MEMORANDUM

FOR : USEC. VICENTE R. ROMANO III

Tourism Planning and Promotions

FROM : The Director, Legal Service

SUBJECT : As Stated

DATE : August 18, 2010

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RA NO. 9593 (Tourism Act of 2009)

When Laws Take Effect?

“Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette, or in a newspaper of general circulation
in the Philippines, unless it is otherwise provided.” (Art. 2, New Civil Code of the
Philippines, as amended by EO No. 200)

“Laws shall take effect after fifteen (15) days following the completion of their
publication in the Official Gazette or in a newspaper of general circulation, unless
it is otherwise provided.” (Sec. 18, Chapter 5, Book I, EO No. 292, s. 1987,
Administrative Code of 1987)

“xxx laws xxx shall immediately upon their approval, or as soon thereafter as
possible, be published in full in the Official Gazette, to become effective only after
fifteen days from their publication, or on another date specified by the legislature,
in accordance with Article 2 of the Civil Code.” (Tañada vs. Tuvera, G.R. No.
6391, December 29, 1986)

Effectivity of RA No. 9593

“This Act shall take effect thirty (30) days after its publication in the Official
Gazette or in at least two (2) newspapers of national circulation.” (Section 113,
RA No. 9593)

RA No. 9593 was published in the Official Gazette, Vol. 105, No. 28 on July 13, 2009. In
accordance with Art. 2 of the Civil Code and the above-quoted decision of the Supreme Court in
the case of Tañada vs. Tuvera, RA No. 9593 took effect on August 12, 2009 (which is the
30th day after the publication of RA No. 9593 on July 13, 2009 in the Official Gazette).

Likewise, in accordance with Tañada vs. Tuvera, the Implementing Rules and
Regulations (IRR) of RA No. 9593 was promulgated on November 10, 2009 in accordance with
Section 107 thereof and was published in two (2) newspapers of general circulation on
November 12, 2009. Furthermore, three (3) certified copies of the IRR was also deposited with
the U.P. Law Center as required under Chapter II, Book VII of EO No. 292, 1987.

The reference or mention made about the DOT currently operating under EO No. 366
refers to the plantilla of its present personnel complement pending approval by DBM of the
plantilla under RA 9593 (EO 366 pertains to rationalization of functions of all government
agencies to eliminate redundancies and minimize, if not eliminate, overlaps and duplications,
and improve on its systems and procedures). EO No. 366 certainly cannot prevent RA No.
9593, which is a law, from taking effect and in mandating the DOT to exercise its mandate and
functions thereunder, among which, are its membership and/or representations in the boards of
relevant government agencies or instrumentalities of the government as identified in RA No.
9593.
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DOT STATUS OF REPRESENTATION IN THE MCIAA BOARD

From the DOT’s former status as ex officio member of the Board of Directors of the
MCIAA as represented by the Secretary of Tourism or his duly designated representative (i.e.
any Undersecretary or Assistant Secretary) pursuant to Section 6 of RA No. 6958, the Secretary
of Tourism was, by virtue of Section 96(b) Chapter VII of RA No. 9593, elevated to the position
of ex officio vice chairperson of the governing boards of all international airports.

Section 6 of RA No. 6958, therefore, was amended by said Section 96(b) of RA No.
9593 in so far as the representation of the ex officio vice chairman of the MCIAA board is
concerned, i.e. from the General Manager of the MCIAA to the Secretary of Tourism. Said
amendment is expressly provided for in Section 111 of RA No. 9593 when it provides, in
addition to the other laws enumerated in said section that “all other laws, presidential decrees,
executive orders, proclamations and administrative regulations inconsistent with the provisions
of this Act are hereby amended, modified, superseded or repealed accordingly.”

“In case of repugnancy between two laws, what is material, in determining which of the two
should prevail, is the date of their approval “(DOJ Opinion No. 47, s. 1988). Thus, as between
Section 6 of RA No. 6958 and Section 96(b) of RA No. 9593 is concerned, the latter should
prevail it being the “latest expression of the legislative will on the matter” (DOJ Opinion No. 112,
s. 1988), i.e. representation as ex officio vice chairperson to the MCIAA board.

DESIGNATION OF A DOT UNDERSECRETARY

TO REPRESENT THE SECRETARY OF TOURISM
IN THE MCIAA BOARD

Section 96(b) in so far as the Secretary of Tourism’s representation in the MCIAA board is
concerned provides, thus:

“(b) The Secretary shall be the ex officio Vice Chairperson of the governing
boards of all international airports;”

“Although, generally the use of the word “shall” implies that the statute is mandatory, it is
in no wise absolute and inflexible criterion in the vast areas of law and equity. There is no
universal rule by which directory provisions in a statute may in all circumstances be
distinguished from those which are mandatory. Neither is there an absolute test for determining
whether a statutory direction is to be considered mandatory or directory. In the determination of
this question, the primary objective is to ascertain legislative intent. The legislative intent must
be obtained from all the surrounding circumstances, and the determination does not depend on
the form of the statute. Consideration must be given to the entire statute, its object, purpose,
legislative history, and the consequences which would result from construing it one way or the
other, and the statute must be construed in connection with other related statutes.” (DOJ
Opinion No. 040, s. 2007)

It should be stressed that Section 6 of RA No. 6958 as amended by Section 96(b) of RA

No. 9593 in so far as the ex officio representation of the Secretary of Tourism is concerned
allows ex officio representation by either the undersecretary or assistant secretary as
representatives of the other secretaries of the executive departments mentioned in said
provision.

Thus, “the language of a statute, however, mandatory in form, may be deemed directory
whenever the legislative purpose can best be carried out by such construction.” (DOJ Opinion
No. 040, s. 2007)

“Accordingly, when a particular provision of a statute related to some immaterial matter,

as to which compliance with the statute is a matter of convenience rather than substance, it is
generally regarded as directory, unless followed by words of absolute prohibition. Again, a
statute is regarded as directory where no substantial rights depend on it, no injury can result
from ignoring it, and the purpose of the legislature can be accomplished in a manner other than
that prescribed, with substantially the same result.” (DOJ Opinion No. 040, s. 2007)
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RA No. 9593 in so far as representation of other relevant executive department heads to

the different governing boards of the DOT attached agencies are concerned, namely: the
Tourism Infrastructure and Enterprise Zone Authority (TIEZA); the Tourism Promotions Board
(TPB); and the Duty Free Philippines Corporation (DFPC), allows delegated representation by
said executive department heads to represent them in the said boards provided that said
representatives are duly authorized to act on behalf of their respective principals.

“(T)hat construction is to be sought which gives effect to the whole of the statute. Hence,
where the statute is susceptible of more than one interpretation, we should adopt such
reasonable and beneficial construction as will render the provision thereof operative and
effective and harmonious with each other.” (DOJ Opinion No. 040, s. 2007)

Moreover, the Administrative Code of 1987 in so far as pertinent, provides, to wit:

“SECTION 7. Powers and Functions of the Secretary. – The Secretary shall:

xxx xxx xxx

“(8) Delegate authority to officers and employees under the

Secretary’s direction in accordance with ths Code;

xxx xxx xxx

“SECTION 10. Powers and Duties of the Undersecretary. – The Undersecretary

shall:

xxx xxx xxx

“(5) Temporarily discharge the duties of the Secretary in the

latter’s absence or inability to discharge his duties for any
cause or in case of vacancy of the said office, unless
otherwise provided by law…”

Based from the aforementioned provisions of the Administrative Code of 1987 and the
above discussions, the Secretary of every Department of the Government concerned has the
authority to delegate any officer or employee under the Secretary’s direction. (DOJ Opinion No.
040, s. 2007)

For the Undersecretary’s information.

(Signed)
ATTY. EVELYN R. CAJIGAL