"letter of the statute is not to prevail".
34
a
In New Zealand, the notion of such "basic rights" exist
has been crafted by the Court of Appeal and asserted in
system of law which is in some ways similar to that of Hong
Kong: common law, non-federal and subject to appeals to the
Privy Council.
The
cases
a are subject to
great deal of
35
authorises judges to defend
judicial and academic discussion and controversy.
effectiveness.
The other basis which
fundamental rights is more modest in its assertion but
(perhaps for that reason) more potent in its daily
It achieves its goals by the simple device of
statutory interpretation and common law exposition. Because
the bulk of law is nowadays made by legislatures in the form
of statutes, an important feature of the life of the modern
judge of the common law is giving effect to the "intention"
ΟΙ "purpose" of the lawmaker. This is done by giving
to the words of the law so made.
meaning, and then force, to
That law may have had such meaning and force before it is
expounded. But there is no doubt that the
adds, if not legitimacy, at least
judicially
judicial
exposition
effectiveness to that law in a society such as ours.
It is in this function of statutory interpretation (but
equally in the exposition of the common law and in its
development) that the modern judge of the common law has a
vital rôle to play in protecting, and even advancing,
fundamental rights. The issue arises all the time in the
practical work of courts. Because of the ambiguity of
language to which I have referred, courts are presented with
choices. Take one choice, and a basic right may be lost.
Take another and the basic
right will be
safeguarded.
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