How to construe "may" and "shall"?

TOPIC

1. Interpretation of "shall" and "may"  

Moncayo vs. Moncayo

FACTS:

The subject of the statutory construction here is Section 5(4) of the A.M. No. 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 

On June 4, 2018, Edwin filed a petition to declare his marriage with Aileen void for having been solemnized without a marriage license as required under Article 35(3) of the Family Code. He alleged that the ML does not exist and was not presented before the solemnizing officer.

Aileen prayed for the outright dismissal of Edwin's Petition on the ground that Edwin failed to serve a copy of his petition to the OSG and the OCP within 5 days from filing. Under Section 5 of A.M. No. 02-11-10-SC:

SECTION 5. Contents and Form of Petition.

—

. . .

xxx xxx xxx

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be ground for immediate dismissal of the petition.

ISSUE:

Whether or not the belated compliance with Section 5 of A.M. No. 02-11-10-SC warrants outright dismissal of the Petition. 

RULING:

No.

Under the rules on statutory construction, the word "shall" means imperative and not permissive, though it may have the latter meaning when required by the context.

In this case, it is imperative for the petitioner in the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages to serve a copy of the petition to the OSG and the OCP within 5 days from the filing of the petition. However, the use of the word, "may" in relation to the petition's dismissal in case of failure to comply means that the "shall" is meant to be interpreted to be consistent with the use of discretion. 

Therefore, the belated compliance with Section 5 of A.M. No. 02-11-10-SC does not warrant outright dismissal as the same belongs to the discretion of the court.

  

STATUTORY CONSTRUCTION DISCUSSION

1. How is the word "shall" construed? 
1. As a general rule, "shall" should be construed in its ordinary meaning, such that the word "shall" means imperative, and not permissive. 
2. As an exception, "shall" in some contexts is given a permissive meaning a) where there no public benefit or private right require it to be given an imperative meaning, and b) where it is necessary to give effect to legislative intent. 
2. How is the word "may" construed?
1. It is settled doctrine in statutory construction that the word "may" denotes discretion and cannot be construed as having mandatory effect.

Full text here.