mandatory and directory report

8/14/2019 Mandatory and Directory Report

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Generally, statutes may be classified as

MANDATORYor DIRECTORY.

Importance: What effect should be given tothe mandate of the statute.


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Statutes which commandseither positively

that something be done, or performed in a

particular way, or negatively not to be done.


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A statue which ispermissive or discretionary

in nature and merely outlines the act to be

done in such a way that no injury can resultfrom ignoring it.


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There is no universal rule by which directory

provisions in a statute may in all

circumstances be distinguished from those

which are mandatory.

Neither there is an absolute test for

determining whether a statutory direction is

considered to be mandatory or directory.

The final arbiter is the legislative intent.


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Whether a statute is mandatory or directorydepends on whether the thing directed to be

done is of the essence of the thing required,

or is a mere matter of form, and what is amatter of essence can often be determined

only byjudicial construction.


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QUESTIONS MANDATORY DIRECTORY

Does the statute prescribe a result in addition

to, or apart from, what it requires?

YES NO

Will third parties suffer as a consequence ofwhat the person charged by the statute to do

within a prescribed limit fails to do?

YES NO

Does the law give a person no alternative

choice?

YES NO

Is what the statute prescribes a matter of

substance not form?

YES NO

Will there be more injury to the public by a

disregard of what the law provides?

YES NO


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Director of Lands vs Court of Appeals

G. R. No. 102858 July 28 1997

Issue:

W/N newspaper publication of the notice of Initial Hearing inan original land registration case mandatory or directory.

Held:

It is mandatory. The word shall denotes an

imperativeand thus indicates the mandatory character of astatute. The law used the term shall in prescribing the work

to be done by the Commissioner of Land Registration upon

the latters receipt of the court order setting the time for Initial

Hearing. While concededly such literal mandate is not an

absolute rule in statutory construction, as its importultimately depends upon its context in the entire provision, we

hold that in the present case the term must be understood in

its normal mandatory meaning.


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The presumption is that the word shall in a

statute is used in an imperative (mandatory)and not in a directory sense.


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Art. 9 of the Civil CodeNo judge or Court shalldecline to

render judgment by reason of the silence,

obscurity or insufficiency of laws

Art. 11 of the Civil Code

A custom mustbe proven as a fact,

according to the rules of evidence


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Rule 41 of the 1997 Rules of Civil Procedure

Section 4.Appellate court docket and other lawful fees.Within the

period for taking an appeal, the appellant shall pay to the clerk of the

court which rendered the judgment or final order appealed from, the

full amount of the appellate court docket and other lawful fees.

COMPLAINTFOR PARTITION

VS.

RTC: Ordered the

respondents tovacate the property.

CA: Dismissed the

case for failing to filethe appellate court

docket fee


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May

Opportunity/possibility

Directory

Permissive

Conferdiscretion


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Art. 5 of the Revised Penal Code

Duty of the court in connection with acts

which should be repressed but which are not

covered by the law, and in cases of excessive

penalties. Whenever a court has knowledge

of any act which it maydeem proper to

repress and which is not punishable by law


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Section 45 of R.A. No. 296:

Courts of First Instance shalldecide such appealed cases on the basis of the evidence

and records transmitted from the city or municipal courts: Provided, That the

parties may submitmemoranda and/or brief with oral argument if so requested...

Private respondents filed

an ejectment suit against

the petitioner.

Upon appeal the court

issued an order:

counsels for both

parties are given 30

days from the

receipt of this order

to file their

memoranda in

order for this caseto be submitted for

decision by the

court .

Respondent judge issued anorder dismissing the case for

failure to prosecute

petitioners appeal

ISSUE: WOR mere failure of an Appellant to submit the memorandum required

would empower the CFI to dismiss the appeal on the ground of failure toprosecute.


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Shallto be construed as Mayand vice versa

Factors to consider: (LEGISLATIVE INTENT)

a. consideration of the entire provisionb. nature

c. object

d.consequences that will follow fromconstruing it one way or another.


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Sec. 46.Adoption of by-laws.Every corporation formedunder this Code, must within one (1) month after receipt ofofficial notice of the issuance of its certificate of incorporationby the Securities and Exchange Commission, adopt a code ofby-laws for its government not inconsistent with this Code.

ISSUE: WOR failure of a LGVHA to file by-laws within the period prescribed

under Sec. 46 of the corporation code resulted to their automatic

dissolution.


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- Negative statute is one expressed in negative wordsor in the form of an affirmative proposition followed

by the word only

The use by the legislature of negative, prohibitory orexclusive terms of words in statute is indicative of the

legislative intent to make it mandatory.

A statute or provision which contains words ofpositive prohibition such as shall not, cannot or

ought not or which is couched in negative terms

importing that the act shall not be done otherwisethat designated is mandatory.


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Art. 11 of the Family Code

Customswhich are contrary to law, publicorder and public policy shall not be

countenanced. Art. 8 of the Revised Penal Code

Conspiracy and proposal to commit a

felony are only punishable in the caseswhich the law specifically provides apenalty therefore.


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