The Consideration of Reluctance of the Court - Term Paper Example

Legal Studies The first consideration is the need to strike a balance which in the current scenario went against automatic en ment of restoration. Even though it was agreed that unsuitable person would be on the list of Register for some period of time. The argument of uncertainty if automatic restoration was granted was rebutted by the fact that fresh application by unsuccessful applicants could be made. Thus the approach in the first consideration reflected the golden rule whereby an absurd result was avoided. The second consideration that was given was that of pari material that is making reference to other statutes when looking at the statute at hand. The act was construed to have said that removal even for a specified period of time was removal and not suspension. The difference in terminology was construed so as to differentiate between suspension and removal as the latter would mean remove and so automatic removal was not possible. This sort of interpretation has been said to be purposive as it looks at the overall effect and tends use aids to interpretation that is dictionaries and other materials so as to differentiate between the meanings of words. (Wesley 1998) The third consideration was avoidance of circularity. The courts stated that the refusal of automatic restoration by the court would avoid circularity but this is was by an action of the court which did not fit in well as it interfered with what had been intended. This consideration dealt with the literal rule as in discussing the straight forward notion and the golden rule whereby the absurdity in result that would be caused was discussed. (Wacks et al 1989) The fourth consideration was that of giving meaning and substance to each provision whereby the true meaning was considered and thus went against automatic removal of consideration. In this situation the court took into account both sides of the argument and determined the result in accordance with the golden rule that is to refrain from reaching an absurd result. (Partington 2010) Finally the consideration of reluctance of the court to find a radical change by way of side-wind was stated. Bokhary PJ looked into the wordings of the statute that is ss.21(1) and 25(3) and the context of two words and their differences were looked into and the courts in confining themselves to the literal approach in this respect rejected the notion that both the wordings were for the same purpose. (Wesley 1998) 2. Bokhary PJ states that these rules complement each other and tends to appreciate the facts that till today the interpretation of the courts of statutes till today reflect what has been stated in the rule. Furthermore, he tends to appreciate the fact that courts in their modern approach to interpretation of statute have relied on the purposive interpretation and he tends to appreciate the fact the purposive interpretation of statute has developed from the concept of the old rules and in particular the mischief rule. Bokhary PJ has accepted that the three rules of interpretation has helped judges interpret statutes and that till now the rules have been used by the courts and at least one of the approach is followed when interpretation to a statute is made. (Wesley 1998) 3. As far as the meaning of remedial is concerned in respect of s.19 of the Interpretation and General Clauses Ordinance, the view of Bokhary PJ can easily be differentiated from. This is so because it merely states that Ordinance is to be remedial but does not in any way point to how it is going to be remedial or the meaning that is to be attributed to remedial. It is not plain enough as it is subject to differing interpretation as are the other words, thus the opinion of Bokhary PJ to the extent that that the meaning is plain is flawed as there can be other instances where it is found that the meaning is not clear. The argument that has been laid down by Bokhary PJ in respect of ‘fair, large and liberal’ and other meanings are not the only arguments, it can be argued that remedial may have different opinions from reasonable people and the fact that remedial is stated does not in itself lay down how that is to be achieved. Legislation is to be interpreted as being remedial does not provide for the way it is to be interpreted and leaves the possibility open of how remedial is construed by judges. (Leung 2007) 4. Bokhary PJ in referring to s.19 has improvised and chose his method of interpretation. This can be seen from the argument that the meaning of remedial is clear. It can be argued that remedial can be by way of literal approach as well. Furthermore as stated by him, that reasonable people tend to differ on the meaning of other words within the section, the same can be said for the word remedial. Furthermore Bokhary PJ, then goes on to criticize the fact that the Ordinance does not provide any provide any practical guidance as to interpretation, a clear way of going about his own way to choose the mode of interpretation. The next step taken by Bokhary PJ was to lay down his preferred mode of interpretation. Thus he states that the mode should be used for most of the cases. He does not disclose the method but refers to Bennion: Statutory Intepretation which says that the intention of the legislator is taken into account and it should be construed in accordance with general and if there is problem the a resolution should be achieved by balancing the interpretative factors. This was referred to so as point to interpretative factors and state that circumstances tend to reflect the factors. Thus the provision of the statute should be read as a whole so as to determine the intention of the legislator and to weigh and balance the factors in case of conflict. Thus in adopting to the purposive approach Bokhary PJ tends to refer to differing material and then bases his mode of interpretation in accordance with those principles. However such a method is merely used to reflect the preferred mode of interpretation. (Carver 2004) 5. The approach of the lower courts took the literal interpretation contrary to the higher court where the purposive approach was used. On the facts in hand the approach that has been followed by the courts in the higher court is justified based on the fact that automatic reinstatement would allow for people who were charged under a major offence to be reinstated. Furthermore, the courts have disallowed automatic reinstatement and left the discretion to Council to reinstate and the option of fresh proceedings is also present. If the courts had allowed such an application then the courts would have been interfering with the operation of the Council and so there would have been an increase in challenges against the Council. Thus the judgment of the higher court which is based on a purposive approach is justified on the grounds of rejection of automatic reinstatement, the definition of removal and suspension, the relationship of ss.21(1) and 25(3) and the possibility of bringing a fresh application in front of Council for reinstatement if the remove was for a stipulated period of time. (Wesley 1998) 6. The head notes that have been stated in the current case have been correctly stated as far as medical practitioners, removal, no automatic reinstatement, the ordinance, statutory interpretation and purposive approach are concerned. However, the head notes do not specify whether the appeal had been allowed or not. This should have been stated. The approach of the lower courts of interpretation of statute could have been referred as well. (Mau 2006) References WESLEY-SMITH, P. (1994). The sources of Hong Kong law. HKU Press law series. Digital Editions from Hong Kong University Press. Hong Kong, Hong Kong University Press. http://eproxy.lib.hku.hk/login?url=http://lib.hku.hk/cgi-bin/hkupress/title.cgi?isbn=9622093639. WESLEY-SMITH, P. (1998). An introduction to the Hong Kong legal system. Hong Kong, Oxford University Press. MAU, S. D. (2006). Hong Kong legal principles important topics for students and professionals. Hong Kong, Hong Kong University Press. http://catalog.hathitrust.org/api/volumes/oclc/63706120.html CARVER, A. (2004). Hong Kong business law. Hong Kong, Longman LEUNG, P. M.-F. (2007). The Hong Kong Basic Law hybrid of common law and Chinese law. Hong Kong, LexisNexis. http://catalog.hathitrust.org/api/volumes/oclc/166460809.html. FU, H., HARRIS, L., & YOUNG, S. N. M. (2008). Interpreting Hong Kongs Basic Law: the struggle for coherence. New York, NY, Palgrave Macmillan. YOUNG, J., & LEE, R. (2010). The common law lecture series 2008-2009. Hong Kong, Faculty of Law, the University of Hong Kong. WACKS, R., & BRABYN, J. M. (1989). The future of the law in Hong Kong. Hong Kong u.a, Oxford Univ. Pr. PARTINGTON, M. (2010). Introduction to the English legal system. Oxford, Oxford University Press. GILLESPIE, A. (2009). The English legal system. Oxford, Oxford University Press Read More