CHAPTER 8: Mandatory and Directory Statutes

 Statutes – classified as mandatory or directory.

 Classification determines the effect given to the mandate of a statute.
1. Mandatory Statutes
 Contains words of commands or prohibition
 Leaves the person concerned no choice except to obey
2. Directory Statutes
 Permissive or discretionary in nature
 Outlines an act to be done so no injury can result from obtaining it
When is a statute MANDARTORY or DIRECTORY?

 There is no universal rule/absolute test by which these statutes can be distinguished from one
another.
 Legislative Intent - primary object to answer such question, this must be obtained from all
surrounding circumstances and does NOT depend on the form of statute
Test to Determine Nature of Statute

 Whether a statutory requirement is mandatory or directory depends on its effect

 Generally regarded as DIRECTORY if;
 No substantial rights depend on it
 No injury can result from ignoring it
 Purpose of the legislature can be accomplished by other means than that prescribed whilst
achieving the same results
 Generally regarded as MANDATORY if the above statutory requirements are not met
 A statute will NOT be considered as MANDATORY if;
 Cause hardship or injustice on the part of the public who is not at fault
 Leads to absurd consequences

Language Used

MANDATORY DIRECTORY
“Shall/Shall not” “May”
“Must/Must not” or other words
“Ought/Ought not” importing permissiveness

NOTE: It has been held that the intention of the legislature as to the mandatory or directory nature of
particular statutory provision is determined primarily from the language thereof.
Use of SHALL or MUST

 Shall – must be given a compulsory meaning and is generally imperative or mandatory

 Remember: If NON-COMPLIANCE with what is required will result to the nullity of an act, the word
used is a COMMAND therefore Mandatory
  Must – not always imperative and may be consistent with discretion depending on the nature
and object of the statute (Sec. 46 of the Corporation Code used “must” as Directory)
Remember: Always consider the legislative intent of a statute in contrast with the language used and
not just the language itself
Use of MAY

 May (Directory by nature) – an auxiliary verb showing “opportunity or responsibility”, implies

possible existence, therefore it is only permissive and not mandatory
Example(s):
 The word “may” as used in adjective laws, such as remedial statutes which are
construed liberally is permissive
 Sec. 63 of the Corporation Code
When SHALL is construed as MAY and vice versa

 “May” will be construed as “shall” where statute provides for an act required by justice or public
duty
 “Shall” will be construed as “may” when no public benefit or private right requires it to have an
imperative meaning
Use of Negative, Prohibitory or Exclusive Terms

 A negative statute is MANDATORY by legislative intent

 A negative statute is expressed in (1) negative words or (2) affirmative proposition qualified by
the word “only”
*only – force of an exclusionary negation
 Positive Prohibition – SHALL NOT, CANNOT, OUGHT NOT, etc. (still Mandatory)

Why do prohibitive or negative words rarely become directory? Because it mandates us to completely
refrain from doing a specific act, take into consideration the use of “thou shall not”.

MANDATORY STATUTES
Confer power
Grant benefits DIRECTORY STATUTES
Prescribe jurisdictional requirements Prescribe guidance for officers
Prescribe time for action or appeal (business related)
Prescribe procedural requirements Prescribe manner of judicial action
Election laws on Rendition of decisions within a
conduct/qualifications/disqualifications prescribed period
Qualifications for office
Assessment Taxes
Public Auction Sale
CHAPTER 9: Prospective and Retroactive Statures

 Statutes are classified as prospective or retroactive, in accordance to their APPLICATION

1. PROSPECTIVE – operates upon facts or transactions that occur AFTER the statute takes
effect, looks to the future
2. RETROACTIVE – creates new obligation, imposes a new duty or attaches a new disability
in respect to a transaction already in the past
 A statute is not made retroactive because it takes away or impairs vested rights acquired
under existing laws
Laws Generally Operates Prospectively

 A sound canon of statutory construction is that statutes operate prospectively only and never
retrospectively
 The Civil Code of the Philippines follows the above rule thus: Laws shall have no retroactive effect,
unless the contrary is provided.
 Retroactive legislation is looked upon with disfavor, as a general rule and properly so because
of its tendency to be unjust and oppressive

Words and Phrases Indicating Prospectivity:

 “hereafter” or “thereafter”
 “from and after passing of this Act”
 “shall take effect upon its approval”
Penal Statutes

 Penal statutes as a rule are applied prospectively

 Felonies and misdemeanors are punished under the laws in force at the time of their
commission. (Art. 366, RPC).
 “No felony shall be punishable by any penalty not prescribed by law PRIOR to its commission.”
(Art. 21, RPC)
 However, as an exception, it can be given retroactive effect if it is favorable to the accused who
is not a habitual criminal. (Art. 22, RPC)

LEGAL MAXIM: nullum crimen sine poena, nulla poena sine legis (or there is no crime without
penalty, and there is no penalty without the law)

 Look back on Ex post facto law and Bill of Attainder

NOTE:

 An ex post facto law only applies to criminal or penal matters NOT civil rights or political
privileges
 If a statute is a bill of attainder, it is also an ex post facto law

ASK YOURSELF: Does the law sought to be applied retroactively take from an accused any right
that was regarded at the time as vital for the protection of life and liberty? If YES, then it is an Ex
Post Facto law
Statutes Substantive in Nature

 A substantive law is law which creates, defines or regulates rights concerning life, liberty or
property, or the powers of agencies or instrumentalities for the administration of public affairs
Statutes Affecting Obligations of Contracts

 Any contract entered into must be in accordance with the applicable law AT THE TIME of
execution.
 If a contract is LEGAL at its inception, it cannot be rendered illegal by a subsequent legislation
 Applies even to importation of goods without import license, so long as the law existing at the time
of the shipment allows the lack of such requirement
Repealing Amendatory Acts

 Statutes which repeal earlier or prior law operate prospectively, unless the legislative intent to
give them retroactive effect clearly appears
 Repealing statutes which are penal in nature are generally applied retroactively if favorable to
the accused, unless accused is not entitled
 An AMENDMENT is generally construed as becoming part od the original act as if it had always
been contained therein, BUT it must be provided expressly and should not impair vested rights
 General rule prospective application of statutes applies to amendatory acts
Laws are NOT retroactive, EXCEPTION:
1. Procedural Laws – they do not impair vested rights but only operates in furtherance of the
remedy or confirmation of rights already existing

Exception to the Exception:

 The rule does not apply where the statute itself expressly provides that further actions
are excepted from its operation
 To apply such to a pending proceeding would impair vested rights, involve problems
to due process or hamper the court’s independence

REMEMBER: The court MAY deny the retroactive application of a procedural law

2. Curative Statutes – healing acts, remedial for curing defects and adding to the means of
enforcing existing obligations
 Designed to give effect to contracts and other transactions between private parties
which otherwise would fail of producing their intended consequences by reason of
some statutory disability or failure to comply with some technical requirement
 They are therefore retroactive in their character

NOTE: Police Power Legislation – any right acquired under a statute or under a contract may be impaired
by the state in the LEGITIMATE exercise of its police power in order to promote legal order
CHAPTER 10: Amendment, Revision, Codification and Repeal
Power to Amend

 The legislature has the authority to amend any existing law (Constitutional Requirement)
 The Supreme Court has no authority to amend or change the law, it is limited only to rule-making
and interpretation
Amendment by Implication

 Neither presumed nor favored

 An implied amendment is where a part of a prior statute embracing the same subject as the
later act may not be enforced WITHOUT nullifying the pertinent provision of the latter
 Sample Scenario:
A stature requires that the annual realty tax on lands or buildings should be paid on a
specified date, subject to penalty
AMENDED by allowing payments to be done in 4 equal installments due on or before
specified dates
 Therefore, the penalty provision is deemed modified by implication because only the
penalty on late payment/installments are modified and not the whole amount of annual tax
provided on the old statute
Revision and Codification

 Sometimes, the legislature enacts revised or codified statutes in order to; restate the existing
laws into one statute; simplify complicated provisions; and make the laws in the subject easily
found
 What is OMITTED from the old laws in the revised statute is deemed REPEALED
 A codification should be considered as a CONTINUATION of the existing statute
Power to Repeal

 The legislature has plenary power to repeal, abrogate or revoke existing laws
 The Supreme Court has no power to repeal substantive laws, it can only promulgate rules of
procedure
 The Constitution prohibits the passage of irrepealable laws, ALL LAWS ARE REPEALABLE
The Repeal of a Statute

1. Total – revoked completely

2. Partial – leaves the unaffected portion portions of the statute in force
3. Express – where there is declaration in a statute, usually in its repealing clause, that a specific
law (identified by its number of title) is repealed
4. Implied – occurs where two statutes are mutually inconsistent, irreconcilable inconsistency
exists in terms of the new and old laws

On the Repealing Clause: “All laws or parts thereof which are inconsistent with this Act are hereby repealed
or modified accordingly.” Construed: It is not an express repealing clause because it fails to identify the
act(s) that are intended to be repealed. It is a clause which establishes the intended repeal upon the
condition that a substantial conflict must be found on existing and prior acts of the same subject matter
As Between Two Laws, One Passed Later Prevails

 When two laws on the same subject matter that are inconsistent, the one passed LATER prevails
because it is the latest expression of legislative will
 LEGAL MAXIM: “Leges Posteriores Priores Contrarias Abrogant”/ Later statute repeals prior ones
which are repugnant thereto
Generally, A General Law Does Not Repeal a Special Law

 LEGAL MAXIM: “Generalia Specialibus Non Derogant”

 The reason why a special law prevails over a general law is that the legislature considers and
makes provisions for all circumstances of the particular case
 Inconsistency between the two laws is reconciled by treating the special law as an EXCEPTION
to the general law
CHAPTER 11: Constitutional Construction

 A constitution is a system of fundamental law which sets up a form of government and defines
and delimits the power thereof and those of its officers, reserving to the people themselves
plenary sovereignty
 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution, that law or contract whether promulgated by the legislative, or by the executive
branch or entered into by private persons for private purposes is null and void and without any
force or effect
Primary Purpose of Constitutional Construction: Ascertain the intent or purpose pf the framers of the
constitution as expressed in the language of the fundamental law, and thereafter to assure its realization
The Constitution is construed to endure through a long lapse of ages
Generally, Constitution Provisions are Self-Executing, Exceptions;

 Some constitutions are merely declarations of policies. Their provisions command the
legislature to enact laws and carry out the purposes of the framers who merely establish an
outline of government providing for the different departments of the governmental machinery
and securing certain fundamental and inalienable rights of citizens.
 Thus, a constitutional provision is self-executing if the nature and extent of the right conferred
and the liability imposed are fixed by the constitution itself.
 Unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing
 In case of doubt, the Constitution should be considered self-executing rather than non-self-
executing, unless the contrary is clearly intended
 Non-self-executing provisions would give the legislature discretion to determine when, or
whether, they shall be effective, subordinated to the will of the law-making body.
Three Maxims Employed as Aids to Construe Constitutional Provisions:
1. Verba Legis
 As the statute is clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation
  A.K.A. Plain-meaning rule
2. Ratio Legis Est Anima
 The reason of the law is the spirit of the law (Ballentine's Law Dictionary)
3. Ut Magis Valeat Quam Pereat
 That the thing may rather have effect than be destroyed (Black's Law Dictionary)

Guidelines in Construction and Interpretation of the Constitution

1. The Court in construing a Constitution should bear in mind the object sought to be accomplished
by its adoption, and the evils, if any, sought to be prevented or remedied.
2. One provision of the Constitution is to be separated from all the others, to be considered alone,
but that all provisions bearing upon a particular subject are to be brought into view and to be
interpreted as to effectuate the great purposes of the instrument
3. The proper interpretation of the Constitution depends more on how it was understood by the
people adopting it than the framer’s understanding thereof.

REMEMBER: THE CONSTITUTION MUST BE CONSTRUED IN ITS ENTIRETY AS ONE, SINGLE

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