Legal Commentaries

G.R. No. 180046 REVIEW CENTER ASSOCIATION OF THE PHILIPPINES, petitioner,

versus EXECUTIVE SECRETARY EDUARDO ERMITA AND COMMISSION ON HIGHER
EDUCATION REPRESENTED BY ITS CHAIRMAN ROMULO L. NERI, respondents.

Promulgated: April 2, 2009

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SEPARATE CONCURRING OPINION

BRION, J.:

I concur with the ponencia that EO 566 and the instruments derived from this EO
should be declared invalid. At the same time, I maintain that the President of
the Philippines has adequate powers under the law to regulate review centers. EO 566 is
invalid as a regulatory measure over review centers because an executive order of this tenor
cannot be issued under R.A. 7722 (The Higher Education Act of 1994). The appropriate existing
law to regulate review centers is R.A. 8981, otherwise known as The PRC Modernization Act of
2000.

A holistic reading of R.A. 8981 shows that it attempts to provide the blue print for a
credible and effective Philippine licensure examination system and process. Under this law, the
Professional Regulation Commission (an entity under the Executive Department together with
the Commission on Higher Education) was given among other powers related with its primary
mandate to establish and maintain a high standard of admission to the practice of all professions
and at all times ensure and safeguard the integrity of all licensure examinations the full
authority to promulgate rules and regulation to implement its mandate. To be sure, R.A.8981
does not narrowly or restrictively concern itself with the conduct of actual examinations alone as
the ponencia discussed; it covers and relates as well to the various integral and/or institutional
components of the licensure examination process or system.
I find it unfortunate that R.A. 7722 was made the basis for the regulation of review
centers, when R.A. 8981 could have provided opportunities, appropriate to the PRC, to achieve
the same end. This is unfortunate under the circumstances since the invalidity of using R.A. 7722
as the legal basis, without saying more on what can be a viable alternative, can leave a major
player in the Philippine licensure examination process immune, even for a time, from regulation.
It is for this compelling reason that I have tackled in this Separate Concurring Opinion the
alternative and (while not fully determinative of the issue of the validity of EO 566) the related
issues of: (1) whether the business of review centers can be the subject of regulation; (2) if so, on
what legal basis; and (3) again, if so, which governmental authority has been vested with
jurisdiction by law.

The Background Facts

The Office of the Solicitor General (OSG) objects to the filing of the present petition
directly with this Court, based on the principle of hierarchy of courts. The principle, as a rule,
can be invoked where no compelling reason exists for a direct resort to this Court.[1] However, a
compelling reason does exist as the ponencia properly noted. Likewise, there are no major issues
of fact that are essentially for the trial or lower courts to handle as triers of facts; [2] hence, direct
resort to this Court is justified. In this regard, at the petitioners urging and based on the implicit
stance of all other parties to take judicial notice of the background facts,[3] I am providing a fuller
account of the background of the case based on parallel official developments, all of them related
to the root of the present issue the nursing exam scandal of 2006. This background albeit
footnoted because they do not all directly affect the present case may lead to a fuller appreciation
of the case and the view I am putting forward, and is offered in the spirit of George Santayanas
advice to remember the past to avoid being condemned to its repetition.[4]
The President Has Legal Basis to Regulate,
but under R.A. 8981, not R.A. 7722

I hold the view that the President has sufficient legal basis to regulate review centers and
could have done so under an existing validly delegated authority. This authority, however, is not
based on the charter of the CHED, R.A. 7722; hence, the issuance of EO 566 on the basis of
R.A. 7722 was an illegal act of subordinate legislation undertaken without statutory basis.
The law dealing with leakage and manipulation of licensure examinations is Republic Act
No. 8981 (the PRC Law).[5]Section 5 of this law defines the PRCs primary mandate, which is to
establish and maintain a high standard of admission to the practice of all professions and at all
times ensure and safeguard the integrity of all licensure examinations. Some of the PRCs
powers, functions and responsibilities under Section 7 of the law include:

Section 7. Powers, Functions and Responsibilities of the Commission. The

powers, functions, and responsibilities of the Commission are as follows:

(d) To administer and conduct the licensure examinations of the various

regulatory boards in accordance with the rules and regulations promulgated by the
 Commission; determine and fix the places and dates of examinations; use publicly
or privately-owned buildings and facilities for examination purposes; conduct
more than one (1) licensure examination: Provided, That, when there are two (2)
or more examinations given in a year, at least one (1) examination shall be held
on weekdays (Monday to Friday): Provided, further, That, if only one (1)
examination is given in a year, this shall be held only on weekdays: Provided,
finally, That, the Commission is also authorized to require the completion of a
refresher course where the examinee has failed to pass three (3) times, except as
otherwise provided by law; approve the results of examinations and the release of
the same; adopt measures to preserve the integrity and inviolability of
licensure examinations; appoint supervisors and room watchers from among the
employees of the government and/or private individuals with baccalaureate
degrees, who have been trained by the Commission for the purpose and who shall
be entitled to a reasonable daily allowance for every examination day actually
attended, to be determined and fixed by the Commission; publish the list of
successful examinees; provide schools, colleges and universities, public and
private, offering courses for licensure examinations, with copies of sample test
questions on examinations recently conducted by the Commission and copies of
the syllabi or terms of specifications of subjects for licensure examinations; and
impose the penalty of suspension or prohibition from taking licensure
examinations to any examinee charged and found guilty of violating the rules and
regulations governing the conduct of licensure examinations promulgated by the
Commission;
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(s) To investigate motu proprio or upon the filing of a verified
complaint, any member of the Professional Regulatory Boards for neglect of
duty, incompetence, unprofessional, unethical, immoral or dishonorable
conduct, commission of irregularities in the licensure examinations which
taint or impugn the integrity and authenticity of the results of the said
examinations and, if found guilty, to revoke or suspend their certificates of
registration and professional licenses/identification cards and to recommend
to the President of the Philippines their suspension or removal from office as
the case may be;
xxxx
(y) To perform such other functions and duties as may be necessary to
carry out the provisions of this Act, the various professional regulatory laws,
decrees, executive orders and other administrative issuance

Complementing these mandates are the penal provisions giving teeth to the PRCs
regulatory powers. Section 15 of the PRC Law provides:

Section 15. Penalties for Manipulation and Other Corrupt Practices in

the Conduct of Professional Examinations.
 (a) Any person who manipulates or rigs licensure examination results,
secretly informs or makes known licensure examination questions prior to the
conduct of the examination or tampers with the grades in professional licensure
examinations shall, upon conviction, be punished by imprisonment of not less
than six (6) years and one (1) day to not more than twelve (12) years or a fine of
not less than Fifty thousand pesos (P50,000.00) to not more than One hundred
thousand pesos (P100,000.00) or both such imprisonment and fine at the
discretion of the court.

Another critical power under Section 17 of the law is the authority to promulgate the
necessary rules and regulations needed to implement its provisions.

Section 17. Implementing rules and Regulations. Within ninety (90) days
after the approval of this Act, the Professional Regulation Commission, together
with the representatives of the various Professional Regulatory Boards and
accredited professional organizations, the DBM, and the CHED shall prepare and
promulgate the necessary rules and regulations needed to implement the
provisions of this Act.

To be valid, this authority must be exercised on the basis of a policy that the law wishes to
enforce and of sufficient standards that mark the limits of the legislatures delegation of
authority. The completeness of this delegation is evidenced by the PRC Laws policy statement
which provides:

Section 2. Statement of Policy. The State recognizes the important role of

professionals in nation-building and, towards this end, promotes the sustained
development of a sustained reservoir of professionals whose competence has
been determined by honest and credible licensure examinations and whose
standards of professional service and practice are internationally recognized and
considered world-class brought by the regulatory measures, programs and
activities that foster professional growth and advancement.

Read together with the grant of powers and functions under Section 5 (particularly the statement
that the Commission shall establish and maintain a high standard of admission to the practice of
all professions and at all times ensure and safeguard the integrity of all licensure examinations),
both policy and standards are therefore present as required by law and jurisprudence.[6]
Whether review centers can be the legitimate subjects of PRC regulation, given the
above-described experience with the nursing board examination leakage and the terms of the
PRC Law, is not a hard question to answer. Review centers, because of the role they have
assumed and the reliance on them by examinees, have become active participants in the licensure
examination process, and their involvement can neither be downplayed nor ignored. Board
examinees now undergo review preparatory to licensure examinations as a matter of accepted
practice, and pay considerable sums to avail themselves of the services review centers
offer. These services include the provision of review materials; lectures on examination methods;
practice examinations to simulate the actual exam environment; and final coaching just before
the actual examination date. To some exam candidates, these services have become security
blankets that, whether true or not, boost their confidence come examination time. Not the least of
the considerations, of course, is that the review center industry has now become a billion-peso
industry with sufficient means and resources for the corrupt elements of the industry to subvert
the integrity and reputation of the licensure examinations. PRC experiences in the last few years
attest to this reality.[7] Thus, the integrity and effectiveness of review centers are now basic
considerations in ensuring an honest and credible licensure examination system. In these lights,
the regulation of review centers is a must for the PRC, given its duty to adopt measures that will
preserve the integrity and inviolability of licensure examinations.

Thus, unlike the CHED, the PRC has the requisite authority or mandate under the
PRC Modernization Law to regulate the establishment and operation of review centers.

Can the President transfer the power of

regulation granted the PRC to CHED?

This question essentially arises under the premise that review centers fall under the PRC's
mandate so that there is no gap in the law, and the President, in the exercise of her power of
control, can regulate review centers. Can this presidential authority be now cited as basis to
argue for the validity of EO 566?

The short and quick answer is no, because the disputed EO does not even invoke the PRC
Law as its legal basis. Nor can the EO be revived by simply re-issuing it, citing the PRC Law
and the authority of the President of the Philippines to issue regulations.To regulate review
centers under the PRC law, another EO appropriate to the PRC and its structure under
the PRC law will have to be prepared and issued.
The President, as Chief Executive, has the power of c ontrol over all the executive
departments, bureaus, and offices.[8] The power of control refers to the power of an officer to
alter, modify, nullify, or set aside what a subordinate officer has done in the performance of his
duties, and to substitute the judgment of the former for that of the latter.[9] Under this power, the
President may directly exercise a power statutorily given to any of his subordinates, as what
happened in the old case of Araneta v. Gatmaitan,[10]where President Ramon Magsaysay himself
directly exercised the authority granted by Congress to the Secretary of Agriculture and Natural
Resources to promulgate rules and regulations concerning trawl fishing. We similarly ruled
in Bermudez v. Torres when we said that the President, being the head of the Executive
Department, can very well disregard or do away with the action of the departments, bureaus or
offices even in the exercise of discretionary authority; in so opting, he cannot be said to be acting
beyond the scope of his authority.[11]

The statutory support for this authority is provided under Section 31 (2), Chapter 10, Title
III, Book III of Executive Order No. 292, otherwise known as the Administrative Code of 1987
(EO 292), which states:

Sec. 31. Continuing Authority of the President to Reorganize his Office. -

The President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:

(1) Restructure the internal organization of the Office of the President

Proper, including the immediate Offices, the Presidential Special
Assistants/Advisers System and the Common staff Support System, by
abolishing, consolidating or merging units thereof or transferring
functions from one unit to another;

(2) Transfer any function under the Office of the President to any
other Department or Agency as well as transfer functions to the
Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other departments or agencies.

The Presidents direct exercise of the power of subordinate legislation is done via the
issuance of an executive or administrative order, defined under Section 2, Chapter 2, Book III of
EO 292, as an ordinance issued by the President providing for rules of a general or permanent
character in the implementation or execution of constitutional or statutory powers.
 The valid grant of the authority to issue subordinate legislation to the PRC and the
exercise of this power by the President as the head of the executive department of government,
however, do not extend to the authority of the President to take control of the PRCs powers
under the PRC Law, and to assign these to another agency within the executive branch.

Effectively, this was what happened in the present case; the President, through EO 566,
took control of the PRCs authority to issue subordinate legislation to regulate review centers, and
transferred this power to the CHED. This is an illegal sub-delegation of delegated power. What
has once been delegated by Congress can no longer be further delegated by the original delegate
to another, expressed in the Latin maxim potestas delegata non delegare potest.[12] When the
PRC Law granted the power of subordinate legislation to the PRC, the mandate was given to this
agency (and under the control powers of the President, to the President by necessary implication)
as the original delegate; the faithful fulfillment of this mandate is a duty that the PRC itself, as
the delegate, must perform using its own judgment and not the intervening mind of another.[13]

Additionally, EO 566 placed entities subject to the jurisdiction of a particular agency (in this
case, the PRC) under the jurisdiction of another (the CHED). As the cited reorganization powers
of the President show, the statutorily-allowed transfer of functions refers to those from the Office
of the President to the departments and agencies, or from the departments and agencies to the
Office of the President. This proceeds from the power of control the Constitution grants to the
President. No general statutory nor constitutional authority exists, however, allowing the
President to transfer the functions of one department or agency to another. The reason for this is
obvious the jurisdiction of a particular department or agency is provided for by law and this
jurisdiction may not be modified, reduced or increased, via a mere executive order except to the
extent that the law allows. Thus, only the President, based on her constitutionally-provided
control powers, can assume the functions of any of the departments or agencies under the
Executive Department. Even then, the President cannot transfer these functions to another
agency without transgressing the legislative prerogatives of Congress. This conclusion
necessarily impacts on the validity of the CHEDs issuance of the RIRR and other instruments
which must similarly be invalid since they sprang from an invalid and impermissible sub-
delegation of power.

I therefore vote to invalidate EO 566 and the issuances arising from this EO.
ARTURO D. BRION
Associate Justice