Introduction

Corollary to the doctrine of separation of powers is the principle of nondelegation of powers. The rule is potestas delegata non delegari potest what has been delegated cannot be delegated. 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 judgement and not through the intervening mind of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation of this duty in violation of the trust reposed in the delegate mandated to discharge it directly.

The principle of non-delegation of powers is applicable to all three major powers of the government but is especially important in the case of the legislative power because of the many instances when its delegation is permitted. The occasions are rare when executive or judicial powers are exercised outside the departments to which they legally pertain. However, in the case of the legislative power, such instances have become more and more frequent, if not necessary. This has led to the observation that the delegation of legislative power has become the rule and its non-delegation the exception.

The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope directly with the many problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of the problems attendant upon present-day undertakings, the legislature may not have the competence, let alone the interest and the time, to provide the required direct and efficacious, not to say specific, solutions.

One such problem, to take an example, is the regulation of common carriers. This task requires the determination of such intricate matters as the routes to be serviced by such carriers, the number of them to be allowed in each route, the conveniences they should offer the passengers, the fare they may charge, the type of vehicles they should use, and other myriad details that the legislature may not have the time, expertise and interest to prescribe.

Given these shortcomings, the Congress may then create an administrative body like the Board of Transportation and empower it to promulgate the needed rules and regulations, subject only to certain statutory limitations or broad policies predetermined 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 be solved by more serious difficulties of the country requiring its direct and immediate attention.

Delegation of legislative powers is permitted in the following cases: 1. Delegation of tariff powers to the President, 2. Delegation of emergency powers to the President, 3. Delegation to the people at large, 4. Delegation of local governments, and 5. Delegation to administrative bodies.

Delegation of Powers

The reasons given earlier for the delegation of legislative powers in general are particularly are particularly applicable to administrative bodies. With the proliferation of specialized activities and their attendant peculiar problems, the national legislature has found it more and more necessary to entrust to administrative agencies the power of subordinate legislation, as it is called.

With this power, administrative bodies may implement the broad policies laid down in a statute by filling in the details which the Congress may not have the opportunity or competence to provide. This is effected by their promulgation of what are known as supplementary regulations, such as the implementing rules issued by the Department of Labor on the Labor Code. These regulations have the force and effect of law.

Administrative agencies may also issue contingent regulations pursuant to a delegation of authority to determine some fact or state of things upon which the enforcement of a law depends. In other words, they are already allowed to ascertain the existence of particular contingencies and on the basis thereof enforce or suspend the operation of a law. Such contingent regulations also have the force and effect of law.

A case in point is Cruz v. Youngberg (56 Phil. 234). The law involved here prohibited the entry into the country of foreign cattle, which had been determined by the Philippine Legislature as the cause of a rinderpest epidemic that had killed many of the local livestock. The same law, however, authorized the Governor-General to lift the prohibition, with the consent of the presiding officers of the lawmaking body, if he should ascertain after a fact-finding investigation that there was no longer any threat of contagion from imported cattle.

Tests of Delegation

Assuming that the delegation of legislative power comes under any of the permissible exceptions, there is still the question of whether or not the delegation has been validly made. To be valid, the delegation itself must be circumscribed by legislative restrictions, not a roving commission that will give the delegate unlimited legislative authority. It must not be a delegation running riot and not canalized within banks that keep it from overflowing. Otherwise, the delegation is in legal effect an abdication of legislative authority, a total surrender by the legislature of its prerogatives in favour of the delegate.

According to our Supreme Court, the true distinction is between the delegation of power to make the law, which necessarily involves discretion as to what the law shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.

(1) The Completeness Test

Ideally, 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 enforce it. If there are gaps in the law that will prevent its enforcement unless they are first filled, the delegate will then have been given the opportunity to step into the shoes of the legislature in order to repair the omissions. This is invalid delegation.

Thus, in United States v. Ang Tang Ho, a law authorized the GovernorGeneral whenever, for any cause, conditions arise resulting in extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act. Pursuant to this authorization, he issued regulations fixing ceiling prices for the said cereals. The appellant, who was being prosecuted for selling above the said ceiling price, challenged the law on the ground that it constituted an invalid delegation of legislative power for failure to comform to the completeness test. The Supreme Court sustained his contention, declaring as follows: By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake to specify or define under what conditions or for what reasons the Governor-general shall issue the proclamation, but says

that it may be issued for any cause and leaves the question of what is any cause to the discretion of the Governor-General. The Legislature does not also define what is an extraordinary increase in the price of palay, rice, or other cereal. That is also left to the discretion of the Governor-General. The law does not specify or define what such temporary and emergency measures shall remain in force and effect, or when they shall take effect. All of these are left to the sole judgment and discretion of the Governor-General. The law is thus incomplete in legislation.

(2) The Sufficient Standard Test

Even if the law does not spell out in detail the limits of the delegates authority, it may still be sustained if the delegation of the legislative power is made subject to a sufficient standard.

A sufficient standard is intended to map out the boundaries of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate.

The sufficient standard test is usually indicated in the law delegating legislative power. In People v. Rosenthal (68 Phil. 328), to illustrate, the Blue Sky Law required the National Treasurer to cancel certificates for the sale of speculative securities whenever necessary in the public interest. Under R.A. No. 51, the President of the Philippines was authorized to reorganize government-owned or controlled corporations for the purpose of promoting simplicity, economy, and efficiency in their operations (Cervantes v. Auditor General, 91 Phil 359). C.A. No. 548 empowered the Director of Public Works to promulgate traffic rules in the light of the public welfare (Calalang v. Williams). Other accepted standards are justice and equity, the sense and experience of men, and national security.

But even if the law itself does not expressly pinpoint the standard, the courts will bend over backward to locate the same elsewhere in order to spare the statute, if it an, from constitutional infirmity. Thus, in Hirabayashi v. United States, the petitioner challenged a regulation establishing curfew hours for Niseis, or American citizens of Japanese ancestry, during World War II. One of his claims was that the rule based on invalidly delegated legislative power, there being no sufficient standard mentioned in the pertinent law to limit the delegates discretion. The U.S. Supreme Court held that there was a sufficient standard, to wit, the national security, and declared as follows:

It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order the necessity of protecting military resources in the designated areas against espionage and sabotage.

In De la Llana v. Alba (112 SCRA 294), Chief Justice Fernando said: Petitioners would characterize as an undue delegation of legislative power to the President the grant of authority to fix the compensation and the allowances of the Justices and judges thereafter appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The language of the statute is cleas. The questioned provision reads as follows: Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges, Municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such compensation and allowances as may be authorized by the

President along the guidelines set forth in Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by Presidential Decree No. 1597. (Chapter IV, Sec. 41 of BP Blg. 129). The existence of a standard is thus clear.

But it was different in People v. Vera, where our Supreme Court found the old Probation Act unconstitutional. Besides being violative of the equal protection clause, the law was held to be an invalid delegation of legislative power for lack of sufficient standard. The Probation Act was not to be effective immediately. Its effectivity was made to depend upon an act to be done by the provincial boards of the provinces, that of appropriating funds for the salary of a probation officer. If the provincial board makes the appropriation, the Probation Act is applicable in that province; if it does not make the appropriation, the law is not applicable therein. For purposes of the Probation Act, the provincial boards may thus be regarded as administrative bodies endowed with power to determine when the act should take effect in their respective provinces. However, the law does not lay down any rule or standard to guide the provincial boards in the exercise of their discretionary power. What is granted to them is a roving commission which enables the provincial boards to exercise arbitrary

discretion. The applicability and application of the probation Act are entirely placed in the hands of the provincial boards with no standard or rule to guide them. This is a virtual surrender of legislative power to them.

In Ynot v. Intermediate Appellate Court (148 SCRA 659), the Court noted: We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. The phrase may see fit is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and b y what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose

the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a roving commission, a wide and sweeping authority that is not canalized within banks that keep it from overflowing, in short, a clearly profligate and therefore invalid delegation of legislative powers.

The Pelaez Case

The case of Emmanuel Pelaez v. Auditor General is worthy if special attention because its discussion of the tests of a valid delegation of legislative power. At issue here was the validity of Sec. 68 of the Revised Administration Code empowering the President of the Philippines to create, merge, divide, abolish or otherwise alter the boundaries of municipal corporations. Pelaez contended inte alia that it was an invalid delegation of legislative power. The Government argued that it was not, invoking the earlier case of Cardona v. Binangonan (36 Phil. 547), where the power of the GovernorGeneral to transfer territory from one municipality to another was sustained. The Supreme Court upheld Pelaez. Significantly, it ruled that the completeness test and the sufficient standard test, which had theretofore been applied alternatively, must be applied together or concurrently. Justice Roberto Concepcion, speaking for the Court, declared: Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) to fix standard the limits of which are sufficiently determinate or determinable to which the

delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to.

Conclusion

With reference to the mentioned cases, the Completeness Test and Sufficient Standard Test can be compared and contrasted as follows: (1) both of them are tests as to the validity of a delegation of legislative power, (2) Completeness Test means that 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, while the Sufficient Standard Test is the mapping out of the boundaries of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected, and (3) Completeness Test it must set forth therein the policy to be executed, carried out or implemented by the delegate, while Sufficient Standard Test - the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions

Completeness Test as to Sufficient Standard Test

By GIL MAE N. HUELAR Legal Research, Section B

October 21, 2010

Bibliography

Hector de Leon, Textbook on the Philippine Constitution, Published by Rex Bookstore, Inc., 2005

Isagani A. Cruz, Philippine Political Law, Published by Central Lawbook Publishing Co., Inc., 2002

Lawphil Website http://www.lawphil.net Blacks Law Dictionary