OCT

20

Statutory Construction made easy by a Freshman

STATUTORY CONSTRUCTION 2012
Rule1. Apply the Law when it is CLEAR. Do not Interpret or CONSTRUE.
Rule2 in StatCon is IBC, 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.
The RULES are simplified in the middle of this REVIEWER. Done by a Freshman, by ang
aging Freshman who shall be a Lawyer soooooon!!!
literal meaning or plain meaning rule
dura lex sed lex
doctrine of necessary implication
ejusdem generis
limitations of ejusdem generis
expressio unios est exclusio alterius
negative- opposite doctrine
application of expressio unius rule
doctrine of casus omissus
doctrine of last antecedent
reddeddo singula singulis
stare decisis
res judicata
obiter dictum

A legislature is a kind of deliberative assembly with the power to pass,

amend, and repeallaws.[1] The law created by a legislature is
called legislation or statutory law. In addition toenacting 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.
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may
sometimes be considered by the judiciary when interpreting the law

(see judicial interpretation). 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.

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:
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?").

legislative intent- the reason for passing the law

literal meaning or plain meaning rule.

If the statute
is clear, plain and free from ambiguity, it must be given its
literal
meaning
and
applied
without
attempted
interpretation.

you get the meaning of the law from the word per word written law. Literal
meaning or plain rule means INTERPRETATION of the LAW. ALL WORDS words
in a statute should if possible, be given effect.

Where a statute defines a word or phrase employed therein, the word or

phrase should not, by CONSTRUCTION, be given a different meaning. When
the legislature defines a word used in a statute, it does not usurp the courts
function to interpret the laws but it merely LEGISLATES what should form
part of the law itself.
It is settled that in the absence of legislative intent to define words, words
and phrases used in statute should be given their plain, ordinary, and
common usage meaning which is supported by the maxim generalia verba
sunt generaliter intelligenda or what is generally spoken shall be generally
understood. It is also the same as GENERALI DICTUM GENERALITIR EST
INTERPRETANDUM a general statement is understood in a general sense.

WORDS MUST BE SUBSERVIENT TO THE INTENT and

not intent to words.
Ubi lex non distinguit nec nos distinguere debemus. When
the law does not distinguish, do not distinguish.

dura lex sed lex or HOC QUIDEM PERQUAM DURUM EST, SED ITA LEX
SCRIPTA EST.

The law maybe harsh, but is still the law .

It is exceedingly hard,

but so the law is written.

doctrine of necessary implication

this

doctrine

states

that what is implied in a statute is as much a part thereof

as that which is expressed. Every statute is understand by
implication to contain all such provision as may be necessary to
effectuate to its object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all such collateral and
subsidiary consequences as may be fairly and logically inferred from its
terms. The principle is expressed in the maxim EX NECESSITATE
LEGIS or from
the
necessity
of
the
law.

This is to give
effect to both the particular and general words, by treating the

ejusdem generis . THE

SAME KIND OR SPECIE.

particular words as indicating the class and the general words as

indicating all that is embraced in said class , although

not specifically

named by the particular words.

The rule of ejusdem generis is not of universal application; it should be used
to carry out, not to defeat the intent or purpose of the law; the rule must
give way in favor of the legislative intent;

limitations
of
ejusdem
generis
requisites:
1. Statue contains an enumeration of particular and specific
words, followed by a general word or phrase;
2. The particular and specific words constitute a class or are
of the same kind;
3. The enumeration of the particular and specific words is
not exhaustive or is not merely by examples;
4. There is no indication of legislative intent to give general
words or phrases a broader meaning.

expressio unios est exclusio alterius.

the expression of 1 person, thing or consequence IMPLIES
theEXCLUSION of OTHERS or
What is expressed puts an end to that which is implied.

EXPRESSUM FACIT CESSARE TACITUM, where a Statute,

by its terms, is expressly limited to certain matters, it
may not, by interpretation or CONSTRUCTION, be
extended to other matters.
These also follows that when a statute specifically lists downs the
exceptions, what is not list down as an exception is ACCEPTED express in the
maxim EXCEPTIO FIRMAT REGULAM IN CASIBUS NON EXCEPTIS,
the express exception, exemption or savings excludes others.

application of expressio unius rule. This auxiliary rule

is
used
inCONSTRUCTION of
statutes granting
powers, creating rights and remedies,restricting common rights,
and imposing penalties and forfeitures, as well as those statutes which

are strictly construed. It is only a tool and not a mandatory rule used for
ascertaining the legislative intent. The rule must also yield to legislative
intent.

negative- opposite doctrine, WHAT

IS EXPRESSED

PUTS AN END TO WHAT IS IMPLIED is known as negative-opposite

doctrine orargumentum

contrario.

doctrine
of
casus
omissus (case
of
omission) proomisso habendus est. A person,
object or thing omitted from an enumeration must be
held to have been omitted intentionally. This rule is not
absolute if it can be shown that the legislature did not intend to exclude the
person, thing or object from the enumeration. If such legislative intent is
clearly indicated, the COURT may supply the omission if to do so will carry
out the intent of the legislature and will not do violence to its language.

doctrine

of

last

antecedent or

AD

PROXIMUM
IMPEDIATUR

ANTECEDENS
FIAL
RELATIO
NISI
SENTENTIA or relative words refer to the nearest antecedents, unless the

context otherwise requires. QUALIFYING WORDSrestrict or modify only

the words or phrases to which they are immediately associated.
The last antecedent rule is a doctrine of interpretation of
a statute, by which "Referential and qualifying phrases, where no contrary
intention appears, refer solely to the last antecedent." The rule is typically
bound by "common sense" and is flexible enough to avoid application that
"would involve an absurdity, do violence to the plain intent of the language,
or if the context for other reason requires a deviation from the
rule." Evidence that a qualifying phrase is supposed

to apply to all antecedents instead of only to the

immediately preceding one may be found in the
fact that it is separated from the antecedents by a
comma."

reddendo

singula

singulis when

two
descriptions makes it impossible to reconcile,
reconcile it to have a singular meaning to
settle the issue.
refers to each phrase or expression to its appropriate object, or let each be
put in its proper place, that is, the words should be taken DISTRIBUTIVELY to
effect that each word is to be applied to the subject to which it appears by
context most appropriate related and to which it is most applicable.

REDDENDO

SINGULA

SINGULIS, construction. By

rendering each his own; for example, when two

descriptions of property are given together in one mass,
both the next of kin and the heir cannot take, unless in
cases where a construction can be made reddendo
singula singulis, that the next of kin shall take the personal
estate and the heir at law the real estate. 14 Ves. 490.
Vide 11 East,, 513, n.; Bac. Ab. Conditions, L.
Stare Decisis

[Latin, Let the decision stand.] The policy of

courts to abide by or adhere to principles established by decisions in earlier
cases. (stah-ray duh-see-sis) n. Latin for "to stand by a decision," the

doctrine that a trial court is bound by appellate court decisions

(precedents) on a legal question which is raised in the lower
court. Reliance on such precedents is required of trial courts until
such time as an appellate court changes the rule, for the trial
court cannot ignore the precedent (even when the trial judge
believes it is "bad law")
Res Judicata [Latin, A thing adjudged.] A rule that a final
judgment on the merits by a court having jurisdiction is
conclusive between the parties to a suit as to all matters that
were litigated or that could have been litigated in that suit.

The party asserting res judicata, having introduced a final

judgment on the merits, must then show that the decision in the
first lawsuit was conclusive as to the matters in the second suit.
For example, assume that the plaintiff in the first lawsuit asserted
that she was injured in an auto accident. She sues the driver of
the other auto under a theory of Negligence. A jury returns a

verdict that finds that the defendant was not

negligent. The injured driver then files a second lawsuit alleging

additional facts that would help her prove that the other driver
was negligent. A court would dismiss the second
lawsuit under
res
judicata because
the
second
lawsuit isbased on the same Cause of Action (negligence)
and the

same injury claim.

Obiter

Dictum[Latin,

By

the

way.] Words

of
an
opinion entirely unnecessaryfor the decision of the case. A remark made or
opinion expressed by a judge in a decision upon a cause, "by the way", that
is, incidentally or collaterally, and not directly upon the question before the
court or upon a point not necessarily involved in the determination of the
cause, or introduced by way of illustration, or analogy or argument. Such are
not binding as precedent.

AEQUITAS
NUNQUAM
CONTRAVENIT
LEGIS . EQUITY never acts in contravention of the
law.
The reason of the Law is the Life of the Law
or RATIO LEGIS ET ANIMA.
Interpretation and CONSTRUCTION of Statutes
must be done to avoid evil and injustice. EA EST
ACCIPIENDA INTERPRETATIO QUAE VITIO CARET.
Interpretatio fienda est ut res magis valeat quam
pereat,the interpretation that will give the thing the EFFICACY is
to be adopted. Law must receive sensible interpretation to
promote the ends for which they are enacted. They should be
given practical CONSTRUCTION that will give LIFE to them, IF IT
CAN BE DONE without doing VIOLENCE to reason.

UT RES MAGIS VALEAT QUAM PEREAT, A STATUTE must

be interpreted to give it efficient operation and effect as a whole
avoiding the nullification of provisions. IT is so that a legal
provision must not be so construed as to be a useless
SURPLUSAGE. Accordingly, in case of Doubt or obscurity, that
construction should make the statute fully operative and
effective. IT IS PRESUMED THAT THE LEGISLATURE DID NOT DO A
VAIN THING IN THE ENACTMENT OF THE STATUTE.
In PARE MATERIA, of the same person or thing.

INTERPRETARE ET CONCORDARE LEGES LEGIBUS

EST OPTIMUS INTERPRETANDI MODUS, or every statute
must be so CONSTRUED and harmonized with other statutes as to
form a uniform system of Jurisprudence. ALL laws are
presumed to be consistent with each other.
DISTINGUE TEMPORA ET CONCORDABIS JURA,
distinguish times and you will harmonize laws.
IN enacting a STATUTE, the legislature is presumed to have been
aware, and taken into account, PRIOR LAWS on the subject of
legislation. Thus, conflict on same subject is not intended and if
such occur, Court must construe, through reconciliation to give
effect to the statute. If it is impossible to reconcile and
harmonize, one statute has to give way to the other.The
latest statute shall prevail being the latest expression of the
legislative WILL.
A GENERAL LAW and a SPECIAL LAW are in pare materia. The
fact that one is general and the other special creates a
presumption that the special act is to be considered as remaining
an exception of the General Act. One as a General Law of the
Land, the other as a LAW for a Particular case.This shall
apply all the time regardless of which law was enacted first.
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. 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.
The third 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.
THESE CONTEMPORARY CONSTRUCTIONS STATUTES HAPPEN,
WHEN
THERE
ARE NO
ACTUAL
CONTROVERSIES
QUESTIONING THE VALIDITY OF STATUTES IN THE
SUPREME COURT, therefore,NO STARE DECISIS HAVE YET BEEN
MADE. IF THERE ARE JUDICIAL INTERPRETATIONS AND
CONSTRUCTIONS, THEN THE JUDICIAL CONSTRUCTIONS ARE
governing and are THE ONES followed BY THE EXECUTIVE
DEPARTMENTS once promulgated by the Supreme Court.
CONGRESS, NOT BEING THE CONSTITUTIONALLY POWER TO
INTERPRET AND CONSTRUE THE LAWS THEY MAKE, MAY ALSO DO
CONTEMPORARY CONSTRUCTION IN FOLLOWING STATUTES THAT
THEY THEMSELVES ARE BOUND TO FOLLOW.
WITH THE GRANT OF POWERS, RIGHTS, PRIVILEGES IS
ALSO THE RIGHT TO INCIDENTAL POWERS OF THE
POWERS, RIGHTS AND PRIVILEGES. THE GREATER POWER
IMPLIES INCIDENTAL LESSER POWER. This is so because
the greater includes the lesser as expressed in the
maxim, in eo quod plus sit, simper inest et minus.THERE
SHALL BE NO CONSTRUCTION TO GIVE EFFECT TO A LAW
THAT SHALL MAKE IT MORE POWERFUL THAN WHAT WAS
INTENDED BY THE LAW.

Every statute is understood by IMPLICATION, to contain such

provisions as maybe necessary to EFFECTUATE its object and
purpose, or to make effective Rights, powers, privileges or
JURISDICTION which it grants, including all such COLLATERAL and
subsidiary consequences as may be fairly and LOGICALLY inferred
from its TERMS, as expressed in the maxim, Ex necessitate
legis or from the NECESSITY of the LAW. Doctrine of Necessary
Implication.
WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY.
QUANDO ALIQUID PROHIBETUR EX DIRECTO, PROHIBETUR ET PER
OBLIQUUM.

WHAT IS AUTOLIMITATION?
Doctrine of AutolimitationIt is the doctrine where the Philippines adheres to
principles of international law as a limitation to the exercise of its sovereignty.
Functus officio an officer or agency whose mandate has expired either because of the arrival of an expiry date
or because an agency has accomplished the purpose for which it was created. Function is mere FORMALITY.

Sin perjuico judgments are judgment, w/o any stated facts in

support of the conclusion.

RULES in STATUTORY CONSTRUCTION

The solemn decisions of the judges upon a statute
become part of the statute ; and the security of men's lives and property,
require that they should be adhered to: for precedents serve to regulate our conduct ;
and there is more danger to be apprehended from uncertainty, than from any
exposition; because, when the rule is settled, men know how to conform
to it; but, when all is uncertain, they are left in the dark, and constantly liable to error;
for the same offence which, at one time, was thought entitled to clergy, at another,
may be deemed capital ; and thus the life or death of the citizen will be made to
depend, not upon a fixt rule, but upon the opinion of the judge, who may happen to try
him, than which a more miserable state of things cannot be conceived.

1. Presumption of Correctness
a. "When testing the constitutional validity of statutes, courts shall presume the
statute to be valid." Consequently, the burden to show the constitutional defect is on
the challenger. "Every act of the legislature is presumed to be
constitutional,and the Constitution is to be given a liberal construction so as to
sustain the enactment in question, if practicable." "When the constitutionality of an

act is challenged, a heavy burden of proof is thrust upon the party making the
challenge. All laws are presumed to be constitutional and this presumption is one of
the strongest known to the law.
b. "Another rule of statutory construction requires the presumption that, in enacting
statutes, the CONGRESS has full knowledge of existing law and interpretations
thereof . Although the repeal of statutes by implication is not favored, if two statutes
are in pari materia, then to the extent that their provisions are irreconcilably
inconsistent and repugnant, the latter enactment repeals or

amends the earlier enacted statute.

"The legislature is presumed to know the law when enacting

legislation.
c.

d. When amendments are enacted soon after

controversies arise "as to the interpretation of the original
act, it is logical to regard the amendment as a legislative
interpretation of the original act, a formal changerebutting the presumption of substantial change.
e. " We "assume that the

legislature chose, with care, the words it

used when it enacted the relevant statute."

when current and prior versions of a statute are at
issue, there is a presumption that the CONGRESS, in amending a
f.

statute, intended to effect a substantive change in the law.

"Further, we assume that CONGRESS amendments to a statute
are purposeful, rather than unnecessary.
g. "The Supreme Court repeatedly has affirmed that it is a presumption of
statutory construction that, where both general and specific statutes appear to
address a matter, CONGRESS intends the specific statute to control the subject
h. "When a statute begins with the phrase " notwithstanding any other
provision of law," it is presumed that CONGRESS intended to override any

potential

with earlier

legislation.

construction of statutes by agencies

charged with administration of those statutes is
i.

"The

conflicts

entitled to great weight.A decision of an agency specified to execute

the law made by CONGRESS carries great weight and is entitled to deference unless
it is proven the agency erred. The grant of regulatory authority extends only
to duties or powers conferred by law. As such, "regulations, promulgated
pursuant to definitive statutory authority, have the force and effect of law. Moreover,
those regulations which "clearly and explicitly mirror" statutory authority are likeliest
to be sustained. Any regulation of the Department must be reasonably grounded in an
identifiable and definitive statutory foundation. "Generally, the court accords substantial deference to an
agency's interpretations of its own regulations. Provided the interpretation "does not
violate the Constitution, it must be given 'controlling weight
unless it is plainly erroneous or inconsistent with the regulation.

j. we will overturn COURTs decision only if it can be fairly characterized as "arbitrary

or capricious" and thus a "clear abuse of delegated discretion." On the other hand, an
"agency does not possess specialized competence over the interpretation of a statute
merely because it addresses topics within the agency's delegable authority. Pure
statutory construction, a matter within the "core competency of the judiciary," . "This

It is emphatically
the province and duty of the JUDICIAL DEPARTMENTto say
what the law is. It necessarily follows that the a priori question whether the
axiom stems from basic principles of separation of powers.

statute delegates or withholds discretion is itself a question of statutory interpretation,

one implicating our duty of de novo review."

"The circuit court nonetheless deferred to the Technical Review

Board's reasoning, correctly noting that courts give "great
deference" to an agency's interpretation of its own
regulations. This deference stems from Code 2.2-4027, which
requires that reviewing courts "take due account" of the
k.

"experience and specialized competence of the

agency" promulgating the regulation. Even so, "deference is

not abdication, and it requires us to accept only those agency

interpretations that are reasonable in light of the principles of
construction courts normally employ. No matter how one

judicial deference, the administrative

power to interpret a regulation does not
include the power to rewrite it. When a regulation is
calibrates

"not ambiguous," judicial deference "to the agency's position

would be to permit the agency, under the guise of interpreting a
regulation, to create de facto a new regulation." Though agencies

may be tempted to adjudicate their way around unwanted

regulations, such overreaching undermines the notice and public
hearing procedures of the rulemaking process - thereby putting in
jeopardy the "enhanced political accountability of agency policy
decisions adopted through the rulemaking process" and the
democratic virtue of allowing "all potentially affected members of
the public an opportunity to participate in the process of
determining the rules that affect them.
l. "However, whenever an "agency's statutory interpretation conflicts

with the language of the statute or when the interpretation has not been
consistently and regularly applied, the usual deference accorded to an
agency's interpretation should be withheld.
m. When Congress enacts an imprecise statute that it

commits to the implementation of an executive agency, it

has no control over that implementation (except, of
course, through further, more precise, legislation). The
legislative and executive functions are not combined. But
when an agency promulgates an imprecise rule, it leaves to itself the implementation
of that rule, and thus the initial determination of the rule's meaning. And though the
adoption of a rule is an exercise of the executive rather than the legislative power, a
properly adopted rule has fully the effect of law. It

seems contrary to
fundamental principles of separation of
powers to permit the person who promulgates
a law to interpret it as well.
Deferring to an agency's interpretation of a statute does not encourage Congress, out
of a desire to expand its power, to enact vague statutes; the vagueness effectively
cedes power to the Executive. By contrast, deferring to an agency's interpretation of
its own rule encourages the agency to enact vague rules which give it the power, in
future adjudications, to do what it pleases.

Construed Against the State/ Vagueness

a. "It is an ancient maxim of the law that all such statutes
must be construed strictly against the state and favorably
to the liberty of the citizen. The maxim is founded on the tenderness of
the law for the rights of individuals and on the plain principle that the power of
punishment is vested in the legislature and not in the judicial department. No man

incurs a penalty unless the act which subjects him to it is clearly within the spirit and
letter of the statute which imposes such penalty. There can be no constructive
offenses, and before a man can be punished his case must be plainly and unmistakably
within the statute. If these principals are violated, the fate of the accused is
determined by the arbitrary discretion of the judges and not by the express authority of
the
law."
b. "When a statute is penal in nature, it "must be strictly construed against

the STATE and in favor of an accused.

c. "While it is true that penal statutes must be strictly construed against the
STATE in criminal cases, "we will not apply 'an unreasonably

restrictive interpretation of the statute' that would subvert the

legislative intent expressed therein.
d. "In determining whether a legislative enactment is unconstitutionally vague, the
Supreme Court has considered whether the words used have a well-settled . . .
meaning . . . (citing dictionary to determine "generally understood" meaning for
adjective in ordinance). "A penal statute is void for vagueness if it both fails

to give a person of ordinary intelligence notice that her contemplated

conduct is forbidden by the statute and encourages selective prosecution

Statutory Exceptions, Negative Element v. Affirmative

Defense
1) "When construing PENAL STATUTES which contain qualifications,
exceptions or exemptions to their application, the limiting language may be

viewed as a negative element of the offense which the prosecution must

disprove. Alternately, the court may determine that the exemption is a statutory
defense, which the accused can assert to defeat the prima facie case of the
prosecution. In determining whether specific limiting language is an element of the
offense or a statutory defense, a court should look both to the intent of the statute as a
whole and the ability of the respective parties to assert the existence or absence of the
underlying facts sustaining the applicability of the limitation. When determining
whether the limiting language is a negative element or a statutory defense, this Court
has identified four factors to be considered: 'the wording of the exception and its role
in relation to the other words in the statute; whether in light of the situation prompting
legislative action, the exception is essential to complete the general prohibition
intended; whether the exception makes an excuse or justification for what would
otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the
matter is peculiarly within the knowledge of the defendant.' An application of these

factors to the present case demonstrates that the phrase "except as provided by law,"
as used in Code 29.1-553, establishes a statutory defense as opposed to a negative
element
2) "In order to resolve whether there is a due process violation in this

case, we first must address the threshold issue of whether the absence of
a valid prescription is an affirmative defense or a negative element of the
offense.If it is the latter, the burden of proof is on the STATE, and it cannot be
shifted to the accused...When construing penal statutes which contain qualifications,
exceptions or exemptions to their application, the limiting language may be viewed as
a negative element of the offense which the prosecution must disprove. Alternately,
the court may determine that the exemption is a statutory defense, which the accused
can assert to defeat the prima facie case of the prosecution . The ACCUSED

BEARS THE BURDEN OF PRODUCING EVIDENCE OF

THE NEGATIONof circumstances sufficient to raise a
reasonable doubt of his guilt. In determining whether
specific limiting language is an element of the
offense or a statutory defense, a court should look
both to the intent of the statute as a whole and the
ability of the respective parties to assert the
existence
or
absence
of
the
underlying
facts sustaining
the
applicability
of
the
limitation. Accordingly, we should consider the wording of the exception and
its role in relation to the other words in the statute; whether in light of the situation
prompting legislative action, the exception is essential to complete the general
prohibition intended; whether the exception makes an excuse or

justification for what would otherwise be criminal

conduct, i.e., sets forth an affirmative defense; and whether the matter is
peculiarly within the knowledge of the defendant. (It is undoubtedly the
general rule that the state must prove all the essential facts
entering into the description of the offense. But it has been held in
many cases that when a negation of a fact lies peculiarly within
the knowledge of the defendant it is incumbent on him to establish
that fact).
We next observe that the "valid prescription" exemption of Code 18.2-250 relates to
a fact that would be solely within the knowledge of the accused. If we accept

appellant's contention that the STATE must prove appellant had no valid prescription,
the offense would be virtually unprovable. Under appellant's theory, to obtain a
conviction under the facts of this case, the STATE would be required to prove that no
medical professional, wherever located, in this Commonwealth or elsewhere, had
prescribed the drug to appellant. This would involve a nationwide search of chain
drugstores, as well as independent pharmacies, hospitals, prison infirmaries, etc.
Appellant, at oral argument, conceded that such an undertaking would most likely be
impossible. CONGRESS clearly did not intend such a result, nor would they enact
such an impotent statute

Constitutional Construction
1) "The rights enumerated in this Bill of Rights shall not be construed to limit other
rights
of
the
people
not
therein
expressed.
2)The

office and purpose of the constitution is to shape and fix the limits of
governmental activity. It thus proclaims, safeguards and preserves in basic
form the pre-existing laws, rights, mores, habits, and modes of thought and
life of the people as developed under the common law and as existing at
the time of its adoption to the extent and therein statedThe purpose and
object sought to be attained by the framers of the constitution is to be
looked for, and the will and intent of the people who ratified it is to be made
effective. As we have stated, CONGRESS may enact any law or take any
action not prohibited by express terms, or by necessary implications by the
Constitution.
3)A fundamental right is one EXPLICITLY OR IMPLICITLY implied
guaranteed by the constitution
4) "It is an "established principle of constitutional law that a court will not rule upon
the constitutionality of a statute unless such a determination is absolutely necessary to
decide the merits of the case. A statute will be construed to avoid

a constitutional

question

whenever

5) "The

this

is

possible.

construction
of
a
constitutional provision
CONGRESS (note it is congress construing,
not
supreme court, that is why it is CALLED
CONSTRUCTION)is entitled to consideration, and i f

by

the
CONTEMPORANEOUS

the construction is
contemporaneous with adoption of the constitutional provision , it
is entitled to great weight. In addition, Long acquiescence in such an announced

construction so strengthens it that it should not be changed unless plainly

wrong.
6) Constitutional
MANDATORY.

provisions are EITHER

SELF-EXECUTING

OR

A self-executing provision does not require enabling legislation for its

enforcement.

A mandatory provision declares or imposes a duty or

requirement that must be followed.
A Directory provision sets

forth procedures
discretion on thelegislature" for its implementation.

7)
the

"We

review

arguments

or

" confers

regarding

CONSTITUTIONALITY OF A STATUTE DE
NOVO. When the constitutionality of a statute is challenged, we
are guided by the principle that all acts of CONGRESS are
presumed to be constitutional. Where a statute is constitutional
as applied to a litigant, the litigant has no standing to challenge
the statute on the ground that it may be unconstitutional on its
face, that is, as applied to a third person in a
hypothetical situation. As a general rule, "a party has
standing to challenge the constitutionality of a statute only

insofar as it
his own rights

has

an

adverse

impact

on

8)

"However, when a court, in determining the

constitutionality of a statute, departs from the express
limitations of the Constitution and relies instead on
implied
constitutional
restrictions,
the
legislative
usurpation must be very clear and palpable to justify the
courts holding that an enactment is unconstitutional.
9) "This Courts jurisprudence with respect to Article IV,

Section 12 is well established. The fact that many things

of a diverse nature are authorized or required to be done

in the body of the act, though not expressed in its title is
not objectionable, if what is authorized by the act is
germane to the object expressed in the title, or has a
legitimate and natural association therewith, or is
congruous therewith, the title is sufficient . [I]f there
is doubt as to the sufficiency of the title, the doubt must
be resolved in favor of its sufficiency , as courts will not
declare an act of the legislature unconstitutional unless it is
plainly so. The analysis of a particular act must necessarily
stand on its own, and we must look to both the body and to the
title of the act under scrutiny to determine whether the act
violates the Constitution.
10) "As a general rule, where a statute is constitutional as applied

to a litigant, the litigant has no standing to challenge the statute on the

ground that it may be unconstitutional on its face, that is, as applied to a
third person in a hypothetical situation." We have said that classification
ordinarily will be upheld "if any state of facts can be reasonably conceived that would
support it." But where the statute creates a "suspect classification" (e.g.

race, sex, or religion) or

where it affects a fundamental constitutional right, the

presumption of constitutionality fades, and the "strict scrutiny" test, rather than the
more relaxed "rational relationship" test applies.

"Statutory interpretation presents a pure question of law and

is accordingly subject to de novo review by this Court.
11)

de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again."

Retroactive Enactment of Laws

1) "Accordingly, when a statute is amended while an action is pending, the rights of
the parties are to be deemed in accordance with the law in effect when the action is
begun, unless the amended statute shows a clear intention to vary such rights. (Our

analysis is guided by the fundamental principles of statutory

construction that retroactive laws are not favored, and that a statute is
always construed to operate prospectively unless a contrary legislative
intent is manifest.); New laws will apply only to future cases unless there is
something in the very nature of the case, or in the language of the new provision,
which shows that the new law was intended to have a retrospective effect. Further,
every reasonable doubt is resolved against a retroactive operation

of a statute, and words of a statute ought not to have a retrospective

operation unless they are so
clear, strong and

imperative that no other meaning can be annexed

to them . Retroactive effect will be given to a statute only when legislative
intent that a statute be

so applied is stated in clear, explicit, and unequivocal

terms.

Common Law
1) In construing

statutes, the statutory definition must

prevail over the common law definition
2) CONGRESS is presumed to have known and to have
had the common law in mind in the enactment of a
statute. The statute must therefore be read along with the
provisions of the common law, and the latter will be read into the
statute unless it clearly appears from express language or by
necessary implication that the purpose of the statute was to
change
the
common
law.
3) "We

also apply the established principle that a statutory provision will not be

held to change the common law unless the legislative intent to do so

is plainly manifested. Therefore, a statutory change in the common law will be
recognized only in that which is expressly stated in the words of the statute or is
necessarily
implied
by
its
language.
4) "

A statutory provision will not be held to change the common law unless the
legislative intent to do so is plainly manifested. "Statutes in derogation of the
common law are to be strictly construed and not to be enlarged in their operation by
construction beyond their express terms. Accordingly, "[a] statutory change in the
common law is limited to that which is expressly stated in the statute or necessarily
implied by its language because there is a presumption that no change was intended.
"When an enactment does not encompass the entire subject covered by the common
law, it abrogates the common-law rule only to the extent that its terms are directly and
irreconcilably opposed to the rule

Previous Construction of a Statute

a statute has been construed by

the courts, and is then re-enacted by the
legislature, the construction given to it is
presumed to be sanctioned by the legislature,
and thenceforth
becomes
obligatory
upon the courts." Hence, when the court finds
1) "Where

the old construction should be modified, it cannot

anymore, since the court is BOUND by its old
construction because such statute was RE-Enacted.
2) "The term "battery" possesses "a long history of definition by"
the courts, and therefore, it "carries its historical construction"
when used by CONGRESS in a statute.
3) "We have said that when judicial interpretations have settled
the meaning of an existing statutory provision, repetition of the
same language in a new statute indicates, as a general matter,
the intent to incorporate its judicial interpretations as well. (STARE
DECIS becomes the interpretation and construction of a law or STATUTE that is ambiguous even if it was applied to a private
case)

New Law New Remedy

4) "It is an established principle of statutory interpretation that " a statute
prescribing a new remedy for an existing right should never be
construed to abolish a pre-existing remedy in the absence of
express words or necessary implication.
Further, " 'when a

statute gives a new remedy, and contains no negative,

express or implied, of the old remedy, the new one
provided by it is cumulative, and the party may elect
between the two.'

Two Statutes Pertaining to the Same Subject

1) "It is well accepted that statutes relating to the same

subject should not be read in isolation . Such statutes should be
considered in pari materia. Moreover, statutes dealing with the same subject matter
should be construed together to achieve a harmonious result, resolving

conflicts to give effect to legislative intent. An accepted principle of statutory

construction is that, when it is not clear which of two statutes applies, the
more specific statute prevails over the more general. Also, when
statutes provide different procedures on the same subject
matter, "the general must give way to the specific.

"As a preliminary matter applicable to all of

your questions and in accord with the rule
of statutory construction in pari materia,
statutory provisions are not to be considered as isolated fragments of law.
Such provisions are to be considered as a whole, or as parts of a greater connected,
homogeneous system of laws, or a single and complete statutory compilation.
Statutes in pari materia are considered as if they constituted but one act, so that
sections of one act may be considered as though they were parts of the other act.
As a general rule, where legislation dealing with a particular subject consists of a
system of related general provisions indicative of a settled policy, new enactments of a
fragmentary nature on that subject are to be taken as intended to fit into the existing
system and to be carried into effect conformably to it, and they should be so construed
as to harmonize the general tenor or purport of the system and make the scheme
consistent in all its parts and uniform in its operation, unless a different purpose is
shown plainly or with irresistible clearness. It will be assumed or presumed, in the
absence of words specifically indicating the contrary, that the legislature did not intend
to innovate on, unsettle, disregard, alter or violate a general statute or system of
statutory provisions the entire subject matter of which is not directly or necessarily
involved in the act (noting that in absence of words to contrary, legislature did not
intend to alter or repeal general statute or system).

related statutes must be read as being consistent with one another. Two
statutes which are closely interrelated must be read and
construed together and effect given to all of their
provisions. Statutes should beconstrued, if possible, so as to
harmonize, and force and effect should be given the provisions of
each.
4) The primary objective of statutory construction is to ascertain and give effect to
legislative intent. 'In interpreting statutes, "courts should give the fullest possible
effect to the legislative intent embodied in the entire statutory
enactment. Potentially conflicting statutes should be harmonized to give
3) Closely

force

and

effect

to

5) City

each.

and municipal ordinances must be consistent with the laws of the

Constitution.Thus, if a statute and a local ordinance both can be given

effect, courts must harmonize them and apply them together.

The Meaning of Words

1) In the absence of a contrary definition, the words in a

statute are presumed to have their usual and ordinary

meaning.
3) A fundamental rule of statutory construction requires that every part of a statute be
presumed to have some effect, and not be treated as meaningless unless absolutely
necessary. "We must assume that the legislature did not intend to do a vain and useless
thing. "It is a well established rule of construction that a statute
ought to be interpreted in such a manner that it may have effect,
and not found to be vain and elusive. "A word or clause contained in a

may only be rejected as surplusage if it "appears to

have been inserted through inadvertence or mistake , and
which is incapable of any sensible meaning," or isotherwise repugnant to
the rest of the statute.
statute

4) "We

will not construe a statute by singling out a particular term or phrase, but will

in the context of the other

language used in the statute.
construe the words and terms at issue

5) While in the construction of statutes the constant endeavor of the courts is to

ascertain and give effect to the intention of the legislature , that

intention must be gathered from the words used, unless a literal

construction would involve a manifest absurdity. "The Court has stated the related
principle that "the plain, obvious, and rational meaning of a statute is always to be
preferred to any curious, narrow, or strained construction ." Statutes

should not be interpreted in ways that produce

absurd or irrational consequences.

6) "A statute must be construed with reference to its subject matter, the object sought
to be attained, and the legislative purpose in enacting it; the provisions should receive
a construction that will render it harmonious with that purpose

rather than one which will defeat it.

7)[i]f the language of a statute is plain and unambiguous, and its meaning perfectly
clear and definite, effect must be given to it. It is unnecessary to resort to any rules of
statutory construction when the language of a statute is unambiguous. In those
situations, the statute's plain meaning and intent govern.

"Language is ambiguous if it admits of being

understoodin more than one way, refers to two or
more things simultaneously, is difficult to
comprehend, is of doubtful import, or lacks
clearness and definiteness.
9) "Black's Law Dictionary 1586 (8th ed. 2004) defines "valid" as "Legally
sufficient; binding." (noting that if the STATUTE does not provide a statutory
definition we may look to the dictionary definition to determine legislative intent
10) "In drafting the statute, the legislature separated the two prohibitions
with a comma followed by the disjunctive word "nor." We have noted
that, pursuant to the rules of grammar, "phrases separated by a

comma and [a] disjunctive . . . are independent. The

disjunctive serves to connect the two parts of the
sentence but also to keep them separate and
independent.
12) "The word [willful] often denotes an act which is intentional, or knowing, or
voluntary, as distinguished from accidental. But when used in a criminal statute it
generally means an act done with a bad purpose; without justifiable excuse;
stubbornly, obstinately, perversely[.] The word is also employed to characterize a
thing done without ground for believing it is lawful. The term "willful act"
imports knowledge and consciousness that injury will result from
the act done. The act done must be intended or it must involve a reckless
disregard for the rights of another and will probably result in an injury. [T]he term
"gross, wanton, and culpable" describes conduct. The word "gross"
means "aggravated or increased negligence" while the word "culpable" means
"deserving of blame or censure." 'Gross negligence' is culpable or criminal when
accompanied by acts of commission or omission of a wanton or willful nature,
showing a reckless or indifferent disregard of the rights of others, under circumstances
reasonably calculated to produce injury, or which make it not improbable that injury
will be occasioned, and the offender knows, or is charged with the knowledge of, the
probable result of his acts
13) "But, courts are not permitted to add language to a

statute nor are they permitted to accomplish the same

result by judicial interpretation." Rather, when the language of a

statute is unambiguous, courts are bound by the plain meaning of that language and
may not assign a construction that amounts to holding that the General Assembly did
not
mean
what
it
actually
has
stated.
14) "It is equally well established, however, that if the language of a statute is clear
and unambiguous, a regulatory interpretation by the Department that is in conflict
with the plain language of the statute cannot be sustained.
15) "Under the rule of ejusdem generis, when a particular class of persons

or things is enumerated in a statute and general words follow, the general

words are to be restricted in their meaning to a sense analogous to the less general,
particular
words. Likewise,
according
to
the
maxim noscitur
a
sociis (associated words) when general and specific words are grouped, the
general words are limited by the specific and will be construed to embrace only
objects similar in nature to those things identified by the specific words.
16) If a statute expressly excepts a class which would otherwise fall
within its terms, the exception negates the idea that any other
class is to be excepted.
One such rule, sometimes referred to as the last antecedent
doctrine, is particularly applicable here and can be summarized as
follows: Referential and qualifying words and phrases, where no
contrary
intention
appears,refer solely to
the
last
antecedent. The last antecedent is 'the last word, phrase, or
clause that can be made an antecedent without impairing the meaning of the
sentence.' Thus a proviso usually is construed to apply to the provision or clause
immediately preceding it. (explaining and applying "the grammatical 'rule of the last
antecedent,' according to which a limiting clause or phrase . . . should ordinarily be
read as modifying only the noun or phrase that it immediately follows . . . ."); (noting
that construction of a statute according to the last antecedent rule is "quite sensible as
a matter of grammar
19) "An erroneous
interpretation of a statute by those
charged with its enforcement cannot be permitted to override
[the statute's] clear meaning.Amendments of statutes can only be
made by the legislature and not by the courts or administrative
officers charged with their enforcement
17)

20) "But

principles of statutory construction are not so rigid. Although we presume

that the same term has the same meaning when it occurs here and there in a single
statute, the Court of Appeals mischaracterized that presumption as effectively
irrebuttable. We also understand that [m]ost words have different shades of
meaning and consequently may be variously construed, not only when they occur
in different statutes, but when used more than once in the same statute or even in
the same section. Thus, the natural presumption that identical words

used in different parts of the same act are intended to have the same
meaning is not rigid and readily yields whenever there is such variation in the
connection in which the words are used as reasonably to warrant the conclusion
that they were employed in different parts of the act with different intent. Ibid. A
given term in the same statute may take on distinct characters from association
with distinct statutory objects calling for different implementation strategies."
Ibid. (Latin, short for ibidem, meaning "the same place") is the term used to provide an endnote or footnote citation orreference for
a source that was cited in the preceding endnote or footnote. It is similar in meaning to idem (meaning something that has been
mentioned previously; the same), abbreviated Id., which is commonly used in legal citation.[1] To find the ibid.source, one must look
at the reference preceding it.

"Generally, phrases separated by a comma and the disjunctive "or,"

are independent. (finding that, the word "or" connects two parts of a sentence,
21)

"'but disconnect[s] their meaning'"); (noting disjunctive results in alternatives,

which must be treated separately); (finding that limiting phrase in statute is
independent of and does not modify two earlier phrases because the limiting phrase
is separated from the first two by a comma and the disjunctive "or"); (interpreting
the use of a comma and the disjunctive "or" as implying two separate and
independent phrases in a Virginia statute authorizing payment of dividends by
corporation "out of net earnings, or out of its net assets in excess of its capital").
Accordingly, the phrase, "made by the Defendant to any law enforcement officer,"
is independent of and does not modify the phrase, "[a]ny written or recorded
statement or confessions."

The Terms May/Shall

1) The term "may," as used in a statute, should be given its ordinary

meaningintended by the CONGRESS -permission, importing discretion.
2) It is also true, however, that the Supreme Court has held that the
word "may,"while ordinarily importing permission, will be construed to
be mandatory when it is necessary to accomplish the
manifest purpose
of
the
legislature.
3) The use of the word "shall" in a statute generally
implies that its terms are intended to be mandatory, rather

than
permissive
or
directive.
4) "[T]he use of shall, in a statute requiring action by a public
official, is directory and not mandatory unless the statute manifests a
contrary intent."14 "A statute directing the mode of proceeding by public officers is to
be deemed directory, and a precise compliance is not to be deemed essential to the
validity of the proceedings, unless so declared by statute.

The Term Aggrieved Locus Standi

1) ""The term 'aggrieved' has a settled meaning when it becomes necessary to
determine who is a proper party to seek court relief from an adverse decision. In
order for a petitioner to be 'aggrieved,' it must affirmatively appear that such
person had some direct interest in the subject matter of the
proceeding that he seeks to attack. . . . The petitioner 'must show that he has
an immediate, pecuniary and substantial interest in the litigation,
and not a remote or indirect interest.' . . . Thus, it is not
sufficient that the sole interest of the petitioner is
to advance some perceived public right or to redress
someanticipated public injury when the only wrong he
has suffered is in common with other persons similarly
situated. The word 'aggrieved' in a statute contemplates a substantial grievance
and means a denial of some personal or property right, legal or equitable, or
imposition of a burden or obligation upon the petitioner different from that suffered by
the public generally.

Mens Rea/ Scienter/ Intent

1) "In the final analysis, the issue whether mens rea or scienter is a necessary element in
the indictment and proof of a particular crime becomes a question of legislative intent
to be construed by the court. Thus, to insert a mens rea element into the offense, and
to require proof thereof, would defeat the statutory purpose, which is to criminalize
the introduction of firearms into a school environment. So we will not add, by
implication, language to the statute that the legislature expressly has chosen not to
include. Consequently, we hold that the trial court correctly decided, in refusing the
instruction in question, that this statute is one of strict criminal liability, and that the
Commonwealth was required to prove only that the defendant had possessed, on
school property, a firearm of the type described in the statute.
2) "The contention that an injury can amount to a crime only

when inflicted by intention is no provincial or transient

notion. It is as universal and persistent in mature systems of law as belief in

freedom of the human will and a consequent ability and duty of the normal individual
tochoose between good and evil.
A relation between some mental element and punishment for a harmful act is
almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has
afforded the rational basis for a tardy and unfinished substitution of deterrence and
reformation in place of retaliation and vengeance as the motivation for public
prosecution.
Unqualified acceptance of this doctrine by English common law in the
Eighteenth
Century
was
indicated
by Blackstone's
sweeping
statement that to constitute any crime there must first be
a "vicious will." Common-law commentators of the Nineteenth Century
early pronounced the same principle, although a few exceptions not relevant
to our present problem came to be recognized.
Crime, as a compound concept, generally constituted only from concurrence
of an evil-meaning mind with an evil-doing hand, was congenial to an intense
individualism.
As the states codified the common law of crimes, even if their
enactments were silent on the subject, their courts assumed that
the omission did not signify disapproval of the principle but
merely recognized that intent was so inherent in the idea of the
offense that it required no statutory affirmation.
Courts, with little hesitation or division, found an implication of the
requirement as to offenses that were taken over from the common law. The
unanimity with which they have adhered to the central thought that
wrongdoing must be conscious to be criminal is emphasized by the variety,
disparity and confusion of their definitions of the requisite but elusive mental
element.

However, courts of various jurisdictions, and for the

purposes of different offenses, have devised working
formulae, if not scientific ones, for the instruction of juries
around such terms as "felonious intent," "criminal intent,"
"malice aforethought," "guilty knowledge," "fraudulent
intent," "wilfulness," "scienter," to denote guilty
knowledge, or "mens rea," to signify an evil purpose or
mental
culpability.
By use or combination of these various tokens, they have sought to protect
those who were not blameworthy in mind from conviction of infamous
common-law crimes....The Government asks us by a feat of construction
radically to change the weights and balances in the scales of justice.

The purpose and obvious effect of doing away with the requirement
of a guilty intent is to ease the prosecution's path to conviction, to
strip the defendant of such benefit as he derived at common law
from innocence of evil purpose, and to circumscribe the freedom
heretofore
allowed
juries.
Such a manifest impairment of the immunities of the individual should not be
extended
to
common-law
crimes
on
judicial
initiative.
3) "The presence of a "vicious will" or mens rea was long a requirement of
criminal responsibility. But the list of exceptions grew, especially in the
expanding regulatory area involving activities affecting public health, safety,
and welfare. Id., at 254. The statutory offense of embezzlement, borrowed
from the common law where scienter was historically required, was in a
different
category.
13
Id.,
at
260-261.
"[W]here Congress borrows terms of art in which are accumulated the legal
tradition and meaning [401 U.S. 601, 608] of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless otherwise instructed."

The Dillon Rule and Grants of Authority

The Dillon Rule of strict construction controls our determination of the powers of
local governing bodies. This rule provides that municipal corporations

have only those powers that are expressly granted,

those
necessarily or fairly implied from expressly granted powers, and those that are
essential
and
indispensable.
"In determining legislative intent, the rule is clear

that where a power is conferred and the mode of

its execution is specified, no other method may be
selected; any other means would be contrary to

legislative intent and, therefore, unreasonable. A necessary

corollary is that where a grant of power is silent upon its mode of execution, a method
of exercise clearly contrary to legislative intent, or inappropriate to the ends sought to
be
accomplished
by
the
grant,
also
would
be
unreasonable.
"Consistent with the necessity to uphold legislative intent, the doctrine of
implied powers should never be applied to create a

expand an existing
power beyond rational limits. Always, the test in
power that does not exist or to

application of the doctrine is reasonableness, in which concern for what

is necessary to promote the public interest is a key element.

Finally, when a statute creates a specific grant of authority, the authority

exists only to the extent specifically granted in the statute. It can never
go

beyond

the

authority

given .

When the legislature delegates authority to an

administrative agency to promulgate regulations, those
regulations must neither exceed the scope of the
authority
delegated
nor
be
inconsistent
with
it. Furthermore, "delegations of legislative power are valid only if
6)

they establish specific policies and fix definite standards to guide

the official, agency, or board in the exercise of the power.
Delegations of legislative power which lack such policies and
standards are unconstitutional and void." For example, language
in an enabling statute which provides merely "that the regulations
be designed to protect and promote the safety and health of
employees" is insufficient.
7) "We consistently have held that when the primary purpose of an enactment is to raise

revenue, the enactment will be considered a tax, regardless of the name attached to
the act. The General Assembly is directly prohibited from enacting any local, special,
or private law . . . [f]or the assessment and collection of taxes. There is, however, an
exception to this specific prohibition. The General Assembly may by special act like
RA 7160(Local Government Code) delegating the power of taxationto any
province, city, municipality.

Inconsistent Regulations/Laws
As a preliminary matter, we agree with Manassas' statements that regulations of
Executive Departments have the force of law, and that any Executive Department
concerned with the execution of a statutes interpretation of its governing statutes,
as reflected in its regulations, is entitled to great weight . Regulations,

however, may not conflict with the authorizing

statute. Whether a regulation is inconsistent with its enabling
legislation is properly a subject of judicial review.

If both the statute and the ordinance can stand

together and be given effect, it is the duty of the

courts to harmonize them and not nullify the

ordinance.
City and municipal ordinances must be consistent with
STATUTES.
Suchordinances are inconsistent with
state law when they cannot co-exist with a
statute. The fact that a county or municipal ordinance enlarges on a statute's provisions does not
create a conflict with the statute unless the statute limits the requirements (Separability Clause is
inserted)for all cases to its own terms. Thus, if a statute and a local ordinance both can be given
effect, courts must harmonize them and apply them together.

A Single Body of Law

1) "When attempting to define terms in one part of the Code, courts should read a
statute with "a view toward harmonizing it with other

statutes."Ordinarily, when a particular word in a statute is not defined

therein,
a court must give it
its ordinary meaning.
2) "When asked to interpret various code sections, the
SUPREME Court often examines other related

statutes
that
contain
contrasting
language to

similar
help

or

determine

legislative intent.

The Exclusion Rule

Ambiguity
1) "Language

is ambiguous when
it
may
be understood
inmore
than
one
way,
or
simultaneously refers to two or more things.
2) "When the language of a statute is ambiguous, it must be interpreted in
a manner that will give effect to the intent of
CONGRESS.
3) "The primary goal of statutory

construction is to discern

and give effect to legislative intent, with the reading of a statute as

a whole influencing the proper construction of ambiguous individual provisions
4) Doctrine

of Contra proferentem: "Used in the

connection with the construction of written documents to the effect that

an ambiguous provision is construed most strongly against the person
who selected the language." Black's Law Dictionary, 5th Ed.
5) "Instead, we find the restrictive covenant, in particular the phrase "residential purposes," to be ambiguous in
several respects....Indeed, even the circuit court's interpretation that the term " '[r]esidence' means more than
mere physical presence and less than domicile" is ambiguous. It can be argued that a nightly or weekly rental is
more than mere physical presence. Moreover, if the phrase "residential purposes" carries with it a "duration of
use" component, it is ambiguous as to when a rental of the property moves from short-term to long-term.
Under our case law, a restrictive covenant of "substantial doubt or ambiguity" must be interpreted "in favor of
the free use of property and against restrictions

Criminal Versus Civil Intent of a Statute

The question whether a particular statutorily defined
penalty is civil or criminal is a matter of statutory
construction." First, one must determine whether the
legislature, in establishing the penalizing mechanism,
indicates either expressly or impliedly a preference for
one label or the other. Second, where the legislature has
indicated an intention to establish a civil penalty, one
must address "whether the statutory scheme was so
punitive either in purpose or effect as to negate that
intention

Supremacy Clause of the Constitution

1) "By virtue of the Supremacy Clause of the Constitution
supersedes any conflicting state law. The preemption of Local laws by
STATUTES may occur by express statutory language or other clear indication that
Congress intended to legislate exclusively in the area. Even if Congress does not
intend the enactment of a STATUTORY scheme completely to preempt Local laws in
the area, congressional enactments in the same field override Local laws with which
they
conflict.

The Supreme Court has identified three ways in which

preemption
may
occur:
(1) Congress

may adopt express language setting

forth the existence and scope of preemption;
(2) Congress may adopt a framework for regulation
that"occupies the field" and leaves no room for
states
to
adopt
supplemental
laws;
and

(3) when statute actually conflicts with the constitution, typically when

compliance with both laws is a "physical impossibility" or the statute

stands "as an obstacle to the accomplishment and execution of the full
purposes
and
objectives
of
Congress.
2) "Settled legal principles provide that the Constitution, not a state
court erroneous interpretation of it, is controlling. (in context of
determining whether to apply retroactively a new rule for the conduct of
criminal prosecutions, adopting Blackstonian view that judges...find the
law rather than make the law and that judicial declaration of law is
merely a statement of what the law has always been.

Public Policy
1) "A court may not "second-guess the lawmakers on matters
ofeconomics, sociology and public policy . . . . Those
considerations
belong exclusively
in
the
legislative
domain. Regardless of whether it "may or may not be better public
policy". Meaning COURTS do not interpret provisions for
ECONOMICS, SOCIOLOGY and PUBLIC POLICY.
2) "Judicial review does not evaluate the "propriety, wisdom,
necessity and expediency" of legislation. We ask only whether

the statutory classification erects an irrational, arbitrary

distinction - one that no conceivable state of facts could
reasonably sustain.
Posted 20th October 2012 by AGINGLAWYER
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AGINGLAWYER

Classic

Flipcard

Magazine

Mosaic

Sidebar

Snapshot

Timeslide

1.
JUN

Ciudad Elmina Fishing Village - a must visit

http://aim5251996.wix.com/ciudadelmina

Ciudad Elmina is a fishing village with recreational facilities that will make your stay in Dagupan City
a memorable one.
They have 21 rooms, 3 villas, 1 conference room that could accommodate 40 people, a pavilion that
could seat 150 people easily, a gazebo that could be use for meetings, 4 floating kubos that could
accommodate 15people per kubo. A garden plazuela complete with its own gazebo and an open old
house suited for big parties and events.
Enjoy the serenity available in the different spots available for meditation. Children will value
teamwork and cooperation while rowing the boat within the waters of the fishpond. Experience riding
the horse drawn carriage taken from Intramuros that used to transport the rich of the olden days. Try
fruit picking directly from their orchard growing different varieties of fruit bearing trees. Watch the free
range goats, peking ducks, horses, doves co-exist with man and nature.

Be it be for a family vacation, company outing, product launching, team building seminar,
management review and planning, conferences, birthdays, weddings and anniversaries or any

celebration, Ciudad Elmina Fishing Village has all the amenities you need. Click the link to watch a
video.
See how the famous bonuan bangus are raised in our fish farm where the free flowing brackish
water is a natural mixture of the pantal river and the waters of bonuan beach.
Have your kids experience catching live fish using their fishing rod or net. Taste the sweet difference
of a fresh catch and a fish bought from the market. Ask our cook to prepare your catch the way you
want it.

Ciudad Elmina is located in the heart of the city and is less than a kilometer away from the terminals
of major bus companies servicing Dagupan. The wide entrance beside the Dagupan Doctors Villaflor
Memorial Hospital in barangay Mayombo will make Ciudad Elmina easy to
find. http://aim5251996.wix.com/ciudadelmina
Posted 7th June 2013 by AGINGLAWYER
Location: Dagupan City, Philippines
1

View comments
1.
Dale SeanDecember 28, 2014 at 7:46 PM
Thanks for your sharing,i learn a lot from your post.There is a lot of very useful knowledge in your post to
help me solve problems.I enjoy reading it and hope to see more.Can you write more about Ciudad
Elmina?I
am
very
interested
in
it.Waiting
for
your
new
post.
_______________________________________________
generate barcode in vb.net
Reply

2.
APR

Vice Governor in waiting Kit Cojuangco visits Hacienda Luisita

Vice Governor Kit Cojuangco receives warm welcome from the people of Hacienda Luisita. Kit told
the crowd that it was in Hacienda Luisita where he started his chain of barangay consultations
together
with
Mayor
Aro
Mendoza.
The barangay folks were all in awe on how Kit plans on running the provincial legislature. He
stressed that he wants to have a barangay leader's heart to ensure that the concerns of the masses
are dealt with. He wants the thinking of a national leader to ensure that legislations in the province of
Tarlac are in alignment with President PNOY's advocacy so that the province shall be able to
contribute to the country's development in terms of agriculture, tourism and industrialization. He
plans on doing his job as a presiding officer with a global mind so that tested and calibrated actions
already proven in other countries are the methods that may inspire the provincial legislature in
crafting
new
legislations.

Kit captured the attention and admiration of the crowd with his plans and ideas for the province of
Tarlac
as
Vice
Governor.
Kit is running under the LP-NPC Coalition. His running mate is Tarlac Governor Vic Yap.
Posted 8th April 2013 by AGINGLAWYER
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3.
APR

How to know where a product was sourced from the barcode printed in
the packaging

An
HOW

Information
TO

READ

BAR

Must
CODES...

(everyone

Share
must

know)

ALWAYS READ THE LABELS ON THE FOODS YOU BUY--NO MATTER WHAT THE FRONT OF THE BOX
OR PACKAGE
SAYS,
TURN
IT
OVER
AND
READ
THE
BACK
CAREFULLY!
With all the food and pet products now coming from China, it is best to make sure you read label at the
supermarket and especially when buying food products. Many products no longer show where they were
made, only give where the distributor is located. The whole world is concerned about China-made "blackhearted
goods".
Can you differentiate which one is made in Taiwan or China ? The world is also concerned about GMO
(Genetically Modified Organism) foods; steroid fed animals (ex: 45 days old broiler chicken).
It is important to read the bar code to track its origin. How to read Bar Codes....interesting !
If the first 3 digits of the bar code are 690, 691 or 692, the product is MADE IN CHINA.
471
is
Made
in
Taiwan
.

If

the

first

digits

of

the

bar

code

are

00-09

then

it's

made

or

sourced

in

USA.

This is our right to know, but the government and related departments never educate the public, therefore
we have to RESCUE ourselves. Nowadays, Chinese businessmen know that consumers do not prefer products
"MADE IN CHINA", so they don't show from which country it is made. However, you may now refer to the
barcode
Remember
if
890......MADE
690,
691,
692
00
30
40
471
45
489...........HONG
50
57
64..........FINLAND
76.........SWITZERLAND
471.........
is
628.........SAUDI
629.........UNITED
740..........745

the
...

first
IN
then
...
37
44
........

09

3
it

digits

is

MADE
and

USA
...
...

or

49
..........
and

Made

in

TAIWAN

(see

ARAB
-

CENTRAL

are:
INDIA
IN
CHINA
CANADA
FRANCE
GERMANY
Taiwan
........JAPAN
KONG
UK
.........DENMARK
LIENCHTENSTIEN
sample)
ARABIA
EMIRATES
AMERICA

All 480 Codes are Made in the PHILIPPINES.

Posted 6th April 2013 by AGINGLAWYER

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4.
APR

Conjugal Partnership on GAINS, and Separation of Properties during

marriage

Conjugal

Partnership

on

Gains

and

Separation

of

Properties

a simple video presentation to orient people on the principle of the relationships of properties during
marriage.
http://www.youtube.com/watch?v=sOhzPXTLJiQ
above
is
enjoy the video.

the

url

address

of

the

Posted 6th April 2013 by AGINGLAWYER

0

video

presentation

Add a comment

5.
APR

How do I make a difference as a young person

The best way to contribute is to love your family. Be a part of the family and that means doing your
share of home responsibility.
Your parents owe you education and they are giving it to you. Study well and you will be able to give
something back.
Education is the key to knowing the right things and the right reasons. Learn from the mistakes of
others that are already documented and binded. Most people call them books.
READ THEM to avoid committing the same costly mistakes.
Know that your contribution counts as one, but when it is given together with others for a purpose, it
is not ONE anymore but it has been SYNERGIZED. It has MULTIPLIED!!!
Work with the TEAM!!!
You are IMPORTANT to the world. The world awaits for you to make it better, CONTRIBUTE.
Make time to help, spend money to share, create something that will make life better.
Do not ACT as if you are PRIVILEGED and that you must RECEIVE importance, if you want to be
important GIVE!!!
ACT NOW to contribute something. Do not expect inheritance from your parents.
Make something out of your life with what you have learned. KNOWLEDGE can be used for GOOD
or EVIL.
Know the difference think of death and how people will remember you to answer the hard
questions of what is RIGHT for you and what is you being RIGHTEOUS.
PRAY ALL THE TIME. This is the easiest thing to do, all you have to do is kneel and look up.
ASK for GODs forgiveness, be forgiving to others.
ACT NOW. It takes a million seconds for the average man to ACT on an IDEA, be extra-ordinary!!!

The time you started reading this is already history. Time flies. You have to act act act act for you to
make a difference.
Posted 1st April 2013 by AGINGLAWYER
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6.
APR

LEAD BY DEEDS
LEADERSHIP

Speech

Leadership

is

Leadership

is

pulling

have

about

given

leading,

people,

consolidating

in

2005.

serving,
people,

loving.

motivating

people.

A leader inspires people. A leader is eager to help and directs the group to a common vision.
Leadership is making a difference; lifting up peoples hope and lifting the lives of others. It sees
every situation as an opportunity to do good. It does not accept calamity as a tragedy but as an
opportunity
to
re-do
things
and
make
it
better.
Having a vision and remaining steadfast until the vision is accomplished. It is not over until it is
over. It aint over until the fat lady sings. The race is not over until you have crossed the finish
line.
Go the DISTANCE The Indiana 500 is a race where contestants are supposed to finish 500 laps.
Whoever finishes the 500 laps first is the winner. Imagine 500 laps! It takes patience and
determination to do this. It takes persistence and being steady in our goal. Leadership is inspiring
people to move to the direction that was envisioned by the group. It entails serving, loving,
sacrifice
and
accountability.
The leader must monitor and must report periodically what have been accomplished so that the
group knows where they are and what they need to do to reach their goal. This entails training for
everyone.
Sometimes, people do not know how to do the right things because they do not know what the
right things are. Once people are trained to do the right things, they in turn must train others to
do
the
right
things.
There has to be continuity in the activity for the betterment of humankind. Continuity and
dedication are the secret for continuous development. A leaders task is to ensure the continuity
of progress. The continuity of progress is dependent on the training we give our youth.
The usefulness of the training we give our youth is dependent on the VALUES that we teach them.
The funny thing about values is that it cannot be taught in the classroom. It cannot be taught
using words alone. Values are taught through inspiration. Inspiration is taught through modeling,
taught
through
living
examples.
WE

HAVE

TO

LIVE

IT

for

the

young

to

follow.

Our country is perceived with a problem with graft and corruption. Are we happy with it? What
examples have we shown our youth? Why does it seem that our problem with corruption never
stops? If we are to change all our leaders now and replaced them with our youth, will we be sure
that they shall go on the right path? What is the right path? Are our youth equipped with the skills
necessary
to
go
on
the
right
way?
What
are
the
right
tools?
VALUES

must

be

complacent

first!

Set

your

leader

priorities!
is

Make
a

a
dead

time

table.
leader.

A leader must challenge the accepted norms and create new paths for betterment. The benefits
from inventions we are reaping came from people who had the guts to break away from accepted
beliefs.
They are trailblazers and pioneers who had to sacrifice and invest on what is unsure in the hope
that they will be able to create something new. The brave are people who are afraid of what
might happen but are willing to face fear in the hope that they could do something better.
A leader is someone who is willing to try and try and try and try and try. A leader is someone who
is
not
afraid
to
fail.
A leader is someone who accepts failure as if it were success. For life is a summation of success
and failure. It is only through failures that we learn and appreciate the sweetness of victory.
A leader understands the importance of remaining steadfast in the battle of being the first.
A leader is assertive! He always thinks of what could be instead of what could have been had he
tried! It is better to have tried and failed but LEARNED through the process, than not to have tried
at
all!
Our challenge today is on how we could fight the greatest enemy in our country. We must fight
and eradicate poverty. The solution has always been in front of us. As the saying goes, Give a
man a fish and he lives for a day. Teach him to fish and he lives a lifetime. It is how we bring
light to others.It is how much we give an organization as students.It is how much we have helped
others.
If we care, we give everything.WE MUST see the needs of others.If we want to grow, we need to
develop our younger generation of Filipinos. But did you know that our country is experiencing a
problem with education in infrastructure and in the medium of teaching itself? How many of you
are having difficulties with basic math? How many of you are having difficulties in science?
EDUCATION for ALL is the solution to fight POVERTY. One fourth of the world population is
uneducated.
In
the
Philippines,
POVERTY
is
the
main
enemy.
We must address this by providing education. Our minimum basic solution must be to make our
people LITERATE. Literacy has a difference with education. Literacy is simply training our people
in CRITICAL Thinking. How many car accidents involving truck drivers, jeepney drivers, tricycle
drivers and even private car drivers happen in our country? What could be the cause? Could it be
that
they
were
not
taught
proper
road
courtesy
and
safety?
How
Do

do

we

teach
we

them?

Do
make

we

make
them

them

road-educated?
literate?

As of present, Rotary International is promoting the Concentrated Language Encounter Program,

where LITERACY is implemented through activity learning via group activities. It focuses on the
activities
in
team-building
workshops.
A leader is responsible for the fate of the group. Any wrong decision affects the whole group. The

path chosen by a leader, whether right or wrong, will decide the fate of the followers. Thus,
leadership
is
a
great
responsibility.
A leader cannot put his interest first over his followers. The lives of his followers depend on him.
BENEVOLENCE,
WISDOM,
TRUSTWORTHINESS,
COURAGE,
DISCIPLINE!
The characters of a leader are: generous, respectful, righteous, courteous, wise, analytical,
trustworthy, disciplined, courageous, concerned, sees opportunity, fair to everyone, has good
judgment. Judgment is not a matter of energy or intelligence but one of attention to details and
thoroughness
in
investigation.
Question by question, one can reach the bottom of the question and the root cause.
Trustworthiness means that someone is credible, bankable. A leader must fulfill his word no
matter
what
the
cost.
A trustworthy person is able to inspire willing obedience by putting himself in the shoes of
another
and
be
able
to
empathize
with
him.
Understanding a follower is a key to understanding their needs. People have a common
denominator in terms of basics needs, regardless of race and nationality, care and concern. A
leader has to be kind to his people. This is shown in how he treats his subordinates. He fosters
mutual understanding with his followers. He is familiar with who they are and he knows them
personally.
A leader must hold his people accountable and must manage on a clear system of reward and
punishment according to the individuals capability. Regulations and systems implementation
must be strict and thorough. One must be conscious on the high standards from beginning to
end.
A leader must see to it that everything is done right. Every blessing comes from above. God has
given us our blessings, God has chosen US to be blessed for he knows that the BLESSINGS must
be given to generous people for them to spread and help people in need. It is our time to give
back to GOD our blessings by helping our fellow Filipinos, our fellow Pangasinenses.
When our time shall have come and we are to end our life in this world, we will never be sorry for
not having accumulated more wealth, but rather we will be sorry for not having taken the
opportunity to spend more time with our loved ones, for not having helped others when we had
the
opportunity
to
do
so.
In the end, we shall not be judged with the wealth we have accumulated but rather on the good
we have done. Even when we are full of life, we can never find contentment on material things.
As Blaise Paschal theorized, AS HUMANS, there will always be a GOD-shaped vacuum inside of us
that only GOD can fill. The GOOD that we do to people is what GOD asks of us.Our purpose in life
is
to
have
a
defined
purpose
of
living:
to
LOVE
and
HELP
people.
Right now, we have with us the members of a US medical mission at the Region 1 Medical Center
being conducted as SERVICE to Humanity. Serving and giving without expecting anything in
return, except the fulfillment of just having done it and helping people in need.
It is their sharing, caring, loving that makes them true leaders. With people like them, we are sure
to have a better world. God has been good to them because He knows that they will be good to
others. We are now living witness to this. They are sharing their blessings through their free
service, their time in the Philippines and even spending for it. They are even planning on
donating
medical
equipment.
One might ask: I just have enough to survive. Then, how could I make a difference?

All of us have blessings and the best blessing GOD has given us is TIME. Let us spend it wisely.We
cannot keep it or rewind it. So use our days wisely, carefully and with inspiration for every
moment because today shall never come back. Spend time with the family, spend time with
GOD,
spend
time
to
helping
others
LASTLY, IF YOU AIM TO BE A LEADER, YOU HAVE TO BE THE SERVANT. TRUE LEADERSHIP IS
SERVANTHOOD.
LET JESUS CHRIST BE OUR MODEL. HE SACRIFICED EVERYTHING TO SERVE AND MAKE A
DIFFERENCE.
A LEADER IS A SERVANT WHO HAS LEFT A LEGACY -- A LEGACY THAT IS LASTING; FOR THE BEST
LEGACY
A
LEADER
COULD
GIVE
IS
THE
LEGACY
OF
LASTING
INSPIRATION.
Inspiring others to help others see that the best way to live this very, very, very precious gift from
GOD called LIFE is to engage in activities that count! Let us make a difference!!! Now.

Posted 1st April 2013 by AGINGLAWYER

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7.
FEB

Exclusionary Rule
The EXCLUSIONARY RULE is a judicially created remedy used to deter police
misconduct in obtaining evidence. Under the exclusionary rule, a judge may
exclude incriminating evidence from a criminal trial if there was police
misconduct in obtaining the evidence. Without the evidence, the prosecutor
may lose the case or drop the charges for lack of proof. This rule provides
some substantive protection against illegal search and seizure.
The EXCLUSIONARY RULE is subject to four main exceptions. The tainted
evidence is admissible if:
1. it was discovered in part as a result of an independent, untainted source; or
2. it would inevitably have been discovered despite the tainted source; or
3. the chain of causation between the illegal action and the tainted evidence is
too slim (attenuated); or
the search warrant not based on probable cause was executed by government agents in
good faith (called the good faith exception). The good faith exception doctrine is an
exception to the exclusionary rule provides that illegally gathered evidence can be
admitted at trial if police officers have reason to believe their actions are legal. Under
the original exclusionary rule, police were strictly responsible for their
violations of constitutional law. The good faith rule permits the courts to consider
the mental state of the police officer.

So far the new rule has been confined to errors made by judges or legislatures. If the
judge, for example, makes a mistake in issuing a warrant, the police officer is not
responsible if he had good reason to believe that the warrant was valid. The rationale
for this change is that the exclusionary rule is designed, as a last resort, to punish police
for misconduct. When judges and legislatures make mistakes, the higher courts have
methods of correcting them, so rationale behind the exclusionary rule is inapplicable.
Posted 8th February 2013 by AGINGLAWYER
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8.
FEB

PROCEDURAL DUE PROCESS

The Court provided the ff. as the requisites OF PROCEDURAL DUE
PROCESS inadministrative proceedings:
1. The right to a hearing, which includes the right to present ones case
and submit evidence in support thereof.
2. Tribunal must consider the evidence presented.
3. Decision must have something to support it.
4. Evidence must be substantial (more than a mere scintilla, relevant
evidence
A reasonable mind accepts to support a conclusion)
5. Decision must be rendered on the evidence presented at the
hearing, or at least contained in the record or disclosed to the parties
affected.
6. Tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the
controversy and not simply accept the views of a subordinate in arriving at
a decision.
7. The board or body should, in all controversial questions, render its decision
in such a manner that the parties to the proceeding can know the various
issues involved, and the reason for the decision rendered.
Posted 8th February 2013 by AGINGLAWYER

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9.
FEB

Wire Tapping
WIRETAPPING ALLOWED IN FOLLOWING CASES ONLY:
A. Use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned below: [Secs. 1, par. 2] B. Any peace officer,
who is authorized by the written order of the Court (RTC within whose territorial
jurisdiction the acts for which authority is applied for are to be executed), to execute
any of the acts declared to be unlawful in cases involving thecrimes of: [Sec. 3, par. 1]
1. treason
2. espionage
3. provoking war and disloyalty in case of war
4. piracy
5. mutiny in the high seas
6. Rebellion
7. conspiracy and proposal to commit rebellion
8. inciting rebellion
9. sedition
10. conspiracy to commit sedition
11. inciting to sedition
12. kidnapping as defined by the RPC
13. violations of CA 616, punishing espionage and other offenses against national
security.

The WRITTEN ORDER shall only be issued or granted upon written

application with the examination under oath or affi rmation of the
applicant and the witnesses hemay produce and must show:
a ) That there are reasonable grounds to believe that any of the crimes enumerated
herein has been committed or is being committed provided, that in cases involving the
offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, such authority shall be granted only upon prior
proof that a rebellion or acts of sedition, as the case may be, have actually been or are
being committed;
b) That there are reasonable grounds to believe that evidence may be obtained
essential to the conviction of any person for, or to the solution of, or to the prevention
of, any of such crimes;
c) That there are no other means readily available for obtaining such
evidence.

Contents:
1. The identity of the person or persons whose communications,
conversations, discussions, or spoken words are to be overheard,

intercepted, or recorded and, in the case of telegraphic or telephonic

communications, the telegraph line and the telephone number involved and
its location;2. The identity of the peace officer authorized to overhear,
intercept, or record the communications, conversations, discussions, or
spoken words; 3. The offense or offenses sought to be committed
or prevented; and 4. The period of the authorization.
Effectivity:
The authorization shall be effective for the period specified in the
order which shall notexceed 60 days from the date of issuance of
the order, unless extended or renewed by the court upon being
satisfied that such extension or renewal is in the public interest.
Procedure:
All recordings made under court authorization within 48 hours after the
expiration of the period fixed in the order:
1. Shall be deposited with the court in a sealed envelope or sealed package;
2. shall be accompanied by an affidavit of the peace officer granted such
authority stating the number of recordings made, the dates and times
covered by each recording, the number of tapes, discs, or records included in
the deposit and certifying that no duplicates or copies are included in
the envelope or package deposited with the court;
3. shall not be opened, or the recordings replayed, or used in evidence or
their contents revealed, except upon order of the court, which shall not
be granted except upon motion, with due notice and opportunity to be heard
to the person or persons whose conversations or communications have been
recorded.
PENALTY
Any person who violates the provisions of this Act, shall, upon conviction, be
punished by:
1. imprisonment for not less than 6 months or more than 6 years; and
2. with the accessory penalty of perpetual absolute disqualification from
public office if the offender be a public official at the time of the commission
of the offense; and
ADMISSIBILITY
Any communication or spoken word, or the existence contents, substance,
purport, effect or meaning of the same or any part thereof, or any
information
therein
contained, obtained or secured by any person in violation of this Act shall not
be
admissible in evidence in any judicial, quasijudicial, or administrative hearing or investigation.
Posted 8th February 2013 by AGINGLAWYER
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10.
FEB

CHECK POINT - what to do

Checkpoint Requirement
1. CHECKPOINT/CHOKEPOINT
OPERATIONS
a. Authority to establish checkpoint/
chokepoint
b. Requisites in the conduct of
checkpoint / chokepoint
c. Limitation of searches at checkpoint /
chokepoint
d. Flagging down or accosting vehicles
e. How to deal with hostile situations
1. Fleeing Vehicles
2. Hostile Drivers
2. REPORTING REQUIREMENT
According to the PNP operational procedures manual, vehicle inspections at
checkpoints are limited to a visual search. Passengers are not obliged to
open the trunk, glove compartment, or bags inside the vehicle. Body
searches are not allowed.
Kung ayaw ng pasahero pabuksan ang trunk or
compartment ng sasakyan, or ang package na dala
nya,
wala
kang
magagawa.
If
you
have probable cause (not mere suspicion) that he is
hiding an illegal item hold the vehicle and secure a
search warrant.
Subalit, kailangan maging maingat ang pulis sa
pagkumpiska ng naturang iligal na droga, sapagkat
may mahigpit na alituntunin ang batas tungkol sa
chain of custody* requirement.
Ang mga alituntunin na ito ay matatagpuan sa
Section 21, para 1, Article II, RA No. 9165. Maaring ma-dismiss ang kaso dahil
sa hindi pagsunod sa mga nasabing alituntunin ayon sa batas kung saan
sinasabi :
The apprehending office/team having initial custody and control of the
drugs shall, IMMEDIATELY after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her

representative or counsel, a representative from the media and the

Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof: x x
x (HANGO MULA SA DESISYON NG COURT OF APPEALS, SPECIAL TWENTYSECOND DIVISION, SA PEOPLE OF THE PHILIPPINES VS. TELIN AND MESIAS,
CA-G.R. CR No. 00738-MIN, 2 MAY 2011)
Rule 25. CHECKPOINTS
SECTION 1. Authority to Establish Checkpoints
The establishment of checkpoints must always be authorized by the PNP
and manned by uniformed PNP personnel assigned in the area. Other
units directly involved in an operation may establish mobile checkpoints in
coordination with the Commander of the Unit/Station in the area.
SECTION 2. Composition
In the conduct of checkpoint proper, the checkpoint team shall be
composed of, but not limited to, the following:
a. Team Leader (TL) - shall lead and take responsibility in the
conduct of checkpoint preferably an officer with the rank
of at least Police Inspector;
62 63b. Spotter - PNP personnel who will point/profile suspected vehicle
subject for checkpoint;
c. Spokesperson - TL or member who is solely in charge of
communicating with the motorists subject for checkpoint;
d. Investigation Sub-team - in charge of investigation and
documentation of possible incidents in the checkpoint to include
issuance of Traffic Citation Ticket (TCT) or Traffic
Violation Report (TVR);
e. Search/Arresting Sub-Team - designated to conduct search,
seizure and arrest, if necessary;
f. Security Sub-Team - tasked to provide security in the checkpoint
area; and
g. Blocking/Pursuing Sub-Team - team tasked to block/pursue
fleeing suspects/vehicle.

SECTION 3. Guidelines
a. Mobile checkpoints are authorized only when established in
conjunction with ongoing police operations. Only officially
marked vehicles shall be used in establishing mobile
checkpoints.
b. Checkpoints may be established when there is a need to arrest a
criminal or fugitive from justice.
c. The composition of the personnel manning the checkpoint shall
be left to the sound discretion of the PNP unit commander.
d. Encourage the participation of, but not limited to, the Local
Government Units (LGUs), Civil Society Groups, NonGovernmental Organizations (NGOs), business organizations,
other civic groups, media and other stakeholders during
the conduct of Police Checkpoint.
e. The participation of the civilians and the presence of the media
in the conduct of checkpoint must be confined only as
observers to give police additional eyes and promote
transparency of activities in the area.
f. All civic groups or organizations to include the media, who are
inclined to participate in police checkpoints, must be duly
registered and accredited by the PNP for such purpose. The
accreditation of the civilian groups to join in the conduct
of checkpoint shall be administered by the Police
Regional and Provincial Offices.
g. PNP personnel manning the checkpoint must have a presentable
appearance, wearing the prescribed PNP uniform. Likewise, the
civilian members must also be in their organizations uniform with
their names conspicuously displayed for identification. In
no case shall the civilian components be allowed to bear firearms
during the checkpoint.
64 65h. In Metro Manila and other major cities, police officers manning
the checkpoints should not wear Field Service Uniforms (FSU) or

black fatigues in lieu of the PNP General Office Attire unless the
conduct of checkpoint is a result of a Hot Pursuit Operation or a
High Risk Checkpoint. The use of mixed uniforms (GOA, FSU,
black fatigue) in the conduct of checkpoint is strictly prohibited.
i. As much as possible, the area where the checkpoints shall
be established must be properly lighted, with a noticeable
signage bearing the name of the PNP unit and the participating
organization/s visibly displayed in the checkpoint site, to prevent
any apprehension from the public of the existence of the same.
j. Due courtesy must be accorded to the motorists, traders and the
commuters during the conduct of checkpoint.
k. The spokesperson must greet the people subject for inspection,
ask apology for the inconvenience, appeal for understanding
and state the reasons of the operation. Thank the person/s
searched.
l. Except in the actual commission of crime during checkpoints
or in a hot pursuit operation, the conduct of inspection
of vehicle during a routine checkpoint is limited to a visual search
and therefore must be done with due respect to innocent
passersby, commuters, or bystanders and be conducted
in a manner that is least inconvenient to the public. Searches,
seizures, and arrest made during checkpoints shall be within the
ambit of the law.
m. Violations/Infractions of the law discovered during the
checkpoint operation shall be expeditiously disposed of
following legal procedures. Arrested persons must be apprised
of their rights in reference to the Miranda Doctrine.
n. The security of the PNP personnel, and most especially that of
the civilians participating in the checkpoint operation, must be
given due consideration in the planning stage of the operation.
o. Only the security sub-team and blocking/pursuing sub-team
members are allowed to display high-powered firearms

and are positioned where they can best provide security

to the Checkpoint team including themselves.
p. Checkpoint personnel must not limit their task in law
enforcement and crime deterrence. They should also be ready to
provide police assistance in the vicinity e.g., giving directions to
inquiring motorists or passersby.
q. The PNP operating units must provide their own logistical and
financial requirements to avoid soliciting support from
the civilians for their personal or operational needs.
r. Police personnel assigned in the checkpoint shall not mulct,
extort, or harass drivers, passengers, and traders. Designated TL assigned at
the checkpoint shall be responsible for the actuations and behavior of his
personnel and shall be accountable under the doctrine of Command
Responsibility.
s. Voluntary offers of cash or in kind from the traders/motorists
passing the checkpoint should be absolutely refused because
the offer might be misconstrued as a bribe.
t. The police and the civilian component must separately submit
their After Checkpoint Operation Report to their respective units
or organization for proper evaluation of the efficacy of the
operation.
SECTION 4. Procedure in the Conduct of Regular Police Checkpoint
a. Unit Commanders should inform Higher Headquarters (HHQs)
Tactical Operations Center (TOC) and coordinate with adjacent
units, such as, MPS, CPS, NSUs, Public Safety Management
Forces and other friendly forces, personally or through an
official representative, before commencing with the checkpoint to avoid
misencounter and any untoward incident;
b. The TL shall brief the PNP personnel, as well as the civilian
components present, including the media regarding the
proper conduct of the checkpoint and their assigned tasks prior
to their deployment;
c. The TL shall initially account for the PNP personnel and check

if they are in the prescribed uniform. PNP personnel conducting

the checkpoint shall display their nameplates at all times.
If wearing a jacket, the flap of the jacket bearing their
names should also be displayed. Likewise, the equipment
will include, but not limited to, the following:
1) Marked Patrol vehicles;
2) Firearms with basic load of ammunition;
3) Handheld and vehicle base radios;
4) Flashlights;
5) Megaphone; and
6) Signage
6.1 Warning signs: (e.g., Slowdown Checkpoint Ahead,
Checkpoint 20 Meters Ahead, etc); and
6.2 Information signs: Name of the Unit and TL.
d. The Spotter of the team will be pre-positioned in a place where
he can best point/profile suspected vehicles prior to their
approach to the checkpoint;
e. Search/Arresting Sub-Team shall flag down suspected vehicles
and conduct search, seizure and arrest if necessary;
66 67f. Arrested persons and seized items shall be turned-over to the
investigation sub-team for documentation and proper
disposition;
g. In the event that the checkpoint is ignored, and the occupants
of the vehicle open fire on the personnel manning the
checkpoint, reasonable force to overcome the suspects
aggression may be employed;
h. Inform Higher Headquarters before terminating the conduct of
Checkpoint;
i. The TL shall conduct debriefing of personnel after termination of
the Checkpoint; and
j. Unit Commander shall submit After Activity Report to Higher
Headquarters.
SECTION 5. Procedure in the Conduct of Hasty Checkpoints
a. PNP personnel conducting mobile patrols on board patrol
vehicles will initially man the checkpoint, to be complemented
by additional personnel upon arrival of reinforcement. A
collapsible signage with markings: Stop, Police Checkpoint,
indicating also the name of the concerned police
office/unit conducting the operations, will be used for

the purpose;
b. In the case of PNP personnel conducting Internal Security
Operation (ISO) or foot patrol, where a vehicle and collapsible
signage is not readily available, the checkpoint shall be manned
initially by said personnel;
c. The team shall immediately inform Higher Headquarters of the
exact location of the Hasty Checkpoint to include personnel
involved and available equipment;
d. In a hasty checkpoint, where there is a possibility of high
risk stop and high risk arrest, and that there is an
urgency for troop deployment and that public safety might be at
risk, the participation of the civilian component and the presence
of the media in the checkpoint operation shall not be allowed;
e. The Unit Commander of the personnel manning the hasty
checkpoint shall immediately send additional personnel,
equipment and signage to the area in order to convert the Hasty
Checkpoint into a Regular Checkpoint; and
f. As soon as the Hasty Checkpoint is converted into a Regular
Checkpoint, TL shall follow the procedures on Section 4
paragraph c of this Rule.
SECTION 6. General Procedure to be Followed When Checkpoints are
Ignored.

WHEN CHECKPOINTS ARE IGNORED, THE FOLLOWING SHALL BE OBSERVED:

a. In the event that checkpoints/roadblocks are ignored and the
motorists/suspects bumped the roadblock in an attempt
to elude arrest or avoid inspection, the TL shall immediately
contact adjacent units to inform them of the situation
so that these units can conduct dragnet operation, while
the members of the blocking/pursuing team shall block
or pursue the errant fleeing motorist;
b. Warning shots shall not be allowed due to the confusion it may
create to the driver and passengers of the vehicle. Megaphones
or police sirens shall be used instead during the pursuit. The
plate number of the vehicle shall be noted and given to other
units in adjacent areas to prevent the possibility that the vehicle
may elude the pursuit operation; and
c. In the event that the occupants of the vehicle open fire on the
personnel manning the checkpoint, reasonable force to
overcome the suspects aggression may be employed.
Posted 8th February 2013 by AGINGLAWYER

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