6/7/2020
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Constitutional and statutory provisions control with respect to what rules
and regulations may be promulgated by an administrative body, as well as
with respect to what fields are subject to regulation by it. It may not make
rules and regulations which are inconsistent with the provisions of the
Constitution or a statute, particularly the statute it is administering or which
created it, or which are in derogation of, or defeat, the purpose of a statute.
[94]
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which
simply provides for the types of issuances that administrative agencies, in general, may
issue. It does not speak of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary or head of agency. The
innocuous provision reads as follows:
Section 50. General Classification of Issuances. - The administrative
issuances of Secretaries and heads of bureaus, offices and agencies shall be
in the form of circulars or orders.
(1) Circulars shall refer to issuance prescribing policies, rules and
regulations, and procedures promulgated pursuant to law, applicable to
individuals and organizations outside the Government and designed to
supplement provisions of the law or to provide means for carrying them out,
including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or
employees, concerning specific matters including assignments, detail and
transfer of personnel, for observance or compliance by all concerned.
(Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the
memorandum of the former DOJ Secretary cannot justify the restriction on the right to
travel in DOJ Circular No. 41. The memorandum particularly made reference to
Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:
(1) Advise the President in issuing executive orders, regulations,
proclamations and other issuances, the promulgation of which is
expressly vested by law in the President relative to matters under
the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the
Department pursuant to the approved programs of governments;
(3) Promulgate rules and regulations necessary to carry out
department
objectives,
policies,
functions,
plans,
programs and projects;
(4) Promulgate administrative issuances necessary for the
efficient administration of the offices under the Secretary
and for proper execution of the laws relative thereto.
These issuances shall not prescribe penalties for their
violation, except when expressly authorized by law;
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/64165
19/70
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