Statutory Presumptions

A.
Y
2014 2015
UNIVERSITY OF THE
CORDILLERAS
College of Law
Baguio City
Law 1D
Prepared by:
Abnasan, Janine Grace
Boyongan,Joyce
[LIST OF
PRESUMPTIONS IN
STATUTORY
CONSTRUCTION]
Atty. Nestor Mondok
Professor, Statutory Construction
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS
Aliping, Vreneli Nadine C.
Cadiogan, Sarah
Balad, Vincent A.
Cardama, Francis Pauline B.
Balderas, Danika Blin M.
Catubig ,Angelique
Baluyan, Frances Janina F.
Dizon, Katherine T.
Baez, Rochelle Nerie S.
Galingana, Chevilyn
Bangliten, Miraldine
Gaudia, Elyzzar Ralph
Baon, Kenneth Jay J.
Leal,Mary Grace T.
Basto, Allan Patrick T.
Lubbong,Jackie Rose G.
Lumawig,Tere Rose L.
Reyes, Carla Joyce B.
Manaligod, Antonio C. III
Salvador, Kathleen Allysa V.
Manalo, Niko Martin D.
Sigabu, Arcel
Marquez, Princess Karina M.
Ventura, Maria Teresita R.
Mindaro, Christian
Waggay, Fidencio P. III
Pablo, Esmael G.
Zabala, Jan Carla
Puyoc, Miracquel P.
RESUMPTIONS OF LEGISLATIVE INTENTION

TABLE OF CONTENTS
A. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY
INTERPRETATION RELATING TO PUBLIC AND LEGAL POLICY
L
1 PRESUMPTION AGAINST CONFLICT WITH INTERNATIONAL LAW
2 PRESUMPTION AGAINST EXTRA-TERRITORIAL OPERATION
3 PRESUMPTION THAT STATUTE LAW PROMOTES THE PUBLIC INTEREST
4 PRESUMPTION OF CONSTITUTIONALITY
5 GENERAL PRESUMPTION IN FAVOUR OF THE LIBERTY OF THE INDIVIDUAL
6 PRESUMPTION AGAINST BINDING

PARLIAMENT IN THE FUTURE
7 GENERAL
THE SOVEREIGN LEGISLATIVE POWER OF
PRESUMPTION AGAINST THE DELEGATION BY
CONGRESS
OF ITS
LEGISLATIVE POWERS
l 8 PRESUMPTIONS
AGAINST DELEGATION BY
CONGRESS
OF CERTAIN OF ITS
LEGISLATIVE POWERS
l 8.1
Presumption against the undue delegation of legislative
powers
l 8.2
Presumption against delegation of Congress taxing powers
(No Taxation Without Representation)
l 8.3
Presumption against delegation of Congress penal powers
l 8.4
Presumption against delegation of Congress power to
abridge individual rights
l 8.5
exempt any person or class of persons from compliance with its
laws
8.6
enlarge or restrict the States eminent domain or to diminish the
public domain
9 PRESUMPTION IN FAVOUR OF EQUALITY OF TREATMENT
10 PRESUMPTION AGAINST RETROSPECTIVITY
11 PRESUMPTION AGAINST PREJUDICING VESTED RIGHTS
l 12 PRESUMPTION AGAINST OUSTING, RESTRICTING OR ENLARGING THE

JURISDICTION OF THE COURTS
l 12.1 General presumption against ousting or restricting the

jurisdiction of the superior courts of inherent jurisdiction
l 12.2 Presumption against expanding or varying the jurisdiction of
the courts
l 12.3 Assignment of exclusive original jurisdiction over certain
matters to certain authorities or inferior courts, tribunals or
executive authorities
L
12.4
Disallowing appeals on the merits of a case
l 13 PRESUMPTIONS RELATING TO THE EXERCISE OF STATUTORY POWERS

l 13.1 Presumption against delegation of statutory functions
generally.
l 13.2 Presumption against delegation of delegated lawmaking
powers
l 13.3 Presumption that, statutory powers, including the exercise of
a regulation making power, must be exercised intra-vires the
enabling statute
L
13.4 Presumption against non-prescription of statutory fees and

that statutory fees should be reasonable.
l 14 PRESUMPTIONS RELATING TO OFFENSES AND PENALTIES

l 14.1 Presumption against doubtful penalization and in favour of
the liberty of the individual.
l 14.2 Presumption against punishment for offense without prior

conviction
l 14.3 Presumption that mens rea is a requirement for criminal
liability
l 14.4 Presumption against reversing the onus of proof in criminal
cases.
l 14.5 Presumption that penalties ought to be proportionate to the
offense
l 14.6
Presumption against mandatory penalties
l 14.7 Presumption against double penalization for the same actus

reus.
l 14.8 Presumption that criminal penalties are no bar to civil
remedies or disciplinary proceedings.
l 14.9 Presumption that powers of search and detention of persons
and property to be exercised under warrant
l 14.10 Presumption in favour of the privilege against selfincrimination and against disclosure of privileged communications
l 14.11 Presumption against immunity from prosecution.
l 14.12 Presumptions about the prosecution and punishment of
corporate bodies
l 14.13 Presumption about compounding
condonation of statutory breaches
L
of
offenses
and
14.14 Presumption about contracts entered in violation of the

criminal law
15 PRESUMPTION AGAINST INJUSTICE AND UNREASONABLENESS
16 PRESUMPTION IN FAVOUR OF NATURAL JUSTICE OR DUE PROCESS
17 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND ABSURD OR

ANOMALOUS RESULTS
18 PRESUMPTION THAT THE LAW IS A COMPLETE SYSTEM WITHOUT LACUNAE
19 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND TO ALTER THE

EXISTING LAW MORE THAN IS NECESSARY
20 PRESUMPTION AGAINST THE STATE BEING BOUND BY STATUTE.
21 PRESUMPTION AGAINST BLANKET IMMUNITY FROM CIVIL SUIT.
22 PRESUMPTION AGAINST BLANKET INDEMNITY
l 23 OTHER PRESUMPTIONS RELATING TO PUBLIC AND LEGAL POLICY

l 23.1
The presumption of Omnia rite etc.
l 23.2 Presumption about validity of acts of employees of the State

where the validity of their title to office is questioned (de facto
officers doctrine)
l 23.3
The presumption of In bonampartem
l 23.4 Presumption that taxation statutes will be interpreted against

the fiscus
l 23.5 Presumption that statutory rights override conflicting private
common law ones,
l 23.6
Presumption of the validity of statutes
l 23.7 Presumption in favour of the severability of statutory

provisions to save validity
l 23.8
Presumption against ignorance of the law
l 23.9 Presumption of legal incapacity on the part of certain

classes of persons
l 23.10 Presumption against monopolies.
l 23.11 Presumption that the courts must take judicial notice of
certain facts
l 23.12 Presumption that costs follow the event
l 23.13 Cost recovery for remedial action undertaken by public

authorities not to be presumed
L
23.14 Presumption about the destination of public moneys.
B. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY

INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 1 GENERAL RULES AND PRESUMPTIONS ABOUT THE MEANINGS OF WORDS

AND
PHRASES
l 1.1
A word or expression is presumed to have the same
meaning wherever it appears in an enactment.
l 1.2
Different words in a statute are to be given different
meanings.
l 1.3
Presumption that the Legislature intends that words are to
be given their ordinary dictionary meaning.
l 1.4
Presumption that the legislature is aware of the existing
judicial interpretation given to words and provisions.
l 1.5
The presumption Omnemaius in se minus continet
l 1.6
The Expressiouniusestexclusioalterius Rule.
l 1.7
The Eiusdem Generis (Of the same kind) Rule.
l 1.8
The Reddendosingulasingulis Rule
l 1.9
Presumption about gender.
1.10 Presumptions about peremptory and directory statutory

provisions
l 2 PRESUMPTIONS CONCERNING THE COMMENCEMENT AND TERMINATION OF

STATUTES
l 2.1
Presumption that the legislature intends its laws to
commence on the date of their promulgation
l 2.2
Presumption that a statute once enacted will have effect
until repealed by Congress
l 2.3
Presumption about continuity where a statute is repealed
and substantially re-enacted.
l 2.4
Presumption against the continuance or of repealed
statutory rights
l 2.5
Presumption of validity of things done under a repealed
statute prior to its repeal
l 2.6
L
2.7
Presumption about repeal of repealing statute

Presumption about suspensive amendments
l 3 PRESUMPTIONS
CONCERNING THE CONFLICT OR HARMONY OF STATUTES
AND STATUTORY PROVISIONS
l 3.1
Presumption against the repugnance of statutes and
statutory provisions
l 3.2
Presumption favouring later over earlier conflicting statutes.
l 3.3
Presumption favouring specific over general statutes.
3.4
Presumption favouring primary over secondary statutes.
l 4 PRESUMPTIONS
CONCERNING THE USE OF INTRINSIC AND EXTRINSIC
STATUTORY MATERIAL TO ASCERTAIN THE MEANING AND INTENTION OF THE
LEGISLATURE
l 4.1
The Cardinal Principle.
l 4.2
The Golden Rule.
l 4.3
Presumption in favour of contextual interpretation.
l 4.4
Priority of intrinsic over semi-extrinsic (peripheral) matter in a
statute.
l 4.5
Use of matter extrinsic to a statute for purposes of
disambiguation.
l 4.6
L
Presumption about statutes in pari materia.
4.7
Use of legislative history and legislative antecedents as aids
to statutory interpretation
l 5. PRESUMPTIONS
CONCERNING STATUTORY TIME-LIMITS, STATUTORY RIGHTS
OF APPEAL AND STATUTORY DISCRETIONS
l 5.1
Presumption that generally time limits in statutes are
mandatory
l 5.2
Presumption that where a right of appeal is given by statute
against the exercise of a Statutory power, such appeal suspends
such exercise until the determination of the appeal
L
5.3
Presumption that a statutory discretion requires an objective
(i.e. judicial) construction
l 6. PRESUMPTIONS RELATING SPECIFICALLY TO CORPORATE

TRUSTS (STATUTORY OR NON-STATUTORY) AND EMPLOYMENT
BODIES AND
l 6.1
Presumption that a person includes a juristic person.
l 6.2
Presumption against piercing the corporate veil
l 6.3
Presumption of strict liability for breach of corporate
statutory duties.
l 6.4
Presumption about validity of acts of members of statutory
bodies
l 6.5
Presumptions about the property of statutory corporations
l 6.6
Presumption that statutory corporations are autonomous in
relation to the State
l 6.7
Presumption against continuity of statutory bodies or
authorities
l 6.8
Presumption that a decision of a statutory body requires the
votes of an absolute majority of the members of that body
l 6.9
Presumption that members or directors of statutory or
private corporate body are not employees of that body
l 6.10 Presumptions about statutory and implied powers of
statutory corporate body
l 6.11 Powers of investment of surplus funds of statutory corporate
body not to be inferred
l 6.12
L
6.13
l 7 OTHER
Presumptions with respect to statutory trustees

Presumption about suspension of employees
PRESUMPTIONS
OF
LEGISLATIVE
INTENTION
AND
RULES
OF
STATUTORY INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 7.1
The Mischief Principle.
l 7.2
Presumption that th legislature intends the courts to apply a
purposive construction to a statute
l 7.3
Presumption that the repeal of a statute involves also the
repeal of any subsidiary legislation made under it.
l 7.4
General presumption that a person may act through an
agent
l 7.5
authorities.
l 7.6
The Casus Omissus presumption.
l 7.7
Presumption about rules of evidence
l 7.8
Presumption against the continuity of State pensions and
terminal benefits
RELATED PRESUMPTIONS-
BASIC PRESUMPTIONS OF LEGISLATIVE INTENTION

The language of statutes is seldom unambiguous, and the courts frequently
have to decide which of two possible interpretations was intended by the
lawmaker. In such cases the courts will have regard to various rules or
presumptions to guide them in ascertaining the lawmakers intention.
The following are some of the more important common rules and presumptions
employed by our courts in the interpretation of enactments. Drafters should
always bear them in mind and raise and discuss them where necessary in the
course of consultations during the drafting of legislation. The rules and
presumptions are generally classifiable under two headings, namely, (a)
presumptions of legislative intention and rules of statutory interpretation relating
to public and legal policy and (b) presumptions of legislative intention and rules
of statutory interpretation that are intrinsic to statutory texts.
General Nature of Presumptions
They are not reflections which are capable of determining the
construction of the Act once it has been passed, unless there is something that
one can lay hold of in the context of the Act which justifies the introduction of the
exception sought for. Merely to say that Congress cannot be presumed to have
intended to bring about a consequence which many people might think to be
unjust is not, a principle of construction for this purpose. In point of fact,
whatever innocence of view may have been allowable to the lawyers of the 18th
and 19th centuries, the 20th century lawyer is entitled to few assumptions in this
field. It is not open to him to ignore the fact that the Legislature has often shown
indifference to the assertion of rights which Courts of Law have been
accustomed to recognize and enforce and that it has often excluded the
authority of Courts of Law in favor of other preferred tribunals. [per Lord
Radcliffe] Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26
March 1956)
A. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY

INTERPRETATION RELATING TO PUBLIC AND LEGAL POLICY
l 1 Presumption against conflict with international law

If a statutory provision is ambiguous, the courts will favor the interpretation
that is in compliance with international law. Note, however, that remains valid
even if it conflicts with a rule of international law, unless the rule of
international law has been incorporated into our law by or under an Act of
Congress.
Where an international treaty has been approved by Congress and ratified by
the President in accordance with the Constitution, the presumption in favor of
compliance with International law operates as follows:
1 Where the international treaty is domesticated and the statute in

question conflicts with it, the statute is invalid to extent that it
conflicts with the treaty.
2 Where the international treaty is not domesticated but is partially or
wholly self-executing, and the statute in question conflicts with it,
the statute is invalid to the extent that it conflicts with the selfexecuting part of the treaty.
In certain rare cases where an international obligation is not embodied in any

treaty or, if so embodied, is not approved by Congress and ratified by the
President in accordance with the Constitution, or is not domesticated, a
statute may still be held to be overridden by such an obligation if it is part of
customary international law e.g. the prohibition of genocide, slavery and
torture. (see Ex Parte Simon Mann, 2007 (ZHC)).
A rule of legal interpretation whereby domestic law is read, wherever

possible, consistently with international law and comity.
Presumption that a statute will not be interpreted so as to violate a rule of
international law or obligation.
It requires the courts to seek an interpretation of a statute that will not make
domestic law in conflict with international law.
Presumption of Compatibility with International Laws
This presumption of compatibility with international obligations was stated
by Henchy J. as follows:
"one must assume that the statute was enacted (there being no indication
in it of a contrary intention) subject to the postulate that it would be
construed and applied in consonance with the State's obligations under
international law, including any relevant treaty obligations."
This was raised in O Domhnaill v Merrick where it is concerned with the

interpretation of sections of the Statute Limitations. In this case, the
Supreme Court considered whether the stipulation of Article 6 (1) of
the European Convention on Human Rights and Fundamental
Freedoms that cases should be heard "within a reasonable time" affected
the meaning of the Statute
"a statute must be construed, so far as possible, so as not to be
inconsistent with established rules of international law and ... one should
avoid a construction which will lead to a conflict between domestic and
international law."
? The 1987 Philippine Constitution (Section 2, Article II) provides that
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
? This shows that even our country follows the international law and from
time to time, also adopts laws and principles that are internationally
accepted.
l 2 Presumption against extra-territorial operation
There is a strong presumption that all the laws of a State apply only within its
own territory. If the State wishes to legislate extra-territorially, especially for its
citizens abroad, it must insert an express provision to this effect in the Bill.
Extra-territorial legislation by subsidiary legislation is never to be countenanced
unless specifically authorized by the Act under which the subsidiary legislation is
made. Desirably, extra-territorial legislation should respect the principle of
reciprocity, including in the case where extra-territorial offenses and penalties
are legislated (this is because it is usually impossible to secure the extradition of
your citizens from a country in which the extra-territorial conduct in question is
not a crime).
l 3 Presumption that statute law promotes the public interest

This presumption (embodied in the Latin maxim sales populi suprema lex est)
tells us that if a statute can be interpreted in two ways, one that favours an
individual or sectional interest and another that favors the public interest, the
latter will prevail. However, this presumption does not override individual rights
except to the extent of any derogation allowed by the Bill of Rights (e.g.public
order, public health etc) or where a state of emergency is declared (S v. Posel
1977 45A 475(N); S V De Castro 1979 2 SA 1(A) 23-24)
l 4 Presumption of constitutionality
If an enactment is capable of two meanings, one of which would render it
unconstitutional, the court will assume that the lawmaker intended the enactment
to conform with the Constitution. If an enactment is challenged in court on the
ground that it contravenes the Declaration of Rights in the Constitution, the onus
is on the challenger to prove that it is unconstitutional (Zim Township Developers
(Pvt) (Ltd) v Lous Shoes Pvt Ltd 1983 (2) ZLR 376).
The presumption arises in almost every constitutional democracy where the
constitution is the supreme law of the land. An Act of Congress is presumed to
be constitutional until the contrary is shown. Further if a provision is capable of
two meaning, with one of the possible interpretations falling within the meaning
of the constitution while others do not, it will be presumed that the legislature
intended to act constitutionally and that one possible meaning within the
constitution will be adopted.
l
5 General presumption in favor of the liberty of the individual
All persons have the residual freedom to do anything that is not expressly
prohibited by law and not transgressive of any other persons freedom. In most
constitutional and democratic systems the primary bearers of rights are
individual citizens, and Bills of Rights and Freedoms are generally framed in
accordance with that principle. Almost any exercise of State power, whether
through the Executive, the Legislature or the Judiciary, may potentially abridge
or infringe a persons life, freedom or property; accordingly, no such exercise is
reasonably justifiable in a democratic society except under the clear terms of a
law. One of the ways in which this presumption operates in the field of statutory
interpretation is the Doubtful Law Principle, namely that doubtful laws do not
bind (Lexdubia non obligat). The laws referred to in this maxim are those that
are mandatory in character or that infringe upon a persons residual freedom in
any way. If such a law is framed in an intractably ambiguous way, the courts will
generally choose the interpretation that favours the residual liberty of the
individual. This principle informs many other presumptions listed here, including
especially the presumptions referred to in paragraphs 8.4, 11,14 and 15.1.Some
rights and freedoms are considered so essential to individual liberty that they are
specifically enshrined in the Bill of Rights embodied in different countries
Constitution/laws as follows:
1 Provisions safeguarding the right to personal liberty, or, to put it
negatively, safeguarding against detention without trial, or deportation.
Derogations from these provisions are not to be countenanced except on
the following grounds allowed by the Constitution:
2 in consequence of a persons unfitness to plead to a criminal

charge or in execution of the sentence or order of a court, with
respect to a criminal offense of which he or she has been
convicted;
3 in execution of the order of a court punishing a person for contempt
of that court or of another court or tribunal or in execution of the
order of the Congress punishing him or her for a contempt;
4 in execution of the order of a court made in order to secure the
fulfillment of an obligation imposed on a person by law (for
example, civil imprisonment to enforce a matrimonial maintenance
award or other debt);
5 for the purpose of bringing a person before a court in execution of
the order of a court or an officer of a court or before the Congress
in execution of the order of the Senate or the House of Assembly;
6 upon reasonable suspicion of his having committed, or being about
to commit, a criminal offense;
7 for the protection and promotion of the right to health of the people
and instill health consciousness among them;
8 if a person is, or is reasonably suspected to be, of unsound mind,
addicted to drugs or alcohol, or a vagrant, for the purpose of his or
her care, treatment or rehabilitation or the protection of the
community; or
9 for the purpose of preventing a persons unlawful entry into the
territorial jurisdiction of ones country or for the purpose of effecting
his or her expulsion, extradition or other lawful removal from the
territory or the taking of proceedings relating thereto.
10 The right to freedom of speech or expression, that is to say, freedom to

hold opinions and to receive and impart ideas and information without
interference, and freedom from interference with ones correspondence.
Derogations from this right are not to be countenanced except on the
following grounds allowed by the Constitution (and even then, they must
be of such a character as not to offend against what is reasonably
justifiable in a democratic society):
11 A persons freedom of expression may be curtailed by his or her

own consent, or as a consequence of the exercise of parental
discipline over a child or other person under guardianship.
12 Limitations in the interests of defense, public safety, public order,
the economic interests of the State, public morality or public health;
13 Limitations for the purpose of
i
Protecting the reputations, rights and freedoms of other

persons or the private lives of persons concerned in legal
proceedings;
ii
preventing the disclosure of information received in

confidence;
iii
maintaining the authority and independence of the courts or

tribunals or the Congress;
iv
regulating the technical administration, technical operation

or general efficiency of telephony, telegraphy, posts,
wireless broadcasting or television or creating or regulating
any monopoly in these fields;
preventing (in the case of correspondence) the unlawful

dispatch therewith of other matter:
1 The freedom of expression of public officers may be curtailed in the

interests of upholding public confidence in the civil and uniformed
services of the country.
2 Limitations curtailing the exercise of a persons freedom of
expression in or on any road, street, lane, path, pavement, sidewalk, thoroughfare or similar place which exists for the free
passage of persons or vehicles.
3 The right of free assembly and association, that is to say, a persons right
to assemble freely and associate with other persons and in particular to
form or belong to political parties or trade unions or other associations for
the protection of his or her interests. This right encompasses the right not
to be compelled to belong to an association. Derogations from this right
are not to be countenanced except on the following grounds allowed by
the Constitution (and even then, they must be of such a character as not
to offend against what is reasonably justifiable in a democratic society):
4 Limitations in the interests of defense, public safety, public order,

public morality or public health;
5 Limitations for the purpose of protecting the rights or freedom of
other persons;
6 Limitations in connection with the registration of companies,
partnerships, societies or other associations of persons, other than
political parties, trade unions or employers organizations;
7 The freedom of assembly and association of public officers may be
curtailed in the interests of upholding public confidence in the civil
and uniformed services of the country.
8 Limitations curtailing the exercise of a persons freedom of freedom
of assembly and association in or on any road, street, lane, path,
pavement, side-walk, thoroughfare or similar place which exists for
the free passage of persons or vehicles.
9 The right to freedom of movement, that is to say, the right to move freely
throughout the state, the right to reside in any part of the country, the right
to enter and to leave the state and immunity from expulsion from the
country. Derogations from this right are not to be countenanced except on
the following grounds allowed by the Constitution (and even then, they
must be of such a character as not to offend against what is reasonably
justifiable in a democratic society):
10 Limitations for the imposition of restrictions on the freedom of

movement of persons generally or any class of persons that are
required in the national interest, or in the interests of defense,
public safety, public order, public morality, public health, the public
interest or the economic interests of the State;
11 for the imposition of restrictions on the acquisition or use of land or

other property of the government;
12 for the imposition of restrictions by order of a court on the
movement or residence within the country of any person or on any
persons right to leave
i
in consequence of a person having been found guilty of a

criminal offense under the law or for the purpose of ensuring
that he or she appears before a court for trial for such a
criminal offense or for proceedings preliminary to trial;
ii
for proceedings relating to a persons extradition or lawful

removal from the territory; or
iii
for the purpose of ensuring that he appears before a court

as a witness for the purposes of any criminal proceedings;
1 for the imposition of restrictions on the movement or residence

within the country of any person who is neither a citizen nor
regarded by virtue of a written law as permanently resident in the
state; or whether or not he or she is married or related to another
person who is a citizen of or permanently resident in the state;
2 for the imposition of restrictions by order of a court on the right of
any person to leave the country that are required for the purpose of
ensuring that he or she
appears before a court or other
adjudicating authority as a party or a witness or to secure the
jurisdiction of the court or other adjudicating authority for the
purposes of any civil proceedings; or
3 for the imposition of restrictions on the residence within Communal
Land of persons who are not traditionally resident therein, to the
extent that such restrictions are reasonably required for the
protection of the interests of persons who are traditionally resident
therein or their well-being;
4 Proposals of a discriminatory nature on grounds of race, religion, sex, etc.
(section 23 of the Constitution)(as to which see Presumption A.14.9);
Presumption that Fundamental rights cannot be taken away by general
words of statute.
Under the principle of legality, it is presumed that Congress does not intend
the abrogation of fundamental rights and freedoms (Brennan, 2010).
"Fundamental rights cannot be overridden by general or ambiguous words.
This is because there is too great a risk that the full implications of their
unqualified meaning may have passed unnoticed in the democratic process.

in the absence of express language or necessary implication to the contrary ,
the courts therefore presume that even the most general words were
intended to be subject to the basic rights of the individual"
l 6 Presumption against binding the sovereign legislative power of
Parliament in the future
The Constitution assigns to Congress almost absolute sovereignty in the
legislative sphere as the supreme lawmaking body. Any restraint upon that
sovereignty can only be effected by the Constitution itself. Accordingly no law
may purport to bind, restrict or prohibit the exercise of the legislative power of
Congressional in the future, whether during an existing Congress or in any future
Congress, by, for example, specifying that a law, whether enacted by Congress
or by an authority delegated by Congress, cannot be repealed or amended, or
that a future law on a particular subject cannot be enacted by Parliament
(however Sunset Clauses, which relate to the demise of an existing law and
which Congress is not expressly forbidden to amend or repeal, are permissible)
l 7 General presumption against the delegation by Parliament of its
legislative powers
Under the Constitution and the doctrine of the separation of powers, Congress is
the primary lawmaking body. However, Congress (or the Constitution) can
through an Act delegate some of its lawmaking powers to the Executive Branch
(usually a President or some other specified body or authority) and also to the
Judicial Branch (empowering the judiciary to frame rules of court). The
delegation of lawmaking powers to the Executive Branch happens very
frequently nowadays, particularly on matters of detail for which it would not be
practicable to make extensive provision in the enabling Act. Such a power can
never be inferred. It must be expressly legislated in the Act, and the Act must
specify some parameters within which the Minister or other delegated lawmaker
must operate when enacting delegated legislation. Even then, Congresss power
to delegate its lawmaking function is not an unqualified one, as the next
presumption will show. Theoretically, every delegated lawmaker is ultimately
accountable to Congress for the manner in which the delegated lawmaking
power is exercised, either directly accountable indirectly accountable through
the President who administers the Act under which that power was delegated.
l 8 Presumptions against delegation by Parliament of certain of its

legislative powers
The power of Parliament to delegate its lawmaking function is quite broad, but is
subject to greater restriction or even excluded altogether in the following cases.
l 8.1
Presumption against the undue delegation of legislative
powers
A not infrequent instance of what might be undue delegation in this
respect is the delegation to the Executive of the power to amend an Act of
the Congress. This kind of provision is known historically as a Henry VIII
clause, because it was much used or abused during the reign of King
Henry VIII in the early part of 16 th Century England. Congress, parliament
in this case at that time was very much under the shadow of the
Executive, to such an extent that it was persuaded or intimidated into
passing many laws containing a clause to the effect that the President
could, by simple proclamation, alter anything in that law whatsoever. In
this way the President practically usurped the lawmaking power of
Congress. Nowadays this practice is usually confined to empowering a
President to amend by statutory instrument a Schedule to an Act, but in
such cases, to prevent abuse of the Presidents powers, the drafter
should make provision in the Act concerned for the statutory instrument to
be confirmed by a positive resolution or negative resolution of
Congress. There is also a presumption against the Congress delegating
its power to repeal its own statutes, even where the statute in question
has lapsed through obsolescence (see Presumption B.2.2).
This
presumption may be overturned by a provision included in the statute
(known as a sunset clause) declaring in what circumstances a statute
shall be deemed to be repealed without Congress having to repeal the
statute itself. Sometimes a sunset clause may take the form of a
provision empowering a President to repeal the statute by statutory
instrument.
l 8.2
Presumption against delegation of Congresss taxing
powers (No Taxation Without Representation)
The principle of No Taxation Without Representation is a fundamental
principle of democracy grounded in the doctrine of the separation of
powers. It applies equally at the national and local government level.
Although it is not expressly written into our Constitution, it is a wellestablished and widely recognized principle in all countries deriving their
constitutional traditions from the parliamentary model of democracy (see,

for example, City Treasury & Rayes Collection, Newcastle TC v Shaikjee
1983 (1) 506 SA; The power to impose or vary taxation is, in general, too
important to be delegated by Congress (de Smith, Constitutional and
Administrative Law, 3rd Edition, p. 328).
No statutory instrument can impose a charge or levy in the nature of a tax
unless the making of such a statutory instrument is specifically authorized
by an Act of Congress: even then, a drafter should insist upon
1 including a provision in the enabling Act for the statutory instrument
to be confirmed by a positive or negative resolution of
Congress; or
2 specifying in the enabling Act that no such statutory instrument that
is made and published shall come into effect until it has been
confirmed by Congress by means of an express provision in the
next Finance Act.
Note that a tax should be distinguished from a fee: the latter denotes a
charge for some item or service provided to the payer, and a statutory
instrument imposing fees does not normally require Parliamentary
confirmation. No fee may, however, be imposed by statutory instrument
unless the imposition is specifically authorized by the enabling Act.
l 8.3
Presumption against delegation of Parliaments penal
powers
No statutory instrument can impose criminal or civil liability upon a person
unless the imposition and the extent of the imposition is specifically
authorized by the enabling Act.
8.4
Presumption against delegation of Congresss power to
abridge individual rights
Allowable derogations from the rights and freedoms of individuals that are
enshrined in the Bill of Rights must be spelt out in the statute itself and
not left to be determined by a President or other official or delegated
lawmaker by statutory instrument, general notice or administrative action.
l 8.5
exempt any person or class of persons from compliance with
its laws
Such exemptions and the extent to or circumstances under which they
may be granted must be spelt out in the statute itself and not left to be
determined by a Minister or other official or delegated lawmaker by
statutory instrument, general notice or administrative action. In addition,
the allowable exemptions must not be such as to conflict with the
presumption in favor of equality of treatment discussed in Presumption
A.9 below.
l 8.6
enlarge or restrict the States eminent domain or to diminish
the public domain
A power bestowing upon the State, a statutory corporation or other arm of
the State a power of enlarging the States eminent domain (that is, to
compulsorily acquire private property for public purposes) cannot be
inferred but must be expressly granted by or under the authority of an Act
of Congress. Conversely,
1 the exemption of any private property from the scope of the States
eminent domain; or
2 any diminution or alienation of immoveable property belonging to
the State, a statutory corporation or other arm of the State, whether
or not vesting by virtue of the exercise of the States eminent
domain cannot be inferred but must be expressly granted by or
under the authority of an Act of Parliament.
l 9 Presumption in favor of equality of treatment
This presumption may also be expressed negatively as the presumption against
arbitrary discrimination or differentiation. The presumption of equality before the
law is another positive way of describing it.The lawmaker is presumed to intend
to treat everyone affected by its laws on the basis of equality. All persons are
equally liable to the obligations imposed or rights conferred by statute. This
presumption is reinforced by the law, which prohibits discrimination on the
grounds of race, tribe, place of origin, political opinions, color, creed, physical
disability, sex or gender. If a law proposes to discriminate on any of these
grounds, the discriminatory provision must fall under one of the derogations from
this safeguard. One of these derogations is that affirmative discrimination on the
basis of sex and race is permissible to redress past discriminatory laws and
practices.
l 10 Presumption against retrospectivity
Observance of the presumption against retrospectivity is a fundamental principle
of our law. So far as possible, legislation should not be given retrospective
effect.
It is wrong in principle to change the character of past acts and transactions
which were validly carried out upon the basis of the then existing law.
If the lawmaker intends an enactment to have retrospective effect, then that must
be stated expressly and clearly in the enactment. However, penal provisions can
never be given retrospective effect, even by Congress itself. In regard to
subordinate legislation, only Congress has the power to legislate retrospectively
or to authorize retrospective legislation, so that retrospective operation of the
provisions of subsidiary legislation is never to be countenanced unless
specifically authorized by the Act under which the subsidiary legislation is made.
An exception to the general presumption against retrospectivity is that
alterations in the form of procedure can operate retrospectively unless there is
some good reason why they should not.
Presumption against retrospective legislation
In the absence of expressed provision, to the contrary no statute is
presumed to operate retrospectively. The legislator is presumed to
legislate only for the future.
l 11 Presumption against prejudicing vested rights
Somewhat related to the foregoing presumption is the presumption against
interfering with existing rights. Many, perhaps most,new statutes interfere in
some way or another with existing rights. In order for the interference with
existing or vested rights to be lawful
1 the interference or the authority to interfere is imposed by Congress itself
through its; and
2 The extent of the interference is prescribed by the Act of Congress or, if
prescribed by a delegated lawmaker, the limits within which the delegated
lawmaker may interfere must be defined by the Act; and
3 the nature of the prescribed interference must be clear and unambiguous;
and
4 the application of the statutes requirements must be expressly extended

to those whose existing or vested rights will be affected, or at least must
be necessarily implicit.
For example, a statute that requires all hotels to be registered which is enacted
in accordance with condition 1 may (subject to the fulfillment of conditions 3 and
4) lawfully interfere with an existing hotel-keepers right to continue to operate
without any formality of registration or other interference by the State. That is to
say, the statutes requirements are clear and unambiguous (condition 3), and
must explicitly or by necessary implication apply to existing hotel-keepers.
However, a requirement under a regulation made in terms of that statute which
compels hotel-keepers to make and keep certain records that may be timeconsuming and expensive, will probably not be upheld by the courts, unless the
statute under which that regulation is made specifically empowers a regulation to
be made compelling hotel keepers to make and keep the records in question
(condition 2). Furthermore, interference with vested rights by necessary
implication will probably not be allowed by the courts if the exercise of the rights
in question is not inherently contrary to public policy*, and interference is not
occasioned by the need to remedy some immediate public mischief. Thus,
persons who lawfully practiced a trade or profession before the enactment of a
statute requiring practitioners of any such trade or profession to be registered,
will not be required to register unless the statute in question specifically adverts
to the need for such persons to register. Even where there is no intention to
interfere with vested rights, It is often desirable, for the avoidance of doubt or
out of an abundance of caution, to include express words to the effect that the
statute does not interfere with vested rights.
l 12 Presumption against ousting, restricting or enlarging the
jurisdiction of the courts
l 12.1 General presumption against ousting or restricting the
jurisdiction of the superior courts of inherent jurisdiction
It is impossible under our constitutional system to entirely oust the
jurisdiction of the courts of inherent jurisdiction (that is to say the High
Court and the Supreme Court) by any provision contained in an Act of
Congress in view of the constitutionally protected right of every individual
to be afforded the protection of the law.
In addition, the Supreme Court is given jurisdiction under the
Constitution to hear the application of any person who alleges that the
Declaration of Rights has been- is being or is likely to be, contravened in
relation to him or her. However, it is possible by means of primary

legislation to delay or qualify the operation of the inherent jurisdiction of
the superior courts by one or both of two means, namely, assignment of
exclusive original jurisdiction over certain matters to certain authorities or
inferior courts or tribunals and disallowing appeals on the merits of the
case (see sub-items 12.3 and 12.4 below))
Presumption that statutes should not be construed so as to oust the

jurisdiction of superior courts.
In order to oust the jurisdiction of the court of law, it must be clear that
such was the intention of the legislature. In a constitutional democracy
like Philippines, the presumption has little relevance. The Constitution
provides every person to the protection of the law and for an independent
judiciary. Therefore any statute purporting to oust jurisdiction of the court
will be declared unconstitutional.
Further, our courts are all creatures of statutes.
l 12.2 Presumption against
jurisdiction of the courts
expanding
or
varying
the
Conversely, additional jurisdiction cannot be conferred on courts of

limited jurisdiction except by Act of Congress. Nor can additional
jurisdiction be conferred on the Supreme Court or the other Appellate
Courts, as the case maybe by way of bypassing the established route that
all criminal or civil cases, reviews and appeals must take (for instance, by
legislating that any specific class of cases, appeals or reviews must
bypass the Appellate Courts and proceed directly to the Supreme Court,
or that a matter ordinarily within the jurisdiction of a magistrates court
must originate in the Appellate Courts), except by express and
unambiguous provision in an Act of Congress.
l 12.3 Assignment of exclusive original jurisdiction over
certain matters to certain authorities or inferior courts,
tribunals or executive authorities
Exclusive original jurisdiction in respect of certain matters of a civil
nature may be assigned to special courts (for instance, the Labor Court
has exclusive original jurisdiction over all labor matters), or to an
established court of limited jurisdiction which ordinarily would not have
had the jurisdiction to adjudicate that matter or even to an executive
authority (for instance, a Minister, official or statutory body), but such
jurisdiction must be specially conferred by Act of Congress, and the scope
of the jurisdiction of such a court or authority must be stated in the Act in
precise and unambiguous terms. The assignment of such original
jurisdiction cannot derogate from the final appellate jurisdiction of the

Supreme Court, nor from the ultimate review jurisdiction of the High Court.
With respect to the latter, the High Court, in relation to matters not
connected with the Declaration of Rights, has under the common law
inherent review jurisdiction to review the exercise of any statutory,
administrative, judicial or other official action on the grounds of review set
in section.
1 The absence of jurisdiction on the part of the court, tribunal or
authority concerned;
2 Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part of
the authority concerned;
3 Gross irregularity in the proceedings or the decision of the court,
tribunal or authority concerned.
The power of review on the grounds above outlined cannot be ousted by
any statute.
l 12.4
Disallowing appeals on the merits of a case
It is possible by Act of Congress to legislate that a decision of a

special court, court of limited jurisdiction or executive authority is final in
the sense that the decision is not subject on appeal to an adjudication of
its merits, but to scrutiny on the grounds of review alone. However, in
order to do this
1 The kinds of decisions in question must be described in express and
unambiguous terms in an Act of Congress; and
2 The Act of Congress must ensure that due process is observed in
arriving at the decision; and
a It must be expressly or implicitly clear from the Act of Cingress that a
review of the decision in question is not excluded; and
1 Especially in the case where an executive authority makes the
decision, gross unreasonableness of the decision must be allowed as
an additional ground for reviewing the decision in question.
13 Presumptions relating to the exercise of statutory powers
? The presumption that statutory powers must be exercised reasonably
l 13.1 Presumption against delegation of statutory functions

generally
Where Congress by statute has assigned the exercise of specified
functions, powers and duties to a specified official, that official alone must
exercise those functions except to the extent that Congress in the same
statute allows the official to delegate the same to another person. This
principle is embodied in the Latin maxim: delegatus non potestdelegare
l 13.2 Presumption
lawmaking powers
against
delegation
of
delegated
Where Parliament has delegated to a person or body the power to make

regulations, by-laws, rules, etc. such person or body must not delegate
the exercise of that power to another person or authority, or, at any rate,
must expressly approve the regulations, by-laws, rules, etc. before they
come into force.
l 13.3 Presumption that, statutory powers, including the
exercise of a regulation making power, must be exercised
intra-vires the enabling statute
This presumption cannot be overturned. A provision of subsidiary
legislation (a statutory instrument) is said to be ultra vires (beyond the
powers) of the enabling Act under which it is made, and will be declared
invalid by the courts, if that provision:
exceeds the powers which the enabling legislation expressly or by

necessary implication conferred on the person who made the
subsidiary legislation; or
purportedly overrides any provision of the enabling Act or any other

Act, unless the enabling Act expressly authorizes such overriding.
Note in particular the following points:
A power to raise revenue is not to be presumed, so for example a

local authority that has power to cause animal carcasses to be
inspected does not, in the absence of authority, have power to
charge a fee for inspection.
A power to impose penalties is not to be presumed (see

presumption A.8.3 above)
A power to regulate and control does not include the power to

prohibit altogether; this does not mean that subsidiary legislation
with regulation alone as its authorized purpose must be untainted
by any element or measure of prohibition, but rather the crucial
question about such legislation is not whether it contains a
prohibition affecting the activity liable to to be regulated, but
whether any ban embodied in it has such a character and extent
that the activity itself has been substantially prohibited ( S. V.
Perumal 1977 (1) SA 526 (N))
There is a presumption against the power to delegate, which is

expressed in the maxim delegatus non potestdelegare. It means
that a person or authority to whom a power has been delegated by
statute may not, in the absence of an express or necessarily
implied power to do so, delegate that power to anyone else.
A provision of an Act of Congress may also be held to be ultra vires the

Constitution, which is the supreme law.
l 13.4 Presumption against non-prescription of statutory fees
and that statutory fees should be reasonable
A power to levy fees for services provided under a statute must be
express, and the fees themselves should be prescribed by statutory
instrument and not be excessive, that is to say, must not incorporate any
element of profit. The requirement of reasonableness as to the level of
statutory fees is necessitated by the fact that the Government often has a
monopoly over the services that it provides to the public.
l 14 Presumptions relating to offences and penalties
l 14.1 Presumption against doubtful penalization and in favor
of the liberty of individual
Nobody suffers a detriment by the application of a doubtful (penal) law.
This presumption is the negative expression of the positive presumption
in favor of the liberty of the individual in a democratic society. It is also a
restatement in different terms of the principle of nulla poene sine lege,
that no persons life, freedom or property may be put in jeopardy except
under the clear terms of a law that existed at the time the alleged offence
was committed. For this reason, penal statutes will be very strictly
construed. It is almost impossible to secure a conviction for an offence
which is vaguely framed. The criteria for avoiding the presumption are set
out in Mullins v. District Judge Harnett and Others 1997/346 JR:
1 There must be express language for the creation of an offense

2 Words setting out the offense must be strictly interpreted
3 Fulfillment of the letter of the statutory conditions precedent to the
infliction of its punishment is required.
4 There must be insistence on a strict observance of technical
provisions concerning criminal procedure and jurisdiction
l 14.2 Presumption against punishment for offense without
prior conviction
The mere prescription by law that specified conduct is criminal does not
suffice to put a persons life, freedom or property in jeopardy: a person
may only be deprived of these things after due process of law, that is,
after trial and conviction by a court of law in which the case against the
accused person is proved beyond a reasonable doubt. See in this
respect item 3.3 of the Drafting Office Manual.
l 14.3 Presumption that mens rea is a requirement for criminal
liability
This means that there is an unassailable presumption* against imposing
absolute liability in criminal cases, i.e. liability even where the accused
person can prove any or all of the following circumstances (the first two
relating to mens rea, the last to voluntariness)
The absence of intentional wrongdoing; and
The absence of negligent wrongdoing; and
That his or her conduct was compelled by a human or natural

agency beyond his or her control
However, the presumption does not prevent Congress from legislating a

strict liability offense (that is, an offense imposing liability for the slightest
degree of negligence, the disproof whereof lies on the accused).
According to State v Zemura 1973 (2) RLR 357 (A), the courts may even
interpret a statutory offense to be a strict liability offense, if:
1 requiring proof of a mental element for that offense would render the
detection or prosecution of the offense impossible or practically
impossible; and
2 the offenses object would be defeated if proof of a mental element

were to be required; and
3 the penalty for the offense is not mandatory imprisonment or
imprisonment without the option of a fine.
Nevertheless, in deference to the principle against doubtful penalization,
drafters must not to allow so important a matter to be hostage to judicial
interpretation. If the legislator intends to create a strict liability offense,
this must be made clear by the use of express words contained in a
provision such as the following:
in a case (introductory clause to the legal action)Unless the

accused person proves beyond a reasonable doubt [or on a
balance of probabilities, depending on how strictly the legislator
wishes to frame the liability]that he or she took every reasonable
precaution [to prevent the occurrence of the act or omission
constituting the actus].
Stipulating a defense of due diligence* in a sub clause of the

clause containing the offense, i.e. ) A person is not guilty of the
offense specified in subsection (1) if he or she proves beyond a
reasonable doubt [or on a balance of probabilities, depending on
how strictly the legislator wishes to frame the liability] that he or she
took the following precautions [to prevent its occurrence of the act
or omission constituting the actus]
In addition, strict liability offenses are generally only appropriate for the
acts or omissions of corporate persons, unless there are compelling
public policy reasons for making individuals liable for such offenses.
The presumption that mens rea (legal intention) is required in statutory
crimes:
There is a presumption in favor of mens rea that is, even if the statute is
silent as to mens rea the courts will assume that some is required unless
there is evidence to the contrary; can be rebutted by express wording in
the statute or by necessary implication; is stronger where the offense is
truly criminal as opposed to merely regulatory. Factors such as the
stigma attaching to a conviction and the penalty imposed will be
significant there; may be rebutted by the subject matter of the offense, for
example where the prohibition relates to a grave social danger or matter
of public concern; is less likely to be rebutted where there is little
evidence that the imposition of strict liability will help to achieve the aims
and objectives of the legislation.
Presumption of Intent means a permissive presumption that a criminal

defendant who intended to commit an act did the act. For example, where
a defendant along with two codefendants was found guilty of felonious
possession of burglarious tools and implements with intent to commit a
felony, conviction will be imposed on no proof of a crime or an attempt to
commit a crime. Therefore, the court's view that no proof of a crime or an
attempt to commit a crime was necessary was proclaimed on a statutory
presumption of intent to commit a felony.
l 14.4 Presumption against reversing the onus of proof in
criminal cases
This presumption (also referred to as the presumption of innocence) is
codified in the laws. Some sections section allow exceptions to this
safeguard to the extent that the law in question imposes upon any person
charged with a criminal offense the burden of proving particular facts
(whether relating to mens rea or the actus reus), especially with regard to
facts within the exclusive knowledge of the person concerned. Where it is
desirable to shift the onus of proof in the manner allowed by the
Constitution, the drafter must do so in the clearest terms. Furthermore, it
is often desirable (depending on the context) to add that the person may
discharge this onus on a balance of probabilities to avoid any
suggestion that the onus must be discharged beyond a reasonable
doubt. Reversing the onus of proof in subsidiary legislation is never to
be countenanced unless specifically authorized by the Act under which
the subsidiary legislation is made. See in this respect item 3.4 of the
Drafting Office Manual.
l 14.5 Presumption that penalties ought to be proportionate to
the offense
Drafters must endeavor to ensure that the maximum penalty for any
offense (in terms of the fine and period of imprisonment) must represent
the appropriate penalty for the most aggravating occurrence of the
offense in question. Even though courts have a discretion to impose any
lesser sentence than the maximum which the statute allows (except in the
case of mandatory penalties), penalties must not, on the face of them, be
such as to induce a sense of shock. If a lower court imposes the

statutory maximum penalty in relation to an offense whose factual details
do not appear to justify such penalty, an appellate court will most likely
find such a sentence to be in violation of section 15(1) of the Constitution,
which bans inhuman or degrading punishment:
l 14.6
Presumption against mandatory penalties
Mandatory penalties may offend against the doctrine of the separation of

powers if they completely remove from the judiciary the power to exercise
a discretion on the imposition of penalties However, this presumption
can be overturned by statute under certain specified conditions: see S v
Arab 1990 (1) ZLR 253.
l 14.7 Presumption against double penalization for the same
actus reus
See State v Gabriel 1970 RLR 251. This presumption is also known as
the principle against double jeopardy, which states that no person shall
be in jeopardy of being tried for and convicted of the same offense more
than once. However, civil liability is not excluded by the penalization of
the same actus reus.
l 14.8 Presumption that criminal penalties are no bar to civil
remedies or disciplinary proceedings
The imposition of a statutory criminal penalty for an offense shall not be
construed to deprive an injured person of the right to recover from the
offender civil damages sustained by reason of the offense. Similarly, if the
offender is a member of a disciplined force or a statutory professional
body which also punishes the act for which the offender has been
convicted, such conviction is no bar to proceedings by the force or body
in question. This presumption holds even where the offender is acquitted
by the criminal court, because the degree of proof is different in the civil
court or disciplinary authority i.e. proof on a balance of probabilities.
? Presumption that when
compensation will be paid
person
is
deprived
of
his
property,
When a statute deprives a person of property, there is a presumption that

compensation will be paid. Unless so stated it is presumed that an Act
does
not
interfere
with
rights
over
private
property.
As stated in Article 17 of the Universal Declaration of Human
Rights (UDHR) enshrines the right to property as follows:
1 Everyone has the right to own property alone as well as in

association with others.
2 No one shall be arbitrarily deprived of his property.
Thus, in connection with the Presumption of Compatibility with

International Laws, it is also deemed pre-set that when a person is
deprived of his or her property, compensation will be supplementary.
l 14.9 Presumption that powers of search and detention of
persons and property to be exercised under warrant
Where an enactment confers a power on the police or any other official to
enter and search premises or to search persons, or to seize any thing,
document or article found during the search, or to arrest or detain
persons, it is to be presumed (in the absence of the consent of the person
affected by the power) that such power is exercisable only after obtaining
a warrant from a court or Justice of the Peace issued upon reasonable
suspicion that an offense has been, is being or is about to be committed.
An Act of Congress may permit warrantless, seizures and detentions on
certain specified grounds (see item 5 of Checklist of Substantive Drafting
Requirements).
l 14.10 Presumption in favor of the privilege against selfincrimination
and
against disclosure
of privileged
communications
Where an enactment confers a power on the police or any other official to
question any person, whether in the course of an authorized search of a
premises or after the detention of a person or during a public hearing or
other formal inquiry, the privilege against self-incrimination and the
privilege against disclosure of inter-spousal and attorney-client
communications may be successfully invoked by the person subjected to
questioning, even where the statute expressly penalizes the refusal to

answer any questions, unless the statute also expressly excludes such
privileges. However, the legislature should never exclude such privileges
except on compelling public policy grounds (which must be justified by
reference to any one or more of the derogable grounds allowed by the Bill
of Rights, that is, the interests of defense, public safety, public health,
public morals or public order or on some other specified derogable
ground allowed by the Bill of Rights). Even then, it is questionable
whether evidence obtained through the statutory exclusion of the privilege
against self-incrimination can be used in a criminal trial of the person who
answered any questions to his or her personal prejudice.
l 14.11 Presumption against immunity from prosecution.
Complete and unqualified impunity is contrary to public policy and cannot
be countenanced. Accordingly, immunity from criminal prosecution will
never be inferred by the courts. Such an immunity can only be:
a legislated by Act of Congress in the form of :
iii
a statutory amnesty (if relating to past criminal acts

only);or
iv
a statutory immunity properly so-called (if it covers

specified criminal conduct prospectively as well as, or to the
exclusion of, past criminal acts); or
a granted by way of a Presidential (or constitutional) amnesty (or

pardon);
A statutory amnesty must:
1 be unambiguously expressed by the Act of Congress conferring the
amnesty;
2 not relate to conduct already adjudicated in a criminal court; and
3 relate to past acts only, not future ones (this requirement also applies
to a pardon); and
4 be so framed that, in relation to the specified person(s) or classes of
persons, and in the specified circumstances, the amnestied conduct is
not deemed to be criminal conduct and therefore not subjected to the
exclusive constitutional discretion to prosecute such conduct; and
5 be unconditional, that is, the amnesty must not be dependent on the

beneficiary doing certain things in the future in order to qualify for the
amnesty.
a Clemency Order may be unconditional or conditional, that is, the

Presidential amnesty may depend on the beneficiary doing certain
things in the future in order to qualify for the amnesty or pardon; this is
because, although such conditionality may render the amnestied
conduct potentially criminal, the Presidential prerogative of mercy
overrides the exclusive constitutional discretion to institute criminal
proceedings at any stage.
for the same reason, a Clemency Order does not need to be so

framed that the amnestied conduct is deemed to be not criminal.
A statutory immunity covering prospective as well as retrospective

criminal acts, or prospective criminal acts only, may only be legislated if:
1 conditions 1, 4 and 5 above relating to a statutory amnesty are met; it

does not relate to conduct already adjudicated in a criminal court; and
2 must be limited to cases where the act or omission constituting an
essential element of the offense in question was done in good faith
and for the purposes of or in connection with some specified end
3 must never entirely exclude the possibility of recourse to the civil
courts on the part of any person who has suffered a civil wrong as a
result of the immunized action (although the immunized person may
also be immunized against civil liability to the extent specified in
presumption A.21below)
4 to the extent that it is prospective in character (an example where a
prospective immunity may be justified is where health workers are
granted an immunity against charges of assault or unlawful detention
in order to quarantine and vaccinate people during an ongoing
medical emergency), the immunity:
a must never be granted for crimes which by their nature or by the
rules of international customary law it would be inconceivable to
immunize anyone against, such as sexual crimes, genocide,
slavery and torture
b should desirably be circumscribed by a sunset clause, allowing

the President by statutory instrument or Parliament by a special
resolution (or preferably either the President or Parliament) to
terminate the immunity without further ado.
In addition, drafters who are instructed to draft statutory amnesty or
statutory immunity provisions must satisfy themselves that
1 the amnesty or immunity sought is justified by countervailing public
policy considerations that are applicable to the case in question;
and
2 the countervailing public policy considerations:
3 are justified by reference to any one or more of the general
derogations to the Bill of Rights (defense, morality, public
health, public order, etc.); and
4 are otherwise reasonably justifiable in a democratic society.
l 14.12 Presumptions about the prosecution and punishment
of corporate bodies
Where a corporate body is prosecuted for a criminal offense:
1 the directors of that body must be cited together with that corporate
body in the indictment
2 however, the directors or employees thus cited are presumed to be
acting in a representative capacity only on behalf of the corporate
body, and accordingly cannot be punished in their personal
capacities, and in particular cannot be imprisoned, nor fined in
addition to any fine imposed on the corporate body. Although the
Criminal Law Code sought to overturn this presumption by imputing
the conduct and intention of the corporate body to every director
or employee actually responsible for that conduct or actually
forming that intention shall be liable to be prosecuted and punished
personally for the crime concerned), this general provision runs
counter to the presumption of innocence, the presumption in favor
of liberty (presumption 5 above) and against doubtful penalization
(because in many instances the directors or employees will be
acting in the interests of the corporate body, not their personal
interests, see presumption 14.1 above); accordingly the courts will
be reluctant to punish in their personal capacities directors and
employees who are cited in the indictment of a corporate body.
There may be good public policy grounds for holding the directors
of a corporate body jointly and personally liable for the offenses of
the corporate body, but such liability must never be assumed by

implication in an enactment. Accordingly, where the drafter is
satisfied that such public policy grounds exist, he or she must
expressly provide for the punishment of the directors in question in
their personal capacities, whether alternatively or additionally to
the punishment of the corporate body itself. Even in such cases,
however, the enactment must expressly allow a defense to
individual directors (or employees) to the effect that if a director
(or employee) of the corporate body took no part in the conduct
subject to prosecution (the proof whereof shall lie on him or her) he
or shall not be held criminally liable therefor. See item 11(f)(iii) of
theChecklist of Substantive Drafting Requirements.
l 14.13 Presumption about compounding of offences and
condonation of statutory breaches
Statutory provisions that grant a power to an official to compound an
offense potentially offend against four fundamental principles:
The fundamental constitutional right of every person to have the

existence or extent of his or her civil rights or obligations
determined by a court or other adjudicating authority that is
independent and impartial;
The constitutional competence to institute, take over or discontinue

criminal proceedings;
The fundamental principal of natural justice that no one should be

a judge in his or her own cause (by making the official prosecutor
and judge of the compoundable offense).
Such a power bestows upon an executive branch official a

discretion that should ordinarily be exercised by a court.
Such provisions are permissible if the law in question specifically applies

or adapts the deposit fine provisions of the Criminal Procedure and
Evidence Act to the payment of deposit fines under the law. These
provisions anticipate any objections based on the principles above
mentioned by:
1 requiring that the offender concerned must have made an
admission of guilt; and
2 enabling a court of competent criminal jurisdiction to review the

payment of the deposit fine, and empower the court to substitute its
own judgment in the matter in appropriate cases.
Alternatively, compounding is permissible if the offense is framed as a
civil infringement of the law. This enables the official concerned to assess
an appropriate monetary penalty not exceeding a specified maximum
amount and to impose it with or without any admission of liability on the
part of the offender. If the civil penalty is imposed without an admission of
liability by the offender, or the offender admits liability but disputes the
amount of the assessed civil penalty, the statute in question must make
provision for a court of civil jurisdiction to determine the liability or assess
the appropriate penalty, as the case may be.
Similar objections to the foregoing may be raised where an executive
branch official is endowed with the power to condone a breach of the
law, but the objections are less serious because in such cases the
offender benefits from the condonation by being absolved completely.
Nevertheless, condonation provisions may be open to additional objection
that the official in question may exercise his or her power arbitrarily in
favor of some persons to the exclusion of others. On this question, be
guided by item 10(h) of theChecklist of Substantive Drafting
Requirements.
l 14.14 Presumption about contracts entered in violation of the
criminal law
Read this together with Presumption A.23.4 below. Drafters must be alert
to the possibility that persons may conclude contracts (either wittingly or
unwittingly) that are impugnable on either or both of the following
grounds: (a) the contract may be illegal by virtue of constituting, or being
entered in furtherance of, a criminal offense (such as a contract of
betrothal with or between two minors, or an agreement to deliver
contraband goods); or (b) the contract is contrary to public policy (such as
a promise to pay a sex worker, or to pay a gambling debt to an
unregistered casino, or a claim for revocation of a donation made by a
paramour in contemplation of his lover divorcing her current spouse and
marrying the paramour). In such cases the in pari delicto rule will apply to
the unlawful contract, namely that, unless public policy or the justice of the
case demands it, the loss of anything (money, goods or incorporeal rights)
delivered in pursuance of the contract will lie where it falls, that is to say,
the party who takes delivery of the thing keeps possession of it. The
courts have ruled that certain conditions must apply before the rule will be
applied, namely that:
1 an illegal agreement which has not yet been performed (wholly or
partly) will never be enforced by the courts; and
2 the thing must be in the actual possession of either of the parties
seeking to keep it, without requiring the intervention of the court to
recover it from a third party or restore it to either party
Where the foregoing conditions have been met, the possessor of a thing
obtained pursuant to an unlawful contract will generally be allowed to
keep it. Public policy or the justice of the case may, however, persuade
the courts to relax the rule in favor of the party seeking to recover the
thing. Two major considerations will sway the courts in this direction,
namely:
1 the contract in question is by its nature so illicit that public policy
will, on balance, be more prejudiced by allowing the possessor to
keep the thing than by ordering its surrender to the other party; or
2 if the contract is not so illicit that a court cannot look at it, it may
order recovery of the thing to prevent the possessor (who may not
have paid or done anything at all to honor his or her part of the
bargain) being unjustly enriched (on the basis that, if the
contract is a crime in addition to being a nullity, it was sufficient
punishment for the claimant to suffer the criminal penalty without
suffering further loss)
The significance of this rule for drafters is that they must consider whether
it is possible that the Legislature may contemplate overturning this the
application of this rule in a particular set of circumstances, especially if
the public policy considerations it wishes to advance may not be obvious
to the courts unless they are expressed in the statute itself. See in this
regard by item 10(h) of the Checklist of Substantive Drafting
Requirements.
? Statutory Presumption means a rebuttable or decisive presumption created
by a statute. It does not shift the burden of proof. It is merely an evidentiary
rule whereby the accused must go forward with an explanation to rebut the
permissive presumption. A statutory presumption cannot be sustained:
If there be no rational connection between the fact proved and the

ultimate fact presumed; or
If the inference of the one from proof of the other is arbitrary because of
lack of connection between the two in common experience.
? Morgan Presumption is a presumption that shifts the burden of proof. It

requires that the person against whom it operates to produce sufficient
evidence to outweigh the evidence that supports the presumed fact. As in
requiring a criminal defendant who was arrested while in possession of an
illegal substance. It is thereby presumed to have knowingly possessed it. To
produce sufficient evidence to entitle the juryneed to find that the defendant's
evidence outweighs the evidence of knowing possession.
? Heeding Presumption means a presumption that if the manufacturer of a
product had given a warning label then the consumer of such product would
have followed the warning. In other words, a heeding presumption allows the
fact-finder to presume that the person injured by product use would have
heeded an adequate warning, if given. Therefore, a heeding presumption
shifts the burden of production from the plaintiff to the manufacturer, who
must rebut the presumption by proving that the plaintiff would not have
heeded a different warning. It is a rebuttable presumption.
? Presumption of Innocence
This is a presumption commonly used in criminal law. It says that one is
considered innocent until proven guilty. In the Philippines, the presumption of
innocence is a legal right of the accused in a criminal trial that is why
the burden of proof is thus on the prosecution, which has to collect and
present enough compelling evidence to convince the trier of fact since the
accused guilt must be based on beyond reasonable doubt. If reasonable
doubt remains, the accused is to be acquitted.
A popular phrase for this presumption is the phrase innocent until proven
guilty which is coined by the English lawyer, Sir William Garrow (17601840).
l 15 Presumption against injustice and unreasonableness
The legislature is presumed to be reasonable. So:
1
A statute is to be construed so as to impose the least possible
burden upon those affected by it. Statutes that encroach the peoples rights,
whether as regards persons or property, will be strictly construed.
In regard to property rights, there is a presumption that expropriation

should be accompanied by compensation. If a law proposes to
expropriate any person, it must either provide for compensation in the
manner provided in the Constitution.
In regard to taxing statutes, see presumption A.23.4
In cases of doubt the most beneficial interpretation will be adopted.
The Statute law, like the common law, is not presumed to require the
impossible.
2
The right to legal representation before any adjudicative or quasijudicial body (other than any of the established courts) is not excluded
unless there is express provision in the Act of Congress to that effect. However,
no such exclusion should be made where any matter is to be heard by a court of
inherent jurisdiction, or any of the established courts of limited jurisdiction.
Presumption that a statute is not intended to be unreasonable or to

cause injustice
The cornerstone of this presumption is the natural law theory that law should be
just1. Where a statute is clear the court must give effect to the intention of the
legislature however harsh its operations may be to individuals affected thereby.
Where however two meanings may be given to a section, and the one meaning
leads to harshness and injustice, Whilst the other does not, the court will hold
that the legislature rather intended the milder than the harsher meaning. In view
of the doctrine of separation of powers, the presumption is clearly rebuttable.
This presumption is the basis of the following rules:
The legislature is presumed not to have intended to deprive an individual
of existing vested rights.
Taxation and penal statutes should be strictly construed.

Presumption against Intending what is not convenient
1
It is presumed that the intention that is most in accord with convenience,

reason, justice and legal principles should, in all cases of doubtful significance,
be presumed to be the true one (Maxwell, 1969: 199). It must be understood
that the intention of the authors of the law does not intend the law to be
inconvenient or unreasonable. The question of inconvenience or
unreasonableness must be looked at in the light of the state of affairs at the date
of the passing of the statute, not in the light of subsequent events (Maxwell,
1969: 199).
l 16 Presumption in favour of natural justice or due process
This is a special case of the foregoing presumption. When an enactment
confers quasi-judicial powers on a person or authority, or empowers such person
or authority to exercise a power that may diminish or deprive another persons
rights, then it is presumed that those powers must be exercised in accordance
with the rules of natural justice, that is to say, the person affected by exercise of
a statutory power
should receive prior notice of the action
should have an opportunity to be heard (the audi alteram partem rule).
should have an opportunity for an impartial hearing

There are two main principles of natural justice:
Audi alteram partem rule (a person must be given the right to be heard
before an adverse decision is taken)
Nemo judex principle (a person must not be judge in his own cause)
The presumption that administrative tribunals and other statutory bodies will
act in accordance with the principles of natural justice.
l 17 Presumption that the lawmaker does not intend absurd or
anomalous results
This is a corollary of the Golden Rule below mentioned. This presumption tells
the courts that when interpreting statutes they should avoid a result that is:
unworkable or impossible
inconvenient
anomalous or illogical
futile or pointless; or
l artificial.
Accordingly, if two or more interpretations of a provision are possible, the one
rendering the provision valid or effective should be preferred over a competing
interpretation that results in ineffectiveness or invalidity or confusion. The court
must not, however, adopt an interpretation that would violate a fundamental
principle of the common law for example the principle nullum crimen sine lege
(in order to attract punishment, conduct must be expressly defined as a crime by
the law). This presumption, like others, requires a judicious weighing up of
competing interests in order to ensure that justice is done to the parties
according to both the letter and the spirit of the law. There is a corollary to this
presumption: words in a statute are not to be regarded as tautologous or
meaningless. But as one learned author says:
Regrettably tautology is not uncommon in legislation, and the
interpreter must of necessity take this into account when confronted with
phrases or words that are in essence repetitious.
In ascertaining the intention of the General Assembly in the enactment of a

statute the following presumptions, among others, may be used: (1) That the
General Assembly does not intend a result that is absurd, impossible of
execution or unreasonable. (2) That the General Assembly intends the entire
statute to be effective and certain. (3) That the General Assembly does not
intend to violate the Constitution of the United States or of this Commonwealth.
(4) That when a court of last resort has construed the language used in a
statute, the General Assembly in subsequent statutes on the same subject
matter intends the same construction to be placed upon such language. (5)
That the General Assembly intends to favour the public interest as against any
private interest.
l 18 Presumption that the law is a complete system without lacunae

The law is presumed to be a complete self-sufficient body of statutory and
common law rules. An apparent lacunae must be resolved in favour of vested or
individual rights. Thus, if a statute provides for a Registrar to approve
applications for citizenship by registration, and the Constitution subsequently
provides for such applications to be approved by a constitutional body, leaving

the composition and procedure of that body to be regulated by an Act of
Congress, the Registrar may continue to act as the approving authority until
such time as relevant Act of Congress is enacted.
l 19 Presumption that the lawmaker does not intend to alter the existing
law more than is necessary
This applies to alteration of both the common law and the statute law. So a
statute will not be presumed to have amended a previous statute that is still in
force except by necessary implication. Common law is always favoured by
courts unless it is expressly or by necessary implication overridden by statute.
On the other hand, in the event of any direct conflict between Statute and
Common law, Statute law always prevails.
(Presumption against the alteration of the common law more than is
necessary)
In the absence of clear language, the courts will not rule that the
legislature intended a significant departure from the common law. Statute
should be construed in conformity with the common law rather than
against it.
l 20 Presumption against the State being bound by statute
It is presumed that the State is not bound by its own statutes, so if there is an
intention that the State should be bound by an enactment, the enactment must
state such expressly. This presumption is no longer applied in an absolute
sense. Accordingly, even without an express provision subjecting the State to an
enactment, some enactments may be interpreted as binding the State by
necessary implication.
l 21 Presumption against blanket immunity from civil suit.
Complete and unqualified immunity from civil suit is contrary to public policy and
potentially transgressive of the rights and freedoms of others. Nor can they be
so framed as to oust entirely the jurisdiction of the courts or the constitutionally
guaranteed right of persons to be afforded the protection of the law. Such an
immunity provision, if it is legislated:
must be unambiguously expressed by an Act of Congress;
must generally be granted only to a statutory body and its members,

employees or agents acting in good faith and within the scope of their
employment
must not generally be granted to individuals, even if acting in good faith

in a specified official capacity, if they can be given an indemnity instead.
must never exclude liability for gross negligence or breach of contract,

even if committed in good faith.
should desirably (except in the case where it is granted to a statutory

body and its members, employees or agents acting in good faith and
within the scope of their employment) be circumscribed by a sunset
clause, allowing the President by statutory instrument or Congress by a
special resolution (or preferably either President or Congress) to
terminate the immunity without further ado.
l 22 Presumption against blanket indemnity

Blanket indemnity clauses (clauses compensating or reimbursing defendants for
civil or criminal liabilities), whether made in favour of individuals or public
officials or bodies, are contrary to public policy for two main reasons: (1) when
granted to public officials or bodies, they have practically the same effect as
blanket immunity clauses, in that they confer virtual impunity on the actions of
public officials and bodies who should be accountable to the public for their
actions; and (2) the potentially unlimited indemnification expenses constitute an
abuse of public funds. Such an indemnity provision, if it is legislated, must be
limited to indemnifying the individuals, public officials or statutory bodies
concerned against any costs incurred by them in
defending any proceedings, whether civil or criminal, which arise out of

their functions in an official or statutory capacity in which judgment is
given in their favour or they are acquitted, as the case may be (if civil
proceedings are unsuccessfully defended, the indemnity should not be
automatic, but be paid at the discretion of the State or corporate body
concerned); and
making any application to court in an official or statutory capacity or on

behalf the State or the statutory body in question.
In addition, where the indemnity sought is not confined to acts or omissions:

1
. that were done or omitted to be done by individuals on behalf of the
State or a statutory corporation; or
2
. that were suffered by individuals in consequence of anything done or
omitted to be done by or on behalf of the State or a statutory corporation drafters
who are instructed to include such clauses must first satisfy themselves that
3
. the indemnity sought is justified by countervailing public policy
considerations that are applicable to the case in question; and
4
. the countervailing public policy considerations:
5
. are justified by reference to any one or more of the general derogations
to the Bill of Rights (defense, morality, public health, public order, etc.); and
6
. are otherwise reasonably justifiable in a democratic society
The presumption that no person shall be allowed to gain advantage from his
wrong.
l 23 Other presumptions relating to public and legal policy
l 23.1The presumption of Omnia rite etc.
The maxim Omnia rite esseactapraesumuntur (All official acts are
presumed to have been lawfully done) is also known as the presumption
of regularity: where the State is required to perform anything in its
administrative capacity, it is always presumed to have done so (a) in good
faith and (b) with due propriety. It is because of this presumption that it is
generally not necessary to include in a statute words to the effect that
non-compliance on the part of a State official with any internal formality
[i.e. a formality to which, ordinarily, that official alone is privy] required to
be fulfilled in connection with the performance any official action, will not
invalidate that action
Presumption of Regularity.
It is a principle applied in evidentiary evaluation that transaction made in the
normal cause of business are assumed to have been conducted in the usual
manner unless there is evidence to prove otherwise.
l 23.2 Presumption about validity of acts of employees of the

State where the validity of their title to office is questioned (de
facto officers doctrine)
This presumption is somewhat related to the foregoing one. While the
statutory requirements for the appointment and qualifications of members
of
statutory
bodies
are
to
be
strictly
construed
(see
presumptionB.6.4below), the same presumption does not apply to public
officers or other employees of the State, including judges and legislative
branch officers. In the United States or Philippines, this presumption is
called the de facto officer doctrine. It was developed to protect the
public from the chaos and uncertainty that would ensue if actions taken by
individuals apparently occupying government offices could later be
invalidated by exposing defects in the officials' titles. The doctrine has
generally been applied to individuals
1
. who are in possession of an office and performing the duties of the
office, which, to all appearances, the officer in question has a right to hold;
2
. the exercise of whose official functions involve the interests of the public
and third persons;
3
. whose appointment or election to the office in question was vitiated by
reason of some want of qualifications attaching to the office, or by some defect
or irregularity in the manner of the appointment or election, but without that
ineligibility, defect or irregularity being known to the public at the time the official
in question exercised his or her public functions (or at any rate, without the issue
of the ineligibility, defect or irregularity being litigated and determined by court at
the time the official in question exercised his or her public functions)
Even where the tenure of a public officer is invalidated by the courts on
the basis of ineligibility, or defect or irregularity in his or her appointment
or election, his or her previous acts exercised or performed by virtue of
that tenure are not thereby invalidated. This doctrine has minimal impact
insofar as legislative drafting is concerned. Only in very exceptional
circumstances should it be considered necessary for this presumption be
restated, much less overturned, by an express provision in a statute.
Sometimes it may be considered expedient to ratify the acts of an
officeholder whose eligibility, appointment or election has been or is likely
to be impugned by the courts, in which event a Validation Bill or
validation provision should be enacted.
l 23.3
The presumption of In bonampartem
The legislature is presumed to intend that only lawful acts are referred to
in all its laws. This is known as the in bonampartempresumption.
l 23.4 Presumption that taxation statutes will be interpreted
against the fiscus
Statutory provisions that impose pecuniary burdens, such as taxing
statutes, will be strictly construed by the courts, i.e. a court will only
decide that a tax is payable when satisfied that the language of the
statute has clearly imposed that tax in the circumstances of that particular
case before it; in a case where the statute is ambiguous on the issue
whether a potential taxpayer is indeed to be subjected to a tax, the statute
be interpreted contra fiscum (against the fiscus) in favour of the potential
taxpayer.
l 23.5 Presumption that statutory rights override conflicting
private common law ones
Statutory provisions will override contractual ones (except those that
vested prior to the statute) to the extent that the contractual provisions are
in conflict with them. However, if the statute does not expressly forbid
such agreements, a person can agree to waive (contract out of) the
benefits conferred on him or her by the statute, unless it can be shown
that such agreements are, in the circumstances, opposed to public policy.
Whether or not public policy is in issue depends on whether the
legislature expressly or implicitly intended the statute to remedy a public
or social mischief, or to strengthen a weaker party to a transaction, rather
than simply bestow an advantage or benefit on one or another party.
Thus no person can contract out of a minimum wage statute that is
intended to prohibit exploitative labour contracts.
It refers to a presumption that unless there is a specific, applicable statute
in another state, a court will presume that the common law has developed
elsewhere identically with how it has developed in the court's own state,
so that the court may apply its own state's law.
l 23.6
Presumption of the validity of statutes
A statute is presumed to be valid until declared otherwise by a court of

law; accordingly, until such time, it must be complied with even if, on the
face of it, it appears to be invalid.
l 23.7 Presumption in favour of the severability of statutory
provisions to save validity
This is a corollary to the previous presumption of validity. It provides that,
if any provision of a statute or the application thereof to any person or
circumstance is held invalid, the remainder of the statute, and the
application of such provisions to other persons or circumstances, shall not
be affected thereby (unless the court finds that the remaining provisions
of the statute are so essentially and inseparably connected with, and so
depend on, the void provision or application, that it cannot be presumed
that the legislature would have enacted the provisions without the void
one; or unless the court finds that the remaining provisions, standing
alone, are incomplete and incapable of being executed in accordance
with the legislative intent).
l 23.8
Presumption against ignorance of the law
The Legislature presumes that everyone knows the law i.e. ignorance or
mistake of the law is no excuse (but it may, in certain cases, be
mitigating). Particular statutes may depart from this presumption by
express words to the contrary.
l 23.9 Presumption of legal incapacity on the part of certain
classes of persons
Minors, persons of unsound mind, insolvents and prodigals are presumed
not to be as capable in all respects as other persons of exercising rights
or fulfilling obligations under the law, nor to be equally culpable as other
persons for failing exercise or fulfil such obligations. Accordingly, minors
should generally be assisted by their guardians in exercising their rights
or fulfilling their obligations, and similarly the curators or legal
representatives of other persons without full legal capacity must act on
behalf of such persons. As regards the criminal liability of such persons,
this has been codified in the Criminal Law Code. There is accordingly no
need to restate in a statute any of the exceptions to civil and criminal
liability made on behalf of such persons, unless it is desired to depart

from this presumption in certain very limited circumstances. For example,
the lawmaker may wish to capacitate minors above a specified age where
the nature of the transaction is such that the assistance of the guardian
may be superfluous, or where there are good public policy grounds for
excluding the rights of the guardian.
l 23.10 Presumption against monopolies
A monopoly power (that is, a power to restrict a persons freedom of
contract in any way) is never to be inferred, but must be expressly granted
by or under the authority of an Act of Congress.
l 23.11 Presumption that the courts must take judicial notice of
certain facts
A court will take judicial notice of a fact (that is, recognize it without
requiring the production of any proof in court in support of it) that is
indisputable by common notoriety, e.g. commonly known facts of history,
geography or science that are capable of accurate and ready
determination by reference to sources whose accuracy cannot reasonably
be challenged. It must judicially notice any case law precedents within
the territorial jurisdiction where it sits, and any enactments published in
the Gazette, but not foreign laws or enactments, whose existence and
content need to be established by expert evidence. This presumption
may be modified in a statute, either by requiring a court to take judicial
notice of something that is not ordinarily held to be indisputable by
common notoriety or by requiring a court not to take judicial notice of
something that is ordinarily held to be indisputable by common notoriety
of the Criminal Law Code.
l 23.12 Presumption that costs follow the event
In general, in civil litigation arising out of common law or statutory claims,
it is presumed that costs follow the event, in other words that the
successful party to litigation is entitled to seek an order from the court,
tribunal or quasi-judicial authority that the unsuccessful party must pay
the first-mentioned partys recoverable costs of litigation (recoverable
costs being limited in most cases to the fees and charges of the
successful legal practitioner, and witnesses allowances, including fees
paid to expert witnesses). A statement in a statute empowering a court,
tribunal or quasi-judicial authority to make such order as to the costs of

any statutory civil litigation as appears to it just or just and reasonable
or just and fair is usually interpreted as a restatement of the foregoing
rule. If the issue of civil litigation arises in the context of a statute,
drafters should be hesitant to depart from this rule, unless there are good
public policy reasons for legislating a different rule in the statute in
question. Such public policy considerations may require the risks of
statutory litigation to be reduced requiring each party bear its own costs,
or increased by making the unsuccessful party bear certain additional
costs not allowed by the ordinary rule. Public policy may also require
that, in certain types of statutory claims, claims for costs be limited to:
1
the scale of costs applicable to the inferior courts (e.g. a person
instituting proceedings under this Act shall not recover any costs exceeding the
amount of the costs which he or she would have recovered had he or she
instituted the proceedings in a magistrates court)
2
very specific items only (for instance, in the Small Claims Courts Act,
which is intended to facilitate access to justice by small claimants, recoverable
costs are limited to the fee for the summons and the fees and expenses of the
messenger).
l 23.13 Cost recovery for remedial action undertaken by public
authorities not to be presumed
Whenever the State, an arm of the State, local authority or statutory body
undertakes any work in pursuance of its public or statutory functions that
is occasioned by any default or breach of the statute in question on the
part of any person (the defaulting person), it is not to be presumed that
the costs of such work to the State, local authority or statutory body can
be recovered from the defaulting person.
l 23.14 Presumption about the destination of public moneys
It is presumed that all public moneys* received or collected by any public
authority, whether in the form of taxes or fees or otherwise, are to be
credited to the Consolidated Revenue Fund*, unless a different fund or
destination for the public moneys in question is expressly permitted by or
under an Act of Parliament
B. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY

INTERPRETATION THAT ARE INTRINSIC TO STATUTORY TEXTS
l 1 General rules and presumptions about the meanings of words

and phrases
Presumptions of general application
These are fundamental legal principles that should always be kept in

mind, even where the language is clear and unambiguous. They are
presumed to apply unless excluded by express words or necessary
implication. When all relevant contextual considerations have been duly
weighed, the interpreter should again test his conclusions in light of the
presumptions.
Presumption that all Laws bear a Meaning

It is presumed that no words of a statute are enacted without a reason.
This is so as not to waste the words used in a statute. It would be absurd
for the legislative body to make a law that for some of the words to be
meaningless.
The presumption is illustrated (US jurisprudence) in the case of Cork Co
Council v Whillock, which turned on the interpretation of the Malicious
Injuries Act, 1981. O'Flaherty J applied a literal interpretation to the
section according to the ordinary and natural meaning of its words. He
also stated that "a construction which would leave without effect any part
of the language of the statute will normally be rejected." Egan J
endorsed the same principle, stating: "There is abundant authority for the
presumption that words are not used in a statute without a meaning and
are not tautologous or superfluous, and so effect must be given, if
possible, to all the words used, for the legislature must be deemed not to
waste its words or say anything in vain."
l 1.1
A word or expression is presumed to have the same
meaning wherever it appears in an enactment.
If a word or expression appears more than once in an enactment, it is
presumed to have the same meaning.
l 1.2
Different words in a statute are to be given different
meanings.
This is the converse of the above presumption.
l 1.3
Presumption that the Legislature intends that words are
to be given their ordinary dictionary meaning.
The Legislature intends that words are to be given their ordinary
dictionary meaning (this presumption may be overturned by the use of a
definition in the statute that limits, broadens or varies the ordinary
dictionary meaning of the word or phrase defined.
Use of And/or. The use of the conjunctive and in a list means

that all of the listed requirements must be satisfied. The use of the
disjunctive or means that only one of the listed requirements need
be satisfied. Courts do not apply these meanings inexorably,
however, if a strict grammatical construction will frustrate evident
legislative intent, a court may read and as or, or as and.
Furthermore, statutory construction can render the distinction
secondary.
Use of shall/ may. Shall is mandatory and may is permissive.

Moreover, these words must be read in their broader statutory
context. When these two words are both used in the same
provision, their distinction may be underscored.
Singular/plural. It is basic in statutory construction that the singular

includes the plural. According to the Dictionary Act, unless the
context indicates otherwise, words importing the singular include
and apply to several persons, parties, or things; words importing
the plural include the singular.
l 1.4
Presumption that the legislature is aware of the existing
judicial interpretation given to words and provisions.
Where the courts have construed the language in a statute, the
legislature is presumed to intend that the same construction is to be
placed upon such language in subsequent statutes on the same subject
matter.
l 1.5
The presumption Omnemaius in se minus continet
It is presumed that in interpreting statutes, the less is always included in

the greater, and the particular is always included in the general.
Accordingly, when a power to grant or refuse is conferred upon a statutory
body, that power is taken to include a power to grant subject to conditions,
even if the latter is not expressly written into the statute.
l 1.6
The Expressiouniusestexclusioalterius Rule.
The courts will generally construe a statutory list of words or terms

(whether belonging to the same class or not) to be exhaustive rather than
illustrative. In accordance with this rule, any omission from that list will be
construed as a deliberate omission on the part of the Legislature, unless
omitting the item in question from the list leads to a manifest absurdity.
The presumption can be avoided by the use of phrases like including but
not limited to......
l 1.7
The Ejusdem Generis (Of the same kind) Rule.
Generally speaking if a general word or phrase precedes or concludes a

list of specific words or phrases related in meaning to that general word or
phrase, the legislature is often presumed to have intended that the
general word or phrase is limited in scope to the same class as the
specific words or phrases that follow or precede it (thus the phrase
vehicles such as cars, motor cycles and omnibuses will not be construed
to include animal-drawn carts or other vehicles not driven by their own
power). This rule is avoided by including in the list at least one item of
every class intended to be encompassed by the general word or phrase.
l 1.8
The Reddendosingulasingulis Rule
Where a complex legislative sentence has more than one subject and
more than one object, it may be necessary to read the sentence
distributively by matching each object to its appropriate subject; similarly,
if two or more verbs (or adjectives, or other parts of speech) in the same
sentence are followed by two or more subjects, it may be necessary for
the appropriate part of speech to be matched to its appropriate subject in
order to arrive at a sensible meaning of the sentence. E.g. No one shall
draw or load a sword or gun: draw or load can reasonably be applied to
the subject gun, but only draw can be applied to sword. The phrase
as the case may be can be usefully employed to alert the courts to apply
this rule, e.g. Members of the Board shall be entitled to the
reimbursement of their reasonable travelling expenses by the Corporation
or the State, as the case may be: i.e. members of the Board in the
employ of the State will be reimbursed by the State, while other members
will be reimbursed by the Corporation
l 1.9
Presumption about gender.
This is a statutory presumption created by Rules as to gender and

numbers - of which references to persons in statutes, unless otherwise
expressly or implicitly provided, include male, female and corporate
persons.
l 1.10 Presumptions about peremptory and directory statutory
provisions
The following presumptions are applicable in determining whether a
particular statutory injunction is peremptory (or mandatory or imperative)
or simply directory (permissive, discretionary or optional):
I.
Presumption that shall (or must) indicates a peremptory provision, not a

directory one: Though this rule holds true for most cases, it is not an absolutely
inflexible one, as the following considerations illustrate.
The use of shall can, in very exceptional circumstances, be interpreted

as may (in other words, as not requiring compliance with the injunction
in question), if the latter appears to a court to be more conformable to the
intention of the Legislature or the fundamental rights of individuals, or
even (taking into account other indications that the legislature did not
intend that invalidity should result merely for want of compliance with an
apparently peremptory statutory formality) where the provision in question
is purely formal in nature. In particular, where the peremptorily worded
statutory injunction is directed at the State or some other statutory
authority, and such injunction constitutes a condition precedent for the
exercise by the person affected by it of a right of review or appeal or the
exercise of some other fundamental right by the affected person, the
courts will favour an interpretation of the injunction most favourable to the
affected person, which may, according to the circumstances of the case,
result in the injunction being interpreted as a directory or peremptory one.
The use of shall, must or other peremptory expression does not

necessarily mean that exact rather than substantial compliance with a
peremptory statutory injunction is required in every case.Substantial
compliance will suffice in those cases where, having regard to the
particular facts, the object intended by the legislature will be achieved
However:
Where the rights of third parties interested in the matter depend upon
exact rather than substantial compliance with the imperative statutory
injunction concerned, the courts will insist on exact compliance.
Where the statutory injunction concerned makes the doing of something

(the primary statutory injunction) dependent upon the doing of
something else (the secondary statutory injunction), such secondary
statutory injunction must be strictly complied with, especially where the
primary statutory injunction will subject someone to a criminal penalty or
some other diminution of his or her fundamental rights.
Presumption that may indicates a directory provision, not a peremptory one:

may is a permissive or enabling expression, and can be safely relied upon as
such in most cases; however, as observed in other jurisprudence, there are
cases in which, for various reasons, as soon as the person who is within the
statute is entrusted with the power, it becomes his duty to exercise it [even if its
exercise is framed as a discretion.
l 2 Presumptions concerning the commencement and termination of
statutes
l 2.1
Presumption that the legislature intends its laws to
commence on the date of their promulgation
It is presumed that the legislature intends its laws to commence on the
date of their promulgation (this presumption may be overturned by an
express provision otherwise, usually by means of a commencement
clause)
l 2.2
Presumption that a statute once enacted will have effect
until repealed by Congress
It is presumed that a statute once enacted will have effect until repealed
by Congress. This presumption may be overturned by the following
expedients or circumstances:
by the courts in the following circumstances:
by the application of the maxim Cessante ratio legiscessatipsalex (If the

reason for the law falls away, the law itself falls away); or
by the application of Presumption B.3.2 below.
In addition, it is in principle possible for Congress; lawmakers to omit all
Acts that are considered to be spent (no longer in force by reason of the
Acts desuetude or of the Act having had its full effect). The effect of such
an omission is the same as repeal.
l 2.3
Presumption about continuity where a statute is
repealed and substantially re-enacted.
Whenever a statute is repealed and its provisions are at the same time
and without any interval re-enacted in the same or substantially the same
terms by the repealing statute, the earlier statute shall be construed as
continued in active operation. All rights and liabilities incurred under such
earlier statute are preserved and may be enforced.
Presumption of Continuity.
A substantive law requires native title claimants to prove continuity in
the acknowledgment and observance of traditional laws and customs
and the continued existence of the rights and interests which derived
from those laws and customs from sovereignty through until the
present day.
l 2.4
Presumption against the continuance of repealed
statutory rights
The foregoing presumption does not apply to repeals and re-enactments
of statutes in which any interval of time intervenes between the repeal
and re-enactment. Rights conferred exclusively by statute can be
extinguished by statute unless they have vested in individuals who have
previously enjoyed them. There is no presumption against creating a
hiatus in the statute law even where individuals prospective claims to
statutory rights may be affected. Thus where such statutory right is
repealed in order to be replaced by the same or a similar statutory right,
and there is a delay in implementing the latter, the repealed statutory
provision is not deemed to continue beyond its repeal unless express

statutory provision is made to provide for this interval.
l 2.5
Presumption of validity of things done under a repealed
statute prior to its repeal
The repeal of an enactment does not by itself invalidate or call into
question the validity of anything done in terms of the repealed enactment
prior to the date of its repeal. It is accordingly not necessary (except
rarely out of an abundance of caution or for the avoidance of doubt) to
enact in the repealing statute that the repeal shall not affect the validity
of anything previously done under the repealed enactment. This does
not mean that everything so done was indeed valid, only that there is a
presumption (the burden of overturning which lies with the person alleging
otherwise in relation to any particular act) that every pre-repeal act
wasvalidly done in accordance with the repealed statute at the time that it
was in force.
l 2.6
Presumption about repeal of repealing statute
The repeal of a statute that repealed an earlier statute shall not be

construed to revive the earlier statute.
l 2.7
Presumption about suspensive amendments
Where a statute is amended in such a way that the amendment is

expressed to expire on a certain date or upon the happening of a certain
event, the expiry of that amendment shall be construed to revive the
statute in its previous form.
A.
Presumption of Abandonment.
A statutory presumption that a party that has not used its mark for three
years has abandoned its rights in the mark. This presumption of
abandonment shows that the party has discontinued use with intent not to
resume use. It is international trademark practice to presume that marks
are abandoned if they are not used for a certain fixed period of time. This
presumption of nonuse can be countered with contrary evidence.
l 3 Presumptions concerning the conflict or harmony of statutes and

l 3.1
Presumption against the repugnance of statutes and
They must as far as possible be interpreted in a manner calculated to
harmonize them with each other, in conformity with the general principle
that the law should be consistent and self-coherent.
l 3.2
Presumption favouring later over earlier conflicting
statutes.
In the absence of express repeal, later enactments repeal earlier
enactments dealing with the same subject matter, to the extent of any
inconsistency between them (Lex posterior derogat priori). See, however,
the following presumption.
l 3.3
Presumption favouring specific over general statutes.
Despite the foregoing presumption, the Legislature is presumed to have

intended that general provisions in a later statute do not override preexisting specific provisions in an earlier statute bearing on the same
subject-matter.
To
quote
the
relevant
Latin
maxim:
Generalibusspecialibus non derogant(Provisions couched in general
terms do not derogate from those expressed in specific terms).
l 3.4
Presumption favouring primary over secondary
statutes.
It is an irreversible presumption that if the provisions of any subsidiary
legislation made under one Act conflict with provisions contained in
another Act, the provisions of the latter Act will prevail over the conflicting
provisions of the subsidiary legislation.
Presumption Against Implicit Changes in the Law
This presumption entails that a part of the law or provision in it which is
ambiguous as to whether or not it effects a change in the law shall be
regarded as not effecting any such change.
The Supreme Court reiterated the general principle that general words in a
later Act should not be presumed to repeal or amend earlier legislation, so
long as they were capable of reasonable construction without effecting any
such amendment, (as raised in the US Supreme Court), noted that there was
no authority regarding the application of this principle to criminal law statutes.
The principle that criminal statutes should be strictly construed for the benefit
of the individual could have an impact on the operation in this area of the
presumption against unclear changes. The Court applied the principle and
found that the two statutes which were at issue in the case could stand
together and operate separately and individually, without one being
considered to have implicitly repealed another.
l 4 Presumptions concerning the use of intrinsic and extrinsic
statutory material to ascertain the meaning and intention of the
Legislature
l 4.1
The Cardinal Principle.
The Cardinal Principle, or fundamental rule of interpretation of statutes, is

that the court must endeavour to arrive at the intention of the law-giver
exclusively from the actual language used in the enactment. The effect of
this rule is that the courts should not look outside a statute in order to
ascertain its meaning, but see 4.5 below.
l 4.2
The Golden Rule.
The Golden Rule states that the court must take the language of the
enactment, or of the relevant portion of the enactment, as a whole, and,
where the words are clear and unambiguous, must place upon them their
grammatical construction and give them their ordinary effect. If the words
of an enactment are precise and unambiguous, no more is necessary
than to expound them in their ordinary and natural sense. The Golden
Rule may be departed from if adherence to it would lead to an absurdity
so glaring that the lawmaker could not have intended it. In that event the
court may vary or modify the language so as to avoid the absurdity, but no
further.
l 4.3
Presumption in favour of contextual interpretation.
The Legislature is presumed to intend that a statute is to be construed as

a whole and not piecemeal, in other words, no provision is to be
construed in isolation but in the context of the whole statute.
l 4.4
Priority of intrinsic over semi-extrinsic (peripheral)
matter in a statute.
The Legislature is presumed to intend that, the body of a statute or
statutory provision must be interpreted first, before resort is had to
peripheral matter in the statute. i.e. the long title, preamble, headings of
sections or parts and footnotes.
l 4.5
Use of matter extrinsic to a statute for purposes of
disambiguation.
If the Legislatures intention cannot be unambiguously ascertained in the
first instance by reference to the statute itself, resort may be had to
certain extrinsic materials pertinent to that intention. (Contemporaneous
Circumstances, Judicial Constructions, Executive Construction, Policy.)
l 4.6
Presumption about statutes in parimateria.
It is to be presumed that statutes in parimateria (dealing with the same or

analogous subject matter) are to be given a uniform interpretation.
l 4.7
Use of legislative history and legislative antecedents as
aids to statutory interpretation
As respects legislative history, this aspect of the matter is largely
governed under item 4.5 above. As regards legislative antecedents, the
following dictum is pertinent: In the interpretation of statutes a court may
have regard to those external and historical facts, such as the prior
existence of some law, custom or practice, which are necessary for the
comprehension of the legislation, and to consider whether the statute
which is the subject matter of interpretation was intended to alter the
existing law or merely to codify it.
l 5. Presumptions concerning statutory time-limits, statutory rights
of appeal and statutory discretions
l 5.1
Presumption that generally time limits in statutes are
mandatory
Unless the statute specifically condones non-compliance or allows the
extension of statutory time limits, such time limits are generally to be
construed as mandatory; however, the same does not apply for statutory
time limits on the State for the performance of its obligations.
l 5.2
Presumption that where a right of appeal is given by
statute against the exercise of a Statutory power, such appeal
suspends such exercise until the determination of the appeal
This presumption may be overturned by an express provision in an Act of
Congress to the contrary.
l 5.3
Presumption that a statutory discretion requires an
objective (i.e. judicial) construction
This presumption applies unless a contrary intention is expressly
indicated in the statute in question. Use expressions such as: in the
opinion of, in the discretion of, is satisfied that, in order to make clear
that the discretion is exercised subjectively (i.e. that the discretion is
dependent upon the judgment of the person or authority upon whom the
legislature bestows it, and not potentially dependent upon the judgment of
the courts). If a subjective discretion is exercised reasonably it cannot be
challenged before the courts, nor can the courts exercise their own
discretion in substitution for a statutorily bestowed discretion that is
exercised reasonably.
l 6. Presumptions relating specifically to corporate bodies and trusts
(statutory or non-statutory) and employment
l 6.1
Presumption that a person includes a juristic person
This important presumption (as embodied in the definition of a person)

states that, unless the context of the provision requires otherwise, every
reference to a person includes a reference to a juristic (corporate) entity.
Accordingly, express words are required in a statute where it is desired to
restrict its application to individuals (natural persons) only, or, conversely,
to restrict its application to corporate persons only.
l 6.2
Presumption against piercing the corporate veil
A company or other corporate body has a separate legal persona from its
members. Its acts, omissions, rights and liabilities are not attributed to
any of its individual members (shareholders). Accordingly, express words
are required in a statute to render the board, directors, members or

employees of the corporate body liable in their personal capacities,
whether jointly with the corporate body or independently of it.
l 6.3
Presumption of strict liability for breach of corporate
statutory duties
Corporate bodies created by statute (and their employees and agents)
are strictly liable for the delictual consequences arising from the exercise
or non-exercise of their statutory functions, unless the statute excludes
such liability. This liability is generally excluded in the statute creating the
corporate body by means of a limited immunity clause (see Presumption
A.21 above)
l 6.4
Presumption about validity of acts of members of
statutory bodies
This assumes that the statutory requirements for the appointment and
qualifications of members of statutory bodies are to be strictly construed;
accordingly, where any question arises about the validity of their acts in
pursuance of their statutory functions, any defect in their appointment or
qualifications at the time the act in question was exercised is fatal to that
act; the presumption can be overturned by an express provision in the
statute to the contrary. (This presumption does not apply to the statutory
requirements for the appointment and qualifications of employees of the
State. See Presumption A.23.2 above)
l 6.5
Presumptions
corporations
about
the
property
of
statutory
The property of a statutory corporation is ultimately State property, but is

held by the statutory corporation in its own name. Accordingly, the
statutory corporation can deal with such property in the same way as any
other non-statutory corporate body (except where the property in question
is pre-existing State land which is not specifically ceded to or acquired by
the corporation, in which event the land is managed by the statutory
corporation in a similar capacity to that of a trustee without power of
encumbrance or disposal). Consequently, the property of statutory
corporations is not protected from attachment, except where the founding
statute expressly provides otherwise, or in certain other very limited
circumstances (see Presumption B.6.6 below). When the founding
statute of a statutory corporation is repealed, the assets of the founding

statute automatically become State property subject to Regulation. The
assets cannot be disposed of to another statutory corporation or to a
wholly or partly State-owned company registered in the Companies
Registry, or to any other entity or individual, unless express provision to
that effect is made in the Statute which terminates the statutory
corporation.
l 6.6
Presumption
that
statutory
autonomous in relation to the State
corporations
are
A statutory corporation is a distinct legal entity separate from the State,

albeit that it is an arm of the State. Accordingly, such statutory
corporations may not sue and be sued like any other non-State entity,
unless there are compelling public policy reasons for doing so. This
presumption may be overturned by express words in the founding statute
indicating that those responsible for the statute exercise real control over
the day-to-day running of the statutory corporation
l 6.7
authorities.
There is no presumption of continuity of statutory bodies or authorities
accordingly if a statute that created a statutory body or authority is
replaced by another statute creating the same or a similar body the tenure
of office of the authority in question or of the members of the previous
body is automatically terminated unless the contrary intention is expressly
indicated by the replacing statute
l 6.8
Presumption that a decision of a statutory body
requires the votes of an absolute majority of the members of
that body
Where an enactment authorizes or requires an act or thing to be done
collectively by more than two persons, a majority of those persons may do
that act or thing, unless a quorum fixed by that enactment has not been
formed. Accordingly, if an enactment fails to specify a quorum of
members who may make collective decisions, an absolute majority is
required for collective decision-making.
l 6.9
Presumption that members, directors, agents and
external auditors of statutory or private corporate body are
not employees of that body
Neither the members of a statutory corporate body nor the directors of a
company are to be regarded as employees or staff of that body or
company unless the founding statute or articles of association, as the
case may be, define them to be such for certain specific or general
purposes. The same presumption applies to the agents and external
auditors of a statutory corporate body or company.
l 6.10 Presumptions about statutory and implied powers of
statutory corporate body
1
. Consistently with the Expressio Unius rule of statutory interpretation (see
Presumption B.1.6 above), the itemization of the powers of a statutory
corporate body (whether in a Schedule of Ancillary Powers or otherwise) will be
interpreted as exhaustive (despite the broad scope of the incorporation clause).
This presumption also applies to statutory corporations the intra vires rule
concerning companies (that a company is strictly bound by its objects clause in
its memorandum of association). Accordingly, if it is desired to circumvent this
presumption, a statement must be included in the founding statute to the effect
that the powers so itemized shall not be construed as derogating from the
generality of powers given to the Corporation.
2
. Where the founding statute does not contain an incorporation clause or
does not itemize the powers of a statutory body, or both, but there other
indications in the statute that it acts in a corporate capacity (for instance, where
it is empowered to employ persons and control its own funds), it is necessarily
implicit that such a body has perpetual succession, and is capable of suing and
being sued in its corporate name, and of performing all such acts as bodies
corporate may perform by law. However, the full scope of such implied powers is
uncertain, and drafters must never leave such important matters to be implied by
the courts.
l 6.11 Powers of investment of surplus funds of statutory
corporate body not to be inferred
A statutory corporate body does not have freedom to invest its surplus
funds in any manner desired by the board of that body. Such a power
must be expressly provided for in the founding statute, and is usually
exercised with the prior knowledge or approval of executive responsible
for administering the founding statute.
l 6.12
Presumptions with respect to statutory trustees
1
. Common law trustee powers not to be inferred in favour of statutory
trustees: Just as a statutory corporation cannot be vested with the powers of a
non-statutory corporate person except by express provision in the founding
statute, so also the powers of a statutory trustee (whether an individual or
corporate person) must not be inferred to be the same as those of a common law
trustee. The powers of the statutory trustee in relation to the trust (often, but not
always, a statutory fund) must be expressly stipulated in the statute, either in
itemized form (preferably in a schedule to the statute) or by a general provision
that the statutory trustee may exercise any power conferred upon a trustee by
the common law.
2
. Power of delegation of the administration of a statutory trust not to be
inferred. A statutory trustee must himself/herself/itself administers the trust
unless there is an express provision in the statute establishing the trust
permitting the trustee to delegate the power of administration to a specified
person.
3
.Recovery of administration expenses from statutory fundor trust by
administrator of fund or trust not to be inferred. The expenses that a statutory
administrator or trustee incurs in administering a statutory fund or other statutory
trust cannot be charged on or recovered from that fund or trust unless express
provision to that effect is made in the statute establishing the fund or trust in
question.
l 6.13
Presumption about suspension of employees
The suspension of an employee, whether employed by the State, a

statutory corporation or a private employer, does not automatically entail
the suspension of that employees remuneration or allowances during
his/her suspension unless the terms of employment applying to him/her
by virtue of an enactment or the contract of employment specifically
provide for the automatic suspension of his/her remuneration or
allowances in whole or in part. Nor must a suspension affecting the whole
or any part of employees remuneration or allowances be indefinite so as
to amount to constructive dismissal.
l 7. Other presumptions of legislative intention and rules of statutory

interpretation that are intrinsic to statutory texts
l 7.1
The Mischief Principle.
As said above in connection with the Cardinal Principle and the Golden
Rule, the first recourse in establishing the Legislatures intention must be
to the language of the Statute itself. If this does not suffice, recourse may
be had to extrinsic materials and the language of the Statute may be
modified to arrive at the true intention of the Legislature. You will note
that the common element in both of these expedients is to establish
the intention of the Legislature. This is where the Mischief Rule comes
into play. The most direct way of ascertaining legislative intention is to
ask What was the mischief that led to the promulgation of the law being
interpreted? In other words, what was the reason for the Act or what
prompted the change in the old law? This question is embodied in the
just-mentioned Mischief Rule. The rule was laid down in an old English
case reported in 1584, where the judges expounded the rule as follows:
For the sure and true interpretation of all statutes in general (be they
penal or beneficial, restrictive or enlarging of the common law) four things
are to be discerned and considered:
What was the law before the passing of the Act?
What was the mischief and the defect for which the law did not provide?
What remedy has the Parliament resolved and appointed to cure the
disease of the commonwealth?
The true reason of the remedy.

And then the office of all judges is always to make such construction as
shall suppress the mischief and advance the remedy. As a consequence
of this rule,I it is presumed that the legislature wants the courts to apply
the appropriate remedy provided for the identified mischief.
l 7.2
Presumption that the legislature intends the courts to
apply a purposive construction to a statute
This is an expression in broader terms of the Mischief Principle. Where a
strict or literal construction of a statutory provision clearly conflicts with
the evident purpose of the statute, and an alternative purposive
construction is not absolutely excluded by the provision in issue, the latter
construction will be preferred.
l 7.3
Presumption that the repeal of a statute involves also
the repeal of any subsidiary legislation made under it.
To overturn this presumption you must insert a saving provision in the
replacing legislation.
l 7.4
General presumption that a person may act through an
agent
There is a general presumption that a person may act personally or
through an agent, and that in the latter case the acts of the agent are to
be imputed to the person as the principal (Qui facit per aliumfacit per se,
whoever acts through another acts himself/herself). Accordingly, any act
required to be performed in terms of a statute, such as the completion or
submission of a form or return, may be performed on behalf of the person
required to complete or submit it through the agency of his or her lawyer
or other authorized representative, unless the statute in question explicitly
or by necessary implication requires otherwise. This presumption does
not apply to statutory office-bearers or to the exercise of certain statutory
powers (see presumptionsA.12.1 and A.12.3 above). With respect to
the acts of a corporate body, the board of such a body may, by analogy to
the relationship of principal and agent, be regarded as the principal,
while the corporate bodys employees, including in particular its chief
executive officer, are its agents. In a non-statutory corporate body the
articles of association may limit or exclude the operation of the agency
principle with respect to any of the bodys employees. The founding
enactment of a statutory body may do likewise with respect to its
employees. In the absence of such limitations, the presumption of agency
will favour the validity of all transactions between the statutory bodys
employees and third parties that are not ostensibly unauthorised (such as
criminal acts). It is not practicable to insist that every act of a statutory
bodys employees must be specifically authorized or ratified by its
governing body, as this will hinder the smooth functioning of the body with
respect to third parties (in this respect, when defining the word
Corporation, Authority or other term by which the statutory body will be
known in a statute, add a paragraph to the definition along the following
lines: Corporation... (a) in relation to anything done or to be done by the
Corporation, means the Corporation acting through its Board or through
an employee in terms of this Act)
l 7.5
The Casus Omissus presumption.
Formerly, this presumption required the courts to find that anything

omitted from a statute was deliberately omitted by the Legislature. This
presumption has since been modified into a presumption that the
legislature intends the courts to correct obvious drafting errors and
obvious drafting omissions. The basis for this presumption is that obvious
drafting errors and obvious drafting omissions should not vitiate a statute.
The courts may, for this purpose:
supply a word or phrase that has manifestly been omitted from a

provision through a drafters or printers error;
transpose words or clauses in a sentence where the sentence is

without meaning as it stands;
supply, omit or transpose punctuation marks to render sentences

meaningful.
However, there are 3 conditions for the presumptions application by the

courts, namely that:
1
. The mischief intended to be remedied by the statute must
be capable of precise determination.
2
. The omission on the part of the drafter or printer must be
apparent and inadvertent.
3
. The language that the legislature/drafter would have
employed must be capable of being determined with certainty.
l 7.7
Presumption about rules of evidence
In judicial or quasi-judicial proceedings conducted pursuant to any

statute, the ordinary common law rules of evidence apply unless the
statute in question expressly excludes or modifies them.
7.8
Presumption against the continuity of State pensions
and terminal benefits
There is a presumption against the continuation of the pension rights of
members of the Public Service who are transferred out of the Public
Service to some other form of direct or indirect State employment. Where
a statute transfers members of the Public Service to the employment of a
statutory body, the members in question will become entitled only to those
terminal benefits applicable to the abolition of their offices, unless the
statute provides for the preservation or transfer of the Public Service
pension rights of such members.
RELATED PRESUMPTIONS
Presumption against Infringement of Fundamental Rights

A fundamental right is one explicitly or implicitly implied guaranteed by
the constitution. [Ballard v. Commonwealth, 228 Va. 216 (1984).
One can point to other "rules of construction" which require clear and
unambiguous words before a statutory provision will be construed as
displaying a legislative intent to achieve a particular result.
Examples of such "rules" are those relating to the construction of a statute
which would abolish or modify fundamental common law principles or
rights, which would operate retrospectively or which would take away
property without compensation. The rationale of all such rules lies in an
assumption that the legislature would, if it intended to achieve the
particular effect, have made its intention in that regard unambiguously
clear. Thus, the rationale of the presumption against the modification or
abolition of fundamental rights or principles is to be found in the
assumption that it is "in the last degree improbable that the legislature
would overthrow fundamental principles, infringe rights, or depart from the
general system of law, without expressing its intention with irresistible
clearness; and to give any such effect to general words, simply because
they have that meaning in their widest, or usual, or natural sense, would
be to give them a meaning in which they were not really used" (Potter v.
Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304, and see, also, Ex
parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36,
at p 93). If such an assumption be shown to be or to have become illfounded, the foundation upon which the particular presumption rests will
necessarily be weakened or removed. Thus, if what was previously
accepted as a fundamental principle or fundamental right ceases to be so
regarded, the presumption that the legislature would not have intended to
depart from that principle or to abolish or modify that right will necessarily
be undermined and may well disappear.
Presumption of Liberty and Onus: International Convention
(US)
As per the European Convention of Human Right, Art. 5 deals with liberty:
Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with
a procedure prescribed by law. The presumption of liberty of an
individual is based on this convention. It operates as per the international
obligations.
Presumption of Liberty and Onus was accepted by the parties that there is
a presumption in favor of liberty at common law in Scotland as well as in
England and no doubt other jurisdiction. This has not been removed by
paragraph 2 of Schedule 3 to the 1971 Act which does not create a
presumption in favor of detention on completion of a sentence of
imprisonment. The onus lies on the Secretary of State to justify detention
and continued detention pending removal.
Presumption of Sovereign Immunity: Concept of Sovereignty
(US)
Presumption of Sovereign Immunity, or crown immunity, is a type of
immunity that in common law jurisdictions traces its origins from early
English law. Generally speaking it is the doctrine that the sovereign or
state cannot commit a legal wrong and is immune from civil suit or
criminal prosecution; hence the saying, "the king (or queen) can do no
wrong".
There is a strong presumption of sovereign immunity in US. The
presumption is like non applicability of statutes against the Crown or that
no statute shall apply to crown unless it is expressly stated so. The
federal government has sovereign immunity and may not be sued unless
it has waived its immunity or consented to suit. The United States has
waived sovereign immunity to a limited extent, mainly through the Federal

Tort Claims Act, which waives the immunity if a tortuous act of a federal
employee causes damage, and the Tucker Act, which waives the immunity
over claims arising out of contracts to which the federal government is a
party.
In Hans v. Louisiana, the Supreme Court of the United States held that
the Eleventh Amendment re-affirms that states possess sovereign
immunity and are therefore generally immune from being sued in federal
court without their consent. In later cases, the Supreme Court has
strengthened state sovereign immunity considerably. In Blatchford v.
Native Village of Noatak, the court explained that we have understood the
Eleventh Amendment to stand not so much for what it says, but for the
presupposition of our constitutional structure which it confirms: that the
States entered the federal system with their sovereignty intact; that the
judicial authority in Article III is limited by this sovereignty, and that a State
will therefore not be subject to suit in federal court unless it has
consented to suit, either expressly or in the "plan of the convention." In
Alden v. Maine, the Court explained that while it has sometimes referred
to the States immunity from suit as "Eleventh Amendment immunity [,]"
[that] phrase is [a] convenient shorthand but something of a misnomer,
[because] the sovereign immunity of the States neither derives from nor is
limited by the terms of the Eleventh Amendment. Rather, as the
Constitution's structure, and its history, and the authoritative
interpretations by this Court make clear, the States immunity from suit is a
fundamental aspect of the sovereignty which the States enjoyed before
the ratification of the Constitution, and which they retain today (either
literally or by virtue of their admission into the Union upon an equal
footing with the other States) except as altered by the plan of the
Convention or certain constitutional Amendments.
In other cases decided: "The United States is entitled to immunity from
suit without its consent". Muirhead v. Mecham, [2005] USCA1 333; 427
F.3d 14, 17 (1st Cir.2005). In the case Of Muirhead [supra] the Court
stated some principles on the concept of Sovereignty and to whom the
umbrella of protection would be available .It observed thus:
It is beyond cavil that, as the sovereign, the United States is immune
from suit without its consent, and it was also observed that:
Because the mandamus statute applies only to officers and employees

of the United States, rather than to the United States itself, the statute
does not create any new cause of action against the government. It
simply gives the courts jurisdiction in those instances in which
substantive law already provides a remedy. Accordingly, the provisions
of the mandamus statute do not waive the sovereign immunity of the
United States.[ Coggeshall Dev. Corp. v. Diamond, [1989] USCA1 416;
884 F.2d 1, 3 (1st Cir.1989); Doe v. Civiletti, [1980] USCA2 856; 635
F.2d 88, 94 (2d Cir.1980).]
It was also stated in the Case of Muirhead [supra] that:
These holdings do not end our odyssey. Although the government
enjoys broad protection through the operation of the sovereign immunity
doctrine, that doctrine does not necessarily shield federal officers to the
same extent. Sloan Shipyards Corp. v. U.S. Shipping Bd. Emerg. Fleet
Corp., [1922] USSC 91; 258 U.S. 549, 567[1922] USSC 91; , 42 S.Ct.
386, 66 L.Ed. 762 (1922) finds that, although government officers may
act as instrumentalities of the government, a government agent,
"because he is an agent, does not cease to be answerable for his acts";
Coggeshall Dev., 884 F.2d at 3, notes that certain suits against
individual government officers "will not be considered against the United
States, and thus will not be barred by sovereign immunity". Where, as
here, a plaintiff brings suit against a federal employee rather than
against the government itself, an inquiring court must analyze the claim
to ascertain whether, despite the nomenclature, the suit is, in reality, a
suit against the United States.
The court in this case also made an observation in regard to a test in this
regard as what is not Sovereign in the meaning of the test. It observed
thus:
This is a unitary test, but both the conduct challenged and the relief
sought may have a bearing on its outcome. As for conduct, "if the
[challenged] actions of an officer do not conflict with the terms of his
valid statutory authority, then they are the actions of the sovereign"
and come under the protective umbrella of sovereign immunity,
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,
695[1949] USSC 108; , 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). As for
relief, a suit, although nominally aimed at an official, will be
considered one against the sovereign "if the judgment sought would
expend itself on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment would be to
restrain the Government from acting, or to compel it to act", Dugan v.
Rank, 372 U.S. 609, 620[1963] USSC 64; , 83 S.Ct. 999, 10 L.Ed.2d
15 (1963). When a plaintiff seeks specific performance, the answer to
the inquiry about relief hinges on whether the redress obtained
against the officer will, in practical effect, be obtained through the
sovereign, Larson,337 U.S. at 688, 69 S.Ct. 1457.
Presumption against Retrospective Operations: Exceptions
Perhaps no rule of construction is more firmly established than this: a
retrospective effect should not be given to a statute so as to impair an
existing right or obligation, except on procedural matters, unless the
outcome cannot be avoided without doing violence to the text. If the
writing of the text may give rise to several interpretations, we must
interpret it as having to take prospective effect only.
The presumption that the legislative does not intend an Act to apply
retrospectively was stated in Hamilton v Hamilton. Henchy J said:
"When an Act changes the substantive, as distinct from procedural law
then, regardless of whether the Act is otherwise prospective or
retrospective in its operation, it is not to be deemed to affect proceedings
brought under the pre-Act law and pending at the date of the coming into
operation of the Act, unless the Act expressly or by necessary intendment
provides to the contrary."
Henchy J characterized the rule as a universal one, and emphasized that
(contrary to the statement in Maxwell ) the rule applied to all pending
enactments, unless the language irrefutably stated otherwise.[Statutory
Drafting and Interpretation, Consultation Paper on: Plain Language and
the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)
Presumption against Interference with Pending Litigation

If an enactment operates retroactively, as it does in this case then, by
definition, it applies to pending litigation. It would be illustrated with the
following Citation.
In general, new statutes affecting substantive matters do not apply

to pending cases, even those under appeal. Since the judicial
process is generally declaratory of rights, the judge declares the
rights of the parties as they existed when the cause of action
arose: the day of the tort, the conclusion of the contract, the
commission of the crime, etc. A new statute that is substantive will
not apply to pending cases, unless it is retroactive in the true sense
of the word, that is, unless it operates in the past and modifies the
law in effect on the day of the tort, the crime, the contract, etc. A
pending case, even one under appeal, can be affected by a
retroactive statute, even one enacted pending appeal.
Presumption of Correctness
Presumption of Correctness is a determination of a factual issue made by
a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and
convincing evidence.
Constitutional Validity of Statute (Weakens-US Courts)

A central tenet of constitutional law is that the judicial power to declare a
statute unconstitutional is an exceptional one, which should be used only
when unavoidable. It is therefore hardly surprising that federal courts
have placed limits on their power of judicial review. One of the principal
limitations is the presumption of constitutionality.
Under that presumption, courts assume facts necessary to satisfy
constitutional tests developed by the courts. Thus, for example,when a
court reviews legislation for reasonableness, the presumption of
constitutionality requires the court to assume facts necessary to establish
the reasonableness of the law. The presumption, in other words, involves
a form of factual deference.
The burden of proof is on the one attacking the constitutionality of a
statute, a certain presumption of constitutionality is to be attached to
legislative action. formulation of this doctrine can be traced back to the
early part of the nineteenth century.
As applied to the general field of the law of evidence, the concepts of
burden of proof and presumptions are to be distinguished. the former
refers to the duty of going forward with the evidence, and the risk of nonpersuasion of the judge or jury.
Presumption that Legislature is aware of existing State of Law

This particular presumption falls under the category of the presumption of
correctness of a statute. It is a strong presumption that the legislature is
aware of the laws. It is more of a common-sense approach to
presumption. But it has its significance if there are two statutes on the
same subject or if there are provisions of the statutes that are in conflict.
Tension is then resolved by referring to this presumption. Hence it is the
underlying reason for the general rule in statutory construction that the
courts must first harmonize the statutes existing since they are both
deemed to be correct by the legislature.
"The legislature is presumed to know the law when enacting
legislation. [Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432,
434 (2005)] We must therefore presume that the legislature knew that
both a preliminary hearing and a grand jury indictment operate as
screening procedures for probable cause determination when the
legislature enacted Code 19.2-218. Nevertheless, the legislature
decreed that "no indictment shall be returned in a court of record
against any such person prior to such hearing . . . ."
By the plain language of the statute, the validity of any indictment against
a person who has been arrested prior to the indictment depends on the
occurrence of a preliminary hearing or a valid waiver. To decide that a
subsequent indictment cures any violation of Code 19.2-218 would be
to ignore the command of the legislature."
Under it, there are several possible interpretations including the
Presumption that the legislature is aware of the existing judicial
interpretation given to words and provisions. Where the courts have
construed the language in a statute, the legislature is presumed to intend
that the same construction is to be placed upon such language in
subsequent statutes on the same subject matter.
Presumption that Amending Acts Have Meaning

There is a general presumption that amendments are carried out for some
purpose and every statute has an object. The same is stated as follows:
"However, when current and prior versions of a statute are at issue, there
is a presumption that the General Assembly, in amending a statute,
intended to effect a substantive change in the law."
Presumption about Special Statute and General Statute
The Supreme Court repeatedly has affirmed that it is a presumption of

statutory construction that, where both general and specific statutes
appear to address a matter, the General Assembly intends the specific
statute to control the subject."
Presumption against Substantial Alteration of Law: Amending
Statute
When amendments are enacted soon after controversies arise "as to the
interpretation of the original act, it is logical to regard the amendment as a
legislative interpretation of the original act, a formal change-rebutting the
presumption of substantial change."
In other words, it is to be understood that when an act is amended, it may
serve as an interpretation to the original law.
Presumption of Deference and Weight to Interpretation
"The construction of statutes by agencies charged with administration of
those statutes is entitled to great weight.
A decision of an agency charged by the General Assembly with statewide
administration, unless it is clearly wrong, carries great weight and is
entitled to deference.
The grant of regulatory authority extends only to duties or powers
conferred by law. As such, "regulations, promulgated pursuant to
definitive statutory authority, have the force and effect of law. Moreover,
those regulations which "clearly and explicitly mirror" statutory authority
are likeliest to be sustained.
Any regulation of the Department must be reasonably grounded in an
identifiable and definitive statutory foundation.
"Generally, the court accords substantial deference to an agency's
interpretations of its own regulations.
Provided the interpretation "does not violate the Constitution or a federal
statute, it must be given 'controlling weight unless it is plainly erroneous or
inconsistent with the regulation.
Presumption that Statutory Construction is Core to Judiciary

(US)
The core interpretive concepts on which principles of legislative
interpretation are based are not, of course, unique. Nor are they limited to
the interpretation of legal documents.
Electronic research tools make writing about statutory interpretation both
exciting and a little daunting. If most cases decided by Australian courts in
recent years have involved the application of legislation, all of those
cases are worthy of investigation. The process of selecting cases on
which to concentrate is therefore not without risk. But the task is
worthwhile.
The law of statutory interpretation has become the most important
single aspect of legal practice. Significant areas of the law are
determined entirely by statute. No area of the law has escaped
statutory modification.
In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act (whether that
purpose or object is expressly stated in the Act or not) shall be
preferred to a construction that would not promote that purpose or
object.
Stare decisis is the legal principle by which judges are obliged to respect
the precedents established by prior decisions. The words originate from
the Latin phrase Stare decisis et non quieta movere: stand by decisions
and do not disturb the undisturbed. In a legal context, this is understood
to mean that courts should generally abide by precedents and not disturb
settled matters.
Presumption about General Awareness of Legislature

Aside from the presumption that congress knows the rules of statutory
construction, and that congress knows the old laws. It is also presumed
that the congress knows the valid customs, traditions, and it is also
presumed that congress knows the needs of the public.
Presumption that Greater Power includes Lesser Power

The principle that the grant of a greater power includes the grant of a
lesser power is a bit of common sense that has been recognized in
virtually every legal code from time immemorial. It has found modern
expression primarily in the realm of constitutional law.
While this principle has nested less frequently in the criminal law context,
it is fully applicable in that milieu. To illustrate, we use an example that
bears a strong family resemblance to the problem at hand. The federal
sentencing guidelines originally stated that "an extraordinary physical
impairment may be a reason to impose a sentence other than
imprisonment." Three courts of appeals, including this one, refused to
understand this provision to require an all-or-nothing choice between
imposing an incarcerative sentence within the guideline range or
imposing no prison sentence. The courts reasoned that, despite the
unvarnished language of the provision, the greater departure (no
incarceration) necessarily included the lesser departure (a prison
sentence below the bottom of the guideline sentencing range).
Presumption that delegated Power would be used rationally

The Court has historically been reluctant to entertain facial attacks on
statutes, i.e., claims that a statute is invalid in all of its applications. Our
normal approach has been to determine whether a law is unconstitutional
as applied in the particular case before the Court.
There is no presumption that the power will be arbitrarily exercised, and
when it is shown to be thus exercised against the individual, under
sanction of state authority this court has not hesitated to interfere for his
protection, when the case has come before it in such manner as to
authorize
the
interference
of
a
court.
There being no showing that the law had been unconstitutionally applied
to plaintiff in error, his conviction was affirmed. "One who is required to
take out a license will not be heard to complain, in advance of application,
that there is a danger of refusal. He should apply and see what
happens." Other cases are to the same effect. Thus, the usual rule is that
a law requiring permits for specified activities is not unconstitutional
because it vests discretion in administrative officials to grant or deny the
permit. The Constitution does not require the Court to assume that such
discretion will be illegally exercised.
Presumption that Parliament Observed Procedures during

Enactment (US)
Judiciary has no authority to look into Parliamentary proceedings for the
purpose of enactment and process. Courts have no powers whether
explicit
or
implicit
in
this
regard.
Presumption of Delegation of Power to legislate

This presumption ponders on the difference between the departments
undoubtedly is, that the legislature makes, the executive executes, and
the judiciary contrues the law; but the maker of the law may commit
something to the discretion of the other departments, and the precise
boundary of this power is subject of delicate and difficult inquiry, into
which a court enter unnecessarily. In other words, there is a recognized
necessity of permitting the legislature to give to the other departments of
government the necessary leeway in the execution or instruction of the
law and the delegation to them of power to establish rules and regulations
designed to effectively carry out the legislative intention.

Statutory Presumptions

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Statutory Presumptions

Enviado por

Direitos autorais:

Formatos disponíveis

A.

Aliping, Vreneli Nadine C.

Cardama, Francis Pauline B.

Balderas, Danika Blin M.

Baluyan, Frances Janina F.

Baez, Rochelle Nerie S.

Gaudia, Elyzzar Ralph

Baon, Kenneth Jay J.

Basto, Allan Patrick T.

Reyes, Carla Joyce B.

Manaligod, Antonio C. III

Salvador, Kathleen Allysa V.

Manalo, Niko Martin D.

Marquez, Princess Karina M.

Ventura, Maria Teresita R.

Waggay, Fidencio P. III

Zabala, Jan Carla

RESUMPTIONS OF LEGISLATIVE INTENTION

1 PRESUMPTION AGAINST CONFLICT WITH INTERNATIONAL LAW

2 PRESUMPTION AGAINST EXTRA-TERRITORIAL OPERATION

3 PRESUMPTION THAT STATUTE LAW PROMOTES THE PUBLIC INTEREST

5 GENERAL PRESUMPTION IN FAVOUR OF THE LIBERTY OF THE INDIVIDUAL

6 PRESUMPTION AGAINST BINDING

THE SOVEREIGN LEGISLATIVE POWER OF

PRESUMPTION AGAINST THE DELEGATION BY

Presumption against delegation of Congress penal powers

9 PRESUMPTION IN FAVOUR OF EQUALITY OF TREATMENT

10 PRESUMPTION AGAINST RETROSPECTIVITY

11 PRESUMPTION AGAINST PREJUDICING VESTED RIGHTS

l 12 PRESUMPTION AGAINST OUSTING, RESTRICTING OR ENLARGING THE

l 12.1 General presumption against ousting or restricting the

Disallowing appeals on the merits of a case

l 13 PRESUMPTIONS RELATING TO THE EXERCISE OF STATUTORY POWERS

13.4 Presumption against non-prescription of statutory fees and

l 14 PRESUMPTIONS RELATING TO OFFENSES AND PENALTIES

l 14.2 Presumption against punishment for offense without prior

Presumption against mandatory penalties

l 14.7 Presumption against double penalization for the same actus

14.14 Presumption about contracts entered in violation of the

15 PRESUMPTION AGAINST INJUSTICE AND UNREASONABLENESS

16 PRESUMPTION IN FAVOUR OF NATURAL JUSTICE OR DUE PROCESS

17 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND ABSURD OR

18 PRESUMPTION THAT THE LAW IS A COMPLETE SYSTEM WITHOUT LACUNAE

19 PRESUMPTION THAT THE LAWMAKER DOES NOT INTEND TO ALTER THE

20 PRESUMPTION AGAINST THE STATE BEING BOUND BY STATUTE.

21 PRESUMPTION AGAINST BLANKET IMMUNITY FROM CIVIL SUIT.

22 PRESUMPTION AGAINST BLANKET INDEMNITY

l 23 OTHER PRESUMPTIONS RELATING TO PUBLIC AND LEGAL POLICY

The presumption of Omnia rite etc.

l 23.2 Presumption about validity of acts of employees of the State

The presumption of In bonampartem

l 23.4 Presumption that taxation statutes will be interpreted against

Presumption of the validity of statutes

l 23.7 Presumption in favour of the severability of statutory

Presumption against ignorance of the law

l 23.9 Presumption of legal incapacity on the part of certain

l 23.13 Cost recovery for remedial action undertaken by public

23.14 Presumption about the destination of public moneys.

B. PRESUMPTIONS OF LEGISLATIVE INTENTION AND RULES OF STATUTORY

l 1 GENERAL RULES AND PRESUMPTIONS ABOUT THE MEANINGS OF WORDS

The presumption Omnemaius in se minus continet

The Expressiouniusestexclusioalterius Rule.

The Eiusdem Generis (Of the same kind) Rule.

The Reddendosingulasingulis Rule