DOJ Opinion No. 031, s. 1989

DOJ OPINION NO. 031 , s. 1989 February 9, 1989 Mr. Florian Alburo Deputy Director-General National Economic and Development Authority Amber Avenue, Pasig Metro Manila Sir : This has reference to your request for opinion on (a) whether or not there is need for the publication of the Harmonized Commodity Description and Coding System ("HS"); and (b) if so, whether or not there is a need to include in such publication the date of its implementation. prcd You state that following the issuance of this Department's Opinion No. 171, s. 1988, which upheld the adoption of the HS without the necessity of an enabling legislation, the NEDA Board Committee on Tariff and Related Matters agreed to the implementation of the HS thirty (30) days after the release of its official issuance by the NEDA Board, consistent with the requirements under E.O. No. 688; that subsequent to the release of the aforesaid issuance, the Bureau of Customs issued Memorandum-Circular No. 228-88 advising customs personnel thereon; that questions have arisen about the legality of the HS implementation since it has not been published in the Official Gazette or in any leading newspaper; that the HS is a voluminous document printed and sold by the Tariff Commission; and that the decision to adopt the HS had been the subject of an extensive public information campaign. With respect to the first query, it is believed that the publication of the HS is legally necessary. The reason is that, as observed in the abovesaid opinion of this Department, the adoption of the HS under NEDA Resolution No. 28, series of 1987, finds legal anchor upon Section 104 of P.D. No. 1464 (The Tariff and Customs Code), empowering the President to revise tariff rates, and E.O. No. 688, aligning the Philippine tariff nomenclature and classification with the Customs Cooperation Council Nomenclature. It is thus clear that the adoption of the HS by executive action is an implementation of existing legislations. In interpreting Article 2 of the Civil Code, (prior to its modification by E.O. No. 200) which reads: "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." the Supreme Court in Tuvera vs. Taada (146 SCRA 446) declared, as follows: "We hold therefore that all statutes, including those of local application and private laws, shall be published as a a condition for their effectivity , which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. prcd "Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce implement existing law pursuant also to a valid delegation ." (Emphasis ours) Moreover, Section 1 of Commonwealth Act No. 638 states that, among others, "all executive and administrative orders and proclamations, except such as have no general applicability" shall be published in the Official Gazette. It is believed that the HS falls within such category of official documents inasmuch as it may be considered not only as an issuance of the Chief Executive pursuant to his delegated authority under Section 104 of the Tariff Code, but also an administrative directive promulgated by the NEDA. As affirmed by Chief Justice Enrique Fernando in his concurring opinion to the original Tuvera ruling (136 SCRA 37), ". . . publication is essential to the effectivity of legislative or executive act of a general application." As regards the second query, we take the date of implementation of the HS as synonymous with the date of its effectivity, in which case we believe that its publication should include said date. For as laid down categorically in the landmark Taada v . Tuvera decision, the rule is "that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law" (at p. 454). The fact that the HS was, prior to its adoption, the subject of an extensive public information campaign is immaterial since the law prescribes a definite procedure for publication, namely, publication in the Official Gazette or in a newspaper of general circulation. Please be guided accordingly. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice