PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC. (PASEI), PHILIPPINE ENTERTAINMENT EXPORTERS AND PROMOTERS ASSOCIATION (PEEPA), AND ASSOCIATION OF FILIPINO OVERSEAS WORKERS, IN…

May an Executive Order (EO)^[1] repeal a Letter of Instruction
(LOI)?^[2]

Ordinarily, since both LOI and
EO are presidential issuances, one may repeal or otherwise alter, modify
or amend the other, depending on which comes later. The case before us
appears compounded by the circumstance that the LOI in question was issued by former President
Ferdinand E. Marcos when he was clothed
with legislative power, while the EO
revoking the LOI was issued by
then President Corazon C. Aquino at a time when she had already lost her
law-making power after Congress
convened on 27 July 1987.^[3]
Although the EO issued by
President Aquino is undoubtedly not a law but a mere administrative issuance,
the parties here debate whether the LOI issued by President Marcos was a law or
simply an administrative rule in view of his dual position then as chief
executive and as legislative authority. Petitioners contend that the LOI is a law, hence, the EO cannot
countermand it, while public respondent claims that the LOI is only an
administrative issuance which may be superseded by an EO.

In determining whether a
presidential issuance under the 1973 Constitution may be considered a law, we
held in Garcia-Padilla v. Enrile^[4] that “[t]o form part of the law of the
land, the decree, order or LOI must be issued by the President in the exercise
of his extraordinary power of legislation as contemplated in Section 6 of the
1976 Amendments to the Constitution, whenever in his judgment there
exists a grave emergency or a threat or imminence thereof, or whenever the
interim Batasan Pambansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judgment requires
immediate action x x x x Verily,
not all LOI issued by the President should be dignified into forming part of
the law of the land.”

Article 25 of the Labor
Code of the Philippines (P.D. 442, as amended)^[5]
encourages private sector participation in
recruitment and placement of workers
under guidelines, rules and regulations to be issued by the Secretary of Labor. On 20 January 1982, President Marcos issued LOI 1190 withholding
the grant of new licenses to operate agencies for overseas
employment effective 1 January 1982 except as he may otherwise direct.^[6] On
19 March 1991, President Aquino issued EO 450 lifting the ban on new applications for licenses to operate recruitment agencies
subject to guidelines and
regulations the Secretary of Labor may promulgate.^[7] On 8 April 1991, respondent Secretary of Labor and Employment promulgated
Department Order (DO) No. 9, Series of 1991, entitled “Guidelines Implementing Executive Order No.
450.”

In this Petition for
Prohibition with Preliminary Injunction/Restraining Order filed 14 May
1991 petitioners Philippine Association
of Service Exporters, Inc. (PASEI), Philippine Entertainment Exporters
and Promoters Association (PEEPA), and
Association of Filipino Overseas
Workers, Inc. (AFOWI) pray that EO
450 be declared invalid for being contrary to LOI 1190.

On 16 May 1991, we issued
a temporary restraining order directing respondent Secretary of Labor and
Employment to cease and desist from enforcing EO 450 and DO 9 until further
orders.^[8] Thereafter, three motions for intervention
were filed,^[9] which the Court eventually allowed.^[10] Intervenors Joblink International, Inc.
(JOBLINK), Prospecs International Consultancy, Amader International, Inc.
(AMADER), IDG Trading & General Services, Philcango International
Recruitment Services, Pan Asia Manpower
Placement, International Manpower Services, Lyka International Manpower Services, Mainline Recruitment
International, Inc., World Matrix Unlimited Services Consultancy & Trading Co., Nuba International
Manpower Services Corporation, El Bary Manpower Services, Social Services Cont.
Int’l Co., Ltd., CDD Enterprises and Velrey Recruitment Company, all applicants
for new licenses, support the position of respondent that LOI 1190 was not a
law.

On the other hand, intervenor
RP-Japan Entertainment Promoters Association, Inc. (REPA), a non-stock,
non-profit domestic corporation composed of private employment agencies
authorized to recruit and deploy contract workers abroad, prays for the
modification of the restraining order we issued on 16 May 1991. We
addressed this incident on 4 July 1991 when we explained that our temporary
restraining order did not comprehend renewal of existing licenses since EO 450
covered only new applications.^[11] The other pending issue relating to the
lifting and modification of our Resolution of 16 May 1991 will accordingly be resolved in this decision.

First, on the challenge of intervenors AMADER, et al.,
that petitioners lack locus standi, we need only reiterate that the
“proper-party” requirement is satisfied if it is alleged that
petitioners and intervenors have sustained or are in danger of sustaining
immediate injury resulting from the acts or measures complained of.^[12] Petitioners PASEI and PEEPA allege that
their member agencies, which enjoy protection against competition by new
licensees pursuant to LOI 1190, will suffer irreparable injury with the repeal
of LOI 1190 by EO 450, considering further that there is no additional demand
for Filipino workers abroad. Hence, any
gain made by the new agencies on the supposed exclusive preserve of existing
agencies necessarily results in the latter’s loss.

But, as regards petitioner Association of Filipino Overseas
Workers, Inc. (AFOWI), we are not persuaded that the proliferation of recruitment
agencies will necessarily result in exposure of workers to exploitation by
unscrupulous recruiters, for the stiffer competition may even compel these
agencies to seek better terms and conditions
for overseas workers. Hence, the
petition being founded on mere speculation insofar as it affects AFOWI, the
same should be dismissed for want of a valid cause of action.

On the issue raised by intervenors that the petition can be
decided without touching on the validity of EO 450, we cannot find any other
way but to meet the question squarely since petitioners‘ relief depends on its validity.

The central thesis of the petition is that LOI 1190 was issued
pursuant to the law-making power of the President under Sec. 6 of the 1976
Amendments to the 1973 Constitution in response to “a grave emergency which cried for immediate and decisive
action,” hence, should be considered part of the law of the land. Petitioners argue that because of its
repealing or modifying effect on Art. 25 of the Labor Code, LOI 1190 could be
valid only if treated as a law, and
that a contrary interpretation that would render LOI 1190 invalid could not
have been intended by the then incumbent President.

As we view it, LOI 1190^[13]
simply imposes a presidential review of the authority of the Minister of Labor
and Employment to grant licenses, hence, directed to him alone. Since this is undoubtedly an administrative
action, LOI 1190 should properly be treated as an administrative issuance. Unlike Presidential Decrees which by usage
have gained acceptance as laws promulgated by the President, Letters of
Instruction are presumed to be mere administrative issuances except when the
conditions set out in Garcia-Padilla v. Enrile exist. Consequently, to be considered part of the
law of the land, petitioners must establish that LOI 1190 was issued in
response to “a grave emergency or a threat or imminence thereof, or
whenever the interim Batasan Pambansa or the regular National Assembly fails or
is unable to act adequately on any matter.” The conspicuous absence of any
of these conditions fortifies the opinion that LOI 1190 cannot be any more than
a mere administrative issuance.

In arguing that LOI 1190 was issued to cope with “a grave
emergency,” petitioners point to the 3rd “Whereas” clause which
speaks of the concern of the state against cut­-throat competition seriously
affecting the integrity and viability of the overseas recruitment industry, and
the difficulty in the regulation and supervision of agencies and the protection
of the welfare of the workers. The
petitioners’ appraisal that the 3rd “Whereas” clause manifests a
grave emergency situation is as good as anybody else’s contrary view. Moreover, even if we treat as emergency the “situation which
has seriously affected the integrity and viability of the overseas employment
industry,” there is no indication that in the judgment of the President it
is grave.

Petitioners argue that since the repeal of Art. 25 of the Labor
Code could not be done through an administrative issuance, LOI 1190 must of necessity
be a law. This reasoning is flawed.

There is nothing in the LOI which repeals or runs counter to Art.
25 of the Labor Code, as amended. Instead, contrary to the perception of petitioners, LOI 1190 does not
actually ban the grant of licenses nor bar the entry of new licensees since
anybody could still apply for license with the Minister of Labor and
Employment, although the grant thereof is subject to the prior authority of the
President. In fact, the LOI did not
modify the rule-making power of the Minister of Labor and Employment under the
Labor Code; it only added another tier of review.

Neither can petitioners consider this additional review by the
President as an amendment of Art. 25, for this is within the scope of the
exercise of his constitutionally sanctioned control over the executive
departments of government.^[14] Implicit in that power of control is the
President’s “authority to go over, confirm, modify or reverse the action
taken by his department secretaries.”^[15] Moreover, if we discern the intent of LOI
1190 from the manner it was enforced, the unrebutted allegation of respondent –
that 319 private employment agencies secured administrative presidential
approval from 1982 to 1989^[16] – shows that then President Marcos merely
intended to regulate, and not ban altogether, new applications for
licenses. For this reason, Marcos could
not have contemplated repealing Art. 25 of the Labor Code.

Petitioners
advance a rather outrageous interpretation of LOI 1190 when they claim that
“[t]he then President was in effect saying that ‘Art.
25 of the Labor Code is hereby repealed as regards overseas workers until I
otherwise direct.‘“^[17] By their nature, and their purpose to
maintain stability in the polity, laws have a certain degree of permanence such
that they are not intended to be repealed one hour after their enactment, then
re-enacted the following hour, and so on. If the law has to be applied on a case to case basis, as in the case of
Art. 25 of the Labor Code, it does not have to undergo the tedious process of
repeal and re-enactment every time its application is warranted.

Petitioners would impress upon us the interpretation that LOI
1190 suspended the effectivity of Art. 25, which could not be done because the
chief executive is constitutionally bound to “ensure that the laws be faithfully executed.“^[18] As we earlier stated, the LOI did not
suspend the enforcement of Art. 25 of the Labor Code; it merely added another
level of administrative review.

The discussion on whether the word “I” in the phrase
“except as I may otherwise
direct” refers to the President as chief executive or as a legislator is
meaningless, for the correct interpretation would ultimately depend on whether
the LOI is a law or an administrative issuance.

Petitioners also contend that EO 450 cannot repeal LOI 1190 for
Congress has not delegated that power to the President.^[19] We do not agree. There is no need for legislative delegation of power to the
President to revoke the LOI by way of an EO in view of our finding that LOI 1190 is a mere administrative directive,^[20]
hence, may be repealed, altered or modified by EO 450, and DO 9 must
consequently be upheld.

Of the three (3) groups of intervenors, only AMADER, et al., pray for attorney’s fees claiming
that they were compelled to hire counsel to enforce and protect their
rights. However, in view of the
complexity of the legal issue involved, the Court resolves not to grant attorney’s fees.

WHEREFORE, the instant petition is DISMISSED. The Temporary Restraining Order we issued on
16 May 1991 is accordingly LIFTED and SET ASIDE. Executive Order No. 450 and Department Order
No. 9 of the Department of Labor and Employment are SUSTAINED. Accordingly, Letter of Instruction No. 1190
is declared REPEALED and SUPERSEDED by
Executive Order No. 450.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno, and Vitug, JJ., concur.

^[1]
“Sec. 2. Executive Orders. – Acts of the President providing for rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in executive
orders“ (Chapter
2, Title I, Book III, Executive Order No. 292, otherwise known as the
Administrative Code of 1987).

^[2]
“Letters of Instructions are the orders by the President to specific government officials directing or
authorizing the doing of certain things, or laying guidelines to be complied
with for the effective implementation of a law. Examples are Letters of Instruction No. 2 ordering the Secretary
of National Defense to take over the management, control and operation of
public utilities, and No. 65 directing compliance with certain guidelines for
the full implementation of the tax amnesty on previously untaxed income under
Presidential Decree No. 23, as amended.

“They have
also been issued to announce and order designations to certain positions (e.g.,
L.I. No. 87.) and to announce the approval and effectivity of programs, plans (e.g.,
L.I. No. 64, 66.), or recommendations (e.g., L.I. No. 91 approving NEDA
recommendation for the salary structure of the staffing pattern of the NEDA)
requiring the approval of the President x x x x They have also been issued to
repeal, modify or amend laws (e.g., L.I. No. 1054 which amended Sec. 268
of the National Internal Revenue Code by deleting bowling alleys as among those
subject to tax (De Leon, Hector, S., Textbook
on the Philippine
Provisional Constitution, 1986 ed., p. 506).

^[3]
Kapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas, Inc. v. Bienvenido Tan, G.R.
No. L­-81311, 30 June 1988, and companion cases; 163 SCRA 371, 380.

^[4]
G.R. No. 61388, 20 April 1983; 121 SCRA
472, 499.

^[5]
“Art. 25. Private Sector
Participation in the
Recruitment and Placement of Workers. – Pursuant to national development objectives and in order to harness and
maximize the use of private sector resources and initiative in the development
and implementation of a comprehensive employment program, the private
employment sector shall participate in the recruitment and placement of
workers, locally and overseas, under such guidelines, rules and regulations, as
may be issued by the Secretary of Labor.”

^[6]
Full text of LETTER OF INSTRUCTION NO. 1190:

“TO: The Minister of Labor and Employment

“WHEREAS,
under Section 1 of the Presidential Decree No. 1412 promulgated June 9, 1978,
Article 25 of the Labor Code which among other things provided for the phaseout
of all private fee charging recruitment agencies by October 31, 1978, was
amended so as to allow the continued participation of the private employment
sector in the recruitment and placement of workers, locally or overseas, under
guidelines, rules and regulations as may be issued by the Secretary of Labor,
now Minister of Labor and Employment;

“WHEREAS,
by operation of this amendment and its implementing rules and regulations, and
in spite of the stiff qualification requirements imposed by the Minister of
Labor and Employment, there are now more than 300 recruitment agencies which
were able to qualify for licensing;

“WHEREAS,
the proliferation of recruitment agencies has resulted in cut-throat
competition for foreign employers and employees, a situation which has
seriously affected the integrity and viability of the overseas employment
industry and has rendered more difficult the regulation and supervision of
private sector participation,
including the protection of workers from prohibited and exploitative practices
at the hands of recruiters;

“NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, do hereby direct that effective January 1, 1982,
no new applications for licenses to operative private employment agencies
engaged in the recruitment and placement of Filipino workers for overseas
employment shall be granted except as I may otherwise direct.

“Done in the City of Manila, this 20th
day of January, in the year of Our Lord, nineteen hundred and eighty-two.”

^[7]
Full Text of EXECUTIVE ORDER NO. 450:

“LIFTING
THE BAN ON NEW APPLICATIONS FOR LICENSES TO OPERATE PRIVATE EMPLOYMENT AGENCIES
ENGAGED IN RECRUITMENT AND PLACEMENT OF FILIPINO WORKERS FOR OVERSEAS
EMPLOYMENT

“WHEREAS,
Article 25 of the Labor Code of the Philippines, as amended, allowed the
continued participation of the private employment sector in the recruitment and
placement of workers locally and overseas, under such guidelines as may be
issued by the Secretary of Labor and Employment;

“WHEREAS,
Letter of Instruction No. 1190, issued on January 20, 1982, banned the issuance
of licenses to operate private employment agencies engaged in the recruitment
and placement of Filipino workers for overseas employment to stop the
proliferation of recruitment agencies and prevent cut­-throat competition, and
to protect workers from prohibited and exploitative practices at the hands of recruiters;

“WHEREAS,
LOI 1190 was issued in 1982 in view of the absence of an effective
administrative machinery which would address the upsurge, and supervise the
operations of, licensed placement agencies;

“WHEREAS,
this incapacity has been properly addressed by the integration of all offices
involved in the overseas employment program through the creation of the
Philippine Overseas Employment Administration (POEA);

“WHEREAS,
recent developments affecting the overseas employment program of the
government, particularly the opening of new markets with increasing demand for
Filipino manpower at competitive employment terms and conditions, has
necessitated a review and re-evaluation of licensing policies;

“WHEREAS,
the potentials of these new markets and the encouraging growth of deployment
over the years ought to be taken advantage of by the government;

“WHEREAS,
it has become necessary to develop and maintain a roster of responsible and
reputable licensed agencies engaged in recruitment for overseas employment, the
operations of which shall be under the strict supervision and regulation by the
Department of Labor and Employment;

“WHEREAS, lifting the ban on the issuance of licenses will open the opportunity
for the entry of innovative and dynamic participants who can revitalize
existing markets and respond to the challenges of emerging ones;

“WHEREAS,
the much needed foreign exchange will be aggressively channeled through the
efforts of licensed agencies;

“NOW, THEREFORE,
I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by law, do hereby direct
the immediate lifting of the ban on new applications for licenses to operate
private recruitment agencies subject to such guidelines, rules and regulations
as may be promulgated by the
Secretary of Labor and Employment.

“Done in the City of Manila, this 19th
day of March, in the year of Our Lord, nineteen hundred and ninety-one.”

^[8]
Rollo, p. 24.

^[9]
Joblink International, Inc. (JOBLINK),
et al., Rollo, pp. 54, et seq.; RP-Japan Entertainment Promoters
Association, Inc. (REPA), Rollo, pp. 68, et seq.; and, Amader
International Inc. (AMADER), et al., Rollo, pp. 100, et seq.

^[10]
For JOBLINK, see Resolution of 4 July 1991, Rollo, p. 195; for REPA, see Resolution of 4 July
1991, Rollo, pp. 61-62; and, for AMADER, see Resolution of
15 August 1991, Rollo, p. 178-A.

^[11]
Rollo, pp. 61-62.

^[12]
Association of Small Landowners in the
Philippines, Inc., v. Secretary of Agrarian Reform, G.R. No. 78742 and
companion cases, 14 July 1989; 175 SCRA 343, 364.

^[13]
See Note 6.

^[14]
“The President shall have control
of all the executive departments, bureaus, and offices x x x x“ (Sec. 17, Art. VII, Constitution).

^[15]
Lacson-Magallanes Co. Inc. v. Paño, G.R. No. L-27811, 17 November 1967; 129 Phil
123, 127.

^[16]
Comment, p. 9; Rollo, p. 41.

^[17]
Reply to Comment, p. 4; Rollo,
p. 89.

^[18]
Petitioners cite the second sentence of Sec. 17, Art. 7, of the
Constitution which states: “He
(the President) shall ensure that the laws be faithfully executed,” and
the comment thereon of Fr. Joaquin Bernas in his Constitution of the Republic of the Philippines, 1988 ed., Vol. II, p. 66, that: “The reverse side of the power to
execute the law is the duty to carry it out. The President cannot refuse to carry out a
law for the simple reason that in his judgment it will not be beneficial to the
people.”

^[19]
Petition, p. 11; Rollo, p. 12.

^[20]
Sec. 3, Art. XVIII of the Constitution provides: “All laws, decrees, executive orders, proclamations, letters
of instructions, and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked.”

The original
version of the foregoing section reads: “Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended,
modified or repealed by Congress” (Record of the Constitutional
Commission, Vol. V, p. 311). The
following are excerpts of the floor deliberations on this proposed provision of
Sec. 3:

“MR.
MAAMBONG. Mr. Presiding Officer, would Commissioner Davide accept a
modification by putting a period (.) after the word ‘REPEALED,’ then
eliminating the words ‘by Congress’?

“MR.
DAVIDE. ‘By Congress.’

“MR. MAAMBONG. As originally formulated we will just put a period (.) after the
word ‘repealed’ on the last sentence and eliminate the words ‘by
Congress.’

“In
this manner, Mr. Presiding Officer, it is open-ended. The President, while she still has the power and before the
Congress convenes, can repeal all laws or decrees and after Congress shall have
convened, we shall eliminate the words ‘by Congress.’ The President, in accordance with our
discussion yesterday, can still continue to revoke executive orders,
proclamations and other issuances or letters of instructions or
memorandum/circulars for that matter. So it will solve the whole problem, Madam President.

“MR. DAVIDE. Mr.Presiding Officer, the Commissioner mentioned the word
‘revoked’ or in other words, granting the authority to revoke. That revocation insofar as the President is concerned
may be done by the incumbent President, not necessarily because of her
legislative powers, but because of her executive powers.

x x x x

“MR. MAAMBONG. Mr. Presiding Officer, we accepted the
amendment of Commissioner Davide by putting in the word ‘REVOKED’ because that
refers to the action of the President, not of the legislative body. The President can revoke executive orders
and proclamations on her own authority, that is why we accepted the word ‘REVOKED,’
Mr. Presiding Officer“ (Ibid., pp. 349, 350).