| CHAPTER III THE DRAFTING OF STATUTES phe drafting of «statute involves two distinct steps: » Oth™Mor ulation of the legislative polig ‘that must be pur; in the fra st4 ced to ai 1 pelicy. The first ts ‘the basic or “ultimate policy on which everyone is agreed, for example, that the law should be fair or certai ioe that it should enhance the public welfare. The second ‘Kind of policy is/concerned with the immediate ob- jectives which the proposed statute seeks to achievg, ‘Very oftei the objective is comparatively simple,/ It Guay involve | a mere alteration or repeal of some deféctive legislation | which does not require any extended investigation. At times, | however, thé objectives are so involved and far-reaching, as in = | social security legislation, that a thorough appraisal and in- i vestigation: of the field to be regulated, usually with the aid y of experts and specialists, is necessary in order to arrive at a i definite legislative formula, The determination of legislative i | ' . : policy is a matter resting largely on the judgment of the le- / a gislators in the formulation of which’ diverse considerations/ enter into, among whith~are the’ legislators’ background and ~~ ) personal preferences, the foe of organized groups, and the prevailing demands and exigencies of the times! Having formulated the policy, the( maker has to define the legisla- tive pattern of his proposal” ‘by: considering, amiong other things, what situation$ and persons will be covered by the propcsed legistation, the kind of sanctions ‘to be imposed and the admi- nistrative machinery’ to be set up for its enforcement, : 2. The Drafting of a Statute. _ Statutory drafting is a highly technical Yand difficult task. As John Austin points out: “What is commonly called the technical part of legis- * 17 $ {18 STATUTES AND THEIR CONSTRUCTION lation is incomparably more difficult than what may be called’ the ethical. In other words, it/is far easier to conceive justly id be useful than to construct that same law that it may agcomplish the design of the lawgiver.”! egislative drafting is/a-technique which requires, first of all, astery ‘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 compre- hended, and promptly applied.? ” In addition, research is es- sential. The_ Greftsmen must be accurately informed concern- ing: 2 © «(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 ac- tually 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 spe- cialized function, usually undertaken by or with the aid of the Legislative Reference Service.. This is an administrative di- vision in each house of Congress which render technical as- sistance to and aids members of Congress in drafting bills and resolutions; makej 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. ; 3. Objectiyes of the Draftsman. Being a rule or com- mand which Jis/required to be observed and obeyed, a statute should be/so itten that it can be easily understood by those is directed. The primary concern, therefore, of iter. should: be“how to make his readers ler- stand what is forbidden by the law. } His object, as one author points out, is not like that of a writer 1 Quoted by Robert Luce, Legislstive Procedure, p. 566. 2 George B. Galloway, Legislative Process in Congress, 1953 ed., p- 52. *THE DRAFTING OF STATUTES 19 of a literary composition “which seeks an appeal to the cul- tivated literary taste that strives for a certain sophistication and subtlety which may mystify while it charms. . . . It is 7 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-pe .~ whom n it is direct ed, a well-written statute wi confli its interpretation that are -bound to arise in tHe _course_of_its-application.__Indeed, no matter how well drafted a statute is, thére will usually be “gaps” and ambiguities re- ‘ ing j it construction. There are at least4wo reasons for — tance of court in some instances to be hemmed ee 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 ts provisions, or to its language. ——~a Form and Structure of Statute.” In the preceding chapter we have outlined and discussed slit parts and the sectional arrangement of a statute. ‘he problem of the draftsman is how to organizp-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 sec- tions, 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 ; xpressing 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 te not subject to any hard and i fast rule for what amounts to a single idea is hard to define. ; ; lited F, Conard, New Ways to Write Laws, 56 Yale LJ. 458. | ae Cohen, supra, p, 211. Sec: 9, Revised’ Administrative Code. ed 6 Horack, supra, p. 734. i4 : r \ q wae a ( 20 STATUTES AND THEIR CONSTRUCTION al 3 However, with respect to the sentences in each section, good YES draftsmanship/reduires that they be made as brief as may be ig} compatible with accuracy. The shorter the sentence, the clear- } er it is to the eyes of the read ‘A long-winded sentence ob- ‘ __<' scures the law and makes reading tedious. The evil of long- 44 windedness"“maybe prevented by avoiding the use of mean- ingless and unnecessary words, and the repetition of words that uy do not need to be repeated: The words, “such”, “said”, “afore- mh said”, “hereby”, “hereinbefore”, “hereinafter referred to”,“un- , less otherwise specifically provided by law”, “notwithstanding the provisions of any existing law”, and other similar expres- sions are usually meaningless. They only clutter up the sen- tences 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 use- less 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 fcr the filing, registering, or record- ing 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 re- cording conveyances, transfers, or assignments of patents, i copyrights, trademarks, or any other rights); and if so if filed, registered, of recorded shall import the same notice By and have the same force and effect as a duly executed ¥ conveyance, transfer, or assignment to the Alien Property ‘ Custodian so filed, registered, or recorded.” This paragraph could have been simply written as fol- lows: “Any order under this Act, or a certified copy of it, may be filed in any rom the filing of other transfers { of the same kind of propert The effect will be the same 5 as for any other transfer. {Filing’ includes registering and } recording; ‘transfer’ includes conveyances and assignments; if ‘property’ includes patents, copyrights, and trademarks.”” ; —_—_— 7 Adopted from Alfred F. Conard, supra,THE DRAFTING 7 N... 21 c. Sentence Structure. (Faulty “sentence structure is a much confusion in statutes. In its simplest form, a legislatve 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 operates (Proper sentence structure depends upon a comprehension of these four elements and upon heir correct arrangement, - (1) The legal subject’ determines the extent of the appli- cability 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 describ- ing the subject. The impersonal form should be avoided be- cause 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 per-* son shall carry a deadly weapon”; (active form). Where, however, there are several classes of persons who would con- stitute the subject-and their enumeration would necessitate re- petitions 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 exam- ple, “the term ‘employer’ means,” rather than “the term ‘em- ployer’ shall mean.” And when the subject consists of séveral persons they may often be grouped, for example: “The following persons: q) @) (3) shall 8Horack, supra, p. 744, 9 Robert K. Cullen, “Mechanics of Statutory Revision—A Revisor’s Manual,” 24 Oregon L. Rev. 1.22 Sran AND THEIR CONSTRUCTION (2) The legal action or predicate gives force to the le- gislative declaration of policy. It_declares that the legal “suB> ject may or shall, or shall not do certain acts, or in the imper- sonal form, it expresses what is enacted with respect to the thing to be done or left undone.1° / 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, fhe verbs should employ the words’ “ “may” ot “may not”. To | avoid confusion: the words “shall’ or “may” should not be used in any part of the law ex- cept in the legal action; and the legal 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 appli- cability of the law, there should be a statement of the case to which the law applies. Since the case is to describe the in- stances when the law is to operate, normally, it t 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 cf”, “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 declara- tion applies to numerous cases, it may be more convenient at times to place the declaration (the legal subject and the legal action) first, fol’owed by a list of the cases.!2 This arrange- ment is followed in Article 175 of the Civil Code: _ “Art. 175. The conjugal partnership of gains ter- minates: - * (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 un- der Article 191.” In describing the case, the present tense (or the indica- tive mood) of the verb should be used. The future tense (or 10 Cullen, ibid. 11 Cullen, Joc. cit. 12Cullen, Joc. cit. \THE DRAFTING OF STATUTES 23 subjunctive mood) should be avoided since it is easily con- fused 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 | al (4) The condition / defines the’ ciccumatances in, which the law may be called into action. /It may be used 4o 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”), the seller is a dealer in goods of that kind (the “condition” limiting the “case”), there is an implied warranty...14 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 hegal action is suspended until the condition is fulfilled.!5 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 fram_a general sta- tutory declaratiogn, is usually placed at the end of the decla- sation, although it may also be placed in a separate section. In the following examp‘e the condition may be easily mistaken for a proviso: “Where the seller of goods has a voidable title there- to, but his title has not been avoided at the time of the sale (the cases), the buyer (the legal subject) acquires a good title to the goods (the legal action), provided he buys them in good faith, for value, and without notice of 18 Horack, supra, p. 811. & 4 Article 1565, Civil Code. . 15 Jones, Statute Law Making, p. 101.24 STATUTES AND THEIR CONSTRUCTION the seller’s defect of title (the “conditions” which are made to appear as “provisos” or “exceptions”).1° A better arrangement would have been to place the “condi- tions” right after the statement of the “cases” to which they are intended to apply. To recapitulate, a stgtutory declaration is normally ex- pressed in this sequence: \(1) the “case, (2) the “condition”, (3) the “legal subject”, and (4) the “legal action” or predi- cate. This arrangement as we have stated would facilitate en- actment, 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 op- eration be suspended till some future time.” d. The Problem of Langyage. To make the statutes rea- dable 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 us- ing plain an ise-terms but also by the exclusion of un- necessary words. \Grandiose and rhetorical phrases should be avoided. They are, according to Montesquieu, merely distract- ing 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 mul- tiple 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 simply means that the same wordyshould always be used to express the same sense. Legislative style, unlike literary composition, should avoid variation in expressions. “The sub- stitution of words to break the monotony of phraseology will inevitably lead to confusion. For the same reason, the same “76 Article 1506, Civil Code.THE DRAFTING OF STATUTES 25 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.”!7 The present tense/should be used for, as we have already stated, in theory all laws stand on the statute books as con- tinuing 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 violate this 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 in- definite, redundant, or unnecessary, either through carelessness or by force of habit, is a constant source of vagueness and con- fusion in statutes. Here are some of the terms that frequently vex the readers: ~~“(a) “Except as otherwise specially provided,” or “as pro- vided 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 pro- vided 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 main- tained in any court unless the same was commenced with- in one year after such cause of action accrued...” The reader will be left guessing, after perusing the provision, whether the law applies to him or not. Indeed, as Prof. Co- nard has aptly observed, “the only way he can know whether the one-year limitation applies is to search the United States Code from stem to stern. If he can’t find a limitation any- where else, then this is it.”!8 17Cullen, op. cit; . . . “tautology” is needless repetition which adds nothing to the sense or sound, as in the expression “he enjoyed the universal esteem of all men”.—Winston’s Dictionary, p. 1018. 18 Adopted from Cohen, supra, p. 216.J 26 STATUTES AND THEIR CONSTRUCTION (b) The words “Provided, however, that” should be em- ployed 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 inde- finite 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 amend- ments. (d) The words “such”, “said”, “aforesaid”, and other si- milar 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” “js defined and shall be construed to mean” “means” 19 Cohen, supra, p. 223.THE DRAFTING OF STATUTES 27 “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”20 (g) Additional rules concerning words most frequently used in statutes: “Tf” 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. ay “That”, and not “which”, should be used where the in- tention is to limit or restrict an antecedent. “Which” is de- scriptive and may not be construed as restrictive.?1 cia 20 Adopted from Cohen, supra, p. 224. 21 Ibid, p. 225.