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Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. L-6339 April 20, 1954

MANUEL LARA, ET AL., plaintiffs-appellants,vs.

PETRONILO DEL ROSARIO, JR., defendant-appellee.

Manansala and Manansala for appellants.

Ramon L. Resurreccion for appellee.

MONTEMAYOR,J.:

In 1950 defendant Petronilo del Rosario, Jr., owner of

twenty-five taxi cabs or cars, operated a taxi business under

the name of "Waval Taxi." He employed among others threemechanics and 49 chauffeurs or drivers, the latter having

worked for periods ranging from 2 to 37 months. On

September 4, 1950, without giving said mechanics and

chauffeurs 30 days advance notice, Del Rosario sold his 25

units or cabs to La Mallorca, a transportation company, as a

result of which, according to the mechanics and chauffeurs

above-mentioned they lost their jobs because the La

Mallorca failed to continue them in their employment. They

brought this action against Del Rosario to recover

compensation for overtime work rendered beyond eighthours and on Sundays and legal holidays, and one month

salary (mesada) provided for in article 302 of the Code of

Commerce because the failure of their former employer to

give them one month notice. Subsequently, the three

mechanics unconditionally withdrew their claims. So only

the 49 drivers remained as plaintiffs. The defendant filed a

motion for dismissal of the complaint on the ground that it

stated no cause of action and the trial court for the time

being denied the motion saying that it will be considered

when the case was heard on the merits. After trial the

complaint was dismissed. Plaintiffs appealed from the order

of dismissal to the Court of Appeals which Tribunal after

finding only questions of law are involved, certified the case

to us.

The parties are agreed that the plaintiffs as chauffeurs

received no fixed compensation based on the hours or the

period of time that they worked. Rather, they were paid on

the commission basis, that is to say, each driver received 20per cent of the gross returns or earnings from the operation

of his taxi cab. Plaintiffs claim that as a rule, each drive

operated a taxi 12 hours a day with gross earnings ranging

from P20 to P25, receiving therefrom the corresponding 20

per cent share ranging from P4 to P5, and that in some

cases, especially during Saturdays, Sundays, and holidays

when a driver worked 24 hours a day he grossed from P40

to P50, thereby receiving a share of from P8 to P10 for the

period of twenty-four hours.

The reason given by the trial court in dismissing thecomplaint is that the defendant being engaged in the taxi or

transportation business which is a public utility, came under

the exception provided by the Eight-Hour Labor Law

(Commonwealth Act No. 444); and because plaintiffs did not

work on a salary basis, that is to say, they had no fixed or

regular salary or remuneration other than the 20 per cent of

their gross earnings "their situation was therefore practically

similar to piece workers and hence, outside the ambit of

article 302 of the Code of Commerce."

For purposes of reference we are reproducing the pertinent

provisions of the Eight-Hour Labor Law, namely, sections 1

to 4.

SECTION 1. The legal working day for any person employed

by another shall not be more than eight hours daily. When

the work is not continuous, the time during which the

laborer is not working and can leave his working place and

can rest completely shall not be counted.

SEC. 2. This Act shall apply to all persons employed in any

industry or occupation, whether public or private, with the


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exception of farm laborers, laborers who prefer to be paid

on piece work basis, domestic servants and persons in the

personal service of another and members of the family of

the employer working for him.

SEC. 3. Work may be performed beyond eight hours a day in

case of actual or impending emergencies, caused by serious

accidents, fire flood, typhoon, earthquakes, epidemic, orother disaster or calamity in order to prevent loss of life and

property or imminent danger to public safety; or in case of

urgent work to be performed on the machines, equipment,

or installations in order to avoid a serious loss which the

employer would otherwise suffer, or some other just cause

of a similar nature; but in all cases the laborers and the

employees shall be entitled to receive compensation for the

overtime work performed at the same rate as their regular

wages or salary, plus at least twenty-five per centum

additional.

In case of national emergency the Government is

empowered to establish rules and regulations for the

operation of the plants and factories and to determine the

wages to be paid the laborers.

SEC. 4. No person, firm, or corporation, business

establishment or place or center of work shall compel an

employee or laborer to work during Sundays and legal

holidays, unless he is paid an additional sum of at least

twenty-five per centum of his regular

remuneration: Provided however, That this prohibition shall

not apply to public utilities performing some public service

such as supplying gas, electricity, power, water, or providing

means of transportation or communication.

Under section 4, as a public utility, the defendant could

have his chauffeurs work on Sundays and legal holidays

without paying them an additional sum of at least 25 per

cent of their regular remuneration: but that with reference

only to work performed on Sundays and holidays. If the work

done on such days exceeds 8 hours a day, then the Eight-Hour Labor Law would operate, provided of course that

plaintiffs came under section 2 of the said law. So that the

question to be decided here is whether or not plaintiffs are

entitled to extra compensation for work performed in excess

of 8 hours a day, Sundays and holidays included.

It will be noticed that the last part of section 3 of

Commonwealth Act 444 provides for extra compensation for

over-time work "at the same rate as their regular wages orsalary, plus at least twenty-five per centum additional'" and

that section 2 of the same act excludes application thereof

laborers who preferred to be on piece work basis. This

connotes that a laborer or employee with no fixed salary,

wages or remuneration but receiving as compensation from

his employer uncertain and variable amount depending

upon the work done or the result of said work (piece work)

irrespective of the amount of time employed, is not covered

by the Eight-Hour Labor Law and is not entitled to extra

compensation should he work in excess of 8 hours a day.

And this seems to be the condition of employment of the

plaintiffs. A driver in the taxi business of the defendant, like

the plaintiffs, in one day could operate his taxi cab eight

hours, or less than eight hours or in excess of 8 hours, or

even 24 hours on Saturdays, Sundays, and holidays, with no

limit or restriction other than his desire, inclination and state

of health and physical endurance. He could drive

continuously or intermittently, systematically or

haphazardly, fast or slow, etc. depending upon his exclusive

wish or inclination. One day when he feels strong, active and

enthusiastic he works long, continuously, with diligence andindustry and makes considerable gross returns and receives

as much as his 20 per cent commission. Another day when

he feels despondent, run down, weak or lazy and wants to

rest between trips and works for less number of hours, his

gross returns are less and so is his commission. In other

words, his compensation for the day depends upon the

result of his work, which in turn depends on the amount of

industry, intelligence and experience applied to it, rather

than the period of time employed. In short, he has no fixed

salary or wages. In this we agree with the learned trial court


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presided by Judge Felicisimo Ocampo which makes the

following findings and observations of this point.

. . . As already stated, their earnings were in the form of

commission based on the gross receipts of the day. Their

participation in most cases depended upon their own

industry. So much so that the more hours they stayed on

the road, the greater the gross returns and the higher theircommissions. They have no fixed hours of labor. They can

retire at pleasure, they not being paid a fixed salary on the

hourly, daily, weekly or monthly basis.

It results that the working hours of the plaintiffs as taxi

drivers were entirely characterized by its irregularity, as

distinguished from the specific regular remuneration

predicated on specific and regular hours of work of factories

and commercial employees.

In the case of the plaintiffs, it is the result of their labor, notthe labor itself, which determines their commissions. They

worked under no compulsion of turning a fixed income for

each given day. . . ..

In an opinion dated June 1, 1939 (Opinion No. 115) modified

by Opinion No. 22, series 1940, dated June 11, 1940, the

Secretary of Justice held that chauffeurs of the Manila Yellow

Taxicab Co. who "observed in a loose way certain working

hours daily," and "the time they report for work as well as

the time they leave work was left to their discretion.,"

receiving no fixed salary but only 20 per cent of their grossearnings, may be considered as piece workers and therefore

not covered by the provisions of the Eight-Hour Labor Law.

The Wage Administration Service of the Department of

Labor in its Interpretative Bulletin No. 2 dated May 28, 1953,

under "Overtime Compensation," in section 3 thereof

entitled Coverage, says:

The provisions of this bulletin on overtime

compensation shall apply to all persons employed in any

industry or occupation, whether public or private, with

the exception of farm laborers, non-agricultural laborers or

employees who are paid on piece work, contract, pakiao,

task or commission basis, domestic servants and persons in

the personal service of another and members of the family

of the employer working for him.

From all this, to us it is clear that the claim of the plaintiffs-

appellants for overtime compensation under the Eight-HourLabor Law has no valid support.

As to the month pay (mesada) under article 302 of the Code

of Commerce, article 2270 of the new Civil Code (Republic

Act 386) appears to have repealed said Article 302 when it

repealed the provisions of the Code of Commerce governing

Agency. This repeal took place on August 30, 1950, when

the new Civil Code went into effect, that is, one year after its

publication in the Official Gazette. The alleged termination

of services of the plaintiffs by the defendant took place

according to the complaint on September 4, 1950, that is tosay, after the repeal of Article 302 which they invoke.

Moreover, said Article 302 of the Code of Commerce,

assuming that it were still in force speaks of "salary

corresponding to said month." commonly known as

"mesada." If the plaintiffs herein had no fixed salary either

by the day, week or month, then computation of the

month's salary payable would be impossible. Article 302

refers to employees receiving a fixed salary. Dr. Arturo M.

Tolentino in his book entitled "Commentaries and

Jurisprudence on the Commercial Laws of the Philippines,"Vol. 1, 4th edition, p. 160, says that article 302 is not

applicable to employees without fixed salary. We quote

Employees not entitled to indemnity. This article refers

only to those who are engaged under salary basis, and not

to those who only receive compensation equivalent to

whatever service they may render. (1 Malagarriga 314,

citing decision of Argentina Court of Appeals on Commercial

Matters.)

In view of the foregoing, the order appealed from is herebyaffirmed, with costs against appellants.


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Pablo, Bengzon, Padilla, Reyes, Jugo, Bautista Angelo,

Labrador, Concepcion, and Diokno, JJ., concur.

Paras, C.J., concurs in the result.


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SUPREME COURTManila

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 of Manila, finding him guilty of violating

Central Bank Circular No. 20 in connection with section 34 of

Republic Act No. 265, and sentencing him to suffer six

months imprisonment, to pay a fine of P1,000 with

subsidiary imprisonment in case of insolvency, and to pay

the costs.

The charge was that the appellant who was in possession of

foreign exchange consisting of U.S. dollars, U.S. checks and

U.S. money orders amounting to about $7,000 failed to sellthe same to the Central Bank through its agents within one

day following the receipt of such foreign exchange as

required by Circular No. 20. the appeal is based on the claim

that said circular No. 20 was not published in the Official

Gazette prior to the act or omission imputed to the

appellant, and that consequently, said circular had no force

and effect. It is contended that Commonwealth Act. No., 638

and Act 2930 both require said circular to be published in

the Official Gazette, it being an order or notice of general

applicability. The Solicitor General answering this contentionsays that Commonwealth Act. No. 638 and 2930 do not

require the publication in the Official Gazette of said circular

issued for the implementation of a law in order to have force

and effect.

We agree with the Solicitor General that the laws in question

do not require the publication of the circulars, regulations

and notices therein mentioned in order to become binding

and effective. All that said two laws provide is that laws,resolutions, decisions of the Supreme Court and Court of

Appeals, notices and documents required by law to be of no

force and effect. In other words, said two Acts merely

enumerate and make a list of what should be published in

the Official Gazette, presumably, for the guidance of the

different branches of the Government issuing same, and of

the Bureau of Printing.

However, section 11 of the Revised Administrative Code

provides that statutes passed by Congress shall, in the

absence of special provision, take effect at the beginning ofthe fifteenth day after the completion of the publication of

the statute in the Official Gazette. Article 2 of the new Civil

Code (Republic Act No. 386) equally provides that laws shall

take effect after fifteen days following the completion of

their publication in the Official Gazette, unless it is otherwise

provided. It is true that Circular No. 20 of the Central Bank is

not a statute or law but being issued for the implementation

of the law authorizing its issuance, it has the force and

effect of law according to settled jurisprudence. (See

U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities citedtherein.) Moreover, as a rule, circulars and regulations

especially like the Circular No. 20 of the Central Bank in

question which prescribes a penalty for its violation should

be published before becoming effective, this, on the general

principle and theory that before the public is bound by its

contents, especially its penal provisions, a law, regulation or

circular must first be published and the people officially and

specifically informed of said contents and its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889) has a

similar provision about the effectivity of laws, (Article 1


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thereof), namely, that laws shall be binding twenty days

after their promulgation, and that their promulgation shall

be understood as made on the day of the termination of the

publication of the laws in the Gazette. Manresa, commenting

on this article is of the opinion that the word "laws" include

regulations and circulars issued in accordance with the

same. He says:

El Tribunal Supremo, ha interpretado el articulo 1. del

codigo Civil en Sentencia de 22 de Junio de 1910, en el

sentido de que bajo la denominacion generica de leyes, se

comprenden tambien los Reglamentos, Reales decretos,

Instrucciones, Circulares y Reales ordenes dictadas de

conformidad con las mismas por el Gobierno en uso de su

potestad. Tambien el poder ejecutivo lo ha venido

entendiendo asi, como lo prueba el hecho de que muchas

de sus disposiciones contienen la advertencia de que

empiezan a regir el mismo dia de su publicacion en la

Gaceta, advertencia que seria perfectamente inutil si no

fuera de aplicacion al caso el articulo 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 issued in the year 1949, it was not published until

November 1951, that is, about 3 months after appellant's

conviction of its violation. It is clear that said circular,

particularly its penal provision, did not have any legal effect

and bound no one until its publication in the Official

Gazzette or after November 1951. In other words, appellantcould not be held liable for its violation, for it was not

binding at the time he was found to have failed to sell the

foreign exchange in his possession thereof.

But the Solicitor General also contends that this question of

non-publication of the Circular is being raised for the first

time on appeal in this Court, which cannot be done by

appellant. Ordinarily, one may raise on appeal any question

of law or fact that has been raised in the court below and

which is within the issues made by the parties in their

pleadings. (Section 19, Rule 48 of the Rules of Court). But

the question of non-publication is fundamental and decisive.

If as a matter of fact Circular No. 20 had not been published

as required by law before its violation, then in the eyes of

the law there was no such circular to be violated and

consequently appellant committed no violation of the

circular or committed any offense, and the trial court may

be said to have had no jurisdiction. This question may be

raised at any stage of the proceeding whether or not raisedin the court below.

In view of the foregoing, we reverse the decision appealed

from and acquit the appellant, with costs de oficio.

Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo,

Labrador, Concepcion and Diokno, JJ., concur.


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SUPREME COURTManila

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

LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, andMOVEMENT OF ATTORNEYS FOR BROTHERHOOD,INTEGRITY AND NATIONALISM, INC.(MABINI), petitioners,vs.

HON. JUAN C. TUVERA, in his capacity as ExecutiveAssistant to the President, HON. JOAQUIN VENUS, inhis capacity as Deputy Executive Assistant to thePresident, MELQUIADES P. DE LA CRUZ, ETC., ETAL., respondents.

R E S O L U T I O N

CRUZ,J.:

Due process was invoked by the petitioners in demanding

the disclosure of a number of presidential decrees which

they claimed had not been published as required by law.

The government argued that while publication was

necessary as a rule, it was not so when it was "otherwise

provided," as when the decrees themselves declared that

they were to become effective immediately upon their

approval. In the decision of this case on April 24, 1985, the

Court affirmed the necessity for the publication of some of

these decrees, declaring in the dispositive portion as

follows:

WHEREFORE, the Court hereby orders respondents to

publish in the Official Gazette all unpublished presidential

issuances which are of general application, and unless so

published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move

for reconsideration/clarification of that

decision. 1Specifically, they ask the following 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 laws which 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 no distinction between laws of general

applicability and those which are not; that publication

means complete publication; and that the publication mustbe made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he

claimed first that the motion was a request for an advisory

opinion and should therefore be dismissed, and, on the

merits, that the clause "unless it is otherwise provided" in

Article 2 of the Civil Code meant that the publication

required therein was not always imperative; that

publication, when necessary, did not have to be made in the

Official Gazette; and that in any case the subject decision

was concurred in only by three justices and consequently

not binding. This elicited a Reply 4 refuting these arguments.

Came next the February Revolution and the Court required

the new Solicitor General to file a Rejoinder in view of the

supervening events, under Rule 3, Section 18, of the Rules

of Court. Responding, he submitted that issuances intended

only for the internal administration of a government agency

or for particular persons did not have to be 'Published; that

publication when necessary must be in full and in the

Official Gazette; and that, however, the decision under


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reconsideration was not binding because it was not

supported by eight members 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 of their publication in the Official Gazette, unless

it is otherwise provided. This Code 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 the conclusion 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 the legislature may make the law

effective immediately upon approval, or on any other date,without its previous publication.

Publication is indispensable in every case, but the

legislature may in its discretion provide that the usual

fifteen-day period shall be shortened or extended. An

example, as pointed out by the present Chief Justice in his

separate concurrence in the original decision, 6 is the Civil

Code which did not become effective after fifteen days from

its publication in the Official Gazette but "one year after

such publication." The general rule did not apply because it

was "otherwise provided. "

It is not correct to say that under the disputed clause

publication may be dispensed with altogether. The reason.

is that such omission would offend due process insofar as it

would deny the public knowledge of the laws that are

supposed to govern the legislature could validly provide that

a law e effective immediately upon its approval

notwithstanding the lack of publication (or after an

unreasonably short period after publication), it is not

unlikely that persons not aware of it would be prejudiced as

a result and they would be so not because of a failure to

comply with but simply because they did not know of its

existence, Significantly, this is not true only of penal laws as

is commonly supposed. One can think of many non-penal

measures, like a law on prescription, which must also be

communicated to the persons they may affect before they

can begin to operate.

We note at this point the conclusive presumption that everyperson knows the law, which of course presupposes that the

law has been published if the presumption is to have any

legal justification at all. It is no less important to remember

that Section 6 of the Bill of Rights recognizes "the right of

the people to information on matters of public concern," and

this certainly applies to, among others, and indeed

especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to

those of general application, for strictly speaking all laws

relate to the people in general albeit there are some that donot apply to them directly. An example is a law granting

citizenship to a particular individual, like a relative of

President Marcos who was decreed instant naturalization. It

surely cannot be said that such a law does not affect the

public although it unquestionably does not apply directly to

all the people. The subject of such law is a matter of public

interest which any member of the body politic may question

in the political forums or, if he is a proper party, even in the

courts of justice. In fact, a law without any bearing on the

public would be invalid as an intrusion of privacy or as classlegislation or as anultra vires act of the legislature. To be

valid, the law must invariably affect the public interest even

if it might be directly applicable only to one individual, or

some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local

application and private laws, shall be published as a

condition for their effectivity, which shall begin fifteen days

after publication unless a different effectivity date is fixed

by the legislature.


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Covered by this rule are presidential decrees and executive

orders promulgated by the President in the exercise of

legislative powers whenever the same are validly delegated

by the legislature or, at present, directly conferred by the

Constitution. administrative rules and regulations must a

also be published if their purpose is to enforce or implement

existing law pursuant 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 public, need not be

published. Neither is publication required of the so-called

letters of instructions issued by administrative superiors

concerning the rules or guidelines to be followed by their

subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published

notwithstanding that it applies to only a portion of the

national territory and directly affects only the inhabitants ofthat place. All presidential decrees must be published,

including even, say, those naming a public place after a

favored individual or exempting him from certain

prohibitions or requirements. The circulars issued by the

Monetary Board must be published if they are meant not

merely to interpret but to "fill in the details" of the Central

Bank Act which that body 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 for adoption or the rules laid

down by the head of a government agency on the

assignments or workload of his personnel or the wearing of

office uniforms. Parenthetically, municipal ordinances are

not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no

publication at all since its purpose is to inform the public of

the contents of the laws. As correctly pointed out by the

petitioners, the mere mention of the number of the

presidential decree, the title of such decree, its whereabouts(e.g., "with Secretary Tuvera"), the supposed date of

effectivity, and in a mere supplement of the Official Gazette

cannot satisfy the publication requirement. This is not even

substantial compliance. This was the manner, incidentally,

in which the General Appropriations Act for FY 1975, a

presidential decree undeniably of general applicability and

interest, was "published" by the Marcos

administration. 7 The evident purpose was to withhold rather

than disclose information on this vital law.

Coming now to the original decision, it is true that only four

justices were categorically for publication in the Official

Gazette 8 and that six others felt that publication could be

made elsewhere as long as the people were sufficiently

informed. 9 One reserved his vote 10 and another merely

acknowledged the need for due publication without

indicating where it should be made. 11 It is therefore

necessary for the present membership of this Court to arrive

at a clear consensus on this matter and to lay down a

binding decision supported by the necessary vote.

There is much to be said of the view that the publication

need not be made in the Official Gazette, considering its

erratic releases and limited readership. Undoubtedly,

newspapers of general circulation could better perform the

function of communicating, the laws to the people as such

periodicals are more easily available, have a wider

readership, and come out regularly. The trouble, though, is

that this kind of publication is not the one required or

authorized by existing law. As far as we know, noamendment has been made of Article 2 of the Civil Code.

The Solicitor General has not pointed to such a law, and we

have no information that it exists. If it does, it obviously has

not yet been published.

At any rate, this Court is not called upon to rule upon the

wisdom of a law or to repeal or modify it if we find it

impractical. That is not our function. That function belongs

to the legislature. Our task is merely to interpret and apply

the law as conceived and approved by the political

departments of the government in accordance with the


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prescribed procedure. Consequently, we have no choice but

to pronounce that under Article 2 of the Civil Code, the

publication of laws must be made in the Official Gazett and

not elsewhere, as a requirement for their effectivity after

fifteen days from such publication or after a different period

provided by the legislature.

We also hold that the publication must be made forthwith orat least as soon as possible, to give effect to the law

pursuant to the said Article 2. There is that possibility, of

course, although not suggested by the parties that a law

could be rendered unenforceable by a mere refusal of the

executive, for whatever 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 a request for an advisory opinion is

untenable, to say the least, and deserves no furthercomment.

The days of the secret laws and the unpublished decrees are

over. This is once again an open society, with all the acts of

the government subject to public scrutiny and available

always to public cognizance. This has to be so if our country

is to remain democratic, with sovereignty residing in the

people and all government authority emanating from them.

Although they have delegated the power of legislation, they

retain the authority to review the work of their delegatesand to ratify or reject it according to their lights, through

their freedom of expression and their right of suffrage. 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 of skulking in the shadows with their dark, deep

secrets. Mysterious pronouncements and rumored rules

cannot be recognized as binding unless their existence and

contents are confirmed by a valid publication intended to

make full disclosure and give proper notice to the people.

The furtive law is like a scabbarded saber that cannot feint

parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above

defined shall immediately upon their approval, or as soon

thereafter as possible, be published in full in the Official

Gazette, to become effective only after fifteen days from

their publication, or on another date specified by the

legislature, in accordance 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

distinguished colleague, Mr. Justice Isagani A. Cruz, I would

like to add a few observations. Even as a Member of the

defunct Batasang Pambansa, I took a strong stand against

the insidious manner by which the previous dispensation

had promulgated and made effective thousands of decrees,

executive orders, letters of instructions, etc. Never has the

law-making power which traditionally belongs to the

legislature been used and abused to satisfy the whims and

caprices of a one-man legislative mill as it happened in the

past regime. Thus, in those days, it was not surprising to

witness the sad spectacle of two presidential decrees

bearing the same number, although covering two different

subject matters. In point is the case of two presidential


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decrees bearing number 1686 issued on March 19, 1980,

one granting Philippine citizenship to Michael M. Keon the

then President's nephew and the other imposing a tax on

every motor vehicle equipped with airconditioner. This was

further exacerbated by the issuance of PD No. 1686-A also

on March 19, 1980 granting Philippine citizenship to

basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for

publication before any law may be made effective seeks

prevent abuses on the part of the lawmakers and, at the

same time, ensures to the people their constitutional right

to due process and to informationon matters of public

concern.

FELICIANO,J., concurring:

I agree entirely with the opinion of the court so eloquently

written by Mr. Justice Isagani A. Cruz. At the same time, Iwish to add a few statements to reflect my understanding of

what the Court is saying.

A statute which by its terms provides for its coming into

effect immediately upon approval thereof, is properly

interpreted as coming into effect immediately upon

publication thereof in the Official Gazette as provided in

Article 2 of the Civil Code. Such statute, in other words,

should not be regarded as purporting literally to come into

effect immediately upon its approval or enactment and

without need of publication. For so to interpret such statutewould be to collide with the constitutional obstacle posed by

the due process clause. The enforcement of prescriptions

which are both unknown to and unknowable by those

subjected to the statute, has been throughout history a

common tool of tyrannical governments. Such application

and enforcement constitutes at bottom a negation of the

fundamental principle of legality in the relations between a

government and its people.

At the same time, it is clear that the requirement of

publication of a statute in the Official Gazette, as

distinguished from any other medium such as a newspaper

of general circulation, is embodied in a statutory norm and

is not a constitutional command. The statutory norm is set

out in Article 2 of the Civil Code and is supported and

reinforced by Section 1 of Commonwealth Act No. 638 and

Section 35 of the Revised Administrative Code. A

specification of the Official Gazette as the prescribed

medium of publication may therefore be changed. Article 2of the Civil Code could, without creating a constitutional

problem, be amended by a subsequent statute providing,

for instance, for publication either in the Official Gazette or

in a newspaper of general circulation in the country. Until

such an amendatory statute is in fact enacted, Article 2 of

the Civil Code must be obeyed and publication effected in

the Official Gazette and not in any other medium.

Separate Opinions

FERNAN,J., concurring:

While concurring in the Court's opinion penned by my

distinguished colleague, Mr. Justice Isagani A. Cruz, I would

like to add a few observations. Even as a Member of the

defunct Batasang Pambansa, I took a strong stand against

the insidious manner by which the previous dispensation

had promulgated and made effective thousands of decrees,

executive orders, letters of instructions, etc. Never has the

law-making power which traditionally belongs to thelegislature been used and abused to satisfy the whims and

caprices of a one-man legislative mill as it happened in the

past regime. Thus, in those days, it was not surprising to

witness the sad spectacle of two presidential decrees

bearing the same number, although covering two different

subject matters. In point is the case of two presidential

decrees bearing number 1686 issued on March 19, 1980,

one granting Philippine citizenship to Michael M. Keon the

then President's nephew and the other imposing a tax on

every motor vehicle equipped with airconditioner. This wasfurther exacerbated by the issuance of PD No. 1686-A also


12/136

on March 19, 1980 granting Philippine citizenship to

basketball players Jeffrey Moore and Dennis George Still

The categorical statement by this Court on the need for

publication before any law may be made effective seeks

prevent abuses on the part of the lawmakers and, at the

same time, ensures to the people their constitutional right

to due process and to informationon matters of publicconcern.

FELICIANO,J., concurring:

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 to reflect my understanding of

what the Court is saying.

A statute which by its terms provides for its coming into

effect immediately upon approval thereof, is properly

interpreted as coming into effect immediately upon

publication thereof in the Official Gazette as provided in

Article 2 of the Civil Code. Such statute, in other words,

should not be regarded as purporting literally to come into

effect immediately upon its approval or enactment and

without need of publication. For so to interpret such statute

would be to collide with the constitutional obstacle posed by

the due process clause. The enforcement of prescriptions

which are both unknown to and unknowable by those

subjected to the statute, has been throughout history a

common tool of tyrannical governments. Such application

and enforcement constitutes at bottom a negation of the

fundamental principle of legality in the relations between a

government and its people.

At the same time, it is clear that the requirement of

publication of a statute in the Official Gazette, as

distinguished from any other medium such as a newspaper

of general circulation, is embodied in a statutory norm and

is not a constitutional command. The statutory norm is set

out in Article 2 of the Civil Code and is supported and

reinforced by Section 1 of Commonwealth Act No. 638 and

Section 35 of the Revised Administrative Code. A

specification of the Official Gazette as the prescribed

medium of publication may therefore be changed. Article 2

of the Civil Code could, without creating a constitutionalproblem, be amended by a subsequent statute providing,

for instance, for publication either in the Official Gazette or

in a newspaper of general circulation in the country. Until

such an amendatory statute is in fact enacted, Article 2 of

the Civil Code must be obeyed and publication effected in

the Official Gazette and not in any other medium.


13/136

SECOND DIVISION

[G.R. No. 108461. October 21, 1996]

PHILIPPINE INTERNATIONAL TRADINGCORPORATION,petitioners, vs. HON PRESIDING

JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC,MAKATI; REMINGTON INDUSTRIAL SALESCORPORATION; AND FIRESTONE CERAMIC,INC., respondents.

D E C I S I O N

TORRES, JR.,J.:

The PHILIPPINE INTERNATIONAL TRADING CORPORATION

(PITC, for brevity) filed this Petition for Review on Certiorari,

seeking the reversal of the Decision dated January 4,1993 of public respondent Hon. Zosimo Z. Angeles.

Presiding Judge of the Regional Trial Court of Makati, Branch

58, in civil Case No.92-158 entitled Remington Industrial

Sales Corporation, et. al. vs. Philippine Industrial Trading

Corporation.

The said decision upheld the Petition for Prohibition

and Mandamus of REMINGTON INDUSTRIAL SALES

CORPORATION (Remington, for brevity) and FIRESTONE

CERAMICS, INC. (Firestone, for brevity), and, in the process,

declared as null and void and unconstitutional, PITCs

Administrative Order No. SOCPEC 89-08-01 and its

appurtenant regulations. The dispositive portion of the

decision reads:

WHEREFORE, premises considered, judgment is hereby

rendered in favor of Petitioner and Intervenor and against

the Respondent, as follows:

1) Enjoining the further implementation by the

respondent of the following issuances relative to the


14/136

applications for importation of products from the Peoples

Republic of China, to wit:

a) Administrative Order No. SOCPEC 89-08-01

dated August 30, 1989 (Annex A, Amended petition);

b) Prescribed Export Undertaking Form (Annex B, Id.);

c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.);

d) Memorandum dated April 16, 1990 relative to

amendments of Administrative Order NO. SOCPEC 89-08-01

(Annex D, Id.);

e) Memorandum dated May 6, 1991 relative to Revised

Schedule of Fees for the processing of import applications

(Annexes E, E-1., Ind.);

f) Rules and Regulations relative to liquidation ofunfulfilled Undertakings and expired export credits (Annex

Z, Supplemental Petition),

the foregoing being all null and void and unconstitutional;

and,

2) Commanding respondent to approve forthwith all

the pending applications of, and all those that may hereafter

be filed by, the petitioner and the Intervenor, free from and

without the requirements prescribed in a the above-

mentioned issuance.

IT IS SO ORDERED."

The controversy springs from the issuance by the PITC of

Administrative Order No. SOCPEC 89-08-01,[1] under which,

applications to the PITC for importation from the Peoples

Republic of China (PROC. for brevity) must be accompanied

by a viable and confirmed Export Program of Philippine

Products to PROC carried out by the importer himself or

through a tie-up with a legitimate importer in an amount

equivalent to the value of the importation from PROC being

applied for, or, simply, at one is to one ratio.

Pertinent provisions of the questioned administrative order

read:

3. COUNTERPART EXPORTS TO PROC

In addition to existing requirements for the processing ofimport application for goods and commodities originating

from PROC, it is declared that:

3.1 All applications covered by these rules must be

accompanied by a viable and confirmed EXPORT PROGRAM

of Philippine products to PROC in an amount equivalent to

the value of the importation from PROC being applied

for. Such export program must be carried out and

completed within six (6) months from date of approval of

the Import Application by PITC. PITC shall reject/deny any

application for importation from PROC without the

accompanying export program mentioned above.

3.2 The EXPORT PROGRAM may be carried out by any

of the following:

a. By the IMPORTER himself if he has the capabilities and

facilities to carry out the export of Philippine products to

PROC in his own name; or

b. Through a tie-up between the IMPORTER and a

legitimate exporter (of Philippine products) who is willing to

carry out the export commitments of the IMPORTER under

these rules. The tie-up shall not make the IMPORTER the

exporter of the goods but shall merely ensure that the

importation sought to be approved is matched one-to-one

(1:1) in value with a corresponding export of Philippine

Products to PROC.[2]

3.3 EXPORT PROGRAM DOCUMENTS which are to be

submitted by the importer together with his Import

Application are as follows:
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a) Firm Contract, Sales Invoice or Letter of Credit.

b) Export Performance Guarantee (See Article 4 hereof).

c) IMPORTER-EXPORTER AGREEMENT for non-exporter

IMPORTER (PITC Form No. M-1006). This form should be

used if IMPORTER has a tie-up with an exporter for the

export of Philippine Products to PROC.

4. EXPORT GUARANTEE

To ensure that the export commitments of the IMPORTER

are carried out in accordance with these rules, all

IMPORTERS concerned are required to submit an EXPORT

PERFORMANCE GUARANTEE (the Guarantee) at the time

of filing of the Import Application. The amount of the

guarantee shall be as follows:

For essential commodities: 15% of the value of the imports

applied for.

For other commodities: 50% of the value of the imports

applied for.

4.1 The guarantee may be in the form of (i) a non-

interest bearing cash deposit; (ii) Bank hold-out in favor of

PITC (PITC Form No. M-1007) or (iii) a Domestic Letter of

Credit (with all bank opening charges for account of

Importer) opened in favor of PITC as beneficiary.

4.2 The guarantee shall be made in favor of PITC andwill be automatically forfeited in favor of PITC, fully or

partially, if the required export program is not completed by

the importer within six (6) months from date of approval of

the Import Application.

4.3 Within the six (6) months period above stated, the

IMPORTER is entitled to a (i) refund of the cash deposited

without interest; (ii) cancellation of the Bank holdout or (iii)

Cancellation of the Domestic Letter of Credit upon showing

that he has completed the export commitment pertaining to

his importation and provided further that the following

documents are submitted to PITC:

a) Final Sales Invoice

b) Bill of lading or Airway bill

c) Bank Certificate of Inward remittance

d) PITC EXPORT APPLICATION FOR NO. M-1005

5. MISCELLANEOUS

5.1 All other requirements for importations of goods

and commodities from PROC must be complied with in

addition to the above.

5.2 PITC shall have the right to disapprove any and all

import application not in accordance with the rules and

regulations herein prescribed.

5.3 Should the IMPORTER or any of his duly authorized

representatives make any false statements or fraudulent

misrepresentations in the Import/Export Application, or

falsify, forge or simulate any document required under

these rules and regulations, PITC is authorized to reject all

pending and future import/export applications of said

IMPORTER and/or disqualify said IMPORTER and/or disqualify

said IMPORTER from doing any business with SOCPEC

through PITC.

Desiring to make importations from PROC, private

respondents Remington and Firestone, both domestic

corporations, organized and existing under Philippines laws,

individually applied for authority to import from PROC with

the petitioner, They were granted such authority after

satisfying the requirements for importers, and after they

executed respective undertakings to balance their

importations from PROC with corresponding export of

Philippine products to PROC.


16/136

Private respondent Remington was allowed to import tools,

machineries and other similar goods. Firestones, on the

other hand, imported Calcine Vauxite, which it used for the

manufacture of fire bricks, one of its products.

Subsequently, for failing to comply with their undertakings

to submit export credits equivalent to the value of their

importations, further import applications were withheld bypetitioner PITC from private respondents, such that the

latter both barred from importing goods from PROC. [3]

Consequently, Remington filed a Petition for Prohibition

and Mandamus, with prayer for issuance of Temporary

Restraining Order and/or Writ of Preliminary Injunction

on January 20, 1992, against PITC in the RTC Makati Branch

58.[4] The court issued a Temporary Restraining Order

on January 21, 1992, ordering PITC to cease from exercising

any power to process applications of goods from PROC.

[5]Hearings on the application for writ of preliminaryinjunction ensued.

Private respondents Firestones was allowed to intervene in

the petition on July 2, 1992,[6] thus joining Remington in the

latters charges against PITC. It specifically asserts that the

questioned Administrative Order is an undue restrictions of

trade, and hence, unconstitutional.

Upon trial, it was agreed that the evidence adduced upon

the hearing on the Preliminary Injunction was sufficient to

completely adjudicate the case, thus, the parties deemed itproper that the entire case be submitted for decision upon

the evidence so far presented.

The court rendered its Decision[7] on January 4, 1992. The

court ruled that PITCs authority to process and approve

applications for imports from SOCPEC and to issue rules and

regulations pursuant to LOI 444 and P.D. No. 1071, has

already been repealed by EO No. 133, issued on February

27, 1987 by President Aquino.

The court observed:

Given such obliteration and/or withdrawal of what used to

be PITCs regulatory authority under the Special provisions

embodied in LOI 444 from the enumeration of powers that it

could exercise effective February 27, 1987 in virtue of

Section 16 (d), EO No. 133, it may now be successfully

argued that the PITC can no longer exercise such specific

regulatory power in question conformably with the legal

precept expresio unius est exclusio alterius.

Moreover, the court continued, none of the Trade protocols

of 1989, 1990 or 1991, has empowered the PITC, expressly

or impliedly to formulate or promulgate the assailed

Administrative Order. This fact, makes the continued

exercise by PITC of the regulatory powers in question

unworthy of judicial approval. Otherwise, it would be

sanctioning an undue exercise of legislative power vested

solely in the Congress of the Philippines by Section 1, Article

VII of the 1987 Philippine Constitution.

The lower court stated that the subject Administrative Order

and other similar issuances by PITC suffer from serious

constitutional infirmity, having been promulgated in

pursuance of an international agreement (the Memorandum

of Agreement between the Philippine and PROC), which has

not been concurred in by at least 2/3 of all the members of

the Philippine Senate as required by Article VII, Section 21,

of the 1987 Constitution, and therefore, null and void.

Section 21. No treaty or international agreement shall be

valid and effective unless concurred in by at least two-thirds

of all the Members of the Senate.

Furthermore, the subject Administrative Order was issued in

restraint of trade, in violation of Sections 1 and 19, Article

XII of the 1987 Constitution, which reads:

Section 1. The goals of the national economy are a more

equitable distribution of opportunities, income and wealth; a

sustained increase in the amount of goods and services

produced by the nation for the benefit of the people; and, an
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expanding productivity as the key to raising the equality of

life for all, especially the underprivileged.

Section 19. The State shall regulate or prohibit monopolies

when the public interest so requires. No combination is

restraint of trade or unfair competition shall be allowed.

Lastly, the court declared the Administrative Order to be null

and void, since the same was not published, contrary to

Article 2 of the New Civil Code which provides, that:

Article 2. Laws shall take effect fifteen (15) days following

the completion of their publication in the Official Gazette,

unless the law otherwise provides. xxx

Petitioner now comes to us on a Petition for Review

on Certiorari,[8]questioning the courts decision particularly

on the propriety of the lower courts declarations on the

validity of Administrative Order No. 89-08-01. The Court

directed the respondents to file their respective Comments.

Subsequent events transpired, however, which affect to

some extent, the submissions of the parties to the present

petition.

Following President Fidel V. Ramos trip to Beijing, Peoples

Republic of China (PROC), from April 25 to 30, 1993, a new

trade agreement was entered into between

the Philippines and PROC, encouraging liberalization of trade

between the two countries. In line therewith, on April 20,

1993, the President, through Chief Presidential Legal

Counsel Antonio T. Carpio, directed the Department of Trade

and Industry and the PITC to cease implementing

Administrative Order No. SOCPEC 89-08-01, as amended by

PITC Board Resolution Nos. 92-01-05 and 92-03-08.[9]

In the implementation of such order, PITC President Jose Luis

U. Yulo, Jr. issued a corporate Memorandum[10] instructing

that all import applications for the PROC filed with the PITC

as ofApril 20, 1993 shall no longer be covered by the trade

balancing program outlined in the Administrative Order.

Forthwith, the PITC allowed the private respondents to

import anew from the PROC, without being required to

comply anymore with the lifted requirement of balancing its

imports with exports of Philippine products to PROC. [11] In

its Constancia[12]filed with the Court on November 22, 1993,

Remington expressed its desire to have the present action

declared moot and academic considering the new

supervening developments. For its part, respondentFirestone made a Manifestation[13] in lieu of its

Memorandum, informing the court of the aforesaid

developments of the new trade program of

the Philippines with China, and prayed for the courts early

resolution of the action.

To support its submission that the present action is now

moot and academic, respondent Remington cites Executive

Order No. 244,[14] issued by President Ramos on May 12,

1995. The Executive Order states:

WHEREAS, continued coverage of the Peoples Republic of

China by letter of Instructions No. 444 is no longer

consistent with the countrys national interest, as coursing

Republic of the Philippines-Peoples Republic of China Trade

through the Philippine International Trading Corporation as

provided for under Letter of Instructions No. 444 is

becoming an unnecessary barrier to trade;

NOW, THEREFORE, I FIDEL V. RAMOS, President of the

Republic of the Philippines, by virtue of the powers vested in

me by law, do hereby order:

The Committee on Scientific and Technical Cooperation with

Socialist Countries to delete the Peoples Republic of China

from the list of countries covered by Letter of Instructions

No. 444.

Done in the City of Manila, this 12th day of May in the year of

Our Lord, Nineteen Hundred and Ninety-Five.

PITC filed its own Manifestation[15] on December 15, 1993,

wherein it adopted the arguments raised in its Petition as its
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Memorandum. PITC disagrees with Remington on the

latters submission that the case has become moot and

academic as a result of the abrogation of Administrative

Order SOCPEC No. 89-08-01, since respondent Remington

had incurred obligations to the petitioner consisting of

charges for the 0.5% Counter Export Development Service

provided by PITC to Remington, which obligations remain

outstanding.[16]

The propriety of such charges must still beresolved, petitioner argues, thereby maintaining the issue of

the validity of SOCPEC Order No. 89-08-01, before it was

abrogated by Executive fiat.

There is no question that from April 20, 1993, when trade

balancing measures with PROC were lifted by the President,

Administrative Order SOCPEC No. 89-08-01 no longer has

force and effect, and respondents are thus entitled anew to

apply for authority to import from the PROC, without the

trade balancing requirements previously imposed on

proposed importers. Indeed, it appears that since the liftingof the trade balancing measures, Remington had been

allowed to import anew from PROC.

There remains, however, the matter of outstanding

obligations of the respondents for the charges relating to

the 0.5% Counter Export Development Service in favor of

PITC, for the period when the questioned Administrative

Order remained in effect. Is theobligation still subsisting, or

are the respondents freed from it?

To resolve this issue, we are tasked to consider the

constitutionality of Administrative Order No. SOCPEC 89-08-

01, based on the arguments set up by the parties in their

Petition and Comment. In so doing, we must inquire into the

nature of the functions of the PITC, in the light of present

realities.

The PITC is a government owned or controlled corporation

created under P.D. No. 252[17]dated August 6, 1973. P.D.

No. 1071,[18] issued on May 9, 1977 which revised the

provisions of P.D. 252. The purposes and powers of said

governmental entity were enumerated under Section 5 and

6 thereof.[19]

On August 9, 1976, the late President Marcos issued Letter

of Instruction (LOI) No. 444,[20] directing, inter alia, that trade

(export or import of all commodities), whether direct or

indirect, between the Philippines and any of the Socialist

and other Centrally Planned Economy Countries (SOCPEC),including the Peoples Republic of China (PROC) shall be

undertaken or coursed through the PITC. Under the LOI,

PITC was mandated to: 1) participate in all official trade and

economic discussions between the Philippines and SOCPEC;

2) adopt such measures and issue such rules and

regulations as may be necessary for the effective discharge

of its functions under its instructions; and 3) Undertake the

processing and approval of all applications for export to or

import from the SOCPEC.

Pertinent provisions of the Letter of Instruction are hereinreproduced:

LETTER OF INSTRUCTION 444

xxx

II. CHANNELS OF TRADE

1. The trade, direct or indirect, between the Philippines and

any of the Socialist and other centrally-planned economy

countries shall upon issuance hereof, be undertaken by or

coursed through the Philippine International Trading

Corporation. This shall apply to the export and import of all

commodities of products including those specified for export

or import by expressly authorized government agencies.

xxx

4. The Philippine International Trading Corporation shall

participate in all official trade and economic discussions

between the Philippines and other centrally-planned

economy countries.
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xxx

V. SPECIAL PROVISIONS

The Philippine International Trading Corporation shall adopt

such measures and issue such rules and regulations as may

be necessary for the effective discharge of its functions

under these instructions. In this connection, the processing

and approval of applications for export to or import from the

Socialist and other centrally-planned economy countries

shall, henceforth, be performed by the said

Corporation. (Emphasis ours)

After the EDSA Revolution, or more specifically on February

27, 1987, then President Corazon C. Aquino promulgated

Executive Order (EO) No. 133[21] reorganizing the

Department of Trade and Industry (DTI) empowering the

said department to be the "primary coordinative, promotive,

facilitative and regulatory arm of the government for thecountrys trade, industry and investment activities (Sec. 2,

EO 133). The PITC was made one of DTIs line agencies.[22]

The Executive Order reads in part:

EXECUTIVE ORDER NO. 133

XXX

Section 16. Line Corporate Agencies and Government

Entities.

The following line corporate agencies and government

entities defined in Section 9 (c) of this Executive Order that

will perform their specific regulatory functions, particularly

developmental responsibilities and specialized business

activities in a manner consonant with the Department

mandate, objectives, policies, plans and programs:

xxx

d) Philippine International Trading Corporation. This

corporation, which shall be supervised by the

Undersecretary for International Trade, shall only engage in

both export and trading on new or non-traditional products

and markets not normally pursued by the private business

sector; provide a wide range of export oriented auxiliary

services to the private sector; arrange for a establish

comprehensive system and physical facilities for handling

the collection, processing, and distribution of cargoes and

other commodities; monitor or coordinate risk insuranceservices for the existing institutions; promote and organize,

whenever warranted, production enterprises and industrial

establishments and collaborate or associate in joint venture

with any person, association, company or entity, whether

domestic or foreign, in the fields of production, marketing,

procurement, and other relate businesses; and provide

technical advisory, investigatory, consultancy and

management services with respect to any and all of the

functions, activities, and operations of the corporation.

Sometime in April, 1988, following the State visit ofPresident Aquino to the PROC, the Philippines and PROC

entered into a memorandum of Understanding[23](MOU)

wherein the two countries agreed to make joint efforts

within the next five years to expand bilateral trade to US

$600 US $800 Million by 1992, and to strive for a steady

progress towards achieving a balance between the value of

their imports and exports during the period, agreeing for the

purpose that upon the signing of the Memorandum, both

sides shall undertake to establish the necessary steps and

procedures to be adopted within the framework of theannual midyear review meeting under the Trade Protocol, in

order to monitor and ensure the implementation of the

MOU.

Conformably with the MOU, the Philippines and PROC

entered into a Trade Protocol for the years 1989, 1990 and

1991,[24] under which was specified the commodities to be

traded between them. The protocols affirmed their

agreement to jointly endeavor to achieve more or less a

balance between the values of their imports and exports in

their bilateral trade.
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It is allegedly in line with its powers under LOI 444 and in

keeping with the MOU and Trade Protocols with PROC that

PITC issued its now assailed Administrative Order No.

SOCPEC 89-08-01[25] on August 30, 1989 (amended in

March, 1992).

Undoubtedly, President Aquino, in issuing EO 133, is

empowered to modify and amend the provisions of LOI 444,

which was issued by then President Marcos, both issuances

being executive directives. As observed by us in Philippine

Association of Service Exporters , Inc. vs. Torres,[26]

there is no need for legislative delegation of power to the

President to revoke the Letter of Instruction by way of an

Executive Order. This is notwithstanding the fact that the

subject LOI 1190 was issued by President Marcos, when he

was extraordinarily empowered to exercise legislative

powers, whereas EO 450 was issued by Pres. Aquino when

her transitional legislative powers have already ceased,since it was found that LOI 1190 was a mere administrative

directive, hence, may be repealed, altered, or modified by

EO 450.

We do not agree, however, with the trial courts ruling that

PITCs authority to issue rules and regulations pursuant to

the Special Provisions of LOI 444 and P.D. No. 1071, have

already been repealed by EO 133.

While PITCs power to engage in commercial import and

export activities is expressly recognized and allowed underSection 16 (d) of EO 133, the same is now limited only to

new or non-traditional products and markets not normally

pursued by the private business sector. There is no

indication in the law of the removal of the powers of the

PITC to exercise its regulatory functions in the area of

importations from SOCPEC countries. Though it does not

mention the grant of regulatory power, EO 133, as worded,

is silent as to the abolition or limitation of such powers,

previously granted under P.D. 1071, from the PITC.

Likewise, the general repealing clause in EO 133 stating that

all laws, ordinances, rules , and regulations, or other parts

thereof, which are inconsistent with the Executive Order are

hereby repealed or modified accordingly, cannot operate to

abolish the grant of regulatory powers to the PITC. There

can be no repeal of the said powers, absent any cogency of

irreconcilable inconsistency or repugnancy between the

issuances, relating to the regulatory power of the PITC.

The President, in promulgating EO 133, had not intended to

overhaul the functions of the PITC. The DTI was established,

and was given powers and duties including those previously

held by the PITC as an independent government entity,

under P.D. 1071 and LOI 444. The PITC was thereby

attached to the DTI as an implementing arm of the said

department.

EO 133 established the DTI as the primary coordinative,

promotive, facilitative and regulatory arm of government forthe countrys trade, industry and investment activities,

which shall act as a catalyst for intensified private sector

activity in order to accelerate and sustain economic growth.[27] In furtherance of this mandate, the DTI was empowered,

among others, to plan, implement, and coordinate activities

of the government related to trade industry and

investments; to formulate and administer policies and

guidelines for the investment priorities plan and the delivery

of investment incentives; to formulate country and product

export strategies which will guide the export promotion and

development thrust of the government.[28] Corollarily, the

Secretary of Trade and Industry is given the power to

promulgate rules and regulations necessary to carry out the

departments objectives, policies, plans, programs and

projects.

The PITC, on the other hand, was attached as an integral

part to the said department as one of its line agencies,[29] and was given the focal task of implementing the

departments programs.[30] The absence of the regulatory

power formerly enshrined in the Special Provisions of LOI
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444, from Section 16 of EO 133, and the limitation of its

previously wide range of functions, is noted. This does not

mean, however, that PITC has lost the authority to issue the

questioned Administrative Order. It is our view that PITC

still holds such authority, and may legally exercise it, as an

implementing arm, and under the supervision of, the

Department of Trade and Industry.

Furthermore, the lower courts ruling to the effect that the

PITCs authority to process and approve applications for

imports from SOCPEC and to issue rules and regulations

pursuant to LOI 444 and P.D. 1071 has been repealed by EO

133, is misplaced, and did not consider the import behind

the issuance of the later presidential edict.

The President could not have intended to deprive herself of

the power to regulate the flow of trade between

the Philippines and PROC under the two countries

Memorandum of Understanding, a power which necessarilyflows from her office as Chief Executive. In issuing

Executive Order 133, the President intended merely to

reorganize the Department of Trade and Industry to cope

with the need of streamlined bureaucracy.[31]

Thus, there is no real inconsistency between LOI 444 and EO

133. There is, admittedly, a rearranging of the

administrative functions among the administrative bodies

affected by the edict, but not an abolition of executive

power. Consistency in statutes as in executive issuances, is

of prime importance, and, in the absence of a showing tothe contrary, all laws are presumed to be consistent with

each other. Where it is possible to do so, it is the duty of

courts, in the construction of statutes, to harmonize and

reconcile them, and to adopt a constructions of a statutory

provision which harmonizes and reconciles it with other

statutory provisions.[32] The fact that a later enactment may

relate to the same subject matter as that of an earlier

statute is not of itself sufficient to cause an implied repeal of

the latter, since the law may be cumulative or a

continuation of the old one.[33]

Similarly, the grant of quasi-legislative powers in

administrative bodies is not unconstitutional. Thus, as a

result of the growing complexity of the modern society, it

has become necessary to create more and more

administrative bodies to help in the regulation of its ramified

activities. Specialized in the particular field assigned to

them, they can deal with the problems thereof with more

expertise and dispatch than can be expected from thelegislature or the courts of justice. This is the reason for the

increasing vesture of quasi-legislative and quasi-judicial

powers in what is now not unreasonably called the fourth

department of the government.[34] Evidently, in the exercise

of such powers, the agency concerned must commonly

interpret and apply contracts and determine the rights of

private parties under such contracts. One thrust of the

multiplication of administrative agencies is that the

interpretation of contracts and the determination of private

rights thereunder is no longer uniquely judicial function,

exercisable only by our regular courts. (Antipolo Realty

Corporation vs. National Housing Authority, G.R.

No. L- 50444, August 31, 1987, 153 SCRA 399).

With global trade and business becoming more intricate nay

even with new discoveries in technology and electronics

notwithstanding, the time has come to grapple with

legislations and even judicial decisions aimed at resolving

issues affecting not only individual rights but also activities

of which foreign governments or entities may have

interests. Thus, administrative policies and regulationsmust be devised to suit these changing business needs in a

faster rate than to resort to traditional acts of the

legislature.

This tendency finds support in a well-stated work on the

subject, viz.:

Since legislatures had neither the time nor the knowledge

to create detailed rules, however, it was soon clear that new

governmental arrangements would be needed to handle the

job of rule-making. The courts, moreover, many of them
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already congested, would have been swamped if they had

to adjudicate all the controversies that the new legislation

was bound to create; and the judges, already obliged to

handle a great diversity of cases, would have been hard

pressed to acquire the knowledge they needed to deal

intelligently with all the new types of controversy.

So the need to create a large number of specialized

administrative agencies and to give them broader powers

than administrators had traditionally exercised. These

included the power to issue regulations having the force of

law, and the power to hear and decide cases powers that

had previously been reserved to the legislatures and the

courts. (Houghteling/Pierce, Lawmaking by Administrative

Agencies, p. 166.)

The respondents likewise argue that PITC is not empowered

to issue the Administrative Order because no grant of such

power was made under the Trade Protocols of 1989, 1990 or1991. We do not agree. The Trade Protocols aforesaid, are

only the enumeration of the products and goods which the

signatory countries have agreed to trade. They do not

bestow any regulatory power, for executive power is vested

in the Executive Department,[35]and it is for the latter to

delegate the exercise of such power among its designated

agencies.

In sum, the PITC was legally empowered to issue

Administrative Orders, as a valid exercise of a power

ancillary to legislation.

This does not imply however, that the subject Administrative

Order is a valid exercise of such quasi-legislative

power. The original Administrative Order issued on August

30, 1989, under which the respondents filed their

applications for importations, was not published in the

Official Gazette or in a newspaper of general

circulation. The questioned Administrative Order, legally,

until it is published, is invalid within the context of Article 2

of Civil Code, which reads:

Article 2. Laws shall take effect after fifteen days following

the completion of their publication in the Official Gazette (or

in a newspaper of general circulation in the Philippines),

unless it is otherwise provided. xxx

The fact that the amendments to Administrative Order No.

SOCPEC 89-08-01 were filed with, and published by the

UP Law Center in the National Administrative Register, does

not cure the defect related to the effectivity of the

Administrative Order.

This court, in Tanada vs. Tuvera[36] stated, thus:

We hold therefore that all statutes, including those of local

application and private laws, shall be published as a

condition for their effectivity, which shall begin fifteen days

after publication unless a different effectivity is fixed by the

legislature.

Covered by this rule are presidential decrees and executive

orders promulgated by the President in the exercise of

legislative powers or, at present, directly conferred by the

Constitution. Administrative rules and Regulations must

also be published if their purpose is to enforce or implement

existing law pursuant 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 public, need not be

published. Neither is publication required of the so-calledletters of instructions issued by administrative superiors

concerning the rules or guidelines to be followed by their

subordinates in the performance of their duties.

xxx

We agree that the publication must be in full or it is no

publication at all since its purpose is to inform the public of

the contents of the laws.

The Administrative Order under consideration is one of

those issuances which should be published for its effectivity,
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since its purpose is to enforce and implement an existing

law pursuant to a valid delegation, i.e., P.D. 1071, in relation

to LOI 444 and EO 133.

Thus, even before the trade balancing measures issued by

the petitioner were lifted by President Fidel V. Ramos, the

same were never legally effective, and private respondents,

therefore, cannot be made subject to them, because

Administrative Order 89-08-01 embodying the same was

never published, as mandated by law, for its effectivity. It

was only on March 30, 1992 when the amendments to the

said Administrative Order were filed in the UP Law Center,

and published in the National Administrative Register as

required by the Administrative Code of 1987.

Finally, it is the declared Policy of the Government to

develop and strengthen trade relations with the Peoples

Republic of China. As declared by the President in EO 244

issued on May 12, 1995, continued coverage of the PeoplesRepublic of China by Letter of Instructions No. 444 is no

longer consistent with the countrys national interest, as

coursing RP-PROC trade through the PITC as provided for

under Letter of Instructions No. 444 is becoming an

unnecessary barrier to trade.[37]

Conformably with such avowed policy, any remnant of the

restrained atmosphere of trading between

the Philippines and PROC should be done away with, so as to

allow economic growth and renewed trade relations with our

neighbors to flourish and may be encouraged.

ACCORDINGLY, the assailed decision of the lower court ishereby AFFIRMED, to the effect that judgment is hereby

rendered in favor of the private respondents, subject to the

following MODIFICATIONS:

1) Enjoining the petitioner:

a) From further charging the petitioners the Counter

Export Development Service fee of 0.5% of the total value of

the unliquidated or unfulfilled Undertakings of the private

respondents;

b) From further implementing the provisions of

Administrative Order No. SOCPEC 89-08-01 and its

appurtenant rules; and

2) Requiring petitioner to approve forthwith all the pendi

persons cases preliminary chapter

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