Would word ‘shall’ have saved Sereno?

“In most legal instruments, ‘shall’ violates the presumption of consistency, which why ‘shall’ is one of the most heavily litigated words in the English language.”

--Bryan Garner, legal writing scholar and editor-in-chief of “Black’s Law Dictionary”

Both the majority decision and at least one dissenting opinion in the “quo warranto” case that ousted last Friday (May 11) Ma. Lourdes Sereno as chief justice of the Supreme Court tangled over word meaning: the use of the “may” instead of “shall” in the Constitution’s impeachment provision.

Both the 1935 and 1973 constitutions used the word “shall” but the 1987 Constitution uses the word “may.” To the majority, whose decision was written by Associate Justice Noel Tijam, that is big.

Dictionary meaning

Focusing on accepted meaning, the majority said “may” is “permissive,” “a mere possibility, an opportunity, and option.” There’s an “alternative means” of removing Sereno, by quo warranto, beside the Constitution-prescribed impeachment and conviction (I&C).

That’s “myopic” and “unhistorical view of the framework” on which the impeachment process was created, said Associate Justice Marivic Leonen, one of six who voted against eight in the landmark decision. Context is provided not just by the word “shall” but the entire Constitution and its precepts.

What it didn’t say

Here’s how Leonen in his dissent dealt with the argument on “legal hermeneutics” involving the meaning of “may” and “shall”:

■ Using the phrase “shall be removed” would’ve allowed one to infer that Congress must decide to vote for I&C. Using “may” gives the option to remove or not to remove, not an option on the process, which Leonen said was clear and specific with respect to the chief justice and other constitutional officers.

■ “May also be removed” could’ve been used, but was not. That phrase would’ve clearly intended that a process other than I&C is possible.

■ “May only be removed,” which the framers also shunned, could’ve been clearer as to the use of “quo warranto.” But, Leonen said, the absence of “only” didn’t mean that another process was intended.

Caveat on ‘shall’

The Constitution framers apparently didn’t read what Bryan Garner, the worlds leading legal lexicographer and Black’s Law Dictionary chief editor, warned about “shall” being inconsistent as to meaning. (For a good reason, in 1986 Garner didn’t write that yet.) True, the 1987 Constitution didn’t use the word “shall” and used “may” instead. But both allow different interpretations. “Shall” is as ambiguous as “may.”

Many lawyers complain they were taught by statutory construction teachers about “shall” being mandatory. Those teaching law and those who made the law were probably clueless about Garner’s warning.

US federal authorities realized that but it was only in 2010 that they issued this order: when the government means an obligation to be mandatory, the words “must” or “must not,” shall, er, must be used. In two documents, that order became standard regulation: the Register Document Drafting Handbook and the Federal Plain Language Guidelines. “Shall” is a no-no in federal laws and regulations.

More clear intent

Yet winning the dispute on word usage by itself couldn’t have saved Sereno. The majority, more specifically the justices and the powers that wanted her tarred and feathered, had unleashed a barrage of arguments that would look formidable even with its flaws.

The word “shall” couldn’t have saved Sereno, whose foes included six of her colleagues who sat as jurors and a president who publicly tagged her as “enemy.”

But more specific language would’ve conveyed more unmistakably the intent of the Constitution framers about the impeachment process--as against those who’d want to distort meaning for personal or partisan purposes.

The tangle over word usage highlights the need for lawmakers to be careful about what they mean and what they write into the law