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Of ‘shall,’ ‘may,’ ‘quo warranto,’ and ‘snoots’

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Jemy Gatdula

Being Right

*[“Snoot /snüt/, n. (2001): A person who cares intensely about words, usage, and grammar, and who adheres to a kind of enlightened prescriptivism that assesses language for its aptness, clarity, succinctness, and power.”

(Bryan Garner)]

Had the good fortune to come across Garner’s new book entitled Nino and Me: My Unusual Friendship with Justice Antonin Scalia in Totus Bookstore’s University of Asia and the Pacific outlet.

It’s a gem and, for those like me considering themselves originalist disciples of Justice Scalia, an illuminating portrait of the human personalities behind the law and law’s stock in trade: words.

For the book is essentially about three “snoots” — the novelist David Foster Wallace (who invented the word “snoot”) and the two lawyers he fortuitously brought together: Garner (editor of Black’s Law Dictionary) and Scalia.

Indeed, lawyers must care about words because through them ideals, values, and purposes are captured and then realized.

There was this marvelous exchange in the 2001 HBO movie Conspiracy (starring Kenneth Brannagh and Stanley Tucci), where a law professor (Kritzinger) was talking to a young Nazi SS officer (Lange), the latter just admitting to murdering thousands of Jews:

Kritzinger: This is… more than war. There must be a different word for this.

Lange: Try “chaos”.

Kritzinger: Yes… the rest is argument. The curse of my profession.

Lange: I studied law as well.

Kritzinger: [incredulous] How do you apply that education to what you do?

Lange: It has made me distrustful of language. A gun means what it says.

Because, cynicism aside, in the public square the alternative to words has always been violence and one should utterly be careful that words are not distrusted due to its careless or — much worse — reckless use.

Hence, the necessity of snoots.

Going back to Garner’s book, there was this interesting point about the word “shall.” Here’s what he says:

“I was asked to revise the Rules of the Supreme Court of the United States — not quite by the Court itself, but by an arm of the US Judicial Conference. I had just played the lead role in revising the Federal Rules of Appellate Procedure, and some of the federal judges, appreciating my work, ‘volunteered’ my services to the Supreme Court. One major feature of my revisions had been to eliminate the word shall from the rules: it is notoriously ambiguous in legal drafting and therefore a frequent source of argument and even litigation. I apportioned its various responsibilities among must, will, is, and may, depending on context and meaning.”

“Today, shall has been almost entirely removed from the various sets of federal rules — except for those of the US Supreme Court. I never use the word myself.”

And, finally, this: “At least half the shalls in US statutes don’t mean ‘is required to.’ They’re not mandatory at all.”

The reason for bringing this up is because in my controversial(?) BusinessWorld article “Quo vadis quo warranto?” (11 May 2018), the following legal contention was proffered:

“Yet, it can also be argued that said Art. XI.2 merely mentions one mode of removal, hence “may be removed from office, on impeachment.” Note the presence of “may” (in the 1935 and 1973 constitutions it was “shall”) but the absence of the word “only.” The language thereof doesn’t preclude other modes of removal.

A practical and textual reading of the Constitution, in its entirety, backs up this interpretation.”

Turned out, ‘twas the first to bring it up, with political scientist Antonio Contreras quickly catching on as well.

Gratifyingly, the decision in Republic vs. Sereno (aka., the quo warranto case), penned by Justice Noel Tijam, seemingly confirmed my position:

“The language of Section 2, Article XI of the Constitution does not foreclose a quo warranto action against impeachable officers. The provision reads:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Emphasis ours)

It is a settled rule of legal hermeneutics that if the language under consideration is plain, it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional convention, for its interpretation.

The provision uses the permissive term “may” which, in statutory construction, denotes discretion and cannot be construed as having a mandatory effect. We have consistently held that the term “may” is indicative of a mere possibility, an opportunity or an option. The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. An option to remove by impeachment admits of an alternative mode of effecting the removal.”

At least in that case, thank heavens, Justice Tijam was a snoot.

 

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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