TaÑada v.

Tuvera considering that Article 2 of the Civil Code

provides that laws shall take effect as
Summary: well, when otherwise provided. Thus, the
publication in the Official Gazette is not
Petitioners Lorenzo Tañada and others files a writ indispensable for their effectivity.
of mandamus to compel
Respondent Juan Tuvera, et.al. to publish in the (Note: The doctrine of operative fact recognizes
Official Gazette various the existence of the law or executive act
presidential decrees, letters of instruction, prior to the determination of its
general orders, proclamations, executive unconstitutionality as an operative fact that
orders, letter of implementation, and produced
administrative orders issued by the Office of consequences that cannot always be erased,
the President. They invoke the constitutional right ignored or disregarded. In short, it
of the people to be informed, as nullifies the void law or executive act but sustains
well as the principle that laws are valid and its effects.)
enforceable after their publication in
the Official Gazette. Issues and Ruling:

Doctrine: WON the publication in the Official Gazette is

required in order for the presidential
CONSTITUTIONAL LAW – The publication of all issuances to become valid and effective?
presidential issuances of public
nature or general applicability is mandated by Ans>>YES. The Supreme Court ruled that the
law. Such publication is a requirement of Article 2 of the Civil Code does not
due process whereby a person may be bound by preclude the requirement of publication in the
law only when he is first officially and Official Gazette even if the law itself
specifically informed of its contents. provides for the date of its effectivity. In fact,
Commonwealth Act 638 provides that
CIVIL LAW – Such publication is important laws shall be published in the Official Gazette.
because there shall be no basis for the Such publication is important
application of the Latin maxim, “ignoratia legis because there shall be no basis for the application
non excusat”, without such notice and of the Latin maxim, “ignoratia
publication, especially when the law-making legis non excusat”, without such notice and
process is not made in public. publication, especially when the lawmaking
process is not made in public.
Facts:
Further, the word “shall” in Section 1 of
Petitioners Lorenzo Tañada and others files a writ Commonwealth Act 638 imposes upon the
of mandamus to compel Respondent an imperative duty to enforce the
Respondent Juan Tuvera, et.al. to publish in the right of the people to be informed of the
Official Gazette various presidential matters of public concern. The publication of all
decrees, letters of instruction, general orders, presidential issuances of public nature or
proclamations, executive orders, letter general applicability is mandated by law. Such
of implementation, and administrative orders publication is a requirement of due process
issued by the Office of the President. whereby a person may be bound by law only
when he is first officially and specifically
They invoke the constitutional right of the people informed of its contents.
to be informed, as well as the
principle that laws are valid and enforceable after WON non-publication shall render the
their publication in the Official presidential issuances invalid and ineffective
Gazette. even though they have been enforced or
implemented prior to their publication?
The Respondent opposed the petition by
contending that the publication in the NO. The Court ruled that the implementation or
Official Gazette is not a sine qua non requirement enforcement of presidential decrees
for the effectivity of the laws prior to the publication in the Official Gazette is
where the laws themselves provide for their own an operative fact which may have
effectivity dates. The presidential consequences which cannot be justly ignored.
issuances in question contain special provisions The past cannot always be erased by a new
as to the date they are to take effect
judicial declaration that an all-inclusive statement as may be deemed by said courts of
of a principle of absolute retroactive sufficient importance to be so published.
invalidity cannot be justified. (4) such documents or classes of documents
as may be required so to be published by
NOTE: The publication of all presidential law.
issuances "of a public nature" or "of general (5) such documents or classes of documents
applicability" is mandated by law. Obviously, as the President of the Philippines shall
presidential decrees that provide for fines, determine from time to time to have
forfeitures or penalties for their violation or general applicability and legal effect, or
otherwise impose a burden or. the people, such which he may authorize so to be
as tax and revenue measures, fall within this published.
category. Other presidential issuances which
apply only to particular persons or class of Provided, that for the purpose of this section
persons such as administrative and executive every order or document which shall
orders need not be published on the assumption prescribe a penalty shall be deemed to have
that they have been circularized to all concerned. general applicability and legal effect

The Court therefore declares that presidential And provided, further, That the term
issuances of general application, which have not ''document" as used in this section shall
been published, shall have no force and effect. include any order, regulation, rule, certificate,
Similarly, the implementation/enforcement of license, notice, or similar instrument issued,
presidential decrees prior to their publication in prescribed or promulgated by any executive
the Official Gazette is "an operative fact which department, bureau, office, commission,
may have consequences which cannot be justly independent board, agency, or
ignored. The past cannot always be erased by a instrumentality of the administrative branch
new judicial declaration ... that an all-inclusive of the Government, but not the legislative or
statement of a principle of absolute retroactive judicial branch of the Government.
invalidity cannot be justified."
SECTION 2.
Dispositive:
“…the Official Gazette shall be edited in the
The Court ordered the Respondents to PUBLISH Executive Office and shall be published in the
in the Official Gazette all unpublished English language, but an edition in Spanish
presidential issuances which are of general may also be issued if the interest of the
application. Non-publication shall render such service to be determined by the President of
issuances as having no binding force and effect. the Philippines so requires it. The sale and
distribution of the Official Gazette shall also
EXECUTIVE ORDER NO. 200 June 18, 1987 be effected by the Bureau of Printing which
shall promptly mail copies thereof to
PROVIDING FOR THE PUBLICATION OF LAWS subscribers free of postage…”
EITHER IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE SENATE VS. ERMITA
PHILIPPINES AS A REQUIREMENT FOR THEIR
EFFECTIVITY EO 464 – issued by President Gloria
Macapagal-Arroyo which required executive
Commonwealth Act No. 638, June 10, 1941 officials to secure the President’s consent
before appearing to Congress.
SECTION 1.
Facts: On September 21 to 23, 2005, the
There shall be published in the Official Gazette: Committee of the Senate as a whole issued
invitations to various officials of the Executive
(1) all-important legislative acts and Department for them to appear on
resolutions of a public nature of the September 29, 2005, as resource speakers in
Congress of the Philippines. a public hearing on the railway project of the
(2) all executive and administrative orders North Luzon Railways Corporation with the
and proclamations, except such as have China National Machinery and Equipment
no general applicability. Group (hereinafter North Rail Project). The
(3) decisions or abstracts of decisions of the public hearing was sparked by a privilege
Supreme Court and the Court of Appeals speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged
overpricing and other unlawful provisions of conversation purportedly between the
the contract covering the North Rail Project. President of the Philippines and a high-
ranking official of the Commission on
The Senate Committee on National Defense Elections (COMELEC) surfaced.
and Security likewise issued invitations dated
September 22, 2005, to the following officials The tapes, notoriously referred to as the
of the AFP: the Commanding General of the "Hello Garci" tapes, allegedly contained the
Philippine Army, Lt. Gen. Hermogenes C. President's instructions to COMELEC
Esperon for them to attend as resource Commissioner Virgilio Garcillano to
persons in a public hearing scheduled on manipulate in her favor results of the 2004
September 28, 2005. presidential elections. These recordings were
to become the subject of heated legislative
Issues and Rulings: hearings conducted separately by
committees of both Houses of Congress.
Whether respondents have committed Grave
abuse of discretion when they implemented Issues and Rulings:
E.O. 464 prior to its publication in a
newspaper of general circulation? Whether the Senate could conduct its inquiry
without duly published rules of procedures?
Ans.>> While E.O. 464 applies only to
officials of the executive branch, it does not Ans.>> The Senate cannot be allowed to
follow that the same is exempt from the need continue with the conduct of the questioned
for publication. On the need for publishing legislative inquiry without duly published
even those statutes that do not directly apply rules of procedure, in clear derogation of the
to people in general, Tañada v. Tuvera constitutional requirement.
states:
Section 21, Article VI of the 1987 Constitution
The term "laws" should refer to all laws and explicitly provides that "[t]he Senate or the
not only to those of general application, for House of Representatives, or any of its
strictly speaking all laws relate to the people respective committees may conduct inquiries
in general albeit there are some that do not in aid of legislation in accordance with its duly
apply to them directly. An example is a law published rules of procedure."
granting citizenship to a particular individual,
like a relative of President Marcos who was The requisite of publication of the rules is
decreed instant naturalization. It surely intended to satisfy the basic requirements of
cannot be said that such a law does not affect due process.
the public although it unquestionably does
not apply directly to all the people. The Publication is indeed imperative, for it will be
subject of such law is a matter of public the height of injustice to punish or otherwise
interest which any member of the body politic burden a citizen for the transgression of a law
may question in the political forums or, if he or rule of which he had no notice whatsoever,
is a proper party, even in courts of justice. not even a constructive one.

Although the above statement was made in What constitutes publication is set forth in
reference to statutes, logic dictates that the Article 2 of the Civil Code, which provides that
challenged order must be covered by the "laws shall take effect after 15 days following
publication requirement. As explained above, the completion of their publication either in
E.O. 464 has a direct effect on the right of the Official Gazette, or in a newspaper of
the people to information on matters of public general circulation in the Philippines."
concern. It is, therefore, a matter of public
interest which members of the body politic The respondents in G.R. No. 179275 admit in
may question before this Court. Due process their Pleadings and even on oral argument
thus requires that the people should have that the Senate Rules of Procedure Governing
been apprised of this issuance before it was Inquiries in Aid of Legislation had been
implemented. published in newspapers of general
circulation only in 1995 and in 2006.
GARCILLANO V. HOUSE, 12/23/08
he respondents in G.R. No. 179275 admit in
Facts: More than three years ago, tapes their Pleadings and even on oral argument
ostensibly containing a wiretapped that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation had been clarification. Certainly, there is no debate that
published in newspapers of general the Senate as an institution is "continuing,"
circulation only in 1995 and in 2006. as it is not dissolved as an entity with each
national election or change in the
Recently, the Court had occasion to rule on composition of its members. However, in the
this very same question. In Neri v. Senate conduct of its day-to-day business the Senate
Committee on Accountability of Public of each Congress acts separately and
Officers and Investigations, independently of the Senate of the Congress
before it:
Fourth, we find merit in the argument of the
OSG that respondent Committees likewise RULE LII DATE OF TAKING EFFECT –
violated Section 21 of Article VI of the SEC. 137. These Rules shall take effect on the
Constitution, requiring that the inquiry be in date of their Adoption and shall remain in
accordance with the "duly published rules of force until they are amended or repealed.
procedure: "We quote the OSG's explanation:
The phrase "duly published rules of Section 136 of the Senate Rules quoted
procedure" requires the Senate of every above takes into account the new
Congress to publish its rules of procedure composition of the Senate after an election
governing inquiries in aid of legislation and the possibility of the amendment or
because every Senate is distinct from the one revision of the Rules at the start of each
before it or after it. Since Senatorial elections session in which the newly elected Senators
are held every three (3) years for one-half of shall begin their term.
the Senate's membership, the composition of
the Senate also changes by the end of each However, it is evident that the Senate has
term. Each Senate may thus enact a different determined that its main rules are intended
set of rules as it may deem fit. Not having to be valid from the date of their Adoption
published its Rules of Procedure, the subject until they are amended or repealed. Such
hearings in aid of legislation conducted by the language is conspicuously absent from the
14th Senate, are therefore, procedurally Rules. The Rules simply state "(t)hese Rules
infirm. shall take effect seven (7) days after
publication in two (2) newspapers of general
Justice Antonio T. Carpio, in his Dissenting circulation." The latter does not explicitly
and Concurring Opinion, reinforces this ruling provide for the continued effectivity of such
with the following rationalization: The rules until they are amended or repealed. In
present Senate under the 1987 Constitution view of the difference in the language of the
is no longer a continuing legislative body. The two sets of Senate rules, it cannot be
present Senate has twenty-four members, presumed that the Rules (on legislative
twelve of whom are elected every three years inquiries) would continue into the next
for a term of six years each. Thus, the term Congress. The Senate of the next Congress
of twelve Senators expires every three years, may easily adopt different rules for its
leaving less than a majority of Senators to legislative inquiries which come within the
continue into the next Congress. The 1987 rule on unfinished business.
Constitution, like the 1935 Constitution,
requires a majority of Senators to "constitute The language of Section 21, Article VI of the
a quorum to do business." Applying the same Constitution requiring that the inquiry be
reasoning in Arnault v. Nazareno, the Senate conducted in accordance with the duly
under the 1987 Constitution is not a published rules of procedure is categorical. It
continuing body because less than majority is incumbent upon the Senate to publish the
of the Senators continue into the next rules for its legislative inquiries in each
Congress. The consequence is that the Rules Congress or otherwise make the published
of Procedure must be republished by the rules clearly state that the same shall be
Senate after every expiry of the term of effective in subsequent Congresses or until
twelve Senators. they are amended or repealed to sufficiently
put public on notice.
The subject was explained with greater
lucidity in our Resolution (On the Motion for If it was the intention of the Senate for its
Reconsideration) in the same case, viz.: present rules on legislative inquiries to be
effective even in the next Congress, it could
On the nature of the Senate as a "continuing have easily adopted the same language it had
body," this Court sees fit to issue a used in its main rules regarding effectivity.
Respondents justify their non-observance of medium for publishing laws, rules and
the constitutionally mandated publication by regulations.
arguing that the rules have never been
amended since 1995 and, despite that, they Given this discussion, the respondent Senate
are published in booklet form available to Committees, therefore, could not, in violation
anyone for free, and accessible to the public of the Constitution, use its unpublished rules
at the Senate's internet web page. in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries
The Court does not agree. The absence of in aid of legislation by the Senate has to be
any amendment to the rules cannot justify deferred until it shall have caused the
the Senate's defiance of the clear and publication of the rules, because it can do so
unambiguous language of Section 21, Article only "in accordance with its duly published
VI of the Constitution. The organic law rules of procedure."
instructs, without more, that the Senate or its
committees may conduct inquiries in aid of Very recently, the Senate caused the
legislation only in accordance with duly publication of the Senate Rules of Procedure
published rules of procedure and does not Governing Inquiries in Aid of Legislation in
make any distinction whether or not these the October 31, 2008 issues of Manila Bulletin
rules have undergone amendments or and Malaya. While we take Judicial Notice of
revision. The constitutional mandate to this fact, the recent publication does not cure
publish the said rules prevails over any the infirmity of the inquiry sought to be
custom, practice or tradition followed by the prohibited by the instant petitions. Insofar as
Senate. the consolidated cases are concerned, the
legislative investigation subject thereof still
Justice Carpio's response to the same could not be undertaken by the respondent
argument raised by the respondents is Senate Committees, because no published
illuminating: rules governed it, in clear contravention of
the Constitution.
The publication of the Rules of Procedure in
the website of the Senate, or in pamphlet WHEREFORE, the petition in G.R. No.
form available at the Senate, is not sufficient 170338 is DISMISSED, and the petition in
under the Tañada v. Tuvera ruling which G.R. No. 179275 is GRANTED. Let a writ of
requires publication either in the Official prohibition be issued enjoining the Senate of
Gazette or in a newspaper of general the Republic of the Philippines and/or any of
circulation. The Rules of Procedure even its committees from conducting any inquiry in
provide that the rules "shall take effect seven aid of legislation centered on the "Hello Garci"
(7) days after publication in two (2) tapes.
newspapers of general circulation,"
precluding any other form of publication. Petitioner NERI V. SENATE 3/25/08
Publication in accordance with Tañada is
mandatory to comply with the due process On April 21, 2007, the Department of
requirement because the Rules of Procedure Transportation and Communication (DOTC)
put a person's liberty at risk. A person who entered into a contract with Zhong Xing
violates the Rules of Procedure could be Telecommunications Equipment (ZTE) for the
arrested and detained by the Senate. supply of equipment and services for the
National Broadband Network (NBN) Project in
The invocation by the respondents of the the amount of U.S. $ 329,481,290
provisions of R.A. No. 8792, otherwise known (approximately P16 Billion Pesos). The
as the Electronic Commerce Act of 2000, to Project was to be financed by the People's
support their claim of valid publication Republic of China.
through the internet is all the more incorrect.
R.A. 8792 considers an electronic data Respondent Committees initiated the
message or an electronic document as the investigation by sending invitations to certain
functional equivalent of a written document personalities and cabinet officials involved in
only for evidentiary purposes. In other words, the NBN Project. Petitioner was among those
the law merely recognizes the admissibility in invited. He was summoned to appear and
Evidence (for their being the original) of testify on September 18, 20, and 26 and
electronic data messages and/or electronic October 25, 2007. However, he attended only
documents. It does not make the internet a the September 26 hearing, claiming he was
"out of town" during the other dates.
On September 26, 2007, petitioner testified imperative, both under Sections 21 and 22 of
before respondent Committees for eleven Article VI of the Constitution. This must be so
(11) hours. He disclosed that then to ensure that the rights of both persons
Commission on Elections (COMELEC) appearing in or affected by such inquiry are
Chairman Benjamin Abalos offered him P200 respected as mandated by said Section 21
Million in exchange for his approval of the and by virtue of the express language of
NBN Project. He further narrated that he Section 22. Unfortunately, despite
informed President Arroyo about the bribery petitioner's repeated demands, respondent
attempt and that she instructed him not to Committees did not send him an advance list
accept the bribe. However, when probed of questions.
further on what they discussed about the
NBN Project, petitioner refused to answer, we find merit in the argument of the OSG that
invoking "executive privilege". In particular, respondent Committees likewise violated
he refused to answer the questions on (a) Section 21 of Article VI of the Constitution,
whether or not President Arroyo followed up requiring that the inquiry be in accordance
the NBN Project, (b) whether or not she with the "duly published rules of procedure."
directed him to prioritize it, and (c) whether We quote the OSG's explanation:
or not she directed him to approve.
The phrase `duly published rules of
Issue and Ruling: procedure' requires the Senate of every
Congress to publish its rules of procedure
Whether Senate’s order of January 30, 2008, governing inquiries in aid of legislation
citing Neri in contempt and directing his because every Senate is distinct from the one
arrest is valid? before it or after it. Since Senatorial elections
are held every three (3) years for one-half of
Ans.>> No. The Senate Committees’ Order of the Senate's membership, the composition of
January 30, 2008 citing Neri in contempt and the Senate also changes by the end of each
ordering his arrest is void due to the non- term. Each Senate may thus enact a different
publication of the Rules of Procedure. The set of rules as it may deem fit. Not having
arrest of a citizen is a deprivation of liberty, published its Rules of Procedure, the subject
and the Senate or its investigating hearings in aid of legislation conducted by the
committees can exercise the implied power or 14th Senate, are therefore, procedurally
arrest only in accordance with due process, infirm.
which requires publication of the Senate’s
Rules on procedure. WHEREFORE, the petition is hereby
GRANTED. The subject Order dated January
Both correspondences include an expression 30, 2008, citing petitioner Romulo L. Neri in
of his willingness to testify again, provided he contempt of the Senate Committees and
"be furnished in advance" copies of the directing his arrest and detention, is hereby
questions. Without responding to his request nullified.
for advance list of questions, respondent
Committees issued the Order dated January Dissenting Opinio (Puno, C.J.)
30, 2008, citing him in contempt of
respondent Committees and ordering his Overview of Legislative Power of Inquiry
arrest and detention at the Office of the
Senate Sergeant-At- Arms until such time The Legislature's fundamental function is to
that he would appear and give his testimony. enact laws and oversee the implementation
of existing laws. The Legislature must
Respondent Committees committed Grave exercise this fundamental function consistent
abuse of discretion in issuing the contempt with the people's right to information on the
Order need for the enactment of laws and the
status of their implementation. The principal
respondent Committees did not comply with tool used by the Legislature in exercising this
the requirement laid down in Senate v. Ermita fundamental function is the power of inquiry
that the invitations should contain the which is inherent in every legislative body.
"possible needed statute which prompted the Without the power of inquiry, the Legislature
need for the inquiry," along with "the usual cannot discharge its fundamental function
indication of the subject of inquiry and the and thus becomes inutile.
questions relative to and in furtherance
thereof." Compliance with this requirement is
The Constitution expressly grants to the Star and Philippine Daily Inquirer during the
"Senate, the House of Representatives or any 13th Congress. There is also no dispute that
of its respective committees" the power to the Rules of Procedure have not been
"conduct inquiries in aid of legislation."[48] published in newspapers of general
This power of legislative inquiry is so circulation during the current 14th Congress.
searching and extensive in scope that the However, the Rules of Procedure have been
inquiry need not result in any potential published continuously in the website of the
legislation and may even end without any Senate since at least the 13th Congress. In
predictable legislation. The phrase "inquiries addition, the Senate makes the Rules of
in aid of legislation" refers to inquiries to aid Procedure available to the public in pamphlet
the enactment of laws, inquiries to aid in form.
overseeing the implementation of laws, and
even inquiries to expose corruption, Petitioner assails the validity of the Rules of
inefficiency or waste in executive Procedure because they have not been duly
departments. spublished for the 14th Congress.
Respondents counter that the Senate is a
Thus, the Legislature can conduct inquiries continuing legislative body. Respondents
not specifically to enact laws, but specifically argue that as a continuing body, the Senate
to oversee the implementation of laws. This does not have to republish the Rules of
is the mandate of various legislative oversight Procedure because publication of the Rules of
committees which admittedly can conduct Procedure in the 13th Congress dispenses
inquiries on the status of the implementation with republication of the Rules of Procedure
of laws. In the exercise of the legislative in subsequent Congresses. The issue then
oversight function, there is always the turns on whether the Senate under the 1987
potential, even if not expressed or predicted, Constitution is a continuing body.
that the oversight committees may discover
the need to improve the laws they oversee In Arnault v. Nazareno, decided under the
and thus recommend amendment of the 1935 Constitution, this Court ruled that "the
laws. This is sufficient reason for the valid Senate of the Philippines is a continuing body
exercise of the power of legislative inquiry. whose members are elected for a term of six
Indeed, the oversight function of the years and so divided that the seats of only
Legislature may at times be as important as one-third become vacant every two years,
its law-making function two-thirds always continuing into the next
Congress save as vacancies may occur thru
Aside from the purpose of the inquiry, the death or resignation." To act as a legislative
Constitution imposes two other limitations on body, the Senate must have a quorum, which
the power of legislative inquiry. One, the is a majority of its membership. Since the
rules of procedure for the inquiry must be Senate under the 1935 Constitution always
duly published. Publication of the rules of had two-thirds of its membership filled up
the inquiry is an essential requirement of except for vacancies arising from death or
due process. Two, the rights of persons resignation, the Senate always maintained a
appearing before the investigating quorum to act as a legislative body. Thus, the
committees, or affected by such inquiries, Senate under the 1935 Constitution
must be respected. These rights include the continued to act as a legislative body even
right against self-incrimination, as well as the after the expiry of the term of one-third of its
Right to privacy of communications and members. This is the rationale in holding that
correspondence of a private nature. The the Senate under the 1935 Constitution was
power of legislative inquiry does not reach a continuing legislative body.
into the private affairs of citizens.
The present Senate under the 1987
Whether the Senate's Rules of Procedure on Constitution is no longer a continuing
Inquiries Have Been Published legislative body. The present Senate has
twenty-four members, twelve of whom are
he Constitution requires that the Legislature elected every three years for a term of six
publish its rules of procedure on the conduct years each. Thus, the term of twelve
of legislative inquiries in aid of legislation. Senators expires every three years, leaving
There is no dispute that the last publication less than a majority of Senators to continue
of the Rules of Procedure of the Senate into the next Congress. The 1987
Governing the Inquiries in Aid of Legislation Constitution, like the 1935 Constitution,
was on 1 December 2006 in the Philippine requires a majority of Senators to "constitute
a quorum to do business. Applying the same Senate or its investigating committees can
reasoning in Arnault v. Nazareno, the Senate exercise the implied power to arrest only in
under the 1987 Constitution is not a accordance with due process which requires
continuing body because less than majority publication of the Senate's Rules of
of the Senators continue into the next Procedure. This Court has required judges to
Congress. The consequence is that the Rules comply strictly with the due process
of Procedure must be republished by the requirements in exercising their express
Senate after every expiry of the term of constitutional power to issue warrants of
twelve Senators. arrest.[88] This Court has voided warrants of
arrest issued by judges who failed to comply
The publication of the Rules of Procedure with due process. This Court can do no less
on the website of the Senate, or in pamphlet for arrest orders issued by the Senate or its
form available at the Senate, is not sufficient committees in violation of due process.
under the Tañada v. Tuvera ruling which
requires publication either in the Official Conclusion
Gazette or in a newspaper of general
circulation. The Rules of Procedure even The Senate's Rules of Procedure are void for
provide that the rules "shall take effect lack of publication.
seven (7) days after publication in two
(2) newspapers of general circulation, The Senate Committees' Order of 30 January
precluding any other form of publication. 2008 citing petitioner in contempt and
Publication in accordance with Tañada is directing his arrest is void for lack of
mandatory to comply with the due process published rules governing the conduct of
requirement because the Rules of Procedure inquiries in aid of legislation.
put a person's liberty at risk. A person who
violates the Rules of Procedure could be I CONCUR with the majority opinion's ruling
arrested and detained by the Senate. that the Rules of Procedure are void. Hence,
I vote to GRANT the petition in part by (i)
Due process requires that "fair notice" be declaring void the assailed Order of
given to citizens before rules that put their respondents dated 30 January 2008 citing
liberty at risk take effect. The failure of the petitioner Secretary Romulo L. Neri in
Senate to publish its Rules of Procedure as contempt and directing his arrest, and (ii)
required in Section 22, Article VI of the ordering respondents to desist from citing in
Constitution renders the Rules of Procedure contempt or arresting petitioner until the
void. Thus, the Senate cannot enforce its Senate's Rules of Procedure Governing
Rules of Procedure. Inquiries in Aid of Legislation are duly
published and have become effective.
Whether the Senate Committees Validly
Ordered the Arrest of Petitioner NERI V. SENATE 9/4/08

The Senate and its investigating committees Note: Executive privilege is not a personal
have the implied power to cite in contempt privilege, but one that adheres to the Office
and order the arrest of a witness who refuses of the President. It exists to protect public
to appear despite the issuance of a interest, not to benefit a particular public
subpoena. The Senate can enforce the power official. Its purpose, among others, is to
of arrest through its own Sergeant-at-Arms. assure that the nation will receive the benefit
In the present case, based on the Minutes of of candid, objective and untrammeled
Meetings and other documents submitted by communication and exchange of information
respondents, the majority of the regular between the President and his/her advisers in
members of each of the respondent the process of shaping or forming policies
Committees voted to cite petitioner in and arriving at decisions in the exercise of the
contempt and order his arrest. However, the functions of the Presidency under the
Senate's Order of 30 January 2008 citing Constitution. The confidentiality of the
petitioner in contempt and ordering his arrest President's conversations and
is void due to the non-publication of the Rules correspondence is not unique. It is akin to the
of Procedure. confidentiality of judicial deliberations. It
possesses the same value as the Right to
The arrest of a citizen is a deprivation of privacy of all citizens and more, because it is
liberty. The Constitution prohibits deprivation dictated by public interest and the
of liberty without due process of law. The
constitutionally ordained separation of Ans.>> The language of Section 21, Article
governmental powers. VI of the Constitution requiring that the
inquiry be conducted in accordance with
Assailed in this Motion for reconsideration is the duly published rules of procedure is
our Decision dated March 25, 2008 (the categorical. It is incumbent upon the Senate
"Decision"), granting the petition to publish the rules for its legislative inquiries
for Certiorari filed by petitioner Romulo L. in each Congress or otherwise make the
Neri against the respondent Senate published rules clearly state that the same
Committees on Accountability of Public shall be effective in subsequent Congresses
Officers and Investigations, Trade and or until they are amended or repealed to
Commerce, and National Defense and sufficiently put public on notice.
Security (collectively the "respondent
Committees"). If it was the intention of the Senate for its
present rules on legislative inquiries to be
Facts: On September 26, 2007, petitioner effective even in the next Congress, it could
appeared before respondent Committees and have easily adopted the same language it had
testified for about eleven (11) hours on used in its main rules regarding effectivity.
matters concerning the National Broadband
Project (the "NBN Project"), a project Lest the Court be misconstrued, it should
awarded by the Department of likewise be stressed that not all orders issued
Transportation and Communications or proceedings conducted pursuant to the
("DOTC") to Zhong Xing Telecommunications subject Rules are null and void. Only those
Equipment ("ZTE"). Petitioner disclosed that that result in violation of the rights
then Commission on Elections ("COMELEC") of Witnesses should be considered null and
Chairman Benjamin Abalos offered him P200 void, considering that the rationale for the
Million in exchange for his approval of the publication is to protect the rights
NBN Project. He further narrated that he of Witnesses as expressed in Section 21,
informed President Gloria Macapagal Arroyo Article VI of the Constitution. Sans such
("President Arroyo") of the bribery attempt violation, orders and proceedings are
and that she instructed him not to accept the considered valid and effective.
bribe. However, when probed further on
President Arroyo and petitioner's discussions WHEREFORE, respondent
relating to the NBN Project, petitioner refused Committees' Motion for Reconsideration
to answer, invoking "executive privilege." To dated April 8, 2008 is hereby DENIED.
be specific, petitioner refused to answer
questions on: (a) whether or not President Dissenting (Puno, C.J.)
Arroyo followed up the NBN Project, (b)
whether or not she directed him to prioritize he Motion for Reconsideration presents a
it, and (c) whether or not she directed him to long list of issues, but I shall focus on the
approve it. issue of violation of the requirement
under Article VI, Section 21 of the 1987
Respondent Committees persisted in knowing Constitution that the rules of procedure
petitioner's answers to these three questions governing inquiries in aid of legislation
by requiring him to appear and testify once be "duly published." As to the
more on November 20, 2007. On November remaining issues, I reiterate my
15, 2007, Executive Secretary Eduardo R. position in my Dissenting Opinion to the
Ermita wrote to respondent Committees and March 25, 2008, Decision.
requested them to dispense with petitioner's
testimony on the ground of executive The textual hook for resolving the
privilege. publication issue is Article VI, Section 21 of
the 1987 Constitution, which provides, viz:
Issues and Ruling:
The Senate or the House of Representatives
Whether Respondent Committees Committed or any of its respective committees may
Grave Abuse of Discretion in Issuing the conduct inquiries in aid of legislation in
Contempt Order and did not violate the accordance with duly published rules of
requirement under Article VI, Section 21 of procedure. The rights of persons appearing
the Constitution requiring the publication of in or affected by such inquiries shall be
their Rules? respected. (emphasis supplied)
Publication as a due process which shall begin fifteen days after
requirement publication unless a different effectivity date
is fixed by the legislature... Administrative
As the 1987 Constitution does not rules and regulations must also be published
provide the manner of "duly" publishing if their purpose is to enforce or implement
the rules of procedure under the afore- existing law pursuant to a valid
quoted Article VI, Section 21, the Records of delegation."[5]
the 1986 Constitutional Commission is a good
place to start in interpreting this provision. While the Court acknowledged that
The Records, however, are also bereft of newspapers of general circulation, instead of
deliberations to shed light on the publication the Official Gazette, could better perform the
requirement. Nonetheless, I submit that the function of communicating laws to the public
landmark case Tañada v. Tuvera is a -- as such periodicals are more easily
lighthouse that can guide us in navigating available, have a wider readership, and come
through the publication question. out regularly -- it was constrained to hold that
publication must be made in the Official
In Tañada, the petitioners invoked their Gazette because that was the requirement in
right to information on matters of public Article 2 of the Civil Code.
concern under Article IV, Section 6 of the
1973 Constitution,[4] and the principle that Subsequently, President Corazon C. Aquino
laws to be valid and enforceable must be issued Executive Order No. 200, allowing
published in the Official Gazette or otherwise publication either in the Official Gazette or in
effectively promulgated. They sought to a newspaper of general circulation in
compel the respondent public officials to the Philippines.[6]
publish or cause to be published in the Official
Gazette various presidential decrees, letters In the case at bar, the Senate of the Tenth
of instruction, general orders, proclamations, Congress adopted the subject "Rules of
executive orders, letters of implementation Procedure Governing Inquiries in Aid of
and administrative orders. Legislation" ("Rules of Procedure Governing
Inquiries") on August 21, 1995 pursuant to
In ruling in favor of petitioners, the Court Article VI, Section 21 of the 1987
interpreted Article 2 of the Civil Code of the Constitution.[7] Section 24 of the Rules
Philippines, which states that "(l)aws shall provides that the Rules "shall take effect
take effect after fifteen days following seven (7) days after publication in two (2)
completion of their publication in the Official newspapers of general circulation." The
Gazette, unless it is otherwise provided x x Senate thus caused it to be published in
x." It held that the phrase "unless it is two newspapers of general
otherwise provided" refers not to the circulation, The Philippine
requirement of publication in the Official Star and Malaya, on August 24,
Gazette, which is indispensable for the law or 1995. The published Rules of Procedure
regulation to take effect, but to the period of Governing Inquiries indicated that it was
time from publication after which the law adopted in the Tenth Congress on August 21,
shall take effect. The Court allowed the 1995.
fifteen-day period to be extended or
shortened, but not to the extent of altogether The Senate of the Thirteenth
omitting publication. Congress caused the re-publication of
the Rules of Procedure Governing Inquiries
The Court reasoned that an omission of on December 1, 2006 in two newspapers of
publication would offend due general circulation, The Philippine
process insofar as it would deny the Star and Philippine Daily Inquirer. The
public knowledge of the laws that are published rules appeared in the same manner
supposed to govern it. It noted that it is it did in the August 24, 1995 publication, i.e.,
not unlikely that persons not aware of the under the heading "Tenth Congress" and with
laws would be prejudiced as a result, and not August 21, 1995 as the date of Adoption.[8]
because of a failure to comply with them, but The publications also stated that the Rules of
simply because they did not know of their Procedure Governing Inquiries had been
existence. Thus, the Court concluded that previously published in the August 24, 1995
"...all statutes, including those of local issues of The Philippine Star and Malaya, and
application and private laws, shall be that "(n)o amendments have been made
published as a condition for their effectivity, in the Rules since its Adoption."
Evidently, the Senate of the Thirteenth always continuing into the next Congress
Congress did not adopt anew the Rules of save as vacancies may occur thru death or
Procedure Governing Inquiries, as the resignation.' To act as a legislative body, the
publications in December 2006 indicated Senate must have a quorum, which is a
that it was the Rules of Procedure majority of its membership. [Section 10(2),
adopted in the Tenth Congress on Article VI, 1935 Constitution; Section 16(2),
August 21, 1995, and published on Article VI, 1987 Constitution. Both the 1935
August 24, 1995. There was no and 1987 Constitutions provide that `(A)
amendment made on it since majority of each House shall constitute a
its Adoption on August 21, 1995; thus, re- quorum to do business.'] Since the Senate
publication was apparently done under the 1935 Constitution always had two-
merely for purposes of public thirds of its membership filled up except for
information and not to give effect to a vacancies arising from death or resignation,
new or amended Rules of Procedure the Senate always maintained a quorum to
Governing Inquiries. As respondent act as a legislative body. Thus, the Senate
Senate Committees correctly contend, under the 1935 Constitution continued to act
"not having been amended, modified or as a legislative body even after the expiry of
repealed since 1995, the Rules of Procedure the term of one-third of its members. This is
Governing Inquiries in Aid of Legislation the rationale in holding that the Senate under
remain in full force and effect."[9] the 1935 Constitution was a continuing
legislative body. [See also Attorney General
I submit that the publication of the Ex. Rel. Werts v. Rogers, et al., 56 N.J.L. 480,
Rules of Procedure Governing Inquiries 652 (1844)]. The Supreme Court of New
on August 24, 1995, has satisfied the Jersey declared: `(T)he vitality of the body
due process requirement to inform the depends upon the existence of a quorum
public of a rule that would govern them capable of doing business. That quorum
and affect their rights. constitutes a senate. Its action is the
expression of the will of the senate, and no
The Resolution of the majority, however, authority can be found which states any other
ruled that the respondent Senate Committees conclusion. All difficulty and confusion in
failed to meet the publication requirement constitutional construction is avoided by
under Article VI, Section 21 of the 1987 applying the rule x x x that the continuity of
Constitution, as it is not sufficient that the the body depends upon the fact that in the
Rules of Procedure Governing Inquiries be senate a majority constitutes a quorum, and,
published once; instead, it should be as there is always more than a quorum of
published by the Senate of every Congress. qualified senators holding seats in that body,
its organic existence is necessarily
Should the Rules of Procedure continuous. x x x The senate of the United
Governing Inquiries States remains a continuous body because
be published by the Senate of every two-thirds of its members are always, in
Congress? contemplation of the constitution, in
existence.']
In disputing the majority Resolution's
conclusion and supporting my position that "The present Senate under the 1987
one-time publication suffices, let me first lay Constitution is no longer a continuing
down the premise of the Resolution and the legislative body. The present Senate has
Comments of the petitioner and the Office of twenty-four members, twelve of whom are
the Solicitor General (OSG). They all cite the elected every three years for a term of six
disquisition on this matter by Justice Antonio years each. Thus, the term of twelve
T. Carpio in his Dissenting and Concurring Senators expires every three years, leaving
Opinion to the March 25, 2008, Decision in less than a majority of Senators to continue
this case, viz: into the next Congress. The 1987
Constitution, like the 1935 Constitution,
"In Arnault v. Nazareno, [footnote omitted] requires a majority of Senators to `constitute
decided under the 1935 Constitution, this a quorum to do business.' [Section 16(2),
Court ruled that `the Senate of the Article VI, Constitution] Applying the same
Philippines is a continuing body whose reasoning in Arnault v. Nazareno, the Senate
members are elected for a term of six years under the 1987 Constitution is not a
and so divided that the seats of only one-third continuing body because less than majority
become vacant every two years, two-thirds of the Senators continue into the next
Congress. The consequence is that the Rules “Congressional insertions” refer to any
of Procedure must be republished by the amendments made by a member or
Senate after every expiry of the term of committee of either chamber of Congress
twelve Senators."[10] (emphasis supplied) during budget deliberations on the General
Appropriations Bill (GAB).
On the other hand, respondent Senate
Committees point out that there is nothing in Issues and Rulings:
the wording of Article VI, Section 21 of the
1987 Constitution that requires the Senate of Whether publication of the Rules of the
every Congress to publish the Rules of Senate Committee of the Whole is required
Procedure Governing Inquiries. More than for their effectivity?
the absence of a textual basis for the
requirement, respondent Senate Committees Ans.>> Petitioners assail the non-publication
contend that the Senate is a continuing body of the Rules of the Senate Committee of the
since the terms of its members expire at Whole. Respondent counters that publication
different times, and as such, it is not required is not necessary because the Senate
to formally adopt and publish its Rules of Committee of the Whole merely adopted the
Procedure Governing Inquiries for every Rules of the Ethics Committee which had
Congress, unless it is repealed or been published in the Official Gazette on 23
amended.[11] March 2009. Respondent alleges that there is
only one set of Rules that governs both the
It is my considered view that there is merit in Ethics Committee and the Senate Committee
the contention of respondent Senate of the Whole.
Committees that the Rules of Procedure
Governing Inquiries need not be published by In Neri v. Senate Committee on
the Senate of every Congress, as the Senate Accountability of Public Officers and
is a continuing body. The continuity of Investigations,[24] the Court declared void
these rules from one Congress to the next is unpublished rules of procedure in Senate
both an incident and an indicium of the inquiries insofar as such rules affect the rights
continuing nature of the Senate. of Witnesses. The Court cited Section 21,
Article VI of the Constitution which
PIMENTEL VS. SENATE COMMITTE, mandates:
3/8/11.
Sec. 21. The Senate or the House of
Facts: On 15 September 2008, Senator Representatives or any of its respective
Panfilo Lacson (Senator Lacson) delivered a Committees may conduct inquiries in aid of
privilege speech entitled "Kaban ng Bayan, legislation in accordance with its duly
Bantayan!"[2] In his privilege speech, Senator published rules of procedure. The rights
Lacson called attention to the congressional of persons appearing in or affected by such
insertion in the 2008 General Appropriations inquiries shall be respected. (Emphasis
Act, particularly the P200 million appropriated supplied)
for the construction of the President Carlos P.
Garcia Avenue Extension from Sucat Luzon The Court explained in the Resolution
Expressway to Sucat Road in Parañaque City denying the Motion for reconsideration:
including Right-of-Way (ROW), and another
P200 million appropriated for the extension of The language of Section 21, Article VI of the
C-5 road including ROW. Senator Lacson Constitution requiring that the inquiry be
stated that C-5 is what was formerly called conducted in accordance with the duly
President Carlos P. Garcia Avenue and that published rules of procedure is
the second appropriation covers the same categorical. It is incumbent upon the Senate
stretch - from Sucat Luzon Expressway to to publish the rules of its legislative inquiries
Sucat Road in Parañaque City. Senator in each Congress or otherwise make the
Lacson inquired from DBM Secretary Rolando published rules clearly state that the same
Andaya, Jr. about the double entry and was shall be effective in the subsequent
informed that it was on account of a Congresses or until they are amended or
congressional insertion. Senator Lacson repealed to sufficiently put public on notice.
further stated that when he followed the
narrow trail leading to the double entry, it led If it was the intention of the Senate for its
to Senator Villar, then the Senate President. present rules on legislative inquiries to be
effective even in the next Congress, it could
have easily adopted the same language it had Sec. 81. EFFECTIVITY. These Rules shall be
used in its main rules regarding effectivity. effective after publication in the Official
Gazette or in a newspaper of general
Lest the Court be misconstrued, it should circulation.
likewise be stressed that not all orders issued,
or proceedings conducted pursuant to the Hence, in this particular case, the Rules of the
subject Rules are null and void. Only those Senate Committee of the Whole itself provide
that result in violation of the rights that the Rules must be published before the
of Witnesses should be considered null Rules can take effect. Thus, even if
and void, considering that the rationale publication is not required under the
for the publication is to protect the Constitution, publication of the Rules of the
rights of the Witnesses as expressed in Senate Committee of the Whole is required
Section 21, Article VI of the because the Rules expressly mandate their
Constitution. Sans such violation, orders publication. The majority of the members of
and proceedings are considered valid and the Senate approved the Rules of the Senate
effective.[26] (Emphasis supplied) Committee of the Whole, and the publication
requirement which they adopted should be
In the recent case of Gutierrez v. The House considered as the will of the majority.
of Representatives Committee on Justice, et Respondent cannot dispense with the
al., the Court further clarified: publication requirement just because the
Rules of the Ethics Committee had already
x x x inquiries in aid of legislation under been published in the Official Gazette. To
Section 21, Article VI of the Constitution is reiterate, the Rules of the Senate Committee
the sole instance in the Constitution where of the Whole expressly require publication
there is a categorical directive to before the Rules can take effect. To comply
duly publish a set of rules of procedure. with due process requirements, the Senate
Significantly notable in Neri is that with must follow its own internal rules if the rights
respect to the issue of publication, the Court of its own members are affected.
anchored its ruling on
the 1987 Constitution's directive, without WHEREFORE, we GRANT the petition in
any reliance on or reference to part. The referral of the Complaint by the
the 1986 case of Tañada v. Committee on Ethics and Privileges to the
Tuvera. Tañadanaturally could neither have Senate Committee of the Whole shall take
interpreted a forthcoming 1987 Constitution effect only upon publication of the Rules of
nor had kept a tight rein on the Constitution's the Senate Committee of the Whole.
intentions as expressed through the
allowance of either a categorical term or a VILLANUEVA V. JBC, 4/7/15
general sense of making known the
issuances. The petitioner was appointed on September
18, 2012 as the Presiding Judge of the
The Constitution does not require publication Municipal Circuit Trial Court, Compostela-
of the internal rules of the House or Senate. New Bataan, Poblacion, Compostela Valley
Since rules of the House or the Senate that Province, Region XI, which is a first-level
affect only their members are internal to the court. On September 27, 2013, he applied for
House or Senate, such rules need not be the vacant position of Presiding Judge in the
published, unless such rules expressly following Regional Trial Courts (RTCs):
provide for their publication before the Branch 31, Tagum City; Branch 13, Davao
rules can take effect. City; and Branch 6, Prosperidad, Agusan Del
Sur.
In this case, the proceedings before the
Senate Committee of the Whole affect only In a letter[2] dated December 18, 2013, JBC's
members of the Senate since the proceedings Office of Recruitment, Selection and
involve the Senate's exercise of its Nomination, informed the petitioner that he
disciplinary power over one of its members. was not included in the list of candidates for
Clearly, the Rules of the Senate Committee of the said stations. On the same date, the
the Whole are internal to the Senate. petitioner sent a letter, through electronic
However, Section 81, Rule 15 of the Rules of mail, seeking reconsideration of his non-
the Senate Committee of the Whole provides: inclusion in the list of considered applicants
and protesting the inclusion of applicants who
did not pass the prejudicature examination.
The petitioner was informed by the JBC by administrative superiors concerning the
Executive Officer, through a letter[3] dated rules or guidelines to be followed by their
February 3, 2014, that his protest and subordinates in the performance of their
reconsideration was duly noted by the JBC en duties.
banc. However, its decision not to include his
name in the list of applicants was upheld due Here, the assailed JBC policy does not fall
to the JBC's long-standing policy of opening within the administrative rules and
the chance for promotion to second-level regulations exempted from the publication
courts to, among others, incumbent judges requirement. The assailed policy involves a
who have served in their current position for qualification standard by which the JBC shall
at least five years, and since the petitioner determine proven competence of an
has been a judge only for more than a year, applicant. It is not an internal regulation,
he was excluded from the list. This caused because if it were, it would regulate and
the petitioner to take recourse to this Court. affect only the members of the JBC and their
staff. Notably, the selection process involves
Issues and Rulings: a call to lawyers who meet the qualifications
in the Constitution and are willing to serve in
Whether the JBC’s policy should have been the Judiciary to apply to these vacant
published? positions. Thus, it is but a natural
consequence thereof that potential applicants
Ans.>> The petitioner averred that the be informed of the requirements to the
assailed policy violates procedural due judicial positions, so that they would be able
process for lack of publication and non- to prepare for and comply with them.
submission to the University of the Philippines
Law Center Office of the National The Court also noted the fact that in JBC-009,
Administrative Register (ONAR). The otherwise known as the Rules of the Judicial
petitioner said that the assailed policy will and Bar Council, the JBC had put its criteria
affect all applying judges, thus, the said in writing and listed the guidelines in
policy should have been published. determining competence, independence,
integrity and probity. Section 1, Paragraph 1
Contrary to the petitioner's contention, the of Rule 9 expressly provides that applicants
assailed JBC policy need not be filed in the for the Court of Appeals and the
ONAR because the publication requirement in Sandiganbayan, should, as a general rule,
the ONAR is confined to issuances of have at least five years of experience as an
administrative agencies under the Executive RTC judge, thus:
branch of the government.[27] Since the JBC
is a body under the supervision of the RULE 9 - SPECIAL GUIDELINES FOR
Supreme Court,[28] it is not covered by the NOMINATION TO A VACANCY IN THE COURT
publication requirements of the OF APPEALS AND SANDIGANBAYAN
Administrative Code.
Section 1. Additional criteria for nomination
Nevertheless, the assailed JBC policy to the Court of Appeals and the
requiring five years of service as judges of Sandiganbayan. - In addition to the foregoing
first-level courts before they can qualify as guidelines the Council should consider the
applicants to second-level courts should have following in evaluating the merits of
been published. applicants for a vacancy in the Court of
Appeals and Sandiganbayan:
As a general rule, publication is indispensable
in order that all statutes, including 1. As a general rule, he must have at
administrative rules that are intended to least five years of experience as a judge
enforce or implement existing laws, attain of Regional Trial Court, except when he
binding force and effect. has in his favor outstanding credentials, as
evidenced by, inter alia, impressive scholastic
There are, however, several exceptions to the or educational record and performance in the
requirement of publication, such as Bar examinations, excellent reputation for
interpretative regulations and those merely honesty, integrity, probity and independence
internal in nature, which regulate only the of mind; at least very satisfactory
personnel of the administrative agency and performance rating for three (3) years
not the public. Neither is publication required preceding the filing of his application for
of the so-called letters of instructions issued
nomination; and excellent potentials for WHEREFORE, premises considered, the
appellate judgeship. petition is DISMISSED. The Court,
however, DIRECTS that the Judicial and Bar
The express declaration of these guidelines in Council comply with the publication
JBC-009, which have been duly published on requirement of (1) the assailed policy
the website of the JBC and in a newspaper of requiring five years of experience as judges
general circulation suggests that the JBC is of first-level courts before they can qualify as
aware that these are not mere internal rules, applicant to the Regional Trial Court, and (2)
but are rules implementing the Constitution other special guidelines that the Judicial and
that should be published. Thus, if the JBC Bar Council is or will be implementing.
were so-minded to add special guidelines for
determining competence of applicants for
RTC judges, then it could and should have GOTESCO V. SOLIDBANK, 7/26/17
amended its rules and published the same.
This, the JBC did not do as JBC-009 and its Facts: In 1995, Gotesco obtained from
amendatory rule do not have special Solidbank a term loan of P300 million through
guidelines for applicants to the RTC. its President, Mr. Jose Go (Mr. Go). This loan
was covered by three (3) promissory notes.
Moreover, jurisprudence has held that rules To secure the loan, Gotesco was required to
implementing a statute should be published. execute a Mortgage Trust Indenture
Thus, by analogy, publication is also required (Indenture) naming Solidbank-Trust Division
for the five-year requirement because it as Trustee.
seeks to implement a constitutional provision
requiring proven competence from members The Indenture dated August 9, 1995, obliged
of the judiciary. Gotesco to mortgage several parcels of land
in favor of Solidbank. One (1) of the lots
Nonetheless, the JBC's failure to publish the mortgaged and used as a collateral was a
assailed policy has not prejudiced the property located in San Fernando,
petitioner's private interest. At the risk of Pampanga, which was covered by Transfer
being repetitive, the petitioner has no legal Certificate of Title (TCT) No. 387371-R. A
right to be included in the list of nominees for stipulation in the Indenture also irrevocably
judicial vacancies since the possession of the appointed Solidbank-Trust Division as
constitutional and statutory qualifications for Gotesco's attorney-in-fact. Under the
appointment to the Judiciary may not be used Indenture, Gotesco also agreed to "at all
to legally demand that one's name be times maintain the Sound Value of the
included in the list of candidates for a judicial Collateral."
vacancy. One's inclusion in the shortlist is
strictly within the discretion of the JBC. When the loan was about to mature, Gotesco
found it difficult to meet its obligation
From the foregoing, it is apparent that the because of the 1997 Asian Financial
petitioner has not established a clear legal Crisis. On January 24, 2000, Gotesco sent a
right to justify the issuance of a letter to Solidbank proposing to restructure
preliminary Injunction. The petitioner has the loan obligation. The loan restructuring
merely filed an application with the JBC for agreement proposed to extend the payment
the position of RTC judge, and he has no period to seven (7) years. The suggested
clear legal right to be nominated for that period included a two (2)-year grace period.
office nor to be selected and included in the
list to be submitted to the President which is Solidbank sent a demand letter dated June 7,
subject to the discretion of the JBC. The JBC 2000 to Gotesco as the loan became
has the power to determine who shall be due. Despite having received this demand
recommended to the judicial post. To be letter, Gotesco failed to pay the outstanding
included in the list of applicants is a privilege obligation.
as one can only be chosen under existing
criteria imposed by the JBC itself. As such, Solidbank then filed a Petition for the
prospective applicants, including the Extrajudicial Foreclosure of the lot covered by
petitioner, cannot claim any demandable TCT No. 387371-R through Atty. Wilfrido
right to take part in it if they fail to meet these Mangiliman (Atty. Mangiliman), a notary
criteria. Hence, in the absence of a clear legal public.
right, the issuance of an injunctive writ is not
justified.
The public auction was held on August 31, be in general circulation in the place where
2000 and Solidbank was declared the the properties to be foreclosed are located in
winning bidder. order that publication may serve the purpose
for which it was intended.
Issues and Rulings:
If notices are only published in newspapers
Whether the foreclosure proceeding under printed in the city where the property is
sec. 3 of Act. No. 3135 is valid? located, even newspapers that are circulated
nationwide will be disqualified from
Ans.>> Section 3 of Act No. 3135 provides: announcing auction sales outside their city of
Section 3. Notice shall be given by posting publication. This runs contrary to the spirit of
notices of the sale for not less than twenty the law which is to attain wide enough
days in at least three public places of publicity so all parties interested in acquiring
the municipality or city where the property is the property can be informed of the
situated, and if such property is worth upcoming sale. This Court ruled:
more than four hundred pesos, such
notice shall also be published once a We take Judicial Notice of the fact that
week for at least three consecutive newspaper publications have more far-
weeks in a newspaper of general reaching effects than posting on bulletin
circulation in the municipality or city. boards in public places. There is a greater
probability that an announcement or notice
Section 3 of Act No. 3135 requires that the published in a newspaper of general
Notice of Sale be: circulation, which is distributed nationwide,
shall have a readership of more people than
a) physically posted in three (3) public that posted in a public bulletin board, no
places and matter how strategic its location may be,
which caters only to a limited few. Hence, the
b) be published once a week for at least publication of the notice of sale in the
three (3) consecutive weeks in a newspaper of general circulation alone is
newspaper of general circulation in the more than sufficient compliance with the
city where the property is situated. notice-posting requirement of the law. By
such publication, a reasonably wide publicity
Petitioner claims that since the foreclosed had been effected such that those interested
property was located in Pampanga, the might attend the public sale, and the purpose
publication of the Notice of Sale of the law had been thereby subserved.
in Remate was not valid. Petitioner suggests
that the Notice of Sale could only be The crucial factor is not where the newspaper
published in a newspaper printed in the city is printed but whether the newspaper is being
where the property was located. It posits that circulated in the city where the property is
because Remate was printed and published located. Markedly, what the law requires is
in Manila, not in San Fernando, Pampanga, the publication of the Notice of Sale in a
the publication was defective. "newspaper of general circulation," which is
defined as:
Petitioner is mistaken.
To be a newspaper of general
Fortune Motors (Phils.), Inc. v. Metropolitan circulation, it is enough that "it is
Bank and Trust Co.127 already considered published for the dissemination of local
this argument and ruled that this news and general information; that it
interpretation is too restricting: has a bona fide subscription list of
paying subscribers; that it is published
Were the interpretation of the trial at regular intervals" . . . The newspaper
court (sic) to be followed, even the leading need not have the largest circulation so
dailies in the country like the 'Manila Bulletin,' long as it is of general circulation.
the 'Philippine Daily Inquirer,' or 'The
Philippine Star' which all enjoy a wide Verily, there is clear emphasis on the
circulation throughout the country, cannot audience reached by the paper; the place of
publish legal notices that would be honored printing is not even considered.
outside the place of their publication. But this
is not the interpretation given by the courts. The Court of Appeals pointed out
For what is important is that a paper should that Remate is an accredited publication by
the Regional Trial Court of Pampanga. As MUN. V. FAUSTINO, 8/20/19
argued by respondent:
Facts: Petitioner Municipality of Tupi,
It merits Judicial Notice that the newspaper represented by its Municipal Mayor Reynaldo S.
where the Notice of Sale was published is Tamayo, Jr.,noted a high rate of accidents along
chosen by raffle among newspaper the national highway starting from Crossing
publications accredited by the Regional Trial Barangay Polonuling all the way up to Crossing
Court with territorial Jurisdiction over the real Barangay Cebuano. To address the problem, the
property to be foreclosed. It can be safely Sangguniang Bayan of the Municipality of Tupi,
presumed that the RTC in this regard- Province of South Cotabato, on March 3, 2014,
imposed standards and criteria for these enacted Ordinance No. 688, Series of 2014,
newspapers to qualify for the raffle, among known as the "Speed Limit Ordinance." 1 It
the criteria being that they [are] newspapers prescribes speed limits for all types of vehicles
of general circulation in the locality. More so traversing this stretch of the national highway.
in this instance, when it merits Judicial Notice
that the Remate, is one of the most widely MAXIMUM SPEED
circulated tabloids in the country. Crossing Polonuling to Crossing Acmonan: 80 kph

As to the alleged defect with the posting Crossing Acmonan to Crossing Cebuano: 40 kph
requirement, petitioner argues that the
Notice of Sale was posted less than the On October 6, 2014, respondent Atty. Herminio
required 20 days. Respondent points out that B. Faustino was flagged down by local traffic
this issue was alleged for the first time before enforcers for over speeding. He was running at
this Court and should not be considered. seventy kilometers per hour (70 kph) along the
expanse of the highway bordering Crossing
This Court rules for respondent. Acmonan to Crossing Cebuano which had a
maximum speed set of 40 kph per the Ordinance.
In any case, the alleged defect in the posting He was fined Php1,000.00 which he paid under
is superficial. The Notice of Sale was posted protest.
on August 15, 2000, while the auction sale
took place on August 31, 2000. The Notice of Issues and Rulings:
Sale was posted for 16 days, only four (4)
days less than what the law requires. Whether Ordinance 688 complied with the
publication requirement?
The object of a Notice of Sale in an
extrajudicial foreclosure proceeding is to Ans.>> No, the ordinance did not comply with
inform the public of the nature and condition the publication requirement.
of the property to be sold and the time, place,
and terms of the auction sale. Mistakes or The publication requirement is found in Section
omissions that do not impede this objective 59 of the Local Government Code of 1991,
will not invalidate the Notice of Sale. viz.:

In Olizon v. Court of Appeals explained: The Section 59. Effectivity of Ordinances or

object of a notice of sale is to inform the Resolutions. —
public of the nature and condition of the
property to be sold, and of the time, place (b) The secretary to the sanggunian concerned
and terms of the sale. Notices are given for shall cause the posting of an ordinance or
the purpose of securing bidders and to resolution in the bulletin board at the entrance of
prevent a sacrifice of the property. If these the provincial capitol and the city, municipal,or
objects are attained, immaterial errors and barangay hall in at least two (2) conspicuous
mistakes will not affect the sufficiency of the places in the local government unit concerned not
notice; but if mistakes or omissions occur in later than five (5) days after approval thereof.
the notices of sale, which are calculated to
deter or mislead bidders, to depreciate the The text of the ordinance or resolution shall be
value of the property, or to prevent it from disseminated and posted in Filipino or English and
bringing a fair price, such mistakes or in the language understood by the majority of the
omissions will be fatal to the validity of the people in the local government unit concerned,
notice, and also to the sale made pursuant and the secretary to the sanggunian shall record
thereto. (Citation omitted). such fact in a book kept for the purpose, stating
the dates of approval and posting.
 For another, petitioner has not refuted explicitly,
(c) The gist of all ordinances with penal sanctions nay, impliedly that the Ordinance has never been
shall be published in a newspaper of general published in any newspaper of either general or
circulation within the province where the local local circulation.
legislative body concerned belongs. In the
absence of any newspaper of general circulation In Coca-Cola Bottlers Philippines, Inc. v. City of
within the province, posting of such ordinances Manila, et al.,36 the Court invalidated the tax
shall be made in all municipalities and cities of the ordinance increasing the tax rates applicable to
province where the sanggunian of origin is certain establishments operating within the
situated. territorial Jurisdiction of the City of Manila for
lack of proper publication. The Court explained
Section 511. Posting and Publication of that the essence of publication is to inform the
Ordinances with Penal Sanctions.— people and the entities which may likely be
affected of the existence of the tax measure. The
(a)Ordinances with penal sanctions shall be Court emphasized that strict observance of said
posted at prominent places in the provincial procedural requirement is the only safeguard
capitol, city, municipal or barangay hall,as the against any unjust and unreasonable exercise of
case may be, for a minimum period of three (3) the local government unit's power by ensuring
consecutive weeks.Such ordinances shall also be that the people affected are notified through
published in a newspaper of general circulation, publication of the existence of the measure, and
where available, within the are therefore able to voice out their views or
territorial Jurisdiction of the local government objections to said measure.
unit concerned,except in the case of barangay
ordinances. Unless otherwise provided therein, Here, considering that the Ordinance was not at
said ordinances shall take effect on the day all published in any newspaper of either general
following its publication, or at the end of the or local circulation, the owners and drivers of all
period of posting, whichever occurs later. vehicles traversing along the areas covered by
the Ordinance were not properly informed of the
(c) The secretary to the sanggunian concerned prescribed speed limits thereunder.
shall transmit official copies of such ordinances to
the chief executive officer of the Office Gazette Since Ordinance No. 688 did not comply with the
within seven (7) days following the approval of publication requirement under the Local
the said ordinance for publication purposes. The Government Code of 1991, it did not become
Official Gazette may publish ordinances with effective, much less, enforceable.
penal sanctions for archival and reference
purposes. (Emphasis supplied) WHEREFORE, the order for petitioner
Municipality of Tupi to refund all fines collected
The fact that Ordinance No. 688 did not comply from motorists other than respondent Herminio
with the publication requirement is beyond B. Faustino is DELETED.
dispute.
DENR V. ABAD, 1/19/21
For one, the Ordinance itself bears a singular
requirement for its effectivity, i.e.,posting in three The DENR Employees Union (DENREU) and
(3) conspicuous places, thus: Kalipunan ng mga Kawani sa Kagawaran ng
Kalikasan (K4) filed a petition challenging the
SECTION IX. EFFECTIVITY. — This Ordinance
constitutionality of Budget Circular No. 2011-
shall take effect immediately after fifteen
(15) days posting in three (3) conspicuous 5 issued by the Department of Budget and
places. Management (DBM), which placed a P25,000
ceiling on the Collective Negotiation
While the Local Government Code of 1991 does Agreement (CNA) Incentive for 2011. The
not require publication in all instances especially Commission on Audit (COA) disallowed the
when there is no newspaper of general circulation excess CNA Incentives granted by the DENR
within the province, there is no Evidence here based on the circular. The Supreme Court
indicating at all that such newspaper of general partially granted the petition, nullifying the
circulation is indeed unavailable within the entire
COA issuances and ruling that the circular
Province of South Cotabato. It bears emphasis
that petitioner itself does not even seek
cannot be given retroactive effect due to lack
exemption from the publication requirement of prior publication.
based on such ground.
Facts: Executive Order No. 180 and incentives based on the savings generated
Administrative Order No. 135 authorized the by the agency.
grant of CNA Incentives to government
employees, subject to guidelines issued by 2nd ans.>> Be that as it may, we refrain
the DBM. from holding the DENR employees liable for
the refund of the excess CNA Incentives
On December 26, 2011, the DBM issued received. It is settled in law and
Budget Circular No. 2011-5, imposing a jurisprudence that publication is imperative
P25,000 ceiling on the CNA Incentive for as a condition precedent to the effectivity of
2011. a law to fully and categorically inform the
public of its contents before their rights and
The DENR granted CNA Incentives to its interests are affected by the same.
employees on December 28, 2011, before
receiving the circular on December 29, 2011. Chapter 2 of Book VII of the Revised
Administrative Code provides:
The COA disallowed the excess CNA
Incentives granted by the DENR based on Section 3. Filing. — (1) Every agency shall
the circular's P25,000 ceiling. file with the University of the Philippines Law
Center three (3) certified copies of every rule
The circular was published in a newspaper on adopted by it. Rules in force on the date of
February 25, 2012, but was not filed with the effectivity of this Code which are not filed
University of the Philippines Law Center as within three (3) months from that date shall
required by the Administrative Code. not thereafter be the basis of any sanction
against any party or persons.
Issues and Rulings:
(3) A permanent register of all rules shall be
Whether or not DBM Budget Circular No. kept by the issuing agency and shall be open
2011-5 dated December 26, 2011, is to public inspection.
constitutional, and thus, valid and binding for
Calendar Year 2011? Section 4. Effectivity. — In addition to other
rule-making requirements provided by law
Ans.>> NO. While the DBM Secretary was not inconsistent with this Book, each rule
authorized to issue policy guidelines on the shall become effective fifteen (15) days from
CNA Incentive, Budget Circular No. 2011-5 the date of filing as above provided unless a
cannot be permitted to retroactively apply to different date is fixed by law, or specified in
incentives granted before its publication. The the rule in cases of imminent danger to
circular went beyond merely interpreting public health, safety and welfare, the
existing laws and substantially increased the existence of which must be expressed in a
burden of those governed by imposing a statement accompanying the rule. The
P25,000 ceiling on the CNA Incentive. agency shall take appropriate measures to
make emergency rules known to persons
As such, it should have been published in who may be affected by them.
accordance with the due process
requirement under the Constitution and the SECTION 5. Publication and Recording. —
Administrative Code. The publication on The University of the Philippines Law Center
February 25, 2012, cannot have retroactive shall: (1) Publish a quarterly bulletin setting
effect to cure the infirmity of non-publication forth the text of rules filed with it during the
when the circular was issued on preceding quarter; and (2) Keep an up-to-
December26, 2011, and the DENR had date codification of all rules thus published
already granted the incentives on December and remaining in effect, together with a
28, 2011. complete index and appropriate tables.

Applying the circular retroactively would SECTION 6. Omission of Some Rules. — (1)
violate the petitioners' vested rights to the The University of the Philippines Law Center
may omit from the bulletin or the codification
any rule if its publication would be unduly publication and non-filing with U.P. Law
cumbersome, expensive or otherwise Center-ONAR for the conditions were mere
inexpedient, but copies of that rule shall be reiterations of those already embodied in the
made available on application to the agency Magna Carta and its IRR.
which adopted it, and the bulletin shall
contain a notice stating the general subject Similarly, in Veterans Federation of the
matter of the omitted rule and new copies Philippines v. Reyes, when several orders
thereof may be obtained. issued by the Energy Regulatory Commission
were sought to be invalidated for lack of
(2) Every rule establishing an offense or publication and non-submission of copies
defining an act which, pursuant to law is thereof to the U.P. Law Center-ONAR, it has
punishable as a crime or subject to a penalty been held that since they merely interpret
shall in all cases be published in full text. R.A. No. 7832 and its IRR, without modifying,
amending or supplanting the same, they
There may have been instances in the past, cannot be rendered ineffective for they did
however, where the Court recognized not actually create a new obligation or
exceptions to the rules on prior publication impose a new duty, nor did they attach a new
and filing with the U.P. Law Center - ONAR. disability.
Accordingly, interpretative regulations, which
need nothing further than their bare issuance In Republic of the Philippines v. Drugmaker's
for they give no real consequence more than Laboratories, Inc., et al., the Court likewise
what the law itself has already upheld the validity of circulars issued by the
prescribed, and those merely internal in Food and Drug Administration despite non-
nature, that is, regulating only the personnel compliance with the publication requirement
of the administrative agency and not the for they did not affect substantive rights of
public need not be published. Neither is the parties they sought to govern.
publication required of the so-called letters of
instructions issued by administrative Furthermore, We upheld the validity of
superiors concerning the rules on guidelines administrative issuances in Board of Trustees
to be followed by their subordinates in the of the Government Service Insurance System
performance of their duties. v. Velasco for pertaining only to internal rules
meant to regulate the personnel of the GSIS
Thus, in Villafuerte v. Cordial, Jr., the Court or to a mere directive issued by the National
held that Resolution No. 13-2013 which Power Corporation President to his
provides for the rules of procedure subordinates to regulate the proper and
concerning the conduct of investigation efficient disposal, pre-qualification, bidding
against municipal officials need not be and award of scrap ACSR wires, as
published because it was merely in National Power Corporation v. Pinatubo
interpretative of the Local Government Code. Commercial, that does not affect the rights
of the public in general or of any other
In Association of International Shipping person not involved in the bidding process.
Lines, Inc. v. Secretary of Finance, we ruled
that Revenue Regulations No. 15-2013 need Accordingly, an administrative regulation can
not be published nor registered with the U.P. be construed as simply interpretative or
Law Center to be effective as it is merely an internal in nature, dispensing with the
internal issuance for the guidance of "all requirement of publication, when its
internal revenue officers and others applicability needs nothing further than its
concerned" which purports to do no more bare issuance, for it gives no real
than interpret the statute. consequence more than what the law itself
has already prescribed.
lso, in Cawad, et al. v. Sec. Abad, et al., We
upheld the validity of DBM circulars providing When, however, the administrative rule goes
for certain conditions on the grant of Magna beyond merely providing for the means that
Carta benefits to public health workers can facilitate or render least cumbersome the
(PWH) in spite of the circulars' delayed implementation of the law but substantially
increases the burden of those governed, it publication, therefore, cannot be dispensed
behooves the agency to accord at least to with.
those directly affected a chance to be heard,
and thereafter, to be duly informed, before In Manila Public School Teachers' Association
that new issuance is given the force and v. Garcia, the Court invalidated certain
effect of law. resolutions of the GSIS due to lack of
publication. While the GSIS filed copies of the
In this case, while the assailed DBM Budget subject resolutions with the U.P. Law Center-
Circular No. 2011-5 dated December 26, ONAR, it only did so after the claims of the
2011, was, in fact, published in The retirees and beneficiaries had already been
Philippine Star, it was done only on February lodged. More importantly, We rejected the
25, 2012, or two months after the issuance GSIS' claim that said resolutions were simply
of the same on December 29, 2011, and two interpretative of the statute it sought to
months after the DENR's grant of the CNA implement because they actually increase
incentive on December 28, 2011. In addition, the burden of GSIS members. The
as certified by the U.P. Law Center-ONAR, resolutions additionally obligate member-
the circular was not filed therewith as employees to ensure that their employer-
mandated by the Administrative Code of agency includes the GS in the budget,
1987. deducts the PS, as well as loan amortizations,
and timely remits them; and that the GSIS
As previously discussed, this would not have receives, processes, and posts the payments.
mattered had the said circular been merely
interpretative or internal in nature. In like manner, we ruled in Republic v.
Unfortunately, however, DBM Budget Pilipinas Shell Petroleum Corp. that the
Circular No. 2011-5 cannot be said to give no failure to comply with the requirements of
real consequence more than what the law publication and filing of administrative
itself has already prescribed nor can it be issuances rendered MOF Circular No. 1-85,
said that it does not affect substantial rights as amended, ineffective. These requirements
of any person. Prior issuances on the matter of publication and filing were put in place as
of the CNA incentive merely require that the safeguards against abuses on the part of
CNA Incentive shall be derived from savings lawmakers and as guarantees to the
generated by an agency which are no longer constitutional right to due process and to
intended for any specific purpose after all its information on matters of public concern
planned targets, programs, and services for and, therefore, require strict compliance.
the year have been accomplished. They do
not, however, impose any maximum In National Association of Electricity
allowable amount which government Consumers for Reforms v. Energy Regulatory
agencies must limit the incentive to. Commission (ERC), We nullified the assailed
Otherwise put, without the disputed circular, ERC Order approving the increase of
there would be no maximum allowable respondent MERALCO's generation charge
amount of P25,000.00 for the CNA incentive from P3.1886 to P3.3213 per kWh effective
per qualified employee. As such, the circular immediately for having been issued without
was issued not to simply interpret the law. the requisite publication. The fact that the
parties participated in the public consultation
Neither was it issued to regulate only the and submitted their respective comments is
personnel of an administrative agency, nor not compliance with the fundamental rule.
issued by an administrative superior
concerning guidelines to be followed by their Also, in De Jesus v. Commission on
subordinates in the performance of their Audit, We declared DBM-Corporate
duties. The subject circular actually increases Compensation Circular (CCC) No. 10 to be
the burden of those governed, encompassing ineffective due to its non-publication. The
not merely the personnel of a particular circular, which completely disallows payment
administrative agency, such as the DENR in of allowances and other additional
this case, but employees of all NGAs, SUCs, compensation to government officials and
LGUs, GOCCs, and GFIs in the country. Its employees, is not a mere interpretative or
internal regulation. De Jesus taught us that were given due notice of the same. Such
said circular would have been effective and contention cannot be given credence for as
enforceable had it gone through the requisite distinctly ruled in Republic v. Pilipinas Shell
publication in the Official Gazette or in a Petroleum Corporation, the fact that the
newspaper of general circulation. affected parties were notified of the
administrative circular does not constitute as
In National Electrification Administration v. an exemption from compliance with the
Gonzaga, We nullified the publication requirement, viz.:
Electric Cooperative Election Code (ECEC)
for it was, again, issued without compliance Petitioner also insists that the registration of
with the publication requirement. Since said MOF Circular No. 1-85, as amended, with the
code applies to all electric cooperatives in the ONAR is no longer necessary since the
country, it cannot be deemed a mere internal respondent knew of its existence, despite its
memorandum, interpretative regulation, or non-registration. This argument is seriously
instruction to subordinates. Thus, the ECEC flawed and contrary to jurisprudence. Strict
should have complied with the requirements compliance with the requirements of
on publication. publication cannot be annulled by a mere
allegation that parties were notified of the
Here, while the subject circular was, indeed, existence of the implementing rules
published, the publication came months after concerned. Hence, also in National
its effectivity. Settled is the rule that a Association of Electricity Consumers for
belated publication cannot have retroactive Reforms v. Energy Regulatory Board, this
effect of curing the infirmity attendant in the Court pronounced:
passage of the administrative regulation.
In this case, the GRAM Implementing Rules
Time and again, the Court has held that the must be declared ineffective as the same was
publication requirement on laws is part and never published or filed with the National
parcel of the constitutional mandate of due Administrative Register. To show that there
process. Its omission is tantamount to was compliance with the publication
denying the public of knowledge and requirement, respondents MERALCO and the
information of the laws that govern it; hence, ERC dwell lengthily on the fact that parties,
a violation of due process. Effectivity of laws, particularly the distribution utilities and
therefore, depends on their publication. consumer groups, were duly notified of the
Without such notice and publication, public consultation on the ERC's proposed
the Conclusive Presumption cannot apply implementing rules. These parties
for laws and rules are to be binding only participated in the said public consultation
when their existence and contents are and even submitted their comments thereon.
confirmed by a valid publication. What is
required by law, therefore, However, the fact that the parties
is prior publication. The fact that the assailed participated in the public consultation and
circular herein was published in The submitted their respective comments is not
Philippine Star on February 25, 2012, or two compliance with the fundamental rule that
months after the issuance of the same the GRAM Implementing Rules, or any
cannot be permitted to have any curative administrative rules whose purpose is to
effect, especially in light of the fact that it enforce or implement existing law, must be
aims to impose restrictions on the grant of published in the Official Gazette or in a
the CNA Incentive for the previous fiscal year newspaper of general circulation. The
2011. requirement of publication of implementing
rules of statutes is mandatory and may not
On this point, Secretary Abad insists that in be dispensed with altogether even if, as in
any case, the DENR admittedly received a this case, there was public consultation and
copy of the assailed circular before the end submission by the parties of their comments.
of FY 2011 or on December 29, 2011. As
such, they cannot now challenge the validity The Court cannot over-emphasize the
of DBM Budget Circular No. 2011-5 for they mandatory nature of the publication
requirement insofar as the effectivity of
administrative issuances is concerned. As a
basic postulate of procedural due process
guaranteed by the Constitution, it is
necessary to give as wide publicity as
possible so that all persons having an interest
in the proceedings may be notified thereof.

In keeping with the foregoing principles, We

nullified, in COURAGE, the order made on
the concerned DSWD employees to refund
the excess CNA Incentives they received on
the basis of vested rights vis-à-vis the
wrongful retroactive application of Budget
Circular No. 2011-5, to wit:

However, we agree with petitioners' position

against the retroactive application of Budget
Circular No. 2011-5 to CNA incentives
already released to the employees.
Generally, while the Department of Budget
and Management has the power to impose
conditions for the grant of CNA incentives, in
this case, the conditions were imposed after
the benefits had already been released by
the Department of Social Welfare and
Development and received by the
employees. The Department of Budget and
Management had not put in place a ceiling
on CNA incentives when the P30,000.00 CNA
incentive — the total amount from October
26, 2011, and December 3, 2011,
memoranda issued by DSWD Secretary
Soliman — was granted. Budget Circular No.
2011-5 containing the P25,000.00 ceiling
was issued only on December 26, 2011, and
published only on February 25, 2012. In this
particular instance, the benefits had already
vested in the employee's behalf.

All told, while Secretary Abad was duly

authorized to issue policy guidelines in the
form of Budget Circular No. 2011-5 that set
a P25,000.00 CNA Incentive ceiling, due
process dictates that the same cannot be
permitted to retroactively apply to incentives
granted before its publication.