Introduction

Corollary to the doctrine of separation of powers is the principle of non-

delegation 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 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 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

Governor-General “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

delegate’s 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 delegate’s 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 delegate’s 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

Governor-General 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 delegate’s 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

Black’s Law Dictionary