The Phrase “As Amended” is Redundant and Inappropriate in Legal Citation or Referencing: A Common Mistake By Judges, Lawyers, and Law Students (The Human Right of Free Access to Law Advocacy Resources)

The Phrase “As Amended” is Redundant and Inappropriate in Legal Citation or Referencing: A Common Mistake By Judges, Lawyers, and Law Students

Copyright © 2019 By Dr. Leesi Ebenezer Mitee

Revised in 2021

1. Introduction

Citation of primary legislation and secondary legislation (also referred to as delegated legislation, subsidiary legislation, subordinate legislation, or statutory instruments) is important. That is the reason there is usually a citation clause in every piece of legislation. Note that there is no such thing as “legislations”, which is a common error even among lawyers and law students. “Legislation” is a collective noun, so it refers to a piece of legislation (singular) or many pieces of legislation (plural).

The citation clause is the provision in any legislation, which states the exact title of that legislation, also referred to as the “short title” in legislative parlance. For instance, Section 259 of the Nigerian federal legislation on evidence states: “This Act may be cited as the Evidence Act, 2011.” The citation clause is not there for mere fancy; no, it gives legislation its definitive name, title, or identity.

Nigerian legislative drafting tradition generally includes a comma before the year of the legislation, unlike what obtains in the more developed legislative drafting systems in some other countries. For example, Section 28 of the latest United Kingdom legislation on counter-terrorism and border security provides: “This Act may be cited as the Counter-Terrorism and Border Security Act 2019.” Note that there is no comma before the year of enactment. I suggest that the legislative drafting departments of all levels of the legislatures of Nigeria (local government, state government, and federal government) should dispense with the use of the unnecessary comma before the year of the legislation.

It is a common practice among court judges and lawyers, especially in some countries, to include the phrase “as amended” in written and verbal references to any legislation that has been amended. Law students have inherited, and continue to inherit, this practice from their Law lecturers and other lawyers. For example, one always hears or reads the phrase: “the Constitution of the Federal Republic of Nigeria, 1999 (as amended)” or its short form “the 1999 Constitution (as amended)”, simply because that Constitution has been amended. The Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 effected the first amendment.

2. The Legal Effect of an Amendment Legislation

An amendment legislation is any piece of legislation that alters (modifies) or replaces (substitutes) the provisions of an existing legislation. An amendment legislation is not an independent legislation; it has no legs with which to stand on its own. In fact, it breathes through the lungs of the extant legislation pursuant to which it was made, which is often its parent (or principal) legislation. Its existence is therefore transient.

The provisions of an amendment legislation are automatically, upon their coming into effect, incorporated into the affected extant legislation to effect the desired change or reform of the law. In outdated legislation management systems, like those of Nigeria (local, state, and federal), such incorporation of amendment legislation is formally effected in print (brick-and-mortar) loose-leaf volumes or annual traditionally bound volumes. But in modern legislation management systems, e.g. the Tasmanian EnAct Legislation System, the provisions of an amendment legislation are automatically consolidated upon commencement, thereby producing a real-time complete and comprehensive, up-to-date, reliable, and authoritative legislation database.

Whether the incorporation or consolidation is physically effected after a period of time (due to physical printing delays) or automatically effected (in real time) upon commencement (using modern legislation management technology), an amendment legislation naturally becomes spent and exists in history for purposes of point-in-time reference. For example, Section 20 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 completely replaced the provisions of the original Section 190 of the Constitution of the Federal Republic of Nigeria 1999 with the following new provisions:

“190 (1) Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of his office, he shall transmit a written declaration to the Speaker of the House of Assembly to that effect, and until he transmits to the Speaker of the House of Assembly a written declaration to the contrary, the Deputy Governor shall perform the functions of the Governor as Acting Governor.

“(2) In the event that the Governor is unable or fails to transmit the written declaration mentioned in subsection (1) of this section within 21 days, the House of Assembly shall, by a resolution made by a simple majority of the vote of the House, mandate the Deputy Governor to perform the functions of the office of the Governor as Acting Governor, until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor.”

Even after its amendment (complete substitution), the affected original Section is still referred to as “Section 190 of the Constitution of the Federal Republic of Nigeria 1999”. When the Nigerian Constitution, for example, is reprinted or republished with any amendment incorporated (a form of legislative consolidation), a marginal note or head note (in modern legislation format) is used as a legislative drafting mechanism to indicate the history of that amended Section, e.g. 2010 Act No. 5 as the reference to the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 (which is Act number 5 of 2010).

I clarify the peculiar position with the US Constitution in Section 4 below.

3. Standardised Legal Citation or Referencing

Law is one of the few professions that has its special citation or referencing style. There are variations of the established legal citation styles. For example, The Bluebook: A Uniform System of Citation (shortened as The Blue Book) is the dominant legal citation standard in use in the American legal system in law schools (the equivalent of law faculties in the Nigerian university system), by academics, by practising lawyers, by the courts, and by law journals or law reviews.

The United Kingdom equivalent of The Blue Book is the Oxford University Standard for Citation of Legal Authorities (OSCOLA). These two are arguably the most prominent specialised legal citation styles in the world.

The Nigerian Association of Law Teachers (NALT) recently developed its NALT Uniform Citation Guide. The introduction of NALT Uniform Citation Guide is a commendable development. However, I suggest that it should be revised properly to correct the errors that I have found in it.

There are also universal referencing guides for multiple academic disciplines that include citation of legal materials. The most prominent among these guides are the Publication Manual of the American Psychological Association (APA Style) and the Modern Language Association of America (MLA Style).

Section 21 of the Nigerian Interpretation Act 1964, for instance, provides a statutory guide on how Nigerian legislation may be cited:

“21. An Act may be cited—

“(a) in the case of an Act included in a revised edition of Acts of the National Assembly which is in force by virtue of an enactment, by its chapter number in that edition;

“(b) in the case of any other Act, by the number of the year in which it was passed and its number among the Acts passed in that year, and the mode of citation authorised by this section shall be in addition to any other mode of citation authorised by any other enactment.”

4. Is it Appropriate to Include the Phrase “As Amended” in Legal Citation or Reference?

Is it appropriate to include the phrase “as amended” in the citation of any legislation simply because that legislation has been amended? The answer, of course, is “NO”. Any legal citation style, if there is any, that requires the inclusion of the phrase “as amended” in legal referencing should consider the need to remove such requirement because that phrase is unnecessary, redundant, and inappropriate.

The above-quoted Section 21 of the Nigerian Interpretation Act 1964, for example, does not contain any mention of any reference to the fact of amendment among its list of reference information that should be added to the citation that each piece of legislation expressly stipulates in its citation clause.

Every piece of legislation has the prospect of amendment because law is a dynamic subject which exists in a state of violent flux to meet the ever-changing state of affairs in the human society. Is it not, therefore, odd to use the phrase “as amended” when referring to every piece of legislation that has been amended? It surely is.

The Constitution of the United States of America (shortened as “the US Constitution”), made in 1787, for instance, has twenty-seven amendments that were enacted between 1791 (First Amendment) and 1992 (Twenty-seventh Amendment). It is interesting to know that the Twenty-seventh Amendment was ratified 203 years after it was first proposed as an amendment. Yet the US Constitution is not cited with the phrase “as amended”. Americans simply refer to the Constitution’s amendments themselves, e.g. “The Second Amendment” (the right of the people to keep and bear Arms) because an Amendment is the equivalent of an Article of the US Constitution, which is different from what obtains in Nigeria and other countries.

Is it possible for any lawyer to be consistent in using the “as amended” phrase each time (including in everyday speech, conversation, or messaging) he / she mentions any legislation that has ever been amended, as there are hundreds of amended extant legislation in the Nigerian legal system (for instance), some of which are more than one hundred years old? The answer is “NO” because no person, including the best lawyer anywhere in the world, can know all the extant laws of a country. As the revered Chief Justice Charles Abbott (Lord Tenterden) rightly declared in Montriou v. Jefferys, 2 C. & P. 113, 116; 172 Eng. Rep. R. 51, 53 (1825):

“No attorney is bound to know all the law. God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law. . .”

But is there any situation in which it may be appropriate to use the phrase “as amended”? The answer is “YES”, of course. It can be used when referring to a specific provision of a piece of legislation that has been amended, but only where there is the need to mention the fact of the amendment. For example, it is appropriate to say or write:

“Section 190 of the Constitution of the Federal Republic of Nigeria 1999, as amended by Section 20 of the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, makes a new provision for the position of Acting Governor during a temporary absence of the Governor.”

Further, it is appropriate to say or write, in general terms:

“The Nigerian Constitution, as amended by the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, contains a new provision for the position of Acting Governor during a temporary absence of the Governor.”

5. Conclusion

It is unnecessary, redundant, inappropriate, and unscholarly to use the phrase “as amended” in any legal citation of (or reference to) a piece of legislation, simply because that law has been amended, e.g. “the 1999 Nigerian Constitution (as amended)”. Citation clauses in legislation, e.g. the Nigerian Interpretation Act 1964, do not support the use of that phrase.

However, it is appropriate to use the “as amended” phrase when referring to a specific provision of a piece of legislation that has been amended, but only where there is the need to mention the fact of the specific amendment. These two scenarios are distinguishable and worlds apart.

Copyright © 2019 By Dr. Leesi Ebenezer Mitee