Mandatory and Directory Statutes

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.

Mandatory and Directory Statutes in general:

Mandatory Statutes- is a statute, which contains word of command or

prohibition, 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 except
as when the law itself authorizes its validity.
The court has no power to distinguish between material and

immaterial breach or omission to comply with what requires.

Directory Statutes- is a statute, which operates to confer

discretion upon a person, namely to act according to the
dictates of their own judgment and conscience and not

controlled by the judgment of others.

Examples:
Memorandum Circulars, Memorandum Orders

Effect:
The non- performance of what it prescribes, though
constituting in some instances an irregularity or subjecting
the official concerned to disciplinary or administrative
sanction, will not vitiate the proceeding s therein taken.

When Statutes is Mandatory of Directory:

Rules:
No absolute test to determine whether a statute is directory or
mandatory
To determine the classification, legislative intent should be
ascertained.
There are statutes that are mandatory in form and directory in
nature.
The matter of essence of determining whether mandatory or
directory is determined only by judicial constructions.

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.

Test for Directory:

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

Test for Mandatory in form and Directory in

nature:
If it will cause hardship of injustice to a party not at fault.
If it will lead to absurd and impossible mischievous
consequences.

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

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 one
that needs to have a compulsory meaning.

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

directory sense.

If a different interpretation is sought, it must rest upon

something in the character of the legislation or in the
context 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 with
due regard of its nature and object reveals that the
legislature intended to use must as directory, then it
will be used as such.

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 adjective

laws.

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 apparent
intention of the legislature
Where statute provides for the doing of some act required by
justice or public duty

Where it vest a public body or officer with power to take action

concerning public interest or rights of individuals.

Rule:
shall should be read as may
Instances:
When required by context or by intention of the
legislature
When no public benefit or private rights requires
that it be given an imperative meaning

Use of negative, prohibitory or exclusive terms

Concepts:
A negative statute is mandatory. It is one expressed in
negative words or in a form of an affirmative
proposition qualified by word only.
The use of negative, prohibitory or exclusive terms or
words in statute is indicative of the legislative intent
to make the statutory mandatory.

Statutes conferring power:

-Statutes which confer upon a public body or officer power to
perform acts which concern the public interests or rights of
the people.
-Power is given for the benefit of third persons, not for the
public official. It is given as a remedy to those entitled to
invoke its aid, and who would otherwise be remediless.
- Intent of the legislature was to impose absolute and positive
duty rather than conferring privileges.

Statutes granting benefits:

-Statutes that require certain steps to be taken or certain

conditions to be met before concerned persons can avail of
the benefits conferred by law. These are considered
mandatory with respect to such requirements.

-Failure of the person to take the required steps or to meet

the conditions will preclude him from availing of the
statutory benefits. This rule is based on the maxim
Vigilantibus et non dormientibus jura subveniunt.
Vigilantibus et non dormientibus jura subveniunt- The law
aids the vigilant, not those who slumber on their rights.
Potior est in tempore, potior est in jure- He who is first in time
is preferred in right.

Statutes prescribing jurisdictional requirements:

GENERAL RULE:
Statutory requirements by which
courts 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 court
can 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 of
tax is filed in court, a written claim therefore shall be presented with the
Commission of Internal Revenue within the prescribed period is
mandatory and failure to comply with such requirement is fatal to the
action.

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 adverse
decision. It is generally mandatory.
-Absolutely indispensable to the prevention of needless
delays and to the orderly and speedy discharge of
business 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 of
agreements or stipulations by the litigants.

Statutes prescribing procedural

requirements:
-Statutes relating to procedure, every act which is
jurisdictional, or of the essence of the
proceedings, or is prescribed for the protection
or benefit of the party affected.
-Failure to comply with certain procedural
requirements will have the effect of rendering
the act done in connection therewith void, the
statute prescribing such requirements is
regarded as mandatory, even though the
language used is permissive in nature.

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 are
MANDATORY before the elections. When sought to enforce them after
the elections, they are only DIRECTORY.
Directory when:
In support of the result, unless of a character to affect an obstruction to the
free 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 to
the validity of an election, or an omission shall render it void.
ballot have not done their duty.

Mandatory when:

If enforcement is sought before the election in a

direct proceeding for that purpose.
Provisions of the election laws- adopted to assist
the voters in their participation in the affairs of
the government, and not to defeat the object.
When the voters honestly cast their ballots, the
same should not be nullified simply because
the officers appointed under the law to direct
the elections and guard the purity of the

 Election

laws on qualification and

disqualification:

The rule that election laws are mandatory before

but not after the elections, applies only to
provisions that are procedural in nature.
The rule does not apply to provisions of the
election laws prescribing the time limit to file
certificates of candidacy and the qualifications
and disqualifications to elective office. These
provisions are considered MANDATORY even
after the elections.

Statutes prescribing qualifications for office:

Eligibility to a public office is of a continuing nature
and must exist at the commencement of the term
and during the occupancy of the office.
-These are statutes that prescribe the eligibility or
qualifications of persons to a public office, and
regarded as a rule to be mandatory. If a person is
not qualified to the time he assumed office, or he
loses such eligibility or qualifications during the
continuance of his incumbency, he may be ousted
from office.

Statutes relating to assessment of taxes:

GENERAL RULE:
When the laws are intended for the protection of the citizens and to
prevent 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 Mandatory when they are also related to the
assessment of taxes which are intended to:
a. The security of the citizens
b. Insure the equality of taxation
c. Certainty as to the nature and amount of each others tax.

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

Statutes requiring rendition of decision within

prescribed period
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 7 Art. IX-A, 1987 Constitution
60 days from the date of its submission for resolution
for all

Constitutional Commissions
Before the Constitution took effect Statutes requiring rendition of decision within
prescribed period DIRECTORY

Except:

Intention to the contrary is manifest

time is of the essence of the thing to be done

language of the statute contains

negative words

designation of the time was intended as a limitation

of power, authority or right

always look at intent to ascertain whether to give the

statute a mandatory or directory construction

Basis:
EXPEDIENCY less injury results to the
general public by disregarding than
enforcing 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 jurisdiction
to do so