Repeal, Revocation, Retrospectivity Flashcards
What’s the difference between Repeal and Revocation
The position of law in common law countries is that the word repeal is used for entirely rescinding a provision in the Constitution or an Act of Parliament.
On the other hand, the word revoke is used for a complete revocation of a subsidiary legislation. Therefore, the words repeal and revocation are not used interchangeably. They are terms of art.
Where laws are in conflict and the conflict is reconcilable the issue of repeals does not arise however where there is a conflict of laws and the conflict is irreconcilable the issue of repeal, revocation or amendments would be applicable.
Types of Repeal
The position of law in common law countries is that the word repeal is used for entirely rescinding a provision in the Constitution or an Act of Parliament.
On the other hand, the word revoke is used for a complete revocation of a subsidiary legislation. Therefore, the words repeal and revocation are not used interchangeably. They are terms of art.
Forms of implied repeals - hierarchy of laws
Forms of implied repeals
Hierarchy of laws
Where statutes conflict with each other on the same subject matter and the conflict is irreconcilable. This is determined by the hierarchy of laws in the country. In Ghana, the constitution is the supreme law followed by Acts of parliament, subsidiary legislation (rules, orders) and common law.
Accordingly, Article 1(2) provides that the Constitution shall be the Supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall to the extent of inconsistency be void.
Conflicting laws are thus resolved by this hierarchy which means that when a provision in a subordinate legislation and that of an enactment conflict, the resolution would be favour of the enactment which is superior to the subordinate legislation
Implied Repeals - Nature of Laws
Nature of laws
Where there is a conflict between two acts of parliament and one is a special act and the other one is general, the special legislation is deemed to have amended or repealed the general one.
On the other hand, where two acts or subsidiary legislations are of the same character that is both laws are general or special, the later one is deemed to have repealed the former one. This principle is called leges posteriors Prores Contrarias Abrogant.
Kowus Motors v Check Point Ghana Ltd (Specific v General provision)
The case of Kowus Motors v Check Point Ghana Ltd and others is a perfect example of Repeals. In this case the supreme court had to resolve a conflict between the AFRCD 60 and the Statute Law Revision Act 1997(Act 543). In resolving the conflict, the court held that where the statutes were of the same character however one statute is special and the other is general, the specific legislation is deemed to have amended or repealed the general one. This principle is referred to as “generalibus specialia derogant” which means the special provisions overrides general ones.
R v High court, Accra; ex parte PPE & JURIC
The same principle was reiterated in the case of Republic vs High Court, Accra; Ex Parte PPE and Juric (UT Financial Services Ltd, Interested Party), where the supreme court quoted Benion:
“ Generalibus specialia derogant where the literal meaning of a general enactment covers a situation for which specific provision is made by some enactment within the Act or instrument, it is presumed that the situation is intended to be dealt with by the specific provision. This is expressed in the maxim specialia derogant.
In Re Wulensi (Special v General)
The same principle was enunciated in the case of IN RE PARLIAMENTARY ELECTION FOR THE WULENSI CONSTITUENCY: ZAKARIA V NYIMAKAN, where there was a conflict between Article 99(2) and Article 131. The court treated Article 99(2) of the 1992 Constitution as a special legislation which supersedes the general appellate jurisdiction of the Supreme Court under ARTICLE 131(1)(a) of the Constitution and thereby declaring the Court of Appeal as the final appellate court in Parliamentary elections in Ghana.
What does the constitution say about retrospectivity and which Article governs?
Article 107(b) of the 1992 constitution provides that:
Parliament shall have no power to pass any law which operates retrospectively to impose any limitations on or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation, or liability on any person except in the case of a law enacted under articles 178 to 182 of this constitution.
