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Law vs. IRR: The spring cannot rise higher than the source
Published September 30, 2020, 10:36 AM
by Senator Francis Tolentino

 (Privilege Speech “Law vs. IRR – The Spring Cannot Rise Higher than the Source” delivered in the
Senate on September 14, 2020.)

For the last several weeks, we’ve witnessed investigations, after investigations showing the lack of
respect of some department secretaries and some bureau heads towards the Senate as an institution,
and even Congress.

We have an anomaly right in our very midst. As we all know as provided in Sec. 1, Art. VI, of the
Constitution, legislative power resides in the Congress of the Philippines, which consists of the
Senator Francis N. Tolentino
Senate and the House of Representatives. As the representatives of the people, we and our
predecessors have enacted laws with the noble intention of improving the life of our people

However, we find that some of our laws, including all the bills pending in the 18th Congress, pieces of legislations, have been leading us
to depths of ignorance, confusion, and even unlawfulness by their Implementing Rules and Regulations (IRR). Our Supreme Court cases
have shed light on the times when the laws and the IRR have clashed, numbering around 50 or 60 according to my recent research.

I rise today out of fear and apprehension that the very laws that my colleagues, all of you who are listening may be twisted, deformed,
mutilated, and become unrecognizable because of their Rules and Regulations. Consider this fact, Mr. President. Nagkaproblema po
tayo noon sa GCTA. Eh iniba po nila yung implementing rules. Iniba sa batas yung Implementing Rules… The committee of Senator
Lacson, the Committee of the Whole, was able to unravel that the IRM, the Interim Reimbursement Mechanism was not mentioned in the
law. It is not part of Republic Act 7875. Inimbento lang po ng board although mayroong capitation word sa law.

Ganun din po last Congress, the Senate, Congress enacted the DHSUD Law, Republic Act 11201. Iniba rin po yung implementing rules sa
DHSUD law. At napakarami pa hong iba. Kinakabahan po ako, wala lang po dito si Sen. Dela Rosa, baka po yung kapapasa lang niya na
batas, yung tungkol po sa height ng Philippine National Police na 5 feet, e baka po ibahin po yung implementing rules. Baka ang gawin
yung height sukatin ‘pag hapon. Because we all know scientifically, that a person is taller in the morning than in the afternoon, baka
ibahin nanaman po nila yun.

Tthe spring cannot rise higher than the source, as the old maxim goes, but this humble representation believes that the spring is not just
rising higher, but it threatens to overflow and spill from the source and drown us all.

The IRRs have not only misinterpreted our laws, but ultimately defied the will of the people.

In the light of this, this humble representation submits to my esteemed colleagues and to the public the following points:

First, there is a plethora of Supreme Court cases where the Court struck down Implementing Rules and Regulations of various agencies
for usurping the power of Congress.

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  Second, these cases show that Congress must take a proactive stance in addressing this to avoid future conflicts between the law and
the IRR that will precipitate further controversy.

I have taken it upon myself  to open this Pandora’s Box, to bring to light the impending crisis brought about by the large number of IRRs
that are at odds with our laws and to propose actions addressing this need.

Let me enumerate the cases wherein the Implementing Rules and Regulations of administrative agencies were struck down by the
Supreme Court for being inconsistent with or against the law itself.

First, in the case of Pharmaceutical and Health Care Association of the Philippines versus Health Secretary Francisco T. Duque III, GR
No. 173034, October 9, 2007, the court tackled the validity of the IRR of Executive Order No. 51, the Milk Code, Relevant International
Agreements, Penalizing Violations Thereof, and for Other Purposes. The IRR contained provisions that blatantly expanded the provisions
of the law. The Milk Code limited its coverage to infants 0-12 months old but the IRR extended it to young children up to 3 years. The
Milk Code allowed advertisements as long as they were approved by the agency, but the IRR prohibited them totally. The IRR also
imposed additional requirements that were not found in the law. It even provided for administrative sanctions which the law never
envisioned. It was as if the DOH made a new law by itself.

Second, in the case of Judge Tomas C. Leynes versus Commission on Audit (COA), G.R. No. 143596, December 11, 2003, the law in
question, the Local Government Code, allows the local government to grant allowances to the judges in its territory with one condition –
only when their finances can allow it. However, a budget circular from the Department of Budget and Management imposed a further
condition not found in the law. The court herein ruled that the budget circular, being a mere administrative issuance, cannot repeal a
substantive law in line with the rules on elementary construction, and thus struck it down.

In the case of GMA-7 versus COMELEC, G.R. No. 205357, September 2, 2014, the court struck down as unconstitutional a provision in
the Implementing Rules and Regulation of Comelec for being contrary to the Fair Elections Act. Under the law, each candidate for
national and local elective office shall be entitled to not more than 120 minutes and 60 minutes of television advertisement and 180 and
90 minutes of radio advertisement, respectively, without distinguishing whether the time limits were aggregate or on a per-station basis.
However, Comelec went beyond the authority granted to it by law when it adopted the “aggregate” basis in determining the allowable
airtime and not on a per-station basis, drastically reducing the air-time allotted to the candidates.

Fourth, in Imbong v. Ochoa, G.R. No. 204819, dated April 8, 2014, the IRR of the Reproductive Health Law redefined the meaning of
“abortifacient” and “contraceptive” as found in the law. The law in Sec. 4(a), defines an “abortifacient” as any drug or device that
primarily induces abortion or the destruction of a fetus inside the mother’s womb. However Section 3.0l(a) and Section 3.0lG) of the IRR
added the word, “primarily” in the definition. As a result, this insinuates that a contraceptive will only be considered as an “abortifacient”
if its sole known effect is abortion. Thus, paving the way for the approval of contraceptives which may harm or destroy the life of the
unborn. The court held that the addition of the word “primarily” in Section 3.0l(a) and G) of the IRR was considered ultra vires as it
contravened Section 4(a) of the RH Law which did not distinguish whether or not the sole known effect of the abortifacient is abortion.

Fifth, in the case of CIR vs. Fortune Tobacco, GR Nos. 167274-75, July 21, 2008, the Supreme Court declared as invalid and indefensibly
flawed Revenue Regulation No. 17-99 since it effectively tried to amend Section 145 of the Tax Code. The Revenue Regulation provided
that the excise tax for cigarettes shall not be lower than the excise tax that was being paid prior to January 1, 2000, whereas the Tax
Code specifically provides that the average net retail prices of the listed brands under Annex “D,” should remain as the bases for the
application of the increase in excise tax rates effective on 1 January 2000.

In an obiter dictum, the court said that it was not the first time that national revenue officials had ventured into the area of unauthorized
administrative legislation. It enumerated a long list of cases where Revenue Regulations and Revenue Memorandum Orders were also
stricken down by the court. The transgressions include expansions of definition, alteration or restriction of the application of a
provision, and inclusion of another requirement not contemplated by the legislature. The list goes on.

Sixth, in another tax case, Philippine Bank of Communications Vs Commissioner of Internal Revenue, GR No. 112024, dated January 28,
1999, the BIR issued Revenue Memorandum Circular No.7-85 which changed the prescriptive period of two years found in the National
Internal Revenue Code for excess income tax payments to a glaringly inconsistent period of ten years. In so doing, the BIR did not
simply interpret the law; rather it legislated guidelines contrary to the statute passed by Congress.

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  Seventh, in Genuino v. De Lima, GR No. 197930, dated April 17, 2018, then DOJ Secretary Agra issued DOJ Circular No. 41 prescribing
rules and regulations governing the issuance of Hold-Departure Orders and the issuance and implementation of watchlist orders. The
Supreme Court declared the DOJ Circular as unconstitutional because the Constitution requires that a law must be passed by Congress
before the liberty of abode and the right to travel may be limited. In this case, there was none.

These cases are just among the multitude of jurisprudence in a similar vein involving various agencies of the government. Despite the
Supreme Court’s pronouncements, there remain laws with Implementing Rules and Regulations that are at odds with the law itself,
leaving the public in confusion and diluting the impact law could have had.

This begs the question of whether there is some way, within the powers of this body, to prevent our future laws from being mangled by
their IRR and to prevent the IRR from straying far from the laws.

We begin with the foundational principle of separation of powers in our political law which is enshrined in our Constitution. As
enunciated in the case of Angara v. Electoral Commission, G.R. No. L-45081, dated July 15, 1936, “separation of powers is a
fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution.
Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere.”

This is further elucidated in the earlier case of United States v. Ang Tang Ho, G.R. No. 17122, dated February 27, 1922, which states that
“By the organic law of the Philippine Islands… all powers are vested in the Legislative, Executive, and Judiciary. It is the duty of the
Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no
authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to
make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction.”

Despite the separate and supreme spheres of the three branches of the government, the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws have led to the
relaxation of the principle of separation of powers, as explained in the cases of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and
46077, dated June 12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, dated June 26, 1940.
This is likewise recognized as an exception to the principle of non-delegability of legislative power, which is traditionally enshrined in
Congress under our republican system of government.

It gave rise to the now well-accepted subordinate legislation or delegated legislation, also known as the rule-making power of the
administrative agencies. With this power, they can issue rules and regulations to fix the details in the execution and enforcement of a
policy in the law. The construction of statutes by agencies charged with administration of those statutes is entitled to great weight. As
such, their regulations, promulgated pursuant to law, have the force and effect of law.

However, any rule or regulation issued by the administrative agencies beyond its delegated statutory authority is an act of usurpation of
the Congress’ legislative power and shall be struck down. So, to temper the potential for abuse brought about by this subordinate
legislative power, our good and learned legal luminaries laid down the requisites for its valid delegation to the administrative agencies.

First, the law must be complete in itself; it must set forth the policy to be executed. And second, the law must fix a standard; the limits
of which are sufficiently determinate or determinable, to which the delegate must conform in the performance of his functions.

More for our guidance as lawmakers than for the administrative agencies, this is the gold standard, that we must all adhere to as we
make our laws. Falling short of this – passing a hastily crafted piece of legislation full of holes – makes it easy for the government
agencies to abuse this delegated power. Not only is it irresponsible but grossly disrespectful of the mandate of the people who, as the
supreme sovereign are the source of all powers and the reason why we are all here.

Moreover, it is not enough that these administrative agencies comply with the requisites for valid delegation of legislative power in order
for their rules and regulations to be valid. These administrative rules and regulations must also meet not only the publication, but filing
requirements laid down by relevant laws.

Foremost among which is Art. 2 of the New Civil Code of the Philippines which provides, “Laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided.”

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  Interpreting this provision, the seminal case of Tañada v. Tuvera G.R. No. L-63915, dated December 29, 1986, provides that “all statutes,
including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed by the legislature. Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.”

For these rules and regulations to attain binding force and effect, aside from publication, the administrative agencies must also comply
with the filing requirement laid down in Book VII, Chapter 2, Section 3 of Executive Order No. 292, the Administrative Code of 1987. It
provides that every agency shall file with the Office of the National Administrative Register in the University of the Philippines Law
Center three certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within
three months from the date shall not thereafter be the basis of any sanction against any party or persons.

By virtue of the ruling in Tañada v. Tuvera and the Administrative Code of 1987, the Court, in republic of the Philippinews v. Shell G.R. No.
173918, dated April 8, 2008, said that for administration rules and regulations, both the requirements of publication and filing of
administrative issurnace intended to enforce existing laws are mandatory for their effectivity.

I hereby propose, without overstepping the finely drawn lines between the three branches and encroaching on the realm of
administrative rule-making, the following measures to bridge the gaps between future laws and its IRR.

First, that the Senate rules of procedure be studied and amended to the effect that legislators be allowed and given time and resources
to draft with the government agency concerned a draft of the implementing rules and regulations of the proposed bill prior to it
becoming signed into law or the lapse of the 30 day period from the President’s receipt of the bill.

Second, it is also proposed that the succeeding laws and its corresponding IRRs be submitted to an oversight committee composed of
the concerned Senate committee which prepared the bills. The oversight committee will be tasked to study the law and its IRR for any
incongruencies and is limited only in making recommendations on how to harmonize the IRR with the law, without any authority to
revoke or disapprove the same.

Nevertheless, these proposals take into consideration the fact that there is no general law which require implementing agencies to
promulgate its implementing rules and regulations. Foremost among our laws which have no IRRs is Act No. 3815, the Revised Penal
Code, which was enacted on December 8, 1930, which took effect on January 1, 1932 by the then Governor-General of the Philippines
with the advice and consent of the Philippine Legislature. Another law without an accompanying IRR was Republic Act No. 386, the New
Civil Code of the Philippines, which was enacted in June 18, 1949, and took effect on August 30, 1950.

Likewise, in our recent laws, according to an annual report on the implementation of laws by the Executive-Legislative Liaison Service
here in the Senate, there are laws which do not require its implementing agencies to issue IRRs, such as Rep. Act No. 11054, the Organic
Law for the Bangsamoro Autonomous Region in Muslim Mindanao, which was passed on July 27, 2018, and took effect August 10,
2018, and Rep. Act No. 10708,  the Act Enhancing Transparency in the Management and Accounting of Tax Incentives, administered by
Investment Promotion Agencies which was enacted on Dec. 9, 2015, among many other laws.

In this light, again, I reiterate the old legal maxim, the spring cannot rise higher than the source. As much as we are able, we shall not let
any spring in the future rise higher than the source of all power and that is, the sovereign will of the people.

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