Stat Con Report

PROVISOS, EXCEPTIONS AND CLAUSES

Proviso Refers to a condition, stipulation or

limitation inserted in a document upon whose compliance the document's validity or application may depend.

Provisos To limit the application of the enacting

clause, section or provision of a statute, or except something, or to qualify or restrain its generality, or exclude some possible ground of misinterpretation of it, as extending to cases not intended by legislature to be brought within its purview.

Proviso (cont.) The common and usual role: restrain or

qualify the generality of the enacting clause or section which it refers.

Proviso (cont.) Primary Purpose:

Limit or restricts the general language or operation of the statute, not to enlarge it.

Proviso (cont.) Location:

Commonly found at the end of a statute, or provision and introduced, as a rule by the word “Provided”

Proviso (cont.) Determined by:

What determines whether a clause is a proviso is its substance rather than its form. If it performs any of the functions of a proviso, then it will be regarded as such, irrespective if what word or phrase is used to introduced it.

Proviso may enlarge scope of law It is still the duty of the courts to

ascertain the legislative intention and it prevails over proviso.

Thus it may enlarge, than restrict

Example US v Santo Nino Statute: it shall be unlawful for any person to

carry concealed about his person any bowie, knife, dagger, kris or any other deadly weapon: Provided, that this provision shat not apply to firearms in the possession of the persons who have secured a license therefore or who are entitled to same under provision of this Act.

Held: through the Proviso it manifested the intention to include in the prohibition weapons other than armas blancas as specified.

Proviso as additional legislation Expressed in the opening statement of a

section of a statute. Would mean exactly the reverse of what

is necessarily implied when read in connection with the limitation.

Purpose: To limit generalities Exclude from the scope of the statute that

which otherwise would be within its terms

What proviso qualifies General rule: qualifies or modifies only

the phrase immediately preceding it; or restrains limits the generality of the clause that it immediately follows.

Exceptions: unless it clearly appears that the legislature intended to have a wider scope.

Exception to the rule Proviso construed to qualify only the

immediately preceding part of the section to which it is attached; if no contrary legislative intent is indicated.

Where intent is to qualify or restrict the phrase preceding it or the earlier provisions of the statute or even the statute itself as a whole, then the proviso will be construed in that manner, in order that the intent of the law may be carried out.

Repugnancy between the proviso and the provision Where there is a conflict between the

proviso and the main proviso, that which is located in a later portion of the statute prevails, unless there is legislative intent to the contrary.

Latter provision, whether provision or not, is given preference for it is the latest expression of the intent of the legislation.

Exceptions, generally Exception consists of that which would

otherwise be included in the provision from which it is expected.

It is a clause which exempts something from the operation of a statute but express words.

“except,” “unless otherwise” and “shall not apply”

May not ne introduced by words mentioned above, as long as if such removes something from the operation of a provision of law.

Exceptions, generally Function: to confirm the general rule;

qualify the words or phrases constituting the general rule.

Exceptio firmat regulam in casibus exceptis- a thing no being excepted, must be regarded as coming within the purview of the general rule.

Doubts: resolved in favor of general rule.

Exception and Proviso distinguished Exception:

Exempts something absolutely from the operation of statute

Takes out of the statute something that otherwise would be a part of the subject matter of it.

Part of the enactment itself, absolutely excluding from its operation some subject or thing that would otherwise fall within the scope.

Exception and Proviso distinguished Proviso:

Defeats its operation conditionally. Avoids by a way of defeasance or excuse If the enactment is modified by engrafting upon

it a new provision, by way of amendment, providing conditionally for a new case– this is the nature of proviso.

Similar: in a way since one of the functions of proviso is to except something from an enacting clause.

Saving Clause Provision of law which operates to except from

the effect of the law what the clause provides, or save something which would otherwise be lost.

Used to save something from effect of repeal of statute

Legislature, in repealing a statute, may preserve in the form of a saving clause, the right of the state to prosecute and punish offenses committed in violation of the repealed law.

Saving Clause (cont.) Where existing procedure is altered or

substituted by another usual to save proceedings under the old law at the same time the new law take effect, by means of saving clause

Construed: in light of intent by legislature

Given strict or liberal meaning depending on nature of statute.

Statute Construed as Whole and in Relation to other StatuteChapter Six

STATUTE CONSTRUED AS A WHOLE Generally

Statute is passed as a whole It should have one purpose and one intent Construe its parts and section in

connection with other parts Why? To “produce” a harmonious whole

STATUTE CONSTRUED AS A WHOLE Never

Divide by process of etymological dissertation

Separate the words Separate context Base definition on lexicographer

The whole point of this part is to construe the whole statute and its part together.

Intent ascertained from statute as whole Legislative meaning and intent should be

extracted/ascertained from statute as a whole

Optima Statuit Interpretatio est ipsum statum - the best interpreter of a statute is the statute itself

Do not inquire too much into the motives which influenced the legislative body unless the motive is stated in the statute themselves

Purpose or context as controlling guide Construe whole statute and ascertain the meaning

of the words or phrases base on its context, the nature of the subject, and the purpose or intention of the legislative body who enacted the statute.

Give it a reasonable construction Leeway are accepted on grammatically

construction, letters of the statutes, rhetorical framework if it can provide a clear and definite statute.

Harmonize the parts of each other and it should be consistent with its scope and object

Giving the effect to statute as a whole Why construe a statute as a whole? What if the provision/section is unclear

by itself? How do you properly and intelligently

construe a provision/statute? 3 ways:

1) Understand its meaning and scope 2) Apply to an actual case 3) Courts should consider the whole act itself

Giving the effect to statute as a whole Why should every part of the statute be given

effect? Ways on how the courts should construe a

statute (according o Republic v. Reyes): Interpret the thought conveyed in the statute as

whole Construe constituent parts together Ascertain legislative intent to form a whole part Consider each and every provision in light of

general purpose Make every part effective, harmonious and sensible

Giving the effect to statute as a whole Ut res magis valeat quam pereat

The construction is to be sought which gives effect to the whole of the statute – of its every word.

Apparently conflicting provision reconciled Included in the rule of construing

statute as a whole, is the reconciling and harmonizing conflicting provisions because it is by this that the statute will be given effect as a whole,

Why is it a must for courts to harmonize conflicting provision?