MARKING OUT THE BOUNDARIES

OF LEGISLATIVE AND EXECUTIVE POWERS

The issue of whether there is undue delegation of legislative

power when an administrative agency is tasked with “filling up the
details” of an act of Congress persists because such delegation is
often resorted to in the face of the growing complexity of modern
social life. There is thus a constant need to mark out the boundaries
between legislative power and executive power. These selected cases
may help illuminate the distinction between the two powers.

ABAKADA GURO V. ERMITA

G.R. No. 168056, September 1, 2005

This case reiterates the basic doctrines on allowable delegation of rule-making or

law-execution to administrative agencies. It emphasizes the need to mark out the
boundaries between legislative and executive powers. – RVB

With respect to the Legislature, Section 1 of Article VI of the

Constitution provides that "the Legislative power shall be vested in
the Congress of the Philippines which shall consist of a Senate and a
House of Representatives." The powers which Congress is prohibited
from delegating are those which are strictly, or inherently and
exclusively, legislative. Purely legislative power, which can never be
delegated, has been described as the authority to make a complete
law — complete as to the time when it shall take effect and as to
whom it shall be applicable — and to determine the expediency of its
enactment. Thus, the rule is that in order that a court may be justified
in holding a statute unconstitutional as a delegation of legislative
power, it must appear that the power involved is purely legislative in
nature — that is, one appertaining exclusively to the legislative
department. It is the nature of the power, and not the liability of its
use or the manner of its exercise, which determines the validity of its
delegation.

XXX

Nonetheless, the general rule barring delegation of legislative

powers is subject to the following recognized limitations or
exceptions:

(1) Delegation of tariff powers to the President under Section 28

(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under

Section 23 (2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.

In every case of permissible delegation, there must be a

showing that the delegation itself is valid. It is valid only if the law

(a) is complete in itself, setting forth therein the policy to be

executed, carried out, or implemented by the delegate; and

(b) fixes a standard — the limits of which are sufficiently

determinate and determinable — to which the delegate must conform
in the performance of his functions. A sufficient standard is one
which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected.
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.

XXX

Clearly, the legislature may delegate to executive officers or

bodies the power to determine certain facts or conditions, or the
happening of contingencies, on which the operation of a statute is, by
its terms, made to depend, but the legislature must prescribe
sufficient standards, policies or limitations on their authority. While
the power to tax cannot be delegated to executive agencies, details as
to the enforcement and administration of an exercise of such power
may be left to them, including the power to determine the existence
of facts on which its operation depends.

XXX

The rationale for this is that the preliminary ascertainment of

facts as basis for the enactment of legislation is not of itself a
legislative function, but is simply ancillary to legislation. Thus, the
duty of correlating information and making recommendations is the
kind of subsidiary activity which the legislature may perform
through its members, or which it may delegate to others to perform.
Intelligent legislation on the complicated problems of modern society
is impossible in the absence of accurate information on the part of the
legislators, and any reasonable method of securing such information
is proper. The Constitution as a continuously operative charter of
government does not require that Congress find for itself every fact
upon which it desires to base legislative action or that it make for
itself detailed determinations which it has declared to be prerequisite
to application of legislative policy to particular facts and
circumstances impossible for Congress itself properly to investigate.
 BELGICA V. OCHOA

G.R. No. 208566, November 19, 2013

In a sense, this case is the converse of the Abakada case. It takes the
legislature to task for intervening in what it deems to be an essentially
executive function. – RVB

Clearly, post-enactment measures which govern the areas of

project identification, fund release and fund realignment are not
related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong to
the sphere of budget execution. Indeed, by virtue of the foregoing,
legislators have been, in one form or another, authorized to
participate in — as Guingona, Jr. puts it — "the various operational
aspects of budgeting," including "the evaluation of work and
financial plans for individual activities " and the "regulation and
release of funds" in violation of the separation of powers principle.
The fundamental rule, as categorically articulated in Abakada, cannot
be overstated — from the moment the law becomes effective, any
provision of law that empowers Congress or any of its members to
play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus
unconstitutional. That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor
since the prohibition, to repeat, covers any role in the implementation
or enforcement of the law. Towards this end, the Court must
therefore abandon its ruling in Philconsa which sanctioned the
conduct of legislator identification on the guise that the same is
merely recommendatory and, as such, respondents' reliance on the
same falters altogether.
 XXX

Thus, for all the foregoing reasons, the Court hereby declares
the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment
authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the separation of
powers principle and thus unconstitutional. Corollary thereto,
informal practices, through which legislators have effectively
intruded into the proper phases of budget execution, must be
deemed as acts of grave abuse of discretion amounting to lack or
excess of jurisdiction and, hence, accorded the same unconstitutional
treatment.

XXX

In the cases at bar, the Court observes that the 2013 PDAF
Article, insofar as it confers post-enactment identification authority to
individual legislators, violates the principle of non-delegability since
said legislators are effectively allowed to individually exercise the
power of appropriation, which — as settled in Philconsa — is lodged
in Congress. That the power to appropriate must be exercised only
through legislation is clear from Section 29 (1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." To
understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor (Bengzon), held that
the power of appropriation involves

(a) the setting apart by law of a certain sum from the public
revenue for

(b) a specified purpose.

 Essentially, under the 2013 PDAF Article, individual legislators
are given a personal lump-sum fund from which they are able to
dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. As these
two (2) acts comprise the exercise of the power of appropriation as
described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly,
said legislators have been conferred the power to legislate which the
Constitution does not, however, allow. Thus, keeping with the
principle of non-delegability of legislative power, the Court hereby
declares the 2013 PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.

CHIONGBIAN V. ORBOS

G.R. No. 96754 June 22, 1995

This case answers the question of when a standard is sufficient for purposes of
allowable delegation of rule-making power. The case asserts a liberal attitude towards
such standards. - RVB

The question whether Congress has provided a sufficient

standard by which the President is to be guided in the exercise of the
power granted and whether in any event the grant of power to him is
included in the subject expressed in the title of the law.

First, the question of standard. A legislative standard need not

be expressed. It may simply be gathered or implied. Nor need it be
found in the law challenged because it may be embodied in other
statutes on the same subjects as that of the challenged legislation.
With respect to the power to merge existing administrative regions,
the standard is to be found in the same policy underlying the grant to
the President in R.A. No. 5435 of the power to reorganize the
Executive Department, to wit: "to promote simplicity, economy and
efficiency in the government to enable it to pursue programs
consistent with national goals for accelerated social and economic
development and to improve the service in the transaction of the
public business." Indeed, as the original eleven administrative
regions were established in accordance with this policy, it is logical to
suppose that in authorizing the President to "merge [by
administrative determination] the existing regions" in view of the
withdrawal from some of those regions of the provinces now
constituting the Autonomous Region, the purpose of Congress was to
reconstitute the original basis for the organization of administrative
regions.

DISINI V. SECRETARY OF JUSTICE

G.R. No. 203335, February 18, 2014

Sections 24 and 26 (a) [ of Republic Act 10175, the Cybercrime

Prevention Act  of  2012] provide:

Sec. 24. Cybercrime Investigation and Coordinating Center. — There

is hereby created, within thirty (30) days from the effectivity of this Act, an
inter-agency body to be known as the Cybercrime Investigation and
Coordinating Center (CICC), under the administrative supervision of the
Office of the President, for policy coordination among concerned agencies
and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions. — The CICC shall have the following
powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate

assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT); . . . .

Petitioners mainly contend that Congress invalidly delegated

its power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or parameters for
it to follow.

In order to determine whether there is undue delegation of

legislative power, the Court has adopted two tests: the completeness
test and the sufficient standard test. Under the first test, the law must
be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he
will have to do is to enforce it. The second test mandates adequate
guidelines or limitations in the law to determine the boundaries of
the delegate's authority and prevent the delegation from running riot.

Here, the cybercrime law is complete in itself when it directed

the CICC to formulate and implement a national cybersecurity plan.
Also, contrary to the position of the petitioners, the law gave
sufficient standards for the CICC to follow when it provided a
definition of cybersecurity. Cybersecurity refers to the collection of
tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect
cyber environment and organization and user's assets. This definition
serves as the parameters within which CICC should work in
formulating the cybersecurity plan. Further, the formulation of the
cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable
international cooperation." This policy is clearly adopted in the
interest of law and order, which has been considered as sufficient
standard. Hence, Sections 24 and 26 (a) are likewise valid.

SEC V. INTERPORT

G.R. No. 135808, October 6, 2008

The petitioners in this case take the opposite from the usual undue-delegation-of-
legislative power tack: they pose the question of whether a statute can be implemented
pending the issuance of implementing rules by the concerned administrative agency. –
RVB

The mere absence of implementing rules cannot effectively

invalidate provisions of law, where a reasonable construction that
will support the law may be given. In People v. Rosenthal, this Court
ruled that:

In this connection we cannot pretermit reference to the rule that

"legislation should not be held invalid on the ground of uncertainty if
susceptible of any reasonable construction that will support and give it
effect. An Act will not be declared inoperative and ineffectual on the ground
that it furnishes no adequate means to secure the purpose for which it is
passed, if men of common sense and reason can devise and provide the
means, and all the instrumentalities necessary for its execution are within
the reach of those
intrusted therewith." (25 R.C.L., pp. 810, 811)

XXX

The necessity for vesting administrative authorities with power

to make rules and regulations is based on the impracticability of
lawmakers' providing general regulations for various and varying
details of management. To rule that the absence of implementing
rules can render ineffective an act of Congress, such as the Revised
Securities Act, would empower the administrative bodies to defeat
the legislative will by delaying the implementing rules. To assert that
a law is less than a law, because it is made to depend on a future
event or act, is to rob the Legislature of the power to act wisely for
the public welfare whenever a law is passed relating to a state of
affairs not yet developed, or to things future and impossible to fully
know. It is well established that administrative authorities have the
power to promulgate rules and regulations to implement a given
statute and to effectuate its policies, provided such rules and
regulations conform to the terms and standards prescribed by the
statute as well as purport to carry into effect its general policies.
Nevertheless, it is undisputable that the rules and regulations cannot
assert for themselves a more extensive prerogative or deviate from
the mandate of the statute. Moreover, where the statute contains
sufficient standards and an unmistakable intent, as in the case of
Sections 30 and 36 of the Revised Securities Act, there should be no
impediment to its implementation.

QUEZON CITY PTCA FEDERATION, INC.

V. DEPARTMENT OF EDUCATIO

G.R. No. 188720, February 23, 2016

The three powers of government — executive, legislative,

and judicial — have been generally viewed as non-delegable.
However, in recognition of the exigencies that contemporary
governance must address, our legal system has recognized the
validity of "subordinate legislation," or the rule-making power of
agencies tasked with the administration of government. In Eastern
Shipping Lines v. Philippine Overseas Employment Administration: 
The principle of non-delegation of powers is
applicable to all the 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 have to be
delegated by the authorities to which they legally
pertain. In the case of the legislative power, however,
such occasions 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 myriad 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 to provide the required direct and
efficacious, not to say, specific solutions. These
solutions may, however, be expected from its
delegates, who are supposed to be experts in the
particular fields assigned to them.
The reasons given above for the delegation of
legislative powers in general 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 authority to issue rules to
carry out the general provisions of the statute. This is
called the "power of subordinate legislation."
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
new Labor Code. These regulations have the force and
effect of law. 
Administrative agencies, however, are not given unfettered
power to promulgate rules. As noted in Gerochi v. Department of
Energy, two requisites must be satisfied in order that rules issued
by administrative agencies may be considered valid: the
completeness test and the sufficient standard test:
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.  (Emphasis
supplied)
Further, in ABAKADA GURO Party List v. Purisima: 
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. 

###