G.R. No. 166620 - ATTY. SYLVIA BANDA, ET AL., Petitioners, v. EDUARDO R. ERMITA, in his capacity as Executive Secretary, the Director General of the Philippine Information Agency and the National Treasurer, Respondents.

 

                                                                   Promulgated:

 

                                                                   April 20, 2010

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SEPARATE CONCURRING OPINION

 

 

CARPIO, J.:

 

 

          I concur in the result that Executive Order No. 378 (EO 378) is a valid Presidential issuance, but not because it implements Section 31, Chapter 10, Book II of the Administrative Code of 1987[1] (Section 31) or that it is sanctioned by case law anchored on Presidential Decree No. 1416 (PD 1416), but because EO 378 merely implements Republic Act No. 9184 (RA 9184)[2] regulating government procurement activities.

 

EO 378 Exceeds the Parameters of Section 31

 

 

Section 31, an executive legislation,[3] grants to the executive a narrow power to reorganize ringed with limitations on two fronts: (1) the branch of the government covered and (2) the scope of authority delegated:

 

 

            Continuing Authority of the President to Reorganize his Office. ─ The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President.  For this purpose, he may take any of the following actions:

 

            (1)  Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

 

            (2)  Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and

 

            (3)  Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)

 

 

Section 31 limits Executive discretion to reorganize the Office of the President and the enumerated ancillary offices along the following functional and structural lines: (1) restructuring the internal organization   of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;   (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency  or vice versa. This listing is closed and admits of no other category of reorganization.

 

Tested against these three narrow categories of reorganization, EO 378 fails to pass muster. EO 378 effects two changes to the National Printing Office (NPO): first, it reduces the NPO’s exclusive printing function to cover election paraphernalia only, allowing private printing establishments to bid for the right to print government standard and accountable forms and second, it caps the NPO’s annual appropriation to its income. Although EO 378’s narrowing of the NPO’s functions arguably falls under Section 31(1)’s ambit authorizing abolition of units, this power is limited to the Office of the President Proper, defined under the 1987 Administrative Code as consisting of “the Private Office, the Executive Office, the Common Staff Support System, and the President Special Assistants/Advisers System x x x.”[4] The NPO is not part of the Office of the President Proper, being an agency attached to the Office of the President, a bigger entity consisting “of the Office of the President Proper and the agencies under it.”[5] Thus, Section 31(1) is no basis to declare that the President has the power to “abolish agencies under the Office of the President.”[6] Section 31(1) limits this power only to the Office of the President Proper.

 

Further, insofar as the “Office of the President” is concerned, the President’s reorganization powers are limited to transferring any function or any agency from that office to any department or agency and vice versa. No amount of etymological stretching can make reduction of function and capping of budget fit under the narrow concept of “transferring any function or any agency.”

 

 

 

 

 

Case Law Cited No Authority to Validate EO 378

 

 

The cases the Decision cites furnish no bases to validate EO 378. The leading case in this area, Larin v. Executive Secretary[7] (reiterated in  Buklod ng Kawaning EIIB v. Hon. Sec. Zamora[8] and Tondo Medical Center Employees Association v. Court of Appeals[9]) relied on Section 20,  Chapter 7, Book II of the Administrative Code of 1987 in relation to PD 1416:

               

 

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

 

“Sec. 20. Residual Powers. — Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.” (italics ours)

 

This provision speaks of such other powers vested in the President under the law. What law then which gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials.[10] (Emphasis supplied)

 

 

Larin and its progeny cannot validate EO 378 because its statutory basis, PD 1416, is an undue delegation of legislative power.

 

It is an unquestioned attribute of the broad and undefined legislative power of Congress to fashion Philippine bureaucracy by creating (and thus, abolishing) public offices save for offices created by the Constitution.[11] This power, including its ancillary to reorganize,[12] is exercised by the other branches only as allowed by Congress under valid statutory delegation. Even then, the delegated power only partakes of the original legislative power as the other branches can only implement the legislature’s will.[13] Thus, despite their equally broad and undefined powers, neither the executive nor the judiciary inherently possesses the power to reorganize its bureaucracy.[14]

 

 A simple scanning of the list of powers PD 1416 vests on the Executive shows that far from being a legislative delegation to implement congressional will, PD 1416 surrenders to the Executive the core legislative power to re-mold Philippine bureaucracy, with the ancillary privilege to control funding, thus: 

 

1. The President of the Philippines shall have continuing authority to reorganize the administrative structure of the National Government.

 

2. For this purpose, the President may, at his discretion, take the following actions:

 

(a) Group, coordinate, consolidate or integrate departments, bureaus, offices, agencies, instrumentalities and functions of the government;

 

(b) Abolish departments, offices, agencies or functions which may not be necessary, or create those which are necessary, for the efficient conduct of government functions services and activities;

 

(c) Transfer functions, appropriations, equipment, properties, records and personnel from one department, bureau, office, agency or instrumentality to another;

 

(d) Create, classify, combine, split, and abolish positions; and

 

(e) Standardize salaries, materials and equipment. (Emphasis supplied)

         

 

Presidential Decree No. 1772 (PD 1772), amending PD 1416, enlarged the scope of these powers by extending the President’s power to reorganize “to x x x all agencies, entities, instrumentalities, and units of the National Government, including all government-owned or controlled corporations, as well as the entire range of the powers, functions, authorities, administrative relationships, and related aspects pertaining to these agencies, entities, instrumentalities, and units.”[15] Further, PD 1772 clarified that the President’s power to “create, abolish, group, consolidate, x x x or integrate” offices relates to “entities, agencies, instrumentalities, and units of the National Government.”[16] 

 

The term “national government” has an established  meaning in statutory and case law. Under the statute governing Philippine bureaucracy, the Administrative Code of 1987, “national government” refers to “the entire  machinery of the central government, as distinguished from the different forms of local government.”[17] Jurisprudence has interpreted this provision of the Administrative Code to encompass “the three great departments: the executive, the legislative, and the judicial.”[18] By delegating to the Executive the “continuing authority to reorganize the administrative structure of the National Government” including the power to “create, abolish, group, consolidate, x x x or integrate” the “entities, agencies, instrumentalities, and units of the National Government,” PD 1416, as amended, places under the Executive branch the vast – and undeniably legislative – power  to constitute the entire Philippine Government in the guise of “reorganization.”

 

Capping the unprecedented siphoning of legislative power to the Executive, PD 1416, as amended, authorizes the Executive to “transfer appropriations” and “standardize salaries” in the national government. The authorization to “transfer appropriations” is a complete repugnancy to the constitutional proscription that “No law shall be passed authorizing any transfer of appropriations. x x x.”[19] On the other hand, the Constitution mandates that “The Congress shall provide for the standardization of compensation of government officials and employees, x x x.”[20] Indeed, Congress, with the Executive’s acquiescence, has repeatedly exercised this exclusive power to standardize public sector employees’ compensation by enacting a law to that effect[21] and exempting classes of employees from its coverage.[22]

 

Thus, much like the invalidated Section 68 of the previous Revised Administrative Code delegating to the President the legislative power to create municipalities,[23] PD 1416, as amended, delegates to the President that undefined legislative power to constitute the Philippine bureaucracy which the sovereign people of this polity delegated to Congress only. This subsequent delegation of the power to legislate offends the fundamental precept in our scheme of government that delegated power cannot again be delegated.[24]

 

          The radical merger of legislative and executive powers PD 1416 sanctions makes sense in a parliamentary system of merged executive and legislative branches. Indeed, PD 1416, issued in 1979, three years after Amendment No. 6 vested legislative power to then President Marcos, was precisely meant to operate within such system, as declared in PD 1416’s last “Whereas” clause: “WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization of the national government[.]” When the Filipino people ratified the 1987 Constitution on 2 February  1987, restoring the operation of the original tri-branch system of government, PD 1416’s paradigm of merged executive and legislative powers ceased to have relevance. Although then President Aquino, by her revolutionary ascension to the Presidency, held and exercised these two powers under the Provisional Constitution,[25] her legislative powers ceased when the post-EDSA Congress convened on       27 July 1987 following the 1987 Constitution’s mandate that “The incumbent President shall continue to exercise legislative powers until the first Congress is convened.”[26] Thus, even though the demands of modernity[27] and the imperatives of checks and balances[28] may have blurred the demarcation lines among the three branches, we remain a government of separated powers, rooted in the conviction that division – not unity – of powers prevents tyranny.[29]  PD 1416, as amended, with its blending of legislative and executive powers, is a vestige of an autrocratic era, totally anachronistic to our present-day constitutional democracy.

 

Making sweeping statements that the President’s power to reorganize “pertains only to the Office of the President and departments, offices, and agencies of the executive branch and does not include the Judiciary, the Legislature or constitutionally created or mandated bodies” and that “the exercise by the President of the power to reorganize x x x must be in accordance with the Constitution, relevant laws and jurisprudence”[30] will not erase PD 1416 and PD 1772 from our statute books.  If this Court found it intolerable under our system of government for the President to demand “obedience to all x x x decrees x x x promulgated by me personally or upon my direction,”[31] the same hostility should be directed against PD 1416’s authorization for the President to “reorganize x x x the National Government,” “transfer x x x appropriations” and “standardize salaries.” These issuances all vest on the President unadulterated legislative power.

 

Hence, PD 1416, being repugnant to the 1987 Constitution in several aspects, can no longer be given effect. At the very least, the exercise of legislative powers by the President under PD 1416 ceased upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution.

         

Similarly, Anak Mindanao Party-List Group v. The Executive Secretary[32] (finding valid executive issuances transferring to a department[33] two offices under the Office of the President) is not in point because that case involved a reorganization falling within the ambit of Section 31(3) transferring offices from the Office of the President to another department. 

 

          Nor is Canonizado v. Aguirre[34] authority for the proposition that the power of the President to reorganize under Section 31 involves the “alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them” or the “reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.”[35] Canonizado reviewed a legislative reorganization (Republic Act No. 8851 reorganizing the Philippine National Police) thus Section 31 never figured in its analysis. Accordingly, the vast reach of Canonizado’s definition of the power to reorganize[36] relates to Congress, which is, after all, the original repository of such power, as incident to its broad and all-encompassing power to legislate.

 

 

 

Doctrine of Presidential Control

Over the Executive Department No Basis

to Validate EO 378

 

The doctrine of presidential control over the executive department likewise furnishes no basis to uphold the validity of EO 378. As distinguished from supervision, the doctrine of control finds application in altering acts of the President’s subordinates. It does not sanction structural or functional changes even within the executive department.[37]

 

EO 378 Valid for Implementing RA 9184

 

          RA 9184 mandates the conduct of competitive bidding in all the procurement activities of the government including the acquisition of “items, supplies, materials, and general support services x x x which may be needed in the transaction of the public businesses or in the pursuit of any government x x x activity”[38] save for limited transactions.[39] By opening government’s procurement of standard and accountable forms to competitive bidding (except for documents crucial to the conduct of clean elections which has to be printed solely by government), EO 378 merely implements RA 9184’s principle of promoting “competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.”[40] Indeed, EO 378 is not so much a “reorganization” move involving realignment of offices and personnel movement as an issuance to “ensure that the government benefits from the best services available from the market at the best price.”[41] EO 378’s capping of NPO’s budget to its income is a logical by-product of opening NPO’s operations to the private sector — with the entry of market forces, there will expectedly be a decrease in its workload, lowering its funding needs.

 

          Accordingly, I vote to DISMISS the petition.

 

 

 

 

                                                                   ANTONIO T. CARPIO

                                                                        Associate Justice

                                                                  

 


[1]                              Executive Order No. 292.

[2]                              The Government Procurement Reform Act.

[3]               EO 292 was enacted by then President Aquino on  25 July 1987 in the exercise of her legislative        power under Section 1, Article II of the Provisional Constitution.

[4]                              Section 22, Chapter 8, Title  II, Book III of the Administrative Code of 1987 provides:

                Office of the President Proper. - (1) The Office of the President Proper shall consist of the Private Office, the Executive Office, the Common Staff Support System, and the Presidential Special Assistants/Advisers System;

 

                                (2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries and Assistant Executive Secretaries;

 

                                (3) The Common Staff Support System embraces the offices or units under the general categories of development and management, general government administration and internal administration; and

 

                                (4) The President Special Assistants/Advisers System includes such special assistants or advisers as may be needed by the President.

[5]               Section 21, Chapter 8, Title  II, Book III of the Administrative Code of 1987 provides: “Organization. The Office of the President shall consist of the Office of the President Proper and the agencies under it.”

[6]                              Decision, p. 11.

[7]               345 Phil. 962 (1997).

[8]               413 Phil. 281 (2001) (upholding the validity of executive issuances deactivating the Economic            Intelligence and Investigation Bureau, an agency under the Office of the President).

[9]               G.R. No. 167324, 17 July 2007, 527 SCRA 746.

[10]             Supra note 7 at 730.

[11]             See Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000, 323 SCRA 312; Buklod ng   Kawaning EIIB v. Zamora, G.R. Nos. 142801-802, 10 July 2001, 360 SCRA 718.

[12]             We described this power, as exercised by Congress, as follows: “Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” (Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000, 323 SCRA 312, 326; internal citations omitted).

[13]             The doctrine of non-delegation of legislative power admits of only two exceptions under the Constitution, namely, the delegation to the local governments (Section 3 and Section 20, Article X) and to the President on the imposition of tariff rates, trade quotas, and shipping dues  (VI, § 28(2) and adoption of measures during national emergency (Section 23(2), Article VI).

[14]             For the Executive, this authorization is found in Section 31, Chapter 10, Book II of the Administrative Code of 1987. For the judiciary, Section 43 of Batas Pambansa Blg. 129 (The Judiciary Reorganization Act of 1980) required the Supreme Court to  submit to the President the staffing pattern for courts constituted under that law for issuance of relevant implementing rules. For the reorganization of the Office of the Court Administrator, Section 7 of Presidential Decree No. 828, as amended by Presidential Decree No. 842, delegated to the Supreme Court the power to “create such offices, services, divisions and other units in the Office of the Court Administrator, as may be necessary.”

[15]             Last paragraph, Section 1, PD 1772.

[16]             Section 2, PD 1772 (emphasis supplied).

[17]             Section 2(2), Executive Order No. 292 (emphasis supplied). More  specialized statutes, such as Section 4 of Republic Act No. 6758 (Compensation and Position Classification Act of 1989) substantially hews to the Administrative Code’s definition: “The term “government” refers to the Executive, the Legislative and the Judicial Branches and the Constitutional Commissions and shall include all, but shall not be limited to, departments, bureaus, offices, boards, commissions, courts, tribunals, councils, authorities, administrations, centers, institutes, state colleges and universities, local government units, and the armed forces. x x x” (emphasis supplied).

[18]              Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082, 11 September 1996, 261 SCRA 667, 688-689, citing the following definition of  “government” in Bacani v. NACOCO, 100 Phil. 468, 471-472 (1956):

                [W]e state that the term “Government” may be defined as “that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them” This institution, when referring to the national government, has reference to what our Constitution has established composed of three great departments, the legislative, executive, and the judicial, through which the powers and functions of government are exercised. (Internal citation omitted; emphasis supplied)

[19]             Article VI, Section 25(5), Constitution.

[20]             Section 5, Article IX-B, Constitution. The entire provision reads: “The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.”

[21]             Republic Act No. 6758 (Compensation and Position Classification Act of 1989).

[22]             E.g.,  Republic Act No. 7907 (1995) for Land Bank of the Philippines; Republic Act No. 8282 (1997) for Social Security System; Republic Act No. 8289 (1997) for Small Business Guarantee and Finance Corporation; Republic Act No. 8291 (1997) for Government Service Insurance System; Republic Act No. 8523 (1998) for Development Bank of the Philippines; Republic Act No. 8763 (2000) for Home Guaranty Corporation; and Republic Act No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).

[23]             Struck down as unconstitutional in Pelaez v. Auditor General, No. L-23825, 24 December 1965,         15 SCRA 569.

[24]             A  paradigmatic statement of the doctrine runs:

                The power to make laws — the legislative power — is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicameral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers.  x x x x (People v. Vera, 65 Phil. 56, 112 (1937); emphasis supplied).

[25]             Section 1, Article II.

[26]             Section 6, Article XVIII. See also Association of Small Landowners in the Philippines Inc. v.            Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989, 175 SCRA 343.

[27]             The rise of the administrative state since the latter half of the last century saw the blending of quasi-legislative and quasi-judicial powers in multifarious executive offices, radically redefining the classical notion of separation of powers. (see Irene R. Cortes, Philippine Administrative Law: Cases and  Materials 6-11 [2nd ed., 1984]) 

[28]             Among the constitutionally permissible inter-branch encroachments  are the President’s veto           power, Congress’ power of legislative inquiry and the judiciary’s power of judicial review.

[29]             This is a core theory justifying the separation of powers, undergirded by modern political thinking, which found its way into the writings of the framers of the United States’ Constitution, the blueprint of the present Philippine constitution.

[30]             Decision, p. 20.

[31]             Presidential Proclamation No. 1017 which was partially declared unconstitutional in David v.             Arroyo, G.R. No. 171396, 3 May 2006, 489 SCRA 160.

[32]             G.R. No. 166052, 29 August 2007, 531 SCRA 583.

[33]             Department of Agrarian Reform.

[34]                            G.R. No. 133132, 25 January 2000, 323 SCRA 312.

[35]             Id. at 326.

[36]             Citing De Leon and De Leon, Jr., The Law On Public Officers And Election Law (1994 ed.), 365 and Dario v. Mison, G.R. No. 81954, 8 August 1989, 176 SCRA 84 (reviewing the constitutionality of Executive Order No. 127, reorganizing the then Ministry of Finance, issued by President Corazon C. Aquino in the exercise of her legislative powers under the Provisional Constitution).

[37]             This is apparent from the following canonical distinction of the two doctrines: “In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” (Mondano v. Silvosa, 97 Phil. 143, 147-148 [1955]) (Emphasis supplied).

[38]             Section 4 in relation to Section 5(h).

[39]             Section 10, Article IV in relation to Article XVI.

[40]             Section 3(c).

[41]             EO 378, second “Whereas” clause.