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)