasonable steps to discover if M was on the electoral register) it is likely the violation could have been identified: Given the fact that M himself was unaware of his not being on the register it is quite possible that even a simple enquiry of M would have revealed the truth and protected the RRP from violating the act. When the avoidance of ignorance is so easy it is difficult for the court to accept ignorance as an excuse.
3. What should the court consider when exercising their discretion in respect to s 15(2) of the act?
3.1. Firstly, whilst I agree with my colleagues Emin and Saville JJ that the courts have a great amount of discretion, I cannot agree that the court has the power to decide the amount of the forfeiture. As outlined in part 2.2 of this judgement the RRP is liable for the totality of M’s donations, it is this sum that s 15(2) says the forfeiture, if there is to be one, must “correspond” to. To allow judges to vary the amount on a case-by-case basis without any defined guidance would be absurd and unjust (Sigsworth (1935)[6]) and therefore cannot be permissible.
3.2. With this level of discretion a court must be careful to stay true to legislative intent, courts dealing with s 15(2) must therefore begin with the application of the mischief rule, from Heydon’s case.[7] The mischief rule ensures the court’s discretion is used to further the ceasement of the mischief the legislative intended to end. To apply the plain meaning rule to “the courts may” would be to give the courts unfettered discretion, which would be an unjust (and therefore absurd) grant of power, something, per Sigsworth (1935),[8] the courts may use interpretation to avoid. Reviewing the extrinsic aid of the legislative record (permissible by Pepper v Hart (1993)[9]) it is evident that the mischief the legislature wished to correct was the donation to domestic political parties by foreign nationals. Therefore the question the court must ask is: Does this forfeiture stop foreign money entering domestic politics? If the answer is ‘yes’ the court must order the forfeiture, if not, the court should not. In this case, as ‘M’ is a Convenian citizen, and able to enter the electoral register at will, the court should not order the forfeiture.
4. A Word on Bankruptcy and Public Good
4.1. I wish to note that whilst there may well be a loss to the public good should a political party that holds the government to account on human rights “fold”, the fact of bankruptcy as the result of a court order cannot be taken into account when making a judgement on a point of law, as we are tasked with doing. Therefore such submissions are dismissed.
5. Conclusion
5.1. My opinion in this case is that:
a) The Court of Appeal’s finding should be overruled as the RRP must be liable for the full C$200m of M’s donations under s 15(1) of the act, as a result of my reasoning in part 2 of this judgement.
b) But that this court should use its discretion under s 15(2) of the act to not order the forfeiture in this case, as a result of my reasoning in part 3 of this judgement.
Grade: 74
References: [1] ‘Origin of the Common Law’ (Encyclopedia Britannica) <https://www.britannica.com/topic/common-law> accessed 11 November 2021 [2] Whiteley v Chappell (1868) LR 4 QB 147 [3] Abhinav Palsikar, ‘Critical Analysis of Literal Rule of Interpretation’ (2020), 5 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720368> accessed 11 November 2021 [4] R v Larsonneur (1933) 24 Cr App Rep 74 [5] London and North Eastern Railway v Berriman [1946] AC 278 [6] See 7 [7] Heydon's Case (1584) 76 ER 637 [8] Re Sigsworth [1935] 1 Ch 98 [9] Pepper (Inspector of Taxes) v Hart [1992] UKHL 3
Comentarios