Post on 25-Apr-2015
Introduction
Corollary to the doctrine of separation of powers is the principle of non-
delegation of powers. The rule is potestas delegata non delegari potest –
what has been delegated cannot be delegated. It is based upon 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
judgement and not through the intervening mind of another. A further
delegation of such power, unless permitted by the sovereign power, would
constitute a negation of this duty in violation of the trust reposed in the
delegate mandated to discharge it directly.
The principle of non-delegation of powers is applicable to all three
major powers of the government but is especially important in the case of
the legislative power because of the many instances when its delegation is
permitted. The occasions are rare when executive or judicial powers are
exercised outside the departments to which they legally pertain. However, in
the case of the legislative power, such instances have become more and
more frequent, if not necessary. This has led to the observation that the
delegation of legislative power has become the rule and its non-delegation
the exception.
The reason is the increasing complexity of the task of government and
the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many of the problems
attendant upon present-day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the required
direct and efficacious, not to say specific, solutions.
One such problem, to take an example, is the regulation of common
carriers. This task requires the determination of such intricate matters as the
routes to be serviced by such carriers, the number of them to be allowed in
each route, the conveniences they should offer the passengers, the fare they
may charge, the type of vehicles they should use, and other myriad details
that the legislature may not have the time, expertise and interest to
prescribe.
Given these shortcomings, the Congress may then create an
administrative body like the Board of Transportation and empower it to
promulgate the needed rules and regulations, subject only to certain
statutory limitations or broad policies pre-determined by the legislature
itself.
Such a device as applied to a hundred other similar cases can relieve
the Congress of many problems that are better left be solved by more
serious difficulties of the country requiring its direct and immediate
attention.
Delegation of legislative powers is permitted in the following cases:
1. Delegation of tariff powers to the President,
2. Delegation of emergency powers to the President,
3. Delegation to the people at large,
4. Delegation of local governments, and
5. Delegation to administrative bodies.
Delegation of Powers
The reasons given earlier for the delegation of legislative powers in
general are particularly are particularly applicable to administrative bodies.
With the proliferation of specialized activities and their attendant peculiar
problems, the national legislature has found it more and more necessary to
entrust to administrative agencies the “power of subordinate legislation”, as
it is called.
With this power, administrative bodies may implement the broad
policies laid down in a statute by “filling in” the details which the Congress
may not have the opportunity or competence to provide. This is effected by
their promulgation of what are known as supplementary regulations, such as
the implementing rules issued by the Department of Labor on the Labor
Code. These regulations have the force and effect of law.
Administrative agencies may also issue contingent regulations
pursuant to a delegation of authority to determine some fact or state of
things upon which the enforcement of a law depends. In other words, they
are already allowed to ascertain the existence of particular contingencies
and on the basis thereof enforce or suspend the operation of a law. Such
contingent regulations also have the force and effect of law.
A case in point is Cruz v. Youngberg (56 Phil. 234). The law involved
here prohibited the entry into the country of foreign cattle, which had been
determined by the Philippine Legislature as the cause of a rinderpest
epidemic that had killed many of the local livestock. The same law, however,
authorized the Governor-General to lift the prohibition, with the consent of
the presiding officers of the lawmaking body, if he should ascertain after a
fact-finding investigation that there was no longer any threat of contagion
from imported cattle.
Tests of Delegation
Assuming that the delegation of legislative power comes under any of
the permissible exceptions, there is still the question of whether or not the
delegation has been validly made. To be valid, the delegation itself must be
circumscribed by legislative restrictions, not a “roving commission” that will
give the delegate unlimited legislative authority. It must not be a delegation
“running riot” and “not canalized within banks that keep it from
overflowing”. Otherwise, the delegation is in legal effect an abdication of
legislative authority, a total surrender by the legislature of its prerogatives in
favour of the delegate.
According to our Supreme Court, “the true distinction is between the
delegation of power to make the law, which necessarily involves discretion
as to what the law 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.
(1) The Completeness Test
Ideally, the law must be complete in all its essential terms and
conditions when it leaves the legislature so that there will be nothing
left for the delegate to do when it reaches him except enforce it. If
there are gaps in the law that will prevent its enforcement unless they
are first filled, the delegate will then have been given the opportunity
to step into the shoes of the legislature in order to repair the
omissions. This is invalid delegation.
Thus, in United States v. Ang Tang Ho, a law authorized the
Governor-General “whenever, for any cause, conditions arise resulting
in extraordinary rise in the price of palay, rice or corn, to issue and
promulgate, with the consent of the Council of State, temporary rules
and emergency measures for carrying out the purpose of this Act.”
Pursuant to this authorization, he issued regulations fixing ceiling
prices for the said cereals. The appellant, who was being prosecuted
for selling above the said ceiling price, challenged the law on the
ground that it constituted an invalid delegation of legislative power for
failure to comform to the completeness test. The Supreme Court
sustained his contention, declaring as follows:
“By its very terms, the promulgation of temporary rules and
emergency measures is left to the discretion of the Governor-
General. The Legislature does not undertake to specify or define
under what conditions or for what reasons the Governor-general
shall issue the proclamation, but says that it may be issued for any
cause and leaves the question of what is any cause to the discretion
of the Governor-General. The Legislature does not also define what
is an extraordinary increase in the price of palay, rice, or other
cereal. That is also left to the discretion of the Governor-General.
The law does not specify or define what such temporary and
emergency measures shall remain in force and effect, or when they
shall take effect. All of these are left to the sole judgment and
discretion of the Governor-General. The law is thus incomplete in
legislation.”
(2) The Sufficient Standard Test
Even if the law does not spell out in detail the limits of the
delegate’s authority, it may still be sustained if the delegation of the
legislative power is made subject to a sufficient standard.
A sufficient standard is intended to map out the boundaries of
the delegate’s authority by defining the legislative policy and
indicating the circumstances under which it is to be pursued and
effected. The purpose of the sufficient standard is to prevent a total
transference of legislative power from the lawmaking body to the
delegate.
The sufficient standard test is usually indicated in the law
delegating legislative power. In People v. Rosenthal (68 Phil. 328), to
illustrate, the Blue Sky Law required the National Treasurer to cancel
certificates for the sale of speculative securities whenever necessary in
the “public interest”. Under R.A. No. 51, the President of the
Philippines was authorized to reorganize government-owned or
controlled corporations for the purpose of promoting “simplicity,
economy, and efficiency” in their operations (Cervantes v. Auditor
General, 91 Phil 359). C.A. No. 548 empowered the Director of Public
Works to promulgate traffic rules in the light of the “public welfare”
(Calalang v. Williams). Other accepted standards are “justice and
equity”, “the sense and experience of men”, and “national security”.
But even if the law itself does not expressly pinpoint the
standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it an, from constitutional
infirmity. Thus, in Hirabayashi v. United States, the petitioner
challenged a regulation establishing curfew hours for Niseis, or
American citizens of Japanese ancestry, during World War II. One of his
claims was that the rule based on invalidly delegated legislative power,
there being no sufficient standard mentioned in the pertinent law to
limit the delegate’s discretion. The U.S. Supreme Court held that there
was a sufficient standard, to wit, the national security, and declared as
follows:
“It is true that the Act does not in terms establish a
particular standard to which orders of the military commander
are to conform, or require findings to be made as a prerequisite
to any order. But the Executive Order, the Proclamations and the
statute are not to be read in isolation from each other. They were
parts of a single program and must be judged as such. The Act of
March 21, 1942, was an adoption by Congress of the Executive
Order and of the Proclamations. The Proclamations themselves
followed a standard authorized by the Executive Order – the
necessity of protecting military resources in the designated areas
against espionage and sabotage.”
In De la Llana v. Alba (112 SCRA 294), Chief Justice Fernando
said:
“Petitioners would characterize as an undue delegation of
legislative power to the President the grant of authority to fix the
compensation and the allowances of the Justices and judges
thereafter appointed. A more careful reading of the challenged
Batas Pambansa Blg. 129 ought to have cautioned them against
raising such an issue. The language of the statute is cleas. The
questioned provision reads as follows: Intermediate Appellate
Justices, Regional Trial Judges, Metropolitan Trial Judges,
Municipal Trial Judges, and Municipal Circuit Trial Judges shall
receive such compensation and allowances as may be authorized
by the President along the guidelines set forth in Letter of
Implementation No. 93 pursuant to Presidential Decree No. 985,
as amended by Presidential Decree No. 1597. (Chapter IV, Sec.
41 of BP Blg. 129). The existence of a standard is thus clear.”
But it was different in People v. Vera, where our Supreme Court
found the old Probation Act unconstitutional. Besides being violative of
the equal protection clause, the law was held to be an invalid
delegation of legislative power for lack of sufficient standard.
“The Probation Act was not to be effective immediately. Its
effectivity was made to depend upon an act to be done by the
provincial boards of the provinces, that of appropriating funds for
the salary of a probation officer. If the provincial board makes
the appropriation, the Probation Act is applicable in that
province; if it does not make the appropriation, the law is not
applicable therein. For purposes of the Probation Act, the
provincial boards may thus be regarded as administrative bodies
endowed with power to determine when the act should take
effect in their respective provinces. However, the law does not
lay down any rule or standard to guide the provincial boards in
the exercise of their discretionary power. What is granted to
them is a roving commission which enables the provincial boards
to exercise arbitrary discretion. The applicability and application
of the probation Act are entirely placed in the hands of the
provincial boards with no standard or rule to guide them. This is
a virtual surrender of legislative power to them.”
In Ynot v. Intermediate Appellate Court (148 SCRA 659), the
Court noted:
“We also mark, on top of all this, the questionable manner
of the disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall ‘be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and
to deserving farmers through dispersal as the Director of Animal
Industry may see fit, in the case of carabaos. The phrase may
see fit is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality
and abuse, and even corruption. One searches in vain for the
usual standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make
their distribution. There is none. Their options are apparently
boundless. Who shall be the fortunate beneficiaries of their
generosity and b y what criteria shall they be chosen? Only the
officers named can supply the answer, they and they alone may
choose the grantee as they see fit, and in their own exclusive
discretion. Definitely, there is here a ‘roving commission’, a wide
and sweeping authority that is not ‘canalized within banks that
keep it from overflowing’, in short, a clearly profligate and
therefore invalid delegation of legislative powers.
The Pelaez Case
The case of Emmanuel Pelaez v. Auditor General is worthy if special
attention because its discussion of the tests of a valid delegation of
legislative power. At issue here was the validity of Sec. 68 of the Revised
Administration Code empowering the President of the Philippines to create,
merge, divide, abolish or otherwise alter the boundaries of municipal
corporations. Pelaez contended inte alia that it was an invalid delegation of
legislative power. The Government argued that it was not, invoking the
earlier case of Cardona v. Binangonan (36 Phil. 547), where the power of the
Governor-General to transfer territory from one municipality to another was
sustained. The Supreme Court upheld Pelaez. Significantly, it ruled that the
completeness test and the sufficient standard test, which had theretofore
been applied alternatively, must be applied together or concurrently. Justice
Roberto Concepcion, speaking for the Court, declared:
“Although Congress may delegate to another branch of the
Government the power to fill details in the execution, enforcement or
administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in
itself – it must set forth therein the policy to be executed, carried out
or implemented by the delegate – and (b) to fix standard – the limits of
which are sufficiently determinate or determinable – to which the
delegate must conform in the performance of his functions. Indeed,
without a statutory declaration of policy, which is the essence of every
law, and without the aforementioned standard, there would be no
means to determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only to make the law,
but, also – and this is worse – to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the system of
checks and balances, and, consequently, undermining the very
foundation of our Republican system.
“Section 68 of the Revised Administrative Code does not meet
these well settled requirements for a valid delegation of the power to
fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does
it give a standard sufficiently precise to avoid the evil effects above
referred to.”
Conclusion
With reference to the mentioned cases, the Completeness Test and
Sufficient Standard Test can be compared and contrasted as follows: (1) both
of them are tests as to the validity of a delegation of legislative power, (2)
Completeness Test means that the law must be complete in all its essential
terms and conditions when it leaves the legislature so that there will be
nothing left for the delegate to do when it reaches him except to enforce it,
while the Sufficient Standard Test is the mapping out of the boundaries of
the delegate’s authority by defining the legislative policy and indicating the
circumstances under which it is to be pursued and effected, and (3)
Completeness Test – it must set forth therein the policy to be executed,
carried out or implemented by the delegate, while Sufficient Standard Test -
the limits of which are sufficiently determinate or determinable – to which
the delegate must conform in the performance of his functions
Completeness Test
as to
Sufficient Standard Test
By
GIL MAE N. HUELAR
Legal Research, Section B
October 21, 2010
Bibliography
Hector de Leon, “Textbook on the Philippine Constitution”, Published
by Rex Bookstore, Inc., 2005
Isagani A. Cruz, “Philippine Political Law”, Published by Central
Lawbook Publishing Co., Inc., 2002
Lawphil Website – http://www.lawphil.net
Black’s Law Dictionary