By Atty. Eduardo Reyes III
Whether Executive Orders (E.O.s) are intrinsically valid would be a totally different issue altogether. However, granting that they are valid, the issue is whether they should be published in a newspaper of general circulation as a pre-condition for effectivity.
With the series of executive orders being issued by heads of local government units (LGUs) as a consequence of the passage of RA 11469 or the “Bayanihan to Heal as One Act”, especially those carrying penal or criminal provisions, students of the law ought to ask whether these E.O.s have to be published first before they can obtain the force and effect of law.
In the case of MANILA PUBLIC SCHOOL TEACHERS’ ASSOCIATION (MPSTA) v. MR. WINSTON F. GARCIA, et al. G.R. No. 192708, October 2, 2017, the Supreme Court ruled that when an executive order or any administrative issuance for that matter “substantially affects the rights of those governed”, then publication is indispensable.
“As early as 1986, the Court in Tañada v. Tuvera already laid down a definitive interpretation of Article 2 of the Civil Code:
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published.” X x x (Citations omitted) X x x
And how do we know whether an administrative regulation is no longer a mere innocuous “interpretative regulation” or “merely internal in nature” that will not require any publication?
Here again is the Supreme Court explaining that when the administrative regulation or executive order “substantially adds to or increases the burden of those governed and affects the public in general”, then the same must be published first before it can have the force and effect of law.
“According to the Court in Veterans Federation of the Philippines v. Reyes, xxx , “when xxx an administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.” (MANILA PUBLIC SCHOOL TEACHERS’ ASSOCIATION (MPSTA) v. MR. WINSTON F. GARCIA, et al. , Ibid., citations omitted).
It should be noted that these executive orders dictate as to: (1)who are the persons who can and cannot leave their homes; and, (2) which businesses can or cannot operate, among others, under pain of administrative or criminal penalties. Inevitably, the E.O.s substantially impinge on the substantial rights of the people governed hence they are not mere internal rules or interpretative regulations.
Unless therefore these executive orders (E.Os) comply with the requirement of prior publication, then they cannot have the force and effect of law. It would be unfair, let alone unjust, to expect a citizen to comply with certain regulations that he is unaware of- as they were never published in the first place (And should already take effect the day after issuance). Ignorance of the law is not excusable only when the law is valid. But when the law is not valid for absence of publication, ignorance thereof cannot bind, and should be excused.
