DELEGATION OF POWERS

INTRODUCTION

Corollary to the Doctrine of Separation of Powers is the principle of non-delegation of

powers expressed in the Latin maxim Potestas delegata non delagari potest, which means,
what has been delegated cannot be re-delegated.

It must be noted that the powers of the 3 main branches of the government are already
delegated powers by the people by virtue of their sovereign power and a further delegation of
such power would constitute a negation of this duty in violation of the trust reposed in the
delegate mandated to discharge it directly.

**This doctrine is also based on the principle that such delegated power constitutes not
only a right but a duty to be performed by the delegate through the instrumentality of his own
judgement not through the intervening minds of another (US vs Barrias).

APPLICATION

Although applicable to all major powers of the government, it is usually applied to

legislative power because of the many instances where its delegation is permitted. Which brings
us to the exception to the rule.

EXCEPTION TO THE RULE

However, because of the growing complexities of modern life, thereby creating peculiar
and sophisticated problems making it more difficult to administer laws, there arose a need to
delegate powers traditionally belonging to the legislative to other administrative agencies or
instrumentalities in order to provide the required direct and efficacious solutions.

Example:
Regulation of common carriers.
This task requires the determination of such intricate matters such
as the routes to be serviced by the carriers, number to be allowed in each route,
the conveniences they should offers to the passengers, the fare, the type of
vehicles, and other myriad of details that the legislature may not have the time
and expertise to prescribe.

Given this shortcomings, the Congress may then create an administrative

body like the LTFRB and empower it to promulgate the needed rules and
regulations, subject to certain statutory limitation of broad policies pre-
determined by the legislature itself.

**such a device as applied to a hundred other similar cases can relieve the Congress of many
problems that are better left to be solved by more capable entities at the same time enable it to
tackle the more serious difficulties of the country requiring its direct and immediate attention.

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PERMISSIBLE DELEGATION (P.E.T.A.L)

1. PEOPLE (Art. VI, Sec. 1)

- Legislative power reserved to the people by the provision or initiative or
referendum.
- R.A 6735, which implements Sec. 32 of Art. VI, defines Initiative as the
power of the people to propose amendments to the constitution or to
propose or enact legislation through an election called for the purpose .

There are three (3) systems of initiative, namely:

a. Initiative on the Constitution which refers to a petition proposing

amendments to the Constitution;

b. Initiative on statutes which refers to a petition proposing to enact a

national legislation; and

c. Initiative on local legislation which refers to a petition proposing to

enact a regional, provincial, city, municipal, or barangay law, resolution or
ordinance.

Referendum on the other hand, is the power of the electorate to approve

or reject legislations through an election called for the purpose.

It may be of two classes, namely:

a. Referendum on statutes which refers to a petition to approve or

reject an act or law, or part thereof, passed by Congress; and

b. Referendum on local law which refers to a petition to approve or

reject a law, resolution or ordinance enacted by regional assemblies and
local legislative bodies.

2. EMERGENCY POWERS THE PRESIDENT, ART. VI, SEC. 23(2)

“In times of war or other national emergency, the Congress may by law, authorize the President,
for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon its next adjournment.”

National emergencies bring problems that need immediate solutions, otherwise, it may
aggravate the difficulties of the nation. However, the divisiveness and delay inherent in the
lawmaking process in the Congress may hamper the provision of immediate solution. That is
why, the Congress, if it sees it fit, may authorize the President to exercise emergency powers.

The conferment of which is subject to certain restrictions and requirements to make the
President only an agent rather than a replacement of the legislature, to wit;

1) There must be a war or national emergency

- No emergency, no emergency power.
- The existence of national emergency doesn’t automatically confer upon the president
emergency power. As what Justice Paras have said, “emergency itself cannot and should not
create power” (2nd Emergency Powers Cases vs Gella)
- Conferment of emergency power not mandatory to the Congress

2) The delegation must be of limited period

- The EP is self-liquidating, unless sooner withdrawn, such power shall cease upon the end of
the emergency that justified their delegation.
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 - Continuance of the emergency does not necessarily continue the emergency powers if they
have been granted to him for a shorter period; unless extended by the Congress.
-
3) The delegation must be subject to restrictions as it may prescribe
- The delegation, in order to prevent a total surrender of legislative authority
must be subject to restrictions.

4) The emergency powers must be exercised to carry out a declared national policy
- The specific requirement of the constitution is that the President may be
authorized to exercise powers “necessary and proper” only for the purpose of
carrying out a national policy declared not by him but by the Congress. Any
act not in keeping with this national policy can be challenged as beyond his
delegated authority.

(Read: 1st & 2nd Emergency Powers Cases, Araneta vs Dinglasan, David vs Arroyo, Divinagracia
vs CBS, Inc.)

3. TAXING/TARRIF POWER OF THE PRESIDENT, SEC. 28(2), ART. VI

“The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the national development program of the
Government.”

The President is granted stand-by or flexible tarrif powers in the Tarrf and Customs Code
conformably to the above provision. The reason is the necessity, not to say expediency, of
giving the chief executive the authority to act immediately on certain matters affecting national
economy lest delay result in hardship of the people. It is recognized that the legislative process
is much too cumbersome for the speedy solution of some economic problems, especially those
relating to foreign trades.
Read: AKBAYAN vs Aquino

4. ADMINISTRATIVE BODIES

“The growing complexity of modern life, the multiplication of subjects of governmental

regulations, and increased difficulty of administering the law, the rigidity of the theory of
separation of powers has, to the large extent, been relaxed by permitting the delegation of
greater powers by the legislative and vesting a larger amount of discretion in administrative and
executive officials, not only in the execution of laws but also in the promulgation of certain rules
and regulations calculated to promote public interest” (Calalang vs Williams)

Hence, the need to delegate to administrative bodies – the principal agencies tasked to execute
laws in their specialized fields- the authority to promulgate rules and regulations to implement a
given statue and effectuate its policies (Gerochi vs DOE)

With this power, the Admin Bodies may implement broad policies laid down in the statute by
“filling in” the details which the Congress may not have the opportunity of competence to
provide. (e.g IRRs issued by DOLE inn the Labor Code)

The ABs may are also allowed to ascertain the existence of contingencies and on the basis
thereof enforce or suspend the operation of law. Such contingent regulation also have the force
and effect of law.

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E.g In the case of Cruz vs Youngberg, the law involved prohibited the entry of foreign cattle
which had been determined by the Philippine Legislature as the cause of epidemic that had
killed many locallivestock. The same law, however, authorized the Gov-Gen to lift the
prohibition, with the consent of the presiding officer of the lawmaking body and upon
ascertainment that there was no longer a threat of contagion from imported cattle.

5. LOCAL GOVERNMENTS

The Congress recognizes the fact that local legislature is more knowledgeable on matters of
purely local concern than he national lawmaking body and therefore is better to enact the
necessary and appropriate legislation thereon.

Read: People vs Vera

TEST OF DELEGATION

Assuming that the delegation of legislative power comes under any of the permissible
exceptions, there is still a question of whether or not the delegation has been validly made.

1.) COMPLETENESS TEST

- The law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have
to do is to enforce it.
- To determine completeness, all of the terms and provisions of the law
must leave nothing to the delegate except to implement it.
- "What only can be delegated is not the discretion to determine what
the law shall be but the discretion to determine how the law shall be
enforced.”

2.) SUFFECIENT STANDARD TEST

- Mandates that there shall be adequate guidelines and limitations in the law to
determine the boundaries of the delegate’s authority and to prevent the
delegation from running riot.
- The law must contain the limitations or guidelines to determine the
scope of authority of the delegate.

Other references
(Venus Inc vs DOH & FDA)
The rule is what has been delegated, cannot be delegated, or as expressed in the Latin maxim:
potestas delegata non delegari potest . This doctrine is based on the ethical principle that
such a delegated power constitutes not only a right but a duty to be performed by the delegate
by the instrumentality of his own judgment acting immediately upon the matter of legislation
and not through the intervening mind of another. Congress may, however, delegate to another
branch of the Government the power to fill in the details in the execution, enforcement, or
administration of a law. But, it is essential, to forestall a violation of the principle of separation
of powers, that said law be a valid delegation of legislative power.

Constitutional Law 1
Chapter 5: Delegation of Powers
Turiano, Mary Anne I.
Constitutional Law 1
Chapter 5: Delegation of Powers
Turiano, Mary Anne I.