STATCON – 1.

2 Rules on Legislative Drafting

CHAPTER III

THE DRAFTING OF STATUTES

The drafting of a statute involves two distinct steps: the formulation of the legislative policy that
must be pursued in the framing of the statute, otherwise referred to as the ethical phase, and the
mechanics of bill drafting which constitutes the technical part of the task.

1. The Formulation of Policy. There are two kinds of policy. The first is the basic or ultimate
policy on which everyone is agreed, for example, that the law should be fair or certain, or that it should
enhance the public welfare. The second kind of policy is concerned with the immediate objectives which
the proposed statute seeks to achieve. Very often the objective is comparatively simple. It may involve a
mere alteration or repeal of some defective legislation which does not require any extended
investigation. At times, however, the objectives are so involved and far-reaching, as in social security
legislation, that a thorough appraisal and investigation of the field to be regulated, usually with the aid
of experts and specialists, is necessary in order to arrive at a definite legislative formula. The
determination of legislative policy is a matter resting largely on the judgment of the legislators in the
formulation of which diverse considerations enter into, among which are the legislators’ background
and personal preferences, the pressure of organized groups, and the prevailing demands and exigencies
of the times. Having formulated the policy, the lawmaker has to define the legislative pattern of his
proposal by considering, among other things, what situations and persons will be covered by the
proposed legislation, the kind of sanctions to be imposed and the administrative machinery to be set up
for its enforcement.

2. The Drafting of a Statute. Statutory drafting is a highly technical and difficult task. As John
Austin points out: “What is commonly called the technical part of legislation is incomparably more
difficult than what may be called the ethical. In other words, it is far easier to conceive justly what would
be useful than to construct that same law that it may accomplish the design of the lawgiver.”

Legislative drafting is a technique which requires, first of all mastery of language and skill to
embody the legislative proposal in such form and language that, in the words of Lord Bryce, “its
provisions may be quickly found, easily comprehended, and promptly applied.” In addition, research is
essential. The draftsman must be accurately informed concerning:

“(a) The exact state of facts in the field to which the law will relate;
“(b) The form of previous statutes relating to the same subject in the same jurisdictions;
“(c) The form of previous statutes relating to the same subject in other jurisdictions;
“(d) The manner in which such statutes have actually operated;
“(e) The consensus of opinion among experts as to the best method for meeting the problem.

In present-day legislative practice, bill drafting is a specialized function, usually undertaken by or

with the aid of the Legislative Reference Service. This is an administrative division in each house of
Congress which render technical assistance to and aids members of Congress in drafting bills and
resolutions; make researches and up-to-date compilations and indexes of all Philippine laws and
executive orders; and takes charge of the library of each house of Congress.

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3. Objective of the Draftsman. Being a rule or command which is required to be observed and
obeyed, a statute should be so written that it can be easily understood by those to whom it is directed.
The primary concern, therefore, of every law-writer should be how to make his readers understand
what is commanded and what is forbidden by the law. His object, as one author points out, is not like
that of a writer of a literary composition "which seeks an appeal to the cultivated literary taste that
strives for a certain sophistication and subtlety which may mystify while it charms… It is more like that of
a man who writes directions on how to use a kodak or how to operate a Burroughs Calculator.”

Besides insuring its proper observance by the persons to whom it is directed, a well-written
statute will help minimize conflicts over its interpretation that are bound to arise in the course of its
application. Indeed, no matter how well drafted n statute is, there will usually be “gaps” and ambiguities
requiring judicial construction. There are at least two reasons for this: First, the difficulty of foreseeing
all of the possible consequences of legislative language in its relation to persons and situations to which
it might apply; and secondly, the reluctance of courts in some instances to be hemmed in by words— no
matter how articulate —because, for policy reasons, they wish to arrive at a certain result.

4. The Problems of Drafting. The problems involved in drafting may relate either to the form
and structure of the statute and its provisions, or to its language.

a. Form and Structure of Statute. In the preceding chapter we have outlined and discussed the
different parts and the sectional arrangement of a statute. The problem of the draftsman is how to
organize these sectional parts in such form and manner as will make a coherent and intelligible statute.
This implies proper construction and logical development of the different parts and sections composing
the statute. It is a legal requirement that every act shall be divided into sections, each of which shall be
numbered and shall contain, as nearly as may be possible, a single proposition or legislative idea. The
division of a statute into sections, each of which expressing but a single idea, renders the statute
flexible. And flexibility is essential to future amendment, to compromise in enactment and to code
revision.

b. The length of a section is not subject to any hard and fast rule for what amounts to a single
idea is hard to define. However, with respect to the sentences in each section, good draftsmanship
requires that they be made as brief as may be compatible with accuracy. The shorter the sentence, the
clearer, it is to the eye of the reader. A long-winded sentence obscures the law and makes reading
tedious. The evil of long-windedness may be prevented by avoiding the use of meaningless and
unnecessary words, and the repetition of words that do not need to be repeated. The words, "such",
“said”, “aforesaid”, “hereby”, “hereinbefore”, “hereinafter referred to", “unless otherwise specifically
provided by law”, “notwithstanding the provisions of any existing law”, and other similar expressions are
usually meaningless. They only clutter up the sentences unnecessarily. Useless repetition of words may
be avoided by the use of abbreviative terms or by resorting to definitions. The evil of long-windedness
occasioned by useless repetition of words is shown by the following provision:

“Any requirement made pursuant to this Act, or a duly certified copy thereof, may be
filed, registered, or recorded in any office for the filing, registering, or recording of conveyances,
transfers, or assignments of any such property or rights as may be covered by such requirement
(including the proper office for filing, registering, or recording conveyances, transfers, or
assignments of patents, copyrights, trademarks, or any other rights); and if so filed, registered,
or recorded shall import the same notice and have the same force and effect as a duly executed

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conveyance, transfer, or assignment to the Alien Property Custodian so filed, registered, or

recorded.”

This paragraph could have been simply written as follows:

“Any order under this Act, or a certified copy of it, may be filed in any office for the filing
of other transfers of the tame kind of property. The effect will be the same as for any other
transfer. ‘Filing’ includes registering and recording; ‘transfer’ includes conveyances and
assignments; ‘property’ includes patents, copyrights, and trademarks.”

c. Sentence Structure. Faulty sentence structure is a source of much confusion in statutes. In its
simplest form, a legislative declaration consists of the “legal subject” and the “legal action” or predicate.
A more complex provision may include, in addition, either or both “the case” to which the legal action is
confined or “a condition” upon which it will operate. Proper sentence structure depends upon a
comprehension of these four elements and upon their correct arrangement.

(1) The legal subject determines the extent of the applicability of the law. In the personal form,
the subject is the person who is directed or empowered to do or prohibited from doing the thing
mentioned. In the impersonal form it is the thing to be done or left undone. Accuracy in the description
or enumeration of the legal subject is necessary if the law is to be made clear and certain.

As a rule, it is better to use the personal form in describing the subject. The impersonal form
should be avoided because it encourages the use of the passive form of the verb, a much weaker
construction than the active form. Thus, the sentence: “It shall be unlawful for any person to carry a
deadly weapon” (passive form” could be better said: “No person shall carry a deadly weapon”; (active
form). Where, however, there are several classes of persons who would constitute the subject and their
enumeration would necessitate repetitions or would make the law awkward, the impersonal form may
be used, provided it does not make the law indefinite.

When descriptive language is used to state the subject, it is preferable to use the present or
historic present tense of a verb rather than the future or imperative forms. For example, “the term
‘employer’ means,” rather than “the term ‘employer’ shall mean.” And when the subject consists of
several persons they may often be grouped, for example:

“The following persons:

(1) …………………………..
(2) …………………………..
(3) …………………………..
shall ………………………………”

(2) The legal action or predicate gives force to the legislative declaration of policy. It declares
that the legal subject may or shall, or shall not do certain acts, or in the impersonal form, it expresses
what is enacted with respect to the thing to be done or left undone.

The legal action should be expressed in such a manner as to make it stand out prominently. If
the law is intended to be mandatory, the verbs “shall” or “shall not” should be used. If it is to be
permissive, the verbs should employ the words “may” or “may not”. To avoid confusion: the words
“shall” or “may” should not be used in any part of the law except in the legal action; and the legal

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actions should be kept close to their respective subjects, without the intervention of exceptions,
provisos, or conditions.

(3) The case. When it is necessary to limit the applicability of the law, there should be a
statement of the case to which the law applies. Since the case is to describe the instances when the law
is to operate, normally, it should be stated at the beginning of the declaration, preceding the subject,
and should be introduced with such words as “where”, “when”, “in the event of”, “in case”, or “if”. The
use of such words at the beginning of a statutory provision would be a fair notice to the reader that the
law is limited. But where a single declaration applies to numerous cases, it may be more convenient at
times to place the declaration (the legal subject and the legal action) first, followed by a list of the cases.
This arrangement is followed in Article 175 of the Civil Code:

“Art. 175. The conjugal partnership of gains terminates:

(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191.”

In describing the case, the present tense (or the indicative mood) of the verb should be used.
The future tense (or subjunctive mood) should be avoided since it is easily confused with the
imperative which may be used in stating the legal action. Thus, it is better to state: “in case the debtor
dies, the Court shall order …” than to say, “In case the debtor shall die, the Court shall order …”

(4) The condition defines the circumstances in which the law may be called into action. It may
be used to limit either the operation of the legal action or the applicability of the “case”. In the former, it
serves the same purpose as the “case” and both are used interchangeably, the only distinction between
them being one of form. When the condition is used as a limitation upon the “case”, then it may be said
to serve a separate function. An illustration of the second function: “In the case of a contract of sale by
sample (the “case"), if the seller is a dealer in goods of that kind (the “condition" limiting the “case"),
there is an implied warranty... The “condition" clause usually begins with “if”* or, where the law is
negatively stated, with “unless". Its natural position in the statute is directly after the statement of the
“case” but before the declaration or body of the law since the legal action is suspended until the
condition is fulfilled. Sometimes it would seem easier and more convenient to place the conditions at
the end of the declaration. But this practice should be discouraged for it would easily confuse the
condition with the proviso whose function being to make a special exemption from a general statutory
declaration, is usually placed at the end of the declaration, although it may also be placed in a separate
section. In the following example the condition may be easily mistaken for a proviso:

“Where the seller of goods has a voidable title thereto but his title has not been avoided
at the time of the sale (the cases), the buyer (the legal sublet) acquires a good title to the goods
(the legal action), provided he buys them in good faith, for value, and without notice of the
seller’s defect of title (the “conditions" which are made to appear as “provisos” or
“exceptions”).

A better arrangement would have- been to place the “conditions” right after the statement of the
“cases” to which they are intended to apply.

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To recapitulate, a statutory declaration is normally expressed in this sequence: (1) the "case, (2)
the “condition”, (3) the “legal subject”, and (4) the “legal action” or predicate. This arrangement as we
have stated would facilitate enactment, future amendment and revision, and enforcement of the
statute. The verb form is the present indicative, for “in theory all laws act in the present and stand on
the statute books as continuing commands, even though their actual operation be suspended till some
future time.”

d. The Problem of Language. To make the statutes readable and easy to understand, they
should be written in clear, simple and concise language. This does not mean, however, that they should
always be expressed “popularly”. There are certain statutes relating to technical subjects, such as those
regulating judicial procedure or prescribing cost accounting methods, which cannot be written except in
technical language understandable only to the group affected.

Clearness and simplicity may be achieved not only by using plain and concise terms but also by
the exclusion of unnecessary words. Grandiose and rhetorical phrases should be avoided. They are,
according to Montesquieu, merely distracting surplusage. A word is better than a phrase that means the
same thing. For conciseness, the exact term called for by the statute should be employed. Words of
relative or multiple meaning should, as much as possible, be avoided for they only lead to ambiguity and
confusion in interpretation.

Clarity of expression also requires uniformity of language. This simple means that the same
word should always be used to express the same sense. Legislative style, unlike literary composition,
should avoid variation in expressions. “The substitution of words to break the monotony of phraseology
will inevitably lead to confusion. For the same reason, the same word should not be used in different
senses, and synonyms should be avoided. If two words have the same meaning, the use of both is rank
tautology.”

The present tense should be used for, as we have already stated, in theory all laws stand on the
statute books as continuing commands and are intended to speak and act in the present. Moreover, the
present tense requires fewer words and is more understandable than the future conditional tense. Thus,
instead of saying “if it shall appear”, where the future conditional tense is used, it is better to say, “if it
appears”, which is in the present tense. Or, instead of “if any person shall violatethis Act he shall be
fined”, it is better to state, “Any person who violates this Act shall be fined."

The indiscriminate use of Words and phrases that are indefinite, redundant, or unnecessary,
either through carelessness or by force of habit, is a constant source of vagueness and confusion in
statutes. Here are some of the terms that frequently vex the readers:

(a) “Except as otherwise specially provided,” or “as provided in this Act,” should as much as
possible be avoided. They are ordinarily vague and unenlightening, and they often leave the reader in
the dark. For example, it is provided:

“That hereafter, except as otherwise specially provided by Act of Congress, no action for
the recovery of wages, penalties or other damages, actual or exemplary, pursuant to any law of
the United States shall be maintained in any court unless the same was commenced within one
year after such cause of action accrued...”

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The reader will be left guessing, after perusing the provision, whether the law applies to him or not
Indeed, as Prof. Conard has aptly observed, “the only way he can know the one-year limitation applies is
to search the United States Code from stern to stern. If he can’t find a limitation. Where else, then this is
it.”

(b) The words “Provided, however, that” should be employed only to introduce a proviso. The
practice of using this phrase to introduce every conceivable kind of provision at the end of a sentence or
section perverts the function of provisos, and should be condemned. It has been observed that this
usually happens in the case of amendments to existing statutes where the drafter of the amendment is
too lazy or too ignorant to rephrase the statute to properly embrace the amendatory provisions, so he
just adds them on the end. The thing added may be an exception, a condition, an additional declaration,
or even a statement that directly contradicts a provision of the existing section.

(c) In making reference to other sections, refer to the section by number. Don’t use
“hereinbefore”, “preceding”, “foregoing”, or “following". These referential words are indefinite because
they do not indicate the limits of the material referred to. Moreover, they are likely to cause confusion
since the position of the sections is frequently altered by amendments.

(d) The words “such”, “said”, “aforesaid”, and other similar terms are unnecessary and their use
or repetition should be stopped. As we have pointed out, they are the common cause of long-
windedness.

(e) “Either directly or indirectly” is usually superfluous and should be discarded. The same is true
of the word “duly”. They add nothing that is not already stated.

(f) Redundant words and phrases should be avoided. For example:

Avoid Use
“Ordered, adjudged and decreed” “adjudged”
“sole and exclusive” “exclusive”
“constitute and appoint” “appoint”
“null and void, and of no effect” “void”
“absolutely null and void” “void”
“is defined and shall be construed to mean” “means”
“is hereby authorized and it shall be his duty to” “shall”
“it is its duty to” “shall”
“are hereby required” “shall”
“is hereby authorized and empowered” “may”
“it shall be lawful” “may”

(g) Additional rules concerning words most frequently used in statutes:

“If” is usually better than “whenever”.
“Any” is usually more accurate than “every”.
“Is” should usually be substituted for “be”.
“Party” should not be used as synonym for “person”.
Let “party” be confined to cases where the reference is to parties to an action.
“That”, and not “which”, should be used where the intention is to limit or restrict an
antecedent. “Which” is descriptive and may not be construed as restrictive.

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