EN BANC
ABAKADA GURO PARTY G.R. No. 166715
LIST (formerly AASJS)*
OFFICERS/MEMBERS
SAMSON S. ALCANTARA,
ED VINCENT S. ALBANO,
ROMEO R. ROBISO,
RENE B. GOROSPE and
EDWIN R. SANDOVAL,
Petitioners, Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
-
v e r s u s - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.
NACHURA,
REYES,
LEONARDO-DE
CASTRO and
BRION, JJ.
HON. CESAR V. PURISIMA, in
his capacity as Secretary
of
Finance, HON. GUILLERMO L.
PARAYNO, JR., in his
capacity
as Commissioner of the
Bureau
of Internal Revenue, and
HON. ALBERTO D. LINA, in his
Capacity as Commissioner
of
Bureau of Customs,
Respondents. Promulgated:
August 14, 2008
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D E C I S I O N
CORONA, J.:
This petition for prohibition[1] seeks to
prevent respondents from implementing and enforcing Republic Act (RA) 9335[2]
(Attrition Act of 2005).
RA 9335 was enacted to optimize the
revenue-generation capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by providing a system
of rewards and sanctions through the creation of a Rewards and Incentives Fund
(Fund) and a Revenue Performance Evaluation Board (Board).[3] It
covers all officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.[4]
The Fund is sourced from the
collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee
(DBCC). Any incentive or reward is taken from the fund and allocated to the BIR
and the BOC in proportion to their contribution in the excess collection of the
targeted amount of tax revenue.[5]
The Boards in the BIR and the BOC are
composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM)
or his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the
officials nominated by their recognized organization.[6]
Each Board has the duty to (1)
prescribe the rules and guidelines for the allocation, distribution and release
of the Fund; (2) set criteria and procedures for removing from the service
officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4)
prescribe a system for performance evaluation; (5) perform other functions,
including the issuance of rules and regulations and (6) submit an annual report
to Congress.[7]
The DOF, DBM, NEDA, BIR, BOC and the
Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,[8] to be
approved by a Joint Congressional Oversight Committee created for such purpose.[9]
Petitioners, invoking their right as
taxpayers filed this petition challenging the constitutionality of RA 9335, a
tax reform legislation. They contend that, by establishing a system of rewards
and incentives, the law “transform[s] the officials and employees of the BIR
and the BOC into mercenaries and bounty hunters” as they will do their best
only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally mandated duty
of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting
the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction as to why
such a system should not apply to officials and employees of all other
government agencies.
In addition, petitioners assert that
the law unduly delegates the power to fix revenue targets to the President as
it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA
9335 provides that BIR and BOC officials may be dismissed from the service if
their revenue collections fall short of the target by at least 7.5%, the law
does not, however, fix the revenue targets to be achieved. Instead, the fixing
of revenue targets has been delegated to the President without sufficient
standards. It will therefore be easy for the President to fix an unrealistic
and unattainable target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the
creation of a congressional oversight committee on the ground that it violates
the doctrine of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval of the law, the
creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In
their comment, respondents, through the Office of the Solicitor General, question
the petition for being premature as there is no actual case or controversy yet.
Petitioners have not asserted any right or claim that will necessitate the
exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge
that public policy requires the resolution of the constitutional issues
involved in this case. They assert that the allegation that the reward system
will breed mercenaries is mere speculation and does not suffice to invalidate
the law. Seen in conjunction with the declared objective of RA 9335, the law
validly classifies the BIR and the BOC because the functions they perform are
distinct from those of the other government agencies and instrumentalities.
Moreover, the law provides a sufficient standard that will guide the executive in
the implementation of its provisions. Lastly, the creation of the congressional
oversight committee under the law enhances, rather than violates, separation of
powers. It ensures the fulfillment of the legislative policy and serves as a
check to any over-accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the
conflicting contentions of the parties, the Court finds that petitioners have failed
to overcome the presumption of constitutionality in favor of RA 9335, except as
shall hereafter be discussed.
Actual Case And Ripeness
An
actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial adjudication.[10] A
closely related requirement is ripeness, that is, the question must be ripe for
adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the individual
challenging it.[11]
Thus, to be ripe for judicial adjudication, the petitioner must show a personal
stake in the outcome of the case or an injury to himself that can be redressed
by a favorable decision of the Court.[12]
In
this case, aside from the general claim that the dispute has ripened into a
judicial controversy by the mere enactment of the law even without any further
overt act,[13]
petitioners fail either to assert any specific and concrete legal claim or to demonstrate
any direct adverse effect of the law on them. They are unable to show a personal
stake in the outcome of this case or an injury to themselves. On this account,
their petition is procedurally infirm.
This notwithstanding, public interest
requires the resolution of the constitutional issues raised by petitioners. The
grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative
branch is alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.[14]
Accountability of
Public Officers
Section 1, Article 11 of the
Constitution states:
Sec. 1. Public
office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism, and justice, and lead modest
lives.
Public office is a public trust. It
must be discharged by its holder not for his own personal gain but for the
benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government officials and employees have the duty to
be responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption
of regularity in the performance of their duties. This presumption necessarily obtains
in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof
and reinforces it by providing a system of rewards and sanctions for the
purpose of encouraging the officials and employees of the BIR and the BOC to
exceed their revenue targets and optimize their revenue-generation capability
and collection.[15]
The presumption is disputable but proof
to the contrary is required to rebut it. It cannot be overturned by mere
conjecture or denied in advance (as petitioners would have the Court do) specially
in this case where it is an underlying principle to advance a declared public
policy.
Petitioners’ claim that the
implementation of RA 9335 will turn BIR and BOC officials and employees into
“bounty hunters and mercenaries” is not only without any factual and legal
basis; it is also purely speculative.
A law enacted by Congress enjoys the
strong presumption of constitutionality. To justify its nullification, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and
equivocal one.[16]
To invalidate RA 9335 based on petitioners’ baseless supposition is an affront
to the wisdom not only of the legislature that passed it but also of the
executive which approved it.
Public service is its own reward.
Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of public
accountability. In fact, it recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public service of deserving government
personnel.
In United States v. Matthews,[17] the
U.S. Supreme Court validated a law which awards to officers of the customs as
well as other parties an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling. Citing Dorsheimer v.
United States,[18] the
U.S. Supreme Court said:
The
offer of a portion of such penalties to the collectors is to stimulate and
reward their zeal and industry in detecting fraudulent attempts to evade
payment of duties and taxes.
In the same vein, employees of the
BIR and the BOC may by law be entitled to a reward when, as a consequence of
their zeal in the enforcement of tax and customs laws, they exceed their
revenue targets. In addition, RA 9335 establishes safeguards to ensure that the
reward will not be claimed if it will be either the fruit of “bounty hunting or
mercenary activity” or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the
law:
SEC. 8. Liability
of Officials, Examiners and Employees of the BIR and the BOC. – The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this
Act or who are guilty of negligence, abuses or acts of malfeasance or
misfeasance or fail to exercise extraordinary diligence in the performance of
their duties shall be held liable for any loss or injury suffered by any
business establishment or taxpayer as a result of such violation, negligence,
abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal
protection clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of
persons who are classified based on substantial differences in relation to the
object to be accomplished.[19] When
things or persons are different in fact or circumstance, they may be treated in
law differently. In Victoriano v. Elizalde Rope Workers’ Union,[20] this
Court declared:
The
guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the [S]tate. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The
equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is
the grouping of things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary.
In
the exercise of its power to make classifications for the purpose of enacting
laws over matters within its jurisdiction, the state is recognized as enjoying
a wide range of discretion. It is not necessary that the classification be
based on scientific or marked differences of things or in their relation.
Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on
narrow distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation is
addressed to evils as they may appear.[21]
(emphasis supplied)
The equal protection clause recognizes
a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.[22] With
respect to RA 9335, its expressed public policy is the optimization of the
revenue-generation capability and collection of the BIR and the BOC.[23] Since
the subject of the law is the revenue- generation capability and collection of
the BIR and the BOC, the incentives and/or sanctions provided in the law should
logically pertain to the said agencies. Moreover, the law concerns only the BIR
and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following
functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau
of Internal Revenue, which shall be headed by and subject to the supervision
and control of the Commissioner of Internal Revenue, who shall be appointed by
the President upon the recommendation of the Secretary [of the DOF], shall have
the following functions:
(1)
Assess and collect all taxes, fees and
charges and account for all revenues collected;
(2)
Exercise duly delegated police powers for
the proper performance of its functions and duties;
(3)
Prevent and prosecute tax evasions and
all other illegal economic activities;
(4)
Exercise supervision and control over its
constituent and subordinate units; and
(5)
Perform such other functions as may be
provided by law.[24]
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the
following functions:
Sec. 23. The
Bureau of Customs. – The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall
be appointed by the President upon the recommendation of the Secretary[of the
DOF] and hereinafter referred to as Commissioner, shall have the following
functions:
(1)
Collect custom duties, taxes and the
corresponding fees, charges and penalties;
(2)
Account for all customs revenues
collected;
(3)
Exercise police authority for the
enforcement of tariff and customs laws;
(4)
Prevent and suppress smuggling, pilferage
and all other economic frauds within all ports of entry;
(5)
Supervise and control exports, imports,
foreign mails and the clearance of vessels and aircrafts in all ports of entry;
(6)
Administer all legal requirements that
are appropriate;
(7)
Prevent and prosecute smuggling and other
illegal activities in all ports under its jurisdiction;
(8)
Exercise supervision and control over its
constituent units;
(9)
Perform such other functions as may be
provided by law.[25]
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus
under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent
functions – taxation. Indubitably, such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the
demands of equal protection.
Undue Delegation
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.[26]
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.[27]
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.[28]
RA 9335 adequately states the policy
and standards to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:
SEC. 2. Declaration
of Policy. – It is the policy of the State to optimize the
revenue-generation capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and
sanctions through the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the purpose of
encouraging their officials and employees to exceed their revenue targets.
Section 4 “canalized within banks
that keep it from overflowing”[29] the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards
and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to
be sourced from the collection of the BIR and the BOC in excess of their
respective revenue targets of the year, as determined by the Development Budget
and Coordinating Committee (DBCC), in the following percentages:
|
Excess of Collection of the Excess the Revenue
Targets |
Percent (%) of the Excess Collection
to Accrue to the Fund |
|
30% or
below |
– 15% |
|
More than
30% |
– 15% of
the first 30% plus
20% of the remaining excess |
The Fund shall be deemed
automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal
year.
Revenue targets shall refer to the
original estimated revenue collection expected of the BIR and the BOC for a
given fiscal year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’ revenue targets
as allocated among its revenue districts in the case of the BIR, and the
collection districts in the case of the BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the
original estimated revenue collection expected respectively of the BIR and the
BOC for a given fiscal year as approved by the DBCC and stated in the BESF
submitted by the President to Congress.[30] Thus,
the determination of revenue targets does not rest solely on the President as
it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies
the limits of the Board’s authority and identifies the conditions under which
officials and employees whose revenue collection falls short of the target by
at least 7.5% may be removed from the service:
SEC. 7. Powers and Functions of the
Board. – The Board in the agency shall have the following powers and
functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials
and employees whose revenue collection falls short of the target by at least
seven and a half percent (7.5%), with due consideration of all relevant factors
affecting the level of collection as provided in the rules and regulations
promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding
two years in operation, as has no historical record of collection performance
that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in
the middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue
targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on accountability
of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates
the security of tenure of officials and employees of the BIR and the BOC.
The guarantee of security of
tenure only means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is accorded
the employee.[31]
In the case of RA 9335, it lays down a reasonable yardstick for removal (when
the revenue collection falls short of the target by at least 7.5%) with due
consideration of all relevant factors affecting the level of collection. This
standard is analogous to inefficiency and incompetence in the performance of
official duties, a ground for disciplinary action under civil service laws.[32] The
action for removal is also subject to civil service laws, rules and regulations
and compliance with substantive and procedural due process.
At any rate, this Court has
recognized the following as sufficient standards: “public interest,” “justice
and equity,” “public convenience and welfare” and “simplicity, economy and
welfare.”[33]
In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public
interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint
Congressional Oversight Committee. – There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate
shall be appointed by the Senate President, with at least two senators representing
the minority. The Members from the House of Representatives shall be appointed
by the Speaker with at least two members representing the minority. After the
Oversight Committee will have approved the implementing rules and regulations
(IRR) it shall thereafter become functus officio and therefore cease to
exist.
The Joint Congressional Oversight
Committee in RA 9335 was created for the purpose of approving the implementing
rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC.
On May 22, 2006, it approved the said IRR. From then on, it became functus
officio and ceased to exist. Hence, the issue of its alleged encroachment
on the executive function of implementing and enforcing the law may be
considered moot and academic.
This notwithstanding, this might be
as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under
RA 9335 (or other similar laws for that
matter).
The scholarly discourse of Mr.
Justice (now Chief Justice) Puno on the concept of congressional oversight in
Macalintal v. Commission on Elections[34] is
illuminating:
Concept and bases of congressional
oversight
Broadly
defined, the power of oversight embraces all activities undertaken by
Congress to enhance its understanding of and influence over the implementation
of legislation it has enacted. Clearly, oversight concerns post-enactment
measures undertaken by Congress: (a) to monitor bureaucratic compliance with
program objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to assess executive conformity
with the congressional perception of public interest.
The
power of oversight has been held to be intrinsic in the grant of legislative
power itself and integral to the checks and balances inherent in a democratic
system of government. x x x x x x x x x
Over
the years, Congress has invoked its oversight power with increased frequency to
check the perceived “exponential accumulation of power” by the executive
branch. By the beginning of the 20th century, Congress has delegated
an enormous amount of legislative authority to the executive branch and the
administrative agencies. Congress, thus, uses its oversight power to make sure
that the administrative agencies perform their functions within the authority
delegated to them. x x x x
x x x x x
Categories of congressional oversight
functions
The
acts done by Congress purportedly in the exercise of its oversight powers may
be divided into three categories, namely: scrutiny, investigation
and supervision.
a. Scrutiny
Congressional
scrutiny implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine economy and
efficiency of the operation of government activities. In the exercise of
legislative scrutiny, Congress may request information and report from the
other branches of government. It can give recommendations or pass resolutions
for consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While
congressional scrutiny is regarded as a passive process of looking at the facts
that are readily available, congressional investigation involves a more
intense digging of facts. The power of Congress to conduct investigation is
recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The
third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. “Supervision” connotes a
continuing and informed awareness on the part of a congressional committee
regarding executive operations in a given administrative area. While
both congressional scrutiny and investigation involve inquiry into past
executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the
exercise of delegated law-making authority, and permits Congress to retain part
of that delegated authority.
Congress exercises supervision over the executive agencies
through its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate regulations with the
force of law. These provisions require the President or an agency to present
the proposed regulations to Congress, which retains a “right” to approve or
disapprove any regulation before it takes effect. Such legislative veto provisions usually
provide that a proposed regulation will become a law after the expiration of a
certain period of time, only if Congress does not affirmatively disapprove of
the regulation in the meantime. Less frequently, the statute provides that a
proposed regulation will become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain
the balance of power between the legislative and the executive branches of
government as it offers lawmakers a way to delegate vast power to the executive
branch or to independent agencies while retaining the option to cancel
particular exercise of such power without having to pass new legislation or to
repeal existing law. They contend that this arrangement promotes democratic
accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:
It is too late to debate
the merits of this delegation policy: the policy is too deeply embedded in our
law and practice. It suffices to say that the complexities of modern government
have often led Congress-whether by actual or perceived necessity- to legislate
by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress
articulates legislative aims, but leaves their implementation to the judgment
of parties who may or may not have participated in or agreed with the
development of those aims. Consequently, absent safeguards, in many instances
the reverse of our constitutional scheme could be effected: Congress proposes,
the Executive disposes. One safeguard, of course, is the legislative power to
enact new legislation or to change existing law. But without some means of
overseeing post enactment activities of the executive branch, Congress would be
unable to determine whether its policies have been implemented in accordance
with legislative intent and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge that any
post-enactment measures undertaken by the legislative branch should be limited
to scrutiny and investigation; any measure beyond that would undermine the
separation of powers guaranteed by the Constitution. They contend that
legislative veto constitutes an impermissible evasion of the President’s veto
authority and intrusion into the powers vested in the executive or judicial
branches of government. Proponents counter that legislative veto enhances
separation of powers as it prevents the executive branch and independent
agencies from accumulating too much power. They submit that reporting
requirements and congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. They do not
allow Congress to review executive proposals before they take effect and they
do not afford the opportunity for ongoing and binding expressions of
congressional intent. In contrast, legislative veto permits Congress to
participate prospectively in the approval or disapproval of “subordinate law”
or those enacted by the executive branch pursuant to a delegation of authority
by Congress. They further argue that legislative veto “is a necessary response
by Congress to the accretion of policy control by forces outside its chambers.”
In an era of delegated authority, they point out that legislative veto “is the
most efficient means Congress has yet devised to retain control over the
evolution and implementation of its policy as declared by statute.”
In
Immigration and Naturalization Service v. Chadha, the U.S. Supreme
Court resolved the validity of legislative veto provisions. The case arose
from the order of the immigration judge suspending the deportation of Chadha
pursuant to § 244(c)(1) of the Immigration and Nationality Act. The United
States House of Representatives passed a resolution vetoing the suspension
pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular
deportable alien to remain in the United States. The immigration judge reopened
the deportation proceedings to implement the House order and the alien was
ordered deported. The Board of Immigration Appeals dismissed the alien’s
appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that the
House was without constitutional authority to order the alien’s deportation and
that § 244(c)(2) violated the constitutional doctrine on separation of powers.
On
appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But
the Court shied away from the issue of separation of powers and instead
held that the provision violates the presentment clause and bicameralism. It
held that the one-house veto was essentially legislative in purpose and effect.
As such, it is subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both Houses and presentment
to the President. x x x x x
x x x x
Two
weeks after the Chadha decision, the Court upheld, in memorandum
decision, two lower court decisions invalidating the legislative veto
provisions in the Natural Gas Policy Act of 1978 and the Federal Trade
Commission Improvement Act of 1980. Following this precedence, lower courts
invalidated statutes containing legislative veto provisions although some of
these provisions required the approval of both Houses of Congress and thus met
the bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised.[35]
(emphasis supplied)
In Macalintal, given the
concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission
on Elections, the Court struck down the provision in RA 9189 (The Overseas
Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor
and evaluate the implementation of the said law but also to review, revise,
amend and approve the IRR promulgated by the Commission on Elections. The Court
held that these functions infringed on the constitutional independence of the
Commission on Elections.[36]
With this backdrop, it is clear that
congressional oversight is not unconstitutional per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather,
it is integral to the checks and balances inherent in a democratic system of
government. It may in fact even enhance the separation of powers as it prevents
the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional
encroachment “beyond the legislative sphere,” the Constitution imposes two
basic and related constraints on Congress.[37] It may not
vest itself, any of its committees or its members with either executive or
judicial power.[38]
And, when it exercises its legislative power, it must follow the “single,
finely wrought and exhaustively considered, procedures” specified under the Constitution,[39]
including the procedure for enactment of laws and presentment.
Thus, any
post-enactment congressional measure such as this should be limited to scrutiny
and investigation. In particular, congressional oversight must be confined to
the following:
(1) scrutiny based
primarily on Congress’ power of appropriation and the budget hearings conducted
in connection with it, its power to ask heads of departments to appear before
and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation[40]
and
(2) investigation and
monitoring[41]
of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.[42]
Any action or step beyond
that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.
Legislative veto is a
statutory provision requiring
the President or an administrative agency to present the proposed implementing
rules and regulations of a law to Congress which, by itself or through a
committee formed by it, retains a “right” or “power” to approve or disapprove
such regulations before they take effect. As such, a legislative veto in the
form of a congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law initially
delegated broad powers.[43] It
radically changes the design or structure of the Constitution’s diagram of
power as it entrusts to Congress a direct role in enforcing, applying or
implementing its own laws.[44]
Congress has two options when
enacting legislation to define national policy within the broad horizons of its
legislative competence.[45] It can
itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with
those standards.[46]
In the latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature.[47] Thus,
what is left for the executive branch or the concerned administrative agency
when it formulates rules and regulations implementing the law is to fill up
details (supplementary rule-making) or ascertain facts necessary to bring the
law into actual operation (contingent rule-making).[48]
Administrative regulations enacted by
administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect.[49] Such
rules and regulations partake of the nature of a statute[50] and are
just as binding as if they have been written in the statute itself. As such,
they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a
competent court.[51]
Congress, in the guise of assuming the role of an overseer, may not pass upon
their legality by subjecting them to its stamp of approval without disturbing
the calculated balance of powers established by the Constitution. In exercising
discretion to approve or disapprove the IRR based on a determination of whether
or not they conformed with the provisions of RA 9335, Congress arrogated judicial
power unto itself, a power exclusively vested in this Court by the
Constitution.
Considered Opinion
of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the
implementing rules of a law be subjected to approval by Congress as a condition
for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.[52]
Section 1, Article VI of the
Constitution states:
Section 1.
The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum. (emphasis supplied)
Legislative power
(or the power to propose, enact, amend and repeal laws)[53] is
vested in Congress which consists of two chambers, the Senate and the House of
Representatives. A valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the
validity of a legislative veto, both a single-chamber legislative veto and a
congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article
VI of the Constitution provides:
Section 27. (1) Every bill passed by the
Congress shall, before it becomes a law, be presented to the President. If
he approves the same, he shall sign it, otherwise, he shall veto it and return
the same with his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of
all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House,
it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting
for or against shall be entered in its Journal. The President shall communicate
his veto of any bill to the House where it originated within thirty days after
the date of receipt thereof; otherwise, it shall become a law as if he had
signed it. (emphasis supplied)
Every bill passed
by Congress must be presented to the President for approval or veto. In the
absence of presentment to the President, no bill passed by Congress can become a
law. In this sense, law-making under the Constitution is a joint act of the
Legislature and of the Executive. Assuming that legislative veto is a valid
legislative act with the force of law, it cannot take effect without such
presentment even if approved by both chambers of Congress.
In sum, two steps
are required before a bill becomes a law. First, it must be approved by both
Houses of Congress.[54] Second,
it must be presented to and approved by the President.[55] As summarized by Justice Isagani Cruz[56]
and Fr. Joaquin G. Bernas, S.J.[57], the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of
Representatives or the Senate except for some measures that must originate only
in the former chamber.
The first reading involves only a reading of the number and
title of the measure and its referral by the Senate President or the Speaker to
the proper committee for study.
The bill may be “killed” in the committee or it may be
recommended for approval, with or without amendments, sometimes after public
hearings are first held thereon. If there are other bills of the same nature or
purpose, they may all be consolidated into one bill under common authorship or
as a committee bill.
Once reported out, the bill shall be calendared for second
reading. It is at this stage that the bill is read in its entirety, scrutinized,
debated upon and amended when desired. The second reading is the most important
stage in the passage of a bill.
The bill as approved on second reading is printed in its
final form and copies thereof are distributed at least three days before the
third reading. On the third reading, the members merely register their votes
and explain them if they are allowed by the rules. No further debate is
allowed.
Once the bill passes third reading, it is sent to the other
chamber, where it will also undergo the three readings. If there are
differences between the versions approved by the two chambers, a conference
committee[58]
representing both Houses will draft a compromise measure that if ratified by
the Senate and the House of Representatives will then be submitted to the
President for his consideration.
The bill is enrolled when printed as finally approved by
the Congress, thereafter authenticated with the signatures of the Senate
President, the Speaker, and the Secretaries of their respective chambers…[59]
The President’s role in law-making.
The final step is submission to the
President for approval. Once approved, it takes effect as law after the
required publication.[60]
Where
Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be
complete in all its essential terms and conditions when it leaves the hands of
the legislature. And it may be deemed to have left the hands of the legislature
when it becomes effective because it is only upon effectivity of the statute
that legal rights and obligations become available to those entitled by the
language of the statute. Subject to the indispensable requisite of publication
under the due process clause,[61] the
determination as to when a law takes effect is wholly the prerogative of
Congress.[62]
As such, it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the said law. Before
that point, the role of the executive branch, particularly of the President, is
limited to approving or vetoing the law.[63]
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. Under this principle, a provision that requires Congress
or its members to approve the implementing rules of a law after it has already
taken effect shall be unconstitutional, as is a provision that allows Congress
or its members to overturn any directive or ruling made by the members of the
executive branch charged with the implementation of the law.
Following
this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that may
be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.[64]
The next question to be resolved is:
what is the effect of the unconstitutionality of Section 12 of RA 9335 on the
other provisions of the law? Will it render the entire law unconstitutional?
No.
Section 13 of RA 9335 provides:
SEC. 13. Separability
Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such
declaration of invalidity shall remain in force and effect.
In Tatad v. Secretary of the
Department of Energy,[65] the
Court laid down the following rules:
The
general rule is that where part of a statute is void as repugnant to the
Constitution, while another part is valid, the valid portion, if separable from
the invalid, may stand and be enforced. The presence of a separability clause
in a statute creates the presumption that the legislature intended
separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion
that it is fair to presume that the legislature would have enacted it by itself
if it had supposed that it could not constitutionally enact the other. Enough
must remain to make a complete, intelligible and valid statute, which carries
out the legislative intent. x x x
The
exception to the general rule is that when the parts of a statute
are so mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that the
legislature intended them as a whole, the nullity of one part will vitiate the
rest. In making the parts of the statute dependent, conditional, or connected
with one another, the legislature intended the statute to be carried out as a
whole and would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.
The separability clause of RA 9335 reveals
the intention of the legislature to isolate and detach any invalid provision
from the other provisions so that the latter may continue in force and effect.
The valid portions can stand independently of the invalid section. Without
Section 12, the remaining provisions still constitute a complete, intelligible
and valid law which carries out the legislative intent to optimize the
revenue-generation capability and collection of the BIR and the BOC by
providing for a system of rewards and sanctions through the Rewards and
Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules
and regulations must be published in full if their purpose is to enforce or
implement existing law pursuant to a valid delegation. The IRR of RA 9335 were
published on May 30, 2006 in two newspapers of general circulation[66] and
became effective 15 days thereafter.[67] Until
and unless the contrary is shown, the IRR are presumed valid and effective even
without the approval of the Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY
GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight
Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD.
Pursuant to Section 13 of RA 9335, the rest of the provisions remain in
force and effect.
SO
ORDERED.
Associate Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice |
CONSUELO
YNARES-SANTIAGO Associate Justice |
|
ANTONIO T. CARPIO Associate Justice |
MA. ALICIA M. AUSTRIA-MARTINEZ Associate Justice
|
CONCHITA CARPIO MORALES
Associate Justice
|
ADOLFO S. AZCUNA
Associate Justice |
|
DANTE O. TINGA Associate Justice |
MINITA V. CHICO-NAZARIO
Associate Justice
|
|
PRESBITERO J. VELASCO, JR. Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
|
RUBEN T. REYES Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
ARTURO D. BRION
Associate Justice
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the above decision had been reached
in consultation before the case was assigned to the writer of the opinion of
the Court.
REYNATO S. PUNO
Chief Justice
* Advocates and Adherents of Social Justice for School Teachers and Allied Workers.
[1] Under Rule 65 of the Rules of Court.
[2] An Act to Improve Revenue Collection Performance of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) Through the Creation of a Rewards and Incentives Fund and of a Revenue Performance Evaluation Board and for Other Purposes.
[3] Section 2, RA 9335.
[4] Section 3, id.
[5] Section 4, id.
[6] Section 6, id.
[7] Section 7, id.
[8] Section 11, id.
[9] Section 12, id.
[10] Cruz, Isagani, Philippine Constitutional Law, 1995 edition, p. 23.
[11] Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 edition, pp. 848-849.
[12] Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904 (2000). (Vitug, J., separate opinion)
[13] See La Bugal-B’Laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 01 December 2004, 445 SCRA 1.
[14] Tañada v. Angara, 338 Phil. 546 (1997).
[15] Section 2, id.
[16] Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, 15 December 2004, 446 SCRA 299.
[17] 173 U.S. 381 (1899).
[18] 74 U.S. 166 (1868).
[19] Black’s Law Dictionary, Special De Luxe 5th Edition, West, p. 481.
[20] 158 Phil. 60 (1974).
[21] Id. Citations omitted.
[22] Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA 572.
[23] Section 2, RA 9335.
[24] Section 18, Chapter 4, Title II, Book IV, Administrative Code of 1987.
[25] Section 23, id.
[26] Pelaez v. Auditor General, 122 Phil. 965 (1965).
[27] Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, 18 October 1988, 166 SCRA 533.
[28] Cruz, Isagani, Philippine Political Law, 1991 edition, p. 97.
[29] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), (Cardozo, J., dissenting).
[30] Section 5, Rule II, Implementing Rules and Regulations of RA 9335.
[31] De Guzman, Jr. v. Commission on Elections, 391 Phil. 70 (2000).
[32] See Section 46(b)(8), Chapter 6, Title I, Subtitle A, Book V, Administrative Code of 1987.
[33] Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214, 19 September 2006, 502 SCRA 295.
[34] 453 Phil. 586 (2003). Mr. Justice (now Chief Justice) Puno’s separate opinion was adopted as part of the ponencia in this case insofar as it related to the creation of and the powers given to the Joint Congressional Oversight Committee.
[35] Id. (italics in the original)
[36] Id.
[37] Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
[38] Id.
[39] Id.
[40] See Mr. Justice (now Chief Justice) Puno’s separate opinion in Macalintal.
[41] E.g., by requiring the regular submission of reports.
[42] See Mr. Justice (now Chief Justice) Puno’s separate opinion in Macalintal.
[43] See Tribe, Lawrence, I American Constitutional Law 131 (2000).
[44] Id.
[45] Id. at 141.
[46] Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise, supra.
[47] Edu v. Ericta, 146 Phil. 469 (1970).
[48] Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 edition, p. 664 citing Wayman v. Southward, 10 Wheat 1 (1852) and The Brig Aurora, 7 Cr. 382 (1813)).
[49] Eslao v. Commission on Audit, G.R. No. 108310, 01 September 1994, 236 SCRA 161; Sierra Madre Trust v. Secretary of Agriculture and Natural Resources, 206 Phil. 310 (1983).
[50] People v. Maceren, 169 Phil. 437 (1977).
[51] See Eslao v. Commission on Audit, supra.
[52] It is also for these reasons that the United States Supreme Court struck down legislative vetoes as unconstitutional in Immigration and Naturalization Service v. Chadha (462 U.S. 919 [1983]).
[53] Nachura, Antonio B., Outline Reviewer in Political Law, 2006 edition, p. 236.
[54] Section 26, Article VI of the Constitution provides:
Section 26. (1) Every bill passed
by the Congress shall embrace only one subject which shall be expressed in the
title thereof.
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.
[55] See Bernas, supra note 48, p. 762.
[56] Philippine Political Law, 2002 edition, Central Lawbook Publishing Co., Inc., pp. 152-153.
[57] The Philippine Constitution for Ladies, Gentlemen And Others, 2007 edition, Rex Bookstore, Inc., pp. 118-119.
[58] The conference committee consists of members nominated by both Houses. The task of the conference committee, however, is not strictly limited to reconciling differences. Jurisprudence also allows the committee to insert new provision[s] not found in either original provided these are germane to the subject of the bill. Next, the reconciled version must be presented to both Houses for ratification. (Id.)
[59] Supra note 56.
[60] Supra note 57.
[61] See Section 1, Article III of the Constitution. In Tañada v. Tuvera (230 Phil. 528), the Court also cited Section 6, Article III which recognizes “the right of the people to information on matters of public concern.”
[62] As much is recognized in Article 2 of the Civil Code which states that “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.” Tañada recognized that “unless it is otherwise provided” referred to the date of effectivity. Simply put, a law which is silent as to its effectivity date takes effect fifteen days following publication, though there is no impediment for Congress to provide for a different effectivity date.
[63] It has
been suggested by Mr. Justice Antonio T. Carpio that Section 12 of RA 9335 is
likewise unconstitutional because it violates the principle of separation of
powers, particularly with respect to the executive and the legislative branches.
Implicit in this claim is the proposition that the ability of the President to
promulgate implementing rules to legislation is inherent in the executive
branch.
There has long been a trend towards the delegation of
powers, especially of legislative powers, even if not expressly permitted by
the Constitution. (I. Cortes, Administrative Law, at 12-13.) Delegation of
legislative powers is permissible unless the delegation amounts to a surrender
or abdication of powers. (Id.) Recent instances of delegated legislative powers
upheld by the Court include the power of the Departments of Justice and Health
to promulgate rules and regulations on lethal injection (Echegaray v.
Secretary of Justice, 358 Phil. 410 [1998]); the power of the Secretary of
Health to phase out blood banks (Beltran v. Secretary of Health, G.R.
No. 133640, 133661, & 139147, 25 November 2005, 476 SCRA 168); and the
power of the Departments of Finance and Labor to promulgate Implementing Rules
to the Migrant Workers and Overseas Filipinos Act. (Equi-Asia Placement v.DFA, G.R. No. 152214, 19 September 2006,
502 SCRA 295.)
The delegation to the executive branch of the power to
formulate and enact implementing rules falls within the class of permissible
delegation of legislative powers. Most recently, in Executive Secretary v.
Southwing Heavy Industries (G.R. Nos. 164171, 164172 &168741, 20
February 2006, 482 SCRA 673), we characterized such delegation as “confer[ring]
upon the President quasi-legislative power which may be defined as the authority
delegated by the law-making body to the administrative body to adopt rules and
regulations intended to carry out the provisions of the law and implement
legislative policy.” (Id., at 686, citing Cruz, Philippine Administrative Law,
2003 Edition, at 24.) Law book authors are likewise virtually unanimous that
the power of the executive branch to promulgate implementing rules arises from
legislative delegation. Justice Nachura defines the nature of the rule-making
power of administrative bodies in the executive branch as “the exercise of
delegated legislative power, involving no discretion as to what the law
shall be, but merely the authority to fix the details in the execution or
enforcement of a policy set out in the law itself.” (A.E. Nachura, Outline
Reviewer in Political Law [2000 ed.], at 272.) He further explains that rules
and regulations that “fix the details in the execution and enforcement of a
policy set out in the law” are called “supplementary or detailed legislation”.
(Id., at 273.) Other commentators such as Fr. Bernas (Bernas, supra note 48, at
611), De Leon and De Leon (H. De Leon & H. De Leon, Jr., Administrative
Law: Text and Cases (1998 ed), at 79-80; citing 1 Am. Jur. 2d 891) and Carlos
Cruz (C. Cruz, Philippine Administrative Law (1998 ed), at 19-20, 22, 23) have
similar views.
The Congress may delegate the power to craft
implementing rules to the President in his capacity as the head of the
executive branch, which is tasked under the Constitution to execute the law. In
effecting this delegation, and as with any other delegation of legislative
powers, Congress may impose conditions or limitations which the executive
branch is bound to observe. A usual example is the designation by Congress of which
particular members of the executive branch should participate in the drafting
of the implementing rules. This set-up does not offend the separation of powers
between the branches as it is sanctioned by the delegation principle.
Apart from whatever rule-making power that Congress
may delegate to the President, the latter has inherent ordinance powers
covering the executive branch as part of the power of executive control (“The
President shall have control of all the executive departments, bureaus and offices…”
Section 17, Article VII, Constitution.). By its nature, this ordinance power
does not require or entail delegation from Congress. Such faculty must be
distinguished from the authority to issue implementing rules to legislation
which does not inhere in the presidency but instead, as explained earlier, is
delegated by Congress.
The marked distinction between the President’s power
to issue intrabranch orders and instructions or internal rules for the
executive branch, on one hand, and the President’s authority by virtue of
legislative delegation to issue implementing rules to legislation, on the
other, is embodied in the rules on publication, as explained in Tañada v.
Tuvera (G.R. No. L-63915, 29 December 1986, 146 SCRA 446). The Court held
therein that internal regulations applicable to members of the executive
branch, “that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.” (Id., at 454) The dispensation with
publication in such instances is rooted in the very nature of the issuances, i.e.,
they are not binding on the public. They neither create rights nor impose
obligations which are enforceable in court. Since they are issued pursuant to
the power of executive control, and are directed only at members of the
executive branch, there is no constitutional need for their publication.
However, when the presidential issuance does create
rights and obligations affecting the public at large, as implementing rules
certainly do, then publication is mandatory. In explaining why this is so, the
Court went as far as to note that such rules and regulations are designed “to
enforce or implement existing law pursuant to a valid delegation.” (Id.,
at 254.) The Court would not have spoken of “valid delegation” if indeed the
power to issue such rules was inherent in the presidency. Moreover, the
creation of legal rights and obligations is legislative in character, and the
President in whom legislative power does not reside cannot confer legal rights
or impose obligations on the people absent the proper empowering statute. Thus,
any presidential issuance which purports to bear such legal effect on the
public, such as implementing rules to legislation, can only emanate from a
legislative delegation to the President.
The prevalent practice in the Office of the President
is to issue orders or instructions to officials of the executive branch
regarding the enforcement or carrying out of the law. This practice is valid
conformably with the President’s power of executive control. The faculty to
issue such orders or instructions is distinct from the power to promulgate
implementing rules to legislation. The latter originates from a different legal
foundation – the delegation of legislative power to the President.
Justice Carpio cites an unconventional interpretation
of the ordinance power of the President, particularly the power to issue
executive orders, as set forth in the Administrative Code of 1987. Yet, by
practice, implementing rules are never contained in executive orders. They are,
instead, contained in a segregate promulgation, usually entitled “Implementing
Rules and Regulations,” which derives not from the Administrative Code, but
rather from the specific grants in the legislation itself sought to be
implemented.
His position does not find textual support in the
Administrative Code itself. Section 2, Chapter 2, Title 1, Book III of the
Code, which defines “Executive orders” as “[a]cts of the President providing
for rules of a general or permanent character in the implementation or
execution of constitutional or statutory powers”. Executive orders are not
the vehicles for rules of a general or permanent character in the implementation
or execution of laws. They are the vehicle for rules of a general or
permanent character in the implementation or execution of the constitutional
or statutory powers of the President himself. Since by definition, the
statutory powers of the President consist of a specific delegation by Congress,
it necessarily follows that the faculty to issue executive orders to implement
such delegated authority emanates not from any inherent executive power but
from the authority delegated by Congress.
It is not correct, as Justice Carpio posits, that
without implementing rules, legislation cannot be faithfully executed by the
executive branch. Many of our key laws, including the Civil Code, the Revised
Penal Code, the Corporation Code, the Land Registration Act and the Property
Registration Decree, do not have Implementing Rules. It has never been
suggested that the enforcement of these laws is unavailing, or that the absence
of implementing rules to these laws indicates insufficient statutory details
that should preclude their enforcement. (See DBM v.Kolonwel Trading,
G.R. Nos. 175608, 175616 & 175659, 8 June 2007, 524 SCRA 591, 603.)
In rejecting the theory that the power to craft implementing rules is executive in character and reaffirming instead that such power arises from a legislative grant, the Court asserts that Congress retains the power to impose statutory conditions in the drafting of implementing rules, provided that such conditions do not take on the character of a legislative veto. Congress can designate which officers or entities should participate in the drafting of implementing rules. It may impose statutory restraints on the participants in the drafting of implementing rules, and the President is obliged to observe such restraints on the executive officials, even if he thinks they are unnecessary or foolhardy. The unconstitutional nature of the legislative veto does not however bar Congress from imposing conditions which the President must comply with in the execution of the law. After all, the President has the constitutional duty to faithfully execute the laws.
[64] This stance is called for by judicial restraint as well as the presumption of constitutionality accorded to laws enacted by Congress, a co-equal branch. It is also finds support in Pelaez v. Auditor General (122 Phil. 965 [1965]).
[65] 346 Phil. 321 (1997). Emphasis in the original.
[66] In particular, the Philippine Star and the Manila Standard.
[67] Section 36, IRR of RA 9335.