G.R. No. 166715  -  ABAKADA GURO PARTY LIST, et al., Petitioners, v. HON. CESAR V. PURISIMA, et al., Respondents.

 

 

 

                                                                                                Promulgated:

                                                                             August 14, 2008                     

x-----------------------------------------------------------------------------------------x

 

 

 

SEPARATE CONCURRING OPINION

 

 

CARPIO, J.:

 

          I concur with the majority opinion penned by Justice Renato C. Corona.   However, I wish to explain further why the last sentence in Section 12 of Republic Act No. 9335 (RA 9335), requiring the congressional oversight committee to approve the implementing rules and regulations of RA 9335, is unconstitutional.  

 

There are three compelling grounds why the approval requirement in Section 12 is unconstitutional. First, the approval requirement violates the separation of powers among the Legislature, Executive and Judiciary.  Second, the approval requirement involves the delegation to a congressional oversight committee of the power to enact laws that only the full two chambers of Congress can exercise. Third, the approval requirement violates the constitutional provision that bills enacted into law by Congress be presented to the President for approval or veto.

 

Section 12 of RA 9335 creates a joint congressional oversight committee (Oversight Committee) with the power to approve the implementing rules and regulations (IRR) of RA 9335.  Section 12 states:

 

Section 12.  Joint Congressional Oversight Committee. -  There is hereby created a Joint 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.  (Emphasis supplied)

 

 

Under Section 32 of RA 9335, the Department of Finance, Department of Budget and Management, National Economic and Development Authority, Bureau of Internal Revenue, Bureau of Customs, and the Civil Service Commission shall jointly draft the IRR.    The IRR cannot take effect without the approval of the Oversight Committee.

 

            Implementation of the law is indisputably an Executive function. To implement the law, the Executive must necessarily adopt implementing rules to guide executive officials how to implement the law, as well as to guide the public how to comply with the law.  These guidelines, known as implementing rules and regulations, can only emanate from the Executive because the Executive is vested with the power to implement the law.  Implementing rules and regulations are the means and methods on how the Executive will execute the law after the Legislature has enacted the law.  

 

          The Executive cannot implement the law without adopting implementing rules and regulations.  The power of the Executive to implement the law necessarily includes all power “necessary and proper”[1] to implement the law, including the power to adopt implementing rules and regulations.  The grant of executive power to the President in the Constitution is a grant of all executive power.[2]  The power to adopt implementing rules is thus inherent in the power to implement the law.   The power to adopt implementing rules and regulations is law-execution, not law-making.[3]  Within the sphere of its constitutional mandate to execute the law, the Executive possesses the power to adopt implementing rules to carry out its Executive function.  This applies also to the Judiciary, which also possesses the inherent power to adopt rules to carry out its Judicial function.

 

The Constitution mandates the President to “ensure that the laws be faithfully executed.”[4]  Without the power to adopt implementing rules and regulations, the Executive cannot ensure the faithful execution of the law.  Obviously, the President cannot personally execute the law but must rely on subordinate executive officials.  The President is inutile without the power to prescribe rules on how subordinate executive officials should execute the law.  

 

Thus, the President must necessarily give instructions to subordinate executive officials and the public – in the form of implementing rules and regulations – on how the law should be executed by subordinate officials and complied with by the public. If the Legislature can withhold from the Executive this power to adopt implementing rules and regulations in the execution of the law, the Executive is made subordinate to the Legislature, not its separate, co-ordinate and co-equal branch in Government. 

 

The inherent power of the Executive to adopt rules and regulations to execute or implement the law is different from the delegated legislative power to prescribe rules.  The inherent power of the Executive to adopt rules to execute the law does not require any legislative standards for its exercise while the delegated legislative power requires sufficient legislative standards for its exercise.[5] 

 

For example, Congress can delegate to the President the inherently legislative power to fix tariff rates.   However, the President can exercise this delegated legislative power only within “specified limits”[6] prescribed by Congress. The “specified limits” and other limitations prescribed by Congress are the standards that the President must comply in exercising the delegated legislative power.  Once the President complies with the legislative standards in fixing the tariff rates, he has fully exercised the delegated legislative power.  This does not prevent, however, the President from adopting rules to execute or implement the delegated legislative power that he has fully exercised.  These implementing rules are adopted by the President pursuant to the inherent power of the Executive to execute the law.  

 

There are laws that expressly provide for the Executive or its agencies to adopt implementing rules.  There are also laws that are silent on this matter.   It does not mean that laws expressly providing for the issuance of implementing rules automatically delegate legislative powers to the Executive.  While providing for the issuance of implementing rules, the law may not actually delegate any legislative power for the issuance of such rules.  It does not also mean that laws silent on the issuance of implementing rules automatically prevent the Executive from adopting implementing rules.  If the law is silent, the necessary implementing rules may still be issued pursuant to the President’s inherent rule-making power to execute the law.

 

Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive power depends on the nature of the rule-making power involved.   If the rule-making power is inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the Executive is a delegated legislative power.  In such event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the power.  

 

If the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power.   The most important self-executory constitutional power of the President is the President’s constitutional duty and mandate to “ensure that the laws be faithfully executed.”   The rule is that the President can execute the law without any delegation of power from the legislature.   Otherwise, the President becomes a mere figure-head and not the sole Executive of the Government.

 

Only if the law is incomplete, as when there are details to be filled in by the Executive under specified legislative standards before the law can be implemented, is the issuance of rules by the Executive anchored on the delegation of legislative power.  Once the law is complete, that is, the Executive has issued the rules filling in the details of the law, the Executive may still issue rules to execute the complete law based now on the Executive’s inherent power to execute the law.

 

Thus, Chapter 2, Title 1, Book III of the Administrative Code of 1987, on the Ordinance Power of the Executive, provides:

 

Chapter 2 - Ordinance Power

Section 2.        Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

 

Section 3.        Administrative Orders. — Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Section 4.        Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.

 

Section 5.        Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders.

 

Section 6.        Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars.   (Emphasis supplied; italicization in the original)

 

SECTION 7.   General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders. (Emphasis supplied; italicization in the original)

 

 

These provisions of the Revised Administrative Code do not grant, but merely recognize the President’s Ordinance Power and enjoin that such power shall be promulgated according to certain nomenclatures.  The President’s Ordinance Power is the Executive’s rule-making authority in implementing or executing constitutional or statutory powers. Indisputably, there are constitutional powers vested in the Executive that are self-executory.  The President may issue “rules of a general or permanent character in implementation or execution” of such self-executory constitutional powers. The power to issue such rules is inherent in Executive power.  Otherwise, the President cannot execute self-executory constitutional provisions without a grant of delegated power from the Legislature, a legal and constitutional absurdity.

 

The President may even delegate to subordinate executive officials the President’s inherent executive power to issue rules and regulations. Thus, pursuant to the President’s self-executory power to implement the laws, the President has issued Executive and Administrative orders authorizing subordinate executive officials to issue implementing rules and regulations without reference to any legislative grant to do so, as follows:

 

1.     Administrative Order No. 175 dated 2 April 2007 on Strengthening the Powers of the Secretary of Justice over the Bureau of Immigration, Section 3 of which provides:

 

Section 3.  Implementing Rules and Regulations. – The Secretary of Justice shall issue the Implementing Rules and Regulations covering this Administrative Order.

 

 

2.     Executive Order No. 269 dated 12 January 2004 on Creating the  Commission on Information and Communications Technology in the Office of the President, Section 8 of which provides:

 

Section 8.  Implementing Rules and Regulations. — The Chairman shall promulgate and issue such rules, regulations and other issuances within 60 days from the approval of this Executive Order as may be necessary to ensure the effective implementation of the provisions of this Executive Order. 

 

 

3.     Administrative Order No. 402 dated 2 June 1998 on the Establishment of a Medical Check-Up Program for Government Personnel, Section 6 of which provides:

 

Section 6.  Implementing Rules and Regulations. — The DOH, Department of Budget and Management (DBM) and the PHIC shall jointly formulate and issue the implementing rules and regulations for this program.

 

 

4.     Administrative order No. 357 dated 21 August 1997 on the Creation of the Civil Aviation Consultative Council, Section 6 of which provides:

 

Section 6.  Implementing Rules and Regulations. — The Council shall immediately formulate and adopt the necessary implementing rules and regulations for the effective and efficient implementation of the provisions of this Order.  

 

 

5. Executive Order No. 396 dated 30 January 1997 Providing the Institutional Framework for the Administration of the Standards of Training, Certification and Watchkeeping for Seafarers in the Philippines, Section 4 of which provides:

 

Section 4.  Implementing Rules and Regulations. — The STCW Executive Committee shall immediately convene to prepare and approve the Implementing Rules and Regulations for the effective implementation of this Order.

 

  6. Administrative Order No. 296 dated 11 October 1996 on the   Establishment of Customs Clearance Areas in Special Economic         and/or Freeport Zones, Section 3 of which provides:

 

Section 3. Implementing Rules and Regulations. — The BOC shall issue the necessary implementing rules and regulations for the operational procedures of the CCA, in consultation with the Zone authorities and concerned agencies.

 

 

7.  Executive Order No. 309 dated 11 November 1987 Reorganizing the Peace and Order Council, Section 5 of which provides:

 

 

Section 5.  Implementing Rules and Regulations. — The National Peace and Order Council shall issue appropriate implementing rules and regulations to carry out this Order.

 

 

To hold that the President has no inherent power to issue implementing rules and regulations in the exercise of the power to execute the laws will result in the mass invalidation of the foregoing Executive and Administrative Orders, and many more with similar provisions.  This will cripple the President’s self-executory power to execute the laws and render the President inutile.

 

In the present case, Section of 11 of RA 9335, the provision dealing on the issuance of the rules and regulations of RA 9335, states:

 

Section 11.  Rules and Regulations.  The DOF, DBM, NEDA, BIR, BOC and CSC shall jointly issue the rules and regulations of this Act within thirty days after its effectivity.

 

There is nothing in Section 11 of RA 9335 that delegates to the named agencies any legislative power.  There are also no legislative standards prescribed in Section 11 or in other provisions of RA 9335 governing the issuance of the rules and regulations of RA 9335.  Section 11 merely provides that the named agencies “shall jointly issue the rules and regulations” of RA 9335.   Thus, Section 11 of RA 9335 cannot be construed as a delegation of legislative power.

 

          On the other hand, Section 7(a) of RA 9335 delegates to the Revenue Performance and Evaluation Board (Board) the power to prescribe rules and regulations, as follows:

 

Section 7.  Powers and Functions of the Board.  The Board in the agency shall have the following powers and functions:

 

(a)    To prescribe the rules and regulations for the allocation, distribution and release of the Fund due to the agency as provided for in Section 4 and 5 of this Act: Provided, That the rewards under this Act may also take the form of non-monetary benefits;  

 

 x x x.  (Emphasis supplied)

 

 

Section 7(a) of RA 9335 is a delegation of legislative power to the Board in two agencies, the Bureau of Internal Revenue and the Bureau of Customs.  The specified standards for the Board’s exercise of the delegated legislative power are found in Sections 4 and 5[7] of RA 9335 as stated in Section 7(a).   

          However, the Board in Section 7(a) of RA 9335 is different from the agencies in Section 11 of RA 9335 that will issue the rules and regulations of RA 9335.  First, the members of the Board are different from the agencies named in Section 11.  Second, the functions of the Board are different from the functions of the agencies named in Section 11.   Third, RA 9335 does not require the rules and regulations issued by the Board to be approved by the Oversight Committee.

 

          Indeed, RA 9335 is an example of a law that contains a delegation of legislative power to prescribe rules based on specified legislative standards.  This is exemplified by Section 7(a).   RA 9335 is also an example of a law that recognizes the inherent power of the Executive to issue implementing rules and regulations to execute the law, which becomes complete after the delegated power in Section 7(a) is exercised by the Board.  This is exemplified by Section 11. 

 

          In any event, whether the rules are issued by Executive agencies pursuant to a delegated legislative power or pursuant to the Executive’s inherent power to execute the law, the result is the same:  the Legislature cannot approve or disapprove such rules and regulations promulgated by executive agencies.  The adoption of such rules and regulations is purely an Executive function, whether pursuant to a delegated legislative power or pursuant to the Executive’s inherent power.

 

The delegated legislative power, often referred to as regulatory power of executive agencies, is not inherently an Executive power.  However, once delegated in a law, the exercise of the delegated legislative power becomes a purely Executive function.  The Legislature cannot interfere in such function except through another law.

 

The well-entrenched rule is that Legislative officers cannot exercise Executive functions.  A law that invests Executive functions on Legislative officers is unconstitutional for violation of the separation of powers.   In Springer v. Government of the Philippine Islands,[8]  the U.S. Supreme Court held:

 

Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.  The latter are executive functions.  x x x. 

 

 Not having the power of appointment, unless expressly granted or incidental to its powers, the Legislature cannot ingraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection, though the case might be different if the additional duties were devolved upon an appointee of the executive.  Here the members of the Legislature who constitute a majority of the ‘board’ and ‘committee,’ respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of the performance of any such functions by the Legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the Governor General, it is clear that they are not legislative in character, and still more clear that they are not judicial.  The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one of the three among which the powers of government are divided.  (Citations omitted)

 

 

The power to adopt the IRR of RA 9335 is an Executive function. By requiring prior approval of the IRR by the Oversight Committee, Section 12 engrafts Executive functions on the Oversight Committee.  This is a clear violation of the separation of powers.

          The Legislature can intervene in the execution of the law only by enacting another law amending or repealing the act of the Executive. Any intervention by the Legislature other than through legislation is an encroachment on Executive power in violation of the separation of powers.  Once the Legislature enacts a bill into law and presents it to the President, its law-making function is complete. 

 

What happens to the law thereafter becomes the domain of the Executive and the Judiciary.  What the Legislature can do is to investigate or oversee the implementation of the law for the purpose of enacting remedial legislation. The Legislature can also withhold budgetary appropriation necessary to implement the law.  However, the Legislature cannot interpret, expand, restrict, amend or repeal the law except through a new legislation.

 

          The approval requirement in Section 12 of RA 9335 is a classic form of the so-called legislative veto.   The legislative veto is a device for the Legislature to usurp Executive or Judicial power in violation of the separation of powers.   An American textbook writer explains the legislative veto in this manner:

 

Congress, in an attempt to maintain more control over the President and over regulations promulgated by agencies of the federal government’s executive branch, has in the past incorporated into legislation a provision known as the “legislative veto” or the “congressional veto.”  Congress sought by statute to give itself what the Constitution gives to the President. Congress typically utilized veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law.  These provisions required the President or an agency official to present the proposed regulations to Congress, which retained a “right” to approve or disapprove any regulation before they take effect.[9] (Emphasis supplied)

 

 

          In the United States, the constitutionality of the legislative veto was resolved in the 1983 case of Immigration and Naturalization Service (INS) v. Chadha[10] where the U.S. Supreme Court declared legislative vetoes unconstitutional for violation of the Constitution’s bicameralism and presentment provisions.  Legislative vetoes are deemed legislative acts requiring compliance with the bicameralism and presentment provisions.  Legislative acts are acts intended to affect the legal rights, obligations, relations or status of persons or entities outside the Legislature.[11]

 

Bicameralism requires both chambers of Congress to act in approving legislation and Congress cannot delegate this power to only one chamber, or to a committee of either or both chambers.  Presentment requires Congress to present to the President for approval or veto a legislation before it becomes law.   

 

          Thus, Chief Justice Warren Burger, speaking for the U.S. Supreme Court in Chadha, declared:

 

[T]he bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps.   To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded.  

 

x x x

 

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.   There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. x x x With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

 

x x x

 

We hold that the Congressional veto provision in § 244(c)(2) is     x   x x   unconstitutional.[12]  

 

 

          The eminent constitutionalist Professor Laurence H. Tribe explains the Chadha ruling in this wise:

 

In INS v. Chadha, the Supreme Court held that all actions taken by Congress that is “legislative” in “character” must be taken in accord with the “single, finely wrought and exhaustively considered procedure” set forth in the “explicit and unambiguous provisions” of Article I.  In his opinion for the Court, Chief Justice Burger explained that the Presentment Clause and the bicamerality requirement constitute crucial structural restraints on the “hydraulic pressure inherent within [the legislature] to exceed the outer limits of its power.”  If the separation of powers is to be more than an “abstract generalization,” the courts must enforce the bicamerality and presentment rules not only when Congress purports to be legislating but whenever it takes action that must be deemed “legislative.”  Since the legislative veto of Chadha’s status as a permanent resident alien had to be so deemed but was neither approved by both Houses of Congress, nor presented to the President for signature or veto, it followed inexorably that it was unconstitutional.[13]

 

 

The Chadha ruling “sounded the death knell for nearly 200 other statutory provisions in which Congress has reserved a legislative veto.”[14]

 

Soon after the Chadha decision, the U.S. Supreme Court, in a memorandum decision, extended the Chadha ruling to bar legislative vetoes of executive agency rules and regulations.  Thus, in United States Senate v. Federal Trade Commission,[15]  the Court affirmed a Court of Appeals ruling declaring unconstitutional a provision authorizing a two-chamber veto of rules and regulations issued by the Federal Trade Commission.  In Process Gas Consumers Group v. Consumer Energy Council of America,[16] the separation of powers reasoning was applied for the first time to regulatory agencies.[17]   The appellate court ruling affirmed by the U.S. Supreme Court in Process Gas Consumers Group declares:

 

We hold that section 202(c) is unconstitutional.  The primary basis of this holding is that the one-house veto violates Article I, Section 7, both by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress.  In addition, we find that the one-house veto contravenes the separation of powers principle implicit in Articles I, II, and III because it authorizes the legislature to share powers properly exercised by the other two branches.  Because we find these bases sufficient to resolve the issue, we do not reach the undue delegation of powers issue raised by petitioners.[18]  (Emphasis supplied)

 

 

The U.S. Supreme Court has adopted the same ruling in the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise.[19]  In Metropolitan Washington Airports, the U.S. Supreme Court categorically applied the separation of powers in this wise:

 

 

An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique “Board of Review” composed of nine Members of Congress and vested with veto power over decisions made by MWAA's Board of Directors.  The principal question presented is whether this unusual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha,  Bowsher v. Synar, and Springer v. Philippine Islands [citations omitted]).   We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional.  (Emphasis supplied)

 

 

Interestingly, Metropolitan Washington Airports cites Springer v. Philippine Islands,[20] where the U.S. Supreme Court voided, for violation of the separation of powers, acts of the Philippine Legislature vesting in the Senate President and House Speaker, in addition to the Governor-General, the power to vote shares of stock in government-owned corporations.   The U.S. Supreme Court explained the application of the separation of powers in Metropolitan Washington Airports as follows:

 

To forestall the danger of encroachment “beyond the legislative sphere,” the Constitution imposes two basic and related constraints on the Congress.   It may not “invest itself or its Members with either executive power or judicial power.”  And, when it exercises its legislative power, it must follow the “single, finely wrought and exhaustively considered, procedures” specified in Article I. 

 

 The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands and Bowsher v. Synar.  Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three-two legislators and one executive-to vote corporate stock owned by the Philippine Government.   Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid.   Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers:

 

To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws....   The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.

 

 

The second constraint is illustrated by our decision in Chadha.   That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States.   Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I.   For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members.[21]   (Citations omitted)

 

 

 

Thus, the well-established jurisprudence in the United States is that legislative vetoes violate the separation of powers.  As Professor Laurence H. Tribe explains:

 

The Court has likewise recognized that congressional threats to the separation of powers are particularly worrisome in that they possess “stealth” capability: as James Madison “presciently observed, the legislature ‘can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.’” A recent example is the decision in Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, where the Court struck down a complicated law that conditioned transfer of control of the two airports near Washington, D.C. from the federal government to local authorities on the creation by the local authorities of a “Board of Review” comprising nine Members of Congress and vested with veto power over decisions made by the local airport agency.  The Court noted that the Constitution imposes two basic restraints on Congress: (1) it “may not ‘invest itself or its members with either executive or judicial power,’” and (2) “when it exercises its legislative power, it must follow the ‘single, finely wrought and exhaustively considered procedure’ specified in Article I.”  The Court explained that it did not need to decide just what sort of federal power the congressional Board of Review was exercising, because it was unconstitutional either way. “If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.”[22]  (Emphasis supplied)

 

 

Even before the Chadha ruling by the U.S. Supreme Court, almost all state supreme courts had consistently declared as unconstitutional legislative vetoes for violation of the separation of powers doctrine.  As explained by one writer before the promulgation of the Chadha ruling:

 

        The courts that recently have rejected the one-house or two-house veto show remarkable consistency in their reasoning. All the decisions are based on the separation of powers.   The underlying theory is that once the legislature has enacted a statute delegating authority to an administrative agency, no legislative action except another statute may nullify or amend the enabling statute or the agency’s action.

 

      This result rests on two premises.   First, when an agency takes action pursuant to an enabling statute, the agency is engaged in the execution of the laws and is therefore carrying out an executive function.   Although statutorily created administrative agencies are allowed to perform executive functions, neither the legislature nor any sub-unit of the legislature may perform such functions.  Thus, any legislative intervention in the execution of the laws by means other than a statute is an encroachment on the domain of the executive branch and violates the separation of powers.   The second premise is that, for purposes of this discussion, neither a one-house nor a two-house resolution of the legislature qualifies as a statute, because neither is presented to the chief executive for approval or veto; additionally, a one-house resolution violates the principle of bicameralism.[23]  (Emphasis supplied)

 

 

          Bicameralism is firmly embedded in the 1987 Constitution of the Philippines.  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 is vested in Congress which consists of two chambers.  Legislative power cannot be exercised solely by one of the two chambers.  This precludes a one-chamber legislative veto because one chamber alone is not the Congress.   The exercise of legislative power requires the act of both chambers of Congress.  Legislative power cannot also be exercised by a committee of either or both chambers for such a committee is not the Congress.   Consequently, this precludes the exercise of legislative veto by a congressional committee of either or both chambers.

 

          Presentment is also firmly embedded in the 1987 Constitution of the Philippines. Section 27(1), Article VI of the Constitution states:

 

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 single bill passed by Congress must be presented to the President for approval or veto.  No bill passed by Congress can become law without such presentment to the President.  In this sense, law-making under the Constitution is a joint act of the Legislature and the Executive.  A legislative veto, being a legislative act having the force of law, cannot take effect without such presentment even if both chambers of Congress approve the legislative veto. 

 

          There are, of course, acts of Congress which the Constitution vests solely in Congress without the requirement of presentment to the President.  For example, under Section 23(1), Article VI of the Constitution, Congress has the “sole power” to declare the existence of a state of war.  Another example is Section 8, Article IX-B of the Constitution requiring Congressional consent before an elective or appointive public officer or employee can accept any present, emolument, office or title of any kind from a foreign government.   These acts, however, are exceptions to the rule on presentment.

 

There are also acts that the Constitution vests on a body composed of representatives of the two chambers.  Under Section 18, Article VI of the Constitution, the Commission on Appointments is composed of 12 representatives from each chamber.  Likewise, there are acts that the Constitution vests solely on one chamber of Congress.  Under Section 21, Article VII of the Constitution, the Senate alone ratifies treaties entered into by the President.  These acts, however, are exceptions to the rule on bicameralism.

 

          Finally, one additional reason advanced to justify the legislative veto in Section 12 is purportedly to insure that the IRR drafted by the executive agencies and the Civil Service Commission conform to the letter and spirit of RA 9335.  In short, the Oversight Committee will decide whether the implementing rules are contrary to law.  This justification is a usurpation of the power of the Judiciary for only the courts can determine with finality whether the IRR violate RA 9335.  

 

 

 

 

 

          In view of the foregoing, I vote to PARTIALLY GRANT the petition, and declare unconstitutional the last sentence of Section 12 of      RA 9335 requiring the IRR to be approved by the Joint Congressional Oversight Committee.  I vote to uphold the constitutionality of the other assailed provisions of RA 9335.

 

 

 

 

                                                                   ANTONIO T. CARPIO

                                                                          Associate Justice

 

 


[1]       Marcos v. Manglapus, G.R. No. 88211, 15 September 1989, 177 SCRA 668, and 27 October 1989, 178 SCRA 760.  In resolving the motion for reconsideration, the Court cited Myers v. United States (272 U.S. 52 [1926]) where Chief Justice William H. Taft (a former U.S. President and Governor-General of the Philippines), writing for the majority, ruled: “The true view of the Executive function is x x x that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as necessary and proper for its exercise.”  The principle that power can be implied if “necessary and proper” to carry out a power expressly granted in the Constitution is now a well-settled doctrine. 

[2]       Ibid.   Section 1, Article VII of the Constitution provides: “The executive power shall be vested in the President of the Philippines.”

[3]       Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A    Commentary, 612 (1996).

[4]                     Section 17, Article VII, Constitution.

[5]                    Cervantes v. Auditor General, 91 Phil. 359 (1952).

[6]                    Section 28(2), Article VI, Constitution.

[7]       SECTION 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 Over                                                     Percent (%) of the Excess

             the  Revenue Targets                                                  Collection to Accrue to the Fund

                    30% or below                                                                     5%

                    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.

 

                Any incentive under this Section shall be apportioned among the various units, official and employees of the BOC or the BIR, as the case may be, in proportion to their relative contribution to the aggregate amount of the excess collection over the targeted amount of tax revenue to be collected by the two bureaus respectively. 

 

                The Fund shall be allocated, distributed or released by the Revenue Performance Evaluation Board in each agency, hereinafter created in Section 6 of this Act, in accordance with the rules and regulations issued by the same.

 

                SECTION 5.         Incentives to District Collection Offices. — In the event that the BIR or the BOC fails to meet its revenue target by less than ten (10%), the revenue districts, in the case of the BIR, or the collection districts, in the case of the BOC, which exceed their respective allocations of the revenue target (allocated target), shall be entitled to rewards and incentives (district incentive) amounting to ten percent (10%) of the excess over its allocated target: Provided, however, That the BIR revenue district or BOC collection office which deliberately foregoes any revenue collection in a given year as part of a scheme to avoid a higher allocated target for the subsequent year shall not be  entitled to a district incentive in such subsequent year notwithstanding its having exceeded its allocated target: Provided, further, That the allocated target of any such district shall have been reported to and validated by the DBCC as required in the immediately preceding section.

                The district reward shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released in the same fiscal year.

 

                The allocation, distribution and release of the district reward shall likewise be prescribed by the rules and regulations of the Revenue Performance Evaluation Board.  

[8]                   277 U.S. 189, 202-203 (1928).

[9]                   John E. Nowak & Ronald D. Rotunda, Constitutional Law, 304 (6th Edition).

[10]                 462 U.S. 919 (1983).

[11]                 Id. at 952.

[12]                   Id., at 957-959.

[13]                   Lawrence H. Tribe, American Constitutional Law, Vol. 1, 142-143 (3rd Edition).

[14]                   Dissenting Opinion of Justice Byron White in Chadha, supra note 9.

[15]                   463 U.S. 1216 (1983).

[16]                   Id.

[17]                   Nowak & Rotunda, supra note 8 at 306.

[18]                   Consumer Energy Council v. Federal Energy Regulatory Commission, et al., 673 U.S. F.2d 425, 448.

[19]                   501 U.S. 252, 255 (1991).

[20]                 Supra note 7.

[21]                 Supra note 18 at 274-275.

[22]                 Supra note 12 at 146-147.

[23]     L. Harold Levinson, Legislative and Executive Veto of Rules of Administrative Agencies: Models and Alternatives, 24 William and Mary Law Review 79, 86-87 (1982)