What is Statutory Construction ?
art - applying human creative skills / process - series of action or steps taken
the art or process of discovering and expounding the meaning and intention of
the authors of the law with respect to its application to a given case, where that
intention is rendered doubtful, among others, by reason of the fact that the given
case is not explicitly provided for in the law.
Justice Martin defines statutory construction as the art of seeking the intention of
the legislature in enacting a statute and applying it to a given state of facts.
A judicial function is required when a statute is invoked and different interpretations
are in contention.
WHEN CONSTRUCTION IS REQUIRED
A cardinal rule in statutory construction is that when the law is
clear and free from any doubt or ambiguity, there is no room for
construction or interpretation. There is only room for application.
Construction or interpretation comes only after it is shown that an
application of the law is impossible or inadequate without such
interpretation.
If a statute is free from ambiguity, it must be given its literal meaning
and applied without attempted interpretation. Only statutes with an
ambiguous or doubtful meaning may be the subject of statutory construction. The plain meaning rule or verba legis, derived from the maxim
index animo sermo est (speech is the index of intention), rests on the
presumption that the words employed by the legislature in a statute
correctly express its intent by the use of such words as are found in the
statute. This rule is in deference to the plenary power of Congress to
make, alter and repeal laws as this power is an embodiment of the
People’s sovereign will. Accordingly, when the words of a statute are
clear and unambiguous, courts cannot deviate from the text of the law
and resort to interpretation lest they end up betraying their solemn duty
to uphold the law and worse, violating the constitutional principle of
separation of powers.
POWER TO CONSTRUE LAWS AND ITS LIMITATIONS
The judicial function of interpreting the Constitution arises from the principle
of separation of powers. The Supreme Court has advanced the separation of powers as a fundamental principle in our system of government, which is obtained, it
said, not through express provision but by actual division in the Constitution. As
such, each department of the government has exclusive cognizance of matters within
its jurisdiction and is supreme within its own sphere. The Court went further and
recognized that the Constitution itself has provided for the instrumentality of the
Judiciary as determiner of the nature, scope, and extent of powers provided for in
the Constitution. Nonetheless, the Court made it clear that in exercising the power
of judicial review, it does not assert any superiority over the other departments; but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.
What is Judicial Legislation?
craft - exercise skill in making something
to coin a word or a phrase - you are the first
person to say it / you come up with a new
way to say something
Judicial legislation is defined as the move of a court to step in to
craft missing parts, to fill in the gaps in laws, or when it oversteps its
discretional boundaries and goes beyond the law to coin doctrines
or principles which are not previously established.
Judicial legislation is nothing but law pronounced, proclaimed and
declared by the judiciary–more particularly the Supreme Court, this is
also known as “judicial law” or “Judge-made law”. Even though
enacting legislation is the constitutional prerogative of the legislature
What are the characteristics of judicial legislation ?
Judicial legislation means new legal rules made by judges.
It means the power of the judicature to make rules for the regulation of their
own procedure by adopting their delegated legislative powers.
Judicial legislation varies from precedent whereby judges create new laws.
Precedent refers to a court decision that is considered as authority for deciding subsequent cases
involving identical or similar facts, or similar legal issues.
Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the
same manner to cases with the same facts.
Difference between judicial legislation and statutory construction:
W here legislature attempts to do several things one which is invalid,
it may be discarded if the remainder of the act is workable and in no
way depends upon the invalid portion, but if that portion is an integral
part of the act, and its excision changes the manifest intent of the
act by broadening its scope to include subject matter or territory which
was not included therein as enacted, such excision is “judicial
legislation” and not “statutory construction”.
invalid: null; void: without force or effect
CONSTRUCTION and INTERPRETATION, DISTINGUISHED
Construction is the drawing of conclusions with respect to subjects that are
beyond the direct expression of the text, while interpretation is the process
of discovering the true meaning of the language used.
* the process of using the legal texts to draw conclusions that go beyond its
plain language to solve inconsistencies
Interpretation is limited to exploring the written text. Construction on the
other hand is the drawing of conclusions, respecting subjects that lie beyond
the direct expressions of the text.
* the process of ascertaining the true meaning of words and
the purpose of the legislation
SITUS OF CONSTRUCTION AND INTERPRETATION
• Legislative power is vested in the Congress of the Philippines – the Senate and
the House of the Representatives (makes the law)
• Executive power is vested in the President (executes the law)
• Judicial power is vested in one Supreme Court and in such lower courts as may
be established by law (interprets the law)
the situs of construction and interpretation of written laws belong to the judicial
department. It is the duty of the Courts of Justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch of the government. Supreme
Court is the one and only Constitutional Court and all other lower courts are statutory
courts and such lower courts have the power to construe and interpret written laws.
DUTY OF THE COURTS TO CONSTRUE AND INTERPRET THE
LAW; REQUISITES
1. There must be an actual case or controversy,
2. There is ambiguity in the law involved in the controversy.
Ambiguity exists if reasonable persons can find different meanings in a statute,
document, etc.
A statute is ambiguous if it is admissible of two or more possible meanings.
If the law is clear and unequivocal, the Court has no other alternative but to apply
the law and not to interpret.
Construction and interpretation of law come only after it has been demonstrated
that application is impossible or inadequate without them.
DIFFERENT KINDS OF CONSTRUCTION AND INTERPRETATION
Hermeneutics – the science or art of construction and interpretation.
Legal hermeneutics – is the systematic body of rules which are recognized as
applicable to the construction and interpretation of legal writings.
Dr. Lieber in his work on Hermeneutics gives the following classification of the
different kinds of interpretation:
1. Close interpretation – adopted if just reasons connected with the character and
formation of the text induce as to take the words in the narrowest meaning. This
is generally known as “literal” interpretation.
2. Extensive interpretation – also called as liberal interpretation, it adopts a more
comprehensive signification of the words.
3. Extravagant interpretation – substitutes a meaning evidently beyond the true
one. It is therefore not genuine interpretation.
4. Free or unrestricted interpretation – proceeds simply on he general principles
of interpretation in good faith, not bound by any specific or superior principle.
5. Limited or restricted interpretation - influenced by other principles than the
strictly hermeneutic ones.
6. Predestined interpretation – takes place when the interpreter, laboring under a
strong bias of mind, makes the text subservient to his preconceived views and
desires.
Statutes: (also known as acts)
Laws are rules of conduct to govern human activity handed by legitimate
authority.
- a law enacted/passed by the legislative body or branch of a government
- a formal written enactment of a legislative authority that governs the legal
entities of a city, state, or country by way of consent.
* legislation enacted by any lawmaking body, including legislatures, administrative boards, and
municipal courts.
- statutes command or prohibit something, or declare policy
Strict Construction means each of the words in Statute should be interpreted by letter, and no regard should be had to the spirit beyond the
statute.
- in the case of strict interpretation, Courts may prefer the literal rule
- Generally, taxing and penal statutes are strictly construed
Liberal or beneficial Construction means the interpretation should
be made liberally with the intention to advance the purpose or object of
the statute.
- beneficial or benevolent legislation like Contract Labour Act should be liberally
construed. Even in the case of taxing statutes, beneficial provisions should be
liberally construed.
Mandatory rule must be strictly followed, while substantial compliance
might suffice in a directory rule. Whenever the statute prescribed that a
particular act is to be done in a particular manner and also lays down that
failure to comply with the said requirement leads to severe consequences,
such requirement is mandatory. It is the cardinal rule of the interpretation
that where a statute provides that a particular thing should be done, it
should be done in the manner prescribed and not in any other way.
Tax laws are required to be strictly construed.
In a taxing statute, one has to look at what is clearly said. There is no equity
about a tax. There is no intention. There is no presumption as to tax. Nothing
is to be read in, nothing to be implied.
Penal statute is a statute that defines a criminal offense and prescribes its
corresponding fine, penalty, or punishment. It is a statute that calls for a
penalty as opposed to one providing for a remedy for a wronged party.
Where a statute is penal in character, it must be strictly construed and
followed.
Suppose two possible constructions can be put upon a penal provision. In
that case, the court must lean towards that Construction which exempts the
subject from the penalty rather than the one which imposes penalty.
What is the fundamental rule in the construction of statutes?
Rule1. Apply the Law when it is CLEAR. Do not Interpret or CONSTRUE.
Where the words of a statute are clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without attempted interpretation.”
the language employed in the Constitution must be given their ordinary meaning
except where technical terms are employed. The words of the Constitution should
be understood in the sense they have in common use.
What it says compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say.
Rules of statutory construction
The rule is expressed through the maxim verba legis non est recedendum,
index animi sermo est. It means that there should be no departure from the
words of the statute, because speech is the index of intention The legislature is
presumed to know the meaning of the words, to have used words advisedly, and to
have expressed its intent by use of such words as are found in the statute.
Rule 2: Interpret before you CONSTRUE. You CONSTRUE only when the written law is not enough to give meaning and EFFECT to the INTENT of the LAW.
When the law is not clear, you interpret it with the use of intrinsic aids.
Then, if interpretation is not enough, you construe the law with the use of extrinsic
aids.
Rules of statutory construction
It is a rule in statutory construction that every part of the statute must be interpreted
with reference to the context.
- that every part of the statute must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment.
- the law must not be read in truncated parts, its provisions must be read in
relation to the whole law.
- The statute's clauses and phrases must not, consequently, be taken as detached
and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts in order to produce a harmonious
whole.
- Consistent with the fundamentals of statutory construction, all the words in
the statute must be taken into consideration in order to ascertain its meaning.
Applying the principle in statutory construction
That when a statute or provision contains words of positive
prohibition, such as "shall not," "cannot," or "ought not" or which is
couched in negative terms importing that the act shall not be done
otherwise than designated, that statute or provision is mandatory, thus
rendering the provision mandatory
The Constitution should, be read as a whole unit. Each provision
must be understood and effected in a way that gives life to all that
the Constitution contains, from its foundational principles to its
finest fixings.
Reading a constitutional provision requires awareness of its relation with the whole of the Constitution. A constitutional provision
is a constituent of a greater whole.
Discerning constitutional meaning is an exercise in discovering the
sovereign’s purpose to identify which among competing interpretations of the same text is the more contemporarily viable construction.
Primarily, the actual words (text) and how they are situated within
the whole document (context) govern.
Secondarily, when discerning meaning from the plain text fails,
contemporaneous construction may settle what is more viable.
Nevertheless, even when a reading of the plain text is already
sufficient, contemporaneous construction may still be resorted to as
a means for verifying or validating the clear textual or contextual
meaning of the Constitution.
3 basic rules in statutory construction
1. The rule that the provision that appears last in the order of position in the rule
or regulation must prevail.
2. The rule that the contemporaneous construction of a statute or regulation by
the officers who enforce it should be given weight.
CONTEMPORANEOUS CONSTRUCTIONS or CONTEMPORARY CONSTRUCTIONS
are made by the Executive Departments. First type of Contemporary Constructions are the
interpretations of the Executive on Statutes, for them to implement it, they must understand
it and interpret it if the language of the law is AMBIGUOUS.
3. Petitioner lifted a portion from Agpalo’s Statutory Construction where the
word "shall" had been construed as a permissive, and not a mandatory language.
CONTEMPORANEOUS CONSTRUCTIONS or Contemporary Consruction
are made by the Executive Departments.
First type of Contemporary Constructions are the interpretations of the Executive on Statutes, to
implement it, they must understand it and interpret it if the language of the law is AMBIGUOUS.
-The executive makes RULES or IRRs for this statutes, or ADMINISTRATIVE RULES
and PROCEDURES. These IRRs or RULES issued by the executive to execute the Statute are
Contemporary Construction.
Second Type of Contemporary Constructions are the Interpretations of the Justice Secretary
in carrying out PENAL LAWS and all OTHER LAWS, under her are the Prosecutors, Fiscals
of the Philippine Republic.
- The issuances on how laws are to be prosecuted are Contemporary Construction of the
Justice Secretary.
Type of CONTEMPORANEOUS CONSTRUCTIONS
The 3rd type are the DECISIONS OF THE ADMINISTRATIVE BODIES
handling disputes in a QUASI-JUDICIAL MANNER. These decisions are
based on their UNDERSTANDING of Statutes passed by congress, laws
that are enforced. These are CONTEMPORARY INTERPRETATIONS and
Constructions.
Type of CONTEMPORANEOUS CONSTRUCTIONS
When to interpret and construe statutes?
Statutes are not easy to read and understand, especially, to an ordinary person. But
those who are learned of the law, they know the rules. And these are the rules:
When the law is clear, apply it. (Do not Interpret or CONSTRUE)
Interpret: to explain / Construe : to understand /interpret a word or action in a particular way
When is the law clear?
It is clear when its provisions are not doubtful, And, is not subject
to several interpretations.
The provisions cover the articles and/or sections contained in the law.
When the law is unclear but its provisions are enough to find
its meaning and effect, interpret it.
To interpret the law means going over its provisions and finding its
meaning and effect. If the law cleared already, it means that one
just used the intrinsic aids.
Intrinsic aids are the statements, the provisions, the lines, phrases,
or words found in the law itself.
When the law and its provisions are unclear, construe it by
applying the rules of construction.
What if the law and its provisions are both unclear?
To solve this, there is a need to use extrinsic aids. In interpreting the
law with the use of extrinsic aids, the rules of construction is applied.
An example of extrinsic aid is the minutes of the deliberations
during the passage of the law.
A legislature is a kind of deliberative assembly with the power
to pass, amend, and repeal laws.
The law created by a legislature is called legislation or statutory law. In addition to
enacting laws, legislatures usually have exclusive authority to raise or lower taxes
and adopt thebudget and other money bills. Legislatures are known by many names,
the most common being parliament and congress, although these terms also have
more specific meanings.
What is Legislative intent? (the reason for passing the law)
In law, the legislative intent of the legislature in enacting legislation may
sometimes be considered by the judiciary when interpreting the law .
The judiciary may attempt to assess legislative intent where legislation is
ambiguous, or does not appear to directly or adequately address a particular
issue, or when there appears to have been a legislative drafting error.
When a statute is clear and unambiguous, the courts have said, repeatedly,
that the inquiry into legislative intent ends at that point. It is only when a
statute could be interpreted in more than one fashion that legislative intent
must be inferred from sources other than the actual text of the statute.
Legislative intent is determined principally from the language of the statute.
Sources of legislative intent
Courts frequently look to the following sources in attempting to determine the goals and
purposes that the legislative body had in mind when it passed the law:
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the text of the bill as proposed to the legislative body,
amendments to the bill that were proposed and accepted or rejected,
the record of hearings on the topic,
legislative records or journals,
speeches and floor debate made prior to the vote on the bill,
legislative subcommittee minutes, factual findings, and/or reports,
other relevant statutes which can be used to understand the definitions in the statute on question,
other relevant statutes which indicate the limits of the statute in question,
legislative files of the executive branch, such as the governor or president,
case law prior to the statute or following it which demonstrates the problems the legislature
was attempting to address with the bill, or
• constitutional determinations (i.e. "Would Congress still have passed certain sections of a
statute 'had it known' about the constitutional invalidity of the other portions of the statute?").
Procedure for interpreting the Constitution:
1. Verba legis - Whenever possible, the words used in the Constitution must be
given their ordinary meaning except where technical terms are employed.
• It is to be assumed that the words in which constitutional provisions are couched to
express the objective sought to be attained.
• The words are to be given their ordinary meaning except where technical terms are
employed in which case the latter meaning prevails.
• Because the Constitution is not primarily a lawyer’s document, its language as
much as possible should be understood in the sense they have in common use.
• The text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, on the premise that the framers and the
people mean what they say.
Adherence to these rules reduces the need for construction. As the
Court explained in another case, “Fidelity to the Constitution requires
commitment to its text.” In exercising its function as official interpreter
of the Constitution, the Court should always bear in mind that judicial
prudence means that it is safer to construe the Constitution from what
appears upon its face.
2. The second rule is that where there is ambiguity in the text,
ratio legis est anima is applied. The words of the Constitution
should be interpreted in accordance with the intent of its framers.
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been held that
the Court in construing a Constitution should bear in mind the object
sought to be accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be examined in the
light of the history of the times, and the condition and circumstances under
which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that reason and
calculated to effect that purpose.
The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed
that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.
3. The third rule is ut magis valeat quam pereat. The Constitution is to
be interpreted as a whole.
The members of the Constitutional Convention could not have dedicated a provision
of our Constitution merely for the benefit of one person without considering that it
could also affect others. When they adopted subsection 2.26 they permitted, if not
willed, that said provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great
document.
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered
alone, but that all the provisions bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the
two can be made to stand together. In other words, the court must harmonize them,
if practicable, and must lean in favor of a construction which will render every
word operative, rather than one which may make the words idle and nugatory.
Apart from the text and the intent of the framers of the Constitution, the Supreme
Court also said that the interpretation of the Constitution “must take into account
the complexities, realities and politics attendant to the operation of the political
branches of government.”
INTRINSIC AIDS
PARTS OF A STATUTE
Laws have to be correctly interpreted to determine whether they apply to the case
at hand. The meaning of a statute and its application can be derived from an examination of the text of the parts of the statute. These parts can shed light on the
manner and conditions attending the enactment of the law and can help determine
whether they were meant to apply to a case pending before a court.
Where there is ambiguity in a statute, courts may resort to the explanatory note to clarify
the ambiguity and to ascertain the purpose and intent of the statute. An explanatory note
usually accompanies a bill. It presents the issue that the bill seeks to address and
proposes the steps to address that issue. In many cases, the explanatory note can shed
light on what the authors intended to accomplish with the proposed measure