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National Electrification Administration vs. Gonzaga
*
G.R. No. 158761. December 4, 2007.

NATIONAL ELECTRIFICATION ADMINISTRATION, petitioner,

vs. VICTORIANO B. GONZAGA, respondent.

Administrative Law; National Electrification Administration (NEA);

Presidential Decree (PD) No. 269; Judicial Review; Where the issue centers
on the validity of National Electrification Administration’s (NEA’s) rules in
light of the publication requirement of the Administrative Code and New
Civil Code, the same is cognizable by regular courts.—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 respondent’s disqualification and the question on the
ECEC’s validity are within the inherent jurisdiction of regular courts to
review. Petitioner’s reliance on NEA is misplaced. The subject in that case
was the electricity rates charged by a cooperative, a matter which is clearly
within NEA’s jurisdiction. The issue in the present petition, however,
centers on the validity of NEA’s rules in light of the publication
requirements of the Administrative Code and New Civil Code. The present
issue is cognizable by regular courts.

_______________

* SECOND DIVISION.

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Same; Same; Effectivity of Laws; 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.—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.

Same; Same; Same; Electric Cooperative Election Code (ECEC);

Since the Electric Cooperative Election Code (ECEC) applies to all electric
cooperatives in the country, and it is not a mere internal memorandum,
interpretative regulation, or instruction to subordinates, then it should
comply with the requirements of the Civil Code and the Administrative Code
of 1987 relative to the publication requirement.—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. Petitioner’s failure to do so only
implies that the ECEC was not published accordingly, a fact supported by
the certification from the National Printing Office.

Actions; Declaratory Relief; Prohibition; Mandamus; A requirement

under Rule 63 is that the petition for declaratory relief must be filed “before
any breach or violation” the questioned docu-

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ment may cause; It is familiar and fundamental doctrine that a writ of

prohibition or mandamus may issue when a board unlawfully excludes
another from enjoyment of a right or office to which such other is entitled.—
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 respondent—the 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.” Considering that the screening
committee of the board has excluded respondent from being elected as
board member of ZAMSURECO because of the latter’s improper
implementation of the code, a petition for mandamus and prohibition is the
proper recourse.

PETITION for review on certiorari of the decision and resolution of

the Court of Appeals.
The facts are stated in the opinion of the Court.
The Government Corporate Counsel for petitioner.
Georgina L. Ariosa-Lopez for private respondent.
Felizardo V. Cataluna, Jr. for ZAMSURECO II.

VELASCO, JR., J.:

1
For review under Rule
2
45 are the March 6, 2003 Decision and June
10, 2003 Resolution of the Court of Appeals (CA) in CA-G.R. SP
No. 68769,
3
which dismissed petitioner’s appeal of the July 23, 2001
Order of the Pagadian City Regional Trial

_______________

1 Rollo, pp. 34-39. Penned by Associate Justice Jose L. Sabio, Jr. and concurred in
by Associate Justices Portia Aliño-Hormachuelos and Amelita G. Tolentino.
2 Id., at p. 40.
3 Id., at pp. 41-49.

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National Electrification Administration vs. Gonzaga

Court (RTC), Branch 21 in Civil Case No. 4282-2K, and denied

petitioner’s Motion for Reconsideration, respectively.
On November 13, 2000, respondent Victoriano B. Gonzaga filed
his Certificate of Candidacy for membership in the Board of
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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 the Sangguniang 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.
ZAMSURECO’s by-laws, 4
however, do not provide for such ground
for disqualification.
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 ZAMSURECO’s officials to
refrain from conducting the election for directorship set on
December 2, 2000.

_______________

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.

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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
5
period shall be deemed a
waiver of his right to protest.”

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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 6
is at issue, and is
exactly what is being sought to be invalidated.
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 7
the ECEC was published in any newspaper of
general circulation.

_______________

5 Id., at pp. 43-44.

6 Id.
7 Id., at p. 41.

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National Electrification Administration vs. Gonzaga

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 8
alleged
that respondent failed to exhaust
9
administrative remedies.
In its July 23, 2001 Order, the RTC denied petitioner’s Motion to
Dismiss for being filed out of time. More importantly, it noted
NEA’s 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 nonexhaustion 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 NEA’s quasijudicial
functions. And the RTC noted that Secs. 51 to 58 refer to hearings,
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investigations, and procedures. On the other hand, the validity of the

ECEC, subject of the instant petition, was an exercise of NEA’s
quasi-legislative function or rulemaking 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 10
to
accept Gonzaga’s certificate of candidacy for director. The RTC
denied NEA’s motion for reconsideration.

_______________

8 Id., at pp. 21, 41-42.

9 Supra note 3.
10 Id., at pp. 42-44.

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National Electrification Administration vs. Gonzaga

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 petitioner’s 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 COURT’S NULLIFICATION OF THE ECEC

Issues Involving NEA’s Rule-Making Authority

Are Cognizable by Regular Courts

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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

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National Electrification Administration vs. Gonzaga

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 rulemaking power. It
cited NEA v. Mendoza, using the Court’s pronouncement that:

“[T]he power of judicial review of NEA’s 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
11
of the NEA and to modify or set aside such orders, rulings or decisions.”

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 respondent’s disqualification and the question
on the ECEC’s validity are within the inherent jurisdiction of regular
courts to review. Petitioner’s reliance on NEA is misplaced. The
subject in that case was the electricity rates charged by a

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cooperative, a matter which is clearly within NEA’s jurisdiction. The

issue in the present petition, however, centers on the validity of
NEA’s rules in light of the publication requirements of the Adminis-

_______________

11 No. L-62038, September 25, 1985, 138 SCRA 632, 637.

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trative 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.

397

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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 Court’s Resolution in Tañada 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 12
subordinates in the
performance of their duties. (Emphasis supplied.)”

The aforequoted
13
ruling was reiterated in Dadole14v. Commission on
Audit, De Jesus v. Commission on Audit, and Philippine 15
International Trading Corporation v. Commission on Audit.
In the case at bar, the ECEC was issued by petitioner pursuant to
its rule-making authority provided in PD 269, as amended,
particularly Sec. 24:

_______________

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.

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“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

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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. Petitioner’s 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

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National Electrification Administration vs. Gonzaga

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 respondent—the
screening committee of the cooperative on the erroneous
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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 16enjoyment of a right or
office to which such other is entitled x x x.”

_______________

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

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Considering that the screening committee of the board has excluded

respondent from being elected as board member of ZAMSURECO
because of the latter’s 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.

Quisumbing (Chairperson), Carpio, Carpio-Morales and

Tinga, JJ., concur.

Petition denied, judgment and resolution affirmed in toto.

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Notes.—The regulation and fixing of power rates to be charged

by electric cooperatives remain within the jurisdiction of the
National Electrification Administration, despite the enactment of
Executive Order No. 172, creating the Energy Regulatory Board.
(Province of Zamboanga Del Norte vs. Court of Appeals, 342 SCRA
549 [2000])
In exercising its power of supervision and control over electric
cooperatives, the NEA, through its Board of Administrators, can
issue orders, rules and regulations, and motu proprio or upon
petition of third parties, can conduct investigations in all matters
affecting electric cooperatives pursuant to Section 10 of PD 269, as
amended. (Silva vs. Mationg, 499 SCRA 724 [2006])

——o0o——

_______________

petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent. (Emphasis supplied.)

401

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