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.

---

[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)

The end of days.

1st Week In Law School

I am slowly getting the rhythm of my new law school life. The first week was full of surprises and consolations. I had my first oral recitation in Political Law on the National Territory. I never realized that playing Age of Empires would be this applicable in creating a conceptual framework about sovereignty and territory. Nonetheless, my answer was not a home-run, though it was respectable enough. The other subjects are also very interesting but I have strong sense that this interest will slowly erode when I shall begin to dissect all those voluminous cases and texts considering that the first week was still a honey moon period. My block mates also trusted me enough to be their block president. I thought I am through with this but hey, this is who I am. So for the next coming weeks, I am expecting myself to fall in love with the law books which/whom I spend all my day with. I only hope they can answer back when I ask them if they ate their lunch already.

1st Day of Law School.

"Motherly Funny" I guess would be the best adjective to describe my first day of Law Class. Aside from the obvious fact that our professor was a woman, she also exudes the motherly conduct which allows us to feel relax and easy in her class. Her persona is far from the enumerations of sadistic tendencies given to us during the freshmen orientation. From her side comments and hand gestures, we can draw a conclusion that she is authentically fun.

It was our Legal Writing class. One thing that stuck in me really was how basic its purpose is. We write to convince. Not to inspire, not to romanticize, not to play with the artistic value of words. We write to convince the court of our points.

In the end, it is ultimately the precision of our words where we can fully deliver the force of the law for the interest of justice.

God loves us FIRST. Ninoy and Cory Aqunio Leadership Journey

In its most profound sense, the Ninoy and Cory Aqunio Leadership Journey weaved my anxiety, excitement, doubts, hopes and fears into one understandable and appreciable picture of my life. I bring so much anxiety into this retreat. Friends are leaving, going separate paths; college comfort has ended and the prospect of Law School still stings with fear and uncertainty.

In all the rich inputs given to us, I want to share a simple highlight.

According to Henri Nouwen, we oftentimes miss the whole point about the nature of our relationship with God. Our common mentality is we keep on doing good so we can merit God’s love. We operate in that one-way relationship which simply spells we should please Him – period. Nouwen opens up this new thought that affirms the fundamental truth that God loves us FIRST.

The question is not “how am I to find God?” but “How am I to let myself be found by him?” The question is not “How am I to find God?” but “how am I to let myself be found by him?” The question is not “How am I to know God?”, but “How am I to let myself be loved by God?”.

Innovation and Thumbtack

I got the online job as a Snippet writer of Thumbtack.com

Thumbtack is an internet marketplace for local services, launched in December 2009.^[1] Thumbtack allows service providers and consumers to find each other and negotiate jobs online.^[1] In August 2010, CEO Marco Zappacosta claimed Thumbtack had over 50,000 service providers signed up on the website

I had the privilege to meet the co-founder of Thumbtack, Jonathan Swanson in Thai Me Up last May 21. I also met my co-workers in the Mindanao group and our immediate bosses. I believe this was their first Philippine tour and they also met other team members in Manila and Cebu.

Aside from the great food and company, innovation was the real highlight of the night for me. Their stories showed me how innovation specifically online jobs are helping a lot of people earn money in the convenience of their homes and in their own time.

Meeting Jonathan was also a highlight. Though we did not really strike a substantial conversation, his presence has allowed me to see the face of youthful innovation and vision. This, I believe is a fundamental trait for all of us Filipinos. We are by nature innovative. However, our economic circumstances has stalled much of the potential creativity we have and I hope someday in the future, Filipino made online businesses will boom and employ more Filipinos.

First step towards the College of Law

This is the first step towards a long journey. This morning, I took the Xavier College of Law entrance exam. It was a mix of bittersweet. I got my first chance of how the mind ought to operate in the context of studying the law. Math and reading comprehension was kind of ok but the long critical thinking problems were quite a shock. The essay was like a last-minute inspiration charge. Nonetheless, I am confident that all will fall into place. I am looking forward to get the results two weeks from now so I know what particular area of basic skills I should improve. I also got the chance to see all my potential classmates. It was a very different feeling from my undergraduate exam experience. We have people of different age brackets and professional background. A dynamic experience awaits all of us. I just personally hope that sanity will still prevail under the pressing stress of law school. I would like to conclude with this thought.

Lawyers are vital players of nation-building especially in the preservation of our democratic ideals and the dispensation of justice. The honest practice of law is indispensable in the development of our nation and the attainment of social justice.

I hope as I begin this journey, the thought above will manifest itself. We face a complex society, so let us stay close to the uncompromising values of what is best in humanity.

He is truly the Students’ President.

As his final official act as President of Xavier University, Fr. Jett signed the 2011 Magna Carta of Students’ Rights and Responsibilities on May 11, 2011 during the student leaders’ tribute in Apple Tree, Opol Misamis Oriental. After 10 years, the CSG proposed a revised version which articulated more specific rights ranging from the prohibition of the purchase of ticket as an academic requirements, freedom to peaceably assembly, right to petition the board of trustees, the preservation of the activity hour/s among others.

We in government hope and pray that every member of the community will be informed about these new rights. Moreover, we hope that we shall act on these rights and the responsibilities associated with it.

Considering all his reforms and improvements done in our University, He is truly the Students’ President.

“To give and not to count the cost...to Labor and not ask for reward...”

In a simple ceremony last May 10, 2011, Xavier University symbolically turned over 20 housing units to the victims of the last 2009 flood through Habitat for Humanity. In his message, Fr Jett shared a very interesting thought which I wish to share it with you. It goes something like this:

What is inspiring about this project is it is born out of generosity. Imagine a world were mere transactions happen. We lose some, we gain some – net gain zero. The world would pretty much be stagnant. Generosity on the other hand does not seek for reward. We labour because of our love for the poor and this moves our nation forward.

Take away the rigidity of economic considerations, this thought actually is true. We do not gain directly at least financially from our volunteer work but social justice is well served through our labor of love. And social justice is the ultimate objective of our work. I am also happy to see the fruition of the Central Student Government’s House Build Program which contributed one housing unit. The resources were made possible through the generosity of our students and student leaders led by Iraquel Gala.

So for all us, let us keep the equation unbalanced most of the time. As what Ignatius perfectly stated: “To give and not to count the cost...to Labor and not ask for reward...”

Good Governance and Heroic Leadership

Last May 8, 2011, I delivered a talk on Good Governance and Heroic Leadership to the incoming officers of the Center of Integrated Technologies Student Council. The intention of the sharing was to present the intimate relationship between the personal qualities of a leader and the factors of good governance. I discovered that the 4 pillars of heroic leadership can be “operationalized” as public governance mechanisms in four specific areas. As a summary, a formula which captures the importance of different leadership variables in the overall impact of the council was then derived from this basic idea. I hope that this idea will be further enhanced. As I shared, it is through linking our personal values to public leadership where we begin to appreciate our mission.

Citsc power

View more presentations from Ernesto Neri.

Meeting Fr. Ronnie

We had the privilege to meet Fr. Ronnie, the parish priest of Princeton, British Columbia. He is the parish priest of my brother who is living there. It was an insightful conversation. He shared to us the difficulty in gathering the young Catholic community there. Nonetheless, it is amazing how the world seems to be smaller because of this meeting. God bless and safe trip back to Canada.

A meaningful day in Claveria

Last May 30, I had a rare chance to observe the living Basic Ecclesial Community (BEC) Planning Session in Claveria, Misamis Oriental. Wikipedia defines BECs as:

“Basic Ecclesial Communities (BECs), also called Basic Christian Communities, Small Christian Communities and Small Human Communities^[1] (or in the Philippines, Maliliit na Sambayanang Kristiyano) are units of parishes with a greater lay administrative and quasi-sacramental role.“

True to its definition, what I saw were the basic ground movement of the Church and how it continues to be relevant in the lives of these town folks. Well to be honest, this was my first time to hear such movement in the Church. And this has become a source of envy seeing these people live simple uncomplicated lives while committing themselves to these communities. I never have any such community based experience and I am seeing a future life that is far from uncomplicated (As I perceive it). Nonetheless, the church is so alive because of them. I also took the chance to walk around the center of Claveria (an exercise I always do when I am in a new place, especially rural places). Once again, I was struck by their simplicity and uncomplicatedness. Electric wires were well tucked far from our mangled wires here. The public buildings were arranged in very a functional manner; all in walking distance to one another. And I even saw a big family reunion gathered around a big wooden table outside a very old house. They even had a nifty banner hanged by the wall; so simple yet so happy. I learned so many things from a day in Claveria. One thing is how important communities are not just for the Church but for the nation as well and how we city dwellers should begin to organize our lives around simple and functional things and values.

Visioning Exercise

Articulating clearly what you want to achieve in the long term really helps a lot in sustaining the motivation.

Atty. Ernesto B. Neri is a CdeO based developmental lawyer and public governance specialist specializing in people’s participation mechanisms in LGUs and public service quality development.

He is also an educator and a blogger/writer. He is the founder of the “Tabang Legal” (Northern Mindanao Public Interest Law Center) and the Neri Law Foundation.

He organized the Makapaya Social Farm project. He is also the President of the Katarungan Newsweekly, the oldest weekly newspaper in Mindanao.

Ad Majorem Dei Gloriam

Exploring Philippines' Neighbors

Stopover at Singapore

ShenZen

Hong Kong

Indonesia

Macau

Hong Kong

Thailand

Exploring is one activity I would love to do. Even in rural Filipino towns, I never miss the opportunity to stroll the streets just being lost in the culture and the spirit of the place. I just thankful of the wonderful opportunities given to me to explore not just the country but also its neighbors. These experiences definitely widened my horizons about the world and its people.

MONEY AND POWER IS EVERYTHING

Cut all the mission bullshit. What defines this world is money and power; nothing more, nothing less. History of mankind itself is defined by this constant struggle of power and money. If you do not have money, you do not have power. If you have power, natural consequence is you desire for more money to feed that power. People respond to incentives, so the person who can command the greatest incentive in the form of money or its equivalent controls the people’s responses – the people’s respect. And this cycle continues. This is the harsh reality of the world and there is nothing we can do about it. Every man is for himself. We disguise our desire of influence and power under the cloak of goodness and selflessness. We parade ourselves in churches and charities for people to see how he is living “the good and right life”. This is the system. We could either fight it in vain or join them and have all the things you want in this world. If you can’t beat the enemy, better join them.

This is the standard of the world. Is this what life is all about? a cycle of power and money?

The story of Christ has proved this wrong.

Convenience et al v.s. Dream

It was initially uncomfortable.

Knowing that your close friends are landing into good jobs or leaving the nest for “greener pastures”, I ended up pausing and feeling a pinch of envy. A month before my graduation, I decided to defer any full-time employment opportunity to pursue a life goal; that is to be an officer of the courts – a lawyer. And of course, this requires 5 more years of rigid academic training which is clearly an understatement.

Considering that I already established and made sense of this desire, I would ask myself why do I feel this sense of discomfort. Am I not sure of my decision? It would later reveal that it is not because of indecision. It was because of taking big risks. I consider this as one because I will forgo 5 youthful years worth of potential salary and volunteer experience to a profession which only assures an average of 25% passing rate in the Bar. And for any young adult who went through economics, this is a risky leap of faith.

My story, I believe, is a common one that many young adults face. It is a case of a general theme on convenience v.s. dream; convenience which means short term and low risk while dream means long term, high risk, plus pain. When I was still in high school and mid-college, the choice would be very easy. I would choose “the dream” with all the romantic fantasies of heroism and selfless struggle in order to attain that noble goal. But now that I am in the precipice of the real world where that cloud of imagination is beginning to fade and the real picture of the intimate relationship between means and goals reveals itself, it is no longer a “world peace” answer. We have to seriously consider both.

In my case, I decided to discount convenience. I decided to defer relatively high paying corporate jobs which will definitely fund my goals and cost me an extra three or more years for a profession that I see myself doing everyday. I will dedicate HALF A DECADE of my life digging into thick voluminous law books and cases in preparation for a life mission that I believe will allow me to positively impact more lives. My friends might be driving their own cars by then and I may still be half way through my cases, but hey, this is what I decided to do. As my father said, “do what you love doing, and money (or convenience) will just follow.” And that is really the point of my sharing. Identify what you want in life, where you see yourself grow and where you see yourself positively impact the lives of people especially those who needs us most (our families and the easily marginalized). It maybe in public service, religious life, corporate life or other professions. And once you find it, pursue it with all your heart and mind with the grace of God and all will then fall into its proper place regardless of the great struggles you went through. Take the first step towards that goal and In my case, it's a step that will last for half a decade. Struggles made in the context of a purpose are not struggles at all, but easily decipherable life lessons. It is a leap of faith but this is what life is all about.

And I guess this is one indicator of pre-law school anxiety.