§701-105 Effect of commentary. The commentary accompanying this Code shall be published and may be used as an aid in understanding the provisions of this Code, but not as evidence of legislative intent. [L 1972, c 9, pt of §1; am L 1975, c 163, §8; am L 1986, c 314, §2]

COMMENTARY ON §701-105

Section 105 of the Proposed Draft of the Code provided: "The commentary accompanying this Code shall be published with the Code and may be used as evidence of legislative intent and as an aid in construing the provisions of this Code in the event of ambiguity."

In considering the initial draft of §105, the legislature concluded that the commentary, as revised to reflect legislative changes, should be published as aid to the bench, bar, and others charged with the administration of justice in criminal cases. However, in view of the strong judicial deference given legislative committee reports and other evidence of legislative intent authored by the legislature or its staff, the legislature refrained from adopting the initial commentary accompanying the Judicial Council's Proposed Draft and according it the same status as a legislative work product.

The Commentary and Supplemental Commentary on the Code are intended to explain the provisions of the Code. The Supplemental Commentary attempts to explain the changes that were made by the legislature to the Proposed Draft of the Hawaii Penal Code (1970) which was prepared under the auspices of the Judicial Council of Hawaii. It also deals with subsequent legislative changes in 1973, 1974 and 1975. The commentaries are designed to give the reader a better understanding of the provisions of the Code. Together they provide an explanation of the considerations involved in the drafting of various sections of the Code. The commentaries also point out the treatment in the Model Penal Code and certain state revisions of provisions the same as or similar to those contained in the Hawaii Penal Code. Finally, the commentaries explain the changes to previous Hawaii law which are brought about by the new Code.

Act 163, Session Laws 1975, amended the section by deleting the requirement that the commentary be published with the Code. The Revisor of Statutes was authorized to publish the commentary in any manner the Revisor deemed would "promote its basic purpose [as an] aid in understanding the provisions of the Code." Conference Committee Report No. 19.

Case Notes

As an example of judicial use of the Commentary to this Code, see State v. Nobriga, 56 H. 75, 527 P.2d 1269 (1974), a case in which the court was called upon to interpret certain sentencing provisions of chapter 706. The court said that, as the forerunner of the Code, the Commentary to the Hawaii Penal Code (Proposed Draft) (1970) "sheds some light on the purpose underlying the provision even though it was not intended to be a definitive statement of legislative intent." In using the Commentary as an aid in reaching its conclusion, the court said: "Although it is not considered evidence of legislative intent, we look to the Commentary pertaining to the pre-sentence investigation section in the Penal Code for some understanding of what that section was designed to achieve."

Commentary, while not evidence thereof, is expressive of legislative intent. 57 H. 418, 558 P.2d 1012 (1976).

Commentary may be used as aid in understanding the code. 59 H. 92, 576 P.2d 1044 (1978).

Commentary can be looked to as an aid in interpreting the statutory provisions. 61 H. 531, 606 P.2d 920 (1980).