Chapter 8 :

Mandatory and
Directory Statutes
Presented by : Group 4

Christian Babailan
Jon Emmanuel V. Mane
Faith Erika Tamayo
Merry Rose Ramirez
Frances Adelle A. Reyes
Giselle Mae F. Sibug

Statutory Construction
1R College of Law, San Beda University
Atty. Algie Kwillon Mariacos
A. IN GENERAL Presented by Giselle Sibug
Statues may be classified either as The non-performance of what it prescribes
mandatory or directory. The classification is will not destroy the legal validity of
important in resolving the question of what proceedings taken but constitute in some
effect should be given to the mandate of a instances an irregularity or will subject the
statute. official concerned to disciplinary or
administratively sanctions.
Mandatory Statutes - is a statute which
commands that something be done or
performed in a particular way or something
Determining Directory Provisions in a Statute
be not done, leaving the person no choice but
to obey. It contains words of command or Legislative intent obtained from all the
prohibition. surrounding circumstances and
consideration is the basis of determining
The omission to follow renders the
whether a statutory direction is a mandatory
proceeding to which it relates illegal and void
or prohibitory law. Considerations must be
or the violation of which makes the decision
given to the entire statute, object, purpose,
rendered invalid. Article 5 of the Civil Code
legislative history, connection with other
provides that Acts executed against the
related statues and its effects.
provisions of mandatory or prohibitory laws
shall be void, except when the law itself Whether a statute is mandatory or directory
authorizes their validity. depends on whether the thing to be done is
of essence of the thing required (Mandatory),
or is a mere matter of form (Directory).
Directory Statute - is a statute which is
permissive or discretionary in nature and
merely outlines the act to be done in order to Test to determine nature of statue - ascertain
prevent injury that can result from ignoring it. the consequences that will follow in case
Confers discretion upon a person, to act what the statute requires is not done or what
according to his own judgments and it forbid is performed
conscience and not controlled by judgement
of others.
Questions Mandatory Statutes Directory Statutes
Does the statute prescribe a result apart
Yes No
from what it requires?
Will third parties suffer as a consequence
of what the person charged by the statute Yes No
to do fails?
Does the law give a person an alternative
No Yes
choice?
Is what the statute prescribes a matter of
Yes No
substance and not of form?
Will there be more injury to the public by
Yes No
the disregard of what the law provides?

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Whether a statutory requirement is
mandatory or directory depends on its
effects. If no substantial rights depend on it
and no injury can result from ignoring it, the
purpose of the legislature can be
accomplished in a manner other than that
prescribed and substantially the same
results obtained > statute is generally
directory and if not it is mandatory.
Language Used - use of command
words(shall, must, ought, should) or of
prohibition words (cannot, shall not, ought
to) indicates the legislative intent to make
the law mandatory. While statutes using
permissive words such as “may” or words
importing permissiveness are generally
directory. The intention of the legislature as
to the mandatory or directory nature of
statutory provision is determined primarily
from the language used.
Use of “shall” or “must”
General Rule: the use of word “shall” in a
statute implies that the statute is mandatory.
It means “ought to”, “must”, it expresses
what is mandatory and is a word of
command. It imposes a duty to be enforced
especially if the public is in favor of this
meaning, or where public interest is involved,
or where the public or persons have rights
which ought to be exercised, unless a
contrary intent appears.
Exception:
If a different interpretation is sought, it must
be based on the character of the legislation
or in its context, which will justify a different
meaning.
Application:
In the case of Enriquez vs Enriquez, G.R NO.
139303 [August 25, 2005] the issue is
whether payment of docket and other lawful
fees is mandatory and jurisdictional, in view
of the use of the word “shall”. The courts
sustained the dismissal of the appeal by
stating that the use of the word “shall”
underscores the mandatory character of the
Rule. The term “shall” is a word of command
and must be given a compulsory meaning,
and it is generally imperative or mandatory.
Petitioners cannot give a different
interpretation to the Rule and insist that
payment of docket fee shall be made only
upon the request of their receipt of notice
from the trial court to pay.
It is a rule in statutory construction that every
part of the statute must be interpreted with
reference to the context, i.e. that every part
of the statute must be interpreted together
with the other parts and kept subservient to
the general intent of the whole enactment.
The payment of docket fee within the
specified period is mandatory for the
perfection of appeal as without it the
appellate court would not be able to act on
the subject matter and the decision sought
to be appealed becomes final and executory.
General Rule : Like the word “shall”, the term
“must” or “ought” is a word of command
however the rule is not always absolute.
Exception : The import of the word ultimately
depends upon consideration of the entire
provision, its nature, object, language of the
statute and the consequences that would
follow from construing it one way or the
other. If the language of the statute
considered as a whole and with regard to its
nature and object reveals that the legislature
intended to use a generally mandatory word
such as “must” to be directory, it should be
given that meaning.
Application: Sec 46 of the Corporation code,
which provides that “every corporation
formed under this code, must within under 1
month...adopt a code of by-laws for its
government not inconsistent with this Code.
The court ruled that the non-filling of the by-
laws does not imply the demise of the
corporation. PD No. 902-A, which is in pari
materia with the Corporation Code provides
that there should be notice before certificate
of registration may be cancelled by the
failure to file the by-laws. This provision
shows that intent not to use the word “must”
as mandatory but merely directory is evident
and it should be given that meaning.
One test to determine whether the word
“shall” is mandatory or discretionary is to
check whether or not non-compliance of
what is required will result in the nullity of the
act. It results in the nullity of the act, the word
is used as a command.
Application :
In Director of Lands v Court of Appeals, the
law requires that petition for land registration
after receipt of order of the court setting time
for court hearing , the Commission of Land
Registration shall cause a notice of initial
hearing to be published in the Official
Gazette but also in a newspaper of general
circulation. These make the use of the word
“shall” imperative as a decision in land
registration case tried without the initial
hearing published on a newspaper is a
nullity.
Use of “may”- may is an auxiliary verb
showing opportunity or possibility. Generally
speaking it is directory in nature and is
permissive only and operates to confer
discretion.
Application: Sec 63 of the Corporation Code,
which states that “ shares of stock so issues
are personal property and may be transferred
by delivery of the certificate endorsed by the
owner”, is merely permissive and indicates
that the transfer if shares may be done in a
manner different from that provided in the
law.

Mandatory Directory
Commands that something be done or performed in
a particular way or something be not done Permissive or Discretionary in nature
Court has no power to distinguish between material
and immaterial breach to comply.
Matter is essential Relates to some immaterial matter, matter
Compliance
Essential to the validity of act or proceeding of convenience than substance

Omission to follow renders the proceeding illegal Not vitiate proceedings, just mere
and void or a decision invalid irregularities but official concerned will be
Non-performance
subject to disciplinary or administrative
Pain of Sanction or declaration of nullity sanctions.
Rights Substantial Rights are dependent No Substantial Rights depends on it
Injury that can result
from ignoring it
Exists No injury results from its nonobservance

Purpose of the
There are other manner to accomplish
legislature can be Solely on this
accomplished legislative purpose.

Statutory requirements intended for protection of

citizens
Exception- when it will cause hardship or injustice on
Includes:
the part of the public who is not at fault.
Or when an interpretation will lead to absurdity,
impossible of mischievous consequence.
Uses words of command (shall, must, ought, should) Uses permissive words such as may, etc.
or prohibition (cannot, shall not, ought)and given a
Language Used Operates to confer discretion
compulsory Meaning of words generally imperative
or mandatory. Not mandatory

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 Exception to different interpretation depend on
character of legislation or its context.

8.08. When “shall” is construed as “may” and vice versa. Presented by Christian Babailan

Essential Points:
It is well-settled that the word “may” should be read as “shall” where such construction is
necessary to give effect to the apparent intention of the legislature.
The word “may” will as a rule, be construed as “shall” where a statute provides for the doing of
some act which is required by justice or public duty, or where it vests a public body or officer with
power and authority to take such action which concerns the public interest or rights of individuals.
On the other hand, the word “shall” may be construed as “may” when so required by the context
or by the intention of the legislature. It shall be construed merely as permissive when no public
benefit or private right requires that it be given an imperative meaning.

Illustrative case, the use of “shall”

*Acosta vs. Adaza, G.R. No. 168617, February 19, 2007
-In this case, the issue: whether the Secretary of Justice can still entertain a petition for
review of the resolution of the prosecutor when the information has been filed in court and the
accused has already been arraigned.
Facts:
In a Resolution dated 11 July 2002, the DOJ reversed and set aside the August 2001 resolution of
the Office of the City Prosecutor of Iligan City and directed the said office to withdraw the
Information for Estafa against petitioner.
However, on July 26, 2002, respondent filed a motion for reconsideration of said resolution of the
DOJ arguing that the DOJ should have dismissed outright the petition for review since Section 7
of DOJ Circular No. 70 mandates that when an accused has already been arraigned and the
aggrieved party files a petition for review before the DOJ, the Secretary of Justice cannot, and
should not take cognizance of the petition, or even give due course thereto, but instead deny it
outright.
-Furthermore, respondent claimed Section 12 thereof mentions arraignment as one of the
grounds for the dismissal of the petition for review before the DOJ.
-However, in response to this, the DOJ denied the Motion for Reconsideration opining that under
Section 12, in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not
precluded from entertaining any appeal taken to him even where the accused has already been
arraigned in court. This is due to the permissive language “may” utilized in Section 12 whereby
the Secretary has the discretion to entertain an appealed resolution notwithstanding the fact that
the accused the fact that the accused has been arraigned.
On the other hand, the Court of Appeals granted respondent’s petition and reversed the
Resolutions of the DOJ. The Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70
which states “if an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been arraigned,” ruled that since

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petitioner was arraigned before she filed the petition for review with the DOJ, it was imperative
for the DOJ to dismiss such petition.
The Court of Appeals stood firm by its decision and tried to construe Section 7 side by side with
Section 12 of DOJ Circular No. 70 and attempted to reconcile those tow provisions.
The Court of Appeals states that the permissive word “may” in Section 12 would seem to imply
that the Secretary of Justice has discretion to entertain an appeal notwithstanding the fact that
the accused has been arraigned. This provision should not be treated separately but should be
read in relation to section 7. The two provisions, taken together, simply meant that when an
accuse was already arraigned when the aggrieved party files a petition for review, The Secretary
of Justice cannot, and should not take cognizance of the petition, or even give due course thereto,
but instead dismiss or deny it outright. The appellate court however, added that the word “may”
in section 12 should be read as “shall” or “must” since such construction is absolutely necessary
to give effect to the apparent intention of the rule as gathered from the context.
Moreover, the petitioner asserts that the Court of Appeals’ interpretation of the provisions of DOJ
Circular No. 70 violated basic rules in statutory construction. First, the rule that the provision that
appears last in the order of position in the rule or regulation must prevail. Second, the rule that
the contemporaneous construction of a statute or regulation by the officers who enforce it should
be given weight. Third, petitioner lifted a portion from Agpalo’s Statutory Construction where the
word “shall” had been construed as a permissive, and not a mandatory language.
Held: The all-too-familiar rule in statutory construction, in this case, an administrative rule of
procedure, is that when a statute or rule is clear and unambiguous, interpretation need not be
resorted to. Since Section 7 of the subject circular clearly and categorically directs the DOJ to
dismiss outright an appeal or a petition for review filed after arraignment, no resort to
interpretation is necessary.
-Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition
for review due course and must dismiss the same.
Petitioner’s posture on a supposed exception to the mandatory import of the word “shall” is
misplaced. It is petitioner’s view that the language of Section 12 is permissive and therefore the
mandate in Section 7 has been transformed into a matter within the discretion of the DOJ. After
a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to
the provision in question. In the cited passage, the word “shall” departed from its mandatory
import connotation because it was connected to certain provisions/conditions: “subject to the
availability of funds” and “upon such violation being proved.” No such proviso/condition, however,
can be found in Section 7 of the subject circular. Hence, the word “shall” retains its mandatory
import.

8.09. Use of negative, prohibitory or exclusive terms

Essential points:
o -A negative statute is mandatory.
o -A negative statute is one expressed in negative words or in the form of an affirmative
proposition qualified by the word “only”, said word having the force of an exclusionary
negation.
-The use by the legislature of negative, prohibitory or exclusive terms or words in a statute is
indicative of the legislative intent to make the statute mandatory.

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B. MANDATORY STATUTES presented by Merry Rose Ramirez & Frances Adelle A. Reyes

8.10 Statutes conferring power

- Statutes that confer power upon a public body or officer to perform acts which concern the
public interests or rights of individuals, although the language used is only permissive,
since such statutes are construed as imposing rather than conferring privileges, they are
regarded as mandatory.
- The power is given for the benefit for that of third persons, and is placed with the depository
to meet the demands of rights, and to prevent a failure of justice. It is given as a remedy to
those entitled to invoke its aid, and who would otherwise be remediless. In re Guarina [G.R.
No. L-1179, January 8, 1913]
In Rock Island County Supervisors vs. United States (71 U.S., 435, 446), Mr. Justice Swayne says:
The conclusion to be deduced from the authorities is that where power is given to public officers,
in the language of the Act before us, or in equivalent language, whenever the public interest or
individual rights call for its exercise, the language used, though permissive in form, is in fact
peremptory. What they are empowered to do for a third person the law requires shall be done.
The power is given, not for their benefit, but for his. It is placed with the depository to meet the
demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to
invoke its aid, who would otherwise be remediless. In all such cases it is held that the intent of
the Legislature, which is the test, was not to devolve a mere discretion, but to impose a positive
and absolute duty.
8.11 Statutes granting benefits
- Statutes which require certain steps to be taken or certain conditions to be met before
persons can avail of the benefits conferred by law are considered mandatory.
- Failure of a person to take the required steps or to meet the conditions will ordinarily
preclude him from availing the statutory benefits.
- Vigilantibus et non dormientibus jura subveniunt – the laws aid 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
8.12 Statutes prescribing jurisdictional requirements
- Statutes prescribing the various steps and methods to be taken for acquisition of
jurisdiction by the courts or tribunals over certain matters are considered mandatory.
Gonzales v. Court of Appeals
[G.R. No. L-14532, May 26, 1965]
- The provision of the Tax Code to the effect that before an action for refund of tax is
filed in court, a written claim therefor shall be presented with the Commissioner of
Internal Revenue within the prescribed period is mandatory and failure to comply with
such requirement is fatal to the action.
8.13 Statutes prescribing time to take action or to appeal

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 - Statutes or rules prescribing the time for litigants to take certain actions or to appeal from
an adverse decision is generally mandatory.
- Such statutes are absolutely indispensable to the prevention of needless delays and to
the orderly and speedy discharge of business, and are necessary incident to the proper,
efficient, and orderly discharge of judicial functions. They require strict compliance; they
are not waivable, nor can they be the subject of agreements or stipulations by litigants.
Gachon v. Devera, Jr.
[G.R. No. 116695 June 20, 1997]
Sec. 6. Effect of failure to answer. — Should the defendant fail to answer the complaint within the
period above provided, the Court, motu proprio, or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein:
...
- In holding that the provision is mandatory, the Court explained:
The Rule on Summary Procedure, in particular, was promulgated for
the purpose of achieving "an expeditious and inexpensive determination of cases." For
this reason, the Rule frowns upon delays and prohibits altogether the filing of motions for
extension of time. Consistent with this reasoning is Section 6 of the Rule which allows the
trial court to render judgment, even motu proprio, upon the failure of a defendant to file an
answer within the reglementary period.
Indeed, the Judiciary Reorganization Act of 1980, mandating the promulgation of
the Rule on Summary Procedure, authorizes the Court to stipulate that the period for filing
pleadings in cases covered by the Rule on Summary Procedure shall be "non-extensible."
From the foregoing, it is clear that the use of the word "shall" in the Rule on
Summary Procedure underscores the mandatory character of the challenged provisions.
Giving the provisions a directory application would subvert the nature of the Rule on
Summary Procedure and defeat its objective of expediting the adjudication of suits.
Indeed, to admit a late answer, as petitioners suggest, is to put premium on dilatory
maneuvers — the very mischief that the Rule seeks to redress. In this light, petitioners'
invocation of the general principle in Rule 1, Section 2 of the Rules of Court is misplaced.

8.14 Statutes prescribing procedural requirements

- In 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, is
mandatory.

De Mesa v. Mencias
[G.R. No. L-24583, October 29, 1966]
Section 17, Rule 3 of the old Rules of Court provided that “after a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted. If the legal representative fails to appear within said time,
the court may order the opposing party to procure the appointment of a legal representative of
the deceased within a time to be specified by the court, and the representative shall immediately
appear for and on behalf of the interest of the deceased.”

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 - The procedural requirement goes to the very jurisdiction of the court, for “unless and until
a legal representative is for him duly named and within the jurisdiction of the trial court,
no adjudication in the cause could have been accorded any validity or binding effect upon
any party, in representation of the deceased, without trenching upon the fundamental right
to a day in court which is the very essence of the constitutionally enshrined guarantee of
due process,” and accordingly, the provision is mandatory.

8.15 Election laws on conduct of election

- The provisions of election laws governing the conduct of elections and prescribing the
steps election officials are required to do in connection therewith are mandatory before
the elections; however, when it is sought to enforce them after the elections, they are held
to be directory only.
Gardiner vs. Romulo
[G.R. No. 61545, December 27, 1982]
- It has been held that the provisions of the election law as to the conduct of the elections
are mandatory if enforcement is sought before election in a direct proceeding for that
purpose; but after election, all should be held directory only, 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 the provision affects an essential element of the
election, 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.
8.16 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.
- 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.
Zacarias Ticzon, vs. Commission on Elections
[G.R No. L-52451, March 31,1981]
- The Comelec found that Ticzon, a Liberal in the 1971 elections, indicated that he was a
Nacionalista in the certificate of candidacy which he filed for the elections on January 30, 1980.
"The records do not disclose that he resigned his membership from the said Liberal Party. Neither
was he expelled from his party. On the contrary, the affidavit of Ex-Vice-Mayor Pedro Magcase
shows" that Ticzon remained with the Liberal Party. "All other documentary evidences on record
indicate his continuance as member in good standing of the Liberal Party. The Comelec had
jurisdiction to make the factual finding that Ticzon changed his party affiliation within six months
preceding the elections. It is not a whimsical and capricious preceding the elections. It is not a
whimisical and capricious finding. It is supported by documentary evidence. Ticzon was not
denied due process when the finding was made. He was duly heard and he presented evidence
at the hearing. Consequently, that finding cannot be set aside in this certiorari proceeding. It is
binding and conclusive on this Court.
"No elective public officer may change his political party affiliation during his term of office, and
no candidate for any elective public office may change his political party affiliation within six

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months immediately preceding or following an election" (Sec. 10, Art. XII[C]). That prohibition is
incorporated in section 4 of Batas Blg. 52 which took effect on December 22, 1979.
Section 7 of that law provides that the Comelec "shall motu proprio, or upon sworn petition of any
voter, political party or candidate, after due notice and hearing, refuse to give due course to a
certificate of candidacy if it is shown that the person filing the same does not possess all the
necessary qualifications for the office concerned or is disqualified from running for said office as
provided by law". If the courts do not disturb the factual findings of administrative agencies
created by law, except when there is no substantial evidence to support such findings, then there
is no reason to believe that the Constitution intended to place the Comelec on a lower level than
those administrative agencies. The Comelec's ruling is based on section 155(24) of the 1978
Election Code which provides that "any vote cast in favor of a candidate who has been disqualified
under this Code shall be considered as stray and shall not be counted but it shall not invalidate
the ballot". Rule 24 means that the votes cast for a disqualified candidate fall into the category of
invalid or inexistent votes because a disqualified candidate is no candidate at all or is not a
candidate in the eyes of the law. The Comelec did not give due course to Ticzon's candidacy. He
became a non-candidate. The votes for a non-candidate cannot be counted and cannot influence
the result of the elections. The votes for Ticzon were properly adjudged as stray votes.

8.17 Statutes prescribing qualifications for office

- The eligibility or qualifications of persons to a public office are, as a rule, regarded as
mandatory.
Aguila vs. Genato
[G.R. No. 55151, March 17, 1981]
Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the various
Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown no
clear and explicit right to the position of Director of MOELCI II and is, therefore, not entitled to a
Restraining Order, which partook of the nature of a mandatory injunction, commanding as it did
that private respondent be retained in his position as such Director. By having been elected
member of the Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself
ineligible to continue serving as a Director of MOELCI II by virtue of the clear mandate of PD No.
269 providing that except for "barrio captains and councilors", elective officials are ineligible to
become officers and/or directors of any cooperative. It is clear to us that the term barrio modifies
both captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can
remain a member of the Board if he "holds an elective office above the level of barrio captain.
Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a
cooperatives from continuing in their position prior to their election, and that pursuant to section
24 of PD No. 269 he is entitled, as Director, to hold office for the term for which he is erected and
until his successor is elected and qualified," is untenable. Eligibility to an office should be
construed as of a continuing nature and must exist at the commencement of the term and during
occupancy of the office. The fact that private respondent may have been qualified at the time he
assumed the Directorship is not sufficient to entitle him to continue holding office, if during the
continuance of his incumbency he ceases to be qualified. Private respondent was qualified to
become a director of MOELCI II at the time of the commencement of his term, but his election as
member of the Sangguniang Panglunsod of Ozamiz City, and his subsequent assumption of
office, disqualified him to continue as such.
8.18 Statutes relating to assessment of taxes

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 - It is a general rule that the provisions of a statute relating to the assignment 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.
8.19 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.
Miguel Ramos and Aurora Argosino, vs. Paula Florido, et al
[G.R No. L-3656, April 28, 1951]
- Section 41, supra, provided, among other things, that announcement of sale of
confiscated real property at public auction "shall be made by publishing a notice once a week for
three consecutive weeks in a newspaper of general circulation published in the province, if there
be any," and further that "a copy of the notice shall be forthwith sent by registered mail to the
delinquent taxpayer at his residence if known to said treasurer." These requirements were varied
by Commonwealth Act No. 470, which makes publication of notice in a newspaper discretionary
with the provincial treasurer and authorizes the treasurer, also in his discretion, to send such
notice to the owner either by registered mail or by messenger.
By "newspaper of general circulation published in the province" was meant, in our opinion, one
printed and not merely circulated herein. The purchasers of the lots in question admit that no
publication of the notice in a newspaper was accomplished. However, they assert that there was
no newspaper published or printed in Quezon Province, and now they ask for a new trial,
explaining that their failure to adduce proof on this core in the court below arose from the
erroneous belief on their part as well on the part of the Court of First Instance, that in March, 1939,
when the sales are effected, the procedure outlined in Section 35 of Commonwealth Act No. 470
already governed, Act which, as has been seen, makes announcement of the sale in a newspaper
optional with the provincial treasurer.
It is conceded that no notices by registered mail were sent to the delinquent taxpayers. What the
purchasers understood to prove was that notices were transmitted by messengers. The Court of
Appeals made no definite findings on whether personal notices were dispatched, as claimed, or
received by the sendees. The only evidence on the subject was furnished by the municipal
treasurer and not by the messengers themselves. Needless to say, the treasurer was not in a
position to and did not affirm positively that the messengers actually handed the notices to the
parties for whom they were intended or left them at their places of residence. However, the case
may be, we are in agreement with the Court of Appeals that notice by registered mail, as ordained
by Act No. 3995, was mandatory and excluded any other mode of service. Had this not been the
case, it would have been superfluous for the Legislature to add in the subsequent law —
Commonwealth Act No. 470 — the sending of notice by messenger as an alternate means of
notification. Furthermore, we think there is much to the contention that as, the sale of property
for tax delinquency is in derogation of property rights and due process, the prescribed steps must
be followed strictly.

C. DIRECTORY STATUTES Presented byJon Emmanuel V. Mane Faith Erika Tamayo

What is a Directory Statute?

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AGPALO (Recap): A directory statute has the following characteristics:

- It is PERMISSIVE and DISCRETIONARY in nature.

- It merely outlines an act to AVOID INJURY.
- It can be accomplished differently from what was prescribed but may substantially have the
SAME RESULT.
- It merely operates to confer the DISCRETION of the person.
- In non-performance or irregularities, it may subject the official concerned to DISCIPLINARY or
ADMINISTRATIVE SANCTION.

WWW.USLEGAL.COM: Directory statute is an enactment of a legislative body that indicates only

what should be done, with no provision for enforcement.

- The provisions of a directory statute are a MATTER OF FORM ONLY and they do not affect
any substantial right, and do not relate to the essence of the thing to be done
- The compliance is a MATTER OF CONVENIENCE RATHER THAN SUBSTANCE
- Strict fulfillment is not necessary to the validity of the proceeding
- However, the duty is still to be complied as nearly as practicable

Why is it important to distinguish between directory and mandatory statutes?

- To determine the effect to be given to the mandate of the statute

- Effect of non-performance therein:
§ Mandatory à void
§ Directory à will not impair the proceeding therein taken

Ex. of Directory Statutes: Memorandum Circular, Memorandum Orders

How to know whether the statute is mandatory or directory?

Ø No absolute rule
Ø As an aid to its determination: Ascertain the legislative effect or consequences

Language Used
Mandatory Directory
a. Command (imperative): Permissive: MAY
SHALL, MUST, OUGHT
(not always imperative,
may be consistent with
discretion) and SHOULD
b. Prohibition: CANNOT,
SHALL NOT, OUGHT NOT

9
At what instances can “may” be read as “shall”?

- When such construction is NECESSARY TO GIVE EFFECT TO THE APPARENT INTENTION

OF THE LEGISLATURE
- Statute provides for doing of some act REQUIRED BY JUSTICE OR PUBLICE DUTY
- Where it vests a public body or officer with power to take action concerning PUBLIC
INTEREST OR RIGHTS OF INDIVIDUALS

Statutes prescribing guidance for officers.

- What: Statutory requisitions intended for guidance of officers in the conduct of business
devolved upon them
- Generally, in the form of REGULATIONS
- Effect of disregard of the requisitions:

§ Do not limit their power

§ Do not render the action in exercise of their power as ineffective
§ Rights of parties interested MAY not be injuriously affected

- Generally, for what purpose?

§ Secure order, system, and dispatch in proceedings

- Generally classified as directory UNLESS:

§ Accompanied by negative words importing that the acts required SHALL NOT BE
DONE in any other manner or time than that designated

When regulations guiding officers become MANDATORY:

When the requisitions prescribed are intended for the PROTECTION OF THE CITIZEN, and TO
PREVENT A SACRIFICE OF HIS PROPERTY, and by a disregard of which his rights might be and
generally would be injuriously affected, they are not directory but mandatory. They must be
followed or the acts done will be invalid.

- Case: Lyon vs. Alley, 130 U.S. 177 (1889)

Statutes prescribing a manner of judicial action.

- What: Statutes prescribing the requirements as to the manner of judicial actions that
JUDGES should follow in the discharge of their functions, as a rule, directory.
Generally Exception
Right of parties should not be There is a specific language to the
seriously affected by the failure of court or contrary

10
 some officer to comply strictly with the
statutory requirements of court action
Non-observance of procedure Intention of the legislature is
should not be permitted to affect clearly expressed
substantive right

*Procedure is secondary in importance to substantive right

*The validity of the decision shall not be affected unless, the legislature intended that strict
compliance therewith should be essential to the validity of a decision.

- Cases:

o Ocampo vs. Cabangis, 15 Phil. 626 (1910)

o Fuentes vs. Director of Prisons, 46 Phil. 22 (1924)

Statutes requiring rendition of decision within prescribed period.

The Constitution provides that the maximum period within which a case should or matter shall
be decided or resolved from the date of its submission, shall be:

- Twenty-four (24) months for the SUPREME COURTa

- Twelve (12) months for LOWER COLLEGIATE COURTSa
- Three (3) months for OTHER LOWER COURTSa
- Within sixty (60) days for the CONSTITUTIONAL COMMISSIONb

a. Sec. 15(1), Art 8, 1987 Constitution

b. Sec. 7, Art 9(A), 1987 Constitution

- Before the Constitution took effect, the prevailing rule is “that legal provisions prescribing
the period within which a decision should be rendered are directory, not mandatory in
nature – in the sense that a judgment promulgated after the expiration of said period is
not null and void, although the officer who failed to comply with the law may be dealt with
administratively in consequences of his delay – unless the intention to the contrary is
manifest”
- 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
time is of the essence of the things 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 question as to whether time provision is mandatory, or directory is one of legislative
intent.

11
 - If by the terms of the statute or by necessary implication the judge or public official loses
jurisdiction to resolve the case after the prescribed period and any judgment thus rendered
is null and void for want of jurisdiction, then the statute is mandatory.
- 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 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
- The difference between a mandatory and a directory provision is often made on grounds
of expediency, the reasons being that less injury results to the general public by
disregarding than enforcing the letter 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
- Cases:

o Phil. Assoc of Free Labor Unions v Secretary of Labor GR 22228

o Tanseco v Arteche 57 Phil.227, 27 SCRA 40
o Portillo v Salvanti over-rules in Querubin v CA
o Marcelino v Cruz GR 42428, Romualdez-Marcos v COMELEC

- The speedy trial required by the law would be turned into a denial of justice. Conformably
with the forgoing principle, it has been held that the failure of judges to comply with the
injunction that they decide cases within the prescribed period from submission merely
deprives them of their right to collect their salaries or to apply for leaves, but does not
deprive them of the jurisdiction to act on the cases pending before them.
- 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

Constitutional time provision directory.

- To hold that non-compliance by the courts with the aforesaid provision would result in
loss of jurisdiction, would make the courts, through which conflicts are resolved, the very
instruments to foster unresolved causes by reason merely of having failed to render a
decision within the allowed term. Such an absurd situation could not have been intended
by the framers of our fundamental law
- Administrative consequence: certification to the effect is required before judges are
allowed to draw their salaries
- Cases:

o Dimson v Elepano, 99 Phil. 733 (1956)

o Tatad v Sandiganbayan. 159 SCRA 70 (1988) CASE DIGESTS:

12
APPLICATION of Chapter VIII : Mandatory and Directory Statutes in Assigned Cases :
*case digest created by
1. IN RE APPLICATION OF MARIO GUARIÑA FOR ADMISSION TO THE BAR, G.R. No. L-1179,
January 8, 1913 *Sibug
2. ACOSTA v. ADAZA, G.R. No. 168617, February 19, 2007 *Babailan
3. PHILIPPINE REGISTERED ELECTRICAL PRACTITIONERS, INC. v. JULIO FRANCIA, JR., G.R. No.
87134, January 20, 2000 *Sibug
4. GAUDENCIO GUERRERO v. REGIONAL TRIAL COURT OF ILOCOS NORTE, G.R. No. 109068,
January 10, 1994 *Babailan
5. LUIS K. LOKIN, JR. v. COMELEC, G.R. Nos. 179431-32, June 22, 2010 *Ramirez
6. BOARDWALK BUSINESS VENTURES, INC. v. ELVIRA A. VILLAREAL, G.R. No. 181182, April 10,
2013 *Mane
7. FLORANTE S. QUIZON v. COMELEC, G.R. No. 177927, February 15, 2008 *Ramirez
8. QUERUBIN v. COURT OF APPEALS, 82 PHIL 226 (1948) *Mane
9. VALDEZ v. TUAZON, 40 PHIL 943 (1920) *Reyes
10. GONZALES v. COURT OF APPELAS, G.R. 14532, 26 May 1965 *Tamayo
11. AGUILA v. GENATO, GR No. 551551, March 17, 1981*Reyes
12. MARCELINO v. CRUZ, GR No. 42428, March 18, 1983 *Tamayo

In re application of MARIO GUARIÑA for admission to the bar [G.R. No. 1179. January 8, 1913.]

Facts: Applicant in this case seeks admission to the bar, without taking the prescribed
examination, on the ground that he holds the office of provincial fiscal for the Province of Batanes.
This is based in Sec 2 of Act No. 1597 which provides that members of the of the bar of the
Philippines islands are persons prior to the passage of the act under the authority of the United
States have held position of justice of the Supreme Court, judge of the Court of First Instance, or
judge or associate judge of the Court of Land Registration,… provincial fiscal may be licensed to
practice law in the courts of the Philippine Islands without an examination, upon motion before
the Supreme Court and establishing such fact to the satisfaction of said court.'"
Issue: Whether the word “may” in the phrase,” may be licensed to practice law in the courts of the
Philippine Islands without an examination “should be given a mandatory rather than a directory
interpretation? Whether or not Mario Guariña can be admitted to the Philippine Bar without taking
the prescribed examination based on the Act No. 1597.
Whether the word "may" in a statute is to be construed as mandatory (imposing a duty) or
directory (merely as permissive and conferring discretion), is to be determined in each case from
the apparent intention of the statute as gathered from the context, as well as from the language
of the particular provision. The question in each case is whether, taken as a whole and viewed in
the light of surrounding circumstances, it can be said that a purpose existed on the part of the
legislator to enact a law mandatory in its character. If it can, then it should be given a mandatory
effect; if not, then it should be given its ordinary permissive effect.

Word "may" should be read "shall" where

1. such construction is necessary to give effect to the apparent intention of the legislator.
2. whenever the public interest or individual rights call for its exercise, the language used,
though permissive in form, is in fact peremptory.

13
 3. the power is given not for the benefit of the public officer but for that third persons
(mandatory statutes conferring power)
4. given as a remedy to those entitled to invoke its aid, and who would otherwise be
remediless
5. intent of the Legislature, which is the test, was not to devolve a mere discretion, but to
impose a positive and absolute duty
Application to this case:
Applying these canons of construction to the statute under consideration, mandatory effect which
applicant claims should be placed upon the statute based on the context and the language of the
whole statute. Thus, the petitioner Mario Guariña should be admitted to the bar.
However, prior to passage of this Act the power and jurisdiction of this court in relation to the
admission of candidates to the bar of the Philippine Islands had been fixed by the provisions of
the Organic Act (No. 136) and the Code of Civil Procedure (Act No. 190). The Philippine Organic
Act vested the Supreme Court of the Philippines the authority and with the duty to pass upon the
"moral character" and the "qualifications and ability" of all candidates for admission to the bar.
Meanwhile, in the Code of Civil Procedure persons who may practice as lawyers are limited to :
1. Those who have been duly licensed under the laws and orders of the Islands under the
sovereignty of Spain or of the United States and are in good and regular standing as members of
the bar of the Philippine Islands at the time of the adoption of this Code;
2. Those who are hereafter licensed after passing the bar examinations.
There is a conflict between an Act of the Commission, which permits persons such as the
petitioner to be a member of the judicial bar without taking and passing the required examination
due to his previous position(provincial fiscal) and the Act of the Congress which confers upon the
courts the power and jurisdiction to deny admission to the bar unless the candidates had been
licensed under the laws of the Philippine Islands under the sovereignty of Spain or of the United
States or passed the required examination. With regards to conflict between the Act of Congress
and an Act of the Commission, the Act of Congress governs and any act which is repugnant to it,
prescribing or limiting its authority is void and invalid.
The Act of Congress is higher than the Act of the Commission because the Act of Congress was
the creator of the Commission and the one who conferred power on the Philippine
Government/commission. The Act of the US Congress that created the Philippine Bill constitute
not only a rule of action to the various branches of the Government, but it is from them that the
very existence of the power of the/right to govern by our Government flows.
The Act of Congress places the power to admit or deny admission to the Bar to the court, beyond
the power of the local Legislature. That the Commission, while it was undoubtedly authorized to
modify the provision requiring the holding of examinations under general rules had no authority
to deprive this court of its power to deny admission to any candidate who fails to satisfy it that
he possesses the necessary qualifications for admission to the bar of the Philippine Islands.
Statutory Rules: It is the duty of the courts in construing a statute enacted by the Philippine
Commission, not to give it a construction which would be repugnant to an Act of Congress, if the
language of the statute is fairly susceptible of another construction not in conflict with the higher
law; and in doing so, contentions touching the apparent intention of the legislator will be
disregarded which would lead to the conclusion that the Commission intended to enact a law in
violation of an Act Congress.

14
If there is doubt or uncertainty as to the meaning of the legislator, if the words of provisions of
the statute are obscure, or if the enactment is fairly susceptible of two or more constructions,
that interpretation will be adopted which will avoid the effect of unconstitutionality, even though
it may be necessary, for this purpose, to disregard the more usual or apparent import of the
language employed. (Black on Interpretation of Laws, p. 93.)
To construe the word “may” as mandatory would be in direct conflict with the Act of Congress,
thus the court concludes that at it should be given its permissive and not its mandatory effect,
and that the true intention of the legislator was to leave it within the discretion of the court to
admit to the bar without examination the officials mentioned in the Act in any case wherein the
court is otherwise satisfied that they possess the necessary qualifications.
In previous cases where applications for admission to the bar under considered, the court
admitted the such appointments to judicial positions had been made as satisfactory evidence of
the qualifications of the applicant and that the applicants had been practicing attorneys prior to
the date of their appointment.
The applicant in this case was not and never had been a practicing attorney prior to the date of
his appointment as provincial fiscal and that he took the bar exams but failed it. Thus, he should
be barred from joining the Bar.
In view, however, of the fact that when he took the examination he fell only four points short of
the necessary grade (75) to entitle him to a license to practice; he has held the office of governor
of the Province of Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with the consent and approval
of the Philippine Commission, sought to retain him in the Government service by appointing him
to the office of provincial fiscal, the court determined that it would be justified under the above-
cited provisions of Act No. 1597 in waiving in his case the ordinary examination prescribed by
general rule, provided he offers satisfactory evidence of his proficiency in a special examination
or ordinary .

Acosta vs. Adaza, G.R. No. 168617, February 19, 2007

Issue: Whether the Secretary of Justice can still entertain a petition for review of the resolution
of the prosecutor when the information has been filed in court and the accused has already been
arraigned.
Facts:
-In a Resolution dated 11 July 2002, the DOJ reversed and set aside the August 2001 resolution
of the Office of the City Prosecutor of Iligan City and directed the said office to withdraw the
Information for Estafa against petitioner.
-However, on July 26, 2002, respondent filed a motion for reconsideration of said
resolution of the DOJ arguing that the DOJ should have dismissed outright the petition for review
since Section 7 of DOJ Circular No. 70 mandates that when an accused has already been
arraigned and the aggrieved party files a petition for review before the DOJ, the Secretary of
Justice cannot, and should not take cognizance of the petition, or even give due course thereto,
but instead deny it outright.
-Furthermore, respondent claimed Section 12 thereof mentions arraignment as one of the
grounds for the dismissal of the petition for review before the DOJ.

15
-However, in response to this, the DOJ denied the Motion for Reconsideration opining that under
Section 12, in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not
precluded from entertaining any appeal taken to him even where the accused has already been
arraigned in court. This is due to the permissive language “may” utilized in Section 12 whereby
the Secretary has the discretion to entertain an appealed resolution notwithstanding the fact that
the accused the fact that the accused has been arraigned.
-On the other hand, the Court of Appeals granted respondent’s petition and reversed the
Resolutions of the DOJ. The Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70
which states “if an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been arraigned,” ruled that since
petitioner was arraigned before she filed the petition for review with the DOJ, it was imperative
for the DOJ to dismiss such petition.
-The Court of Appeals stood firm by its decision, and tried to construe Section 7 side by
side with Section 12 of DOJ Circular No. 70 and attempted to reconcile those tow provisions.
-The Court of Appeals states that the permissive word “may” in Section 12 would seem to
imply that the Secretary of Justice has discretion to entertain an appeal notwithstanding the fact
that the accused has been arraigned. This provision should not be treated separately, but should
be read in relation to section 7. The two provisions, taken together, simply meant that when an
accuse was already arraigned when the aggrieved party files a petition for review, The Secretary
of Justice cannot, and should not take cognizance of the petition, or even give due course thereto,
but instead dismiss or deny it outright. The appellate court however, added that the word “may”
in section 12 should be read as “shall” or “must” since such construction is absolutely necessary
to give effect to the apparent intention of the rule as gathered from the context.
-Moreover, the petitioner asserts that the Court of Appeals’ interpretation of the provisions
of DOJ Circular No. 70 violated basic rules in statutory construction. First, the rule that the
provision that appears last in the order of position in the rule or regulation must prevail. Second,
the rule that the contemporaneous construction of a statute or regulation by the officers who
enforce it should be given weight. Third, petitioner lifted a portion from Agpalo’s Statutory
Construction where the word “shall” had been construed as a permissive, and not a mandatory
language.
Held:
-The all-too-familiar rule in statutory construction, in this case, an administrative rule of procedure,
is that when a statute or rule is clear and unambiguous, interpretation need not be resorted to.
Since Section 7 of the subject circular clearly and categorically directs the DOJ to dismiss outright
an appeal or a petition for review filed after arraignment, no resort to interpretation is necessary.
Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition
for review due course and must dismiss the same.
Petitioner’s posture on a supposed exception to the mandatory import of the word “shall” is
misplaced. It is petitioner’s view that the language of Section 12 is permissive and therefore the
mandate in Section 7 has been transformed into a matter within the discretion of the DOJ. After
a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to
the provision in question. In the cited passage, the word “shall” departed from its mandatory
import connotation because it was connected to certain provisions/conditions: “subject to the
availability of funds” and “upon such violation being proved.” No such proviso/condition, however,
can be found in Section 7 of the subject circular. Hence, the word “shall” retains its mandatory

16
PHILIPPINE REGISTERED ELECTRICAL PRACTITIONERS, INC. (PREPI) vs. JULIO FRANCIA, JR., in
his capacity as COMMISSIONER OF PROFESSIONAL REGULATION COMMISSION, [G.R. No.
87134. January 20, 2000.]

Petitioner is an organization composed of professional electrical engineers, associate electrical

engineers, assistant electrical engineers, and master electricians. It is represented in this case by
several of its officers and members. Petitioner assailed the constitutionality of Resolution No. 1,
Series of 1986 issued by the Board of Electrical Engineering (BEE), adopting guidelines for the
implementation of Continuing Professional Education (CPE) Program for Electrical Engineers. It
requires every electrical engineer to earn credit units of CPE before his license could be renewed.
RTC: 2dismissed petitioner's action, on the ground that petitioner failed to establish a clear and
unequivocal violation of the Constitution or statute. It pointed out that all reasonable doubts
should be resolved in favor of the validity of a statute.
Petitioner’s Arguments:
• contends that the questioned board resolution does not provide any criteria for the PRC
or Board to follow in recommending exemptions to the CPE requirement.
• resolution as violative of the equal protection clause since only electrical engineers are
subject to the requirements mentioned therein. Members of other professions are not
similarly required.
• petitioner insists that the authority of the Board is limited to the conduct of ocular
inspections and visitation not the power to formulate policies.
Respondent’s Defense, represented by the Solicitor General
• the Board had the authority to promulgate the questioned resolution pursuant to Section 3,
R.A. No. 184("measures as may be deemed proper for the maintenance of good ethics and
standards in the practice of electrical engineering in the Philippines. . ." ) and Section 6, P.D.
No. 223.( adopt such measures as may be deemed proper for the enhancement of the
profession or occupation and/or the maintenance of high professional, ethical and technical
standards. . ."
For said purposes,
"the members of a Board may personally or through subordinate employees of the Commission
conduct ocular inspection or visit industrial, mechanical, electrical or chemical plants or works,
hospitals, clinics and other engineering works. . .”)
This includes the power to formulate policies and programs as may be necessary to improve the
practice of a profession.

Issue: (a) whether the Board of Electrical Engineers in the light of the provisions of R.A. No. 184,
had the authority to issue the questioned resolution; and (b) whether the resolution itself violates
certain provisions of the present Constitution
Held : The authority of the Board is not limited to the conduct of ocular inspections as they have
the authority to formulate policies and programs. The “may” word in PD 223, particularly the
phrase, “the members of a Board may personally or through subordinate employees of the
Commission conduct ocular inspection” is not mandatory but merely directory. The Board in fact
may even do away with ocular inspections, as can be gleaned from the use of the word "may.

17
Conducting ocular inspections is not just the only way to ensure compliance with laws and rules
relative to the professional practice of electrical engineering
The question of whether or not said resolution suffers from constitutional infirmities is now moot
and academic. As the assailed Resolution is no longer in effect by the approval of EO 266 which
now makes the completion of the CPE as a pre-requisite for the renewal of licenses of registered
professionals a mandatory requirement.
GAUDENCIO GUERRERO v. REGIONAL TRIAL COURT OF ILOCOS NORTE, G.R. No. 109068,
January 10, 1994
Issue: Whether brothers by affinity are considered members of the same family
Facts:
-Gaudencio Guerrero and Pedro Hernando are brothers in law , their respective wives being
sisters. Filed by petitioner as an accion publicana against private respondent, this case assumed
another dimension when it was dismissed by respondent Judge on the ground that the parties
being brother-in-law the complaint should have alleged that earnest efforts were first exerted
towards a compromise.
Held:
-Considering that Art. 151 herein-quoted starts with the negative word "No", the
requirement is mandatory that the complaint or petition, which must be verified, should allege that
earnest efforts towards a compromise have been made but that the same failed, so that "if it is
shown that no such efforts were in fact made, the case must be dismissed."
-As early as two decades ago, we already ruled in Gayon v. Gayon that the enumeration of
"brothers and sisters" as members of the same family does not comprehend "sisters-in-law".

LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST CORRUPTION (CIBAC),
petitioner, vs. COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES, respondents
[G.R. Nos. 179431-32. June 22, 2010.]
FACTS:
Citizens' Battle Against Corruption (CIBAC) was an organized group duly registered under the
party-list system intent to participate in 2007 synchronized national and local elections. CIBAC,
through its president, Emmanuel Villanueva, submitted a list of five nominees, in the certificate of
nomination were: (1) Emmanuel Villanueva; (2) petitioner Luis Lokin, Jr.; (3) Cinchona Cruz-
Gonzales; (4) Sherwin Tugna; and (5) Emil Galang. The nominees' certificates of acceptance were
attached to the certificate of nomination filed by CIBAC. However, CIBAC, still through Villanueva,
filed a certificate of nomination, substitution and amendment of the list of nominees, whereby it
withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one
of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-
Gonzales, and (3) Borje.
Villanueva sent a letter to COMELEC Chairperson Abalos, therewith the signed petitions of more
than 81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin,
Tugna and Galang and the substitution of Borje. The Commission hereby approves the withdrawal
of the nomination of Atty. Luis Lokin, Sherwin Tugna and Emil Galang as second, third and fourth
nominees respectively and the substitution thereby with Atty. Cinchona C. Cruz-Gonzales as
second nominee and Atty. Armi Jane R. Borje as third nominee for the party list CIBAC. The new

18
order of CIBAC's nominees therefore shall be: 1. Emmanuel Villanueva 2. Cinchona Cruz-Gonzales
3. Borje.
As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of
CIBAC. Cruz-Gonzales took her oath of office as a Party-List Representative of CIBAC on
September 17, 2007. Lokin seeks through mandamus to compel respondent COMELEC to
proclaim him as the official second nominee of CIBAC, Lokin assails Section 13 of Resolution No.
7804 promulgated on January 12, 2007 and the resolution dated September 14, 2007 issued in
E.M. No. 07-054 (approving CIBAC's withdrawal of the nominations of Lokin, Tugna and Galang
as CIBAC's second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales
and Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of
Resolution No. 7804). Lokin alleges that Section 13 of Resolution No. 7804 expanded Section 8
of R.A. No. 7941. 18 the law that the COMELEC seeks to thereby implement.
ISSUE:
Whether or not the Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-
List System Act (R.A. 7941).
HELD:
Yes. The Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-List System
Act (R.A. 7941). Administrative agency issuing the IRRs may not enlarge, alter, or restrict the
provisions of the law it administers and enforces, and cannot engraft additional non-contradictory
requirements not contemplated by the Legislature.
Section 8 of R.A. No. 7941 reads:
Section 8. Nomination of Party-List Representatives. — Each registered party, organization or
coalition shall submit to the COMELEC not later that forty five (45) days before the election a list
of names, not less than five (5), from which party-list representatives shall be chosen in case it
obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their consent in
writing may be named in the list. The list shall not include any candidate of any elective office or
a person who has lost his bid for an elective office in the immediately preceding election. No
change of names or alteration of the order of nominees shall be allowed after the same shall have
been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing
his nomination, becomes incapacitated in which case the name of the substitute nominee shall
be placed last in the list. Incumbent sectoral representatives in the House of Representatives who
are nominated in the party-list system shall not be considered resigned.
The provision is daylight clear. The Legislature thereby deprived the party-list organization of the
right to change its nominees or to alter the order of nominees once the list is submitted to the
COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his
nomination; or (c) the nominee becomes incapacitated.
The usage of "No" in Section 8 — "No change of names or alteration of the order of nominees
shall be allowed after the same shall have been submitted to the COMELEC except in cases where
the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in which case
the name of the substitute nominee shall be placed last in the list" — renders Section 8 a negative
law, and is indicative of the legislative intent to make the statute mandatory. Prohibitive or
negative words can rarely, if ever, be directory, for there is but one way to obey the command
"thou shall not," and that is to completely refrain from doing the forbidden act, subject to certain
exceptions stated in the law itself, like in this case.

19
Section 8 does not unduly deprive the party-list organization of its right to choose its nominees,
but merely divests it of the right to change its nominees or to alter the order in the list of its
nominees' names after submission of the list to the COMELEC.
While Section 13 of Resolution No. 7804 states:
Section 13. Substitution of nominees. — A party-list nominee may be substituted only when he
dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as
such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the
substitute nominee shall be placed last in the list of nominees.
No substitution shall be allowed by reason of withdrawal after the polls.
Unlike Section 8 of R.A. No. 7941, Section 13 of Resolution No. 7804 provides four instances, the
fourth being when the "nomination is withdrawn by the party."
In case of conflict between the law and the IRR, the law prevails. There can be no question that
an IRR or any of its parts not adopted pursuant to the law is no law at all and has neither the force
nor the effect of law. The invalid rule, regulation, or part thereof cannot be a valid source of any
right, obligation, or power. Considering that Section 13 of Resolution No. 7804 — to the extent
that it allows the party-list organization to withdraw its nomination already submitted to the
COMELEC — was invalid, CIBAC's withdrawal of its nomination of Lokin and the others and its
substitution of them with new nominees were also invalid and ineffectual. It is clear enough that
any substitution of Lokin and the others could only be for any of the grounds expressly stated in
Section 8 of R.A. No. 7941. Resultantly, the COMELEC's approval of CIBAC's petition of withdrawal
of the nominations and its recognition of CIBAC's substitution, both through its assailed
September 14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the
COMELEC acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution
No. 7804 to support its action.

BOARDWALK BUSINESS VENTURES, INC. v. VILLAREALG.R. No. 181182. April 10, 2013.

BOARDWALK BUSINESS VENTURES, INC., petitioner, vs. ELVIRA A. VILLAREAL (deceased)

substituted by Reynaldo P. Villareal, Jr.- spouse, Shekinah Marie Villareal-Azugue-daughter,
Reynaldo A. Villareal III-son, Shahani A. Villareal-daughter, and Billy Ray A. Villareal-son,
respondents.

FACTS:

• Petitioner Boardwalk Business Ventures, Inc. (Boardwalk) is a duly organized and existing
domestic corporation engaged in the selling of ready-to-wear (RTW) merchandise.
• Respondent Elvira A. Villareal (Villareal), on the other hand, is one of Boardwalk's distributors
of RTW merchandise.
• On October 20, 2005, Boardwalk filed an Amended Complaint for replevin against Villareal
covering a 1995 Toyota Tamaraw FX, for the latter's alleged failure to pay a car loan obtained
from the former. The case, docketed as Civil Case No. 160116, was filed with the Metropolitan
Trial Court (MeTC) of Manila and was assigned to Branch 27 thereof.

20
• MeTC rendered its decision in favor of Boardwalk, ruling that the Boardwalk (plaintiff) has the
right to the possession of the subject motor vehicle. Villareal moved for reconsideration but
failed.
• RTC of Manila, however, ruled in favor of Villareal, following her appeal and reversing the
decision of the MeTC. Boardwalk filed for reconsideration but was denied.
• After which, Boardwalk had filed a Motion for Extension of Time to File a Petition for Review
with the Manila RTC and paid the docket fees.
• On March 7, 2007, Boardwalk then file a Petition for Review through mail with the CA but was
outrightly dismissed indicating in its disposition that the petitioner should have filed the
Motion for Extension with the CA and that the requested period of 30 days extension had
exceeded the reglementary period of 15-day period as provided in Rule 42. Moreover, the
petitioner had submitted a defective Verification and Certification against forum-shopping
due to a missing board resolution authorizing its representative signatory.
• Boardwalk thus, filed an instant Petition following the resolution.
• The petitioner argued that it should not be faulted for the error committed by its counsel's
clerk in wrongly filing the Motion for Extension and paying the docket fees with the RTC Clerk
of Court and indicating that the defective requirements were formal and not jurisdictional and
thus valid.

ISSUE(S):

Whether or not the Court of Appeals erred in dismissing the filed Petition for Review on the
grounds that the requirements of the Court were not jurisdictional.

HOLDING:

No. The petitioner failed to perfect its appeal by not filing the Petition within the reglementary
period and paying the docket and other lawful fees before the proper court. These requirements
are not only mandatory but also jurisdictional, hence failure to perfect the same renders the
judgment final and executory.

"The right to appeal is neither a natural right nor [is it a component] of due process. It is a
mere statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of law

FLORANTE S. QUIZON, petitioner vs. HON. COMMISSION ON ELECTIONS (SECOND DIVISION),

MANILA, ATTY. ARNULFO H. PIOQUINTO (ELECTION OFFICER, ANTIPOLO CITY) and ROBERTO
VILLANUEVA PUNO, respondents
[G.R. No. 177927. February 15, 2008.]
FACTS:
Petitioner Quizon and private respondent Puno were congressional candidates during the May
14, 2007 national and local elections. On April 17, 2007, Quizon filed a Petition for Disqualification
and Cancellation of Certificate of Candidacy against Puno, former alleged that Puno is not

21
qualified to run as candidate in Antipolo City for failure to meet the residency requirement prior
to the day of election.
On June 5, 2007, Quizon filed Petition for Mandamus alleging that the COMELEC had not rendered
a judgment on the above-mentioned petitions and that the unreasonable delay in rendering
judgment deprived him of his right to be declared as the winner and assume the position of
member of the House of Representatives since all votes cast in favor of respondent are stray due
to his invalid candidacy. Accordingly, COMELEC must consider that only he and Amarante
Velasco were the candidates in the said election and since he received a higher number of votes
than Velasco, petitioner argues that he should be proclaimed the winning candidate.
ISSUE:
Whether or not unreasonable delay in resolving the petition deprived petitioner of his right to be
proclaimed as the winning candidate.
HELD:
No. According to Section 78 of the Omnibus Election Code provides that petitions to deny due
course or cancel a certificate of candidacy should be resolved, after due notice and hearing, not
later than fifteen days before the election. In construing this provision together with Section 6 of
R.A. No. 6646 or The Electoral Reforms Law of 1987, this Court declared in Salcedo II v. COMELEC
that the fifteen-day period in Section 78 is merely directory. Thus:
If the petition is filed within the statutory period and the candidate is subsequently declared by
final judgment to be disqualified before the election, he shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or the Comelec shall continue with the trial and hearing of the action, inquiry,
or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong. The fifteen-day period in section 78 for deciding the petition is merely directory.
(Emphasis supplied)
It has long been settled in Codilla Sr. v. de Venecia that pursuant to Section 6 of R.A. No. 6646, a
final judgment before the election is required for the votes of a disqualified candidate to be
considered "stray." In the absence of any final judgment of disqualification against Puno, the
votes cast in his favor cannot be considered stray.
As to the alleged irregularity in the filing of the certificate of candidacy, it is important to note that
this Court has repeatedly held that provisions of the election law regarding certificates of
candidacy, such as signing and swearing on the same, as well as the information required to be
stated therein, are considered mandatory prior to the elections. Thereafter, they are regarded as
merely directory to give effect to the will of the people. In the instant case, Puno won by an
overwhelming number of votes. Technicalities should not be permitted to defeat the intention of
the voter, especially so if that intention is discoverable from the ballot itself, as in this case.
Moreover, following Ocampo v. House of Representatives Electoral Tribunal, a subsequent
disqualification of Puno will not entitle petitioner, the candidate who received the second highest
number of votes to be declared the winner. It has long been settled in our jurisprudence, as early
as 1912, that the candidate who lost in an election cannot be proclaimed the winner in the event
that the candidate who won is found to be ineligible for the office for which he was elected. The
second placer is just that, a second placer — he lost in the elections and was repudiated by either
the majority or plurality of voters.

22
QUERUBIN v. COURT OF APPEALS G.R. No. L-2581, Dec. 2 1948

FIDEL C. QUERUBIN, petitioner, vs. THE COURT OF APPEALS (Fourth Division) and FELIPE S.
MAMURI, respondents.

FACTS:

Petitioner challenges the jurisdiction of the Court of Appeals to continue taking cognizance of the
appeal in the election case of Fidel C. Querubin vs. Felipe S. Mamuri, CA — 2843-R, concerning
the mayoralty of Ilagan, Isabela, because of the expiration of the three- month period provided for
in section 178 of the Revised Election Code.

On May 22, 1948, the record of the appealed case was received by the Court of Appeals.

On August 23, 1948, petitioner led a motion to dismiss the appeal on the ground that the three-
month period provided for by section 178 of the Revised Election Code expired on August 22,
1948, and that, consequently, the Court of Appeals had lost its jurisdiction over the case, invoking
to the effect the doctrine in Portillo vs. Salvani (54 Phil., 543) holding mandatory a former legal
provision that "all proceedings in electoral contest shall be terminated within one year."

ISSUE(S): Whether or not the election contest or appeal should be dismissed on the ground of
loss of jurisdiction of the court due to the expiration of the prescribed three-month period in the
Revised Electoral Code.

HOLDING:

No. The legislative policy, as embodied in sections 177 and 178 of the Revised Election Code, of
hastening the administration of justice in election contests, is aimed at making more effective
the constitutional principle that sovereignty resides in the people. The lapse of the period of time
provided for in said sections should not have the effect of defeating the purposes of the system
of judicial settlement of protests. As such, the petition is dismissed.

The doctrine in the case of Portillo vs. Salvani (54 Phil., 543) should be abandoned, even
as modified in the case of Cacho vs. Abad (61 Phil., 606), where it was stated that the Supreme
Court "has assumed jurisdiction over a considerable number of election cases which arrived here
after the expiration of the year period without any protest being made against this practice."

VICENTE GARCIA VALDEZ, plaintiff-appellant, vs. MARIA SOTERAÑA TUASON, defendant-

appellee.
[G.R. No. 14957. March 16, 1920]
FACTS:
Vicente Garcia Valdez filed a petition for divorce on April 2, 1918, in the Court of First Instance of
the city of Manila against his wife, Maria Soteraña Tuason. Upon hearing the cause the trial judge
found that the charge of adultery was not sustained by the evidence; and he refused grant relief.
The complaint was accordingly dismissed at the petitioner's costs. From this judgment the
petitioner appealed.

23
On March 11, 1917, Act No. 2710 of the Philippine Legislature, relating to the subject of divorce,
became effective in the Philippine Islands. This enactment introduced the radical innovation of
causing the divorce to operate, after the expiration of one year from the date of the decree, as a
dissolution of the bonds of matrimony. Another feature of the same Act pertinent to the present
controversy is a provision to the effect that a petition for divorce can only be filed for adultery on
the part of the wife or concubinage on the part of the husband and cannot be granted except upon
conviction of the guilty part in a criminal prosecution (secs. 1, 8).
With this, the petitioner insisted that supposing the fact of adultery on the part of the respondent
to be proved, he is entitled to a divorce of the character recognized by the law prevailing in these
Islands prior to the passage of Act No. 2710, that is to say, a divorce a mensa et thoro, or decree
of judicial separation, entailing as one of its consequences the dissolution of the ganancial
partnership and liquidation of the community assets. In other words it is supposed that the
absolute divorce conceded under certain conditions by Act No. 2710 is an additional remedy, and
not exclusive of the remedy of the limited divorce formerly allowed.
ISSUE:
Whether or not whether the new statute (No. 2710) is in fundamental and irreconcilable
conflict with the prior state of the law on the subject of divorce
HELD:
No court would in the present state of the law permit a decree of divorce to be entered contrary
to the precepts of section 8 of the Act cited. Human society has an interest in the integrity of the
marital state, and it is the duty of the courts to apply the proper legal provisions in such matters
whether the litigants see fit to invoke them or not.
The law of divorce as it formerly existed in this jurisdiction was summed up in a few words by
Justice Willard, speaking for this Court in Benedicto vs. De la Rama (3 Phil. Rep., 34, 45), as
follows:
(1) That Courts of First Instance have jurisdiction to entertain a suit for divorce; (2) that the only
ground therefor is adultery; (3) that an action on that ground can be maintained by the husband;
and (4) that the decree does not dissolve the marriage bond.
Comparing the propositions thus stated with the provisions of Act No. 2710, it is quite manifest
that the divorce consisting of judicial separation without the dissolution of the bonds of
matrimony, which was formerly granted for the adultery of either of the spouses, has been
abrogated and in its place has been substituted the absolute divorce ex vinculis matrimonii,
obtainable only under the conditions stated in said Act.
It is a well-known rule of law that repeals by implication are not favored. Nevertheless when there
is a plain, unavoidable, and irreconcilable repugnancy between two laws the later expression of
the Legislative will must be give effect. It is axiomatic in the science of jurisprudence that two
inconsistent statutes cannot co-exist in one jurisdiction with reference to the same subject-
matter.
The most powerful implication of repeal noted by legal commentators is that which arises when
the later of two laws is expressed in the form of a universal negative. The repugnance of two
statutes is more readily seen when the later Act is in the form of a negative proposition than when
both laws are stated in the affirmative.
There is a clear distinction between affirmative and negative statutes in regard to their repealing
effects upon prior legislation, which may be expressed by saying that while an affirmative statute
does no impliedly repeal the prior law unless an intention to effect the repeal is manifest, a

24
negative statute repeals all conflicting provisions unless the contrary intention is disclosed. In
State vs. Commissioners of Washoe County (22 Nev., 203, 210), the court said:
One affirmative statute will not repeal another, unless there is an absolute conflict between them,
or it can be ascertained in some manner that a repeal was intended. But where the later act is
expressed in negative terms, the principle is different. Negative statutes are mandatory, and must
be presumed to have been intended as a repeal of all conflicting provisions, unless the contrary
can be clearly seen.
A critical examination of the wording of the entire Act; it is expressed throughout in general terms
without the slightest indication of an intention to preserve any provision of the former law. The
word "divorce" particularly is used without qualification, in conformity with the usage of civilian
authors. Therefore, when this Act declares that a divorce is procurable only under such and such
conditions, this means that no divorce of any sort is procurable under other conditions. Upon
scanning its provisions we at once discover that every section defining the conditions under
which a divorce may be granted is expressed either in the form of a negative proposition or in the
form of an affirmative proposition qualified by the word "only," which has all the force of an
exclusionary negation.
The Act referred to does not contain a clause repealing in general terms all laws and parts of laws
in conflict therewith, such as it sometimes found at the end of Legislative enactments. The
question is therefore strictly one of repeal by implication, and as such we have considered it.

[G.R. No. L-14532. May 26, 1965.] JOSE LEON GONZALES, petitioner-appellant, vs . THE HON.
COURT OF
TAX APPEALS and THE COLLECTOR OF INTERNAL REVENUE ,
respondents-appellees.

Lesson: Mandatory statutes are not subject to qualifications.

Facts:
• Jose Leon Gonzales was one of the heirs of a realty which was held through a court
proceeding as subject to expropriation. The court accordingly fixed a just compensation
for the said property.
• As to the effect of the compensation paid to each heirs for the expropriated property,
Jose Leon Gonzales correspondingly, prepared and filed a tentative return describing an
amount of 213,328.82 as capital gain, and in addition, an amount of 89,309.61 as ordinary
income.
• On the basis of such income, the petitioner was assessed P86, 166.00.
• The Government paid to petitioners the proceeds of the expropriation award and interest
through the People's Homesite and Housing Corporation sometime in October 1954, the
last check having been delivered on November 4, 1954. However, the sum of P532, 234.70
was retained by the Housing Corporation; and on November 18, 1954, at the request of
respondent Collector, it turned over to the Bureau of Internal Revenue the amount of P516,
007.00 representing income taxes reportedly due and owing from the six co-heirs of the
estate.

25
 • On November 5, 1956, the petitioner contented that the assessment was erroneous and
sought a refund for the alleged excess payment of income taxes.
• On November 12, 1956, the respondent Collector denied the request.
• Filing of Suit: On November 15, 1956, Jose Leon Gonzales and Juana F. Gonzales
submitted to the Court of Tax Appeals a joint petition seeking a refund for the entire
amount of 86166; but the next day, both petitioners amended their petition by filing
separate petitions which were docketed separately as CTA Case No. 328 and CTA Case
No. 329.
• So on November 24,1956,a letter wrote by the counsel of the petitioner was addressed to
the Collector claiming not only the refund of the excess but the entire amount of 86166.00
for various reason specifically contained in their petition filed before CTA, Case No.328.
• On July 16, 1958, a decision was rendered by the Court of Tax Appeals denying petitioners'
claim for refund, with costs against them. Their motions for reconsideration and new trial
having been denied, petitioners perfected this appeal and now pray for reversal.

Issue:
a. Can the claim for refund of 86,166.00 be entertained?
b. Whether or not the provision applied in the instant case directory in character and hence,
the consideration as to its effect should be dependent to other conditions present in the
case.

Rationale.
a. “With respect, therefore, to the issue of whether or not appellants' claim for refund of
P86,166.00 (each) could now be entertained, we believe that the same has been barred by
prescription.”

b. A stringent requirement of the Tax Code is that before a suit or proceeding for the refund
of any internal revenue tax can be maintained in any court, a written claim for its refund
shall be filed with the Collector of Internal Revenue before filing the action in court and
before the expiration of two years from the date of payment of the taxes to be refunded.
This requirement is mandatory and failure to comply therewith is fatal to the action. What
is more, the claim for refund should set forth in detail the facts and the grounds upon
which it is based, so as to apprise the Collector accordingly.

The claim for refund was made only on November 24, 1856, (after the complaints had already
been filed), without giving the Collector "an opportunity to consider his mistake, if mistake has
been committed."(Kiener Co. vs. David, 92 Phil. 945). Indeed, the two year period has already
prescribed considering the reckoning date is at the date of payment of the taxes to be refunded
which was November 18,1954. The demand for refund must precede the suit, and this
requirement is mandatory; so much so that non-compliance therewith bars the action.

26
Despite the contention of the appellants that the date of the payment of taxes which was on
November 18, 1954 should not have been held as the reckoning date for the prescriptive period,
considering that it was not they who had paid the tax of P86,166.00 imposed upon each of them,
but that it was respondent Collector himself who paid those taxes and issued receipts thereof
without their knowledge and consent, it was decided by the Court that the provisions of section
306 of the Tax Code are mandatory and not subject to any qualification and, hence, they apply
regardless of the conditions under which the payment has been made.

DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and
WILFREDO CABARDO, petitioners, vs. HON. MELECIO A. GENATO and DOMINADOR B. BORJE,
respondents.
[G.R. No. L-55151. March 17, 1981]
FACTS:
Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for
Cooperative Development, respectively, of the National Electrification Administration (NEA) while
private respondent Dominador B. Borje, representing the North District of Ozamiz City, was
elected Director of MOELCI II, to hold office as such for three years starting March 25, 1979.
On 4 January 1980, private respondent filed his certificate of candidacy for the position of
member of the Sangguniang Panglunsod of Ozamiz City in the 30 January 1980 local elections.
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18
to the effect that all officials and employees of electric cooperatives who run for public office,
win and assume office, shall be considered. On January 1980, the NEA Deputy Administrator sent
a telegram to the Acting General Manager of MOELCI II stating that should private respondent
Borje be elected to the Sangguniang Bayan, he shall be considered resigned from his position as
Director for the North District of Ozamiz City, Private respondent moved reconsideration and
requested that he be allowed to serve the unexpired term of his office in accordance with PD No.
269. Reconsideration was denied by NEA on 7 February 1980.
On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction
of Legal Provisions with Preliminary Injunction and Damages" against petitioners before the Court
of First Instance of Misamis Occidental, Branch II (Spec. Case No. 0511), seeking a declaration
of entitlement to remain and to serve his unexpired term as Director of MOELCI II until March,
1982. On 3 March 1980, having won the election, private respondent assumed office and began
discharging his functions, on the same date, respondent Judge issued, ex-parte, a temporary
restraining Order commanding petitioners considering private respondent as resigned, and,
instead, to snow him to retain his position as member of the Board of Directors of MOELCI II
pending hearing.
Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of
action. On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, only to
restore it the next day, 25 March 1980. In their Motion seeking reconsideration of the Order of 25
March 1980, petitioners stressed that NEA possessed the power and authority to promulgate
Memorandum No 18, and that, similarly, the Board of Directors of MOELCI II had the power to
implement the same under PD No. 269, as amended by PD 1645.
On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated
25 March 1980, and dissolved the Restraining Order. On 10 May 1980, the Board of Directors of
MOELCI II held a special meeting and passed Resolution No. 121, S-80, implementing NEA

27
Circular No. 18 and declaring private respondent's position as member of the Board of Directors
of MOELCI II vacant.
On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the
vacation Judge, dated 8 May 1980, in effect reviving the Restraining Order, on the ground that, as
"councilor" of Ozamiz City, section 21 of PD No. 269 itself exempts private respondent from the
prohibition imposed on elective officials to become Directors of electric cooperatives.
ISSUE:
Whether or not respondent Judge committed grave abuse of discretion in issuing a
Restraining Order, which had the effect of allowing private respondent, Dominador B. Borje, to
retain his position as member of the Board of Directors of the Misamis Occidental Electric
Cooperative, Inc ., (MOELCI II).
HELD:
YES. Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the various
Restraining Orders, the last of which was dated 6 June 1980. Private respondent has shown no
clear and explicit right to the position of Director of MOELCI II and is, therefore, not entitled to a
Restraining Order, which partook of the nature of a mandatory injunction, commanding as it did
that private respondent be retained in his position as such Director. By having been elected
member of the Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself
ineligible to continue serving as a Director of MOELCI II by virtue of the clear mandate of PD No.
269 providing that except for "barrio captains and councilors", elective officials are ineligible to
become officers and/or directors of any cooperative. It is clear to us that the term barrio modifies
both captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can
remain a member of the Board if he "holds an elective office above the level of barrio captain.
Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a
cooperatives from continuing in their position prior to their election, and that pursuant to section
24 of PD No. 269 he is entitled, as Director, to hold office for the term for which he is erected and
until his successor is elected and qualified," is untenable. Eligibility to an office should be
construed as of a continuing nature and must exist at the commencement of the term and during
occupancy of the office. The fact that private respondent may have been qualified at the time he
assumed the Directorship is not sufficient to entitle him to continue holding office, if during the
continuance of his incumbency he ceases to be qualified. Private respondent was qualified to
become a director of MOELCI II at the time of the commencement of his term, but his election as
member of the Sangguniang Panglunsod of Ozamiz City, and his subsequent assumption of
office, disqualified him to continue as such.

[G.R. No. L-42428. March 18, 1983.]

BERNARDINO MARCELINO, petitioner, vs. THE HON. FERNANDO CRUZ, JR., as Presiding Judge
of Branch XII of the Court of First Instance of Rizal, PEOPLE OF THE PHILIPPINES, and THE
PROVINCIAL WARDEN OF THE PROVINCIAL JAIL OF RIZAL, respondents.

Facts: Petitioner was charged with the crime of rape. Trial was conducted and the same was
concluded when the accused rested his case on August 4, 1975. On the same date however, the
attorneys for both parties moved for time within which to submit their respective memoranda.
The trial court granted the motion and both parties were given thirty [30] days to submit their
respective memoranda. Counsel for petitioner submitted his memorandum in due time, but no
memorandum was filed by the people. Accordingly, on September 4, 1975, the case was

28
deemed submitted for decision of the Court. On November 28, 1975, eighty-five [85] days from
September 4, 1975, respondent judge filed with the Deputy Clerk of Court his decision in said
case for promulgation. The decision was also dated November 28, 1975. On January 26, 1976,
the decision was set for promulgation. Petitioner espouses that the three month period
prescribed by Section II of Article X of the 1973 Constitution period within which a decision
should be rendered is mandatory in character and that non-observance thereof results in the
loss of jurisdiction of the court over the unresolved case.

Issues:

a) Should the promulgation of judgment be considered as the reckoning date in taking into
account the three-month period within which a decision should be rendered?
b) Is the constitutional provision in question mandatory in character?
c) What is the effect of the non-compliance of the provision in question?

Rationale:

a) The date of the rendition of judgment should serve as the reckoning date and not the
date of promulgation because the latter necessarily comes at a later date, considering
that notices have to be sent to the accused as well as to the other parties involved, an
event which is beyond the control of the judge. Accordingly, it was held in this case that
the 90 day-period was not exceeded.
b) Section II, Article X of the 1973 Constitution, being procedural, is merely directory in
character. The established rule on statutory construction is that constitutional
provisions are to be construed as mandatory unless an express provision or a necessary
implication manifesting a different intention. The phraseology of the provision in
question indicates that it falls within the exception rather than the general rule. By the
phrase "unless reduced by the Supreme Court," it is evident that the period prescribed
therein is subject to modification by this Court in accordance with its prerogative under
Section 5(5) of Article X of the New Constitution to promulgate rules concerning
pleading, practice and procedure in all courts. . . ." And there can be no doubt that said
provision, having been incorporated for reasons of expediency, relates merely to matters
of procedure.
c) The court assumed a liberal stand and held that the decision rendered by the respondent
judge is not void for loss of jurisdiction. The reason is that a departure from said
provision would result in less injury to the general public than would its strict application.
To hold that noncompliance by the courts with the aforesaid provision would result in
loss of jurisdiction, would make the courts, through which conflicts are resolved, the very
instruments to foster unresolved causes by reason merely of having failed to render a
decision within the allotted term. Such an absurd situation could not have been intended
by the framers of our fundamental law.

29
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