Tanada v. Tuvera [ GR L-63915, 24 April 1985]

En Banc, Escolin (p): 1 concur, 2 concur with reservation, 1 took no part, 1 on leave

Facts: Invoking the people’s right to be informed on matters of public concern (Section 6, Article IV of the 1973 Philippine Constitution) 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.

The Supreme Court ordered the respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and that unless so published, they shall have no binding force and effect.

  1. People proper party in petition for mandamus if question is of public right and object is to enforce a public duty
    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 (Severino v. Governor General), and it is for the public officers exclusively to apply for the writ when public rights are to be subserved (Mithchell vs. Boardmen), 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.
  2. Private citizen’s legal personality recognized
    The petitioner/relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the petitioner/relator is not a proper party to these proceedings no other person could be, as it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. In the case at bar, private citizen’s legal personality in the Severino v. Governor General apply squarely to the present petition. The Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in the case.
  3. Publication in the Official Gazette necessary to give public adequate notice
    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. This is correct insofar as it equates the effectivity of laws with the fact of publication. Article 2 however, considered in the light of other statutes applicable to the issue (see Section 1, CA 638), does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of the such 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. Further, publication is necessary to apprise the public of the contents of regulations and make the said penalties binding on the persons affected thereby (Pesigan v. Angeles)
  4. Publication vital as no publicity accompanies law-making process of President
    The publication of laws has taken so vital significance when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa — and for the diligent ones, ready access to the legislative records — no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees.
  5. The word “shall” imposes an imperative duty
    The very first clause of Section 1 of CA 638 provides that there shall be published in the Official Gazette… The word “shall” used therein imposes upon 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. In the case at bar, such listing leaves the officials with no discretion whatsoever as to what must be included or excluded from such publication.
  6. Publication of presidential issuance of public nature or general applicability mandated; publication a requirement of due process
    The publication of all presidential issuances “of a public nature” or “of general applicability” is mandated by law. Presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned.  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 (See Peralta v. Comelec).
  7. Unpublished presidential issuance of general application have no force and effect; Effect of ruling and the concept of operative fact
    Presidential issuances of general application, which have not been published, shall have no force and effect. 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.
  8. Consequence of nullity cannot be ignored; Orthodox v. Modern view on unconstitutionality
    It is 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; Chicago, I. & L. Ry. Co. v. Hackett). 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 and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified (Chicot County Drainage District vs. Baxter Bank).