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Republic vs. Express Telecommunications Co. Inc. (Extelcom) [GR 147096, 15 January 2002] First Division, Ynares-Santiago (J): 4 concur Facts: On 29 December 1992, the International Communications Corporation (now Bayan Telecommunications, Inc. or Bayantel) filed an application with the National Telecommunications Commission (NTC) for a Certificate of Public Convenience or Necessity (CPCN, NTC Case 92-486) to install, operate and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a Provisional Authority (PA). Shortly thereafter, or on 22 January 1993, the NTC issued Memorandum Circular 4-1-93 directing all interested applicants for nationwide or regional CMTS to file their respective applications before the Commission on or before 15 February 1993, and deferring the acceptance of any application filed after said date until further orders. On 6 May 1993, and prior to the issuance of any notice of hearing by the NTC with respect to Bayantels original application, Bayantel filed an urgent ex-parte motion to admit an amended application. On 17 May 1993, the notice of hearing issued by the NTC with respect to this amended application was published in the Manila Chronicle. Copies of the application as well as the notice of hearing were mailed to all affected parties. Subsequently, hearings were conducted on the amended application. But before Bayantel could complete the presentation of its evidence, the NTC issued an Order dated 19 December 1993 stating that in view of the recent grant of 2 separate Provisional Authorities in favor of ISLACOM and GMCR, Inc., which resulted in the closing out of all available frequencies for the service being applied for by Bayantel, and in order that the case may not remain pending for an indefinite period of time, the case was ordered archived without prejudice to its reinstatement if and when the requisite frequency becomes available. On 17 May 1999, Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new frequency bands for CMTS operators. On 1 February 2000, the NTC granted BayanTels motion to revive the latters application and set the case for hearings on February 9, 10, 15, 17 and 22, 2000. The NTC noted that the application was ordered archived without prejudice to its reinstatement if and when the requisite frequency shall become available. Express Telecommunication Co., Inc. (Extelcom) filed in NTC Case 92-486 an Opposition (With Motion to Dismiss) praying for the dismissal of Bayantels application; arguing that Bayantels motion sought the revival of an archived application filed almost 8 years ago, and thus, the documentary evidence and the allegations of Bayantel in said application are all outdated and should no longer be used as basis of the necessity for the proposed CMTS service. On 3 May 2000, the NTC issued an Order granting in favor of Bayantel a provisional authority to operate CMTS service, applying Rule 15, Section 3 of its 1978 Rules of Practice and Procedure. Extelcom filed with the Court of Appeals a petition for certiorari and prohibition (CA-GR SP 58893), seeking the annulment of the Order reviving the application of Bayantel, the Order granting Bayantel a provisional authority to construct, install, operate and maintain a nationwide CMTS, and Memorandum Circular 9-3-2000 allocating frequency bands to new public telecommunication entities which are authorized to install, operate and maintain CMTS. On 13 September 2000, the Court of Appeals granted the writs of certiorari and prohibition prayed for, annulling and setting aside the NTC orders dated 1 February and 3 May 2000 in NTC Case 92-486, dismissing Bayantels Amended Application without prejudice to the filing of a new CMTS application. Bayantel and the NTC, the latter being represented by the Office of the Solicitor General (OSG), filed a motion for reconsideration of the above decision. On the other hand, Extelcom filed a Motion for Partial Reconsideration, praying that NTC Memorandum Circular 9-3-2000 be also declared null and void. On 9 February 2001, the Court of Appeals issued a resolution denying all of the motions for reconsideration of the parties for lack of merit. Hence, the NTC and Bayantel filed their petitions for review on certiorari (GR 147096, and GR 147210 respectively). In the present petition, Extelcom contends, among others, that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on 3 February 1993. These Revised Rules deleted the phrase on its own initiative; accordingly, a

provisional authority may be issued only upon filing of the proper motion before the Commission. The NTC, on the other hand, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules. Issue: Whether the 1978 or 1993 NTC Rules of Practice and Procedure should govern in the approval of Bayantels application. Held: The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1978 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs. Still, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (Commonwealth Act 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in the case Taada v. Tuvera. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation. In the absence of such publication, therefore, it is the 1978 Rules that governs. Tanada v. Philippine Atomic Energy Commission [GR 70632, 11 February 1986]; also Nuclear Free Philippines Coalition v. Napocor [ GR L-68474] Resolution En Banc, Plana (J) : 5 concur, 2 took no part Facts: The Official Philippine Atomic Energy Commission (PAEC) pamphlet, entitled The Philippine Nuclear Power Plant-1 was published in 1985 when Commissioners Manuel Eugenio, Quirino Navarro, and Alejandro Ver Albano had already been appointed to their present positions. Other pamphlets entitled Nuclear Power Safe, Clean, Economical, and Available, and Nuclear Power Plant and Environmental Safety were issued earlier, but the majority of the Commissioners even then were already occupying positions of responsibility in the PAEC. Commissioner Eugenio was Acting Chief of the PAEC Department on Nuclear Technology and Engineering from June, 1980 to July, 1984; Commissioner Navarro was PAEC Chief Science Research Specialist from May, 1980 to September, 1984; and Commissioner Albano was PAEC Deputy Commissioner from March, 1980 to September, 1984. These pamphlets continued to be distributed by PAEC as late as March 1985. Their official distribution continued after the filing of National Power Corporation (Napocor)s motion for conversion on 27 June 1984 and even after PAEC had issued its order dated 26 February 1985 formally admitting the said motion for conversion. In GR 70632, the competence of the PAEC Commissioners to pass judgment on the safety of the Philippine Nuclear Power Plant-1 (PNPP-1) was questioned; (2) the validity of Napocors motion/application for the conversion of its construction permit into an operating license for PNPP-1 was assailed, and (3) PAEC Commissioners were charged with bias and prejudgment. Issue: Whether the PAEC Commissioner may sit in judgment in determining the safety of PNPP-1. Held: The PAEC Commissioners would be acting with grave abuse of discretion amounting to lack of jurisdiction were they to sit in judgment upon the safety of the plant, absent the requisite objectivity that must characterize such an important inquiry because they already have prejudged the safety of PNPP-1. The PAEC Commissioners

cannot escape responsibility from the official pamphlets, which clearly indicate the prejudgment that PNPP-1 is safe. The official distribution of the pamphlets continued when the Commissioners had already been appointed to their present positions and and even after PAEC had issued its order dated 26 February 1985 formally admitting Napocors motion for conversion.

Aniag vs. Commission on Elections [GR 104961, 7 October 1994] En Banc, Bellosillo (J): 6 concur, 3 on leave Facts: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution 2323 (Gun Ban), promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. Subsequently, on 26 December 1991 COMELEC issued Resolution 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. On 10 January 1992, pursuant to the Gun Ban, Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote Congressman Francisc B. Aniag Jr., who was then Congressman of the 1st District of Bulacan requesting the return of the 2 firearms issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, Aniag immediately instructed his driver, Ernesto Arellano, to pick up the firearms from his house at Valle Verde and return them to Congress. Meanwhile, at about 5:00 p,.m. of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some 20 meters away from its entrance. About 30 minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by Aniag to get the firearms from the house and return them to Sergeant-at Arms Taccad of the House of Representatives. Thereafter, the police referred Arellanos case to the Office of the City Prosecutor for inquest. The referral did not include Aniag as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latters sworn explanation meritorious. On 28 January 1992, the City Prosecutor invited Aniag to shed light on the circumstances mentioned in Arellanos sworn explanation. Aniag not only appeared at the preliminary investigation to confirm Arellanos statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was Aniags driver, not a security officer nor a bodyguard. On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the unofficial charge against Aniag be also dismissed. Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution 92-0829 directing the filing of information against Aniag and Arellano for violation of Sec. 261, par. (q), of BP 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of RA 7166; and Aniag to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution 2327, in relation to Secs. 32, 33 and 35 of RA 7166, and Sec. 52, par. (c), of BP 881. On 13 April 1992, Aniag moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. On 23 April 1992, the COMELEC denied Aniags motion for reconsideration. Aniag filed a petition for declaratory relief, certiorari and prohibition against the COMELEC.

Issue: Whether the search of Aniags car that yielded the firarms which were to be returned to the House of Representatives within the purview of the exception as to the search of moving vehicles. Held: As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. As there was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of Aniag and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into Aniags privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of Aniags right against warrantless search cannot be admitted for any purpose in any proceeding.