Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
NATIONAL ELECTRIFICATION G.R. No. 158761
ADMINISTRATION,
Petitioner, Present:
QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
VICTORIANO B. GONZAGA, Promulgated:
Respondent.
December 4, 2007
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
For review under Rule 45 are the March 6, 2003 Decision [1] and June 10,
2003 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 68769, which
dismissed petitioners appeal of the July 23, 2001 Order [3] of the Pagadian City
Regional Trial Court (RTC), Branch 21 in Civil Case No. 4282-2K, and denied
petitioners Motion for Reconsideration, respectively.
On November 13, 2000, respondent Victoriano B. Gonzaga filed his
Certificate of Candidacy for membership in the Board of Directors of Zamboanga
del Sur II Electric Cooperative, Inc., District II (ZAMSURECO). Later that day,
the screening committee resolved to disqualify respondent because his spouse was
an incumbent member of theSangguniang Bayan of Diplahan, Zamboanga del
Sur. Based on the Electric Cooperative Election Code (ECEC), promulgated by
petitioner National Electrification Administration (NEA), a candidate whose
spouse occupies an elective government position higher than Barangay Captain is

prohibited to run as director of an electric cooperative. ZAMSURECOs by-laws,

however, do not provide for such ground for disqualification.[4]
On November 21, 2000, respondent filed a Petition for Prohibition and
Damages, docketed as Civil Case No. 4282-2K with the Pagadian City RTC.
ZAMSURECO filed a Motion to Dismiss and Answer on November 24,
2000, which the RTC denied. However, it issued a temporary restraining order,
ordering ZAMSURECOs officials to refrain from conducting the election for
directorship set on December 2, 2000.
The RTC said that the petition was dismissible because of the failure of
respondent to exhaust all administrative remedies, as required by Section 2, 2.C of
the ECEC Guidelines on the Conduct of District Elections for Electric
Cooperative. The section required that a protest arising from disqualification shall
be filed with the screening committee in not less than FIVE (5) days before the
election. The screening committee shall decide the protest within FORTY-EIGHT
(48) hours from receipt thereof. Failure of the applicant to file his/her protest
within the above-cited period shall be deemed a waiver of his right to protest.[5]
As observed by the RTC, respondent had urgently filed the petition
on November 21, 2000 because the election sought to be restrained was going to be
held on December 2, 2000 and November 20 was a holiday. Under the
circumstances, respondent had little time to exhaust the remedy in Sec. 2 of the
Guidelines, such that an exception could be made. More importantly, according to
the RTC, the rule on exhaustion of administrative remedies cannot be invoked in
the instant case since the guidelines prescribing the administrative remedy is a
subject matter of the ECEC, which is at issue, and is exactly what is being sought
to be invalidated.[6]
On December 12, 2000, respondent filed a motion to withdraw the amended
petition, and to admit a second amended petition that impleaded NEA as
indispensable party.Respondent also averred that the ECEC was null and void
because it had not been published. On December 20, 2000, the RTC admitted the
second amended petition, issued a writ of preliminary injunction to prevent the

conduct of election for directorship, issued summons to NEA, and required NEA to
comment if the ECEC was published in any newspaper of general circulation.[7]
On January 29, 2001, NEA filed a motion for extension of time to file an
answer, and subsequently on April 10, 2001, a Motion for Leave to Admit Pleading
to which a Motion to Dismiss was attached. NEA questioned the jurisdiction of the
RTC and alleged that respondent failed to exhaust administrative remedies.[8]
In its July 23, 2001 Order,[9] the RTC denied petitioners Motion to Dismiss
for being filed out of time. More importantly, it noted NEAs failure to state
whether the ECEC was indeed published in a newspaper of general circulation as
required by the New Civil Code and the Administrative Code of 1987. The RTC
said the failure rendered the ECEC null and void. As regards the lack of
jurisdiction and non-exhaustion of administrative remedies, the RTC noted that
NEA erroneously relied on Sec. 59 of Presidential Decree No. (PD) 269 and
misapplied the cases it cited.
According to the RTC, Sec. 59 of PD 269 refers to order, ruling or decision
of the NEA in the exercise of NEAs quasi-judicial functions. And the RTC noted
that Secs. 51 to 58 refer to hearings, investigations, and procedures. On the other
hand, the validity of the ECEC, subject of the instant petition, was an exercise of
NEAs quasi-legislative function or rule-making authority.
Further, according to the RTC, NEA took Sec. 58 of PD 269 out of context
when it said Sec. 58 dealt with the administrative remedy available to petitioner. It
said that Sec. 58 presupposed a ruling or decision of the NEA and there was none
in the case before it. The RTC ruled in favor of Gonzaga, and ordered
ZAMSURECO to accept Gonzagas certificate of candidacy for director.[10] The
RTC denied NEAs motion for reconsideration.
The CA Ruled that the Courts Have Jurisdiction Over
Issues on Legality of Codes
Aggrieved, petitioner appealed to the CA. The CA denied due course and
dismissed the petition. It said that NEA was not exercising its quasi-judicial powers
but its rule-making authority. In the case before the trial court, the CA stressed that

the issue involved the interpretation of the ECEC, and to this extent, NEA had no
jurisdiction because the issue is within the province of the courts.
The CA denied petitioners Motion for Reconsideration in its June 10,
2003 Resolution. Hence, we have this petition.
The Issues
WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT APPLYING
SECTION 59 OF P.D. 269
WHETHER OR NOT THE COURT OF APPEALS ERRED IN UPHOLDING
THE TRIAL COURTS NULLIFICATION OF THE ECEC

Issues Involving NEAs Rule-Making Authority

Are Cognizable by Regular Courts
The petition has no merit.
Sec. 59 of PD 269 provides:
SEC. 59. Court Review.The Supreme Court is hereby given jurisdiction to
review any order, ruling or decision of the NEA and to modify or set aside such
order, ruling or decision when it clearly appears that there is no evidence before
the NEA to support reasonably such order, ruling or decision, or that the same is
contrary to law, or that it was without the jurisdiction of the NEA. The evidence
presented to the NEA, together with the record of the proceedings before the
NEA, shall be certified by the NEA to the Supreme Court. Any order, ruling or
decision of the NEA may likewise be reviewed by the Supreme Court upon writ
of certiorari in proper case. The procedure for review, except as herein provided,
shall be presented by rules of the Supreme Court. Any order or decision of the
NEA may be reviewed on the application of any person or public service entity
aggrieved thereby and who was a party in the subject proceeding, by certiorari in
appropriate cases or by a petition for review, which shall be filed within thirty
(30) days from the notification of the NEA order, decision or ruling on
reconsideration. Said petition shall be placed on file in the office of the Clerk for
the Supreme Court who shall furnish copies thereof to the NEA and other
interested parties.

Petitioner argues that based on the foregoing provision, only the Supreme
Court has the authority to review the acts of NEA as an administrative body with

adjudicative and rule-making power. It cited NEA v. Mendoza, using the Courts
pronouncement that:
[T]he power of judicial review of NEAs order or decision pertains to the
Supreme Court as decreed in Section 59 of P.D. 269 which vests specifically on
the Supreme Court the jurisdiction to review any order, ruling or decision of the
NEA and to modify or set aside such orders, rulings or decisions.[11]

It is obvious that Sec. 59 of PD 269 refers to order, ruling or decision of

NEA. What is being challenged in this case is the decision of the screening
committee of ZAMSURECO to disqualify respondent. Likewise assailed is the
validity of the ECEC, particularly, whether the requirement of publication was
complied with. The ECEC was issued by NEA pursuant to its rule-making
authority, not its quasi-judicial function. Hence, the issue regarding the controversy
over respondents disqualification and the question on the ECECs validity are
within the inherent jurisdiction of regular courts to review. Petitioners reliance
on NEA is misplaced. The subject in that case was the electricity rates charged by a
cooperative, a matter which is clearly within NEAs jurisdiction. The issue in the
present petition, however, centers on the validity of NEAs rules in light of the
publication requirements of the Administrative Code and New Civil Code. The
present issue is cognizable by regular courts.
With regard to the second issue, we find no error in the appellate and trial
courts nullification of the ECEC. The CA correctly observed that while
ZAMSURECO complied with the requirements of filing the code with the
University of the Philippines Law Center, it offered no proof of publication in
the Official Gazette nor in a newspaper of general circulation. Without compliance
with the requirement of publication, the rules and regulations contained in the
ECEC cannot be enforced and implemented.
Article 2 of the New Civil Code provides that laws shall take effect after
fifteen (15) days following the completion of their publication in the Official
Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided.

Executive Order No. 292, otherwise known as the Administrative Code of

1987, reinforced the requirement of publication and outlined the procedure, as
follows:
Sec. 3. Filing. (1) Every Agency shall file with the University of
the Philippines Law Center three (3) Certified copies of every rule adopted by
it. Rules in force on the date of effectivity of this Code which are not filed within
three (3) months from that date shall not thereafter be the basis of any sanction
against any party or persons.
(2) The Records Officer of the agency, or his equivalent functionary, shall
carry out the requirements of this section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the issuing agency
and shall be open to public inspection.
Sec. 4. Effectivity In addition to other rule-making requirements provided
by law not inconsistent with this Book, each rule shall become effective fifteen
(15) days from the date of filing as above provided unless a different date is fixed
by law, or specified in this rule.
Sec. 18. When Laws Take Effect Laws shall take effect after Fifteen (15)
days following the completion of their publication in the Official Gazette or in a
newspaper of general circulation, unless it is otherwise provided.

We have already emphasized and clarified the requirement of publication in

this Courts Resolution in Taada v. Tuvera:
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 (15) 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. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be

followed by their subordinates in the performance of their duties. (Emphasis

supplied.) [12]

The aforequoted ruling was reiterated in Dadole v. Commission on Audit,

De Jesus v. Commission on Audit,[14] and Philippine International Trading
Corporation v. Commission on Audit.[15]
[13]

In the case at bar, the ECEC was issued by petitioner pursuant to its rulemaking authority provided in PD 269, as amended, particularly Sec. 24:
Section 24. Board of Directors. (a) The Management of a Cooperative
shall be vested in its Board, subject to the supervision and control of NEA which
shall have the right to be represented and to participate in all Board meetings and
deliberations and to approve all policies and resolutions.
The composition, qualifications, the manner of elections and filling of
vacancies, the procedures for holding meetings and other similar provisions shall
be defined in the By-laws of the Cooperative subject to NEA policies, rules and
regulations x x x.

The ECEC applies to all electric cooperatives in the country. It is not a mere
internal
memorandum,
interpretative
regulation,
or
instruction
to
subordinates. Thus, the ECEC should comply with the requirements of the Civil
Code and the Administrative Code of 1987. In previous cases involving the
election of directors for electric cooperatives, the validity of the ECEC was not put
in issue. The ECEC then enjoyed the presumption of validity. In this case,
however, respondent directly questioned the validity of the ECEC in his second
amended petition. The trial court thus required petitioner to show proof of
publication of the ECEC. Petitioner could have easily provided such proof had the
ECEC actually been published in the Official Gazette or newspaper of general
circulation in the country. This simple proof could have immediately laid this case
to rest. Petitioners failure to do so only implies that the ECEC was not published
accordingly, a fact supported by the certification from the National Printing Office.
Lastly, petitioner avers that a petition for mandamus and prohibition should
not have been resorted to by respondent. The proper recourse, according to
petitioner, is a petition for declaratory relief. Petitioner miserably errs on this
point. Rule 63 on declaratory relief states:

Section 1. Who may file petition.Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising,
and for a declaration of his rights or duties thereunder.

As stated above, a requirement under Rule 63 is that the petition for

declaratory relief must be filed before any breach or violation the questioned
document may cause. In the instant case, it cannot be gainsaid that a breach has not
yet occurred since an actual dispute has already arisen between ZAMSURECO and
respondentthe screening committee of the cooperative on the erroneous
implementation of a code whose legality and implementation is being questioned.
On the other hand, it is familiar and fundamental doctrine that a writ of
prohibition or mandamus may issue when x x x a board unlawfully excludes
another from x x x enjoyment of a right or office to which such other is entitled x x
x.[16]

Considering that the screening committee of the board has excluded

respondent from being elected as board member of ZAMSURECO because of the
latters improper implementation of the code, a petition for mandamus and
prohibition is the proper recourse.
WHEREFORE, we DENY the petition, and AFFIRM IN TOTO the
March 6, 2003 Decision and June 10, 2003 Resolution in CA-G.R. SP No.
68769. Costs against petitioner.
SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA

Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Rollo, pp. 34-39. Penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices
Portia Alio-Hormachuelos and Amelita G. Tolentino.
[2]
Id. at 40.
[3]
Id. at 41-49.
[4]
Id. at 45. Art. 2, Sec. 7 of the ECEC specifically provides:
8. He/she does not hold an elective office in the government nor appointed to an elective
position above the level of a Barangay Captain.
xxxx
12. His/her spouse is not disqualified under Nos. 6, 7 and 8.
xxxx

14. Any bonafide member seeking election or re-election and any incumbent director shall satisfy
all of the above-mentioned qualifications. Non-compliance with any single item shall mean
disqualification or termination.
[5]
Id. at 43-44.
[6]

Id.
[7]

Id. at 41.
Id. at 21, 41-42.
[9]
Supra note 3.
[10]
Id. at 42-44.
[11]
No. L-62038, September 25, 1985, 138 SCRA 632, 637.
[12]
No. L-63915, December 29, 1986, 146 SCRA 446, 453-454.
[13]
G.R. No. 125350, December 3, 2002, 393 SCRA 262.
[14]
G.R. No. 109023, August 12, 1998, 294 SCRA 152.
[15]
G.R. No. 132593, June 25, 1999, 309 SCRA 177.
[16]
RULES OF COURT, Rule 65, Sec. 2. Petition for prohibition.When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to
desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs
as law and justice may acquire.
xxxx
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled,
and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent. (Emphasis supplied.)
[8]