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Freedom from Debt Coalition v. Meralco : 161113 : June 15, 2004 : J. Austria-Martinez : En Banc : Concurring and Dissenting Opinion

Freedom from Debt Coalition v. Meralco : 161113 : June 15, 2004 : J. Austria-Martinez : En Banc : Concurring and Dissenting Opinion

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 161113 : June 15, 2004]

FREEDOM FROM DEBT COALITION, ANA MARIA NEMENZO, as President of FREEDOM FROM DEBT COALITION, MA. TERESA I. DIOKNO-PASCUAL, REP. LORETTA ANN ROSALES (Party-List Akbayan), REP. JOSE VIRGILIO BAUTISTA (Party-List Sanlakas), REP. RENATO MAGTUBO (Party-List Partido Manggagawa), Petitioners, v. ENERGY REGULATORY COMMISSION, MANILA ELECTRIC COMPANY (MERALCO), Respondents.

CONCURRING AND DISSENTING OPINION

AUSTRIA-MARTINEZ, J.:

I concur with the majority opinion insofar as it rules that the petition should be granted, as the provisional order of November 27, 2003 was issued by the ERC with grave abuse of discretion. I do not agree, however, with its position that the ERC has the inherent power to provisionally grant an application for rate adjustment.

First Issue

Whether or not the ERC has the legal authority to grant provisional rate adjustments under the EPIRA

The ERCs authority to fix rates is a non-issue in this case. The power to fix temporary rates, however, is.

The thrust of the majority opinion is that the provisional ratemaking power of the ERC is necessarily implied from its power to fix permanent rates, hence the absence of an express provision in the EPIRA does not negate the existence of such power.

With all due respect, however, I believe that whatever provisional ratemaking power the ERC possess must emanate from the law that created it, the EPIRA.

The Energy Regulatory Commission (ERC), the Public Service Commission (PSC), the Energy Regulatory Board (ERB), and all other regulatory bodies for that matter, are mere creatures of the legislature. As such, the nature and extent of their powers are derived from the respective statutes that created them. Thus, it is stated:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Being creatures of the legislature, administrative agencies have no general, inherent or common-law powers, but only those powers conferred upon them by the legislature. Apart from the instances in which an administrative agency is created and empowered by a provision of a state constitution or an executive order, the source of powers of administrative agencies lies in statutes, and administrative agencies must find within statutes warrant for the exercise of any authority which they claim. Absent a constitutional provision, administrative agencies derive their authority from (1) the enabling legislation that mandates the particular agencys function and grants powers, and (2) from general laws affecting administrative bodies.1 (Emphasis supplied)ςrαlαωlιbrαrÿ

In the same wise, it is said that:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Public Service Commissions are administrative agencies generally empowered to regulate public utilities, which are business organizations which regularly supply the public with some commodity or service, such as electricity, water, gas, and telephone service. Public Service Commissions have no inherent power; all of their power and jurisdiction must be found within the statutory or constitutional provisions creating them. The essence of the power of Public Service Commissions is regulatory. Among the typical powers are setting rates, promulgating regulations, collecting information, and processing complaints.2 (Emphasis supplied)ςrαlαωlιbrαrÿ

The ERC has no life except as life is given by the Legislature.3 ςrνll

The EPIRA lays down the multifaceted role of the ERC in the regulation of the electric power industry. Particularly, Section 43 thereof, which exhaustively enumerates the functions of the ERC, is explicit in setting forth the various key functions of the ERC in relation to its administrative, regulatory and quasi-judicial responsibilities. It is the legislatures unequivocal expression of its intent to limit the powers of the ERC to those specified in said section. With regard to its ratemaking power, the last paragraph of Section 43 demonstrates the legislatures intent for the ERC to exercise its delegated power of setting just and reasonable rates, provided it conforms with the procedural mandates of publication, notice and hearing. There is no proviso, or even a whisper, in Section 43 or in any other provisions of the EPIRA which indicates the legislatures intent to endow the ERC with authority to issue provisional orders for rate adjustments.

Expressio unius est exclusio alterius, the express inclusion of one implies the exclusion of all others.4 ςrνll

The rule of expressio unius est exclusio alterius is formulated in a number of ways. One variation of the rule is the principle that what is expressed puts an end to that which is implied. Expressium facit cessare tacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.

.. .

The rule of expressio unius est exclusio alterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon ones own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.5 (Emphasis supplied)ςrαlαωlιbrαrÿ

In South Central Bell Telephone Company v. Tennessee Public Service Commission,6 the Tennessee appellate court used the same principle of statutory construction when it reversed the Tennessee Public Service Commissions order requiring the plaintiff telephone company to refund to its customers certain sums collected by them pursuant to the commissions prior order granting a temporary increase of rates conditioned on a refund. The Tennessee court ruled:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Upon a study of the applicable statutes, especially TCA 65-5-203, this Court concludes that the Legislature never intended to extend retroactive rate-making power (ordering refunds) beyond that expressly

stated in 65-5-203. This is supported by the maxim of Inclusio Unius est Exclusio Alterius. The express inclusion of one (person or thing) (implies) the exclusion of all others. The cited statute provides for a narrowly circumscribed power to grant tentative rates under bond for a limited time under emergency circumstances which were not found by the Commission and are not shown in this case. It must therefore be presumed that:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

(1) the Legislature considered that the Commission had no general or inherent power to set tentative rates subject to refund, else the special grant of power would have been unnecessary;

(2) if the Legislature had intended that the Commission have broader powers than those conferred, the statute would have been composed in broader terms. (Emphasis supplied)

Clearly, therefore, the authority to issue provisional orders of rate adjustments cannot be considered as one of the powers that the legislature intended the ERC to possess, for if it were intention of the lawmakers, there would not have been a black hole in the law, so to speak.

Corollary to this is the doctrine of casus omisus pro omisso habendus est, or that a person, object or thing omitted from an enumeration must be held to have been omitted intentionally.7 Simply put, the absence of such statutory power shows that the legislature undeniably intended the withdrawal of such authority from the ERC. To declare otherwise would be supplanting what the legislature intentionally omitted. The Court should not tread the perilous waters of judicial legislation and arrogate unto itself the duty of supplying what has been omitted by the legislature.8 ςrνll

The ERCs predecessors -- the Public Service Commission (PSC), the Board of Energy (BOE) and the Energy Regulatory Board (ERB), and the laws that created them -- C.A. No. 146, P.D. No. 1206 and E.O. No. 172, explicitly provided for the regulatory bodys provisional ratemaking authority.

Thus, Section 16 (c) of C.A. No. 146 expressly vested the PSC with the power to fix rates and issue provisional orders. When, by virtue of P.D. No. 1206, the BOE replaced the PSC and the Oil Industry Commission (OIC) in the regulation of the power and energy industry, it was likewise expressly given the same provisional authority. The last paragraph of Section 9 of P.D. No. 1206, provided that Sections 11 and 12 of R.A. No. 6173,9 as amended by P.D. No. 1128, shall govern the proceedings before the board, including the authority to grant provisional relief.10 While Section 11 expressly provided for the transfer of powers of the abolished agencies to the Board of Energy,11 yet the legislature in Section 12 still provided for a specific authority to grant provisional relief items.

In like manner, when the ERB replaced the BOE, the authority to grant provisional relief by the ERB was again specifically stated in Section 8 of E.O. No. 172, notwithstanding the fact that E.O. No. 172 also expressly provided for the transfer of powers of the BOE to the ERB.12 ςrνll

On the other hand, the EPIRA is devoid of any indication, express or otherwise, of the legislatures intent to endow the ERC with authority to issue provisional orders for rate adjustments. We cannot simply ignore this omission and assume that such provisional ratemaking power is inherent in the ERCs functions. The power to fix prices and make rates cannot be conferred by implication, but must be conferred under statutory or constitutional language that is free from doubt, and admits of no other reasonable construction.13 ςrνll

Neither could it be implied that Section 44 of the EPIRA, which provides for the transfer of powers of the former ERB to the ERC, includes the power to issue provisional orders. Said section is not enough to provide sufficient basis by way of implication that the ERC has a provisional rate-making power. As clearly provided by Section 44 itself, the powers and functions of the ERB that are transferred to the ERC are only those that conform with the provisions of the EPIRA. Considering that the EPIRA does not contain the authority to grant provisional rates, it follows then that to insist that the ERC has such authority, would be to grant ERC an authority that would be inconsistent with the EPIRA. As clearly discussed earlier, administrative agencies, like the ERC, have no general or inherent powers except those expressly granted to them by law.crvll

Moreover, under Section 2 (f) of the EPIRA, one of the declared policies of the law is to protect the public interest as it is affected by the rates and services of electric and other providers of electric power. Another significant provision of the EPIRA is Section 75, which circumscribes a statutory interpretation in favor of people empowerment and participation.

In light of the rule that statutes in the derogation of common or general rights are strictly construed and rigidly confined to cases clearly within their scope and purpose,14 an interpretation to the effect that the powers transferred to the ERC include the power to issue provisional orders inevitably defeats the policy of the law to protect and empower the public. Any grant of authority to the ERC to issue provisional orders of rate adjustments is a limitation on the publics right to due process and in derogation of the ERCs general responsibility of protecting the public interest regarding utility rates. Hence, it must be strictly construed against the grant of such authority. This is bolstered by the fact that the statutes governing ERCs forebears the PSC, the BOE and the ERB all contain a specific provision on the authority of the regulatory body to grant provisional rates, in addition to the transfer of powers to the successor while the EPIRA does not contain a provision authorizing the ERC to grant provisional rates.cralawlibrary

In stark contrast, there is nothing in EPIRA that confers upon the ERC any authority to grant provisional rate adjustments although it provides for the transfer of powers of the ERB to the ERC.

If the provisional ratemaking authority of the ERC is so crucial for the accomplishment of the goals of utility regulation and supervision, then the question that begs to be answered is: why did the legislature omit such allegedly indispensable provisional ratemaking authority? The legislature could have easily crafted the EPIRA to include that authority, but it did not do so; and neither did they include any other provision or section to express the granting of said authority, as were conspicuously done in C.A. No. 146, P.D. No. 1206 and E.O. No. 172.

In enacting a statute, the legislature is presumed to have been aware of, and have taken into account, prior laws on the subject of legislation.15 This being so, the 11th Congress is presumed to be aware of the existence of the expressed provisional ratemaking power as well as the specific enumeration of other powers of the regulatory bodies under the previous laws. The marked difference in which the legislature treated the rate-making authority of the PSC under C.A. No. 146, the BOE under P.D. No. 1206, the ERB under E.O. No. 172, on the one hand and the ERC under the EPIRA, on the other, in that the latter law does not expressly provide for such authority in favor of the ERC, demonstrates with absolute certainty that, indeed, the legislature did not intend to give such power, nor did it intend that it should be automatically covered by the powers that are transferred from the ERB to the ERC.

MERALCOs illation on the cases of Citizens Alliance for Consumer Protection v. ERB, et al., Valmonte v. ERB, KMU Labor Center v. ERB, et al., Maceda v. ERB, et al., and Lozano v. ERB, et al., where the Court upheld the power of the ERB to provisionally grant rate adjustments, is misplaced. In all these cases, the Court recognized the power of the ERC to grant provisional relief because it is so expressly provided in Section 8 of E.O. No. 172. Said cases are not applicable to the case at bar for the simple reason that the decisions therein were rendered by the Court at the time when the applicable laws had expressly authorized the ERB to grant provisional rate adjustments. At pain of being repetitious, there is nothing in the EPIRA that bestows upon the ERC any express statutory authority to grant provisional rate adjustments.cralawlibrary

Moreover, the EPIRA created a new regulatory body, the ERC, with an entirely new set of powers and functions necessary to accomplish the regulatory scheme of the law. The EPIRA was enacted by the legislature as a framework for the restructuring of the electric power industry.16 It divided the electric industry into four sectors, mainly: generation, transmission, distribution and supply.17 Hence, the EPIRA had the effect of revising the whole statutory system on the electric power industry and substituted a new one in its place. Consequently, except for those that may not be inconsistent with the EPIRA, the previous laws had been considered repealed, and the EPIRA, from then on governs the industry.

The discourse of Agpalo in his book, Statutory Construction, is noteworthy, viz.:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

The legislative intent to repeal a prior law is also shown by the enactment of a statute revising or codifiying the former laws on the whole subject matter. The revised statute or code is in effect a legislative declaration that whatever is embraced in the new statute shall prevail and whatever is excluded therefrom shall be discarded. The revised statute or code, as disclosed by its framework and substance, must be intended to cover the whole subject to be a complete and perfect system in itself in order that the prior statutes or parts thereof which are not repeated in the new statute will be deemed impliedly repealed. Thus, where a statute is revised, or a series of legislative acts on the same subject are revised and consolidated into one, covering the entire field of subject matter, all parts and provisions of the former act or acts that are omitted from the revised act are deemed repealed. The fact that the revised statute or code is all-comprehensive and covers the whole field of a particular subject matter, specially if it provides that all acts inconsistent therewith are repealed, reveals the intent to establish a uniform system of rules and to nullify existing laws on the subject.

It has also been held that where a new statute is intended to furnish the exclusive rule on a certain subject, it repeals by implication the old law on the same subject, or where a new statute covers the whole subject matter of an old law and adds new provisions and make changes, and where such law, whether it be in the form of an amendment or otherwise, is evidently intended to be a revision of the old act, it repeals the old act

by implication. The complete enactment on a subject matter, intended as a substitute for the old statute, may be regarded as the expression of the whole law thereon, and operates as a repeal of the prior statute, although the two statutes are not repugnant.18 (Emphasis supplied)ςrαlαωlιbrαrÿ

In People v. Almuete,19 aptly cited by petitioner FDC, the Court ruled that a subsequent statute, revising the whole subject matter of a former statute, and evidently intended as a substitute for it, operates to repeal the former statute.20 The revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded.21 ςrνll

Such doctrine was adopted by the Court in Alunan III v. Asuncion ,22 when it ruled that R.A. No. 6975, creating the Philippine National Police (PNP) superseded R.A. No. 5750, the law governing CIS agents. It was held therein:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Urged by the Constitutional mandate for the establishment and maintenance of one police force, R.A. No. 6975 was promulgated creating the Philippine National Police. The new police force absorbed the members of the former National Police Commission, Philippine Constabulary and Integrated National Police, all three of which were accordingly abolished.

R.A. No. 6975, therefore, had the effect of revising the whole police force system and substituting a new unified one in its place. This, alone, proves that R.A. No. 5750 has already been repealed because a subsequent statute revising the whole subject matter of a former statute, and evidently intended as a substitute for it, operates to repeal the earlier statute. The revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom is discarded.23 (Emphasis supplied)ςrαlαωlιbrαrÿ

Even Section 80 (Applicability and Repealing Clause) of the EPIRA do not indicate that the provisions of C.A. No. 146 and E.O. No. 172 continue to have full force and effect insofar as they are not inconsistent with the EPIRA.

As provided by Section 80 itself, the provisions of the pertinent laws that are not inconsistent with the EPIRA shall continue to have full force and effect. It does not necessarily follow that the power to grant provisional rate adjustments is included in such catch-all proviso. These applicability provisions could not have referred to the particular provisions giving the PSC and the ERB the statutory authority to grant provisional rate adjustments considering that the lawmakers deliberately deleted said provision in the enactment of the EPIRA. There exists no valid justification why the legislature should make a general reference to what is not inconsistent with EPIRA when the legislature could have provided for the authority to grant provisional rates as what has been done in previous laws creating the predecessors of ERC.cralawlibrary

There is no doubt as to the prerogative of the legislature to delegate and confer on administrative bodies particular quasi-judicial powers, as an incident to the performance of regulatory functions. But in so doing, the legislature must state its intention in express terms that is free from ambiguity and leaves no room for interpretation.

P.D. No. 1206, as amended, and E.O. No. 172 likewise contain applicability clauses similar to Section 80 of the EPIRA. But these laws, unlike the EPIRA also expressly provided for the authority of the regulatory bodies to grant provisional rate adjustments. The legislature knew that the ERCs predecessors all possess provisional ratemaking powers. The existence of these provisions is certainly not lost on the framers of the EPIRA. The fact that P.D. No. 1206 and E.O. No. 172 both expressly granted the BOE and the ERB, respectively, a provisional ratemaking authority, yet not reproduced in the EPIRA is an evident manifestation of the intention of the legislature to limit the ERCs powers to those enumerated in Section 43 of the EPIRA to the exclusion of all others. To construe Section 80 as including such provisional authority would be extending an authority beyond the ERCs powers, which the Court does not have the liberty to do as it is evidently not the legislatures intent.

If the EPIRA is clear in its terms in clothing the ERC with specific administrative, regulatory and quasi-judicial functions, then certainly a conferment of its provisional ratemaking power can not be implied from a mere applicability clause stated in general terms.

Hence, absent an express provision in the EPIRA stating that the ERC has the authority to grant provisional rate adjustments, I believe that the Court cannot uphold the questioned grant of provisional rate adjustment by the ERC. A legislative lacuna cannot be filled by judicial fiat.24 ςrνll

Even if we assume that the ERC, indeed, possesses such provisional ratemaking authority, how provisional is provisional? Attention must be brought to the case of Republic v. Manila Electric Company . 25 In this case, MERALCOs application for the revision of rate schedules was provisionally granted by the then ERB on January 28, 1994. On February 16, 1998, or more than four (4) years after the provisional grant of the revised rate schedules, the ERB rendered its decision modifying its order of January 28, 1994. The decision of the ERC was brought to the Court of Appeals, and eventually to this Court, which affirmed the ERBs decision on November 15, 2002. By then, eight years had already elapsed from the time the rate schedule was provisionally granted by the ERB. It need not be belabored that MERALCO is now facing a tight situation wherein it cannot fully implement the order of the Court to refund to the public the billions of pesos it has already collected under such provisional order.

Second Issue

WHETHER THE GRANT BY THE ERC OF THE PROVISIONAL RATE ADJUSTMENT WAS COMMITTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

Even if we assume for the sake of argument, that the ERC has such legal authority, nevertheless, I concur with the position of the majority that the issuance by the ERC of the questioned Order dated November 27, 2003 is tainted with grave abuse of discretion such that it should be annulled and set aside just the same. Said Order was issued by the ERC in disregard of the due process requirements laid down in the second paragraph, Section 4 (e), Rule 3, of the EPIRAs Implementing Rules and Regulations (IRR).

Since the fixing of rates is essentially legislative in nature, due process of law does not require that interested parties be given notice or an opportunity for a hearing, unless it is expressly so provided by law.26 But where the fixing of rates is delegated to officers or commissions, the persons or entities affected must be afforded procedural due process appropriate to the nature of the case and consistent with statutory requirements, including, ordinarily, a notice which is adequate and timely under the circumstances, and a hearing which is fair and open, and which comports with due process safeguards.27 ςrνll

Section 4 (e), Rule 3 of the IRR provides for the procedure how the ERC may grant provisionally rate adjustment or deny the relief prayed for not later then seventy-five calendar days from the filing of the application, based on the application and the supporting documents attached thereto and such comments or pleadings the consumers or the LGU concerned may have filed within thirty calendar days from receipt of a copy of the application or petition or from the publication thereof as the case may be.cralawlibrary

Section 4 (e), Rule 3 of the IRR plainly states that: (1) the ERC has the discretion to provisionally deny or grant the relief prayed for; (2) in assessing the merits of an application for provisional rate adjustment, the ERC is required to consider the application and its supporting documents and such comments or pleadings the consumers or the LGU concerned may have filed; (3) the comments or pleadings must be filed by the interested parties or the LGU concerned within thirty calendar days from receipt of a copy of the application or petition, or from publication of the application or petition, as the case may be;and (4) the ERC has seventy-five days from the filing of the application within which to decide the provisional relief prayed for.

When a statute is clear, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed.28 The rule precludes the ERC from resolving a prayer for a provisional rate adjustment in any other manner than that provided in the implementing rules. This is not an issue of discretion but of duty.

The ERCs discussion in the assailed Order dated November 27, 2003, shows that it solely relied on respondent MERALCOs claims and failed to take into account the oppositors respective contentions. In fact, as admitted by the ERC during the oral arguments, it did not wait for the comments of the oppositors since it was of the impression that it had the authority to act on MERALCOs application ex parte, and there was already a prima facieshowing that MERALCO was entitled to the relief prayed for.29 The ERC had seventy-five days from October 10, 2003, or until December 24, 2003, within which to resolve the prayer for provisional relief. It had more than ample time to resolve FDCs motion for production of documents, and await the parties respective comments on MERALCOs application. The undue haste in which it granted MERALCOs prayer for provisional relief does not speak well of the procedure followed by the ERC. The ERCs failure to accord the oppositors a reasonable opportunity to obtain relevant evidence and present their oppositions or comments on the application, clearly denied them due process of law.30 ςrνll

The requirement of due process is not some favor or grace that the ERC may dole out on a bout of whim or on occasion of charity. Rather, it is a statutory right to which the consuming public is entitled.

The ERC should have ruled on petitioner FDCs motion for production of documents, and if it found that the documents to be produced were not material for the filing of an opposition, then ERC should have declared it to be so categorically. The parties should not have been left in the dark and determine for themselves by inference whether the contentions have been disposed of or not. Considering further the time constraint in the filing of the comments and pleadings, a prompt disposition of the motion for production of documents would have given FDC enough period within which to file its comment or opposition for the ERC to consider in resolving MERALCOs application for a provisional rate adjustment.

It is conceded that the ERC is confronted with the difficult task of balancing the interest of the affected parties. On one hand, it has to promote and encourage market development, and maintain MERALCOs financial integrity, and on the other, it also has to protect public interests. As in the procedure provided by the second paragraph of Rule 3, Section 4 (e) of the IRR, the filing of comments and oppositions to the application are deemed sufficient. In no event is due process to be sacrificed.31 ςrνll

Moreover, respondent ERC, through its counsel, admitted during the oral arguments that MERALCO failed to fully comply with the publication requirement of Rule 3, Section 4 (e) of the IRR.32 It only caused the publication of a mere notice that an application has been filed, and not of the application itself, contrary to the express provisions of said rule.

The requirement of publication in applications for rate adjustments is not without reason or purpose. It is ancillary to the due process requirement of notice and hearing. Its purpose is not merely to inform the consumers that an application for rate adjustment has been filed by the public utility. It is to adequately inform them that an application has been made for the adjustment of the rates being implemented by the public utility in order to afford them the opportunity to be heard and submit their stand as to the propriety and reasonableness of the rates within the period allowed by the Rule. Without the publication of the application, the consumers are left to second-guess the substance and merits of the application.

The publication by respondent MERALCO of a notice that an application for the approval of revised rate schedules and provisional authority will be filed by it falls short of the requirement. The Rule requires the publication of the application or petition for rate adjustment itself. The publication made by MERALCO, obviously, does not sufficiently inform the public of the nature and substance of the application, as intended by the law. If the application or petition were too long and expensive to be published, then, as suggested by the OSG, the material allegations or reasons for the proposed increase and the proposed effective date of increase would have sufficed which MERALCO likewise failed to do.

The ruling in the case of Beautifont, Inc. v. Court of Appeals,33 cited by the ERC is not applicable in the case at bar. In said case, the questioned provision of R.A. No. 5455 reads:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

SEC. 7. Publication and Posting of Notices. Immediately after the filing of any application under this Act, the Secretary of the Board of Investments shall publish the same at the expense of the applicant once a week for three consecutive weeks in the Official Gazette and in one of the newspapers of general circulation in the province or city where the applicant has its principal office and post copies of said application in conspicuous places, in the office of the Board of Investments or in the building were said office is located, setting forth in such copies the name of the applicant, the business in which it is engaged or proposes to engage or invest, and such other data and information as may be required by the Board of Investments. No approval or certificate shall be valid without the publication and posting of notices as herein provided.

In interpreting this provision, the Court ruled that what must be published and posted by the applicant is an abstract or summary of the application and not the application itself. The Court concluded that other parts of the provision shows that it is the notice of application that is meant to be published and posted, and in fact, the provision itself prescribes the matters to be published, i.e., the name of the applicant, the business in which it is engaged or proposes to engage or invest, and such other data and information as may be required by the Board of Investments. There would be no need to itemize these few particulars if it were the application itself that was meant to be published and posted,34 the Court stressed.

In contrast, there is no ambiguity in the first paragraph of Rule 3, Section 4 (e) of the EPIRAs IRR. It clearly states that: (A) ny application or petition for rate adjustment or for any relief affecting the consumers must be accompanied with an acknowledgment of receipt of a copy thereof together with the certification of the notice of publication thereof in a newspaper of general circulation in the same locality. What the Rule requires is a certification of the notice of publication of the application or petition and not a certification of the publication of notice, as employed in the Beautifont case. The term thereof as used in the phrase notice of publication thereof refers to the application or petition itself for rate adjustment or for any relief, and unlike in the Beautifontcase, there is nothing in the provision that shows that publication is restricted to a notice that an application has been filed. If the Court were to adopt the ERCs conclusion, then the purpose of the IRR to adequately inform the consumers would be defeated.

Having failed to conform to the IRR on the publication requirement, the proceedings before the ERC is ultra vires. Hence, for this reason, I agree with the majority that the provisional order of rate adjustment is null and void.

Endnotes:


1 Constantino, Hinck, McCarthy and Stull, J.D.s, Administrative Law, 2 Am. Jur. 2d Administrative Law 55.

2 Topliff, Mary L., J.D., Public Service Commissions Implied Authority to Order Refund of Public Utility Revenues, 41 A.L.R. 5th 783.

3 New England Telephone and Telegraph Company v. Public Utilities Commission et al., 362 A.2d 741 (1976).

4 Commissioner of Internal Revenue v. Michael J. Lhuillier Pawnshop, Inc., G.R. No. 150947, July 15, 2003; South Central Bell Tel. Co. v. Tennessee Public Service Com. (1984, Tenn App) 675 SW2d 718.

5 Malinias v. Commission on Elections, G.R. No. 146943, October 4, 2002, 390 SCRA 480, 491.

6 675 S.W.2d 718 (1984).

8 Agpalo, Ruben E., Statutory Construction (1995 edition), p. 111, citing People v. Garcia, 85 Phil. 657, 662, 663 (1950); Morales v. Subido, 26 SCRA 150 (1968).

9 The Oil Industry Commission Act enacted on April 25, 1977.

10 Id., Section 9, last paragraph.

11 Section 11, P.D. No. 1206.

12 Section 4, E.O. No. 172.

13 Lemming and Dietz, J.D.s, 64 Am. Jur. 2d Public Utilities 167, citing City Public Service Bd. of San Antonio v. Public Utility Commission of Texas, 9 S.W. 3d 868 (Tex. App. Austin 2000).

14 Republic v. Sandiganbayan, G.R. No. 119292, July 31, 1998, 293 SCRA 440, 455-456.

15 Miller v. Mardo and Gonzales, G.R. No. L-15138, July 31, 1961, 112 Phil. 792, 803, citing Corominas, et al. v. Labor Standards Commission, et al, 112 Phil. 551.

16 Rep. Act No. 9136, Section 3.

17 Id., Section 5.

18 Third edition (1995), pp. 318-319.

19 G.R. No. L-26551, February 27, 1976, 69 SCRA 410, 414.

20 Id., citing 82 C.J.S. 499.

21 Id., citing 82 C.J.S. 500.

22 323 SCRA 623, 627-628 (2000).

23 Id., citing People v. Almuete.

25 G.R. No. 141314, November 15, 2002, 391 SCRA 700.

26 Ibid.

27 16D C.J.S. Constitutional Law 1348.

29 TSN, January 27, 2004, p. 308.

30 Utility Consumer Action Group v. Public Service Commission, 583 P.2d 605 (1978).

31 Friends of the Earth v. Public Service Commission, 254 N.W.2d 299, 78 Wis.2d 388, 21 P.U.R.4th 201 (1977).

32 TSN, January 27, 2004, p. 300.

33 G.R. No. L-50141 : January 29, 1988, 157 SCRA 491.

34 Ibid.

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