Quasi-legislative-power-reviewer[1].docx

Legislative power – power to make, alter and repeal laws. Quasi-legislative power -

It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy.

Distinctions between Quasi-legislative power and legislative power 1. LEGISLATIVE power involves the discretion to determine what the law shall be. QUASI-legislative power only involves the discretion to determine how the law shall be enforced. 2. LEGISLATIVE power CANNOT be delegated. QUASI-legislative power CAN be delegated. Doctrine of Separation of Power -

Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.

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Prohibits the delegation of purely legislative power ( power conferred upon the legislature to make laws cannot be delegated

“this doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another.”

Delegation of legislative power to PRESIDENT The doctrine of separation of power does not, however, absolutely prohibit delegation of legislative power. Delegation to President is permitted in: Article 6 SECTION 23. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. SECTION 28. (2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. PRESIDENTIAL ISSUANCE - those which the President issues in the exercise of his ordinance power (executive order, administrative orders, proclamations, memorandum orders, memorandum circulars, and general or special orders. EXECUTIVE ORDERS - “Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.”

ADMINISTRATIVE ORDERS - “Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.”

Delegation of legislative power to the SUPREME COURT Article 8 SECTION 5. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. -The power vested in SC is not only to promulgate rules of procedure but also to repeal procedural laws. -Parts of statutes which deals with procedural aspects can be modified or repealed by SC by virtue of its constitutional rule-making powers

Delegation of legislative to LOCAL GOVERNMENTS Local Legislative Power. - Local legislative power shall be exercised by the Sangguniang Panlalawigan for the province; the Sangguniang Panlungsod for the city; the Sangguniang bayan for the municipality; and the Sangguniang Barangay for the Barangay. Local Government code SECTION 129. Power to Create Source of Revenue - Each local government unit shall exercise its power to create its own sources of revenue and to levy taxes, fees, and charges subject to the provisions herein, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local government units

Delagation as exception to restriction thereon The doctrine of separation of powers precludes the delegation of those power which are strictly or inherently and exclusively legislative.

Rule-making power Rule – any administrative agency statement of general applicability that implements or interprets a law, fixes and describes the procedures in, or practice requirements of, an agency not affecting the rights of, or procedure available to, the publilc. Rule-making – agency process for the formulation, amendment or repeal of a rule. –

Power to issue rules and regulations which result from delegated legislation in administrative level

Distinguished from administrative function

ADMINISTRATIVE FUNCTION – those which involve the regulation and control over the conduct and affair of individual for their own welfare and promulgation of rules and regulations to better carry out the policy of legislature or such as devolve upon the administrative agencies by the laws creating them.

Distinguished from Quasi judicial power Quasi-legislative act operates in the future Adjudication means a determination of rightw, privileges and duties by administrative agency resulting in a decision or order which applies to specific situations/persons/entities. *an action in the form of a general rule for the future to govern the public at larger is LEGISLATIVE in nature….an action which results from investigation, declaration, and enforcement of liabilities as they stand on the present or past facts and under existing laws is JUDICIAL. QUASI-JUDICIAL POWER–power of administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construe it to the facts so found. The exercise of this power is only incidental to the main function of administrative authorities, which is the enforcement of the law

Right to notice and hearing distinguishing feature Requirement of notice and hearing is not necessary in quasi-legislative. Issuance of rules and and regulations in the exercise by an administrative agency of its quasi-legislative power does not require notice and hearing, while adjudication of controversies (quasi-judicial power) requires notice and hearing or at least the opportunity to be heard. Kinds of rule-making power 1. Rule making by reason of particular delegation of authority – power to issue rules and regulation which have the force and effect of the law 2. Rule making by the construction and interpretation of a statute being administered – power of administrative agency to interpret and construe the statutes 3. Determination of facts under a delegated power as to which a statute shall go into effect 3 kinds of interpretation 1. Interpretation as incident of the execution of law 2. Interpretation as incident of the execution of law 3. Interpretation in adversary proceedings

DELEGATION OF LEGISLATIVE POWER -Refers to the grant of authority by legislature to administrative agencies to issue rules and regulation concerning how the law entrusted to them for implementation may be enforced. SUBORDINATE LEGISLATION – delegated authority to issue rules and regulations to carry out the provisions of the stature

WHAT CANNOT BE DELEGATED -

Purely Legislative in nature (power to make laws, determine what the law shall be, alter or repeal it)

WHAT MAY BE DELEGATED (valid – delegation has to pass completeness and sufficiency standard test) -

How the law shall be enforced To issue rules to fill in details To ascertain facts on which the law will operate To exercise police powet Fix rates (rate ficing power)

Tests of Delegation (applies to the power to promulgate administrative regulations ) 1. COMPLETENESS test. This means that the law must be complete in all its terms and conditions when it leaves the legislature so that when it reaches the delegate, it will have nothing to do but to enforce it. SUBJECT, MANNER and EXTENT OF OPERATION are stated. 2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of the delegate’s authority, announce the legislative policy and specify the conditions under which it is to be implemented. Must be fair and equitable.

STANDARD FIXED CANNOT BE ENLARGED NOR RESTRICTED Where the law sets the standards by which the delegate may exercise the delegated power, the executive or administrative agency concerned cannot add thereto and justify the exercise of the delegated power on the basis of all such enlarged standard.

USUAL ISSUES ON THE VALIDITY OF DELAGATION 1. WON the requisites of valid delegation are present (completeness and sufficiency standard test) 2. WON the rule or regulation conforms with what the statute provides 3. WON the same is reasonable Administrative rules and regulations to be valid must be: 1. 2. 3. 4.

Germane to the purpose of law Conform to the standards the law prescribes Reasonable Related solely to carrying into effect the general provisions of the law

REGULATIONS CANNOT RESTRICT NOR ENLARGE THE LAW -implementing rules cannot add to or defract from the provisions of the law it is designed to implement

Administrative bodies have the authority to issue administrative regulations which are penal in nature where the law itself makes the violation of the administrative regulations punishable and provides for its penalty. For making the act a crime is purely legislative, which the law legislature cannot delegate.

WHEN RULES TAKE EFFECT “Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided.” Section 2, Civil Code

Apart from publication, it is also required that the rules and regulations be filef with UP law Center of the University of the Philippines. Executive Order No. 292 [BOOK VII/Chapter 2-Rules and Regulations] SECTION 3. Filing.—(1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from that date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

SECTION 4. Effectivity.—In addition to other rule-making requirements provided by law not inconsistent with this Book, each rule shall become effective fifteen (15) days from the date of filing as above provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them.

SECTION 5. Publication and Recording.—The University of the Philippines Law Center shall: (1) Publish a quarterly bulletin setting forth the text of rules filed with it during the preceding quarter; and (2) Keep an up-to-date codification of all rules thus published and remaining in effect, together with a complete index and appropriate tables.

SECTION 6. Omission of Some Rules.—(1) The University of the Philippines Law Center may omit from the bulletin or the codification any rule if its publication would be unduly cumbersome, expensive or otherwise inexpedient, but copies of that rule shall be made available on application to the agency which adopted it, and the bulletin shall contain a notice stating the general subject matter of the omitted rule and new copies thereof may be obtained. (2) Every rule establishing an offense or defining an act which, pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text.

SECTION 7. Distribution of Bulletin and Codified Rules.—The University of the Philippines Law Center shall furnish one (1) free copy each of every issue of the bulletin and of the codified rules or supplements to the Office of the President, Congress, all appellate courts and the National Library. The bulletin and the codified rules shall be made available free of charge to such public officers or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs.

SECTION 8. Judicial Notice.—The court shall take judicial notice of the certified copy of each rule duly filed or as published in the bulletin or the codified rules.

SECTION 9. Public Participation.—(1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule. (2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon. (3) In case of opposition, the rules on contested cases shall be observed.

PROHIBITION AGAINST RE-DELEGATION; EXCEPTIONS One restriction on the delegation of legislative power is the doctrine of potestas delegate non delegari protest. What has been delegated cannot be delegated. Delegated power constiture not only a right but a DUTY to be performed by the delegate through the instrumentality of his judgment.

RATE FIXING The function of prescribing rates by administrative agency may either be a legislative (notice and hearing is not required) or adjudicative function (prior notice and hearing are essential to the validity of rates.)

POWER TO FIX RATE CANNOT BE RE-DELEGATED The power delegated to administrative agency to fix rates cannot, in the absence of law authorizing it, be delegated to another.

CONTEMPORARY CONSTRUCTION -the construction placed upon the statute by an executive or administrative officer called upon to execute or administer such statute. THREE TYPES OF EXECUTIVE INTERPRETIONS 1. Construction by an executive or administrative officer directly calle to implement the law 2. Construction by the Secretary of Justice 3. Interpretation handed down in an adversary procceding in the form of a ruling by an executive officer exercising quasi-judicial power FORM OF INTERPRETATION – rules, circulars, opinions, and directives RULES WHICH ARE MERELY INTERPRETATIONS - PUBLICATION IS NOT REQUIRED

Contemporaneous construction, while in no case binding upon the courts, is nevertheless entitled to great weight and respect in the interpretation of ambiguous provisions of the law, unless it is shown to be clearly erroneous.