Statutory Construction

X. Mandatory or Directory
XI. Prospective or Retroactive

a. Mandatory v Directory provisions

i. Bermudez v. Executive Secretary
(G.R. No. 131429, August 4, 1999)
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and
CLAUDIO L. DAYAON, petitioners, vs. EXECUTIVE
SECRETARY RUBEN TORRES, BUDGET SECRETARY
SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY
TEOFISTO GUINGONA, JR., and ATTY. CONRADO
QUIAOIT, respondents.
FACTS:
The occurrence of a vacancy in the Office of the Provincial
Prosecutor of Tarlac impelled the main contestants in this
case. Petitioner Oscar Bermudez, the First Assistant
Provincial Prosecutor of Tarlac and Officer-in-Charge of the
Office of Provincial Prosecutor, was a recommendee of
then Sec. of Justice Guingona for the position of Provincial
Prosecutor. On the other hand, private respondent Atty.
Conrado Quiaoit had the support of then Representative
Yap of the Second District of Tarlac. Thereafter, Quiaoit
was appointed by Pres. Ramos to the office, took his oath
and assumed office. Bermudez refused to vacate the
Office of the Provincial Prosecutor. Nonetheless, Quiaoit,
performed the duties and functions of the subject position.
Petitioner Bermudez challenged the appointment of
Quiaoit primarily on the ground that the appointment
lacks the recommendation of the Sec. Of Justice
prescribed under the Revised Administrative Code of
1987. Section 9, Chap. II, Title III, Book IV of the Revised
Administrative Code provides that all provincial and city
prosecutors and their assistants shall be appointed by the
Pres. upon the recommendation of the Secretary.
ISSUE:
Whether or not the absence of a recommendation of the
Secretary of Justice to the President can be held fatal to
the appointment of respondent Conrado Quiaoit.
RULING:
No. In the exercise of the power of appointment,
discretion is an integral part thereof.
When the Constitution or the law clothes the President
with the power to appoint a subordinate officer, such
conferment must be understood as necessarily carrying
with it an ample discretion of whom to appoint. It should
be here pertinent to state that the President is the head of
government whose authority includes the power of control
over all executive departments, bureaus and offices.
Control means the authority of an empowered officer to
alter or modify, or even nullify or set aside, what a
subordinate officer has done in the performance of his
duties, as well as to substitute the judgment of the latter,
as and when the former deems it to be appropriate.
Expressed in another way, the President has the power to
assume directly the functions of an executive department,
bureau and office. It can accordingly be inferred therefrom
that the President can interfere in the exercise of
discretion of officials under him or altogether ignore their
recommendations.
It is the considered view of the Court, given the above
disquisition, that the phrase upon recommendation of the
Secretary, found in Section 9, Chapter II, Title III, Book IV,
of the Revised Administrative Code, should be interpreted,
as it is normally so understood, to be a mere advise,
exhortation or indorsement, which is essentially
persuasive in character and not binding or obligatory
upon the party to whom it is made.[22] The
recommendation is here nothing really more than advisory
in nature.[23] The President, being the head of the
Executive Department, could very well disregard or do
away with the action of the departments, bureaus or
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offices even in the exercise of discretionary authority, and

in so opting, he cannot be said as having acted beyond
the scope of his authority.

ii. Marcelino v. Cruz (G.R. No. L-42428, March

18, 1983)
121 SCRA 51 Political Law Constitutional Law
Period to Resolve a Case from Date of Submission
Promulgation
vs
Rendition
of
Judgment

Constitutional Period to Decide not Mandatory

Facts: Bernardino Marcelino was charged for the crime of
rape. On August 4, 1975, the prosecution finished
presenting evidence against Marcelino and rested its case.
On the same date, the attorneys of both parties in the
criminal case moved for time within which to submit their
respective memoranda. The presiding judge, Fernando
Cruz, Jr., gave them 30 days or until September 4, 1975.
Only Marcelino submitted a memoranda.
On November 28, 1975, Judge Cruz filed with the Clerk of
Court a copy of his decision, his decision bears the same
date of November 28, 1975. The promulgation of the
decisions was scheduled in January 1976. Marcelino is
now contending that the court can no longer promulgate
judgment because by January 1976, the 3-month period
(90 day period) within which lower courts must decide on
cases had already lapsed, thus, the lower court lost its
jurisdiction over the case.
ISSUE: Whether or not Judge Cruz had resolved the
case within the allotted period.
HELD: Yes. The case is deemed submitted for decision on
September 4, 1975 (date of last day of filing of the
memoranda by the respective parties). From that day, the
3-month period begins to run so Judge Cruz had until
December 4, 1975 to rule on the case. Judge Cruz made a
rendition of his decision on November 28, 1975. The date
of rendition is the date of filing of the decision with the
clerk of court. Hence, Judge Cruz was able to rule on the
case within the 3-month period because November 28,
1975 was merely the 85th day from September 4, 1975.
The date of promulgation of a decision, in this case it was
set in January 1976, could not serve as the reckoning date
because the same necessarily comes at a later date.
Is the period to decide
Constitution mandatory?

provided

for

by

the

Section 11 (1), Art 10 of the 1987 Constitution provides

that upon the effectivity of this constitution, the
maximum period within which case or matter shall be
decided or resolved from the date of its submission shall
be; 18 months for the Supreme Court, 12 months for the
inferior courts and 3 months for lower courts. In practice,
the Supreme Court is liberal when it comes to this
provision. The provision is mandatory, its merely directive.
Extensions can be granted in meritorious cases. To
interpret such provision as mandatory will only be
detrimental to the justice system. Nevertheless, the SC
warned lower court judges to resolve cases within
the prescribed period and not take this liberal
construction as an excuse to dispose of cases at
later periods.

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X. Mandatory or Directory

Statutory Construction
X. Mandatory or Directory
XI. Prospective or Retroactive
for the Supreme court, and, unless
reduced by the Supreme Court, twelve
months for all inferior collegiate courts,
and three months for all other inferior
courts.

ESCOLIN, J.:
*petition for prohibition and writ of habeas corpus
FACTS:
Petitioner was charged with the crime of rape
before the Court of First Instance
Trial was conducted and the same was concluded
on August 4, 1975, both parties moved for time
within which to submit their respective
memoranda
o
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.
On November 28, 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 the date set for promulgation of the decision,
counsel for accused moved for postponement,
raising for the first time the alleged loss of
jurisdiction of the trial court for failure to decide
the case within 90 days from submission thereof
for decision.
Meanwhile, counsel for the accused filed before
the Supreme Court the present petition.
Petitioner espouses the thesis that the threemonth period prescribed by Section 11[l] of
Article X of the 1973 Constitution, being a
constitutional
directive,
is
mandatory
in
character and that non-observance thereof
results in the loss of jurisdiction of the court over
the unresolved case.
ISSUE:
W/N the trial court maintained jurisdiction over
the case?
RULING:
Supreme Court - the petition is hereby dismissed
on November 28, 1975, or eighty- five [851 days
from September 4, 1975 the date the case was
deemed submitted for decision, respondent
judge filed with the deputy clerk of court the
decision in Criminal Case No. 5910. He had thus
veritably rendered his decision on said case
within the three-month period prescribed by the
Constitution
the rendition of the judgment in trial courts refers
to the filing of the signed decision with the clerk
of court. There is no doubt that the constitutional
provision cited by petitioner refers to the
rendition of judgment and not to the
promulgation thereof. Thus, it is this date that
should be considered in determining whether or
not respondent judge had resolved the case
within the allotted period. Indeed, the date of
promulgation of a decision could not serve as the
reckoning date because the same necessarily
comes at 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.

Section 11 [1], Article X of the New Constitution

o
SEC. 11 [1]. Upon the effectivity of this
Constitution, the maximum period
within which a case or matter shall be
decided or resolved from the date of its
submission, shall be eighteen months

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The established rule is that "constitutional

provisions are to be construed as mandatory,
unless by express provision or by necessary
implication, a different intention is manifest."

"The difference between a mandatory and a

directory provision is often determined on
grounds of expediency, the reason being that
less injury results to the general public by
disregarding than by enforcing the letter of the
law."

"the statutory provisions which may be thus

departed from with impunity, without affecting
the validity of statutory proceedings, are usually
those which relate to the mode or time of doing
that which is essential to effect the aim and
purpose of the Legislature or some incident of
the essential act. "

Statutes
requiring
the
rendition
of
judgment forthwith or immediately after
the trial or verdict have been held by some
courts to be merely directory so that noncompliance with them does not invalidate
the judgment, on the theory that if the
statute had intended such result it would
clearly have indicated it."

"the legal distinction between directory and

mandatory laws is applicable to fundamental as
it is to statutory laws."

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.

declares that constitutional provisions are

directory, and not mandatory, where they refer
to matters merely procedural.

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 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 alloted term. Such an absurd
situation could not have been intended by the
framers of our fundamental law.

the constitutional provision in question should be

held merely as directory. "Thus, where the
contrary construction) would lead to absurd,
impossible or mischievous consequences, it
should not be followed. "

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BERNARDINO MARCELINO, vs. THE HON. FERNANDO

CRUZ, JR., et. Al.

Statutory Construction
X. Mandatory or Directory
XI. Prospective or Retroactive
Failure to observe said rule constitutes a ground
for administrative sanction against the defaulting
judge.

iii. Malcora v. CA (G.R. No. L-51042, September

30, 1982)
BASIS:
Article X of the 1973 Constitution
Section 11. (1) XX XXX XXX XX
(2) With respect to the Supreme Court and other
collegiate appellate courts, when the applicable maximum
period shall have lapsed without the rendition of the
corresponding decision or resolution because the
necessary vote cannot be had, the judgment, order, or
resolution appealed from shall be deemed affirmed except
in those cases where a qualified majority is required and
in appeals from judgment of conviction in criminal cases,
and in original special civil action and proceedings for
habeas corpus, the petition in such cases shall be deemed
dismissed; and a certification to this effect signed by the
Chief Magistrate of the Court shall be issued and a copy
thereof attached to the record of the case.
**THE PROVISION ABOVE HAS BEEN OMMITTED IN THE
1987 CONSTITUTION.
In the 1987 Constitution:
Section 15. (1) All cases or matters filed after the
effectivity of this Constitution must be decided or resolved
within twenty-four months from date of submission for the
Supreme Court, and, unless reduced by the Supreme
Court, twelve months for all lower collegiate courts, and
three months for all other lower courts.
(2) A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last pleading,
brief, or memorandum required by the Rules of Court or
by the court itself.
(3) Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice or
the presiding judge shall forthwith be issued and a copy
thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why
a decision or resolution has not been rendered or issued
within said period.
(4) Despite the expiration of the applicable mandatory
period, the court, without prejudice to such responsibility
as may have been incurred in consequence thereof, shall
decide or resolve the case or matter submitted thereto for
determination, without further delay.
FACTS:
1. This case is about the implementation of an erroneous
writ of execution.
2. The case was submitted for decision on October 6,
1980, the period of eighteen months for deciding it, as
fixed by the Constitution has already expired.
ISSUE: WON the decision of the CA should be affirmed on
the ground that the period of eighteen months for
deciding it, as fixed in section 11, Article X of the
Constitution, had already expired.
HELD: (Point of view of the ponente, Justice De Castro)
The provision of Article X, Section 11 of the
Constitution, is mandatory and should have been
complied with immediately after the effectivity of
the New Constitution. This has always been my
position, basically, on the legal principle that all provisions
of the Constitution which direct specific acts to be done,
or prohibit certain acts to be done, should be construed as
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mandatory. To construe them as merely directory would

be to thwart the intention of the Constitution which, its
command being of the highest order should, under no
circumstance, be permitted if they are the 'great
ordinances' as Justice Holmes had caned the provisions of
the Constitution. The manifest purpose of the provision is
to avoid delay in the disposition of cases, which always is
a cause of injustice, under the familiar aphorism that
"justice delayed is justice denied."
Paragraph 2 of Section 11 requires for the appealed
decision to be deemed affirmed and original special civil
actions, dismissed, is that the applicable maximum period
has lapsed without the decision of the merits being
rendered, because of failure to act on the case and put it
to a vote, not that it was put to a vote, but "the necessary
vote could not be had." This phrase would thus appear to
be either a mere surplusage or as merely descriptive of
how a decision is reached in the Supreme Court, where
alone that phrase has application. It cannot apply to the
Court of Appeals, because there the necessary votes can
always be had for a decision to be reached, just like in the
one-man Court of First Instance, as long as the Court acts.
What the Constitution has in and, therefore, is "inaction"
on the part of the court during the applicable period, as
the reason or cause for the failure to render a decision or
resolution within the applicable period, not that "the
necessary vote cannot be had.
It seems to me crystal clear that the Constitution intends
that aside from the way an appealed decision, order or
resolution is deemed affirmed because of lack of
necessary vote under Section 2 of Article X, the same
effect is contemplated by reason of the lapse of the period
fixed without the case being decided on the merits. If
however, the maximum periods fixed in Section 11, which
is the real core of said provision, its heart and soul, as it
were, may be disregarded, because the provision is
merely directory, We would be attributing to the framers
of the Constitution, with all their vision and wisdom, an
act of colossal absurdity. They have inserted a new
provision which would have no different effect than what
is already covered by Section 2 of the same Article, thus
rendering Section 11 a complete surplusage. Only by
holding that Section 11 is of mandatory character would
such an absurdity be avoided, as both Section 2 and
Section 11 would each be given distinct Identity achieving
a common objective but through two different and
separate ways: (1) the necessary vote could not be had,
under Section 2, and (2) the period fixed had lapsed,
under Section 11.
The express mention by Section 11 itself of exceptions to
the automatic affirmance of appealed decisions, orders or
resolutions when not reversed or modified within the
prescribed period, namely, (1) cases where a qualified
majority is required and (2) appeals from judgment of
conviction in c cases, which even after the lapse of the
fixed period may still be decided on the merits, clearly,
means under the maxim "expressio inius est exclusio
alterius," that aside from the exceptions expressly
mentioned, all other cases may no longer be decided on
the merits after the lapse of the applicable maximum
period. The appealed decision, order and resolution would
be deemed affirmed, and shall then be so certified by the
chief magistrate of the court, as provided in the last part
of paragraph 2 of Section 11. Said provision would be
rendered also useless by holding Section 11 merely
directory because the occasion for the certification will
never arise. It will thus be seen that the exceptions
expressly mentioned in the provision and the certification
required thereby as just pointed out, argue most
eloquently and convincingly in favor of the mandatory
character of Section 11 of Article X of the New
Constitution.

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Statutory Construction
X. Mandatory or Directory
XI. Prospective or Retroactive
SEPARATE OPINION: AQUINO, J
I disagree with his personal view that the judgment of the
Court of Appeals should be affirmed on the additional
ground that, as this case was submitted for decision on
October 6, 1980, the period of eighteen months for
deciding it, as fixed in section 11, Article X of the
Constitution, had already expired.
In my opinion, it is impossible for this Court to comply
with the eighteen-month period because of the thousand
of judicial, administrative and disbarment cases pending
decision. Since the Constitution took effect on January 17,
1973, this Court has never complied with the eighteenmonth period.
Some Justices consider that provision directory. There is
an opinion that the judgment or order' under appeal is
deemed affirmed after the expiration of the eighteenmonth period only when there is a showing that "the
necessary note cannot be had". In the absence of such a
showing, the automatic affirmance of the judgment or
order under appeal not take place.

b. Can a
directory?

provision

be

both

mandatory

and

i. MMDA v. Concerned Residents of Manila Bay

(G.R. Nos. 171947-48, December 18, 2008)

themselves to the containment, removal, and cleaning

operations when a specific pollution incident occurs.
On the contrary, Sec. 17 requires them to act even
in the absence of a specific pollution incident, as
long as water quality has deteriorated to a degree
where its state will adversely affect its best usage.
Section 17 & 20 are of general application and are not for
specific pollution incidents only. The fact
that the
pollution of the Manila Bay is of such magnitude and
scope that it is well -nigh impossible to draw the line
between a specific and a general pollution incident.
(2) The Cleaning or Rehabilitation of Manila Bay Can be
Compelled by Mandamus. While the implementation of
the MMDA's mandated tasks may entail a decisionmaking process, the enforcement of the law or the very
act of doing what the law exacts to be done is
ministerial
in nature and may be compelled by
mandamus. Under what other judicial
discipline
describes as continuing mandamus , the Court may,
under extraordinary circumstances, issue directives
with the end in view of ensuring that its decision would
not be set to naught
by administrative inaction or
indifference.
NOTE: This continuing mandamus is no longer applicable,
since this is institutionalized in the rules of procedure for
environmental cases.
20 days Temporary restraining order

FACTS:
The complaint by the residents alleged that the water
quality of the Manila Bay had fallen way below the
allowable
standards
set
by
law,
specifically
Presidential Decree No. (PD) 1152 or the Philippine
Environment
Code and that ALL defendants (public
officials) must be jointly and/or solidarily liable and
collectively ordered to clean up Manila Bay and to restore
its water quality to class B, waters fit for swimming,
diving, and other forms of contact recreation.
ISSUES:
(1) WON Sections 17 and 20 of PD 1152 under the
headings, Upgrading of Water Quality and Clean-up
Operations, envisage a cleanup in general or are they
limited only to the cleanup of specific pollution
incidents;
(2) WON petitioners be compel led by mandamus to clean
up and rehabilitate the Manila Bay.
APPLICABLE LAWS:

HELD:
(1) Sec. 17
government

does
not in any way state that the
agencies concerned ought to confine

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XI. Prospective or Retroactive Application

a. Gamboa v. Teves (G.R. No. 176579, October 9,
2012)
Facts:
The issue started when petitioner Gamboa questioned the
indirect sale of shares involving almost 12 million shares
of the Philippine Long Distance Telephone Company

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PD 1152 Philippine Environmental Code Section

17.
Upgrading of Water Quality. Where the quality of
water has deteriorated t o a degree where it s state
will adversely affect its best u sage, the government
agencies concerned shall take such measures as may
be necessary to upgrade the quality of such water
to meet the prescribed water quality standards. Section
20. Clean-up Operations.It shall be the responsibility
of the polluter to contain , remove and clean - up water
pollution incidents at his own expense. In case of
his failure to do so, the government agencies
concerned shall
undertake containment, removal and
clean-up
operations and expenses incurred in
said
operation shall be charged against the persons and/ or
entities responsible for such pollution.

Statutory Construction
X. Mandatory or Directory
XI. Prospective or Retroactive
(PLDT) owned by PTIC to First Pacific. Thus, First Pacifics
common shareholdings in PLDT increased from 30.7
percent to 37 percent, thereby increasing the total
common shareholdings of foreigners in PLDT to about
81.47%. The petitioner contends that it violates the
Constitutional provision on filipinazation of public utility,
stated in Section 11, Article XII of the 1987 Philippine
Constitution, which limits foreign ownership of the capital
of a public utility to not more than 40%. Then, in 2011,
the court ruled the case in favor of the petitioner, hence
this new case, resolving the motion for reconsideration for
the 2011 decision filed by the respondents.
Issue: Whether or not the Court made an erroneous
interpretation of the term capital in its 2011 decision?
Held/Reason: The Court said that the Constitution
is clear in expressing its State policy of developing
an economy effectively controlled by Filipinos.
Asserting the ideals that our Constitutions Preamble want
to achieve, that is to conserve and develop our
patrimon, hence, the State should fortify a Filipinocontrolled economy. In the 2011 decision, the Court finds
no wrong in the construction of the term capital which
refers to the shares with voting rights, as well as with full
beneficial ownership (Art. 12, sec. 10) which implies that
the right to vote in the election of directors, coupled with
benefits, is tantamount to an effective control.

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Therefore, the Courts interpretation of the term

capital was not erroneous. Thus, the motion for
reconsideration is denied.

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