REVIEW CENTER ASSOCIATION OF THE PH v.

ERMITA
April 2, 2009|Carpio J. | Non-delegation
Digester: Yee, Jenine
SUMMARY: Due to a leakage in the nursing examination, which
was circulated among the examinees reviewing at RA Gapuz
Review Center and Inress Review Center, the CA restrained that
Professional Regulation Commission from proceeding with the
oath-taking of the successful examinees. Consequently President
Arroyo issued the assailed EO 566 which authorized CHED to
supervise the establishment and operation of all review centers
and similar entities in the Philippines. Petitioner files a petition
directly before the Court assailing the constitutionality of the EO
for expanding the scope of CHEDs jurisdiction.
DOCTRINE: The exercise of the Presidents residual powers
under this provision requires legislation. (?)
FACTS:
On 11 and 12 June 2006, the Professional Regulation
Commission (PRC) conducted the Nursing Board Examinations
nationwide. In June 2006, licensure applicants wrote the PRC
to report that handwritten copies of two sets of
examinations were circulated during the examination
period among the examinees reviewing at the R.A. Gapuz
Review Center and Inress Review Center.
George Cordero, Inress Review Centers President, was then
the incumbent President of the Philippine Nurses Association.
The examinees were provided with a list of 500 questions and
answers in two of the examinations five subjects. The PRC
later admitted the leakage and traced it to two Board of
Nursing members. On 19 June 2006, the PRC released the
results of the Nursing Board Examinations.
On 18 August 2006, the Court of Appeals restrained the PRC
from proceeding with the oathtaking of the successful
examinees set on 22 August 2006.
Consequently, President Gloria MacapagalArroyo replaced all
the members of the PRCs Board of Nursing. President Arroyo
also ordered the examinees to retake the Nursing Board
Examinations.
On 8 September 2006, President Arroyo issued EO 566
which authorized the CHED to supervise the
establishment and operation of all review centers and
similar entities in the Philippines.

On 3 November 2006, the CHED, through its then Chairman

Carlito S. Puno , approved CHED Memorandum Order No. 49,
series of 2006 (IRR).
Basically, Petitioner asked CHED to amend and suspend
IRR, which eventually led to the RIRR. Not satisfied,
Petitioner wrote to the Office of the President for the
amendment of the RIRR praying for the revision of the
rules to make it conform with RA 7722, limiting CHEDs
coverage to public and private institutions of higher
education as well as degreegranting programs in postsecondary educational institutions. However, this prayer
was rejected. Hence the petition to declare EO 566 and
its IRR as invalid and unconstitutional.
In a letter dated 24 November 2006,5 the Review Center
Association of the Philippines (petitioner), an organization of
independent review centers, asked the CHED to amend, if not
withdraw the IRR arguing, among other things, that giving
permits to operate a review center to Higher Education
Institutions or consortia of HEIs and professional organizations
will effectively abolish independent review centers.
Chairman Puno wrote petitioner that to suspend the
implementation of the IRR would be inconsistent with the
mandate of EO 566. Chairman Puno wrote that the IRR was
presented to the stakeholders during a consultation process
prior to its finalization and publication on 13 November 2006.
Chairman Puno also wrote that petitioners comments and
suggestions would be considered in the event of revisions to
the IRR.
In view of petitioners continuing request to suspend and reevaluate the IRR, Chairman Puno, in a letter dated 9 February
2007,7 invited petitioners representatives to a dialogue on 14
March 2007. In accordance with what was agreed upon during
the dialogue, petitioner submitted to the CHED its position
paper on the IRR. Petitioner also requested the CHED to
confirm in writing Chairman Punos statements during the
dialogue, particularly on lowering of the registration fee from
P400,000 to P20,000 and the requirement for reviewers to
have five years teaching experience instead of five years
administrative experience. Petitioner likewise requested for a
categorical answer to their request for the suspension of the
IRR. The CHED did not reply to the letter.
On 7 May 2007, the CHED approved the RIRR.

On 22 August 2007, petitioner filed before the CHED a Petition

to Clarify/Amend Revised Implementing Rules and Regulations
praying for a ruling:
o Amending the RIRR by excluding independent review
centers from the coverage of the CHED;
o Clarifying the meaning of the requirement for existing
review centers to tieup or be integrated with HEIs,
consortium or HEIs and PRCrecognized professional
associations with recognized programs, or in the
alternative, to convert into schools; and
o Revising the rules to make it conform with Republic Act
No. 7722 (RA 7722) limiting the CHEDs coverage to
public and private institutions of higher education as
well as degreegranting programs in postsecondary
educational institutions.
On 8 October 2007, the CHED issued Resolution No. 718200710 referring petitioners request to exclude independent
review centers from CHEDs supervision and regulation to the
Office of the President as the matter requires the amendment
of EO 566. In a letter dated 17 October 2007,11 then CHED
Chairman Romulo L. Neri wrote petitioner regarding its
petition to be excluded from the coverage of the CHED in the
RIRR. Chairman Neri stated:
o While it may be true that regulation of review centers is
not one of the mandates of CHED under Republic Act
7722, Executive Order No. 566 directed the CHED to
regulate the establishment and operation of review
centers and similar entities in the entire country.
Considering that the requests requires the amendment of
Executive Order No. 566, the Commission, during its 305th
Commission Meeting, resolved that the said request be directly
referred to the Office of the President for appropriate action.
Petitioner filed a petition for Prohibition and Mandamus
before this Court praying for the annulment of the RIRR,
the declaration of EO 566 as invalid and
unconstitutional, and the prohibition against CHED from
implementing the RIRR.
In its 25 November 2008 Resolution, this Court resolved to
require the parties to observe the status quo prevailing before
the issuance of EO 566, the RIRR, and CMO 21, s. 2008.

RULING: WHEREFORE, we GRANT the petition and the petitioninintervention. We DECLARE Executive Order No. 566 and

Commission on Higher Education Memorandum Order No. 30,

series of 2007 VOID for being unconstitutional.
Whether EO 566 is an unconstitutional exercise by the
Executive of legislative power as it expands the CHEDs
jurisdiction YES.
OSG: Section 3 of RA 7722 should be read in conjunction with
Section 8, enumerating the CHEDs powers and functions.
CHED has the power to monitor and evaluate the performance
of programs and institutions of higher learning for
appropriate incentives as well as the imposition of sanctions
the term programs x x x of higher learning is broad enough
to include programs offered by review centers.

COURT:
Section 3 of RA 7722 provides The Commission shall be
independent and separate from the Department of Education,
Culture and Sports (DECS), and attached to the Office of the
President for administrative purposes only. Its coverage shall
be both public and private institutions of higher
education as well as degreegranting programs in all
postsecondary educational institutions, public and
private.
Neither RA 7722 nor CHED Order No. 3, series of 1994
(Implementing Rules of RA 7722)24 defines an institution of
higher learning or a program of higher learning.
Higher education, however, is defined as education beyond
the secondary level or education provided by a college or
university. Under the plain meaning or verba legis rule in
statutory construction, if the statute is clear, plain, and free
from ambiguity, it must be given its literal meaning and applied
without interpretation. The legislature is presumed to know the
meaning of the words, to have used words advisedly, and to
have expressed its intent by use of such words as are found in
the statute. Hence, the term higher education should be
taken in its ordinary sense and should be read and
interpreted together with the phrase degreegranting
programs in all postsecondary educational institutions,
public and private. Higher education should be taken to
mean tertiary education or that which grants a degree
after its completion.

Morever, as may be seen from Article 6 and 7 of the IRR 1, HEIs

refer to degreegranting institutions, or those offering tertiary
degree or postsecondary programs. In fact, Republic Act No.
8292 or the Higher Education Modernization Act of 1997
covers chartered state universities and colleges. State
universities and colleges primarily offer degree courses and
programs.
A review center is not an institution of higher learning as
contemplated by RA 7722. It does not offer a degreegranting
program that would put it under the jurisdiction of the CHED.
A review course is only intended to refresh and enhance the
knowledge or competencies and skills of reviewees. A
reviewee is not even required to enroll in a review center or to
take a review course prior to taking an examination given by
the PRC. Even if a reviewee enrolls in a review center,
attendance in a review course is not mandatory. The reviewee
is not required to attend each review class. He is not required
to take or pass an examination, and neither is he given a grade.
He is also not required to submit any thesis or dissertation.
Thus, programs given by review centers could not be
considered programs x x x of higher learning that would put
them under the jurisdiction of the CHED.
Further, the similar entities in EO 566 cover centers
providing review or tutorial services in areas not covered by
licensure examinations given by the PRC, which include,
although not limited to, college entrance examinations, Civil
Services examinations, and tutorial services. These review and
tutorial services hardly qualify as programs of higher learning.
Hence, the scopes of EO 566 and the RIRR clearly expand the
CHEDs coverage under RA 7722. The CHEDs coverage
under RA 7722 is limited to public and private
institutions of higher education and degreegranting
programs in all public and private postsecondary
educational institutions. EO 566 directed the CHED to
formulate a framework for the regulation of review centers and
similar entities.

1 Article 6. Scope of Application.The coverage of the Commission shall be

both public and private institutions of higher education as well as degree

granting programs in all post secondary educational institutions, public and
private.These Rules shall apply to all public and private educational institutions
offering tertiary degree programs. Article 7. Jurisdiction.Jurisdiction over
institutions of higher learning primarily offering tertiary degree programs shall
belong to the Commission.

Whether there was usurpation of legislative power YES.

OSG: The OSG argues that President Arroyo was merely
exercising her executive power to ensure that the laws are
faithfully executed. The OSG further argues that President
Arroyo was exercising her residual powers under Executive
Order No. 292 (EO 292)2. The exercise of the Presidents
residual powers under this provision requires legislation,
as the provision clearly states that the exercise of the
Presidents other powers and functions has to be provided for
under the law.
COURT:

There is no law granting the President the

power to amend the functions of the CHED.
President may not amend RA 7722 through
an Executive Order without a prior
legislation granting her such power. The
President has no inherent or delegated legislative power to
amend the functions of the CHED under RA 7722. Legislative
power is the authority to make laws and to alter or repeal
them, and this power is vested with the Congress.
In Ople v. Torres, the Court declared void, as a usurpation of
legislative power, Administrative Order No. 308 (AO 308)
issued by the President to create a national identification
system.
In that case, the Court distinguished between Legislative and
Executive powers, as follows:
Legislative power is the authority, under the Constitution, to
make laws, and to alter and repeal them. In fine, except as
limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters
of general concern or common interest.
While Congress is vested with the power to enact laws, the
President executes the laws. The executive power is
vested in the President. It is generally defined as the power

2 Section 20. Residual Powers.Unless Congress provides otherwise, the

President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not specifically
enumerated above, or which are not delegated by the President in accordance with
law.

to enforce and administer laws. It is the power of carrying the

laws into practical operation and enforcing their due
observance. As head of the Executive Department, the
President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced
by the officials and employees of his department. He has
control over the executive department, bureaus and
offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and
office, or interfere with the discretion of its officials. Corollary
to the power of control, the President also has the duty
of supervising the enforcement of laws for the
maintenance of general peace and public order. Thus, he
is granted administrative power over bureaus and offices
under his control to enable him to discharge his duties
effectively.
Administrative power is concerned with the work of
applying policies and enforcing orders as determined by
proper governmental organs. It enables the President to
fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he
can issue administrative orders3, rules and regulations.
Moreoever, the Court in that case said that Many regulations
however, bear directly on the public. It is here that
administrative legislation must be restricted in its scope and
application. Regulations are not supposed to be a substitute for
the general policymaking that Congress enacts in the form of a
public law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is not
an independent source of power to make laws.
Since EO 566 is an invalid exercise of legislative power, the
RIRR is also an invalid exercise of the CHEDs quasi legislative
power.
Administrative agencies exercise their quasilegislative or rulemaking power through the promulgation of rules and
regulations. The CHED may only exercise its rule making
power within the confines of its jurisdiction under RA 7722.
The RIRR covers review centers and similar entities which are

3 An administrative order is an ordinance issued by the President which relates to

specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing
the law and carrying out the legislative policy

neither institutions of higher education nor institutions offering

degreegranting programs.
Whether there was a valid exercise of police power NO.

Police power to prescribe regulations to promote the health,

morals, education, good order or safety, and the general
welfare of the people flows from the recognition that salus
populi est suprema lexthe welfare of the people is the
supreme law. Police power primarily rests with the legislature
although it may be exercised by the President and
administrative boards by virtue of a valid delegation. Here, no
delegation of police power exists under RA 7722
authorizing the President to regulate the operations of
nondegree granting review centers.
It is argued that the President of the Philippines has adequate
powers under the law to regulate review centers and this could
have been done under an existing validly delegated authority,
and that the appropriate law is Republic Act No. 898139 (RA
8981). Under Section 5 of RA 8981, the PRC is mandated 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. Section
7 of RA 8981 further states that the PRC shall adopt measures
to preserve the integrity and inviolability of licensure
examinations. However, this power should properly be
interpreted to refer to the conduct of the examinations.
These powers of the PRC have nothing to do at all with
the regulation of review centers.
The PRC has the power to investigate any of the members of
the Professional Regulatory Boards (PRB) for commission of
any irregularities in the licensure examinations However, to
interpret this power to extend to the power to regulate
review centers is clearly an unwarranted interpretation
of RA 8981.
Section 7(y) of RA 8981 giving the PRC the power to perform
such other functions and duties as may be necessary to carry
out the provisions of RA 8981 does not extend to the
regulation of review centers. There is absolutely nothing in
RA 8981 that mentions regulation by the PRC of review
centers.