Jessie James O.

Yapao Statutory Construction JD-1B

Assignment No. 5

1. Discuss the different tests which are used to determine the mandatory or
directory nature of statutes.

Mandatory Statutes are those which contain words of command or of prohibition, and
non-compliance with the same renders the proceedings to which it relates illegal and void.
Directory Statutes are those which are permissible or discretionary in nature and merely
outline the act to be done in such a way that no injury can result from ignoring it or that its
purpose can be accomplished in a manner other than that prescribed and substantially the
same result obtained.

In determining whether a statute is mandatory or directory, the intention of the legislature

must be ascertained. The determination of this intention must not depend on the statute
itself. However, the following tests, while not conclusive or controlling, have often been used
to determine the mandatory or directory nature of statutes and statutory provisions:

Terminology - The words or phrases regarded as making a provision mandatory include

"shall" and "must, "while the word "may" and the phrase "it is lawful" are usually regarded
as permissive or directory.

Materiality of Provisions - Statutory provisions which relate to matters of substance or

which affect substantial rights, and are the very essence of the thing required to be done,
are regarded as mandatory. Provisions which are not material or which do not affect any
substantial right, and do not relate to the essence of the thing to be done, so that compliance
is a matter of convenience rather than substance, are considered to be directory.

Consequences - A statutory provision is mandatory where a failure of performance will

result in injury or prejudice to the substantial rights of interested persons. If such failure or
performance will not result in the injury or prejudice of the substantial rights of interested
persons, then the provisions are generally regarded merely as directory.

Penalty - It is a general rule of construction that where a legislative provision is

accompanied by a penalty for a failure to observe it, the provision is mandatory. Otherwise,
it is directory.
2. Discuss the importance of Latin maxims.

Latin Maxims allows the reader to infer the historical background or basis of a
particular legal concept or practice. In this regard, latin dictionaries, encyclodepia or even
history books would be of a great help to the researcher. These legal maxim provide an
insight into the rationale and principles which form the very foundation and presumptions in
the process of interpreting and construing a law. Maxims encapsulates in concise, witty,
and careful phrased words the true import of a legal principle or rule. Thus, it enhances the
efficacy and applicability of a concept, principle, or rule.

Moreover, there is no better proof of the importance attached to the maxims than the
fact that maxims truly form the basis of equity jurisprudence and are the forerunners of the
principle of “stare decisis”. Moreover, maxims are heavily used in the subject of Statutory
Construction.

3. Enumerate at least 10 latin maxims found in Chapter VII of your textbook and
describe each.

a. Lex Prospicit, Non Respicit

“The law looks forward, not back”. It refers to the prospectivity of laws. That generally,
laws are prospective or are intended for future application. Thus, it is generally established
that a law takes effect from the time of its effectivity and not before. This is clearly reflected
under the Civil Code when it provides that “laws shall have no retroactive effect unless the
contrary is provided”. There are, however, when the retrospective effect of the application
of a particular law would be beneficial to the accused.

b. Absolute Sentencia Expositore Non Indiget

“When the language of the law is clear, no explanation of it is required”. This principle
has been used and applied in a long line of cases that have been decided by the Supreme
Court. Hence, it is well-established in this jurisdiction that where the law is clear, the court's
duty is to apply it, not to interpret it.

c. Optima Statuti Interpretatix Est Insum Statutum

“The best interpreter of the statute is the statute itself”. Construction and interpretation
come only after it has been demonstrated that application is impossible or inadequate
with them. It is not within the power of a court to set aside the clear and explicit mandate
of a statutory provision.
d. Ratio Legis Est Anima

“The reason of the law is its soul”. From time to time, this question has been asked:
What if the letter of the law conflicts with its spirit, which prevails? There are two schools of
thought on this matter. Too literal reading of the law is apt to constrict rather than fulfill its
purpose and defeat the intention of its authors. That intention is usually found not in the
'letter that killeth but in the spirit that giveth life,' which is not really that evanescent or
elusive. Judges must look beyond and not be bound by the language of the law, seeking to
discover by their own lights the reason and the rhyme for its enactment. That they may
properly apply it according to its ends, they need and must use not only learning but also
vision. In case of doubt in the interpretation or application of the laws, it is presumed that
the lawmaking body intended right and justice to prevail.

e. Expresio Unius Est Exclusio Alterius

“Express mention is implied exclusion”. This principle has also been used and applied in a
litany of cases. The rule has not changed. The enumeration of specified matters in a statute
is construed, as an exclusion of matters not enumerated unless a different intention
appears.

f. Generalia specialibus non derogant

“A general law does not nullify a specific or special law”. lt is a familiar rule of statutory
construction that to the extent of any necessary repugnancy between a general and a
special law or provision, the latter will control the former without regard to the respective
dates of passage.

g. Dura Lex Sed Lex

“The law may be harsh but it is still the law”. When the law is clearly worded there is no
room for interpretation. It is the sworn duty of the judge to apply the law without fear or
favor. It is not for the courts to decide that the law is unwise. The duty of the courts is apply
the law, whether it is wise or unwise.

h. Cogitationis Poenam Nemo Emeret

”No man may be punished for his thought”. These principles are still applicable. Under
Article 3 of the Revised Penal Code, the first element of a felony must be that the act or
omission is voluntary. Hence, if the alleged criminal act is committed by an insane person,
he is not criminally liable but he may be civilly liable.

i. Ignorantia Legis Neminem Excusat

“Ignorance of the law excuses no one”. This maxim is still found in Article 3 of the New
Civil Code which provides as follows: "Article 3. Ignorance of the law excuses no one from
compliance therewith."
j. Ubi Lex Non Distinguit Nec Nos Distiguere Debemos

Where the law does not distinguish, we should not distinguish. The constitutional
guarantee of due process is granted to every Filipino, rich or poor, learned or ignorant,
and regardless of his religious belief or political persuasion. Article III, Section 1 of the
constitution provides as follows: "No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal protection of the
laws."

4. Outline how words and phrases used in statutes are interpreted.

If the words and phrases used are defined in the statute itself, such definition
controls the meaning of the statutory word, irrespective of any other meaning the word
or phrase may have in its ordinary or usual sense If there is no such definition, the
words or phrases in the statute should be interpreted in accordance with its well-
accepted meaning and they should be construed in the light of the context of the whole
statute.

a. When a word used in a statute has a general meaning;

The general word should not be given a restricted meaning unless it is

otherwise indicated. This is founded on the Latin Maxim - GENERALIA VERBA SUN
GENERALITER INTELLIGENCIA, which means that what is generally mentioned shall
be generally understood.

b. When the word used has a technical meaning;

When the words or phrase used have a technical meaning, they are
considered to have been used in their technical sense.

c. When the word used has no meaning in harmony with the legislative
intent; and
When the words used have no meaning in harmony with the legislative intent,
they can be treated as surplusage and they may entirely be ignored. Before resorting
to this, however, the courts should construe the statute in its entirety 'and find out if
the words used can still admit a reasonable construction which will give them force
and meaning. In the absence of any reasonable construction, then the said words can
be ignored.

d. When the word or phrase is repeatedly used in a statute.

A word or phrase used in one part of a statute shall receive the same interpretation
when used in every other part of the statute, unless a different meaning is intended.
Likewise, when a word or phrase is repeatedly used in a statute, it will, as a rule, bear
the same meaning throughout the statute.
5. Discuss how to construe Contracts

The same rules of construction apply to both simple contracts and contracts under
seal. The general rule is that whilst the court strives to give effect to the intention of
the parties, it must give effect to that intention as expressed. That is to say it must
ascertain the meaning of the words actually used and not try to interpret the motive or
state of mind of the parties. The courts must have regard to the ordinary meaning of
words used unless they are technical or scientific. That being said the courts are
concerned to ascertain the intention of the parties and not merely indulge in semantic
exercises.

If the provisions are clearly expressed, and there is nothing to enable the court
to put upon them a construction different from that which the words import, no doubt
the words must prevail; but if the provisions and expressions be contradictory and if
there be grounds, appearing on the face of the instrument, affording proof of the real
intention of the parties, then that intention will prevail agaijnst the obvious and ordinary
meaning of the words. If the parties have themselves furnished a key to the meaning
of the word used, it is not material by what expression they convey their intent.

REFERENCE:

Abad, R. A., & Abad-Gamo, B. B. (2014). Fundamentals of legal writing. Manila,

Philippines: Published & distributed by Rex Book Store.

Aquino, D. C. (2020). Legal Research (3rd ed.). Quezon City, Philippines: Central
Book Supply.

Diaz, N.C. (2016). Statutory construction (5th ed.). Quezon City, Philippines: Central
Book Supply.

Rodriguez, R. B. (1999). Statutory construction. Quezon City, Philippines: Central

Professional Books.

Suarez, R. A. (2007). Statutory construction (2nd ed.). Manila, Philippines: Rex Book
Store.

Tabucanon, G. M., & Mockon, D. A. (2018). Legal writing: A competency-based

approach. Manila, Philippines: Published & distributed by Rex Book Store.