The Crucial Role of Publication in Ensuring the Validity of Administrative Regulations

Denr Employees Union (Denreu) and Kalipunan Ng Mga Kawani Sa Kagawarang Kalikasan (K4) v. Secretary Florencio B. Abad of the Department of Budget and Management and the Commission on Audit, G.R. No. 204152, January 19, 2021

Imagine receiving a bonus at work, only to be told months later that you must return it because a new regulation was issued, but you were never informed about it. This scenario played out in the Philippine government when the Department of Environment and Natural Resources (DENR) employees faced a similar situation. The case of DENR Employees Union (DENREU) and Kalipunan ng mga Kawani sa Kagawarang Kalikasan (K4) against the Department of Budget and Management (DBM) and the Commission on Audit (COA) highlighted the critical importance of publication in administrative regulations, a principle that affects not just government employees but anyone governed by such rules.

The core issue in this case revolved around a DBM circular that imposed a ceiling on the Collective Negotiation Agreement (CNA) incentive for 2011. The DENR had already granted incentives exceeding this limit, leading to a disallowance by the COA. The central legal question was whether the circular, which was not published until after the incentives were granted, could retroactively apply to invalidate the payments.

Legal Context: The Necessity of Publication in Administrative Law

In the Philippines, the requirement for publication of laws and regulations is enshrined in the Constitution and reinforced by the Civil Code and the Administrative Code of 1987. The landmark case of Tañada v. Tuvera established that all statutes and administrative rules must be published as a condition for their effectivity. This ensures that the public is informed of new laws and regulations that may affect their rights and obligations.

The term “publication” in this context means making the regulation known to the public through the Official Gazette or a newspaper of general circulation. This is not just a procedural formality but a fundamental aspect of due process, ensuring that individuals are given notice of the laws they must follow. For instance, if a new regulation affects the compensation of employees, they must be informed before it can be enforced.

Exceptions to the publication requirement are narrow and include interpretative regulations that merely clarify existing laws without imposing new obligations, or internal regulations that affect only the personnel of the issuing agency. However, regulations that impose new burdens or obligations on the public must be published to be valid.

Case Breakdown: The Journey of DENREU and K4

The saga began when the DENR, in compliance with its Collective Negotiation Agreement with its employees, granted CNA incentives for 2011. These incentives exceeded the P25,000 limit set by the DBM’s Budget Circular No. 2011-5, issued on December 26, 2011. However, this circular was not published until February 25, 2012, after the incentives had already been disbursed.

The COA issued a Notice of Disallowance, demanding the return of the excess incentives. DENREU and K4 appealed this decision but were unsuccessful due to procedural delays. They then turned to the Supreme Court, arguing that the circular was invalid because it was not published before it was enforced.

The Supreme Court’s decision hinged on the principle of publication. The Court stated:

“Settled is the rule that a belated publication cannot have retroactive effect of curing the infirmity attendant in the passage of the administrative regulation.”

The Court further emphasized:

“The publication requirement on laws is part and parcel of the constitutional mandate of due process. Its omission is tantamount to denying the public of knowledge and information of the laws that govern it; hence, a violation of due process.”

Ultimately, the Supreme Court ruled that while the DBM had the authority to issue the circular, its application to the incentives already granted was invalid due to the lack of prior publication. The Court annulled the COA’s disallowance and related orders, protecting the rights of the DENR employees.

Practical Implications: Navigating Administrative Regulations

This ruling underscores the importance of timely publication for administrative regulations. For government agencies, it serves as a reminder to ensure that new rules are published before they are enforced. For employees and the public, it reinforces the right to be informed of changes that may affect their benefits or obligations.

Businesses and organizations dealing with government regulations should also take note. When engaging with government agencies, it is crucial to verify the publication status of any new regulation that may impact their operations or employee benefits.

Key Lessons:

• Always check the publication date of any new regulation that affects you.
• Understand that regulations not properly published cannot be enforced retroactively.
• If you believe a regulation affecting you was not properly published, consider seeking legal advice to protect your rights.

Frequently Asked Questions

What is the purpose of publishing administrative regulations?

Publication ensures that the public is aware of new laws and regulations, which is essential for due process and transparency in governance.

Can a regulation be enforced if it has not been published?

No, a regulation that has not been published cannot be enforced against the public, as it would violate the right to due process.

What are the exceptions to the publication requirement?

Exceptions include interpretative regulations that clarify existing laws without imposing new obligations and internal regulations that only affect the issuing agency’s personnel.

What should I do if I receive a notice based on an unpublished regulation?

You should seek legal advice to challenge the notice, as unpublished regulations cannot be enforced against you.

How can I stay informed about new regulations that may affect me?

Regularly check the Official Gazette or newspapers of general circulation, and consider subscribing to updates from relevant government agencies.

ASG Law specializes in administrative law and government regulations. Contact us or email hello@asglawpartners.com to schedule a consultation.