THIRD DIVISION

[G.R. No. 125183. September 29, 1997]

MUNICIPALITY OF SAN JUAN, METRO MANILA, petitioner, vs. COURT OF

APPEALS, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, CORAZON DE JESUS HOMEOWNERS ASSOCIATION,
INC., ADRIANO A. DELAMIDA, SR. CELSO T. TORRES, TARCILA V. ZATA,
QUIRICO T. TORRES, CATALINA BONGAT, MILAGROS A. HERBOLARIO,
ROSALINDA A. PIMENTAL, PURIFICACION MORELLA, FRANCISCO
RENION, SR., MARCELINA CORPUZ, BENEDICTO FALCON, MAXIMO
FALCON, MARIO BOLANOS, VICENTE T. SURIAO, ROSARIO GREGORIA
G. DORADO, JEREMIAS Z. PATRON, ALEX RODRIGUEZ, MARIA LUISA
ALPAPARA, HERMINIA C. RODRIGUEZ, VICTORIANO ESPANOL, MARIO
L. AGUILAR, FREDDIE AMADOR, SILVERIO PURISIMA, JR., PROCOPIO
B. PENARANDA, ELADIO MAGLUYAN, HELENITA GUEI, CELESTINO
MONTANO, ROMEO GOMEZ, OFELIA LOGO, JIMMY MACION, DAISY A.
MANGA, MAURO MANGA, ARTHUR HERBOLARIO, MANOLITO
HERBOLARIO, ROSARIO ANCHETA, TERESITA A. VICTORIA, ROSALINA
SAMPAGA, MARIQUITA RUADO, FELIPE ANCHETA, MAGDALENA
CABREZA, MARIA BIANDILLA, NILDA ARENSOL, LORENZO S. TOLEDO,
and NAPOLEON D. VILORIA, SR., respondents.

DECISION
MELO, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing and
seeking to reverse and set aside: a) the decision dated November 23, 1995 of the Court of Appeals
reversing the decision of the Regional Trial Court of Pasig, Metro Manila, Branch 159; and b) the
resolution dated May 28, 1996 denying reconsideration of said decision.
The generative facts of the case are as follows:
On February 17, 1978, then President Ferdinand Marcos issued Proclamation No. 1716
reserving for Municipal Government Center Site Purposes certain parcels of land of the public
domain located in the Municipality of San Juan, Metro Manila.
Considering that the land covered by the above-mentioned proclamation was occupied by
squatters, the Municipality of San Juan purchased an 18-hectare land in Taytay, Rizal as
resettlement center for the said squatters. Only after resettling these squatters would the
municipality be able to develop and construct its municipal government center on the subject land.
After hundreds of squatter families were resettled, the Municipality of San Juan started to
develop its government center by constructing the INP Building, which now serves as the PNP
Headquarters, the Fire Station Headquarters, and the site to house the two salas of the Municipal
Trial Courts and the Office of the Municipal Prosecutors. Also constructed thereon are the Central
Post Office Building and the Municipal High School Annex Building.
On October 6, 1987, after Congress had already convened on July 26, 1987, former President
Corazon Aquino issued Proclamation No. 164, amending Proclamation No. 1716. Said amendatory
proclamation pertinently reads as follows:
PROCLAMATION NO. 164
AMENDING PROCLAMATION NO. 1716, DATED FEBRUARY 17, 1978, WHICH RESERVED
FOR MUNICIPAL GOVERNMENT CENTER SITE PURPOSES CERTAIN PARCELS OF
LAND OF THE PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OF SAN JUAN,
METROPOLITAN MANILA, ISLAND OF LUZON, BY EXCLUDING FROM ITS OPERATION
THE PARCELS OF LAND NOT BEING UTILIZED FOR GOVERNMENT CENTER SITES
PURPOSES BUT ACTUALLY OCCUPIED FOR RESIDENTIAL PURPOSES AND
DECLARING THE LAND OPEN TO DISPOSITION UNDER THE PROVISIONS OF THE
PUBLIC LAND ACT, AS AMENDED.

Upon recommendation of the Secretary of Environment and Natural Resources and by virtue of the powers
vested in me by law, I, CORAZON C. AQUINO, President of the Philippines, do hereby amend Proclamation
No. 1716, dated February 17, 1978, which established for municipal government center site purposes certain
parcels of land mentioned therein situated in the Municipality of San Juan, Metro Manila, by excluding from
its operation the parcels of land not being utilized for government center site purposes but actually occupied
for residential purposes and declaring the land so excluded, together with other parcels of land not covered by
Proclamation No. 1716 but nevertheless occupied for residential purposes, open to disposition under the
provisions of the Public Land Act, as amended, subject to future survey, which are hereunder particularly
described as follows :

Lot 1 (Port.) Psu-73270

xxxxxxxxx

Lot 4 (Port.) Psd-740

and Psd-810

xxxxxxxxx

Lot 5 (Port.) Psu-73270

xxxxxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.

Done in the City of Manila, this 6th day of October in the year of Our Lord, nineteen hundred and eighty-
seven.

(Sgd.) CORAZON C. AQUINO

By the President :

(Sgd.) CATALINO MACARAIG, JR.

Acting Executive Secretary

(Rollo, pp. 148-151.)

On June 1, 1988, the Corazon de Jesus Homeowners Association, Inc., one of herein private
respondents, filed with the Regional Trial Court of the National Capital Judicial Region (Pasig,
Branch 159) a petition for prohibition with urgent prayer for restraining order against the Municipal
Mayor and Engineer of San Juan and the Curator of Pinaglabanan Shrine, to enjoin them from
either removing or demolishing the houses of the association members who were claiming that the
lots they occupied have been awarded to them by Proclamation No. 164.
On September 14, 1990, the regional trial court dismissed the petition, ruling that the property
in question is being utilized by the Municipality of San Juan for government purposes and thus, the
condition set forth in Proclamation No. 164 is absent.
The appeal before the Court of Appeals was dismissed in a decision dated July 17, 1991. This
decision became final and the said judgment was duly entered on April 8, 1992.
Disregarding the ruling of the court in this final judgment, private respondents hired a private
surveyor to make consolidation-subdivision plans of the land in question, submitting the same to
respondent Department of Environment and Natural Resources (DENR) in connection with their
application for a grant under Proclamation No. 164.
To prevent DENR from issuing any grant to private respondents, petitioner municipality filed a
petition for prohibition with prayer for issuance of a temporary restraining order and preliminary
injunction against respondent DENR and private respondent Corazon de Jesus Homeowners
Association.
The regional trial court sustained petitioner municipality, enjoining the DENR from disposing
and awarding the parcels of land covered by Proclamation No. 164.
The Court of Appeals reversed, hence, the present recourse.
Cutting through the other issues, it would appear that ultimately, the central question and bone
of contention in the petition before us boils down to the correct interpretation of Proclamation No.
164 in relation to Proclamation No. 1716.
Petitioner municipality assails the decision of the Court of Appeals by hammering on the issue
of res judicata in view of the fact that an earlier judgment, which had become final and executory,
had already settled the respective rights of the parties under Proclamation No. 164. This
notwithstanding, petitioner reiterates the reasons why the court had previously ruled in favor of
petitioners rights over the subject property against the claims of private respondents.
We find good legal basis to sustain petitioners position on the issue of res judicata insofar as
the particular area covered by Proclamation No. 164, which was the subject matter of the earlier
case, is concerned.
The basic elements of res judicata are: (a) the former judgment must be final; (b) the court
which rendered it had jurisdiction over the subject matter and the parties; (c) it must be a judgment
on the merits; and (d) there must be between the first and second actions identity of parties, subject
matter, and cause of action (Mangoma vs. Court of Appeals, 241 SCRA 21 [1995]).
The existence of the first three elements can not be disputed. As to identity of parties, we have
ruled that only substantial identity is required and not absolute identity of parties (Suarez vs.
Municipality of Naujan, 18 SCRA 682 [1966]). The addition of public respondent DENR in the
second case will thus be of no moment. Likewise, there is identity of cause of action since the right
of the municipality over the subject property, the corresponding obligation of private respondents to
respect such right and the resulting violation of said right all remain to be the same in both the first
and the second actions despite the fact that in the first action, private respondents were the plaintiff
while in the second action, they were the respondents.
The last requisite is identity of subject matter. Res judicata only extends to such portion of land
covered by Proclamation No. 164 which the court ruled may not be automatically segregated from
the land covered by Proclamation No. 1716. It does not include those portions which are outside
the coverage of Proclamation No. 1716.
Withal, reversal of the decision of the Court of Appeals would be justified upon the above
premise and our discussion may properly end here. However, there exists a more basic reason for
setting aside the appealed decision and this has reference to a fundamental and gross error in the
issuance of Proclamation No. 164 on October 16, 1987 by then President Aquino.
Proclamation No. 1716 was issued by the late President Ferdinand E. Marcos on February 17,
1978 in the due exercise of legislative power vested upon him by Amendment No. 6 introduced in
1976. Being a valid act of legislation, said Proclamation may only be amended by an equally valid
act of legislation. Proclamation No. 164 is obviously not a valid act of legislation. After the so-called
bloodless revolution of February 1986, President Corazon Aquino took the reigns of power under a
revolutionary government. On March 24, 1986, she issued her historic Proclamation No. 3,
promulgating the Provisional Constitution, or more popularly referred to as the Freedom
Constitution. Under Article II, Section 1 of the Freedom Constitution, the President shall continue to
exercise legislative power until a legislature is elected and convened under a new
constitution. Then came the ratification of the draft constitution, to be known later as the 1987
Constitution. When Congress was convened on July 26, 1987, President Aquino lost this legislative
power under the Freedom Constitution. Proclamation No. 164, amending Proclamation No. 1716
was issued on October 6, 1987 when legislative power was already solely on Congress.
Although quite lamentably, this matter has escaped the attention of petitioner as well as the
courts before which this case has already passed through, this Court cannot help noticing this basic
flaw in the issuance of Proclamation No. 164. Because this unauthorized act by the then president
constitutes a direct derogation of the most basic principle in the separation of powers between the
three branches of government enshrined in our Constitution, we cannot simply close our eyes and
rely upon the principle of the presumption of validity of a law.
There is a long standing principle that every statute is presumed to be valid (Salas vs. Jarencio,
46 SCRA 734 [1970]; Peralta vs. Comelec, 82 SCRA 30 [1978]). However, this rests upon the
premise that the statute was duly enacted by legislature. This presumption cannot apply when
there is clear usurpation of legislative power by the executive branch. For this Court to allow such
disregard of the most basic of all constitutional principles by reason of the doctrine of presumption
of validity of a law would be to turn its back to its sacred duty to uphold and defend the
Constitution. Thus, also, it is in the discharge of this task that we take this exception from the
Courts usual practice of not entertaining constitutional questions unless they are specifically raised,
insisted upon, and adequately argued.
We, therefore, hold that the issuance of Proclamation No. 164 was an invalid exercise of
legislative power. Consequently, said Proclamation is hereby declared NULL and VOID.
WHEREFORE, the appealed decision of the Court of Appeals is hereby SET ASIDE. Public
respondent Department of Environment and Natural Resources is hereby permanently ENJOINED
from enforcing Proclamation No. 164.
SO ORDERED.
Narvasa, C.J. (Chairman), Romero, Francisco and Panganiban, JJ., concur.
 EN BANC

[G.R. No. 143596. December 11, 2003]

JUDGE TOMAS C. LEYNES, petitioner, vs. THE COMMISSION ON AUDIT

(COA), HON. GREGORIA S. ONG, DIRECTOR, COMMISSION ON AUDIT
and HON. SALVACION DALISAY, PROVINCIAL AUDITOR,respondents.

DECISION
CORONA, J.:

Before us is a petition for certiorari under Rule 65 in relation to Section 2, Rule 64 of the Rules
[1]
of Court, seeking to reverse and set aside the decision dated September 14, 1999 of the
Commission on Audit (COA), affirming the resolution of COA Regional
DirectorGregoria S. Ong dated March 29, 1994 which in turn affirmed the opinion dated October
19, 1993 of the Provincial Auditor of OrientalMindoro, Salvacion M. Dalisay. All three denied the
grant of P1,600 monthly allowance to petitioner Judge Tomas C. Leynes by
theMunicipality of Naujan, Oriental Mindoro.

FACTUAL ANTECEDENTS

Petitioner Judge Tomas C. Leynes who, at present, is the presiding judge of

the Regional Trial Court of Calapan City, OrientalMindoro, Branch 40 was formerly assigned to
the Municipality of Naujan, Oriental Mindoro as the sole presiding judge of the Municipal Trial Court
thereof. As such, his salary and representation and transportation allowance (RATA) were drawn
from the budget of the Supreme Court. In addition, petitioner received a monthly allowance
[2] [3]
of P944 from the local funds of the Municipality of Naujan starting 1984.
On March 15, 1993, the Sangguniang Bayan of Naujan, through Resolution No. 057, sought
the opinion of the Provincial Auditor and the Provincial Budget Officer regarding any budgetary
limitation on the grant of a monthly allowance by the municipality to petitioner judge. On May 7,
1993, the Sangguniang Bayan unanimously approved Resolution No. 101 increasing petitioner
[4]
judges monthly allowance from P944 to P1,600 (an increase of P656) starting May 1993. By
virtue of said resolution, the municipal government (the Municipal Mayor and
the Sangguniang Bayan) approved a supplemental budget which was likewise approved by
the SangguniangPanlalawigan and the Office of Provincial Budget and Management of
Oriental Mindoro. In 1994, the Municipal Government of Naujanagain provided for petitioner
judges P1,600 monthly allowance in its annual budget which was again approved by
the SangguniangPanlalawigan and the Office of Provincial Budget and Management of
[5]
Oriental Mindoro.
On February 17, 1994, Provincial Auditor Salvacion M. Dalisay sent a letter to the Municipal
Mayor and the Sangguniang Bayan ofNaujan directing them to stop the payment of the P1,600
monthly allowance or RATA to petitioner judge and to require the immediate refund of the amounts
previously paid to the latter. She opined that the Municipality of Naujan could not grant RATA to
petitioner judge in addition to the RATA the latter was already receiving from the Supreme
Court. Her directive was based on the following:

Section 36, RA No. 7645, General Appropriations Act of 1993

Representation and Transportation Allowances. The following officials and those of equivalent rank as may
be determined by the Department of Budget and Management (DBM) while in the actual performance of
their respective functions are hereby granted monthly commutable representation and transportation
allowances payable from the programmed appropriations provided for their respective offices, not exceeding
the rates indicated below . . .

National Compensation Circular No. 67 dated January 1, 1992, of the Department of Budget and
Management

Subject: Representation and Transportation Allowances of National Government Officials and Employees

xxxxxxxxx

4. Funding Source: In all cases, commutable and reimbursable RATA shall be paid from the amount
appropriated for the purpose and other personal services savings of the agency or project from where the
officials and employees covered under this Circular draw their salaries. No one shall be allowed to collect
[6]
RATA from more than one source. (emphasis supplied)

Petitioner judge appealed to COA Regional Director Gregoria S. Ong who, however, upheld the
opinion of Provincial Auditor Dalisayand who added that Resolution No. 101, Series of 1993 of
the Sangguniang Bayan of Naujan failed to comply with Section 3 of Local Budget Circular No. 53
dated September 1, 1993 outlining the conditions for the grant of allowances to judges and other
national officials or employees by the local government units (LGUs). Section 3 of the said budget
circular provides that:

Sec. 3 Allowances. LGUs may grant allowances/additional compensation to the national government
officials/employees assigned to their locality at rates authorized by law, rules and regulations and subject to
the following preconditions:

a. That the annual income or finances of the municipality, city or province as certified by the
Accountant concerned will allow the grant of the allowances/additional compensation without
exceeding the general limitations for personal services under Section 325 of RA 7160;

b. That the budgetary requirements under Section 324 of RA 7160 including the full requirement of
 RA 6758 have been satisfied and provided fully in the budget as certified by the Budget
Officer and COA representative in the LGU concerned;

c. That the LGU has fully implemented the devolution of personnel/functions in accordance with the
provisions of RA 7160;

d. That the LGU has already created mandatory positions prescribed in RA 7160; and

e. That similar allowances/additional compensation are not granted by the national government to
[7]
the officials/employees assigned to the LGU.

Petitioner judge appealed the unfavorable resolution of the Regional Director to the
Commission on Audit. In the meantime, a disallowance of the payment of the P1,600 monthly
allowance to petitioner was issued. Thus he received his P1,600 monthly allowance from
the Municipality of Naujan only for the period May 1993 to January 1994.
On September 14, 1999, the COA issued its decision affirming the resolution of Regional
Director Gregoria S. Ong:

The main issue . . . is whether or not the Municipality of Naujan, Oriental Mindoro can validly provide RATA
to its Municipal Judge, in addition to that provided by the Supreme Court.

Generally, the grant of (RATA) [sic] to qualified national government officials and employees pursuant to
Section 36 of R.A. 7645 [General Appropriations Act of 1993] and NCC No. 67 dated 01 January 1992 is
subject to the following conditions to wit:

1. Payable from the programmed /appropriated amount and others from personal services savings of
the respective offices where the officials or employees draw their salaries;

2. Not exceeding the rates prescribed by the Annual General Appropriations Act;

3. Officials /employees on detail with other offices or assigned to serve other offices or agencies
shall be paid from their parent agencies;

4. No one shall be allowed to collect RATA from more than one source.

On the other hand, the municipal government may provide additional allowances and other benefits to judges
and other national government officials or employees assigned or stationed in the municipality, provided, that
the finances of the municipality allow the grant thereof pursuant to Section 447, Par. 1 (xi), R.A. 7160, and
provided further, that similar allowance/additional compensation are not granted by the national government
to the official/employee assigned to the local government unit as provided under Section 3(e) of Local
Budget Circular No. 53, dated 01 September 1993.

The conflicting provisions of Section 447, Par. (1) (xi) of the Local Government Code of 1991 and Section 36
of the General Appropriations Act of 1993 [RA 7645] have been harmonized by the Local Budget Circular
No. 53 dated 01 September 1993, issued by the Department of Budget and Management pursuant to its
powers under Section 25 and Section 327 of the Local Government Code. The said circular must be adhered
to by the local government units particularly Section 3 thereof which provides the implementing guidelines of
Section 447, Par. (1) (xi) of the Local Government Code of 1991 in the grant of allowances to national
government officials/employees assigned or stationed in their respective local government units.

Consequently, the subject SB Resolution No. 101 dated 11 May 1993 of the Sangguniang Bayan of Naujan,
Oriental Mindoro, having failed to comply with the inherent precondition as defined in Section 3 (e). . . is
null and void. Furthermore, the Honorable Judge Tomas C. Leynes, being a national government official is
prohibited to receive additional RATA from the local government fund pursuant to Section 36 of the General
Appropriations Act (R.A. 7645 for 1993) and National Compensation Circular No. 67 dated 1 January 1992.
[8]
(emphasis ours)

ASSIGNMENTS OF ERROR

Petitioner judge filed a motion for reconsideration of the above decision but it was denied by the
Commission in a resolution datedMay 30, 2000. Aggrieved, petitioner filed the instant petition,
raising the following assignments of error for our consideration:
I

WHETHER OR NOT RESOLUTION NO. 1O1, SERIES OF 1993 OF NAUJAN, ORIENTAL MINDORO,
WHICH GRANTED ADDITIONAL ALLOWANCE TO THE MUNICIPAL TRIAL JUDGE OF NAUJAN,
ORIENTAL MINDORO AND INCREASING HIS CURRENT REPRESENTATION AND TRAVELLING
ALLOWANCE (RATA) TO AN AMOUNT EQUIVALENT TO THAT RECEIVED MONTHLY BY
SANGGUNIANG MEMBERS IN PESOS: ONE THOUSAND SIX HUNDRED (P1,600.00) EFFECTIVE
1993, IS VALID.

II

WHETHER OR NOT THE POWER OF MUNICIPAL GOVERNMENTS TO GRANT ADDITIONAL

ALLOWANCES AND OTHER BENEFITS TO NATIONAL GOVERNMENT EMPLOYEES STATIONED
IN THEIR MUNICIPALITY IS VERY EXPLICIT AND UNEQUIVOCAL UNDER THE LOCAL
GOVERNMENT CODE OF 1991 PARTICULARLY SECTION 447 IN RELATION TO SECTIONS 17
AND 22 THEREOF.
 III

WHETHER OR NOT THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM) CAN, BY THE
ISSUANCE OF BUDGET CIRCULARS, RESTRICT A MUNICIPAL GOVERNMENT FROM
EXERCISING ITS GIVEN LEGISLATIVE POWERS OF PROVIDING ADDITIONAL ALLOWANCES
AND OTHER BENEFITS TO NATIONAL EMPLOYEES STATIONED OR ASSIGNED TO THEIR
MUNICIPALITY FOR AS LONG AS THEIR FINANCES SO ALLOW.

IV

WHETHER OR NOT THE LOCAL GOVERNMENT CODE OF 1991 PARTICULARLY SECTION 447 (a)
(1) (xi) WAS EXPRESSLY OR IMPLIEDLY REPEALED OR MODIFIED BY REPUBLIC ACT 7645 AND
THE GENERAL APPROPRIATIONS ACT OF 1993.

WHETHER OR NOT PETITIONER WAS ENTITLED TO RECEIVE THE ADDITIONAL ALLOWANCES

GRANTED TO HIM BY THE MUNICIPALITY OF NAUJAN, ORIENTAL MINDORO BY VIRTUE OF
ITS RESOLUTION NO. 101, SERIES OF 1993.

POSITION OF COA

Respondent Commission on Audit opposes the grant by the Municipality of Naujan of

the P1,600 monthly allowance to petitioner Judge Leynes for the reason that the municipality could
not grant RATA to judges in addition to the RATA already received from the Supreme Court.
[9]
Respondent bases its contention on the following:
1. National Compensation Circular No. 67 (hereafter NCC No. 67) dated January 1, 1992 of the
Department of Budget and Management (DBM) which provides that (a) the RATA of
national officials and employees shall be payable from the programmed appropriations or
personal services savings of the agency where such officials or employees draw their
salary and (b) no one shall be allowed to collect RATA from more than one source;
2. the General Appropriations Act of 1993 (RA 7645) which provided that the RATA of national
officials shall be payable from the programmed appropriations of their respective offices
and
3. Local Budget Circular No. 53 (hereafter LBC No. 53) dated September 1, 1993 of the DBM
which prohibits local government units from granting allowances to national government
officials or employees stationed in their localities when such allowances are also granted
by the national government or are similar to the allowances granted by the national
[10]
government to such officials or employees.

POSITION OF PETITIONER
 Petitioner judge, on the other hand, asserts that the municipality is expressly and unequivocally
empowered by RA 7160 (the Local Government Code of 1991) to enact appropriation ordinances
granting allowances and other benefits to judges stationed in its territory. Section 447(a)(1)(xi) of
the Local Government Code of 1991 imposes only one condition, that is, when the finances of the
municipal government allow. The Code does not impose any other restrictions in the exercise of
such power by the municipality. Petitioner also asserts that the DBM cannot amend or modify a
substantive law like the Local Government Code of 1991 through mere budget circulars. Petitioner
emphasizes that budget circulars must conform to, not modify or amend, the provisions of the law it
[11]
seeks to implement.
HISTORY OF GRANT OF
ALLOWANCES TO JUDGES

The power of local government units (LGUs) to grant allowances to judges stationed in their
respective territories was originally provided by Letter of Instruction No. 1418 dated July 18, 1984
(hereafter LOI No. 1418):

WHEREAS, the State is cognizant of the need to maintain the independence of the Judiciary;

WHEREAS, the budgetary allotment of the Judiciary constitutes only a small percentage of the national
budget;

WHEREAS, present economic conditions adversely affected the livelihood of the members of the Judiciary;

WHEREAS, some local government units are ready, willing and able to pay additional allowances to Judges
of various courts within their respective territorial jurisdiction;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, do hereby
direct:

1. Section 3 of Letter of Implementation No. 96 is hereby amended to read as follows:

3. The allowances provided in this letter shall be borne exclusively by the National
Government. However, provincial, city and municipal governments may pay
additional allowances to the members and personnel of the Judiciary assigned in their
respective areas out of available local funds but not to exceed P1,500.00; Provided,
that in Metropolitan Manila, the city and municipal governments therein may pay
[12]
additional allowances not exceeding P3,000.00. (emphasis ours)

On June 25, 1991, the DBM issued Circular No. 91-7 outlining the guidelines for the continued
receipt of allowances by judges fromLGUs:

Consistent with the constitutional provision on the fiscal autonomy of the judiciary and the policy of the
National Government of allowing greater autonomy to local government units, judges of the Judiciary are
hereby allowed to continue to receive allowances at the same rates which they have been receiving from the
Local Government Units as of June 30, 1989, subject to the following guidelines:

1. That the continuance of payment of subject allowance to the recipient judge shall be entirely
voluntary and non-compulsory on the part of the Local Government Units;

2. That payment of the above shall always be subject to the availability of local funds;

3. That it shall be made only in compliance with the policy of non-diminution of compensation
received by the recipient judge before the implementation of the salary standardization;

4. That the subject allowance shall be given only to judges who were receiving the same as of June
30, 1989 and shall be co-terminous with the incumbent judges; and

5. That the subject allowance shall automatically terminate upon transfer of a judge from one local
government unit to another local government unit. (emphasis ours)

On October 10, 1991, Congress enacted RA 7160, otherwise known as the Local Government
[13]
Code of 1991. The power of theLGUs to grant allowances and other benefits to judges and other
national officials stationed in their respective territories was expressly provided in Sections 447(a)
(1)(xi), 458(a)(1)(xi) and 468(a)(1)(xi) of the Code.
On March 15, 1994, the DBM issued Local Budget Circular No. 55 (hereafter LBC No. 55)
setting out the maximum amount of allowances that LGUs may grant to judges. For provinces and
cities, the amount should not exceed P1,000 and for municipalities, P700.
[14]
On December 3, 2002, we struck down the above circular in Dadole, et al. vs. COA. We
ruled there that the Local Government Code of 1991 clearly provided that LGUs could grant
allowances to judges, subject only to the condition that the finances of the LGUsallowed it. We held
that setting a uniform amount for the grant of allowances (was) an inappropriate way of enforcing
said criterion. Accordingly, we declared that the DBM exceeded its power of supervision
[15]
over LGUs by imposing a prohibition that did not jibe with the Local Government Code of 1991.

ESTABLISHED PRINCIPLES INVOLVED

From the foregoing history of the power of LGUs to grant allowances to judges, the following
principles should be noted:
1. the power of LGUs to grant allowances to judges has long been recognized (since 1984 by
virtue of LOI No. 1418) and, at present, it is expressly and unequivocally provided in
Sections 447, 458 and 468 of the Local Government Code of 1991;
2. the issuance of DBM Circular No. 91-7 dated June 25, 1991 and LBC No. 55 dated March
15, 1994 indicates that the national government recognizes the power of LGUs to grant
such allowances to judges;
3. in Circular No. 91-7, the national government
 merely provides the guidelines for the continued receipt of allowances by judges
from LGUs while in LBC No. 55, the national government merely tries to limit the amount
of allowances LGUs may grant to judges and
4. in the recent case of Dadole, et al. vs. COA, the Court upheld the constitutionally enshrined
autonomy of LGUs to grant allowances to judges in any amount deemed appropriate,
depending on availability of funds, in accordance with the Local Government Code of
1991.

OUR RULING
We rule in favor of petitioner judge. Respondent COA erred in opposing the grant of the P1,600
monthly allowance by theMunicipality of Naujan to petitioner Judge Leynes.

DISCUSSION OF OUR RULING

Section 447(a)(1)(xi) of RA 7160, the Local Government Code of 1991, provides:

(a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its inhabitants . . ., and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective municipal government,
and in this connection shall:

xxxxxxxxx

(xi) When the finances of the municipal government allow, provide for additional allowances and other
benefits to judges, prosecutors, public elementary and high school teachers, and other national government
officials stationed in or assigned to the municipality; (emphasis ours)

Respondent COA, however, contends that the above section has been repealed, modified or
amended by NCC No. 67 datedJanuary 1, 1992, RA 7645 (the General Appropriations Act of 1993)
[16]
and LBC No. 53 dated September 1, 1993.
It is elementary in statutory construction that an administrative circular cannot supersede,
abrogate, modify or nullify a statute. A statute is superior to an administrative circular, thus the latter
[17]
cannot repeal or amend it. In the present case, NCC No. 67, being a mere administrative
circular, cannot repeal a substantive law like RA 7160.
It is also an elementary principle in statutory construction that repeal of statutes by implication
is not favored, unless it is manifest that the legislature so intended. The legislature is assumed to
know the existing laws on the subject and cannot be presumed to have enacted inconsistent or
[18]
conflicting statutes. Respondent COA alleges that Section 36 of RA 7645 (the GAA of 1993)
repealed Section 447(a)(l)(xi) of RA 7160 (the LGC of 1991). A review of the two laws, however,
shows that this was not so. Section 36 of RA 7645 merely provided for the different rates of RATA
payable to national government officials or employees, depending on their position, and stated that
these amounts were payable from the programmed appropriations of the parent agencies to which
the concerned national officials or employees belonged. Furthermore, there was no other provision
in RA 7645 from which a repeal of Section 447(a) (l)(xi) of RA 7160 could be implied. In the
absence, therefore, of any clear repeal of Section 447(a)(l)(xi) of RA 7160, we cannot presume
such intention on the part of the legislature.
Moreover, the presumption against implied repeal becomes stronger when, as in this case, one
[19]
law is special and the other is general. The principle is expressed in the
maxim generalia specialibus non derogant, a general law does not nullify a specific or special law.

The reason for this is that the legislature, in passing a law of special character, considers and
makes special provisions for the particular circumstances dealt with by the special law. This being
so, the legislature, by adopting a general law containing provisions repugnant to those of the
special law and without making any mention of its intention to amend or modify such special law,
[20]
cannot be deemed to have intended an amendment, repeal or modification of the latter.
[21]
In this case, RA 7160 (the LGC of 1991) is a special law which exclusively deals with local
government units (LGUs), outlining their powers and functions in consonance with the
constitutionally mandated policy of local autonomy. RA 7645 (the GAA of 1993), on the other hand,
[22]
was a general law which outlined the share in the national fund of all branches of the national
government. RA 7645 therefore, being a general law, could not have, by mere implication, repealed
RA 7160. Rather, RA 7160 should be taken as the exception to RA 7645 in the absence of
[23]
circumstances warranting a contrary conclusion.
The controversy actually centers on the seemingly sweeping provision in NCC No. 67 which
states that no one shall be allowed to collect RATA from more than one source. Does this mean
that judges cannot receive allowances from LGUs in addition to the RATA from the Supreme Court?
For reasons that will hereinafter be discussed, we answer in the negative.
The pertinent provisions of NCC No. 67 read:

3. Rules and Regulations:

3.1.1 Payment of RATA, whether commutable or reimbursable, shall be in accordance with the
rates prescribed for each of the following officials and employees and those of
equivalent ranks, and the conditions enumerated under the pertinent sections of the
General Provisions of the annual General Appropriations Act (GAA):
 xxxxxxxxx

4. Funding Source:

In all cases, commutable and reimbursable RATA shall be paid from the amount appropriated for the purpose
and other personal services savings of the agency or project from where the officials and employees covered
under this Circular draw their salaries. No one shall be allowed to collect RATA from more than one
source. (emphasis ours)

In construing NCC No. 67, we apply the principle in statutory construction that force and effect
should not be narrowly given to isolated and disjoined clauses of the law but to its spirit, broadly
[24]
taking all its provisions together in one rational view. Because a statute is enacted as a whole
and not in parts or sections, that is, one part is as important as the others, the statute should be
construed and given effect as a whole. A provision or section which is unclear by itself may be
[25]
clarified by reading and construing it in relation to the whole statute.
Taking NCC No. 67 as a whole then, what it seeks to prevent is the dual collection of RATA by a
national official from the budgets of more than one national agency. We emphasize that the other
source referred to in the prohibition is another national agency. This can be gleaned from the fact
that the sentence no one shall be allowed to collect RATA from more than one source (the
controversialprohibition) immediately follows the sentence that RATA shall be paid from the budget
of the national agency where the concerned national officials and employees draw their salaries.
The fact that the other source is another national agency is supported by RA 7645 (the GAA of
1993) invoked by respondent COA itself and, in fact, by all subsequent GAAs for that matter,
because the GAAs all essentially provide that (1) the RATA of national officials shall be payable
from the budgets of their respective national agencies and (2) those officials on detail with other
national agencies shall be paid their RATA only from the budget of their parent national agency:

Section 36, RA 7645, General Appropriations Act of 1993:

Representation and Transportation Allowances. The following officials and those of equivalent rank as may
be determined by the Department of Budget and Management (DBM) while in the actual performance of their
respective functions are hereby granted monthly commutable representation and transportation allowances
payable from the programmed appropriations provided for their respective offices, not exceeding the rates
indicated below, which shall apply to each type of allowance:
 xxxxxxxxx

Officials on detail with other offices, including officials of the Commission of Audit assigned to serve other
offices or agencies, shall be paid the allowance herein authorized from the appropriations of their parent
agencies. (emphasis ours)

Clearly therefore, the prohibition in NCC No. 67 is only against the dual or multiple collection of
RATA by a national official from the budgets of two or more national agencies. Stated otherwise,
when a national official is on detail with another national agency, he should get his RATA only from
his parent national agency and not from the other national agency he is detailed to.
Since the other source referred in the controversial prohibition is another national agency, said
prohibition clearly does not apply toLGUs like the Municipality of Naujan. National agency of course
refers to the different offices, bureaus and departments comprising the national government. The
budgets of these departments or offices are fixed annually by Congress in the General
[26]
Appropriations Act. An LGU is obviously not a national agency. Its annual budget is fixed by its
own legislative council (Sangguniang Bayan, Panlungsod orPanlalawigan), not by Congress.
Without doubt, NCC No. 67 does not apply to LGUs.
The prohibition in NCC No. 67 is in fact an administrative tool of the DBM to prevent the much-
abused practice of multiple allowances, thus standardizing the grant of RATA by national agencies.
Thus, the purpose clause of NCC No. 67 reads:

This Circular is being issued to ensure uniformity and consistency of actions on claims for representation and
transportation allowance (RATA) which is primarily granted by law to national government officials and
employees to cover expenses incurred in the discharge or performance of their duties and responsibilities.

By no stretch of the imagination can NCC No. 67 be construed as nullifying the power

of LGUs to grant allowances to judges under the Local Government Code of 1991. It was issued
primarily to make the grant of RATA to national officials under the national budget uniform. In other
words, it applies only to the national funds administered by the DBM, not the local funds of LGUs.
To rule against the power of LGUs to grant allowances to judges as what respondent COA
would like us to do will subvert the principle of local autonomy zealously guaranteed by the
[27]
Constitution. The Local Government Code of 1991 was specially promulgated by Congress to
ensure the autonomy of local governments as mandated by the Constitution. By upholding, in the
present case, the power of LGUs to grant allowances to judges and leaving to their discretion the
amount of allowances they may want to grant, depending on the availability of local funds, we
ensure the genuine and meaningful local autonomy of LGUs.
We now discuss the next contention of respondent COA: that the resolution of
the Sangguniang Bayan of Naujan granting theP1,600 monthly allowance to petitioner judge was
null and void because it failed to comply with LBC No. 53 dated September 1, 1993:

Sec. 3 Allowances. LGUs may grant allowances/additional compensation to the national government
officials/employees assigned to their locality at rates authorized by law, rules and regulations and subject to
the following preconditions:

a. That the annual income or finances of the municipality, city or province as certified by the
Accountant concerned will allow the grant of the allowances/additional compensation
without exceeding the general limitations for personal services under Section 325 of
RA 7160;

b. That the budgetary requirements under Section 324 of RA 7160 including the full
requirement of RA 6758 have been satisfied and provided fully in the budget as
certified by the Budget Officer and COA representative in the LGU concerned;

c. That the LGU has fully implemented the devolution of personnel/functions in accordance
with the provisions of RA 7160;

d. That the LGU has already created mandatory positions prescribed in RA 7160.

e. That similar allowances/additional compensation are not granted by the national government
to the officials/employees assigned to the LGU.

Though LBC No. 53 of the DBM may be considered within the ambit of the President's power of
[28]
general supervision over LGUs, we rule that Section 3, paragraph (e) thereof is invalid. RA 7160,
the Local Government Code of 1991, clearly provides that provincial, city and municipal
governments may grant allowances to judges as long as their finances allow. Section 3, paragraph
(e) of LBC No. 53, by outrightly prohibiting LGUs from granting allowances to judges whenever
such allowances are (1) also granted by the national government or (2) similar to the allowances
granted by the national government, violates Section 447(a)(l)(xi) of the Local Government Code of
[29]
1991. As already stated, a circular must conform to the law it seeks to implement and should not
[30]
modify or amend it.
Moreover, by prohibiting LGUs from granting allowances similar to the allowances granted by
the national government, Section 3 (e) of LBC No. 53 practically prohibits LGUs from granting
allowances to judges and, in effect, totally nullifies their statutory power to do so. Being unduly
restrictive therefore of the statutory power of LGUs to grant allowances to judges and
being violative of their autonomy guaranteed by the Constitution, Section 3, paragraph (e) of LBC
No. 53 is hereby declared null and void.
Paragraphs (a) to (d) of said circular, however, are valid as they are in accordance with
[31] [32]
Sections 324 and 325 of the Local Government Code of 1991; these respectively provide for
the budgetary requirements and general limitations on the use of provincial, city and municipal
funds. Paragraphs (a) to (d) are proper guidelines for the condition provided in Sections 447, 458
and 468 of the Local Government Code of 1991 that LGUs may grant allowances to judges if their
[33]
funds allow.
Respondent COA also argues that Resolution No. 101 of
the Sangguniang Bayan of Naujan failed to comply with paragraphs (a) to (d) of LBC No. 53, thus it
was null and void.
 The argument is misplaced.
Guidelines (a) to (d) were met when the Sangguniang Panlalawigan of
Oriental Mindoro approved Resolution No. 101 of theSangguniang Bayan of Naujan granting
the P1,600 monthly allowance to petitioner judge as well as the corresponding budgets of the
municipality providing for the said monthly allowance to petitioner judge. Under Section 327 of the
Local Government Code of 1991, theSangguniang Panlalawigan was specifically tasked to review
the appropriation ordinances of its component municipalities to ensure compliance with Sections
324 and 325 of the Code. Considering said duty of the Sangguniang Panlalawigan, we will assume,
in the absence of proof to the contrary, that the Sangguniang Panlalawigan of
Oriental Mindoro performed what the law required it to do, that is, review the resolution and the
corresponding budgets of the Municipality of Naujan to make sure that they complied with Sections
[34]
324 and 325 of the Code. We presume the regularity of the Sangguniang Panlalawigans official
act.
Moreover, it is well-settled that an ordinance must be presumed valid in the absence of
[35]
evidence showing that it is not in accordance with the law. Respondent COA had the burden of
proving that Resolution No. 101 of the Sangguniang Bayan of Naujan did not comply with the
condition provided in Section 447 of the Code, the budgetary requirements and general limitations
on the use of municipal funds provided in Sections 324 and 325 of the Code and the implementing
guidelines issued by the DBM, i.e., paragraphs (a) to (d), Section 3 of LBC No. 53. Respondent
COA also had the burden of showing that the Sangguniang Panlalawigan of
OrientalMindoro erroneously approved said resolution despite its non-compliance with the
requirements of the law. It failed to discharge such burden. On the contrary, we find that the
resolution of the Municipality of Naujan granting the P1,600 monthly allowance to petitioner judge
fully complied with the law. Thus, we uphold its validity.
In sum, we hereby affirm the power of the Municipality of Naujan to grant the questioned
allowance to petitioner Judge Leynes in accordance with the constitutionally mandated policy of
local autonomy and the provisions of the Local Government Code of 1991. We also sustain the
validity of Resolution No. 101, Series of 1993, of the Sangguniang Bayan of Naujan for being in
accordance with the law.
WHEREFORE, the petition is hereby GRANTED. The assailed decision dated September 14,
1999 of the Commission of Audit is hereby SET ASIDE and Section 3, paragraph (e) of LBC No. 53
is hereby declared NULL and VOID.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26702 October 18, 1979

JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee,

vs.
THE MUNICIPALITY OF URDANETA, PANGASINAN, ET AL., defendants-appellants.

Ambrosio Padilla Law Offices for appellee.

Primicias, Castillo & Macaraeg for appellants.

DE CASTRO, J.:

The main issue in this appeal is the validity of Ordinance No. 3, Series of 1964, enacted on March 13,1964 by the
Municipal Council of Urdaneta, Pangasinan, which was declared null and void by the Court of First Instance of
Lingayen, Pangasinan, in its decision dated June 29, 1966, the dispositive portion of which reads as follows:

WHEREFORE, this Court renders decision declaring Ordinance No, 3, Series of 1964, to be null and
void; making the writ of preliminary injunction heretofore issued against the defendant, Felix D.
Soriano definite and permanent; and further restraining the defendants, Amadeo R. Perez, Jr.,
Lorenzo G. Suyat and Estanislao Andrada, from enforcing the said ordinance all throughout
Urdaneta; and ordering the said defendants to return to the plaintiff his drivers (sic) license CIN
017644, a copy of which is Exhibit D-1, and to pay the costs of suit. 1

From the aforecited decision, defendants appealed to this Court. The antecedent facts of this case are as
follows: 2

On February 8, 1965, Juan Augusta B. Primacias plaintiff appellee, was driving his car within the jurisdiction of
Urdaneta when a member of Urdaneta's Municipal Police asked him to stop. He was told, upon stopping, that he
had violated Municipal Ordinance No. 3, Series of 1964, "and more particularly, for overtaking a truck." The
policeman then asked for plaintiff's license which he surrendered, and a temporary operator's permit was issued
to him. This incident took place about 200 meters away from a school building, at Barrio Nancamaliran, Urdaneta.

Thereafter, a criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for violation of
Ordinance No. 3, Series of 1964. Due to the institution of the criminal case, plaintiff Primicias initiated an action
for the annulment of said ordinance with prayer for the issuance of preliminary injunction for the purpose of
restraining defendants Municipality of Urdaneta, Mayor Perez, Police Chief Suyat, Judge Soriano and Patrolman
Andrada from enforcing the ordinance. The writ was issued and Judge Soriano was enjoined from further
proceeding in the criminal case.

After trial, the Court of First Instance rendered the questioned decision holding that the ordinance was null and
void and had been repealed by Republic Act No. 4136, otherwise known as the Land Transportation and Traffic
Code. Now, defendants, appellants herein, allege that the lower court erred in: 3

1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null and void;
 2. requiring the municipal council of Urdaneta in the enactment of said ordinance to give maximum
allowable speed and to make classification of highways;

3. holding that said ordinance is in conflict with section 35 par. b(4) of Republic Act 4136;

4. requiring that said ordinance be approved by the Land Transportation Commissioner;

5. holding that said ordinance is not clear and definite in its terms;

6. issuing ex-parte a writ of injunction to restrain the proceedings in criminal case no. 3140.

The ordinance in question provides: 4

SECTION 1 - That the following speed limits for vehicular traffic along the National Highway and the
Provincial Roads within the territorial limits of Urdaneta shall be as follows:

a. Thru crowded streets approaching intersections at 'blind corners, passing school

zones or thickly populated areas, duly marked with sign posts, the maximum speed limit
allowable shall be 20 kph.

SECTION 2 - That any person or persons caught driving any motor vehicle violating the provisions of
this ordinance shall be fined P10.00 for the first offense; P20.00 for the second offense; and P30.00
for the third and succeeding offenses, the Municipal Judge shall recommend the cancellation of the
license of the offender to the Motor Vehicle's Office (MVO); or failure to pay the fine imposed, he
shall suffer a subsidiary imprisonment in accordance with law.

Appellants contend that the Ordinance is valid, being "patterned after and based on Section 53, 5 par. 4 of Act No.
3992, as amended (Revised Motor Vehicle Law)." In so arguing, appellants fail to note that Act No. 3992 has been
superseded by Republic Act No. 4136, the Land Transportation and 'Traffic Code, which became effective on June 20,
1964, about three months after the questioned ordinance was approved by Urdaneta's Municipal Council. The explicit
repeal of the aforesaid Act is embodied in Section 63, Republic Act No. 4136, to wit:

Act Numbered thirty-nine hundred ninety-two (3992) as amended, and all laws, executive orders,
ordinance, resolutions, regulations or paints thereof in conflict with the provisions of this Act are
repealed.

By this express repeal, and the general rule that a later law prevails over an earlier law, 6 appellants are in error in
contending that "a later enactment of the law relating to the same subject matter as that of an earlier statute is not
sufficient to cause an implied repeal of the original law." Pursuant to Section 63, Republic Act No. 4136, the ordinance at
bar is thus placed within the ambit of Republic Act No. 4136, and not Act No. 3992. The validity of Ordinance No. 3, Series
of 1964, must therefore be determined vis-a-vis Republic Act No. 4136, the "mother statute" so to speak, which was in
force at the time the criminal case was brought against Primicias for the violation of the said ordinance.

An essential requisite for a valid ordinance is, among others, that is "must not contravene . . . the statute," 7 for it
is a "fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the
state." 8 Following this general rule, whenever there is a conflict between an ordinance and a statute, the ordinance "must
give way. 9

Since the Ordinance is aimed at regulating traffic, Chapter IV Traffic Rules), Article I (Speed Limits and Keeping
to the Right), consisting of sections 35, to 38 of Republic Act No. 4136, particularly Sections 35, 36, 38 contain
the provisions material to its validity. Section 35 (b), Republic Act No. 4136, which took the place of Section 53,
par. (4), Act No. 3992, provides restrictions as to speed thus:

MAXIMUM ALLOWABLE SPEEDS

 Passenger cars and Motor trucks

motorcycle and buses

1. On open country roads, with

"blind corners" not closely bordered

by habitation. 80 km. 50 km.

2. On through streets or per hour per hour

boulevards, clear of traffic, with "no

blind corners" when so designated. 40 km. 30 km.

3. On city and municipal per hour per hour

streets, with light traffic, when not

designated "through streets." 30 km. 30 km.

4. Through crowded streets ap per hour per hour

proaching intersection at "blind cor

ners," passing school zones, passing

other vehicles which are stationary, or

for similar circumstances. 20 km. 20 km.

per hour per hour

A look at the aforecited section and Section 1, par. (a) of the Ordinance shows that the latter is more or less a
restatement only of number (4), par. (b), Section 35. As observed by the trial court, the Ordinance "refers to only
one of the four classifications mentioned in paragraph (b), Section 35." 10 limiting the rates of speed for

vehicular traffic along the national highway and The provincial roads within the territorial limits of
Urdaneta to 20 kilometers per hour without regard to whether the road is an open country roads
(six), or through streets or boulevards, or city or municipal streets with light traffic. 11

As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any classification of its
thoroughfares, contrary to the explicit requirement laid down by Section 38, Republic Act No. 4136, which
provides:

Classification of highways. - Public highways shall be properly classified for traffic purposes by the
provincial board or city council having jurisdiction over them, and said provincial board, municipal
board or city council shall provide appropriate signs therefor, subject to the approval of the
Commissioner. It shall be the duty of every provincial, city and municipal secretary to certify to the
Commissioner the names, locations, and limits of all "through streets" designated as such by the
provincial board, municipal board or council.

Under this section, a local legislative body intending to control traffic in public highways 12 is supposed to classify,
first, and then mark them with proper signs, all to be approved by the Land Transportation Commissioner. To hold that the
provisions of Section 38 are mandatory is sanctioned by a ruling 13 that

statutes which confer upon a public body or officer . . . power to perform acts which concern the
public interests or rights of individuals, are generally, regarded as mandatory although the language
is permissive only since the are construed as imposing duties rather than conferring privileges.

The classifications which must be based on Section 35 are necessary in view of Section 36 which states that "no
provincial, city or municipal authority shall enact or enforce any ordinance or resolution specifying maximum
allowable speeds other than those provided in this Act." In this case, however, there is no showing that the
marking of the streets and areas falling under Section 1, par. (a), Ordinance No. 3, Series of 1964, was done with
the approval of the Land Transportation Commissioner. Thus, on this very ground alone, the Ordinance becomes
invalid. Since it lacks the requirement imposed by Section 38, the provincial, city, or municipal board or council is
enjoined under Section 62 of the Land Transportation and Traffic Code from "enacting or enforcing any ordinance
or resolution in conflict with the provisions of this Act."

Regarding the contention that the lower court erred in holding that said "Ordinance is not clear and definite in its
terms." We agree with the Court a quo that when the Municipal Council of Urdaneta used the phrase "vehicular
traffic" (Section 1, Ordinance) it "did not distinguish between passenger cars and motor vehicles and motor trucks
and buses." 14 This conclusion is bolstered by the fact that nowhere in the Ordinance is "vehicular traffic" defined.
Considering that this is a regulatory ordinance, its clearness, definiteness and certainty are all the more important so that
"an average man should be able with due care, after reading it,, to understand and ascertain whether he will incur a
penalty for particular acts or courses of conduct." 15 In comparison, Section 35(b), Republic Act No. 4136 on which
Section 1 of the Ordinance must be based, stated that the rates of speed enumerated therein refer to motor
vehicle, 16 specifying the speed for each kind of vehicle. At the same time, to avoid vagueness, Art. 11, Section 3 defines
what a motor vehicle is and passenger automobiles are.

On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the general
rule is that "ordinarily, criminal prosecution may not be blocked by court prohibition or injunction." 17 Exceptions
however are allowed in the following instances:

1. for the orderly administration of justice;

2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner;

3. to avoid multiplicity of actions;

4. to afford adequate protection to constitutional rights;

5. in proper cases, because the statute relied upon is unconstitutional or was held invalid. 18

The local statute or ordinance at bar being invalid, the exception just cited obtains in this case. Hence, the lower
court did not err in issuing the writ of injunction against defendants. Moreover, considering that "our law on
municipal corporations is in principle patterned after that of the United States, " 19 it would not be amiss for Us to
adopt in this instance the ruling that to enjoin the enforcement of a void ordinance, "injunction has frequently been
sustained in order to prevent a multiplicity of prosecutions under it." 20

In view of the foregoing, the appealed decision is hereby affirmed.

SO ORDERED.

Teehankee, Acting C.J., Barredo, Makasiar, Concepcion Jr., Santos, Fernandez, Guerrero, and Melencio-Herrera,
JJ., concur.
Aquino, J., took no part.

Antonio, J., is on leave.

Separate Opinions

ABAD SANTOS, J., concurring:

The ordinance in question was in effect a speed trap for unwary motorists for which Urdaneta had become
notorious.

# Separate Opinions

ABAD SANTOS, J., concurring:

The ordinance in question was in effect a speed trap for unwary motorists for which Urdaneta had become
notorious.

#Footnotes

1 Record on Appeal, pp. 50-51.

2 Ibid, pp. 36-38.

3 Rollo, pp. 76-77.

4 Rollo, pp. 39-40.

5 Section 53 enumerated the rates of speed of motor vehicles for the roads classified in the said
section.

6 Enrile vs. Vinuya, 37 SCRA 381, 382 (1976).

7 Martin, Ruperto G. Public Corporations, 1977 ed., p. 140, Citing Cooley's Municipal Corporations,
p. 170, 171, and U.S. v. Abendan, 24 Phil. 165; U.S. v. Chan Tienco, 25 Phil. 89, 91.

8 Am. Jur. 2d Sec. 374, p. 406.

9 City of Basilan v. Hechanova, L-23841, August 30, 1974, 58 SCRA 711.

10 Record on Appeal, p. 45.

11 Ibid., p. 42.

12 Art. 11, Sec. 30), R.A. No. 4136 states that highways "shall mean every public thoroughfare
public boulevard, driveway, avenue, park, alley and caution but shall not include roadway upon
 grounds owned by private persons, colleges, universities or other similar institutions.

13 Vda. de Mesa, et. al. v. Mencias, etc., et. al., L-24583, October 29, 1966, 18 SCRA 533, 542.

14 Record on Appeal, p. 46.

15 Am. Jur. 2d Sec. 367, p. 394.

16 Section 35(b) starts with "(s)ubject to the provisions of the preceding paragraph, the rates of
speed of any motor vehicle shall not exceed the following. . ."

17 Gorospe v. Penaflorida, 101 Phil. 892, citing 43 C.J.S. 768, 770; Lava v. Gonzales, L-23048, July
31, 1964, 11 SCRA 650, 651; Ramos v. Torres, L-23454, October 25, 1968, 25 SCRA 557, 563.

18 Ramos v. Torres, L-23454, October 25, 1968, 25 SCRA 557, 564; Hernandez v. Albano, L-19272,
January 25, 1967, 19 SCRA 95, 96.

19 Homeowners Association of the Phil., Inc. v. Municipal Board of the City of Manila, 24 SCRA 856,
858 (1968).

20 6 MCQUILLIN 70, (3rd ed.), citing among others, Chicago v. Collins, 175 ILL. 445, 51 N.E. 907,
67 Am. St. Rep. 224; Holland v. Baltimore, 11 Md 186.

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT,
ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA,
RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA
OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA,
PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO
GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA as
the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents.

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, Bocaue,
Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the operation of night clubs, and
the pursuit of a lawful occupation, such clubs employing hostesses. It is contended that the ordinance assailed as invalid
is tainted with nullity, the municipality being devoid of power to prohibit a lawful business, occupation or calling, petitioners
at the same time alleging that their rights to due process and equal protection of the laws were violated as the licenses
previously given to them was in effect withdrawn without judicial hearing. 2

The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall be known and
may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2. Definitions of Terms (a)
'Night Club' shall include any place or establishment selling to the public food or drinks where customers are allowed to
dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing is permitted to the public and
where professional hostesses or hospitality girls and professional dancers are employed. (c) 'Professional hostesses' or
'hospitality girls' shall include any woman employed by any of the establishments herein defined to entertain guests and
customers at their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of the
establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by the persons she
dances with. (e) 'Operator' shall include the owner, manager, administrator or any person who operates and is responsible
for the operation of any night club, cabaret or dance hall. Section 3. Prohibition in the Issuance and Renewal of
Licenses, Permits. Being the principal cause in the decadence of morality and because of their other adverse effects on
this community as explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued
permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said establishments
shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and Licenses. The licenses and
permits issued to operators of night clubs, cabarets or dance halls which are now in operation including permits issued to
professional hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-day
period given them as provided in Section 8 hereof and thenceforth, the operation of these establishments within the
jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions
of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or
both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein. Section 6. Separability Clause.
If, for any reason, any section or provision of this Ordinance is held unconstitutional or invalid, no other section or
provision hereof shall be affected thereby. Section 7. Repealing Clause. All ordinance, resolutions, circulars,
memoranda or parts thereof that are inconsistent with the provisions of this Ordinance are hereby repealed. Section 8.
Effectivity. This Ordinance shall take effect immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and professional
dancers are given a period of thirty days from the approval hereof within which to wind up their businesses and comply
with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of First
Instance of Bulacan. 5 The grounds alleged follow:

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business, occupation or
calling.

2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the law, as the
license previously given to petitioners was in effect withdrawn without judicial hearing. 3. That under Presidential
Decree No. 189, as amended, by Presidential Decree No. 259, the power to license and regulate tourist-oriented
businesses including night clubs, has been transferred to the Department of Tourism." 6 The cases were assigned
to respondent Judge, now Associate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on
November 7, 1975. The answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized
by law not only to regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section
2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners'
right to due process and the equal protection of the law, since property rights are subordinate to public interests. 3. That
Presidential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit
night clubs." 7There was the admission of the following facts as having been established: "l. That petitioners Vicente de la
Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner
Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner
Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night
clubs are well-lighted and have no partitions, the tables being near each other; 4. That the petitioners owners/operators of
these clubs do not allow the hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these
hospitality girls are made to go through periodic medical check-ups and not one of them is suffering from any venereal
disease and that those who fail to submit to a medical check-up or those who are found to be infected with venereal
disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84
and dismissing the cases. Hence this petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in
the opening paragraph thus: "Those who lust cannot last. This in essence is why the Municipality of Bocaue,
Province of Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful of what the awesome
future holds for it, had no alternative except to order thru its legislative machinery, and even at the risk of partial
economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also why this Court,
obedient to the mandates of good government, and cognizant of the categorical imperatives of the current legal
and social revolution, hereby [upholds] in the name of police power the validity and constitutionality of Ordinance
No. 84, Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in
these two cases are therefore hereby rifted, effective the first day of February, 1976, the purpose of the grace
period being to enable the petitioners herein to apply to the proper appellate tribunals for any contemplated
redress." 9 This Court is, however, unable to agree with such a conclusion and for reasons herein set forth, holds that
reliance on the police power is insufficient to justify the enactment of the assailed ordinance. It must be declared null and
void.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted on June
20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO
REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT
WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The
municipal or city board or council of each chartered city shall have the power to regulate by ordinance the establishment,
maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its territorial jurisdiction: ... " 19 Then on May 21, 1954, the first
section was amended to include not merely "the power to regulate, but likewise "Prohibit ... " 20 The title, however,
remained the same. It is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the
above portion of the Act were considered, a municipal council may go as far as to prohibit the operation of night clubs. If
that were all, then the appealed decision is not devoid of support in law. That is not all, however. The title was not in any
way altered. It was not changed one whit. The exact wording was followed. The power granted remains that of regulation,
not prohibition. There is thus support for the view advanced by petitioners that to construe Republic Act No. 938 as
allowing the prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution
mandates: "Every bill shall embrace only one subject which shall be expressed in the title thereof. " 21 Since there is no
dispute as the title limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done
by the Municipality of Bocaue, the operation of a night club was prohibited. There is a wide gap between the exercise of a
regulatory power "to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of
the Administrative Code, such competence extending to all "the great public needs, 23 to quote from Holmes, and to
interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of constitutional construction
that between two possible interpretations by one of which it will be free from constitutional infirmity and by the other tainted
by such grave defect, the former is to be preferred. A construction that would save rather than one that would affix the seal
of doom certainly commends itself. We have done so before We do so again.24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-enacted Local
Government Code. 25 The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the
first paragraph of Section 149 defining the powers and duties of the sangguniang bayan. It read as follows: "(a) Enact
such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred
upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience,
maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition provisions that may have a
bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr) Regulate cafes, restaurants, beer-
houses, hotels, motels, inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist transports,
hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the licensing and
regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the taxing or
regulatory powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or
massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses and
other forms of entertainment; ..." 27 It is clear that municipal corporations cannot prohibit the operation of night clubs. They
may be regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in futility if the
decision under review were sustained. All that petitioners would have to do is to apply once more for licenses to operate
night clubs. A refusal to grant licenses, because no such businesses could legally open, would be subject to judicial
correction. That is to comply with the legislative will to allow the operation and continued existence of night clubs subject to
appropriate regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of an
affirmance, would amount to no more than a temporary termination of their business. During such time, their employees
would undergo a period of deprivation. Certainly, if such an undesirable outcome can be avoided, it should be. The law
should not be susceptible to the reproach that it displays less than sympathetic concern for the plight of those who, under
a mistaken appreciation of a municipal power, were thus left without employment. Such a deplorable consequence is to be
avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay less, very much less, than
full deference to the due process clause with its mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining
police power legislation to promote public morals. The commitment to such an Ideal forbids such a backward
step. Legislation of that character is deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary
has not been hesitant to lend the weight of its support to measures that can be characterized as falling within that
aspect of the police power. Reference is made by respondents to Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to what was decided by this Court. That
was a regulatory measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not
prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an end to practices
which could encourage vice and immorality. This is an entirely different case. What was involved is a measure not
embraced within the regulatory power but an exercise of an assumed power to prohibit. Moreover, while it was pointed out
in the aforesaid Ermita-Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual
foundation of invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a statute were void
on its face. That it certainly is if the power to enact such ordinance is at the most dubious and under the present Local
Government Code non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976
reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void
and unconstitutional. The temporary restraining order issued by this Court is hereby made permanent. No costs.

Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez, Jr., JJ.,
concur.

Makasiar, J, reserves his right to file a dissent.

De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

Footnotes

1 Municipal Mayor Matias Ramirez and Municipal Vice-Mayor Mario Mendoza.

2 Petition, 7. The other question raised was the jurisdiction of a municipal council to prohibit the
operation of nightclubs, it being alleged that the power of regulating tourist-oriented businesses
being granted to the then Department, now Ministry, of Tourism.

3 Ordinance No. 84, Series of 1975.

4 Ibid.

5 Vicente de la Cruz, et al. v. Matias Ramirez, et al., and Teresita Calot, et al. v. The Municipal
Mayor, docketed as Civil Cases Nos. 4755-M and 4756-M, respectively. On November 21, 1975, the
petition in one of the above cases was amended to raise the further issue of lack of authority of
respondent Municipal Officials to pass the ordinance in question, since the power to license,
supervise and regulate night clubs has been transferred to the Department of Tourism by virtue of
Presidential Decree No. 189, as amended.

6 Petition, 7.

7 Ibid, 8.

8 Ibid, 8-9.

9 Decision, Annex A to Petition 1.

10 Section 2238, Revised Administrative Code of the Philippines (1917).

 11 Act No. 82 (1901).

12 24 Phil. 165 (1913). Abendan is followed in United States v. Tamparong, 31 Phil. 321 (1915);
United States v. Gaspay, 33 Phil. 96 (1915) and Sarmiento v. Balderol, 112 Phil. 394 (1961).

13 Ibid, 168. Cf. United States v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health, 24 Phil. 250
(1913).

14 39 Phil. 102 (1918).

15 Ibid, 109-110.

16 Ibid, 111. In Salaveria though the ordinance penalizing the playing of panguingue on days not
Sundays or legal holidays was declared as valid.

17 It was amended by Republic Act No. 979 and Republic Act No. 1224.

18 Title of Republic Act No. 938 as amended.

19 Republic Act No. 938, Section 1.

20 Republic Act No. 979, Section 1.

21 Article VIII, Section 19, par. 1 of the Constitution.

22 Section 2238.

23 Otis v. Parker, 187 US 606 (1902).

24 Cf. Nuez v. Sandiganbayan, G.R. Nos. 50581-50617, January 30, 1982, 111 SCRA 433.
Separate opinion of Justice Makasiar. De la Llana v. Alba, G.R. No. 57883, March 12,1982,112
SCRA 294.

25 Batas Pambansa Blg. 337 (1983). Under Section 234 of the Code it took effect one month after
its publication in the Official Gazette. It was published in the issue of February 14,1983.

26 Ibid, Section 149 (1) (a).

27 Ibid, Section 149 (1) (rr, ss and tt ).

28 L-24693, 20 SCRA 849, July 31, 1967.

The Lawphil Project - Arellano Law Foundation

1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall enact such ordinances and make
such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and
duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein." 10 It is practically a reproduction of the former
Section 39 of Municipal Code. 11An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the
Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the fundamental law of the
Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable,
oppressive, partial, discriminating, or in derogation of common right. Where the power to legislate upon a given subject,
and the mode of its exercise and the details of such legislation are not prescribed, the ordinance passed pursuant thereto
must be a reasonable exercise of the power, or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code provision was applied, it
was stated by this Court: "The general welfare clause has two branches: One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge
the powers and duties conferred upon the municipal council by law. With this class we are not here directly concerned.
The second branch of the clause is much more independent of the specific functions of the council which are enumerated
by law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants
thereof, and for the protection of property therein.' It is a general rule that ordinances passed by virtue of the implied power
found in the general welfare clause must be reasonable, consonant with the general powersand purposes of the
corporation, and not inconsistent with the laws or policy of the State." 15 If night clubs were merely then regulated and not
prohibited, certainly the assailed ordinance would pass the test of validity. In the two leading cases above set forth, this
Court had stressed reasonableness, consonant with the general powers and purposes of municipal corporations, as well
as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power
by Bocaue could qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end
can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is
characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions
rather than by an absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set
aside legislative action when there is not a clear invasion of personal or property rights under the guise of police
regulation." 16 It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or
property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of
the investments made and salaries to be earned by those therein employed.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-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.

ESCOLIN, J.:

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 of the following presidential issuances is sought:

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

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245,
248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-
315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-
445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615,
641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-
1278.

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, 380-433, 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:

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 a rd 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].

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:

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'

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.

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:

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

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 Pambansaand for the diligent ones, ready access to the legislative recordsno 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 generica de leyes, se comprenden tambien 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 I 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 or. 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:

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, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination 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.

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.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

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

Separate Opinions

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

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin.
I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the
Official Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. 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. My point is that 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 too 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, for me, 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 as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets
forth what to me is the constitutional doctrine applicable to this case. Thus: "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. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette. 2

4. Let me make therefore that my 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. I am 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.

5. Nor can I 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 my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I
find myself therefore unable to yield assent to such a pronouncement.

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

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

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The
Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all
similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has
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, 1 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 the 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.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as
to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly 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 has 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. 2 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 3 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:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be
published. What I would like to state in connection with that proposition is that when a date of 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., concurring (with qualification):

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 of laws in theOfficial Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

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.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be
published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and
Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette,
determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing
in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important
legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not
all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public
nature." Moreover, the said law 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 that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no
person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar
as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

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., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general
applicability ineffective, until due publication thereof.

Separate Opinions

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

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin.
I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the
Official Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. 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. My point is that 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 too 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, for me, 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 as Justice Plana so aptly pointed out. It is
true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets
forth what to me is the constitutional doctrine applicable to this case. Thus: "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. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette. 2

4. Let me make therefore that my 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. I am 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.

5. Nor can I 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 my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I
find myself therefore unable to yield assent to such a pronouncement.

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

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

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The
Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all
similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has
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, 1 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 the 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.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as
to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly 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 has 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. 2 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 3 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:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be
published. What I would like to state in connection with that proposition is that when a date of 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., concurring (with qualification):

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 of laws in theOfficial Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

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.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be
published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and
Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette,
determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing
in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important
legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not
all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public
nature." Moreover, the said law 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 that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no
person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar
as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

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., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general
applicability ineffective, until due publication thereof.

Footnotes
1 Section 6. The right of the people to information on matters of public concern shag be recognized,
access to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, shag be afforded the citizens subject to such limitation as may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City
Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95
SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic
of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security
System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil.
150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the
Government Printing Office, failed to respond to her letter-request regarding the respective dates of
publication in the Official Gazette of the presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or non-publication of other presidential
issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec.
21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing
the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

 Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all
statute laws ... and no general law shall be in force until published." See also S ate ex rel. White vs.
Grand Superior Ct., 71 ALR 1354, citing Constitution of Indiana, U.S.A.

The Lawphil Project - Arellano Law Foundation

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is

to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of
determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their
existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach
due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared
to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the
basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause
of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once
published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior
thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their
provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems
could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto
character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect.
There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In
traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes.