Ex post facto law
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An ex post facto law (Latin for "from after the action" or "after the facts") is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed. Conversely, a form of ex post facto law commonly called an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such laws are also known by the Latin term in mitius.
A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation is no longer applicable to situations to which it previously was, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of such laws is called Nullum crimen, nulla poena sine praevia lege poenali, especially in European Continental systems.
Some common-law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred before the judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.
- 1 Ex post facto laws by country
- 1.1 Australia
- 1.2 Brazil
- 1.3 Canada
- 1.4 Finland
- 1.5 France
- 1.6 Germany
- 1.7 Hungary
- 1.8 India
- 1.9 Indonesia
- 1.10 Iran
- 1.11 Ireland
- 1.12 Israel
- 1.13 Italy
- 1.14 Japan
- 1.15 Lithuania
- 1.16 New Zealand
- 1.17 Norway
- 1.18 Pakistan
- 1.19 Philippines
- 1.20 Poland
- 1.21 Russia
- 1.22 Spain
- 1.23 South Africa
- 1.24 Sweden
- 1.25 Turkey
- 1.26 United Kingdom
- 1.27 United States
- 2 Treatment by international organizations and treaties
- 3 Quotations
- 4 Grammatical form and usage
- 5 See also
- 6 References
Ex post facto laws by country
Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retroactive laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retroactively.
Retroactive laws designed to prosecute what was perceived to have been a blatantly unethical means of tax avoidance were passed in the early 1980s by the Fraser government (see Bottom of the harbour tax avoidance). Similarly, the retroactive effect of legislation criminalizing certain war crimes retroactively have been held to be constitutional (see Polyukhovich v Commonwealth).
The government will sometimes make a press release that it intends to change the tax law with effect from the date and time of the press release, before legislation is introduced into parliament.
According to the 5th Article, section XXXVI of the Brazilian Constitution, laws cannot have "ex post facto" effects that affect acquired rights, accomplished juridical acts and res judicata.
The same article in section XL prohibits ex post facto criminal laws. Like France, there is an exception when retroactive criminal laws benefit the accused person.
In Canada, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. Also, under section 11(i) of the Charter, if the punishment for a crime has varied between the time the crime was committed and the time of sentencing following a conviction, the convicted person is entitled to the lesser punishment.
Because Section 11 of the Charter is among the sections that can be overridden under Section 33 (the notwithstanding clause), Parliament could in theory enact ex post facto laws by invoking Section 33. However, the federal Parliament (which has the sole power to enact laws punishable for violation by two years or more in penitentiary) has never attempted to enact an ex post facto law (or any other law) using Section 33.
It should be emphasized that the Charter prohibition applies only to criminal law. Changes to civil law in Canada can be (and occasionally are) enacted ex post facto. In one example, convicted murderer Colin Thatcher was ordered to forfeit proceeds from a book he had published (after being paroled from prison) under Saskatchewan's Son of Sam law. Although the Saskatchewan law was passed long after Thatcher's murder conviction, the courts have ruled that Son of Sam laws prescribe only civil penalties (as opposed to additional criminal penalties) and are thus not subject to Charter restrictions.
Generally, the Finnish legal system does not permit ex post facto laws, especially those that would expand criminal responsibility. They are not expressly forbidden but instead the ban is derived from more general legal principles and basic rights. In civil matters, such as taxation, ex post facto laws may be made in some circumstances.
Historically, there have been two exceptional instances when ex post facto criminal laws have been used in Finland.
Following the Finnish civil war of 1918, the Parliament of Finland passed a law setting up tribunals to try suspected rebels. These tribunals issued death sentences in many cases, although very few of those accused could have committed a crime that carried the death penalty under Finnish law in force during the war. Several hundred people were executed under what was arguably an ex post facto legal arrangement. During the war, and before the tribunals were set up, thousands of people had been executed without trial by both sides.
After World War II, Finland was under pressure to convict political leaders whom the Allied powers considered responsible for Finnish involvement in the war. An ex post facto law was passed in the autumn of 1945 to permit prosecution for war responsibility, and eventually eight politicians were convicted. In another post-war case, the weapons cache case, an ex post facto law was passed in 1947 so that military personnel could be prosecuted for unofficially preparing for guerrilla resistance in case of Soviet occupation.
In France, so-called "lois rétroactives" (retroactive laws) are technically prohibited by Article 2 of the Code Civil, which states that: "Legislation provides only for the future; it has no retrospective operation". In practice however, since the Code Civil does not have the status of constitutional legislation and can therefore be overruled by subsequent laws, the Conseil Constitutionnel has determined that retroactive laws can be passed within certain limits – such as in the case of financial or tax legislation –, particularly where it is considered to be in the "general interest"; this has been demonstrated by a series of decisions handed down by the Conseil Constitutionnel concerning retroactive tax laws.
However, in criminal law, ex post facto sanctions are effectively forbidden as per Article 112-1 of the French Penal Code, except in cases wherein the retroactive application benefits the accused person (called retroactivity "in mitius"). They are also considered unconstitutional, since the principle of non-retroactivity is laid down in Article 8 of the Declaration of the Rights of Man and of the Citizen, which has constitutional status under French law.
Article 103 of the German basic law requires that an act may be punished only if it has already been punishable by law at the time it was committed (specifically: by written law, Germany following civil law).
Some scholars[who?] and politicians like Robert A. Taft, at the time U.S. Senator from Ohio, asserted that the Nuremberg Trials following World War II were based on ex post facto law, because the Allies did not negotiate the London Charter, defining crimes against humanity and creating the International Military Tribunal, until well after the acts charged. Others, including the International Military Tribunal, argued that the London Charter merely restated and provided jurisdiction to prosecute offenses that were already made unlawful by the Kellogg-Briand Pact, the Covenant of the League of Nations, and the various Hague Conventions.
The problem of ex post facto law was also relevant in the 1990s as there was a discussion about the trials against East German soldiers who killed fugitives on the Inner-German border (Mauerschützen-Prozesse - Wall-shooters'/ -guards' trials).
In 2010, the parliament established a 98% punitive tax on any income over two million forints received either as a retirement package or as severance pay in the last 5 years in the government sector.
In India, without using the expression "Ex post facto law", the underlying principle has been adopted in the Article 20 (1) of the Indian Constitution in the following words:
"No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which have been inflicted under the law in force at the time of commission of the offence."
Further, what Art. 20(1) prohibits is conviction and sentence under an ex post facto law for acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a difference between the Indian and the American positions on this point, whereas in America, an ex post facto law is in itself invalid, it is not so in India. The courts may also interpret a law in such a manner that any objection against it of retrospective operation may be removed.
Article 28I of the Indonesian constitution prohibits trying citizens under retroactive laws in any circumstance. This was tested in 2004 when the conviction of one of the Bali bombers under retroactive anti-terrorist legislation was quashed.
Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of Iran's constitution.
The imposition of retroactive criminal sanctions is prohibited by Article 15.5.1° of the constitution of Ireland. Retroactive changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right.
Israel enacted the 1950 "Nazi and Nazi Collaborators (Punishment) Law" for the purpose of punishing acts that occurred during the Second World War, when Israel did not exist as a state. The law was used to punish Adolf Eichmann and others.
Article 25, paragraph 2, of the Italian Constitution establishing that "nobody can be punished but according to a law come into force before the deed was committed", prohibits indictment pursuant a retroactive law. Article 11 of preliminary provisions to the Italian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's rights prohibit retroactive laws on principle. Such provisions can be derogated, however, by acts having force of the ordinary law.
Article 39 of the constitution of Japan prohibits the retroactive application of laws. Article 6 of Criminal Code of Japan further states that if a new law comes into force after the deed was committed, the lighter punishment must be given.
Lithuania has no constitutional prohibition on ex post facto laws. Retroactive criminal sanctions are prohibited by Article 2, Part 1 (Chapter 1) of the Criminal Code of the Republic of Lithuania. Retroactive administrative sanctions are prohibited by Article 8 of the Administrative Code of the Republic of Lithuania.
Lithuanian lawyer Dainius Žalimas contends that there has been retroactive application of the law on Genocide (and subsequently adopted articles of the Criminal Code) against participants in Soviet repressions against Lithuanian guerilla fighters and their supporters, and gives examples of such decisions. The Article 99 of the Criminal Code of the Republic of Lithuania was introduced only in September 26, 2000 and therefore can't be used in events of 1944-1953.
Section 7 of the Interpretation Act 1999 stipulates that enactments do not have retrospective effect. The New Zealand Bill of Rights Act 1990 also affirms New Zealand's commitment to the ICCPR and UNDHR, with section 26 preventing the application of retroactive penalties. This is further reinforced under section 6(1) of the current Sentencing Act 2002 which provides, "[p]enal enactments not to have retrospective effect to disadvantage of offender" irrespective of any provision to the contrary.
Section 26 of the Bill of Rights and the previous sentencing legislation, the Criminal Justice Act 1985, caused significant digression among judges when the New Zealand Parliament introduced legislation that had the effect of enacting a retrospective penalty for crimes involving an element of home invasion. Ultimately, the discrepancy was restricted with what some labelled artificial logic in the cases of R v Pora and R v Poumako.
Article 97 of the Norwegian constitution prohibits any law to be given retroactive effect. The prohibition applies to both criminal and civil laws, but in some civil cases, only particularly unreasonable effects of retroactivity will be found unconstitutional.
Article 12 of the constitution of Pakistan prohibits any law to be given retroactive effect by stating:
- 12.1 - No law shall authorize the punishment of a person:-
- 12.1.a - for an act or omission that was not punishable by law at the time of the act or omission; or
- 12.1.b - for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
The 1987 Constitution of the Philippines categorically prohibits the passing of any ex post facto law. Article III (Bill of Rights), Section 22 specifically states: "No ex post facto law or bill of attainder shall be enacted."
However, the Cybercrime Prevention Act, which went into effect on October 3, 2012, is criticized for being ex post facto.
Retroactive application of law is prohibited by the Article 3 of the Polish civil code, and the legal rule prohibiting such retroactive application is commonly memorised as a Latin sentence Lex retro non agit ("A law does not apply retroactively"). The said article, however, allows retroactive application of an Act of Parliament if it is expressly understood from its text or purpose.
Ex post facto punishment in criminal and administrative law is prohibited by art.54 of the Constitution; Ex post facto tax laws by art.57 of the Constitution.
Article 9.3 of the Spanish Constitution guarantees the principle of non-retroactivity of punitive provisions that are not favorable to or restrictive of individual rights. Therefore, "ex post facto" criminal laws or any other retroactive punitive provisions are constitutionally prohibited.
As well as Statute law mentioned above, this now also includes 'court-made law'. The Parot doctrine, in which terrorists were denied the right (enshrined in a 1973 Statute) to earn a reduction in the length of their sentences by a Spanish court ruling in 2006 was judged by the European Court of Human Rights to be contrary to ECHR#Article 7 - retroactivity & ECHR#Article 5 - liberty and security in 2013.
Section 35(3) of the South African Bill of Rights prohibits ex post facto criminal laws, except that acts which violated international law at the time they were committed may be prosecuted even if they were not illegal under national law at the time. It also prohibits retroactive increases of criminal punishments.
In Sweden, retroactive penal sanctions and other retroactive legal effects of criminal acts due the State are prohibited by chapter 2, section 10 of the Instrument of Government (Regeringsformen). Retroactive taxes or charges are not prohibited, but they can have retroactive effect reaching back only to the time when a new tax bill was proposed by the government. The retroactive effect of a tax or charge thus reaches from that time until the bill is passed by the parliament.
As the Swedish Act of Succession was changed in 1979, and the throne was inherited regardless of sex, the inheritance right was withdrawn from all the descendants of Charles XIV John (king 1818-44) except the current king Carl XVI Gustaf. Thereby, the heir-apparent title was transferred from the new-born Prince Carl Philip to his older sister Crown Princess Victoria.
The Swedish Parliament voted in 2004 to abolish inheritance tax by January 1, 2005. However, in 2005 they retro-actively decided to move the date to December 17, 2004. The main reason was abolishing inheritance tax for the many Swedish victims of the 2004 Indian Ocean earthquake, which took place on December 26.
In the United Kingdom, ex post facto laws are frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex post facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.
Some laws are still passed retrospectively: e. g., the Pakistan Act 1990 (which readmitted Pakistan to the Commonwealth) was one such law; despite being passed on 29 June 1990, section 2 subsection 3 states that "This Act shall be deemed to have come into force on 1st October 1989", nine months before it was enacted.
Retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but several noted legal authorities have stated their opinion that parliamentary sovereignty takes priority even over this. For example, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War.
Taxation law has on multiple occasions been changed to retrospectively disallow tax avoidance schemes. The most significant example known concerns Double-taxation Treaty Arrangements where the 2008 Finance Act with BN66 retrospectively amended 1987 legislation creating large tax liabilities for 3000 people where no liability existed before.
In the United States, the Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. This is one of the relatively few restrictions that the United States Constitution made to both the power of the federal and state governments before the Fourteenth Amendment. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ex post facto laws. The case dealt with the Article I, Section 10, prohibition on ex post facto laws, because it concerned a Connecticut state law.
Not all laws with retroactive effects have been held to be unconstitutional. One current U.S. law that has a retroactive effect is the Adam Walsh Child Protection and Safety Act of 2006. This law imposes new registration requirements on convicted sex offenders and also applies to offenders whose crimes were committed before the law was enacted. The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals, and the posting of personal information about them on the Internet, do not violate the constitutional prohibition against ex post facto laws, because these laws do not impose any kind of punishment.
In Starkey v. Oklahoma Department Of Corrections, the Supreme Court of the State of Oklahoma found the Oklahoma Sex Offender Registration Act, hereafter referred to as SORA, to be punitive in nature, if not in intent. While the law in question has been ruled as not being retroactive in nature, the Oklahoma Department of Corrections had been applying the new legislation retroactively, and "also find the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, 582.1 - 582.5, as amended, violates the ex post facto clause."
Controversy has also arisen with regard to Sexually Violent Predator (SVP) Laws, which allow the indefinite commitment of a person with a mental abnormality which predisposes him to molest children. This issue arose in the case Kansas v. Hendricks. In Hendricks, a man with a long history of sexually molesting children was scheduled to be released from prison shortly after the enactment of Kansas's SVP act. Rather than being released, he was committed on the grounds that he had a mental abnormality. Hendricks contested the law on ex post facto and double jeopardy grounds. The Supreme Court of Kansas invalidated the Act, but the Supreme Court of the United States reversed the decision and ruled that the law was constitutional on the basis that the law did not impose a criminal punishment.
Another example is the Domestic Violence Offender Gun Ban, where firearms prohibitions were imposed on those convicted of misdemeanor domestic-violence offenses and on subjects of restraining orders (which do not require criminal conviction). These individuals can now be sentenced to up to ten years in a federal prison for possession of a firearm, regardless of whether the weapon was legally possessed when the law was passed. Among those whom the law is claimed to have affected is a father who was convicted of a misdemeanor of child abuse in connection with a spanking of his child, because anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive; it is a status offense.
In administrative law, federal agencies may apply their rules retroactively if Congress has authorized them to; otherwise, retroactive application is generally prohibited. Retroactive application of regulations is disfavored by the courts for several reasons. The courts uphold retroactive regulation where Congress has expressly granted such retroactive power to the agency, as they did in Bowen v. Georgetown University Hospital.
Treatment by international organizations and treaties
Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offence. It does however permit application of either domestic or international law.
Very similar provisions are found in Article 15, paragraph 1 of the International Covenant on Civil and Political Rights, replacing the term "penal offence" with "criminal offence". It also adds that if a lighter penalty is provided for after the offence occurs, that lighter penalty shall apply retroactively. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "...for the most serious crimes in accordance with the law in force at the time of the commission of the crime...."
African Charter on Human and Peoples' Rights
Article 2, paragraph 7 of the African Charter on Human and Peoples' Rights provides in part that "[n]o one may be condemned for an act or omission which did not constitute a legally punishable offense at the time it was committed. No penalty may be inflicted for an offense for which no provision was made at the time it was committed."
American Declaration of the Rights and Duties of Man
Article 25 of the American Declaration of the Rights and Duties of Man provides in part that "[n]o person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law." The right to be tried in accordance to "pre-existing law" is reiterated in article 26.
Arab Charter on Human Rights
Article 15 of the Arab Charter on Human Rights provides that "[n]o crime and no penalty can be established without a prior provision of the law. In all circumstances, the law most favorable to the defendant shall be applied."
European Convention on Human Rights
Most European states, and all European Union states, are bound by the European Convention on Human Rights. Article 7 of the convention mirrors the language of both paragraphs of Article 15 of the International Covenant on Political and Civil Rights, with the exception that it does not include that a subsequent lighter penalty must apply.
"The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just."— Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813
Grammatical form and usage
The phrase isn't grammatically correct in Latin, as it consists of the preposition ex, the preposition post, and a noun with the wrong grammatical case to agree with post. Indeed, the Latin for this phrase is actually two words, ex postfacto, literally, out of a postfactum (an after-deed), or more naturally, from a law passed afterward.
Therefore, ex post facto or ex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence "He was convicted ex post facto (i.e., from a law passed after his crime)." The law itself would rightfully be a postfactum law (lex postfacta); nevertheless, despite its redundant or circular nature, the phrase an ex post facto law is used.
- A posteriori
- Ex ante
- Nulla poena sine lege - the principle that no one may be punished for an act which is not against the law.
- Article 7 of the European Convention on Human Rights
- Rokotov–Faibishenko case
- Link to Civil Code
- "Janvier 2013 : La rétroactivité fiscale dans la jurisprudence du Conseil constitutionnel" (in French). January 2013.
- Soyer, Jean-Claude (2012). Droit pénal et procédure pénale. Lextenso Editions (in French) (21 ed.). Paris: L.G.D.G. pp. 75–78.
- Terré, François (2009). Introduction générale au droit. Précis (in French) (8 ed.). Paris: Dalloz. pp. 204–5.
- Controversial 98% tax on gov't severance pay made retroactive to 2005
- Department of Stamps and Registration, Government of Karnataka
- Indonesian Constitutional Court Decision No 013/PUU-I/2003 (Masykur Abdul Kadir Case)
- "Norwegian Supreme Court case 2009/1575". domstol.no.
- The Constitution of Pakistan
- "By the time you read this, I will be a criminal.". Retrieved 3 October 2012.
- "Pakistan Act 1990". Government of the United Kingdom. Retrieved 17 September 2010.
- Lord Denning in Macarthys Ltd v Smith  ICR 785 at p. 789, quoted in Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). "Section 4.4.2: Effect of the European Communities Act 1972, s.2(1) and (4)". EU Law (9th ed. ed.). Oxford, New York: Oxford University Press. p. 79. ISBN 978-0-19-927959-3. "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it — and says so in express terms — then ... it would be the duty of our courts to follow the statute of our Parliament."
- Straw, Jack (2005-02-08). "Select Committee on European Scrutiny Minutes of Evidence: Examination of Witnesses (Questions 229-239): Rt hon Jack Straw MP and Mr David Frost". House of Commons Publications. Retrieved 2008-01-09. "I think your Committee will be familiar with what Lord Denning, then Master of the Rolls, said in McCarthy v Smith: "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision of it or with the intention of acting inconsistently with it—it says so in express terms—I should have thought it would be the duty of our courts to follow the statute in our Parliament." That much is clear. Other consequences would follow in those circumstances, which arise from our signature on the Vienna Convention on the Law of Treaty, Article 27, which says that you have to respect the international obligations into which you have entered."
- "Will retrospective taxes affect us all?". BBC News. 5 February 2010. Retrieved 2 May 2010.
- Calder v. Bull, 3 U.S. 386 (1798).
- "Library of Congress text of H.R.4472".
- Smith v. Doe, 538 U.S. 84 (2003).
- "Ex Post Facto Laws".
- Starkey v. Oklahoma Department Of Corrections, 2013 OK 43 (2013), at ; OSCN Documents http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=470336
- Kansas v. Hendricks, 521 U.S. 346 (1997).
- , , and .
- United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
- Calder, 3 U.S.
- Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988).
- Mattila, Heikki E. S.; Christopher Goddard (2006). Comparative Legal Linguistics. Ashgate Publishing. p. 154. ISBN 978-0-7546-4874-1.