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. 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.
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. 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, 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, 837839, 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, 788852, 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 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 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
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
clause is not that precise.

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.
Footnotes
1 Section 6. The right of the people to information on matters of public concern shag be recognized, access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, shag be afforded the
citizens subject to such limitation as may be provided by law.
2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA
151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.
3 16 Phil. 366, 378.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines
vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs.
Cosalan, 46 Phil. 179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150.
7 82 SCRA 30, dissenting opinion.
8 308 U.S. 371, 374.
9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the Government Printing
Office, failed to respond to her letter-request regarding the respective dates of publication in the Official Gazette of the
presidential issuances listed therein. No report has been submitted by the Clerk of Court as to the publication or nonpublication of other presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec. 21 of the
Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana,
U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
Teehankee, J.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all statute laws ... and no
general law shall be in force until published." See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing
Constitution of Indiana, U.S.A.

Republic of the Philippines

SUPREME COURT
Manila
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.
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. 1 Specifically, 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 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 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 socalled 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 oneman 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 oneman 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.
Footnotes
1 Rollo pp. 242-250.
2 Ibid, pp. 244-248.
3 Id, pp. 271-280.
4 Id, pp. 288-299.
5 Id, pp. 320-322.
6 136 SCRA 27,46.
7 Rollo, p. 24,6.
8 Justices Venicio Escolin (ponente), Claudio Teehankee. Ameurfina Melencio-Herrera, and Lorenzo Relova.
9 Chief Justice Enrique M. Fernando and Justices Felix V. Makasiar, Vicente Abad-Santos, Efren 1. Plana Serafin P. Cuevas. and
Nestor B. Alampay.
10 Justice Hugo E. Gutierrez, Jr.
11 Justice B. S. de la Fuente.

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 officio members.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
1.
2.

AMOUNT

Cesar Averilla
Department of National Defense

P 2,500.00

Ramon Martinez
Department of National Defense

73,750.00

3.
4.
5.
6.
7.

Cielito Mindaro,
Department of Justice

18,750.00

Purita Deynata
Department of Justice

62,000.00

Alberto Bernardo
Department of the Interior And Local Government

71,250.00

Stephen Villaflor
Department of the Interior and Local Government

26,250.00

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 officio
members' 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. 97038 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 Taada 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 selfexecuting 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
xx

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 of honoraria 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 officio capacity, 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.19 Erroneous 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 exofficio 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,
Footnotes
*

on official leave.

Under Rule 64 of the 1997 Rules of Civil Procedure.

Composed by COA Chairman Guillermo N. Carague, Commissioners Raul C. Flores

and Emmanuel M. Dalman.
3

COA Decision No. 2001-144

COA Decision No. 2003-026.

NGAO Decision No. 98-006, penned by COA Director Juanito G. Espino, Jr.

Section 4, Proclamation No. 347, March 25, 1994, as amended by Proclamation No.
724, May 17, 1996, Proclamation No. 21, September 23, 1998, Proclamation Nos. 10 and
10-A and Proclamation No. 405, October 26, 2000.
7

Rollo, pp. 78-79.

Rollo, pp. 53-54.

Rollo, pp. 90-91.

10

146 SCRA 446, 453-454 [1986].

11

194 SCRA 317 [1991].

12

Article 8 of the Civil Code of the Philippines.

13

Floresca vs. Philex Mining Corporation, 136 SCRA 141 [1985].

14

People vs. Licera, 65 SCRA 270 [1975].

15

Dimaandal vs. COA, 291 SCRA 322 [1998]; Santiago vs. COA, 199 SCRA 125 [1991].

16

Dimaandal vs. COA, 291 SCRA 322, 329 [1998].

17

371 SCRA 157 [2001].

18

G.R. No. 147392, March 12, 2004.

19

Philippine Basketball Association vs. Court of Appeals, 337 SCRA 358 [2000]; Baybay
Water District vs. COA, 374 SCRA 482 [2002].
20

COA Decision No. 2001-144; Rollo, p. 358.

21

Dimaandal vs. COA, 291 SCRA 322, 329 [1998].

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, 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 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
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."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 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 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
Courts 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 Courts time and attention, which are
better devoted to matters within its exclusive jurisdiction, and to prevent further over-crowding
of the Courts 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. 2640.11 Petitioner further submits the following issues to this Court:
1. Was the challenged department circular passed in the valid exercise of the respondent
Secretarys "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 VFPs governing body?
At the heart of all these issues and all of petitioners prayers and assertions in this case is
petitioners 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 Secretarys 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 petitioners 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 VFPs 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 petitioners 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 petitioners 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 Mechems 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 VFAs 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 nations 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 sovereigntys 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 VFPs 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
VFPs affiliate organizations do not become public funds while they are still funds of the affiliate
organizations. A close reading of Section 135 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. Desierto39 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 Councils 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.
Petitioners 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
petitioners 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 DBMs 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 agencys 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 petitioners 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 selfgoverning autonomous body with a Supreme Council as governing authority," and that the
assailed circular "pre-empts VFPs 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 circulars 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 Federations 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 Taada 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
Taada.
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 petitioners 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
Associate Justice

LEONARDO A. QUISUMBING
Asscociate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

ANGELINA SANDOVALGUTIERREZ
Asscociate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Asscociate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

ADOLFO S. AZCUNA
Asscociate Justice

DANTE O. TINGA
Associate Justice

CANCIO C. GARCIA
Asscociate Justice

C E R T I F I C AT I O N
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

Footnotes
1

REPUBLIC ACT No. 2640: 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

Sec. 1. The following persons, to wit: Emilio Aguinaldo, of Associacion de los

Veteranos de la Revolucion; Margarito Torralba of the AFP Retired Veterans Association
(AFREVA); Lorenzo B. Cabrera of the Confederation of the Filipino Veterans
(CONVETS); Teodoro V. Kalaw of the Defenders of Bataan and Corregidor; Fausto S.
Alberto of the ECLGA Veterans Association; Enrique C. Rimando of the FAIT Veterans
Legion; Francisco L. Gonzales of the Filipino Disabled Veterans Association; Basilia M.
Baja of the Gold Star Mothers and United War Widows and Orphans Association of the
Philippines; Simeon C. Medalla of the Hunters ROTC Association; Antonio F. Garcia of
the Magsaysay Veterans Legion; Dionisio V. Ojeda Guaof the PEFTOK Veterans
Association; Primitivo Lovina of the Philippine National Guard Veterans Legion; Jose V.
Andrada of the Philippine Naval Veterans Legion; Jaime Piopongco of the Philippine
Veterans Legion; Sofia L. Prudenciado of the Philippine Association of War Widows,
Parents, and Orphans; Eugenio B. Recto of the United Disabled Veterans Association of
the Philippines; and Gaudencio Antonino of the USAFIP NL 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," hereinafter referred to as the Federation. The principal office of the
Federation shall be in the City of Manila, Philippines.
3

Sec. 2. The said Federation shall have perpetual succession, with power to sue and be
sued; to hold such real and personal property as shall be necessary for its purposes, and to

receive real and personal property by gift, devise or bequest; to invest its funds for the
exclusive benefit of the veterans of the Philippines; to extend, within its capabilities, all
necessary assistance, and operate such enterprises as may further the material or moral
well-being of veterans; to adopt a seal, and to alter or destroy the same at pleasure; to
have offices and conduct its business and affairs in the City of Manila and/or provinces,
cities, municipalities and barrios of the Philippines and to amend said laws, regulations
and rules; to establish and operate branches of its office anywhere in the Philippines; to
publish a magazine and/or other publications; and generally, to do all such acts and things
as may be necessary to carry into effect the provisions of this Act and to promote the
purposes of said Federation.
Any action or decision of the Federation or of the Supreme Council shall be
subject to the approval of the Secretary of National Defense.
4

Rollo, p. 53.

Id.

Id., p. 31.

Id., p. 74.

Commissioner of Internal Revenue v. Leal, 440 Phil. 477, 484 (2002); People v. Court
of Appeals, 361 Phil. 492, 497 (1999); Pearson v. Intermediate Appellate Court, 356 Phil.
341, 355 (1998); People v. Cuaresma, G.R. No. 67787, 18 April 1989, 172 SCRA 415,
424.
9

Id., pp. 484-485.

10

Id.

11

Rollo, p. 84.

12

Id., p. 85.

13

Mondano v. Silvosa, 97 Phil. 143, 148 (1955).

14

Id.

15

CONSTITUTION (1935), Art. XIII, Sec. 7.

16

CONSTITUTION (1973), Art. XIV, Sec. 4.

17

CONSTITUTION, Art. XII, Sec. 16.

18

"Control" being 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" should not be confused with the "control" in the term
"government-owned or controlled corporation" (GOCC). Cf. E.O. No. 292
(Administrative Code) Introductory Provisions, Section 2(13) where "control" is
considered to be the ownership of "at least fifty-one (51) per cent of its capital stock."
19

REPUBLIC ACT No. 2640, Section 2, par. 2.

20

REPUBLIC ACT No. 2640, Section 2.

21

G.R. No. 147589, 10 April 2002.

22

430 Phil. 658, 672 (2002).

23

Id.

24

Id.

25

Agricultural Credit and Cooperative Financing Administration (ACCFA) v.

Confederation of Unions in Government Corporations and Offices (CUGCO), 141 Phil.
334, 349 (1969); Peoples Homesite and Housing Corporation v. Court of Industrial
Relations, G.R. No. L-31890, 29 May 1987, 150 SCRA 296, 310.
26

Laurel v. Desierto, supra note 22, p. 678.

27

Supra note 25.

28

Peoples Homesite and Housing Corporation v. Court of Industrial Relations, supra

note 25.
29

Agricultural Credit and Cooperative Financing Administration (ACCFA) v.

Confederation of Unions in Government Corporations and Offices (CUGCO), supra note
25, p. 349.
30

31

Laurel v. Desierto, supra note 22.

Sec. 4. The purposes of the Federation shall be to uphold and defend the democratic
way of life as envisioned in the Constitution of the Republic of the Philippines; to
represent and to defend the interests of all Filipino veterans; to coordinate the efforts of
all different veterans of the Philippines in behalf of the interests of respective members;
to promote mutual help among former comrades-in-arms; to perpetuate their common
experiences in war; to undertake acts of charity and relief work; to preserve peace and
order; to foster love of country and things Filipino and inculcate individual civic
consciousness. In general, the Federation shall exist solely for purposes of a benevolent
character, and not for pecuniary profit of its members.

32

Constitution, Art. XVI, Sec. 7.

33

Department of Budget and Managements certification of non-receipt in favor of

Petitioner Corporation, Annex O of the Petition.
34

Manila Jockey Club v. Court of Appeals, 360 Phil. 367, 383 (1998).

35

Sec. 1. The following persons, to wit: Emilio Aguinaldo, of Associacion de los

Veteranos de la Revolucion; Margarito Torralba of the AFP Retired Veterans Association
(AFREVA); Lorenzo B. Cabrera of the Confederation of the Filipino Veterans
(CONVETS); Teodoro V. Kalaw of the Defenders of Bataan and Corregidor; Fausto S.
Alberto of the ECLGA Veterans Association; Enrique C. Rimando of the FAIT Veterans
Legion; Francisco L. Gonzales of the Filipino Disabled Veterans Association; Basilia M.
Baja of the Gold Star Mothers and United War Widows and Orphans Association of the
Philippines; Simeon C. Medalla of the Hunters ROTC Association; Antonio F. Garcia of
the Magsaysay Veterans Legion; Dionisio V. Ojeda Guaof the PEFTOK Veterans
Association; Primitivo Lovina of the Philippine National Guard Veterans Legion; Jose V.
Andrada of the Philippine Naval Veterans Legion; Jaime Piopongco of the Philippine
Veterans Legion; Sofia L. Prudenciado of the Philippine Association of War Widows,
Parents, and Orphans; Eugenio B. Recto of the United Disabled Veterans Association of
the Philippines; and Gaudencio Antonino of the USAFIP NL 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," hereinafter referred to as the Federation. The principal office of the
Federation shall be in the City of Manila, Philippines.
36

423 Phil. 735, 762-763 (2001).

37

Id.

38

G.R. No. 113375, 5 May 1994, 232 SCRA 110, 156.

39

Supra note 22.

40

Id., citing 15 C.J.S. Compensation, p. 654.

41

Rollo, p. 76.

42

Cf. Civil Code, Article 7, par. 1: "Laws are repealed only by subsequent ones, and their
violation or nonobservance shall not be excused by disuse, custom, or practice to the
contrary."
43

Manila Jockey Club v. Court of Appeals, supra note 34.

44

Constitution, Art. 2, Sec. 3.

45

Republic Act No. 2640, Sec. 7.

46

See United States v. Palacio, 33 Phil. 208, 216 (1916); Lichauco v. Apostol, 44 Phil.
138, 149 (1922).
47

447 Phil. 571, 587-588 (2003).

48

Executive Order No. 292, Administrative Code of 1987, Title XVII, Chapter 1, Sec. 2.

49

Gonzales v. Land Bank of the Phils., G.R. No. 76759, 22 March 1990, 183 SCRA 520,
526.
50

Rollo, p. 81.

51

Id., pp. 81-82.

52

Id., p. 89.

53

Mondano v. Silvosa, supra note 13.

54

Id.

55

E.O. No. 292, Book 4, Chapter 7, Section 38 (1).

56

Commissioner of Internal Revenue v. Court of Appeals, 310 Phil. 392, 397 (1995).

57

Rollo, p. 244.

58

Respondents Comment, 18 November 2003.

59

G.R. No. L-63915, 29 December 1986, 146 SCRA 446, 454.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158761

December 4, 2007

NATIONAL ELECTRIFICATION ADMINISTRATION, petitioner,

vs.
VICTORIANO B. GONZAGA, respondent.
DECISION
VELASCO, JR., , J.:
For review under Rule 45 are the March 6, 2003 Decision1 and June 10, 2003 Resolution2 of the
Court of Appeals (CA) in CA-G.R. SP No. 68769, which dismissed petitioners appeal of the
July 23, 2001 Order3 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 the Sangguniang 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 Bylaws 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.
Quisumbing,Chairperson Carpio, Carpio-Morales, Tinga, JJ., concur.

Footnotes
1

Rollo, pp. 34-39. Penned by Associate Justice Jose L. Sabio, Jr. and concurred in by
Associate Justices Portia Alio-Hormachuelos and Amelita G. Tolentino.
2

Id. at 40.

Id. at 41-49.

Id. at 45. Art. 2, Sec. 7 of the ECEC specifically provides:

8. He/she does not hold an elective office in the government nor appointed to an
elective position above the level of a Barangay Captain.
xxxx
12. His/her spouse is not disqualified under Nos. 6, 7 and 8.
xxxx
14. Any bonafide member seeking election or re-election and any incumbent
director shall satisfy all of the above-mentioned qualifications. Non-compliance
with any single item shall mean disqualification or termination.
5

Id. at 43-44.

Id.

Id. at 41.

Id. at 21, 41-42.

Supra note 3.

10

Id. at 42-44.

11

No. L-62038, September 25, 1985, 138 SCRA 632, 637.

12

No. L-63915, December 29, 1986, 146 SCRA 446, 453-454.

13

G.R. No. 125350, December 3, 2002, 393 SCRA 262.

14

G.R. No. 109023, August 12, 1998, 294 SCRA 152.

15

G.R. No. 132593, June 25, 1999, 309 SCRA 177.

16

Rules of Court, Rule 65, Sec. 2. Petition for prohibition.When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial
or ministerial functions, are without or in excess of his jurisdiction, or with grave abuse
of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law, a 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 respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may
acquire.
xxxx

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer

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 and 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 respondent, immediately or at some
other time to be specified by the court, 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 respondent. (Emphasis supplied.)

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 164026

December 23, 2008

SECURITIES AND EXCHANGE COMMISSION, petitioner,

vs.
GMA NETWORK, INC., respondent.
DECISION
TINGA, J.:
Petitioner Securities and Exchange Commission (SEC) assails the Decision1 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,
the dispositive 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, the dispositive portion of which provides as follows:
WHEREFORE, for lack of merit, the instant Appeal is hereby dismissed.
SO ORDERED.2
In its petition for review3 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 Resolution4 dated June 9, 2004.

In its Memorandum5 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 than P500.00.
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 an implementation 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

Associate Justice

MINITA V. CHICO-NAZARIO
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

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 were reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
*

Additional member in lieu of Associate Justice Arturo D. Brion per Special Order.

Rollo, pp. 10-19; Penned by Associate Justice Amelita G. Tolentino and concurred in by
Associate Justices Eloy R. Bello, Jr. and Arturo D. Brion (now an Associate Justice of
this Court).
2

Id. at 11-12.

Id. at 91-115.

Id. at 57.

Id. at 196-221.

Id. at 231-249.

Sec. 139 of B.P. Blg. 68 authorizes the SEC to collect and receive fees as authorized by
law or by rules and regulations promulgated by it.
8

An Act to Further Amend Section Eighteen of the Corporation Law.

xxx
The Securities and Exchange Commissioner shall be entitled to collect and
receive the sum of ten pesos for filing said copy of the amended articles of
incorporation: Provided, however, That where the amendment consists in
extending the term of corporate existence the Securities and Exchange
Commissioner shall be entitled to collect and receive for the filing of the amended
articles of incorporation the same fees collectible under existing law for the filing
of articles of incorporation.
xxx
R.A. No. 3531 took effect on June 20, 1963.

Presidential Decree 902-A, R.A. No. 1143, and the Revised Securities Act.

10

230 Phil. 528 (1986).

11

Id. at 535.

12

Executive Order No. 292, Book VII, Chapter 2, Sec. 3 thereof states:
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.
13

408 Phil. 270 (2001) cited in National Association of Electricity Consumers for
Reforms (NASECORE) v. Energy Regulatory Commission, G.R. No. 163935, February
2, 2006, 481 SCRA 480, 520.

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
Decision1 promulgated 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, Paraaque, 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
Gazette3 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
Bureaus 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 Aquinos 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-PVAOs 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:
I
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 COURTS 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 laws
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 Taada 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.1wphi1 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
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

BIENVENIDO L. REYES
Associate Justice
C E R T I F I C AT I O N
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

Footnotes

Penned by Presiding Justice Conrado M. Vasquez, Jr., with Associate Justices Jose C.
Mendoza (now a member of this Court) and Ramon M. Bato, Jr., concurring, rollo (G.R.
No. 187587). pp. 62-82.
2

CA rollo, p. 664.

Vol. 82, No. 5, pp. 801-805.

Supra note 2, at 68-69.

Id. at 72-76.

Id. at 205-212.

Id. at 213-218.

Insular Lumber Co. v. Court of Tax Appeals, 192 Phil. 221, 231 (1981).

CA rollo, pp. 112-113.

10

Id. at pp. 219-222.

11

Id. at 1285.

12

Rollo (G.R. No. 187587), pp. 39-61.

13

Rollo (G.R. No. 187654), pp. 3-26.

14

Rollo (G.R. No. 187587), p. 47.

15

Rollo (G.R. No. 187654 ), pp. 15-16.

16

230 Phil. 528, 533-538 (1986).

17

Aparri v. CA, 212 Phil. 215.224 (1984).

18

369 Phil. 617. 626 ( 1999).