Whether the Association of Christian Educators of the Phil. May Operate Institutions of Learning Pursuant to House Res. No. 1473

DOJ OPINION NO. 019, s. 2015 March 19, 2015 Rep. Lani Mercado-Revilla 2nd District of Cavite North Wing Rm. 515 House of Representatives Batasan Hills, Quezon City Dear Rep. Mercado-Revilla: This pertains to your 26 February 2015 letter-request for opinion on the alleged failure of then Department of Education, Culture and Sports (DECS), now Department of Education (DEPED), to implement House Resolution No. 1473 passed on May 31, 2000 during the 11th Congress by the Committee on Basic Education and Culture, whereby DECS was urged to renew Government Permit 001, s. 1996, which authorized the Association of Christian Educators of the Philippines, Inc. (ASCEP) to operate educational institutions of learning. Your request was prompted by a letter from Bishop Felix P. Salegon, Jr. whereby the latter sought your assistance to implement subject House Resolution No. 1473 that was allegedly passed to urge DECS to reconsider and set aside DECS Order 68, which nullified Permit 001. Based on documents you forwarded to this Department, Permit 001 was issued by then DECS Undersecretary Antonio E.B. Nachura and approved by then DECS Secretary Ricardo T. Gloria, authorizing ASCEP to operate member-schools which shall offer pre-elementary, elementary and secondary education programs. You state, however, that DECS Order 68 was subsequently issued which in effect nullified the said Permit 001. Permit 001 has been found to be irregular, thus, the DECS Secretary ordered, among others, that Permit 001 shall remain valid only until the end of School Year 1999-2000. Said DECS Order 68 further directed ASCEP member schools to individually apply for a Permit to Operate or a Certificate of Recognition with the DECS Regional Office that exercises jurisdiction over these schools. You are seeking our opinion on whether or not ASCEP may implement the reinstatement of Permit 001 on the basis of the issuance of House Resolution No. 1473. With regret, this Department is unable to render the requested opinion for the following reasons: Firstly, the resolution of the instant query would necessitate the determination of the correctness of subject Department Order (DECS Order 68, s. 1999), which this Department should desist from doing. The Secretary of Justice, by settled precedents and policy, does not pass upon questions involving the legal propriety of the circulars, issuances or office orders of a co-equal and coordinate department of government, such as, the DECS (now DEPED) in the instant case, unless upon its request. 1 This rule arises not only from practical considerations, but also out of due respect and deference for the competence and expertise of the office having primary jurisdiction to resolve the matter for its familiarity with policy repercussions of the question as well as from a logical recognition of the lawful exercise of an authority conferred by law. 2 aEcSIH Secondly, resolution of the issue raised would affect the substantive rights of private parties (ASCEP and the member schools) and any opinion that the Secretary of Justice may render, being merely advisory, would have no binding effect upon them, and who, if the opinion is adverse to their interests, might decide to have the question resolved by the courts. 3 Thirdly, this Department does not render opinion on queries involving the legality of duly issued circulars, orders, rules or regulations of administrative agencies, upon the theory that these administrative issuances, which are issued in the implementation of a law or in the exercise of a function vested by law, enjoy the presumption of validity being in themselves of the same nature as laws which are presumed valid and enforceable until declared invalid and/or unconstitutional. 4 This, notwithstanding, we would like to state some relevant observations, for your information and guidance. We refer you to DECS Order No. 68 dated June 25, 1999, issued by then DECS Secretary Andrew Gonzalez, which found Permit 001 to be irregular. DECS Secretary Gonzalez ordered, among others, that Permit 001 shall remain valid only until the end of School Year 1999-2000. Said DECS Order 68 further directed ASCEP member schools to individually apply for a Permit to Operate or a Certificate of Recognition with the DECS Regional Office that exercises jurisdiction over these schools. It can be deduced that when DECS Order No. 68 was passed, Permit 001 was in effect revoked upon expiration of the period imposed in said DECS Order No. 68. In Secretary of Justice Opinion No. 045, s. 2011, it was opined that: "In granting to the Securities and Exchange Commission the foregoing powers, the Legislature has apparently recognized that it is not in a position to provide all the details to the SEC, as the most suitable and qualified government agency, the power to make implementing regulations and to grant exemptions in order to carry the Code into effect in the face of ever-changing conditions and the highly complicated and technical field of securities regulation." In applying this view, the DECS Secretary had the power to promulgate, whenever he may see fit to do so, all rules, regulations, orders, circulars, memorandums and other instructions, not contrary to law, necessary to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department. 5 Thus, in issuing DECS Order No. 68, he was doing so in accordance with the powers vested upon him and that all concerned individuals must observe and comply with the same. 6 As to whether House Resolution No. 1473 would prevail over DECS Order No. 68, we refer you to Secretary of Justice Opinion No. 16, s. 2012 below: As a general rule, resolutions are not laws, since laws refer to those legislative enactments which operate on all persons in society and must be enforced by the executive department and sustained by the judiciary. In a limited sense, however, resolutions have the effect of law, as where the operation of certain statutes may be conditioned on or terminated by the adoption of concurrent resolutions ( ibid. ). There are three kinds of resolutions, namely: simple, concurrent and joint resolutions. A simple resolution is a formalized motion passed by a majority of a single legislative chamber. It is usually used to create special committees, to express recognition for meritorious services, to extend sympathy on the death of a member, and to express opinions to another government body. It is also used to establish rules governing internal affairs ( ibid. ). A concurrent resolution is a simple resolution but passed by both chambers of the legislature. It performs the same functions as the ordinary simple resolutions, except that it reflects the opinion of the entire legislative body, instead of the opinion of only one chamber ( ibid. , p. 265). It is used to dispose of matters in which both Houses have an interest, e.g. , the creation of a joint investigating committee or the adjournment of Congress (R.M. Gibson, "Congressional Concurrent Resolution: An Aid to Statutory Interpretation", 37 American Bar Association Journal [1951], p. 421). Although the concurrent resolution speaks for the entire legislature, it has only limited legal effect and for most purposes is not law ( ibid. , p. 262). A joint resolution is very similar to statutes. It also has to undergo the same process as a bill towards its enactment. Unlike a concurrent resolution, a joint resolution passes thru greater procedural safeguards and delays calculated to insure the expression of a more sober judgment ( ibid. ). There are divergent views in the United States on the legal efficacy of a joint resolution passed by Congress. Some state courts have ruled that a joint resolution adopted by a state legislature is not a law within the meaning of the Constitution which proscribes the passage of a law "except by bill". A joint resolution is not a bill and its adoption by the legislature and approval by the Governor did not make it a law ( Ex parte Hague, 147 A. 220; Southwark Bank v. Commonwealth , 26 Pa. 446; State ex rel. Peyton v. Cunningham , 39 Mont. 197; May v. Rice , 91 Ind. 546; Mc Ginley v. Scott , 164 A 2d 424; Scudder v. Smith , 200 A. 601). aEACcS Others, however, have held that a joint resolution which follows the same legislative course as a bill possesses the force of law. A joint resolution, notwithstanding that it is merely "resolved" and not "enacted", stands on an equal footing as to dignity with a bill, and when passed by both Houses and approved by the Governor, will take effect as a law ( Watts v. United States , 161 F. 2d 511; Stockalager, 129 U.S. 470; Swan v. Buck , 40 Miss. 268). Close examination of jurisprudence which accords the same legal force and validity to both bills and joint resolutions reveals that the same are made to depend on the condition that the joint resolution be passed in the same manner as in the case of a bill and that the legislative intent to treat the joint resolution as a law clearly appears therefrom ( Watts v. United States , et seq. supra ). An inquiry from the House of Representatives reveals that the same legislative course is followed for both bills and resolutions. The same is true in the Senate. The legislative intent to accord to a joint resolution of both Houses of Congress the same effect as a law, if clearly manifest from the joint resolution, should be deemed controlling, notwithstanding the form and style of enactment. It should be stressed in addition that, as mandated in Section 24, Article VI of the 1987 Constitution, a joint resolution which has an appropriation provision must, if it is to be treated as law, emanate from the House of Representatives, and that all joint resolutions intended to take effect as law must be presented to the President for his appropriate action pursuant to Section 27 (1), Article VI of the same Constitution. (Op. No. 009, s. 1996). Please be guided accordingly. Very truly yours, (SGD.) LEILA M. DE LIMA Secretary Footnotes 1. Secretary of Justice Opinion No. 66, s. 1972; and Nos. 7 and 11, s. 1987; No. 59, s. 1992. 2. Secretary of Justice Opinion No. 24, s. 1999; No. 7, s. 1997. 3. Secretary of Justice Opinion No. 31, s. 1985; No. 98, s. 1978; No. 72, s. 1971 and No. 14, s. 1989. 4. Secretary of Justice Opinion No. 16, s. 1998; No. 133, s. 1990 and No. 160, s. 1989. 5. Secretary of Justice Opinion No. 108, s. 1974. 6. Section 50, Chapter 11, Book IV, EO 292.