G.R. No. L-6791. March 29, 1954

Que Po Lay is appealing from the decision of the Court of First
Instance of Manila, finding him guilty of violating Central Bank
Circular No. 20 in connection with section 34 of Republic Act No. 265,
and sentencing him to suffer six months imprisonment, to pay a fine of
Pl,000 with subsidiary imprisonment in case of insolvency, and to pay
the costs.

The charge was that the appellant who was in possession of foreign
exchange consisting of U. S. dollars, U. S. checks and U. S. money
orders amounting to about $7,000 failed to sell the same to the Central
Bank through its agents within one day following the receipt of such
foreign exchange as required by Circular No. 20. The appeal is based on
the claim that said circular No. 20 was not published in the Official
Gazette prior to the act or omission imputed to the appellant, and that
consequently, said circular had no force and effect. It is contended
that Commonwealth Act No. 638 and Act 2930 both require said circular
to be published in the Official Gazette, it being an order or notice of
general applicability. The Solicitor General answering this contention
says that Commonwealth Act No. 638 and 2930 do not require the
publication in the Official Gazette of said circular issued for the
implementation of a law in order to have force and effect.

We agree with the Solicitor General that the laws in question do not
require the publication of the circulars, regulations or notices
therein mentioned in order to become binding and effective. All that
said two laws provide is that laws, resolutions, decisions of the
Supreme Court and Court of Appeals, notices and documents required by
law to be of no force and effect. In other words, said two Acts merely
enumerate and make a list of what should be published in the Official
Gazette, presumably, for the guidance of the different branches of the
Government issuing same, and of the Bureau of Printing.

However, section 11 of the Revised Administrative Code provides that
statutes passed by Congress shall, in the absence of special provision,
take effect at the beginning of the fifteenth day after the completion
of the publication of the statute in the Official Gazette. Article 2 of
the new Civil Code (Republic Act 386) equally provides that laws shall
take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided.
It is true that Circular No. 20 of the Central Bank is not a statute or
law but being issued for the implementation of the law authorizing its
issuance, it has the force and effect of law according to settled
jurisprudence. (See U. S. vs. Tupasi Molina, 29 Phil., 119
and authorities cited therein.) Moreover, as a rule, circulars and
regulations especially like the Circular No. 20 of the Central Bank in
question which prescribes a penalty for its violation should be
published before becoming effective, this, on the general principle and
theory that before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published
and the people officially and especifically informed of said contents
and its penalties.

Our old Civil Code (Spanish Civil Code of 1889) has a similar
provision about the effectivity of laws (Article V thereof), namely,
that laws shall be binding twenty days: after their promulgation, and
that their promulgation shall be understood as made on the day of the
termination of the publication of the laws in the Gazette. Manresa,
commenting on this article is of the opinion that the word “laws”
include regulations and circulars issued in accordance with the game.
He says:

“El Tribunal Supremo, ha interpretado el articulo
1.° del Codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido
de que bajo la denominacion generica de leyes, se comprenden tambien
los Reglamentos, Reales decretos, Instrucciones, Circulares
y Eeales ordenes flictadas de conformidad con las mismas por el
Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha venido
entendiendo asi, como lo prueba el hecho de que muchas de sus
disposiciones contienen la advertencia de que empiezan a regir el mismo
dia de su publicacion en la Gaceta, advertencia que seria perfectamente
inutii si no fuera de aplicaci6n al caso el articulo 1.° del Codigo
Civil.” (Manresa, Codigo Civil Espaiiol, Vol. I. p. 52)

In the present case, although Circular No. 20 of the; Central Bank
was issued in the year 1949, it was not published until November 1951,
that is, about 3 months after appellant’s conviction of its violation.
It is clear that said circular, particularly its penal provision, did
not have any legal effect and bound no one until its publication in the
Official Gazette or after November 1951. In other words, appellant
could not be held liable for its violation, for it was not binding at
the time he was found to have failed to sell the foreign exchange in
his possession within one day following his taking possession thereof.

But the Solicitor General also contends that this question of
non-publication of the Circular is being raised for the first time on
appeal in this Court, which cannot be done by appellant. Ordinarily,
one may raise on appeal any question of law or fact that has been
raised in the court below and which is within the issues made by the
parties in their pleadings. (Section 19, Rule 48 of the Rules of
Court). But the question of non-publication is fundamental and
decisive. If as a matter of fact Circular No. 20 had not been published
as required by law before its violation, then in the eyes of the law
there was no such circular to be violated and consequently appellant
committed no violation of the circular or committed any offense, and
the trial court may be said to have had no jurisdiction. This question
may be raised at any stage of the proceeding whether or not raised in
the court below.

In view of the foregoing, we reverse the decision appealed from and acquit the appellant, with costs de officio.

Paras C. J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.