• Legislature has plenary power to repeal, Supreme court, while it has the power to promulgate rule of procedure, it cannot in the exercise of such power alter, change or repeal substantive laws.
Q. Repeal: total or partial, express or implied 1. Total: rendered revoked completely
2. Partial: Leaves the unaffected portion of the statue in force 3. Express: there is a declaration in a statute (repealing clause) 4. Implied: all other repeals
R. Repeal by implication
• Two well-settled categories:
1. Where the provisions in the two acts on the same subject matter are irreconcilable, the later act repeals the earlier one
2. Later act covers the whole subject of the earlier one and is clearly intended as substitute.
S. Irreconcilable inconsistency
• Rule: repugnancy must be clear and convincing or the later law nullifies the reason or purpose of the earlier to call for a repeal. Mere difference in terms will not create repugnance.
•
Leges posteriors priores contraries abrogant: A later law repeals an earlier law on the same subject which is repugnant thereto.T. Implied repeal by revision or codification
• Rule: Where a statute is revised or a series of legislative acts on the same subject are revised and consolidated into one, covering the entire field of subject matter, all parts and provisions of the former act or acts that are omitted from the revised act are deemed repealed.
U. Repeal by reenactment
• Where a statute is a reenactment of the whole subject in substitution of the previous laws on the matter, the latter disappears entirely and what is omitted in the reenacted law is deemed repealed.
V. Other forms of implied repeal
1. When two laws is expressed in the form of a universal negative: a negative statute repeals all conflicting provisions unless the contrary intention is disclosed.
2. Where the legislature enacts something in general terms and afterwards passes another on the same subject, although in affirmative language, introduces special condition or restrictions. W. Repealing clause
• All laws or part thereof, which are inconsistent with this act, are hereby repealed or modified accordingly.
• Nature of this clause: not an express repeal rather, it is a clause which predicates the intended repeal upon the condition that a substantial conflict must be found on existing and prior acts of the same subject matter
• Ex proprio vigore
• Rule: the failure to add a specific repealing clause particularly mentioning the statute to be repealed indicated the intent was not to repeal any existing law on the matter unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws.
X. Repeal by implication not favored
• Rule: Repeals by implication not favored
• Presumption is against inconsistency and against implied repeals for it is presumed that legislatures know existing laws on the subject and not to have enacted inconsistent or conflicting statutes.
Y.
Leges posteriores priores contraries abrogant – later statuerepeals prior ones which are repugnant thereto. As between two laws, on the same subject matter, which are irreconcilable inconsistent, that which is passed later prevails.
Z. General law
• Rule: General law on a subject does not operate to repeal a prior special law on the same subject unless clearly appears that the legislature has intended the later general act to modify the earlier special law.
•
Generalia specialibus non derogant : a general law does not nullify a specific or special law.• Reason: the legislature should make provisions for all circumstance of the particular case.
AA. When special or general law repeals the other
• Rule: Where a later special law on a particular subject is repugnant to or inconsistent with a prior general law on the same subject, a partial repeal of the latter is implied to the extent of the repugnancy or exception granted upon the general law.
• Legislative intent to repeal must be shown in the act itself, the explanatory not to the bill before its passage into a law, the discussion on the floor of the legislature and the history of the two legislations.
• Rule: General law cannot be construed to have repealed a special law by mere implication.
• Rule: If intention to repeal the special law is clear, the special law will be considered as an exception to the general law will not apply. Special law is repealed by implication.
BB. Effects of repeals
1. Statute is rendered inoperative
2. Does not undo the consequences of the operation of the statute while in force
3. Does not render illegal what under the repealed act is legal 4. Does not lake legal what under the former law is illegal CC. On jurisdiction
• Jurisdiction to try and decide actions is determined by the law in force at the time the action is filed.
• General rule: where the court or tribunal has already acquired and is exercising jurisdiction over a controversy, its jurisdiction to proceed to final determination of the cause is not affected by the new legislation repealing the statue which originally conferred jurisdiction unless the repealing statute provides otherwise expressly or by necessary implication.
DD. On jurisdiction to try criminal cases
• Jurisdiction of a court to try a criminal case is determined by the law in force at the time the action is instituted.
EE. On actions pending or otherwise
• The general rule is that the repeal of a statue defeats all actions and proceedings including those which are still pending.
FF. On vested rights
• Repeal of a statute does not destroy or impair rights that accrued and became vested under the statute before its repeal.
GG. On contracts
• When a contract is entered into by the parties on the basis of the law when obtaining, the repeal or amendment of said law does not affect the terms of the contract not impair the right of the parties thereunder.
HH. Effect of repeal of tax law
• Repeals does not preclude the collection of taxes assessed under the old law before its repeals unless the repealing statute provides otherwise
II. Repeal and enactment
• Simultaneous repeal and reenactment of a statue does not affect the rights and liabilities which have accrued under the original statute since the reenactment neutralizes the repeal and continues the law in force without interruption.
• Repeal without qualification of penal law deprived the court of the jurisdiction to punish persons charged with a violation of the old law prior to its repeal.
• Where repeal is absolute, crime no longer exists.
• Exception:
1. The repealing act reenacts the statute and penalizes the same act previously penalized under the repealed law, the act committed before the reenactment continues to be a crime.
2. Where the repealing act contains a saving clause providing that pending actions shall not be affected, the latter will continue to be prosecuted in accordance with the old law.
o Distinction as to effect of repeal and expiration of law
• In absolute repeal, the crime is obliterated
• In expiration of penal law by its own force does not have that effect KK. Effect of repeal of municipal charter
• Superceding of the old charter by a new one has the effect of abolishing the offices under the old charter.
LL. Repeal or nullity of repealing law
• Law first repealed shall not be revived unless expressly provided
• Where a repealing statute is declared unconstitutional, it will have no effect of repealing the former statute.
CHAPTER 11 (CONSTITUTIONAL CONSTRUCTION) CONSTITUTION
•
Fundamental law which sets up a form of government and defines and delimits powers thereof.•
Is supreme, imperious, absolute and unalterable except by the authority from which it emanates•
Authority of which emanates from the sovereign people ORIGIN AND HISTORY1935 Constitution
•
Act of US Congress/Tydings-Mcduffie Law authorized the people of P.I. to adopt a Constitution•
Steps1 Drafting and approval of the Constitutional Convention 2 Certification of the US President
3 Ratification by the Filipino people- May 14, 1935 1975 Constitution
•
R.A. 6132 – call for a convention to propose amendments of the 1935 Constitution•
Aug 24, 1970- election of delegates•
Sept 21, 1972- declaration of Martial Law•
Jan 17, 1973- 1973 Constitution is proclaimed ratified Freedom Constitution•
March 25, 1986-Feb 2, 1987 1987 ConstitutionPURPOSE OF CONSTITUTIONAL CONSTRUCTION
•
To ascertain intent or purpose of the framers of the Constitution as expressed in the language of the fundamental law, and thereafter to assure realization.MODALITIES OF CONSTITUTIONAL CONSTRUCTION INTRINSIC
•
Textual/Literal interpretation/Plain-meaning Terms must be construed in their general and ordinary sense General prevails over the restricted unless the limited sense is
intended
•
Structural Drawing inferences from the architecture of the Constitution
•
Construction as a whole A provision in the Constitution should not be construed in isolation rather as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full of force and effect]
EXTRANEOUS
•
Historical Relying on circumstances, historical events and ideological positions upon the adoption of the Constitution
•
Proceedings of the Convention Debates, interpretations, and opinions expressed concerning particular provisions yield additional insight on the intent and meaning thereof but are not absolute and conclusive for the Constitution does not derive its force from the convention but from the people who ratified it. Moreover, opinions expressed by some individuals during the convention, do not necessarily reflect the state of mind of those who did not express their opinion.
•
Doctrinal/Previous laws and judicial rulings Relying on established precedents Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate and upon which they express their judgment and opinion in its adoption
Relying on construction of the legislative and executive departments
Where a legislature has revised a statute after a constitution has been adopted, such a revision is to be regarded as a legislative construction.
•
Changes in Phraseology A change in phraseology of the present Constitution may indicate an intent t modify or change the meaning of the old provision and thus reflect a different intent
•
Consequence of alternative constructions Where a constitutional provision is ambiguous, that construction which lead to absurd, impossible or mischievous consequences must be rejected
OTHER RULES:
•
Constitution construed as a whole
A provision in the Constitution should not be construed in isolation rather as a whole and apparently, conflicting provisionsshould be reconciled and harmonized in a manner that may
give to all
of them full force and effect.
•
Mandatory or Directory
The established rule is that constitutional provisions are to be construed as mandatory, unless by express provision or bynecessary implication, a different intention is manifested. It is a
general rule to regard constitutional provisions as mandatory and
not to leave any discretion to the will of a legislature to obey or
to disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions are intended to be merely directory. The reason why provision of the constitution are generally regarded as
mandatory is
that in a constitution, the sovereign itself speaks and is laying down the rules which for the time being at least are to control alike the government and the governed. Its provisions are binding
upon all departments of the government.
•
Prospective or Retroactive
The rule is that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retroactive effect.•
Applicability of Statutory Construction to Constitutional Construction Some of the rules in statutory construction are applicable to the construction of the Constitution
•
Generally, Provisions of the Constitution are self-executing in nature
The general rule is that constitutional provisions are self- executing, except when the provisions themselves expressly requirelegislations to implement them or when, from their language or
tenure, they are merely declarations of policies and principles. A
self-executing provision is one which is complete by itself and becomes operative without the aid of supplementary or enabling
legislation, or which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected. The rule is that in case of doubt, the Constitution should be considered self- executing
rather than non-self-executing LATIN MAXIMS
Absoluta sententia expositore non indiget
When the language of law is clear, no explanation of it is required. (p.127) Aequitas nunquam contravenit legis
Equity never acts in contravention of the law. (p.128) Casus omissus pro omisso habendus est
A person, object, or thing omitted from an enumeration must be held to have been omitted intentionally. (p.231)
Cessante ratione legis, cessat et ipsa lex
When the reason of the law ceases, the law itself ceases. (p.142) Contemporanea expositio est optima et fortissima in lege The contemporary construction is strongest in law. (p.110) Dura lex sed lex
The law may be harsh, but that is the law. (p.127 and p.298) Ea est accipienda interpretatio quae vitio caret
Ex dolo malo non oritur action
No man can be allowed to found a claim upon his own wrongdoing. (p.174) Ex necessitate legis
By necessary implication of law. (glossary) From the necessity of the law. (p.164) Expressio unius est exclusio alterius
The express mention of one person, thing, or consequence implies the exclusion of all others. (p.222)
Falsa demonstratio non nocet, cum de corpore constat
False description does not preclude construction nor vitiate the meaning of the statute. (glossary)
False description does not preclude construction nor vitiate the meaning of the statute which is otherwise unclear. (p.161)
Fiat justicia, ruat coelum
Let right be done, though the heavens fall. (p.154) Hoc quidem perquam durum est, sed ita lex scripta est It is exceedingly hard but so the law is written. (p.127)
Ibi quid generaliter conceditur; inest haec exceptio, si non aliquid sit contras jus basque
Where anything is granted generally, this exception is implied; that nothing shall be contrary to law and right. (p.161)
Impossibilium nulla obligatio est
There is no obligation to do an impossible thing. (p.162) In eo quod plus sit, semper inest et minus
The greater includes the lesser. (p.164)
In pari delicto potior est conditio defendentis (p.174)
(in the book, this maxim appears to mean “No man should be allowed to take advantage of his own wrong,” but that is also the meaning of Nullus commodum potest de injuria propriasua)
Index animi sermo (p.124) Index animi sermo est (glossary) Speech is the index of intention. Interest reipublicae ut sit finis litium
The interest of the State demands that there be an end to litigation. (p.122) Public interest requires that by the very nature of things there must be an end to a legal controversy. (glossary and p.340)
Interpretatio fienda est ut res magis valeat quam pereat
That interpretation as will give the thing efficacy is to be adopted. (p.131)
A law should be interpreted with a view to upholding rather than destroying it. (glossary and p.256)
Interpretatio talis in ambiguis semper fienda est ut evitetur inconveniens et absurdum (p.148 and glossary)
Interpretato talis in ambiguis semper frienda est, ut evitatur inconveniens et absurdum (p.152)
Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted.
Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem
The fact that a statute is silent, obscure, or insufficient with respect to a question before the court will not justify the latter from declining to render judgment thereon. (p.157)
Legis interpretatio legis vim obtinet (glossary) Legis interpretato legis vim obtinet (p.67)
The authoritative interpretation of the court of a statute acquires the force of law by becoming a part thereof. (glossary)
The authoritative interpretation of the Supreme Court of a statute acquires the force of law by becoming a part thereof. (p.67)
Lex prospicit, non respicit
The law looks forward, not backward. (p.68 and p.352) Maledicta est expositio quae corrumpit textum
It is dangerous construction which is against the text. (p.126) Nemo tenetur ad impossibile
The law obliges no one to perform an impossibility. (p.162) Nullus commodum potest de injuria propriasua (glossary) Nullus commodum capere potest de injuria sua propria (p.174) No man should be allowed to take advantage of his own wrong. Obiter dictum
An opinion expressed by a court on some question of law which is not necessary to the decision of the case before it. (p.122)
Optimus interpres rerum usus
The best interpreter of the law is usage. (p.114)
Quando aliquid prohibetur ex directo, prohibetur et per obliquum What is prohibited directly is prohibited indirectly. (glossary)
What cannot, by law, be done directly cannot be done indirectly. (p.176) Ratihabito mandato aquiparatur (glossary)
Ratihabitio mandato aequiparatur (p.120) Legislative ratification is equivalent to a mandate.
Ratio legis
Interpretation according to spirit. (glossary)
Interpretation according to the spirit or reason of the law. (p.132) Ratio legis est anima legis (glossary)
Ratio legis est anima (p.142) The reason of the law is its soul. Stare decisis et non quieta movere
Follow past precedents and do not disturb what has been settled. (glossary) One should follow past precedents and should not disturb what has been settled. (p.121)
Summum jus, summa injuria
The rigor of the law would become the highest injustice. (p.162) Surplusagium non nocet (glossary)
Surplusagium non noceat (p.159) Surplusage does not vitiate a statute. Ubi jus, ubi remedium
Where there is a right, there is a remedy. (glossary)
Where there is a right, there is a remedy for violation thereof. (p.166) Utile per inutile non vitiatur
The useful is not vitiated by the non-useful. (p.159) Verba intentioni, non e contra, debent inservire
Words ought to be more subservient to the intent and not the intent to the words. (p.133)
Verba legis
Plain-meaning rule. (p.124) Verba legis non est recedendum
From the words of the statute there should be no departure. (p.124) Post-Midterms (Chapters 5-10)
Actus me invito factus non est meus actus
An act done by me against my will is not my act. (p.292) Actus non facit reum nisi mens sit rea
The act itself dos not make a man guilty unless his intention were so. (p.292) Ad proximum antecedens fiat relatio nisi impediatur sentential
Relative words refer to the nearest antecedents, unless the context otherwise requires. (p.232)
Argumentum a contrario
Negative-opposite doctrine (p.223) Casus omissus pro omisso habendus est
A person, object, or thing omitted from an enumeration must be held to have been omitted intentionally. (p.231)
Dissimilum dissimilis est ratio
Of things dissimilar, the rule is dissimilar. (p.204) Distingue tempora et concordabis jura
Distinguish times and you will harmonize laws. (p.271) Dura lex sed lex
The law may be harsh, but that is the law. (p.127 and p.298) Ejusdem generis
Of the same kind or specie. (p.213)
Exceptio firmat regulam in casibus non exceptis
A thing not being excepted must be regarded as coming within the purview of the general rule. (pp.222-223)
Expressio unius est exclusion alterius
The express mention of one person, thing, or consequence implies the exclusion of all others. (p. and p.222)
Expressum facit cessare tacitum
What is expressed puts an end to what is implied. (p.222) Favorabilia sunt amplianda, adiosa restringenda (p.360) Favores ampliandi sunt; odia restringenda (glossary)
Penal laws which are favorable to the accused are given retroactive effect. Generale dictum generaliter est interpretandum
A general statement is understood in a general sense. (p.183) Generalia specialibus non derogant
A general law does not nullify a specific or special law. (p.415)