Dolalas v. Ombudsman Code of Judicial Conduct.

Such is clearly an
G.R. No. 118808, December 24, 1996
Facts:
The petitioners were charged administratively by
private respondent Villarante for miscarriage of justice,
dishonesty, gross neglect of duty, unnecessary delay in
the administration of justice and for failure to prosecute
a criminal case for an unreasonable length of time
before public respondent Office of the Ombudsman-
Mindanao.
The letter-complaint addressed to the Office of the
Ombudsman-Mindanao arose out of said criminal case
of alarms and scandals filed against private respondent
by a police officer. Private respondent alleged that:
1. there has been no pre-conference, arraignment
or pre-trial held or conducted by petitioner
judge;
2. the said criminal case was maliciously filed by
one P/Sgt. Salutillo in connivance with
petitioner judge in order to discourage the
former from instituting a criminal complaint
against said police officers men for abuse of
authority and police brutality with physical
injury; and
administrative matter. Unquestionably, this Court is
mandated under Section 6, Article VIII of the 1987
Constitution to assume administrative supervision over
all courts and the personnel thereof.
This Court, in the case of Sanz Maceda v.
Vasquez, 221 SCRA 464, held that:
Article VIII, Section 6 of the 1987 Constitution
exclusively vests in the Supreme Court
administrative supervision over all courts and
court personnel, from the Presiding Justice of
the Court of Appeals down to the lowest
municipal trial court clerk. By virtue of this
power, it is only the Supreme Court that can
oversee the judges and court personnels
compliance with all laws, and take the proper
administrative action against them if they
commit any violation thereof. No other branch
of government may intrude into this power,
without running afoul of the doctrine of
separation of powers.
The issue in this case is whether the
OMBUDSMAN may take cognizance of a case filed
against a judge.

3. said criminal case filed against him has been The law provides that Supreme Court is
unnecessarily delayed in that P/Sgt. Salutillo mandated under Section 6, Article VIII of the 1987
and petitioner-judge totally failed to prosecute Constitution to assume administrative supervision
their own malicious action within a reasonable over all courts and the personnel thereof.
length of time thus prejudicing the constitutional In this case, the Supreme Court states that the
right of the former to an impartial investigation complaint against a judge which is administrative in
and a fair and speedy trial nature is cognizable by the Supreme Court as
On the basis of the letter-complaint filed by herein provided by the Constitution.
private respondent, Graft Investigation Officer of the Therefore, the OMBUDSMAN cannot determine
Office of the Ombudsman-Mindanao directed petitioners whether a judge acted in accordance with the rules
to submit their respective counter-affidavits. Petitioners provided by law.
motion to dismiss and motion for reconsideration were
denied by public respondent, hence the petition before
this Court.
Issue:
Whether or not the Office of the Ombudsman may take
cognizance of the complaint against petitioner
Ruling:
No.
This Court agrees with petitioner-judge. The
complaint against petitioner-judge before the Office of
the Ombudsman is basically administrative in nature. In
essence, petitioner-judge is being charged with having
violated Rule 1.02, Canon 1[6] and Rule 3.05, Canon
3[7] of the Code of Judicial Conduct.
It must be borne in mind that the resolution of the
administrative charge of unduly delaying the disposition
of the said criminal case involves the determination of
whether, in resolving the alarms and scandals case,
petitioner-judge acted in accordance with the guidelines
provided in the Rules of Court and in the Administrative
Circulars in pursuance of the ideals embodied in the
BIR v. Ombudsman encompasses “all kinds of malfeasance, misfeasance
G.R. No. 115103, April 11, 2002 and nonfeasance that have been committed by any
officer or employee x x x during his tenure of office.
Facts:
However, such power or authority must done with
Graft Investigation Officer Soquilon of the due process. The law clearly provides that if there is a
OMBUDSMAN received information from an informer reasonable ground to investigate further, the
regarding allegedly anomalous grant of tax refunds to investigator of the Office of the Ombudsman
Limtuaco and La Tondea. shall first furnish the respondent public officer or
Ombudsman issued a subpoena duces employee with a summary of the complaint and require
tecum addressed to Atty. Mansequiao of the Legal him to submit a written answer within seventy-two (72)
Department of the Bureau of Internal Revenue (BIR) hours from receipt thereof. In the instant case, the BIR
ordering him to appear before the Ombudsman and to officials concerned were never furnished by the
bring the complete original case dockets of the refunds respondent with a summary of the complaint and were
granted to Limtuaco and La Tondea. not given the opportunity to submit their counter-
affidavits and controverting evidence. Instead, they were
The BIR, through Assistant Commissioner for Legal summarily ordered to appear before the Ombudsman
Service Jaime M. Maza, asked that it be excused from and to produce the case dockets of the tax refunds
complying with the subpoena duces tecum because the granted to Limtuaco and La Tondea. They are
Limtuaco case was pending investigation by Graft aggrieved in that, from the point of view of the
Investigation Officer Baldrias and the investigation respondent, they were already deemed probably guilty
thereof and that of La Tondea was mooted. of granting anomalous tax refunds. Plainly, respondent
Office of the Ombudsman failed to afford petitioner with
Ombudsman issued another subpoena duces the basics of due process in conducting its investigation.
tecum, addressed to BIR Commissioner Chato ordering
her to appear before the Ombudsman and to bring the
complete original case dockets of the refunds granted to
Limtuaco and La Tondea. The issue in this case is whether the
Ombudsman has the authority to take
The BIR moved to vacate the subpoena duces cognizance/investigate the findings of the BIR
tecum however the Ombudsman denied the Motion to officials/employees.
Vacate the Subpoena Duces Tecum.
The Ombudsman Act provides that the
The BIR moved to reconsider but the Ombudsman jurisdiction of the Ombudsman encompasses “all
denied the motion for reconsideration and reiterated its kinds of malfeasance, misfeasance and
directive to the BIR to produce the documents. nonfeasance that have been committed by any
officer or employee during his tenure of office.
BIR filed before this Court the instant Petition for
Certiorari, Prohibition and Preliminary Injunction and In this case, the court ruled that the
Temporary Restraining Order. Ombudsman has the authority to take
Issue: cognizance/investigate the allegedly anomalous
grant of tax refunds of the BIR.
Whether or not the Ombudsman has the power to take
cognizance of the complaints filed against the BIR
officials/employees with regard to its findings Thus, the Ombudsman may take
cognizance/investigate the findings of the BIR
Ruling: officials/employees.
Yes. No less than the 1987 Constitution enjoins that the
“Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any
form or manner against public officials or employees of
the government, or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations, and shall, in appropriate case,
notify the complainants of the action taken and the
result thereof.” Clearly, there is no requirement of a
pending action before the Ombudsman could wield its
investigative power. The Ombudsman could resort to its
investigative prerogative on its own or upon a complaint
filed in any form or manner. Even when the complaint is
verbal or written, unsigned or unverified, the
Ombudsman could, on its own, initiate the investigation.
The power to investigate and to prosecute which
was granted by law to the Ombudsman is plenary and
unqualified. The Ombudsman Act makes it perfectly
clear that the jurisdiction of the Ombudsman
People v. Vera
G.R. No. L-45685, November 16, 1937
Facts:
Mariano Cu Unjieng was convicted by the trial court in
Manila. He filed for reconsideration and four motions for
new trial but all were denied. He then elevated to the the
case to the Supreme Court however the Supreme Court
remanded the appeal to the lower court for a new trial.
While awaiting new trial, he appealed for probation
alleging that the he is innocent of the crime he was
convicted of. The Judge of the Manila CFI directed the
appeal to the Insular Probation Office. The IPO denied
the application. However, Judge Vera upon another
request by petitioner allowed the petition to be set for
hearing. The City Prosecutor countered alleging that
Vera has no power to place Cu Unjieng under probation
because it is in violation of Sec. 11 Act No. 4221 which
provides that the act of Legislature granting provincial
boards the power to provide a system of probation to
convicted person. Nowhere in the law is stated that the
law is applicable to a city like Manila because it is only
indicated therein that only provinces are covered. And
even if Manila is covered by the law it is unconstitutional
because Sec 1 Art 3 of the Constitution provides equal
protection of laws. The said law provides absolute
discretion to provincial boards and this also constitutes
undue delegation of power. Further, the said probation
law may be an encroachment of the power of the
executive to provide pardon because providing
probation, in effect, is granting freedom, as in pardon.
Issue:
Whether there was undue delegation of legislative
power.
Ruling:
Yes. The Court concludes that Section 11 of Act
No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial
boards and is, for this reason, unconstitutional and void.
There is no set standard provided by Congress on how
provincial boards must act in carrying out a system of
probation. The provincial boards are given absolute
discretion which is violative of the constitution and the
doctrine of the non delegation of power.
In testing whether a statute constitutes an undue
delegation of legislative power or not,it is usual to
inquire whether the statute was complete in all its
terms and provisions when it left the hands of the
legislature so -that nothing was left to the judgment
of any other appointee or delegate of the legislature.
In United States vs. Ang Tang Ho {[1922], 43 Phil., 1),
the Supreme Court adhered to the foregoing rule. The
general rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be filled in
by rules and regulations to be adopted or promulgated
by executive officers and administrative boards. As a
rule, an act of the legislature is incomplete and hence
invalid if it does not lay down any rule or definite
standard by which the administrative board may be
guided in the exercise of the discretionary powers
delegated to it.
The power to make laws—the legislative power—is
vested in a bicameral Legislature by the Jones Law and
in a unicameral National Assembly by the Constitution.
The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by
delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional
and void, on the principle that potestas delegata non
delegare potest. This principle is said to have originated
with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke in the
English public law in decisions forbidding the delegation
of judicial power, and found its way into America as an
enlightened principle of free government. It has since
become an accepted corollary of the principle of
separation of powers.
The rule, however, which forbids the delegation of
legislative power is not absolute and inflexible. It admits
of exceptions. An exception sanctioned by
immemorial practice permits the central legislative
body to delegate legislative powers to local
authorities. On quite the same principle, Congress is
empowered to delegate legislative power to such
agencies in the territories of the United States as it
may select, Courts have also sustained the
delegation of legislative power to the people at
large, though some authorities maintain that this
may not be done. Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14,
paragraph 2, of Article VI of the Constitution of
the Philippines provides that "The National As
limitations and restrictions as it may impose, -to fix
within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section
16 of the same article of the Constitution provides that
"In times of war or other national emergency, the
National Assembly may by law authorize the President,
for a limited period and subject to such restrictions as it
may prescribe, to promulgate rules and regulations to
carry out a declared national policy."
The issue in this case is whether there valid
delegation of power when the legislative delegated
the power to give pardon to the provincial boards.
The law provides that delegation is valid when the
statute is complete in all its terms and provisions
when it left the hands of the legislature so -that
nothing was left to the judgment of any other
appointee or delegate of the legislature.
In this case, the Congress did not set standard on
how provincial boards must act in carrying out a
system of probation.
Hence, the delegation is void.
Pelaez v. The Auditor General
G.R. No. L-23825, December 24, 1965
Facts:
Administrative law; Power of President to create
municipalities.—Since January 1, 1960, when Republic
Act No. 2370 became effective, barrios may "not be
created or their boundaries altered nor their names
changed" except by Act of Congress or of the
corresponding" provincial board "upon petition of a
majority of the voters in the areas affected" and the
"recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated."
This statutory denial of the presidential authority to
create a new barrio implies a negation of the bigger
power to create municipalities, each of which consists of
several barrios.
Same; Same; Nature of power to create
municipalities.—Whereas the power to f ix a common
boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may
partake of an administrative nature—involving, as it
does, the adoption of means and ways to carry into
effect the law creating" said municipalities—the
authority to createmunicipal corporations is
essentially legislative in nature,
Same; Same; Same; Requisites for valid
delegation of power.—Although Congress may delegate
to another branch of the government the power to fill in
the details in the execution, enforcement or
administration of a law, it is essential that said law: (a)
be complete in itself, setting forth therein the policy to be
executed, carried out or implemented by the delegate;
and (b) fix a standard—the limits of which are
sufficiently determinate or determinable—to which the
delegate must conform in the performance of his
functions.
Same; Same; Same; Same; Requirements of due
delegation of power not met by Section 68 of Revised
Administrative Code.—Section 68 of the Revised
Administrative Code, insofar as it grants to the President
the power to create municipalities, does not meet the
well-settled requirements for a valid delegation of the
power to fix the details in the enforcement of a law. It
does not enunciate any policy to be carried out or
implemented by the President.
Same; Same; Same; Same; Same; Abdication of
powers of Congress in favor of the Executive.—If the
validity of said delegation of powers, made in Section 68
of the Revised Administrative Code, were upheld. there
would no longer be any legal impediment to a statutory
grant of authority to the President to do anything which,
in his opinion, may be required by public welfare or
public interest. Such grant of authority would be a virtual
abdication of the powers of Congress in favor of the
Executive, and would bring about a total collapse of the
democratic system established by the Constitution.
Same; Same; Same; Nature of powers dealt with in
Section 68 of the Revised Administrative Code.—It is
true that in Calalang vs. WiIliams (70 Phil. 726) and
People vs. Rosenthal (68 Phil. 328), this Court had
upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid
delegation of the authority to execute the law. But the
doctrine laid down in these cases must be construed in
relation to the specific facts and Issues involved therein,
outside of which they do not constitute precedents and
have no binding effect. Both cases involved grants
to administrative officers of powers related to the
exercise of their administrativefunctions, calling for the
determination of questions of fact. Such is not the
nature of the powers dealt with in Section 68 of the
Revised Administrative Code. The creation of
municipalities being essentially and eminently legislative
in character, the question whether or not "public
interest" demands the exercise of such power is not one
of fact It is purely a legislative question (Carolina-
Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 2d. 310-313, 315-318), or a political
question (Udall vs. Severn, 79 P. 2d. 347-349).
Same; Same; Same; Same; Proof that issuance of
Executive Orders in question enteils exercise of purely
legislative functions.—The fact that Executive Orders
Nos. 93 to 121, 124 and 128 to 129, creating thirty-three
municipalities, were issued after the legislative bills for
the creation of the said municipalities had failed to pass
Congress, is the best proof that their issuance entails
the exercise of purely legislative functions.
Same; Same; Same; Power of control over local
governments.—The power of control under Section 10
(a) of Article X of the Constitution implies the right of the
President to interfere in the exercise of such discretion
as may be vested by law in the officers of the executive
departments, bureaus or offices of the national
government, as well as to act in lieu of such officers.
This power is denied by the Constitution to the
Executive, insofar as local governments are concerned.
With respect to the latter, the fundamental law permits
him to wield no more authority than that of checking
whether said local governments or the officers thereof
perform their duties as provided by statutory
enactments. Hence, the President cannot interfere with
local governments, so long as the same or its officers
act within the scope of their authority. He may not, for
instance, suspend an elective official of a regular
municipality or take any disciplinary action against him,
'except on appealfrom a decision of the corresponding
provincial board. If, on the other hand, the President
could create a municipality, he could, in effect, remove
any of' its officials, by creating a new municipality and
including therein the barrio in which the official
concerned resides, for his office would thereby become
vacant (Section 2179, Revised Administrative Code).
Thus, by merely brandishing the power to create a new
municipality, without actually creating it, he could
compel local officials to submit to his dictation; thereby,
in effect, exercising over them the power of control
denied to him by the Constitution.
Same; Same; Same; Same; Section 68, Revised
Administrative Code repealed by the Constitution.—
The power of control of the President over executive
departments, bureaus or offices under Section 10(a) of
Article X of the Constitution implies no more than the
authority to assume directly the functions thereof or to
interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority
either to abolish an executive department or bureau, or
to create a new one. As a consequence, the alleged
power of the President to create municipal corporations
would necessarily connote the 'exercise by him of an
authority even greater than that of controlwhich he has
over the executive departments, bureaus or offices,
Instead of giving the President less power over local
governments than that vested in him over the executive
departments, bureaus or offices, it reverses the process
and does the exact opposite, by conferring upon him
more power over municipal corporations than that which
he has over executive departments, bureaus or offices.
Even if, therefore, it did not entail an undue delegation
of legislative powers, as it certainly does, said Section
68, as part of the Revised Administrative Code,
approved on March 10, 1967, must be deemed repealed
by the subsequent adoption of the Constitution in 1935,
which is utterly incompatible and inconsistent with said
statutory enactment. (De los Santos vs.Mallare, 87 Phil.
289, 298299.)
Same; Same; Same; Municipal officials concerned
duly represented in present case.—lt is contended that
not all the proper parties have been impleaded in the
present case. Suffice it to say that the records do not
show, and the parties do not claim, that the officers of
any of the municipalities concerned have been
appointed or elected and have assumed office. At any
rate, the Solicitor General, who has appeared on behalf
of respondent Auditor General, is the officer authorized
by law "to act and represent the Government of the
Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the
services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the
creation of the municipalities involved in this case, which
involves a political, not proprietary function. said local
officials, if any, are mere agents or representatives of
the national government. Their interest in the case has
accordingly been duly represented. (Mangubat vs.
Osmeña, Jr., G.R. No. L-12837, April 30, 1959; City of
Cebu vs. Judge Piccio, G.R. Nos L-13012 & 14876.
December 81, 1960.)
Same; Same; Action not premature.—The present
action cannot be said to be premature simply because
respondent Auditor General has not yet acted on any of
the executive orders in question and has not intimated
how he would act in connection therewith. It is a matter
of common knowledge that the President has for many
years issued executive orders creating municipal
corporations and that the same have been organized
and are in actual operation, thus indicating without
peradventure or doubt, that the expenditures incidental
thereto have been sanctioned, approved or passed in
audit by the General Auditing Office and its officials.
There is no reason to believe that respondent would
adopt a different policy as regards the new
municipalities involved in this case, in the absence of an
allegation to such effect, and
In 1964 the President of the Philippines, purporting to
act pursuant to Section 68 of the Revised Administrative
Code, issued Executive Orders Nos. 93 to 121, 124 and
126 to 129; creating thirty-three (33) municipalities.
Then the petitioner Pelaez, as Vice President of the
Philippines and as taxpayer, instituted the present
special civil action, for a writ of prohibition with
preliminary injunction, against the Auditor General, to
restrain him, as well as his representatives and agents,
from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any
disbursement by said municipalities. Petitioner alleges
that said executive orders are null and void, upon the
ground that said Section 68 has been impliedly repealed
by Republic Act No. 2370 and constitutes an undue
delegation of legislative power. Respondent maintains
the contrary view and avers that the present action is
premature and that not all proper parties — referring to
the officials of the new political subdivisions in question
— have been impleaded. Subsequently, the mayors of
several municipalities adversely affected by the
aforementioned executive orders — because the latter
have taken away from the former the barrios composing
the new political subdivisions — intervened in the case.
Moreover, Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did appear
as amici curiae.
The third paragraph of Section 3 of Republic Act No.
2370, reads:
Barrios shall not be created or their boundaries
altered nor their names changed except under
the provisions of this Act or by Act of Congress.
Pursuant to the first two (2) paragraphs of the same
Section 3:
All barrios existing at the time of the passage of
this Act shall come under the provisions hereof.
Upon petition of a majority of the voters in the
areas affected, a new barrio may be created or
the name of an existing one may be changed by
the provincial board of the province, upon
recommendation of the council of the
municipality or municipalities in which the
proposed barrio is stipulated. The
recommendation of the municipal council shall
be embodied in a resolution approved by at
least two-thirds of the entire membership of the
said council: Provided, however, That no new
barrio may be created if its population is less
than five hundred persons.
Hence, since January 1, 1960, when Republic Act No.
2370 became effective, barrios may "not be created or
their boundaries altered nor their names changed"
except by Act of Congress or of the corresponding
provincial board "upon petition of a majority of the voters
in the areas affected" and the "recommendation of the
council of the municipality or municipalities in which the
proposed barrio is situated." Petitioner argues,
accordingly: "If the President, under this new law,
cannot even create a barrio, can he create a
municipality which is composed of several barrios,
since barrios are units of municipalities?"
Respondent answers in the affirmative, upon the theory
that a new municipality can be created without creating
new barrios, such as, by placing old barrios under the
jurisdiction of the new municipality. This theory
overlooks, however, the main import of the petitioner's
argument, which is that the statutory denial of the
presidential authority to create a new barrio implies a
negation of the bigger power to create municipalities,
each of which consists of several barrios. The cogency
and force of this argument is too obvious to be denied or
even questioned. Founded upon logic and experience, it
cannot be offset except by a clear manifestation of the
intent of Congress to the contrary, and no such
manifestation, subsequent to the passage of Republic
Act No. 2379, has been brought to our attention.
Moreover, section 68 of the Revised Administrative
Code, upon which the disputed executive orders are
based, provides:
The (Governor-General) President of the
Philippines may by executive order define the
boundary, or boundaries, of any province,
subprovince, municipality, [township] municipal
district, or other political subdivision, and
increase or diminish the territory comprised
therein, may divide any province into one or
more subprovinces, separate any political
division other than a province, into such portions
as may be required, merge any of such
subdivisions or portions with another, name any
new subdivision so created, and may change
the seat of government within any subdivision to
such place therein as the public welfare may
require: Provided, That the authorization of the
(Philippine Legislature) Congress of the
Philippines shall first be obtained whenever the
boundary of any province or subprovince is to
be defined or any province is to be divided into
one or more subprovinces. When action by the
(Governor-General) President of the Philippines
in accordance herewith makes necessary a
change of the territory under the jurisdiction of
any administrative officer or any judicial officer,
the (Governor-General) President of the
Philippines, with the recommendation and
advice of the head of the Department having
executive control of such officer, shall redistrict
the territory of the several officers affected and
assign such officers to the new districts so
formed.
Upon the changing of the limits of political
divisions in pursuance of the foregoing authority,
an equitable distribution of the funds and
obligations of the divisions thereby affected shall
be made in such manner as may be
recommended by the (Insular Auditor) Auditor
General and approved by the (Governor-
General) President of the Philippines.
Respondent alleges that the power of the President to
create municipalities under this section does not amount
to an undue delegation of legislative power, relying
upon Municipality of Cardona vs. Municipality of
Binañgonan (36 Phil. 547), which, he claims, has settled
it. Such claim is untenable, for said case involved, not
the creation of a new municipality, but a mere transfer of
territory — from an already existing municipality
(Cardona) to another municipality
(Binañgonan), likewise, existing at the time of and prior
to said transfer (See Gov't of the P.I. ex rel. Municipality
of Cardona vs. Municipality, of Binañgonan [34 Phil.
518, 519-5201) — in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix
such common boundary, in order to avoid or settle
conflicts of jurisdiction between adjoining municipalities,
may partake of an administrative nature — involving, as
it does, the adoption of means and ways to carry into
effect the law creating said municipalities — the
authority to create municipal corporations is
essentially legislative in nature. In the language of other
courts, it is "strictly a legislative function" (State ex rel.
Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or
"solely and exclusively the exercise of legislative power"
(Udall vs. Severn, May 29, 1938, 79 P. 2d 347-349). As
the Supreme Court of Washington has put it (Territory
ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac.
405, 409), "municipal corporations are purely the
creatures of statutes."
Although1a Congress may delegate to another branch of
the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is
essential, to forestall a violation of the principle of
separation of powers, that said law: (a) be complete in
itself — it must set forth therein the policy to be
executed, carried out or implemented by the
delegate2 — and (b) fix a standard — the limits of which
are sufficiently determinate or determinable — to which
the delegate must conform in the performance of his
functions.2a Indeed, without a statutory declaration of
policy, the delegate would in effect, make or formulate
such policy, which is the essence of every law; and,
without the aforementioned standard, there would be no
means to determine, with reasonable certainty, whether
the delegate has acted within or beyond the scope of his
authority.2b Hence, he could thereby arrogate upon
himself the power, not only to make the law, but, also —
and this is worse — to unmake it, by adopting measures
inconsistent with the end sought to be attained by the
Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and
balances, and, consequently, undermining the very
foundation of our Republican system.
Section 68 of the Revised Administrative Code does not
meet these well settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither
does it give a standard sufficiently precise to avoid the
evil effects above referred to. In this connection, we do
not overlook the fact that, under the last clause of the
first sentence of Section 68, the President:
 ... may change the seat of the government
within any subdivision to such place therein as
the public welfare may require.
It is apparent, however, from the language of this
clause, that the phrase "as the public welfare may
require" qualified, not the clauses preceding the one just
quoted, but only the place to which the seat of the
government may be transferred. This fact becomes
more apparent when we consider that said Section 68
was originally Section 1 of Act No. 1748,3 which
provided that, "whenever in the judgment of the
Governor-General the public welfare requires, he may,
by executive order," effect the changes enumerated
therein (as in said section 68), including the change of
the seat of the government "to such place ... as
the public interest requires." The opening statement of
said Section 1 of Act No. 1748 — which was not
included in Section 68 of the Revised Administrative
Code — governed the time at which, or the conditions
under which, the powers therein conferred could be
exercised; whereas the last part of the first sentence of
said section referred exclusively to the place to which
the seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar
as the case at bar is concerned, even if we assumed
that the phrase "as the public welfare may require," in
said Section 68, qualifies all other clauses thereof. It is
true that in Calalang vs. Williams (70 Phil. 726)
and People vs. Rosenthal (68 Phil. 328), this Court had
upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid
delegation of the authority to execute the law. But, the
doctrine laid down in these cases — as all judicial
pronouncements — must be construed in relation to the
specific facts and issues involved therein, outside of
which they do not constitute precedents and have no
binding effect.4 The law construed in the Calalang case
conferred upon the Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, the power to issue rules and
regulations to promote safe transitupon national
roads and streets. Upon the other hand, the Rosenthal
case referred to the authority of the Insular Treasurer,
under Act No. 2581, to issue and cancel certificates or
permits for the sale of speculative securities. Both cases
involved grants to administrative officers of powers
related to the exercise of their administrative functions,
calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in
section 68. As above indicated, the creation of
municipalities, is not an administrative function, but one
which is essentially and eminently legislative in
character. The question of whether or not "public
interest" demands the exercise of such power is not one
of fact. it is "purely a legislativequestion "(Carolina-
Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 2d. 310-313, 315-318), or
a political question (Udall vs. Severn, 79 P. 2d. 347-
349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether
incorporation is for the best interest of the community in
any case is emphatically a question of public policy and
statecraft" (In re Village of North Milwaukee, 67 N.W.
1033, 1035-1037).
For this reason, courts of justice have annulled, as
constituting undue delegation of legislative powers,
state laws granting the judicial department, the power to
determine whether certain territories should be annexed
to a particular municipality (Udall vs. Severn, supra,
258-359); or vesting in a Commission the right to
determine the plan and frame of government of
proposed villages and what functions shall be exercised
by the same, although the powers and functions of the
village are specifically limited by statute (In re Municipal
Charters, 86 Atl. 307-308); or conferring upon courts the
authority to declare a given town or village incorporated,
and designate its metes and bounds, upon petition of a
majority of the taxable inhabitants thereof, setting forth
the area desired to be included in such village (Territory
ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing
the territory of a town, containing a given area and
population, to be incorporated as a town, on certain
steps being taken by the inhabitants thereof and on
certain determination by a court and subsequent vote of
the inhabitants in favor thereof, insofar as the court is
allowed to determine whether the lands embraced in the
petition "ought justly" to be included in the village, and
whether the interest of the inhabitants will be promoted
by such incorporation, and to enlarge and diminish the
boundaries of the proposed village "as justice may
require" (In re Villages of North Milwaukee, 67 N.W.
1035-1037); or creating a Municipal Board of Control
which shall determine whether or not the laying out,
construction or operation of a toll road is in the "public
interest" and whether the requirements of the law had
been complied with, in which case the board shall enter
an order creating a municipal corporation and fixing the
name of the same (Carolina-Virginia Coastal Highway
vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by
Congress to the President is concerned, the case
of Schechter Poultry Corporation vs. U.S. (79 L. Ed.
1570) is quite relevant to the one at bar. The Schechter
case involved the constitutionality of Section 3 of the
National Industrial Recovery Act authorizing the
President of the United States to approve "codes of fair
competition" submitted to him by one or more trade or
industrial associations or corporations which "impose no
inequitable restrictions on admission to membership
therein and are truly representative," provided that such
codes are not designed "to promote monopolies or to
eliminate or oppress small enterprises and will not
operate to discriminate against them, and will tend to
effectuate the policy" of said Act. The Federal Supreme
Court held:
To summarize and conclude upon this point:
Sec. 3 of the Recovery Act is without precedent.
It supplies no standards for any trade, industry
or activity. It does not undertake to prescribe
rules of conduct to be applied to particular states
of fact determined by appropriate administrative
procedure. Instead of prescribing rules of
 conduct, it authorizes the making of codes to
prescribe them. For that legislative undertaking,
Sec. 3 sets up no standards, aside from the
statement of the general aims of rehabilitation,
correction and expansion described in Sec. 1. In
view of the scope of that broad declaration, and
of the nature of the few restrictions that are
imposed, the discretion of the President in
approving or prescribing codes, and thus
enacting laws for the government of trade and
industry throughout the country, is virtually
unfettered. We think that the code making
authority thus conferred is an unconstitutional
delegation of legislative power.
If the term "unfair competition" is so broad as to vest in
the President a discretion that is "virtually unfettered."
and, consequently, tantamount to a delegation of
legislative power, it is obvious that "public welfare,"
which has even a broader connotation, leads to the
same result. In fact, if the validity of the delegation of
powers made in Section 68 were upheld, there would no
longer be any legal impediment to a statutory grant of
authority to the President to do anything which, in his
opinion, may be required by public welfare or public
interest. Such grant of authority would be a virtual
abdication of the powers of Congress in favor of the
Executive, and would bring about a total collapse of the
democratic system established by our Constitution,
which it is the special duty and privilege of this Court to
uphold.
It may not be amiss to note that the executive orders in
question were issued after the legislative bills for the
creation of the municipalities involved in this case had
failed to pass Congress. A better proof of the fact that
the issuance of said executive orders entails the
exercise of purely legislative functions can hardly be
given.
Again, Section 10 (1) of Article VII of our fundamental
law ordains:
The President shall have control of all the
executive departments, bureaus, or offices,
exercise general supervision over all local
governments as may be provided by law, and
take care that the laws be faithfully executed.
The power of control under this provision implies the
right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the
executive departments, bureaus, or offices of the
national government, as well as to act in lieu of such
officers. This power is denied by the Constitution to the
Executive, insofar as local governments are concerned.
With respect to the latter, the fundamental law permits
him to wield no more authority than that of checking
whether said local governments or the officers thereof
perform their duties as provided by statutory
enactments. Hence, the President cannot interfere with
local governments, so long as the same or its officers
act Within the scope of their authority. He may not enact
an ordinance which the municipal council has failed or
refused to pass, even if it had thereby violated a duty
imposed thereto by law, although he may see to it that
the corresponding provincial officials take appropriate
disciplinary action therefor. Neither may he vote, set
aside or annul an ordinance passed by said council
within the scope of its jurisdiction, no matter how
patently unwise it may be. He may not even suspend an
elective official of a regular municipality or take any
disciplinary action against him, except on appeal from a
decision of the corresponding provincial board.5
Upon the other hand if the President could create a
municipality, he could, in effect, remove any of its
officials, by creating a new municipality and including
therein the barrio in which the official concerned resides,
for his office would thereby become vacant.6 Thus, by
merely brandishing the power to create a new
municipality (if he had it), without actually creating it, he
could compel local officials to submit to his dictation,
thereby, in effect, exercising over them the power of
control denied to him by the Constitution.
Then, also, the power of control of the President over
executive departments, bureaus or offices implies no
more than the authority to assume directly the functions
thereof or to interfere in the exercise of discretion by its
officials. Manifestly, such control does not include the
authority either to abolish an executive department or
bureau, or to create a new one. As a consequence, the
alleged power of the President to create municipal
corporations would necessarily connote the exercise by
him of an authority even greater than that of control
which he has over the executive departments, bureaus
or offices. In other words, Section 68 of the Revised
Administrative Code does not merely fail to comply with
the constitutional mandate above quoted. Instead of
giving the President less power over local governments
than that vested in him over the executive departments,
bureaus or offices, it reverses the process and does
the exact opposite, by conferring upon him more power
over municipal corporations than that which he has over
said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of
legislative powers, as it certainly does, said Section 68,
as part of the Revised Administrative Code, approved
on March 10, 1917, must be deemed repealed by the
subsequent adoption of the Constitution, in 1935, which
is utterly incompatible and inconsistent with said
statutory enactment.7
There are only two (2) other points left for consideration,
namely, respondent's claim (a) that "not all the proper
parties" — referring to the officers of the newly created
municipalities — "have been impleaded in this case,"
and (b) that "the present petition is premature."
As regards the first point, suffice it to say that the
records do not show, and the parties do not claim, that
the officers of any of said municipalities have been
appointed or elected and assumed office. At any rate,
the Solicitor General, who has appeared on behalf of
respondent Auditor General, is the officer authorized by
law "to act and represent the Government of the
Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the
services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the
creation of the aforementioned municipalities, which
involves a political, not proprietary, function, said local
officials, if any, are mere agents or representatives of
the national government. Their interest in the case at
bar has, accordingly, been, in effect, duly represented.8
With respect to the second point, respondent alleges
that he has not as yet acted on any of the executive
order & in question and has not intimated how he would
act in connection therewith. It is, however, a matter of
common, public knowledge, subject to judicial
cognizance, that the President has, for many years,
issued executive orders creating municipal corporations
and that the same have been organized and in actual
operation, thus indicating, without peradventure of
doubt, that the expenditures incidental thereto have
been sanctioned, approved or passed in audit by the
General Auditing Office and its officials. There is no
reason to believe, therefore, that respondent would
adopt a different policy as regards the new
municipalities involved in this case, in the absence of an
allegation to such effect, and none has been made by
him.
WHEREFORE, the Executive Orders in question are
hereby declared null and void ab initio and the
respondent permanently restrained from passing in
audit any expenditure of public funds in implementation
of said Executive Orders or any disbursement by the
municipalities above referred to. It is so ordered.
G.R. No. 180046 April 2, 2009
REVIEW CENTER ASSOCIATION OF THE
PHILIPPINES, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA and
COMMISSION ON HIGHER EDUCATION represented
by its Chairman ROMULO L. NERI, Respondents.
CPA REVIEW SCHOOL OF THE PHILIPPINES, INC.
(CPAR), PROFESSIONAL REVIEW AND TRAINING
CENTER, INC. (PRTC), ReSA REVIEW SCHOOL, INC.
(ReSA), CRC-ACE REVIEW SCHOOL, INC. (CRC-
ACE)Petitioners-Intervenors.
PIMSAT COLLEGES, Respondent-Intervenor.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for prohibition and
mandamus assailing Executive Order No. 566 (EO
566)1 and Commission on Higher Education (CHED)
Memorandum Order No. 30, series of 2007 (RIRR).2
The Antecedent Facts
On 11 and 12 June 2006, the Professional Regulation
Commission (PRC) conducted the Nursing Board
Examinations nationwide. In June 2006, licensure
applicants wrote the PRC to report that handwritten
copies of two sets of examinations were circulated
during the examination period among the examinees
reviewing at the R.A. Gapuz Review Center and Inress
Review Center. George Cordero, Inress Review
Center’s President, was then the incumbent President of
the Philippine Nurses Association. The examinees were
provided with a list of 500 questions and answers in two
of the examinations’ five subjects, particularly Tests III
(Psychiatric Nursing) and V (Medical-Surgical Nursing).
The PRC later admitted the leakage and traced it to two
Board of Nursing members.3 On 19 June 2006, the PRC
released the results of the Nursing Board Examinations.
On 18 August 2006, the Court of Appeals restrained the
PRC from proceeding with the oath-taking of the
successful examinees set on 22 August 2006.
Consequently, President Gloria Macapagal-Arroyo
(President Arroyo) replaced all the members of the
PRC’s Board of Nursing. President Arroyo also ordered
the examinees to re-take the Nursing Board
Examinations.
On 8 September 2006, President Arroyo issued EO 566
which authorized the CHED to supervise the
establishment and operation of all review centers and
similar entities in the Philippines.
On 3 November 2006, the CHED, through its then
Chairman Carlito S. Puno (Chairman Puno), approved
CHED Memorandum Order No. 49, series of 2006
(IRR).4
In a letter dated 24 November 2006,5 the Review Center
Association of the Philippines (petitioner), an
organization of independent review centers, asked the
CHED to "amend, if not withdraw" the IRR arguing,
among other things, that giving permits to operate a
review center to Higher Education Institutions (HEIs) or
consortia of HEIs and professional organizations will
effectively abolish independent review centers.
In a letter dated 3 January 2007,6 Chairman Puno wrote
petitioner, through its President Jose Antonio Fudolig
(Fudolig), that to suspend the implementation of the IRR
would be inconsistent with the mandate of EO 566.
Chairman Puno wrote that the IRR was presented to the
stakeholders during a consultation process prior to its
finalization and publication on 13 November 2006.
Chairman Puno also wrote that petitioner’s comments
and suggestions would be considered in the event of
revisions to the IRR.
In view of petitioner’s continuing request to suspend and
re-evaluate the IRR, Chairman Puno, in a letter dated 9
February 2007,7 invited petitioner’s representatives to a
dialogue on 14 March 2007. In accordance with what
was agreed upon during the dialogue, petitioner
submitted to the CHED its position paper on the IRR.
Petitioner also requested the CHED to confirm in writing
Chairman Puno’s statements during the dialogue,
particularly on lowering of the registration fee from
₱400,000 to ₱20,000 and the requirement for reviewers
to have five years’ teaching experience instead of five
years’ administrative experience. Petitioner likewise
requested for a categorical answer to their request for
the suspension of the IRR. The CHED did not reply to
the letter.
On 7 May 2007, the CHED approved the RIRR. On 22
August 2007, petitioner filed before the CHED a Petition
to Clarify/Amend Revised Implementing Rules and
Regulations8 praying for a ruling:
1. Amending the RIRR by excluding
independent review centers from the coverage
of the CHED;
2. Clarifying the meaning of the requirement for
existing review centers to tie-up or be integrated
with HEIs, consortium or HEIs and PRC-
recognized professional associations with
recognized programs, or in the alternative, to
convert into schools; and
3. Revising the rules to make it conform with
Republic Act No. 7722 (RA 7722)9 limiting the
CHED’s coverage to public and private
institutions of higher education as well as
degree-granting programs in post-secondary
educational institutions.
On 8 October 2007, the CHED issued Resolution No.
718-200710 referring petitioner’s request to exclude
independent review centers from CHED’s supervision
and regulation to the Office of the President as the
matter requires the amendment of EO 566. In a letter
dated 17 October 2007,11 then CHED Chairman Romulo
L. Neri (Chairman Neri) wrote petitioner regarding its
petition to be excluded from the coverage of the CHED
in the RIRR. Chairman Neri stated:
While it may be true that regulation of review centers is
not one of the mandates of CHED under Republic Act
7722, however, on September 8, 2006, Her Excellency,
President Gloria Macapagal-Arroyo, issued Executive
Order No. 566 directing the Commission on Higher
Education to regulate the establishment and operation
of review centers and similar entities in the entire
country.
With the issuance of the aforesaid Executive Order, the
CHED now is the agency that is mandated to regulate
the establishment and operation of all review centers as
provided for under Section 4 of the Executive Order
which provides that "No review center or similar
entities shall be established and/or operate review
classes without the favorable expressed
indorsement of the CHED and without the issuance
of the necessary permits or authorizations to
conduct review classes. x xx"
To exclude the operation of independent review
centers from the coverage of CHED would clearly
contradict the intention of the said Executive Order
No. 566.
Considering that the requests requires the amendment
of Executive Order No. 566, the Commission, during its
305th Commission Meeting, resolved that the said
request be directly referred to the Office of the President
for appropriate action.
As to the request to clarify what is meant by tie-up/be
integrated with an HEI, as required under the Revised
Implementing Rules and Regulations, tie-up/be
integrated simply means, to be in partner with an
HEI.12 (Boldfacing and underscoring in the original)
On 26 October 2007, petitioner filed a petition for
Prohibition and Mandamus before this Court praying for
the annulment of the RIRR, the declaration of EO 566
as invalid and unconstitutional, and the prohibition
against CHED from implementing the RIRR.
Dr. Freddie T. Bernal, Director III, Officer-In-Charge,
Office of the Director IV of CHED, sent a letter13 to the
President of Northcap Review Center, Inc., a member of
petitioner, that it had until 27 November 2007 to comply
with the RIRR.1avvphi1.zw+
On 15 February 2008,14 PIMSAT Colleges (respondent-
intervenor) filed a Motion For Leave to Intervene and To
Admit Comment-in-Intervention and a Comment-in-
Intervention praying for the dismissal of the petition.
Respondent-intervenor alleges that the Office of the
President and the CHED did not commit any act of
grave abuse of discretion in issuing EO 566 and the
RIRR. Respondent-intervenor alleges that the
requirements of the RIRR are reasonable, doable, and
are not designed to deprive existing review centers of
their review business. The Court granted the Motion for
Leave to Intervene and to Admit Comment-in-
Intervention in its 11 March 2008 Resolution.15
On 23 April 2008, a Motion for Leave of Court for
Intervention In Support of the Petition and a Petition In
Intervention were filed by CPA Review School of the
Philippines, Inc. (CPAR), Professional Review and
Training Center, Inc. (PRTC), ReSA Review School, Inc.
(ReSA), CRC-ACE Review School, Inc. (CRC-ACE), all
independent CPA review centers operating in Manila
(collectively, petitioners-intervenors). Petitioners-
intervenors pray for the declaration of EO 566 and the
RIRR as invalid on the ground that both constitute an
unconstitutional exercise of legislative power. The Court
granted the intervention in its 29 April 2008
Resolution.16
On 21 May 2008, the CHED issued CHED
Memorandum Order No. 21, Series of 2008 (CMO 21, s.
2008)17extending the deadline for six months from 27
May 2008 for all existing independent review centers to
tie-up or be integrated with HEIs in accordance with the
RIRR.
In its 25 November 2008 Resolution, this Court resolved
to require the parties to observe the status quo
prevailing before the issuance of EO 566, the RIRR, and
CMO 21, s. 2008.
The Assailed Executive Order and the RIRR
Executive Order No. 566 states in full:
EXECUTIVE ORDER NO. 566
DIRECTING THE COMMISSION ON HIGHER
EDUCATION TO REGULATE THE ESTABLISHMENT
AND OPERATION OF REVIEW CENTERS AND
SIMILAR ENTITIES
WHEREAS, the State is mandated to protect the right of
all citizens to quality education at all levels and shall
take appropriate steps to make education accessible to
all, pursuant to Section 1, Article XIV of the 1987
Constitution;
WHEREAS, the State has the obligation to ensure and
promote quality education through the proper
supervision and regulation of the licensure examinations
given through the various Boards of Examiners under
the Professional Regulation Commission;
WHEREAS, the lack of regulatory framework for the
establishment and operation of review centers and
similar entities, as shown in recent events, have
adverse consequences and affect public interest and
welfare;
WHEREAS, the overriding necessity to protect the
public against substandard review centers and unethical
practices committed by some review centers demand
that a regulatory framework for the establishment and
operation of review centers and similar entities be
immediately instituted;
WHEREAS, Republic Act No. 7722, otherwise known as
the Higher Education Act of 1994, created the
Commission on Higher Education, which is best
equipped to carry out the provisions pertaining to the
regulation of the establishment and operation of review
centers and similar entities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, the President of the Republic of the
Philippines, by virtue of the powers vested in me by law,
do hereby order:
SECTION 1. Establishment of a System
of Regulation for Review Centers and
Similar Entities. The Commission on
Higher Education (CHED), in
consultation with other concerned
government agencies, is hereby directed
to formulate a framework for the
regulation of review centers and similar
entities, including but not limited to the
development and institutionalization of
policies, standards, guidelines for the
establishment, operation and
accreditation of review centers and
similar entities; maintenance of a
mechanism to monitor the adequacy,
transparency and propriety of their
operations; and reporting mechanisms
to review performance and ethical
practice.
SEC. 2. Coordination and Support. The
Professional Regulation Commission
(PRC), Technical Skills Development
Authority (TESDA), Securities and
Exchange Commission (SEC), the
various Boards of Examiners under the
PRC, as well as other concerned non-
government organizations life
professional societies, and various
government agencies, such as the
Department of Justice (DOJ), National
Bureau of Investigation (NBI), Office of
the Solicitor General (OSG), and others
that may be tapped later, shall provide
the necessary assistance and technical
support to the CHED in the successful
operationalization of the System of
Regulation envisioned by this Executive
Order.
SEC. 3. Permanent Office and Staff. To
ensure the effective implementation of
the System of Regulation, the CHED
shall organize a permanent office under
its supervision to be headed by an
official with the rank of Director and to
be composed of highly competent
individuals with expertise in educational
assessment, evaluation and testing;
policies and standards development,
monitoring, legal and enforcement; and
statistics as well as curriculum and
instructional materials development. The
CHED shall submit the staffing pattern
and budgetary requirements to the
Department of Budget and Management
(DBM) for approval.
SEC. 4. Indorsement Requirement. No
review center or similar entities shall be
established and/or operate review
classes without the favorable expressed
indorsement of the CHED and without
the issuance of the necessary permits or
authorizations to conduct review
classes. After due consultation with the
stakeholders, the concerned review
centers and similar entities shall be
given a reasonable period, at the
discretion of the CHED, to comply with
the policies and standards, within a
period not exceeding three (3) years,
after due publication of this Executive
Order. The CHED shall see to it that the
 System of Regulation including the
implementing mechanisms, policies,
guidelines and other necessary
procedures and documentation for the
effective implementation of the System,
are completed within sixty days (60)
upon effectivity of this Executive Order.
SEC. 5. Funding. The initial amount
necessary for the development and
implementation of the System of
Regulation shall be sourced from the
CHED Higher Education Development
Fund (HEDF), subject to the usual
government accounting and auditing
practices, or from any applicable funding
source identified by the DBM. For the
succeeding fiscal year, such amounts as
may be necessary for the budgetary
requirement of implementing the System
of Regulation and the provisions of this
Executive Order shall be provided for in
the annual General Appropriations Act in
the budget of the CHED. Whenever
necessary, the CHED may tap its
Development Funds as supplemental
source of funding for the effective
implementation of the regulatory system.
In this connection, the CHED is hereby
authorized to create special accounts in
the HEDF exclusively for the purpose of
implementing the provisions of this
Executive Order.
SEC. 6. Review and Reporting. The
CHED shall provide for the periodic
review performance of review centers
and similar entities and shall make a
report to the Office of the President of
the results of such review, evaluation
and monitoring.
SEC. 7. Separability. Any portion or
provision of this Executive Order that
may be declared unconstitutional shall
not have the effect of nullifying other
provisions hereof, as long as such
remaining provisions can still subsist
and be given effect in their entirely.
SEC. 8. Repeal. All rules and
regulations, other issuances or parts
thereof, which are inconsistent with this
Executive Order, are hereby repealed or
modified accordingly.
SEC. 9. Effectivity. This Executive Order
shall take effect immediately upon its
publication in a national newspaper of
general circulation.
DONE in the City of Manila, this 8th day of September,
in the year of Our Lord, Two Thousand and Six.
(Sgd.) Gloria Macapagal-Arroyo
By the President:
(Sgd.) Eduardo R. Ermita
Executive Secretary
The pertinent provisions of the RIRR affecting
independent review centers are as follows:
Rule VII
IMPLEMENTING GUIDELINES AND PROCEDURES
Section 1. Authority to Establish and
Operate – Only CHED recognized,
accredited and reputable HEIs may be
authorized to establish and operate
review center/course by the CHED upon
full compliance with the conditions and
requirements provided herein and in
other pertinent laws, rules and
regulations. In addition, a consortium or
consortia of qualified schools and/or
entities may establish and operate
review centers or conduct review
classes upon compliance with the
provisions of these Rules.
Rule XIV
TRANSITORY PROVISIONS
Section 1. Review centers that are
existing upon the approval of Executive
Order No. 566 shall be given a grace
period of up to one (1) year, to tie-up/be
integrated with existing HEIs[,]
consortium of HEIs and PRC recognized
Professional Associations with
recognized programs under the
conditions set forth in this Order and
upon mutually acceptable covenants by
the contracting parties. In the alternative,
they may convert as a school and apply
for the course covered by the review
subject to rules and regulations of the
CHED and the SEC with respect to the
establishment of schools. In the
meantime, no permit shall be issued if
there is non-compliance with these
conditions or non-compliance with the
requirements set forth in these rules.
Section 2. Only after full compliance with
the requirements shall a Permit be given
by the CHED to review centers
contemplated under this Rule.
Section 3. Failure of existing review
centers to fully comply with the above
shall bar them from existing as review
centers and they shall be deemed as
operating illegally as such. In addition,
 appropriate administrative and legal
proceedings shall be commence[d]
against the erring entities that continue
to operate and appropriate sanctions
shall be imposed after due process.
The Issues
The issues raised in this case are the following:
1. Whether EO 566 is an
unconstitutional exercise by the
Executive of legislative power as it
expands the CHED’s jurisdiction; and
2. Whether the RIRR is an invalid
exercise of the Executive’s rule-making
power.
The Ruling of this Court
The petition has merit.
Violation of Judicial Hierarchy
The Office of the Solicitor General (OSG) prays for the
dismissal of the petition. Among other grounds, the
OSG alleges that petitioner violated the rule on judicial
hierarchy in filing the petition directly with this Court.
This Court’s original jurisdiction to issue a writ of
certiorari, prohibition, mandamus, quo warranto, habeas
corpus, and injunction is not exclusive but is concurrent
with the Regional Trial Courts and the Court of Appeals
in certain cases.18 The Court has explained:
This concurrence of jurisdiction is not, however, to be
taken as according to parties seeking any of the writs an
absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after
all a hierarchy of courts. That hierarchy is determinative
of the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard of that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of
Appeals. A direct invocation of the Supreme Court’s
original jurisdiction to issue these writs should be
allowed only when there are special and important
reasons therefor, clearly and specifically set out in the
petition. This is [an] established policy. It is a policy
necessary to prevent inordinate demands upon the
Court’s time and attention which are better devoted to
those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court’s docket.19
The Court has further explained:
The propensity of litigants and lawyers to disregard the
hierarchy of courts in our judicial system by seeking
relief directly from this Court must be put to a halt for
two reasons: (1) it would be an imposition upon the
precious time of this Court; and (2) it would cause an
inevitable and resultant delay, intended or otherwise, in
the adjudication of cases, which in some instances had
to be remanded or referred to the lower court as the
proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not
a trier of facts.20
The rule, however, is not absolute, as when exceptional
and compelling circumstances justify the exercise of this
Court of its primary jurisdiction. In this case, petitioner
alleges that EO 566 expands the coverage of RA 7722
and in doing so, the Executive Department usurps the
legislative powers of Congress.1awphi1 The issue in
this case is not only the validity of the RIRR. Otherwise,
the proper remedy of petitioner and petitioners-
intervenors would have been an ordinary action for the
nullification of the RIRR before the Regional Trial
Court.21 The alleged violation of the Constitution by the
Executive Department when it issued EO 566 justifies
the exercise by the Court of its primary jurisdiction over
the case. The Court is not precluded from brushing
aside technicalities and taking cognizance of an action
due to its importance to the public and in keeping with
its duty to determine whether the other branches of the
Government have kept themselves within the limits of
the Constitution.22
OSG’s Technical Objections
The OSG alleges that the petition should be dismissed
because the verification and certification of non-forum
shopping were signed only by Fudolig without the
express authority of any board resolution or power of
attorney. However, the records show that Fudolig was
authorized under Board Resolution No. 3, series of
200723 to file a petition before this Court on behalf of
petitioner and to execute any and all documents
necessary to implement the resolution.
The OSG also alleges that the petition should be
dismissed for violation of the 2004 Rules on Notarial
Practice because Fudolig only presented his community
tax certificate as competent proof of identity before the
notary public. The Court would have required Fudolig to
comply with the 2004 Rules on Notarial Practice except
that Fudolig already presented his Philippine passport
before the notary public when petitioner submitted its
reply to the OSG’s comment.
EO 566 Expands the Coverage of RA 7722
The OSG alleges that Section 3 of RA 7722 should be
read in conjunction with Section 8, enumerating the
CHED’s powers and functions. In particular, the OSG
alleges that the CHED has the power under paragraphs
(e) and (n) of Section 8 to:
(e) monitor and evaluate the performance of programs
and institutions of higher learning for appropriate
incentives as well as the imposition of sanctions such
as, but not limited to, diminution or withdrawal of
subsidy, recommendation on the downgrading or
withdrawal of accreditation, program termination or
school closure;
(n) promulgate such rules and regulations and exercise
such other powers and functions as may be necessary
to carry out effectively the purpose and objectives of this
Act[.]
The OSG justifies its stand by claiming that the term
"programs x xx of higher learning" is broad enough to
include programs offered by review centers.
We do not agree.
Section 3 of RA 7722 provides:
Sec. 3. Creation of Commission on Higher Education. -
In pursuance of the abovementioned policies, the
Commission on Higher Education is hereby created,
hereinafter referred to as the Commission.
The Commission shall be independent and separate
from the Department of Education, Culture and Sports
(DECS), and attached to the Office of the President for
administrative purposes only. Its coverage shall be
both public and private institutions of higher
education as well as degree-granting programs in
all post-secondary educational institutions, public
and private. (Emphasis supplied)
Neither RA 7722 nor CHED Order No. 3, series of 1994
(Implementing Rules of RA 7722)24 defines an institution
of higher learning or a program of higher learning.
"Higher education," however, is defined as "education
beyond the secondary level"25 or "education provided by
a college or university."26 Under the "plain meaning"
or verbalegis rule in statutory construction, if the statute
is clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without
interpretation.27 The legislature is presumed to know the
meaning of the words, to have used words advisedly,
and to have expressed its intent by use of such words
as are found in the statute.28 Hence, the term "higher
education" should be taken in its ordinary sense and
should be read and interpreted together with the phrase
"degree-granting programs in all post-secondary
educational institutions, public and private." Higher
education should be taken to mean tertiary education or
that which grants a degree after its completion.
Further, Articles 6 and 7 of the Implementing Rules
provide:
Article 6. Scope of Application. - The coverage of the
Commission shall be both public and private institutions
of higher education as well as degree granting
programs in all post-secondary educational institutions,
public and private.
These Rules shall apply to all public and private
educational institutions offering tertiary degree
programs.
The establishment, conversion, or elevation of degree-
granting institutions shall be within the responsibility
of the Commission.
Article 7. Jurisdiction. - Jurisdiction over institutions of
higher learning primarily offering tertiary degree
programsshall belong to the Commission. (Emphasis
supplied)
Clearly, HEIs refer to degree-granting institutions, or
those offering tertiary degree or post-secondary
programs. In fact, Republic Act No. 8292 or the Higher
Education Modernization Act of 1997 covers chartered
state universities and colleges. State universities and
colleges primarily offer degree courses and programs.
Sections 1 and 8, Rule IV of the RIRR define a review
center and similar entities as follows:
Section 1. REVIEW CENTER. - refers to a center
operated and owned by a duly authorized entity
pursuant to these Rules intending to offer to the public
and/or to specialized groups whether for a fee or for free
a program or course of study that is intended to refresh
and enhance the knowledge and competencies and
skills of reviewees obtained in the formal school setting
in preparation for the licensure examinations given by
the Professional Regulations Commission (PRC). The
term review center as understood in these rules shall
also embrace the operation or conduct of review classes
or courses provided by individuals whether for a fee or
not in preparation for the licensure examinations given
by the Professional Regulations Commission.
x xx
Section 8. SIMILAR ENTITIES – the term refer to other
review centers providing review or tutorial services in
areas not covered by licensure examinations given by
the Professional Regulations Commission including but
not limited to college entrance examinations, Civil
Service examinations, tutorial services in specific fields
like English, Mathematics and the like.
The same Rule defines a review course as follows:
Section 3. REVIEW COURSE – refers to the set of non-
degree instructional program of study and/or
instructional materials/module, offered by a school with
a recognized course/program requiring licensure
examination, that are intended merely to refresh and
enhance the knowledge or competencies and skills of
reviewees.
The scopes of EO 566 and the RIRR clearly expand the
CHED’s coverage under RA 7722. The CHED’s
coverage under RA 7722 is limited to public and
private institutions of higher education and degree-
granting programs in all public and private post-
secondary educational institutions. EO 566 directed
the CHED to formulate a framework for the regulation of
review centers and similar entities.
The definition of a review center under EO 566 shows
that it refers to one which offers "a program or course
of study that is intended to refresh and enhance the
knowledge or competencies and skills of reviewees
obtained in the formal school setting in preparation
for the licensure examinations" given by the PRC. It
also covers the operation or conduct of review classes
or courses provided by individuals whether for a fee or
not in preparation for the licensure examinations given
by the PRC.
A review center is not an institution of higher learning as
contemplated by RA 7722. It does not offer a degree-
granting program that would put it under the jurisdiction
of the CHED. A review course is only intended to
"refresh and enhance the knowledge or competencies
and skills of reviewees." A reviewee is not even required
to enroll in a review center or to take a review course
prior to taking an examination given by the PRC. Even if
a reviewee enrolls in a review center, attendance in a
review course is not mandatory. The reviewee is not
required to attend each review class. He is not required
to take or pass an examination, and neither is he given
a grade. He is also not required to submit any thesis or
dissertation. Thus, programs given by review centers
could not be considered "programs x xx of higher
learning" that would put them under the jurisdiction of
the CHED.
Further, the "similar entities" in EO 566 cover centers
providing "review or tutorial services" in areas not
covered by licensure examinations given by the PRC,
which include, although not limited to, college entrance
examinations, Civil Services examinations, and tutorial
services. These review and tutorial services hardly
qualify as programs of higher learning.
Usurpation of Legislative Power
The OSG argues that President Arroyo was merely
exercising her executive power to ensure that the laws
are faithfully executed. The OSG further argues that
President Arroyo was exercising her residual powers
under Executive Order No. 292 (EO 292),29 particularly
Section 20, Title I of Book III, thus:
Section 20. Residual Powers. - Unless Congress
provides otherwise, the President shall exercise such
other powers and functions vested in the President
which are provided for under the laws and which are
not specifically enumerated above, or which are not
delegated by the President in accordance with law.
(Emphasis supplied)1avvphi1
Section 20, Title I of Book III of EO 292 speaks of other
powers vested in the President under the law.30 The
exercise of the President’s residual powers under this
provision requires legislation,31 as the provision clearly
states that the exercise of the President’s other powers
and functions has to be "provided for under the law."
There is no law granting the President the power to
amend the functions of the CHED. The President may
not amend RA 7722 through an Executive Order without
a prior legislation granting her such power.
The President has no inherent or delegated legislative
power to amend the functions of the CHED under RA
7722. Legislative power is the authority to make laws
and to alter or repeal them,32 and this power is vested
with the Congress under Section 1, Article VI of the
1987 Constitution which states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on
initiative and referendum.
In Ople v. Torres,33 the Court declared void, as a
usurpation of legislative power, Administrative Order No.
308 (AO 308) issued by the President to create a
national identification system. AO 308 mandates the
adoption of a national identification system even in the
absence of an enabling legislation. The Court
distinguished between Legislative and Executive
powers, as follows:
The line that delineates Legislative and Executive power
is not indistinct. Legislative power is "the authority,
under the Constitution, to make laws, and to alter and
repeal them." The Constitution, as the will of the people
in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines.
The grant of legislative power to Congress is broad,
general and comprehensive. The legislative body
possesses plenary power for all purposes of civil
government. Any power, deemed to be legislative by
usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it
elsewhere. In fine, except as limited by the Constitution,
either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern
or common interest.
While Congress is vested with the power to enact
laws, the President executes the laws. The executive
power is vested in the President. It is generally defined
as the power to enforce and administer laws. It is the
power of carrying the laws into practical operation and
enforcing their due observance.
As head of the Executive Department, the President is
the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the
officials and employees of his department. He has
control over the executive department, bureaus and
offices. This means that he has the authority to assume
directly the functions of the executive department,
bureau and office, or interfere with the discretion of its
officials. Corollary to the power of control, the President
also has the duty of supervising the enforcement of laws
for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus
and offices under his control to enable him to discharge
his duties effectively.
Administrative power is concerned with the work of
applying policies and enforcing orders as determined by
proper governmental organs. It enables the President to
fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he
can issue administrative orders, rules and regulations.
x xx. An administrative order is:
"Sec. 3. Administrative Orders. - Acts of the President
which relate to particular aspects of governmental
operation in pursuance of his duties as administrative
head shall be promulgated in administrative orders."
An administrative order is an ordinance issued by the
President which relates to specific aspects in the
administrative operation of government. It must be in
harmony with the law and should be for the sole
purpose of implementing the law and carrying out the
legislative policy. x x x.34
Just like AO 308 in Ople v. Torres, EO 566 in this case
is not supported by any enabling law. The Court further
stated in Ople:
x xx. As well stated by Fisher: "x xx Many regulations
however, bear directly on the public. It is here that
administrative legislation must be restricted in its scope
and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress
enacts in the form of a public law. Although
administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an
independent source of power to make laws."35
Since EO 566 is an invalid exercise of legislative power,
the RIRR is also an invalid exercise of the CHED’s
quasi-legislative power.
Administrative agencies exercise their quasi-legislative
or rule-making power through the promulgation of rules
and regulations.36 The CHED may only exercise its rule-
making power within the confines of its jurisdiction under
RA 7722. The RIRR covers review centers and similar
entities which are neither institutions of higher education
nor institutions offering degree-granting programs.
Exercise of Police Power
Police power to prescribe regulations to promote the
health, morals, education, good order or safety, and the
general welfare of the people flows from the recognition
that saluspopuliest suprema lex – the welfare of the
people is the supreme law.37 Police power primarily
rests with the legislature although it may be exercised
by the President and administrative boards by virtue of a
valid delegation.38 Here, no delegation of police power
exists under RA 7722 authorizing the President to
regulate the operations of non-degree granting review
centers.
Republic Act No. 8981 is Not the Appropriate Law
It is argued that the President of the Philippines has
adequate powers under the law to regulate review
centers and this could have been done under an
existing validly delegated authority, and that the
appropriate law is Republic Act No. 898139 (RA 8981).
Under Section 5 of RA 8981, the PRC is mandated to
"establish and maintain a high standard of admission to
the practice of all professions and at all times ensure
and safeguard the integrity of all licensure
examinations." Section 7 of RA 8981 further states that
the PRC shall adopt "measures to preserve the integrity
and inviolability of licensure examinations."
There is no doubt that a principal mandate of the PRC is
to preserve the integrity of licensure examinations. The
PRC has the power to adopt measures to preserve the
integrity and inviolability of licensure examinations.
However, this power should properly be interpreted to
refer to the conduct of the examinations. The
enumeration of PRC’s powers under Section 7(e)
includes among others, the fixing of dates and places of
the examinations and the appointment of supervisors
and watchers. The power to preserve the integrity and
inviolability of licensure examinations should be read
together with these functions. These powers of the
PRC have nothing to do at all with the regulation of
review centers.
The PRC has the power to investigate any of the
members of the Professional Regulatory Boards (PRB)
for "commission of any irregularities in the licensure
examinations which taint or impugn the integrity and
authenticity of the results of the said
examinations."40 This is an administrative power which
the PRC exercises over members of the PRB. However,
this power has nothing to do with the regulation of
review centers. The PRC has the power to bar PRB
members from conducting review classes in review
centers. However, to interpret this power to extend
to the power to regulate review centers is clearly an
unwarranted interpretation of RA 8981. The PRC
may prohibit the members of the PRB from conducting
review classes at review centers because the PRC has
administrative supervision over the members of the
PRB. However, such power does not extend to the
regulation of review centers.
Section 7(y) of RA 8981 giving the PRC the power to
perform "such other functions and duties as may be
necessary to carry out the provisions" of RA 8981 does
not extend to the regulation of review centers. There is
absolutely nothing in RA 8981 that mentions
regulation by the PRC of review centers.
The Court cannot likewise interpret the fact that RA
8981 penalizes "any person who manipulates or rigs
licensure examination results, secretly informs or makes
known licensure examination questions prior to the
conduct of the examination or tampers with the grades
in the professional licensure examinations"41 as a grant
of power to regulate review centers. The provision
simply provides for the penalties for manipulation and
other corrupt practices in the conduct of the professional
examinations.
The assailed EO 566 seeks to regulate not only review
centers but also "similar entities." The questioned CHED
RIRR defines "similar entities" as referring to "other
review centers providing review or tutorial services in
areas not covered by licensure examinations given by
the PRC including but not limited to college entrance
examinations, Civil Service examinations, tutorial
services in specific fields like English, Mathematics and
the like."42 The PRC has no mandate to supervise
review centers that give courses or lectures intended to
prepare examinees for licensure examinations given by
the PRC. It is like the Court regulating bar review
centers just because the Court conducts the bar
examinations. Similarly, the PRC has no mandate to
regulate similar entities whose reviewees will not
even take any licensure examination given by the
PRC.
WHEREFORE, we GRANT the petition and the petition-
in-intervention. We DECLARE Executive Order No. 566
and Commission on Higher Education Memorandum
Order No. 30, series of 2007 VOID for being
unconstitutional.
SO ORDERED.
G.R. No. L-32166 October 18, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellant,
vs.
HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna,
JOSE BUENAVENTURA, GODOFREDO REYES,
BENJAMIN REYES, NAZARIO AQUINO and CARLO
DEL ROSARIO, accused-appellees.
Office of the Solicitor General for appellant.
Rustics F. de los Reyes, Jr. for appellees.
AQUINO, J.:têñ.£îhqwâ£
This is a case involving the validity of a 1967 regulation,
penalizing electro fishing in fresh water fisheries,
promulgated by the Secretary of Agriculture and Natural
Resources and the Commissioner of Fisheries under
the old Fisheries Law and the law creating the Fisheries
Commission.
On March 7, 1969 Jose Buenaventura, Godofredo
Reyes, Benjamin Reyes, Nazario Aquino and Carlito del
Rosario were charged by a Constabulary investigator in
the municipal court of Sta. Cruz, Laguna with having
violated Fisheries Administrative Order No. 84-1.
It was alleged in the complaint that the five accused in
the morning of March 1, 1969 resorted to electro fishing
in the waters of Barrio San Pablo Norte, Sta. Cruz by
"using their own motor banca, equipped with motor; with
a generator colored green with attached dynamo
colored gray or somewhat white; and electrocuting
device locally known as sensored with a somewhat
webbed copper wire on the tip or other end of a bamboo
pole with electric wire attachment which was attached to
the dynamo direct and with the use of these devices or
equipments catches fish thru electric current, which
destroy any aquatic animals within its cuffed reach, to
the detriment and prejudice of the populace" (Criminal
Case No. 5429).
Upon motion of the accused, the municipal court
quashed the complaint. The prosecution appealed. The
Court of First Instance of Laguna affirmed the order of
dismissal (Civil Case No. SC-36). The case is now
before this Court on appeal by the prosecution under
Republic Act No. 5440.
The lower court held that electro fishing cannot be
penalize because electric current is not an obnoxious or
poisonous substance as contemplated in section I I of
the Fisheries Law and that it is not a substance at all but
a form of energy conducted or transmitted by
substances. The lower court further held that, since the
law does not clearly prohibit electro fishing, the
executive and judicial departments cannot consider it
unlawful.
As legal background, it should be stated that section 11
of the Fisheries Law prohibits "the use of any obnoxious
or poisonous substance" in fishing.
Section 76 of the same law punishes any person who
uses an obnoxious or poisonous substance in fishing
with a fine of not more than five hundred pesos nor
more than five thousand, and by imprisonment for not
less than six months nor more than five years.
It is noteworthy that the Fisheries Law does not
expressly punish .electro fishing." Notwithstanding the
silence of the law, the Secretary of Agriculture and
Natural Resources, upon the recommendation of the
Commissioner of Fisheries, promulgated Fisheries
Administrative Order No. 84 (62 O.G. 1224), prohibiting
electro fishing in all Philippine waters. The order is
quoted below: ñé+.£ªwph!1
SUBJECT: PROHIBITING ELECTRO
FISHING IN ALL WATERS ñé+.£ªwph!1
OF THE
PHILIPPI
NES.
Pursuant to Section 4 of Act No. 4003, as amended,
and Section 4 of R.A. No. 3512, the following rules and
regulations regarding the prohibition of electro fishing in
all waters of the Philippines are promulgated for the
information and guidance of all concerned.ñé+.£ªwph!1
 SECTION 1. — Definition. — Words and
terms used in this Order 11 construed as
follows:
(a) Philippine waters or territorial waters
of the Philippines' includes all waters of
the Philippine Archipelago, as defined in
the t between the United States and
Spain, dated respectively the tenth of
December, eighteen hundred ninety
eight and the seventh of November,
nineteen hundred. For the purpose of
this order, rivers, lakes and other bodies
of fresh waters are included.
(b) Electro Fishing. — Electro fishing is
the catching of fish with the use of
electric current. The equipment used are
of many electrical devices which may be
battery or generator-operated and from
and available source of electric current.
(c) 'Persons' includes firm, corporation,
association, agent or employee.
(d) 'Fish' includes other aquatic
products.
SEC. 2. — Prohibition. — It shall be
unlawful for any person to engage in
electro fishing or to catch fish by the use
of electric current in any portion of the
Philippine waters except for research,
educational and scientific purposes
which must be covered by a permit
issued by the Secretary of Agriculture
and Natural Resources which shall be
carried at all times.
SEC. 3. — Penalty. — Any violation of
the provisions of this Administrative
Order shall subject the offender to a fine
of not exceeding five hundred pesos
(P500.00) or imprisonment of not
extending six (6) months or both at the
discretion of the Court.
SEC. 4. — Repealing Provisions. — All
administrative orders or parts thereof
inconsistent with the provisions of this
Administrative Order are hereby
revoked.
SEC. 5. — Effectivity. — This
Administrative Order shall take effect six
(60) days after its publication in the
Office Gazette.
On June 28, 1967 the Secretary of Agriculture and
Natural Resources, upon the recommendation of the
Fisheries Commission, issued Fisheries Administrative
Order No. 84-1, amending section 2 of Administrative
Order No. 84, by restricting the ban against electro
fishing to fresh water fisheries (63 O.G. 9963).
Thus, the phrase "in any portion of the Philippine
waters" found in section 2, was changed by the
amendatory order to read as follows: "in fresh water
fisheries in the Philippines, such as rivers, lakes,
swamps, dams, irrigation canals and other bodies of
fresh water."
The Court of First Instance and the prosecution (p. 11 of
brief) assumed that electro fishing is punishable under
section 83 of the Fisheries Law (not under section 76
thereof), which provides that any other violation of that
law "or of any rules and regulations promulgated
thereunder shall subject the offender to a fine of not
more than two hundred pesos (P200), or in t for not
more than six months, or both, in the discretion of the
court."
That assumption is incorrect because 3 of the
aforequoted Administrative Order No. 84 imposes a fm
of not exceeding P500 on a person engaged in electro
fishing, which amount the 83. It seems that the
Department of Fisheries prescribed their own penalty for
swift fishing which penalty is less than the severe
penalty imposed in section 76 and which is not Identified
to the at penalty imposed in section 83.
Had Administrative Order No. 84 adopted the fighter
penalty prescribed in on 83, then the crime of electro
fishing would be within the exclusive original
jurisdiction of the inferior court (Sec. 44 [f], Judiciary
Law; People vs. Ragasi, L-28663, September 22,
We have discussed this pre point, not raised in the
briefs, because it is obvious that the crime of electro
fishing which is punishable with a sum up to P500, falls
within the concurrent original jurisdiction of the inferior
courts and the Court of First instance (People vs.
Nazareno, L-40037, April 30, 1976, 70 SCRA 531 and
the cases cited therein).
And since the instant case was filed in the municipal
court of Sta. Cruz, Laguna, a provincial capital, the
order of d rendered by that municipal court was directly
appealable to the Court, not to the Court of First
Instance of Laguna (Sec. 45 and last par. of section 87
of the Judiciary Law; Esperat vs. Avila, L-25992, June
30, 1967, 20 SCRA 596).
It results that the Court of First Instance of Laguna had
no appellate jurisdiction over the case. Its order
affirming the municipal court's order of dismissal is void
for lack of motion. This appeal shall be treated as a
direct appeal from the municipal court to this Court.
(See People vs. Del Rosario, 97 Phil. 67).
In this appeal, the prosecution argues that
Administrative Orders Nos. 84 and 84-1 were not issued
under section 11 of the Fisheries Law which, as
indicated above, punishes fishing by means of an
obnoxious or poisonous substance. This contention is
not well-taken because, as already stated, the Penal
provision of Administrative Order No. 84 implies that
electro fishing is penalized as a form of fishing by
means of an obnoxious or poisonous substance under
section 11.
The prosecution cites as the legal sanctions for the
prohibition against electro fishing in fresh water fisheries
(1) the rule-making power of the Department Secretary
under section 4 of the Fisheries Law; (2) the function of
the Commissioner of Fisheries to enforce the provisions
of the Fisheries Law and the regulations Promulgated
thereunder and to execute the rules and regulations
consistent with the purpose for the creation of the
Fisheries Commission and for the development of
fisheries (Sec. 4[c] and [h] Republic Act No. 3512; (3)
the declared national policy to encourage, Promote and
conserve our fishing resources (Sec. 1, Republic Act
No. 3512), and (4) section 83 of the Fisheries Law
which provides that "any other violation of" the Fisheries
Law or of any rules and regulations promulgated
thereunder "shall subject the offender to a fine of not
more than two hundred pesos, or imprisonment for not
more than six months, or both, in the discretion of the
court."
As already pointed out above, the prosecution's
reference to section 83 is out of place because the
penalty for electro fishing under Administrative order No.
84 is not the same as the penalty fixed in section 83.
We are of the opinion that the Secretary of Agriculture
and Natural Resources and the Commissioner of
Fisheries exceeded their authority in issuing Fisheries
Administrative Orders Nos. 84 and 84-1 and that those
orders are not warranted under the Fisheries
Commission, Republic Act No. 3512.
The reason is that the Fisheries Law does not expressly
prohibit electro fishing. As electro fishing is not banned
under that law, the Secretary of Agriculture and Natural
Resources and the Commissioner of Fisheries are
powerless to penalize it. In other words, Administrative
Orders Nos. 84 and 84-1, in penalizing electro fishing,
are devoid of any legal basis.
Had the lawmaking body intended to punish electro
fishing, a penal provision to that effect could have been
easily embodied in the old Fisheries Law.
That law punishes (1) the use of obnoxious or
poisonous substance, or explosive in fishing; (2)
unlawful fishing in deepsea fisheries; (3) unlawful taking
of marine molusca, (4) illegal taking of sponges; (5)
failure of licensed fishermen to report the kind and
quantity of fish caught, and (6) other violations.
Nowhere in that law is electro fishing specifically
punished. Administrative Order No. 84, in punishing
electro fishing, does not contemplate that such an
offense fails within the category of "other violations"
because, as already shown, the penalty for electro
fishing is the penalty next lower to the penalty for fishing
with the use of obnoxious or poisonous substances,
fixed in section 76, and is not the same as the penalty
for "other violations" of the law and regulations fixed in
section 83 of the Fisheries Law.
The lawmaking body cannot delegate to an executive
official the power to declare what acts should constitute
an offense. It can authorize the issuance of regulations
and the imposition of the penalty provided for in the law
itself. (People vs. Exconde 101 Phil. 11 25, citing 11
Am. Jur. 965 on p. 11 32).
Originally, Administrative Order No. 84 punished electro
fishing in all waters. Later, the ban against electro
fishing was confined to fresh water fisheries. The
amendment created the impression that electro fishing
is not condemnable per se. It could be tolerated in
marine waters. That circumstances strengthens the view
that the old law does not eschew all forms of electro
fishing.
However, at present, there is no more doubt that electro
fishing is punishable under the Fisheries Law and that it
cannot be penalized merely by executive revolution
because Presidential Decree No. 704, which is a
revision and consolidation of all laws and decrees
affecting fishing and fisheries and which was
promulgated on May 16, 1975 (71 O.G. 4269),
expressly punishes electro fishing in fresh water and
salt water areas.
That decree provides: ñé+.£ªwph!1
SEC. 33. — Illegal fishing, dealing in
illegally caught fish or fishery/aquatic
products. — It shall he unlawful for any
person to catch, take or gather or cause
to be caught, taken or gathered fish or
fishery/aquatic products in Philippine
waters with the use of explosives,
obnoxious or poisonous substance, or
by the use of electricity as defined in
paragraphs (1), (m) and (d),
respectively, of Section 3 hereof: ...
The decree Act No. 4003, as amended, Republic Acts
Nos. 428, 3048, 3512 and 3586, Presidential Decrees
Nos. 43, 534 and 553, and all , Acts, Executive Orders,
rules and regulations or parts thereof inconsistent with it
(Sec. 49, P. D. No. 704).
The inclusion in that decree of provisions defining and
penalizing electro fishing is a clear recognition of the
deficiency or silence on that point of the old Fisheries
Law. It is an admission that a mere executive regulation
is not legally adequate to penalize electro fishing.
Note that the definition of electro fishing, which is found
in section 1 (c) of Fisheries Administrative Order No. 84
and which is not provided for the old Fisheries Law, is
now found in section 3(d) of the decree. Note further
that the decree penalty electro fishing by "imprisonment
from two (2) to four (4) years", a punishment which is
more severe than the penalty of a time of not excluding
P500 or imprisonment of not more than six months or
both fixed in section 3 of Fisheries Administrative Order
No. 84.
An examination of the rule-making power of executive
officials and administrative agencies and, in particular,
of the Secretary of Agriculture and Natural Resources
(now Secretary of Natural Resources) under the
Fisheries Law sustains the view that he ex his authority
in penalizing electro fishing by means of an
administrative order.
Administrative agent are clothed with rule-making
powers because the lawmaking body finds it
impracticable, if not impossible, to anticipate and
provide for the multifarious and complex situations that
may be encountered in enforcing the law. All that is
required is that the regulation should be germane to the
defects and purposes of the law and that it should
conform to the standards that the law prescribes
(People vs. Exconde 101 Phil. 1125; Director of Forestry
vs. Muñ;oz, L-24796, June 28, 1968, 23 SCRA 1183,
1198; Geukeko vs. Araneta, 102 Phil. 706, 712).
The lawmaking body cannot possibly provide for all the
details in the enforcement of a particular statute (U.S.
vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs.
Grimaud 220 U.S. 506; Interprovincial Autobus Co., Inc.
vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).
The grant of the rule-making power to administrative
agencies is a relaxation of the principle of separation of
powers and is an exception to the nondeleption of
legislative, powers. Administrative regulations or
"subordinate legislation calculated to promote the public
interest are necessary because of "the growing
complexity of modem life, the multiplication of the
subjects of governmental regulations, and the increased
difficulty of administering the law" Calalang vs. Williams,
70 Phil. 726; People vs. Rosenthal and Osmeñ;a, 68
Phil. 328).
Administrative regulations adopted under legislative
authority by a particular department must be in harmony
with the provisions of the law, and should be for the sole
purpose of carrying into effect its general provisions. By
such regulations, of course, the law itself cannot be
extended. (U.S. vs. Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress
(Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs.
Members of the d of Administrators, L-25619, June 30,
1970, 33 SCRA 585; Manuel vs. General Auditing
Office, L-28952, December 29, 1971, 42 SCRA 660;
Deluao vs. Casteel, L-21906, August 29, 1969, 29
SCRA 350).
The rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect
the law as it his been enacted. The power cannot be
extended to amending or expanding the statutory
requirements or to embrace matters not covered by the
statute. Rules that subvert the statute cannot be
sanctioned. (University of Santo Tomas vs. Board of
Tax A 93 Phil. 376, 382, citing 12 C.J. 845-46. As to
invalid regulations, see of Internal Revenue vs. Villaflor
69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676;
Del March vs. Phil. Veterans Administrative, L-27299,
June 27, 1973, 51 SCRA 340, 349).
There is no question that the Secretary of Agriculture
and Natural Resources has rule-making powers.
Section 4 of the Fisheries law provides that the
Secretary "shall from time to time issue instructions,
orders, and regulations consistent" with that law, "as
may be and proper to carry into effect the provisions
thereof." That power is now vested in the Secretary of
Natural Resources by on 7 of the Revised Fisheries law,
Presidential December No. 704.
Section 4(h) of Republic Act No. 3512 empower the Co
of Fisheries "to prepare and execute upon the approval
of the Secretary of Agriculture and Natural Resources,
forms instructions, rules and regulations consistent with
the purpose" of that enactment "and for the
development of fisheries."
Section 79(B) of the Revised Administrative Code
provides that "the Department Head shall have the
power to promulgate, whenever he may see fit do so, all
rules, regulates, orders, memorandums, and other
instructions, not contrary to law, to regulate the proper
working and harmonious and efficient administration of
each and all of the offices and dependencies of his
Department, and for the strict enforcement and proper
execution of the laws relative to matters under the
jurisdiction of said Department; but none of said rules or
orders shall prescribe penalties for the violation thereof,
except as expressly authorized by law."
Administrative regulations issued by a Department Head
in conformity with law have the force of law (Valerie vs.
Secretary of culture and Natural Resources, 117 Phil.
729, 733; Antique Sawmills, Inc. vs. Zayco, L- 20051,
May 30, 1966, 17 SCRA 316). As he exercises the rule-
making power by delegation of the lawmaking body, it is
a requisite that he should not transcend the bound
demarcated by the statute for the exercise of that
power; otherwise, he would be improperly exercising
legislative power in his own right and not as a surrogate
of the lawmaking body.
Article 7 of the Civil Code embodies the basic principle
that administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution."
As noted by Justice Fernando, "except for constitutional
officials who can trace their competence to act to the
fundamental law itself, a public office must be in the
statute relied upon a grant of power before he can
exercise it." "department zeal may not be permitted to
outrun the authority conferred by statute." (Radio
Communications of the Philippines, Inc. vs. Santiago, L-
29236, August 21, 1974, 58 SCRA 493, 496-8).
"Rules and regulations when promulgated in pursuance
of the procedure or authority conferred upon the
administrative agency by law, partake of the nature of a
statute, and compliance therewith may be enforced by a
penal sanction provided in the law. This is so because
statutes are usually couched in general terms, after
expressing the policy, purposes, objectives, remedies
and sanctions intended by the legislature. The details
and the manner of carrying out the law are oftentimes
left to the administrative agency entrusted with its
enforcement. In this sense, it has been said that rules
and regulations are the product of a delegated power to
create new or additional legal provisions that have the
effect of law." The rule or regulation should be within the
scope of the statutory authority granted by the
legislature to the administrative agency. (Davis,
Administrative Law, p. 194, 197, cited in Victories Milling
Co., Inc. vs. Social Security Commission, 114 Phil. 555,
558).
In case of discrepancy between the basic law and a rule
or regulation issued to implement said law, the basic law
prevails because said rule or regulation cannot go
beyond the terms and provisions of the basic law
(People vs. Lim, 108 Phil. 1091).
This Court in its decision in the Lim case, supra,
promulgated on July 26, 1960, called the attention of
technical men in the executive departments, who draft
rules and regulations, to the importance and necessity
of closely following the legal provisions which they
intend to implement so as to avoid any possible
misunderstanding or confusion.
The rule is that the violation of a regulation prescribed
by an executive officer of the government in conformity
with and based upon a statute authorizing such
regulation constitutes an offense and renders the
offender liable to punishment in accordance with the
provisions of the law (U.S. vs. Tupasi Molina, 29 Phil.
119, 124).
In other words, a violation or infringement of a rule or
regulation validly issued can constitute a crime
punishable as provided in the authorizing statute and by
virtue of the latter (People vs. Exconde 101 Phil. 1125,
1132).
It has been held that "to declare what shall constitute a
crime and how it shall be punished is a power vested
exclusively in the legislature, and it may not be
delegated to any other body or agency" (1 Am. Jur. 2nd,
sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F.
Supp. 527).
In the instant case the regulation penalizing electro
fishing is not strictly in accordance with the Fisheries
Law, under which the regulation was issued, because
the law itself does not expressly punish electro fishing.
The instant case is similar to People vs. Santos, 63 Phil.
300. The Santos case involves section 28 of Fish and
Game Administrative Order No. 2 issued by the
Secretary of Agriculture and Natural Resources
pursuant to the aforementioned section 4 of the
Fisheries Law.
Section 28 contains the proviso that a fishing boat not
licensed under the Fisheries Law and under the said
administrative order may fish within three kilometers of
the shoreline of islands and reservations over which
jurisdiction is exercised by naval and military
reservations authorities of the United States only upon
receiving written permission therefor, which permission
may be granted by the Secretary upon recommendation
of the military or naval authorities concerned. A violation
of the proviso may be proceeded against under section
45 of the Federal Penal Code.
Augusto A. Santos was prosecuted under that provision
in the Court of First Instance of Cavite for having caused
his two fishing boats to fish, loiter and anchor without
permission from the Secretary within three kilometers
from the shoreline of Corrigidor Island.
This Court held that the Fisheries Law does not prohibit
boats not subject to license from fishing within three
kilometers of the shoreline of islands and reservations
over which jurisdiction is exercised by naval and military
authorities of the United States, without permission from
the Secretary of Agriculture and Natural Resources
upon recommendation of the military and naval
authorities concerned.
As the said law does not penalize the act mentioned in
section 28 of the administrative order, the promulgation
of that provision by the Secretary "is equivalent to
legislating on the matter, a power which has not been
and cannot be delegated to him, it being expressly
reserved" to the lawmaking body. "Such an act
constitutes not only an excess of the regulatory power
conferred upon the Secretary but also an exercise of a
legislative power which he does not have, and
therefore" the said provision "is null and void and
without effect". Hence, the charge against Santos was
dismiss.
A penal statute is strictly construed. While an
administrative agency has the right to make ranks and
regulations to carry into effect a law already enacted,
that power should not be confused with the power to
enact a criminal statute. An administrative agency can
have only the administrative or policing powers
expressly or by necessary implication conferred upon it.
(Glustrom vs. State, 206 Ga. 734, 58 Second 2d 534;
See 2 Am. Jr. 2nd 129-130).
Where the legislature has delegated to executive or
administrative officers and boards authority to
promulgate rules to carry out an express legislative
purpose, the rules of administrative officers and boards,
which have the effect of extending, or which conflict with
the authority granting statute, do not represent a valid
precise of the rule-making power but constitute an
attempt by an administrative body to legislate (State vs.
Miles, Wash. 2nd 322, 105 Pac. 2nd 51).
In a prosecution for a violation of an administrative
order, it must clearly appear that the order is one which
falls within the scope of the authority conferred upon the
administrative body, and the order will be scrutinized
with special care. (State vs. Miles supra).
The Miles case involved a statute which authorized the
State Game Commission "to adopt, promulgate, amend
and/or repeal, and enforce reasonable rules and
regulations governing and/or prohibiting the taking of the
various classes of game.
Under that statute, the Game Commission promulgated
a rule that "it shall be unlawful to offer, pay or receive
any reward, prize or compensation for the hunting,
pursuing, taking, killing or displaying of any game
animal, game bird or game fish or any part thereof."
Beryl S. Miles, the owner of a sporting goods store,
regularly offered a ten-down cash prize to the person
displaying the largest deer in his store during the open
for hunting such game animals. For that act, he was
charged with a violation of the rule Promulgated by the
State Game Commission.
It was held that there was no statute penalizing
the display of game. What the statute penalized was the
taking of game. If the lawmaking body desired to
prohibit the display of game, it could have readily said
so. It was not lawful for the administrative board to
extend or modify the statute. Hence, the indictment
against Miles was quashed. The Miles case is similar to
this case.
WHEREFORE, the lower court's decision of June 9,
1970 is set aside for lack of appellate jurisdiction and
the order of dismissal rendered by the municipal court of
Sta. Cruz, Laguna in Criminal Case No. 5429 is
affirmed. Costs de oficio.
SO ORDERED.
G.R. No. 92646-47 October 4, 1991
AUGUSTO TOLEDO, petitioner,
vs.
CIVIL SERVICE COMMISSION and COMMISSION ON
ELECTIONS, respondents.
Petitioner Atty. Augusto Toledo was appointed by then
Comelec Chairman Ramon Felipe as Manager of the
Education and Information Department of the Comelec,
on May 21, 1986. At the time of his appointment,
petitioner, having been born on July 8, 1927 was
already more than fifty-seven (57) years old. It was the
first time petitioner joined the government service as he
was then engaged in active private practice prior to said
appointment.
Petitioner's appointment papers, particularly Civil
Service Form No. 333 and his oath of office were
endorsed by the Comelec to the Civil Service
Commission (CSC, for brevity) on June 11, 1986, for
approval and attestation. However, no prior request for
exemption from the provisions of Section 22, Rule III of
the Civil Service Rules on Personnel Action and Policies
(CSRPAP, for brevity) was secured. Said provision
prohibits the appointment of persons 57 years old or
above into the government service without prior
approval by the Civil Service Commission (CSC
Memorandum Circular No. 5, Series of 1983).
Petitioner officially reported for work and assumed the
functions of his office on June 16, 1986.
On January 29, 1989, public respondent Comelec, upon
discovery of the lack of authority required under Section
22, Rule III of the CSRPAP, and CSC Memorandum
Circular No. 5, Series of 1983 issued Resolution No.
2066, the pertinent portion of which is hereinbelow
quoted, to wit:
WHEREAS, for the validity then of the
appointment of Atty. Toledo as Manager of the
Education and Information Department it was
necessary that not only must prior authority from
the Civil Service Commission be obtained
considering that he was more than fifty-seven
(57) years old at the time, it must as well be
shown that (a) the exigencies of the service so
required, (b) Atty. Toledo possesses special
qualification not possessed by other officers or
employees in the Commission, and (c) the
vacancy cannot be filled by promotion of
qualified officers or employees in the
Commission;
WHEREAS, there is nothing in the 120 File of
Atty. Toledo that indicates that such authority
was even obtained from the Civil Service
Commission or from the President of the
Philippines; moreover, conditions (a), (b) and (c)
stated in the immediately preceding clause did
not then exist;
WHEREAS, the appointment then of Atty.
Toledo was made in violation of law and
pursuant to Section 7, Rule III of the Civil
Service Rules on Personnel Action, the
appointment was void from the beginning.
NOW, THEREFORE, be it resolved, as it is
hereby resolved, to DECLARE as VOID from the
beginning the appointment of Atty. Augusto
Toledo as Manager of the Education and
Information Department of this Commission. (pp.
49-50, Rollo)
Petitioner appealed the foregoing Comelec Resolution
No. 2066 to public respondent CSC on February 4,
1989.
On July 12, 1989, public respondent CSC promulgated
Resolution No. 89-468 which disposed of the appeal,
thus:
WHEREFORE, foregoing premises considered,
the Commission resolved to declare, as it
hereby declares the appointment of Augusto V.
Toledo as Manager, Information and Education
Department, Commission on Elections, there
being no basis in law, merely voidable and not
void ab initio. Hence, Atty. Toledo is considered
a de facto officer from the time he assumed
office on June 16, 1986, until and up to the
promulgation of COMELEC Resolution No. 2066
on January 29, 1989. (pp. 35-36, Rollo)
Unable to obtain a reconsideration from the aforesaid
Resolution, petitioner filed the present petition for
certiorari.
It is first contended by petitioner that CSC Resolution
No. 89-468 is without legal basis because the CSRPAP
is invalid and unenforceable for not having been
published in the Official Gazette or in any newspaper of
general circulation as required under Section 9(b) of
P.D. 807. This being the case, petitioner argues that the
requirement of prior CSC authority to appoint persons
57 years or older under Section 22, Rule III of the
CSRPAP has not "become effective" and cannot be
invoked against him.
It will be recalled that the Civil Service Act of 1959
(Republic Act No. 2260) took effect on June 19, 1959.
That act, among other things, established a Civil Service
Commission one of the functions of which was, "with the
approval by the President, to prescribe, amend, and
enforce suitable rules and regulations for carrying into
effect the provisions of ... the Civil Service Law," said
rules "to become effective thirty days after publication in
the Official Gazette" [Sec. 16 (e)].
The Commission subsequently adopted and
promulgated rules intended to carry the law into effect,
known as the Revised Civil Service Rules. Those rules
were published in the supplement to Vol. 58, No. 49 of
the Official Gazette, dated December 3, 1962.
Section 5, Rule VI of those Revised Civil Service Rules
provided that:
SEC. 5. No person shall be appointed or
reinstated in the service if he is already 57 years
old, unless the President of the Philippines,
President of the Senate, Speaker of the House
of Representatives, or the Chief Justice of the
Supreme Court, as the case may be, determines
that he possesses special qualifications and his
services are needed.
It is worthy of note, however, that the statute itself (RA
2260) contained no provision prohibiting appointment or
reinstatement in the Government service of any person
who was already 57 years old, or otherwise requiring
that some limitation as regards to age be placed on
employment in the Government service. This prohibition
was purely a creation of the Civil Service Commission.
On October 6, 1975, pursuant to the 1973 Constitution,
Presidential Decree No. 807 was issued by President
Marcos, establishing "an independent Civil Service
Commission." The decree, known as the "Civil Service
Decree of the Philippines," repealed or accordingly
modified all laws, rules, and regulations or parts thereof
inconsistent" with its provisions (Sec. 59), although it
declared that "the former Civil Service Commission
created under Republic Act No. 2260, as amended, and
as organized under the Integrated Reorganization Plan
may serve as the nucleus of the Civil Service
Commission" (Fourth Whereas Clause, Preamble). Like
RA 2260 which it superseded, PD 807 empowered the
Commission to "prescribe, amend, and enforce suitable
rules and regulations for carrying into effect the
provisions of the Decree," and also provided that said
"rules and regulations shall become effective thirty (30)
days after publication in the Official Gazette or in any
newspaper of general circulation."
The new Civil Service Commission adopted "rules and
regulations for carrying into effect the provisions" of the
Civil Service Decree on November 20, 1983. The rules
were named, "Civil Service Rules on Personnel Actions
and Policies" (CSRPAP). Section 22, Rule III of the
CSRPAP is substantially the same as Section 5, Rule VI
of the quondam "Revised Civil Service Rules" and it
reads as follows:
SEC. 22. No person shall be appointed,
reinstated, or re-employed in the service if he is
already 57 years old, unless the President, or
the Chief Justice of the Supreme Court, in the
case of employees in the judiciary, determines
that he possesses special qualifications urgently
needed by the hiring agency.
Omitted, it will be observed, was reference to the
"President of the Senate" and the "Speaker of the
House of Representatives," both of whom were
expressly mentioned in the counterpart provision in the
former rules (Section 5, Rule VI, supra).
Noteworthy, too, is that there is no provision at all in PD
807 dealing in any manner with the appointment,
reinstatement or re-employment in the Government
service of any person already 57 years or any particular
age, for that matter. Again, the provision regarding
persons 57 years of age was purely a creation of the
Commission, having no reference to any provision in the
decree intended to be implemented.
It was this provision of the CSRPAP (Sec. 22, Rule III)
which was applied to Toledo. According to the CSC,
since prior authority for Toledo's appointment had never
been obtained — indeed, it would appear that the
appointment papers were not transmitted by the
COMELEC to the CSC until February, 1989 at which
time Toledo's appointment was "approved as
permanent" by the Executive Director of said CSC—the
appointment had to be struck down.
Now, these rules and regulations (CSRPAP) were never
published either in the Official Gazette or any
newspaper of general circulation, at least as of the time
that Section 22, Rule III thereof was applied to Toledo to
the latter's prejudice. As much was admitted by the
Chairman of the Commission, Hon. Patricia A. Sto.
Tomas in a letter written by her to Toledo dated
February 2, 1989. In that letter, the Chairman stated that
(a) the Commission had "no record of the publication of
said Rules ("Rules on Personnel Actions and Policies")
in newspapers of general circulation" although said
Rules were "published and distributed by the National
Media Production Center in 1975," and that (b) only "the
Rule on Promotion embodied in CSC Resolution No. 83-
343 repealing Rule V of the said Rules was published
on August 15, 1983 in Volume 79 No. 33 of the Official
Gazette" (Annex I, petition). The lack of publication is
also attested by the Director of the National Printing
Office who, in a Certification issued by him on January
30, 1989, stated that "the RULES ON PERSONNEL
ACTIONS AND POLICIES' promulgated on November
20, 1975 by the Civil Service Commission implementing
Presidential Decree No. 807 was not submitted to this
office for publication" (Annex J, petition).
The Revised Civil Service Rules implementing R.A. No.
2260 cannot be considered valid and effective after RA
2260 was repealed and superseded by PD 807. PD 807
was obviously intended to take the place of RA 2260. In
all matters dealt with by both laws, the provisions of PD
807 were obviously intended to be controlling. So, also,
the rules promulgated by the Civil Service Commission
to carry the provisions of PD 807 into effect were meant
to supersede or take the place of the rules implementing
RA 2260. In other words, PD 807 and the CSRPAP
were intended to make RA 2260 and its implementing
rules functus officio, render them without force and
effect except only as regards any provision, if at all, not
dealt with by PD 807 or the CSRPAP.
Now, it may reasonably be assumed that the law-
making authority at the time, the President, was aware
of the provision on 57-year old persons in the Revised
Civil Service Rules promulgated under RA 2260. Yet
when he promulgated PD 807 the President did not see
fit to incorporate therein any provision regarding 57-year
old persons or for that matter, to prescribe any age
beyond which persons could become ineligible for
appointment, reintatement or re-employment. This
surely is an indication of an intention not to continue the
provision in effect.
In any event, the provision on 57-year old persons in the
Revised Civil Service Rules (under said RA 2260)
cannot be accorded validity. As already pointed out, it is
entirely a creation of the Civil Service Commission,
having no basis in the law itself which it was meant to
implement. It cannot be related to or connected with any
specific provision of the law which it is meant to carry
into effect, such as a requirement, for instance, that age
should be reckoned as a factor in the employment or
reinstatement of an individual, or a direction that there
be a determination of some point in a person's life at
which he becomes unemployable, or employable only
under specific conditions. It was therefore an
unauthorized act of legislation on the part of the Civil
Service Commission. It cannot be justified as a valid
exercise of its function of promulgating rules and
regulations for that function, to repeat, may legitimately
be exercised only for the purpose of carrying the
provisions of the law into effect; and since there is no
prohibition or restriction on the employment of 57-year
old persons in the statute—or any provision respecting
age as a factor in employment—there was nothing to
carry into effect through an implementing rule on the
matter.
The power vested in the Civil Service Commission was
to implement the law or put it into effect, not to add to it;
to carry the law into effect or execution, not to supply
perceived omissions in it. "By its administrative
regulations, of course, the law itself can not be
extended; said regulations 'cannot amend an act of
Congress.' " (Teoxon v. Members of the Board of
Administrators, Philippine Veterans Administration, 33
SCRA 585, 589 [1970], citing Santos v. Estenzo, 109
Phil. 419 [1960]; see also, Animos v. Philippine
Veterans Affairs Office, 174 SCRA 214, 223-224 [1989]
in turn citing Teoxon).
The considerations just expounded also conduce to the
conclusion of the invalidity of Section 22, Rule III of the
CSRPAP. The enactment of said section, relative to 57-
year old persons, was also an act of supererogation on
the part of the Civil Service Commission since the rule
has no relation to or connection with any provision of the
law supposed to be carried into effect. The section was
an addition to or extension of the law, not merely a
mode of carrying it into effect.
Apart from this, the CSRPAP cannot be considered
effective as of the time of the application to Toledo of a
provision thereof, for the reason that said rules were
never published, as is admitted on all sides. The
argument that the CSRPAP need not be published,
because they were "a mere reiteration of existing law"
and had been "circularized," flies in the teeth of the
explicit and categorical requirement of PD 807 that rules
and regulations for carrying into effect the provisions of
the Decree shall become effective thirty (30) days after
publication in the Official Gazette or in any newspaper
of general circulation. Moreover, the CSRPAP cannot
properly be considered a mere reiteration of existing
law, for as already discussed, the implementing rule
governing 57-year old persons is invalid and cannot in
any sense be considered "existing law."
Assuming without conceding that the rule regarding
employment of 57-year old persons is valid and
enforceable, it can only apply, according to its express
terms, to employees under the supervision of the Chief
Justice of the Supreme Court, or of the President of the
Philippines, these two being the only officials mentioned
as having to give consent to the employment of said
persons. It cannot be construed as applying to
employees over whom neither the President nor the
Chief Justice exercises supervision, such as the Senate
or the House of Representatives, or the COMELEC or
other Constitutional Commissions.
One last word. There is absolutely no question about
the fact that the only reason for Toledo's separation
from the service was the fact that he was already more
than 57 years old when he was invited to work in the
COMELEC by its former Chairman, but through no fault
of his own, not all the conditions for his employment
appear to have been satisfied. There is no question that
it was not Toledo's fault that his papers were tardily
submitted to the Civil Service Commission and approval
of his appointment was made only by the Executive
Director of the Commission and not by the Chairman
thereof (to whom the function of the President of
approving appointments like those of Toledo had been
delegated under LOI 47, CSC Memo Circular No. 5,
Series of 1983). There is no question, too, that he was
actively engaged in law practice when taken into the
COMELEC. There is absolutely no question about the
fact that he was otherwise a competent and efficient
officer of the COMELEC and had not given the remotest
cause for dismissal. These are equitable considerations
proscribing application to him of the provision in
question, assuming its validity, or impelling at least a
restrictive application thereof so that it may not work to
his prejudice.
Premises considered, the petition is hereby GRANTED.
SO ORDERED.
G.R. No. L-6791 March 29, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
QUE PO LAY, defendant-appellant.
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 enSentencia de 22 de Junio
de 1910, en el sentido de que bajo la
denominaciongenerica de leyes, se
comprendentambienlos Reglamentos,
Realesdecretos, Instrucciones, Circulares y
Realesordenesdictadas de conformidad con las
mismaspor el Gobiernoenuso de supotestad.
Tambien el poderejecutivo lo ha
venidoentendiendoasi, como lo prueba el hecho
 de que muchas de susdisposicionescontienen la
advertencia de que empiezan a regir el
mismodia de supublicacionen la Gaceta,
advertencia que seriaperfectamenteinutilsi no
fuera de aplicacion al caso el articulo 1.o del
Codigo Civil. (Manresa, Codigo Civil Español,
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.