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HE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.QUE PO LAY, defendant-appellant.

Prudencio de Guzman for appellant.

First Assistant Solicitor General Ruperto Kapunan,Jr., and Solicitor Lauro G. Marquez for appellee.

MONTEMAYOR, J.:

Que Po Lay is appealing from the decision of theCourt of First Instance of Manila, finding him guiltyof violating Central Bank Circular No. 20 inconnection with section 34 of Republic Act No. 265,and sentencing him to suffer six monthsimprisonment, to pay a fine of P1,000 with subsidiaryimprisonment in case of insolvency, and to pay thecosts.

The charge was that the appellant who was inpossession of foreign exchange consisting of U.S.dollars, U.S. checks and U.S. money ordersamounting to about $7,000 failed to sell the same tothe Central Bank through its agents within one dayfollowing the receipt of such foreign exchange asrequired by Circular No. 20. the appeal is based onthe claim that said circular No. 20 was not publishedin the Official Gazette prior to the act or omissionimputed to the appellant, and that consequently, said

circular had no force and effect. It is contended thatCommonwealth Act. No., 638 and Act 2930 bothrequire said circular to be published in the OfficialGazette, it being an order or notice of generalapplicability. The Solicitor General answering thiscontention says that Commonwealth Act. No. 638and 2930 do not require the publication in theOfficial Gazette of said circular issued for theimplementation of a law in order to have force andeffect.

We agree with the Solicitor General that the laws inquestion do not require the publication of thecirculars, regulations and notices therein mentionedin order to become binding and effective. All thatsaid two laws provide is that laws, resolutions,decisions of the Supreme Court and Court ofAppeals, notices and documents required by law tobe of no force and effect. In other words, said twoActs merely enumerate and make a list of whatshould be published in the Official Gazette,presumably, for the guidance of the different

branches of the Government issuing same, and of theBureau of Printing.

However, section 11 of the Revised AdministrativeCode provides that statutes passed by Congress shall,in the absence of special provision, take effect at thebeginning of the fifteenth day after the completion ofthe publication of the statute in the Official Gazette.

Article 2 of the new Civil Code (Republic Act No.386) equally provides that laws shall take effect afterfifteen days following the completion of theirpublication in the Official Gazette, unless it isotherwise provided. It is true that Circular No. 20 ofthe Central Bank is not a statute or law but beingissued for the implementation of the law authorizingits issuance, it has the force and effect of lawaccording to settled jurisprudence. (See U.S. vs.Tupasi Molina, 29 Phil., 119 and authorities citedtherein.) Moreover, as a rule, circulars and

regulations especially like the Circular No. 20 of theCentral Bank in question which prescribes a penaltyfor its violation should be published before becomingeffective, this, on the general principle and theorythat before the public is bound by its contents,especially its penal provisions, a law, regulation orcircular must first be published and the peopleofficially and specifically informed of said contentsand its penalties.

Our Old Civil code, ( Spanish Civil Code of 1889)

has a similar provision about the effectivity of laws,(Article 1 thereof), namely, that laws shall be bindingtwenty days after their promulgation, and that theirpromulgation shall be understood as made on the dayof the termination of the publication of the laws inthe Gazette. Manresa, commenting on this article isof the opinion that the word "laws" includeregulations and circulars issued in accordance withthe same. He says:

El Tribunal Supremo, ha interpretado el

articulo 1. del codigo Civil en Sentencia de 22de Junio de 1910, en el sentido de que bajo ladenominacion generica de leyes, secomprenden tambien losReglamentos, Realesdecretos, Instrucciones, Circulares y Realesordenes dictadas de conformidad con lasmismas por el Gobierno en uso de supotestad. Tambien el poder ejecutivo lo havenido entendiendo asi, como lo prueba elhecho de que muchas de sus disposicionescontienen la advertencia de que empiezan a

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regir el mismo dia de su publicacion en laGaceta, advertencia que seria perfectamenteinutil si no fuera de aplicacion al caso elarticulo 1.o del Codigo Civil. (Manresa,Codigo Civil Espa ol, Vol. I. p. 52 ).

In the present case, although circular No. 20 of theCentral Bank was issued in the year 1949, it was not

published until November 1951, that is, about 3months after appellant's conviction of its violation. Itis clear that said circular, particularly its penalprovision, did not have any legal effect and bound noone until its publication in the Official Gazzette orafter November 1951. In other words, appellant couldnot be held liable for its violation, for it was notbinding at the time he was found to have failed to sellthe foreign exchange in his possession thereof.

But the Solicitor General also contends that this

question of non-publication of the Circular is beingraised for the first time on appeal in this Court, whichcannot be done by appellant. Ordinarily, one mayraise on appeal any question of law or fact that hasbeen raised in the court below and which is withinthe issues made by the parties in their pleadings.(Section 19, Rule 48 of the Rules of Court). But thequestion of non-publication is fundamental anddecisive. If as a matter of fact Circular No. 20 had notbeen published as required by law before itsviolation, then in the eyes of the law there was no

such circular to be violated and consequentlyappellant committed no violation of the circular orcommitted any offense, and the trial court may besaid to have had no jurisdiction. This question maybe raised at any stage of the proceeding whether ornot raised in the court below.

In view of the foregoing, we reverse the decisionappealed from and acquit the appellant, with costs deoficio.