Presumptions: Law and Ouster Clauses

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Topics: Law, Constitution
Presumptions

A presumption is a legal notion that allows a judge or jury to assume a certain fact is true if another fact, or set of facts, can be proven by a party to the case. In addition to the rules, specific presumptions may be applied by the courts when faced with uncertain cases. These provide primary principles enforced on the statue to be interpreted. Some presumptions of statutory interpretation are:
i) The presumption against ousting the jurisdiction of the courts ii) The presumption that persons should not be penalized except under clear law iii) The presumption toward fairness and justice iv) The presumption of constitutionality
v) The presumption against changes in the common law vi) The presumption against altering existing rights vii) The presumption against the retroactive operation of statues

The presumption against ousting the jurisdiction of the courts
Except by the pure and stated words of a statute, the court will presume that the jurisdiction of the courts will not be ousted or avoided. However, case law illustrates ouster clauses that are clearly expressed in legislation. Ouster clauses in English Law by Zoe Kirk-Robinson states that an ouster clause is a provision in a Parliamentary statute which excludes certain actions and decisions from judicial review; in the interests of the smooth administration of justice. Often, where a statute seeks to oust the jurisdiction of the courts, the court will devise ways and means to circumvent the ouster.

The presumption that persons should not be penalised except under clear law
If words in a strict statute are indistinguishable and there are two rational interpretations, the more lenient one will be applied to an accused. The presumption dictates that there is legal certainty before persons are sanctioned; so as to give those affected by the new law a chance to understand the penalties which may be levied against them.

The presumption toward fairness and justice
Professor

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