DELEGATION OF POWERS

«  Principle of non-delegation

ü  Corollary to the doctrine of separation of powers

ü  The rule is potestas delegata non deligari potest – what has been delegated cannot be delegated.

ü  It is based upon the ethical 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 judgment and not through the intervening mind of another.

ü  It is applicable to all three major powers of the government (esp. Legislative power).

¨        Permissible Delegation

1.        Delegation of tariff power to the President.

v  Article VI. Sec. 28 (2). 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.

ü  The necessity of giving the chief executive the authority to act immediately on certain matters affecting national economy lest delay result in hardship to the people.

ü  The Tariff and Customs Code grants such stand-by powers to the President.

2.        Delegation of emergency powers to the President.

v  Article VI. Section 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 Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon its next adjournment.

ü  When emergency powers are delegated to the President, he becomes in effect a constitutional dictator, subject to certain restrictions and requirements intended to make him only an agent rather than a replacement of the legislature.

ü  The conditions for the vesture of emergency powers in the President are the following:

1.        There must be war or other national emergency.

2.        The delegation must be for a limited period only.

3.        The delegation must be subject to such restrictions as the Congress may prescribe.

4.        The emergency powers must be exercised to carry out a national policy declared by the Congress.

ü  Other national emergency may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.

ü  Emergency itself cannot and should not create power.

ü  The delegation of emergency powers to the president could be withdrawn by resolution.

ü  Example:

RA 6826, The President issued National Emergency Memorandum Orders in the exercise of delegated legislative powers.

¨        President’s authority to declare:

a.        State of Emergency

v  Art. VII. Section 18, grants the President such power, no legitimate constitutional objection can be raised.

b.        To exercise emergency powers

Manifold Constitutional issues arise.

v  Article XII. Section 17. An aspect of the emergency power clause.

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

3.        Delegation to the people at large.

ü  Referendum

§  It is a method of submitting an important legislative measure to a direct vote of the whole people.

§  The power of the electorate to approve or reject legislation through an election called for the purpose.

§  Two classes

Ø  Referendum on Statutes

A petition to approve or reject an act or law, or part thereof, passed by the Congress.

Ø  Referendum on Local

A petition to approve or reject a law, resolution or ordinance enacted by the regional assemblies and local legislative bodies.

ü  Plebiscite

The questions submitted are intended to work more permanent changes in the political structure. (Proposal to amend the Constitution)

It is the electoral process by which an initiative on the Constitution is approved or rejected by the people. (RA 6735, Sec.2 (c) and (e))

4.        Delegation to local governments.

ü  RA 7160

ü  Based on the recognition that local legislatures are more knowledgeable than the national lawmaking body on matters of purely local concern and are therefore in a better position to enact the necessary and appropriate legislation thereon.

ü  Local affairs shall be managed by local authorities and general affairs by the central authority.

ü  The grant of authority to prescribe local regulations, according to immemorial practice, subject of course, to the interposition of the superior in cases of necessity.

v  Article X. Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

5.        Delegation to administrative bodies.

ü  The power of subordinate legislation.

ü  The administrative bodies may implement the board policies laid down in a statute by filling in the details which the Congress may not have the opportunity or competence to provide.

ü  Supplementary regulation (Implementing rules)

ü  Contingent regulation.

Test of delegation

1.        The complete test

ü  The law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it.

ü  It must set forth therein the policy to be executed, carried out or implemented by the delegate.

2.        The sufficient Standard test

ü  The limits which are sufficiently determinate or determinable – to which the delegate must conform in the performance of his functions.

ü  It is intended to map out the boundaries of the delegate’s authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected.

ü  Its purpose is to prevent total transference of legislative power from the lawmaking body to the delegate.

ü  It is usually indicated in the law delegating legislative power.

«  The Pelaez Case

 Cruz and Nachuria