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AN EXAMINATION OF THE RELATIONSHIP AMONG THE RULE OF LAW, SEPARATION OF

POWERS, CHECKS AND BALANCES AND THE ADMINISTRATIVE AGENCIES

Raymo nd Roque
Hermilia Banayat-Nas
Resida-Rose Rosario***

INTRODUCTION

In a republican state such as the Philippines, the government is divided into three great co-
equal branches - the executive, legislative and the judicial branches. Each of these branches performs
different and independent functions. To state the tasks of these branches in simple terms, one could
say that the executive which is the President is the one tasked to implement the laws; the legislative
branch which is the Congress, makes the laws; and the judicial branch interprets the laws. But in
practice, the dynamics of government is rather a highly complicated matter. It is indeed too simplistic
to say that the executive is the President since how can a single man or woman run the whole
machinery of the executive department without the help of his or her cabinet and staff? In the same
vein, how can the Congress, as the embodiment of the legislative department, perform their law-
making function satisfactorily without relying on the battery of their researchers and secretaries? The
same case also holds true with the judiciary. It is this complexities of governance coupled with the
never-ending requirements of disposing public goods for the benefit of all citizens that prompted the
creation of political bodies so called administrative agencies.

In this essay, the authors attempt to examine the concept of administrative agencies in
relation to other political concepts such as the rule of law, separation of powers and checks and
balances and whether these concepts are in harmony with each other or are they antithetical. But
before proceeding to the main inquiry, a brief discussion of each of these concepts is in order.

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UP College of Law Students, B2010
THE RULE OF LAW

Rule of Law – the phrase may sound familiar since politicians then and now have some kind
of predilection in using it, whether in their rhetoric during election campaigns or during their
television and radio interviews. Many of them would say that they would uphold the rule of law
while some would say that they always act according to it. As students of law and Filipino citizens,
the authors wonder if these people really have some clear concept of the rule of law.

According to Brian Z. Tamanaha in his work entitled “On the Rule of Law”, he mentioned
that rule of law is an exceedingly elusive notion. It is because world political leaders and famous
theory experts alike hold vague and contrasting understandings of the concept.

Nevertheless, one should not fret about the diverse and sometimes conflicting conceptions
about the rule of law. It is because some of these definitions may be considered as subjective, shaped
by the theorist’s own perception and opinion.

The authors of this paper believe that for each and every person, the best way to define the
concept of the rule of law is how each and every one of them experience it. And for his experience,
he believes that the concept of Rule of Law simply means that in a certain community, laws
promulgated for the benefit of every citizen should apply to every one of them without exceptions.
As the famous cliché goes, “No one is above the law”. And this includes even the entity that created
it. In community where there is rule of law, every person acts in accordance with the laws and once
someone violates it then that person must be punished or made liable accordingly. In a system where
the rule of law prevails, every person gets what is due to him.

Another reliable way by which one could define rule of law is to state what it is not, or to put
it more accurately, what it would be like without it. To the authors, without rule of law, chaos reigns.
Each and every person can take advantage of one another, injure one another and can enrich herself
at another’s expense WITHOUT IMPUNITY. As one traditional Filipino politician aptly remarked
once, “The law applies to all, otherwise none at all”.

SEPARATION OF POWERS

The doctrine of separation of powers proposes that each of the three functions of government
(i.e. legislation, execution and adjudication) should be entrusted to a separate branch of government
(i.e. the legislature, the executive, and the judiciary, respectively). The principle of separation of
powers, as a political idea can be traced back to political philosophers Locke and Montesquieu. Their
writings are mainly reactions to the autocratic tendencies of French monarchs, who, at one time, did
designate power to the hands of a single individual. In “The Second Treatise of Civil Government
(1690)” Locke introduced the modern idea of division of power, but it was Montesquieu, in his
famous work, “The Spirit of the Laws (1748)”, who refined the concept. In this famed treatise,
Montesquieu proposed the idea of separation of powers because he saw man’s natural tendency
toward tyranny. The rationale behind the idea can be also gleaned from the Federalist Paper Number
51 alternately written by three great American statesmen. According to Publius:

“Ambition must be made to counter ambition... It may be a reflection on


human nature, that such devices should be necessary to control the
abuses of government. But what is government itself but the greatest of
all reflections on human nature? If men were angels, no government
would be necessary. If angels were to govern men, neither external nor
internal controls on government would be necessary. In framing a
government, which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed, and in the next place oblige it to control itself”.

This clearly establishes the pessimistic view of Thomas Hobbes of human nature; that man
has a ‘perpetual and restless desire for power after power, that ceaseth only in death’.1 Experience has
shown that the frailty of human nature easily succumbs to the temptation of power. And because of

1
THOMAS HOBBES, LEVIATHAN (1651)
this natural tendency to seek power, scholars saw the need to come up with a system of delegating
governmental powers to more than one individual or entity. It is the bestowal of “unfettered” power
on the any single branch of government which could lead into despotism that the principle guards
against. It is on this score that separation of powers is said to be a complement to the concept of the
Rule of Law.

CHECKS AND BALANCES

The executive, legislative and judicial branches are, individually, great—a characterization
that recognizes the power that resides in each of them. While each power is distinct and separate
from the other, each is equal in force and in strength. In a system of government where separation of
powers exists there is no one sphere that could embody and dictate the course of governance. There
are no segments of a sphere but the existence of three unique spheres that have the same radius and
incline. Each rotated in the same manner and each leaning toward the same end: the rule of law.

And so the separation of power was defined and recognized. The most important component
of which is not “power” but “separation.” The less important component, power, being more aptly
described as “distinct” and not “great.”

The contingency to be faced, in this type of government, is not the eventuality of loss of
power but the eventuality of loss of separate powers. To preserve the separation of powers, there was
a need to devise a system to keep one sphere from extending its radius while acknowledging the
impenetrability of each. The answer to this need is the system of checks and balances. In the United
States, where our government derives most of its ideologies, the threat of an all-powerful executive
led to establishment of this system.

The system of checks and balances preserve the separation of powers. The mechanism is one
of “oops” and “ahhs” and might be likened to a movie shoot where actors are expected to perform
their roles as is. Only, the call for a “cut” does not lead to another “take.” A cut is a cut in the system
of checks and balances. The system, however, does not merely prescribe the executive branch to limit
its powers to the implementation of laws, the legislative to making laws and the judiciary to
interpretation of laws as passed by the legislature. For, there is more to government than laws.

There is the issue of accountability. While each of the three branches is accountable to the
people, they are more directly accountable to each other. Thus, the judiciary, by its judicial power,
may declare laws passed by the legislature invalid as being contrary to the constitution. It may also
determine if the executive has exceeded its authority by scrutinizing the manner by which it
implemented a law. Likewise, the legislature, places a limit over the actions of the judiciary by
defining judicial jurisdiction. Without the concurrence of the legislature, some executive acts cannot
be ratified. The executive has powers to veto important pieces of legislation and appoints members of
the highest court. These examples show that each branch of the government is accountable to the
other. The people places imprimatur to the actions of each branch through the constitution they have
ordained.

ADMINISTRATIVE AGENCIES

Awareness of power and paranoia of its abuse is, in essence, the starting point in defining and
justifying a system of government. However, an addiction to discourse concerning government
structures often leads to amnesia, if not ignorance, of the existence of the people, with the further
resultant gap between government and people. Does it need to be asked what came first: the chicken
or the egg?

Although most see as a result of the New Deal, what it took for the United States government
to realize the necessity of having a game plan that would directly involve and affect the people, was
the Great Depression. To battle unemployment and widespread poverty it was necessary for
government actions to reach the people. Because of this need, administrative agencies were
established by the legislature to aid the executive branch to carry out implementation of laws.
As creations of the legislature to operate under the executive branch, administrative agencies
cater directly to the people. Logically, these agencies deal at an arm’s length with complex and
interlocking problems of the people which clamor for immediate resolution. And, as numerous
problems confront different people everyday, an agency for almost every aspect of life has been
created.

The technical rules that bind the courts were permitted to be relaxed when actual
controversies are brought for resolution to administrative agencies. Impliedly, these agencies were
given the power to decide cases and, in time, they have acquired expertise over their fields. Rule-
making powers were also vested in administrative agencies to further answer the need for the easy
resolution of cases brought to them, if not the prevention of controversies.

It is reasonable to say that administrative agencies were created primarily because of


necessity. Their existence is evidence that the government has not forgotten the people it serves.

ADMINISTRATIVE AGENCIES: TYRANNY IN DISGUISE?

As mentioned, administrative agencies properly belongs to the province of the executive


department. Strangely though, these political bodies are vested with adjudicating and rulemaking
powers. This is where the crux of the controversy lies. Many political theorists such as A.V. Dicey
and Friedrich Hayek contends that administrative agencies with hybrid powers of the executive,
legislative and judiciary blatantly violates the principle of separation of powers and made an assertion
that the rise of administrative agencies contributes to the decline of the Rule of Law, at least in the
West2. With the creation of these bodies it was said, the Chief Executive or the President was
indirectly given powers which properly pertain to the other branches. It was somehow suggested that
the concentration of powers into the same hands is the very definition of tyranny or despotism.
Warning against the assumption excessive power by the Virginia legislature, Thomas Jefferson in his
only book entitled, “Notes on Virginia (1785)” said that:

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BRIAN TAMANAHA, ON THE RULE OF LAW, 64-65 (Cambridge University Press)
All the powers of government, legislative, executive, and judiciary, result
to the legislative body. The concentrating these in the same hands is
precisely the definition of despotic government. It will be no alleviation
that these powers will be exercised by a plurality of hands, and not by a
single one. One hundred and seventy-three despots would surely be as
oppressive as one....As little will it avail us that they are chosen by
ourselves. An elective despotism was not the government we fought
for..."

In sum, the opposing view against administrative agencies is that it tramples upon the idea of
separation of powers and it totally eschews the concepts of checks and balances. Moreover, its rise has
a connection to the marked decline of the Rule of Law.

ADMINISTRATIVE AGENCIES UNDER AND “WITHIN” THE RULE OF LAW

Unlike economics, the peaceful co-existence of every man cannot be left to an invisible hand.
In a state of nature, where survival dictates what is good, man versus man is inevitable. The necessary
existence of man, taken collectively, brought about the creation and promulgation of laws. Because of
laws, men became interdependent citizens.

As with the existence of laws, much has been said about the creation and existence of
administrative agencies. And, understandably, a jump from the raw definition of the principle of
separation of powers brings about the assumption that these agencies violate the principle. We,
however, believe that that is not the case. For us, administrative agencies are not evil creations
indicative of tyranny.

The apparent mixture of the separate powers of government: implementation, adjudication


and creation of laws, to make up the powers of an administrative agency can be justified. To start the
justification, one must remember the system of checks and balances inherent in a government where
there is separation of powers. While the three great powers of government are found to exist in an
administrative agency does not mean that an agency is accountable only to itself.

As with administrative agencies, there are safeguards which are ever-present to prevent the
absolute subjection to the will of a single powerful entity of all the powers in the government. First,
administrative agencies are directly accountable to the executive: as the alter ego of the Chief
Executive, cabinet members who violate the laws that the executive is tasked to enforce would not be
allowed to remain in their office. It has been said time and again that cabinet members serve at the
pleasure of the Chief Executive and thus, the latter can appoint and dismiss them as he or she pleases.
Second, as administrative agencies are created through law enacted by the legislative department, the
legislature, by implication, has the power to abolish an agency when it sees that the agency no longer
serves the purpose of its creation. The Congress also has the power of appropriation, another method
by which it can check the agencies. Third, the powers and authority which these administrative
agencies can exercise are expressly laid down within the law of its creation. It cannot do any act or
rules beyond the scope of its authority otherwise; the act is null and void. The duty to declare
whether or not an administrative agency acted beyond its scope of authority is specially lodged with
the judiciary. Finally, since an administrative agency is a necessary product of the needs of the
people, the moment the need ceases, abolition of the agency can easily be justified.

Unlike, then, the three great branches of government, which are accountable to three
entities, administrative agencies are accountable to four. What the principle of separation of powers
seeks to prevent is the UNFETTERED concentration of all governmental powers into the same hands.
In the case of administrative agencies, there is concentration of the powers, but the same is not
unfettered as shown by the safeguards just mentioned.

The authors believe that administrative agencies are operating within the framework of the
rule of law since there is a parallelism between the purpose for the creation of laws and
administrative agencies: both are created out of necessity.
As with regards to the fear raised by A.V. Dicey and Friedrich Hayek, the authors submit that
the same is understandable since they brought it up at the time when administrative agencies,
generally, have not yet proven their worth. And if we consider their theoretical apprehensions side
by side with what the administrative agencies have practically achieved nowadays, their position
cannot be considered as tenable anymore.