Non-delegability of Legislative Powers

Non-delegability: The Basics

The concept of non-delegability of legislative power is of great importance in the study of the constitution and in the appreciation of the concept of separation of powers as enshrined in modern democracies. One of the great commentaries on the Constitution of the United States which our constitution is patterned from wrote that “Why go the trouble of separating the three powers of government if they can straight-way remerge on their own motion? The second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency “Delegata potestas non potest delegari (No delegated can be futher delegated)”[1].

Corwin clearly articulated the reason behind the bar on delegation of legislative powers. Our constitution has lodged the legislative power which is the power to make, alter and repeal laws to Congress and as a derivative power from the sovereign people; a delegated power cannot be delegated further.

However, the growing complexity of modern society has led governments to regulate various aspects of human activity as an exercise of government’s police power. Numerous statues have been passed creating administrative agencies and authorizing them to exercise vast regulatory powers. The rules and regulations they issue have the force of law.[2]

There are two theories that support this phenomenon of expanding regulatory powers. The first one is to a non-legislative body may be authorized to “fill up the details”.[3] The second one is congress may pass contingent legislation, that is, legislation which leaves to another body the business of ascertaining the facts necessary to bring the law into actual operation.[4]

A criterion was developed to assure that the power delegated by the legislature is not law-making but law-execution. First one is the delegation must be complete in itself – it must set forth therein the policy be carried out or implemented by the delegate and the second one is fix a standard – the limits of which are sufficiently determinate or determinable.[5]

Jurisprudence

American and Philippine Jurisprudence brings greater light on the subject of non-delegability.

In the case of Compania General de Tabacos v. Board of Public Utility[6], the Supreme Court ruled that the delegation is so general that it is no more precise than if it had just said “The Board may require every public utility to furnish annually a detailed report.” Hence they ruled

that the statute is an unlawful delegation of legislative power.

In the Case of United States v. Ang Tang Ho[7], the Supreme Court ruled that the law, which authorize the Governor General to issue and promulgate temporary rules and emergency measures fixing the price of such cereals for any cause of conditions, contains no standard that will guide the Governor General in determining whether the rise is extraordinary and for determining what the price should be. It is another case of unlawful delegation of legislative power.

In the Case of Araneta v. Gamaitan[8], the Supreme Court ruled that the regulation, which authorizes the Secretary of Agriculture and Natural Resources to impose restrictions on the use of any fishing net or fishing device for the protection of fish or fry or fish eggs, merely supplies the details for implementing the law which is already clear and complete in itself and contains a standard to guide the administrative officers.

Conclusion

They say that tyranny is a system that has been laid to rest in annals of human history. In these modern and enlightened times, the people, in their unlimited sovereign capacity, has delegated their power in 3 equal branches of government – not anymore concentrated in one man, one family or one department of government. It is in this concept of separation of powers where this concept of non-delegability mainly hinges to. As future officers of the court, the concept of non-delegability demands appreciation and understanding for this concept draws the line between the power to make laws and the power to execute them.

[1] CROWIN, CONSTITUTION OF THE UNITED STATES OF AMERICA, 95 (1964)

[2] BERNAS, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.686, 2009 Ed.

[3] Wayman v. Southward, 10 Wheat 1, 42 (1825)

[4] The Brig Aurora, 7 Cr. 382 (1813)

[5] Palaez v. Auditor General, 15 SCRA 569, 576-7 (1965).

[6] 34 Phil. 136 (1916)

[7] 43 Phil. 1,5-6 (1922)

[8] 101 Phil. 328 (1957)

The Philippine Bill of 1902 and Jus Soli

After the turn-over of sovereignty from the Kingdom of Spain to the United States over the former’s colonies, the United States began paving the way for the Philippines in particular towards self-governance. The Philippine Bill was enacted by the Congress of the United States on July 1, 1902. The act was originally thought out to be a temporary one. It was meant to prepare the Filipinos for independence and self-governance for a period of at most eight years. However, it became the guide for the administration of civil government of the Philippines for fourteen years. It has little character of a constitutional act. Those provisions which one would expect to find in a constitution, such as establishing the framework for government, limiting governmental powers, and providing for the political organization of the executive, legislative and judicial branches, were lacking[1].

Section 4 of the Philippine Bill defines who the citizens of the Philippines were. It stated:

That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except as such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the united States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight: Provided, That the Philippine legislature is hereby authorized to provide by law for the acquisition Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possessions of the United States, and such other persons residing in the Philippine Island who could become citizens of the United States if residing therein[2].

In this Bill, all those that were considered citizens of the Philippines under the Treaty of Paris were deemed to be citizen. Also, all those born after 11 April 1899 to parents who were Spanish subjects on that date and who continued to reside in the Philippines were ipso facto citizens of the Philippine Islands unless they declare their allegiance to the Spanish Crown. It was in this period (1902-1935) that the concept of Jus Soli was actually practiced in our archipelago[3].

[1] GEORGE A. MALCOLM, THE CONSTITUTIONAL LAW OF THE PHILIPPINE ISLANDS 222 (1920)

[2] PHILIPPINE BILL OF 1902 § 4 (1902) amended by ACT OF MARCH 23, 1912

[3] Roa v. Collector of Customs, 23 Phil. 315 (1912)

Ignorance of the law as the basis of good faith.

I would like to add the concept of Ignorance of the law as the basis of good faith.

Article 526 of the Civil Code provides that:

He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith.

The civil code specifically provides that a mistake on a doubtful or difficult question of law may be the basis of good faith. This does not mean, however, that one is excused because of such ignorance. He is still liable, but his liability shall be mitigated. [1]

In the case of Kasilag vs. Rodriguez[2], the Supreme Court held that one who possesses land by virtue of a void contract can, nevertheless, be considered a possessor in good faith if the law involved is comparatively difficult to comprehend, and as such he is entitled to reimbursement for useful improvements he had introduced on the land before he is deprived of the land.

[1] Paras, Civil Code of the Philippines Annotated Book 1 Persons and Family Relations, p24, 14th Edition

[2] 69 Phil. 217

Locus Standi and Inter-generational Responsibility

There is an interesting case regarding the topic on Locus Standi.

In Oposa vs. Factoran, Jr.[1], the case involved thirty four minors who went to Court represented by their parents pleading the cause of “intergenerational responsibility” and “inter-generational justice” and asking the Supreme Court to order the Secretary of Natural Resources to cancel all existing timber licenses agreements and to “cease and desist from receiving, accepting or approving new timber license agreements. They alleged that the massive commercial logging in the country is causing vast abuses on rainforest[2].

The issue was whether or not the petitioners have a locus standi.

The Supreme Court said that: “We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit.” Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned as stated in Article 2, Section 16 of the 1987 Constitution[3].

[1] 224 SCRA 792 (1993)

[2] Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.90, 2009 Ed.

[3] The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Compulsory Military and Civil Service and the 1987 Philippine Constitution

Compulsory Military and Civil Service and the 1987 Philippine Constitution

It has been said that one of the most vital concepts any lawyer should understand and articulate is the constitutionality of compulsory military and civil service. Once invoked, any man with common intelligence is quick to cast doubt on its wisdom and build opposition against it. Thus it is vital for lawyers to let the people fully understand the reasons behind its constitutionality.

Section 4, Article 2 of the 1987 Constitution provides: “The Prime Duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfilment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.”

Though the constitution itself has articulated that this power to compel such actions, it is important to understand the rich US and Philippine jurisprudence that further articulate this matter.

Draft vs. Volunteer System

Before we go further into this topic, it is essential to understand the reasons seen by our constitutional framers on the. The 1935 provision[1] on compulsory military service came into fruition from the recognition of the inadequacy of a volunteer system both in terms of military effectiveness and in terms of quality between rich and the poor[2]. The report of the committee on national defence said that: “the volunteer system is undemocratic, because the cannon fodder, with very few exceptions, consists of proletarians. Added further “sons of the wealthy can evade the sacred duty of defending their country, though it is they who enjoy the advantages obtained through the services rendered and blood spilled by men to whom fortune has been unkind.” Flowing from these points, it can be understood that a draft as opposed to a volunteer system, is more just since it calls each able-bodied citizen regardless of wealth, education, at the very least, to protect the state.

American Jurisprudence

In the Selective Draft Case[3] of the United States which challenge the military draft by virtue of the Thirteenth Amendment[4], the US Supreme Court held that: “We are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defence of the rights and honour of the state, as the result of war declared by the great representative body of the people, can be said to be the imposition of involuntary service.” It can be deduced from the court’s decision that the people themselves through their representatives have declared the state of war and thus as a consequence, require the people to meet its demands in the form of military or civil service.

In the case of Jacobson vs. Massachusetts.[5] , the Supreme Court said that, without violating the Constitution; a person may be compelled by force, if need be, against his will, against his pecuniary interests, and even against his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chances of being shot down in its defence

Philippine Jurisprudence

In People vs. Lagman[6], the accused was prosecuted for failure to register for military service under the national defence act. He assailed the validity of the said act. The Supreme Court said that the duty of the government to defend the state cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein. Added further, the Supreme Court also pointed out that the right of the Government to require compulsory military services is a consequence of its duty to defend the state and is reciprocal with its duty to defend the life, liberty, and property of the citizen.

Conclusion

This topic touches one of the most sacred duties of every citizen and it is the intention of this sharing to shed a humble light on the wisdom behind this noble and sacred duty. In the event that government calls us to defend the state, it is incumbent upon us, as citizens of the state to rid ourselves of our personal attachments, private interests and selfish desires for a cause larger than any one of us. That is the defence of the state which nurtures our very life, liberty and property.

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[1] Article 2, Section 2: The defense of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service.

[2] Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.67, 2009 Ed.

[3] 245 U.S. 366, 390 (1918)

[4] Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

[5] 197 U.S., 11; 25 Sup. Ct. Rep., 385

[6] 66 Phil. 13 (1938)