Republic of the PhilippinesSUPREME COURTManila
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
losReglamentos, Reales decretos, Instrucciones,Circularesy 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 Espaol, 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 costsde oficio.
Republic of the PhilippinesSUPREME COURTManila
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 withGerona, 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 Tingvs. 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
therationaleof 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"(Peoplevs. Rosenthal, 68 Phil. 328); "public
welfare" (Municipality of Cardona vs. Binangonan, 36 Phil. 547);
Interest of law and order"(Rubivs. Provincial Board, 39 Phil., 669;
justice and equity and the substantial merits of the case" (Int.
Hardwoodvs. Pagil 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.
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, 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, Malacaang
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,1as 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
question2said 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 ofSeverino vs. Governor General,3this 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,4this 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 Pambansaand for the diligent ones,
ready access to the legislative recordsno 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 inPeralta vs. COMELEC7:
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 inChicot County Drainage District
vs. Baxter Bank8to 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 inRutter vs.
Esteban9sustained 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.10Neither 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. InPesigan vs.
Angeles,11the 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.
Republic of the PhilippinesSUPREME COURTManila
G.R. No. L-63915 December 29, 1986
LORENZO M. TA;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.
R E S O L U T I O N
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 Comment3required 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 Reply4refuting 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 theOfficial 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,6is 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 viresact 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 thatallstatutes, 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.7The
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
Gazette8and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed.9One
reserved his vote10and another merely acknowledged the need for due
publication without indicating where it should be made.11It 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.
Republic of the PhilippinesSUPREME COURTManila
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.
D E C I S I O N
CORONA,J.:
This petition for review1seeks to annul the two decisions of
respondent Commission on Audit (COA)2dated July 26, 20013and
January 30, 2003,4affirming the September 21, 1998 ruling5of the
National Government Audit Office (NGAO). The latter in turn upheld
Auditor Ernesto C. Eulalia's order disallowing the payment
ofhonorariato the representatives of petitioner'sex officiomembers,
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 asex officiomembers.6
It appears that after personally attending the initial NAC
meetings, the threeex officiomembers turned over said
responsibility to their representatives who were
paidhonorariabeginning December 12, 1994. However, on October 15,
1997, NAC resident auditor Eulalia disallowed on audit the payment
ofhonorariato these representatives amounting toP255,750 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 AverillaDepartment of National Defense
P2,500.00
2.
Ramon MartinezDepartment of National Defense
73,750.00
3.
Cielito Mindaro,Department of Justice
18,750.00
4.
Purita DeynataDepartment of Justice
62,000.00
5.
Alberto BernardoDepartment of the Interior And Local
Government
71,250.00
6.
Stephen VillaflorDepartment of the Interior and Local
Government
26,250.00
7.
Artemio AspirasDepartment 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 beappointedby the President;
b) Three (3) Commissioners who shall beappointedby 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
Theex officiomembers maydesignatetheirrepresentativesto the
Commission. Said Representatives shall beentitled toper
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 ofhonorariato theex officiomembers'
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 ofhonorariaunder said Memorandum; (3)
applying the Memorandum to the NACex 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 ofhonorariaon the ground of lack of authority of
representatives to attend the NAC meetings in behalf of theex
officiomembers.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 grantper diem,honorariaor any allowance whatsoever to the NACex
officiomembers' 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 toexamine, 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, todefine 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 lawshall be passedexempting any entityof 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 Auditto 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 inCivil Liberties Union v. Executive
Secretaryto the present. In the Civil Liberties Union case,
theSupreme 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 decisionbecame 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 theOfficial Gazette, unless it
is otherwise provided. This Code shall take effect one year after
such publication.
We clarified this publication requirement inTaada 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 inCivil 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."
x x x x x x x x x
[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.
x x x x x x x x x
But what is indeed significant is the fact thatalthough 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.
x x x x x x x x x
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. . . .
x x x x x x x x x
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 anex-officiocapacity as provided by law and
asrequiredby 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.
x x x x x x x x x
[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 termex-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 isone 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.
x x x x x x x x x
Theex-officioposition being actually and in legal contemplation
part of the principal office, it follows thatthe official concerned
has no right to receive additional compensation for hisservices in
the said position.The reason is that these services arealready paid
for and covered by the compensation attached to his principal
office.x x x
x x x x x x x x x
[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 theCivil Liberties Uniondoctrine, form part
of our legal system.12Supreme Court decisions assume the same
authority as valid statutes.13The 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.
InCivil Liberties Union, we elucidated onthe 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 NACex officiomembers' representatives who were all
appointive officials with ranks below Assistant Secretary are
covered by the two constitutional prohibitions.
First, the NACex officiomembers' 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.
x x x x x x x x x
(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.
x x x x x x x x x
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 theex
officiomembers 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,16and not a mere designation.
Second, theex officiomembers' representatives are also covered
by the strict constitutional prohibition imposed on the President
and his official family.
Again, inCivil Liberties Union,we held that cabinet secretaries,
including their deputies and assistants, who hold positions inex
officiocapacities, 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, theex officiomembers
were not entitled to, and were in fact prohibited from, collecting
extra compensation, whether it was calledper diem,
honorarium,allowance or some other euphemism. Such additional
compensation is prohibited by the Constitution.
Furthermore, inde la Cruz vs. COA17andBitonio vs. COA,18we
upheld COA's disallowance of the payment ofhonorariaandper diemsto
the officers concerned who sat asex officiomembers or alternates.
The agent, alternate or representative cannot have a better right
than his principal, theex officiomember. The laws, rules,
prohibitions or restrictions that cover theex officiomember apply
with equal force to his representative. In short, since theex
officiomember is prohibited from receiving additional compensation
for a position held in anex 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
NACauthorizing 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:
Theex officiomembersmay designate their representatives to the
Commission.Said Representatives shall beentitled to per
diems,allowances, bonuses and other benefitsas 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 theex
officiomembers 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 theex officiomembers for purposes of determining
quorum, participating in deliberations and making decisions.
Lastly, we disagree with NAC's position that the representatives
arede factoofficers and as such are entitled to allowances,
pursuant to our pronouncement inCivil Liberties Union:
"where there is node jureofficer, ade factoofficer, 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."
Ade factoofficer "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 consideredde factoofficers 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 inCivil Liberties Unionprior to their
receipt of such allowances.
WHEREFOREthe petition is herebyDISMISSEDfor lack of merit.
SO ORDERED.
Republic of the PhilippinesSUPREME COURTManila
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.
D E C I S I O N
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. 2640,1a statute
approved on 18 June 1960.
On 15 April 2002, petitioners 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 Veterans 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 12and 23of 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 Federations
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, petitioners 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."4The 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 petitioners
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 petitioners President
that the Management Audit Group headed by the Undersecretary would
be paying petitioner a visit on 30 August 2002 for an update on
VFPs 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 petitioners
books of account;
2. After hearing the issues on notice
a. Declare DND Department Circular No. 04 as null and void
for