DOJ Opinion No. 030, s. 1989

DOJ OPINION NO. 030 , s. 1989 February 6, 1989 The Government Corporate Counsel Government Corporate Counsel Center 1203, A. Mabini St., corner Arquiza Ermita, Manila Sir : This refers to your request for reconsideration of this Department's Opinion No. 152, series of 1988. In subject Opinion No. 152, s. 1988, we expressed the view that Administrative Order Nos. 9 and 10 which respectively created the Office for Development Management (ODM) and attached thereto 6 agencies of the defunct Ministry of Human Settlements were superseded by Executive Order No. 130 even before they could take effect and that Memorandum Orders Nos. 1 to 4 which were issued by former Deputy Executive Secretary Herminio A. Aquino in his capacity as head of ODM, never became effective for lack of publication and more so, for being "founded upon A.Os Nos. 9 and 10, which themselves have not become effective". You state that you are seeking a reconsideration of our aforestated ruling on behalf of your client corporations covered by M.Os. Nos. 1 and 4 namely, Technology and Livelihood Resource Center, Strategic Investments Development Corporation, and Livelihood Corporation. Specifically, you want us to reconsider our Opinion No. 152, s. 1988 so that the "validity of Administrative Order Nos. 9 and 10 and Memorandum Orders Nos. 1 to 4 [may] be upheld and . . . all acts done in pursuance thereof [may] be considered legal and binding". prcd At the outset, we wish to point out that Opinion No. 152, s. 1988 is a study made by this Department on the aforecited issuances of the President for Executive Secretary Catalino Macaraig, Jr. By settled practice and precedents, we do not grant a request for reconsideration of our opinions unless the request comes from the official for whom it was rendered. Nonetheless, in view of the novel issues raised in your letter, we are constrained to issue this clarificatory opinion. You state that Opinion No. 152, s. 1988 is based mainly on the "Resolution" of the Supreme Court in the case of Taada vs. Tuvera, G.R. No. L-63915, promulgated on December 29, 1986 (146 SCRA 44), which modified/clarified the "Decision" promulgated by the Supreme Court in the same case on April 24, 1985 (136 SCRA 27). You contend that in view of the proximity of the dates of issuance of A.Os. Nos. 9 and 10, M.Os. Nos. 1 to 4, and E.O. Nos. 130 with the date of the promulgation of the "Resolution" aforecited, the President could not have had notice of the "Resolution" on the respective dates she issued the aforesaid issuances, and therefore, it should be the doctrine laid down in the "Decision" and not the doctrine laid down in the "Resolution" which should apply in the instant case. The "Decision" in the Taada-Tuvera case reiterated the long standing rule that "publication in the Official Gazette is necessary in these cases where the legislation itself does not provide for its effectivity date". However, the Supreme Court also added that "Article 2 [of the Civil Code] does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity". For the "clear object" of publication in "to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens". Thus, the Supreme Court declared "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 on 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 ." (Emphasis supplied) In the subsequent "Resolution" issued by the Supreme Court in the same Taada-Tuvera case, the Court rules "After a careful study of this provision [Art. 2, C.C.] and of the arguments of the parties, both on the original petition an 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 . . . [because] such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it" (at pp. 452-253). "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". "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 their publication unless a different effectivity date is fixed by the legislature . . . ". . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation". prcd As you have correctly noted, Opinion No. 152, s. 1988 is "based mainly on the Supreme Court's 'Resolution' in the case of Taada vs. Tuvera". We find no cogent reason to change this basis. The "Resolution" embodies the latest doctrinal pronouncement of the Supreme Court on the matter of publication of laws. Moreover, even if we were to rely as you would suggest, on the doctrine laid down in the earlier "Decision" of the Court, we would still arrive at the same conclusion that publication is necessary for the effectivity of A.Os. Nos. 9 and 10 and M.Os. Nos. 1 to 4. As a matter of fact, A.Os. Nos. 9 and 10 had been published, albeit at a much later date (i.e. on October 17, 1987), evidently to conform with the doctrine laid down in the aforesaid "Resolution". True, the earlier Taada-Tuvera "Decision" made a distinction between presidential issuances of a public nature" or "of general applicability" and presidential issuances, such as administrative and executive orders, which "apply only to particular persons or class of persons". As to the first, publications is "mandated by law"; as to the second, they "need not be published on the assumption that they have been circularized to all concerned". It should be noted, however, that there is a basic distinction between the two categories of presidential issuances mentioned by the Court in its "Decision". The first refers obviously to presidential issuances which are legislative in character, such as presidential decrees; the second refers to presidential issuances which are purely administrative or executive in nature, as may be inferred from the Court's observation that they "need not be published on the assumption that they have been circularized to all concerned ". In Administrative law, instructions of the President or other superior officers pertaining to administration or office procedures are embodied in administrative or executive orders, or in memoranda or circulars, and are "circularized to all concerned" for proper dissemination. These issuances according to the "Decision", need not be published. But as to presidential issuances which are laws, such decrees and orders issued by the President in the exercise of law-making powers during martial law or under the Freedom Constitution, these issuances must be published to become effective. The subsequent "Resolution" of the Supreme Court amply clarified this point. In the case of A.Os. Nos. 9 and 10, which are presidential issuances under the Freedom Constitution, while they are denominated Administrative Orders, they are not strictly administrative or executive, but legislative, issuances. A.O. No. 9 created the ODM and expressly empowered it to "repeal and amend" the charters, articles of incorporation and by-laws of corporations transferred or assigned to it. A.O. No. 10 attached certain named corporations to ODM and again specifically gave it authority to "repeal and amend" the charters, articles of incorporation and by-laws of such corporations. M.Os. Nos. 1 to 4 were subsequently issued by ODM pursuant to its authority under A.Os. Nos. 9 and 10 reorganizing four corporations attached to ODM pursuant to its authority under A.Os. Nos. 9 and 10 are legislative in nature and not merely powers of administration. In the same vein, MOs. Nos. 1 to 4 are not purely administrative implementations of the law, but are issuances in the exercise of delegated legislative authority. Thus, following the doctrine laid down in the earlier "Decision" in the Taada-Tuvera case, A.Os. Nos. 9 and 10, and M.Os. Nos. 1 to 4, which partake of the nature of legislation, should be published as a condition for their effectivity. prcd Another point we wish to clarify relative to Opinion No. 152, s. 1988 is our statement in the last paragraph thereof that "publication would not make them [M.Os. Nos. 1 to 4] valid and effective since they are founded upon A.Os. Nos. 9 and 10 which themselves have not become effective". The meaning of this statement is that A.Os. Nos. 9 and 10 which created the ODM and delegated to the legislative authority to revise, amend or repeal the charters, articles of incorporation and by-laws of attached corporations were superseded by the lawmaker before they could take effect after the lapse of fifteen days from their publication in the Official Gazette. This is not to say, however, that the ODM has not been validly created, because it came to life upon issuance of A.O. No. 9. However, ODM could not operate and exercise the powers and functions vested in it under A.O. No. 9 and A.O. No. 10 because the effectivity of A.Os. Nos. 9 and 10 was suspended until after fifteen days following its publication in the Official Gazette as required by law. Such was the situation when the lawmaker issued E.O. No. 130 abolishing the ODM and transferring its powers and functions, except its delegated legislative power to revise, amend or repeal the charters, articles of incorporation and by-laws of attached corporation, to the PMS. This [the abolition of ODM before it became operational], the lawmaker, in the exercise of the plenary power of legislation, had every right to do. It follows from the foregoing that since M.Os. Nos. 1 to 4 were issued by ODM at a time when it was not yet authorized to function because its enabling laws (A.Os. Nos. 9 and 10) were not yet effective, said MOs. are unauthorized issuances, and they cannot be validated later on by the simple expedient of publication. prcd Please be guided accordingly. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice