The petition is partly meritorious petitioners assail

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The petition is partly meritorious. Petitioners assail the validity of the 22 March 2006 Order, 16 February 2007 Order, 7 December 2005 Order, and 27 March 2006 Order of the ERC directing the refund of over- recoveries for having been issued pursuant to ineffective and invalid policy guidelines. Petitioners assert that the policy guidelines on the treatment of discounts extended by power suppliers are ineffective and invalid for lack of publication, non-submission to the U.P. Law Center, and their retroactive application. Publication is a basic postulate of procedural due process. The purpose of publication is to duly inform the public of the contents of the laws which govern them and regulate their activities. Article 2 of the Civil Code, as amended by Section 1 of Executive Order No. 200, states that "laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided." Section 18, Chapter 5, Book I of Executive Order No. 292 or the
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POLITICAL LAW CASE DIGESTS 59 Administrative Code of 1987 similarly provides that "[l]aws 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." Procedural due process demands that administrative rules and regulations be published in order to be effective. In Tañada v. Tuvera, this Court articulated the fundamental requirement of publication. There are, however, several exceptions to the requirement of publication. First, an interpretative regulation does not require publication in order to be effective. The applicability of an interpretative regulation "needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed."81 It "adds nothing to the law" and "does not affect the substantial rights of any person." Second, a regulation that is merely internal in nature does not require publication for its effectivity. It seeks to regulate only the personnel of the administrative agency and not the general public. Third, a letter of instruction issued by an administrative agency concerning rules or guidelines to be followed by subordinates in the performance of their duties does not require publication in order to be effective. The policy guidelines of the ERC on the treatment of discounts merely interpret the cost of purchased power as a component of the PPA formula provided in Section 5, Rule IX of the IRR of R.A. No. 7832. The cost of purchased power is denominated as the variable "A" in the numerator of the PPA formula. Furthermore, the policy guidelines of the ERC uphold and preserve the nature of the PPA formula. The nature of the PPA formula precludes an interpretation that includes discounts in the computation of the cost of purchased power. The PPA formula is an adjustment mechanism the purpose of which is purely for the recovery of cost.
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  • Winter '15
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