CHAPTER
EIGHT:
Mandatory and Directory Statutes
Mandatory statute – commands either
positively that something be done in a particular way, or negatively that
something be not done; it requires obedience, otherwise void
Directory statute – permissive or
discretionary in nature and merely outlines the act to be done in such a way
that no injury can result from ignoring it or that its purpose can be
accomplished in a manner other than that prescribed and substantially the same
result obtained; confer direction upon a person; non-performance of what it
prescribes will not vitiate the proceedings therein taken
Considered directory – compliance is a
matter of convenience; where the directions of a statute are given merely with
a view to the proper, orderly and prompt conduct of business; no substantial
rights depend on it
Considered mandatory – a provision relating
to the essence of the thing to be done, that is, to matters of substance;
interpretation shows that the legislature intended a compliance with such
provision to be essential to the validity of the act or proceeding, or when
some antecedent and prerequisite conditions must exist prior to the exercise of
the power, or must be performed before certain other powers can be
exercised
Language used
Generally mandatory – command words Generally directory – permissive words
Shall or Shall not May or May not
Must or Must not
Ought or Ought not
Should or Should not
Can or Cannot
Loyola
Grand Villa Homeowners (South) Assn., Inc. v. CA
“must” construed as directory
Corporation Code Sec 46 reads “ every
corporation formed under this Code MUST within one month after receipt of
official notice of the issuance of its certification of incorporation with the
SEC, adopt a code of by-laws for its government not inconsistent with this
Code”
PD 902-A which is in pari material with the Corporation Code states that the non-filing
of the by-laws does not imply the “demise” of the corporation; that there
should be a notice and hearing before the certificate of registration may be
cancelled by the failure to file the by-laws
Director
of Land v. CA
Law requires in petitions for land
registration that “upon receipt of the order of the court setting the time for
initial hearing to be published in the OG and once in a newspaper of general
circulation in the Philippines”
Law expressly requires that the initial
hearing be published in the OG AND in the newspaper of general circulation –
reason: OG is not as widely read of the newspaper of general circulation
“shall” is imperative/ mandatory
Without initial hearing being published in
a newspaper of general circulation is a nullity
Rule: “may” should be read “shall”
where such construction is necessary to
give effect to the apparent intention of the legislature
where a statute provides for the doing os
some act which is required by justice r public duty
where it vests a public body or officer
with power and authority to take such action which concerns for the public
interest or rights of individuals
Rule: “shall” should be read “may”
When so required by the context or by the
intention of the legislature
When no public benefit or private right
requires that it be given an imperative meaning
Diokno
v. Rehabilitiation Finance Corp
Sec. 2 RA 304 reads “banks or other
financial institutions owned or controlled by the Government SHALL, subject to
availability of funds xxx accept at a discount at not more than 20% for 10
years of such backpay certificate”
“Shall” implies discretion because of the
phrase “subject to availability of funds”
Govermnent
v. El Hogar Filipino
Corporation Codes reads “SHALL, upon such
violation being proved, be dissolved by quo
warranto proceedings”
“Shall” construed as “may”
Berces,
Sr. v. Guingona
Sec. 68 Ra 7160 (LGC) provides that an
appeal from an adverse decision against a local elective official to the
President “SHALL not prevent a decision from becoming final and executor”
“Shall” is not mandatory because there is
room to construe said provision as giving discretion to the reviewing officials
to stay the execution of the appealed decision
MANDATORY
STATUTES
Statutes conferring power
Should construe as imposing absolute and
positive duty rather than conferring privileges
Granted to meet the demands of rights, and
to prevent a failure of justice
Statutes granting benefits
Failure of the person to take the required
steps or to meet the conditions will ordinarily preclude him from availing of
the statutory benefits
Vigilantibus
et non dormientibus jura subveniunt – the laws aid the vigilant, not those who slumber on
their rights
Potior
est in tempoe, potior est in jure – he who is first in time is preferred in right
Statutes prescribing time to take action or
to appeal
Held as absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge or
business, and are necessary incident to the proper, efficient, and orderly
discharge of judicial functions
Strict not substantial compliance
Reyes
v. COA
Sec. 187 RA 7160 – process of appeal of
dissatisfied taxpayer on the legality of tax ordinance
Appeal to the Sec of Justice within 30 days
of effectivity of the tax ordinance
If Sec of Justice decides the appeal, a
period of 30 days is allowed for an aggrieved party to go to court
If the Sec of Justice does not act thereon,
after the lapse of 60 days, a party could already proceed to seek relief in
court
Purpose of mandatory compliance: to prevent
delays and enhance the speedy and orderly discharge of judicial functions
Interest
reipiciae ut sit finis litium – public interest requires that by the very nature of things there must
be an end to a legal controversy
Gachon
v. Devera, Jr
Issue: whether Sec 6 of the Rule on Summary Procedure, which reads “ should
the defendant fail to answer the complaint within the period above provided,
the Court, motu proprio, or on motion
of the plaintiff, SHALL render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein,” is
mandatory or directory, such that an answer filed out of time may be accepted
RULING: mandatory
Must file the answer within the
reglementary period
Reglementary period shall be ‘non-extendible’
Otherwise, it would defeat the objective of
expediting the adjudication of suits
Statutes prescribing procedural
requirements
Procedure relating to jurisdictional, or of
the essence of the proceedings, or is prescribed for the protection or benefit
of the party affected
De
Mesa v. Mencias
Sec 17, Rule 3 RC – “after a party dies and
the claim is not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to appear and to be
substituted xxx. If legal representative
fails to appear xxx, the court MAY order the opposing party to produce the
appointment of a legal representative xxx”
Although MAY was used, provision is
mandatory
Procedural requirement goes to the very
jurisdiction of the court, for “unless and until a legal representative is for
him is duly named and within the jurisdiction of the trial court, no
adjudication in the cause could have been accorded any validity or the binding
effect upon any party, in representation of the deceased, without trenching
upon the fundamental right to a day in court which is the very essence of the
constitutionally enshrined guarantee of due process
Election laws on conduct of election
Construed as mandatory
Before election – mandatory
After election – directory, in support of
the result unless of a character to affect an obstruction to the free and
intelligent casting of the votes, or to the ascertainment of the result, or
unless it is expressly declared by the statute that the particular act is
essential to the validity of an election, or that its omission shall render it
void
Delos
Reyes v. Rodriguez
The circumstance that the coupon bearing
the number of the ballot is not detached at the time the ballot is voted, as
required by law, does not justify the court in rejecting the ballot
DIRECTORY
STATUTES
Statutes prescribing guidance for officers
Regulation designed to secure order,
system, and dispatch in proceedings, and by a disregard of which the rights of
parties interested may not be injuriously affected – directory
Exception – unless accompanied by negative
words importing that the acts required shall not be done in any other manner or
time than that designated
Statutes prescribing manner of judicial
action
Construed directory
Procedure is secondary in importance to
substantive right
Generally, non-compliance therewith is not
necessary to the validity of the proceedings
Querubin
v. CA
Statute: appeals in election cases “shall be decided within 3 months after the
filing of the case in the office of the clerk of court”
Issue: whether or not CA has jurisdiction in deciding the election case
although the required period to resolve it has expired
Held: yes, otherwise is to defeat the administration of justice upon factors
beyond the control of the parties; would defeat the purpose of due process;
dismissal will constitute miscarriage of justice; speedy trial would be turned
into denial of justice
Failure of judge to take action within the
said period merely deprives him of their right to collect their salaries or to
apply for leaves, but does not deprive them of the jurisdiction to act on the
cases pending before them
Constitutional time provision directory
Marcelino
v. Cruz
Sec 15(1) Art. VIII, 1987 Constitution –
the maximum period within which a case or matter shall be decided or resolved
from the date of its submission shall be
24 months – SC
12 months – lower collegiate courts
3 months – all other lower courts
Sec 15(1) Art. VIII, 1987 Constitution –
directory
RATIONALE:
Statutory provisions which may be thus
departed from with impunity, without affecting the validity of statutory
proceedings, are usually those which relate to the mode or time of doing that
which is essential to effect the aim and purpose of the legislature or some
incident of the essential act – thus directory
Liberal construction – departure from
strict compliance would result in less injury to the general public than would
its strict application
Courts are not divested of their
jurisdiction for failure to decide a case within the 90-day period
Only for the guidance of the judges manning
our courts
Failure to observe said rule constitutes a
ground for administrative sanction against the defaulting judge
A certification to this effect is required
before judges are allowed to draw their salaries
