ARE FLASHBACKS PERMITTED IN THE DRAMA OF THE LAW? A COMPARISON BETWEEN THE DOCTRINE OF CONTEMPORANEA EXPOSITIO AND THE PRINCIPLE OF CONTEMPORANEITY Dev Saif Gangjee* “In is not history that makes judgements, but judgments that make history.” Lord Denning ‘The nature of law is such that it has to achieve a refined and distilled blend of the static and the dynamic. It has to provide the reassurance of certainty by not changing form and substance from day to day and yet, it has to be flexible and responsive enough to adapt to changing times. Finding this perfection of balance is an ongoing quest with the legislature and the judiciary working in tandem to achieve it. Itis in this framework that an interesting area emerges for debate and discussion. To what extent should the past be relevant in moulding the present shape of the law ? This question has ramifications regarding the interpretation of documents at both the level of domestic legislation as well as for international treaties, which have been in existence for a considerable period of time. Should the courts look into the early interpretations by contemporaries of the legislation or treaty to gain insight into the mind of the makers - which is what the Doctrine of Contemporanea Expositio and the Principle of Contemporaneity recommend - or should the courts merely confine themselves to how it would apply in the reality of today? ‘The debate has been vigorous with certain parallels developing in the interpretation of documents at both levels. Thus, it is the focus of this paper to explore that debate through allowances and limitations developed through case law and presented in the following analytical manner. The Principle of Contemporanea Expositio - A domestic Law Perspective: ‘The principal area of focus in the Interpretation of statutes is to ascertain the will of the legislature. This is not as simple as it seems, as this intention has to be understood without reading our own filters of biases and ideologies into the * IV Year, B.A., LL.B. (Hons,), National Law School of India University.108 Student Advocate [1999 document and affecting the final outcome.' Thus, over the years, one of the most fundamental principles that has developed is to give the words in a legislation their “natural and ordinary” meaning. However, even this guiding principle is much easier to apply with regard to modem statutes. When it comes to ancient statutes, is the “natural and ordinary” meaning the present one, or the meaning of the statute at the time it was passed? For such circumstances, the principle of Contemporanea Expositio est optima et fortissima in lege? was developed as a useful aid. The rule is that the words of a statute? will be generally understood in the sense which they bore when the stature was passed. They are to be understood as used with reference to the subject matter in the minds of the legislature at the time of passing the legislation and should be limited to this alone.‘ To simplify the essential elements of the rule, they are enumerated as follows :- © In the case of ancient statutes, they are to be interpreted as they would have been when they were passed. Consistent usage and practice growing out of these prior interpretations are presumptive evidence of their meaning and should be considered. @ An Act cannot be construed merely by the practice followed under it, but it may be construed upon the actual words together with the practice that was existing at the time when the Act was passed and that has grown up around it. © If the prior interpretations are contradictory, the court will have to consider the reasons given and come to its own conclusion. © But if the words are capable of only one meaning, the fact that a wrong meaning has been attached to them for many years will not affect or prohibit the true meaning. However, the ‘wrong meaning’ will be disturbed in certain exceptional circumstances; e.g. if titles to property are affected. © Finally, although courts in construing a statute are entitled to give weight to the interpretation put upon it by those whose duty it has been to construe, 1. In fact, many contemporary authors feel that instead of trying to decipher the intention of the legislature directly, the object of the legislation should first be established and using this as a guiding light, the intention of the legislature can be ascertained. See, Vepa P. Sarathi, The Interpretation of Statutes 3 (1995). 2A contemporaneous exposition is the best and most powerful in law. 3. Inthe course of this paper, ‘statute’ should be understood as an ancient statute unless otherwise specified. 4 Fora clarification on this definition, See, Roy Wilson (Ed.), Maxwell on the Interpretation of Statutes 134 (1962).Vol. 11 Contemporanea Expositio and the Principle of Contemporaneity 109 execute and apply it in the past, such interpretation does not have a controlling effect on them. The rule as to Contemporanea Expositio was first laid down by Lord Coke while referring to the Magna Carta in the following terms: “This and the like were the forms of ancient Acts and grants, and the ancient acts and grants must be construed and taken as the law was holden at that time when they were made.” Earlier statutes were in the form of charters and no difference was made at first between the construction of a statute and that of any other instrument.§ Once this had been established, the trend was rapidly picked up by other notable jurists of the era. The first important decision was the Montrose Peerage case’ where Lord Cransworth L.C., acknowledged the importance of a historical understanding. The groundwork for this principle was further established in the Cransbay case* which said that “it has been usual to pay great regard to the construction put upon them (the statutes) by the judges who lived at or soon after the time when they were made because they were best able to be judges of the intention of the makers at the time” Lord Esher, in a subsequent judgment’, directed that unless subsequent circumstances clearly imply otherwise, Contemporanea Expositio should be the guiding light." This rule was further reiterated in Attorney General v. The Primate!! 5 See generally, Vepa P. Sarathi, The Interpretation of Statutes (1995). This has in turn been referred to by the Indian Courts in Senior Electrical Inspector v. Laxminarayan Chopra, AIR 1962 SC 159. 7 The Montrose Peerage case, (1853) 1 Macq HL Cas. 401, 406, cited from M.S. Bindra, Principles of Statutory Interpretation 332 (1997). Lord Cransworth, L.C., observed “It has very often been held, and not unwisely or improperly, that the construction of very ancient statutes may be elucidated, by what, in the language of the courts, is called Contemporanea Expositio, that is seeing how they were understood at that time.” 8 Morgan v. Cransbay, (1871) L. R, 3 HL 304, . Sharpe v. Wakefield ,(1888) 22 QBD 239, 241. 10 Lord Esher directed that “the words of a statute must be construed as they would have been the day afier the statute was passed, unless some subsequent Act has declared that some other construction is to be adopted or has altered the previous statute.” II Exchequer Chamber of Ireland, | Jebb & Symes 317 cited from Jagdish Swarup, Legislation ‘and Interpretation 203 (1968). It was observed by Burke, C.J., in delivering the judgment that:110 Student Advocate [1999 and thus over the 17 and 18" centuries, the trend was firmly established as a recognized rule of statutory interpretation. Parameters to Ensure Contemporary Relevance: Upon consideration of this principle, the obvious question that arises is: if the statute is applied in a contemporary setting, how relevant will such an interpretation be? The requirement of reasonableness: ‘The question of ‘legislative intention’ is all the more pertinent in the case of hardships caused by such an anachronistic interpretation. Even a long-standing practice sanctioned by judicial decisions and recognized in textbooks and in legislation may be overruled if there is no legal basis for it and if in the changed circumstances its continuance leads to great inconvenience.” This is manifested in the decision of the House of Lords in 1969 overruling a century old practice of assessing compensation by referring to values prevalent at the date of notice to quit a rented property. It held that such valuation should be made with reference to the values prevailing when possession is taken or when assessment is made.'* Thus, an element of reasonableness was introduced into the interpretation of such statutes. Previous judicial interpretation as a parameter: The principle has further evolved by including the test of whether such interpretation has stood the test of judicial scrutiny. This is evident from an Indian decision where S.2 of the Public Servants (Inquiries) Act, 1850 was considered. The conflict arose as to whether it was the State Government or the Central Government that was competent to remove an ICS official. The courts held that the power lay with the Central Government. However, the importance of the case derives from the fact that it clearly stated that Contemporanea Expositio has value only when such views or actions could be tested in courts and there has been a general acquiescence to the course adopted or the action taken by executive authority.'* “The meaning of the ancient statute is to be discovered from what appears to have been done, or not done, upon the statwie, and how it appears to have been understood and dealt with shortly after the Act had been passed, by the members of the legal profession who lived at or near the time.” 12 See, G.PSingh, Principles of Statutory Interpretation 221 (1997), 13. Birmingham City Corporation ¥. West Midland Baptist, [1969] 3 All ER 172 (HL). See also, R. v. Sheppard, (1980] 3 All E R 899 (HL), 14 RPKapur v. Pratap Singh Khairon , AIR 1964 SC 295,Vol. 11 Contemporanea Expositio and the Principle of Contemporaneity 111 The doctrine of “executive construction”: ‘This doctrine deals with the importance given to the interpretations of executive authority. A uniform and consistent department practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time, is an admi aid to proper construction. It would not be disregarded except for cogent reasons The controlling effect of this aid, which is known as “Executive Construction” would depend on various factors such as the length of time for which itis followed, the nature of the rights and properties affected by it, the injustice resulting from its departure and the approval it has received in judicial decisions or in legislation.'* Limitations upon the doctrine: However, there must be reasonable restrictions placed upon this doctrine. There are two chief limitations or exclusionary tests that have emerged through case law. These are the test of antiquity and that of obscurity. ‘The reasoning behind the principle of antiquity is as much sociological and psychological as it is legal. The fundamental objective of interpretation of statutes is to seek legislative intention, for both ancient and modem statutes. It is perhaps unrealistic to attribute to a legislative body functioning in a past and more static society, intentions couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used in the statute. It is more reasonable to confine its intention only to the circumstances in operation at the time the law was made. But in a modern and progressive society, it would be unreasonable to confine the legislature, when there are revolutionary changes brought about in social, economic, scientific and political spheres. Indeed, unless a contrary intention appears such interpretation should be given to modern statutes as to take in new facets and situations if the words appear capable of supporting them.'* The test of obscurity demands that this interpretative tool can only be resorted to where the language of the statute is ambiguous and obscure and, intrinsic aids to construction cannot ascertain its true meaning. However, if it is the executive which gives an interpretation to clarify ambiguity, it must be in sufficiently long usage to be a valid aid. 15 BN. Agarwal » G.N. Kelkar , AIR 1963 MP 25S. See also, Indian Metals and Ferro Alloys Lid. v, The Collector of Central Excise, AIR 1991 SC 1028, 16 See, Senior Electrical Inspector v. Laxmi Narayan, AIR 1962 SC 159 and Raja Ram Jaiswal. State of Bihar, AIR 1964 SC 828.112 Student Advocate [1999 ‘Thus, it can be seen that reasonable limitations have been introduced into the application of this principle to mitigate harshness and an out-of-context application Having laid bare the structure of the application of the doctrine of Contemporanea Expositio in the domestic context, itis interesting to see how it has been interpreted in the far more complex international arena. An International law perspective - The Principle of Contemporaneity: The interpretation of treaties has received much attention in International Law, due to both scholarly considerations as well as conflicting interests of the signatories. The principle of contemporaneity is an interesting example in this, field, where treaties have the added complications of being contractual in nature more often than legislative in nature."” As inany branch of law, there are different approaches to interpretation and an overview of the different schools of interpretation would help to locate this principle within a broader context. The three basic schools are": The literal school which emphasizes the importance of the actual text of the agreement and the words used; (an “objective” approach) @ = The second school looks at the intention of the parties as the solution to ambiguous provisions; (a more “subjective” approach) © Lastly, the objects and purposes method that gives predominance to these aspects of a treaty as a backdrop against which treaty provisions should be measured.” It is this teleological school which underlines the role of the judge as the deciding factor and the principle of contemporaneity fits under this heading, looking back to ascertain the objects and purposes at the relevant time by the authorities of that period, However, it is here that there is a fundamental deviation between domestic and international principles of contemporaneity. More often than not, the “authorities of that period” may be the parties themselves who interpret the terms of the treaty for a long time before the need arises to go to court. Thus, itis their past interpretation which should also be considered, and not only the 17 However, the basis of treaty interpretation is still to establish the true meaning of the treaty at the time it was concluded, because words always are open to interpretation. 18 See, M.N. Shaw, International Law 655 (1997). 19 Such compartmentalization is not watertight and it has been convincingly argued that it is jus ‘ageum or basic principles of fairness and equity that actually guide the judges in choosing @ particular method of interpretation to best satisfy the needs of a particular case.Vol. 11 Contemporanea Expositio and the Principle of Contemporaneity 113 interpretation of an adjudicating body. The core principle however, of a historically contextual interpretation (a flashback) to the opinions of people who lived at the time, is still common to both. This principle was stated by Fitzmaurice in the following terms: “The terms of a treaty must be interpreted according to the meaning, which they possessed, or which would have been attributed to them, and in the light of current linguistic usage, at the time when the treaty was originally concluded.” No analysis on the interpretation of treaties can be comprehensive without reference to the Vienna Convention2! Although it appears at first sight to contain no reference to this aspect of interpretation, if one looks beyond the mere text of Article 31, paragraph 3(c), to the scope of its coverage, it is possible to read in such a tool of interpretation.” Parameters governing the principle of contemporaneity The text of the Vienna Convention however does not completely resolve the intertemporal problem, i.e., whether it is the rules of international law as they stand at the date of conclusion of the treaty which are relevant, or the rules in force at the time of interpretation. Therefore, one must place reliance on the number of decisions” in this area of International Law. The development of the concept itself can be traced historically to early decisions like that of The Franciska’ where Dr. Lushington indicated the following order of priority to be followed in seeking extraneous aids for treaty interpretation :- 1. Reference to the ‘particular circumstances attending the country at the time the treaty was made which would throw any light on the present question.” 20 33 Brit. YB. Int'l, L, 235 (1957). But in the light of recent decisions of the Court, this principle might now be supplemented with the qualification that where it can be established that it was the intention of the parties that the meaning or scope of a term of expression used in the treaty should follow the development of the law, the treaty must be interpreted so as to give effect to that intention i.e, keep pace with the times. 21 The Vienna Convention on the Interpretation of Treaties, 1969. 22 Article 31, para 3(¢) reads as follows: “There shall be taken into account, together with the context any relevant rules of international law applicable in the relations between the patties.” 23. These decisions have been rendered by the International Court of Justice or by its predecessor, the Permanent Court of International Justice. 24 (1855) Spinks Ecc. and Ad. Cases 113, 150 cited from Lord McNair, The Law of Treaties 426 (1986).114 Student Advocate [1999 2. ‘Contemporary exposition’ which would be the next resource. 3. Finally, a ‘modern exposition’. Ina more recent judicial context, the principle was well expressed by Judge de Castro in the Aegean Sea case which was as follows- “The meaning of words may change with time. In order to interpret any statement, to ascertain its meaning, we must first of all concentrate on the meaning, which it could have had at the time when it was made. Words have 1no intrinsic value in themselves. They are, or represent, sounds (phonema), but their semantic value depends on the time and the circumstances in which they were uttered.” Ina matter concerning India in the Right of Passage case, the terms of the grant to the Portuguese relating to two Indian villages, contained in the 1779 Treaty of Poona, was under consideration. These terms were read in the light of contemporary practices as to the making of revenue grants called jagir or saranjam,® although the text of the judgment does not explicitly spell out that fact, Again it may be appropriate to refer to contemporary concepts and practices, not merely to determine the meaning of a term, but to correctly interpret the context and significance of the treaty as a whole, In the Western Sahara case, among the treaties and agreements which were invoked by Morocco were certain agreements between colonial powers referring to an ‘understanding as to the limits of Morocco’ which, it was suggested, amounted to recognition of Moroccan sovereignty in the disputed area, The Court rejected this interpretation of the agreements, noting that “it was not their purpose either to recognise an existing sovereignty over a territory or to deny its existence ... but rather to recognise or reserve for one or both parties a sphere of influence as understood in the practice of that time?” Conclusion ‘As can be seen from a discussion of the case law above, the two principles have developed in tandem although the courts do not appear to have overtly made any references to the commonalties between the two. However, there are a few differences in application. As stated earlier, antiquity is an express requirement 25 IC] Reports (1978), p. 63. 26 IC) Reports (1960), p. 38. 27 ICJ Reports (1975), p. 50.Vol. 11 Contemporanea Expositio and the Principle of Contemporaneity 115 for Contemporanea Expositio to apply but it must be implied as a requirement in International Law. This is so because there, there is the principle of subsequent practice to take care of more recent statutes ~ i.e. look into the recent actions of parties within the framework of the treaty to gauge their intentions. Furthermore, in International Law this principle does not need a third party like a commentator or adjudicator as the interpretations by the parties themselves are a valid source if they are sufficiently clear from past facts and behaviour. This is not permissible in domestic law where a specific judicial pronouncement is given the most importance. International Law is often nebulous and by drawing upon the rich experience of the municipal courts, a symbiotic relationship between these two parallel tools of interpretation can develop. This is all the more important for treaty interpretation as with passage of time and successive governments, there is a tendency to try and back out of prior commitments and obligations. By equitably and contextually applying this principle, such evasions of obligations can be avoided. Itis the principal endeavour of these doctrines to try and arrive at the intention of the parties concerned (or the legislature) as the case may be. By using these guidelines, it is possible to draw on the rich wealth of past experience without running the risk of being bound by the anachronistic chains of outdated legal positions and principles.