G.R. No.
151908 August 12, 2003
SMART COMMUNICATIONS, INC. (SMART) and
PILIPINO TELEPHONE CORPORATION (PILTEL),
petitioners,
vs.
NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondent.
x---------------------------------------------------------x
G.R. No. 152063 August 12, 2003
GLOBE TELECOM, INC. (GLOBE) and ISLA
COMMUNICATIONS CO., INC. (ISLACOM),
petitioners,
vs.
COURT OF APPEALS (The Former 6th Division)
and the NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.
Facts:
The National Telecommunications Commission
(NTC) issued on June 16, 2000 Memorandum
Circular No. 13-6-2000, promulgating rules and
regulations on the billing of
telecommunications services.
The Memorandum Circular provided that it shall
take effect 15 days after its publication in a
newspaper of general circulation and three
certified true copies thereof furnished the UP
Law Center. It was published in the newspaper,
The Philippine Star, on June 22, 2000.
Meanwhile, the provisions of the Memorandum
Circular pertaining to the sale and use of
prepaid cards and the unit of billing for cellular
mobile telephone service took effect 90 days
from the effectivity of the Memorandum
Circular.
On August 30, 2000, the NTC issued a
Memorandum to all cellular mobile telephone
service (CMTS) operators which contained
measures to minimize if not totally eliminate
the incidence of stealing of cellular phone units.
This was followed by another Memorandum
dated October 6, 2000 addressed to all public
telecommunications entities.
Isla Communications Co., Inc. and Pilipino
Telephone Corporation filed against the
National Telecommunications Commission,
Commissioner Joseph A. Santiago, Deputy
Commissioner Aurelio M. Umali and Deputy
Commissioner Nestor C. Dacanay, an action for
declaration of nullity of NTC Memorandum
Circular No. 13-6-2000 (the Billing Circular) and
the NTC Memorandum dated October 6, 2000,
with prayer for the issuance of a writ of
preliminary injunction and temporary
restraining order.
Petitioners alleged that NTC has no jurisdiction
to regulate the sale of consumer goods such as
the prepaid call cards since such jurisdiction
belongs to the Department of Trade and
Industry under the Consumer Act of the
Philippines; that the Billing Circular is
oppressive, confiscatory and violative of the
constitutional prohibition against deprivation of
property without due process of law; that the
Circular will result in the impairment of the
viability of the prepaid cellular service by unduly
prolonging the validity and expiration of the
prepaid SIM and call cards; and that the
requirements of identification of prepaid card
buyers and call balance announcement are
unreasonable. Hence, they prayed that the
Billing Circular be declared null and void ab
initio.
Globe Telecom, Inc and Smart Communications,
Inc. filed a joint Motion for Leave to Intervene
and to Admit Complaint-in-Intervention and this
was granted by the trial court.
Respondent NTC and its co-defendants filed a
motion to dismiss the case on the ground of
petitioners' failure to exhaust administrative
remedies. Likewise, Globe and Islacom filed a
petition for review, docketed as G.R. No.
152063, assigning the following errors. Thus,
two petitions were consolidated in a Resolution
dated February 17, 2003.
Issues:
1. Whether NTC has a jurisdiction and not the
regular courts over the case; and
2. Whether Billing Circular issued by NTC is
unconstitutional and contrary to law and public
policy.
Held:
Jurisdiction: NTC vs. RTC
Administrative agencies possess quasi-
legislative or rule-making powers and quasi-
judicial or administrative adjudicatory powers.
Quasi-legislative or rule-making power is the
power to make rules and regulations which
results in delegated legislation that is within the
confines of the granting statute and the
doctrine of non-delegability and separability of
powers.
The doctrine of primary jurisdiction applies only
where the administrative agency exercises its
quasi-judicial or adjudicatory function. Thus, in
cases involving specialized disputes, the
practice has been to refer the same to an
administrative agency of special competence
pursuant to the doctrine of primary jurisdiction.
The courts will not determine a controversy
involving a question which is within the
jurisdiction of the administrative tribunal prior
to the resolution of that question by the
administrative tribunal, where the question
demands the exercise of sound administrative
discretion requiring the special knowledge,
experience and services of the administrative
tribunal to determine technical and intricate
matters of fact, and a uniformity of ruling is
essential to comply with the premises of the
regulatory statute administered.
Hence, the Regional Trial Court has jurisdiction
to hear and decide Civil Case No. Q-00-42221.
The Court of Appeals erred in setting aside the
orders of the trial court and in dismissing the
case.
Constitutionality of the Circular
In questioning the validity or constitutionality of
a rule or regulation issued by an administrative
agency, a party need not exhaust administrative
remedies before going to court. This principle
applies only where the act of the administrative
agency concerned was performed pursuant to
its quasi-judicial function, and not when the
assailed act pertained to its rule-making or
quasi-legislative power.
However, where what is assailed is the validity
or constitutionality of a rule or regulation issued
by the administrative agency in the
performance of its quasi-legislative function,
the regular courts have jurisdiction to pass upon
the same. The determination of whether a
specific rule or set of rules issued by an
administrative agency contravenes the law or
the constitution is within the jurisdiction of the
regular courts.
In the case at bar, the issuance by the NTC of
Memorandum Circular No. 13-6-2000 and its
Memorandum dated October 6, 2000 was
pursuant to its quasi-legislative or rule-making
power.
Ruling:
Contrary to the finding of the Court of Appeals,
the issues raised in the complaint do not entail
highly technical matters. Rather, what is
required of the judge who will resolve this issue
is a basic familiarity with the workings of the
cellular telephone service, including prepaid
SIM and call cards – and this is judicially known
to be within the knowledge of a good
percentage of our population – and expertise in
fundamental principles of civil law and the
Constitution.
Hence, the consolidated petitions are granted
but the decision of the Court of Appeals on the
civil cases are reversed and set aside. Thus, it is
remanded to the court a quo for continuation
of the proceedings.
TAÑADA VS. TUVERA
136 SCRA 27 (April 24, 1985)
FACTS:
Invoking the right of the people to be informed
on matters of public concern as well as the
principle that laws to be valid and enforceable
must be published in the Official Gazette,
petitioners filed for writ of mandamus to
compel respondent public officials to publish
and/or cause to publish various presidential
decrees, letters of instructions, general orders,
proclamations, executive orders, letters of
implementations and administrative orders.
The Solicitor General, representing the
respondents, moved for the dismissal of the
case, contending that petitioners have no legal
personality to bring the instant petition.
ISSUE:
Whether or not publication in the Official
Gazette is required before any law or statute
becomes valid and enforceable.
HELD:
Art. 2 of the Civil Code 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 this
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 ignoratia
legis nominem excusat. It would be the height
of injustive to punish or otherwise burden a
citizen for the transgression of a law which he
had no notice whatsoever, not even a
constructive one.
The very first clause of Section 1 of CA 638
reads: there shall be published in the Official
Gazette…. The word “shall” therein imposes
upon respondent officials an imperative duty.
That duty must be enforced if the constitutional
right of the people to be informed on matter of
public concern is to be given substance and
validity.
The publication of presidential issuances of
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. The Court declared that
presidential issuances of general application
which have not been published have no force
and effect.
TAÑADA VS. TUVERA
146 SCRA 446 (December 29, 1986)
FACTS:
This is a motion for reconsideration of the
decision promulgated on April 24, 1985.
Respondent argued that while publication was
necessary as a rule, it was not so when it was
“otherwise” as when the decrees themselves
declared that they were to become effective
immediately upon their approval.
ISSUES:
1. Whether or not a distinction be made
between laws of general applicability and laws
which are not as to their publication;
2. Whether or not a publication shall be made
in publications of general circulation.
HELD:
The clause “unless it is otherwise provided”
refers to the date of effectivity and not to the
requirement of publication itself, which cannot
in any event be omitted. This clause does not
mean that the legislature may make the law
effective immediately upon approval, or in any
other date, without its previous publication.
“Laws” should refer to all laws and not only to
those of general application, for strictly
speaking, all laws relate to the people in general
albeit there are some that do not apply to them
directly. A law without any bearing on the
public would be invalid as an intrusion of
privacy or as class legislation or as an ultra vires
act of the legislature. To be valid, the law must
invariably affect the public interest eve if it
might be directly applicable only to one
individual, or some of the people only, and not
to the public as a whole.
All statutes, including those of local application
and private laws, shall be published as a
condition for their effectivity, which shall begin
15 days after publication unless a different
effectivity date is fixed by the legislature.
Publication must be in full or it is no publication
at all, since its purpose is to inform the public of
the content of the law.
Article 2 of the Civil Code provides that
publication of laws must be made in the Official
Gazette, and not elsewhere, as a requirement
for their effectivity. The Supreme Court is not
called upon to rule upon the wisdom of a law or
to repeal or modify it if it finds it impractical.
The publication must be made forthwith, or at
least as soon as possible.
J. Cruz:
Laws must come out in the open in the clear
light of the sun instead of skulking in the
shadows with their dark, deep secrets.
Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their
existence and contents are confirmed by a valid
publication intended to make full disclosure and
give proper notice to the people. The furtive
law is like a scabbarded saber that cannot faint,
parry or cut unless the naked blade is drawn.
REPUBLIC OF THE PHILIPPINES, represented by
DEPARTMENT OF ENERGY (DOE) V. PILIPINAS
SHELL PETROLEUM CORPORATION
GR No. 173918; April 8, 2008; J. Chico-Nazario
FACTS: On October 10, 1984 the government
created the Oil Price Stabilization Fund (OPSF).
The Office of Energy Affairs (now DOE),
informed Pilipinas Shell that their foreign
exchange risk charge was insufficient:
1.) On December 4, 1991 – for the period
December 1989 to March 1990:
P14, 414, 860. 75;
2.) On December 9, 1991 – for the period
April 1991 – October 1991:
P10, 139, 526. 56.
They also charged surcharges of:
1) P11, 654, 782.31,
2) P 2, 806, 656. 65
pursuant to MOF CIRCULAR No. 1-85, as
amended by DOF 2-94:
2. Remittance of paymjent to the OPSF as
provided for under SECTION 5 of MOF Order
No. 11-85 made not later than the 20th of the
month following the month of remittance of the
foreign exchange payment of the import or the
month of payment to thte domestic producers
in case of locally produced crude.
Period after the specified date shall be subject
to a surcharge of 15% of the amount, id paid
within 30 days from due date, plus 2% per
month if paid after 30 days.
Pilipinas Shell justified its calculations pursuant
to a valid interpretation of the MOFs but
nonetheless paid the principal amount of its
underpayment: P24, 554, 387. 31 but not the
surcharges.
DOE required Shell to pay the surcharges
subject to proceeding against Shell’s Irrevocable
Standby Letter of Credit.

Shell appealed to the Office of the President.
The Office of the President affirmed DOE.
CA reversed the Office of the President, MOF
CIRCULAR 1-85 as amended was ineffective for
failure to comply with the requirement to file
with ONAR.
Even if the Circular was issued before the
effectivity of The Administrative Code of 1987,
Book 7, Chapter 2, SECTION 3 specifies that
rules already in force at the date of effectivity of
the Administrative Code of 1987 must be filed
within 3 months from the effectivity of the
code.
ISSUE: WON the MOF CIRC 1-85 was effective?
HELD: No
RATIO: Shell did not waive the requisite
publication and filing of MOF CIRC 1-85 by
paying the principal amount of its
underpayment.
Citing Tanada V. Tuvera (1986), SC enunciated
that publication is indispensible in order that
statures, including administrative rules that are
intended to enforce or implement existing laws,
attain binding force and effect:
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. (Emphasis provided.)
Publication and filing are safeguards against
abuses on the part of lawmakers and as
guarantees to the constitutional right to due
process and to information on matters of public
concern, and therefore, require compliance.
Citing: National Association of Electricity
Consumers for Reforms V. Energy Regulatory
Board (2006), SC emphasized that both
publication and filing of administrative
issuances intended to enforce existing laws are
mandatory for the effectivity of said issuances:
Nowhere from the above narration does it show
that the GRAM Implementing Rules was
published in the Official Gazette or in a
newspaper of general circulation.
Significantly, the effectivity clauses of both the
GRAM and ICERA Implementing Rules uniformly
provide that they shall take effect immediately.
These clauses made no mention of their
publication in either the Official Gazette or in a
newspaper of general circulation.
Moreover, per the Certification dated January
11, 2006 of the Office of the National
Administrative Register (ONAR), the said
implementing rules and regulations were not
likewise filed with the said office in
contravention of the Administrative Code of
1987.
Applying the doctrine enunciated in Tanada v.
Tuvera, the Court has previously declared as
having no force and effect the following
administrative issuances:
(1.) Rules and Regulations issued by the
Joint Ministry of Health-Ministry of Labor and
Employment Accreditation Committee
regarding the accreditation of hospitals,
medical clinics and laboratories;
(2.) Letter of Instruction No. 1416 ordering
the suspension of payments due and payable by
distressed copper mining companies to the
national government;
(3.) Memorandum Circulars issued by the
Philippine Overseas Employment
Administration regulating the recruitment of
domestic helpers to Hong Kong;
(4.) Administrative Order No. SOCPEC 89-
08-01 issued by the Philippine International
Trading Corporation regulating applications for
importation from the People’s Republic of
China;
(5.) Corporation Compensation Circular No.
10 issued by the Department of Budget and
Management discontinuing the payment of
other allowances and fringe benefits to
government officials and employees; and
(6.) POEA Memorandum Circular No. 2
Series of 1983 which provided for the schedule
of placement and documentation fees for
private employment agencies or authority
holders.
In all these cited cases, the administrative
issuances questioned therein were uniformly
struck down as they were not published or filed
with the National Administrative Register.
On the other hand, in Republic v. Express
Telecommunications Co., Inc, the Court
declared that the 1993 Revised Rules of the
National Telecommunications Commission had
not become effective despite the fact that it
was filed with the National Administrative
Register because the same had not been
published at the time.
The Court emphasized therein that publication
in the Official Gazette or a newspaper of
general circulation is a condition sine qua non
before statutes, rules or regulations can take
effect.
In this case, the GRAM Implementing Rules
must be declared ineffective as the same was
never published or filed with the National
Administrative Register.
To show that there was compliance with the
publication requirement, respondents
MERALCO and the ERC dwell lengthily on the
fact that parties, particularly the distribution
utilities and consumer groups, were duly
notified of the public consultation on the ERC’s
proposed implementing rules.
These parties participated in the said public
consultation and even submitted their
comments thereon.
However, the fact that the parties participated
in the public consultation and submitted their
respective comments is not compliance with
the fundamental rule that the GRAM
Implementing Rules, or any administrative rules
whose purpose is to enforce or implement
existing law, must be published in the Official
Gazette or in a newspaper of general
circulation.
The requirement of publication of
implementing rules of statutes is mandatory
and may not be dispensed with altogether even
if, as in this case, there was public consultation
and submission by the parties of their
comments. (Emphasis provided.)
DISPOSITION: Petition is DENIED. CA is
AFFIRMED.
CONFERENCE MARITIME VS POEA
Facts:
Petitioner, Conference of Maritime Manning
Agencies, Inc., is an incorporated association of
licensed Filipino manning agencies, and its co-
petitioners, all licensed manning agencies who
hire and recruit Filipino seamen for and in
behalf of the irrespective foreign ship-owner-
principals, seek to annul Resolution No. 01,
series of 1994, of the Governing Board of the
POEA and POEA Memorandum Circular No. 05.
Issue:
WON the resolution and the memorandum
circular are unconstitutional because they
violate the equal protection and non-
impairment of obligation of contracts clauses of
the Constitution.
RULING:
Yes. There is, as well, no merit to the claim that
the assailed resolution and memorandum
circular violate the equal protection and
contract clauses of the Constitution. To support
its contention of in equality, the petitioners
claim discrimination against foreign shipowners
and principals employing Filipino seamen and in
favor of foreign employers employing overseas
Filipinos who are not seamen. It is an
established principle of constitutional law that
the guaranty of equal protection of the laws is
not violated by legislation based on reasonable
classification. And for the classification to be
reasonable, it (1) must rest on substantial
distinctions; (2) must be germane to the
purpose of the law; (3) must not be limited to
existing conditions only; and (4) must apply
equally to all members of the same class. 14
There can be no dispute about the
dissimilarities between land-based and sea-
based Filipino overseas workers in terms of,
among other things, work environment, safety,
dangers and risks to life and limb, and
accessibility to social, civic, and spiritual
activities
33. BATANGAS CATV vs. CA, GR 138810
September 29, 2004
FACTS: On July 28, 1986, respondent
Sangguniang Panlungsod enacted Resolution
No. 210 granting petitionera permit to
construct, install, and operate a Community
Antenna Television (CATV) or Cable Television
system inBatangas City. Section 8 of the
Resolution provides that petitioner is
authorized to charge its subscribers
themaximum rates specified therein, “provided,
however, that any increase of rates shall be
subject to the approvalof the Sangguniang
Panlungsod.Page 152
ADMINISTRATIVE LAW, LAW OF PUBLIC
OFFICERS, ELECTION LAW, LAW ON MUNICIPAL
CORPORATIONSCASE DIGESTS (2C & 2K ’16-
’17)Sometime in November 1993, petitioner
increased its subscriber rates from P88.00 to
P180.00 per month. As aresult, respondent
Mayor wrote petitioner a letter threatening to
cancel its permit unless it secures the
approvalof respondent Sangguniang
Panlungsod, pursuant to Resolution No.
210.Petitioner then filed with the RTC, Branch
7, Batangas City, a petition for injunction
alleging that respondentSangguniang
Panlungsod has no authority to regulate the
subscriber rates charged by CATV operators
becauseunder Executive Order No. 205, the
National Telecommunications Commission
(NTC) has the sole authority toregulate the
CATV operation in the Philippines.ISSUE:WON a
local government unit regulate the subscriber
rates charged by CATV operators within
itsterritorial jurisdictionHELD: No. The logical
conclusion, therefore, is that in light of the
above laws and E.O. No. 436, the NTCexercises
regulatory power over CATV operators to the
exclusion of other bodies.Like any other
enterprise, CATV operation maybe regulated by
LGUs under the general welfare clause. This
isprimarily because the CATV system commits
the indiscretion of crossing public properties. (It
uses publicproperties in order to reach
subscribers.) The physical realities of
constructing CATV system – the use of
publicstreets, rights of ways, the founding of
structures, and the parceling of large regions –
allow an LGU a certaindegree of regulation over
CATV operators. But, while we recognize the
LGUs’ power under the general welfareclause,
we cannot sustain Resolution No. 210. We are
convinced that respondents strayed from the
wellrecognized limits of its power. The flaws in
Resolution No. 210 are: (1) it violates the
mandate of existing lawsand (2) it violates the
State’s deregulation policy over the CATV
industry. LGUs must recognize that
technicalmatters concerning CATV operation
are within the exclusive regulatory power of the
NTC.
ABAKADA VS EXECUTIVE SECRETARY
Facts:
Petitioners ABAKADA GURO Party List
challenged the constitutionality of R.A. No.
9337 particularly Sections 4, 5 and 6, amending
Sections 106, 107 and 108, respectively, of the
National Internal Revenue Code (NIRC). These
questioned provisions contain a uniform
proviso authorizing the President, upon
recommendation of the Secretary of Finance, to
raise the VAT rate to 12%, effective January 1,
2006, after any of the following conditions have
been satisfied, to wit:
. . . That the President, upon the
recommendation of the Secretary of Finance,
shall, effective January 1, 2006, raise the rate of
value-added tax to twelve percent (12%), after
any of the following conditions has been
satisfied:
(i) Value-added tax collection as a percentage of
Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2
4/5%); or
(ii) National government deficit as a percentage
of GDP of the previous year exceeds one and
one-half percent (1 ½%).
Petitioners argue that the law is
unconstitutional, as it constitutes abandonment
by Congress of its exclusive authority to fix the
rate of taxes under Article VI, Section 28(2) of
the 1987 Philippine Constitution. They further
argue that VAT is a tax levied on the sale or
exchange of goods and services and cannot be
included within the purview of tariffs under the
exemption delegation since this refers to
customs duties, tolls or tribute payable upon
merchandise to the government and usually
imposed on imported/exported goods. They
also said that the President has powers to
cause, influence or create the conditions
provided by law to bring about the conditions
precedent. Moreover, they allege that no
guiding standards are made by law as to how
the Secretary of Finance will make the
recommendation. They claim, nonetheless, that
any recommendation of the Secretary of
Finance can easily be brushed aside by the
President since the former is a mere alter ego of
the latter, such that, ultimately, it is the
President who decides whether to impose the
increased tax rate or not.
Issues:
Whether or not R.A. No. 9337 has violated the
provisions in Article VI, Section 24, and Article
VI, Section 26 (2) of the Constitution.
Whether or not there was an undue delegation
of legislative power in violation of Article VI Sec
28 Par 1 and 2 of the Constitution.
Whether or not there was a violation of the due
process and equal protection under Article III
Sec. 1 of the Constitution.
Discussions:
Basing from the ruling of Tolentino case, it is
not the law, but the revenue bill which is
required by the Constitution to “originate
exclusively” in the House of Representatives,
but Senate has the power not only to propose
amendments, but also to propose its own
version even with respect to bills which are
required by the Constitution to originate in the
House. the Constitution simply means is that
the initiative for filing revenue, tariff or tax bills,
bills authorizing an increase of the public debt,
private bills and bills of local application must
come from the House of Representatives on the
theory that, elected as they are from the
districts, the members of the House can be
expected to be more sensitive to the local
needs and problems. On the other hand, the
senators, who are elected at large, are expected
to approach the same problems from the
national perspective. Both views are thereby
made to bear on the enactment of such laws.
In testing whether a statute constitutes an
undue delegation of legislative power or not, it
is usual to inquire whether the statute was
complete in all its terms and provisions when it
left the hands of the legislature so that nothing
was left to the judgment of any other appointee
or delegate of the legislature.
The equal protection clause under the
Constitution means that “no person or class of
persons shall be deprived of the same
protection of laws which is enjoyed by other
persons or other classes in the same place and
in like circumstances.”
G.R. No. 147096 January 15, 2002
REPUBLIC OF THE PHILIPPINES, represented by
NATIONAL TELECOMMUNICATIONS
COMMISSION,
vs.
EXPRESS TELECOMMUNICATION CO., INC. and
BAYAN TELECOMMUNICATIONS CO., INC.
x---------------------------------------------------------x
G.R. No. 147210 January 15, 2002
BAYAN TELECOMMUNICATIONS (Bayantel),
INC., ,
vs.
EXPRESS TELECOMMUNICATION CO., INC.
(Extelcom),
FACTS:
On December 29, 1992, the International
Communications Corporation (now Bayantel)
filed an application with the NTC for a CPCN to
install, operate and maintain a digital Cellular
MobileTelephone System/Service (CMTS) with
prayer for a Provisional Authority (PA).
However, ExpressTelecommunication Co., Inc.
(Extelcom) filed in NTC an Opposition praying
for the dismissal of Bayantel’s application. On
May 3, 2000, the NTC issued an Order granting
in favor of Bayantel, applying Rule 15, Section 3
of its 1978 Rules of Practice and Procedure.
Extelcom filed with the CA a petition seeking
the annulment of the Order of the RTC, which
was eventually granted by the CA. Aggrieved,
Bayantel brought the case to the SC.
Extelcom contends that the NTC should have
applied the Revised Rules which were filed with
the Office of the NAR on February 3, 1993.. The
NTC, on the other hand, issued a certification to
the effect that inasmuch as the 1993 Revised
Rules have not been published in a newspaper
of general circulation, the NTC has been
applying the 1978 Rules. Thus, the present
petition.
ISSUE: Which among the NTC Rules of Practice
and Procedure should govern in the approval of
Bayantel’s application?
HELD:
The 1978 NTC Rules.
The absence of publication, coupled with the
certification by the Commissioner of the NTC
stating that the NTC was still governed by the
1978 Rules, clearly indicate that the 1993
Revised Rules have not taken effect at the time
of the grant of the provisional authority to
Bayantel.
There is nothing in the Administrative Code of
1987 which implies that the filing of the rules
with the UP Law Center is the operative act that
gives the rules force and effect. Still,
publication in the Official Gazette or a
newspaper of general circulation is a condition
sine qua non before statutes, rules or
regulations can take effect. The Rules of
Practice and Procedure of the NTC, which
implements Section 29 of the Public Service Act
(Commonwealth Act 146, as amended), fall
squarely within the scope of these laws.
Administrative rules and regulations must be
published if their purpose is to enforce or
implement existing law pursuant to a valid
delegation.
The only exceptions are interpretative
regulations, those merely internal in nature, or
those so-called letters of instructions issued by
administrative superiors concerning the rules
and guidelines to be followed by their
subordinates in the performance of their duties.
SECRETARY VS LANTION
Facts:
This is a petition for review of a decision of the
Manila Regional Trial Court (RTC). The
Department of Justice received a request from
the Department of Foreign Affairs for the
extradition of respondent Mark Jimenez to the
U.S. The Grand Jury Indictment. The warrant for
his arrest, and other supporting documents for
said extradition were attached along with the
request. Charges include:
Conspiracy to commit offense or to defraud the
US
Attempt to evade or defeat tax
Fraud by wire, radio, or television
False statement or entries
Election contribution in name of another
The Department of Justice (DOJ), through a
designated panel proceeded with the technical
evaluation and assessment of the extradition
treaty which they found having matters needed
to be addressed. Respondent, then requested
for copies of all the documents included in the
extradition request and for him to be given
ample time to assess it. The Secretary of Justice
denied request on the following grounds:
He found it premature to secure him copies
prior to the completion of the evaluation. At
that point in time, the DOJ is in the process of
evaluating whether the procedures and
requirements under the relevant law (PD 1069
Philippine Extradition Law) and treaty (RP-US
Extradition Treaty) have been complied with by
the Requesting Government. Evaluation by the
DOJ of the documents is not a preliminary
investigation like in criminal cases making the
constitutionally guaranteed rights of the
accused in criminal prosecution inapplicable.
The U.S. requested for the prevention of
unauthorized disclosure of the information in
the documents.
The department is not in position to hold in
abeyance proceedings in connection with an
extradition request, as Philippines is bound to
Vienna Convention on law of treaties such that
every treaty in force is binding upon the parties.
Mark Jimenez then filed a petition against the
Secretary of Justice. RTC presiding Judge
Lantion favored Jimenez. Secretary of Justice
was made to issue a copy of the requested
papers, as well as conducting further
proceedings. Thus, this petition is now at bar.
Issue/s:
Whether or not respondent’s entitlement to
notice and hearing during the evaluation stage
of the proceedings constitute a breach of the
legal duties of the Philippine Government under
the RP-US Extradition Treaty.
Discussions:
The doctrine of incorporation is applied
whenever municipal tribunals are confronted
with situations in which there appears to be a
conflict between a rule of international law and
the provisions of the constitution or statute of a
local state. Efforts should be done to harmonize
them. In a situation, however, where the
conflict is irreconcilable and a choice has to be
made between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts. The doctrine of incorporation
decrees that rules of international law are given
equal standing, but are not superior to, national
legislative enactments.
PRIBHDAS J. MIRPURI vs. CA,
DIRECTOR OF PATENTS and the
BARBIZON CORPORATION
FACTS
Lolita Escobar, the predecessor-in-interest of
petitioner Mirpuri, filed an application for the
registration of the trademark "Barbizon" for
use in brassieres and ladies undergarments.
Escobar alleged that she had been
manufacturing and selling these products
under the firm name "L & BM Commercial"
since 1970.
Private respondent Barbizon Corporation, a
US corporation opposed the application.
Director of Patents rendered judgment
dismissing the opposition and giving due
course to Escobar's application.
Escobar later assigned all her rights and
interest over the trademark to petitioner
Mirpuri who, under his firm name then, the
"Bonito Enterprises," was the sole and
exclusive distributor of Escobar's "Barbizon"
products.
In 1979, however, Escobar failed to file with
the Bureau of Patents the Affidavit of Use of
the trademark required under Section 12 of
R.A. 166. Due to this failure, the Bureau of
Patents cancelled Escobar's certificate of
registration.
Escobar reapplied for registration of the
cancelled trademark. Mirpuri filed his own
application for registration of Escobar's
trademark. Escobar later assigned her
application to herein petitioner and this
application was opposed by private
respondent.
Petitioner raised the defense of res judicata.
Escobar assigned to petitioner the use of the
business name "Barbizon International."
Petitioner registered the name with the
Department of Trade and Industry (DTI) for
which a certificate of registration was issued
in 1987.
Private respondent filed before the Office of
Legal Affairs of the DTI a petition for
cancellation of petitioner's business name.
DTI, Office of Legal Affairs, cancelled
petitioner's certificate of registration, and
declared private respondent the owner and
prior user of the business name "Barbizon
International."
Director rendered a decision declaring
private respondent's opposition barred by
res judicata and giving due course to
petitioner's application for registration.
CA reversed the Director’s decision that case
was barred and ordered that the case be
remanded to the Bureau of Patents for
further proceedings.
ISSUES
Whether or not respondent is barred by
filing this case by res judicata
Whether or not petitioner is liable for
trademark infringement
DECISION
The Paris Convention, is a multilateral treaty
that seeks to protect industrial property
consisting of patents, utility models,
industrial designs, trademarks, service
marks, trade names and indications of
source or appellations of origin, and at the
same time aims to repress unfair
competition. It is essentially a compact
among various countries which, as members
of the Union, have pledged to accord to
citizens of the other member countries
trademark and other rights comparable to
those accorded their own citizens by their
domestic laws for an effective protection
against unfair competition. Both the
Philippines and the United States of
America, are signatories to the Convention.
Private respondent anchors its cause of
action on the first paragraph of Article 6bis
of the Paris Convention, said Article
governing protection of well-known
trademarks.
Art. 6bis is a self-executing provision and
does not require legislative enactment to
give it effect in the member country. It may
be applied directly by the tribunals and
officials of each member country by the
mere publication or proclamation of the
Convention, after its ratification according to
the public law of each state and the order
for its execution.
The essential requirement under Article 6bis
is that the trademark to be protected must
be "well-known" in the country where
protection is sought. The power to
determine whether a trademark is well-
known lies in the "competent authority of
the country of registration or use." This
competent authority would be either the
registering authority if it has the power to
decide this, or the courts of the country in
question if the issue comes before a court.
Pursuant to Article 6bis, then Minister
Villafuerte of the Ministry of Trade issued a
Memorandum instructing Director of Patents
to reject all pending applications for
Philippine registration of signature and other
world-famous trademarks by applicants
other than their original owners or users,
enumerating several internationally-known
trademarks and ordered the Director of
Patents to require Philippine registrants of
such marks to surrender their certificates of
registration.
After, Minister Ongpin issued Memorandum
which did not enumerate well-known
trademarks but laid down guidelines for the
Director of Patents to observe in
determining whether a trademark is entitled
to protection as a well-known mark in the
Philippines under Article 6bis of the Paris
Convention. All pending applications for
registration of world-famous trademarks by
persons other than their original owners
were to be rejected forthwith.
The Supreme Court in the 1984 landmark
case of La Chemise Lacoste, S.A. v.
Fernandez ruled therein that under the
provisions of Article 6bis of the Paris
Convention, the Minister of Trade and
Industry was the "competent authority" to
determine whether a trademark is well-
known in this country.
The Villafuerte Memorandum was issued in
1980. In the case at bar, the first inter
partes case, was filed in 1970, before the
Villafuerte Memorandum but 5 years after
the effectivity of the Paris Convention.
Private respondent, however, did not cite
the protection of Article 6bis, neither did it
mention the Paris Convention at all. It was
only in 1981 when second case was
instituted that the Paris Convention and the
Villafuerte Memorandum, and, during the
pendency of the case, the 1983 Ongpin
Memorandum were invoked by private
respondent.
We held in Wolverine Worldwide, Inc. v. CA
that the Memorandum and E.O. did not
grant a new cause of action because it did
"not amend the Trademark Law," . . . "nor
did it indicate a new policy with respect to
the registration in the Philippines of world-
famous trademarks." In other words, since
the first and second cases involved the same
issue of ownership, then the first case was a
bar to the second case.
Here the second case raised the issue of
ownership of the trademark, the first
registration and use of the trademark in the
United States and other countries, and the
international recognition and reputation of
the trademark established by extensive use
and advertisement of private respondent's
products for over forty years here and
abroad. These are different from the issues
of confusing similarity and damage in first.
The issue of prior use may have been raised
in first case but this claim was limited to
prior use in the Philippines only. Prior use in
second stems from private respondent's
claim as originator of the word and symbol
"Barbizon," as the first and registered user
of the mark attached to its products which
have been sold and advertised worldwide for
a considerable number of years prior to
petitioner's first application for registration
of her trademark in the Philippines. Indeed,
these are substantial allegations that raised
new issues and necessarily gave private N VIEW WHEREOF, the petition is denied
respondent a new cause of action. Res and the Decision and Resolution of the CA
judicata does not apply to rights, claims or are affirmed.
demands, although growing out of the same
subject matter, which constitute separate or
distinct causes of action and were not put in
issue in the former action.

Respondent corporation also introduced in

the second case a fact that did not exist at
the time the first case was filed and
terminated: the cancellation of petitioner's
certificate of registration for failure to file
the affidavit of use. It did not and could not
have occurred in the first case, and this
gave respondent another cause to oppose
the second application. Res judicata extends
only to facts and conditions as they existed
at the time judgment was rendered and to
the legal rights and relations of the parties
fixed by the facts so determined. When new
facts or conditions intervene before the
second suit, furnishing a new basis for the
claims and defenses of the parties, the
issues are no longer the same, and the
former judgment cannot be pleaded as a bar
to the subsequent action.

It is also noted that the oppositions in the

first and second cases are based on different
laws. The opposition in first was based on
specific provisions of the Trademark Law,
i.e., Section 4 (d) on confusing similarity of
trademarks and Section 8 on the requisite
damage to file an opposition to a petition for
registration. The opposition in second
invoked the Paris Convention, particularly
Article 6bis thereof, E.O. No. 913 and the
two Memoranda of the Minister of Trade and
Industry. This opposition also invoked Article
189 of the Revised Penal Code which is a
statute totally different from the Trademark
Law. Causes of action which are distinct and
independent from each other, although
arising out of the same contract,
transaction, or state of facts, may be sued
on separately, recovery on one being no bar
to subsequent actions on others. The mere
fact that the same relief is sought in the
subsequent action will not render the
judgment in the prior action operative as res
judicata, such as where the two actions are
based on different statutes.