Gerald A. Hindap Assignment No.

7
Legislation on the administrative level, and limitations on the rule-making
power.
The legislative power primarily vested on the Legislative branch of the
government it is the power to make, alter, or repeal laws, or rules for the future. It is
distinguished from judicial power or "legislation," in that basically it operates in the
future, rather than on past transactions or circumstances.
The rule-making power of an administrative agency, that is, the power to make
implementing or interpretative rules or regulations, is legislative in character and
results in "delegated legislation." "Rule making" is legislation on the administrative
level, that is, legislation within the confines of the granting statute, as required by
the Constitution and its doctrine of non-delegability and separability of certain
powers flowing from the separation of the three branches of the government. It is
also called administrative legislation, delegated legislation, ordinance-making, and
quasi-legislation.
Rules, regulations, and orders or rulings distinguished.
The terms "rules" and "regulations" are generally used interchangeably
although it would appear that the former is a term of broader connotation than the
latter. The rules and regulations of an administrative body or officer usually
comprise those actions of such body or officer in which the legislative element
predominates in that they establish a pattern of conduct thereafter to be followed.
They are the duly made general rules relative to the subject on which the
administrative agency acts, subordinate to the terms of the statute under which they
are promulgated, and in aid of the enforcement of its provisions. On the other hand,
some administrative regulations constitute nothing more than an administrative
opinion as to what a statute under construction means, as where an administrative
tribunal in adopting a regulation, only purports to interpret what the legislature
meant by its statutory language. In other words, the term "regulations" may be used
in the sense of "rules" or only in the sense of "interpretative regulations."
The rules and regulations of a public administrative agency have been
distinguished from the orders or determinations of such an agency. The latter are
actions in which there is more of the judicial function and which deal with a
particular present situation, while the former are actions in which the legislative
element predominates.
Kinds of rule-making powers/rules and regulations.
Rule-making powers. — Rules and regulations of administrative agencies are of
different classes. Otherwise stated, administrative agencies have various kinds of
rule-making powers which have been classified as follows, to wit: (a) Supplementary
or detailed legislation or rule-making by reason of particular delegation of authority;
(b) Interpretative legislation or rule-making by the construction and interpretation of
a statute being administered; and (c) Contingent legislation or determination, under
delegated power, whether a statute shall go into effect.
Administrative rules. — Based on the above classifications, the administrative rules
and regulations may be discretionary or legislative, interpretative, and contingent.
Contingent rules are legislative, so are procedural rules. The agency rules may also
be internal or those issued by an administrative superior to his subordinates; and
penal or those which prescribe criminal sanctions.
Legislative rules and regulations.
The "Legislative" or discretionary rules or regulations are indeed a form of
subordinate legislation which can be issued only in virtue of statutory delegation.
When valid, they are accorded the force and effect of law immediately upon going
into effect. In such instances, the administrative agency is acting in a legislative
capacity, supplementing the statute, filling in the details, or "making the law," and
usually acting pursuant to a specific delegation of legislative power to implement
the broad policies laid down in a statute. Administrative rules may describe the
general discretionary policies to be followed by the agency. In many cases, agencies
have thus worked out standards and policies which, in effect, control the
administrative decision in a wide variety of cases.
It is said that "if the rule represents something more than the agency's opinion
as to what the statute requires if the legislature has delegated a measure of legislative
power to the agency and has provided a statutory sanction for violation of such rules
as the agency may adopt then the rule may properly be described as legislative."
There are two ways to identify the characteristics of legislative rules first, the statute
has delegated power to the agency to adopt the rule; and second, it provides that the
rule shall, if within the delegated power, have authoritative force.
Interpretative rules and regulations.
Resemble judicial adjudication are those which purport to do no more than
interpret the statute being administered, to say what it means. They constitute the
administrator's construction of a statute. In such instances, the administrative agency
is merely anticipating what ultimately must be done by the courts. It is performing a
judicial function rather than a legislative function. Interpretative regulations have
validity in judicial proceedings only to the extent that they correctly construe the
statute. Strictly speaking, it is the statute and not the regulation to which the
individual must conform.
It is an elementary rule in administrative law that administrative rules and
regulations or policies enacted by administrative bodies to interpret the law which
they are entrusted to enforce, have the force of law, and are entitled to great weight
and respect. The best authority to interpret a rule is the source of the rule itself.
Nevertheless, interpretations by an administrative body of the law or its rules, while
they ordinarily control the construction of the courts, are not conclusive. They are at
best advisory for it is the courts that finally determine what the law means, and they
will be set aside or ignored if judicially found erroneous.
Legislative and interpretative rules distinguished.
The distinction between legislative and interpretative rules are divided into
five aspects.
First, is the power to create new law, legislative rules are in the nature of
subordinate legislation. They are the product of the power to create new and
additional legal provisions that have the effect of law, while interpretative rules are
the product of interpretation of previously existing laws.
Second, is the need of express delegation, while legislative regulations may
be issued only under express delegation of law, interpretative regulations may be
issued as a necessary incident of the administration of a regulatory statute.
Third, the presence of statutory sanction, a given statutory delegation
authorizes legislative or interpretative regulations depends upon whether the statute
places specific "sanctions" behind the regulations authorized, as for example, by
making it a criminal offense to disobey them, or by making conformity with their
provisions a condition of the exercise of legal privileges. Legislative regulations are
said to have the force and effect of law unless they are ultra vires or were issued
under an unconstitutional delegation.
Fourth, the binding force and effect, valid legislative rules have the same force
and effect as valid statutes. Since interpretative rules are, in theory, but
administrative findings of law they are always subject to judicial determination that
they are erroneous, even when their issuance is authorized by statute. However,
interpretative regulations and the less formalized interpretations which result from
long-standing practice on the part of those charged with the administration of statute,
while at best merely advisory, are both to be given great weight.
Last, the consequence of wrong construction, no vested right can be acquired
on a wrong construction of the law by administrative officials and such wrong
interpretation does not place the government in estoppel to correct or overrule the
same.
Contingent rules and regulations.
Congress may provide that a law shall take effect upon the happening of future
specified contingencies leaving to some other person or body the power to determine
when the specified contingency has arisen.
It may delegate a power not legislative which it may itself rightfully exercise.
The power to ascertain facts is such power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of acts or conditions as the basis
of the taking into effect of a law.
The finding by an administrative authority of the existence of conditions
defined in the statute under which its provisions shall become operative comes under
the head of rule-making since it usually involves judgment, if not discretion.

Procedural rules
The term refers to those describing the methods by which the agency will
carry out its appointed functions, rules which make provisions for the filing of
applications, the resolution of complaints, the serving of papers, the conduct of
hearings, and the like. An agency cannot very well function without rules of
procedure, and it may be supposed that every agency has such rules, at least at the
level of intra-office memoranda.
Procedural rules, interpretative rules, and legislative rules serve three basic
purposes. Some rules, however, may serve two or more of these three purposes
simultaneously. For example, a rule prescribing the burden of proof in administrative
hearings may serve as a statement of procedure, and, at the same time evince the
agency's interpretation of the governing statute. Indeed, it is conceivable that such a
rule might, under some circumstances, serve the purpose of a legislative regulation.
Ordinance power of the President.
The following are classified as the ordinance power of the President:
(1) Acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders;
(2) Acts of the President which relate to particular aspects of govermental
operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders;
(3) Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order;
(4) Acts of the President on matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders;
(5) Acts of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars; and
(6) Acts and commands of the President in his capacity as Commander-in-Chief
of the Armed Forces of the Philippines shall be issued as general or special
orders."
Administrative issuances of Secretaries and heads of bureaus, offices or
agencies.
The administrative issuances of Secretaries and heads of bureaus, offices or
agencies shall be in the form of circulars or orders. Every such circular or order shall
properly be identified as such and chronologically numbered. Each class of issuance
shall begin with number 1 for each calendar year. Each department, bureau, office
or agency shall keep and preserve a logbook in which shall be recorded in
chronological order, all final official acts, decisions, transactions or contracts,
pertaining to the department, bureau, office or agency. Whenever the performance
of an official act is in issue, the date and the time record in the logbook shall be
controlling. The logbook shall be in the custody of the chief Administrative Officer
concerned and shall be open to the public for inspection. The Records Management
and Archives Office in the General Services Administration shall provide such
assistance as may be necessary to effect general adherence to the foregoing
classification of issuances, including the conduct of studies for developing sub-
classifications and guidelines to meet peculiar needs. All administrative issuances of
a general or permanent character shall be compiled, indexed and published pursuant
to the provisions of the Administrative Code.
Practical necessity of the rulemaking power
In regards to in regulation of highly complex and changing conditions, In the
simple days of the agricultural era, statutes could be relatively concrete, specific, and
detailed. With the coming of the industrial age, however, not only are the conditions
to be regulated highly complex and rapidly changing, but unprecedented problems
have emerged. The public has demanded new controls, even while there has been
neither experience to teach the best methods nor at times even a clear conception of
the objectives of control.
While, the net result has been a gradual change in the regulatory role of
Congress which has been compelled, in many cases, to provide only the general
principles of regulation, and to devolve upon administrative authorities the task of
applying those general principles. Frequently, it has authorized such authorities to
concretize such principles, before applying them to particular cases, by the issuance
of rules and regulations of more specific content. The conclusion that, under modern
conditions, this is a necessary and normal technique of regulations is increasingly
verified by experience in several states.
Statutes are generally couched in general terms. The details and manner of
carrying out the law are left to the administrative agency charged with its
implementation. It seems clear that if the governing or enabling statute is quite
detailed or specific, there would be very little need (or occasion) for implementing
administrative regulations. It is, however, precisely the inability of legislative bodies
to anticipate all (or many) possible detailed situations in respect of any relatively
complex subject matter, that makes subordinate delegated rule-making by
administrative agency so important and unavoidable.