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.