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Petitioners: en Banc
Petitioners: en Banc
DECISION
CORONA, J : p
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
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,
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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
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
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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
(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
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
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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
SEPARATION OF POWERS
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. — There is
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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:
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
Separate Opinions
CARPIO, J., concurring:
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
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unconstitutional. (Emphasis supplied) aCSDIc
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
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
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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
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
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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
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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
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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
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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
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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
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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.
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.
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
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
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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
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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 allocation, distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue Performance
Evaluation Board.
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
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
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.
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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