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ADMINISTRATIVE LAW

PENAL RULES AND REGULATIONS

Refer to those carrying penal or criminal sanctions for


violation of rules and regulations
Lawmaking body cannot delegate to an administrative
agency the power to declare what acts should constitute
criminal offense and how shall it be punished
Prescribing of penalties is exclusively a legislative function
and may not be delegated to administrative authorities.
However, Congress may validly provide in the law itself for
the imposition of the penalty for violation of rules and
regulations which it has empowered administrative
authorities to enact.
Publication (15 days following completion in the Official
Gazette) is necessary because such rules contain penal
provisions, thus, the people must be officially informed.

GENERAL RULE: The power to punish and define crimes


cannot be delegated essentially within the legislature.
Legislative act cannot be delegated. Why? Delegation of
discretion = power to fill in details: NOT ALLOWED
EXCEPTIONS:
REQUISITES FOR VALIDITY
REQUISITES FOR VALIDITY
1.
Law
authorizing
the Marcos v. CA
issuance
of
rules
and
regulations must itself declare
as punishable the violation of
any rules and regulations
issued thereunder.
2. Law should define or fix the Marcos v. CA
penalty for the violation of the
rules and regulations.
3. Rules and regulations must People v. Que Po Lay
be published in the Official
Gazette.
Tanada v. Tuvera

Format:
1. Law
2. Administrative Rules and Regulations
3. Violation
4. Imposition of Penalty

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiffappellant, vs. HON. MAXIMO A. MACEREN, CFI, Sta. Cruz,
Laguna, JOSE BUENAVENTURA, GODOFREDO REYES,
BENJAMIN REYES, NAZARIO AQUINO and CARLITO DEL
ROSARIO, accused-appellees.
Office of the Solicitor General for appellant.
Rustico F . de los Reyes, Jr. for appellees.
DECISION
AQUINO, J p:
This is a case involving the validity of a 1967 regulation,
penalizing electro fishing in fresh water fisheries, promulgated by
the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries under the old Fisheries Law and the
law creating the Fisheries Commission. cdtai
On March 7, 1969 Jose Buenaventura, Godofredo Reyes,
Benjamin Reyes, Nazario Aquino and Carlito del Rosario were
charged by a Constabulary investigator in the municipal court of
Sta. Cruz, Laguna with having violated Fisheries Administrative
Order No. 84-1.
It was alleged in the complaint that the five accused in the
morning of March 1, 1969 resorted to electro fishing in the
waters of Barrio San Pablo Norte, Sta. Cruz by "using their own
motor banca, equipped with motor; with a generator colored
green with attached dynamo colored gray or somewhat white;
and electrocuting device locally known as 'senso' with a
somewhat webbed copper wire on the tip or other end of a
bamboo pole with electric wire attachment which was attached to
the dynamo direct and with the use of these devices or
equipments catches fish thru electric current, which destroy any
aquatic animals within its currect reach, to the detriment and
prejudice of the populace" (Criminal Case No. 5429).
Upon motion of the accused, the municipal court quashed the
complaint. The prosecution appealed. The Court of First Instance
of Laguna affirmed the order of dismissal (Civil Case No. SC-36).
The case is now before this Court on appeal by the prosecution
under Republic Act No. 5440.
The lower court held that electro fishing cannot be penalized
because electric current is not an obnoxious or poisonous
substance as contemplated in section 11 of the Fisheries Law
and that it is not a substance at all but a form of energy
conducted or transmitted by substances. The lower court
further held that, since the law does not clearly prohibit
electro fishing, the executive and judicial departments
cannot consider it unlawful.

CASES:
1. PEOPLE v. MACEREN
SECOND DIVISION
[G.R. No. L-32166. October 18, 1977.]

As legal background, it should be stated that section 11 of the


Fisheries Law prohibits "the use of any obnoxious or poisonous
substance" in fishing.

Section 76 of the same law punishes any person who uses an


obnoxious or poisonous substance in fishing with a fine of not
less than five hundred pesos nor more than five
thousand, and by imprisonment for not less than six months nor
more than five years.
It is noteworthy that the Fisheries Law does not expressly punish
"electro fishing." Notwithstanding the silence of the law, the
Secretary of Agriculture and Natural Resources, upon the
recommendation of the Commissioner of Fisheries, promulgated
Fisheries Administrative Order No. 84 (62 O.G. 1224),
prohibiting electro fishing inall Philippine waters. The order is
quoted below:
"SUBJECT. PROHIBITING ELECTRO
WATERS OF THE PHILIPPINES.

FISHING

IN

ALL

"Pursuant to Section 4 of Act No. 4003, as amended, and


Section 4(h) of R.A. No. 3512, the following rules and regulations
regarding the prohibition of electro fishing in all waters of the
Philippines are hereby promulgated for the information and
guidance of all concerned.
"SECTION 1. Definition. Words and terms used in this Order
shall be construed as follows:
"(a) 'Philippine waters or territorial waters of the Philippines'
includes all waters of the Philippine Archipelago, as defined in
the treaties between the United States and Spain, dated
respectively the tenth of December, eighteen hundred ninety
eight and the seventh of November, nineteen hundred. For the
purpose of this order, rivers, lakes and other bodies of fresh
waters are included.
"(b) Electro fishing. Electro Fishing is the catching of fish with
the use of electric current. The equipment used are of many
electrical devices which may be battery or generator-operated
and from any available source of electric current.
"(c) 'Persons' includes firm, corporation, association, agent or
employee.
"(d) 'Fish' includes other aquatic products.
"SEC. 2. Prohibition. It shall be unlawful for any person to
engage in electro fishing or to catch fish by the use of electric
current in any portion of the Philippine waters except for
research, educational and scientific purposes which must be
covered by a permit issued by the Secretary of Agriculture and
Natural Resources which shall be carried at all times.
"SEC. 3. Penalty. Any violation of the provisions of this
Administrative Order shall subject the offender to a fine of not
exceeding five hundred pesos (P500.00) or imprisonment of not
exceeding six (6) months or both at the discretion of the Court.
"SEC. 4. Repealing Provisions. All administrative orders or
parts thereof inconsistent with the provisions of this
Administrative Order are hereby revoked.
"SEC. 5. Effectivity. This Administrative Order shall take effect
sixty (60) days after its publication in the Official Gazette."

On June 28, 1967 the Secretary of Agriculture and Natural


Resources, upon the recommendation of the Fisheries
Commission, issued Fisheries Administrative Order No. 84-1,
amending section 2 of Administrative Order No. 84, by restricting
the ban against electro fishing to fresh water fisheries (63 O.G.
9963).
Thus, the phrase "in any portion of the Philippine waters", found
in Section 2, was changed by the amendatory order to read as
follows: "in fresh water fisheries in the Philippines, such as
rivers, lakes, swamps, dams, irrigation canals and other bodies
of fresh water."
The Court of First Instance and the prosecution (p. 11 of
brief) assumed that electro fishing is punishable under
Section 83 of the Fisheries Law (not under Section 76
thereof), which provides that any other violation of that law
"or of any rules and regulations promulgated thereunder
shall subject the offender to a fine of not more than two
hundred pesos (P200), or imprisonment for not more than
six months, or both, in the discretion of the court."
HELD:
That assumption is incorrect because Section 3 of the
aforequoted Administrative Order No. 84 imposes a fine of not
exceeding P500 on a person engaged in electro fishing, which
amount exceeds the maximum fine of P200 fixed in Section 83.
It seems that the Department Secretary and the Commissioner
of Fisheries prescribed their own penalty for electro fishing,
which penalty is less than the severe penalty imposed in Section
76 and which is not identical to the light penalty imposed in
Section 83.
Had Administrative Order No. 84 adopted the lighter penalty
prescribed in Section 83, then the crime of electro fishing would
be within the exclusive original jurisdictionof the inferior court
(Sec. 44[f], Judiciary Law; People vs. Ragasi, L-28663,
September 22, 1976, 73 SCRA 23).
We have discussed this preliminary point, not raised in the briefs,
because it is obvious that the crime of electro fishing, which is
punishable with a fine up to P500, falls within the concurrent
original jurisdiction of the inferior courts and the Court of First
Instance (People vs. Nazareno, L-40037, April 30, 1976, 70
SCRA 531 and the cases cited therein).
And since the instant case was filed in the municipal court of Sta.
Cruz, Laguna, a provincial capital, the order of dismissal
rendered by that municipal court was directly appealable to the
Court, not to the Court of First Instance of Laguna (Sec. 45 and
last par. of Section 87 of the Judiciary Law; Esperat vs. Avila, L25992, June 30, 1967, 20 SCRA 596).
It results that the Court of First Instance of Laguna had no
appellate jurisdiction over the case. Its order affirming the
municipal court's order of dismissal is void for lack of jurisdiction.
This appeal shall be treated as a direct appeal from the
municipal court to this Court. (See People vs. Del Rosario, 97
Phil. 67).

In this appeal, the prosecution argues that Administrative Orders


Nos. 84 and 84-1 were not issued under section 11 of the
Fisheries Law which, as indicated above, punishes fishing by
means of an obnoxious or poisonous substance. This contention
is not well-taken because, as already stated, the penal provision
of Administrative Order No. 84 implies that electro fishing is
penalized as a form of fishing by means of an obnoxious or
poisonous substance under section 11.
The prosecution cites as the legal sanctions for the prohibition
against electro fishing in fresh water fisheries (1) the rule-making
power of the Department Secretary under section 4 of the
Fisheries Law; (2) the function of the Commissioner of Fisheries
to enforce the provisions of the Fisheries Law and the
regulations promulgated thereunder and to execute the rules and
regulations consistent with the purpose for the creation of the
Fisheries Commission and for the development of fisheries (Sec.
4[c] and [h], Republic Act No. 3512; (3) the declared national
policy to encourage, promote and conserve our fishing resources
(Sec. 1, Republic Act No. 3512), and (4) section 83 of the
Fisheries Law which provides that "any other violation of" the
Fisheries Law or of any rules and regulations promulgated
thereunder "shall subject the offender to a fine of not more than
two hundred pesos, or imprisonment for not more than six
months, or both, in the discretion of the court."
As already pointed out above, the prosecution's reference to
section 83 is out of place because the penalty for electro fishing
under Administrative Order No. 84 is not the same as the penalty
fixed in Section 83. cdasia
We are of the opinion that the Secretary of Agriculture and
Natural Resources and the Commissioner of Fisheries exceeded
their authority in issuing Fisheries Administrative Orders Nos. 84
and 84-1 and that those orders are not warranted under the
Fisheries Commission, Republic Act No. 3512.

The reason is that the Fisheries Law does not expressly prohibit
electro fishing. As electro fishing is not banned under that law,
the Secretary of Agriculture and Natural Resources and the
Commissioner of Fisheries are powerless to penalize it. In other
words, Administrative Orders Nos. 84 and 84-1, in penalizing
electro fishing, are devoid of any legal basis.
Had the lawmaking body intended to punish electro fishing, a
penal provision to that effect could have been easily embodied in
the old Fisheries Law.
That law punishes (1) the use of obnoxious or poisonous
substance, or explosive in fishing; (2) unlawful fishing in deepsea
fisheries; (3) unlawful taking of marine mollusca, (4) illegal taking
of sponges; (5) failure of licensed fishermen to report the kind
and quantity of fish caught, and (6) other violations.
Nowhere in that law is electro fishing specifically
punished. Administrative Order No. 84, in punishing electro
fishing, does not contemplate that such an offense falls within
the category of "other violations" because, as already shown, the
penalty for electro fishing is the penalty next lower to the penalty

for fishing with the use of obnoxious or poisonous substances,


fixed in Section 76, and is not the same as the penalty for "other
violations" of the law and regulations fixed in Section 83 of the
Fisheries Law.
The lawmaking body cannot delegate to an executive official the
power to declare what acts should constitute a criminal offense.
It can authorize the issuance of regulations and the imposition of
the penalty provided for in the law itself. (People vs. Exconde,
101 Phil. 1125, citing 11 Am. Jur. 965 on p. 1132).
Originally, Administrative Order No. 84 punished electro fishing
in all waters. Later, the ban against electro fishing was confined
to fresh water fisheries. The amendment created the impression
that electro fishing is not condemnable per se. It could be
tolerated in marine waters. That circumstances strengthens the
view that the old law does not eschew all forms of electro fishing.
However, at present, there is no more doubt that electro fishing
is punishable under the Fisheries Law and that it cannot be
penalized merely by executive regulation because Presidential
Decree No. 704, which is a revision and consolidation of all laws
and decrees affecting fishing and fisheries and which was
promulgated on May 16, 1975 (71 O.G. 4269), expressly
punishes electro fishing in fresh water and salt water areas.
That decree provides:
"SEC. 33. Illegal fishing, dealing in illegally caught fish or
fishery/aquatic products. It shall be unlawful for any person to
catch, take or gather or cause to be caught, taken or gathered
fish or fishery/aquatic products in Philippine waters with the use
of explosives, obnoxious or poisonous substance, or by the use
of electricity as defined in paragraphs (1), (m) and (d),
respectively, of Section 3 hereof: . . ."
The decree repealed Act No. 4003, as amended, Republic Acts
Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43,
534 and 553, and all Decrees, Acts, Executive Orders, rules and
regulations or parts thereof inconsistent with it (Sec. 49, P. D.
No. 704).
The inclusion in that decree of provisions defining and penalizing
electro fishing is a clear recognition of the deficiency or silence
on that point of the old Fisheries Law. It is an admission that a
mere executive regulation is not legally adequate to penalize
electro fishing.
Note that the definition of electro fishing, which is found in
section 1(c) of Fisheries Administrative Order No. 84 and which
is not provided for in the old Fisheries Law, is now found in
section 3(d) of the decree. Note further that the decree penalizes
electro fishing by "imprisonment from two (2) to four (4) years", a
punishment which is more severe than the penalty of a fine of
not exceeding P500 or imprisonment of not more than six
months or both fixed in section 3 of Fisheries Administrative
Order No. 84.
An examination of the rule-making power of executive officials
and administrative agencies and, in particular, of the Secretary of
Agriculture and Natural Resources (now Secretary of Natural
Resources) under the Fisheries Law sustains the view that he

exceeded his authority in penalizing electro fishing by means of


an administrative order.

Natural Resources by section 7 of the Revised Fisheries


Law, Presidential Decree No. 704.

Administrative agencies are clothed with rule-making powers


because the lawmaking body finds it impracticable, if not
impossible, to anticipate and provide for the multifarious and
complex situations that may be encountered in enforcing the law.
All that is required is that the regulation should be germane to
the objects and purposes of the law and that it should conform to
the standards that the law prescribes (People vs. Exconde, 101
Phil. 1125; Director of Forestry vs. Muoz, L-24796, June 28,
1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706,
712).

Section 4(h) of Republic Act No. 3512 empower the


Commissioner of Fisheries "to prepare and execute upon the
approval of the Secretary of Agriculture and Natural Resources,
forms, instructions, rules and regulations consistent with the
purpose" of that enactment "and for the development of
fisheries."

The lawmaking body cannot possibly provide for all the details in
the enforcement of a particular statute (U.S. vs. Tupasi Molina,
29 Phil. 119, 125, citing U.S. vs. Grimaud, 220 U.S. 506;
Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98
Phil. 290, 295-6).
The grant of the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated
to promote the public interest are necessary because of "the
growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty
of administering the law" (Calalang vs. Williams, 70 Phil. 726;
People vs. Rosenthal and Osmea, 68 Phil. 328).
Administrative regulations adopted under legislative authority by
a particular department must be in harmony with the provisions
of the law, and should be for the sole purpose of carrying into
effect its general provisions. By such regulations, of course, the
law itself cannot be extended. (U.S. vs. Tupasi Molina, supra).
An administrative agency cannot amend an act of Congress
(Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of
the Board of Administrators, L-25619, June 30, 1970, 33 SCRA
585; Manuel vs. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29,
1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating
the mode or proceeding to carry into effect the law as it has been
enacted. The power cannot be extended to amending or
expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be
sanctioned. (University of Santo Tomas vs. Board of Tax
Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid
regulations, see Collector of Internal Revenue vs. Villaflor, 69
Phil. 319; Wise & Co. vs. Meer, 78 Phil. 655, 676; Del Mar vs.
Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA
340, 349).
There is no question that the Secretary of Agriculture and
Natural Resources has rule-making powers. Section 4 of the
Fisheries Law provides that the Secretary "shall from time to
time issue instructions, orders, and regulations consistent" with
that law, "as may be necessary and proper to carry into effect the
provisions thereof. That power is now vested in the Secretary of

Section 79(B) of the Revised Administrative Code provides that


"the Department Head shall have the power to promulgate,
whenever he may see fit do so, all rules, regulations, orders,
circulars, memorandums, and other instructions, not contrary to
law, necessary to regulate the proper working and harmonious
and efficient administration of each and all of the offices and
dependencies of his Department, and for the strict enforcement
and proper execution of the laws relative to matters under the
jurisdiction of said Department; but none of said rules or orders
shall prescribe penalties for the violation thereof, except as
expressly authorized by law."
Administrative regulations issued by a Department Head in
conformity with law have the force of law (Valerio vs. Secretary
of Agriculture and Natural Resources, 117 Phil. 729, 733; Antique
Sawmills, Inc. vs. Zayco, L-20051, May 30, 1966, 17 SCRA 316).
As he exercises the rule-making power by delegation of the
lawmaking body, it is a requisite that he should not transcend the
bounds demarcated by the statute for the exercise of that power;
otherwise, he would be improperly exercising legislative power in
his own right and not as a surrogate of the lawmaking body.
Article 7 of the Civil Code embodies the basic principle that
"administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution."
As noted by Justice Fernando, "except for constitutional officials
who can trace their competence to act to the fundamental law
itself, a public official must locate in the statute relied upon a
grant of power before he can exercise it." "Department zeal may
not be permitted to outrun the authority conferred by statute."
(Radio Communications of the Philippines, Inc. vs. Santiago, L29236, August 21, 1974, 58 SCRA 493, 496-8).
"Rules and regulations when promulgated in pursuance of the
procedure or authority conferred upon the administrative agency
by law, partake of the nature of a statute, and compliance
therewith may be enforced by a penal sanction provided in the
law. This is so because statutes are usually couched in general
terms, after expressing the policy, purposes, objectives,
remedies and sanctions intended by the legislature. The details
and the manner of carrying out the law are oftentimes left to the
administrative agency entrusted with its enforcement. In this
sense, it has been said that rules and regulations are the product
of a delegated power to create new or additional legal provisions
that have the effect of law." The rule or regulation should be
within the scope of the statutory authority granted by the
legislature to the administrative agency. (Davis, Administrative
Law, p. 194, 197, cited in Victorias Milling Co., Inc. vs. Social
Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or


regulation issued to implement said law, the basic law prevails
because said rule or regulation cannot go beyond the terms and
provisions of the basic law (People vs. Lim, 108 Phil. 1091).
This Court in its decision in the Lim case, supra, promulgated on
July 26, 1960, called the attention of technical men in the
executive departments, who draft rules and regulations, to the
importance and necessity of closely following the legal
provisions which they intend to implement so as to avoid any
possible misunderstanding or confusion.
The rule is that the violation of a regulation prescribed by an
executive officer of the government in conformity with and based
upon a statute authorizing such regulation constitutes an offense
and renders the offender liable to punishment in accordance with
the provisions of the law (U.S. vs. Tupasi Molina, 29 Phil. 119,
124).
In other words, a violation or infringement of a rule or regulation
validly issued can constitute a crime punishable as provided in
the authorizing statute and by virtue of the latter (People vs.
Exconde, 101 Phil. 1125, 1132).
It has been held that "to declare what shall constitute a crime
and how it shall be punished is a power vested exclusively in the
legislature, and it may not be delegated to any other body or
agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs.
Montgomery, 73 F. Supp. 527).
In the instant case the regulation penalizing electro fishing is not
strictly in accordance with the Fisheries Law, under which the
regulation was issued, because the law itself does not expressly
punish electro fishing.
The instant case is similar to People vs. Santos, 63 Phil. 300.
The Santos case involves Section 28 of Fish and
Game Administrative Order No. 2 issued by the Secretary of
Agriculture and Natural Resources pursuant to the
aforementioned Section 4 of the Fisheries Law.
Section 28 contains the proviso that a fishing boat not licensed
under the Fisheries Law and under the said administrative order
may fish within three kilometers of the shoreline of islands and
reservations over which jurisdiction is exercised by naval and
military reservations authorities of the United States only upon
receiving written permission therefor, which permission may be
granted by the Secretary upon recommendation of the military or
naval authorities concerned. A violation of the proviso may be
proceeded against under Section 45 of the Federal Penal Code.
Augusto A. Santos was prosecuted under that provision in the
Court of First Instance of Cavite for having caused his two
fishing boats to fish, loiter and anchor without permission from
the Secretary within three kilometers from the shoreline of
Corrigidor Island.
This Court held that the Fisheries Law does not prohibit boats
not subject to license from fishing within three kilometers of the
shoreline of islands and reservations over which jurisdiction is

exercised by naval and military authorities of the United States,


without permission from the Secretary of Agriculture and Natural
Resources upon recommendation of the military and naval
authorities concerned.
As the said law does not penalize the act mentioned in section
28 of the administrative order, the promulgation of that provision
by the Secretary "is equivalent to legislating on the matter, a
power which has not been and cannot be delegated to him, it
being expressly reserved" to the lawmaking body. "Such an act
constitutes not only an excess of the regulatory power conferred
upon the Secretary but also an exercise of a legislative power
which he does not have, and therefore" the said provision "is null
and void and without effect". Hence, the charge against Santos
was dismissed.
A penal statute is strictly construed. While an administrative
agency has the right to make rules and regulations to carry into
effect a law already enacted, that power should not be confused
with the power to enact a criminal statute. An administrative
agency can have only the administrative or policing powers
expressly or by necessary implication conferred upon it.
(Glustrom vs. State, 206 Ga. 734, 58 SE 2d 534; See 2 Am. Jr.
2nd 129-130).
Where the legislature has delegated to executive or
administrative officers and boards authority to promulgate rules
to carry out an express legislative purpose, the rules of
administrative officers and boards, which have the effect of
extending, or which conflict with the authority-granting statute, do
not represent a valid exercise of the rule-making power but
constitute an attempt by an administrative body to legislate
(State vs. Miles, 5 Wash. 2nd 322; 105 Pac. 2nd 51).
In a prosecution for a violation of an administrative order, it must
clearly appear that the order is one which falls within the scope
of the authority conferred upon the administrative body, and the
order will be scrutinized with special care. (State vs.
Miles, supra).
The Miles case involved a statute which authorized the State
Game Commission "to adopt, promulgate, amend and/or repeal,
and enforce reasonable rules and regulations governing and/or
prohibiting the taking of the various classes of game."
Under that statute, the Game Commission promulgated a rule
that "it shall be unlawful to offer, pay or receive any reward, prize
or compensation for the hunting, pursuing, taking, killing
or displaying of any game animal, game bird or game fish or any
part thereof."
Beryl S. Miles, the owner of a sporting goods store, regularly
offered a ten-dollar cash prize to the person displaying the
largest deer in his store during the open season for hunting such
game animals. For that act, he was charged with a violation of
the rule promulgated by the State Game Commission.
It was held that there was no statute penalizing the display of
game. What the statute penalized was the taking of game. If the
lawmaking body desired to prohibit the display of game, it could
have readily said so. It was not lawful for the administrative

board to extend or modify the statute. Hence, the indictment


against Miles was quashed. The Miles case is similar to this
case. aisa dc

a violation of the orders of the Bureau of Agriculture made in


pursuance of such authority will not be held to be criminal unless
the statute expressly makes it so and provides a punishment.

WHEREFORE, the lower court's decision of June 9, 1970 is set


aside for lack of appellate jurisdiction and the order of dismissal
rendered by the municipal court of Sta. Cruz, Laguna in Criminal
Case No. 5429 is affirmed. Costs de oficio.

3. ID.; ID.; VIOLATION OF. Said Act, although it authorizes


the Director of Agriculture to do certain things, as aforesaid,
nowhere makes a violation of the orders of the Bureau of
Agriculture unlawful or criminal, nor does it provide a punishment
for such violation.

SO ORDERED.
Barredo
(Actg. Chairman),
Santos and Guerrero, JJ ., concur.

Concepcion

Jr.,

Fernando and Antonio, JJ ., took no part.


Guerrero, J ., was designated to sit in the Second Division.
||| (People v. Maceren, G.R. No. L-32166, [October 18, 1977],
169 PHIL 437-453)

4. ID.; ID.; ID. Although the Act provides that "any person
violating any of the provisions of this Act shall, upon conviction,
be punished by a fine of not more than one thousand pesos, or
by imprisonment for not more than six months, or by both such
fine and imprisonment, in the discretion of the court, for each
offense," such provision is not broad enough to cover a violation
of an order of the Bureau of Agriculture lawfully made and
promulgated under the authority conferred upon said bureau by
said Act, the violation of such an order not being a violation "of
the provisions of this Act."
5. ID.; ID.; ID. Orders of the Bureau of Agriculture issued in
pursuance of the authority conferred by Act No. 1760, while they
have, in a sense, the force of law, are not penal statutes, and a
violation of such orders is not a penal offense under said Act, the
statute itself not expressly making it so.

2. US v. PANLILIO
EN BANC
[G.R. No. 9876. December 8, 1914.]
THE
UNITED
STATES, plaintiff-appellee, vs.
PANLILIO, defendant-appellant.

ADRIANO

Pedro Abad Santos, for appellant.


Solicitor-General Corpus, for appellee.
SYLLABUS
1. ANIMALS; REMOVAL OF CARABAOS FROM QUARANTINE.
Act No. 1760, entitled "An act to prevent the introduction into
the Philippine Islands of dangerous communicable animal
diseases, to prevent the spread of such diseases within the
Islands, and for other purposes," does not punish the removal of
carabaos, which had been exposed to a dangerous
communicable disease, from a quarantine established on a
portion of the premises of the accused, said carabaos having
been simply removed from the corral in which they were
quarantined and worked upon the adjoining lands of the
accused, and they, at the time, not suffering from a dangerous
communicable disease, or being recently imported, and the
Secretary of the Interior not having made the declaration
provided for in section 5 of that Act, and the said animals not
having been driven or taken by the accused upon the highway,
or from one island, province, municipality, township or settlement
to another.
2. ID.; QUARANTINE REGULATIONS OF BUREAU OF
AGRICULTURE. While Act No. 1760, entitled as aforesaid,
authorizes the Director of Agriculture, among other things, "to
require that animals which are suffering from dangerous
communicable diseases or have been exposed thereto be
placed in quarantine at such place and for such time as may be
deemed by him necessary to prevent the spread of the disease,"

6. CRIMINAL LAW; COMPLAINT; CONVICTION OF OFFENSE


INCLUDED IN CHARGE. While the acts charged .in the
information do not constitute a violation of any of the provisions
of Act No. 1760, they do constitute a violation of article 581,
paragraph 2, of the Penal Code, and, while the information
charges that the acts set forth therein constitute a violation of Act
No. 1760, the accused may be convicted of a violation of the
Penal Code.
DECISION
MORELAND, J p:
This is an appeal from a judgment of the Court of First Instance
of the Province of Pampanga convicting the accused of a
violation of the law relating to the quarantining of animals
suffering from dangerous communicable or contagious diseases
and sentencing him to pay a fine of p40, with subsidiary
imprisonment in case of insolvency, and to pay the costs of the
trial.
The information charges: "That on or about the 22d day of
February, 1913, all of the carabaos belonging to the abovenamed accused having been exposed to the dangerous and
contagious disease known as rinderpest, were, in accordance
with an order of a duly-authorized agent of the Director of
Agriculture, duly quarantined in a corral in the barrio of Masamat,
municipality of Mexico, Province of Pampanga, P. I.; that, on said
date and at said place, the said accused, Adriano Panlilio,
illegally and voluntarily and without being authorized so to do,
and while the quarantine against said carabaos was still in force,
permitted and ordered said carabaos to be taken from the corral
in which they were then quarantined and conducted from one
place to another; that by virtue of said orders of the accused, his

servants and agents took the said carabaos from the said corral
and drove them from one place to another for the purpose of
working them."
The defendant demurred to this information on the ground that
the acts complained of did not constitute a crime. The demurrer
was overruled and the defendant duly excepted and pleaded not
guilty.
From the evidence introduced by the prosecution on the trial of
the cause it appears that the defendant was notified in writing on
February 22, 1913, by a duly authorized agent of the Director of
Agriculture, that all of his carabaos in the barrio of Masamat,
municipality of Mexico, Pampanga Province, had been exposed
to the disease commonly known as rinderpest, and that said
carabaos were accordingly declared under quarantine, and were
ordered kept in a corral designated by an agent of the Bureau of
Agriculture and were to remain there until released by further
order of the Director of Agriculture.
It further appears from the testimony of the witnesses. for the
prosecution that the defendant fully understood that, according
to the orders of the Bureau of Agriculture, he was not to remove
the animals, or to permit anyone else to remove them, from the
quarantine in which they had been placed. In spite, however, of
all this, the carabaos were taken from the corral by the
commands of the accused and driven from place to place on his
hacienda, and were used as work animals thereon in the same
manner as if they had not been quarantined.
The contention of the accused is that the facts alleged in the
information and proved on the trial do not constitute a violation of
Act No. 1760 or any portion thereof.
We are forced to agree with this contention.
The original information against the accused charged a violation
of section 6 of Act No. 1760 committed by the accused in that he
ordered and permitted his carabaos, which, at the time, were in
quarantine, to be taken from quarantine and moved from one
place to another on his hacienda. An amended information was
filed. It failed, however, to specify the section of Act No. 1760
alleged to have been violated, evidently leaving that to be
ascertained by the court on the trial.
The only sections of Act No. 1760 which prohibit acts and
pronounce them unlawful are 3, 4 and 5. This case does not fall
within any of them. Section 3 provides, in effect, that it shall be
unlawful for any person, firm, or corporation knowingly to ship or
otherwise bring into the Philippine Islands any animal suffering
from, infected with, or dead of any dangerous communicable
disease, or any of the effects pertaining to such animal which are
liable to introduce such disease into the Philippine Islands.
Section 4 declares, substantially, that it shall be unlawful for any
person, firm, or corporation knowingly to ship, drive or otherwise
take or transport from one island, province, municipality,
township, or settlement to another any domestic animal suffering
from any dangerous communicable disease or to expose such
animal either alive or dead on any public road or highway where
it may come in contact with other domestic animals. Section 5
provides that whenever the Secretary of the Interior shall declare

that a dangerous communicable animal disease prevails in any


island, province, municipality, township, or settlement and that
there is danger of spreading such disease by shipping, driving or
otherwise transporting or taking out of such island, province,
municipality, township, or settlement any class of domestic
animal, it shall be unlawful for any person, firm or corporation to
ship, drive or otherwise remove the kind of animals so specified
from such locality except when accompanied by a certificate
issued by authority of the Director of Agriculture stating the
number and the kind of animals to be shipped, driven, taken or
transported, their destination, manner in which they are
authorized to be shipped, driven, taken, or transported, and their
brands and distinguishing marks.
A simple reading of these sections demonstrates clearly that the
case at bar does not fall within any of them. There is no question
here of importation and there is no charge or proof that the
animals in question were suffering from a dangerous
communicable disease or that the Secretary of the Interior had
made the declaration provided for in section 5 or that the
accused had driven or taken said animals from one island,
province, municipality, township or settlement to another. It was
alleged in the information and proved on the trial that the animals
had been exposed to a dangerous communicable disease and
that they had been placed in a corral in quarantine on the
premises of the accused and that he, in violation of the
quarantine, had taken them from the corral and worked them
upon the lands adjoining. They had not been in the highway nor
moved from one municipality or settlement to another. They were
left upon defendant's hacienda, where they were quarantined,
and there worked by the servants of the accused.
The Solicitor-General in his brief in this court admits that the
sections referred to are not applicable to the case at bar and
also admits that section 7 of said Act is not applicable. This
section provides: "Whenever the Director of Agriculture shall
order any animal placed in quarantine in accordance with the
provisions of this Act, the owner of such animal, or his agent,
shall deliver it at the place designated for the quarantine and
shall provide it with proper food, water, and attendance. Should
the owner or his agent fail to comply with this requirement the
Director of Agriculture may furnish supplies and attendance
needed, and the reasonable cost of such supplies and
attendance shall be collectible from the owner or his agent."

We are in accord with the opinion expressed by the SolicitorGeneral with respect to this section, as we are with his opinion
as to sections 3, 4, and 6. The law nowhere makes it a penal
offense to refuse to comply with the provisions of section 7, nor
is the section itself so phrased as to warrant the conclusion that
it was intended to be a penal section. The section provides the
means by which the refusal of the owner to comply therewith
shall be overcome and the punishment, if we may call it
punishment, which he shall receive by reason of that refusal. It
has none of the aspects of a penal provision or the form or
substance of such a provision. It does not prohibit any act. It
does not compel an act nor does it make the refusal to comply
unlawful, nor does it really punish or impose a criminal penalty.
The other sections of the law under which punishments may be

inflicted are so phrased as to make the prohibited act unlawful,


and section 8 provides the punishment for any act declared
unlawful by the law.
The Solicitor-General suggests, but does not argue, that section
6 is applicable to the case at bar. Section 6 simply authorizes the
Director of Agriculture to do certain things, among them,
paragraph (c) "to require that animals which art suffering from
dangerous communicable diseases or have been exposed
thereto be placed in quarantine at such place and for such time
as may be deemed by him necessary to prevent the spread of
the disease." Nowhere in the law, however, is the violation of the
orders of the Bureau of Agriculture prohibited or made unlawful,
nor is there provided any punishment for a violation of such
orders. Section 8 provides that "any person violating any of
the provisions of this Act shall, upon conviction, be punished by
a fine of not more than one thousand pesos, or by imprisonment
for not more than six months, or by both such fine and
imprisonment, in the discretion of the court, for each offense." 'A
violation of the orders of the Bureau of Agriculture, as authorized
by paragraph (c), is not a violation of the provisions of the Act.
The orders of the Bureau of Agriculture, while they may possibly
be said to have the force of law, are not statutes and particularly
not penal statutes, and a violation of such orders is not a penal
offense unless the statute itself somewhere makes a violation
thereof unlawful and penalizes it. Nowhere in Act No. 1760 is a
violation of the orders of the Bureau of Agriculture made a penal
offense, nor is such violation punished in any way therein.
Finally, it is contended by the Government that if the offense
stated in the information and proved upon the trial does not
constitute a violation of any of the provisions of Act No. 1760, it
does constitute a violation of article 581, paragraph 2, of the
Penal Code. It provides:
"A fine of not less than fifteen and not more than seventy
pesetas and censure shall be imposed upon: . . .
"2. Any person who shall violate the regulations, ordinances, or
proclamations issued with reference to any epidemic disease
among animals, the extermination of locusts, or any other similar
plague."
It is alleged in the information and was proved on the trial that
the Bureau of Agriculture had ordered a quarantine of the
carabaos at the time and place mentioned; that the quarantine
had been executed and completed and the animals actually
segregated and confined; that the accused, in violation of such
quarantine and of the orders of the Bureau of Agriculture, duly
promulgated, broke the quarantine, removed the animals and
used them in the ordinary work of his plantation. We consider
these acts a plain violation of the article of the Penal Code above
quoted. The fact that the information in its preamble charged a
violation of Act No. 1760 does not prevent us from finding the
accused guilty of a violation of an article of the Penal Code. The
complaint opens as follows: "The undersigned accuses Adriano
Panlilio of a violation of Act No. 1760, committed as follows:"
Then follows the body of the information already quoted in this
opinion. We would not permit an accused to be convicted under
one Act when he is charged with the violation of another, if the
change from one statute to another involved a change of the

theory of the trial or required of the defendant a different defense


or surprised him in any other way. The allegations required under
Act No. 1760 include those required under article 581. The
accused could have defended himself in no different manner if
he had been expressly charged with a violation of article 581.
In the case of United States vs. Paua (6 Phil. Rep., 740), the
information stating the facts upon which the charge was founded
terminated with this expression: "In violation of section 315 of Act
No. 355 of the Philippine Commission. in effect on the 6th of
February, 1902."
In the resolution of this case the Supreme Court found that the
facts set forth in the information and proved on the trial did not
constitute a violation of section 315 of Act No. 355 as alleged in
the information, but did constitute a violation of article 387 in
connection with article 383 of the Penal Code, and accordingly
convicted the accused under those articles and sentenced him to
the corresponding penalty.
In that case the court said: "The foregoing facts, duly established
as they were by the testimony of credible witnesses who heard
and saw everything that occurred, show beyond peradventure of
doubt that the crime of attempted bribery, as defined in article
387, in connection with article 383 of the Penal Code, has been
committed, it being immaterial whether it is alleged in the
complaint that section 315 of Act No. 355 of the Philippine
Commission was violated by the defendant, as the same recites
facts and circumstances sufficient to constitute the crime of
bribery as defined and punished in the aforesaid articles of the
Penal Code." (U. S. vs. Lim San, 17 Phil. Rep., 273; U. S. vs.
Jeffrey, 15 Phil. Rep., 391; U. S. vs. Guzman, 26 Phil. Rep., 22.)
The accused is accordingly convicted of a violation of article 581,
paragraph 2, of the Penal Code, and is sentenced to pay a fine
of seventy pesetas (P14) and censure, with subsidiary
imprisonment in case of insolvency, and the costs of this appeal.
So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Johnson, J., dissents.

||| (United States v. Panlilio, G.R. No. 9876, [December 8, 1914],


28 PHIL 608-616)

3. PEOPLE v. SANTOS
EN BANC
[G.R. No. 44291. August 15, 1936.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellant, vs. AUGUSTO A. SANTOS, defendant-appellee.
Solicitor-General Hilado for appellant.
Arsenio Santos for appellee.

SYLLABUS
1. FISHING IN ZONE PROHIBITED BY A REGULATION OF
THE SECRETARY OF AGRICULTURE AND COMMERCE;
EXCESS OF REGULATORY POWERS CONFERRED BY ACT
NO. 4003 AND EXERCISE OF LEGISLATIVE POWER. The
condition clause of section 28 of Administrative Order No. 2,
issued by the Secretary of Agriculture and Commerce, is null and
void and without effect, as constituting an excess of the
regulatory power conferred upon him by section 4 of Act No.
4003 and an exercise of a legislative power which has not been
and cannot be delegated to him.
DECISION
VILLA-REAL, J p:
This case is before us by virtue of an appeal taken by the
prosecuting attorney from the order of the Court of First Instance
of Cavite which reads as follows:
"ORDER
"When this case was called for trial for the arraignment, counsel
for the accused appeared stating that in view of the ruling laid
down by this court in criminal case No. 6785 of this court,
holding that the penalty applicable is under section 83 of Act No.
4003 which falls within the original jurisdiction of the justice of
the peace court, he requests that the case be remanded to the
justice of the peace court of Cavite which conducted the
preliminary investigation, so that the latter may try it, being within
its original jurisdiction.
"We agree that it falls within the jurisdiction of the corresponding
justice of the peace court, but it being alleged in the information
that the infraction was committed within the waters of the Island
of Corregidor, the competent justice of the peace court is that of
Corregidor, not Cavite.
"Wherefore, we decree the dismissal of this case, cancelling the
bond filed by the accused, with costs de oficio, without prejudice
to the filing by the prosecuting attorney of a new information in
the justice of the peace court of Corregidor, if he so deems
convenient. It is so ordered."
In support of his appeal the appellant assigns as the sole alleged
error committed by the court a quo its having dismissed the case
on the ground that it does not fall within its original jurisdiction.
On June 18, 1930, the provincial fiscal of Cavite filed against the
accused-appellee August A. Santos an information which reads
as follows:
"The undersigned Provincial Fiscal accuses Augusto A. Santos
of violation of section 28 of Fish and Game Administrative Order
No. 2 and penalized by section 29 thereof committed as follows:
"That on or about April 29, 1935, within 1,500 yards north of
Cavalry Point, Corregidor Island, Province of Cavite, P. I., the
said accused Augusto A. Santos, the registered owner of two
fishing motor boats Malabon II and Malabon III, did then and
there willfully, unlawfully and criminally have his said boats,

manned and operated by his fishermen, fish, loiter and anchor


without permission from the Secretary of Agriculture and
Commerce within three (3) kilometers from the shore line of the
Island of Corregidor over which the naval and military authorities
of the United States exercise jurisdiction.
"Contrary to law.
"Cavite, Cavite, June 18, 1935."
Section 28 of Administrative Order No. 2 relative to fish and
game, issued by the Secretary of Agriculture and Commerce,
provides as follows:
"28. Prohibited fishing areas. No boats licensed in accordance
with the provisions of Act No. 4003 and this order to catch,
collect, gather, take, or remove fish and other sea products from
Philippine waters shall be allowed to fish, loiter, or anchor within
3 kilometers of the sore line of islands and reservations over
which jurisdiction is exercised by naval or military authorities of
the United States, particularly Corregidor, Pulo Caballo, La
Monja, El Fraile, and Carabao, and all other islands and
detached rocks lying between Mariveles Reservation on the
north side of the entrance to Manila Bay and Calumpan Point
Reservation on the south side of said entrance: Provided, That
boats not subject to license under Act No. 4003 and this order
may fish within the areas mentioned above only upon receiving
written permission therefor, which permission may be granted by
the Secretary of Agriculture and Commerce upon
recommendation of the military or naval authorities concerned.
"A violation of this paragraph may be proceeded against under
section 45 of the Federal Penal Code."
The above quoted provisions of Administrative Order No. 2 were
issued by the then Secretary of Agriculture and Natural
Resources, now Secretary of Agriculture and Commerce, by
virtue of the authority vested in him by section 4 of Act No.
4003 which reads as follows:
"SEC. 4. Instructions, orders, rules and regulations. The
Secretary of Agriculture and Natural Resources shall from time
to time issue such instructions, orders, rules and regulations
consistent with this Act, as may be necessary and proper to carry
into effect the provisions thereof and for the conduct of
proceedings arising under such provisions."
The herein accused and appellee Augusto A. Santos is charged
with having ordered his fishermen to manage and operate the
motor launches Malabon II and Malabon III registered in his
name and to fish, loiter and anchor within three kilometers of the
shore line of the Island of Corregidor over which jurisdiction is
exercised by naval and military authorities of the United States,
without permission from the Secretary of Agriculture and
Commerce.
These acts constitute a violation of the conditional clause of
section 28 above quoted, which reads as follows:
"Provided, That boats not subject to license under Act No.
4003 and this order may fish within the areas mentioned above
(within 3 kilometers of the shore line of islands and reservations

over which jurisdiction is exercised by naval and military


authorities of the United States, particularly Corregidor) only
upon receiving written permission therefor, which permission
may be granted by the Secretary of Agriculture and Commerce
upon recommendation of the military or naval authorities
concerned." (Within parenthesis ours.)

The HONORABLE SECRETARY VINCENT S. PEREZ, in his


capacity as the Secretary of the Department of
Energy, petitioner, vs. LPG REFILLERS ASSOCIATION OF
THE PHILIPPINES, INC., respondent.

Act No. 4003 contains no similar provision prohibiting boats not


subject to license from fishing within three kilometers of the
shore line of islands and reservations over which jurisdiction is
exercised by naval and military authorities of the United States,
without permission from the Secretary of Agriculture and
Commerce upon recommendation of the military and naval
authorities concerned. Inasmuch as the only authority granted to
the Secretary of Agriculture and Commerce, by section 4 of Act
No. 4003, is to issue from time to time such instructions, orders,
rules and regulations consistent with said Act, as may be
necessary and proper to carry into effect the provisions thereof
and for the conduct of proceedings arising under such
provisions; and inasmuch as said Act No. 4003, as stated,
contains no provisions similar to those contained in the above
quoted conditional clause of section 28 of Administrative Order
No. 2, the conditional clause in question supplies a defect of the
law, extending it. This is equivalent to legislating on the matter, a
power which has not been and cannot be delegated to him, it
being exclusively reserved to the then Philippine Legislature by
the Jones Law, and now to the National Assembly by the
Constitution of the Philippines. Such act constitutes not only an
excess of the regulatory power conferred upon the Secretary of
Agriculture and Commerce, but also an exercise of a legislative
power which he does not have, and therefore said conditional
clause is null and void and without effect (12 Corpus Juris, 845;
Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; U. S. vs. Ang
Tang Ho, 43 Phil., 1; U. S. vs. Barrias, 11 Phil., 327).

QUISUMBING, J p:

For the foregoing considerations, we are of the opinion and so


hold that the conditional clause of section 28 of Administrative
Order No. 2, issued by the Secretary of Agriculture and
Commerce, is null and void and without effect, as constituting an
excess of the regulatory power conferred upon him by section 4
of Act No. 4003 and an exercise of a legislative power which has
not been and cannot be delegated to him.
Wherefore, inasmuch as the facts with the commission of which
Augusto A. Santos is charged do not constitute a crime or a
violation of some criminal law within the jurisdiction of the civil
courts, the information filed against him is dismissed, with the
costs de oficio. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz, Recto and Laurel,
JJ., concur.
||| (People v. Santos, G.R. No. 44291, [August 15, 1936], 63
PHIL 300-305)

DECISION

Before us is a petition for review on certiorari under Rule 45,


assailing the Decision 1 and Order 2 of the Regional Trial Court
of Pasig City, Branch 161, in SCA Case No. 2318, which nullified
Circular No. 2000-06-010 of the Department of Energy (DOE).
The facts are undisputed.
Batas Pambansa Blg. 33, as amended, penalizes illegal trading,
hoarding,
overpricing,
adulteration,
underdelivery, and
underfilling of petroleum products, as well as possession for
trade of adulterated petroleum products and of underfilled
liquefied petroleum gas (LPG) cylinders. 3 The said law sets the
monetary penalty for violators to a minimum of P20,000 and a
maximum of P50,000. 4
On June 9, 2000, Circular No. 2000-06-010 was issued by the
DOE to implement B.P. Blg. 33, thus:
SECTION 4. NO PRICE DISPLAY BOARD
LPG Marketer/LPG Dealer/LPG Retail Outlet
1st Offense - Reprimand/warning letter
2nd
Offense - Recommend
suspension
operation
to
the
proper
local
unit

of

business
government

3rd Offense - Recommend business closure to the proper


local
government
unit
and
initiate
criminal
proceedings
SECTION 5. NO WEIGHING SCALE
A. LPG Refiller/Marketer
1st Offense - Fine of P5,000
2nd Offense - Fine of P10,000
3rd
Offense - Recommend
to the proper local government unit

business

closure

B. Dealer
1st Offense - Fine of P3,000
2nd Offense - Fine of P7,000

4. PEREZ v. LPG REFILLERS

3rd
Offense - Recommend
proper local government unit

THIRD DIVISION

C. LPG Retail Outlet

[G.R. No. 159149. June 26, 2006.]

1st Offense - Reprimand

business

closure

to

the

2nd Offense - Fine of P500.00


3rd Offense - Fine of P1,000.00
SECTION 6. NO TARE WEIGHT OR INCORRECT TARE
WEIGHT MARKINGS. (REQUIREMENT ON ENGRAVED TARE
WEIGHT SHALL TAKE EFFECT TWO (2) YEARS AFTER
EFFECTIVITY OF THIS CIRCULAR)

A. LPG Refiller/Marketer

A. LPG Refiller/Marketer

1st Offense - Fine of P4,000 for each cylinder

1st Offense - Fine of P3,000 for each cylinder

2nd Offense - Fine of P5,000 for each cylinder

2nd Offense - Fine of P5,000 for each cylinder


3rd
Offense - Recommend
proper local government unit

business

closure

to

the

business

closure

to

the

the

3rd
Offense - Recommend
proper local government unit

business

closure

to

the

to

the

to

the

to

the

to

the

1st Offense - Fine of P1,000 for each cylinder

1st Offense - Fine of P1,000 for each cylinder

2nd Offense - Fine of P2,000 for each cylinder

2nd Offense - Fine of P2,000 for each cylinder


business

closure

to

the

SECTION 7. NO APPROPRIATE OR AUTHORIZED LPG SEAL

3rd
Offense - Recommend
proper local government unit

business

closure

SECTION 9. UNDERFILLED LPG CYLINDERS


A. LPG REFILLER/MARKETER

A. LPG Refiller/Marketer

1st Offense - Fine of P4,000 for each cylinder

1st Offense - Fine of P3,000 for each cylinder

2nd Offense - Fine of P6,000 for each cylinder

2nd Offense - Fine of P5,000 for each cylinder


business

closure

to

the

3rd
Offense - Recommend
proper local government unit

business

closure

B. DEALER

B. Dealer

1st Offense - Fine of P3,000 for each cylinder

1st Offense - Fine of P2,000 for each cylinder

2nd Offense - Fine of P4,000 for each cylinder

2nd Offense - Fine of P4,000 for each cylinder


business

closure

to

the

3rd
Offense - Recommend
proper local government unit

business

closure

C. LPG RETAIL OUTLET

C. LPG Retail Outlet

1st Offense - Fine of P1,000 for each cylinder

1st Offense - Fine of P1,000 for each cylinder

2nd Offense - Fine of P2,000 for each cylinder

2nd Offense - Fine of P2,000 for each cylinder


3rd
Offense - Recommend
proper local government unit

to

C. LPG Retail Outlet

C. LPG Retail Outlet

3rd
Offense - Recommend
proper local government unit

closure

2nd Offense - Fine of P4,000 for each cylinder

2nd Offense - Fine of P4,000 for each cylinder

3rd
Offense - Recommend
proper local government unit

business

1st Offense - Fine of P3,000 for each cylinder

1st Offense - Fine of P2,000 for each cylinder

3rd
Offense - Recommend
proper local government unit

3rd
Offense - Recommend
proper local government unit
B. Dealer

B. Dealer

3rd
Offense - Recommend
proper local government unit

SECTION 8. NO TRADE NAME, UNBRANDED LPG


CYLINDERS, NO SERIAL NUMBER, NO DISTINGUISHING
COLOR, NO EMBOSSED IDENTIFYING MARKINGS ON
CYLINDER OR DISTINCTIVE COLLAR OR DESIGN
(REQUIREMENT ON SERIAL NUMBER AND DISTINCTIVE
COLLAR OR DESIGN SHALL TAKE EFFECT TWO (2) YEARS
AFTER EFFECTIVITY OF THIS CIRCULAR)

business

closure

to

the

3rd
Offense - Recommend
proper local government unit

business

closure

SECTION 10. TAMPERING, ALTERING, OR MODIFYING OF


LPG CYLINDER THRU ANY MEANS SUCH AS BUT NOT
LIMITED TO CHANGING THE VALVE, REPAINTING, AND
RELABELLING BY ANY PERSON OR ENTITY OTHER THAN
THE LEGITIMATE AND REGISTERED OWNER OF THE
SAME. FOR THIS PURPOSE, LPG REFILLER, MARKETER,
DEALER, OR RETAIL OUTLET, AS THE CASE MAY BE, WHO
HAS POSSESSION OF SUCH ILLEGALLY TAMPERED,
ALTERED, OR OTHERWISE MODIFIED LPG CYLINDER
SHALL BE HELD LIABLE FOR THIS OFFENSE
A. LPG Refiller/Marketer
1st Offense - Fine of P5,000 for each cylinder

business

closure

to

the

B. Dealer
1st Offense - Fine of P3,000 for each cylinder
2nd Offense - Fine of P5,000 for each cylinder
3rd
Offense - Recommend
proper local government unit

business

closure

to

the

C. LPG Retail Outlet

2nd Offense - Fine of P3,000 for each cylinder


business

closure

to

the

1st Offense - Fine of P5,000 for each cylinder


2nd Offense - Fine of P10,000 for each cylinder
business

SECTION 14. REFUSAL OR FAILURE TO PAY FINE The


Department of Energy shall recommend to the proper local
government unit the closure of business of a respondent who
refuses or fails to pay any administrative fine without prejudice to
the filing of an appropriate criminal action if warranted. 5

Respondent then filed a petition for prohibition and annulment


with prayer for temporary restraining order and/or writ of
preliminary injunction before the trial court.
After trial on the merits, the trial court nullified the Circular on the
ground that it introduced new offenses not included in the
law. 6 The court intimated that the Circular, in providing penalties
on a per cylinder basis for each violation, might exceed the
maximum penalty under the law. The decretal part of its Decision
reads:

SO ORDERED. 7

SECTION 11. UNAUTHORIZED DECANTING OR REFILLING


OF LPG CYLINDERS

3rd
Offense - Recommend
proper local government unit

2nd Offense - Recommend business closure to the proper


local government unit

IN VIEW OF THE FOREGOING, this Court renders judgment


declaring DOE Circular No. 2000-06-010 null and void and
prohibits the respondent from implementing the same.

1st Offense - Fine of P1,500 for each cylinder

3rd
Offense - Recommend
proper local government unit

1st Offense - Fine of P10,000

Respondent LPG Refillers Association of the Philippines, Inc.


asked the DOE to set aside the Circular for being contrary to law.
The DOE, however, denied the request for lack of merit. AHCETa

2nd Offense - Fine of P10,000 for each cylinder


3rd
Offense - Recommend
proper local government unit

INSPECTION/INVESTIGATION, WHETHER REGULAR AND


ROUTINARY OR COMPLAINT-INITIATED

closure

to

the

SECTION 12. HOARDING OF PETROLEUM PRODUCTS


INCLUDING LIQUEFIED PETROLEUM GAS
1st Offense - Fine of P10,000 per cylinder
2nd
Offense - Recommend
business
closure
proper
local
government
unit
the
filing
of
appropriate
action

to

the
plus
criminal

SECTION 13. REFUSAL TO ALLOW OR COOPERATE WITH


DULY AUTHORIZED INSPECTORS OF THE ENERGY
INDUSTRY ADMINISTRATION BUREAU (EIAB) OF THE
DEPARTMENT OF ENERGY IN THE CONDUCT OF THEIR

The trial court denied for lack of merit petitioner's motion for
reconsideration. Hence this petition, raising the following issues:
I
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
HOLDING THAT "A CLOSE SCRUTINY OF BP 33, PD
1865 AND R.A. NO. 8479 SHOWS THAT OFFENSES LIKE NO
PRICE DISPLAY [BOARD], NO WEIGHING SCALE, ETC. SET
FORTH IN THE CIRCULAR ARE NOT PROVIDED FOR IN ANY
OF THE THREE (3) LAWS".
II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
HOLDING THAT "A SCRUTINY OF THE NEW SET OF
PENALTIES PROVIDED BY THE CIRCULAR SHOWS THAT
THE PENALTIES THIS TIME ARE BASED ON PER CYLINDER
BASIS"; THAT "BEING SUCH, NO CEILING WAS PROVIDED
FOR AS TO THE ADMINISTRATIVE FINES"; THAT "AS
ILLUSTRATED BY THE PETITIONER, FOR JUST ONE LPG
CYLINDER FOUND VIOLATING AT LEAST SEC[TIONS] 6, 7, 8,
9, 10 AND 11 OF THE [CIRCULAR], A FINE OF P24,000.00 IS
IMPOSED;" AND THAT "THIS WILL CLEARLY BE BEYOND
THE P10,000.00 PROVIDED BY THE LAWS."
III

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN


HOLDING THAT SECTION 16 OF PETITIONER'S CIRCULAR
WHICH AUTHORIZES THE IMPOSITION OF PECUNIARY
PENALTIES WITH THE TOTAL FINE NOT EXCEEDING
P20,000.00 FOR RETAIL OUTLETS VIOLATES THE PENALTY
CEILING OF P10,000.00 SET UNDER BP BLG. 33, AS
AMENDED.
IV
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
HOLDING THAT SINCE SECTION 5(g) OF R.A. 7638 FINDS
NO REFERENCE IN DOE CIRCULAR NO. 2000-06-010, THE
SAME SHOULD BE DISREGARDED.
V
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
HOLDING THAT "ON THE NEW OFFENSES INTRODUCED IN
THE CIRCULAR SUCH AS SECTIONS 4, 5, 10, 13 AND 14 AND
THE IMPOSITION OF THE GRADUATED PENALTIES ON 'A
PER CYLINDER BASIS', THIS COURT FINDS [NO] REASON
TO DISTURB ITS FINDINGS THAT RESPONDENT-MOVANT
EXCEEDED ITS AUTHORITY. . . . IT SHOULD BE
REMEMBERED THAT BP BLG. 33 AS AMENDED AND P.D.
1865 ARE CRIMINAL STATUTES AND MUST BE CONSTRUED
WITH SUCH STRICTNESS AS TO CAREFULLY SAFEGUARD
THE RIGHTS OF THE DEFENDANT."
VI
WHETHER OR NOT THE COURT A QUO ERRED IN HOLDING
THAT "THE ASSAILED CIRCULAR SETS NO MAXIMUM LIMIT
AS TO THE FINE THAT MAY BE IMPOSED ON AN ERRING
PERSON OR ENTITY TO WHICH FACT MOVANT CONCEDES.
FOR ONE (1) CYLINDER ALONE, NOT ONLY DOES THE
CIRCULAR MAKE THE FINE EXCESSIVE TO THE EXTENT OF
BEING CONFISCATORY, BUT IT EVEN IMPOSES A PENALTY
WHICH MAY EVEN GO BEYOND THAT MAXIMUM
IMPOSABLE FINE OF P50,000.00 SET BY P.D. 1865IN ITS
SEC. 4 AFTER A CRIMINAL PROCEEDING." 8

To our mind, the issue raised by petitioner may be reduced to the


sole issue of whether the Regional Trial Court of Pasig erred in
declaring the provisions of the Circular null and void, and
prohibiting the Circular's implementation.
Petitioner argues that the penalties for the acts and omissions
enumerated in the Circular are sanctioned by Sections 1 9 and
3-A 10 of B.P. Blg. 33 and Section 23 11 ofRepublic Act No.
8479. 12 Petitioner
adds
that
Sections
5(g) 13 and
21 14 of Republic Act No. 7638 15 also authorize the DOE to
impose the penalties provided in the Circular.
Respondent counters that the enabling laws, B.P. Blg.
33 and R.A. No. 8479, do not expressly penalize the acts and
omissions enumerated in the Circular. Neither is the Circular
supported by R.A. No. 7638, respondent claims, since the said
law does not pertain to LPG traders. Respondent maintains that

the Circular is not in conformity with the law it seeks to


implement.
We resolve to grant the petition. AaDSTH
For an administrative regulation, such as the Circular in this
case, to have the force of penal law, (1) the violation of the
administrative regulation must be made a crime by the
delegating statute itself; and (2) the penalty for such violation
must be provided by the statute itself. 16
The Circular satisfies the first requirement. B.P. Blg. 33, as
amended, criminalizes illegal trading, adulteration, underfilling,
hoarding, and overpricing of petroleum products. Under this
general description of what constitutes criminal acts involving
petroleum products, the Circular merely lists the various modes
by which the said criminal acts may be perpetrated, namely: no
price display board, no weighing scale, no tare weight or
incorrect tare weight markings, no authorized LPG seal, no trade
name, unbranded LPG cylinders, no serial number, no
distinguishing color, no embossed identifying markings on
cylinder, underfilling LPG cylinders, tampering LPG cylinders,
and unauthorized decanting of LPG cylinders. These specific
acts and omissions are obviously within the contemplation of the
law, which seeks to curb the pernicious practices of some
petroleum merchants.
As for the second requirement, we find that the Circular is in
accord with the law. Under B.P. Blg. 33, as amended, the
monetary penalty for any person who commits any of the acts
aforestated is limited to a minimum of P20,000 and a maximum
of P50,000. Under the Circular, the maximum pecuniary penalty
for retail outlets is P20,000, 17 an amount within the range
allowed by law. However, for the refillers, marketers,
and dealers, the Circular is silent as to any maximum monetary
penalty. This mere silence, nonetheless, does not amount to
violation of the aforesaid statutory maximum limit. Further, the
mere fact that the Circular provides penalties on a per cylinder
basis does not in itself run counter to the law since all that B.P.
Blg. 33 prescribes are the minimum and the maximum limits of
penalties.
Clearly, it is B.P. Blg. 33, as amended, which defines what
constitute punishable acts involving petroleum products and
which set the minimum and maximum limits for the
corresponding penalties. The Circular merely implements the
said law, albeit it is silent on the maximum pecuniary penalty for
refillers, marketers, and dealers. Nothing in the Circular
contravenes the law.
Noteworthy, the enabling laws on which the Circular is based
were specifically intended to provide the DOE with increased
administrative and penal measures with which to effectively
curtail rampant adulteration and shortselling, as well as other
acts involving petroleum products, which are inimical to public
interest. To nullify the Circular in this case would be to render
inutile government efforts to protect the general consuming
public against the nefarious practices of some unscrupulous
LPG traders.

WHEREFORE, the petition is GRANTED. The assailed Circular


No. 2000-06-010 of DOE is declared valid. The Decision and
Order of the Regional Trial Court of Pasig City, Branch 161, in
SCA Case No. 2318, nullifying said Circular and prohibiting its
implementation are hereby REVERSED and SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Carpio, Carpio Morales, Tinga and Velasco, Jr., JJ., concur.
||| (Perez v. LPG Refillers Assocation of the Phil., Inc., G.R. No.
159149, [June 26, 2006], 525 PHIL 704-718)

5. PEOPLE v. QUE PO LAY


EN BANC
[G.R. No. 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
Jr., and Solicitor Lauro G. Marquez for appellee.

Kapunan,

SYLLABUS
1. CRIMINAL LAW; PENAL LAWS AND REGULATIONS
IMPOSING PENALTIES, NEED BE PUBLISHED IN THE
OFFICIAL GAZETTE BEFORE IT MAY BECOME EFFECTIVE.
Circulars and regulations, especially like Circular No. 20 of the
Central Bank which prescribes a penalty for its violation, should
be published before becoming effective. Before the public may
be bound by its contents, especially its penal provisions, a law,
regulation or circular must be published and the people officially
and specifically informed of said contents and its penalties.
2. ID.; JURISDICTION; APPEALS; QUESTIONS THAT MAY BE
RAISED FOR THE FIRST TIME ON APPEAL. 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 the accused committed
no violation of the circular, and the trial court may be said to
have no jurisdiction. This question may be raised at any stage of
the proceedings whether or not raised in the court below.
DECISION
MONTEMAYOR, J p:
Que Po Lay is appealing from the decision of the Court of First
Instance of Manila, finding him guilty of violating Central Bank
Circular No. 20 in connection with section 34 of Republic Act No.
265, and sentencing him to suffer six months imprisonment, to
pay a fine of P1,000 with subsidiary imprisonment in case of
insolvency, and to pay the costs.

The charge was that the appellant who was in possession of


foreign exchange consisting of U. S. dollars, U. S. checks and U.
S. money orders amounting to about $7,000 failed to sell the
same to the Central Bank through its agents within one day
following the receipt of such foreign exchange as required by
Circular No. 20. The appeal is based on the claim that said
circular No. 20 was not published in the Official Gazette prior to
the act or omission imputed to the appellant, and that
consequently, said circular had no force and effect. It is
contended that Commonwealth Act No. 638 and Act 2930 both
require said circular to be published in the Official Gazette, it
being an order or notice of general applicability. The Solicitor
General answering this contention says that Commonwealth Act
No. 638 and 2930 do not require the publication in the Official
Gazette of said circular issued for the implementation of a law in
order to have force and effect.
We agree with the Solicitor General that the laws in question do
not require the publication of the circulars, regulations or notices
therein mentioned in order to become binding and effective. All
that said two laws provide is that laws, resolutions, decisions of
the Supreme Court and Court of Appeals, notices and
documents required by law to be of no force and effect. In other
words, said two Acts merely enumerate and make a list of what
should be published in the Official Gazette, presumably, for the
guidance of the different branches of the Government issuing
same, and of the Bureau of Printing.
However, section 11 of the Revised Administrative Code
provides that statutes passed by Congress shall, in the absence
of special provision, take effect at the beginning of the fifteenth
day after the completion of the publication of the statute in the
Official Gazette. Article 2 of the new Civil Code (Republic Act
386) equally provides that laws shall take effect after fifteen days
following the completion of their publication in the Official
Gazette, unless it is otherwise provided. It is true that Circular
No. 20 of the Central Bank is not a statute or law but being
issued for the implementation of the law authorizing its issuance,
it has the force and effect of law according to settled
jurisprudence. (See U. S. vs. Tupasi Molina, 29 Phil., 119 and
authorities cited therein.) Moreover, as a rule, circulars and
regulations especially like the Circular No. 20 of the Central
Bank in question which prescribes a penalty for its violation
should be published before becoming effective, this, on the
general principle and theory that before the public is bound by its
contents, especially its penal provisions, a law, regulation or
circular must first be published and the people officially and
especifically informed of said contents and its penalties.
Our old Civil Code (Spanish Civil Code of 1889) has a similar
provision about the effectivity of laws (Article 1 thereof), namely,
that laws shall be binding twenty days after their promulgation,
and that their promulgation shall be understood as made on the
day of the termination of the publication of the laws in the
Gazette. Manresa, commenting on this article is of the opinion
that the word "laws" include regulations and circulars issued in
accordance with the same. He says:
"El Tribunal Supremo, ha interpretado el articulo 1. del
CodigoCivil 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. 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 Gazette or after November 1951. In
other words, appellant could not be held liable for its violation, for
it was not binding at the time he was found to have failed to sell
the foreign exchange in his possession within one day following
his taking possession thereof.
But the Solicitor General also contends that this question of nonpublication of the Circular is being raised for the first time on
appeal in this Court, which cannot be done by appellant.
Ordinarily, one may raise on appeal any question of law or fact
that has been raised in the court below and which is within the
issues made by the parties, in their pleadings. (Section 19, Rule
48 of the Rules of Court). But the question of non-publication is
fundamental and decisive. If as a matter of fact Circular No. 20
had not been published as required by law before its violation,
then in the eyes of the law there was no such circular to be
violated and consequently appellant committed no violation of
the circular or committed any offense, and the trial court may be
said to have had no jurisdiction. This question may be raised at
any stage of the proceeding whether or not raised in the court
below.
In view of the foregoing, we reverse the decision appealed from
and acquit the appellant, with costs de oficio.
Paras C. J., Bengzon, Padilla, Reyes, Bautista Angelo,
Labrador, Concepcion and Diokno, JJ., concur.
||| (People v. Que Po Lay, G.R. No. 6791, [March 29, 1954], 94
PHIL 640-644)

6. TANADA v. TUVERA
EN BANC
[G.R. No. 63915. April 24, 1985.]
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS 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 his capacity 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 of
Printing, respondents.
Lorenzo M. Taada, Abraham F. Sarmiento, Mabini Legal Aid
Committee for petitioners
Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE
OFFICIAL
GAZETTE;
LEGAL
PERSONALITY
OF
PETITIONERS TO FILE MANDAMUS TO COMPEL
PUBLICATION, RECOGNIZED. The subject of the petition is
to compel the performance of a public duty and petitioners
maintain they need not show any specific interest for their
petition to be given due course. The right sought to be enforced
by petitioners is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered
to represent the people, has entered his appearance for
respondents in this case.
2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE
PUBLICATION IN THE OFFICIAL GAZETTE EVEN IF THE LAW
ITSELF PROVIDES FOR DATE OF ITS EFFECTIVITY. That
publication in the Official Gazette is not a sine qua
non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates is correct only
insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to
the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its
effectivity.
3. ID.; ID.; ID.; RATIONALE. The clear object of Article 2 of
the Civil Code is to give the general public adequate notice of
the various laws which are to regulate their actions and conduct
as citizens. Without such notice and publication, there would be
no basis for the application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which
he had no notice whatsoever, not even a constructive one.
4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES
"OF A PUBLIC NATURE" OR "OF GENERAL APPLICABILITY,"
A REQUIREMENT OF DUE PROCESS; UNPUBLISHED
PRESIDENTIAL ISSUANCES WITHOUT FORCE AND EFFECT.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines, forfeitures
or penalties for their violation or otherwise impose a burden on
the people, such as tax and revenue measures, fall within this
category. Other presidential issuances which apply only to
particular persons such as administrative and executive orders
need not be published on the assumption that they have been
circularized to all concerned. (People vs. Que Po Lay, 94 Phil.

640; Balbuena, et al. vs. Secretary of Education, et al., 110 Phil.


150) It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents. The Court therefore declares
that presidential issuances of general application, which have
not been published, shall have no force and effect.
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF
UNPUBLISHED PRESIDENTIAL DECREES DOES NOT
AFFECT THOSE WHICH HAVE BEEN ENFORCED OR
IMPLEMENTED PRIOR TO THEIR PUBLICATION. The
implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may
have consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration . . .that an
all inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."
FERNANDO, C.J., concurring with qualification:
1. CONSTITUTIONAL
LAW;
STATUTES;
PUBLICATION
REQUIREMENT NEED NOT BE CONFINED TO THE OFFICIAL
GAZETTE. It is of course true that without the requisite
publication, a due process question would arise if made to apply
adversely to a party who is not even aware of the existence of
any legislative or executive act having the force and effect of law.
But such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage
to be gained. It conduces to certainty. That is to be admitted. It
does not follow, however, that failure to do so would in all cases
and under all circumstances result in a statute, presidential
decree, or any other executive act of the same category being
bereft of any binding force and effect. To so hold would raise a
constitutional question. Such a pronouncement would lend itself
to the interpretation that such a legislative or presidential act is
bereft of the attribute of effectivity unless published in the Official
Gazette. There is no such requirement in the Constitution.
2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL
CODE DOES NOT HAVE THE JUDICIAL FORCE OF A
CONSTITUTIONAL COMMAND. The Chief Justice's qualified
concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a
general application. He is not in agreement with the view that
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 after fifteen days following the completion of
their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil
Code is itself only a legislative enactment, Republic Act No. 386.
It does not and cannot have the juridical force of a constitutional
command. A later legislative or executive act which has the force
and effect of law can legally provide for a different rule.
3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL
ISSUANCES WITHOUT LEGAL FORCE AND EFFECT WOULD
RESULT IN UNDESIRABLE CONSEQUENCES. Nor does
the Chief Justice agree with the rather sweeping conclusion in
the opinion of Justice Escolin that presidential decrees and

executive acts not thus previously published in the Official


Gazette would be devoid of any legal character. That would be,
in his opinion, to go too far. It may be fraught, as earlier noted,
with undesirable consequences. He finds himself therefore
unable to yield assent to such a pronouncement.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE
OFFICIAL GAZETTE; NECESSARY PURSUANT TO THE
BASIC CONSTITUTIONAL REQUIREMENTS OF DUE
PROCESS. The Rule of Law connotes a body of norms and
laws published and ascertainable and of equal application to all
similarly circumstanced and not subject to arbitrary change but
only under certain set procedure. The Court had consistently
stressed that "it is an elementary rule of fair play and justice that
a reasonable opportunity to be informed must be afforded to the
people who are commanded to obey before they can be
punished for its violation," (People vs. de Dios, G.R. No. L11003, August 31, 1959, per the late Chief Justice Paras) citing
the settled principle based on due process enunciated in earlier
cases 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 specially informed of said
contents and its penalties." Without official publication in the
Official Gazette as required by Article 2 of the Civil Code and
Revised Administrative Code, there would be no basis nor
justification for the corollary rule of Article 3 of the Civil
Code (based on constructive notice that the provisions of the law
are ascertainable from the public and official repository where
they are duly published) that "Ignorance of the law excuses no
one from compliance therewith."
2. ID.; ID.; ID.; RESPONDENTS' CONTENTION THAT "ONLY
LAWS WHICH ARE SILENT AS TO THEIR EFFECTIVITY DATE
NEED TO BE PUBLISHED IN THE OFFICIAL GAZETTE FOR
THEIR EFFECTIVITY," UNTENABLE. The plain text and
meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided," i.e. a different
effectivity date is provided by the law itself. This proviso perforce
refers to a law that had been duly published pursuant to the
basic constitutional requirements of due process. The best
example of this is the Civil Code itself: the same Article 2
provides otherwise that it "shall take effect (only) one year (not
15 days) after such publication." To sustain respondents
misreading that "most laws or decrees specify the date of their
effectivity and for this reason, publication in the Official Gazette
is not necessary for their effectivity" would be to nullify and
render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an
earlier effectivity date in the law itself before the completion of 15
days following its publication which is the period generally fixed
by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE
OFFICIAL GAZETTE; RETROACTIVITY IN EFFECTIVITY DATE
NOT ALLOWED WHERE IT WILL RUN COUNTER TO

CONSTITUTIONAL RIGHTS OR DESTROY VESTED RIGHTS.


There cannot be any question but that even if a decree
provides for a date of effectivity, it has to be published. When a
date effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in
the Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the
decree itself. There should be no retroactivity if the retroactivity
will run counter to constitutional rights or shall destroy vested
rights.

PLANA, J., separate opinion:


1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE
OFFICIAL GAZETTE NOT ESSENTIAL FOR EFFECTIVITY
FOR EFFECTIVITY OF LAWS. The Philippine Constitution
does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws
to affected parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the
publication in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for
their effectivity date.
2. ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN
IN THE OFFICIAL GAZETTE. Article 2 of the Civil
Code provides that "laws shall take effect after fifteen days
following the completion of their publication in the Official
Gazette, unless it is otherwise provided." Two things may be said
of this provision: Firstly, it obviously does not apply to a law with
a built-in provision as to when it will take effect. Secondly, it
clearly recognizes that each law may 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 be published
elsewhere than in the Official Gazette.
3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR
RESTRICT OPERATION OF A STATUTE WITH A PROVISION
AS TO ITS EFFECTIVITY. Not all legislative acts are required
to be published in the Official Gazette but only "important" ones
"of a public nature." Moreover, Commonwealth Act No. 638 does
not provide that publication in the Official 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 an earlier
one of general application such as Commonwealth Act No. 638,
cannot nullify or restrict the operation of a subsequent statute
that has a provision of its own as to when and how it will take
effect. Only a higher law, which is the Constitution, can assume
the role.
DECISION
ESCOLIN, J p:
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be

valid and enforceable must be published in the Official Gazette


or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and
or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and
administrative orders.
Specifically, the publication
issuances is sought:

of

the

following

presidential

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.
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, 241245, 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, 438440, 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.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
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.
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.
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.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380433, 436-439.
The respondents, through the Solicitor General, would have this
case dismissed outright on the ground that petitioners have no
legal personality or standing to bring the instant petition. The
view is submitted that in the absence of any showing that
petitioners are personally and directly affected or prejudiced by

the alleged non-publication of the presidential issuances in


question 2 said petitioners are without the requisite legal
personality to institute this mandamus proceeding, they are not
being "aggrieved parties" within the meaning of Section 3, Rule
65 of the Rules of Court, which we quote: Cdpr
"SEC. 3. Petition for Mandamus. When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant, immediately
or at some other specified time, to do the act required to be done
to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the
defendant."
Upon the other hand, petitioners maintain that since the subject
of the petition concerns a public right and its object is to compel
the performance of a public duty, they need not show any
specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the
1910 case of Severino vs. Governor General, 3 this Court held
that while the general rule is that "a writ of mandamus would be
granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he
holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest
and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest
in the result, it being sufficient to show that he is a citizen and as
such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431]."

"No reason exists in the case at bar for applying the general rule
insisted upon by counsel for the respondent. The circumstances
which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these
proceedings no other person could be, as we have seen that it is
not the duty of the law officer of the Government to appear and
represent the people in cases of this character."
The reasons given by the Court in recognizing a private citizen's
legal personality in the aforementioned case apply squarely to
the present petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered
to represent the people, has entered his appearance for
respondents in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity of
laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to
take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored
on Article 2 of the Civil Code:

"Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, . . ."
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of
decisions, 4 this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation itself
does not provide for its effectivity date for then the date of
publication is material for determining its date of effectivity, which
is the fifteenth day following its publication but not when the
law itself provides for the date when it goes into effect.

Thus, in said case, this Court recognized the relator Lope


Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said: Cdpr

Respondents' argument, however, is logically correct only insofar


as it equates the effectivity of laws with the fact of publication.
Considered in the light of other statutes applicable to the issue at
hand, the conclusion is easily reached that said Article 2 does
not preclude the requirement of publication in the Official
Gazette, even if the law itself provides for the date of its
effectivity. Thus, Section 1 of Commonwealth Act 638 provides
as follows:

"We are therefore of the opinion that the weight of authority


supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if
under the particular circumstances the reason for the rule does
not exist, the rule itself is not applicable and reliance upon the
rule may well lead to error.'

"Section 1. There shall be published in the Official Gazette [1] all


important legislative acts and resolutions of a public nature of the
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by
said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of

documents as the President of the Philippines shall determine


from time to time to have general applicability and legal effect, or
which he may authorize so to be published. . . ."
The clear object of the above quoted provision is to give the
general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such
notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen
for the transgression of a law of which he had no notice
whatsoever, not even a constructive one. cdphil
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance
that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansa and for
the diligent ones, ready access to the legislative records no
such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means
of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves
of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion genrica de
leyes, se comprenden tambin los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su
potestad." 5
The very first clause of Section 1 of Commonwealth Act
638 reads: "There shall be published in the Official Gazette . . ."
The word "shall" used therein imposes upon respondent officials
an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself
makes a list of what should be published in the official Gazette.
Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such
publication.
The publication of all presidential issuances "of a public nature"
or "of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden on the people,
such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular
persons or class of persons such as administrative and
executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7 :
"In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the

requirement of due process and the Rule of Law demand that


the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their
official and specific contents."
The Court therefore declares that presidential issuances of
general application, which have not been published, shall have
no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this decision
might have on acts done in reliance of the validity of those
presidential decrees which were published only during the
pendency of this petition, have put the question as to whether
the Court's declaration of invalidity apply to P.D.s which had
been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth in
Chicot County Drainage District vs. Baxter Bank 8 to wit: LLjur
"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 was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree.
Norton v. Shelby County, 118 U.S. 425, 442; Chicago, I. & 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 of
unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly
be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects with respect to
particular conduct, private and official. Questions of rights
claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the
statute and of its previous application, demand examination.
These questions are among the most difficult of those which
have engaged the attention of courts, state and federal, and it is
manifest from numerous decisions that an all-inclusive statement
of a principle of absolute retroactive invalidity 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, albeit said right had accrued in his favor before said law
was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential
decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot be
justly ignored. The past cannot always be erased by a new
judicial declaration . . . that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it
appears that of the presidential decrees sought by petitioners to
be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor
the texts of these PDs can be ascertained since no copies

thereof are available. But whatever their subject matter may be,
it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan
vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled
that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties
binding on the persons affected thereby." The cogency of this
holding is apparently recognized by respondent officials
considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting
violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication,
even though some criminal laws provide that they shall take
effect immediately."

SO ORDERED.

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.

||| (Taada v. Tuvera, G.R. No. 63915, [April 24, 1985], 220 PHIL
422-444)

Relova, J., concur.


Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Gutierrez, Jr., J., I concur insofar as publication is necessary but
reserve my vote as to the necessity of such publication being in
the Official Gazette.
De la Fuente, J., Insofar as the opinion declares the unpublished
decrees and issuances of a public nature or general applicability
ineffective, until due publication thereof.