Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.QUE PO LAY,defendant-appellant.

Prudencio de Guzman for appellant.First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.

MONTEMAYOR,J.:

Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating Central Bank Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S. checks and U.S. money orders amounting to about $7,000 failed to sell the same to the Central Bank through its agents within one day following the receipt of such foreign exchange as required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was not published in the Official Gazette prior to the act or omission imputed to the appellant, and that consequently, said circular had no force and effect. It is contended that Commonwealth Act. No., 638 and Act 2930 both require said circular to be published in the Official Gazette, it being an order or notice of general applicability. The Solicitor General answering this contention says that Commonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of said circular issued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not require the publication of the circulars, regulations and notices therein mentioned in order to become binding and effective. All that said two laws provide is that laws, resolutions, decisions of the Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In other words, said two Acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance of the different branches of the Government issuing same, and of the Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall, in the absence of special provision, take effect at the beginning of the fifteenth day after the completion of the publication of the statute in the Official Gazette. Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central Bank is not a statute or law but being issued for the implementation of the law authorizing its issuance, it has the force and effect of law according to settled jurisprudence. (See U.S.vs.Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of the Central Bank in question which prescribes a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws, (Article 1 thereof), namely, that laws shall be binding twenty days after their promulgation, and that their promulgation shall be understood as made on the day of the termination of the publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws" include regulations and circulars issued in accordance with the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido de que bajo la denominacion generica de leyes, se comprenden tambien losReglamentos, Reales decretos, Instrucciones,Circularesy Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que muchas de sus disposiciones contienen la advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Espaol, Vol. I. p. 52).

In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was not published until November 1951, that is, about 3 months after appellant's conviction of its violation. It is clear that said circular, particularly its penal provision, did not have any legal effect and bound no one until its publication in the Official Gazzette or after November 1951. In other words, appellant could not be held liable for its violation, for it was not binding at the time he was found to have failed to sell the foreign exchange in his possession thereof.

But the Solicitor General also contends that this question of non-publication of the Circular is being raised for the first time on appeal in this Court, which cannot be done by appellant. Ordinarily, one may raise on appeal any question of law or fact that has been raised in the court below and which is within the issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court). But the question of non-publication is fundamental and decisive. If as a matter of fact Circular No. 20 had not been published as required by law before its violation, then in the eyes of the law there was no such circular to be violated and consequently appellant committed no violation of the circular or committed any offense, and the trial court may be said to have had no jurisdiction. This question may be raised at any stage of the proceeding whether or not raised in the court below.

In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with costsde oficio.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-14283 November 29, 1960

GIL BALBUNA, ET AL.,petitioners-appellants,vs.THE HON. SECRETARY OF EDUCATION, ET AL.,respondents-appellees.

K. V. Faylona and Juan B. Soliven for appellants.Office of the Solicitor General Edilberto Barot and Solicitor Ceferino Padua for appellees.

REYES, J.B.L.,J.:

Appeal by members of the "Jehovah's Witnesses" from a decision of the Court of First Instance of Capiz, dated June 23, 1958, dismissing their petition for prohibition and mandamus against the Secretary of Education and the other respondents.

The action was brought to enjoin the enforcement of Department Order No. 8, s. 1955, issued by the Secretary of Education, promulgating rules and regulations for the conduct of the compulsory flag ceremony in all schools, as provided in Republic Act No. 1265. Petitioners appellants assail the validity of the above Department Order, for it allegedly denies them freedom of worship and of speech guaranteed by the Bill of Rights; that it denies them due process of law and the equal protection of the laws; and that it unduly restricts their rights in the upbringing of their children. Since the brief for the petitioners-appellants assails Republic Act No. 1265 only as construed and applied, the issue ultimately boils down the validity of Department Order No. 8, s. 1955, which promulgated the rules and regulations for the implementation of the law.

This case, therefore, is on all fours withGerona, et al., vs. Secretary of Education, et al., 106 Phil., 2; 57 Off. Gaz., (5) 820, also involving Jehovah's Witnesses, and assailing, on practically identical grounds, the validity of the same Department Order above-mentioned. This Court discerns no reasons for changing its stand therein, where we said:

In conclusion, we find and hold that the Filipino flag is not an image that requires religious veneration; rather, it is a symbol of the Republic of the Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is not a religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for; that by the authority of the Legislature of the Secretary of Education was duly authorized to promulgate Department Order No. 8, series of 1955; that the requirement of observance of the flag ceremony, or salute provided for in said Department Order No. 8 does not violate the Constitutional provisions about freedom of religion and exercise of religion; that compliance with the non-discriminatory and reasonable rules and regulations and school discipline, including observance of the flag ceremony, is a prerequisite to attendance in public schools; and that for failure and refusal to participate in the flag ceremony, petitioners were properly excluded and dismissed from the public school they were attending.

However, in their memorandum, petitioners-appellants raise the new issue that that Department Order No. 8 has no binding force and effect, not having been published in the Official Gazette as allegedly required by Commonwealth Act 638, Article 2 of the New Civil Code, and Section 11 of the Revised Administrative Code. We see no merit in this contention. The assailed Department Order, being addressed only to the Directors of Public and Private Schools, and educational institutions under their supervision, can not be said to be of general application. Moreover, as observed in People vs. QuePo Lay, 94 Phil., 640; 50 Off. Gaz., (10) 4850 (affirmed in Lim Hoa Tingvs. Central Bank, 104 Phil., 573; 55 Off. Gaz., [6] 1006),

the laws in question (Commonwealth Act 638 and Act 2930) do not require the publication of the circulars, regulations or notices therein mentioned in order to become binding and effective. All that said two laws provide is that laws, regulations, decisions of the Supreme Court and Court of Appeals, notices and documents required by law to be published shall be published in the Official Gazette but said two laws do not say that unless so published they will be of no force and effect. In other words, said two acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance of the different branches of the government issuing the same, and of the Bureau of Printing.

It is true, as held in the above cases, that pursuant to Article 2 of the New Civil Code and Section 11 of the Revised Administrative Code, statutes or laws shall take effect fifteen days following the completion of their publication in the Official Gazette, unless otherwise provided. It is likewise true that administrative rules and regulations, issued to implement a law, have the force of law. Nevertheless, the cases cited above involved circulars of the Central Bank which provided for penalties for violations thereof and that was the primary factor that influenced therationaleof those decisions. In the case at bar, Department Order No. 8 does not provide any penalty against those pupils or students refusing to participate in the flag ceremony or otherwise violating the provisions of said order. Their expulsion was merely the consequence of their failure to observe school discipline which the school authorities are bound to maintain. As observed in Gerona vs. Secretary of Education,supra,

... for their failure or refusal to obey school regulations about the flag salute, they were not being prosecuted. Neither were they being criminally prosecuted under threat of penal sanction. If they choose not to obey the flag salute regulation, they merely lost the benefits of public education being maintained at the expense of their fellow citizens, nothing more. Having elected not to comply with the regulations about the flag salute, they forfeited their right to attend public schools.

Finally, appellants contend that Republic Act No. 1265 is unconstitutional and void for being an undue delegations of legislative power, "for its failure to lay down any specific and definite standard by which the Secretary of Education may be guided in the preparation of those rules and regulations which he has been authorized to promulgate." With this view we again disagree. Sections 1 and 2 of the Act read as follows:

Section 1. All educational institutions shall henceforth, observed daily flag ceremony, which shall be simple and dignified and shall include the playing or singing of the Philippine National Anthem.

Section 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and regulations for the proper conduct of the flag ceremony herein provide.

In our opinion, the requirements above-quoted constitute an adequate standard, to wit, simplicity and dignity of the flag ceremony and the singing of the National Anthem specially when contrasted with other standards heretofore upheld by the Courts: "public interest"(Peoplevs. Rosenthal, 68 Phil. 328); "public welfare" (Municipality of Cardona vs. Binangonan, 36 Phil. 547); Interest of law and order"(Rubivs. Provincial Board, 39 Phil., 669; justice and equity and the substantial merits of the case" (Int. Hardwoodvs. Pagil Federation of Labor, 70 Phil. 602); or "adequate and efficient instruction" (P.A.C.U.vs. Secretary of Education, 97 Phil., 806; 51 Off. Gaz., 6230). That the Legislature did not specify the details of the flag ceremony is no objection to the validity of the statute, for all that is required of it is the laying down of standards and policy that will limit the discretion of the regulatory agency. To require the statute to establish in detail the manner of exercise of the delegated power would be to destroy the administrative flexibility that the delegation is intended to achieve.

Wherefore, the decision appealed from is affirmed. Costs against petitioner-appellants.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI],petitioners,vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing,respondents.

ESCOLIN,J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution,1as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question2said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case ofSeverino vs. Governor General,3this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions,4this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned.6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said inPeralta vs. COMELEC7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth inChicot County Drainage District vs. Baxter Bank8to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court inRutter vs. Esteban9sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published.10Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles,11the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

G.R. No. L-63915 December 29, 1986

LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI),petitioners,vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL.,respondents.

R E S O L U T I O N

CRUZ,J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of that decision.1Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general applicability and those which are not; that publication means complete publication; and that the publication must be made forthwith in the Official Gazette.2

In the Comment3required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject decision was concurred in only by three justices and consequently not binding. This elicited a Reply4refuting these arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the internal administration of a government agency or for particular persons did not have to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was not binding because it was not supported by eight members of this Court.5

The subject of contention is Article 2 of the Civil Code providing as follows:

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

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision,6is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided. "

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

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government.

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

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

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

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

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

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration.7The evident purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official Gazette8and that six others felt that publication could be made elsewhere as long as the people were sufficiently informed.9One reserved his vote10and another merely acknowledged the need for due publication without indicating where it should be made.11It is therefore necessary for the present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the function of communicating, the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and approved by the political departments of the government in accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

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

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G. R. No. 156982 September 8, 2004

NATIONAL AMNESTY COMMISSION,petitioner,vs.COMMISSION ON AUDIT, JUANITO G. ESPINO, Director IV, NCR, Commission on Audit, and ERNESTO C. EULALIA, Resident Auditor, National Amnesty Commission.respondents.

D E C I S I O N

CORONA,J.:

This petition for review1seeks to annul the two decisions of respondent Commission on Audit (COA)2dated July 26, 20013and January 30, 2003,4affirming the September 21, 1998 ruling5of the National Government Audit Office (NGAO). The latter in turn upheld Auditor Ernesto C. Eulalia's order disallowing the payment ofhonorariato the representatives of petitioner'sex officiomembers, per COA Memorandum No. 97-038.

Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government asex officiomembers.6

It appears that after personally attending the initial NAC meetings, the threeex officiomembers turned over said responsibility to their representatives who were paidhonorariabeginning December 12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia disallowed on audit the payment ofhonorariato these representatives amounting toP255,750 for the period December 12, 1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO upheld the auditor's order and notices of disallowance were subsequently issued to the following:7

REPRESENTATIVES

AMOUNT

1.

Cesar AverillaDepartment of National Defense

P2,500.00

2.

Ramon MartinezDepartment of National Defense

73,750.00

3.

Cielito Mindaro,Department of Justice

18,750.00

4.

Purita DeynataDepartment of Justice

62,000.00

5.

Alberto BernardoDepartment of the Interior And Local Government

71,250.00

6.

Stephen VillaflorDepartment of the Interior and Local Government

26,250.00

7.

Artemio AspirasDepartment of Justice

1,250.00

P255,750.00

Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides:

Section 1, Composition- The NAC shall be composed of seven (7) members:

a) A Chairperson who shall beappointedby the President;

b) Three (3) Commissioners who shall beappointedby the President;

c) Three (3) Ex-officio Members

1. Secretary of Justice

2. Secretary of National Defense

3. Secretary of the Interior and Local Government

Theex officiomembers maydesignatetheirrepresentativesto the Commission. Said Representatives shall beentitled toper diems,allowances, bonuses and other benefits as may be authorized by law.(Emphasis supplied)

Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing payment ofhonorariato theex officiomembers' representatives, to no avail.

Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of discretion in: (1) implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance ofhonorariaunder said Memorandum; (3) applying the Memorandum to the NACex officiomembers' representatives who were all appointive officials with ranks below that of an Assistant Secretary; (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and (5) disallowing the payment ofhonorariaon the ground of lack of authority of representatives to attend the NAC meetings in behalf of theex officiomembers.8

We hold that the position of petitioner NAC is against the law and jurisprudence. The COA is correct that there is no legal basis to grantper diem,honorariaor any allowance whatsoever to the NACex officiomembers' official representatives.

The Constitution mandates the Commission on Audit to ensure that the funds and properties of the government are validly, efficiently and conscientiously used. Thus, Article IX-D of the Constitution ordains the COA to exercise exclusive and broad auditing powers over all government entities or trustees, without any exception:

Section 2. (1) The Commission on Audit shall have the power, authority and duty toexamine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government,or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law of the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article, todefine the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, inexpensive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

Section 3.No lawshall be passedexempting any entityof the Government or its subsidiary in any guise whatever, or any investment of public funds,from the jurisdiction of the Commission on Audit.(Emphasis supplied).

It is in accordance with this constitutional mandate that the COA issued Memorandum No. 97-038 on September 19, 1997:

COMMISSION ON AUDIT MEMORANDUM NO. 97-038

SUBJECT: Implementation of Senate Committee Report No. 509, Committee on Accountability of Public Officers and Investigations and Committee on Civil Service and Government Reorganization.

The Commission received a copy of Senate Committee Report No. 509 urging the Commission on Auditto immediately cause the disallowance of any payment of any form of additional compensation or remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation of the rule on multiple positions, and to effect the refund of any and all such additional compensation given to and received by the officials concerned, or their representatives, from the time of the finality of the Supreme Court ruling inCivil Liberties Union v. Executive Secretaryto the present. In the Civil Liberties Union case, theSupreme Court ruled that Cabinet Secretaries, their deputies and assistants may not hold any other office or employment. It declared Executive Order 284 unconstitutional insofar as it allows Cabinet members, their deputies and assistants to hold other offices in addition to their primary office and to receive compensation therefor.The said decisionbecame final and executory on August 19, 1991.

In view thereof, all unit heads/auditors/team leaders of the national government agencies and government owned or controlled corporations which have effected payment of subject allowances, are directed to implement the recommendation contained in the subject Senate Committee Report by undertaking the following audit action:

1. On accounts that have not been audited and settled under certificate of settlements and balances on record from August 19, 1991 to present - to immediately issue the Notices of disallowance and corresponding certificate of settlements and balances.

2. On accounts that have been audited and settled under certificate of settlements and balances on record - to review and re-open said accounts, issue the corresponding notices of disallowance, and certify a new balance thereon.It is understood that the re-opening of accounts shall be limited to those that were settled within the prescriptive period of three (3) years prescribed in Section 52 of P.D. 1445.

3. On disallowances previously made on these accounts - to submit a report on the status of the disallowances indicating whether those have been refunded/settled or have become final and executory and the latest action taken by the Auditor thereon.

All auditors concerned shall ensure that all documents evidencing the disallowed payments are kept intact on file in their respective offices.

Any problem/issue arising from the implementation of this Memorandum shall be brought promptly to the attention of the Committee created under COA Officer Order No. 97-698 thru the Director concerned, for immediate resolution.

An initial report on the implementation of this Memorandum shall be submitted to the Directors concerned not later than October 31, 1997. Thereafter, a quarterly progress report on the status of disallowances made shall be submitted, until all the disallowances shall have been enforced.

The Committee created under COA Office Order No. 97-698, dated September 10, 1997, shall supervise the implementation of this Memorandum which shall take effect immediately and shall submit a consolidated report thereon in response to the recommendation of the Senate Committee on Accountability of Public Officers and Investigation and Committee on Civil Service and Government Reorganization.9(Emphasis supplied)

Contrary to petitioner's claim, COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication required by Article 2 of the Civil Code:

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

We clarified this publication requirement inTaada vs. Tuvera:10

[A]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

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

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

COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not need publication to be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of the Constitution on the President and his official family, their deputies and assistants, or their representatives from holding multiple offices and receiving double compensation.

Six years prior to the issuance of COA Memorandum No. 97-038, the Court had the occasion to categorically explain this constitutional prohibition inCivil Liberties Union vs. The Executive Secretary:11

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, which provides as follows:

"Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office."

x x x x x x x x x

[D]oes the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus:"Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

x x x x x x x x x

But what is indeed significant is the fact thatalthough Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.

x x x x x x x x x

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. . . .

x x x x x x x x x

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in anex-officiocapacity as provided by law and asrequiredby the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.

x x x x x x x x x

[T]he prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office.The termex-officio means"from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." An ex-officio member of a board isone who is a member by virtue of his title to a certain office, and without further warrant or appointment.To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, and the Light Rail Transit Authority.

x x x x x x x x x

Theex-officioposition being actually and in legal contemplation part of the principal office, it follows thatthe official concerned has no right to receive additional compensation for hisservices in the said position.The reason is that these services arealready paid for and covered by the compensation attached to his principal office.x x x

x x x x x x x x x

[E]x-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition... (Emphasis supplied).

Judicial decisions applying or interpreting the laws or the Constitution, such as theCivil Liberties Uniondoctrine, form part of our legal system.12Supreme Court decisions assume the same authority as valid statutes.13The Court's interpretation of the law is part of that law as of the date of enactment because its interpretation merely establishes the contemporary legislative intent that the construed law purports to carry into effect.14

COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual, except those provided for under the Constitution. Hence, publication of said Memorandum is not required for it to be valid, effective and enforceable.

InCivil Liberties Union, we elucidated onthe two constitutional prohibitions against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution.

The NACex officiomembers' representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions.

First, the NACex officiomembers' representatives are not exempt from the general prohibition because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor.

Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government and receiving additional or double compensation:

SEC. 54.Limitation on Appointment. -(1) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

x x x x x x x x x

(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

x x x x x x x x x

SEC. 56.Additional or Double Compensation. --No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect compensation.

RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument.

The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation from theex officiomembers who were themselves also designated as such.

There is a considerable difference between an appointment and designation. An appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office; a designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment.15

Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position,16and not a mere designation.

Second, theex officiomembers' representatives are also covered by the strict constitutional prohibition imposed on the President and his official family.

Again, inCivil Liberties Union,we held that cabinet secretaries, including their deputies and assistants, who hold positions inex officiocapacities, are proscribed from receiving additional compensation because their services are already paid for and covered by the compensation attached to their principal offices. Thus, in the attendance of the NAC meetings, theex officiomembers were not entitled to, and were in fact prohibited from, collecting extra compensation, whether it was calledper diem, honorarium,allowance or some other euphemism. Such additional compensation is prohibited by the Constitution.

Furthermore, inde la Cruz vs. COA17andBitonio vs. COA,18we upheld COA's disallowance of the payment ofhonorariaandper diemsto the officers concerned who sat asex officiomembers or alternates. The agent, alternate or representative cannot have a better right than his principal, theex officiomember. The laws, rules, prohibitions or restrictions that cover theex officiomember apply with equal force to his representative. In short, since theex officiomember is prohibited from receiving additional compensation for a position held in anex officiocapacity, so is his representative likewise restricted.

The Court also finds that the re-opening of the NAC accounts within three years after its settlement is within COA's jurisdiction under Section 52 of Presidential Decree No. 1445, promulgated on June 11, 1978:

SECTION 52. Opening and revision of settled accounts. (1) At any time before the expiration of three years after the settlement of any account by an auditor, the Commission may motu propio review and revise the account or settlement and certify a new balance.

More importantly, the Government is never estopped by the mistake or error on the part of its agents.19Erroneous application and enforcement of the law by public officers do not preclude subsequent corrective application of the statute.

In declaring Section 1, Rule II of Administrative Order No. 2 s. 1999 null and void, the COA ruled that:

Petitioner further contends that with the new IRR issued by the NACauthorizing the ex-officio members to designate representatives to attend commission meetings and entitling them to receive per diems, honoraria and other allowances,there is now no legal impediment since it was approved by the President. This Commission begs to disagree. Said provision in the new IRR is null and void for having been promulgated in excess of its rule-making authority. Proclamation No. 347, the presidential issuance creating the NAC, makes no mention that representatives of ex-officio members can take the place of said ex-officio members during its meetings and can receive per diems and allowances. This being the case, the NAC, in the exercise of its quasi-legislative powers, cannot add, expand or enlarge the provisions of the issuance it seeks to implement without committing an ultra vires act.20

We find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that:

Theex officiomembersmay designate their representatives to the Commission.Said Representatives shall beentitled to per diems,allowances, bonuses and other benefitsas may be authorized by law.(Emphasis supplied).

The problem lies not in the administrative order but how the NAC and the COA interpreted it.

First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, as already discussed, the payment of such allowances is not allowed, prohibited even.

Second, the administrative order merely allows theex officiomembers to designate their representatives to NAC meetings but not to decide for them while attending such meetings. Section 4 of the administrative order categorically states:

Decisions of the NAC shall be arrived at by a majority vote in a meeting where there is a quorum consisting of at least four members.

Thus, although the administrative order does not preclude the representatives from attending the NAC meetings, they may do so only as guests or witnesses to the proceedings. They cannot substitute for theex officiomembers for purposes of determining quorum, participating in deliberations and making decisions.

Lastly, we disagree with NAC's position that the representatives arede factoofficers and as such are entitled to allowances, pursuant to our pronouncement inCivil Liberties Union:

"where there is node jureofficer, ade factoofficer, who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensation attached to the office."

Ade factoofficer "derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. (He is) one who is in possession of an office and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer."21

The representatives cannot be consideredde factoofficers because they were not appointed but were merely designated to act as such. Furthermore, they are not entitled to something their own principals are prohibited from receiving. Neither can they claim good faith, given the express prohibition of the Constitution and the finality of our decision inCivil Liberties Unionprior to their receipt of such allowances.

WHEREFOREthe petition is herebyDISMISSEDfor lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G. R. No. 155027 February 28, 2006

THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda,Petitioner,vs.Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his capacity as Undersecretary for Civil Relations and Administration of the Department of National Defense,Respondents.

D E C I S I O N

CHICO-NAZARIO,J.:

This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002.

Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No. 2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04, dated 10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who was tasked by the respondent DND Secretary to conduct an extensive management audit of the records of petitioner.

The factual and procedural antecedents of this case are as follows:

Petitioner VFP was created under Rep. Act No. 2640,1a statute approved on 18 June 1960.

On 15 April 2002, petitioners incumbent president received a letter dated 13 April 2002 which reads:

Col. Emmanuel V. De Ocampo (Ret.)

President

Veterans Federation of the Philippines

Makati, Metro Manila

Dear Col. De Ocampo:

Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9, 2002, we came across some legal bases which tended to show that there is an organizational and management relationship between Veterans Federation of the Philippines and the Philippine Veterans Bank which for many years have been inadvertently overlooked.

I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the Phil. Vets [sic] Bank.

1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and supervision of the Secretary of National Defense."

2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal year, the Federation shall make and transmit to the President of the Philippines or to the Secretary of National Defense, a report of its proceedings for the past year, including a full, complete and itemized report of receipts and expenditures of whatever kind."

3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for Other Purposes) provides in Section 6 that ... "the affairs and business of the Philippine Veterans Bank shall be directed and its property managed, controlled and preserved, unless otherwise provided in this Act, by a Board of Directors consisting of eleven (11) members to be composed of three ex officio members to wit: the Philippine Veterans Administrator, the President of the Veterans Federation of the Philippines and the Secretary of National Defense x x x.

It is therefore in the context of clarification and rectification of what should have been done by the DND (Department of National Defense) for and about the VFP and PVB that I am requesting appropriate information and report about these two corporate bodies.

Therefore it may become necessary that a conference with your staffs in these two bodies be set.

Thank you and anticipating your action on this request.

Very truly yours,

(SGD) ANGELO T. REYES

[DND] Secretary

On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled, "Further Implementing the Provisions of Sections 12and 23of Republic Act No. 2640," the full text of which appears as follows:

Department of National Defense

Department Circular No. 04

Subject: Further Implementing the Provisions of Sections 1 & 2 of

Republic Act No. 2640

Authority: Republic Act No. 2640

Executive Order No. 292 dated July 25, 1987

Section 1

These rules shall govern and apply to the management and operations of the Veterans Federation of the Philippines (VFP) within the context provided by EO 292 s-1987.

Section 2 DEFINITION OF TERMS for the purpose of these rules, the terms, phrases or words used herein shall, unless the context indicates otherwise, mean or be understood as follows:

Supervision and Control it shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of a duty; restrain the commission of acts; approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs.

Power of Control power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former to that of the latter.

Supervision means overseeing or the power of an officer to see to it that their subordinate officers perform their duties; it does not allow the superior to annul the acts of the subordinate.

Administrative Process embraces matter concerning the procedure in the disposition of both routine and contested matters, and the matter in which determinations are made, enforced or reviewed.

Government Agency as defined under PD 1445, a government agency or agency of government or "agency" refers to any department, bureau or office of the national government, or any of its branches or instrumentalities, of any political subdivision, as well as any government owned or controlled corporation, including its subsidiaries, or other self-governing board or commission of the government.

Government Owned and Controlled Corporation (GOCC) refer to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of at least 50% of its capital stock.

Fund sum of money or other resources set aside for the purpose of carrying out specific activities or attaining certain objectives in accordance with special regulations, restrictions or limitations and constitutes an independent, fiscal and accounting entity.

Government Fund includes public monies of every sort and other resources pertaining to any agency of the government.

Veteran any person who rendered military service in the land, sea or air forces of the Philippines during the revolution against Spain, the Philippine American War, World War II, including Filipino citizens who served in Allied Forces in the Philippine territory and foreign nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the Anti-dissidence campaign, or other wars or military campaigns; or who rendered military service in the Armed Forces of the Philippines and has been honorably discharged or separated after at least six (6) years total cumulative active service or sooner separated due to the death or disability arising from a wound or injury received or sickness or disease incurred in line of duty while in the active service.

Section 3 Relationship Between the DND and the VFP

3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and organizations in the Philippines) and their associates and successors are hereby created a body corporate, under the control and supervision of the Secretary of National Defense, under the name, style and title of "Veterans Federation of the Philippines ..."

The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program under the jurisdiction of the Department. It shall also have the responsibility of overseeing and ensuring the judicious and effective implementation of veterans assistance, benefits, and utilization of VFP assets.

3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests and welfare of the veterans who are also wards of the State entrusted under the protection of the DND, the Secretary may personally or through a designated representative, require the submission of reports, documents and other papers regarding any or all of the Federations business transactions particularly those relating to the VFP functions under Section 2 of RA 2640.

The Secretary or his representative may attend conferences of the supreme council of the VFP and such other activities he may deem relevant.

3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital government activities including, but not limited to, the conduct of elections; the acquisition, management and dispositions of properties, the accounting of funds, financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the veterans.

3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e. government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be shared by all those exercising authority over the financial affairs, transactions, and operations of the federation; disbursements or dispositions of government funds or property shall invariably bear the approval of the proper officials.

Section 4 Records of the FEDERATION

As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all business transactions, minutes of meetings of stockholders/members of the board of directors reflecting all details about such activity.

All such records and minutes shall be open to directors, trustees, stockholders, and other members for inspection and copies of which may be requested.

As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of operations together with financial statement of its assets and liabilities and fund balance per year; statement of revenues and expenses per year; statement of cash flows per year as certified by the accountant; and other documents/reports as may be necessary or required by the SND.

Section 5 Submission of Annual and Periodic Report

As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:

a. Annual Report to be submitted not later than every January 31 of the following year. Said report shall consist of the following:

1. Financial Report of the Federation, signed by the Treasurer General and Auditor General;

2. Roster of Members of the Supreme Council;

3. Roster of Members of the Executive Board and National Officers; and

4. Current listing of officers and management of VFP.

b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one month after the meeting;

c. Report of the VFP President as may be required by SND or as may be found necessary by the President of the Federation;

d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be submitted not later than one month after the approval of the resolution;

e. After Operation/Activity Reports to be submitted not later than one month after such operation or activity;

Section 6 Penal Sanctions

As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials and personnel shall be subject to the penal provisions of such laws, rules and regulations applicable to the attached agencies of the government.

In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated his instructions in his earlier letter of 13 April 2002.

Thereafter, petitioners President received a letter dated 23 August 2002 from respondent Undersecretary, informing him that Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management Audit of the Veterans Federation of the Philippines."4The letter went on to state that respondent DND Secretary "believes that the mandate given by said law can be meaningfully exercised if this department can better appreciate the functions, responsibilities and situation on the ground and this can be done by undertaking a thorough study of the organization."5

Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects and petitioners financial condition. The letter ended by stating that, after the briefing, the support staff of the Audit Committee would begin their work to meet the one-month target within which to submit a report.

A letter dated 28 August 2003 informed petitioners President that the Management Audit Group headed by the Undersecretary would be paying petitioner a visit on 30 August 2002 for an update on VFPs different affiliates and the financial statement of the Federation.

Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice to respondent Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of the scope of the management audit and requesting the suspension thereof until such time that specific areas of the audit shall have been agreed upon.

The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that a specific timeframe had been set for the activity.

Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, praying for the following reliefs:

1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction to enjoin respondent Secretary and all those acting under his discretion and authority from: (a) implementing DND Department Circular No. 04; and (b) continuing with the ongoing management audit of petitioners books of account;

2. After hearing the issues on notice

a. Declare DND Department Circular No. 04 as null and void for