Mandatory and Directory Statutes

When statute is mandatory or directory

Generally

 In the determinant of this question, the primary

Statutes may be classified as:
object is to ascertain legislative intent
 Mandatory
 Legislative intent must be obtained from all the
 Directory
surrounding circumstances
 Classification is important in resolving the question of
 Consideration must be given to:
what effect should be given to the mandate of the
o entire statute
statute
o its object
o Will an act done in violation of a statute render
o purpose
it void?
o legislative history
o Will the performance of what a statute
o consequences in construing it in one way or
prescribes make the proceedings to which it
the other
relates invalid?
 Words of permissive character may be given a
o Will the person violating the statute be held
mandatory significance
liable therefor?
Directory
Mandatory and directory statutes, generally - Particular provision of a statute relates to some
immaterial matter
- Compliance with the statute is a matter of
Mandatory Statutes – a statute which commands either convenience rather than substance
positively that something be done, or performed in a - Directions are merely a view to the properly, orderly,
particular way, or negatively that something be not done, and prompt conduct of the business
leaving the person concerned no choice on the matter except - No substantial rights depend on it
to obey. - No injury can result from ignoring it
- The purpose can be accomplished in a different
- One that contains words of command or of manner with the same result
prohibition
- Omission to follow renders the act illegal and void Mandatory
- Provision relating to the essence of the thing to be
- Acts executed against the provision shall be void,
done
except when the law itself authorizes their validity
- Directs acts or proceedings to be done in a certain
Directory Statutes – a statute which is permissive or way
discretionary in nature and merely outlines the act to be - Intended a compliance to be essential to the validity
done in such a way that no inquiry can result from ignoring it of the act or proceeding
or that its purpose can be accomplished in a manner other - Must be performed before certain other powers can
than that prescribed and substantially the same result be exercised
obtained.
Test to determine nature of statute
- Operates to confer discretion upon a person
- To act according to the dictates of his own judgment
and conscience
The test generally employed to determine whether a statute
- Not controlled by the judgment and conscience of
is mandatory or directory is to ascertain the consequences
others
that will follow in case what the statute requires is not done
- Nonperformance will not vitiate the proceedings
or what it forbids is performed.
  Does the statute prescribe a result in addition to, or Use of “shall” or “must”.
apart from, what it requires? A. General Rule
 Will third parties suffer as a consequence of what
the person charged by the statute to do within a  The use of the word “shall” in a statute
prescribed limit fails to do? implies that the statute is mandatory.
 Does the law give a person no alternative choice?
 “shall” – means “ought to”, “must”
 Is what the statute prescribes a matter of substance
and not of form? B. Common parlance & ordinary signification
 Will there be more injury to the public by a disregard
of what the law provides?  the term shall is a word of command &n
which has or which must be given a
compulsory meaning; it is generally
imperative or mandatory
 If the answers are in affirmative is mandatory
 If otherwise, it is directory C. Presumption

It depends on its effect:  the word “shall” in a statute is used in an

Directory:
imperative, and not in a directory, sense
 No substantial rights depend on it
 “must”/ “ought” – a word of command,
 No injury can result from ignoring it
connotes compulsion or mandatoriness
 The purpose of the legislature can be
accomplished in a manner other than that D. Rule is not absolute
prescribed, essentially same results
 the word “must” in a statute, like shall is
Mandatory: not always imperative

 Intended for the protection of the citizens  the import of the word ultimately depends
 If disregard, their rights are injuriously upon a consideration of the entire
affected provision, its nature, object and the
 Must be followed or the acts done will be consequences that would follow from
invalid construing it one way or the other.

Language used
The intention of the legislature as to the mandatory or *Sec. 46 of the Corporation Code
directory nature of particular statutory provision is
determined primarily from the language E. Test

Mandatory  One test used to determine whether the

- Statutes using words of command or of prohibition word “shall” is mandatory or discretionary
o Shall is whether non-compliance with what is
o Must required will result in the nullity of the act.
o Ought If it results in the nullity of the act, the word
o Should is used as a command.
o Cannot
o Shall not
o Ought not * Director of Lands vs. Court of Appeals

Directory
- Statutes using permissive words Use of “may”.
o May “may” – an auxiliary verb showing, among others,
o Words importing permissiveness opportunity or possibility.
 “may be” – under ordinary circumstances, implies
the possible existence of something
B. “shall” may be construed as “may”
Generally
 when so required by the context or by the
 denotes that (statute) it is directory in intention of the legislature
nature
 It shall be construed merely as permissive
 permissive only & operates to confer when no public benefit or the private right
discretion requires that it be given imperative
meaning.
 The word “may” as used in adjective laws,
such as remedial statutes which are * Section 2 of Republic Act. No. 304
construed liberally, is only permissive & not
mandatory. * Acosta v. Adaza, G.R. No. 168617
(February 19, 2007)
* Sec. 63 of Corporation Code

When “shall” is construed as “may” and vice versa.

Use of negative, prohibitory or exclusive terms

Depending upon a consideration of the entire - A negative statute is mandatory. A negative statute is one
provision, its nature, its object and the consequences that expressed in negative words or in the form of an affirmative
would follow from construing it one way or the other, the proposition qualified by the word “only”, said word having
convertibility of said terms either as mandatory or directory is the force of an exclusionary negation.
a standard recourse in statutory construction.
B. MANDATORY STATUTES

A. “may” should be read as “shall”

Statutes conferring power
 where such construction is necessary to
give effect to the apparent intention of the
- Statutes which confer upon a public body or officer power
legislature
to perform acts which concern the pubic interests or rights of
 to be determined in each case from the individuals, are generally regarded as mandatory although
apparent intention of the statute as the language used is permissive only since such statutes are
gathered from the context, as well as from construed as imposing rather than conferring privileges.
the language of the particular provision
Statutes granting benefits
 It should be given a mandatory effect, and
the word “may” should be taken as “must”
- Statutes which require certain steps to be taken or certain
or “shall” if it can be said that a purpose
conditions to be met before persons concerned can avail of
existed on the part of the legislature to
the benefits conferred by law are, with respect to such
enact a law mandatory in character.
requirements, considered mandatory
 The “word” may will, as a rule, be construed
- The rule is based on the maxim vigilantibus et non
as “shall” where a statute provides for the
dormientibus jura subveniunt or the laws aid the vigilant, not
doing of some act which is required by
those who slumber on their rights.
justice or public duty, or where it vests a
public body or officer with power and - Potior est in tempoe, potior est in jure- he who is first in
authority to take such action which time is preferred in right.
concerns the public interests or rights of
individuals. Statutes prescribing jurisdictional requirements
- The general rule is that statutory requirements by which - If a candidate failed to comply with said requirements, he is
courts or tribunals acquire jurisdiction to hear and decide disqualified to run, even if he received the highest number of
particular actions must be strictly complied with before the votes. Said votes will be considered void and will not be
courts or tribunals can have authority to proceed. counted.

- Hence, statutes prescribing the various steps and methods

to be taken for acquisition by the courts or tribunals over
certain matters are considered mandatory. Statutes prescribing qualifications for office

Statutes prescribing time to take action or to appeal

- Eligibility to hold office is a continuing requirements and
must exist not only from the beginning of the term but also
- Statutes or rules prescribing the time for litigants to take during the occupancy of the office
certain actions or to appeal from an adverse decision is
generally mandatory. - A person not qualified at the time he assumed office, or if
he loses such qualification during his incumbency will be
ousted from office.

Statutes prescribing procedural requirements

Statutes relating to assessment of taxes

- Every act which is jurisdictional, or is an essence of the
proceeding or for the protection or benefit of the party
affected. - Assessment of taxes, intended to ensure the security of
citizens, the equality of taxation, the certainty as to the
nature and amount of each other’s tax, are mandatory

Election laws on conduct of election - But those designed for the methodical and systematic
modes of proceedings are merely directory

General rule: All provisions governing the conduct of

elections and prescribing steps for the election officials are
mandatory before the elections. If sought to enforce after Test: If the law is to protect citizens and to prevent sacrifice
election day, they become directory only if this will deprive of their property, it is mandatory
innocent voters, without fault on their part, of their votes

Statutes concerning public auction sale

Reason: These steps were adopted to assist the voters in their
participation in the affairs of the government and not to
- Prescribed steps in public auction of properties are to be
defeat that object. When voters have honestly cast their
followed strictly
ballots, the same should not be nullified simply because the
officers have failed to do their duty. To make these Reason: In derogation of the property rights and due process
mandatory would nullify the votes affected. Interested
people will just be tempted and conspire to create
Directory statute
irregularities that will result to the vitiation of the election.

-is a statute which is permissive, or

Election laws on qualification and disqualification
-discretionary in nature and

- Laws prescribing the time limit to file certificates of -merely outlines the act to be done in such a way that no
candidacy and qualifications and disqualifications to elective injury can result from ignoring it, or
office.
-that its purpose can be accomplished in a manner other than - A judgment promulgated after the expiration of the said
that prescribed and substantially the same result obtained. period is not null and void, although the officer who failed to
comply with the law may be dealt with administratively in
consequence of his delay, unless the intention to the contrary
is manifest.
Statutes prescribing guidance for officers
- Where a statute specifies the time at or within which an act
-There are statutory requisitions (demand) intended for
is to be done by a public officer or body, it is generally held to
guidance of officers in the conduct of business devolved upon
be directory only as to the time, and not mandatory, unless
them which do not limit their power or render its exercise in
the time is of the essence of the thing to be done, or the
disregard of the requisitions ineffectual.
language of the statute contains negative words, or shows
- Provisions of this character are not usually regarded as that the designation of the time was intended as a limitation
mandatory, unless accompanied by negative words importing of power, authority or right.
that the acts required shall not be done in any other manner
- The better rule is that where a construction of a time
or time than that designated.
provision as mandatory will cause great injury to persons not
at fault or result in a miscarriage of justice, such consequence
should be avoided by construing the statute as directory, for
Statutes prescribing manner of judicial action reasons of fairness, justice and fair play require such
construction.
- Statutes prescribing the requirements as to the manner of
judicial action that judges should follow in the discharge of - It has been held that a statute requiring rendition of
their functions are, as a rule, merely directory. judgment within a specified time is generally construed to be
merely directory, so that non-compliance with them does not
- It should not be assumed in the absence of specific language
invalidate the judgment on the theory that if the statute had
to the contrary that the legislature intended that the right of
intended such result, it would have clearly indicated.
parties should be seriously affected by the failure of a court
or some officer to comply strictly with the statutory - However, while the period fixed by law to resolve a case is
requirements of official action. merely directory, it cannot be disregarded or ignored
completely with absolute immunity.
- Procedure is secondary in importance to substantive right,
and the non observance of such procedure should never be - It cannot be assumed that the law has included a provision
permitted to affect substantive right, unless the intention of that is deliberately intended to become meaningless and to
the legislature is clearly expressed. be treated as a dead letter.

- It is universally held that statutes of this nature are merely Constitutional time provision directory
directory and noncompliance therewith is not necessary to
the validity of the proceedings. - Does the Constitution alter the general rule and render time
provision to decide mandatorily? Is a decision rendered
beyond the period prescribed in the Constitution- 24 months
for the Supreme Court, 12 months for the lower collegiate
Statutes requiring rendition of decision within prescribed
courts and 3 months for other lower courts- null and void?
period
- The Supreme Court gave negative answers (Marcelino v.
- The constitution provides that the maximum period within
Cruz)
which a case or matter shall be decided or resolved from the
date of its submission, shall be 24 months for the Supreme
Court, and unless reduced by the Supreme Court, 12 months
for lower collegiate courts and 3 months for all other lower
courts.

- Each Constitutional Commission shall decide any case

brought before it within sixty days from the date of its
submission for resolution.