(Note: Jump to the Philippine Supreme Court decisions on proper interpretation of “and/or” in Chinabank vs. HDMF, 1999 and Dayao vs. Comelec, 2013)
1. Louis-Philippe Pigeon, former Justice of the Supreme Court of Canada:
“And/or” seems to be used by writers whose main concern is to appear erudite. In my opinion, quite the opposite impression is created. Use of this conjunction which is not a conjunction is repugnant to the spirit of the language, English or French. (Drafting and Interpreting Legislation, 1988)
2. Michigan Bar Journal, August 2003, by Scott P. Stolley:
The real problem with “and/or” is that it plays into the hands of a bad faith-reader. Which one is favorable? And or Or? The bad faith-reader can pick one or the other, or both — whatever reading is better from that reader’s perspective.
3. Bryan A. Garner includes “and/or” in his “Dirty Dozen” list of words and phrases that legal writers should avoid. Garner says: “American courts have ruled, as early as 1932, that ‘and/or’ is not part of the English language.”
4. Some 1930s US cases condemning “and/or”
- Minor v. Thomasson, 236 Ala. 247, 182 So. 16, 18 (Ala.1938) (“the interloping disjunctive -conjunctive-conjunctive-disjunctive conjunction”)
- Cochrane v. Florida East Coast R. Co., 107 Fla. 431, 145 So. 217, 218 (Fla.1932) (“one of those inexcusable barbarisms which was sired by indolence and dammed by indifference ... senseless jargon”)
- Bell v. Wayne United Gas Co., 116 W.Va. 280, 281, 181 S.E. 609, 618 (W.Va.1935) (“a disingenuous, modernistic hybrid, inept and irritating”)
- State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179, 1180 (Mo.1936) (“meaningless symbol”)
- American Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1084 (Tex.Civ.App. 1938) (“the abominable invention”)
5. Recent Australian cases condemning “and/or”
- Harrison Green vs. The Queen (2000)
- Extraman et al vs. Blenkinship et al (2008)
- Canberra Data vs. Vibe Construction (March 2010)
6. Recent US cases condemning “and/or”
7. Some Philippine laws using “and/or”
- RA 7192 Gender Equality, Section 4, par. (2)
Include an assessment of the extent to which their programs and/or projects integrate women in the development process and of the impact of said programs or projects on women, including their implications in enhancing the self-reliance of women in improving their income;
- RA 8972, Section 3, par. (4)
Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner;
- RA 9048 An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical Or Typographical Error And/Or Change of First Name Or Nickname In The Civil Register
8. Philippine Supreme Court decisions on proper interpretation of “and/or”
Overview of the Supreme Court rulings:
Chinabank vs. HDMF, 1999:
Section 19 of P.D. No. 1752 intended that an employer with a provident plan or an employee housing plan superior to that of the fund may obtain exemption from coverage. If the law had intended that the employer should have both a superior provident plan and a housing plan in order to qualify for exemption, it would have used the word “and” instead of “and/or.”
Dayao vs. Comelec, 2013:
The legal meaning of the term “and/or” between “refusal” and “cancellation” should be taken in its ordinary significance — “refusal and/or cancellation” means “refusal and cancellation” or “refusal or cancellation.” It has been held that the intention of the legislature in using the term “and/or” is that the word “and” and the word “or” are to be used interchangeably.
The word “or,” on the other hand, is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. As such, “refusal or cancellation,” consistent with their disjunctive meanings, must be taken individually to mean that they are separate instances when the Comelec can exercise its power to screen the qualifications of party-list organizations for purposes of participation in the party-list system of representation.
That this is the clear intent of the law is bolstered by the use simply of the word “or” in the first sentence of Section 6 that “the Comelec may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition.”
Plain Language summary:
The controversies in both cases could have been avoided if our legislators had avoided using the phrase “and/or” and had clarified matters by choosing between “and” or “or.”
From Michigan Bar Journal, August 2003, by Scott P. Stolley:
“The negligence of Defendant Jones and/or Defendant Smith proximately caused Plaintiff ’s injuries.”
Alternatives:
“The negligence of Defendant Jones or Defendant Smith proximately caused Plaintiff ’s injuries.”
“ … of Defendant Jones or Defendant Smith, or both” |
China Banking Corporation and CBC Properties and Computer Center Inc., Petitioners v. The members of the Board of Trustees, Home Development Mutual Fund (HDMF); HDMF President; and the Home Mutual development Fund, Respondents. G.R. No. 131787, May 19, 1999
Background facts:
1. China Banking Corporation (Chinabank) and CBC Properties and Computer Center Inc. (CBC-PCCI) are both employers who were granted by the Home Development Mutual Fund (HDMF) certificates of waiver dated July 7, 1995 and January 19, 1996 for the identical reason of Superior Retirement Plan under Section 19 of P. D. 1752, otherwise known as the Home Development Mutual Fund Law of 1980. Under that law, employers who have their own existing provident [sic] and/or employees-housing plans may register for annual certification for waiver or suspension from coverage or participation in the Home Development Mutual Fund.
2. P. D. 1752 was amended in June 1994 by Republic Act No. 7742. Subsequently, the HDMF Board of Trustees issued the following:
A. Amendment to the Rules and Regulations Implementing R.A. 7742; and
B. HDMF Circular No.124-B or the Revised Guidelines and Procedure for filing Application for Waiver or Suspension of Fund Coverage under P.D. 175
Under the Amendment and the Guidelines, a company must have a provident/retirement and housing plan superior to that provided under the Pag-IBIG Fund to be entitled to exemption/waiver from fund coverage.
(Note: The phrase “and/or” was used in Section 19 of P. D. 1752; on the other hand, “and” was used in the Amendment and the Guidelines.)
3. Chinabank and CBC-PCCI applied for renewal of waiver of coverage from the fund for 1996, but the applications were disapproved for the identical reason that:
Our evaluation of your companies application indicates that your retirement plan is not superior to Pag-IBIG Fund. Further, the amended Implementing Rules and & Regulations of R. A. 7742 provides that to qualify for waiver, a company must have retirement/provident and housing plans which are both superior to Pag-IBIG Funds.
4. Chinabank and CBC-PCCI thus filed a petition for certiorari and prohibition before the Regional Trial Court of Makati; they sought to annul and declare void the Amendment and the Guidelines for having been issued in excess of jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction. They alleged that the HDMF Board exceeded its rule-making power by requiring the employer to have both a retirement/provident plan AND an employee housing plan in order to be entitled to a certificate of waiver or suspension of coverage from the HDMF.
Issue raised by Chinabank and CBC-PCCI:
The Amendment and Guidelines should be set aside and declared void for being inconsistent with the enabling law, P.D. 1752, as amended by R.A. 7742.
R.A. 7742 merely requires as a precondition for exemption for coverage, the existence of either a superior provident (retirement) plan and/or a superior housing plan, and not the concurrence (or existence) of both plans. | Answer by HDMF Board:
The use of the words “and/or” in Section 19 of P.D. No. 1752, which words are diametrically opposed in meaning, can only be used interchangeably and not together, and the option of making it either both or any one belongs to the HDMF Board.
There is no question of law involved. The interpretation of the phrase “and/or” is not purely a legal question and can be determined administratively. In denying the applications for waiver of coverage under R.A. 7742, the Board was exercising its quasi-judicial function, and its findings are generally accorded not only respect but even finality. |
When the RTC ruled against them by dismissing their petition, Chinabank and CBC-PCCI filed an appeal with the Supreme Court by certiorari under Rule 45 of the 1997 Rules of Civil Procedure on pure questions of law.
Supreme Court ruling: What is the proper interpretation of “and/or”?
The assailed Amendment to the Rules and Regulations and the Revised Guidelines suffer from a legal infirmity and should be set aside.
The legal meaning of the words “and/or” should be taken in its ordinary signification, i.e., either and or; e.g. butter and/or eggs means “butter and eggs” or “butter or eggs.”
The term “and/or” means that effect should be given to both the conjunctive “and” and the disjunctive “or”; or that one word or the other may be taken accordingly as one or the other will best fulfill the purpose intended by the legislature as gathered from the whole statute. The term is used to avoid a construction which by the use of the disjunctive “or” alone will exclude the combination of several of the alternatives or by the use of the conjunctive “and” will exclude the efficacy of any one of the alternatives standing alone.
It is accordingly ordinarily held that the intention of the legislature in using the term “and/or” is that the word “and” and the word “or” are to be used interchangeably.
Section 19 of P.D. No. 1752, intended that an employer with a provident plan or an employee housing plan superior to that of the fund may obtain exemption from coverage. If the law had intended that the employee should have both a superior provident plan and a housing plan in order to qualify for exemption, it would have used the word “and” instead of “and/or.”
Antonio D. Dayao, Rolando P. Ramirez and Adelio R. Capco, Petitioners, vs. Commission on Elections and LPG Marketers Association Inc., Respondents. G.R. No. 193643, January 29, 2013
Background facts:
1. On May 21, 2009, LPG Marketers Association, Inc. (LPGMA) sought party-list accreditation with the Comelec, through a petition for registration as a sectoral organization for the purpose of participating in the May 10, 2010 elections under Republic Act No. 7941 or the Party-List System Act.
2. After the requisite publication, verification, and hearing, and without any apparent opposition, LPGMA’s petition was approved by the Comelec in its Resolution dated January 5, 2010.
3. Four months later, Antonio Dayao, Rolando Ramirez, and Adelio Capco lodged before the Comelec a complaint for the cancellation of LPGMA’s registration as a party-list organization. They were later on joined by the Federation of Philippine Industries Inc. (FPII) as a complainant-in-intervention.
The petitioners claimed that LPGMA does not represent a marginalized sector of the society because its incorporators, officers and members are not marginalized or underrepresented citizens; they are actually marketers and independent re-fillers of LPG that control 45% of the national LPG retail market and have significant ownership interests in various LPG refilling plants.
4. In its resolutions dated August 5, 2010 and September 6, 2010, the Comelec dismissed the complaint for two reasons. First, the ground for cancellation cited by the petitioners is not among the exclusive enumeration in Section 6 of R.A. No. 7941. Second, the complaint is actually a belated opposition to LPGMA’s petition for registration which has long been approved with finality on January 5, 2010.
5. Ascribing grave abuse of discretion to the Comelec, the petitioners filed with the Supreme Court petitions for certiorari under Rule 65 of the Rules of Court, asking it to rule on the correctness of the Comelec resolutions.
6. Supervening event while the petitions were being heard by the Supreme Court: As shown in Resolution dated December 13, 2012, LPGMA passed the automatic review conducted by the Comelec on the qualifications of party-list groups. The Comelec found LPGMA to be compliant with the guidelines set by law and jurisprudence, and its accreditation was retained for purposes of the 2013 party-list elections.
Supreme Court ruling: Difference between “refusal” and “cancellation” and proper interpretation of “and/or”
The Comelec had no valid justification for the dismissal of the complaint for cancellation. But because of Comelec Resolution dated December 13, 2012, the petitions were dismissed.
An opposition to a petition for registration is not a condition precedent to the filing of a complaint for cancellation.
Section 6 (“Refusal and/or Cancellation of Registration”) of R.A. No. 7941 lays down the grounds and procedure for the cancellation of party-list accreditation. For the Comelec to validly exercise its statutory power to cancel the registration of a party-list group, the law imposes only two conditions: (1) due notice and hearing is afforded to the party-list group concerned; and (2) any of the enumerated grounds for disqualification in Section 6 exists.
(Note: The title of Section 6 uses the phrase “and/or” between the words “Refusal” and “Cancellation.”)
The distinctiveness of the two powers (“Refusal” and “Cancellation”) is immediately apparent from their basic definitions. To refuse is to decline or to turn down, while to cancel is to annul or remove. Adopting such meanings within the context of Section 6, refusal of registration happens during the inceptive stage when an organization seeks admission into the roster of Comelec-registered party-list organizations through a petition for registration.
Cancellation, on the other hand, takes place after the fact of registration when an inquiry is done by the Comelec, by itself or upon a verified complaint, on whether a registered party-list organization still holds the qualifications imposed by law. Refusal is handed down to a petition for registration, while cancellation is decreed on the registration itself after the petition has been approved.
The legal meaning of the term “and/or” between “refusal” and “cancellation” should be taken in its ordinary significance — “refusal and/or cancellation” means “refusal and cancellation” or “refusal or cancellation.” It has been held that the intention of the legislature in using the term “and/or” is that the word “and” and the word “or” are to be used interchangeably.
The term “and/or” means that effect should be given to both the conjunctive “and” and the disjunctive “or” or that one word or the other may be taken accordingly as one or the other will best effectuate the purpose intended by the legislature as gathered from the whole statute. The term is used to avoid a construction which by the use of the disjunctive “or” alone will exclude the combination of several of the alternatives or by the use of the conjunctive “and” will exclude the efficacy of any one of the alternatives standing alone.
Hence, effect shall be given to both “refusal and cancellation” and “refusal or cancellation” according to how Section 6 intended them to be employed. The word “and” is a conjunction used to denote a joinder or union; it is pertinently defined as meaning “together with,” “joined with,” “along or together with.” The use of “and” in Section 6 was necessitated by the fact that refusal and cancellation of party-list registration share similar grounds, manner of initiation and procedural due process requirements of notice and hearing. With respect to the said matters, “refusal” and “cancellation” must be taken together. The word “or,” on the other hand, is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. As such, “refusal or cancellation,” consistent with their disjunctive meanings, must be taken individually to mean that they are separate instances when the Comelec can exercise its power to screen the qualifications of party-list organizations for purposes of participation in the party-list system of representation.
That this is the clear intent of the law is bolstered by the use simply of the word “or” in the first sentence of Section 6 that “the Comelec may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition.”
Consequently, the Comelec’s conclusion that the complaint for cancellation, filed four months after the petition was approved, is actually a belated opposition, obliterates the distinction between the power to register/refuse and the power to cancel. Since an opposition may only be sensibly interposed against a petition for registration, the proceedings for which involve the Comelec’s power to register, it is wrong to impose it as a condition for the exercise of the Comelec’s entirely separate power to cancel. As such, the absence of an opposition to a petition for registration cannot serve to bar any interested party from questioning, through a complaint for cancellation, the qualifications of a party-list group.
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