Republic of the Philippines

SUPREME COURT Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

QUE PO LAY, defendant-appellant.

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

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating Central Bank

Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to suffer six months imprisonment, to pay a fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S. checks and U.S.

money orders amounting to about $7,000 failed to sell the same to the Central Bank through its agents within one day following

the receipt of such foreign exchange as required by Circular No. 20. the appeal is based on the claim that said circular No. 20 was

not published in the Official Gazette prior to the act or omission imputed to the appellant, and that consequently, said circular had

no force and effect. It is contended that Commonwealth Act. No., 638 and Act 2930 both require said circular to be published in

the Official Gazette, it being an order or notice of general applicability. The Solicitor General answering this contention says that

Commonwealth Act. No. 638 and 2930 do not require the publication in the Official Gazette of said circular issued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not require the publication of the circulars, regulations and

notices therein mentioned in order to become binding and effective. All that said two laws provide is that laws, resolutions,

decisions of the Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In

other words, said two Acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for

the guidance of the different branches of the Government issuing same, and of the Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that statutes passed by Congress shall, in the absence of

special provision, take effect at the beginning of the fifteenth day after the completion of the publication of the statute in the

Official Gazette. Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen

days following the completion of their publication in the Official Gazette, unless it is otherwise provided. It is true that Circular

No. 20 of the Central Bank is not a statute or law but being issued for the implementation of the law authorizing its issuance, it

has the force and effect of law according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited

therein.) Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of the Central Bank in question which

prescribes a penalty for its violation should be published before becoming effective, this, on the general principle and theory that

before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and

the people officially and specifically informed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the effectivity of laws, (Article 1 thereof),

namely, that laws shall be binding twenty days after their promulgation, and that their promulgation shall be understood as made

on the day of the termination of the publication of the laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws" include regulations and circulars issued in accordance with the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido

de que bajo la denominacion generica de leyes, se comprenden tambien los Reglamentos, Reales decretos,

Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su

potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que muchas de sus

disposiciones contienen la advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta,

advertencia que seria perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil 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 costs de oficio.

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, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

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

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-

1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-

1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,

1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-

1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528,

531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,

649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

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

122, 123.

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

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no

legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that

petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in

question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or

unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled,

and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved

thereby may file a verified petition in the proper court alleging the facts with certainty and praying that

judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act

required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

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

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that

while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some

private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the

public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved

[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus

is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose

instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to

show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus

proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a

proper party to proceedings of this character when a public right is sought to be enforced. If the general rule

in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is

always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule,

because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not

applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent.

The circumstances which surround this case are different from those in the United States, inasmuch as if the

relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the

duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to

the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the

fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive

of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to

represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws

where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in

question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

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

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this

Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for

its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication.

Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does

not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity.

Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of

a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and

proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the

Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so

published; [4] such documents or classes of documents as may be required so to be published by law; and [5]

such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to

regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of

the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the

transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that

at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the

people are kept abreast by the mass media of the debates and deliberations in the Batasan 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 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.

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 non-publication 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.

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 Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion

and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil

Code meant that the publication required therein was not always imperative; that publication, when necessary, did not have to be

made in the Official Gazette; and that in any case the subject decision was concurred in only by three justices and consequently

not binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the Court required the new

Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court.

Responding, he submitted that issuances intended only for the internal administration of a government agency or for particular

persons did not have to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was not binding because it was not supported by eight members of this Court. 5

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

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

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion,

we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and

not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall

be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original

decision, 6 is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is that such

omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the

legislature could validly provide that a law e effective immediately upon its approval notwithstanding the lack of publication (or

after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result

and they would be so not because of a failure to comply with but simply because they did not know of its existence, Significantly,

this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has

been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the

Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the

people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular

individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law

does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter

of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in

the courts of justice. In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as class

legislation or as anultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for

their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative

powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution.

administrative rules and regulations must a also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency

and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by

administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory

and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those

naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued

by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank

Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be

made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his

personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of

the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such

decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official

Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in

which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was

"published" by the Marcos administration. 7 The evident purpose was to withhold rather than disclose information on this vital

law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official

Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently informed. 9 One

reserved his vote 10 and another merely acknowledged the need for due publication without indicating where it should be

made. 11 It is therefore necessary for the present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases

and limited readership. Undoubtedly, newspapers of general circulation could better perform the function of communicating, the

laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble,

though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment

has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That

is not our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and

approved by the political departments of the government in accordance with the prescribed procedure. Consequently, we have no

choice but to pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and

not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the

said Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered

unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say

the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the

government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain

democratic, with sovereignty residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify

or reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets.

Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed

by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded

saber that cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as

possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would like to add a

few observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against the insidious manner by

which the previous dispensation had promulgated and made effective thousands of decrees, executive orders, letters of

instructions, etc. Never has the law-making power which traditionally belongs to the legislature been used and abused to satisfy

the whims and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those days, it was not surprising

to witness the sad spectacle of two presidential decrees bearing the same number, although covering two different subject

matters. In point is the case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine

citizenship to Michael M. Keon the then President's nephew and the other imposing a tax on every motor vehicle equipped with

airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March 19, 1980 granting Philippine

citizenship to basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made effective seeks prevent abuses

on the part of the lawmakers and, at the same time, ensures to the people their constitutional right to due process and to information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same time, I wish to add

a few statements to reflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly interpreted as

coming into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of the Civil Code. Such

statute, in other words, should not be regarded as purporting literally to come into effect immediately upon its approval or

enactment and without need of publication. For so to interpret such statute would be to collide with the constitutional obstacle

posed by the due process clause. The enforcement of prescriptions which are both unknown to and unknowable by those

subjected to the statute, has been throughout history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as distinguished from any

other medium such as a newspaper of general circulation, is embodied in a statutory norm and is not a constitutional command.

The statutory norm is set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act

No. 638 and Section 35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of

publication may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be amended

by a subsequent statute providing, for instance, for publication either in the Official Gazette or in a newspaper of general

circulation in the country. Until such an amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and

publication effected in the Official Gazette and not in any other medium.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I would like to add a

few observations. Even as a Member of the defunct Batasang Pambansa, I took a strong stand against the insidious manner by

which the previous dispensation had promulgated and made effective thousands of decrees, executive orders, letters of

instructions, etc. Never has the law-making power which traditionally belongs to the legislature been used and abused to satisfy

the whims and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those days, it was not surprising

to witness the sad spectacle of two presidential decrees bearing the same number, although covering two different subject

matters. In point is the case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting Philippine

citizenship to Michael M. Keon the then President's nephew and the other imposing a tax on every motor vehicle equipped with

airconditioner. This was further exacerbated by the issuance of PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for publication before any law may be made effective seeks prevent abuses

on the part of the lawmakers and, at the same time, ensures to the people their constitutional right to due process and to

information on matters of public concern.

FELICIANO, J., concurring:

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same time, I wish to add a few statements to reflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly interpreted as

coming into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of the Civil Code. Such

statute, in other words, should not be regarded as purporting literally to come into effect immediately upon its approval or

enactment and without need of publication. For so to interpret such statute would be to collide with the constitutional obstacle

posed by the due process clause. The enforcement of prescriptions which are both unknown to and unknowable by those

subjected to the statute, has been throughout history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as distinguished from any

other medium such as a newspaper of general circulation, is embodied in a statutory norm and is not a constitutional command.

The statutory norm is set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of Commonwealth Act

No. 638 and Section 35 of the Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of

publication may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be amended

by a subsequent statute providing, for instance, for publication either in the Official Gazette or in a newspaper of general

circulation in the country. Until such an amendatory statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the Official Gazette and not in any other medium.

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. 127882 January 27, 2004

LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL M.

LUMAYONG, WIGBERTO E. TAADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R. CONSTANTINO,

JR., F'LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE, SIMEON H. DOLOJO, IMELDA M.

GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN, QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY,

BENITA P. TACUAYAN, minors JOLY L. BUGOY, represented by his father UNDERO D. BUGOY, ROGER M.

DADING, represented by his father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father TOTING

A. LAGARO, MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG, RENE T.

MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL, represented by his father DANNY M.

SAL, DAISY RECARSE, represented by her mother LYDIA S. SANTOS, EDWARD M. EMUY, ALAN P.

MAMPARAIR, MARIO L. MANGCAL, ALDEN S. TUSAN, AMPARO S. YAP, VIRGILIO CULAR, MARVIC M.V.F.

LEONEN, JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR, JR., represented by their father

VIRGILIO CULAR, PAUL ANTONIO P. VILLAMOR, represented by his parents JOSE VILLAMOR and

ELIZABETH PUA-VILLAMOR, ANA GININA R. TALJA, represented by her father MARIO JOSE B. TALJA,

SHARMAINE R. CUNANAN, represented by her father ALFREDO M. CUNANAN, ANTONIO JOSE A. VITUG III,

represented by his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, represented by his father MANUEL E.

NARVADEZ, JR., ROSERIO MARALAG LINGATING, represented by her father RIO OLIMPIO A. LINGATING,

MARIO JOSE B. TALJA, DAVID E. DE VERA, MARIA MILAGROS L. SAN JOSE, SR., SUSAN O. BOLANIO, OND,

LOLITA G. DEMONTEVERDE, BENJIE L. NEQUINTO,1 ROSE LILIA S. ROMANO, ROBERTO S. VERZOLA,

EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA, represented by his father ELPIDIO V. PERIA,2 GREEN

FORUM PHILIPPINES, GREEN FORUM WESTERN VISAYAS, (GF-WV), ENVIRONMETAL LEGAL

ASSISTANCE CENTER (ELAC), PHILIPPINE KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT

REPORMANG PANSAKAHAN (KAISAHAN),3 KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT

REPORMANG PANSAKAHAN (KAISAHAN), PARTNERSHIP FOR AGRARIAN REFORM and RURAL

DEVELOPMENT SERVICES, INC. (PARRDS), PHILIPPINE PART`NERSHIP FOR THE DEVELOPMENT OF

HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA), WOMEN'S LEGAL BUREAU (WLB),

CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI), UPLAND DEVELOPMENT

INSTITUTE (UDI), KINAIYAHAN FOUNDATION, INC., SENTRO NG ALTERNATIBONG LINGAP PANLIGAL

(SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners,

vs.

VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR),

HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGB-DENR), RUBEN TORRES, EXECUTIVE SECRETARY, and WMC (PHILIPPINES), INC.4 respondents.

D E C I S I O N

CARPIO-MORALES, J.:

The present petition for mandamus and prohibition assails the constitutionality of Republic Act No. 7942,5otherwise known as

the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and Regulations issued pursuant thereto,

Department of Environment and Natural Resources (DENR) Administrative Order 96-40, and of the Financial and Technical

Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of the Philippines and WMC (Philippines), Inc.

(WMCP), a corporation organized under Philippine laws.

On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 2796 authorizing the DENR Secretary to

accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts or agreements

involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which,

upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. In entering into such

proposals, the President shall consider the real contributions to the economic growth and general welfare of the country that will

be realized, as well as the development and use of local scientific and technical resources that will be promoted by the proposed

contract or agreement. Until Congress shall determine otherwise, large-scale mining, for purpose of this Section, shall mean those

proposals for contracts or agreements for mineral resources exploration, development, and utilization involving a committed

capital investment in a single mining unit project of at least Fifty Million Dollars in United States Currency (US

$50,000,000.00).7

On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration, development, utilization

and processing of all mineral resources."8 R.A. No. 7942 defines the modes of mineral agreements for mining

operations,9 outlines the procedure for their filing and approval,10 assignment/transfer11and withdrawal,12 and fixes their terms.13 Similar provisions govern financial or technical assistance agreements.14

The law prescribes the qualifications of contractors15 and grants them certain rights, including timber,16 water17and

easement18 rights, and the right to possess explosives.19 Surface owners, occupants, or concessionaires are forbidden from

preventing holders of mining rights from entering private lands and concession areas.20 A procedure for the settlement of conflicts is likewise provided for.21

The Act restricts the conditions for exploration,22 quarry23 and other24 permits. It regulates the transport, sale and processing of

minerals,25 and promotes the development of mining communities, science and mining technology,26 and safety and environmental protection.27

The government's share in the agreements is spelled out and allocated,28 taxes and fees are imposed,29incentives granted.30 Aside

from penalizing certain acts,31 the law likewise specifies grounds for the cancellation, revocation and termination of agreements and permits.32

On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers of general

circulation, R.A. No. 7942 took effect.33 Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the

President entered into an FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato.34

On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23, s. 1995,

otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by DAO No. 96-40, s.

1996 which was adopted on December 20, 1996.

On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop the

implementation of R.A. No. 7942 and DAO No. 96-40,35 giving the DENR fifteen days from receipt36 to act thereon. The DENR, however, has yet to respond or act on petitioners' letter.37

Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining order. They

allege that at the time of the filing of the petition, 100 FTAA applications had already been filed, covering an area of 8.4 million

hectares,38 64 of which applications are by fully foreign-owned corporations covering a total of 5.8 million hectares, and at least

one by a fully foreign-owned mining company over offshore areas.39

Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:

I

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being

unconstitutional in that it allows fully foreign owned corporations to explore, develop, utilize and exploit mineral resources in a manner contrary to Section 2, paragraph 4, Article XII of the Constitution;

II

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows the taking of private property without the determination of public use and for just compensation;

III

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;

IV

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being

unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign owned corporations of the nation's marine wealth contrary to Section 2, paragraph 2 of Article XII of the Constitution;

V

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being

unconstitutional in that it allows priority to foreign and fully foreign owned corporations in the exploration, development and utilization of mineral resources contrary to Article XII of the Constitution;

VI

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being

unconstitutional in that it allows the inequitable sharing of wealth contrary to Sections [sic] 1, paragraph 1, and Section 2, paragraph 4[,] [Article XII] of the Constitution;

VII

x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement between the President

of the Republic of the Philippines and Western Mining Corporation Philippines Inc. because the same is illegal and unconstitutional.40

They pray that the Court issue an order:

(a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance Agreements;

(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void;

(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR

Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void; and

(d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as unconstitutional, illegal and null and void.41

Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the then DENR Secretary,

and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR. Also impleaded is private respondent WMCP,

which entered into the assailed FTAA with the Philippine Government. WMCP is owned by WMC Resources International Pty.,

Ltd. (WMC), "a wholly owned subsidiary of Western Mining Corporation Holdings Limited, a publicly listed major Australian mining and exploration company."42 By WMCP's information, "it is a 100% owned subsidiary of WMC LIMITED."43

Respondents, aside from meeting petitioners' contentions, argue that the requisites for judicial inquiry have not been met and that

the petition does not comply with the criteria for prohibition and mandamus. Additionally, respondent WMCP argues that there

has been a violation of the rule on hierarchy of courts.

After petitioners filed their reply, this Court granted due course to the petition