General Rule: potestas delegata non delegari potest

Non-Delegation of Powers
1. Meaning and Explanation. The Congress cannot further delegate the power
delegated to it by the people. This is in keeping with the principle of non-
delegation of powers which is applicable to all the three branches of the
government. The rule states that what has been delegated cannot further be
delegated – potestas delegata non delegari potest. A delegated power must be
discharged directly by the delegate and not through the delegate’s agent. It is
basically an ethical principle which requires direct performance by the delegate
of an entrusted power. Further delegation therefore constitutes violation of the
trust reposed by the delegator on the delegate. The people, through the
Constitution, delegated lawmaking powers to the Congress, and as such, it
cannot as a rule delegate further the same to another.

Exception: instances of permissible delegation

In order to address the numerous and complex demands of legislative function, the
Constitution provides exceptions to the rule. Further delegation is permitted in the
following cases:

(a) Delegation to the people at large. The Congress further delegates its legislative
power by allowing direct legislation by the people in cases of initiative and
referendum;

(b) Delegation of emergency powers to the President. Section 23 (2), Article VI of the
Constitution states that “in times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy.” Emergency powers are delegated to the President by the
Congress to effectively solve the problems caused by war or other crisis which the
Congress could not otherwise solve with more dispatch than the President;

(c) Delegation of tariff powers to the President. Section 28 (2), Article VI of the
Constitution states that “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.” Tariff powers are delegated to the President by the Congress to
efficiently and speedily solve economic problems posed by foreign trade which the
Congress could not otherwise address with more dispatch than the President;
(d) Delegation to administrative bodies. The Congress delegates the so called “power
of subordinate legislation” to administrative bodies. Due to the growing complexity of
modern society, it has become necessary to allow specialized administrative bodies to
promulgate supplementary rules, so that they can deal with technical problems with
more expertise and dispatch than the Congress or the courts. Regulations or
supplementary rules passed by the administrative bodies are intended to fill-in the
gaps and provide details to what is otherwise a broad statute passed by Congress. For
the rules and regulations to be valid and binding, they must be in accordance with the
statute on which they are based, complete in themselves, and fix sufficient standards.
If any of the requirements is not satisfied, the regulation will not be allowed to affect
private rights; and

(e) Delegation to the local governments. This delegation is based on the principle that
the local government is in better position than the national government to act on
purely local concerns. Legislative power is therefore given to them for effective local
legislation.

System on initiative and referendum

While the power to legislate is generally lodged with the Congress, the
Constitution ensures that the people retain their lawmaking power through the
system of initiative and referendum.6 This inherent right, which consists of the
power to directly propose, enact, approve or reject, in whole or in part, any law or
constitutional amendment, is distinctly acknowledged by the 1987 Constitution in
at least three provisions.

The first is with regard to the authority of the people to directly propose
amendments to the Constitution through “initiative”, which can be initiated
through a petition of at least twelve per centum (12%) of the total number of
registered voters, of which every legislative district must be represented by at
least three per centum (3%) of the registered voters therein. 7 It is worth noting
that previous Philippine constitutions (1935 and 1973) recognized only two
methods of proposing amendments to the Constitution – (a) by Congress upon a
vote of ¾ of all its members; and (b) by a constitutional convention. The present
Constitution added the people initiative and referendum as a third mode for
changing the Constitution.

The second constitutional provision pertains to the power of the people to

directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or a local legislative body. Again, this can be initiated
through the submission of a petition for that purpose as long as it is signed by at
least ten per centum (10%) of the total number of registered voters, of which
every legislative district must be represented by at least three per centum (3%) of
the registered voters in the district.8
The third provision seeks to empower the people at the local government
level by mandating Congress to enact a local government code that should
provide for, among others, effective mechanisms of recall, initiative and
referendum.9
In the words of a former Chief Justice, these constitutional provisions have
“institutionalized people power in law-making” because of their express
recognition of the electorate’s residual and sovereign authority to ordain
legislation.10

two tests of valid delegation

a. Completeness test
 This means that the law must be complete in all its terms and conditions when it leaves the
legislature so that when it reaches the delegate, it will have nothing to do but to enforce it.
b. Sufficient standards test
The law must offer a sufficient standard to specify the limits of the delegate’s authority,
announce the legislative policy and specify the conditions under which it is to be implemented.