Before the start of Ombudsman Merceditas Gutierrez’s impeachment trial several months ago, Senator Miriam Defensor-Santiago stated in
media interviews that the Senate “
Rules Of Procedure On Impeachment Trials” should be written in plain language. Sen. Santiago said this was necessary for the public to understand the rules and because not all senators were lawyers.
Among other things, Sen. Santiago said that needless words (like “hereinunder”) must be omitted. She also said that the rules used old-fashioned English. Sadly, Sen. Santiago’s suggestions were not followed.
(Sen. Santiago is the author of two bills that require health insurance documents and all government communications, except regulations, to be written in plain language.)
With all due respect for the Senate, I am posting these Before and After revisions of its Rules of Impeachment (1) for the benefit of millions of Filipinos who are expected to follow on TV and radio the impeachment trial of Chief Justice Renato Corona starting January 2012; and (2) to show what the impeachment rules could look like when written in Plain Language.
If there are discrepancies between the official Senate rules of procedure and my revisions, you must follow the
official Senate rules.
| Before | After |
I. When the Senate receives articles of impeachment pursuant to Article XI, Sections 2 and 3 of the Constitution, the President of the Senate shall inform the House of Representatives that the Senate shall take proper order on the subject of impeachment and shall be ready to receive the prosecutors on such time and date as the Senate may specify.
| I. When the Senate receives articles of impeachment under Article XI, Sections 2 and 3 of the Constitution, the Senate President must inform the House of Representatives that the Senate will take proper order on the subject of impeachment and will be ready to receive the prosecutors on the time and date the Senate will specify.
|
Vague expression: What does “take proper order on the subject of impeachment” mean?
“Pursuant to” is legalese; it’s better to use “under” or “in accordance with” as
Martin Cutts suggests in his “Plain English Lexicon.”
The word “shall” is repeatedly used in the Senate Rules of Impeachment. As Prof. Joseph Kimble has observed, the meaning of “shall” is ambiguous, changing from sentence to sentence. US courts have ruled that “shall” can mean (1) has a duty to; (2) should; (3) is; (4) will; or (5) may. To avoid this ambiguity, the US Federal Rules of Civil Procedure now use
should,
may, or
must instead of “shall,” except in the rule on summary judgment (Michigan Bar Journal, December 2007). In these revisions, I replaced “shall” with what the context called for.
| Before | After |
II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside but shall not vote. Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend. The Chief Justice shall be administered the oath or affirmation, prescribed under these Rules, by the President of the Senate and shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached.
The President of the Senate shall preside in all other cases of impeachment and, for that purpose, placed under the prescribed oath or affirmation by any person authorized by law to administer an oath.
| II. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court will preside but cannot vote.
The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.
The Senate President must administer the oath or affirmation prescribed under these Rules to the Chief Justice.
The Chief Justice must preside over the Senate during the consideration of the articles of impeachment and the trial.
The Senate President must preside in all other cases of impeachment. He or she must be placed under the prescribed oath or affirmation by any person authorized by law to administer an oath. |
Question: What exactly is involved in “considering” the articles of impeachment? The words “consideration,” “considering,” and “consider” are used several times in the impeachment rules. Does “considering the articles of impeachment” refer only to that stage when the senators took their oath and ordered the issuance of the summons for Chief Justice Corona? Or does it refer to the whole impeachment trial? The phrase “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached” seems to indicate that there are two different stages. But Rule III says that the Senate must continue in session until it has rendered final judgment; this seems to indicate that these are not different stages.
Passive voice:
“Notice shall be given to him by the President of the Senate of the time and place fixed for the consideration of the articles of impeachment, with a request to attend.” I changed most passive voice sentences into the active voice. For example, this sentence became “The Senate President must notify the Chief Justice of the time and place fixed for considering the articles of impeachment and request him or her to attend.”
| Before | After |
III. Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the prescribed oath or affirmation to the Members of the Senate then present and to the other Members of the Senate as they shall appear, whose duty it shall be to take the same.
Upon presentation of the articles to the Senate, the Senate shall specify the date and time for the consideration of such articles. Unless the Senate provides otherwise, it shall continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until final judgment shall be rendered, and so much longer as may, in its judgment, be necessary.
Senators shall observe political neutrality during the course of the impeachment trial. “Political neutrality” shall be defined as exercise of public official’s duty without unfair discrimination and regardless of party affiliation or preference.
| III. Before the Senate considers the articles of impeachment, the Presiding Officer must administer the prescribed oath or affirmation to the senators. All senators must take the oath or affirmation before they can participate in the impeachment proceedings.
Upon presentation of the articles to the Senate, it must specify the date and time to consider the articles. Unless the Senate provides otherwise, it must continue in session from day to day (except Saturdays, Sundays, and nonworking holidays) until it has rendered final judgment, or beyond if necessary.
Senators must observe political neutrality during the course of the impeachment trial. “Political neutrality” is the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference. |
The phrase “Before proceeding to the consideration of the articles of impeachment” at the beginning of this Rule is a misplaced modifier. It appears that it is only the Presiding Officer (or the Senate President in this case) who will consider the articles of impeachment, not the whole Senate. I changed the phrase into the active voice: “Before the Senate considers the articles of impeachment”. (Again the question pops up, what does “consideration” or “consider” mean?)
The second paragraph states
“Upon presentation of the articles to the Senate.” Who makes the presentation to the Senate? The Presiding Officer?
The words “same,” “said,” and “such” should not be used as modifiers or as pronouns because they are vague. Bryan A. Garner, editor in chief of Black’s Law Dictionary, includes these words in his Dirty Dozen list. In the impeachment rules “same” as a pronoun is used five times; “said” is used seventeen times; and “such” is used nineteen times. (Please see the
table below listing the various times “same,” “said,” and “such” are used in the impeachment rules.)
On the word “same,” Garner says:
Many lawyers use “same” as a pronoun because they think they are being precise. For example: “Once the indemnitee receives such notice, the indemnitee shall acknowledge same.” Use “it” instead of “same” (“it” is not less precise).
Ordinary pronouns are better than “same” because they differentiate singular from plural – “same” doesn’t.
On the word “such,” Garner explains:
“Such” is inherently ambiguous. To the educated non-lawyer, it means “of that kind”. To the lawyer, it means “the very one just mentioned”. “Such” can oftentimes be replaced by “the”.
On the word “said,” Scott P. Stolley in Michigan Bar Journal, August 2003 clarifies:
It is a crutch word that lends awkwardness, not precision. There is no need to say ‘‘To the Honorable Judge of Said Court.’’ Just say ‘‘To the Honorable Court.’ Don’t say: ‘‘The said witness saw the said defendant run the light.’’ Simply say ‘‘The witness saw the defendant run the light.’’
Rule III should instead have been devoted strictly to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.
Question: After the trial, if the Senate votes to remove Chief Justice Corona from his office, how will its judgment be executed? The Senate impeachment rules do not have any provision on the execution of judgment.
| Before | After |
IV. The Presiding Officer shall have the power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, and writs authorized by these Rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.
| IV. The Presiding Officer, by himself or by the Secretary of the Senate, has the power to issue and enforce all orders, mandates, writs, regulations, and orders authorized by these Rules or by the Senate. |
Redundant expressions: (1) “make and issue”; (2) “make and enforce”; and (3) “authorize or provide.”
| Before | After |
V. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, and writs of the Senate.
| V. The Senate has the power to:
- compel witnesses to attend;
- enforce obedience to its orders, mandates, writs, and judgments;
- preserve order;
- punish in a summary way contempt of, or disobedience to, its authority, orders, mandates, writs, or judgments; and
- make all orders, rules, and regulations it may consider essential to the ends of justice.
The Sergeant-at-Arms of the Senate, as directed by the Senate President, may employ the aid of government agencies in enforcing the orders, mandates, and writs of the Senate. |
Redundant expressions: “aid and assistance,” “enforce, execute, and carry into effect,” “essential or conducive.”
Vague: “Sergeant-at-Arms of the Senate, under the direction of the President of the Senate, may employ such aid and assistance”. Aid and assistance from whom or from where?
The first sentence of Rule V has about 60 plus words. I broke up this long sentence into a vertical list. Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, August 2007):
“The vertical list is one of the drafter’s—and reader’s—best friends. Probably no other technique is more useful for organizing complex information, breaking it down into manageable chunks, avoiding repetition, and preventing ambiguity.”
This Rule incorrectly uses the word “deem.” Garner in his book on language and writing says that “the word deem should create a legal fiction, not state a truth.” In “
Synthesis: Legal Reading, Reasoning and Writing in Canada” (by Margaret Elizabeth McCallum, Christina L. Kunz, Deborah A. Schmedem), the authors recommend:
Avoid use of the term “to deem” as a substitute for “to think” or “to consider”. The word means “to treat [a thing] as being something that it is not, or possessing certain qualities it does not possess”. In this technical sense, “deem” is used in statutes to create a legal fiction; for example, a statute that requires applications to be originals signed by the applicant may provide that faxed applications will be deemed to be originals.
The phrase “all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice” incorrectly uses the relative pronoun “which” instead of “that.” In formal American English, “that” is used for restrictive clauses while “which” (surrounded by commas) is used for non-restrictive clauses. A clause is non-restrictive if it merely provides additional information and can be removed without changing the meaning. In British English, there is no distinction between “that” and “which.” Most Filipinos, unaware of the difference between restrictive and non-restrictive clauses, use “which” instead of “that.” (I have also made this mistake on several occasions.) But to achieve precision in government communications, we must follow the American English distinction between the relative pronouns “that” and “which.” (Please read Jose Carillo’s English Forum article “
Learning to use the relative pronouns confidently.”)
| Before | After |
| VI. The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate. The motion for a vote and the contrary opinion shall not take more than two (2) minutes each, with a one minute rebuttal allowed for the proponent of the motion. The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable. | VI. The Presiding Officer may rule on:
- questions of evidence such as materiality, relevancy, competency or admissibility; and
- incidental questions.
The ruling will stand as the judgment of the Senate. But if a senator asks that a formal vote be taken on the ruling, the Presiding Officer must submit the ruling for the Senate’s decision, after one contrary opinion has been expressed.
The motion for a vote and the contrary opinion must not take more than two minutes each, with a one minute rebuttal allowed for the motion’s proponent.
Instead of ruling by himself or herself, the Presiding Officer can choose to submit any question for the Senate’s vote.
When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court. |
The first sentence of Rule VI is an ultra long sentence, with about 100 words. I revised it by dividing it into three sentences, with the first sentence using a vertical list.
The phrase “such as, but not limited to” is legalese and can be changed to “such as” without any negative legal effect.
The word “suppletorily” is jargon. Instead of the sentence “The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.”, I changed it to “When an issue is not covered by these Rules, the Senate can resort to its Rules and the revised Rules of Court.”
| Before | After |
VII. Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided, a writ of summons shall be issued to the person impeached, reciting or incorporating said articles, and notifying him/her to appear before the Senate upon a day and at a place to be fixed by the Senate and named in such writ, and to file his/her Answer to said articles of impeachment within a non-extendible period of ten (10) days from receipt thereof; to which the prosecutors may Reply within a non-extendible period of five (5) days therefrom; and to stand to and abide by the orders and judgments of the Senate.
Such writ shall be served by such officer or person named in the order thereof, not later than three (3) days prior to the day fixed for such appearance of the person impeached, either by the delivery of an attested copy thereof to the person impeached, or if personal service cannot be done, service of the writ may be made by leaving a copy with a person of sufficient age and discretion at his/her last known address or at his/her office or place of business; and if the service of such writ shall fail the proceedings shall not thereby abate, but further service may be made in such manner as the Senate shall direct. If the person impeached, after service, shall fail to appear, either in person or by counsel, on the day so fixed or, appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed nevertheless as upon a plea of not guilty. If a plea of guilty shall be entered, judgment may be entered thereon without further proceedings.
| VII. The Senate must issue a writ of summons to the person impeached. The writ must:
- recite or incorporate the articles;
- notify the person impeached to appear before the Senate on the day and place fixed by the Senate;
- order the person impeached to file an Answer to the articles within a non-extendible period of ten days from receipt of the summons, with copy furnished to the panel of prosecutors; and
- order the person impeached to abide with the orders and judgments of the Senate.
The officer or person charged with serving the writ must serve it not later than three days before the day fixed for the appearance of the person impeached either by:
- delivering an attested copy of the writ to the person impeached; or
- if personal service cannot be done, by leaving the copy with a person of sufficient age and discretion at his or her last known address, office, or place of business.
If the writ cannot be served in the ways stated above, the Senate can direct that the summons be served in some other manner.
The trial will proceed even if:
- the person impeached, after due service of the writ, fails to appear either in person or by counsel, on the day fixed in the summons; or
- the person impeached fails to file his Answer to the articles of impeachment.
After the prosecutors have received the Answer, they have a non-extendible period of five days to file their Reply. |
This Rule should have been incorporated into Rule III (or placed after it). The phrase “Upon the presentation of articles of impeachment and the organization of the Senate as hereinbefore provided” raises two questions: One, as I have noted before, who presents the articles of impeachment to the Senate? Does presenting the articles refer to the submission of the articles to the Senate by the House of representatives? Or does it refer to the Presiding Officer informing the Senate that the articles have been submitted to it?
Two, “organization of the Senate” into what? Into an impeachment court, of course, but this is not clearly provided. To what Rule does
“hereinbefore provided” refer to? As I said above, Rule III should have been clearly devoted to matters like (1) organizing the Senate into an impeachment court; (2) taking by the senators of their oath or affirmation; (3) issuing the summons; and (4) political neutrality.
The sentences in this section are too long. I made them simpler by using numbered lists.
Vague: What does “to stand to ... the orders and judgments of the Senate” mean?
The phrase “prior to” is legalese. As Prof. Kimble suggests, the simpler word “before” should be used instead.
The provisions on (1) the filing of a Reply by the prosecutors and (2) entering of a plea of guilty should have been placed in the other Rules.
| Before | After |
XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.
| XII. The Secretary of the Senate must record and report the proceedings in impeachment cases in the same manner as the legislative proceedings of the Senate. |
Rule XII is verbose: the word “proceedings” is used three times in a single sentence, and the second part of the sentence (after the word “and”) can easily be incorporated into the first part.
I changed the phrase “in cases of impeachment” to “impeachment cases.” Prof. Kimble says in his article “Lessons in Drafting from the New Federal Rules of Civil Procedure” (Michigan Bar Journal, November 2007) says that we should root out unnecessary prepositional phrases and question every
of.
| Before | After |
XIII. Counsel for the parties shall be admitted to appear and be heard upon an impeachment: Provided, That counsel for the prosecutors shall be under the control and supervision of the panel of prosecutors of the House of Representatives.
| XIII. The person impeached and the panel of prosecutors of the House of Representatives can be represented by their lawyers. The lawyer for the panel of prosecutors must be under its control and supervision.
|
The phrase “Counsel for the parties shall be admitted to appear and be heard upon an impeachment” is a formalism. I changed the word “counsel” to the ordinary term “lawyer.”
I removed the proviso (Provided, That ...). Prof. Kimble in his article “
Down with Provided That” (Michigan Bar Journal, July 2004) enumerates the criticisms made by legal drafting experts against provisos. Among others, Kimble cites:
[1] Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003): ‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce single sentences that are often hundreds of words long. Knowledgeable drafters have railed against them for years. Apart from being a grammatical abomination, provided that is ambiguous . . . .’’
[2] David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520 (1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class with notwithstanding.’’
| Before | After |
XVI. If a Senator is called as a witness, he/she shall be sworn, and give his/her testimony standing in his/her place.
| ?
|
What exactly does “give his/her testimony standing in his/her place” mean? In our trial courts, the witness usually sits beside the judge’s table (so that the judge can clearly hear the testimony and observe the demeanor of the witness). If you remember from the impeachment trial of former President Joseph Estrada, the senator-judges were sitting in one section of the Senate hall and in front of them was a chair reserved for the witness called to testify. The lawyers for President Estrada and the House panel of prosecutors were on opposite sides of the hall, at right angles to where the senator-judges were. Does Rule XVI mean that the senator-witness will not sit down in the place reserved for the testifying witness but instead will testify while standing up in the section of the hall reserved for the senator-judges? This seems to be what Rule XVI is saying because Rule XXI states: “Thereafter, each Senator, as his/her name is called, shall rise in his/her place and answer: guilty or not guilty.”
But what’s the point in requiring the senator called as a witness to stand up while testifying? What if the senator is arthritic and cannot stand up for a long period of time? Will it be a violation of Rule XVI if the senator requests that he or she be allowed to sit down while testifying?
| Before | After |
XXI. The trial of all the articles of impeachment shall be completed before the Senators vote on the final question on whether or not the impeachment is sustained. On the final question whether the impeachment is sustained, the vote shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of all the Members, a judgment of acquittal shall be entered; but if the person impeached in such articles of impeachment shall be convicted upon any of said articles by the votes of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction, and a certified copy of such judgment shall be deposited in the Office of the Secretary of the Senate. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.
| XXI. The Senate must complete the trial of all the articles of impeachment before it votes on whether the person impeached is guilty or not.
The Senate must vote on each article of impeachment. An affirmative vote of two-thirds of all the senators is necessary to convict the person impeached of any of the articles of impeachment.
If the impeachment is not sustained on any of the articles of impeachment, the Senate must render a judgment of acquittal.
If the person impeached is convicted on any of the articles of impeachment, the Senate must render a judgment of conviction for that article.
A certified copy of the judgment, whether for acquittal or conviction, must be deposited in the Office of the Secretary of the Senate.
A motion for reconsideration of the vote on any of the articles of impeachment is not allowed |
Redundant expressions: The phrase “on the final question on whether or not the impeachment is sustained” is used twice (first and second sentences). The phrase “by the votes of two-thirds of all the Members” is used twice in the second sentence.
In the clause
“the vote shall be taken on each article of impeachment separately,” the adverb “separately” is unnecessary or redundant because of the word “each.“
The second sentence is ultra long with 105 words, and is complex, dealing with several issues (voting on each article; judgment of acquittal; judgment of conviction; two-thirds vote; and deposit of the judgment). I broke up this sentence into five sentences (in four paragraphs).
Rule XXI uses the words “enter” and “pronounce” in connection with “judgment.” I used the word “render” instead.
I will be adding more revisions and refining them as the impeachment proceedings against Chief Justice Corona unfold. If you have your own plain language revisions that can make the Senate rules on impeachment more understandable for the public, please send them to me at gtgalacio@yahoo.com. I am sure that some of you have noticed that the impeachment rules use a lot of nominalizations (verbs turned into nouns). Can you spot the nominalizations or
“nouners” as Prof. Kimble calls them?
| Same | Said | Such |
Rule III
whose duty it shall be to take the same.
Rule IX
the same shall be recorded
Rule XII. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.
Rule XVIII
The same shall likewise apply to the prosecutors, to the person impeached, and to their respective counsel and witnesses.
Rule XXIII
it being necessary to use the same as testimony.
| Rule II
during the consideration of said articles
Rule VII
reciting or incorporating said articles
file his/her Answer to said articles of impeachment
Rule XI
adjournment of the Senate sitting in said trial
XXI
be convicted upon any of said articles
Rule XXIII
Presiding Officer of the said Senate
the service of said subpoena
the said ______
the said ______
the accusations as set forth in said articles
the said ________
to answer to the said articles of impeachment
Presiding Officer of the said Senate
Form of Order to be indorsed on said writ of summons.
mentioned in the said writ of summons.
mentioned in the said writ of summons.
Presiding Officer of the said Senate
| Rule I
to receive the prosecutors on such time and date
Rule III
for the consideration of such articles
enforce such other regulations and orders
employ such aid and assistance
Rule VI
submit any such question to a vote
Rule VII
named in such writSuch writ shall be served
day fixed for such appearance of the person impeached
if the service of such writ shall fail
made in such manner as the Senate shall direct
answer to such articles of impeachment
Rule VIII
I have performed such service
Rule X
at such other hour as the Senate may order
Rule XI
the Presiding Officer upon such trial
Rule XXI
the person impeached in such articles of impeachment
certified copy of such judgment
Rule XXIIIsuch proceedings, examinations, trials, and judgments
perform such orders, directions, and judgments
Rule XXIV
fix a day and hour for resuming such consideration |
Notes: (1) Please read my post “
Plain English, Plain Language or Plain Writing for government offices and private companies in the Philippines.”
(2) I conduct seminars for government offices or private companies that want to train their staff in Plain English. Please email me at gtgalacio@yahoo.com or text 0927-798-3138 for details.
(3) For interactive grammar exercises, please visit my “
Better English for everyone” website; I also have
interactive quizzes on Plain English / Plain Language.
(4) If the tables do not look right, try using Mozilla Firefox or Google Chrome.
