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:
The main issue is whether the RRP should repay C$30,000 or C$200 million. Max, who has been donating to the RRP, is a citizen of Convenia but not on the electoral register and according to Convenia law, only registered citizens can make donations to political parties. Therefore, according to s 15, if interpreted literally, all of Max's donations have been unlawful and should be forfeited. Section 15(2) states that the court may order the party to forfeit an amount corresponding to the value of the donation, which if interpreted literally would mean that the RRP must forfeit $200 million as that equates to all the donations that violated section 15 (1) as Banksy and Kapoor JJ have agreed. However, the literal interpretation does not examine the intention of Parliament which in this case was likely to stop foreign donations and intervention within Convenia’s political system which Emin and Saville JJ have recognized, leading to the absurdity of punishing citizens who are entitled to be on the electoral register. Such absurdity can be seen in [1]Whitley v Chappel (1868) where the defendant who had voted in the name of a dead person was not found guilty of the offence of impersonating 'any person entitled to vote', since the dead person was not entitled to vote. The literal rule has been criticized by many academics and lawyers alike as in not looking beyond the literal meaning of the Act, the opposite of what Parliament intended can happen resulting in absurdity. However, Max who is not a registered citizen by choice and the RRP who knowingly accepted the donation from Max after knowing he was unregistered punished is arguably not absurd but rather a natural consequence of their actions. Through following the literal meaning, judges are representing Parliament's intention through the words Parliament used taking away judicial bias of allowing judges to adopt an approach based on their ideology resulting in inconsistencies within the law. Similarly, courts are not challenging Parliamentary sovereignty and are preserving the separation of powers by not 'making law' which can be the case through the mischief rule. However, the true intention of Parliament cannot be drawn simply from the words of the act as this rule does not identify complexities and limitations in the English language and use of this rule can sometimes defeat the aim of Parliament and the issue it sought to remedy as it can lead to expressio unius est eclusio alterius. In making the RRP forfeit C$200 million, the party would collapse resulting in wider social, political and environmental consequences. Notably, less political participation as the interests of minority groups like environmentalists are no longer being represented and with less awareness being brought to such key societal issues, perhaps enabling inequalities to persist. However, as summarised by Lord Diplock in [2]Duport Steel v Sirs (1980) “Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to it’s plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.”. Thus, judges must enforce the rule as Parliament has written it to be regardless if they think the outcome is unjust as that is the role of the judiciary.
Alternatively, the RRP should only forfeit C$30,000 as it would be absurd to make the RRP repay C$200 million knowing it would force the party to collapse. Max is a citizen of the Convenia and entitled to be on the electoral register rather than a foreigner seeking to influence Convenia’s politics which is arguably, the mischief Parliament was intended to resolve. This was seen in [3]Smith v Hughes (1871) whereby the judges applied the mischief rule that the activities of the defendants, the prostitutes, was within the mischief of the act whereas under a literal interpretation they would not have been punished under the Street Offences Act (1956). As already decided by the Court of Appeal, a forfeiture of C$30,000 is the reasonable amount as the previous donations were made when Max was unaware that he was not registered and so it would be unreasonable to punish someone for something they were unaware of. Therefore, the mischief rule approach could be adopted modify the law so that it reads if an unregistered citizen makes donations to a political party whilst knowing they are unregistered. Mischief rule advocates would argue that the courts’ role is to suppress the mischief that the act is aimed at and advance the remedy, having a more active role. Hence, by looking at Parliament’s intention, the mischief was foreign intervention and political corruption. However, the 30-day period given to enable the return of money made by an unregistered registered citizen is there to accommodate mistakes such as in Max’s case but in knowingly not returning the money, it was no longer a mistake. Moreover, the mischief rules allow for a greater degree of judicial law making by enabling judges to decide what they think Parliament intended which may not be correct, going against the separation of powers as judges are overstepping into the function of the legislative. This can arguably be seen in the case of [4]Roe v Wade (1973) where the judges decided on legalizing abortion which has since led to social unrest and has been classed as ‘unsettled law’.
Statutes are Acts of Parliament, passed by elected legislators and courts are the primary interpreters of statues thus, it is essential to democracy that there is a separation of powers which can only be adhered to through the literal rule. In this case, the two dominant interpretations are literal, giving words their natural and grammatic meaning even if the result is absurd or leads to a repugnant result and mischief, which looks at the gap in the law Parliament intended to resolve. Section 15 (1) clear and unambiguous thus the party must forfeit all the unlawful donations, amounting to $200 million as it could lead to a dangerous precedent of letting unregistered citizens of lightly. It happened to be the case that Max was a citizen but soon, unregistered citizens could donate to parties under the false pretense they did not know they were unregistered, having worse political consequences than the RRP simply collapsing. Similarly, would Banksy and Kapoor have the same opinion had the RRP been an extremist party? I presume not and so for consistency as well as judicial restraint, the RRP should forfeit C$200 million.
Grade: 52
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