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CIVIL REV. CASEs
CIVIL REV. CASEs
The Court therefore declares that presidential issuances of general WHEREFORE, the Court hereby orders respondents to publish in the
application, which have not been published, shall have no force and Official Gazette all unpublished presidential issuances which are of
effect. Some members of the Court, quite apprehensive about the general application, and unless so published, they shall have no
possible unsettling effect this decision might have on acts done in binding force and effect.
reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the SO ORDERED.
question as to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior to their Relova, J., concurs.
publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth Aquino, J., took no part.
in Chicot County Drainage District vs. Baxter Bank 8 to wit:
Concepcion, Jr., J., is on leave.
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
Separate Opinions
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 FERNANDO, C.J., concurring (with qualification):
subsequent ruling as to invalidity may have to be considered in
various aspects-with respect to particular conduct, private and There is on the whole acceptance on my part of the views expressed
official. Questions of rights claimed to have become vested, of in the ably written opinion of Justice Escolin. I am unable, however,
status, of prior determinations deemed to have finality and acted to concur insofar as it would unqualifiedly impose the requirement
upon accordingly, of public policy in the light of the nature both of of publication in the Official Gazette for unpublished "presidential
the statute and of its previous application, demand examination. issuances" to have binding force and effect.
These questions are among the most difficult of those which have
engaged the attention of courts, state and federal and it is manifest I shall explain why.
from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified. 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
Consistently with the above principle, this Court in Rutter vs. who is not even aware of the existence of any legislative or
Esteban 9 sustained the right of a party under the Moratorium Law, executive act having the force and effect of law. My point is that
albeit said right had accrued in his favor before said law was such publication required need not be confined to the Official
declared unconstitutional by this Court. Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not
Similarly, the implementation/enforcement of presidential decrees follow, however, that failure to do so would in all cases and under all
prior to their publication in the Official Gazette is "an operative fact circumstances result in a statute, presidential decree or any other
which may have consequences which cannot be justly ignored. The executive act of the same category being bereft of any binding force
past cannot always be erased by a new judicial declaration ... that an and effect. To so hold would, for me, raise a constitutional question.
all-inclusive statement of a principle of absolute retroactive Such a pronouncement would lend itself to the interpretation that
invalidity cannot be justified." such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such
From the report submitted to the Court by the Clerk of Court, it requirement in the Constitution as Justice Plana so aptly pointed
appears that of the presidential decrees sought by petitioners to be out. It is true that what is decided now applies only to past
published in the Official Gazette, only Presidential Decrees Nos. "presidential issuances". Nonetheless, this clarification is, to my
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not mind, needed to avoid any possible misconception as to what is
been so published. 10 Neither the subject matters nor the texts of required for any statute or presidential act to be impressed with
these PDs can be ascertained since no copies thereof are available. binding force or effectivity.
But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced 2. It is quite understandable then why I concur in the separate
by the government. In Pesigan vs. Angeles, 11 the Court, through opinion of Justice Plana. Its first paragraph sets forth what to me is
Justice Ramon Aquino, ruled that "publication is necessary to the constitutional doctrine applicable to this case. Thus: "The
apprise the public of the contents of [penal] regulations and make Philippine Constitution does not require the publication of laws as a
the said penalties binding on the persons affected thereby. " The prerequisite for their effectivity, unlike some Constitutions
cogency of this holding is apparently recognized by respondent elsewhere. It may be said though that the guarantee of due process
officials considering the manifestation in their comment that "the requires notice of laws to affected Parties before they can be bound
government, as a matter of policy, refrains from prosecuting thereby; but such notice is not necessarily by publication in the
violations of criminal laws until the same shall have been published 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 TEEHANKEE, J., concurring:
without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in I concur with the main opinion of Mr. Justice Escolin and the
the Official Gazette. 2 concurring opinion of Mme. Justice Herrera. The Rule of Law
connotes a body of norms and laws published and ascertainable and
3. It suffices, as was stated by Judge Learned Hand, that law as the of equal application to all similarly circumstances and not subject to
command of the government "must be ascertainable in some form if arbitrary change but only under certain set procedures. The Court
it is to be enforced at all. 3 It would indeed be to reduce it to the has consistently stressed that "it is an elementary rule of fair play
level of mere futility, as pointed out by Justice Cardozo, "if it is and justice that a reasonable opportunity to be informed must be
unknown and unknowable. 4 Publication, to repeat, is thus essential. afforded to the people who are commanded to obey before they
What I am not prepared to subscribe to is the doctrine that it must can be punished for its violation, 1 citing the settled principle based
be in the Official Gazette. To be sure once published therein there is on due process enunciated in earlier cases that "before the public is
the ascertainable mode of determining the exact date of its bound by its contents, especially its penal provisions, a law,
effectivity. Still for me that does not dispose of the question of what regulation or circular must first be published and the people
is the jural effect of past presidential decrees or executive acts not officially and specially informed of said contents and its penalties.
so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with Without official publication in the Official Gazette as required by
their provisions. If no legal consequences could attach due to lack of Article 2 of the Civil Code and the Revised Administrative Code,
publication in the Official Gazette, then serious problems could there would be no basis nor justification for the corollary rule of
arise. Previous transactions based on such "Presidential Issuances" Article 3 of the Civil Code (based on constructive notice that the
could be open to question. Matters deemed settled could still be provisions of the law are ascertainable from the public and official
inquired into. I am not prepared to hold that such an effect is repository where they are duly published) that "Ignorance of the law
contemplated by our decision. Where such presidential decree or excuses no one from compliance therewith.
executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases Respondents' contention based on a misreading of Article 2 of the
though, retroactivity as such is not conclusive on the due process Civil Code that "only laws which are silent as to their effectivity
aspect. There must still be a showing of arbitrariness. Moreover, [date] need be published in the Official Gazette for their effectivity"
where the challenged presidential decree or executive act was is manifestly untenable. The plain text and meaning of the Civil Code
issued under the police power, the non-impairment clause of the is that "laws shall take effect after fifteen days following the
Constitution may not always be successfully invoked. There must completion of their publication in the Official Gazette, unless it is
still be that process of balancing to determine whether or not it otherwise provided, " i.e. a different effectivity date is provided by
could in such a case be tainted by infirmity. 6 In traditional the law itself. This proviso perforce refers to a law that has been
terminology, there could arise then a question of unconstitutional duly published pursuant to the basic constitutional requirements of
application. That is as far as it goes. 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
4. Let me make therefore that my qualified concurrence goes no year [not 15 days] after such publication. 2 To sustain respondents'
further than to affirm that publication is essential to the effectivity misreading that "most laws or decrees specify the date of their
of a legislative or executive act of a general application. I am not in effectivity and for this reason, publication in the Official Gazette is
agreement with the view that such publication must be in the not necessary for their effectivity 3 would be to nullify and render
Official Gazette. The Civil Code itself in its Article 2 expressly nugatory the Civil Code's indispensable and essential requirement of
recognizes that the rule as to laws taking effect after fifteen days prior publication in the Official Gazette by the simple expedient of
following the completion of their publication in the Official Gazette providing for immediate effectivity or an earlier effectivity date in
is subject to this exception, "unless it is otherwise provided." the law itself before the completion of 15 days following its
Moreover, the Civil Code is itself only a legislative enactment, publication which is the period generally fixed by the Civil Code for
Republic Act No. 386. It does not and cannot have the juridical force its proper dissemination.
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.
MELENCIO-HERRERA, J., concurring:
5. Nor can I agree with the rather sweeping conclusion in the
opinion of Justice Escolin that presidential decrees and executive I agree. There cannot be any question but that even if a decree
acts not thus previously published in the Official Gazette would be provides for a date of effectivity, it has to be published. What I
devoid of any legal character. That would be, in my opinion, to go would like to state in connection with that proposition is that when
too far. It may be fraught, as earlier noted, with undesirable a date of effectivity is mentioned in the decree but the decree
consequences. I find myself therefore unable to yield assent to such becomes effective only fifteen (15) days after its publication in the
a pronouncement. Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree
I am authorized to state that Justices Makasiar, Abad Santos, itself. There should be no retroactivity if the retroactivity will run
Cuevas, and Alampay concur in this separate opinion. counter to constitutional rights or shall destroy vested rights.
Respondents justify their non-observance of the constitutionally WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the
mandated publication by arguing that the rules have never been petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be
amended since 1995 and, despite that, they are published in booklet issued enjoining the Senate of the Republic of the Philippines and/or
form available to anyone for free, and accessible to the public at the any of its committees from conducting any inquiry in aid of
Senates internet web page.49 legislation centered on the "Hello Garci" tapes.
The Court does not agree. The absence of any amendment to the SO ORDERED.
rules cannot justify the Senates defiance of the clear and
unambiguous language of Section 21, Article VI of the Constitution.
The organic law instructs, without more, that the Senate or its
committees may conduct inquiries in aid of legislation only in
accordance with duly published rules of procedure, and does not
make any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the
said rules prevails over any custom, practice or tradition followed by
the Senate.
On August 19, 1995, the petitioner, GMA NETWORK, INC., (GMA, for
brevity), a domestic corporation, filed an application for collective
approval of various amendments to its Articles of Incorporation and
SECOND DIVISION By-Laws with the respondent Securities and Exchange Commission,
(SEC, for brevity). The amendments applied for include, among
others, the change in the corporate name of petitioner from
SECURITIES AND EXCHANGE G.R. No. 164026
Republic Broadcasting System, Inc. to GMA Network, Inc. as well as
the extension of the corporate term for another fifty (50) years from
COMMISSION,
and after June 16, 2000.
Petitioner, Present:
Upon such filing, the petitioner had been assessed by the SECs
Corporate and Legal Department a separate filing fee for the
QUISUMBING, J., application for extension of corporate term equivalent to 1/10 of 1%
of its authorized capital stock plus 20% thereof or an amount
Chairperson, of P1,212,200.00.
TINGA, On September 26, 1995, the petitioner informed the SEC of its
intention to contest the legality and propriety of the said
*CHICO-NAZARIO, and assessment. However, the petitioner requested the SEC to approve
the other amendments being requested by the petitioner without
VELASCO, JR., JJ., being deemed to have withdrawn its application for extension of
corporate term.
GMA NETWORK, INC.,
Respondent. Promulgated:
On October 20, 1995, the petitioner formally protested the
December 23, 2008 assessment amounting to P1,212,200.00 for its application for
extension of corporate term.
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On February 20, 1996, the SEC approved the other amendments to
the petitioners Articles of Incorporation, specifically Article 1 thereof
referring to the corporate name of the petitioner as well as Article 2
thereof referring to the principal purpose for which the petitioner
was formed.
DECISION
On March 19, 1996, the petitioner requested for an official
opinion/ruling from the SEC on the validity and propriety of the
assessment for application for extension of its corporate term.
TINGA, J.:
WHEREFORE, for lack of merit, the instant Appeal is hereby The subject of the present inquiry is not the authority of the SEC to
dismissed. collect and receive fees and charges, but rather the validity of its
imposition on the basis of a memorandum circular which, the Court
SO ORDERED.[2] of Appeals held, is ineffective.
In its petition for review[3] with the Court of Appeals, GMA argued Republic Act No. 3531 (R.A. No. 3531) provides that where the
that its application for the extension of its corporate term is akin to amendment consists in extending the term of corporate existence,
an amendment and not to a filing of new articles of incorporation. It the SEC shall be entitled to collect and receive for the filing of the
further averred that SEC Memorandum Circular No. 2, Series of amended articles of incorporation the same fees collectible under
1994, which the SEC used as basis for assessing P1,212,200.00 as existing law as the filing of articles of incorporation.[8] As is clearly
filing fee for the extension of GMAs corporate term, is not valid. the import of this law, the SEC shall be entitled to collect and receive
the same fees it assesses and collects both for the filing of articles of
The appellate court agreed with the SECs submission that an incorporation and the filing of an amended articles of incorporation
extension of the corporate term is a grant of a fresh license for a for purposes of extending the term of corporate existence.
corporation to act as a juridical being endowed with the powers
expressly bestowed by the State. As such, it is not an ordinary The SEC, effectuating its mandate under the aforequoted law and
amendment but is analogous to the filing of new articles of other pertinent laws,[9] issued SEC Memorandum Circular No. 1,
incorporation. Series of 1986, imposing the filing fee of 1/10 of 1% of the
authorized capital stock but not less than P300.00 nor more
However, the Court of Appeals ruled that Memorandum Circular than P100,000.00 for stock corporations, and 1/10 of 1% of the
No. 2, Series of 1994 is legally invalid and ineffective for not having authorized capital stock but not less than P200.00 nor more
been published in accordance with law. The challenged than P100,000.00 for stock corporations without par value, for the
memorandum circular, according to the appellate court, is not filing of amended articles of incorporation where the amendment
merely an internal or interpretative rule, but affects the public in consists of extending the term of corporate existence.
general. Hence, its publication is required for its effectivity.
Several years after, the SEC issued Memorandum Circular No. 2,
The appellate court denied reconsideration in a Resolution [4] dated Series of 1994, imposing new fees and charges and deleting the
June 9, 2004. maximum filing fee set forth in SEC Circular No. 1, Series of 1986,
such that the fee for the filing of articles of incorporation became
1/10 of 1% of the authorized capital stock plus 20% thereof but not
In its Memorandum[5] dated September 6, 2005, the SEC argues that
less than P500.00.
it issued the questioned memorandum circular in the exercise of its
delegated legislative power to fix fees and charges. The filing fees
required by it are allegedly uniformly imposed on the transacting A reading of the two circulars readily reveals that they indeed
public and are essential to its supervisory and regulatory functions. pertain to different matters, as GMA points out. SEC Memorandum
The fees are not a form of penalty or sanction and, therefore, Circular No. 1, Series of 1986 refers to the filing fee for the
require no publication. amendment of articles of incorporation to extend corporate life,
while Memorandum Circular No. 2, Series of 1994 pertains to the
filing fee for articles of incorporation. Thus, as GMA argues, the
For its part, GMA points out in its Memorandum,[6] dated September
former circular, being squarely applicable and, more importantly,
23, 2005, that SEC Memorandum Circular No. 1, Series of 1986
being more favorable to it, should be followed.
refers to the filing fees for amended articles of incorporation where
the amendment consists of extending the term of corporate
existence. The questioned circular, on the other hand, refers only to
What this proposition fails to consider, however, is the clear A related factor which precludes consideration of the questioned
directive of R.A. No. 3531 to impose the same fees for the filing of issuance as interpretative in nature merely is the fact the SECs
articles of incorporation and the filing of amended articles of assessment amounting to P1,212,200.00 is exceedingly
incorporation to reflect an extension of corporate term. R.A. No.
unreasonable and amounts to an imposition. A filing fee, by legal
3531 provides an unmistakable standard which should guide the SEC
in fixing and imposing its rates and fees. If such mandate were the definition, is that charged by a public official to accept a document
only consideration, the Court would have been inclined to rule that for processing. The fee should be just, fair, and proportionate to the
the SEC was correct in imposing the filing fees as outlined in the service for which the fee is being collected, in this case, the
questioned memorandum circular, GMAs argument examination and verification of the documents submitted by GMA
notwithstanding. to warrant an extension of its corporate term.
However, we agree with the Court of Appeals that the questioned Rate-fixing is a legislative function which concededly has been
memorandum circular is invalid as it does not appear from the
delegated to the SEC by R.A. No. 3531 and other pertinent laws. The
records that it has been published in the Official Gazette or in a
newspaper of general circulation. Executive Order No. 200, which due process clause, however, permits the courts to determine
repealed Art. 2 of the Civil Code, provides that laws shall take effect whether the regulation issued by the SEC is reasonable and within
after fifteen days following the completion of their publication the bounds of its rate-fixing authority and to strike it down when it
either in the Official Gazette or in a newspaper of general circulation arbitrarily infringes on a persons right to property.
in the Philippines, unless it is otherwise provided.
WHEREFORE, the petition is DENIED. The Decision of the Court of
In Taada v. Tuvera,[10] the Court, expounding on the publication
Appeals in CA-G.R. SP No. 68163, dated February 20, 2004, and its
requirement, held:
Resolution, dated June 9, 2004, are AFFIRMED. No pronouncement
We hold therefore that all statutes, including those of local as to costs.
application and private laws, shall be published as a condition for
their effectivity, which shall begin fifteen days after publication SO ORDERED.
unless a different effectivity date is fixed by the legislature.
SO ORDERED.