1. Tanada. Tuvera 1985

7/18/2019 1. Tanada. Tuvera 1985

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

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

LORENZO M. TAÑADA, ABRAHAM . !ARM"ENTO, #$% MO&EMENT OATTORNE'! OR BROTHERHOOD, "NTEGR"T' AND NAT"ONAL"!M, "N(.)MAB"N"*, petitioners,vs.HON. +AN (. T&ERA, i$ i /#p#/i0 # E/0i Ai0#$0 0o 0 ri%$0,HON. +OA7"N &EN!, i$ i /#p#/i0 # Dp0 E/0i Ai0#$0 0o 0

ri%$0 , MEL7"ADE! . DE LA (RZ, i$ i /#p#/i0 # Dir/0or, M#l#/##$R/or% O::i/, #$% LORENDO !. ABLO, i$ i /#p#/i0 # Dir/0or, Br# o: ri$0i$, respondents.

E!(OL"N, J.;

Invoking the people's right to be informed on matters of public concern, a rightrecognized in Section 6, Article IV of the 1!" #hilippine $onstitution, 1 as %ell as theprinciple that la%s to be valid and enforceable must be published in the &fficial azette

or other%ise effectivel( promulgated, petitioners seek a %rit of mandamus to compelrespondent public officials to publish, and)or cause the publication in the &fficial azetteof various presidential decrees, letters of instructions, general orders, proclamations,e*ecutive orders, letter of implementation and administrative orders.

Specificall(, the publication of the follo%ing presidential issuances is sought+

a #residential -ecrees os. 1/, //, "!, "0, , 62, 13", 1!1, 1!, 102,1!, /33, /"2, /6, /06, /0, "3", "1/, "/2, "/, "/6, ""!, ", "0,", "63, "61, "60, 232, 236, 21, 2/!, 2/, 22, 22!, 2!", 206, 21,3", 32, /1, /0, 1, 66, !", !2, 2, , 622, 60, 661, !10,

!"1, !"", !", 033, 03/, 0", 0"6, /", ", 61, 131!413"3, 133, 136341361, 130, 112", 116, 1166, 1/2/, 1/26, 1/3, 1/!0, 1/!, 1"33, 1622,1!!/, 1030, 1013, 101"4101!, 101410/6, 10/41023, 102/4102!.

b 5etter of Instructions os.+ 13, ", 2, !/, 13!, 130, 116, 1"3, 1"6, 121,13, 1", 1, 161, 1!", 103, 10!, 100, 1/, 1", 1, /3/, /32, /3,/3, /114/1", /14//2, //64//0, /"14/", /214/2, /20, /1, /"4/61,/6"4/6, /!14/!", /!4/0", /04/0, /1, /", /!4/, "314"3", "3,

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"1/4"1, "/, "/!, "2", "26, "2, "!, "0, "6/, "6!, "!3, "0/, "0, "06,"64"!, 23, 2"04223, 2224 22, 2!", 206, 200, 20, 31, ", /!, 61,!6, 0!, 2, , 633, 63/, 63, 613, 611, 61/, 61, 621, 62/, 66,!3/, !1/4!1", !/6, 0"!40", 0!040!, 001, 00/, "423, 62,!,112411!0,110341/!0.

c eneral &rders os.+ 12, /, 0, , 63, 6/, 6", 62 6.

d #roclamation os.+ 11/6, 1122, 112!, 111, 116, 1/!3, 1/01, 1"141/6, 1/, 1"/, 1", 1"0, 123412!, 13410, 1614100, 1341, 1241633, 16364163, 161/416/0, 16"34162, 162416, 16!41!31, 1!341!/", 1!"141!"2, 1!"!41!2/, 1!22, 1!2641!1, 1!/, 1!2,1!6/, 1!6241!0!, 1!041!, 1!!, 1033, 103/41032, 10364103!, 101/41012, 1016, 10/410/6, 10/, 10"1410"/, 10"410"6, 10"41023, 102"41022, 10264102!, 102, 10"4100, 1063, 1066, 1060, 10!3, 10!64100,10/, 133, 110, 1/", 1"", 1/, 16", 164166, 1604102, 1064

/3/0, /3"34/322, /3264/12, /12!4/161, /16"4//22.

e 7*ecutive &rders os.+ 211, 21", 212, 2/!, 2/422, 2!4 2!1, 2!242/, 2243!, 3413, //, /24/0, "14"/, "6, "0, 2"422, 2,14", 63, 6", 6!460, !3, !2, ", 2, 04632, 63, 6114 62!,6246!!, 6!4!3", !34!3!, !1/4!06, !0040/, 0240!.

f 5etters of Implementation os.+ !, 0, , 13, 114//, /4/!, ", 3, 1, ,!6, 03401, /, 2, , 13!, 1/3, 1//, 1/".

g Administrative &rders os.+ "2!, "20, "/4"2, "634 "!0, "0342"", 2"64

2".

8he respondents, through the Solicitor eneral, %ould have this case dismissed outrighton the ground that petitioners have no legal personalit( or standing to bring the instantpetition. 8he vie% is submitted that in the absence of an( sho%ing that petitioners arepersonall( and directl( affected or pre9udiced b( the alleged non4publication of thepresidential issuances in :uestion 2 said petitioners are %ithout the re:uisite legalpersonalit( to institute this mandamus proceeding, the( are not being ;aggrievedparties; %ithin the meaning of Section ", <ule 6 of the <ules of $ourt, %hich %e :uote+

S7$. ". Petition for Mandamus.=>hen an( tribunal, corporation, board or

person unla%full( neglects the performance of an act %hich the la%specificall( en9oins as a dut( resulting from an office, trust, or station, or unla%full( e*cludes another from the use a rd en9o(ment of a right or office to %hich such other is entitled, and there is no other plain, speed(and ade:uate remed( in the ordinar( course of la%, the person aggrievedthereb( ma( file a verified petition in the proper court alleging the facts%ith certaint( and pra(ing that 9udgment be rendered commanding thedefendant, immediatel( or at some other specified time, to do the act

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re:uired to be done to #rotect the rights of the petitioner, and to pa( thedamages sustained b( the petitioner b( reason of the %rongful acts of thedefendant.

?pon the other hand, petitioners maintain that since the sub9ect of the petition concerns

a public right and its ob9ect is to compel the performance of a public dut(, the( need notsho% an( specific interest for their petition to be given due course.

8he issue posed is not one of first impression. As earl( as the 113 case of Severinovs. Governor General , 3 this $ourt held that %hile the general rule is that ;a %rit of mandamus %ould be granted to a private individual onl( in those cases %here he hassome private or particular interest to be subserved, or some particular right to beprotected, independent of that %hich he holds %ith the public at large,; and ;it is for thepublic officers e*clusivel( to appl( for the %rit %hen public rights are to be subserved@ithchell vs. Boardmen, ! .e., 26,; nevertheless, ;%hen the :uestion is one of public right and the ob9ect of the mandamus is to procure the enforcement of a public

dut(, the people are regarded as the real part( in interest and the relator at %hoseinstigation the proceedings are instituted need not sho% that he has an( legal or specialinterest in the result, it being sufficient to sho% that he is a citizen and as suchinterested in the e*ecution of the la%s @Cigh, 7*traordinar( 5egal <emedies, "rd ed.,sec. 2"1.

8hus, in said case, this $ourt recognized the relator 5ope Severino, a private individual,as a proper part( to the mandamus proceedings brought to compel the overnor eneral to call a special election for the position of municipal president in the to%n of Sila(, egros &ccidental. Speaking for this $ourt, r. Dustice rant 8. 8rent said+

>e are therefore of the opinion that the %eight of authorit( supports theproposition that the relator is a proper part( to proceedings of thischaracter %hen a public right is sought to be enforced. If the general rulein America %ere other%ise, %e think that it %ould not be applicable to thecase at bar for the reason 'that it is al%a(s dangerous to appl( a generalrule to a particular case %ithout keeping in mind the reason for the rule,because, if under the particular circumstances the reason for the rule doesnot e*ist, the rule itself is not applicable and reliance upon the rule ma(%ell lead to error'

o reason e*ists in the case at bar for appl(ing the general rule insisted

upon b( counsel for the respondent. 8he circumstances %hich surroundthis case are different from those in the ?nited States, inasmuch as if therelator is not a proper part( to these proceedings no other person couldbe, as %e have seen that it is not the dut( of the la% officer of theovernment to appear and represent the people in cases of this character.

8he reasons given b( the $ourt in recognizing a private citizen's legal personalit( in theaforementioned case appl( s:uarel( to the present petition. $learl(, the right sought to

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be enforced b( petitioners herein is a public right recognized b( no less than thefundamental la% of the land. If petitioners %ere not allo%ed to institute this proceeding, it%ould indeed be difficult to conceive of an( other person to initiate the same,considering that the Solicitor eneral, the government officer generall( empo%ered torepresent the people, has entered his appearance for respondents in this case.

<espondents further contend that publication in the &fficial azette is not a sine :uanon re:uirement for the effectivit( of la%s %here the la%s themselves provide for their o%n effectivit( dates. It is thus submitted that since the presidential issuances in:uestion contain special provisions as to the date the( are to take effect, publication inthe &fficial azette is not indispensable for their effectivit(. 8he point stressed isanchored on Article / of the $ivil $ode+

Art. /. 5a%s shall take effect after fifteen da(s follo%ing the completion of their publication in the &fficial azette, unless it is other%ise provided, ...

8he interpretation given b( respondent is in accord %ith this $ourt's construction of saidarticle. In a long line of decisions, 4 this $ourt has ruled that publication in the &fficialazette is necessar( in those cases %here the legislation itself does not provide for itseffectivit( date4for then the date of publication is material for determining its date of effectivit(, %hich is the fifteenth da( follo%ing its publication4but not %hen the la% itself provides for the date %hen it goes into effect.

<espondents' argument, ho%ever, is logicall( correct onl( insofar as it e:uates theeffectivit( of la%s %ith the fact of publication. $onsidered in the light of other statutesapplicable to the issue at hand, the conclusion is easil( reached that said Article / doesnot preclude the re:uirement of publication in the &fficial azette, even if the la% itself

provides for the date of its effectivit(. 8hus, Section 1 of $ommon%ealth Act 6"0provides as follo%s+

Section 1. 8here shall be published in the &fficial azette @1 all importantlegisiative acts and resolutions of a public nature of the, $ongress of the#hilippinesE @/ all e*ecutive and administrative orders and proclamations,e*cept such as have no general applicabilit(E @" decisions or abstracts of decisions of the Supreme $ourt and the $ourt of Appeals as ma( bedeemed b( said courts of sufficient importance to be so publishedE @2such documents or classes of documents as ma( be re:uired so to bepublished b( la%E and @ such documents or classes of documents as the

#resident of the #hilippines shall determine from time to time to havegeneral applicabilit( and legal effect, or %hich he ma( authorize so to bepublished. ...

8he clear ob9ect of the above4:uoted provision is to give the general public ade:uatenotice of the various la%s %hich are to regulate their actions and conduct as citizens.>ithout such notice and publication, there %ould be no basis for the application of thema*im ;ignorantia legis non e*cusat.; It %ould be the height of in9ustice to punish or

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other%ise burden a citizen for the transgression of a la% of %hich he had no notice%hatsoever, not even a constructive one.

#erhaps at no time since the establishment of the #hilippine <epublic has thepublication of la%s taken so vital significance that at this time %hen the people have

besto%ed upon the #resident a po%er heretofore en9o(ed solel( b( the legislature.>hile the people are kept abreast b( the mass media of the debates and deliberationsin the Batasan #ambansa=and for the diligent ones, read( access to the legislativerecords=no such publicit( accompanies the la%4making process of the #resident.8hus, %ithout publication, the people have no means of kno%ing %hat presidentialdecrees have actuall( been promulgated, much less a definite %a( of informingthemselves of the specific contents and te*ts of such decrees. As the Supreme $ourt of Spain ruled+ ;Ba9o la denominacion generica de le(es, se comprenden tambien losreglamentos, <eales decretos, Instrucciones, $irculares ( <eales ordines dictadas deconformidad con las mismas por el obierno en uso de su potestad. 5

8he ver( first clause of Section I of $ommon%ealth Act 6"0 reads+ ;8here shall bepublished in the &fficial azette ... .; 8he %ord ;shall; used therein imposes uponrespondent officials an imperative dut(. 8hat dut( must be enforced if the $onstitutionalright of the people to be informed on matters of public concern is to be given substanceand realit(. 8he la% itself makes a list of %hat should be published in the &fficialazette. Such listing, to our mind, leaves respondents %ith no discretion %hatsoever asto %hat must be included or e*cluded from such publication.

8he publication of all presidential issuances ;of a public nature; or ;of generalapplicabilit(; is mandated b( la%. &bviousl(, presidential decrees that provide for fines,forfeitures or penalties for their violation or other%ise impose a burden or. the people,

such as ta* and revenue measures, fall %ithin this categor(. &ther presidentialissuances %hich appl( onl( to particular persons or class of persons such asadministrative and e*ecutive orders need not be published on the assumption that the(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 applicabilit(; is a re:uirement of due process. It is a rule of la% that before aperson ma( be bound b( la%, he must first be officiall( and specificall( informed of itscontents. As Dustice $laudio 8eehankee said in Peralta vs. COMELEC <+

In a time of proliferating decrees, orders and letters of instructions %hich

all form part of the la% of the land, the re:uirement of due process and the<ule of 5a% demand that the &fficial azette as the official governmentrepositor( promulgate and publish the te*ts of all such decrees, ordersand instructions so that the people ma( kno% %here to obtain their officialand specific contents.

8he $ourt therefore declares that presidential issuances of general application, %hichhave not been published, shall have no force and effect. Some members of the $ourt,

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:uite apprehensive about the possible unsettling effect this decision might have on actsdone in reliance of the validit( of those presidential decrees %hich %ere published onl(during the pendenc( of this petition, have put the :uestion as to %hether the $ourt'sdeclaration of invalidit( appl( to #.-.s %hich had been enforced or implemented prior totheir publication. 8he ans%er is all too familiar. In similar situations in the past this $ourt

had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Ban 8 to %it+

8he courts belo% have proceeded on the theor( that the Act of $ongress,having been found to be unconstitutional, %as not a la%E that it %asinoperative, conferring no rights and imposing no duties, and henceaffording no basis for the challenged decree. orton v. Shelb( $ount(, 110?.S. 2/, 22/E $hicago, 1. 5. <(. $o. v. Cackett, //0 ?.S. , 66. It is:uite clear, ho%ever, that such broad statements as to the effect of adetermination of unconstitutionalit( must be taken %ith :ualifications. 8heactual e*istence of a statute, prior to such a determination, is an operative

fact and ma( have conse:uences %hich cannot 9ustl( be ignored. 8hepast cannot al%a(s be erased b( a ne% 9udicial declaration. 8he effect of the subse:uent ruling as to invalidit( ma( have to be considered in variousaspects4%ith respect to particular conduct, private and official. Fuestionsof rights claimed to have become vested, of status, of prior determinationsdeemed to have finalit( and acted upon accordingl(, of public polic( in thelight of the nature both of the statute and of its previous application,demand e*amination. 8hese :uestions are among the most difficult of those %hich have engaged the attention of courts, state and federal and itis manifest from numerous decisions that an all4inclusive statement of aprinciple of absolute retroactive invalidit( cannot be 9ustified.

$onsistentl( %ith the above principle, this $ourt in !utter vs. Este"an 9 sustained theright of a part( under the oratorium 5a%, albeit said right had accrued in his favor before said la% %as declared unconstitutional b( this $ourt.

Similarl(, the implementation)enforcement of presidential decrees prior to their publication in the &fficial azette is ;an operative fact %hich ma( have conse:uences%hich cannot be 9ustl( ignored. 8he past cannot al%a(s be erased b( a ne% 9udicialdeclaration ... that an all4inclusive statement of a principle of absolute retroactiveinvalidit( cannot be 9ustified.;

Grom the report submitted to the $ourt b( the $lerk of $ourt, it appears that of thepresidential decrees sought b( petitioners to be published in the &fficial azette, onl(#residential -ecrees os. 131 to 13"3, inclusive, 1/!0, and 1"! to 1", inclusive,have not been so published. 1= either the sub9ect matters nor the te*ts of these #-scan be ascertained since no copies thereof are available. But %hatever their sub9ectmatter ma( be, it is undisputed that none of these unpublished #-s has ever beenimplemented or enforced b( the government. In Pesigan vs. #ngeles, 11 the $ourt,through Dustice <amon A:uino, ruled that ;publication is necessar( to apprise the public

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of the contents of @penal regulations and make the said penalties binding on thepersons affected thereb(. ; 8he cogenc( of this holding is apparentl( recognized b(respondent officials considering the manifestation in their comment that ;thegovernment, as a matter of polic(, refrains from prosecuting violations of criminal la%suntil the same shall have been published in the &fficial azette or in some other

publication, even though some criminal la%s provide that the( shall take effectimmediatel(.

>C7<7G&<7, the $ourt hereb( orders respondents to publish in the &fficial azetteall unpublished presidential issuances %hich are of general application, and unless sopublished, the( shall have no binding force and effect.

S& &<-7<7-.

!elova$ %.$ concurs.

#&uino$ %.$ too no 'art.

Conce'cion$ %r.$ %.$ is on leave.

!p#r#0 Opi$io$

ERNANDO, C.J., concurring H%ith :ualification+

8here is on the %hole acceptance on m( part of the vie%s e*pressed in the abl( %rittenopinion of Dustice 7scolin. I am unable, ho%ever, to concur insofar as it %ouldun:ualifiedl( impose the re:uirement of publication in the &fficial azette for unpublished ;presidential issuances; to have binding force and effect.

I shall e*plain %h(.

1. It is of course true that %ithout the re:uisite publication, a due process :uestion

%ould arise if made to appl( adversel( to a part( %ho is not even a%are of the e*istenceof an( legislative or e*ecutive act having the force and effect of la%. ( point is thatsuch publication re:uired need not be confined to the &fficial azette. Grom thepragmatic standpoint, there is an advantage to be gained. It conduces to certaint(. 8hatis too be admitted. It does not follo%, ho%ever, that failure to do so %ould in all casesand under all circumstances result in a statute, presidential decree or an( other e*ecutive act of the same categor( being bereft of an( binding force and effect. 8o sohold %ould, for me, raise a constitutional :uestion. Such a pronouncement %ould lend

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itself to the interpretation that such a legislative or presidential act is bereft of theattribute of effectivit( unless published in the &fficial azette. 8here is no suchre:uirement in the $onstitution as Dustice #lana so aptl( pointed out. It is true that %hatis decided no% applies onl( to past ;presidential issuances;. onetheless, thisclarification is, to m( mind, needed to avoid an( possible misconception as to %hat is

re:uired for an( statute or presidential act to be impressed %ith binding force or effectivit(.

/. It is :uite understandable then %h( I concur in the separate opinion of Dustice #lana.Its first paragraph sets forth %hat to me is the constitutional doctrine applicable to thiscase. 8hus+ ;8he #hilippine $onstitution does not re:uire the publication of la%s as aprere:uisite for their effectivit(, unlike some $onstitutions else%here. It ma( be saidthough that the guarantee of due process re:uires notice of la%s to affected #artiesbefore the( can be bound thereb(E but such notice is not necessaril( b( publication inthe &fficial azette. 8he due process clause is not that precise. 1 I am like%ise inagreement %ith its closing paragraph+ ;In fine, I concur in the ma9orit( decision to the

e*tent that it re:uires notice before la%s become effective, for no person should bebound b( a la% %ithout notice. 8his is elementar( fairness. Co%ever, I beg to disagreeinsofar as it holds that such notice shall be b( publication in the &fficial azette. 2

". It suffices, as %as stated b( Dudge 5earned Cand, that la% as the command of thegovernment ;must be ascertainable in some form if it is to be enforced at all. 3 It %ouldindeed be to reduce it to the level of mere futilit(, as pointed out b( Dustice $ardozo, ;if itis unkno%n and unkno%able. 4 #ublication, to repeat, is thus essential. >hat I am notprepared to subscribe to is the doctrine that it must be in the &fficial azette. 8o be sureonce published therein there is the ascertainable mode of determining the e*act date of its effectivit(. Still for me that does not dispose of the :uestion of %hat is the 9ural effect

of past presidential decrees or e*ecutive acts not so published. Gor prior thereto, itcould be that parties a%are of their e*istence could have conducted themselves inaccordance %ith their provisions. If no legal conse:uences could attach due to lack of publication in the &fficial azette, then serious problems could arise. #revioustransactions based on such ;#residential Issuances; could be open to :uestion. attersdeemed settled could still be in:uired into. I am not prepared to hold that such an effectis contemplated b( our decision. >here such presidential decree or e*ecutive act ismade the basis of a criminal prosecution, then, of course, its e* post facto character becomes evident. 5 In civil cases though, retroactivit( as such is not conclusive on thedue process aspect. 8here must still be a sho%ing of arbitrariness. oreover, %here thechallenged presidential decree or e*ecutive act %as issued under the police po%er, thenon4impairment clause of the $onstitution ma( not al%a(s be successfull( invoked.8here must still be that process of balancing to determine %hether or not it could in sucha case be tainted b( infirmit(. 6 In traditional terminolog(, there could arise then a:uestion of unconstitutional application. 8hat is as far as it goes.

2. 5et me make therefore that m( :ualified concurrence goes no further than to affirmthat publication is essential to the effectivit( of a legislative or e*ecutive act of a generalapplication. I am not in agreement %ith the vie% that such publication must be in the

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&fficial azette. 8he $ivil $ode itself in its Article / e*pressl( recognizes that the rule asto la%s taking effect after fifteen da(s follo%ing the completion of their publication in the&fficial azette is sub9ect to this e*ception, ;unless it is other%ise provided.; oreover,the $ivil $ode is itself onl( a legislative enactment, <epublic Act o. "06. It does notand cannot have the 9uridical force of a constitutional command. A later legislative or

e*ecutive act %hich has the force and effect of la% can legall( provide for a differentrule.

. or can I agree %ith the rather s%eeping conclusion in the opinion of Dustice 7scolinthat presidential decrees and e*ecutive acts not thus previousl( published in the &fficialazette %ould be devoid of an( legal character. 8hat %ould be, in m( opinion, to go toofar. It ma( be fraught, as earlier noted, %ith undesirable conse:uences. I find m(self therefore unable to (ield assent to such a pronouncement.

I am authorized to state that Dustices akasiar, Abad Santos, $uevas, and Alampa(concur in this separate opinion.

Maasiar$ #"ad Santos$ Cuevas and #lam'ay$ %%.$ concur.

TEEHAN>EE, J., concurring+

I concur %ith the main opinion of r. Dustice 7scolin and the concurring opinion of me.Dustice Cerrera. 8he <ule of 5a% connotes a bod( of norms and la%s published andascertainable and of e:ual application to all similarl( circumstances and not sub9ect toarbitrar( change but onl( under certain set procedures. 8he $ourt has consistentl(

stressed that ;it is an elementar( rule of fair pla( and 9ustice that a reasonableopportunit( to be informed must be afforded to the people %ho are commanded to obe(before the( can be punished for its violation, 1 citing the settled principle based on dueprocess enunciated in earlier cases that ;before the public is bound b( its contents,especiall( its penal provisions, a la%, regulation or circular must first be published andthe people officiall( and speciall( informed of said contents and its penalties.

>ithout official publication in the &fficial azette as re:uired b( Article / of the $ivil$ode and the <evised Administrative $ode, there %ould be no basis nor 9ustification for the corollar( rule of Article " of the $ivil $ode Hbased on constructive notice that theprovisions of the la% are ascertainable from the public and official repositor( %here the(

are dul( published that ;Ignorance of the la% e*cuses no one from compliancethere%ith.

<espondents' contention based on a misreading of Article / of the $ivil $ode that ;onl(la%s %hich are silent as to their effectivit( @date need be published in the &fficialazette for their effectivit(; is manifestl( untenable. 8he plain te*t and meaning of the$ivil $ode is that ;la%s shall take effect after fifteen da(s follo%ing the completion of their publication in the &fficial azette, unless it is other(ise 'rovided$ ) i.e. a different

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effectivit( date is provided b( the la% itself. 8his proviso perforce refers to a la% that hasbeen dul( published pursuant to the basic constitutional re:uirements of due process.8he best e*ample of this is the $ivil $ode itself+ the same Article / provides other%isethat it ;shall take effect @onl( one (ear @not 1 da(s after such publication. 2 8o sustainrespondents' misreading that ;most la%s or decrees specif( the date of their effectivit(

and for this reason, publication in the &fficial azette is not necessar( for their effectivit( 3 %ould be to nullif( and render nugator( the $ivil $ode's indispensable andessential re:uirement of prior publication in the &fficial azette b( the simple e*pedientof providing for immediate effectivit( or an earlier effectivit( date in the la% itself "eforethe completion of 1 da(s follo%ing its publication %hich is the period generall( fi*ed b(the $ivil $ode for its proper dissemination.

MELEN("O-HERRERA, J., concurring+

I agree. 8here cannot be an( :uestion but that even if a decree provides for a date of effectivit(, it has to be published. >hat I %ould like to state in connection %ith thatproposition is that %hen a date of effectivit( is mentioned in the decree but the decreebecomes effective onl( fifteen H1 da(s after its publication in the &fficial azette, it %illnot mean that the decree can have retroactive effect to the date of effectivit( mentionedin the decree itself. 8here should be no retroactivit( if the retroactivit( %ill run counter toconstitutional rights or shall destro( vested rights.

LANA, J., concurring H%ith :ualification+

8he #hilippine $onstitution does not re:uire the publication of la%s as a prere:uisite for their effectivit(, unlike some $onstitutions else%here. ? It ma( be said though that theguarantee of due process re:uires notice of la%s to affected parties before the( can bebound thereb(E but such notice is not necessaril( b( publication in the &fficial azette.8he due process clause is not that precise. either is the publication of la%s in theOfficial Ga*ette re:uired b( an( statute as a 'rere&uisite for their effectivity$ if said la%salread( provide for their effectivit( date.

Article / of the $ivil $ode provides that ;la%s shall take effect after fifteen da(s follo%ingthe completion of their publication in the &fficial azette, unless it is other(ise 'rovided

; 8%o things ma( be said of this provision+ Girstl(, it obviousl( does not appl( to a la%%ith a built4in provision as to %hen it %ill take effect. Secondl(, it clearl( recognizes thateach la% ma( provide not onl( a different period for reckoning its effectivit( date but alsoa different mode of notice. 8hus, a la% ma( prescribe that it shall be publishedelse%here than in the &fficial azette.

$ommon%ealth Act o. 6"0, in m( opinion, does not support the proposition that for their effectivity$ la%s must be published in the &fficial azette. 8he said la% is simpl(

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;An Act to #rovide for the ?niform #ublication and -istribution of the &fficial azette.;$onformabl( there%ith, it authorizes the publication of the &fficial azette, determinesits fre:uenc(, provides for its sale and distribution, and defines the authorit( of the-irector of #rinting in relation thereto. It also enumerates %hat shall be published in the&fficial azette, among them, ;important legislative acts and resolutions of a public

nature of the $ongress of the #hilippines; and ;all e*ecutive and administrative ordersand proclamations, e*cept such as have no general applicabilit(.; It is note%orth( thatnot all legislative acts are re:uired to be published in the &fficial azette but onl(;important; ones ;of a public nature.; oreover, the said la% does not provide thatpublication in the &fficial azette is essential for the effectivit( of la%s. 8his is as itshould be, for all statutes are e:ual and stand on the same footing. A la%, especiall( anearlier one of general application such as $ommon%ealth Act o. 6"0, cannot nullif( or restrict the operation of a subse:uent statute that has a provision of its o%n as to %henand ho% it %ill take effect. &nl( a higher la%, %hich is the $onstitution, can assume thatrole.

In fine, I concur in the ma9orit( decision to the e*tent that it re:uires notice before la%sbecome effective, for no person should be bound b( a la% %ithout notice. 8his iselementar( fairness. Co%ever, I beg to disagree insofar as it holds that such notice shallbe b( publication in the &fficial azette.

Cuevas and #lam'ay$ %%.$ concur.

GT"ERREZ, +r., J., concurring+

I concur insofar as publication is necessar( but reserve m( vote as to the necessit( of such publication being in the &fficial azette.

DE LA ENTE, J., concurring+

I concur insofar as the opinion declares the unpublished decrees and issuances of apublic nature or general applicabilit( ineffective, until due publication thereof.

!p#r#0 Opi$io$

ERNANDO, C.J., concurring H%ith :ualification+

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8here is on the %hole acceptance on m( part of the vie%s e*pressed in the abl( %rittenopinion of Dustice 7scolin. I am unable, ho%ever, to concur insofar as it %ouldun:ualifiedl( impose the re:uirement of publication in the &fficial azette for unpublished ;presidential issuances; to have binding force and effect.

I shall e*plain %h(.

1. It is of course true that %ithout the re:uisite publication, a due process :uestion%ould arise if made to appl( adversel( to a part( %ho is not even a%are of the e*istenceof an( legislative or e*ecutive act having the force and effect of la%. ( point is thatsuch publication re:uired need not be confined to the &fficial azette. Grom thepragmatic standpoint, there is an advantage to be gained. It conduces to certaint(. 8hatis too be admitted. It does not follo%, ho%ever, that failure to do so %ould in all casesand under all circumstances result in a statute, presidential decree or an( other e*ecutive act of the same categor( being bereft of an( binding force and effect. 8o sohold %ould, for me, raise a constitutional :uestion. Such a pronouncement %ould lend

itself to the interpretation that such a legislative or presidential act is bereft of theattribute of effectivit( unless published in the &fficial azette. 8here is no suchre:uirement in the $onstitution as Dustice #lana so aptl( pointed out. It is true that %hatis decided no% applies onl( to past ;presidential issuances;. onetheless, thisclarification is, to m( mind, needed to avoid an( possible misconception as to %hat isre:uired for an( statute or presidential act to be impressed %ith binding force or effectivit(.

/. It is :uite understandable then %h( I concur in the separate opinion of Dustice #lana.Its first paragraph sets forth %hat to me is the constitutional doctrine applicable to thiscase. 8hus+ ;8he #hilippine $onstitution does not re:uire the publication of la%s as a

prere:uisite for their effectivit(, unlike some $onstitutions else%here. It ma( be saidthough that the guarantee of due process re:uires notice of la%s to affected #artiesbefore the( can be bound thereb(E but such notice is not necessaril( b( publication inthe &fficial azette. 8he due process clause is not that precise. 1 I am like%ise inagreement %ith its closing paragraph+ ;In fine, I concur in the ma9orit( decision to thee*tent that it re:uires notice before la%s become effective, for no person should bebound b( a la% %ithout notice. 8his is elementar( fairness. Co%ever, I beg to disagreeinsofar as it holds that such notice shall be b( publication in the &fficial azette. 2

". It suffices, as %as stated b( Dudge 5earned Cand, that la% as the command of thegovernment ;must be ascertainable in some form if it is to be enforced at all. 3 It %ouldindeed be to reduce it to the level of mere futilit(, as pointed out b( Dustice $ardozo, ;if itis unkno%n and unkno%able. 4 #ublication, to repeat, is thus essential. >hat I am notprepared to subscribe to is the doctrine that it must be in the &fficial azette. 8o be sureonce published therein there is the ascertainable mode of determining the e*act date of its effectivit(. Still for me that does not dispose of the :uestion of %hat is the 9ural effectof past presidential decrees or e*ecutive acts not so published. Gor prior thereto, itcould be that parties a%are of their e*istence could have conducted themselves inaccordance %ith their provisions. If no legal conse:uences could attach due to lack of

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publication in the &fficial azette, then serious problems could arise. #revioustransactions based on such ;#residential Issuances; could be open to :uestion. attersdeemed settled could still be in:uired into. I am not prepared to hold that such an effectis contemplated b( our decision. >here such presidential decree or e*ecutive act ismade the basis of a criminal prosecution, then, of course, its e* post facto character

becomes evident.5

In civil cases though, retroactivit( as such is not conclusive on thedue process aspect. 8here must still be a sho%ing of arbitrariness. oreover, %here thechallenged presidential decree or e*ecutive act %as issued under the police po%er, thenon4impairment clause of the $onstitution ma( not al%a(s be successfull( invoked.8here must still be that process of balancing to determine %hether or not it could in sucha case be tainted b( infirmit(. 6 In traditional terminolog(, there could arise then a:uestion of unconstitutional application. 8hat is as far as it goes.

2. 5et me make therefore that m( :ualified concurrence goes no further than to affirmthat publication is essential to the effectivit( of a legislative or e*ecutive act of a generalapplication. I am not in agreement %ith the vie% that such publication must be in the

&fficial azette. 8he $ivil $ode itself in its Article / e*pressl( recognizes that the rule asto la%s taking effect after fifteen da(s follo%ing the completion of their publication in the&fficial azette is sub9ect to this e*ception, ;unless it is other%ise provided.; oreover,the $ivil $ode is itself onl( a legislative enactment, <epublic Act o. "06. It does notand cannot have the 9uridical force of a constitutional command. A later legislative or e*ecutive act %hich has the force and effect of la% can legall( provide for a differentrule.

. or can I agree %ith the rather s%eeping conclusion in the opinion of Dustice 7scolinthat presidential decrees and e*ecutive acts not thus previousl( published in the &fficialazette %ould be devoid of an( legal character. 8hat %ould be, in m( opinion, to go too

far. It ma( be fraught, as earlier noted, %ith undesirable conse:uences. I find m(self therefore unable to (ield assent to such a pronouncement.

I am authorized to state that Dustices akasiar, Abad Santos, $uevas, and Alampa(concur in this separate opinion.

Maasiar$ #"ad Santos$ Cuevas and #lam'ay$ %%.$ concur.

TEEHAN>EE, J., concurring+

I concur %ith the main opinion of r. Dustice 7scolin and the concurring opinion of me.Dustice Cerrera. 8he <ule of 5a% connotes a bod( of norms and la%s published andascertainable and of e:ual application to all similarl( circumstances and not sub9ect toarbitrar( change but onl( under certain set procedures. 8he $ourt has consistentl(stressed that ;it is an elementar( rule of fair pla( and 9ustice that a reasonableopportunit( to be informed must be afforded to the people %ho are commanded to obe(before the( can be punished for its violation, 1 citing the settled principle based on due

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process enunciated in earlier cases that ;before the public is bound b( its contents,especiall( its penal provisions, a la%, regulation or circular must first be published andthe people officiall( and speciall( informed of said contents and its penalties.

>ithout official publication in the &fficial azette as re:uired b( Article / of the $ivil

$ode and the <evised Administrative $ode, there %ould be no basis nor 9ustification for the corollar( rule of Article " of the $ivil $ode Hbased on constructive notice that theprovisions of the la% are ascertainable from the public and official repositor( %here the(are dul( published that ;Ignorance of the la% e*cuses no one from compliancethere%ith.

<espondents' contention based on a misreading of Article / of the $ivil $ode that ;onl(la%s %hich are silent as to their effectivit( @date need be published in the &fficialazette for their effectivit(; is manifestl( untenable. 8he plain te*t and meaning of the$ivil $ode is that ;la%s shall take effect after fifteen da(s follo%ing the completion of their publication in the &fficial azette, unless it is other(ise 'rovided$ ) i.e. a different

effectivit( date is provided b( the la% itself. 8his proviso perforce refers to a la% that hasbeen dul( published pursuant to the basic constitutional re:uirements of due process.8he best e*ample of this is the $ivil $ode itself+ the same Article / provides other%isethat it ;shall take effect @onl( one (ear @not 1 da(s after such publication. 2 8o sustainrespondents' misreading that ;most la%s or decrees specif( the date of their effectivit(and for this reason, publication in the &fficial azette is not necessar( for their effectivit( 3 %ould be to nullif( and render nugator( the $ivil $ode's indispensable andessential re:uirement of prior publication in the &fficial azette b( the simple e*pedientof providing for immediate effectivit( or an earlier effectivit( date in the la% itself "eforethe completion of 1 da(s follo%ing its publication %hich is the period generall( fi*ed b(the $ivil $ode for its proper dissemination.

MELEN("O-HERRERA, J., concurring+

I agree. 8here cannot be an( :uestion but that even if a decree provides for a date of effectivit(, it has to be published. >hat I %ould like to state in connection %ith thatproposition is that %hen a date of effectivit( is mentioned in the decree but the decreebecomes effective onl( fifteen H1 da(s after its publication in the &fficial azette, it %illnot mean that the decree can have retroactive effect to the date of effectivit( mentionedin the decree itself. 8here should be no retroactivit( if the retroactivit( %ill run counter to

constitutional rights or shall destro( vested rights.

LANA, J., concurring H%ith :ualification+

8he #hilippine $onstitution does not re:uire the publication of la%s as a prere:uisite for their effectivit(, unlike some $onstitutions else%here. ? It ma( be said though that the

7/18/2019 1. Tanada. Tuvera 1985


guarantee of due process re:uires notice of la%s to affected parties before the( can bebound thereb(E but such notice is not necessaril( b( publication in the &fficial azette.8he due process clause is not that precise. either is the publication of la%s in theOfficial Ga*ette re:uired b( an( statute as a 'rere&uisite for their effectivity$ if said la%salread( provide for their effectivit( date.

Article / of the $ivil $ode provides that ;la%s shall take effect after fifteen da(s follo%ingthe completion of their publication in the &fficial azette, unless it is other(ise 'rovided ; 8%o things ma( be said of this provision+ Girstl(, it obviousl( does not appl( to a la%%ith a built4in provision as to %hen it %ill take effect. Secondl(, it clearl( recognizes thateach la% ma( provide not onl( a different period for reckoning its effectivit( date but alsoa different mode of notice. 8hus, a la% ma( prescribe that it shall be publishedelse%here than in the &fficial azette.

$ommon%ealth Act o. 6"0, in m( opinion, does not support the proposition that for their effectivity$ la%s must be published in the &fficial azette. 8he said la% is simpl(

;An Act to #rovide for the ?niform #ublication and -istribution of the &fficial azette.;$onformabl( there%ith, it authorizes the publication of the &fficial azette, determinesits fre:uenc(, provides for its sale and distribution, and defines the authorit( of the-irector of #rinting in relation thereto. It also enumerates %hat shall be published in the&fficial azette, among them, ;important legislative acts and resolutions of a publicnature of the $ongress of the #hilippines; and ;all e*ecutive and administrative ordersand proclamations, e*cept such as have no general applicabilit(.; It is note%orth( thatnot all legislative acts are re:uired to be published in the &fficial azette but onl(;important; ones ;of a public nature.; oreover, the said la% does not provide thatpublication in the &fficial azette is essential for the effectivit( of la%s. 8his is as itshould be, for all statutes are e:ual and stand on the same footing. A la%, especiall( an

earlier one of general application such as $ommon%ealth Act o. 6"0, cannot nullif( or restrict the operation of a subse:uent statute that has a provision of its o%n as to %henand ho% it %ill take effect. &nl( a higher la%, %hich is the $onstitution, can assume thatrole.

In fine, I concur in the ma9orit( decision to the e*tent that it re:uires notice before la%sbecome effective, for no person should be bound b( a la% %ithout notice. 8his iselementar( fairness. Co%ever, I beg to disagree insofar as it holds that such notice shallbe b( publication in the &fficial azette.

Cuevas and #lam'ay$ %%.$ concur.

GT"ERREZ, +r., J., concurring+

I concur insofar as publication is necessar( but reserve m( vote as to the necessit( of such publication being in the &fficial azette.

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DE LA ENTE, J., concurring+

I concur insofar as the opinion declares the unpublished decrees and issuances of a

public nature or general applicabilit( ineffective, until due publication thereof.

oo0$o0

1 Section 6. 8he right of the people to information on matters of publicconcern shag be recognized, access to official records, and to documentsand papers pertaining to official acts, transactions, or decisions, shag beafforded the citizens sub9ect to such limitation as ma( be provided b( la%.

/ Anti4$hinese 5eague vs. Geli*, !! #hil. 131/E $ostas vs. Aidanese, 2#hil. "2E Almario vs. $it( a(or, 16 S$<A 11E#arting vs. San Dose

#etroleum, 10 S$<A /2E -umlao vs. $omelec, S$<A "/.

" 16 #hil. "66, "!0.

2 $amacho vs. $ourt of Industrial <elations, 03 #hil 020E e9ia vs.Balolong, 01 #hil. 206E <epublic of the #hilippines vs. 7ncamacion, 0!#hil. 02"E #hilippine Blooming ills, Inc. vs. Social Securit( S(stem, 1!S$<A 13!!E Aska( vs. $osalan, 26 #hil. 1!.

1 anresa, $odigo $ivil !th 7d., p. 126.

6 #eople vs. Fue #o 5a(, 2 #hil. 623E Balbuena et al. vs. Secretar( of 7ducation, et al., 113 #hil. 13.

! 0/ S$<A "3, dissenting opinion.

0 "30 ?.S. "!1, "!2.

" #hil.. 60,.

13 8he report %as prepared b( the $lerk of $ourt after Acting -irector Glorendo S. #ablo Dr. of the overnment #rinting &ffice, failed to respond

to her letter4re:uest regarding the respective dates of publication in the&fficial azette of the presidential issuances listed therein. o report hasbeen submitted b( the $lerk of $ourt as to the publication or non4publication of other presidential issuances.

11 1/ S$<A 1!2.

Gernando, $D.+

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1 Separate &pinion of Dustice #lana, first paragraph. Ce mentioned in tillsconnection Article !, Sec. /1 of the >isconsin $onstitution and State e*rel. >hite v. rand Superior $t., !1 A5< 1"2, citing the $onstitution of Indiana, ?.S.A

/ Ibid, closing paragraph.

" 5earned Cand, 8he Spirit of 5ibert( 132 H163.

2 $ardozo, 8he ro%th of the 5a%, " H1/2.

$f. unez v. Sandiganba(an, .<. o. 3014361!, Danuar( "3, 10/,111 S$<A 2"".

6 $f. Alala(an v. ational #o%er $orporation, 54/2"6, Dul( /, 160, /2S$<A 1!/.

8eehankee, D.+

1 #eople vs. de -ios, .<. o. 1133", Aug. "l, 1, per the late $hief Dustice #aras.

/ otes in brackets supplied.

" <espondents+ comment, pp. 1241.

#lana, D.+

J See e.g., >isconsin $onstitution, Art. !, Sec. /1+ ;8he legislature shallprovide publication of all statute la%s ... and no general la% shall be inforce until published.; See also S ate e* rel. >hite vs. rand Superior $t.,!1 A5< 1"2, citing $onstitution of Indiana, ?.S.A.

8he 5a%phil #ro9ect 4 Arellano 5a% Goundation

Documents

1. Tanada. Tuvera 1985