The fine art of legal writing

The annual filing of our income tax returns every April is never a pleasant experience. Not only do we part with our money, but filling out the ITR is also a fine art in itself.

The Americans, from whom we copied our income tax payment deadline, must have had the same experience. Their income tax code, despite the signing into law by US President Barack Obama on Oct. 13, 2010, of what is known as “The Plain Writing Act of 2010,” remains as obscure as ever, keeping true to the spirit of mystery that is evoked by the word “code.” Well-intentioned as the 2010 law was, which was “to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use,” it still has not, to date, transformed US tax law from its image of being the “unofficial reigning champion of gobbledygook.”

As compared to the American Internal Revenue Code which runs to hundreds of pages and contains intricate rules, ours is considerably less lengthy, obtuse and complicated in keeping with the scope and reach of our taxation and development of our economy. But still, we find many provisions written in convoluted and long-winded language. For instance, a simple term as “shareholder” is defined as to “include holders of a share/s of stock, warrant/s, and/or option/s to purchase shares of stock of a corporation, as well as a holder of a unit of participation in a partnership (except general professional partnerships) in a joint stock company, a joint account, a taxable joint venture, a member of an association, recreation or amusement club (such as golf, polo, or similar clubs) and a holder of a mutual fund certificate, a member in an association, joint-stock company, or insurance company.”

Or take the definition of “fringe benefit.” Section 33(B) of the tax code says the term “means any good, service, or other benefit furnished or granted in cash or in kind by an employer to an individual employee (except rank and file employees as defined herein) such as but not limited to, the following: (1) Housing; (2) Expense account; (3) Vehicle of any kind; (4) Household personnel, such as maid, driver and others; (5) Interest on loan at less than market rate to the extent of the difference between the market rate and actual rate granted”—and the list goes on to (10). Then, not satisfied with what are “included,” the law lists those not taxable as fringe benefits.

Indeed, determining what is or what is not a fringe benefit is in itself an intricate task.

Court decisions apparently are more readable than our laws. Our Constitution requires, under Section 14 of Article VIII, that a court decision express “clearly and distinctly the facts and law on which it is based.” In the case of Office of the Court Administrator v. Judge Dolores Español (A.M. No. RTJ-04-1872, 18 October 2004), judges were told that “[w]hile decision-writing is a matter of personal style, judges are well-advised to prepare concise but complete as well as correct and clear decisions, orders and resolutions.”

The Supreme Court takes this standard seriously. In one case, a trial judge feeling inspired embellished his decision as follows: “This is an action for ‘Cancellation of Entry in the Civil Registry’ particularly on the marriage contract of one Mauricio Leonor, Jr. and Virginia Amor supposedly to have taken place in a long distance past on March 13, 1960 and after a Rip Van Winkle sleep and dormancy liken to a Mt. Pinatubo explosion that rocked the peace and quiet in the lives of the supposedly participants to this drama in Calatrava and San Carlos City, Negros Occidental when out of the blue one party in the person of an aggrieved left-behind spouse revived and revealed an ancient piece of marital bond between her and a reluctant spouse.”

The Supreme Court, when the decision was eventually elevated to it on appeal in Virgilia A. Leonor v. Court of Appeals, G.R. No. 112597, 2 April 1966, saw in this excerpt “a crude attempt at literary sophistication [that] is matched only by its jarring syntax and grammatical incongruencies.” The language, said the Court, was “convoluted.” However, Chief Justice Hilario G. Davide Jr. is of a different mind. In his introduction to the “Manual of Judicial Writing,” a study funded by the United States Agency for International Development (USAID), Chief Justice Davide opined:

“While the Constitution requires that decisions express clearly and distinctly the facts and law on which they are based, it does not prescribe a specific form or style. Magistrates are free to adopt their own style as long as it catches the real nuances and essence of the principle or message sought to be conveyed to the readers, most especially to the parties concerned. They may use sculptured vibrant language if only to add drama or color to their decisions and make it appealing and convincing to the readers. They may utilize idioms because, as someone said, “[a] language without idioms is like a man who cannot smile.”

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De Los Angeles.