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Effects and Application of Law (Articles 1-18)

Cases:

Art. 2Tanada v. TuveraPeople v. Que Po Lay

Art. 3Garcia v. Recio

Art. 6D.M. Consunji v. CACui v. Arellano University

Art. 15-16Miciano v. BrimoPilapil v. Ibay-SomeraRoehr v. RodriguezGarcia v. Recio

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OFATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,INC. [MABINI], Petitioners, vs. HON. JUAN C. TUVERA, in his capacity as

Executive Assistant to the President, HON. JOAQUIN VENUS, in hiscapacity as Deputy Executive Assistant to the President , MELQUIADES P.DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and

FLORENDO S. PABLO, in his capacity as Director, Bureau ofPrinting, Respondents.chanrobles virtual law library

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, aright recognized in Section 6, Article IV of the 1973 PhilippineConstitution, 1 as well as the principle that laws to be valid and enforceablemust be published in the Official Gazette or otherwise effectivelypromulgated, petitioners seek a writ of mandamus to compel respondentpublic officials to publish, and/or cause the publication in the Official Gazetteof various presidential decrees, letters of instructions, general orders,proclamations, executive orders, letter of implementation and administrativeorders.chanroblesvirtualawlibrary chanrobles virtual law library

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197,200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360,361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521,528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,1813-1817, 1819-1826, 1829-1840, 1842-1847.chanroblesvirtualawlibrary chanrobles virtual law l ibrary

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209,211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269,271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325,

327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405,438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594,599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726,837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.chanroblesvirtualawlibrary chanrobles virtual law library

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 &65.chanroblesvirtualawlibrary chanrobles virtual law library

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-

1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.chanroblesvirtualawlibrary chanrobles virtual law library

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492,494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553,560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677,679-703, 705-707, 712-786, 788-852, 854-857.chanroblesvirtualawlibrary chanrobles vi rtual law library

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,76, 80-81, 92, 94, 95, 107, 120, 122,123.chanroblesvirtualawlibrary chanrobles vi rtual law library

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this casedismissed outright on the ground that petitioners have no legal personality orstanding to bring the instant petition. The view is submitted that in theabsence of any showing that petitioners are personally and directly affectedor prejudiced by the alleged non-publication of the presidential issuances in

question2

said petitioners are without the requisite legal personality toinstitute this mandamus proceeding, they are not being "aggrieved parties"within the meaning of Section 3, Rule 65 of the Rules of Court, which wequote:

SEC. 3. Petition for Mandamus.-When any tribunal, corporation, board orperson unlawfully neglects the performance of an act which the lawspecifically enjoins as a duty resulting from an office, trust, or station, orunlawfully excludes another from the use a rd enjoyment of a right or office towhich such other is entitled, and there is no other plain, speedy andadequate remedy in the ordinary course of law, the person aggrieved therebymay file a verified petition in the proper court alleging the facts with certaintyand praying that judgment be rendered commanding the defendant,immediately or at some other specified time, to do the act required to bedone to Protect the rights of the petitioner, and to pay the damagessustained by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of thepetition concerns a public right and its object is to compel the performance ofa public duty, they need not show any specific interest for their petition to begiven due course.chanroblesvirtualawlibrary chanrobles virtual law library

The issue posed is not one of first impression. As early as the 1910 caseof Severino vs. Governor General, 3 this Court held that while the generalrule is that "a writ of mandamus would be granted to a private individual onlyin those cases where he has some private or particular interest to besubserved, or some particular right to be protected, independent of thatwhich he holds with the public at large," and "it is for the public officers

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exclusively to apply for the writ when public rights are to be subserved[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question isone of public right and the object of the mandamus is to procure theenforcement of a public duty, the people are regarded as the real party ininterest and the relator at whose instigation the proceedings are institutedneed not show that he has any legal or special interest in the result, it beingsufficient to show that he is a citizen and as such interested in the executionof the laws [High, Extraordinary Legal Remedies, 3rd ed., sec.431].chanroblesvirtualawlibrary chanrobles virtual law library

Thus, in said case, this Court recognized the relator Lope Severino, a privateindividual, as a proper party to the mandamus proceedings brought tocompel the Governor General to call a special election for the position ofmunicipal president in the town of Si lay, Negros Occidental. Speaking for thisCourt, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports theproposition that the relator is a proper party to proceedings of this characterwhen a public right is sought to be enforced. If the general rule in Americawere otherwise, we think that it would not be applicable to the case at bar forthe reason 'that it is always dangerous to apply a general rule to a particularcase without keeping in mind the reason for the rule, because, if under theparticular circumstances the reason for the rule does not exist, the rule itselfis not applicable and reliance upon the rule may well lead toerror' chanrobles virtual law library

No reason exists in the case at bar for applying the general rule insistedupon by counsel for the respondent. The circumstances which surround thiscase are different from those in the United States, inasmuch as if the relatoris not a proper party to these proceedings no other person could be, as wehave seen that it is not the duty of the law officer of the Government toappear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legalpersonality in the aforementioned case apply squarely to the present petition.Clearly, the right sought to be enforced by petitioners herein is a public rightrecognized by no less than the fundamental law of the land. If petitionerswere not allowed to institute this proceeding, it would indeed be difficult toconceive of any other person to initiate the same, considering that the

Solicitor General, the government officer generally empowered to representthe people, has entered his appearance for respondents in thiscase.chanroblesvirtualawlibrary chanrobles virtual law library

Respondents further contend that publication in the Official Gazette is not asine qua non requirement for the effectivity of laws where the lawsthemselves provide for their own effectivity dates. It is thus submitted thatsince the presidential issuances in question contain special provisions as tothe date they are to take effect, publication in the Official Gazette is notindispensable for their effectivity. The point stressed is anchored on Article 2of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion oftheir publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court'sconstruction of said article. In a long line of decisions,4 this Court has ruledthat publication in the Official Gazette is necessary in those cases where thelegislation itself does not provide for its effectivity date-for then the date ofpublication is material for determining its date of effectivity, which is thefifteenth day following its publication-but not when the law itself provides forthe date when it goes into effect.chanroblesvirtualawlibrary chanrobles virtuallaw library

Respondents' argument, however, is logically correct only insofar as itequates the effectivity of laws with the fact of publication. Considered in thelight of other statutes applicable to the issue at hand, the conclusion is easily

reached that said Article 2 does not preclude the requirement of publicationin the Official Gazette, even if the law i tself provides for the date of itseffectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all importantlegisiative acts and resolutions of a public nature of the, Congress of thePhilippines; [2] all executive and administrative orders and proclamations,except such as have no general applicability; [3] decisions or abstracts ofdecisions of the Supreme Court and the Court of Appeals as may be deemedby said courts of sufficient importance to be so published; [4] such

documents or classes of documents as may be required so to be publishedby law; and [5] such documents or classes of documents as the President ofthe Philippines shall determine from time to time to have general applicabilityand legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general publicadequate notice of the various laws which are to regulate their actions andconduct as citizens. Without such notice and publication, there would be nobasis for the application of the maxim "ignorantia legis non excusat." It wouldbe the height of injustice to punish or otherwise burden a citizen for thetransgression of a law of which he had no notice whatsoever, not even aconstructive one.chanroblesvirtualawlibrary chanrobles virtual law library

Perhaps at no time since the establishment of the Philippine Republic hasthe publication of laws taken so vital significance that at this time when thepeople have bestowed upon the President a power heretofore enjoyed solelyby the legislature. While the people are kept abreast by the mass media ofthe debates and deliberations in the Batasan Pambansa-and for the diligentones, ready access to the legislative records-no such publicity accompaniesthe law-making process of the President. Thus, without publication, thepeople have no means of knowing what presidential decrees have actuallybeen promulgated, much less a definite way of informing themselves of thespecific contents and texts of such decrees. As the Supreme Court of Spainruled: "Bajo la denominacion generica de leyes, se comprenden tambien losreglamentos, Reales decretos, Instrucciones, Circulares y Reales ordinesdictadas de conformidad con las mismas por el Gobierno en uso de supotestad. 5chanrobles virtual law library

The very first clause of Section I of Commonwealth Act 638 reads: "There

shall be published in the Official Gazette ... ." The word "shall" used thereinimposes upon respondent officials an imperative duty. That duty must beenforced if the Constitutional right of the people to be informed on matters ofpublic concern is to be given substance and reality. The law itself makes alist of what should be published in the Official Gazette. Such listing, to ourmind, leaves respondents with no discretion whatsoever as to what must beincluded or excluded from suchpublication.chanroblesvirtualawlibrary chanrobles vi rtual law library

The publication of all presidential issuances "of a public nature" or "ofgeneral applicability" is mandated by law. Obviously, presidential decreesthat provide for fines, forfeitures or penalties for their violation or otherwiseimpose a burden or. the people, such as tax and revenue measures, fallwithin this category. Other presidential issuances which apply only to

particular persons or class of persons such as administrative and executiveorders need not be published on the assumption that they have beencircularized to all concerned. 6chanrobles virtual law library

It is needless to add that the publication of presidential issuances "of a publicnature" or "of general applicability" is a requirement of due process. It is arule of law that before a person may be bound by law, he must first beofficially and specifically informed of its contents. As Justice ClaudioTeehankee said in Peralta vs. COMELEC7:

In a time of proliferating decrees, orders and letters of instructions which allform part of the law of the land, the requirement of due process and the Ruleof Law demand that the Official Gazette as the official government repositorypromulgate and publish the texts of all such decrees, orders and instructions

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so that the people may know where to obtain their official and specificcontents.

The Court therefore declares that presidential issuances of generalapplication, which have not been published, shall have no force and effect.Some members of the Court, quite apprehensive about the possibleunsettling effect this decision might have on acts done in reliance of thevalidity of those presidential decrees which were published only during thependency of this petition, have put the question as to whether the Court'sdeclaration of invalidity apply to P.D.s which had been enforced or

implemented prior to their publication. The answer is all too familiar. Insimilar situations in the past this Court had taken the pragmatic and realisticcourse set forth in Chicot County Drainage District vs. Baxter Bank8 to wit:

The courts below have proceeded on the theory that the Act of Congress,having been found to be unconstitutional, was not a law; that it wasinoperative, conferring no rights and imposing no duties, and hence affordingno basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425,442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,however, that such broad statements as to the effect of a determination ofunconstitutionality must be taken with qualifications. The actual existence ofa statute, prior to such a determination, is an operative fact and may haveconsequences which cannot justly be ignored. The past cannot always beerased by a new judicial declaration. The effect of the subsequent ruling asto invalidity may have to be considered in various aspects-with respect to

particular conduct, private and official. Questions of rights claimed to havebecome vested, of status, of prior determinations deemed to have finality andacted upon accordingly, of public policy in the light of the nature both of thestatute and of its previous application, demand examination. Thesequestions are among the most difficult of those which have engaged theattention of courts, state and federal and it is manifest from numerousdecisions that an all-inclusive statement of a principle of absolute retroactiveinvalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs.Esteban 9 sustained the right of a party under the Moratorium Law, albeitsaid right had accrued in his favor before said law was declaredunconstitutional by this Court.chanroblesvirtualawlibrary chanrobles virtuallaw library

Similarly, the implementation/enforcement of presidential decrees prior totheir publication in the Official Gazette is "an operative fact which may haveconsequences which cannot be justly ignored. The past cannot always beerased by a new judicial declaration ... that an all-inclusive statement of aprinciple of absolute retroactive invalidity cannot be justified." chanroblesvirtual law library

From the report submitted to the Court by the Clerk of Court, it appears thatof the presidential decrees sought by petitioners to be published in theOfficial Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,1278, and 1937 to 1939, inclusive, have not been so published.10Neither thesubject matters nor the texts of these PDs can be ascertained since nocopies thereof are available. But whatever their subject matter may be, it is

undisputed that none of these unpublished PDs has ever been implementedor enforced by the government. In Pesigan vs. Angeles, 11 the Court, throughJustice Ramon Aquino, ruled that "publication is necessary to apprise thepublic of the contents of [penal] regulations and make the said penaltiesbinding on the persons affected thereby. " The cogency of this holding isapparently recognized by respondent officials considering the manifestationin their comment that "the government, as a matter of policy, refrains fromprosecuting violations of criminal laws until the same shall have beenpublished in the Official Gazette or in some other publication, even thoughsome criminal laws provide that they shall take effectimmediately.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the Court hereby orders respondents to publish in the OfficialGazette all unpublished presidential issuances which are of general

application, and unless so published, they shall have no binding force andeffect.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Relova, J., concurs.chanroblesvirtualawlibrary chanrobles virtual law library

Aquino, J., took no part.chanroblesvirtualawlibrary chanrobles virtual lawlibrary

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification): chanrobles virtual lawlibrary

There is on the whole acceptance on my part of the views expressed in theably written opinion of Justice Escolin. I am unable, however, to concurinsofar as it would unqualifiedly impose the requirement of publication in theOfficial Gazette for unpublished "presidential issuances" to have bindingforce and effect.chanroblesvirtualawlibrary chanrobles virtual law library

I shall explain why.chanroblesvirtualawlibrary chanrobles virtual law library

1. It is of course true that without the requisite publication, a due processquestion would arise if made to apply adversely to a party who is not evenaware of the existence of any legislative or executive act having the forceand effect of law. My point is that such publication required need not beconfined to the Official Gazette. From the pragmatic standpoint, there is anadvantage to be gained. It conduces to certainty. That is too be admitted. Itdoes not follow, however, that failure to do so would in all cases and underall circumstances result in a statute, presidential decree or any otherexecutive act of the same category being bereft of any binding force andeffect. To so hold would, for me, raise a constitutional question. Such apronouncement would lend itself to the interpretation that such a legislativeor presidential act is bereft of the attribute of effectivity unless published in

the Official Gazette. There is no such requirement in the Constitution asJustice Plana so aptly pointed out. It is true that what is decided now appliesonly to past "presidential issuances". Nonetheless, this clarification is, to mymind, needed to avoid any possible misconception as to what is required forany statute or presidential act to be impressed with binding force oreffectivity.chanroblesvirtualawlibrary chanrobles virtual law library

2. It is quite understandable then why I concur in the separate opinion ofJustice Plana. Its first paragraph sets forth what to me is the constitutionaldoctrine applicable to this case. Thus: "The Philippine Constitution does notrequire the publication of laws as a prerequisite for their effectivity, unlikesome Constitutions elsewhere. It may be said though that the guarantee ofdue process requires notice of laws to affected Parties before they can bebound thereby; but such notice is not necessarily by publication in the OfficialGazette. The due process clause is not that precise. 1 I am likewise inagreement with its closing paragraph: "In fine, I concur in the majoritydecision to the extent that it requires notice before laws become effective, forno person should be bound by a law without notice. This is elementaryfairness. However, I beg to disagree insofar as it holds that such notice shallbe by publication in the Official Gazette. 2 chanrobles virtual law library

3. It suffices, as was stated by Judge Learned Hand, that law as thecommand of the government "must be ascertainable in some form if it is tobe enforced at all. 3 It would indeed be to reduce it to the level of mere futilityas pointed out by Justice Cardozo, "if it is unknown andunknowable. 4Publication, to repeat, is thus essential. What I am notprepared to subscribe to is the doctrine that it must be in the Official Gazette.To be sure once published therein there is the ascertainable mode of

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determining the exact date of its effectivity. Still for me that does not disposeof the question of what is the jural effect of past presidential decrees orexecutive acts not so published. For prior thereto, it could be that partiesaware of their existence could have conducted themselves in accordancewith their provisions. If no legal consequences could attach due to lack ofpublication in the Official Gazette, then serious problems could arise.Previous transactions based on such "Presidential Issuances" could be opento question. Matters deemed settled could still be inquired into. I am notprepared to hold that such an effect is contemplated by our decision. Wheresuch presidential decree or executive act is made the basis of a criminalprosecution, then, of course, its ex post facto character becomes

evident. 5 In civil cases though, retroactivity as such is not conclusive on thedue process aspect. There must still be a showing of arbitrariness. Moreover,where the challenged presidential decree or executive act was issued underthe police power, the non-impairment clause of the Constitution may notalways be successfully invoked. There must still be that process of balancingto determine whether or not it could in such a case be tainted by infirmity. 6Intraditional terminology, there could arise then a question of unconstitutionalapplication. That is as far as it goes.chanroblesvirtualawlibrary chanroblesvirtual law library

4. Let me make therefore that my qualified concurrence goes no further thanto affirm that publication is essential to the effectivity of a legislative orexecutive act of a general application. I am not in agreement with the viewthat such publication must be in the Official Gazette. The Civil Code itself in

its Article 2 expressly recognizes that the rule as to laws taking effect afterfifteen days following the completion of their publication in the OfficialGazette is subject to this exception, "unless it is otherwise provided."Moreover, the Civil Code is itself only a legislative enactment, Republic ActNo. 386. It does not and cannot have the juridical force of a constitutionalcommand. A later legislative or executive act which has the force and effectof law can legally provide for a differentrule.chanroblesvirtualawlibrary chanrobles virtual law library

5. Nor can I agree with the rather sweeping conclusion in the opinion ofJustice Escolin that presidential decrees and executive acts not thuspreviously published in the Official Gazette would be devoid of any legalcharacter. That would be, in my opinion, to go too far. It may be fraught, asearlier noted, with undesirable consequences. I find myself therefore unableto yield assent to such apronouncement.chanroblesvirtualawlibrary chanrobles virtual law library

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, andAlampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring: chanrobles virtual law library

I concur with the main opinion of Mr. Justice Escolin and the concurringopinion of Mme. Justice Herrera. The Rule of Law connotes a body of normsand laws published and ascertainable and of equal application to all similarlycircumstances and not subject to arbitrary change but only under certain set

procedures. The Court has consistently stressed that "it is an elementary ruleof fair play and justice that a reasonable opportunity to be informed must beafforded to the people who are commanded to obey before they can bepunished for its violation, 1 citing the settled principle based on due processenunciated in earlier cases that "before the public is bound by its contents,especially its penal provisions, a law, regulation or ci rcular must first bepublished and the people officially and specially informed of said contentsand its penalties.chanroblesvirtualawlibrary chanrobles virtual law library

Without official publication in the Official Gazette as required by Article 2 ofthe Civil Code and the Revised Administrative Code, there would be no basisnor justification for the corollary rule of Article 3 of the Civil Code (based onconstructive notice that the provisions of the law are ascertainable from thepublic and official repository where they are duly published) that "Ignorance

of the law excuses no one from compliancetherewith.chanroblesvirtualawlibrary chanrobles virtual law library

Respondents' contention based on a misreading of Article 2 of the Civil Codethat "only laws which are silent as to their effectivity [date] need be publishedin the Official Gazette for their effectivity" is manifestly untenable. The plaintext and meaning of the Civil Code is that "laws shall take effect after fifteendays following the completion of their publication in the OfficialGazette, unless it is otherwise provided, " i.e. a different effectivity date isprovided by the law itself. This proviso perforce refers to a law that has been

duly published pursuant to the basic constitutional requirements of dueprocess. The best example of this is the Civil Code itself: the same Article 2provides otherwise that it "shall take effect [only] one year [not 15 days] aftersuch publication. 2 To sustain respondents' misreading that "most laws ordecrees specify the date of their effectivity and for this reason, publication inthe Official Gazette is not necessary for their effectivity3 would be to nullifyand render nugatory the Civil Code's indispensable and essentialrequirement of prior publication in the Official Gazette by the simpleexpedient of providing for immediate effectivity or an earlier effectivity date inthe law itself before the completion of 15 days following its publication whichis the period generally fixed by the Civil Code for its properdissemination.chanroblesvirtualawlibrary chanrobles virtual law library

MELENCIO-HERRERA, J., concurring: chanrobles virtual law library

I agree. There cannot be any question but that even if a decree provides fora date of effectivity, it has to be published. What I would like to state inconnection with that proposition is that when a date of effectivity ismentioned in the decree but the decree becomes effective only fifteen (15)days after its publication in the Official Gazette, it will not mean that thedecree can have retroactive effect to the date of effectivity mentioned in thedecree itself. There should be no retroactivity if the retroactivity will runcounter to constitutional rights or shall destroy vestedrights.chanroblesvirtualawlibrary chanrobles virtual law library

PLANA, J., concurring (with qualification): chanrobles virtual law library

The Philippine Constitution does not require the publication of laws as aprerequisite for their effectivity, unlike some Constitutions elsewhere.* It maybe said though that the guarantee of due process requires notice of laws toaffected parties before they can be bound thereby; but such notice is notnecessarily by publication in the Official Gazette. The due process clause isnot that precise. Neither is the publication of laws in the OfficialGazette required by any statute as a prerequisite for their effectivity, if saidlaws already provide for their effectivitydate.chanroblesvirtualawlibrarychanrobles virtual law library

Article 2 of the Civil Code provides that "laws shall take effect after fifteendays following the completion of their publication in the OfficialGazette, unless it is otherwise provided " Two things may be said of thisprovision: Firstly, it obviously does not apply to a law with a built-in provisionas to when it will take effect. Secondly, it clearly recognizes that each lawmay provide not only a different period for reckoning its effectivity date but

also a different mode of notice. Thus, a law may prescribe that it shall bepublished elsewhere than in the OfficialGazette.chanroblesvirtualawlibrary chanrobles virtual law library

Commonwealth Act No. 638, in my opinion, does not support the propositionthat for their effectivity, laws must be published in the Official Gazette. Thesaid law is simply "An Act to Provide for the Uniform Publication andDistribution of the Official Gazette." Conformably therewith, it authorizes thepublication of the Official Gazette, determines its frequency, provides for itssale and distribution, and defines the authority of the Director of Printing inrelation thereto. It also enumerates what shall be published in the OfficialGazette, among them, "important legislative acts and resolutions of a publicnature of the Congress of the Philippines" and "all executive andadministrative orders and proclamations, except such as have no general

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applicability." It is noteworthy that not all legislative acts are required to bepublished in the Official Gazette but only "important" ones "of a publicnature." Moreover, the said law does not provide that publication in theOfficial Gazette is essential for the effectivity of laws. This is as it should be,for all statutes are equal and stand on the same footing. A law, especially anearlier one of general application such as Commonwealth Act No. 638,cannot nullify or restrict the operation of a subsequent statute that has aprovision of its own as to when and how it will take effect. Only a higher law,which is the Constitution, can assume thatrole.chanroblesvirtualawlibrary chanrobles virtual law library

In fine, I concur in the majority decision to the extent that it requires noticebefore laws become effective, for no person should be bound by a lawwithout notice. This is elementary fairness. However, I beg to disagreeinsofar as it holds that such notice shall be by publication in the OfficialGazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring: chanrobles virtual law library

I concur insofar as publication is necessary but reserve my vote as to thenecessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring: chanrobles virtual law library

I concur insofar as the opinion declares the unpublished decrees andissuances of a public nature or general applicability ineffective, until duepublication thereof.chanroblesvirtualawlibrary chanrobles virtual law library

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in theably written opinion of Justice Escolin. I am unable, however, to concurinsofar as it would unqualifiedly impose the requirement of publication in the

Official Gazette for unpublished "presidential issuances" to have bindingforce and effect.chanrobles virtual law library

I shall explain why.chanrobles virtual law library

1. It is of course true that without the requisite publication, a due processquestion would arise if made to apply adversely to a party who is not evenaware of the existence of any legislative or executive act having the forceand effect of law. My point is that such publication required need not beconfined to the Official Gazette. From the pragmatic standpoint, there is anadvantage to be gained. It conduces to certainty. That is too be admitted. Itdoes not follow, however, that failure to do so would in all cases and underall circumstances result in a statute, presidential decree or any otherexecutive act of the same category being bereft of any binding force and

effect. To so hold would, for me, raise a constitutional question. Such apronouncement would lend itself to the interpretation that such a legislativeor presidential act is bereft of the attribute of effectivity unless published inthe Official Gazette. There is no such requirement in the Constitution asJustice Plana so aptly pointed out. It is true that what is decided now appliesonly to past "presidential issuances". Nonetheless, this clarification is, to mymind, needed to avoid any possible misconception as to what is required forany statute or presidential act to be impressed with binding force oreffectivity.chanrobles virtual law library

2. It is quite understandable then why I concur in the separate opinion ofJustice Plana. Its first paragraph sets forth what to me is the constitutionaldoctrine applicable to this case. Thus: "The Philippine Constitution does notrequire the publication of laws as a prerequisite for their effectivity, unlike

some Constitutions elsewhere. It may be said though that the guarantee ofdue process requires notice of laws to affected Parties before they can bebound thereby; but such notice is not necessarily by publication in the OfficialGazette. The due process clause is not that precise. 1 I am likewise inagreement with its closing paragraph: "In fine, I concur in the majoritydecision to the extent that it requires notice before laws become effective, forno person should be bound by a law without notice. This is elementaryfairness. However, I beg to disagree insofar as it holds that such notice shallbe by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as thecommand of the government "must be ascertainable in some form if it is tobe enforced at all. 3 It would indeed be to reduce it to the level of mere futilityas pointed out by Justice Cardozo, "if it is unknown andunknowable. 4Publication, to repeat, is thus essential. What I am notprepared to subscribe to is the doctrine that it must be in the Official Gazette.To be sure once published therein there is the ascertainable mode ofdetermining the exact date of its effectivity. Still for me that does not disposeof the question of what is the jural effect of past presidential decrees orexecutive acts not so published. For prior thereto, it could be that partiesaware of their existence could have conducted themselves in accordancewith their provisions. If no legal consequences could attach due to lack ofpublication in the Official Gazette, then serious problems could arise.Previous transactions based on such "Presidential Issuances" could be opento question. Matters deemed settled could still be inquired into. I am not

prepared to hold that such an effect is contemplated by our decision. Wheresuch presidential decree or executive act is made the basis of a criminalprosecution, then, of course, its ex post facto character becomesevident. 5 In civil cases though, retroactivity as such is not conclusive on thedue process aspect. There must still be a showing of arbitrariness. Moreoverwhere the challenged presidential decree or executive act was issued underthe police power, the non-impairment clause of the Constitution may notalways be successfully invoked. There must still be that process of balancingto determine whether or not it could in such a case be tainted by infirmity. 6Intraditional terminology, there could arise then a question of unconstitutionalapplication. That is as far as it goes.chanrobles virtual law library

4. Let me make therefore that my qualified concurrence goes no further thanto affirm that publication is essential to the effectivity of a legislative orexecutive act of a general application. I am not in agreement with the viewthat such publication must be in the Official Gazette. The Civil Code itself inits Article 2 expressly recognizes that the rule as to laws taking effect afterfifteen days following the completion of their publication in the OfficialGazette is subject to this exception, "unless it is otherwise provided."Moreover, the Civil Code is itself only a legislative enactment, Republic ActNo. 386. It does not and cannot have the juridical force of a constitutionalcommand. A later legislative or executive act which has the force and effectof law can legally provide for a different rule.chanrobles virtual law library

5. Nor can I agree with the rather sweeping conclusion in the opinion ofJustice Escolin that presidential decrees and executive acts not thuspreviously published in the Official Gazette would be devoid of any legalcharacter. That would be, in my opinion, to go too far. It may be fraught, asearlier noted, with undesirable consequences. I find myself therefore unable

to yield assent to such a pronouncement.chanrobles virtual law library

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, andAlampay concur in this separate opinion.

G.R. No. L-63915 : December 29, 1986

LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OFATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,INC. (MABINI), Petitioners, vs. HON. JUAN C. TUVERA, in his capacity as

Executive Assistant to the President, HON. JOAQUIN VENUS, in hiscapacity as Deputy Executive Assistant to the President, MELQUIADES P.

DE LA CRUZ, ETC., ET AL., Respondents.

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R E S O L U T I O N

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of anumber of presidential decrees which they claimed had not been publishedas required by law. The government argued that while publication wasnecessary as a rule, it was not so when it was "otherwise provided," as whenthe decrees themselves declared that they were to become effectiveimmediately upon their approval. In the decision of this case on April 24,

1985, the Court affirmed the necessity for the publication of some of thesedecrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the OfficialGazette all unpublished presidential issuances which are of generalapplication, and unless so published, they shall have no binding force andeffect.

The petitioners are now before us again, this time to move forreconsideration/clarification of that decision. 1 Specifically, they ask thefollowing questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and lawswhich are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be nodistinction between laws of general applicability and those which are not; thatpublication means complete publication; and that the publication must bemade forthwith in the Official Gazette. 2

In the Comment3 required of the then Solicitor General, he claimed first thatthe motion was a request for an advisory opinion and should therefore bedismissed, and, on the merits, that the clause "unless it is otherwiseprovided" in Article 2 of the Civil Code meant that the publication requiredtherein was not always imperative; that publication, when necessary, did nothave to be made in the Official Gazette; and that in any case the subjectdecision was concurred in only by three justices and consequently notbinding. This elicited a Reply4 refuting these arguments. Came next theFebruary Revolution and the Court required the new Solicitor General to filea Rejoinder in view of the supervening events, under Rule 3, Section 18, ofthe Rules of Court. Responding, he submitted that issuances intended onlyfor the internal administration of a government agency or for particularpersons did not have to be 'Published; that publication when necessary must

be in full and in the Official Gazette; and that, however, the decision underreconsideration was not binding because it was not supported by eightmembers of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion oftheir publication in the Official Gazette, unless it is otherwise provided. ThisCode shall take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties,both on the original petition and on the instant motion, we have come to theconclusion and so hold, that the clause "unless it is otherwise provided"

refers to the date of effectivity and not to the requirement of publication itself,which cannot in any event be omitted. This clause does not mean that thelegislature may make the law effective immediately upon approval, or on anyother date, without its previous publication.

Publication is indispensable in every case, but the legislature may in itsdiscretion provide that the usual fifteen-day period shall be shortened orextended. An example, as pointed out by the present Chief Justice in hisseparate concurrence in the original decision, 6 is the Civil Code which didnot become effective after fifteen days from its publication in the Official

Gazette but "one year after such publication." The general rule did not applybecause it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may bedispensed with altogether. The reason. is that such omission would offenddue process insofar as it would deny the public knowledge of the laws thatare supposed to govern the legislature could validly provide that a law eeffective immediately upon its approval notwithstanding the lack ofpublication (or after an unreasonably short period after publication), it is notunlikely that persons not aware of it would be prejudiced as a result and theywould be so not because of a failure to comply with but simply because theydid not know of its existence, Significantly, this is not true only of penal lawsas is commonly supposed. One can think of many non-penal measures, likea law on prescription, which must also be communicated to the persons theymay affect before they can begin to operate.

We note at this point the conclusive presumption that every person knowsthe law, which of course presupposes that the law has been published if thepresumption is to have any legal justification at all. It is no less important toremember that Section 6 of the Bill of Rights recognizes "the right of thepeople to information on matters of public concern," and this certainly appliesto, among others, and indeed especially, the legislative enactments of thegovernment.

The term "laws" should refer to all laws and not only to those of generalapplication, for strictly speaking all laws relate to the people in general albeitthere are some that do not apply to them directly. An example is a lawgranting citizenship to a particular individual, like a relative of PresidentMarcos who was decreed instant naturalization. It surely cannot be said that

such a law does not affect the public although it unquestionably does notapply directly to all the people. The subject of such law is a matter of publicinterest which any member of the body politic may question in the politicalforums or, if he is a proper party, even in the courts of justice. In fact, a lawwithout any bearing on the public would be invalid as an intrusion of privacyor as class legislation or as an ultra vires act of the legislature. To be valid,the law must invariably affect the public interest even if it might be directlyapplicable only to one individual, or some of the people only, and t to thepublic as a whole.

We hold therefore that all statutes, including those of local application andprivate laws, shall be published as a condition for their effectivity, which shallbegin fifteen days after publication unless a different effectivity date is fixedby the legislature.

Covered by this rule are presidential decrees and executive orderspromulgated by the President in the exercise of legislative powers wheneverthe same are validly delegated by the legislature or, at present, directlyconferred by the Constitution. administrative rules and regulations must aalso be published if their purpose is to enforce or implement existing lawpursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,regulating only the personnel of the administrative agency and not the publicneed not be published. Neither is publication required of the so-called lettersof instructions issued by administrative superiors concerning the rules orguidelines to be followed by their subordinates in the performance of theirduties.

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Accordingly, even the charter of a city must be published notwithstandingthat it applies to only a portion of the national territory and directly affectsonly the inhabitants of that place. All presidential decrees must be published,including even, say, those naming a public place after a favored individual orexempting him from certain prohibitions or requirements. The circularsissued by the Monetary Board must be published if they are meant notmerely to interpret but to "fill in the details" of the Central Bank Act which thatbody is supposed to enforce.

However, no publication is required of the instructions issued by, say, the

Minister of Social Welfare on the case studies to be made in petitions foradoption or the rules laid down by the head of a government agency on theassignments or workload of his personnel or the wearing of office uniforms.Parenthetically, municipal ordinances are not covered by this rule but by theLocal Government Code.

We agree that publication must be in full or it is no publication at all since itspurpose is to inform the public of the contents of the laws. As correctlypointed out by the petitioners, the mere mention of the number of thepresidential decree, the title of such decree, its whereabouts (e.g., "withSecretary Tuvera"), the supposed date of effectivity, and in a meresupplement of the Official Gazette cannot satisfy the publication requirement.This is not even substantial compliance. This was the manner, incidentally, inwhich the General Appropriations Act for FY 1975, a presidential decreeundeniably of general applicability and interest, was "published" by the

Marcos administration. 7The evident purpose was to withhold rather thandisclose information on this vital law.

Coming now to the original decision, it is true that only four justices werecategorically for publication in the Official Gazette 8and that six others feltthat publication could be made elsewhere as long as the people weresufficiently informed. 9 One reserved his vote 10and another merelyacknowledged the need for due publication without indicating where it shouldbe made.11 It is therefore necessary for the present membership of this Courtto arrive at a clear consensus on this matter and to lay down a bindingdecision supported by the necessary vote.

There is much to be said of the view that the publication need not be made inthe Official Gazette, considering its erratic releases and limited readership.

Undoubtedly, newspapers of general circulation could better perform thefunction of communicating, the laws to the people as such periodicals aremore easily available, have a wider readership, and come out regularly. Thetrouble, though, is that this kind of publication is not the one required orauthorized by existing law. As far as we know, no amendment has beenmade of Article 2 of the Civil Code. The Solicitor General has not pointed tosuch a law, and we have no information that it exists. If it does, it obviouslyhas not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law orto repeal or modify it if we find it impractical. That is not our function. Thatfunction belongs to the legislature. Our task is merely to interpret and applythe law as conceived and approved by the political departments of thegovernment in accordance with the prescribed procedure. Consequently, we

have no choice but to pronounce that under Article 2 of the Civil Code, thepublication of laws must be made in the Official Gazett and not elsewhere, asa requirement for their effectivity after fifteen days from such publication orafter a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soonas possible, to give effect to the law pursuant to the said Article 2. There isthat possibility, of course, although not suggested by the parties that a lawcould be rendered unenforceable by a mere refusal of the executive, forwhatever reason, to cause its publication as required. This is a matter,however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is arequest for an advisory opinion is untenable, to say the least, and deservesno further comment.

The days of the secret laws and the unpublished decrees are over. This isonce again an open society, with all the acts of the government subject topublic scrutiny and available always to public cognizance. This has to be so iour country is to remain democratic, with sovereignty residing in the peopleand all government authority emanating from them.

Although they have delegated the power of legislation, they retain theauthority to review the work of their delegates and to ratify or reject itaccording to their lights, through their freedom of expression and their right osuffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead ofskulking in the shadows with their dark, deep secrets. Mysteriouspronouncements and rumored rules cannot be recognized as binding unlesstheir existence and contents are confirmed by a valid publication intended tomake full disclosure and give proper notice to the people. The furtive law islike a scabbarded saber that cannot feint parry or cut unless the naked bladeis drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall

immediately upon their approval, or as soon thereafter as possible, bepublished in full in the Official Gazette, to become effective only after fifteendays from their publication, or on another date specified by the legislature, inaccordance with Article 2 of the Civil Code.

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay,Gutierrez, Jr., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:

While concurring in the Court's opinion penned by my distinguishedcolleague, Mr. Justice Isagani A. Cruz, I would like to add a fewobservations. Even as a Member of the defunct Batasang Pambansa, I tooka strong stand against the insidious manner by which the previousdispensation had promulgated and made effective thousands of decrees,executive orders, letters of instructions, etc. Never has the law-making powerwhich traditionally belongs to the legislature been used and abused to satisfythe whims and caprices of a one-man legislative mill as it happened in thepast regime. Thus, in those days, it was not surprising to witness the sadspectacle of two presidential decrees bearing the same number, althoughcovering two different subject matters. In point is the case of two presidentialdecrees bearing number 1686 issued on March 19, 1980, one grantingPhilippine citizenship to Michael M. Keon the then President's nephew andthe other imposing a tax on every motor vehicle equipped with airconditioner

This was further exacerbated by the issuance of PD No. 1686-A also onMarch 19, 1980 granting Philippine citizenship to basketball players JeffreyMoore and Dennis George Still

The categorical statement by this Court on the need for publication beforeany law may be made effective seeks prevent abuses on the part of thelawmakers and, at the same time, ensures to the people their constitutionalright to due process and to information on matters of public concern.

FELICIANO, J., concurring:

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I agree entirely with the opinion of the court so eloquently written by Mr.Justice Isagani A. Cruz. At the same time, I wish to add a few statements toreflect my understanding of what the Court is saying.

A statute which by its terms provides for its coming into effect immediatelyupon approval thereof, is properly interpreted as coming into effectimmediately upon publication thereof in the Official Gazette as provided inArticle 2 of the Civil Code. Such statute, in other words, should not beregarded as purporting literally to come into effect immediately upon itsapproval or enactment and without need of publication. For so to interpret

such statute would be to collide with the constitutional obstacle posed by thedue process clause. The enforcement of prescriptions which are bothunknown to and unknowable by those subjected to the statute, has beenthroughout history a common tool of tyrannical governments. Suchapplication and enforcement constitutes at bottom a negation of thefundamental principle of legality in the relations between a government andits people.

At the same time, it is clear that the requirement of publication of a statute inthe Official Gazette, as distinguished from any other medium such as anewspaper of general circulation, is embodied in a statutory norm and is nota constitutional command. The statutory norm is set out in Article 2 of theCivil Code and is supported and reinforced by Section 1 of CommonwealthAct No. 638 and Section 35 of the Revised Administrative Code. Aspecification of the Official Gazette as the prescribed medium of publication

may therefore be changed. Article 2 of the Civil Code could, without c reatinga constitutional problem, be amended by a subsequent statute providing, forinstance, for publication either in the Official Gazette or in a newspaper ofgeneral circulation in the country. Until such an amendatory statute is in factenacted, Article 2 of the Civil Code must be obeyed and publication effectedin the Official Gazette and not in any other medium.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-6791 March 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G.Marquez for appellee.

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of the Court of First Instance ofManila, finding him guilty of violating Central Bank Circular No. 20 inconnection with section 34 of Republic Act No. 265, and sentencing him tosuffer six months imprisonment, to pay a fine of P1,000 with subsidiaryimprisonment in case of insolvency, and to pay the costs.

The charge was that the appellant who was in possession of foreignexchange consisting of U.S. dollars, U.S. checks and U.S. money ordersamounting to about $7,000 failed to sell the same to the Central Bankthrough its agents within one day following the receipt of such foreignexchange as required by Circular No. 20. the appeal is based on the claimthat said circular No. 20 was not published in the Official Gazette prior to theact or omission imputed to the appellant, and that consequently, said circular

had no force and effect. It is contended that Commonwealth Act. No., 638and Act 2930 both require said circular to be published in the OfficialGazette, it being an order or notice of general applicability. The SolicitorGeneral answering this contention says that Commonwealth Act. No. 638and 2930 do not require the publication in the Official Gazette of said circularissued for the implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not requirethe publication of the circulars, regulations and notices therein mentioned inorder to become binding and effective. All that said two laws provide is that

laws, resolutions, decisions of the Supreme Court and Court of Appeals,notices and documents required by law to be of no force and effect. In otherwords, said two Acts merely enumerate and make a list of what should bepublished in the Official Gazette, presumably, for the guidance of thedifferent branches of the Government issuing same, and of the Bureau ofPrinting.

However, section 11 of the Revised Administrative Code provides thatstatutes passed by Congress shall, in the absence of special provision, takeeffect at the beginning of the fifteenth day after the completion of thepublication of the statute in the Official Gazette. Article 2 of the new CivilCode (Republic Act No. 386) equally provides that laws shall take effect afterfifteen days following the completion of their publication in the OfficialGazette, unless it is otherwise provided. It is true that Circular No. 20 of theCentral Bank is not a statute or law but being issued for the implementation

of the law authorizing its issuance, it has the force and effect of lawaccording to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119and authorities cited therein.) Moreover, as a rule, circulars and regulationsespecially like the Circular No. 20 of the Central Bank in question whichprescribes a penalty for its violation should be published before becomingeffective, this, on the general principle and theory that before the public isbound by its contents, especially its penal provisions, a law, regulation orcircular must first be published and the people officially and specificallyinformed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provisionabout the effectivity of laws, (Article 1 thereof), namely, that laws shall bebinding twenty days after their promulgation, and that their promulgation shabe understood as made on the day of the termination of the publication of the

laws in the Gazette. Manresa, commenting on this article is of the opinionthat the word "laws" include regulations and circulars issued in accordancewith the same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civien Sentencia de 22 de Junio de 1910, en el sentido de que bajola denominacion generica de leyes, se comprenden tambienlos Reglamentos, Reales decretos, Instrucciones, Circulares yReales ordenes dictadas de conformidad con las mismas por elGobierno en uso de su potestad. Tambien el poder ejecutivo lo havenido entendiendo asi, como lo prueba el hecho de que muchasde sus disposiciones contienen la advertencia de que empiezan aregir el mismo dia de su publicacion en la Gaceta, advertenciaque seria perfectamente inutil si no fuera de aplicacion al caso elarticulo 1.o del Codigo Civil. (Manresa, Codigo Civil Espaol, Vol.

I. p. 52).

In the present case, although circular No. 20 of the Central Bank was issuedin the year 1949, it was not published until November 1951, that is, about 3months after appellant's conviction of its violation. It is clear that said circularparticularly its penal provision, did not have any legal effect and bound noone until its publication in the Official Gazzette or after November 1951. Inother words, appellant could not be held liable for its violation, for it was notbinding at the time he was found to have failed to sell the foreign exchangein his possession thereof.

But the Solicitor General also contends that this question of non-publicationof the Circular is being raised for the first time on appeal in this Court, which

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cannot be done by appellant. Ordinarily, one may raise on appeal anyquestion of law or fact that has been raised in the court below and which iswithin the issues made by the parties in their pleadings. (Section 19, Rule 48of the Rules of Court). But the question of non-publication is fundamentaland decisive. If as a matter of fact Circular No. 20 had not been published asrequired by law before its violation, then in the eyes of the law there was nosuch circular to be violated and consequently appellant committed noviolation of the circular or committed any offense, and the trial court may besaid to have had no jurisdiction. This question may be raised at any stage ofthe proceeding whether or not raised in the court below.

In view of the foregoing, we reverse the decision appealed from and acquitthe appellant, with costs de oficio.

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador,Concepcion and Diokno, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,vs.REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction,provided such decree is valid according to the national law of the foreigner.However, the divorce decree and the governing personal law of the alienspouse who obtained the divorce must be proven. Our courts do not takejudicial notice of foreign laws and judgment; hence, like any other facts, boththe divorce decree and the national law of the alien must be alleged and

proven according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court,seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in CivilCase No. 3026-AF. The assailed Decision disposed as follows:

"WHEREFORE, this Court declares the marriage between GraceJ. Garcia and Rederick A. Recio solemnized on January 12, 1994at Cabanatuan City as dissolved and both parties can nowremarry under existing and applicable laws to any and/or bothparties."3

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australiancitizen, in Malabon, Rizal, on March 1, 1987. 4 They lived together ashusband and wife in Australia. On May 18, 1989,5a decree of divorce,purportedly dissolving the marriage, was issued by an Australian familycourt.

On June 26, 1992, respondent became an Australian citizen, as shown by a"Certificate of Australian Citizenship" issued by the Australian

government.6Petitioner a Filipina and respondent were married onJanuary 12, 1994 in Our Lady of Perpetual Help Church in CabanatuanCity.7 In their application for a marriage license, respondent was declared as"single" and "Filipino."8

Starting October 22, 1995, petitioner and respondent lived separately withouprior judicial dissolution of their marriage. While the two were still in Australiatheir conjugal assets were divided on May 16, 1996, in accordance with theirStatutory Declarations secured in Australia.9

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity ofMarriage10 in the court a quo, on the ground of bigamy respondentallegedly had a prior subsisting marriage at the time he married her onJanuary 12, 1994. She claimed that she learned of respondent's marriage toEditha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he hadrevealed to petitioner his prior marriage andits subsequent dissolution.11 Hecontended that his first marriage to an Australian citizen had been validlydissolved by a divorce decree obtained in Australian in 1989; 12 thus, he waslegally capacitated to marry petitioner in 1994.1wphi1.nt

On July 7, 1998 or about five years after the couple's wedding and whilethe suit for the declaration of nullity was pending respondent was able to

secure a divorce decree from a family court in Sydney, Australia because the"marriage ha[d] irretrievably broken down."13

Respondent prayed in his Answer that the Complained be dismissed on theground that it stated no cause of action.14 The Office of the Solicitor Generalagreed with respondent.15The court marked and admitted the documentaryevidence of both parties.16After they submitted their respective memoranda,the case was submitted for resolution.17

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorceissued in Australia was valid and recognized in the Philippines. It deemed themarriage ended, but not on the basis of any defect in an essential element ofthe marriage; that is, respondent's alleged lack of legal capacity to remarry.Rather, it based its Decision on the divorce decree obtained by respondent.The Australian divorce had ended the marriage; thus, there was no moremartial union to nullify or annual.

Hence, this Petition.18

Issues

Petitioner submits the following issues for our consideration:

"I

The trial court gravely erred in finding that the divorce decreeobtained in Australia by the respondent ipso facto terminated hisfirst marriage to Editha Samson thereby capacitating him tocontract a second marriage with the petitioner.

"2

The failure of the respondent, who is now a naturalizedAustralian, to present a certificate of legal capacity to marryconstitutes absence of a substantial requisite voiding thepetitioner' marriage to the respondent.

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"3

The trial court seriously erred in the application of Art. 26 of theFamily Code in this case.

"4

The trial court patently and grievously erred in disregarding Arts.11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicableprovisions in this case.

"5

The trial court gravely erred in pronouncing that the divorcegravely erred in pronouncing that the divorce decree obtained bythe respondent in Australia ipso facto capacitated the parties toremarry, without first securing a recognition of the judgmentgranting the divorce decree before our courts."19

The Petition raises five issues, but for purposes of this Decision, we shallconcentrate on two pivotal ones: (1) whether the divorce betweenrespondent and Editha Samson was proven, and (2) whether respondentwas proven to be legally capacitated to marry petitioner. Because of our

ruling on these two, there is no more necessity to take up the rest.

The Court's Ruling

The Petition is partly meritorious.

First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce betweenrespondent and Editha Samson. Citing Adong v. Cheong SengGee,20petitioner argues that the divorce decree, like any other foreignjudgment, may be given recognition in this jurisdiction only upon proof of theexistence of (1) the foreign law allowing absolute divorce and (2) the allegeddivorce decree itself. She adds that respondent miserably failed to establishthese elements.

Petitioner adds that, based on the first paragraph of Article 26 of the FamilyCode, marriages solemnized abroad are governed by the law of the placewhere they were celebrated (the lex loci celebrationist). In effect, the Coderequires the presentation of the foreign law to show the conformity of themarriage in question to the legal requirements of the place where themarriage was performed.

At the outset, we lay the following basic legal principles as the take-off pointsfor our discussion. Philippine law does not provide for absolute divorce;hence, our courts cannot grant it.21 A marriage between two Filipinos cannotbe dissolved even by a divorce obtained abroad, because of Articles1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino anda foreigner, Article 2625of the Family Code allows the former to contract asubsequent marriage in case the divorce is "validly obtained abroad by thealien spouse capacitating him or her to remarry."26A divorce obtainedabroad by a couple, who are both aliens, may be recognized in thePhilippines, provided it is consistent with their respective national laws.27

A comparison between marriage and divorce, as far as pleading and proofare concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliensmay obtain divorces abroad, which may be recognized in the Philippines,provided they are valid according to their national law."28Therefore, before aforeign divorce decree can be recognized by our courts, the party pleading it

must prove the divorce as a fact and demonstrate its conformity to theforeign law allowing it.29 Presentation solely of the divorce decree isinsufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, itmust first comply with the registration requirements under Articles 11, 13 and52 of the Family Code. These articles read as follows:

"ART. 11. Where a marriage license is required, each of thecontracting parties shall file separately a sworn application forsuch license with the proper local c ivil registrar which shall specifythe following:

x x x x x x x x x

"(5) If previously married, how, when and where the previousmarriage was dissolved or annulled;

x x x x x x x x x

"ART. 13. In case either of the contracting parties has been

previously married, the applicant shall be required to furnish,instead of the birth of baptismal certificate required in the lastpreceding article, the death certificate of the deceased spouse orthe judicial decree of annulment or declaration of nullity of his orher previous marriage. x x x.

"ART. 52. The judgment of annulment or of absolute nullity of themarriage, the partition and distribution of the properties of thespouses, and the delivery of the children's presumptive legitimesshall be recorded in the appropriate civil registry and registries ofproperty; otherwise, the same shall not affect their persons."

Respondent, on the other hand, argues that the Australian divorce decree isa public document a written official act of an Australian family court.

Therefore, it requires no further proof of its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is givenpresumptive evidentiary value, the document must first be presented andadmitted in evidence.30A divorce obtained abroad is proven by the divorcedecree itself. Indeed the best evidence of a judgment is the judgmentitself.31 The decree purports to be a written act or record of an act of anofficially body or t ribunal of a foreign country.32

Under Sections 24 and 25 of Rule 132, on the other hand, a writing ordocument may be proven as a public or official record of a foreign country byeither (1) an official publication or (2) a copy thereof attested33 by the officerhaving legal custody of the document. If the record is not kept in thePhilippines, such copy must be (a) accompanied by a certificate issued by

the proper diplomatic or consular officer in the Philippine foreign servicestationed in the foreign country in which the record is kept and (b)authenticated by the seal of his office.34

The divorce decree between respondent and Editha Samson appears to bean authentic one issued by an Australian family court.35However,appearance is not sufficient; compliance with the aforemetioned rules onevidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18,1989 was submitted in evidence, counsel for petitioner objected, not to itsadmissibility, but only to the fact that it had not been registered in the LocalCivil Registry of Cabanatuan City.36The trial court ruled that it wasadmissible, subject to petitioner's qualification.37Hence, it was admitted in

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evidence and accorded weight by the judge. Indeed, petitioner's failure toobject properly rendered the divorce decree admissible as a written act of theFamily Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code isnot necessary; respondent was no longer bound by Philippine personal lawsafter he acquired Australian citizenship in 1992.39 Naturalization is the legalact of adopting an alien and clothing him with the political and civil rightsbelonging to a citizen.40Naturalized citizens, freed from the protective cloakof their former states, don the attires of their adoptive countries. By becoming

an Australian, respondent severed his allegiance to the Philippines andthe vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law fallsupon petitioner, because she is the party challenging the validity of a foreignjudgment. He contends that petitioner was satisfied with the original of thedivorce decree and was cognizant of the marital laws of Australia, becauseshe had lived and worked in that country for quite a long time. Besides, theAustralian divorce law is allegedly known by Philippine courts: thus, judgesmay take judicial notice of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with "the party who alleges

the existence of a fact or thing necessary in the prosecution or defense of anaction."41 In civil cases, plaintiffs have the burden of proving the materialallegations of the complaint when those are denied by the answer; anddefendants have the burden of proving the material allegations in theiranswer when they introduce new matters.42 Since the divorce was a defenseraised by respondent, the burden of proving the pertinent Australian lawvalidating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice offoreign laws.43 Like any other facts, they must be alleged and proved.Australian marital laws are not among those matters that judges aresupposed to know by reason of their judicial function. 44 The power of judicialnotice must be exercised with caution, and every reasonable doubt upon thesubject should be resolved in the negative.

Second Issue:

Respondent's Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce,respondent was legally incapacitated to marry her in 1994.

Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validlyadmitted in evidence, adequately established his legal capacity to marryunder Australian law.

Respondent's contention is untenable. In its strict legal sense, divorce meansthe legal dissolution of a lawful union for a cause arising after marriage. Butdivorces are of different types. The two basic ones are (1) absolute divorceor a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The firstkind terminates the marriage, while the second suspends it and leaves thebond in full force.45There is no showing in the case at bar which type ofdivorce was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree aconditional or provisional judgment of divorce. It is in effect the same as aseparation from bed and board, although an absolute divorce may followafter the lapse of the prescribed period during which no reconciliation iseffected.46

Even after the divorce becomes absolute, the court may under some foreignstatutes and practices, still restrict remarriage. Under some otherjurisdictions, remarriage may be limited by statute; thus, the guilty party in adivorce which was granted on the ground of adultery may be prohibited fromremarrying again. The court may allow a remarriage only after proof of goodbehavior.47

On its face, the herein Australian divorce decree contains a restriction thatreads:

"1. A party to a marriage who marries again before this decreebecomes absolute (unless the other party has died) commits theoffence of bigamy."48

This quotation bolsters our contention that the divorce obtained byrespondent may have been restricted. It did not absolutely establish his legalcapacity to remarry according to his national law. Hence, we find no basis forthe ruling of the trial court, which erroneously assumed that the Australiandivorce ipso facto restored respondent's capacity to remarry despite thepaucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree raises adisputable presumption or presumptive evidence as to his civil status basedon Section 48, Rule 3949 of the Rules of Court, for the simple reason that no

proof has been presented on the legal effects of the divorce decree obtainedunder Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 othe Family Code was not submitted together with the application for amarriage license. According to her, its absence is proof that respondent didnot have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determinedby the national law of the party concerned. The certificate mentioned inArticle 21 of the Family Code would have been sufficient to establish thelegal capacity of respondent, had he duly presented it in court. A duly

authenticated and admitted certificate is prima facie evidence of legalcapacity to marry on the part of the alien applicant for a marriage license. 50

As it is, however, there is absolutely no evidence that proves respondent'slegal capacity to marry petitioner. A review of the records before this Courtshows that only the following exhibits were presented before the lower court:(1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B" Certificate ofMarriage Between Rederick A. Recto (Filipino-Australian) and Grace J.Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52(c)Exhibit "C" Certificate of Marriage Between Rederick A. Recio (Filipino)and Editha D. Samson (Australian) on March 1, 1987 in Malabon, MetroManila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan CityCertification that no information of annulment between Rederick A. Rectoand Editha D. Samson was in its records;54 and (e) Exhibit "E" Certificate o

Australian Citizenship of Rederick A. Recto;55

(2) for respondent: (Exhibit "1" Amended Answer;56(b) Exhibit "S" Family Law Act 1975 Decree Nisi ofDissolution of Marriage in the Family Court of Australia; 57(c) Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto;58(d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of AustraliaCertificate;59 and Exhibit "5" Statutory Declaration of the Legal SeparationBetween Rederick A. Recto and Grace J. Garcia Recio since October 22,1995.60

Based on the above records, we cannot conclude that respondent, who wasthen a naturalized Australian citizen, was legally capacitated to marrypetitioner on January 12, 1994. We agree with petitioner's contention that thecourt a quo erred in finding that the divorce decree ipso facto clothedrespondent with the legal capacity to remarry without requiring him to adduce

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sufficient evidence to show the Australian personal law governing his status;or at the very least, to prove his legal capacity to contract the secondmarriage.

Neither can we grant petitioner's prayer to declare her marriage torespondent null and void on the ground of bigamy. After all, it may turn outthat under Australian law, he was really capacitated to marry petitioner as adirect result of the divorce decree. Hence, we believe that the most judiciouscourse is to remand this case to the trial court to receive evidence, if any,which show petitioner's legal capacity to marry petitioner. Failing in that, then

the court a quo may declare a nullity of the parties' marriage on the ground ofbigamy, there being already in evidence two existing marriage certificates,which were both obtained in the Philippines, one in Malabon, Metro Maniladated March 1, 1987 and the other, in Cabanatuan City dated January 12,1994.

WHEREFORE, in the interest of orderly procedure and substantial justice,we REMAND the case to the court a quo for the purpose of receivingevidence which conclusively show respondent's legal capacity to marrypetitioner; and failing in that, of declaring the parties' marriage void on theground of bigamy, as above discussed. No costs.

SO ORDERED.

Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Baguio City

FIRST DIVISION

G.R. No. 137873 April 20, 2001

D. M. CONSUNJI, INC., petitioner,vs.COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction workerof D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig Cityto his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated thetragedy and filed a report dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center inPasig, Metro Manila where he was pronounced dead on arrival(DOA) by the attending physician, Dr. Errol de Yzo[,] at around2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place,while victim Jose A. Juego together with Jessie Jaluag and DelsoDestajo [were] performing their work as carpenter[s] at theelevator core of the 14th floor of the Tower D, Renaissance TowerBuilding on board a [p]latform made of channel beam (steel)measuring 4.8 meters by 2 meters wide with pinulid plywoodflooring and cable wires attached to its four corners and hooked atthe 5 ton chain block, when suddenly, the bolt or pin which wasmerely inserted to connect the chain block with the [p]latform, gotloose xxx causing the whole [p]latform assembly and the victim tofall down to the basement of the elevator core, Tower D of the

building under construction thereby crushing the victim of death,save his two (2) companions who luckily jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death whenthe [p]latform he was then on board and performing work, fell.And the falling of the [p]latform was due to the removal or gettingloose of the pin which was merely inserted to the connectingpoints of the chain block and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court

(RTC) of Pasig a complaint for damages against the deceaseds employer,D.M. Consunji, Inc. The employer raised, among other defenses, the widowsprior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego.The dispositive portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendantto pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earningcapacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorneys fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed thedecision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the followinggrounds:

y THE APPELLATE COURT ERRED IN HOLDINGTHAT THE POLICE REPORT WAS ADMISSIBLEEVIDENCE OF THE ALLEGED NEGLIGENCE OFPETITIONER.

y THE APPELLATE COURT ERRED IN HOLDINGTHAT THE DOCTRINE OF RES IPSALOQUITOR [sic] IS APPLICABLE TO PROVENEGLIGENCE ON THE PART OF PETITIONER.

yTHE APPELLATE COURT ERRED IN HOLDINGTHAT PETITIONER IS PRESUMED NEGLIGENTUNDER ARTICLE 2180 OF THE CIVIL CODE, AND

y THE APPELLATE COURT ERRED IN HOLDINGTHAT RESPONDENT IS NOT PRECLUDED FROMRECOVERING DAMAGES UNDER THE CIVILCODE.3

Petitioner maintains that the police report reproduced above is hearsay and,therefore, inadmissible. The CA ruled otherwise. It held that said report,being an entry in official records, is an exception to the hearsay rule.

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building the day after the incident13 and saw the platform for himself.14 Heobserved that the platform was crushed15and that it was totallydamaged.16PO3 Villanueva also required Garcia and Fabro to bring thechain block to the police headquarters. Upon inspection, he noticed that thechain was detached from the lifting machine, without any pin or bolt. 17

What petitioner takes particular exception to is PO3 Villanuevas testimonythat the cause of the fall of the platform was the loosening of the bolt fromthe chain block. It is claimed that such portion of the testimony is mereopinion. Subject to certain exceptions,18 the opinion of a witness is generally

not admissible.19

Petitioners contention, however, loses relevance in the face of theapplication of res ipsa loquitur by the CA. The effect of the doctrine is towarrant a presumption or inference that the mere fall of the elevator was aresult of the person having charge of the instrumentality was negligent. As arule of evidence, the doctrine of res ipsa loquituris peculiar to the law ofnegligence which recognizes that prima facie negligence may be establishedwithout direct proof and furnishes a substitute for specific proof ofnegligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while

the mere happening of an accident or injury will not generally giverise to an inference or presumption that it was due to negligenceon defendants part, under the doctrine of res ipsa loquitur, whichmeans, literally, the thing or transaction speaks for itself, or in onejurisdiction, that the thing or instrumentality speaks for itself, thefacts or circumstances accompanying an injury may be such as toraise a presumption, or at least permit an inference of negligenceon th