Notes on Delegation of Powers

[1] Traditionally, the general rule is non-delegation. However, under modern political law, delegation has slowly become the general rule.

[2] The principle of non-delegation of powers is usually cited with reference to legislative powers.

NON-DELEGATION OF POWERS
REINFORCES SEPARATION OF
POWERS

[3] The general principle of non-delegation of legislative power, which both flows from the reinforces the more fundamental rule of the separation and allocation of powers among the three great departments of government, must be applied with circumspection in respect of statutes which like the Medical Act of 1959, deal with subjects as obviously complex and technical as medical education and the practice of medicine in our present day world. (Tablarin v. Gutierrez, 152 SCRA 730, 1987)

[4] One thing, however, is apparent in the development of the principle of separation of powers and that is that the maxim of delegatus non potest delegare or delegate potestas non potest delegare, adopted this practice but which is also recognized in principle in the Roman Law (d. 17.18.3) has been made to adapt itself to the complexities of modern government, giving rise to the adoption, within certain limits of the principle of "subordinate legislation," not only in the United States and England but in practically all modern governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. (Tablarin v. Gutierrez, 152 SCRA 730, 1987)

THE GROWING COMPLEXITY OF
MODERN LIFE MAKES DELEGATION
THE BETTER RULE

[5] Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater power by the legislature, and toward the approval of the practice by the courts." (Tablarin v. Gutierrez, 152 SCRA 730, 1987)

LIMITS OF POWER DELEGATED
MUST BE EXPRESSLY OR IMPLIEDLY
SPELLED OUT

[6] The standard may be either expressed or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads."

[7] In the Tablarin case, the Supreme Court held that that the necessary standards are set forth in Section 1 of the 1959 Medical Act: "the standardization and regulation of medical education" and in Section 5 (a) and 7 of the same Act, the body of the statute itself, and that these considered together are sufficient compliance with the requirements of the non-delegation principle.

[8] In short, generally, the limits of the delegate's power must be spelled out expressly. The standards must be sufficiently laid out. Nevertheless, certain general statements such "general welfare" have been declared by the Court as basis for valid delegation.

EXAMPLE OF GENERAL STATEMENTS
DECLARED AS DETERMINATE AND
DETERMINABLE SUFFICIENT STANDARDS

[9]  In Tatad v. Secretary of Energy, 282 SCRA 337 (1997), the Supreme Court declared unconstitutional Section 15 of R.A. No. 8180 which delegates to the President the power to implement the full deregulation of the downstream oil industry NOT because of undue delegation but for other reasons.

[10] In Tatad, the Supreme Court explained that Section 15 provides sufficient standards within which the President and the Energy Secretary must operate in implementing the law. In fact, there is theoretically no delegation here because what was merely given to them is the power to implement the law in case certain factors arise. The law gives the following factors: (1) the time when the prices of crude oil and petroleum products in the world market are declining, and (2) the time when the exchange rate of the peso in relation to the US dollar is stable.

[11] Moreover, said section provides the Secretary of Energy and the President with the bases of (1) "practicability", (2) "the decline of crude oil prices in the world market", and (3) "the stability of the Peso exchange rate in relation to the US Dollar," in determining the effectivity of full deregulation. These bases are determinate and determinable guidelines, when examined in the light of the tests for permissible delegation.

TWO TESTS TO DETERMINE
VALID DELEGATION OF
POWERS

[12] The power of Congress to delegate the execution of laws has long been settled. As early as 1916 in Compania General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners, the Court held that "the true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

[13] Over the years, as the legal engineering of men's relationship became more difficult, Congress has to rely more on the practice of delegating the execution of laws to the executive and other administrative agencies.

[14] Two tests have been developed to determine whether the delegation of the power to execute laws does not involve the abdication of the power to make law itself. There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz: the completeness test and the sufficient standard test.

[15] Under the first test (completeness test), the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate the only thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.

PERIOD OF IMPRISONMENT MUST
BE DETERMINATE OR DETERMINABLE;
OTHERWISE, UNDUE DELEGATION OF
POWERS TO THE COURT

[16] Anyone who violates RA 5670 shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court. The Supreme Court declared said law unconstitutional for violating the principle of non-delegation.

[17] Although law can give discretion to courts, it must be a mere legal discretion which is exercised in discerning the course prescribed by law and which, when discerned, it is the duty of the court to follow. What valid delegation presupposes and sanctions is an exercise of discretion to fix the length of service of a term of imprisonment which must be encompassed within specific or designated limits provided by law, the absence of which designated limits well constitute such exercise as an undue delegation, if not-an outright intrusion into or assumption, of legislative power.

[18] Section 32 of Republic Act No. 4670 provides for an indeterminable period of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative authority. The courts are thus given a wide latitude of discretion to fix the term of imprisonment, without even the benefit of any sufficient standard, such that the duration thereof may range, in the words of respondent judge, from one minute to the life span of the accused. Irremissibly, this cannot be allowed. It vests in the courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence to the rules on separation of powers as well as the non-delegability of legislative powers. This time, the presumption of constitutionality has to yield. (People v. Dacuycuy, 173 SCRA 90, 1989)

THE POWER TO FIX RATES OF CHARGES
FOR SERVICES IS LEGISLATIVE IN CHARACTER;
NEVERTHELESS, THIS POWER CAN BE DELEGATED
TO ADMINISTRATIVE AGENCIES;
IF CONGRESS CHOOSES TO INTERFERE, SUCH ACT
DOES NOT AUTOMATICALLY MEAN WITHDRAWAL
OF POWER OF THE ADMINISTRATIVE AGENCY

[19] The power to fix rates of charges of services, such as pilotage service or the minimum wage, is legislative in character.

[20] Nevertheless, this power can be delegated to administrative agencies if the two tests - completeness and sufficient standards tests - are complied with. For example, law delegates to the Philippine Ports Authority (PPA) the fixing of pilotages fees. Also, law delegates to the Regional Tripartite Wage and Productivity Board (RTWPB) the fixing of minimum wages in every region in the country.

[21] However, this does not mean that Congress cannot  intervene anytime despite the existence of administrative agencies entrusted with wage-fixing powers, by virtue of the former's plenary power of legislation. When Congress does so, the result is not the withdrawal of the powers delegated to the Wage Boards but cooperative lawmaking in an area where initiative and expertise are required.

[22] In case of pilotage rates, the power of the PPA to fix said rates and its authority to regulate pilotage still remain notwithstanding the fact that a schedule for pilotage fees has already been prescribed by the questioned executive order. PPA is at liberty to fix new rates of pilotage subject only to the limitation that such new rates should not go below the rates fixed under E.O. 1088. The rationale behind the limitation is no different from what has been previously stated. Being a mere administrative agency, PPA cannot validly issue orders or regulations that would have the effect of rendering nugatory the provisions of the legislative issuance such as those of the executive order in question. (Phil. Interisland Shipping Ass’n v. CA; G.R. No. 100481, Jan 22, 1997)


THE CONSTITUTION EXPRESSLY ALLOWS
CONGRESS TO DELEGATE TO THE PRESIDENT
THE POWER TO FIX TARIFF RATES, ETC.;
THIS IS AN EXCEPTION GRANT OF POWER TO
THE PRESIDENT

[23] Section 28(2), Article VI of the Constitution states: The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

[24] It is Congress which authorizes the President to impose tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts. Thus, the authority cannot come from the Finance Department, the National Economic Development Authority, or the World Trade Organization, no matter how insistent or persistent these bodies may be.

[25] The authorization granted to the President must be embodied in a law. In short, Section 28(2) of Article VI is not self-executing. Hence, the justification cannot be supplied simply by inherent executive powers. It cannot arise from administrative or executive orders promulgated by the executive branch or from the wisdom or whim of the President.

[26] The authorization to the President can be exercised only within the specified limits set in the law and is further subject to limitations and restrictions which Congress may impose. Consequently, if Congress specifies that the tariff rates should not exceed a given amount, the President cannot impose a tariff rate that exceeds such amount. If Congress stipulates that no duties may be imposed on the importation of corn, the President cannot impose duties on corn, no matter how actively the local corn producers lobby the President. Even the most picayune of limits or restrictions imposed by Congress must be observed by the President.

[27] There is one fundamental principle that animates these constitutional postulates. These impositions under Section 28(2), Article VI fall within the realm of the power of taxation, a power which is within the sole province of the legislature under the Constitution.

[28] Without Section 28(2), Article VI, the executive branch has no authority to impose tariffs and other similar tax levies involving the importation of foreign goods. Assuming that Section 28(2) Article VI did not exist, the enactment of the SMA by Congress would be voided on the ground that it would constitute an undue delegation of the legislative power to tax. The constitutional provision shields such delegation from constitutional infirmity, and should be recognized as an exceptional grant of legislative power to the President, rather than the affirmation of an inherent executive power. (Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, 465 SCRA 532, 2005)

THE POWER TO CREATE POLITICAL
SUBDIVISIONS IS LEGISLATIVE IN
NATURe

[29] The power to create political subdivisions is a function of the legislature.

[30] If an Executive Order (EO) creates political subdivisions, this is null and void.

[31] In the Camid case, the Supreme Court said: "If there is truly a strong impulse calling for the reconstitution of Andong (municipality created by an EO), the solution is through the legislature and not judicial confirmation of void title. If indeed the residents of Andong have, all these years, been governed not by their proper municipal governments but by a ragtag Interim Government, then an expedient political and legislative solution is perhaps necessary. Yet we can hardly sanction the retention of Andong's legal personality solely on the basis of collective amnesia that may have allowed Andong to somehow pretend itself into existence despite its judicial dissolution. Maybe those who insist Andong still exists prefer to remain unperturbed in their blissful ignorance, like the inhabitants of the cave in Plato;s famed allegory. But the time has come for the light to seep in, and for the petitioner and like-minded persons to awaken to legal reality." (Camid v. Office of the President, 448 SCRA 711, 2005)

[32] Note that this case is an offshoot of the Pelaez case where the Supreme Court held that the President cannot create legislative districts.

A PROVINCE CANNOT BE CREATED
WITHOUT A LEGISLATIVE DISTRICT

[33] A province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the citys population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district.

[33] For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. In Sema vs. COMELEC, the threshold issue then was, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative. No, Congress cannot do so.

[34] Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress. (Sema v. Commission on Elections, 558 SCRA 700, 2008)

POWER TO CREATE MUNICIPALITIES
AND BARANGAYS CAN BE DELEGATED;
HOWEVER, POWER TO CREATE PROVINCES
AND LEGISLATIVE DISTRICTS CANNOT BE

[35] There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed.

[36] However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x. (Sema v. Commission on Elections, 558 SCRA 700, 2008)

WHAT POWER CAN OR
CANNOT BE DELEGATED?

[37] A ministerial act can be delegated but an act which involves discretion cannot be delegated.

[38] An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him, he cannot delegate his duties to another. In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another. (NPC Drivers and Mechanics Association (NPC DAMA) v. National Power Corporation, 503 SCRA 138, 2006)

THE DELEGATE MUST MAKE
THE FINAL DECISION BUT HE
IS NOT PRECLUDED FROM
UTILIZING AIDS

[39] The delegate may exercise his authority through persons he appoints to assist him in his functions, it must be stressed that the Court explicitly stated in the same case that said practice is permissible only when the judgment and discretion finally exercised are those of the officer authorized by law. According to the Court, the rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates, so long as it is the legally authorized official who makes the final decision through the use of his own personal judgment. (NPC Drivers and Mechanics Association (NPC DAMA) v. National Power Corporation, 503 SCRA 138, 2006)

AN EXCEPTION TO NON-DELEGATION
OF DISCRETIONARY ACTS IS THE
ALTER EGO DOCTRINE

[40] The "alter ego" doctrine is also known as the doctrine of "qualified political agency."

[41] Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments.

[42] The acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (G.R. No. 180771; April 21, 2015)
THE POWER TO DETERMINE
THE EXISTENCE OF PROBABLE
CAUSE CANNOT BE DELEGATED

[43] Prior to the amendment on October 3, 2005 of Rules 112 and 114 of the Rules of Court via A.M. No. 05-8-26-SC, Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts, judges of municipal trial courts were (not anymore) empowered to conduct preliminary investigations in which they exercised discretion in determining whether there was probable cause to hale the respondent into court. Such being the case, they could not delegate the discretion to another.

[44] An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him, he cannot delegate his duties to another.

[45] In those cases in which the proper execution of the office requires on the part of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot delegate his duties to another. (Mago v. Peñalosa-Fermo, 582 SCRA 1, 2009)

DELEGATION OF POWERS TO
ADMINISTRATIVE AGENCIES IS
A WELL-SETTLED EXCEPTION
TO THE DOCTRINE OF NON-
DELEGATION

[46] In Bureau of Customs Employees Association v. Teves, G.R. No. 181704, December 6, 2011, the constitutionality of R.A. No. 9335 and its IRR were challenged for being an undue delegation of legislative powers.

[47] The principle of separation of powers ordains that each of the three great branches of government has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. Necessarily imbedded in this doctrine is the principle of non-delegation of powers, as expressed in the Latin maxim potestas delegata non delegari potest, which means "what has been delegated, cannot be delegated." This doctrine is based on the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. However, this principle of non-delegation of powers admits of numerous exceptions, one of which is the delegation of legislative power to various specialized administrative agencies like the Board in this case.

[48] In the face of the increasing complexity of modern life, delegation of legislative power to various specialized administrative agencies is allowed as an exception to this principle. Given the volume and variety of interactions in today’s society, it is doubtful if the legislature can promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to delegate to administrative bodies — the principal agencies tasked to execute laws in their specialized fields — the authority to promulgate rules and regulations to implement a given statute and effectuate its policies. All that is required for the valid exercise of this power of subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements are denominated as the completeness test and the sufficient standard test.

[49] 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. 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. 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.

[50] Section 4 of RA [No.] 9335 "canalized within banks that keep it from overflowing" the delegated power to the President to fix revenue targets. In sum, the Court found that R.A. No. 9335, read and appreciated in its entirety, is complete in all its essential terms and conditions, and that it contains sufficient standards as to negate BOCEA’s supposition of undue delegation of legislative power to the Board.

WELL-RECOGNIZED EXCEPTIONS
TO THE PRINCIPLE OF NON-DELEGATION

[51] The recognized exceptions to this principle are as follows:

[a] Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
[b] Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
[c] Delegation to the people at large;
[d] Delegation to local governments; and
[e] Delegation to administrative bodies. Abakada Guro Party List v. Ermita, id. at 117; Santiago v. Comelec, 336 Phil. 848, 897-898 (1997), citing People v. Vera, 65 Phil. 56 (1937) and Isagani A. Cruz, Philippine Political Law 87 (1996).

[52] The above are also called "permissible cases of delegation."

RA 9262 DOES NOT INVOLVE
UNDUE DELEGATION OF JUDICIAL
POWERS

[52] A husband went up to the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due process clauses, and an undue delegation of judicial power to barangay officials. (Garcia v. Drilon, G. R. No. 179267, June 25, 2013)

[53] RA 9262 gives barangay officlas the power to issue protective orders. Petitioner contended that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by law" and, thus, protests the delegation of power to barangay officials to issue protection orders.

[54] There is NO undue delegation of judicial power to barangay officials. The power to issue protective orders is EXECUTIVE in nature, involving as it does the implementation of laws. Since the Punong Barangay is the executive head of the barangay, he can issue protective orders.

[55] Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.112 On the other hand, executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance."

[56] The Barangay Protection Orders (BPO) which is issued by the Punong Barangay or, in his unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain public order in the barangay."

[57] The mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not constitute an exercise of judicial powers.

[58] In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an imminent danger of violence against the woman and her children exists or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

THE BUDGET LAW MUST LAY DOWN
GUIDELINES IN THE PRESIDENT'S
EXERCISE OF RULE-MAKING POWERS

[59] While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative guidelines if the same law delegates rule-making authority to the Executive either for the purpose of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual operation, referred to as contingent rule-making. There are two (2) fundamental tests to ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first test is called the "completeness test."

[60] Case law states that a law is complete when it sets forth therein the policy to be executed, carried out, or implemented by the delegate. On the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law 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. 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.

[61] When the budget law appropriates an amount to a project or department "and for such other purposes as may be hereafter directed by the President," there is UNDUE delegation of powers.

[62] As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.

[62] Also, the phrase "to finance the priority infrastructure development projects" must be stricken down as unconstitutional since it does not provide any sufficient standard of the delegating law. (Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)

THE POWER OF THE MONETARY BOARD
TO PLACE FINANCIALLY-TROUBLED BANKS
UNDER RECEIVERSHIP IS NOT AN UNDUE
DELEGATION OF POWERS

[63] In the case of Vivas v. The Monetary Board, G.R. No. 191424, August 7, 2013, petitioner challenged the constitutionality of Section 30 of R.A. No. 7653, as the legislature granted the MB a broad and unrestrained power to close and place a financially troubled bank under receivership. He claims that the said provision was an undue delegation of legislative power.

[64] There is no violation of the non-delegation of legislative power. Under the two (completeness and sufficient standards) tests, there was no undue delegation of legislative authority in the issuance of R.A. No. 7653. To address the growing concerns in the banking industry, the legislature has sufficiently empowered the MB to effectively monitor and supervise banks and financial institutions and, if circumstances warrant, to forbid them to do business, to take over their management or to place them under receivership. The legislature has clearly spelled out the reasonable parameters of the power entrusted to the MB and assigned to it only the manner of enforcing said power. In other words, the MB was given a wide discretion and latitude only as to how the law should be implemented in order to attain its objective of protecting the interest of the public, the banking industry and the economy.

IN THE RH LAW CASE, THE SC
DECLARED THERE IS NO UNDUE
DELEGATION OF POWERS TO THE
FDA TO DETERMINE WHETHER A
DRUG IS NON-ABORTIVE

[65] In Imbong v. Ochoa, G.R. No. 204819, April 11, 2014, petitioners argued that the RH Law is unconstitutional because it goes against the principle of non-delegation of legislative authority. The petitioners question the delegation by Congress to the FDA of the power to determine whether a product is non-abortifacient and to be included in the Emergency Drugs List (EDL). THEY ARE WRONG.

[66] The Court found nothing wrong with the delegation. The FDA does not only have the power but also the competency to evaluate, register and cover health services and methods. It is the only government entity empowered to render such services and highly proficient to do so. It should be understood that health services and methods fall under the gamut of terms that are associated with what is ordinarily understood as "health products."

[67] Moreover, the RH Law specifies the functions, powers and duties of the FDA to enable the agency to carry out the mandates of the law.

[68] What Congress cannot (practically) do or is not willing to do, it can delegate as long as the two tests are complied with.

ADMINISTRATIVE RULES AND
REGULATIONS MUST NOT GO
BEYOND THE LAW THEY SEEK
TO INTERPRET OR SUPPLEMENT

[69] An implementing rule that goes beyond the law which it seeks to interpret or supplement or enforce is called "ultra vires" or "beyond one's power."

[70] It is well-settled that rules and regulations, which are the product of a delegated power to create new and additional legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law; and that it be not in contradiction to, but in conformity with, the standards prescribed by law.

[71] Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the rule is within the delegated authority of the administrative agency; (ii) whether it is reasonable; and (iii) whether it was issued pursuant to proper procedure. But the court is not free to substitute its judgment as to the desirability or wisdom of the rule for the legislative body, by its delegation of administrative judgment, has committed those questions to administrative judgments and not to judicial judgments. In the case of an interpretative rule, the inquiry is not into the validity but into the correctness or propriety of the rule. As a matter of power a court, when confronted with an interpretative rule, is free to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its judgment; or (iii) give some intermediate degree of authoritative weight to the interpretative rule. (Commissioner of Customs v. Hypermix Feeds Corporation, G.R. No. 179579, February 1, 2012)

POWER OF SUBORDINATE LEGISLATION
MUST BE GRANTED BY LAW

[72] The power of subordinate legislation is that delegated power to create implementing rules and regulations. It is also called quasi-legislative power.

[73] Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that gives rise to some specific rights under which adverse claims are made, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with authority to determine the law and adjudicate the respective rights of the contending parties.17 In this case, respondents did not act in any judicial, quasi-judicial, or ministerial capacity in their issuance of the assailed joint circulars. In issuing and implementing the subject circulars, respondents were not called upon to adjudicate the rights of contending parties to exercise, in any manner, discretion of a judicial nature. The issuance and enforcement by the Secretaries of the DBM, CSC and DOH of the questioned joint circulars were done in the exercise of their quasi-legislative and administrative functions. It was in the nature of subordinate legislation, promulgated by them in their exercise of delegated power. Quasi-legislative power is exercised by administrative agencies through the promulgation of rules and regulations within the confines of the granting statute and the doctrine of non-delegation of powers from the separation of the branches of the government.

[74] A Senate or House resolution or a joint resolution by Congress cannot be a valid source of delegated power. Only a law can delegate powers. (Cawad v. Abad, G.R. No. 207145, July 28, 2015)

POWER DELEGATED ARE
LIMITED BY THE CONSTITUTION
OR THE LAWS OR BOTH

[75] An examination of these functions confirms that in sharp contrast to the BSP and the IC, nowhere in the Housing and Land Use Regulatory Board’s (HLURB's) charter is it expressly or impliedly granted the power to appoint the rehabilitation receivers of financially distressed corporations under its supervision and regulation. An administrative agency’s powers are limited to those expressly conferred on it or granted by necessary or fair implication in its enabling act. In our constitutional framework, which mandates a limited government, its branches and administrative agencies exercise only those powers delegated to them as "defined either in the Constitution or in legislation, or in both." Notably, the powers granted to the HLURB are focused on its regulation of real estate companies to ensure that the investing public is protected from fraudulent real estate practices. These powers do not touch upon the HLURB’s authority to intervene in the general corporate acts, e.g. the rehabilitation, of those under its supervision. (Lexber, Inc. v. Dalman, G.R. No. 183587, April 20, 2015)

[76] It is a basic principle in administrative law that an administrative rule must conform to and not contradict the provision of an enabling law.

[77] As mandated by Article 7 of the Civil Code, an administrative rule or regulation cannot contravene the law on which it is based. . . . The rules and regulations that administrative agencies promulgate, which are the product of a delegated legislative power to create new and additional legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to the objects and purposes of the law, and should not be in contradiction to, but in conformity with, the standards prescribed by law.

[78] To be valid, an administrative rule or regulation must conform, not contradict, the provisions of the enabling law. An implementing rule or regulation cannot modify, expand, or subtract from the law it is intended to implement. Any rule that is not consistent with the statute itself is null and void.

[79] While administrative agencies . . . may issue regulations to implement statutes, they are without authority to limit the scope of the statute to less than what it provides, or extend or expand the statute beyond its terms, or in any way modify explicit provisions of the law. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails. (Unduran v. Aberasturi, G.R. No. 181284, October 20 2015)

THE DECISION OF DUTERTE TO ALLOW
MARCOS TO BE INTERRED IN THE LNMB
IS A TRULY POLITICAL QUESTION

[80] The decision of President Duterte to allow President Marcos to be interred in the LNMB is beyond the ambit of judicial review. (Ocampo v. Enriquez, G.R. No. 225973, November 8, 2016)

THE DECISION OF THE PRESIDENT TO
RECOGNIZE A FOREIGN GOVERNMENT
IS A POLITICAL QUESTION

[81] The courts cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. Courts cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can courts amend the Constitution under the guise of resolving a dispute brought before them because the power is reserved to the people.

AN EXAMPLE OF DELEGATION
TO THE PEOPLE AT LARGE IS
PEOPLE'S INITIATIVE UNDER
ARTICLE XVII

[82] Read your textbook.

TO COMPLETE YOUR STUDY,
READY THE YNOT AND PELAEZ
CASES

[83] Ynot v. IAC, 148 SCRA 659, G.R. No. 74457, March 20, 1987
http://www.lawphil.net/judjuris/juri1987/mar1987/gr_74457_1987.html

[84] Pelaez v. Auditor General, G.R. No. L-23825, December 24, 1965
www.lawphil.net/judjuris/juri1965/dec1965/gr_23825_1965.html