Chapter 8 Mandatory and Directory Statutes

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Mandatory and Directory Statutes


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Statutes are classified into: Mandatory Statutes

Directory Statutes

Importance of classification:

The classification is essential in resolving the question as

to what effect should be given to mandate of statutes.


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Mandatory and Directory Statutes in general:

Mandatory Statutes- is a statute, which contains word of command orprohibition, to which a person has no choice but to obey.

Examples:Republic Acts, Presidential Decrees, Ordinances

Effects:

Acts executed against mandatory and prohibitory law shall be void exceptas when the law itself authorizes its validity.

The court has no power to distinguish between material andimmaterial breach or omission to comply with what requires.


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Directory Statutes- is a statute, which operates to conferdiscretion upon a person, namely to act according to thedictates of their own judgment and conscience and notcontrolled by the judgment of others.

Examples:Memorandum Circulars, Memorandum Orders

Effect:

The non- performance of what it prescribes, thoughconstituting in some instances an irregularity or subjectingthe official concerned to disciplinary or administrativesanction, will not vitiate the proceeding s therein taken.


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When Statutes is Mandatory of Directory:

Rules:

No absolute test to determine whether a statute is directory ormandatory

To determine the classification, legislative intent should beascertained.

There are statutes that are mandatory in form and directory innature.

The matter of essence of determining whether mandatory ordirectory is determined only by judicial constructions.


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Test to determine the nature of the

statute:

Test for Mandatory:

If substantial rights depend on it and injury

can result from ignoring it.

If intended for the protection of the citizen and

if disregard, then rights are injuriously

affected.


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Test for Directory:

Purpose is in a manner other than that prescribed andsubstantially the same result obtained

Test for Mandatory in form and Directory innature:

If it will cause hardship of injustice to a party not at fault.

If it will lead to absurd and impossible mischievousconsequences.


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LANGUAGE USED:

MANDATORY DIRECTORY

Shall or shall not May or may not

Must or must not

Ought or ought not

Should or should not

Can or Cannot


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USE OF shall and must:

SHALL and MUST

General Concept:

The word shall or must mean ought to. In a common

parlance it presents a signification of command, and onethat needs to have a compulsory meaning.

The word shall is used in an imperative and not in a

directory sense.


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If a different interpretation is sought, it must rest upon

something in the character of the legislation or in thecontext that will justify a different meaning.

The word must in a statute is not always imperative.it may be consistent with discretion.

Example is that in a statute, considering the whole withdue regard of its nature and object reveals that thelegislature intended to use must as directory, then itwill be used as such.


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THE USE OF may

MAY

General Concept:

It is an auxiliary words showing opportunity or possibility.

Generally, directory in nature

It is liberally construed and used in procedural or adjectivelaws.


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When shall is construed as may and vice

versa.

Rule:may should be read as shall

Instances:

Where such construction is necessary to give effect to the apparentintention of the legislature

Where statute provides for the doing of some act required byjustice or public duty

Where it vest a public body or officer with power to take actionconcerning public interest or rights of individuals.


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Rule:shall should be read as may

Instances:

When required by context or by intention of thelegislature

When no public benefit or private rights requiresthat it be given an imperative meaning


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Use of negative, prohibitory or exclusive termsConcepts:

A negative statute is mandatory. It is one expressed innegative words or in a form of an affirmativeproposition qualified by word only.

The use of negative, prohibitory or exclusive terms or

words in statute is indicative of the legislative intentto make the statutory mandatory.


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Statutes conferring power:

-Statutes which confer upon a public body or officer power toperform acts which concern the public interests or rights ofthe people.

-Power is given for the benefit of third persons, not for the

public official. It is given as a remedy to those entitled toinvoke its aid, and who would otherwise be remediless.

- Intent of the legislature was to impose absolute and positive

duty rather than conferring privileges.


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Statutes granting benefits:-Statutes that require certain steps to be taken or certain

conditions to be met before concerned persons can avail ofthe benefits conferred by law. These are consideredmandatory with respect to such requirements.

-Failure of the person to take the required steps or to meetthe conditions will preclude him from availing of thestatutory benefits. This rule is based on the maximVigilantibus et non dormientibus jura subveniunt.

Vigilantibus et non dormientibus jura subveniunt- The lawaids the vigilant, not those who slumber on their rights.

Potior est in tempore, potior est in jure- He who is first in timeis preferred in rig

ht.


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Statutes prescribing jurisdictional requirements:GENERAL RULE:

Statutory requirements by whichcourts or tribunals acquire jurisdiction to hear and decide particular

actions must be strictly complied with.

Examples:

Statutory requirement of publication- must be followed before the courtcan acquire jurisdiction to hear petitions for land registration,reconstitution of title or naturalization.

Provision of the Tax Code- to the effect that before an action for refund oftax is filed in court, a written claim therefore shall be presented with theCommission of Internal Revenue within the prescribed period ismandatory and failure to comply with such requirement is fatal to theaction.


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Statutes prescribing time to take action or to appeal:-Statutes or rules prescribing the time for litigants to take

certain actions or to take appeal from an adversedecision. It is generally mandatory.

-Absolutely indispensable to the prevention of needlessdelays and to the orderly and speedy discharge ofbusiness and are a necessary incident to the proper,efficient, and orderly discharge of judicial functions.

-These statutes require strict, not substantial, compliance.They are not waived, nor can they be the subject ofagreements or stipulations by the litigants.


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Statutes prescribing proceduralrequirements:

-Statutes relating to procedure, every act which isjurisdictional, or of the essence of theproceedings, or is prescribed for the protectionor benefit of the party affected.

-Failure to comply with certain procedural

requirements will have the effect of renderingthe act done in connection therewith void, thestatute prescribing such requirements isregarded as mandatory, even though thelanguage used is permissive in nature.


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Election Laws on conduct of election:-The provisions governing the conduct of elections and prescribing the

steps of election officials are required to do in connection areMANDATORY before the elections. When sought to enforce them afterthe elections, they are only DIRECTORY.

Directory when:

In support of the result, unless of a character to affect an obstruction to thefree and intelligent casting of the votes

To the ascertainment of the result,

The provision affects an essential element of the election,

It is expressly declared by the statute that the particular act is essential tothe validity of an election, or an omission shall render it void.ballot have not done their duty.


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Mandatory when:If enforcement is sought before the election in a

direct proceeding for that purpose.

Provisions of the election laws- adopted to assistthe voters in their participation in the affairs ofthe government, and not to defeat the object.

When the voters honestly cast their ballots, thesame should not be nullified simply becausethe officers appointed under the law to directthe elections and guard the purity of the


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Election laws on qualification anddisqualification:

The rule that election laws are mandatory before

but not after the elections, applies only toprovisions that are procedural in nature.

The rule does not apply to provisions of the

election laws prescribing the time limit to filecertificates of candidacy and the qualificationsand disqualifications to elective office. Theseprovisions are considered MANDATORY even

after the elections.


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Statutes prescribing qualifications for office:

Eligibilityto a public office is of a continuing natureand must exist at the commencement of the termand during the occupancy of the office.

-These are statutes that prescribe the eligibility orqualifications of persons to a public office, andregarded as a rule to be mandatory. If a person is

not qualified to the time he assumed office, or heloses such eligibility or qualifications during thecontinuance of his incumbency, he may be oustedfrom office.


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Statutes relating to assessment of taxes:GENERAL RULE:

When the laws are intended for the protection of the citizens and toprevent a sacrifice of their property, and a disregard of which

their rights might be, and generally would be injuriously affected,they are not directory but mandatory.

-These statutes Mandatorywhen they are also related to theassessment of taxes which are intended to:

a. The security of the citizensb. Insure the equality of taxationc. Certainty as to the nature and amount of each others tax.


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Statutes prescribing guidance for officers:

Regulation designed to secure order, system, anddispatch in proceedings, and by a disregard of whichthe rights of parties interested may not be injuriouslyaffecteddirectory

Exception :

Unless accompanied by negative words importing thatthe acts required shall not be done in any othermanner or time than that designated


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Statutes prescribing manner of judicialaction

Construed directory

Procedure is secondary in importance tosubstantive right

Generally, non-compliance therewith is notnecessary to the validity of the proceedings


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Statutes requiring rendition of decision withinprescribed period

Sec 15(1) Art. VIII, 1987 Constitutionthe maximumperiod within which a case or matter shall be decided orresolved from the date of its submission shall be:

24 months SC

12 months lower collegiate courts

3 months all other lower courts

Sec 7 Art. IX-A, 1987 Constitution

60 days from the date of its submission for resolution

for all


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Constitutional Commissions Before the Constitution took effect -

Statutes requiring rendition of decision within

prescribed periodDIRECTORY


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Basis:

EXPEDIENCYless injury results to the

general public by disregarding thanenforcing the little of the law and that judges

would otherwise abstain from rendering

decisions after the period to render them

had lapsed because they lacked jurisdictionto do so

Chapter 8 Mandatory and Directory Statutes

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