Petitioners: en Banc

EN BANC
[G.R. No. 166715. August 14, 2008.]
ABAKADA GURO PARTY LIST (formerly AASJS) *

OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT
S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and
EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V.
PURISIMA, in his capacity as Secretary of Finance, HON.
GUILLERMO L. PARAYNO, JR., in his capacity as
Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of
Bureau of Customs, respondents.
DECISION
CORONA, J : p
This petition for prohibition 1 seeks to prevent respondents from

implementing and enforcing Republic Act (RA) 9335 2 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards
and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board). 3 It covers all officials
and employees of the BIR and the BOC with at least six months of service,
regardless of employment status. 4
The Fund is sourced from the collection of the BIR and the BOC in
excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in
proportion to their contribution in the excess collection of the targeted
amount of tax revenue. 5
The Boards in the BIR and the BOC are composed of the Secretary of
the Department of Finance (DOF) or his/her Undersecretary, the Secretary of
the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development
Authority (NEDA) or his/her Deputy Director General, the Commissioners of
the BIR and the BOC or their Deputy Commissioners, two representatives
from the rank-and-file employees and a representative from the officials
nominated by their recognized organization. 6 AaHcIT
Each Board has the duty to (1) prescribe the rules and guidelines for
the allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees whose
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revenue collection falls short of the target; (3) terminate personnel in
accordance with the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including the issuance
of rules and regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and regulations
of RA 9335, 8 to be approved by a Joint Congressional Oversight Committee
created for such purpose. 9
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform legislation. They
contend that, by establishing a system of rewards and incentives, the law
"transform[s] the officials and employees of the BIR and the BOC into
mercenaries and bounty hunters" as they will do their best only in
consideration of such rewards. Thus, the system of rewards and incentives
invites corruption and undermines the constitutionally mandated duty of
these officials and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards
and incentives only to officials and employees of the BIR and the BOC
violates the constitutional guarantee of equal protection. There is no valid
basis for classification or distinction as to why such a system should not
apply to officials and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power
to fix revenue targets to the President as it lacks a sufficient standard on
that matter. While Section 7 (b) and (c) of RA 9335 provides that BIR and
BOC officials may be dismissed from the service if their revenue collections
fall short of the target by at least 7.5%, the law does not, however, fix the
revenue targets to be achieved. Instead, the fixing of revenue targets has
been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in
order to dismiss BIR or BOC personnel. TCASIH
Finally, petitioners assail the creation of a congressional oversight

committee on the ground that it violates the doctrine of separation of
powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation of the
congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor
General, question the petition for being premature as there is no actual case
or controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Court's jurisdiction. Nevertheless,
respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation
that the reward system will breed mercenaries is mere speculation and does
not suffice to invalidate the law. Seen in conjunction with the declared
objective of RA 9335, the law validly classifies the BIR and the BOC because
the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient
standard that will guide the executive in the implementation of its
provisions. Lastly, the creation of the congressional oversight committee
under the law enhances, rather than violates, separation of powers. It
ensures the fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the conflicting contentions of the
parties, the Court finds that petitioners have failed to overcome the
presumption of constitutionality in favor of RA 9335, except as shall
hereafter be discussed.
ACTUAL CASE AND RIPENESS
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial adjudication. 10 A
closely related requirement is ripeness, that is, the question must be ripe for
adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the
individual challenging it. 11 Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the case or an
injury to himself that can be redressed by a favorable decision of the Court.
12 IaHAcT
In this case, aside from the general claim that the dispute has ripened
into a judicial controversy by the mere enactment of the law even without
any further overt act, 13 petitioners fail either to assert any specific and
concrete legal claim or to demonstrate any direct adverse effect of the law
on them. They are unable to show a personal stake in the outcome of this
case or an injury to themselves. On this account, their petition is
procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality in
favor of the law. And where an action of the legislative branch is alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. 14
ACCOUNTABILITY OF
PUBLIC OFFICERS
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism, and justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for
his own personal gain but for the benefit of the public for whom he holds it in
trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and
employees have the duty to be responsive to the needs of the people they
are called upon to serve. caIDSH
Public officers enjoy the presumption of regularity in the performance

of their duties. This presumption necessarily obtains in favor of BIR and BOC
officials and employees. RA 9335 operates on the basis thereof and
reinforces it by providing a system of rewards and sanctions for the purpose
of encouraging the officials and employees of the BIR and the BOC to exceed
their revenue targets and optimize their revenue-generation capability and
collection. 15
The presumption is disputable but proof to the contrary is required to
rebut it. It cannot be overturned by mere conjecture or denied in advance
(as petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.
Petitioners' claim that the implementation of RA 9335 will turn BIR and
BOC officials and employees into "bounty hunters and mercenaries" is not
only without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal one. 16
To invalidate RA 9335 based on petitioners' baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the
executive which approved it.
Public service is its own reward. Nevertheless, public officers may by
law be rewarded for exemplary and exceptional performance. A system of
incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes and
reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.
In United States v. Matthews, 17 the U.S. Supreme Court validated a law
which awards to officers of the customs as well as other parties an amount
not exceeding one-half of the net proceeds of forfeitures in violation of the
laws against smuggling. Citing Dorsheimer v. United States, 18 the U.S.
Supreme Court said:
The offer of a portion of such penalties to the collectors is to
stimulate and reward their zeal and industry in detecting fraudulent
attempts to evade payment of duties and taxes. HaTSDA
In the same vein, employees of the BIR and the BOC may by law be
entitled to a reward when, as a consequence of their zeal in the enforcement
of tax and customs laws, they exceed their revenue targets. In addition, RA
9335 establishes safeguards to ensure that the reward will not be claimed if
it will be either the fruit of "bounty hunting or mercenary activity" or the
product of the irregular performance of official duties. One of these
precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the
BIR and the BOC. — The officials, examiners, and employees of the
[BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to
exercise extraordinary diligence in the performance of their duties
shall be held liable for any loss or injury suffered by any business
establishment or taxpayer as a result of such violation, negligence,
abuse, malfeasance, misfeasance or failure to exercise extraordinary
diligence.
EQUAL PROTECTION
Equality guaranteed under the equal protection clause is equality
under the same conditions and among persons similarly situated; it is
equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be
accomplished. 19 When things or persons are different in fact or
circumstance, they may be treated in law differently. In Victoriano v. Elizalde
Rope Workers' Union, 20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the [S]tate.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does
not require that things which are different in fact be treated
in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory
within which it is to operate.
CDTSEI
The equal protection of the laws clause of the Constitution

allows classification. Classification in law, as in the other departments
of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification
should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of
the law; that it must not be limited to existing conditions
only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the
purpose of enacting laws over matters within its jurisdiction, the state
is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary that
the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation is
addressed to evils as they may appear. 21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary. 22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR
and the BOC. 23 Since the subject of the law is the revenue-generation
capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because they have the
common distinct primary function of generating revenues for the national
government through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. — The Bureau of
Internal Revenue, which shall be headed by and subject to the
supervision and control of the Commissioner of Internal Revenue, who
shall be appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions: SECcIH
(1) Assess and collect all taxes, fees and charges and
account for all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law. 24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. — The Bureau of Customs
which shall be headed and subject to the management and control of
the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:
(1) Collect customs duties, taxes and the corresponding

fees, charges and penalties;
(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and
customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities
in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units; cAEaSC
(9) Perform such other functions as may be provided by law. 25
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions — taxation. Indubitably,
such substantial distinction is germane and intimately related to the purpose
of the law. Hence, the classification and treatment accorded to the BIR and
the BOC under RA 9335 fully satisfy the demands of equal protection. SHTEaA
UNDUE DELEGATION
Two tests determine the validity of delegation of legislative power: (1)
the completeness test and (2) the sufficient standard test. A law is complete
when it sets forth therein the policy to be executed, carried out or
implemented by the delegate. 26 It lays down a sufficient standard when it
provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from
running riot. 27 To be sufficient, the standard must specify the limits of the
delegate's authority, announce the legislative policy and identify the
conditions under which it is to be implemented. 28
RA 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies in
carrying out the provisions of the law. Section 2 spells out the policy of the
law:
SEC. 2. Declaration of Policy . — It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by
providing for a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund and a Revenue Performance
Evaluation Board in the above agencies for the purpose of
encouraging their officials and employees to exceed their revenue
targets.
Section 4 "canalized within banks that keep it from overflowing" 29 the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. — A Rewards and
Incentives Fund, hereinafter referred to as the Fund, is hereby
created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as
determined by the Development Budget and Coordinating
Committee (DBCC), in the following percentages:
Excess of Collection Percent (%) of the
of the Excess the Excess Collection to
Revenue Targets Accrue to the Fund
30% or below — 15%
More than 30% — 15% of the first

30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year

immediately following the year when the revenue collection target
was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated
revenue collection expected of the BIR and the BOC for a
given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to
Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies' revenue targets as allocated among its
revenue districts in the case of the BIR, and the collection districts in
the case of the BOC. CEDScA
Revenue targets are based on the original estimated revenue

collection expected respectively of the BIR and the BOC for a given fiscal
year as approved by the DBCC and stated in the BESF submitted by the
President to Congress. 30 Thus, the determination of revenue targets does
not rest solely on the President as it also undergoes the scrutiny of the
DBCC.
On the other hand, Section 7 specifies the limits of the Board's
authority and identifies the conditions under which officials and employees
whose revenue collection falls short of the target by at least 7.5% may be
removed from the service:
SEC. 7. Powers and Functions of the Board. — The Board in the
agency shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from
service officials and employees whose revenue collection falls
short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors
affecting the level of collection as provided in the rules and
regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive
and procedural due process: Provided, That the following
exemptions shall apply:
1. Where the district or area of responsibility is newly-
created, not exceeding two years in operation, as has no
historical record of collection performance that can be used as
basis for evaluation; and
2. Where the revenue or customs official or employee is a
recent transferee in the middle of the period under
consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue
targets: Provided, however, That when the district or area of
responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought
about by natural calamities or force majeure or economic
causes as may be determined by the Board, termination shall
be considered only after careful and proper review by the
Board. IAETSC
(c) To terminate personnel in accordance with the criteria

adopted in the preceding paragraph: Provided, That such decision
shall be immediately executory: Provided, further, That the
application of the criteria for the separation of an official or
employee from service under this Act shall be without
prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the
Code of Conduct and Ethical Standards of Public Officers and
Employees and the Anti-Graft and Corrupt Practices Act;
Clearly, RA 9335 in no way violates the security of tenure of officials

and employees of the BIR and the BOC. The guarantee of security of tenure
only means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is
accorded the employee. 31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target
by at least 7.5%) with due consideration of all relevant factors affecting the
level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for disciplinary
action under civil service laws. 32 The action for removal is also subject to
civil service laws, rules and regulations and compliance with substantive and
procedural due process.
At any rate, this Court has recognized the following as sufficient
standards: "public interest", "justice and equity", "public convenience and
welfare" and "simplicity, economy and welfare". 33 In this case, the declared
policy of optimization of the revenue-generation capability and collection of
the BIR and the BOC is infused with public interest. STcDIE
SEPARATION OF POWERS
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. — There is
hereby created a Joint Congressional Oversight Committee composed
of seven Members from the Senate and seven Members from the
House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators
representing the minority. The Members from the House of
Representatives shall be appointed by the Speaker with at least two
members representing the minority. After the Oversight Committee
will have approved the implementing rules and regulations (IRR) it
shall thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created
for the purpose of approving the implementing rules and regulations (IRR)
formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it
approved the said IRR. From then on, it became functus officio and ceased to
exist. Hence, the issue of its alleged encroachment on the executive function
of implementing and enforcing the law may be considered moot and
academic.
This notwithstanding, this might be as good a time as any for the Court
to confront the issue of the constitutionality of the Joint Congressional
Oversight Committee created under RA 9335 (or other similar laws for that
matter). ATDHSC
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight in Macalintal v. Commission on Elections
34 is illuminating:
Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all
activities undertaken by Congress to enhance its
understanding of and influence over the implementation of
legislation it has enacted. Clearly, oversight concerns post-
enactment measures undertaken by Congress: (a) to monitor
bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to
eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to
assess executive conformity with the congressional
perception of public interest.
The power of oversight has been held to be intrinsic in the
grant of legislative power itself and integral to the checks and
balances inherent in a democratic system of government. . . .
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential
accumulation of power" by the executive branch. By the beginning of
the 20th century, Congress has delegated an enormous amount of
legislative authority to the executive branch and the administrative
agencies. Congress, thus, uses its oversight power to make sure that
the administrative agencies perform their functions within the
authority delegated to them. . . .
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its
oversight powers may be divided into three categories, namely:
scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity
of attention to administrative operations. Its primary purpose is to
determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may
request information and report from the other branches of
government. It can give recommendations or pass resolutions for
consideration of the agency involved. AaCTID
xxx xxx xxx

b. Congressional investigation
While congressional scrutiny is regarded as a passive process of
looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts. The power of
Congress to conduct investigation is recognized by the 1987
Constitution under section 21, Article VI, . . .
c. Legislative supervision
The third and most encompassing form by which Congress
exercises its oversight power is thru legislative supervision.
"Supervision" connotes a continuing and informed awareness on the
part of a congressional committee regarding executive operations in
a given administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in
order to influence future executive branch performance,
congressional supervision allows Congress to scrutinize the exercise
of delegated law-making authority, and permits Congress to retain
part of that delegated authority.
Congress exercises supervision over the executive agencies
through its veto power. It typically utilizes veto provisions when
granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions require
the President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after the
expiration of a certain period of time, only if Congress does not
affirmatively disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed regulation will
become law if Congress affirmatively approves it. EHCDSI
Supporters of legislative veto stress that it is necessary to

maintain the balance of power between the legislative and the
executive branches of government as it offers lawmakers a way to
delegate vast power to the executive branch or to independent
agencies while retaining the option to cancel particular exercise of
such power without having to pass new legislation or to repeal
existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the
activities of unelected administrative agencies. One proponent thus
explains:
It is too late to debate the merits of this delegation policy:
the policy is too deeply embedded in our law and practice. It
suffices to say that the complexities of modern government
have often led Congress-whether by actual or perceived
necessity — to legislate by declaring broad policy goals and
general statutory standards, leaving the choice of policy options
to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the
judgment of parties who may or may not have participated in or
agreed with the development of those aims. Consequently,
absent safeguards, in many instances the reverse of our
constitutional scheme could be effected: Congress proposes,
the Executive disposes. One safeguard, of course, is the
legislative power to enact new legislation or to change existing
law. But without some means of overseeing post enactment
activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative
intervention is appropriate.
Its opponents, however, criticize the legislative veto a s undue
encroachment upon the executive prerogatives. They urge that
any post-enactment measures undertaken by the legislative
branch should be limited to scrutiny and investigation; any
measure beyond that would undermine the separation of
powers guaranteed by the Constitution. They contend that
legislative veto constitutes an impermissible evasion of the
President's veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents counter
that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and
congressional committee investigations allow Congress to scrutinize
only the exercise of delegated law-making authority. They do not
allow Congress to review executive proposals before they take effect
and they do not afford the opportunity for ongoing and binding
expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or
disapproval of "subordinate law" or those enacted by the executive
branch pursuant to a delegation of authority by Congress. They
further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its
chambers". In an era of delegated authority, they point out that
legislative veto "is the most efficient means Congress has yet devised
to retain control over the evolution and implementation of its policy
as declared by statute". SAHEIc
In Immigration and Naturalization Service v. Chadha, the U.S.

Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the
Immigration and Nationality Act. The United States House of
Representatives passed a resolution vetoing the suspension pursuant
to § 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular
deportable alien to remain in the United States. The immigration
judge reopened the deportation proceedings to implement the House
order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the alien's appeal, holding that it had no power to
declare unconstitutional an act of Congress. The United States Court
of Appeals for Ninth Circuit held that the House was without
constitutional authority to order the alien's deportation and that §
244(c)(2) violated the constitutional doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2)
unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates
the presentment clause and bicameralism. It held that the one-house
veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution
requiring the passage by a majority of both Houses and presentment
to the President. . . .
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and
the Federal Trade Commission Improvement Act of 1980. Following
this precedence, lower courts invalidated statutes containing
legislative veto provisions although some of these provisions required
the approval of both Houses of Congress and thus met the
bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised. 35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck down
the provision in RA 9189 (The Overseas Absentee Voting Act of 2003)
creating a Joint Congressional Committee. The committee was tasked not
only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the Commission
on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections. 36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines
the constitutional separation of powers. Rather, it is integral to the checks
and balances inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the over-accumulation
of power in the executive branch.
However, to forestall the danger of congressional encroachment
"beyond the legislative sphere", the Constitution imposes two basic and
related constraints on Congress. 37 It may not vest itself, any of its
committees or its members with either executive or judicial power. 38 And,
when it exercises its legislative power, it must follow the "single, finely
wrought and exhaustively considered, procedures" specified under the
Constitution, 39 including the procedure for enactment of laws and
presentment. cECaHA
Thus, any post-enactment congressional measure such as this should

be limited to scrutiny and investigation. In particular, congressional
oversight must be confined to the following:
(1) scrutiny based primarily on Congress' power of appropriation

and the budget hearings conducted in connection with it, its
power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to
their departments and its power of confirmation 40 and
(2) investigation and monitoring 41 of the implementation of laws

pursuant to the power of Congress to conduct inquiries in aid
of legislation. 42
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of
a congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law
initially delegated broad powers. 43 It radically changes the design or
structure of the Constitution's diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own laws. 44
Congress has two options when enacting legislation to define national
policy within the broad horizons of its legislative competence. 45 It can itself
formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with
those standards. 46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature. 47
Thus, what is left for the executive branch or the concerned administrative
agency when it formulates rules and regulations implementing the law is to
fill up details (supplementary rule-making) or ascertain facts necessary to
bring the law into actual operation (contingent rule-making). 48 CSDcTH
Administrative regulations enacted by administrative agencies to

implement and interpret the law which they are entrusted to enforce have
the force of law and are entitled to respect. 49 Such rules and regulations
partake of the nature of a statute 50 and are just as binding as if they have
been written in the statute itself. As such, they have the force and effect of
law and enjoy the presumption of constitutionality and legality until they are
set aside with finality in an appropriate case by a competent court. 51
Congress, in the guise of assuming the role of an overseer, may not pass
upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the Constitution.
In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA
9335, Congress arrogated judicial power unto itself, a power exclusively
vested in this Court by the Constitution.
CONSIDERED OPINION OF
MR. JUSTICE DANTE O. TINGA
Moreover, the requirement that the implementing rules of a law be
subjected to approval by Congress as a condition for their effectivity violates
the cardinal constitutional principles of bicameralism and the rule on
presentment. 52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. (emphasis
supplied)
Legislative power (or the power to propose, enact, amend and repeal
laws) 53 is vested in Congress which consists of two chambers, the Senate
and the House of Representatives. A valid exercise of legislative power
requires the act of both chambers. Corrollarily, it can be exercised neither
solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-
chamber legislative veto and a congressional committee legislative veto are
invalid. EHTCAa
Additionally, Section 27 (1), Article VI of the Constitution provides:

Section 27. ( 1 ) Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he
approves the same, he shall sign it, otherwise, he shall veto it and
return the same with his objections to the House where it originated,
which shall enter the objections at large in its Journal and proceed to
reconsider it. If, after such reconsideration, two-thirds of all the
Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the
names of the members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.
(emphasis supplied) SCcHIE
Every bill passed by Congress must be presented to the President for

approval or veto. In the absence of presentment to the President, no bill
passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming
that legislative veto is a valid legislative act with the force of law, it cannot
take effect without such presentment even if approved by both chambers of
Congress.
In sum, two steps are required before a bill becomes a law. First, it
must be approved by both Houses of Congress. 54 Second, it must be
presented to and approved by the President. 55 As summarized by Justice
Isagani Cruz 56 and Fr. Joaquin G. Bernas, S.J., 57 the following is the
procedure for the approval of bills:
A bill is introduced by any member of the House of
Representatives or the Senate except for some measures that must
originate only in the former chamber.
The first reading involves only a reading of the number and title
of the measure and its referral by the Senate President or the Speaker
to the proper committee for study.
The bill may be "killed" in the committee or it may be
recommended for approval, with or without amendments, sometimes
after public hearings are first held thereon. If there are other bills of
the same nature or purpose, they may all be consolidated into one
bill under common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second
reading. It is at this stage that the bill is read in its entirety,
scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.
The bill as approved on second reading is printed in its final
form and copies thereof are distributed at least three days before the
third reading. On the third reading, the members merely register their
votes and explain them if they are allowed by the rules. No further
debate is allowed. ATHCDa
Once the bill passes third reading, it is sent to the other

chamber, where it will also undergo the three readings. If there are
differences between the versions approved by the two chambers, a
conference committee 58 representing both Houses will draft a
compromise measure that if ratified by the Senate and the House of
Representatives will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the
Congress, thereafter authenticated with the signatures of the Senate
President, the Speaker, and the Secretaries of their respective
chambers. . . 59
The President's role in law-making.
The final step is submission to the President for approval. Once
approved, it takes effect as law after the required publication. 60
Where Congress delegates the formulation of rules to implement the
law it has enacted pursuant to sufficient standards established in the said
law, the law must be complete in all its essential terms and conditions when
it leaves the hands of the legislature. And it may be deemed to have left the
hands of the legislature when it becomes effective because it is only upon
effectivity of the statute that legal rights and obligations become available to
those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause, 61 the determination
as to when a law takes effect is wholly the prerogative of Congress. 62 As
such, it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the said law.
Before that point, the role of the executive branch, particularly of the
President, is limited to approving or vetoing the law. 63
From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a
provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of the executive
branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down
as unconstitutional. While there may be similar provisions of other laws that
may be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us. 64 SEcADa
The next question to be resolved is: what is the effect of the

unconstitutionality of Section 12 of RA 9335 on the other provisions of the
law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause . — If any provision of this Act is
declared invalid by a competent court, the remainder of this Act or
any provision not affected by such declaration of invalidity shall
remain in force and effect.
In Tatad v. Secretary of the Department of Energy, 65 the Court laid
down the following rules:
The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the valid
portion, if separable from the invalid, may stand and be enforced. The
presence of a separability clause in a statute creates the presumption
that the legislature intended separability, rather than complete nullity
of the statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the
legislative intent. . . .
The exception to the general rule is that when the parts of a
statute are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the
statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the
legislature to isolate and detach any invalid provision from the other
provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without Section 12,
the remaining provisions still constitute a complete, intelligible and valid law
which carries out the legislative intent to optimize the revenue-generation
capability and collection of the BIR and the BOC by providing for a system of
rewards and sanctions through the Rewards and Incentives Fund and a
Revenue Performance Evaluation Board. CAcDTI
To be effective, administrative rules and regulations must be published

in full if their purpose is to enforce or implement existing law pursuant to a
valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation 66 and became effective 15 days
thereafter. 67 Until and unless the contrary is shown, the IRR are presumed
valid and effective even without the approval of the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of
RA 9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is declared
UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of
the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of
RA 9335, the rest of the provisions remain in force and effect.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio-
Morales, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de
Castro and Brion, JJ., concur.
Carpio, J., see separate concurring opinion.
Tinga, J., please see concurring opinion.
Separate Opinions
CARPIO, J., concurring:
I concur with the majority opinion penned by Justice Renato C. Corona.

However, I wish to explain further why the last sentence in Section 12 of
Republic Act No. 9335 (RA 9335), requiring the congressional oversight
committee to approve the implementing rules and regulations of RA 9335, is
unconstitutional.
There are three compelling grounds why the approval requirement in
Section 12 is unconstitutional. First, the approval requirement violates the
separation of powers among the Legislature, Executive and Judiciary.
Second, the approval requirement involves the delegation to a congressional
oversight committee of the power to enact laws that only the full two
chambers of Congress can exercise. Third, the approval requirement violates
the constitutional provision that bills enacted into law by Congress be
presented to the President for approval or veto.
Section 12 of RA 9335 creates a joint congressional oversight
committee (Oversight Committee) with the power to approve the
implementing rules and regulations (IRR) of RA 9335. Section 12
states:
Section 12. Joint Congressional Oversight Committee. — There
is hereby created a Joint Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by
the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing
the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall
thereafter become functus officio and therefore cease to
exist. (Emphasis supplied)
HAECID
Under Section 32 of RA 9335, the Department of Finance, Department of

Budget and Management, National Economic and Development Authority,
Bureau of Internal Revenue, Bureau of Customs, and the Civil Service
Commission shall jointly draft the IRR. The IRR cannot take effect
without the approval of the Oversight Committee.
Implementation of the law is indisputably an Executive function. To
implement the law, the Executive must necessarily adopt implementing rules
to guide executive officials how to implement the law, as well as to guide the
public how to comply with the law. These guidelines, known as implementing
rules and regulations, can only emanate from the Executive because the
Executive is vested with the power to implement the law. Implementing rules
and regulations are the means and methods on how the Executive will
execute the law after the Legislature has enacted the law.
The Executive cannot implement the law without adopting
implementing rules and regulations. The power of the Executive to
implement the law necessarily includes all power "necessary and proper"
1 to implement the law, including the power to adopt implementing rules and
regulations. The grant of executive power to the President in the Constitution
is a grant of all executive power. 2 The power to adopt implementing rules is
thus inherent in the power to implement the law. The power to adopt
implementing rules and regulations is law-execution, not law-making. 3
Within the sphere of its constitutional mandate to execute the law, the
Executive possesses the power to adopt implementing rules to carry out its
Executive function. This applies also to the Judiciary, which also possesses
the inherent power to adopt rules to carry out its Judicial function.
The Constitution mandates the President to "ensure that the laws be
faithfully executed". 4 Without the power to adopt implementing rules and
regulations, the Executive cannot ensure the faithful execution of the law.
Obviously, the President cannot personally execute the law but must rely on
subordinate executive officials. The President is inutile without the power to
prescribe rules on how subordinate executive officials should execute the
law.
Thus, the President must necessarily give instructions to subordinate
executive officials and the public — in the form of implementing rules and
regulations — on how the law should be executed by subordinate officials
and complied with by the public. If the Legislature can withhold from the
Executive this power to adopt implementing rules and regulations in the
execution of the law, the Executive is made subordinate to the Legislature,
not its separate, co-ordinate and co-equal branch in Government. ACHEaI
The inherent power of the Executive to adopt rules and regulations to

execute or implement the law is different from the delegated legislative
power to prescribe rules. The inherent power of the Executive to adopt rules
to execute the law does not require any legislative standards for its exercise
while the delegated legislative power requires sufficient legislative standards
for its exercise. 5
For example, Congress can delegate to the President the inherently
legislative power to fix tariff rates. However, the President can exercise this
delegated legislative power only within "specified limits" 6 prescribed by
Congress. The "specified limits" and other limitations prescribed by Congress
are the standards that the President must comply in exercising the
delegated legislative power. Once the President complies with the legislative
standards in fixing the tariff rates, he has fully exercised the delegated
legislative power. This does not prevent, however, the President from
adopting rules to execute or implement the delegated legislative power that
he has fully exercised. These implementing rules are adopted by the
President pursuant to the inherent power of the Executive to execute the
law.
There are laws that expressly provide for the Executive or its agencies
to adopt implementing rules. There are also laws that are silent on this
matter. It does not mean that laws expressly providing for the issuance of
implementing rules automatically delegate legislative powers to the
Executive. While providing for the issuance of implementing rules, the law
may not actually delegate any legislative power for the issuance of such
rules. It does not also mean that laws silent on the issuance of implementing
rules automatically prevent the Executive from adopting implementing rules.
If the law is silent, the necessary implementing rules may still be issued
pursuant to the President's inherent rule-making power to execute the law.
Whether the rule-making power by the Executive is a delegated
legislative power or an inherent Executive power depends on the nature of
the rule-making power involved. If the rule-making power is inherently a
legislative power, such as the power to fix tariff rates, the rule-making power
of the Executive is a delegated legislative power. In such event, the
delegated power can be exercised only if sufficient standards are prescribed
in the law delegating the power.
If the rules are issued by the President in implementation or execution
of self-executory constitutional powers vested in the President, the rule-
making power of the President is not a delegated legislative power. The
most important self-executory constitutional power of the President
is the President's constitutional duty and mandate to "ensure that
the laws be faithfully executed." The rule is that the President can
execute the law without any delegation of power from the legislature.
Otherwise, the President becomes a mere figure-head and not the sole
Executive of the Government.
Only if the law is incomplete, as when there are details to be filled in by
the Executive under specified legislative standards before the law can be
implemented, is the issuance of rules by the Executive anchored on the
delegation of legislative power. Once the law is complete, that is, the
Executive has issued the rules filling in the details of the law, the Executive
may still issue rules to execute the complete law based now on the
Executive's inherent power to execute the law. DaESIC
Thus, Chapter 2, Title 1, Book III of the Administrative Code of 1987, on

the Ordinance Power of the Executive, provides:
Chapter 2 — Ordinance Power
Section 2. Executive Orders. — Acts of the President providing

f o r rules of a general or permanent character in
implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Section 3. Administrative Orders. — Acts of the President which
relate to particular aspects of governmental operations in pursuance
of his duties as administrative head shall be promulgated in
administrative orders.EaIDAT
Section 4. Proclamations. — Acts of the President fixing a date

or declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.
Section 5. Memorandum Orders. — Acts of the President on
matters of administrative detail or of subordinate or temporary
interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Section 6. Memorandum Circulars. — Acts of the President on
matters relating to internal administration, which the President
desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars. (Emphasis
supplied; italicization in the original)
Section 7. General or Special Orders. — Acts and commands of
the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special orders.
(Emphasis supplied; italicization in the original)
These provisions of the Revised Administrative Code do not grant, but,
merely recognize the President's Ordinance Power and enjoin that such
power shall be promulgated according to certain nomenclatures. The
President's Ordinance Power is the Executive's rule-making authority in
implementing or executing constitutional or statutory powers.
Indisputably, there are constitutional powers vested in the
Executive that are self-executory. The President may issue "rules of a
general or permanent character in implementation or execution" of such
self-executory constitutional powers . The power to issue such rules is
inherent in Executive power. Otherwise, the President cannot execute self-
executory constitutional provisions without a grant of delegated power from
the Legislature, a legal and constitutional absurdity.
The President may even delegate to subordinate executive officials the
President's inherent executive power to issue rules and regulations. Thus,
pursuant to the President's self-executory power to implement the laws, the
President has issued Executive and Administrative orders authorizing
subordinate executive officials to issue implementing rules and regulations
without reference to any legislative grant to do so, as follows: IHEAcC
1. Administrative Order No. 175 dated 2 April 2007 on Strengthening

the Powers of the Secretary of Justice over the Bureau of Immigration,
Section 3 of which provides:
Section 3. Implementing Rules and Regulations . — The
Secretary of Justice shall issue the Implementing Rules and
Regulations covering this Administrative Order.
2. Executive Order No. 269 dated 12 January 2004 on Creating the
Commission on Information and Communications Technology in the Office of
the President, Section 8 of which provides:
Section 8. Implementing Rules and Regulations . — The
Chairman shall promulgate and issue such rules, regulations and
other issuances within 60 days from the approval of this Executive
Order as may be necessary to ensure the effective implementation of
the provisions of this Executive Order.
3. Administrative Order No. 402 dated 2 June 1998 on the
Establishment of a Medical Check-Up Program for Government Personnel,
Section 6 of which provides:
Section 6. Implementing Rules and Regulations . — The DOH,
Department of Budget and Management (DBM) and the PHIC shall
jointly formulate and issue the implementing rules and regulations for
this program.
4. Administrative Order No. 357 dated 21 August 1997 on the Creation
of the Civil Aviation Consultative Council, Section 6 of which provides:
Section 6. Implementing Rules and Regulations . — The Council
shall immediately formulate and adopt the necessary implementing
rules and regulations for the effective and efficient implementation of
the provisions of this Order.
5. Executive Order No. 396 dated 30 January 1997 Providing the
Institutional Framework for the Administration of the Standards of Training,
Certification and Watchkeeping for Seafarers in the Philippines, Section 4 of
which provides: IaDSEA
Section 4. Implementing Rules and Regulations . — The STCW

Executive Committee shall immediately convene to prepare and
approve the Implementing Rules and Regulations for the effective
implementation of this Order.
6. Administrative Order No. 296 dated 11 October 1996 on the
Establishment of Customs Clearance Areas in Special Economic and/or
Freeport Zones, Section 3 of which provides:
Section 3. Implementing Rules and Regulations . — The BOC
shall issue the necessary implementing rules and regulations for the
operational procedures of the CCA, in consultation with the Zone
authorities and concerned agencies.
7. Executive Order No. 309 dated 11 November 1987 Reorganizing the
Peace and Order Council, Section 5 of which provides:
Section 5. Implementing Rules and Regulations . — The National
Peace and Order Council shall issue appropriate implementing rules
and regulations to carry out this Order. CHcESa
To hold that the President has no inherent power to issue implementing

rules and regulations in the exercise of the power to execute the laws will
result in the mass invalidation of the foregoing Executive and Administrative
Orders, and many more with similar provisions. This will cripple the
President's self-executory power to execute the laws and render the
President inutile.
In the present case, Section of 11 of RA 9335, the provision dealing on
the issuance of the rules and regulations of RA 9335, states:
Section 11. Rules and Regulations . — The DOF, DBM, NEDA,
BIR, BOC and CSC shall jointly issue the rules and regulations of this
Act within thirty days after its effectivity.
There is nothing in Section 11 of RA 9335 that delegates to the named
agencies any legislative power. There are also no legislative standards
prescribed its Section 11 or in other provisions of RA 9335 governing the
issuance of the rules and regulations of RA 9335. Section 11 merely provides
that the named agencies "shall jointly issue the rules and regulations" of RA
9335. Thus, Section 11 of RA 9335 cannot be construed as a delegation of
legislative power.
On the other hand, Section 7 (a) of RA 9335 delegates to the Revenue
Performance and Evaluation Board (Board) the power to prescribe rules and
regulations, as follows:
Section 7. Powers and Functions of the Board. — The Board in
the agency shall have the following powers and functions:
(a) To prescribe the rules and regulations for the allocation,

distribution and release of the Fund due to the agency as
provided for in Section 4 and 5 of this Act: Provided,
That the rewards under this Act may also take the form of
non-monetary benefits;
xxx xxx xxx. (Emphasis Supplied)
Section 7 (a) of RA 9335 is a delegation of legislative power to the Board in

two agencies, the Bureau of Internal Revenue and the Bureau of Customs.
The specified standards for the Board's exercise of the delegated legislative
power are found in Sections 4 and 5 7 of RA 9335 as stated in Section 7 (a).
However, the Board in Section 7 (a) of RA 9335 is different from the
agencies in Section 11 of RA 9335 that will issue the rules and regulations of
RA 9335. First, the members of the Board are different from the agencies
named in Section 11. Second, the functions of the Board are different from
the functions of the agencies named in Section 11. Third, RA 9335 does not
require the rules and regulations issued by the Board to be approved by the
Oversight Committee. DAaIEc
Indeed, RA 9335 is an example of a law that contains a delegation of

legislative power to prescribe rules based on specified legislative standards.
This is exemplified by Section 7 (a). RA 9335 is also an example of a law that
recognizes the inherent power of the Executive to issue implementing rules
and regulations to execute the law, which becomes complete after the
delegated power in Section 7 (a) is exercised by the Board. This is
exemplified by Section 11.
In any event, whether the rules are issued by Executive agencies
pursuant to a delegated legislative power or pursuant to the Executive's
inherent power to execute the law, the result is the same: the Legislature
cannot approve or disapprove such rules and regulations promulgated by
executive agencies. The adoption of such rules and regulations is purely an
Executive function, whether pursuant to a delegated legislative power or
pursuant to the Executive's inherent power.
The delegated legislative power, often referred to as regulatory power
of executive agencies, is not inherently an Executive power. However, once
delegated in a law, the exercise of the delegated legislative power becomes
a purely Executive function. The Legislature cannot interfere in such function
except through another law.
The well-entrenched rule is that Legislative officers cannot exercise
Executive functions. A law that invests Executive functions on Legislative
officers is unconstitutional for violation of the separation of powers. In
Springer v. Government of the Philippine Islands, 8 the U.S. Supreme Court
held:
Legislative power, as distinguished from executive power, is the
authority to make laws, but not to enforce them or appoint the
agents charged with the duty of such enforcement. The latter are
executive functions. . . . . cSCTEH
Not having the power of appointment, unless expressly granted

or incidental to its powers, the Legislature cannot ingraft executive
duties upon a legislative office, since that would be to usurp the
power of appointment by indirection, though the case might be
different if the additional duties were devolved upon an appointee of
the executive. Here the members of the Legislature who constitute a
majority of the 'board' and 'committee', respectively, are not charged
with the performance of any legislative functions or with the doing of
anything which is in aid of the performance of any such functions by
the Legislature. Putting aside for the moment the question whether
the duties devolved upon these members are vested by the Organic
Act in the Governor General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that
they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the
remaining one of the three among which the powers of government
are divided. (Citations omitted)
The power to adopt the IRR of RA 9335 is an Executive function. By
requiring prior approval of the IRR by the Oversight Committee, Section 12
engrafts Executive functions on the Oversight Committee. This is a clear
violation of the separation of powers.
The Legislature can intervene in the execution of the law only by
enacting another law amending or repealing the act of the Executive. Any
intervention by the Legislature other than through legislation is an
encroachment on Executive power in violation of the separation of powers.
Once the Legislature enacts a bill into law and presents it to the President,
its law-making function is complete.
What happens to the law thereafter becomes the domain of the
Executive and the Judiciary. What the Legislature can do is to investigate or
oversee the implementation of the law for the purpose of enacting remedial
legislation. The Legislature can also withhold budgetary appropriation
necessary to implement the law. However, the Legislature cannot interpret,
expand, restrict, amend or repeal the law except through a new legislation.
The approval requirement in Section 12 of RA 9335 is a classic form of
the so-called legislative veto. The legislative veto is a device for the
Legislature to usurp Executive or Judicial power in violation of the separation
of powers. An American textbook writer explains the legislative veto in this
manner: SCADIT
Congress, in an attempt to maintain more control over the

President and over regulations promulgated by agencies of the
federal government's executive branch, has in the past incorporated
into legislation a provision known as the "legislative veto" or the
"congressional veto". Congress sought by statute to give itself what
the Constitution gives to the President. Congress typically utilized
veto provisions when granting the President or an executive agency
the power to promulgate regulations with the force of law. These
provisions required the President or an agency official to
present the proposed regulations to Congress, which retained
a "right" to approve or disapprove any regulation before they
take effect. 9 (Emphasis supplied)
In the United States, the constitutionality of the legislative veto was
resolved in the 1983 case of Immigration and Naturalization Service (INS) v.
Chadha 10 where the U.S. Supreme Court declared legislative vetoes
unconstitutional for violation of the Constitution's bicameralism and
presentment provisions. Legislative vetoes are deemed legislative acts
requiring compliance with the bicameralism and presentment provisions.
Legislative acts are acts intended to affect the legal rights, obligations,
relations or status of persons or entities outside the Legislature. 11
Bicameralism requires both chambers of Congress to act in approving
legislation and Congress cannot delegate this power to only one chamber, or
to a committee of either or both chambers. Presentment requires Congress
to present to the President for approval or veto a legislation before it
becomes law.
Thus, Chief Justice Warren Burger, speaking for the U.S. Supreme Court
in Chadha, declared:
[T]he bicameral requirement, the Presentment Clauses, the
President's veto, and Congress' power to override a veto were
intended to erect enduring checks on each Branch and to protect the
people from the improvident exercise of power by mandating certain
prescribed steps. To preserve those checks, and maintain the
separation of powers, the carefully defined limits on the power of
each Branch must not be eroded. DcCIAa
xxx xxx xxx

The choices we discern as having been made in the
Constitutional Convention impose burdens on governmental
processes that often seem clumsy, inefficient, even unworkable, but
those hard choices were consciously made by men who had lived
under a form of government that permitted arbitrary governmental
acts to go unchecked. There is no support in the Constitution or
decisions of this Court for the proposition that the cumbersomeness
and delays often encountered in complying with explicit
Constitutional standards may be avoided, either by the Congress or
by the President. . . . With all the obvious flaws of delay, untidiness,
and potential for abuse, we have not yet found a better way to
preserve freedom than by making the exercise of power subject to
the carefully crafted restraints spelled out in the Constitution.
xxx xxx xxx

We hold that the Congressional veto provision in § 244(c)(2) is .
. . unconstitutional. 12
The eminent constitutionalist Professor Laurence H. Tribe explains the
Chadha ruling in this wise:
In INS v. Chadha, the Supreme Court held that all actions taken
by Congress that is "legislative" in "character" must be taken in
accord with the "single, finely wrought and exhaustively considered
procedure" set forth in the "explicit and unambiguous provisions" of
Article I. In his opinion for the Court, Chief Justice Burger explained
that the Presentment Clause and the bicamerality requirement
constitute crucial structural restraints on the "hydraulic pressure
inherent within [the legislature] to exceed the outer limits of its
power". If the separation of powers is to be more than an "abstract
generalization", the courts must enforce the bicamerality and
presentment rules not only when Congress purports to be legislating
but whenever it takes action that must be deemed "legislative". Since
the legislative veto of Chadha's status as a permanent resident alien
had to be so deemed but was neither approved by both Houses of
Congress, nor presented to the President for signature or veto, it
followed inexorably that it was unconstitutional. 13
CIAHaT
The Chadha ruling "sounded the death knell for nearly 200 other statutory
provisions in which Congress has reserved a legislative veto." 14
Soon after the Chadha decision, the U.S. Supreme Court, in a
memorandum decision, extended the Chadha ruling to bar legislative vetoes
o f executive agency rules and regulations. Thus, in United States
Senate v. Federal Trade Commission, 15 the Court affirmed a Court of
Appeals ruling declaring unconstitutional a provision authorizing a two-
chamber veto of rules and regulations issued by the Federal Trade
Commission. In Process Gas Consumers Group v. Consumer Energy Council
of America, 16 the separation of powers reasoning was applied for the
first time to regulatory agencies. 17 The appellate court ruling affirmed
by the U.S. Supreme Court in Process Gas Consumers Group declares:
We hold that section 202(c) is unconstitutional. The primary
basis of this holding is that the one-house veto violates Article I,
Section 7, both by preventing the President from exercising his veto
power and by permitting legislative action by only one house of
Congress. In addition, we find that the one-house veto
contravenes the separation of powers principle implicit in
Articles I, II, and III because it authorizes the legislature to
share powers properly exercised by the other two branches.
Because we find these bases sufficient to resolve the issue, we do not
reach the undue delegation of powers issue raised by petitioners. 18
(Emphasis Supplied)
The U.S. Supreme Court has adopted the same ruling in the 1991 case
of Metropolitan Washington Airports Authority v. Citizens for the Abatement
of Aircraft Noise. 19 In Metropolitan Washington Airports, the U.S. Supreme
Court categorically applied the separation of powers in this wise:
An Act of Congress authorizing the transfer of operating control
of two major airports from the Federal Government to the
Metropolitan Washington Airports Authority (MWAA) conditioned the
transfer on the creation by MWAA of a unique "Board of Review"
composed of nine Members of Congress and vested with veto
power over decisions made by MWAA's Board of Directors. The
principal question presented is whether this unusual
statutory condition violates the constitutional principle of
separation of powers, as interpreted in INS v. Chadha,
Bowsher v. Synar, and Springer v. Philippine Islands
[citations omitted]. We conclude, as did the Court of Appeals
for the District of Columbia Circuit, that the condition is
unconstitutional. (Emphasis supplied) aCSDIc
Interestingly, Metropolitan Washington Airports cites Springer v.

Philippine Islands, 20 where the U.S. Supreme Court voided, for violation of
the separation of powers, acts of the Philippine Legislature vesting in the
Senate President and House Speaker, in addition to the Governor-General,
the power to vote shares of stock in government-owned corporations. The
U.S. Supreme Court explained the application of the separation of powers in
Metropolitan Washington Airports as follows:
To forestall the danger of encroachment "beyond the legislative
sphere", the Constitution imposes two basic and related constraints
on the Congress. It may not "invest itself or its Members with either
executive power or judicial power". And, when it exercises its
legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified in Article I.
The first constraint is illustrated by the Court's holdings in
Springer v. Philippine Islands and Bowsher v. Synar. Springer involved
the validity of Acts of the Philippine Legislature that authorized a
committee of three-two legislators and one executive-to vote
corporate stock owned by the Philippine Government. Because the
Organic Act of the Philippine Islands incorporated the separation-of-
powers principle, and because the challenged statute authorized two
legislators to perform the executive function of controlling the
management of the government-owned corporations, the Court held
the statutes invalid. Our more recent decision in Bowsher involved a
delegation of authority to the Comptroller General to revise the
federal budget. After concluding that the Comptroller General was in
effect an agent of Congress, the Court held that he could not exercise
executive powers:
To permit the execution of the laws to be vested in an
officer answerable only to Congress would, in practical terms,
reserve in Congress control over the execution of the laws. . . .
The structure of the Constitution does not permit Congress to
execute the laws; it follows that Congress cannot grant to an
officer under its control what it does not possess.
The second constraint is illustrated by our decision in Chadha.
That case involved the validity of a statute that authorized either
House of Congress by resolution to invalidate a decision by the
Attorney General to allow a deportable alien to remain in the United
States. Congress had the power to achieve that result through
legislation, but the statute was nevertheless invalid because
Congress cannot exercise its legislative power to enact laws without
following the bicameral and presentment procedures specified in
Article I. For the same reason, an attempt to characterize the
budgetary action of the Comptroller General in Bowsher as legislative
action would not have saved its constitutionality because Congress
may not delegate the power to legislate to its own agents or to its
own Members. 21 (Citations omitted)
Thus, the well-established jurisprudence in the United States is that
legislative vetoes violate the separation of powers. As Professor Laurence H.
Tribe explains:
The Court has likewise recognized that congressional threats to
the separation of powers are particularly worrisome in that they
possess "stealth" capability: as James Madison "presciently observed,
the legislature 'can with greater facility, mask under complicated and
indirect measures, the encroachments which it makes on the co-
ordinate departments.'" A recent example is the decision in
Metropolitan Washington Airports Authority v. Citizens for the
Abatement of Aircraft Noise, where the Court struck down a
complicated law that conditioned transfer of control of the two
airports near Washington, D.C. from the federal government to local
authorities on the creation by the local authorities of a "Board of
Review" comprising nine Members of Congress and vested with veto
power over decisions made by the local airport agency. The Court
noted that the Constitution imposes two basic restraints on Congress:
( 1 ) it "may not 'invest itself or its members with either
executive or judicial power, '" and (2) "when it exercises its
legislative power, it must follow the 'single, finely wrought and
exhaustively considered procedure' specified in Article I." The Court
explained that it did not need to decide just what sort of federal
power the congressional Board of Review was exercising, because it
was unconstitutional either way. "If the power is executive, the
Constitution does not permit an agent of Congress to
exercise it. If the power is legislative, Congress must exercise
it in conformity with the bicameralism and presentment
requirements of Art. I, § 7.'' 22 (Emphasis supplied) aSTAIH
Even before the Chadha ruling by the U.S. Supreme Court, almost all
state supreme courts had consistently declared as unconstitutional
legislative vetoes for violation of the separation of powers doctrine. As
explained by one writer before the promulgation of the Chadha ruling:
The courts that recently have rejected the one-house or two-
house veto show remarkable consistency in their reasoning. All the
decisions are based on the separation of powers. The
underlying theory is that once the legislature has enacted a statute
delegating authority to an administrative agency, no legislative action
except another statute may nullify or amend the enabling statute or
the agency's action.
This result rests on two premises. First, when an agency takes
action pursuant to an enabling statute, the agency is engaged in the
execution of the laws and is therefore carrying out an executive
function. Although statutorily created administrative agencies are
allowed to perform executive functions, neither the legislature nor
any sub-unit of the legislature may perform such functions. Thus, any
legislative intervention in the execution of the laws by means other
than a statute is an encroachment on the domain of the executive
branch and violates the separation of powers. The second premise is
that, for purposes of this discussion, neither a one-house nor a two-
house resolution of the legislature qualifies as a statute, because
neither is presented to the chief executive for approval or veto;
additionally, a one-house resolution violates the principle of
bicameralism. 23 (Emphasis supplied) HCITAS
Bicameralism is firmly embedded in the 1987 Constitution of the

Philippines. Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum. (Emphasis
supplied)
Legislative power is vested in Congress which consists of two
chambers. Legislative power cannot be exercised solely by one of the two
chambers. This precludes a one-chamber legislative veto because one
chamber alone is not the Congress. The exercise of legislative power
requires the act of both chambers of Congress. Legislative power cannot
also be exercised by a committee of either or both chambers for such a
committee is not the Congress. Consequently, this precludes the
exercise of legislative veto by a congressional committee of either
or both chambers.
Presentment is also firmly embedded in the 1987 Constitution of the
Philippines. Section 27 (1), Article VI of the Constitution states:
Section 27. ( 1 ) Every bill passed by the Congress shall,
before it before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise, he
shall veto it and return the same with his objections to the House
where it originated, which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if approved by two-
thirds of all the Members of that House, it shall become a law. In all
such cases, the votes of each House shall be determined by yeas or
nays, and the names of the Members voting for or against shall be
entered in its Journal. The President shall communicate his veto of
any bill to the House where it originated within thirty days after the
date of receipt thereof; otherwise, it shall become a law as if he had
signed it. (Emphasis supplied) aITECA
Every single bill passed by Congress must be presented to the President for
approval or veto. No bill passed by Congress can become law without such
presentment to the President. In this sense, law-making under the
Constitution is a joint act of the Legislature and the Executive. A legislative
veto, being a legislative act having the force of law, cannot take effect
without such presentment even if both chambers of Congress approve the
legislative veto.
There are, of course, acts of Congress which the Constitution vests
solely to Congress without the requirement of presentment to the President.
For example, under Section 23 (1), Article VI of the Constitution, Congress
has the "sole power" to declare the existence of a state of war. Another
example is Section 8, Article IX-B of the Constitution requiring Congressional
consent before an elective or appointive public officer or employee can
accept any present, emolument, office or title of any kind from a foreign
government. These acts, however, are exceptions to the rule on
presentment.
There are also acts that the Constitution vests on a body composed of
representatives of the two chambers. Under Section 18, Article VI of the
Constitution, the Commission on Appointments is composed of 12
representatives from each chamber. Likewise, there are acts that the
Constitution vests solely on one chamber of Congress. Under Section 21,
Article VII of the Constitution, the Senate alone ratifies treaties entered into
by the President. These acts, however, are exceptions to the rule on
bicameralism.
Finally, one additional reason advanced to justify the legislative veto in
Section 12 is purportedly to insure that the IRR drafted by the executive
agencies and the Civil Service Commission conform to the letter and spirit of
RA 9335. In short, the Oversight Committee will decide whether the
implementing rules are contrary to law. This justification is a usurpation of
the power of the Judicial for only the courts can determine with finality
whether the IRR violate RA 9335. DAaEIc
In view of the foregoing, I vote to PARTIALLY GRANT the petition, and

declare unconstitutional the last sentence of Section 12 of RA 9335 requiring
the IRR to be approved by the Joint Congressional Oversight Committee. I
vote to uphold the constitutionality of the other assailed provisions of RA
9335.
TINGA, J., concurring:
I join Justice Corona's lucid opinion — one of the more legally

significant decisions of this Court of recent years because it concludes for
the first time that legislative vetoes are impermissible in this jurisdiction. I
fully concur with the majority's reasoning for declaring legislative veto as
invalid. Yet even as the ponencia aligns with most of my views, I write
separately to fully explain my viewpoint.
I.
The controversy rests on the so-called "legislative veto", defined by
Tribe as "measures allowing [Congress], or one of its Houses or committees,
to review and revoke the actions of federal agencies and executive
departments". 1 Our Constitution specifically neither prohibits nor allows
legislative vetoes, unlike presidential vetoes, which are formally authorized
under Section 27, Article VI. Until today, Court has likewise declined so far to
pass judgment on the constitutionality of a legislative veto. 2
The Court is unanimous that a legislative veto, such as that contained
in Section 12 of Rep. Act No. 9335 is unconstitutional. Such a ruling would be
of momentous consequence, not only because the issue has never been
settled before, but also because many of our statutes incorporate a similarly
worded provision that empowers members of Congress to approve the
Implementing Rules of various particular laws. Moreover, the invalidation of
legislative vetoes will send a definite signal to Congress that its current
understanding of the extent of legislative powers is awry. aTEACS

Concededly, our ruling will greatly affect the workings of the legislative
branch of government. It would thus be intellectually honest to also consider
the question from the perspective of that branch which is the branch most
rejected by that ruling. Of course, the perspective of the executive should be
reckoned with as well since it has traditionally inveighed against legislative
vetoes. Still, if we are to consider the congressional perspective of the
question, there will emerge important nuances to the question that should
dissuade against any simplistic analysis of the issue.
II.
I have previously intimated that the President, in chartering the extent
of his plenary powers, may be accorded a degree of flexibility for so long as
he is not bound by any specific constitutional proscription. That same degree
of deference should be extended to Congress as well. Thus, I wish to inquire
into whether there is a constitutionally justifiable means to affirm legislative
vetoes.
The emergence of the legislative veto in the United States coincided
with the decline of the non-delegation doctrine, which barred Congress from
delegating its law-making powers elsewhere. 3 Modern jurisprudence has
authorized the delegation of lawmaking powers to administrative agencies,
and there are resulting concerns that there is no constitutional assurance
that the agencies are responsive to the people's will. 4 From that framework,
the legislative veto can be seen as a means of limiting agency rule-making
authority by lodging final control over the implementing rules to Congress.
"But instead of controlling agency policy in advance by laying out a roadmap
in the statute creating the agency, Congress now proposes to control policy
as it develops in notice-and-comment rulemaking, after the agency's expert
staff and interested members of the public have had an opportunity to assist
in its formation." 5 It is a negative check by Congress on policies proposed by
the agencies, and not a means for making policy directly. 6
From the perspective of Congress, the legislative veto affords
maximum consideration to the plenary power of legislation, as it bolsters
assurances that the legislative policy embodied in the statute will be
faithfully executed upon its implementation. The faithful execution of the
laws of the land is a constitutional obligation imposed on the President, 7 yet
as a matter of practice, there could be a difference of opinion between the
executive and legislative branches as to the meaning of the law. The clash
may be especially telling if the President and Congress are politically hostile
with each other, and it bears notice that the legislative veto in the United
States became especially popular beginning in the early 1970s, when the
ties between the Democratic-controlled Congress and the Republican
President Richard Nixon were especially frayed. 8 More recently, the current
U.S. President Bush has had a penchant of attaching "signing statements" to
legislation he has approved, such statements indicating his own
understanding of the bill he is signing into law. The legislative veto, as a
practical matter, allows Congress to prevent a countervailing attempt by the
executive branch to implement a law in a manner contrary to the legislative
intent. DaScAI

There is nothing obnoxious about the policy considerations behind the
legislative veto. Since the courts, in case of conflict, will uphold legislative
intent over the executive interpretation of a law, the legislative veto could
ensure the same judicially-confirmed result without need of elevating the
clash before the courts. The exercise of the legislative veto could also allow
both branches to operate within the grayer areas of their respective
constitutional functions without having to resort to the judicial resolution of
their potentially competing claims. As the future U.S. Supreme Court Justice
Stephen Breyer once wrote:
The [legislative] veto sometimes offers a compromise of
important substantive conflicts embedded deeply in the Constitution.
How are we to reconcile the Constitution's grant to Congress of the
power to declare war with its grant to the President of authority over
the Armed Forces as their Commander in Chief? The War Powers Act
approaches the problem, in part, by declaring that the President
cannot maintain an armed conflict for longer than ninety days if both
Houses of Congress enact a resolution of disapproval. Similar vetoes
are embedded in laws authorizing the President to exercise various
economic powers during times of "national emergency". To take
another example, how are we to reconcile article I's grant to Congress
of the power to appropriate money with article II's grant to the
President of the power to supervise its expenditure? Must the
President spend all that Congress appropriates? Congress has
addressed this conflict, authorizing the President to defer certain
expenditures subject to a legislative veto. 9
There are practical demerits imputed as well to the legislative veto,
such as the delay in the implementation of the law that may ensue with
requiring congressional approval of the implementing rules. 10 Yet the
question must ultimately rest not on the convenience or wisdom of the
legislative veto device, but on whether it is constitutionally permissible.
In 1983, the United States Supreme Court struck a decisive blow
against the legislative veto in INS v. Chadha, 11 a ruling which essentially
held the practice as unconstitutional. It appears that the foremost
consideration of the majority opinion in Chadha were the issues of
bicameralism and presentment, as discussed by the Chief Justice in his
Separate Opinion in Macalintal v. COMELEC. 12 The twin issues of
presentment and bicameralism would especially come to fore with respect to
the Joint Congressional Oversight Committee under Rep. Act No. 9335,
composed as it is by seven Members from the Senate and seven Members
from the House of Representatives. 13
Chadha emphasized that the bills passed by the U.S. Congress must be
presented for approval to the President of the United States in order that
they may become law. 14 Section 27 (1), Article VI of our Constitution
imposes a similar presentment requirement. Chadha also noted that a bill
must be concurred in by a majority of both Houses of Congress. Under our
Constitution, Congress consists of a House of Representatives and a Senate,
and the underlying uncontroverted implication is that both Houses must
concur to the bill before it can become law. Assuming that the approval of
the Implementing Rules to Rep. Act No. 9335 by seven Members from each
House of Congress is a legislative act, such act fails either the presentment
or bicameralism requirement. Such approval is neither presented to the
President of the Philippines for consent, nor concurred in by a majority of
either House of Congress. HATICc
Yet with respect to the implications of Chadha on the principle of

separation of powers, there are critical informed comments against that
decision. Chadha involved the statutory authority of either House of
Congress to disapprove the decision of the executive branch to allow a
deportable alien to remain in the United States. The majority had
characterized such disapproval as a legislative act, since it "had the purpose
and effect of altering the legal rights, duties and relations of persons". 15 Yet
that emphasis "on the labels of legislative, executive and judicial" was
criticized as "provid[ing] the rhetorical ammunition for a variety of cases
seeking judicial reassessment of the constitutionality not only of the great
number of statutes that have incorporated some kind of legislative veto
mechanism, but of regulatory statutes in general that sought to delegate
legislative, executive and judicial power, and various combinations thereof,
to the unelected officials that run the various federal agencies." 16
Fisher presents a veritable laundry list of criticisms of the Chadha
reasoning, replete with accusations that the analysis employed on
separation of powers detracted from the intent of the Framers, resulting in
giving the "executive branch a one-sided advantage in an accommodation
that was meant to be a careful balancing of executive and legislative
interests". 17 He further observed:
The Court's misreading of history and congressional procedures
has produced some strange results. Its theory of government is too
much at odds with the practices developed over a period of decades
by the political branches. Neither administrators nor congressmen
want the static model proferred by the Court. The conditions that
spawned the legislative veto a half century ago have not
disappeared. Executive officials still want substantial latitude in
administering delegated authority; legislators still insist on
maintaining control without having to pass another law. The
executive and legislative branches will, therefore develop substitutes
to serve as the functional equivalent of the legislative veto. Forms will
change but not power relationships and the need for quid pro quo. 18
TaEIcS
And Tribe himself finds flaw in the Chadha analysis of what constituted
a legislative act:
And why, precisely, did the veto of the suspension of Chadha's
deportation have to be deemed legislative? It was "essentially
legislative", according to the Court, because it "had the purpose and
effect of altering the legal rights, duties and relations of persons . . .
outside the legislative branch". Without Congress' exercise of the
legislative veto in his case, Chadha would have remained in America;
without the veto provision in the immigration statute, the change in
Chadha's legal status could have been wrought only be legislation
requiring his deportation. The difficulty with this analysis is that the
same observations apply with equal validity to nearly all exercises of
delegated authority, whether by a House of Congress or by an
executive department or an administrative agency. Both through
rule-making and through case-by-case adjudication, exercises of
delegated authority change legal rights and privileges no less than do
full-fledged laws.
There was perhaps less need than the Court perceived to
squeeze the legislative veto into one of the three pigeonholes
envisioned by the Framers. Even if Congress' action had been
deemed "executive" in nature, it presumably would have been
unconstitutional, since Congress may make, but not execute the laws.
And if the legislative veto had been deemed "judicial", it would still
have violated the separation of powers, as Justice Powell recognized
in his concurring opinion. 19
The majority in Chadha did not address the reality that the U.S.
Congress had relied on the legislative veto device for over five decades, 20
or for that matter, the valid concerns over the executive usurpation of
legislative prerogatives that led to the invention of the veto as a
countervailing measure. Justice Byron White relied extensively on these
concerns in his dissenting opinion in Chadha.
Nonetheless, the invalidation of the legislative veto in Chadha has
caused serious discussion as to alternative constitutional means through
which Congress could still ensure that its legislative intentions would not be
countermanded by the executive branch. On one extreme, a Republican
congressman, Nick Smith of Michigan, filed a bill requiring that significant
new regulations adopted by administrative agencies be approved by a joint
resolution of Congress before they would become effective. 21 Less
constitutionally controversial perhaps were the suggestions of Justice Breyer
in remarks he made after Chadha was decided. He explained that "Congress
unquestionably retains a host of traditional weapons in its legislative and
political arsenal that can accomplish some of the veto's objectives." 22
These include the power to provide that legislation delegating
authority to the executive expires every so often. To continue to
exercise that authority, the executive would have to seek
congressional approval, at which point past agency behavior that
Congress disliked would become the subject of serious debate.
Moreover, Congress might tailor its statutes more specifically, limiting
executive power. Further, Congress can require the President, before
taking action, to consult with congressional representatives whose
views would carry significant political weight. Additionally Congress
can delay implementation of an executive action (as it does when the
Supreme Court promulgates rules of civil procedure) until Congress
has had time to consider it an to enact legislation preventing the
action from taking effect. Finally, each year Congress considers the
agency's budget. If a significant group of legislators strongly opposes
a particular agency decision, it might well succeed in including a
sentence in the appropriations bill denying the agency funds to
enforce that decision. 23
I raise these points because even with the invalidation of the legislative
veto, Congress need not simply yield to the executive branch. The
invalidation of the legislative veto can be mistakenly perceived as signal by
the executive branch that it can, in the guise of rule-making power, adopt
measures not authorized or even forbidden in the enabling legislation. If that
happens, undue weight will be shifted to the executive branch, much like
what had happened when former President Marcos exercised both executive
and legislative powers. One might correctly argue that the judicial branch
may still exercise corrective relief against such unauthorized exercise by the
executive, 24 yet the relief may not come for years to come, considering the
inherently deliberative judicial process.
I do believe that there is a constitutionally sound mechanism through
which Congress may validly influence the approval of a law's Implementing
Rules. Section 12 of Rep. Act No. 9335 may not be such a means, but I
maintain that it would be highly useful for the Court to explain how this can
be accomplished. In this light, I submit the following proposed framework for
invalidating the legislative veto while recognizing the pre-eminent
congressional prerogative in defining the manner how legislation is to be
implemented. ISCTcH
III.
We can consider that in the enactment and implementation of a law,
there is a legislative phase and an executive phase. The legislative phase
encompasses the period from the initiation of a bill in Congress until it
becomes effective as a law. On the other hand, the executive phase begins
the moment the law is effective and falls within the capacity of the executive
branch to enforce.
Notably, as such, it is only upon the effectivity of the statute that legal
rights and obligations become available to those entitled by the language of
the statute. Now, subject to the indispensable requisite of publication under
the due process clause, 25 the determination as to when a law takes effect is
wholly the prerogative of Congress. 26 As such, it is only upon effectivity that
the law may be executed, and the executive branch acquires the duties and
powers to execute that law. Before that point, the role of the executive
branch, particularly the President, is limited to signing or vetoing the law. All
other powers of government that attach to the proposed law are exercised
exclusively by Congress and are hence, legislative in character. In fact, the
United States Supreme Court, speaking through Justice Black, has gone as
far as to hold that the Constitution "limits [the President's] functions in the
lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad." 27
It is viable to hold that any provision of law that empowers Congress or
any of its members to play any role in the implementation or enforcement of
the law after the execution phase has begun violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a
provision that requires Congress or its members to approve the
Implementing Rules after the law has already taken effect is
unconstitutional, as is a provision that allows Congress or its members to
overturn any directive or ruling made by those members of the executive
branch charged with the implementation of the law.
This time or phase demarcation not only affords a convenient yardstick
by which to assess the constitutionality of a legislated role for Congress vis-
à-vis a law, it also hews to the proper allocation of governmental powers.
Again, the exercise of executive powers relative to a statute can only
emanate after the effectivity of the law, since before that point, said law
cannot be executed or enforced. Until a law becomes effective, there are no
executive functions attached to the law. DaAETS
Of course, following this rationale, Section 12 of Rep. Act No. 9335 will
have to be invalidated. To cite one outstanding example of what else would
be invalidated as a result is the Joint Congressional Power Commission
established in the EPIRA (Rep. Act No. 9136), where the Commission
composed of several members of Congress exercises a continuing role in
overseeing the implementation of the EPIRA. 28 The functions of the Joint
Congressional Power Commission are exercised in the execution phase, and
thus beyond the pale of legislative power. There are many other provisions
in our laws, such as those similar to Section 12 of Rep. Act No. 9335, that
will similarly not pass muster after this ruling, and the Court will have to
reckon with the real problem as to whether this decision effectively nullifies
those provisions as well. Nonetheless, the Court need not invalidate those
provisions in other laws yet and await the appropriate cases to do so, similar
to the approach previously taken on the invalidation of municipalities
created by the President in Pelaez v. Auditor General. 29
IV.
I seriously disagree with Justice Carpio's assertion that the power to
formulate or adopt implementing rules inheres in the executive function.
That power is a legislative function traditionally delegated by Congress to
the executive branch. The ponencia satisfactorily asserts this point through
its Footnote No. 63, and I need not belabor it.
One option for congressional control over executive action is to be very
specific and limiting in the delegation of power to agencies, so that their
rulemaking power will in turn be limited. 30 The power to make rules and
regulations is that kind of legislative power which may be delegated. 31 In
practice, the United States Congress has engaged frequently in broad
delegations that in effect require agencies to make specific sub-rules — i.e.,
to exercise legislative power. 32 This practice has drawn some criticism that
power is now concentrated in the executive branch and that it is thus
necessary to restore Congress to its original status of preeminence. 33 The
growth of an enormous national bureaucracy, operating for the most part
within the executive branch, may have fundamentally altered the original
constitutional framework and requires some sort of response if the original
constitutional concerns are to be satisfied. 34
Section 12 of Rep. Act No. 9335, or any other provision of law granting
components of the executive branch the power to formulate implementing
rules, is a delegation of legislative power belonging to Congress to the
executive branch. Congress itself has the power to formulate those particular
rules and incorporate them in the law itself. What I believe Congress is
precluded from doing is to exercise such power after the law has taken
effect, in other words, after the execution phase has begun. Unless such a
limitation were laid down, there would ensue undue encroachment by
Congress in the exercise of legislative power.
This delegable rule-making power may be classified into two types: (1)
rules intended to regulate the internal management of the agencies
themselves; and (2) rules supplementing a statute and intended to affect
persons and entities outside the government made subject to agency
regulation. 35 Either case, the power of the executive branch to promulgate
such rules springs from legislative delegation. In the Philippines, the power
of executive officials to enact rules to regulate the internal management of
executive departments was specifically allocated to them by a statute, the
Administrative Code of 1987, promulgated by President Aquino in the
exercise of her then extant legislative powers. With respect to
supplementary rules to particular legislation, the power of executive officials
to formulate such rules derives from the legislation itself. But in no case does
such power emanate actually from inherent executive power. ITHADC
The rule need not be hard and fast. We may as well pay heed to
Blackstone's practical observation that the "manner, time and circumstances
of putting laws in execution must frequently be left to the discretion of the
executive magistrates". 36 But by and large, any problem left by the absence
of clear and explicit statutory language is avoided in turn by the statutory
delegation of legislative power to executive officials to vest them sufficient
discretion to fill in the details. 37
We thus cannot detract from the fundamental principle that rule-
making power is legislative in character and exercised by executive officials
only upon a statutory delegation of legislative power. As Fisher summarizes
the peculiar dynamic:
Presidents are obligated under the Constitution to take
care that the laws be "faithfully executed". The often
conflicting and ambiguous passages within a law must be
interpreted by executive officials to construct the purpose
and intent of Congress. As important as intent is the extent to
which a law is carried out. President Taft once remarked, "Let anyone
make the laws of the country, if I can construe them."
To carry out the laws, administrators issue rules and regulations
of their own. The courts long ago appreciated this need. Rules and
regulations "must be received as the acts of the executive, and as
such, be binding upon all within the sphere of his legal and
constitutional authority. Current law authorizes the head of an
executive department or military department to prescribe regulations
"for the government of his department, the conduct of its employees,
the distribution and performance of its business, and the custody,
use, and preservation of its records, papers, and property.
These duties, primarily of a "housekeeping" nature, relate only
distantly to the citizenry. 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. Agency
rulemaking must rest on authority granted directly or
indirectly by Congress. 38
IDaEHS
The Court's rightful rejection of Justice Carpio's premise that the power
of the President of promulgate Implementing Rules and Regulations is
inherently executive provides a necessary clarification that is critical to the
understanding of the Court's ruling today. Had Justice Carpio's position been
adopted by the Court, the result would have been a presidency much
stronger than the Constitution envisioned. Acceding to the President the
power to craft Implementing Rules to legislation even if Congress specifically
withholds such power to the Chief Executive would have upset the finely
measured schematic of balanced powers, to the benefit of the President.
Fortunately, with the disavowal of that theory, greater consideration is
accorded to legislative prerogatives without compromising the important
functions of the presidency.
V.
Thusly, there is nothing inherently unconstitutional in congressional
participation in the formulation of implementing rules of legislation since
that power is legislative in character. Yet there still are multiple roadblocks
impeding a constitutionally valid exercise of that prerogative by Congress.
The matters of bicameralism and presentment, as expounded in Chadha, are
hurdles which I submit should bind the Philippine Congress as it exercises its
legislative functions. Section 12 of Rep. Act No. 9335 can be struck down on
that ground alone. 39 Moreover, imposing a rule barring a legislative role in
the implementation of a law after the statute's effectivity will sufficiently
preserve the integrity of our system of separation of powers.
At the same time, the concerns of Congress that may have animated
the rise of the legislative veto should not be disrespected by simply raising
formalistic barriers against them. In practice, the legislative veto is an
effective check against abuses by the executive branch. The end may not
justify unconstitutional means, yet we should leave ample room for Congress
to be able to address such concerns within broad constitutional parameters.
There are a myriad of creative ways by which Congress may influence
the formulation of Implementing Rules without offending the Constitution. If
there are especially problematic areas in the law itself which Congress is not
minded to leave any room for interpretative discretion by executive officials,
then the provision involved can be crafted with such specificity to preclude
alternative interpretations. At the same time, commonly, legislators and
their staffs may lack the expertise to draft specific language. 40 Speaking
from my own legislative experience, it is in the drafting of the Implementing
Rules, rather than in the statute itself, that the particular expertise of the
agency officials and experts tasked with the implementation of the law
become especially vital. TaISEH
Also, Congress can dictate which particular executive officials will draft
the implementing rules, prescribe legal or factual standards that must be
taken into account by such drafters, or otherwise impose requirements or
limitations which such drafters are bound to comply with. Again, because the
power to draft implementing rules is delegated legislative power, its exercise
must be within the confines of the authority charted by Congress.
And because executive functions cannot commence until after the
effectivity of the law, Congress may very well adopt creative but
constitutional measures that suspend the effectivity of the law until
implementing rules to its liking are crafted. There is nothing unconstitutional
with suspending the effectivity of laws pending the occurrence of a
stipulated condition. "[I]t is not always essential that a legislative act should
be a completed statute which must in any event take effect as a law, at the
time it leaves the hands of the legislative department. A statute may be
conditional, and its taking effect may be made to depend upon some
subsequent event." 41
The requirements of bicameralism and especially presentment may
pose insurmountable hurdles to a provision that plainly suspends the
effectivity of a law pending approval by Congress or some of its members of
the implementing rules. 42 At the same time, it should be recognized that
Congress does have the prerogative to participate in the drafting of the
rules, and if it finds a means to do so before the execution phase has begun,
without offending bicameralism or presentment, such means may be upheld.
Footnotes
* Advocates and Adherents of Social Justice for School Teachers and Allied Workers.
1. Under Rule 65 of the Rules of Court.
2. An Act to Improve Revenue Collection Performance of the Bureau of Internal

Revenue (BIR) and the Bureau of Customs (BOC) Through the Creation of a
Rewards and Incentives Fund and of a Revenue Performance Evaluation
Board and for Other Purposes. aEHIDT
3. Section 2, RA 9335.
4. Section 3, id.
5. Section 4, id.
6. Section 6, id.
7. Section 7, id.
8. Section 11, id.
9. Section 12, id.

10. Cruz, Isagani, PHILIPPINE CONSTITUTIONAL LAW, 1995 edition, p. 23.
11. Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 1996 edition, pp. 848-849.
12. Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904 (2000).
(Vitug, J., separate opinion)
13. See La Bugal-B'Laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 01
December 2004, 445 SCRA 1.
14. Tañada v. Angara, 338 Phil. 546 (1997).

15. Section 2, id.
16. Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R.
No. 148208, 15 December 2004, 446 SCRA 299.
17. 173 U.S. 381 (1899).
18. 74 U.S. 166 (1868).

19. BLACK'S LAW DICTIONARY, SPECIAL DE LUXE 5th Edition, West, p. 481.
20. 158 Phil. 60 (1974).
21. Id. Citations omitted.

22. Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA
572.
23. Section 2, RA 9335.
24. Section 18, Chapter 4, Title II, Book IV, Administrative Code of 1987.
25. Section 23, id.

26. Pelaez v. Auditor General, 122 Phil. 965 (1965).
27. Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, 18 October 1988, 166
SCRA 533.
28. Cruz, Isagani, PHILIPPINE POLITICAL LAW, 1991 edition, p. 97.

29. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), (Cardozo, J., dissenting).
30. Section 5, Rule II, Implementing Rules and Regulations of RA 9335.
31. De Guzman, Jr. v. Commission on Elections, 391 Phil. 70 (2000).

32. See Section 46 (b) (8), Chapter 6, Title I, Subtitle A, Book V, Administrative
Code of 1987.
33. Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214, 19
September 2006, 502 SCRA 295.
34. 453 Phil. 586 (2003). Mr. Justice (now Chief Justice) Puno's separate opinion
was adopted as part of the ponencia in this case insofar as it related to the
creation of and the powers given to the Joint Congressional Oversight
Committee.
35. Id. (italics in the original)

36. Id.
37. Metropolitan Washington Airports Authority v. Citizens for the Abatement of
Aircraft Noise, 501 U.S. 252 (1991).
38. Id.
39. Id.
40. See Mr. Justice (now Chief Justice) Puno's separate opinion in Macalintal.
41. E.g., by requiring the regular submission of reports.

42. See Mr. Justice (now Chief Justice) Puno's separate opinion in Macalintal.
43. See Tribe, Lawrence, I American Constitutional Law 131 (2000).
44. Id.
45. Id. at 141.

46. Metropolitan Washington Airports Authority v. Citizens for the Abatement of
Airport Noise, supra. ISTDAH
47. Edu v. Ericta, 146 Phil. 469 (1970).
48. Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE

PHILIPPINES: A COMMENTARY, 2003 edition, p. 664 citing Wayman v.
Southward, 10 Wheat 1 (1852) and The Brig Aurora, 7 Cr. 382 (1813)).
49. Eslao v. Commission on Audit, G.R. No. 108310, 01 September 1994, 236 SCRA
161; Sierra Madre Trust v. Secretary of Agriculture and Natural Resources,
206 Phil. 310 (1983).
50. People v. Maceren, 169 Phil. 437 (1977).
51. See Eslao v. Commission on Audit, supra.
52. It is also for these reasons that the United States Supreme Court struck down
legislative vetoes as unconstitutional in Immigration and Naturalization
Service v. Chadha (462 U.S. 919 [1983]).
53. Nachura, Antonio B., OUTLINE REVIEWER IN POLITICAL LAW, 2006 edition, p.
236.
54. Section 26, Article VI of the Constitution provides:
Section 26. (1) Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
(2) No bill passed by either House shall become a law unless it has passed
three readings on separate days, and printed copies thereof in its final form
have been distributed to its Members three days before its passage, except
when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the Journal.
55. See Bernas, supra note 48, p. 762. cAISTC

56. PHILIPPINE POLITICAL LAW, 2002 edition, Central Lawbook Publishing Co., Inc.,
pp. 152-153.
57. THE PHILIPPINE CONSTITUTION FOR LADIES, GENTLEMEN AND OTHERS, 2007
edition, Rex Bookstore, Inc., pp. 118-119.
58. The conference committee consists of members nominated by both Houses.
The task of the conference committee, however, is not strictly limited to
reconciling differences. Jurisprudence also allows the committee to insert
new provision[s] not found in either original provided these are germane to
the subject of the bill. Next, the reconciled version must be presented to both
Houses for ratification. (Id.)
59. Supra note 56.
60. Supra note 57.
61. See Section 1, Article III of the Constitution. In Tañada v. Tuvera (230 Phil. 528),
the Court also cited Section 6, Article III which recognizes "the right of the
people to information on matters of public concern".
62. As much is recognized in Article 2 of the Civil Code which 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." Tañada
recognized that "unless it is otherwise provided" referred to the date of
effectivity. Simply put, a law which is silent as to its effectivity date takes
effect fifteen days following publication, though there is no impediment for
Congress to provide for a different effectivity date.
63. It has been suggested by Mr. Justice Antonio T. Carpio that Section 12 of RA
9335 is likewise unconstitutional because it violates the principle of
separation of powers, particularly with respect to the executive and the
legislative branches. Implicit in this claim is the proposition that the ability of
the President to promulgate implementing rules to legislation is inherent in
the executive branch.
There has long been a trend towards the delegation of powers, especially of
legislative powers, even if not expressly permitted by the Constitution. (I.
Cortes, Administrative Law, at 12-13.) Delegation of legislative powers is
permissible unless the delegation amounts to a surrender or abdication of
powers. (Id.) Recent instances of delegated legislative powers upheld by the
Court include the power of the Departments of Justice and Health to
promulgate rules and regulations on lethal injection (Echegaray v. Secretary
of Justice, 358 Phil. 410 [1998]); the power of the Secretary of Health to
phase out blood banks (Beltran v. Secretary of Health, G.R. No. 133640,
133661, & 139147, 25 November 2005, 476 SCRA 168); and the power of the
Departments of Finance and Labor to promulgate Implementing Rules to the
Migrant Workers and Overseas Filipinos Act. (Equi-Asia Placement v. DFA,
G.R. No. 152214, 19 September 2006, 502 SCRA 295.) HCaDET
The delegation to the executive branch of the power to formulate and enact
implementing rules falls within the class of permissible delegation of
legislative powers. Most recently, in Executive Secretary v. Southwing Heavy
Industries (G.R. Nos. 164171, 164172 &168741, 20 February 2006, 482 SCRA
673), we characterized such delegation as "confer[ring] upon the President
quasi-legislative power which may be defined as the authority delegated
by the law-making body to the administrative body to adopt rules
and regulations intended to carry out the provisions of the law and
implement legislative policy." (Id., at 686, citing Cruz, Philippine
Administrative Law, 2003 Edition, at 24.) Law book authors are likewise
virtually unanimous that the power of the executive branch to promulgate
implementing rules arises from legislative delegation. Justice Nachura
defines the nature of the rule-making power of administrative bodies in the
executive branch as "the exercise of delegated legislative power,
involving no discretion as to what the law shall be, but merely the authority
to fix the details in the execution or enforcement of a policy set out in the
law itself." (A.E. Nachura, Outline Reviewer in Political Law [2000 ed.], at
272.) He further explains that rules and regulations that "fix the details in the
execution and enforcement of a policy set out in the law" are called
"supplementary or detailed legislation". (Id., at 273.) Other commentators
such as Fr. Bernas (Bernas, supra note 48, at 611), De Leon and De Leon (H.
De Leon & H. De Leon, Jr., Administrative Law: Text and Cases (1998 ed), at
79-80; citing 1 Am. Jur. 2d 891) and Carlos Cruz (C. Cruz, Philippine
Administrative Law (1998 ed), at 19-20, 22, 23) have similar views.
The Congress may delegate the power to craft implementing rules to the
President in his capacity as the head of the executive branch, which is tasked
under the Constitution to execute the law. In effecting this delegation, and as
with any other delegation of legislative powers, Congress may impose
conditions or limitations which the executive branch is bound to observe. A
usual example is the designation by Congress of which particular members of
the executive branch should participate in the drafting of the implementing
rules. This set-up does not offend the separation of powers between the
branches as it is sanctioned by the delegation principle.
Apart from whatever rule-making power that Congress may delegate to the
President, the latter has inherent ordinance powers covering the executive
branch as part of the power of executive control ("The President shall have
control of all the executive departments, bureaus and offices. . ." Section 17,
Article VII, Constitution.). By its nature, this ordinance power does not
require or entail delegation from Congress. Such faculty must be
distinguished from the authority to issue implementing rules to legislation
which does not inhere in the presidency but instead, as explained earlier, is
delegated by Congress.
The marked distinction between the President's power to issue intrabranch
orders and instructions or internal rules for the executive branch, on one
hand, and the President's authority by virtue of legislative delegation to issue
implementing rules to legislation, on the other, is embodied in the rules on
publication, as explained in Tañada v. Tuvera (G.R. No. L-63915, 29
December 1986, 146 SCRA 446). The Court held therein that internal
regulations applicable to members of the executive branch, "that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules
or guidelines to be followed by their subordinates in the performance of their
duties." (Id., at 454) The dispensation with publication in such instances is
rooted in the very nature of the issuances, i.e., they are not binding on the
public. They neither create rights nor impose obligations which are
enforceable in court. Since they are issued pursuant to the power of
executive control, and are directed only at members of the executive branch,
there is no constitutional need for their publication.
However, when the presidential issuance does create rights and obligations
affecting the public at large, as implementing rules certainly do, then
publication is mandatory. In explaining why this is so, the Court went as far
as to note that such rules and regulations are designed "to enforce or
implement existing law pursuant to a valid delegation ." (Id., at 254.) The
Court would not have spoken of "valid delegation" if indeed the
power to issue such rules was inherent in the presidency. Moreover,
the creation of legal rights and obligations is legislative in character, and the
President in whom legislative power does not reside cannot confer legal
rights or impose obligations on the people absent the proper empowering
statute. Thus, any presidential issuance which purports to bear such legal
effect on the public, such as implementing rules to legislation, can only
emanate from a legislative delegation to the President. HcSETI
The prevalent practice in the Office of the President is to issue orders or

instructions to officials of the executive branch regarding the enforcement or
carrying out of the law. This practice is valid conformably with the President's
power of executive control. The faculty to issue such orders or instructions is
distinct from the power to promulgate implementing rules to legislation. The
latter originates from a different legal foundation — the delegation of
legislative power to the President.
Justice Carpio cites an unconventional interpretation of the ordinance power
of the President, particularly the power to issue executive orders, as set forth
in the Administrative Code of 1987. Yet, by practice, implementing rules are
never contained in executive orders. They are, instead, contained in a
segregate promulgation, usually entitled "Implementing Rules and
Regulations", which derives not from the Administrative Code, but rather
from the specific grants in the legislation itself sought to be implemented.
His position does not find textual support in the Administrative Code itself.
Section 2, Chapter 2, Title 1, Book III of the Code, which defines "Executive
orders" as "[a]cts of the President providing for rules of a general or
permanent character in the implementation or execution of
constitutional or statutory powers". Executive orders are not the vehicles
for rules of a general or permanent character in the implementation or
execution of laws. They are the vehicle for rules of a general or permanent
character in the implementation or execution of the constitutional or
statutory powers of the President himself. Since by definition, the
statutory powers of the President consist of a specific delegation by
Congress, it necessarily follows that the faculty to issue executive orders to
implement such delegated authority emanates not from any inherent
executive power but from the authority delegated by Congress.
It is not correct, as Justice Carpio posits, that without implementing rules,
legislation cannot be faithfully executed by the executive branch. Many of
our key laws, including the Civil Code, the Revised Penal Code, the
Corporation Code, the Land Registration Act and the Property Registration
Decree, do not have Implementing Rules. It has never been suggested that
the enforcement of these laws is unavailing, or that the absence of
implementing rules to these laws indicates insufficient statutory details that
should preclude their enforcement. (See DBM v. Kolonwel Trading, G.R. Nos.
175608, 175616 & 175659, 8 June 2007, 524 SCRA 591, 603.)
In rejecting the theory that the power to craft implementing rules is

executive in character and reaffirming instead that such power arises from a
legislative grant, the Court asserts that Congress retains the power to impose
statutory conditions in the drafting of implementing rules, provided that such
conditions do not take on the character of a legislative veto. Congress can
designate which officers or entities should participate in the drafting of
implementing rules. It may impose statutory restraints on the participants in
the drafting of implementing rules, and the President is obliged to observe
such restraints on the executive officials, even if he thinks they are
unnecessary or foolhardy. The unconstitutional nature of the legislative veto
does not however bar Congress from imposing conditions which the
President must comply with in the execution of the law. After all, the
President has the constitutional duty to faithfully execute the laws.
64. This stance is called for by judicial restraint as well as the presumption of
constitutionality accorded to laws enacted by Congress, a co-equal branch. It
is also finds support in Pelaez v. Auditor General (122 Phil. 965 [1965]).
65. 346 Phil. 321 (1997). Emphasis in the original. DaHSIT
66. In particular, the Philippine Star and the Manila Standard.

67. Section 36, IRR of RA 9335.
CARPIO, J., concurring:
1. Marcos v. Manglapus, G.R. No. 88211, 15 September 1989, 177 SCRA 668, and
27 October 1989, 178 SCRA 760. In resolving the motion for reconsideration,
the Court cited Myers v. United States (272 U.S. 52 [1926]) where Chief
Justice William H. Taft (a former U.S. President and Governor-General of the
Philippines), writing for the majority, ruled: "The true view of the Executive
function is . . . that the President can exercise no power which cannot be
fairly and reasonably traced to some specific grant of power or justly
implied and included within such express grant as necessary and
proper for its exercise". The principle that power can be implied if
"necessary and proper " to carry out a power expressly granted in the
Constitution is now a well-settled doctrine.
2. Ibid. Section 1, Article VII of the Constitution provides: "The executive power
shall be vested in the President of the Philippines".
3. Joaquin G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 612 (1996).
4. Section 17, Article VII, Constitution.
5. Cervantes v. Auditor General, 91 Phil. 359 (1952).
6. Section 28 (2), Article VI, Constitution.
7. SECTION 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced from the
collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:
Excess of Collection Over Percent (%) of the Excess
the Revenue Targets Collection to Accrue to the Fund
30% or below 5%
More than 30% 15% of the first 30% plus
20% of the remaining excess.
The Fund shall be deemed automatically appropriated the year immediately
following the year when the revenue collection target was exceeded and
shall be released on the same fiscal year. aESTAI
Revenue targets shall refer to the original estimated revenue collection

expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies revenue targets as allocated among its revenue
districts in the case of the BIR, and the collection districts in the case of the
BOC.
Any incentive under this Section shall be apportioned among the various
units, official and employees of the BOC or the BIR, as the case may be, in
proportion to their relative contribution to the aggregate amount of the
excess collection over the targeted amount of tax revenue to be collected by
the two bureaus respectively.
The Fund shall be allocated, distributed or released by the Revenue
Performance Evaluation Board in each agency, hereinafter created in Section
6 of this Act, in accordance with the rules and regulations issued by the
same.
SEC. 5. Incentives to District Collection Offices. — In the event that the BIR or
the BOC fails to meet its revenue target by less than ten (10%), the revenue
districts, in the case of the BIR, or the collection districts, in the case of the
BOC, which exceed their respective allocations of the revenue target
(allocated target), shall be entitled to rewards and incentives (district
incentive) amounting to ten percent (10%) of the excess over its allocated
target: Provided, however, That the BIR revenue district or BOC collection
office which deliberately foregoes any revenue collection in a given year as
part of a scheme to avoid a higher allocated target for the subsequent year
shall not be entitled to a district incentive in such subsequent year
notwithstanding its having exceeded its allocated target: Provided, further,
That the allocated target of any such district shall have been reported to and
validated by the DBCC as required in the immediately preceding section.
The district reward shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target was
exceeded and shall be released in the same fiscal year. DcaSIH
The allocation, distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue Performance
Evaluation Board.
8. 277 U.S. 189, 202-203 (1928).

9. John E. Nowak & Ronald D. Rotunda, CONSTITUTIONAL LAW, 304 (6th Edition).
10. 462 U.S. 919 (1983).
11. Id. at 952.
12. Id., at 957-959.

13. Lawrence H. Tribe, AMERICAN CONSTITUTIONAL LAW, Vol. 1, 142-143 (3rd
Edition).
14. Dissenting Opinion of Justice Byron White in Chadha, supra note 9.
15. 463 U.S. 1216 (1983).

16. Id.
17. Nowak & Rotunda, supra note 8 at 306.
18. Consumer Energy Council v. Federal Energy Regulatory Commission, et al., 673
U.S. F.2d 425, 448.
19. 501 U.S. 252, 255 (1991).

20. Supra note 7.
21. Supra note 18 at 274-275.
22. Supra note 12 at 146-147.
23. J., Harold Levinson, Legislative and Executive Veto of Rules of Administrative
Agencies: Models and Alternatives, 24 WILLIAM AND MARY LAW REVIEW 79,
85-87 (1982). TcIaHC
TINGA, J., concurring:

1. L. Tribe, I. American Constitutional Law 142 (3rd ed., 2000.), at 142.
2. See, e.g., PHILCONSA v. Enriquez, G.R. Nos. 113105, 113174, 113766, 113888,
19 August 1994, 234 SCRA 506. Neither was the question considered by the
majority opinion in Macalintal v. COMELEC, 453 Phil. 586 (2003).
3. See, e.g., Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). See also H. Bruff &
E. Gellhorn, "Congressional Control of Administrative Regulation: A Study of
Legislative Vetoes", 90 Harv. L. Rev. 1369, 1372-1373 (1977).
4. Bruff & Gellhorn, supra note 3, at 1373.
5. Ibid.
6. Ibid.
7. See Sec. 17, Article VII, Constitution.
8. "One survey found five such [legislative veto clauses] enacted between 1932
and 1939, nineteen in the 1940's, thirty four in the 1950's, forty-nine in the
1960's, and eighty-nine enacted between 1970 and 1975." S. Breyer, The
Legislative Veto After Chadha, 72 Geo. L.J. 785, 786 (1984).
9. Breyer, supra note 8, at 789. CaTcSA

10. Bruff & Gellhorn, supra note 3, at 1379.
11. 462 U.S. 919 (1983).
12. 453 Phil. 586 (2003). "[T]he Court [in Chadha] shied away from the issue of
separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the
procedures set out in Article I of the Constitution requiring the passage by a
majority of both Houses and presentment to the President. . . ." Id., at 763 (J.
Puno, Separate Opinion)
13. See Section 12, Rep. Act No. 9335.
14. "The records of the Constitutional Convention reveal that the requirement that
all legislation be presented to the President before becoming law was
uniformly accepted by the Framers. Presentment to the President and the
Presidential veto were considered so imperative that the draftsmen took
special pains to assure that these requirements could not be circumvented."
INS v. Chadha, supra note 11, at 946-947.
15. Id., at 952.
16. A. Aman & W. Mayton, Administrative Law (2nd ed., 2001), at 594.
17. L. Fisher. Constitutional Conflicts Between Congress and the President. (4th ed.,
1997), at 153.
18. Id., at 155.

19. Tribe, supra note 1, at 144. Citations omitted.
20. See note 8.
21. N. Smith, "Restoration of Congressional Authority and Responsibility Over the
Regulatory Process. 33 Harv. J. on Legis. 323 (1996).
22. S. Breyer, supra note 8, at 792.

23. Ibid.
24. See, e.g., John Hay People's Alternative Coalition v. Lim, 460 Phil. 530 (2003).
25. See Section 1, Article III, Constitution. In Tañada v. Tuvera, 230 Phil. 528
(1986), the Court also cited Section 6 of the Bill of Rights, which recognized
"the right of the people to information on matters of public concern", as a
constitutional basis for mandating publication of laws.
26. As much is recognized in Article 2 of the Civil Code, which 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." The Court in
Tañada recognized that "unless it is otherwise provided" referred to the date
of effectivity. Simply put, a law which is silent as to its effectivity date takes
effect fifteen days following publication, though there is no impediment for
Congress to provide for a different effectivity date. HaAIES
27. Youngstown Co. v. Sawyer, 343 U.S. 579, 587 (1952).

28. See Section 62, Rep. Act No. 9136, which provides:
Section 62: Joint Congressional Power Commission.
Upon the effectivity of this Act, a congressional commission, hereinafter

referred to as the "Power Commission", is hereby constituted. The Power
Commission shall be composed of fourteen (14) members with the chairmen
of the Committee on Energy of the Senate and the House of Representatives
and six (6) additional members from each House, to be designated by the
Senate President and the Speaker of the House of Representatives,
respectively. The minority shall be entitled to pro rata representation but
shall have at least one (1) representative in the Power Commission.
The Commission shall, in aid of legislation, perform the following functions,
among others:
a. Set the guidelines and overall framework to monitor and ensure the proper
implementation of this Act;
b. Endorse the initial privatization plan within one (1) month from submission
of such plan to the Power Commission by PSALM Corp. for approval by the
President of the Philippines;
c. To ensure transparency, require the submission of reports from
government agencies concerned on the conduct of public bidding procedures
regarding privatization of NPC generation and transmission assets;
d. Review and evaluate the performance of the industry participants in
relation to the objectives and timelines set forth in this Act;
e. Approve the budget for the programs of the Power Commission and all
disbursements therefrom, including compensation of all personnel;
f. Submit periodic reports to the President of the Philippines and Congress;
g. Determine inherent weaknesses in the law and recommend necessary
remedial legislation or executive measures; and
h. Perform such other duties and functions as may be necessary to attain its
objectives.
In furtherance hereof, the Power Commission is hereby empowered to
require the DOE, ERC, NEA, TRANSCO, generation companies, distribution
utilities, suppliers and other electric power industry participants to submit
reports and all pertinent data and information relating to the performance of
their respective functions in the industry. Any person who willfully and
deliberately refuses without just cause to extend the support and assistance
required by the Power Commission to effectively attain its objectives shall,
upon conviction, be punished by imprisonment of not less than one (1) year
but not more than six (6) years or a fine of not less than Fifty thousand pesos
(P50,000.00) but not more than Five hundred thousand pesos (P500,000.00)
or both at the discretion of the court.
The Power Commission shall adopt its internal rules of procedures; conduct
hearings and receive testimonies, reports and technical advice; invite or
summon by subpoena ad testificandum any public official, private citizen or
any other person to testify before it, or require any person by subpoena
duces tecum to produce before it such records, reports, documents or other
materials as it may require; and generally require all the powers necessary
to attain the purposes for which it is created. The Power Commission shall be
assisted by a secretariat to be composed of personnel who may be seconded
from the Senate and the House of Representatives and may retain
consultants. The secretariat shall be headed by an executive director who
has sufficient background and competence on the policies and issues relating
to electricity industry reforms as provided in this Act. To carry out its powers
and functions, the initial sum of twenty-five million pesos (P25,000,000.00)
shall be charged against the current appropriations of the Senate. Thereafter,
such amount necessary for its continued operation shall be included in the
annual General Appropriations Act.
The Power Commission shall exist for period of ten (10) years from the
effectivity of this Act and may be extended by a joint concurrent resolution.
29. 122 Phil. 965 (1965). IcADSE
30. K. Sullivan & G. Gunther, Constitutional Law (14th ed., 2001), at 351.
31. State ex .rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 427, 220 N.W. 929
(1928).
32. Sullivan & Gunther, supra note 30, at 351.
33. G. Stone, L. Seidman, C. Sunstein, and M. Tushnet, Constitutional Law (4th ed.,
2001), at 334.
34. Ibid.
35. Ibid.
36. W. Blackstone, Commentaries, Book 1, 270.
37. "The nature of government often requires Congress to pass general legislation
and leave to other branches the responsibility to fill in the details". Fisher,
supra note 17, at 90, citing Wayman v. Southard, 10 Wheat. 1, 46 (1825).
38. Id., at 106-107. Citations omitted.
39. The twin issues of presentment and bicameralism would especially come to
fore with respect to the Joint Congressional Oversight Committee under Rep.
Act No. 9335, composed as it is by seven Members from the Senate and
seven Members from the House of Representatives. Chadha emphasized that
the bills passed by the U.S. Congress must be presented for approval to the
President of the United States in order that they may become law. 39 Section
27 (1), Article VI of our Constitution imposes a similar presentment
requirement. Chadha also noted that a bill must be concurred in by a
majority of both Houses of Congress. Under our Constitution, Congress
consists of a House of Representatives and a Senate, and the underlying
uncontroverted implication is that both Houses must concur to the bill before
it can become law. Assuming that the approval of the Implementing Rules to
Rep. Act No. 9335 by seven Members from each House of Congress is a
legislative act, such act fails either the presentment or bicameralism
requirement. Such approval is neither presented to the President of the
Philippines for consent, nor concurred in by a majority of either House of
Congress.
40. Fisher, supra note 17, at 91.
41. 4 Cooley on Constitutional Limitations, cited in Ex parte Mode, 77 Tex. Crim.
432, 441, 180 S.W. 708, Am. Ann. Cas. 1918E (1915).
42. Of course, the problem of presentment would be avoided if the implementing
rules would also be submitted for approval to the President, but this
roundabout manner should be discouraged, since it could be avoided simply
by having those rules previously incorporated in the law earlier presented to
the President. CTSHDI

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EN BANC

[G.R. No. 166715. August 14, 2008.]

ABAKADA GURO PARTY LIST (formerly AASJS) *

This petition for prohibition 1 seeks to prevent respondents from

Finally, petitioners assail the creation of a congressional oversight

Public oﬃcers enjoy the presumption of regularity in the performance

The equal protection of the laws clause of the Constitution

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

(1) Collect customs duties, taxes and the corresponding

(2) Account for all customs revenues collected;

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(9) Perform such other functions as may be provided by law. 25

xxx xxx xxx (emphasis supplied)

30% or below — 15%

More than 30% — 15% of the first

The Fund shall be deemed automatically appropriated the year

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue

(c) To terminate personnel in accordance with the criteria

Clearly, RA 9335 in no way violates the security of tenure of oﬃcials

Concept and bases of congressional oversight

xxx xxx xxx

Supporters of legislative veto stress that it is necessary to

In Immigration and Naturalization Service v. Chadha, the U.S.

Thus, any post-enactment congressional measure such as this should

(1) scrutiny based primarily on Congress' power of appropriation

(2) investigation and monitoring 41 of the implementation of laws

Administrative regulations enacted by administrative agencies to

Additionally, Section 27 (1), Article VI of the Constitution provides:

Every bill passed by Congress must be presented to the President for

Once the bill passes third reading, it is sent to the other

The next question to be resolved is: what is the eﬀect of the

To be eﬀective, administrative rules and regulations must be published

I concur with the majority opinion penned by Justice Renato C. Corona.

Under Section 32 of RA 9335, the Department of Finance, Department of

The inherent power of the Executive to adopt rules and regulations to

Thus, Chapter 2, Title 1, Book III of the Administrative Code of 1987, on

Section 2. Executive Orders. — Acts of the President providing

Section 4. Proclamations. — Acts of the President ﬁxing a date

1. Administrative Order No. 175 dated 2 April 2007 on Strengthening

Section 4. Implementing Rules and Regulations . — The STCW

To hold that the President has no inherent power to issue implementing

(a) To prescribe the rules and regulations for the allocation,

xxx xxx xxx. (Emphasis Supplied)

Section 7 (a) of RA 9335 is a delegation of legislative power to the Board in

Indeed, RA 9335 is an example of a law that contains a delegation of

Not having the power of appointment, unless expressly granted

Congress, in an attempt to maintain more control over the

xxx xxx xxx

xxx xxx xxx

Interestingly, Metropolitan Washington Airports cites Springer v.

Bicameralism is ﬁrmly embedded in the 1987 Constitution of the

In view of the foregoing, I vote to PARTIALLY GRANT the petition, and

TINGA, J., concurring:

I join Justice Corona's lucid opinion — one of the more legally

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Yet with respect to the implications of Chadha on the principle of

2. An Act to Improve Revenue Collection Performance of the Bureau of Internal

9. Section 12, id.

14. Tañada v. Angara, 338 Phil. 546 (1997).

18. 74 U.S. 166 (1868).