Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6791             March 29, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.
First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.
MONTEMAYOR, J.:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating Central Bank
Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to suffer six months imprisonment, to pay
a fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S. checks and U.S. money
orders amounting to about $7,000 failed to sell the same to the Central Bank through its agents within one day following the receipt of
such foreign exchange as required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was not published in
the Official Gazette prior to the act or omission imputed to the appellant, and that consequently, said circular had no force and effect.
It is contended that Commonwealth Act. No., 638 and Act 2930 both require said circular to be published in the Official Gazette, it
being an order or notice of general applicability. The Solicitor General answering this contention says that Commonwealth Act. No.
638 and 2930 do not require the publication in the Official Gazette of said circular issued for the implementation of a law in order to
have force and effect.
We agree with the Solicitor General that the laws in question do not require the publication of the circulars, regulations and notices
therein mentioned in order to become binding and effective. All that said two laws provide is that laws, resolutions, decisions of the
Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In other words, said two
Acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance of the
different branches of the Government issuing same, and of the Bureau of Printing.
However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall, in the absence of special
provision, take effect at the beginning of the fifteenth day after the completion of the publication of the statute in the Official Gazette.
Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central
Bank is not a statute or law but being issued for the implementation of the law authorizing its issuance, it has the force and effect of
law according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,
circulars and regulations especially like the Circular No. 20 of the Central Bank in question which prescribes a penalty for its violation
should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people officially and specifically informed
of said contents and its penalties.
Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws, (Article 1 thereof), namely,
that laws shall be binding twenty days after their promulgation, and that their promulgation shall be understood as made on the day of
the termination of the publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word
"laws" include regulations and circulars issued in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido de que
bajo la denominacion generica de leyes, se comprenden tambien los Reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.
Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que muchas de sus disposiciones
contienen la advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta, advertencia que seria
perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Español, Vol. I.
p. 52).
In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was not published until November
1951, that is, about 3 months after appellant's conviction of its violation. It is clear that said circular, particularly its penal provision,
did not have any legal effect and bound no one until its publication in the Official Gazzette or after November 1951. In other words,
appellant could not be held liable for its violation, for it was not binding at the time he was found to have failed to sell the foreign
exchange in his possession thereof.
But the Solicitor General also contends that this question of non-publication of the Circular is being raised for the first time on appeal
in this Court, which cannot be done by appellant. Ordinarily, one may raise on appeal any question of law or fact that has been raised
in the court below and which is within the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court).
But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20 had not been published as
required by law before its violation, then in the eyes of the law there was no such circular to be violated and consequently appellant
committed no violation of the circular or committed any offense, and the trial court may be said to have had no jurisdiction. This
question may be raised at any stage of the proceeding whether or not raised in the court below.
In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with costs de oficio.
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14283           November 29, 1960
GIL BALBUNA, ET AL., petitioners-appellants, 
vs.
THE HON. SECRETARY OF EDUCATION, ET AL., respondents-appellees.
K. V. Faylona and Juan B. Soliven for appellants.
Office of the Solicitor General Edilberto Barot and Solicitor Ceferino Padua for appellees.
REYES, J.B.L., J.:
Appeal by members of the "Jehovah's Witnesses" from a decision of the Court of First Instance of Capiz, dated June 23, 1958,
dismissing their petition for prohibition and mandamus against the Secretary of Education and the other respondents.
The action was brought to enjoin the enforcement of Department Order No. 8, s. 1955, issued by the Secretary of Education,
promulgating rules and regulations for the conduct of the compulsory flag ceremony in all schools, as provided in Republic Act No.
1265. Petitioners appellants assail the validity of the above Department Order, for it allegedly denies them freedom of worship and of
speech guaranteed by the Bill of Rights; that it denies them due process of law and the equal protection of the laws; and that it unduly
restricts their rights in the upbringing of their children. Since the brief for the petitioners-appellants assails Republic Act No. 1265
only as construed and applied, the issue ultimately boils down the validity of Department Order No. 8, s. 1955, which promulgated the
rules and regulations for the implementation of the law.
This case, therefore, is on all fours with Gerona, et al., vs. Secretary of Education, et al., 106 Phil., 2; 57 Off. Gaz., (5) 820, also
involving Jehovah's Witnesses, and assailing, on practically identical grounds, the validity of the same Department Order above-
mentioned. This Court discerns no reasons for changing its stand therein, where we said:
In conclusion, we find and hold that the Filipino flag is not an image that requires religious veneration; rather, it is a symbol of the
Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is not a religious
ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for; that by the
authority of the Legislature of the Secretary of Education was duly authorized to promulgate Department Order No. 8, series of 1955;
that the requirement of observance of the flag ceremony, or salute provided for in said Department Order No. 8 does not violate the
Constitutional provisions about freedom of religion and exercise of religion; that compliance with the non-discriminatory and
reasonable rules and regulations and school discipline, including observance of the flag ceremony, is a prerequisite to attendance in
public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were properly excluded and dismissed
from the public school they were attending.
However, in their memorandum, petitioners-appellants raise the new issue that that Department Order No. 8 has no binding force and
effect, not having been published in the Official Gazette as allegedly required by Commonwealth Act 638, Article 2 of the New Civil
Code, and Section 11 of the Revised Administrative Code. We see no merit in this contention. The assailed Department Order, being
addressed only to the Directors of Public and Private Schools, and educational institutions under their supervision, can not be said to
be of general application. Moreover, as observed in People vs. QuePo Lay, 94 Phil., 640; 50 Off. Gaz., (10) 4850 (affirmed in Lim
Hoa Ting vs. Central Bank, 104 Phil., 573; 55 Off. Gaz., [6] 1006), —
the laws in question (Commonwealth Act 638 and Act 2930) do not require the publication of the circulars, regulations or notices
therein mentioned in order to become binding and effective. All that said two laws provide is that laws, regulations, decisions of the
Supreme Court and Court of Appeals, notices and documents required by law to be published shall be published in the Official
Gazette but said two laws do not say that unless so published they will be of no force and effect. In other words, said two acts merely
enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance of the different branches
of the government issuing the same, and of the Bureau of Printing.
It is true, as held in the above cases, that pursuant to Article 2 of the New Civil Code and Section 11 of the Revised Administrative
Code, statutes or laws shall take effect fifteen days following the completion of their publication in the Official Gazette, unless
otherwise provided. It is likewise true that administrative rules and regulations, issued to implement a law, have the force of law.
Nevertheless, the cases cited above involved circulars of the Central Bank which provided for penalties for violations thereof and that
was the primary factor that influenced the rationale of those decisions. In the case at bar, Department Order No. 8 does not provide
any penalty against those pupils or students refusing to participate in the flag ceremony or otherwise violating the provisions of said
order. Their expulsion was merely the consequence of their failure to observe school discipline which the school authorities are bound
to maintain. As observed in Gerona vs. Secretary of Education, supra,
... for their failure or refusal to obey school regulations about the flag salute, they were not being prosecuted. Neither were they being
criminally prosecuted under threat of penal sanction. If they choose not to obey the flag salute regulation, they merely lost the benefits
of public education being maintained at the expense of their fellow citizens, nothing more. Having elected not to comply with the
regulations about the flag salute, they forfeited their right to attend public schools.
Finally, appellants contend that Republic Act No. 1265 is unconstitutional and void for being an undue delegations of legislative
power, "for its failure to lay down any specific and definite standard by which the Secretary of Education may be guided in the
preparation of those rules and regulations which he has been authorized to promulgate." With this view we again disagree. Sections 1
and 2 of the Act read as follows:
Section 1. All educational institutions shall henceforth, observed daily flag ceremony, which shall be simple and dignified and shall
include the playing or singing of the Philippine National Anthem.
Section 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and regulations for the
proper conduct of the flag ceremony herein provide.
In our opinion, the requirements above-quoted constitute an adequate standard, to wit, simplicity and dignity of the flag ceremony and
the singing of the National Anthem — specially when contrasted with other standards heretofore upheld by the Courts: "public
interest"(People vs. Rosenthal, 68 Phil. 328); "public welfare" (Municipality of Cardona vs. Binangonan, 36 Phil. 547); Interest of law
and order"(Rubi vs. Provincial Board, 39 Phil., 669; justice and equity and the substantial merits of the case" (Int. Hardwood vs.
Pañgil Federation of Labor, 70 Phil. 602); or "adequate and efficient instruction" (P.A.C.U. vs. Secretary of Education, 97 Phil., 806;
51 Off. Gaz., 6230). That the Legislature did not specify the details of the flag ceremony is no objection to the validity of the statute,
for all that is required of it is the laying down of standards and policy that will limit the discretion of the regulatory agency. To require
the statute to establish in detail the manner of exercise of the delegated power would be to destroy the administrative flexibility that
the delegation is intended to achieve.
Wherefore, the decision appealed from is affirmed. Costs against petitioner-appellants.
Paras, C.J., Padilla, Bautista Angelo, Labrador, Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, 
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as
Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang
Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
 
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive
orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337,
355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644,
658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202,
204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445,
473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-
839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-
1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744,
1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-
1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-
544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852,
854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal
personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the
meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done
to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the
performance of a public duty, they need not show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while
the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at
large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as
such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus
proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of
Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of
this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in
mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which
surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no
other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in
cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the
present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any
other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the
people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where
the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The
point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions,  4 this Court
has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its
effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following
its publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication.
Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not
preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus,
Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the,
Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts
of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law;
and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate
their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this
time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are
kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to
the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people
have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad
con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word
"shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the
people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such
as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all
concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of
due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts
of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and
effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set
forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that
it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always
be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of
its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention
of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban  9 sustained the right of a party under the Moratorium Law,
albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that
an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be
published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not
been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced
by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise
the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of
this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as
a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are
of general application, and unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
 
 
Separate Opinions
 
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable,
however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished
"presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party
who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force
and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past
"presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is
required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the
constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the
majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form
if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must
be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not
so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with
their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it
could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of
a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the
Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different
rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts
not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
 
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes
a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can
be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is
bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code,
there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the
law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity
[date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil
Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the
same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the
Civil Code for its proper dissemination.
 
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would
like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes
effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect
to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
 
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a
law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be
published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the
Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and
"all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all
legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said
law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all
statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take
effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
 
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.
 
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective,
until due publication thereof.
 
 
 
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable,
however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished
"presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party
who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It
conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force
and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past
"presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is
required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the
constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires
notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the
majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form
if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must
be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not
so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with
their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or
executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases
though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the
Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it
could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of
a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the
completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the
Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different
rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts
not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
 
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes
a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can
be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is
bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code,
there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the
law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity
[date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil
Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the
same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the
Civil Code for its proper dissemination.
 
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would
like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes
effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect
to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
 
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a
law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be
published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the
Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and
"all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all
legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said
law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all
statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take
effect. Only a higher law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by
publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
 
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.
 
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective,
until due publication thereof.

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, 
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as
Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL.,respondents.
RESOLUTION
 
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed had
not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it
was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their
approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are
of general application, and unless so published, they shall have no binding force and effect.
The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. 1Specifically, they ask the
following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general applicability and those
which are not; that publication means complete publication; and that the publication must be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion and
should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant
that the publication required therein was not always imperative; that publication, when necessary, did not have to be made in the
Official Gazette; and that in any case the subject decision was concurred in only by three justices and consequently not binding. This
elicited a Reply 4 refuting these arguments. Came next the February Revolution and the Court required the new Solicitor General to
file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration of a government agency or for particular persons did not have to be 'Published;
that publication when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was
not binding because it was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we
have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be
shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision, 6 is
the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is that such omission
would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the legislature could
validly provide that a law e effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably
short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result and they would be so not
because of a failure to comply with but simply because they did not know of its existence, Significantly, this is not true only of penal
laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been
published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of
Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others,
and indeed especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people
in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the
public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which
any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a
law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as anultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual,
or some of the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their
effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. administrative rules
and regulations must a also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and
directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a
public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which
that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in
petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or
the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.
We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the
laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos
administration. 7 The evident purpose was to withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for publication in the Official Gazette 8 and
that six others felt that publication could be made elsewhere as long as the people were sufficiently informed. 9 One reserved his
vote 10 and another merely acknowledged the need for due publication without indicating where it should be made. 11 It is therefore
necessary for the present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision
supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and
limited readership. Undoubtedly, newspapers of general circulation could better perform the function of communicating, the laws to
the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble, though, is that
this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of
Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it
obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That is not
our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and approved by
the political departments of the government in accordance with the prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and not elsewhere, as a
requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the said
Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered unenforceable by a
mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need
to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say the
least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the
government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain
democratic, with sovereignty residing in the people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify or
reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the
legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets.
Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a
valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that
cannot feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as
possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another
date specified by the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.
 
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would like to add a few
observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against the insidious manner by which the
previous dispensation had promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc. Never
has the law-making power which traditionally belongs to the legislature been used and abused to satisfy the whims and caprices of a
one-man legislative mill as it happened in the past regime. Thus, in those days, it was not surprising to witness the sad spectacle of
two presidential decrees bearing the same number, although covering two different subject matters. In point is the case of two
presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with airconditioner. This was further exacerbated by
the issuance of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis
George Still
The categorical statement by this Court on the need for publication before any law may be made effective seeks prevent abuses on the
part of the lawmakers and, at the same time, ensures to the people their constitutional right to due process and to information on
matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same time, I wish to add a
few statements to reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly interpreted as coming
into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of the Civil Code. Such statute, in
other words, should not be regarded as purporting literally to come into effect immediately upon its approval or enactment and without
need of publication. For so to interpret such statute would be to collide with the constitutional obstacle posed by the due process
clause. The enforcement of prescriptions which are both unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a negation of
the fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as distinguished from any other
medium such as a newspaper of general circulation, is embodied in a statutory norm and is not a constitutional command. The
statutory norm is set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638
and Section 35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of publication
may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be amended by a subsequent
statute providing, for instance, for publication either in the Official Gazette or in a newspaper of general circulation in the country.
Until such an amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the Official
Gazette and not in any other medium.
 
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would like to add a few
observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against the insidious manner by which the
previous dispensation had promulgated and made effective thousands of decrees, executive orders, letters of instructions, etc. Never
has the law-making power which traditionally belongs to the legislature been used and abused to satisfy the whims and caprices of a
one-man legislative mill as it happened in the past regime. Thus, in those days, it was not surprising to witness the sad spectacle of
two presidential decrees bearing the same number, although covering two different subject matters. In point is the case of two
presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with airconditioner. This was further exacerbated by
the issuance of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis
George Still
The categorical statement by this Court on the need for publication before any law may be made effective seeks prevent abuses on the
part of the lawmakers and, at the same time, ensures to the people their constitutional right to due process and to information on
matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same time, I wish to add a
few statements to reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly interpreted as coming
into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of the Civil Code. Such statute, in
other words, should not be regarded as purporting literally to come into effect immediately upon its approval or enactment and without
need of publication. For so to interpret such statute would be to collide with the constitutional obstacle posed by the due process
clause. The enforcement of prescriptions which are both unknown to and unknowable by those subjected to the statute, has been
throughout history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a negation of
the fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as distinguished from any other
medium such as a newspaper of general circulation, is embodied in a statutory norm and is not a constitutional command. The
statutory norm is set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638
and Section 35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of publication
may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be amended by a subsequent
statute providing, for instance, for publication either in the Official Gazette or in a newspaper of general circulation in the country.
Until such an amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the Official
Gazette and not in any other medium.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G. R. No. 156982             September 8, 2004
NATIONAL AMNESTY COMMISSION, petitioner, 
vs.
COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and ERNESTO C. EULALIA,
Resident Auditor, National Amnesty Commission. respondents.
DECISION
CORONA, J.:
This petition for review1 seeks to annul the two decisions of respondent Commission on Audit (COA)2 dated July 26, 20013 and
January 30, 2003,4 affirming the September 21, 1998 ruling5 of the National Government Audit Office (NGAO). The latter in turn
upheld Auditor Ernesto C. Eulalia's order disallowing the payment of honoraria to the representatives of petitioner's ex
officio members, per COA Memorandum No. 97-038.
Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President Fidel V.
Ramos through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of
seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and
Interior and Local Government as ex officiomembers.6
It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their
representatives who were paid honoraria beginning December 12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia
disallowed on audit the payment of honoraria to these representatives amounting to P255,750 for the period December 12, 1994 to
June 27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO upheld the auditor's order and notices
of disallowance were subsequently issued to the following:7
REPRESENTATIVES AMOUNT
1 Cesar Averilla
. Department of National Defense P 2,500.00
2 Ramon Martinez
. Department of National Defense 73,750.00
3 Cielito Mindaro,
. Department of Justice 18,750.00
4 Purita Deynata
. Department of Justice 62,000.00
5 Alberto Bernardo
. Department of the Interior And Local Government 71,250.00
6 Stephen Villaflor
. Department of the Interior and Local Government 26,250.00
7 Artemio Aspiras
. Department of Justice 1,250.00

P255,750.00
Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of
Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof
provides:
Section 1, Composition - The NAC shall be composed of seven (7) members:
a) A Chairperson who shall be appointed by the President;
b) Three (3) Commissioners who shall be appointed by the President;
c) Three (3) Ex-officio Members
1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government
The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per
diems, allowances, bonuses and other benefits as may be authorized by law.(Emphasis supplied)
Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO
disallowing payment of honoraria to the ex officio members' representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of discretion in: (1)
implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code; (2)
invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said
Memorandum; (3) applying the Memorandum to the NAC ex officiomembers' representatives who were all appointive officials with
ranks below that of an Assistant Secretary; (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of
Administrative Order No. 2 null and void, and (5) disallowing the payment of honoraria on the ground of lack of authority of
representatives to attend the NAC meetings in behalf of the ex officio members.8
We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that there is no legal basis to
grant per diem, honoraria or any allowance whatsoever to the NAC ex officio members' official representatives.
The Constitution mandates the Commission on Audit to ensure that the funds and properties of the government are validly, efficiently
and conscientiously used. Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive and broad auditing powers
over all government entities or trustees, without any exception:
Section 2. (1) The Commission on Audit shall have the power, authority and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and
controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the government, which are required by law of the granting institution to submit to such audit as a condition
of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt
such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the
general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting
papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and
examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of irregular, unnecessary, inexpensive, extravagant, or
unconscionable expenditures, or uses of government funds and properties.
Section 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment
of public funds, from the jurisdiction of the Commission on Audit.(Emphasis supplied).
It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on September 19, 1997:
COMMISSION ON AUDIT MEMORANDUM NO. 97-038
SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of Public Officers and Investigations
and Committee on Civil Service and Government Reorganization.
The Commission received a copy of Senate Committee Report No. 509 urging the Commission on Audit to immediately cause the
disallowance of any payment of any form of additional compensation or remuneration to cabinet secretaries, their deputies
and assistants, or their representatives, in violation of the rule on multiple positions, and to effect the refund of any and all
such additional compensation given to and received by the officials concerned, or their representatives, from the time of the
finality of the Supreme Court ruling in Civil Liberties Union v. Executive Secretary to the present. In the Civil Liberties Union
case, the Supreme Court ruled that Cabinet Secretaries, their deputies and assistants may not hold any other office or
employment. It declared Executive Order 284 unconstitutional insofar as it allows Cabinet members, their deputies and
assistants to hold other offices in addition to their primary office and to receive compensation therefor. The said
decision became final and executory on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government agencies and government owned or controlled
corporations which have effected payment of subject allowances, are directed to implement the recommendation contained in the
subject Senate Committee Report by undertaking the following audit action:
1. On accounts that have not been audited and settled under certificate of settlements and balances on record from August 19,
1991 to present - to immediately issue the Notices of disallowance and corresponding certificate of settlements and balances.
2. On accounts that have been audited and settled under certificate of settlements and balances on record - to review and re-open said
accounts, issue the corresponding notices of disallowance, and certify a new balance thereon. It is understood that the re-opening of
accounts shall be limited to those that were settled within the prescriptive period of three (3) years prescribed in Section 52 of
P.D. 1445.
3. On disallowances previously made on these accounts - to submit a report on the status of the disallowances indicating whether those
have been refunded/settled or have become final and executory and the latest action taken by the Auditor thereon.
All auditors concerned shall ensure that all documents evidencing the disallowed payments are kept intact on file in their respective
offices.
Any problem/issue arising from the implementation of this Memorandum shall be brought promptly to the attention of the Committee
created under COA Officer Order No. 97-698 thru the Director concerned, for immediate resolution.
An initial report on the implementation of this Memorandum shall be submitted to the Directors concerned not later than October 31,
1997. Thereafter, a quarterly progress report on the status of disallowances made shall be submitted, until all the disallowances shall
have been enforced.
The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall supervise the implementation of this
Memorandum which shall take effect immediately and shall submit a consolidated report thereon in response to the recommendation
of the Senate Committee on Accountability of Public Officers and Investigation and Committee on Civil Service and Government
Reorganization.9(Emphasis supplied)
Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication required by
Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such publication.
We clarified this publication requirement in Tañada vs. Tuvera:10
[A]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative
powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant
to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued
by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their
duties.(Emphasis supplied.)
COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not need
publication to be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its
auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of the Constitution on the President and his
official family, their deputies and assistants, or their representatives from holding multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to categorically explain this
constitutional prohibition in Civil Liberties Union vs. The Executive Secretary:11
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant
secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein
imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:
"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their
office."
xxx     xxx     xxx
[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2),
Article IX-B which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
xxx     xxx     xxx
But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the
holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.
xxx     xxx     xxx
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article
IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while
Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. . . .
xxx     xxx     xxx
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must
not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The
reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials. …
xxx     xxx     xxx
[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act
done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the
office." An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further
warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-
officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority.
xxx     xxx     xxx
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has
no right to receive additional compensation for his services in the said position. The reason is that these services are already paid
for and covered by the compensation attached to his principal office. x x x
xxx     xxx     xxx
…[E]x-officio posts held by the executive official concerned without additional compensation as provided by law and as
required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation
of the constitutional prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or the Constitution, such as the Civil Liberties Union doctrine, form part of our
legal system.12 Supreme Court decisions assume the same authority as valid statutes.13 The Court's interpretation of the law is part of
that law as of the date of enactment because its interpretation merely establishes the contemporary legislative intent that the construed
law purports to carry into effect.14
COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual, except those
provided for under the Constitution. Hence, publication of said Memorandum is not required for it to be valid, effective and
enforceable.
In Civil Liberties Union, we elucidated on the two constitutional prohibitions against holding multiple positions in the government
and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees
against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the
stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession,
business or financial interest, whether government or private, unless allowed by the Constitution.
The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant Secretary are covered by
the two constitutional prohibitions.
First, the NAC ex officio members' representatives are not exempt from the general prohibition because there is no law or
administrative order creating a new office or position and authorizing additional compensation therefor.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the
government and receiving additional or double compensation:
SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure.
xxx     xxx     xxx
(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
xxx     xxx     xxx
SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall receive additional or
double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument,
office, or title of any kind form any foreign state.
Pensions and gratuities shall not be considered as additional, double or indirect compensation.
RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.
The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation from the ex
officio members who were themselves also designated as such.
There is a considerable difference between an appointment and designation. An appointment is the selection by the proper authority of
an individual who is to exercise the powers and functions of a given office; a designation merely connotes an imposition of additional
duties, usually by law, upon a person already in the public service by virtue of an earlier appointment.15
Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached
to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis
of an employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position, 16 and not a mere
designation.
Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on the President and
his official family.
Again, in Civil Liberties Union, we held that cabinet secretaries, including their deputies and assistants, who hold positions in ex
officio capacities, are proscribed from receiving additional compensation because their services are already paid for and covered by
the compensation attached to their principal offices. Thus, in the attendance of the NAC meetings, the ex officio members were not
entitled to, and were in fact prohibited from, collecting extra compensation, whether it was called per diem, honorarium, allowance or
some other euphemism. Such additional compensation is prohibited by the Constitution.
Furthermore, in de la Cruz vs. COA17 and Bitonio vs. COA,18 we upheld COA's disallowance of the payment ofhonoraria and per
diems to the officers concerned who sat as ex officio members or alternates. The agent, alternate or representative cannot have a better
right than his principal, the ex officio member. The laws, rules, prohibitions or restrictions that cover the ex officio member apply with
equal force to his representative. In short, since the ex officio member is prohibited from receiving additional compensation for a
position held in an ex officiocapacity, so is his representative likewise restricted.
The Court also finds that the re-opening of the NAC accounts within three years after its settlement is within COA's jurisdiction under
Section 52 of Presidential Decree No. 1445, promulgated on June 11, 1978:
SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of three years after the settlement of any
account by an auditor, the Commission may motu propio review and revise the account or settlement and certify a new balance.
More importantly, the Government is never estopped by the mistake or error on the part of its agents. 19Erroneous application and
enforcement of the law by public officers do not preclude subsequent corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that:
Petitioner further contends that with the new IRR issued by the NAC authorizing the ex-officio members to designate representatives
to attend commission meetings and entitling them to receive per diems, honoraria and other allowances, there is now no legal
impediment since it was approved by the President. This Commission begs to disagree. Said provision in the new IRR is null and void
for having been promulgated in excess of its rule-making authority. Proclamation No. 347, the presidential issuance creating the NAC,
makes no mention that representatives of ex-officio members can take the place of said ex-officio members during its meetings and
can receive per diems and allowances. This being the case, the NAC, in the exercise of its quasi-legislative powers, cannot add,
expand or enlarge the provisions of the issuance it seeks to implement without committing an ultra vires act. 20
We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that:
The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per
diems, allowances, bonuses and other benefits as may be authorized by law. (Emphasis supplied).
The problem lies not in the administrative order but how the NAC and the COA interpreted it.
First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law,
that is, the Constitution, statutes and judicial decisions. However, as already discussed, the payment of such allowances is not allowed,
prohibited even.
Second, the administrative order merely allows the ex officio members to designate their representatives to NAC meetings but not to
decide for them while attending such meetings. Section 4 of the administrative order categorically states:
Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum consisting of at least four members.
Thus, although the administrative order does not preclude the representatives from attending the NAC meetings, they may do so only
as guests or witnesses to the proceedings. They cannot substitute for the ex officio members for purposes of determining quorum,
participating in deliberations and making decisions.
Lastly, we disagree with NAC's position that the representatives are de facto officers and as such are entitled to allowances, pursuant
to our pronouncement in Civil Liberties Union:
"where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other
compensation attached to the office."
A de facto officer "derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face. (He is) one who is in possession of an office and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a
mere volunteer."21
The representatives cannot be considered de facto officers because they were not appointed but were merely designated to act as such.
Furthermore, they are not entitled to something their own principals are prohibited from receiving. Neither can they claim good faith,
given the express prohibition of the Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such
allowances.
WHEREFORE the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez *, Carpio Morales*,
Callejo, Sr., Azcuna, Tinga, Chico-Nazario,

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G. R. No. 155027             February 28, 2006
THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda, Petitioner, 
vs.
Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his
capacity as Undersecretary for Civil Relations and Administration of the Department of National Defense, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as void
Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002.
Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No. 2640,
dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent Angelo T. Reyes
was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04, dated 10 June 2002.
Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who was tasked by the
respondent DND Secretary to conduct an extensive management audit of the records of petitioner.
The factual and procedural antecedents of this case are as follows:
Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June 1960.
On 15 April 2002, petitioner’s incumbent president received a letter dated 13 April 2002 which reads:
Col. Emmanuel V. De Ocampo (Ret.)
President
Veterans Federation of the Philippines
Makati, Metro Manila
Dear Col. De Ocampo:
Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9, 2002, we came across
some legal bases which tended to show that there is an organizational and management relationship between Veterans Federation of
the Philippines and the Philippine Veterans Bank which for many years have been inadvertently overlooked.
I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the Phil. Vets [sic] Bank.
1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and supervision of the Secretary of
National Defense."
2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal year, the Federation shall make and
transmit to the President of the Philippines or to the Secretary of National Defense, a report of its proceedings for the past year,
including a full, complete and itemized report of receipts and expenditures of whatever kind."
3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for Other Purposes) provides in Section
6 that ... "the affairs and business of the Philippine Veterans Bank shall be directed and its property managed, controlled and
preserved, unless otherwise provided in this Act, by a Board of Directors consisting of eleven (11) members to be composed of three
ex officio members to wit: the Philippine Veterans Administrator, the President of the Veteran’s Federation of the Philippines and the
Secretary of National Defense x x x.
It is therefore in the context of clarification and rectification of what should have been done by the DND (Department of National
Defense) for and about the VFP and PVB that I am requesting appropriate information and report about these two corporate bodies.
Therefore it may become necessary that a conference with your staffs in these two bodies be set.
Thank you and anticipating your action on this request.
Very truly yours,
(SGD) ANGELO T. REYES
[DND] Secretary
On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled, "Further Implementing
the Provisions of Sections 12 and 23 of Republic Act No. 2640," the full text of which appears as follows:
Department of National Defense
Department Circular No. 04
Subject: Further Implementing the Provisions of Sections 1 & 2 of
Republic Act No. 2640
Authority: Republic Act No. 2640
Executive Order No. 292 dated July 25, 1987
Section 1
These rules shall govern and apply to the management and operations of the Veterans Federation of the Philippines (VFP) within the
context provided by EO 292 s-1987.
Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms, phrases or words used herein shall, unless the
context indicates otherwise, mean or be understood as follows:
Supervision and Control – it shall include authority to act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of a duty; restrain the commission of acts; approve, reverse or modify acts and decisions of
subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans
and programs.
Power of Control – power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former to that of the latter.
Supervision – means overseeing or the power of an officer to see to it that their subordinate officers perform their duties; it does not
allow the superior to annul the acts of the subordinate.
Administrative Process – embraces matter concerning the procedure in the disposition of both routine and contested matters, and the
matter in which determinations are made, enforced or reviewed.
Government Agency – as defined under PD 1445, a government agency or agency of government or "agency" refers to any
department, bureau or office of the national government, or any of its branches or instrumentalities, of any political subdivision, as
well as any government owned or controlled corporation, including its subsidiaries, or other self-governing board or commission of
the government.
Government Owned and Controlled Corporation (GOCC) – refer to any agency organized as a stock or non-stock corporation, vested
with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or
through its instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of at least 50% of its capital
stock.
Fund – sum of money or other resources set aside for the purpose of carrying out specific activities or attaining certain objectives in
accordance with special regulations, restrictions or limitations and constitutes an independent, fiscal and accounting entity.
Government Fund – includes public monies of every sort and other resources pertaining to any agency of the government.
Veteran – any person who rendered military service in the land, sea or air forces of the Philippines during the revolution against Spain,
the Philippine American War, World War II, including Filipino citizens who served in Allied Forces in the Philippine territory and
foreign nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the Anti-dissidence campaign, or
other wars or military campaigns; or who rendered military service in the Armed Forces of the Philippines and has been honorably
discharged or separated after at least six (6) years total cumulative active service or sooner separated due to the death or disability
arising from a wound or injury received or sickness or disease incurred in line of duty while in the active service.
Section 3 – Relationship Between the DND and the VFP
3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and organizations in the Philippines)
and their associates and successors are hereby created a body corporate, under the control and supervision of the Secretary of National
Defense, under the name, style and title of "Veterans Federation of the Philippines ..."
The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program under the jurisdiction
of the Department. It shall also have the responsibility of overseeing and ensuring the judicious and effective implementation of
veterans assistance, benefits, and utilization of VFP assets.
3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests and welfare of the
veterans who are also wards of the State entrusted under the protection of the DND, the Secretary may personally or through a
designated representative, require the submission of reports, documents and other papers regarding any or all of the Federation’s
business transactions particularly those relating to the VFP functions under Section 2 of RA 2640.
The Secretary or his representative may attend conferences of the supreme council of the VFP and such other activities he may deem
relevant.
3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital government activities including,
but not limited to, the conduct of elections; the acquisition, management and dispositions of properties, the accounting of funds,
financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the
veterans.
3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e. government
funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for
which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those exercising
authority over the financial affairs, transactions, and operations of the federation; disbursements or dispositions of government funds
or property shall invariably bear the approval of the proper officials.
Section 4 – Records of the FEDERATION
As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all business transactions,
minutes of meetings of stockholders/members of the board of directors reflecting all details about such activity.
All such records and minutes shall be open to directors, trustees, stockholders, and other members for inspection and copies of which
may be requested.
As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of operations together with
financial statement of its assets and liabilities and fund balance per year; statement of revenues and expenses per year; statement of
cash flows per year as certified by the accountant; and other documents/reports as may be necessary or required by the SND.
Section 5 – Submission of Annual and Periodic Report
As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:
a. Annual Report to be submitted not later than every January 31 of the following year. Said report shall consist of the following:
1. Financial Report of the Federation, signed by the Treasurer General and Auditor General;
2. Roster of Members of the Supreme Council;
3. Roster of Members of the Executive Board and National Officers; and
4. Current listing of officers and management of VFP.
b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one month after the meeting;
c. Report of the VFP President as may be required by SND or as may be found necessary by the President of the Federation;
d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be submitted not later than one month
after the approval of the resolution;
e. After Operation/Activity Reports to be submitted not later than one month after such operation or activity;
Section 6 – Penal Sanctions
As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials and personnel shall be
subject to the penal provisions of such laws, rules and regulations applicable to the attached agencies of the government.
In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated his instructions in his
earlier letter of 13 April 2002.
Thereafter, petitioner’s President received a letter dated 23 August 2002 from respondent Undersecretary, informing him that
Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management Audit of the Veterans Federation of the
Philippines."4 The letter went on to state that respondent DND Secretary "believes that the mandate given by said law can be
meaningfully exercised if this department can better appreciate the functions, responsibilities and situation on the ground and this can
be done by undertaking a thorough study of the organization."5
Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects and petitioner’s
financial condition. The letter ended by stating that, after the briefing, the support staff of the Audit Committee would begin their
work to meet the one-month target within which to submit a report.
A letter dated 28 August 2003 informed petitioner’s President that the Management Audit Group headed by the Undersecretary would
be paying petitioner a visit on 30 August 2002 for an update on VFP’s different affiliates and the financial statement of the Federation.
Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice to respondent
Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of the scope of the management audit
and requesting the suspension thereof until such time that specific areas of the audit shall have been agreed upon.
The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that a specific timeframe
had been set for the activity.
Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, praying for the
following reliefs:
1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction to enjoin
respondent Secretary and all those acting under his discretion and authority from: (a) implementing DND Department Circular No. 04;
and (b) continuing with the ongoing management audit of petitioner’s books of account;
2. After hearing the issues on notice –
a. Declare DND Department Circular No. 04 as null and void for being ultra vires;
b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction into a permanent one. 6
GIVING DUE COURSE TO THE PETITION
Petitioner asserts that, although cases which question the constitutionality or validity of administrative issuances are ordinarily filed
with the lower courts, the urgency and substantive importance of the question on hand and the public interest attendant to the subject
matter of the petition justify its being filed with this Court directly as an original action. 7
It is settled that the Regional Trial Court and the Court of Appeals also exercise original jurisdiction over petitions for certiorari and
prohibition. As we have held in numerous occasions, however, such concurrence of original jurisdiction does not mean that the party
seeking extraordinary writs has the absolute freedom to file his petition in the court of his choice. 8 Thus, in Commissioner of Internal
Revenue v. Leal,9 we held that:
Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals and this Court, however, does not
mean that the party seeking any of the extraordinary writs has the absolute freedom to file his petition in the court of his choice. The
hierarchy of courts in our judicial system determines the appropriate forum for these petitions. Thus, petitions for the issuance of the
said writs against the first level (inferior) courts must be filed with the Regional Trial Court and those against the latter, with the Court
of Appeals. A direct invocation of this Court’s original jurisdiction to issue these writs should be allowed only where there are special
and important reasons therefor, specifically and sufficiently set forth in the petition. This is the established policy to prevent inordinate
demands upon the Court’s time and attention, which are better devoted to matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court’s docket. Thus, it was proper for petitioner to institute the special civil action for certiorari with the
Court of Appeals assailing the RTC order denying his motion to dismiss based on lack of jurisdiction.
The petition itself, in this case, does not specifically and sufficiently set forth the special and important reasons why the Court should
give due course to this petition in the first instance, hereby failing to fulfill the conditions set forth in Commissioner of Internal
Revenue v. Leal.10 While we reiterate the policies set forth in Leal and allied cases and continue to abhor the propensity of a number
of litigants to disregard the principle of hierarchy of courts in our judicial system, we, however, resolve to take judicial notice of the
fact that the persons who stand to lose in a possible protracted litigation in this case are war veterans, many of whom have precious
little time left to enjoy the benefits that can be conferred by petitioner corporation. This bickering for the power over petitioner
corporation, an entity created to represent and defend the interests of Filipino veterans, should be resolved as soon as possible in order
for it to once and for all direct its resources to its rightful beneficiaries all over the country. All these said, we hereby resolve to give
due course to this petition.
ISSUES
Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department Circular No. 04 expanded the scope of
"control and supervision" beyond what has been laid down in Rep. Act No. 2640.11Petitioner further submits the following issues to
this Court:
1. Was the challenged department circular passed in the valid exercise of the respondent Secretary’s "control and supervision"?
2. Could the challenged department circular validly lay standards classifying the VFP, an essentially civilian organization, within the
ambit of statutes only applying to government entities?
3. Does the department circular, which grants respondent direct management control on the VFP, unduly encroach on the prerogatives
of VFP’s governing body?
At the heart of all these issues and all of petitioner’s prayers and assertions in this case is petitioner’s claim that it is a private non-
government corporation.
CENTRAL ISSUE:
IS THE VFP A PRIVATE CORPORATION?
Petitioner claims that it is not a public nor a governmental entity but a private organization, and advances this claim to prove that the
issuance of DND Department Circular No. 04 is an invalid exercise of respondent Secretary’s control and supervision. 12
This Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside what a subordinate has
done in the performance of his duties and to substitute the judgment of the former to that of the latter." 13 The power of supervision, on
the other hand, means "overseeing, or the power or authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their
duties."14 These definitions are synonymous with the definitions in the assailed Department Circular No. 04, while the other provisions
of the assailed department circular are mere consequences of control and supervision as defined.
Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners should be deemed to imply either of the
following: (1) that it is unconstitutional/impermissible for the law (Rep. Act No. 2640) to grant control and/or supervision to the
Secretary of National Defense over a private organization, or (2) that the control and/or supervision that can be granted to the
Secretary of National Defense over a private organization is limited, and is not as strong as they are defined above.
The following provision of the 1935 Constitution, the organic act controlling at the time of the creation of the VFP in 1960, is
relevant:
Section 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality thereof. 15
On the other hand, its counterparts in the 1973 and 1987 constitutions are the following:
Section 4. The National Assembly shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled by the government or any subdivision or instrumentality thereof. 16
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations.
Government-owned and controlled corporations may be created or established by special charters in the interest of the common good
and subject to the test of economic viability.17
From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by special laws of private corporations,
with the exception of government-owned or controlled corporations (GOCCs). Hence, it would be impermissible for the law to grant
control of the VFP to a public official if it were neither a public corporation, an unincorporated governmental entity, nor a
GOCC.18 Said constitutional provisions can even be read to prohibit the creation itself of the VFP if it were neither of the three
mentioned above, but we cannot go into that in this case since there is no challenge to the creation of the VFP in the petition as to
permit this Court from considering its nullity.
Petitioner vigorously argues that the VFP is a private non-government organization, pressing on the following contentions:
1. The VFP does not possess the elements which would qualify it as a public office, particularly the possession/delegation of a portion
of sovereign power of government to be exercised for the benefit of the public;
2. VFP funds are not public funds because –
a) No budgetary appropriations or government funds have been released to the VFP directly or indirectly from the Department of
Budget and Management (DBM);
b) VFP funds come from membership dues;
c) The lease rentals raised from the use of government lands reserved for the VFP are private in character and do not belong to the
government. Said rentals are fruits of VFP’s labor and efforts in managing and administering the lands for VFP purposes and
objectives. A close analogy would be any Filipino citizen settling on government land and who tills the land for his livelihood and
sustenance. The fruits of his labor belong to him and not to the owner of the land. Such fruits are not public funds.
3. Although the juridical personality of the VFP emanates from a statutory charter, the VFP retains its essential character as a private,
civilian federation of veterans voluntarily formed by the veterans themselves to attain a unity of effort, purpose and objectives, e.g. –
a. The members of the VFP are individual members and retirees from the public and military service;
b. Membership in the VFP is voluntary, not compulsory;
c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the GSIS Law, but by the Labor Code and the SSS
Law;
d. The VFP has its own Constitution and By-Laws and is governed by a Supreme Council who are elected from and by the members
themselves;
4. The Administrative Code of 1987 does not provide that the VFP is an attached agency, nor does it provide that it is an entity under
the control and supervision of the DND in the context of the provisions of said code.
5. The DBM declared that the VFP is a non-government organization and issued a certificate that the VFP has not been a direct
recipient of any funds released by the DBM.
These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact a public corporation. Before
responding to petitioner’s allegations one by one, here are the more evident reasons why the VFP is a public corporation:
(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as the Veterans Federation of the Philippines,
Defining its Powers, and for Other Purposes."
(2) Any action or decision of the Federation or of the Supreme Council shall be subject to the approval of the Secretary of Defense. 19
(3) The VFP is required to submit annual reports of its proceedings for the past year, including a full, complete and itemized report of
receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of National Defense. 20
(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among the government-owned and controlled
corporations that will not be privatized.
(5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC,21 this Court held in a minute resolution that the "VFP [Veterans
Federation Party] is an adjunct of the government, as it is merely an incarnation of the Veterans Federation of the Philippines.
And now to answer petitioner’s reasons for insisting that it is a private corporation:
1. Petitioner claims that the VFP does not possess the elements which would qualify it as a public office, particularly the
possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public;
In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that it is "the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public."
In the same case, we went on to adopt Mechem’s view that the delegation to the individual of some of the sovereign functions of
government is "[t]he most important characteristic" in determining whether a position is a public office or not. 23 Such portion of the
sovereignty of the country, either legislative, executive or judicial, must attach to the office for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. The most important characteristic
which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to
the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; – that some
portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. 24 The issue, therefore, is whether
the VFA’s officers have been delegated some portion of the sovereignty of the country, to be exercised for the public benefit.
In several cases, we have dealt with the issue of whether certain specific activities can be classified as sovereign functions. These
cases, which deal with activities not immediately apparent to be sovereign functions, upheld the public sovereign nature of operations
needed either to promote social justice25 or to stimulate patriotic sentiments and love of country.26
As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit and Cooperative Financing
Administration (ACCFA) v. Confederation of Unions in Government Corporations and Offices (CUGCO), 27 that the compelling
urgency with which the Constitution speaks of social justice does not leave any doubt that land reform is not an optional but a
compulsory function of sovereignty. The same reason was used in our declaration that socialized housing is likewise a sovereign
function.28 Highly significant here is the observation of former Chief Justice Querube Makalintal:
The growing complexities of modern society, however, have rendered this traditional classification of the functions of government
[into constituent and ministrant functions] quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise
and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer
for the public welfare than is any private individual or group of individuals," continue to lose their well-defined boundaries and to be
absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges
of the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards a greater socialization of economic forces.
Here, of course, this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of
principle concerning the promotion of social justice.29 (Emphasis supplied.)
It was, on the other hand, the fact that the National Centennial Celebrations was calculated to arouse and stimulate patriotic sentiments
and love of country that it was considered as a sovereign function in Laurel v. Desierto.30 In Laurel, the Court then took its cue from a
similar case in the United States involving a Fourth of July fireworks display. The holding of the Centennial Celebrations was held to
be an executive function, as it was intended to enforce Article XIV of the Constitution which provides for the conservation, promotion
and popularization of the nation’s historical and cultural heritage and resources, and artistic relations.
In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 264031 should most certainly fall
within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social justice,
but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our countrymen
who risked their lives and lost their limbs in fighting for and defending our nation. It would be injustice of catastrophic proportions to
say that it is beyond sovereignty’s power to reward the people who defended her.
Like the holding of the National Centennial Celebrations, the functions of the VFP are executive functions, designed to implement not
just the provisions of Rep. Act No. 2640, but also, and more importantly, the Constitutional mandate for the State to provide
immediate and adequate care, benefits and other forms of assistance to war veterans and veterans of military campaigns, their
surviving spouses and orphans.32
2. Petitioner claims that VFP funds are not public funds.
Petitioner claims that its funds are not public funds because no budgetary appropriations or government funds have been released to
the VFP directly or indirectly from the DBM, and because VFP funds come from membership dues and lease rentals earned from
administering government lands reserved for the VFP.
The fact that no budgetary appropriations have been released to the VFP does not prove that it is a private corporation. The DBM
indeed did not see it fit to propose budgetary appropriations to the VFP, having itself believed that the VFP is a private
corporation.33 If the DBM, however, is mistaken as to its conclusion regarding the nature of VFP’s incorporation, its previous
assertions will not prevent future budgetary appropriations to the VFP. The erroneous application of the law by public officers does
not bar a subsequent correct application of the law.34
Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be used only for public purposes. This is
mandated by the following provisions of Rep. Act No. 2640:
(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of the Veterans of the Philippines;"
(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the Supreme Council shall be subject to the
approval of the Secretary of National Defense." Hence, all activities of the VFP to which the Supreme Council can apply its funds are
subject to the approval of the Secretary of National Defense;
(3) Section 4 provides that "the Federation shall exist solely for the purposes of a benevolent character, and not for the pecuniary
benefit of its members;"1avvphil.net
(4) Section 6 provides that all funds of the VFP in excess of operating expenses are "reserved for disbursement, as the Supreme
Council may authorize, for the purposes stated in Section two of this Act;"
(5) Section 10 provides that "(a)ny donation or contribution which from time to time may be made to the Federation by the
Government of the Philippines or any of its subdivisions, branches, offices, agencies or instrumentalities shall be expended by the
Supreme Council only for the purposes mentioned in this Act."; and finally,
(6) Section 12 requires the submission of annual reports of VFP proceedings for the past year, including a full, complete and itemized
report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of National Defense.
It is important to note here that the membership dues collected from the individual members of VFP’s affiliate organizations do not
become public funds while they are still funds of the affiliate organizations. A close reading of Section 1 35 of Rep. Act No. 2640
reveals that what has been created as a body corporate is not the individual membership of the affiliate organizations, but merely the
aggregation of the heads of the affiliate organizations. Thus, only the money remitted by the affiliate organizations to the VFP partake
in the public nature of the VFP funds.
In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds because, inter alia, (1) they were meant to be for
the benefit of the coconut industry, one of the major industries supporting the national economy, and its farmers; and (2) the very laws
governing coconut levies recognize their public character. The same is true with regard to the VFP funds. No less public is the use for
the VFP funds, as such use is limited to the purposes of the VFP which we have ruled to be sovereign functions. Likewise, the law
governing VFP funds (Rep. Act No. 2640) recognizes the public character of the funds as shown in the enumerated provisions above.
We also observed in the same COCOFED case that "(e)ven if the money is allocated for a special purpose and raised by special
means, it is still public in character."37 In the case at bar, some of the funds were raised by even more special means, as the
contributions from affiliate organizations of the VFP can hardly be regarded as enforced contributions as to be considered taxes. They
are more in the nature of donations which have always been recognized as a source of public funding. Affiliate organizations of the
VFP cannot complain of their contributions becoming public funds upon the receipt by the VFP, since they are presumed aware of the
provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP funds can be used, but also provides
for the regulation of such funds by the national government through the Secretary of National Defense. There is nothing wrong,
whether legally or morally, from raising revenues through non-traditional methods. As remarked by Justice Florentino Feliciano in his
concurring opinion in Kilosbayan, Incorporated v. Guingona, Jr.38 where he explained that the funds raised by the On-line Lottery
System were also public in nature, thus:
x x x [T]he more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and
privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of
individual taxpayers and importers.
Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto 39 which was cited by Respondents. Petitioner
claims that among the reasons National Centennial Commission Chair Salvador Laurel was considered a public officer was the fact
that his compensation was derived from public funds. Having ruled that VFP funds from whatever source are public funds, we can
safely conclude that the Supreme Council’s compensation, taken as they are from VFP funds under the term "operating expenses" in
Section 6 of Rep. Act No. 2640, are derived from public funds. The particular nomenclature of the compensation taken from VFP
funds is not even of relevance here. As we said in Laurel concerning compensation as an element of public office:
Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions, expenses,
fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages. 40
3. Petitioner argues that it is a civilian federation where membership is voluntary.
Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct or ‘micromanagement’ of the VFP
precisely because it is essentially a civilian organization where membership is voluntary." 41 This reliance of petitioner on what has
"historically" been done is erroneous, since laws are not repealed by disuse, custom, or practice to the contrary. 42 Furthermore, as
earlier stated, the erroneous application of the law by public officers does not bar a subsequent correct application of the law. 43
Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any prohibition, express or implied,
against the grant of control and/or supervision to the Secretary of National Defense over a civilian organization. The Office of the
Secretary of National Defense is itself a civilian office, its occupant being an alter ego of the civilian Commander-in-Chief. This set-
up is the manifestation of the constitutional principle that civilian authority is, at all times, supreme over the military. 44 There being no
such constitutional prohibition, the creation of a civilian public organization by Rep. Act No. 2640 is not rendered invalid by its being
placed under the control and supervision of the Secretary of National Defense.
Petitioner’s stand that the VFP is a private corporation because membership thereto is voluntary is likewise erroneous. As stated
above, the membership of the VFP is not the individual membership of the affiliate organizations, but merely the aggregation of the
heads of such affiliate organizations. These heads forming the VFP then elect the Supreme Council and the other officers, 45 of this
public corporation.
4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an attached agency, and nor does it provide
that it is an entity under the control and supervision of the DND in the context of the provisions of said code.
The Administrative Code, by giving definitions of the various entities covered by it, acknowledges that its enumeration is not
exclusive. The Administrative Code could not be said to have repealed nor enormously modified Rep. Act No. 2640 by implication, as
such repeal or enormous modification by implication is not favored in statutory construction.46
5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization in its certification that the VFP "has
not been a direct recipient of any funds released by the DBM."
Respondents claim that the supposed declaration of the DBM that petitioner is a non-government organization is not persuasive, since
DBM is not a quasi-judicial agency. They aver that what we have said of the Bureau of Local Government Finance (BLGF) in
Philippine Long Distance Telephone Company (PLDT) v. City of Davao47 can be applied to DBM:
In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that petitioner’s exemption from local
taxes has been restored is a contemporaneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to great weight.
The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals, which is a special court created for the
purpose of reviewing tax cases, the BLGF was created merely to provide consultative services and technical assistance to local
governments and the general public on local taxation and other related matters. Thus, the rule that the "Court will not set aside
conclusions rendered by the CTA, which is, by the very nature of its function, dedicated exclusively to the study and consideration of
tax problems and has necessarily developed an expertise on the subject, unless there has been an abuse or improvident exercise of
authority" cannot apply in the case of the BLGF.
On this score, though, we disagree with respondents and hold that the DBM’s appraisal is considered persuasive. Respondents misread
the PLDT case in asserting that only quasi-judicial agencies’ determination can be considered persuasive. What the PLDT case points
out is that, for an administrative agency’s opinion to be persuasive, the administrative agency involved (whether it has quasi-judicial
powers or not) must be an expert in the field they are giving their opinion on.
The DBM is indeed an expert on determining what the various government agencies and corporations are. This determination is
necessary for the DBM to fulfill its mandate:
Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation of the National Budget with the goal
of attaining our national socio-economic plans and objectives.
The Department shall be responsible for the efficient and sound utilization of government funds and revenues to effectively achieve
our country's development objectives.48
The persuasiveness of the DBM opinion has, however, been overcome by all the previous explanations we have laid so far. It has also
been eclipsed by another similarly persuasive opinion, that of the Department of National Defense embodied in Department Circular
No. 04. The DND is clearly more of an expert with respect to the determination of the entities under it, and its Administrative Rules
and Regulations are entitled to great respect and have in their favor the presumption of legality.49
The DBM opinion furthermore suffers from its lack of explanation and justification in the "certification of non-receipt" where said
opinion was given. The DBM has not furnished, in said certification or elsewhere, an explanation for its opinion that VFP is a non-
government organization.
THE FATE OF DEPARTMENT CIRCULAR NO. 04
Our ruling that petitioner is a public corporation is determinative of whether or not we should grant petitioner’s prayer to declare
Department Circular No. 04 void.
Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control and supervision beyond what has
been laid down in Rep. Act No. 2640. Petitioner alleges that "(t)he equation of the meaning of `control’ and `supervision’ of the
Administrative Code of 1987 as the same `control and supervision’ under Rep. Act No. 2640, takes out the context of the original
legislative intent from the peculiar surrounding circumstances and conditions that brought about the creation of the VFP." 50 Petitioner
claims that the VFP "was intended as a self-governing autonomous body with a Supreme Council as governing authority," and that the
assailed circular "pre-empts VFP’s original self-governance and autonomy (in) representing veterans organizations, and substitutes
government discretion and decisions to that of the veterans’ own determination."51 Petitioner says that the circular’s provisions
practically render the Supreme Council inutile, despite its being the statutory governing body of the VFP. 52
As previously mentioned, this Court has defined the power of control as "the power of an officer to alter or modify or nullify or set
aside what a subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the
latter."53 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties."54 Under the Administrative Code of 1987:55
Supervision and control shall include the authority to act directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of
subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans
and programs. x x x
The definition of the power of control and supervision under Section 2 of the assailed Department Circular are synonymous with the
foregoing definitions. Consequently, and considering that petitioner is a public corporation, the provisions of the assailed Department
Circular No. 04 did not supplant nor modify the provisions of Republic Act No. 2640, thus not violating the settled rule that "all such
(administrative) issuances must not override, but must remain consistent and in harmony with the law they seek to apply or
implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law." 56
Section 3.2 of the assailed department circular, which authorizes the Secretary of National Defense to "x x x personally or through a
designated representative, require the submission of reports, documents and other papers regarding any or all of the Federation’s
business functions, x x x."
as well as Section 3.3 which allows the Secretary of DND to
x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities including, but not limited
to, the conduct of elections, the acquisition, management and dispositions of properties, the accounting of funds, financial interests,
stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the veterans.
are merely consequences of both the power of control and supervision granted by Rep. Act No. 2640. The power to alter or modify or
nullify or set aside what a subordinate has done in the performance of his duties, or to see to it that subordinate officers perform their
duties in accordance with law, necessarily requires the ability of the superior officer to monitor, as closely as it desires, the acts of the
subordinate.
The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04, which requires the preservation of the
records of the Federation and the submission to the Secretary of National Defense of annual and periodic reports.
Petitioner likewise claims that the assailed DND Department Circular No. 04 was never published, and hence void. 57 Respondents
deny such non-publication.58
We have put forth both the rule and the exception on the publication of administrative rules and regulations in the case of Tañada v.
Tuvera:59
x x x Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant
also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their duties.
Even assuming that the assailed circular was not published, its validity is not affected by such non-publication for the reason that its
provisions fall under two of the exceptions enumerated in Tañada.
Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to regulate a public corporation under the
control of DND, and not the public in general. As likewise discussed above, what has been created as a body corporate by Rep. Act
No. 2640 is not the individual membership of the affiliate organizations of the VFP, but merely the aggregation of the heads of the
affiliate organizations. Consequently, the individual members of the affiliate organizations, who are not public officers, are beyond the
regulation of the circular.
Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They add nothing to the law. They do not
affect the substantial rights of any person, whether party to the case at bar or not. In Sections 2 and 3, control and supervision are
defined, mentioning actions that can be performed as consequences of such control and supervision, but without specifying the
particular actions that shall be rendered to control and supervise the VFP. Section 6, in the same vein, merely state what the drafters of
the circular perceived to be consequences of being an attached agency to a regular department of the government, enumerating
sanctions and remedies provided by law that may be availed of whenever desired.
Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular, which provides that –
3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e. government
funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for
which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those exercising
authority over the financial affairs, transactions, and operations of the federation; disbursements or dispositions of government funds
or property shall invariably bear the approval of the proper officials.
Since we have also previously determined that VFP funds are public funds, there is likewise no reason to declare this provision
invalid. Section 3.4 is correct in requiring the VFP funds to be used for public purposes, but only insofar the term "public purposes" is
construed to mean "public purposes enumerated in Rep. Act No. 2640."
Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must indeed share in the fiscal
responsibility to the greatest extent.
As to petitioner’s allegation that VFP was intended as a self-governing autonomous body with a Supreme Council as governing
authority, we find that the provisions of Rep. Act No. 2640 concerning the control and supervision of the Secretary of National
Defense clearly withholds from the VFP complete autonomy. To say, however, that such provisions render the VFP inutile is an
exaggeration. An office is not rendered inutile by the fact that it is placed under the control of a higher office. These subordinate
offices, such as the executive offices under the control of the President, exercise discretion at the first instance. While their acts can be
altered or even set aside by the superior, these acts are effective and are deemed the acts of the superior until they are modified.
Surely, we cannot say that the offices of all the Department Secretaries are worthless positions.
In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on the contrary, perfectly in consonance
with Rep. Act No. 2640. Petitioner VFP is a public corporation. As such, it can be placed under the control and supervision of the
Secretary of National Defense, who consequently has the power to conduct an extensive management audit of petitioner corporation.
WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the Department of National Defense Department
Circular No. 04 is AFFIRMED.
SO ORDERED.
MINITA V. CHICO-NAZARIO 
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

 Associate Justice Asscociate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

DANTE O. TINGA CANCIO C. GARCIA

Associate Justice Asscociate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN 
Chief Justice

Republic of the Philippines

SUPREME COURT

Manila

 SECOND DIVISION

NATIONAL ELECTRIFICATION G.R. No. 158761

ADMINISTRATION,

Petitioner, Present:

QUISUMBING, J., Chairperson,

CARPIO,

- versus - CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

VICTORIANO B. GONZAGA, Promulgated:

Respondent.
December 4, 2007

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

For review under Rule 45 are the March 6, 2003 Decision[1] and June 10, 2003 Resolution[2] of the Court of Appeals (CA) in CA-G.R.
SP No. 68769, which dismissed petitioners appeal of the July 23, 2001 Order[3] of the Pagadian City Regional Trial Court (RTC),
Branch 21 in Civil Case No. 4282-2K, and denied petitioners Motion for Reconsideration, respectively.

On November 13, 2000, respondent Victoriano B. Gonzaga filed his Certificate of Candidacy for membership in the Board of
Directors of Zamboanga del Sur II Electric Cooperative, Inc., District II (ZAMSURECO). Later that day, the screening committee
resolved to disqualify respondent because his spouse was an incumbent member of theSangguniang Bayan of Diplahan, Zamboanga
del Sur. Based on the Electric Cooperative Election Code (ECEC), promulgated by petitioner National Electrification Administration
(NEA), a candidate whose spouse occupies an elective government position higher than Barangay Captain is prohibited to run as
director of an electric cooperative. ZAMSURECOs by-laws, however, do not provide for such ground for disqualification. [4]

On November 21, 2000, respondent filed a Petition for Prohibition and Damages, docketed as Civil Case No. 4282-2K with the
Pagadian City RTC.

ZAMSURECO filed a Motion to Dismiss and Answer on November 24, 2000, which the RTC denied. However, it issued a temporary
restraining order, ordering ZAMSURECOs officials to refrain from conducting the election for directorship set on December 2, 2000.

The RTC said that the petition was dismissible because of the failure of respondent to exhaust all administrative remedies, as required
by Section 2, 2.C of the ECEC Guidelines on the Conduct of District Elections for Electric Cooperative. The section required that a
protest arising from disqualification shall be filed with the screening committee in not less than FIVE (5) days before the election. The
screening committee shall decide the protest within FORTY-EIGHT (48) hours from receipt thereof. Failure of the applicant to file
his/her protest within the above-cited period shall be deemed a waiver of his right to protest.[5]

As observed by the RTC, respondent had urgently filed the petition on November 21, 2000 because the election sought to be
restrained was going to be held on December 2, 2000 and November 20 was a holiday. Under the circumstances, respondent had little
time to exhaust the remedy in Sec. 2 of the Guidelines, such that an exception could be made. More importantly, according to the
RTC, the rule on exhaustion of administrative remedies cannot be invoked in the instant case since the guidelines prescribing the
administrative remedy is a subject matter of the ECEC, which is at issue, and is exactly what is being sought to be invalidated. [6]

On December 12, 2000, respondent filed a motion to withdraw the amended petition, and to admit a second amended petition that
impleaded NEA as indispensable party.Respondent also averred that the ECEC was null and void because it had not been
published. On December 20, 2000, the RTC admitted the second amended petition, issued a writ of preliminary injunction to prevent
the conduct of election for directorship, issued summons to NEA, and required NEA to comment if the ECEC was published in any
newspaper of general circulation.[7]
 

On January 29, 2001, NEA filed a motion for extension of time to file an answer, and subsequently on April 10, 2001, a Motion for
Leave to Admit Pleading to which a Motion to Dismiss was attached. NEA questioned the jurisdiction of the RTC and alleged that
respondent failed to exhaust administrative remedies.[8]

In its July 23, 2001 Order,[9] the RTC denied petitioners Motion to Dismiss for being filed out of time. More importantly, it noted
NEAs failure to state whether the ECEC was indeed published in a newspaper of general circulation as required by the New Civil
Code and the Administrative Code of 1987. The RTC said the failure rendered the ECEC null and void. As regards the lack of
jurisdiction and non-exhaustion of administrative remedies, the RTC noted that NEA erroneously relied on Sec. 59 of Presidential
Decree No. (PD) 269 and misapplied the cases it cited.

According to the RTC, Sec. 59 of PD 269 refers to order, ruling or decision of the NEA in the exercise of NEAs quasi-judicial
functions. And the RTC noted that Secs. 51 to 58 refer to hearings, investigations, and procedures. On the other hand, the validity of
the ECEC, subject of the instant petition, was an exercise of NEAs quasi-legislative function or rule-making authority.

Further, according to the RTC, NEA took Sec. 58 of PD 269 out of context when it said Sec. 58 dealt with the administrative remedy
available to petitioner. It said that Sec. 58 presupposed a ruling or decision of the NEA and there was none in the case before it. The
RTC ruled in favor of Gonzaga, and ordered ZAMSURECO to accept Gonzagas certificate of candidacy for director. [10] The RTC
denied NEAs motion for reconsideration.

The CA Ruled that the Courts Have Jurisdiction Over

Issues on Legality of Codes

Aggrieved, petitioner appealed to the CA. The CA denied due course and dismissed the petition. It said that NEA was not exercising
its quasi-judicial powers but its rule-making authority. In the case before the trial court, the CA stressed that the issue involved the
interpretation of the ECEC, and to this extent, NEA had no jurisdiction because the issue is within the province of the courts.

The CA denied petitioners Motion for Reconsideration in its June 10, 2003 Resolution. Hence, we have this petition.

The Issues

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT APPLYING SECTION 59 OF P.D. 269

WHETHER OR NOT THE COURT OF APPEALS ERRED IN UPHOLDING THE TRIAL COURTS NULLIFICATION OF THE
ECEC

Issues Involving NEAs Rule-Making Authority

Are Cognizable by Regular Courts

The petition has no merit.

Sec. 59 of PD 269 provides:

SEC. 59. Court Review.The Supreme Court is hereby given jurisdiction to review any order, ruling or decision of the NEA and to
modify or set aside such order, ruling or decision when it clearly appears that there is no evidence before the NEA to support
reasonably such order, ruling or decision, or that the same is contrary to law, or that it was without the jurisdiction of the NEA. The
evidence presented to the NEA, together with the record of the proceedings before the NEA, shall be certified by the NEA to the
Supreme Court. Any order, ruling or decision of the NEA may likewise be reviewed by the Supreme Court upon writ of certiorari in
proper case. The procedure for review, except as herein provided, shall be presented by rules of the Supreme Court. Any order or
decision of the NEA may be reviewed on the application of any person or public service entity aggrieved thereby and who was a party
in the subject proceeding, by certiorari in appropriate cases or by a petition for review, which shall be filed within thirty (30) days
from the notification of the NEA order, decision or ruling on reconsideration. Said petition shall be placed on file in the office of the
Clerk for the Supreme Court who shall furnish copies thereof to the NEA and other interested parties.

Petitioner argues that based on the foregoing provision, only the Supreme Court has the authority to review the acts of NEA as an
administrative body with adjudicative and rule-making power. It cited NEA v. Mendoza, using the Courts pronouncement that:

[T]he power of judicial review of NEAs order or decision pertains to the Supreme Court as decreed in Section 59 of P.D. 269 which
vests specifically on the Supreme Court the jurisdiction to review any order, ruling or decision of the NEA and to modify or set aside
such orders, rulings or decisions.[11]

It is obvious that Sec. 59 of PD 269 refers to order, ruling or decision of NEA. What is being challenged in this case is the decision of
the screening committee of ZAMSURECO to disqualify respondent. Likewise assailed is the validity of the ECEC, particularly,
whether the requirement of publication was complied with. The ECEC was issued by NEA pursuant to its rule-making authority, not
its quasi-judicial function. Hence, the issue regarding the controversy over respondents disqualification and the question on the
ECECs validity are within the inherent jurisdiction of regular courts to review. Petitioners reliance on NEA is misplaced. The subject
in that case was the electricity rates charged by a cooperative, a matter which is clearly within NEAs jurisdiction. The issue in the
present petition, however, centers on the validity of NEAs rules in light of the publication requirements of the Administrative Code
and New Civil Code. The present issue is cognizable by regular courts.

With regard to the second issue, we find no error in the appellate and trial courts nullification of the ECEC. The CA correctly
observed that while ZAMSURECO complied with the requirements of filing the code with the University of
the Philippines Law Center, it offered no proof of publication in the Official Gazette nor in a newspaper of general
circulation. Without compliance with the requirement of publication, the rules and regulations contained in the ECEC cannot be
enforced and implemented.

 
Article 2 of the New Civil Code provides that laws shall take effect after fifteen (15) days following the completion of their
publication in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

Executive Order No. 292, otherwise known as the Administrative Code of 1987, reinforced the requirement of publication and outlined
the procedure, as follows:

Sec. 3. Filing. (1) Every Agency shall file with the University of the Philippines Law Center three (3) Certified copies of every rule
adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from that date shall not
thereafter be the basis of any sanction against any party or persons.

(2) The Records Officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of
disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

Sec. 4. Effectivity In addition to other rule-making requirements provided by law not inconsistent with this Book, each rule shall
become effective fifteen (15) days from the date of filing as above provided unless a different date is fixed by law, or specified in this
rule.

Sec. 18. When Laws Take Effect Laws shall take effect after Fifteen (15) days following the completion of their publication in the
Official Gazette or in a newspaper of general circulation, unless it is otherwise provided.

We have already emphasized and clarified the requirement of publication in this Courts Resolution in Taada v. Tuvera:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their
effectivity which shall begin fifteen (15) days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid
delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (Emphasis
supplied.) [12]
The aforequoted ruling was reiterated in Dadole v. Commission on Audit,[13] De Jesus v. Commission on Audit,[14] and Philippine
International Trading Corporation v. Commission on Audit.[15]

In the case at bar, the ECEC was issued by petitioner pursuant to its rule-making authority provided in PD 269, as amended,
particularly Sec. 24:

Section 24. Board of Directors. (a) The Management of a Cooperative shall be vested in its Board, subject to the supervision and
control of NEA which shall have the right to be represented and to participate in all Board meetings and deliberations and to approve
all policies and resolutions.

The composition, qualifications, the manner of elections and filling of vacancies, the procedures for holding meetings and other
similar provisions shall be defined in the By-laws of the Cooperative subject to NEA policies, rules and regulations x x x.

The ECEC applies to all electric cooperatives in the country. It is not a mere internal memorandum, interpretative regulation, or
instruction to subordinates. Thus, the ECEC should comply with the requirements of the Civil Code and the Administrative Code of
1987. In previous cases involving the election of directors for electric cooperatives, the validity of the ECEC was not put in issue. The
ECEC then enjoyed the presumption of validity. In this case, however, respondent directly questioned the validity of the ECEC in his
second amended petition. The trial court thus required petitioner to show proof of publication of the ECEC. Petitioner could have
easily provided such proof had the ECEC actually been published in the Official Gazette or newspaper of general circulation in the
country. This simple proof could have immediately laid this case to rest. Petitioners failure to do so only implies that the ECEC was
not published accordingly, a fact supported by the certification from the National Printing Office.

Lastly, petitioner avers that a petition for mandamus and prohibition should not have been resorted to by respondent. The proper
recourse, according to petitioner, is a petition for declaratory relief. Petitioner miserably errs on this point. Rule 63 on declaratory
relief states:

Section 1. Who may file petition.Any person interested under a deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a
declaration of his rights or duties thereunder.

As stated above, a requirement under Rule 63 is that the petition for declaratory relief must be filed before any breach or violation the
questioned document may cause. In the instant case, it cannot be gainsaid that a breach has not yet occurred since an actual dispute has
already arisen between ZAMSURECO and respondentthe screening committee of the cooperative on the erroneous implementation of
a code whose legality and implementation is being questioned.

 
On the other hand, it is familiar and fundamental doctrine that a writ of prohibition or mandamus may issue when x x x a board
unlawfully excludes another from x x x enjoyment of a right or office to which such other is entitled x x x. [16]

Considering that the screening committee of the board has excluded respondent from being elected as board member of
ZAMSURECO because of the latters improper implementation of the code, a petition for mandamus and prohibition is the proper
recourse.

WHEREFORE, we DENY the petition, and AFFIRM IN TOTO the March 6, 2003 Decision and June 10, 2003 Resolution in CA-
G.R. SP No. 68769. Costs against petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA

Associate Justice

 
 

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

CERTIFICATION

 Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice

 
SECOND DIVISION

SECURITIES AND EXCHANGE G.R. No. 164026

COMMISSION,

Petitioner, Present:

QUISUMBING, J.,

Chairperson,

- versus - CARPIO MORALES,

TINGA,

*
CHICO-NAZARIO, and

VELASCO, JR., JJ.,

GMA NETWORK, INC.,

Respondent. Promulgated:

December 23, 2008

x----------------------------------------------------------------------------x

DECISION

TINGA, J.:

Petitioner Securities and Exchange Commission (SEC) assails the Decision[1] dated February 20, 2004 of the Court of Appeals in CA-
G.R. SP No. 68163, which directed that SEC Memorandum Circular No. 1, Series of 1986 should be the basis for computing the filing
fee relative to GMA Network, Inc.s (GMAs) application for the amendment of its articles of incorporation for purposes of extending
its corporate term.

The undisputed facts as narrated by the appellate court are as follows:

 
On August 19, 1995, the petitioner, GMA NETWORK, INC., (GMA, for brevity), a domestic corporation, filed an application for
collective approval of various amendments to its Articles of Incorporation and By-Laws with the respondent Securities and Exchange
Commission, (SEC, for brevity). The amendments applied for include, among others, the change in the corporate name of petitioner
from Republic Broadcasting System, Inc. to GMA Network, Inc. as well as the extension of the corporate term for another fifty (50)
years from and after June 16, 2000.

Upon such filing, the petitioner had been assessed by the SECs Corporate and Legal Department a separate filing fee for the
application for extension of corporate term equivalent to 1/10 of 1% of its authorized capital stock plus 20% thereof or an amount
of P1,212,200.00.

On September 26, 1995, the petitioner informed the SEC of its intention to contest the legality and propriety of the said assessment.
However, the petitioner requested the SEC to approve the other amendments being requested by the petitioner without being deemed
to have withdrawn its application for extension of corporate term.

On October 20, 1995, the petitioner formally protested the assessment amounting to P1,212,200.00 for its application for extension of
corporate term.

On February 20, 1996, the SEC approved the other amendments to the petitioners Articles of Incorporation, specifically Article 1
thereof referring to the corporate name of the petitioner as well as Article 2 thereof referring to the principal purpose for which the
petitioner was formed.

On March 19, 1996, the petitioner requested for an official opinion/ruling from the SEC on the validity and propriety of the
assessment for application for extension of its corporate term.

Consequently, the respondent SEC, through Associate Commissioner Fe Eloisa C. Gloria, on April 18, 1996, issued its ruling
upholding the validity of the questioned assessment, thedispositive portion of which states:

In light of the foregoing, we believe that the questioned assessment is in accordance with law. Accordingly, you are hereby
required to comply with the required filing fee.

An appeal from the aforequoted ruling of the respondent SEC was subsequently taken by the petitioner on the ground that the
assessment of filing fees for the petitioners application for extension of corporate term equivalent to 1/10 of 1% of the authorized
capital stock plus 20% thereof is not in accordance with law.

 
On September 26, 2001, following three (3) motions for early resolution filed by the petitioner, the respondent SEC En Banc issued
the assailed order dismissing the petitioners appeal, thedispositive portion of which provides as follows:

WHEREFORE, for lack of merit, the instant Appeal is hereby dismissed.

SO ORDERED.[2] 

In its petition for review[3] with the Court of Appeals, GMA argued that its application for the extension of its corporate term is akin to
an amendment and not to a filing of new articles of incorporation. It further averred that SEC Memorandum Circular No. 2, Series of
1994, which the SEC used as basis for assessing P1,212,200.00 as filing fee for the extension of GMAs corporate term, is not valid.

The appellate court agreed with the SECs submission that an extension of the corporate term is a grant of a fresh license for a
corporation to act as a juridical being endowed with the powers expressly bestowed by the State. As such, it is not an ordinary
amendment but is analogous to the filing of new articles of incorporation.

However, the Court of Appeals ruled that Memorandum Circular No. 2, Series of 1994 is legally invalid and ineffective for not having
been published in accordance with law. The challenged memorandum circular, according to the appellate court, is not merely an
internal or interpretative rule, but affects the public in general. Hence, its publication is required for its effectivity.

The appellate court denied reconsideration in a Resolution[4] dated June 9, 2004.

In its Memorandum[5] dated September 6, 2005, the SEC argues that it issued the questioned memorandum circular in the exercise of
its delegated legislative power to fix fees and charges. The filing fees required by it are allegedly uniformly imposed on the transacting
public and are essential to its supervisory and regulatory functions. The fees are not a form of penalty or sanction and, therefore,
require no publication.

For its part, GMA points out in its Memorandum,[6] dated September 23, 2005, that SEC Memorandum Circular No. 1, Series of 1986
refers to the filing fees for amended articles of incorporation where the amendment consists of extending the term of corporate
existence. The questioned circular, on the other hand, refers only to filing fees for articles of incorporation. Thus, GMA argues that the
former circular, being the one that specifically treats of applications for the extension of corporate term, should apply to its case.

Assuming that Memorandum Circular No. 2, Series of 1994 is applicable, GMA avers that the latter did not take effect and cannot be
the basis for the imposition of the fees stated therein for the reasons that it was neither filed with the University of the Philippines Law
Center nor published either in the Official Gazette or in a newspaper of general circulation as required under existing laws.

It should be mentioned at the outset that the authority of the SEC to collect and receive fees as authorized by law is not in question.
[7]
 Its power to collect fees for examining and filing articles of incorporation and by-laws and amendments thereto, certificates of
increase or decrease of the capital stock, among others, is recognized. Likewise established is its power under Sec. 7 of P.D. No. 902-
A to recommend to the President the revision, alteration, amendment or adjustment of the charges which it is authorized to collect.
 

The subject of the present inquiry is not the authority of the SEC to collect and receive fees and charges, but rather the validity of its
imposition on the basis of a memorandum circular which, the Court of Appeals held, is ineffective.

Republic Act No. 3531 (R.A. No. 3531) provides that where the amendment consists in extending the term of corporate existence, the
SEC shall be entitled to collect and receive for the filing of the amended articles of incorporation the same fees collectible under
existing law as the filing of articles of incorporation.[8] As is clearly the import of this law, the SEC shall be entitled to collect and
receive the same fees it assesses and collects both for the filing of articles of incorporation and the filing of an amended articles of
incorporation for purposes of extending the term of corporate existence.

The SEC, effectuating its mandate under the aforequoted law and other pertinent laws,[9] issued SEC Memorandum Circular No. 1,
Series of 1986, imposing the filing fee of 1/10 of 1% of the authorized capital stock but not less than P300.00 nor more
than P100,000.00 for stock corporations, and 1/10 of 1% of the authorized capital stock but not less than P200.00 nor more
than P100,000.00 for stock corporations without par value, for the filing of amended articles of incorporation where the amendment
consists of extending the term of corporate existence.

Several years after, the SEC issued Memorandum Circular No. 2, Series of 1994, imposing new fees and charges and deleting the
maximum filing fee set forth in SEC Circular No. 1, Series of 1986, such that the fee for the filing of articles of incorporation became
1/10 of 1% of the authorized capital stock plus 20% thereof but not less thanP500.00.

A reading of the two circulars readily reveals that they indeed pertain to different matters, as GMA points out. SEC Memorandum
Circular No. 1, Series of 1986 refers to the filing fee for the amendment of articles of incorporation to extend corporate life, while
Memorandum Circular No. 2, Series of 1994 pertains to the filing fee for articles of incorporation. Thus, as GMA argues, the former
circular, being squarely applicable and, more importantly, being more favorable to it, should be followed.

What this proposition fails to consider, however, is the clear directive of R.A. No. 3531 to impose the same fees for the filing of
articles of incorporation and the filing of amended articles of incorporation to reflect an extension of corporate term. R.A. No. 3531
provides an unmistakable standard which should guide the SEC in fixing and imposing its rates and fees. If such mandate were the
only consideration, the Court would have been inclined to rule that the SEC was correct in imposing the filing fees as outlined in the
questioned memorandum circular, GMAs argument notwithstanding.

However, we agree with the Court of Appeals that the questioned memorandum circular is invalid as it does not appear from the
records that it has been published in the Official Gazette or in a newspaper of general circulation. Executive Order No. 200, which
repealed Art. 2 of the Civil Code, provides that laws shall take effect after fifteen days following the completion of their publication
either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

In Taada v. Tuvera,[10] the Court, expounding on the publication requirement, held:

 
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for
their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. [11]

The questioned memorandum circular, furthermore, has not been filed with the Office of the National Administrative Register of the
University of the Philippines Law Center as required in the Administrative Code of 1987.[12]

In Philsa International Placement and Services Corp. v. Secretary of Labor and Employment,[13] Memorandum Circular No. 2, Series
of 1983 of the Philippine Overseas Employment Administration, which provided for the schedule of placement and documentation
fees for private employment agencies or authority holders, was struck down as it was not published or filed with the National
Administrative Register.

The questioned memorandum circular, it should be emphasized, cannot be construed as simply interpretative of R.A. No. 3531. This
administrative issuance is animplementation of the mandate of R.A.

No. 3531 and indubitably regulates and affects the public at large. It cannot, therefore, be considered a mere internal rule or regulation,
nor an interpretation of the law, but a rule which must be declared ineffective as it was neither published nor filed with the Office of
the National Administrative Register.

A related factor which precludes consideration of the questioned issuance as interpretative in nature merely is the fact the SECs
assessment amounting to P1,212,200.00 is exceedingly unreasonable and amounts to an imposition. A filing fee, by legal definition, is
that charged by a public official to accept a document for processing. The fee should be just, fair, and proportionate to the service for
which the fee is being collected, in this case, the examination and verification of the documents submitted by GMA to warrant an
extension of its corporate term.

Rate-fixing is a legislative function which concededly has been delegated to the SEC by R.A. No. 3531 and other pertinent laws. The
due process clause, however, permits the courts to determine whether the regulation issued by the SEC is reasonable and within the
bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a persons right to property.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 68163, dated February 20, 2004,
and its Resolution, dated June 9, 2004, are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

 
DANTE O. TINGA Associate Justice 

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

LEONARDO A. QUISUMBING

Associate Justice

Chairperson, Second Division

CERTIFICATION 

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

REYNATO S. PUNO

Chief Justice

 
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 187587               June 5, 2013

NAGKAKAISANG MARALITA NG SITIO MASIGASIG, INC., Petitioner, 

vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL
DEFENSE, Respondent.

x-----------------------x

G.R. No. 187654

WESTERN BICUTAN LOT OWNERS ASSOCIATION, INC., represented by its Board of Directors, Petitioner, 
vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL
DEFENSE, Respondent.

DECISION

SERENO, CJ.:

Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the Decision 1promulgated on 29 April
2009 of the Court of Appeals in CA-G.R. SP No. 97925.

THE FACTS

The facts, as culled from the records, are as follows:

On 12 July 1957, by virtue of Proclamation No. 423, President Carlos P. Garcia reserved parcels of land in the Municipalities of Pasig,
Taguig, Parañaque, Province of Rizal and Pasay City for a military reservation. The military reservation, then known as Fort William
McKinley, was later on renamed Fort Andres Bonifacio (Fort Bonifacio).

On 28 May 1967, President Ferdinand E. Marcos (President Marcos) issued Proclamation No. 208, amending Proclamation No. 423,
which excluded a certain area of Fort Bonifacio and reserved it for a national shrine. The excluded area is now known as Libingan ng
mga Bayani, which is under the administration of herein respondent Military Shrine Services – Philippine Veterans Affairs Office
(MSS-PVAO).

Again, on 7 January 1986, President Marcos issued Proclamation No. 2476, further amending Proclamation No. 423, which excluded
barangaysLower Bicutan, Upper Bicutan and Signal Village from the operation of Proclamation No. 423 and declared it open for
disposition under the provisions of Republic Act Nos. (R.A.) 274 and 730.

At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum, which reads:

"P.S. – This includes Western Bicutan

(SGD.) Ferdinand E. Marcos"2

The crux of the controversy started when Proclamation No. 2476 was published in the Official Gazette 3 on 3 February 1986, without
the above-quoted addendum.
Years later, on 16 October 1987, President Corazon C. Aquino (President Aquino) issued Proclamation No. 172 which substantially
reiterated Proclamation No. 2476, as published, but this time excluded Lots 1 and 2 of Western Bicutan from the operation of
Proclamation No. 423 and declared the said lots open for disposition under the provisions of R.A. 274 and 730.

Memorandum Order No. 119, implementing Proclamation No. 172, was issued on the same day.

Through the years, informal settlers increased and occupied some areas of Fort Bonifacio including portions of the Libingan ng mga
Bayani. Thus, Brigadier General Fredelito Bautista issued General Order No. 1323 creating Task Force Bantay (TFB), primarily to
prevent further unauthorized occupation and to cause the demolition of illegal structures at Fort Bonifacio.

On 27 August 1999, members of petitioner Nagkakaisang Maralita ng Sitio Masigasig, Inc. (NMSMI) filed a Petition with the
Commission on Settlement of Land Problems (COSLAP), where it was docketed as COSLAP Case No. 99-434. The Petition prayed
for the following: (1) the reclassification of the areas they occupied, covering Lot 3 of SWO-13-000-298 of Western Bicutan, from
public land to alienable and disposable land pursuant to Proclamation No. 2476; (2) the subdivision of the subject lot by the Director
of Lands; and (3) the Land Management Bureau’s facilitation of the distribution and sale of the subject lot to its bona fide occupants. 4

On 1 September 2000, petitioner Western Bicutan Lot Owners Association, Inc. (WBLOAI) filed a Petition-in-Intervention
substantially praying for the same reliefs as those prayed for by NMSMI with regard to the area the former then occupied covering Lot
7 of SWO-00-001302 in Western Bicutan.5

Thus, on 1 September 2006, COSLAP issued a Resolution6 granting the Petition and declaring the portions of land in question
alienable and disposable, with Associate Commissioner Lina Aguilar-General dissenting. 7

The COSLAP ruled that the handwritten addendum of President Marcos was an integral part of Proclamation No. 2476, and was
therefore, controlling. The intention of the President could not be defeated by the negligence or inadvertence of others. Further,
considering that Proclamation

No. 2476 was done while the former President was exercising legislative powers, it could not be amended, repealed or superseded, by
a mere executive enactment. Thus, Proclamation No. 172 could not have superseded much less displaced Proclamation No. 2476, as
the latter was issued on October 16, 1987 when President Aquino’s legislative power had ceased.

In her Dissenting Opinion, Associate Commissioner Lina AguilarGeneral stressed that pursuant to Article 2 of the Civil Code,
publication is indispensable in every case. Likewise, she held that when the provision of the law is clear and unambiguous so that
there is no occasion for the court to look into legislative intent, the law must be taken as it is, devoid of judicial addition or
subtraction.8 Finally, she maintained that the Commission had no authority to supply the addendum originally omitted in the published
version of Proclamation No. 2476, as to do so would be tantamount to encroaching on the field of the legislature.

Herein respondent MSS-PVAO filed a Motion for Reconsideration,9 which was denied by the COSLAP in a Resolution dated 24
January 2007.10

MSS-PVAO filed a Petition with the Court of Appeals seeking to reverse the COSLAP Resolutions dated 1 September 2006 and 24
January 2007.

Thus, on 29 April 2009, the then Court of Appeals First Division rendered the assailed Decision granting MSS-PVAO’s Petition, the
dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby GRANTED. The Resolutions dated September 1, 2006 and
January 24, 2007 issued by the Commission on the Settlement of Land Problems in COSLAP Case No. 99-434 are hereby
REVERSED and SET ASIDE. In lieu thereof, the petitions of respondents in COSLAP Case No. 99-434 are DISMISSED, for lack of
merit, as discussed herein. Further, pending urgent motions filed by respondents are likewise

DENIED. SO ORDERED.11 (Emphasis in the original)

Both NMSMI12 and WBLOAI13 appealed the said Decision by filing their respective Petitions for Review with this Court under Rule
45 of the Rules of Court.

THE ISSUES
Petitioner NMSMI raises the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT PROCLAMATION
NO. 2476 DID NOT INCLUDE ANY PORTION OF WESTERN BICUTAN AS THE HANDWRITTEN NOTATION BY
PRESIDENT MARCOS ON THE SAID PROCLAMATION WAS NOT PUBLISHED IN THE OFFICIAL GAZETTE.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT PROCLAMATION
NO. 172 LIKEWISE EXCLUDED THE PORTION OF LAND OCCUPIED BY MEMBER OF HEREIN PETITIONER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT THE HON. COSLAP
HAS BROAD POWERS TO RECOMMEND TO THE PRESIDENT >INNOVATIVE MEASURES TO RESOLVE
EXPEDITIOUSLY VARIOUS LAND CASES.14

On the other hand, petitioner WBLOAI raises this sole issue:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE SUBJECT PROPERTY
WAS NOT DECLARED ALIENABLE AND DISPOSABLE BY VIRTUE OF PROCLAMATION NO. 2476 BECAUSE THE
HANDWRITTEN ADDENDUM OF PRESIDENT FERDINAND E. MARCOS INCLUDING WESTERN BICUTAN IN
PROCLAMATION NO. 2476 WAS NOT INCLUDED IN THE PUBLICATION.15

Both Petitions boil down to the principal issue of whether the Court of Appeals erred in ruling that the subject lots were not alienable
and disposable by virtue of Proclamation No. 2476 on the ground that the handwritten addendum of President Marcos was not
included in the publication of the said law.

THE COURT’S RULING

We deny the Petitions for lack of merit.

Considering that petitioners were occupying Lots 3 and 7 of Western Bicutan (subject lots), their claims were anchored on the
handwritten addendum of President Marcos to Proclamation No. 2476. They allege that the former President intended to include all
Western Bicutan in the reclassification of portions of Fort Bonifacio as disposable public land when he made a notation just below the
printed version of Proclamation No. 2476.

However, it is undisputed that the handwritten addendum was not included when Proclamation No. 2476 was published in the Official
Gazette.

The resolution of whether the subject lots were declared as reclassified and disposable lies in the determination of whether the
handwritten addendum of President Marcos has the force and effect of law. In relation thereto, Article 2 of the Civil Code expressly
provides:

ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such publication.

Under the above provision, the requirement of publication is indispensable to give effect to the law, unless the law itself has otherwise
provided. The phrase "unless otherwise provided" refers to a different effectivity date other than after fifteen days following the
completion of the law’s publication in the Official Gazette, but does not imply that the requirement of publication may be dispensed
with. The issue of the requirement of publication was already settled in the landmark case Tañada v. Hon. Tuvera, 16 in which we had
the occasion to rule thus:

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be
shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision, is
the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided."

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission
would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the
legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of
publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced
as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence.
Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on
prescription, which must also be communicated to the persons they may affect before they can begin to operate.

xxxx

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people
in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the
public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which
any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a
law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the
legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual,
or some of the people only, and not to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their
effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

xxxx

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and
directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a
public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which
that body is supposed to enforce.

xxxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the
laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement.1âwphi1 This is not even substantial compliance. This was the manner, incidentally, in which the
General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the
Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law.

xxxx

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets.
Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a
valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that
cannot feint, parry or cut unless the naked blade is drawn. (Emphases supplied)

Applying the foregoing ruling to the instant case, this Court cannot rely on a handwritten note that was not part of Proclamation No.
2476 as published. Without publication, the note never had any legal force and effect.

Furthermore, under Section 24, Chapter 6, Book I of the Administrative Code, "the publication of any law, resolution or other official
documents in the Official Gazette shall be prima facie evidence of its authority." Thus, whether or not President Marcos intended to
include Western Bicutan is not only irrelevant but speculative. Simply put, the courts may not speculate as to the probable intent of the
legislature apart from the words appearing in the law.17 This Court cannot rule that a word appears in the law when, evidently, there is
none. In Pagpalain Haulers, Inc. v. Hon. Trajano,18 we ruled that "under Article 8 of the Civil Code, 'judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.' This does not mean, however, that
courts can create law. The courts exist for interpreting the law, not for enacting it. To allow otherwise would be violative of the
principle of separation of powers, inasmuch as the sole function of our courts is to apply or interpret the laws, particularly where gaps
or lacunae exist or where ambiguities becloud issues, but it will not arrogate unto itself the task of legislating." The remedy sought in
these Petitions is not judicial interpretation, but another legislation that would amend the law ‘to include petitioners' lots in the
reclassification.

WHEREFORE, in view of the foregoing, the instant petitions are hereby DENIED for lack of merit. The assailed Decision of the
Court of Appeals in CA-G.R. CV No. 97925 dated 29 April 2009 is AFFIRMED in toto. Accordingly, this Court's status quo order
dated 17 June 2009 is hereby LIFTED. Likewise, all pending motions to cite respondent in contempt is DENIED, having been
rendered moot. No costs.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice