CHAPTER EIGHT: 

Mandatory and Directory Statutes

In general
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
Act executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity. (Article 5, CC)
Exceptions: when the law itself authorizes their validity
 Act is not void but merely voidable at the instance of the victim
Although the consent is essential for a valid marriage, still if that consent is
vitiated by intimidation or fraud, the marriage is not null and void, but only
voidable. (Art.87, CC; Art.45 (3), F.C)
 When the law makes the act valid, but subjects the wrong-doer to
criminal responsibility.
A widow generally must wait for 300 days before she can remarry. If she
violates this and she marries again, the marriage is valid as long as she was
able to obtain a marriage license, without prejudice to her criminal liability.
(Art.351, RVP)
 When the law itself makes the act void, but recognizes some legal effects
flowing therefrom.
A brother cannot marry his sister for being incestuous, thus, their child would
be considered illegitimate; if however, they first marry before having child,
the child would be legitimate if it is conceived or born before declaration of
nullity of marriage and such judgment becomes final and executory. (Art.54,
F.C)
 When the law itself makes the certain acts valid although generally they
would have been void.
Jail-alai, or the horse races or sweepstakes, including lotto, on the part at least
of spectators, or purchasers (ticket), is a game of chance, but the law itself
allows gambling on the result therein.

The court has no power to distinguish between material and immaterial breach thereof
or omission to comply with what it requires.

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
The nonperformance of what it (directory statute) prescribes, though constituting in
some instances an irregularity or subjecting the official concerned to disciplinary or
administrative sanction, 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

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 of some act which is required by justice or 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
 MANDATORY STATUTES

1. 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

2. 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

3. Statutes prescribing jurisdictional requirements

The general rule is that statutory requirements by which courts or tribunals acquire
jurisdiction to hear and decide particular actions must be strictly complied with before the
courts or tribunals can have authority to proceed.
Hence, statutes prescribing the various steps and methods to be taken for acquisition by the
courts or tribunals over certain matters are considered mandatory.

4. 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
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
 5. 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

6. 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

7. Election laws on qualification and disqualification

The rule that election laws are mandatory before but not after the elections applies only to those
provisions which are procedural in nature affecting the conduct of the election as well as to those
which direct or require election officials to do or perform certain acts, the purpose of such
construction being to preserve the sanctity of the ballot and carry out the will of the electorate.
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 elections.

8. 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. Statutes prescribing the eligibility or qualifications
of persons to a public office are, as a rule, regarded as mandatory.

9. Statutes relating to assessment of taxes

It is a general rule that the provisions of a statute relating to the assessment of taxes, which are
intended for the security of the citizens, or to insure the equality of taxation, or for certainty as to
the nature and amount of each other’s tax, are mandatory; but those designed merely for the
information or direction of officers or to secure methodical and systematic modes of proceedings
are merely directory.
 10. Statutes concerning public auction sale
Statutes authorizing public auction sale of properties and prescribing the procedure to be
followed are in derogation of property rights and due process, and are construed, with respect to
the prescribed procedure, to be mandatory.
The prescribed steps must be followed strictly otherwise, the sale at public auction shall be void.

DIRECTORY STATUTES

1. 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

2. 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

3. Statutes requiring rendition of decision within prescribed period

Where a statute specifies the time at or within which an act is to be done by a public officer or
body, it is generally held to be directory only as to the time, and not mandatory, unless the time
is of the essence of the thing to be done, or the language of the statute contains negative words,
or shows that the designation of the time was intended as a limitation of power, authority or
right.
The better rule is that where a construction of a time 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 reasons of fairness, justice and fair play
require such construction.
It has been held that a statute requiring rendition of judgment within a specified time is generally
construed to be merely directory, so that non-compliance with them does not invalidate the
judgment on the theory that if the statute had intended such result, it would have clearly
indicated.
However, while the period fixed by law to resolve a case is merely directory, it cannot be
disregarded or ignored completely with absolute immunity.
It cannot be assumed that the law has included a provision that is deliberately intended to
become meaningless and to be treated as a dead letter.

4. Constitutional time provision directory

The constitution provides that the maximum period within 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.
A judgment promulgated after the expiration of the said period is not null and void, although the
officer who failed to comply with the lay may be dealt with administratively in consequence of
his delay-unless the intention to the contrary is manifest.