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May 17, 2008

Delegation of Legislative Power

Doctrine of “Subordinate Legislation”; Limitations

  • rule-making power
  • cannot contravene a statute or the Constitution
  • rules are not laws but have the force and effect of laws - partakes of the nature of statute
  • enjoy presumption of legality - therefore courts should respect and apply them UNLESS declared invalid; all other agencies should likewise respect them

Q: Distinguish between Legislative and Quasi-Legislative power.
A: Legislative power is vested in the Legislature while quasi-legislative power is in the nature of subordinate legislation or the rule-making power delegated to administrative bodies. Legislative power is plenary while quasi-legislative is not plenary and therefore subject to limitations – e.g. Constitution, statute, and administrative law limitations such as the tests for valid delegation. Legislative power includes the power to determine what the law is and how it shall be applied. Quasi-legislative power only includes the power to determine how the law is to be applied but not what the law is; administrative bodies cannot determine the legality or illegality of an act, NOT UNLESS they are duly authorized by Congress.

Q: Distinguish between Judicial and Quasi-Judicial power.
A: Judicial power is original, vested in the judiciary. Quasi-judicial power is derivative, a product of valid delegation of power to administrative bodies. Judicial power includes the determination of rights and obligations conclusively while quasi-judicial power is temporary in nature as courts have the final say. Judicial power is a primary power exercised by the judiciary while quasi-judicial power is incidental to the primary function of administrative bodies of implementing and enforcing laws. (NOTA BENE: It is called “quasi-judicial” because it is a power that belongs to the judiciary but is exercised by a non-judicial body. In addition, it is only incidental to the primary function of implementation and enforcement of laws.)

Q: Why is it important to distinguish between quasi-legislative and quasi-judicial power?
A: It is important to distinguish between these two powers of administrative bodies because there are certain rules and principles in administrative law, which apply to one but not to the other. Thus, the requirements of due process (notice & hearing) apply when the administrative body is exercising quasi-judicial functions because such power includes the determination of rights and obligations. On the other hand, there is generally no need of prior notice & hearing in the exercise of quasi-legislative power. Likewise the prior exhaustion of remedies and the doctrine of primary jurisdiction do not apply in quasi-legislative processes, and only in the exercise of quasi-judicial functions. And finally, a body exercising quasi-judicial functions is considered equivalent to a regional trial court. Hence, one can seek relief from its judgment by appealing to the Court of Appeals or the Supreme Court, depending on the mode of appeal. A body exercising quasi-legislative functions is not considered equivalent to a court. Hence, one can resort to the regional trial court to obtain relief.

Q: How are administrative rules interpreted?
A: It is a settled principle of law that in determining whether a board or commission has a certain power, the authority given should be liberally construed in the light of the purposes for which it was created, and that which is incidentally necessary to a full implementation of the legislative intent should be upheld as being germane to the law. Necessarily, too, where the end is required, the appropriate means are deemed given. (Matienzo v. Abellera, G.R. No. L-45839, June 1, 1988)

People v. Exconde, 101 Phil 1125 (1957)


It is well established in this jurisdiction that, while the making of laws is a non-delegable activity that corresponds exclusively to Congress, nevertheless the latter may constitutionally delegate authority to promulgate rules and regulations to implement a given legislation and effectuate its policies, for the reason that the legislature often finds it impracticable (if not impossible) to anticipate and provide for the multifarious and complex situations that may be met in carrying the law into effect. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction with it, but conform to the standards that the law prescribes.


The regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid. A violation of a regulation prescribed by an executive officer of the Government in conformity with and based upon a statute authorizing such regulation, constitutes an offense and renders the offender liable to punishment in accordance with the provisions of law.


The legislature cannot delegate to a board or to an executive officer the power to declare what acts shall constitute a criminal offense. It is competent for it, however, to authorize a commission to prescribe duties on which the law may operate in imposing a penalty and in effectuating the purpose designed in enacting the law. There are numerous cases in which the courts have sustained statutes authorizing administrative officers to promulgate rules on a specified subject and providing that a violation of such rules or orders should constitute a misdemeanor, punishable as provided in the statute.

Where statutes provide that violation of a rule or regulation of an administrative agency shall be a misdemeanor, if the rule or regulation is reasonable, the enforcement of the penalty for its violation is sustained by the courts, for the legislature and not the administrative agency made the action penal.

Echegaray vs. Secretary of Justice, G.R. No. 132601, Oct. 12, 1998


Although Congress may delegate to another branch of the Government the power to fill in the 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) fix a standard – the limits of which are sufficiently determinate or determinable – to which the delegate must conform in the performance of his functions.


Considering the scope and the definiteness of RA 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority.


RA 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. It indicates the circumstances under which the legislative purpose may be carried out.

Land Bank of the Philippines vs. Leonila P. Celada, G.R. No. 164876, Jan. 23, 2006


It is elementary that rules and regulations issued by administrative bodies to interpret the law which they are entrusted to enforce, have the force of law, and are entitled to great respect. Administrative issuances partake of the nature of a statute and have in their favor a presumption of legality. As such, courts cannot ignore administrative issuances especially when, as in this case, its validity was not put in issue. Unless an administrative order is declared invalid, courts have no option but to apply the same.

Tests of Delegation


- what is to be examined:
  1. subject matter (what is delegated)
  2. scope of the subject matter or measure
  3. what job must be done
  4. authority (who is to do it)
  5. scope of authority
- what is to be examined:
  1. legislative policy (“whereas” clauses)
  2. specific administrative agency to apply the legislative policy
  3. scope of the policy and the circumstances under which it is to be carried out

Eastern Shipping Lines, Inc. vs. POEA, 166 SCRA 533 (1988)


Legislative discretion as to the substantive contents of the law cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate.


There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot.

Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.


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 new Labor Code. These regulations have the force and effect of law.


(1) public interest; (2) justice and equity; (3) public convenience and welfare; (4) simplicity, economy and efficiency; (5) sense and experience of men; and (6) national security.

Tatad vs. Secretary of the Department of Energy, 281 SCRA 330 (1997)

The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it 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.

Santiago vs. COMELEC, 270 SCRA 106 (1997)

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard – the limits of which are sufficiently determinate and determinable – to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances which the legislative command is to be effected.

Doctrine of “Potestas delegata non delegari potest;” Exception

Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA 386 (1994)

An administrative body may implement broad policies laid down in a statute by “filling in” the details which the Legislature may neither have time nor competence to provide. However, nowhere under the aforesaid provisions of law are the regulatory bodies authorized to delegate that power to a common carrier, a transport operator or other public service.


The authority given by the LTFRB to the provincial bus operators to set a fare range over and above the authorized existing fare is illegal and invalid as it is tantamount to an undue delegation of legislative authority. Potestas delegate non delegari potest. What has been delegated 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 through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power would indeed constitute a negation of the duty in violation of the trust reposed in the delegate mandated to discharge it directly. The policy of allowing the provincial bus operators to change and increase their fares at will would result not only to a chaotic situation but to an anarchic state of affairs. This would leave the riding public at the mercy of transport operators who may increase fares every hour, every day, every month or every year, whenever it pleases them or whenever they deem it “necessary” to do so.

American Tobacco Co. vs. Director of Patents, 67 SCRA 287 (1975)


It has been held that power conferred upon and administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions may be an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication it has been withheld.


A far wider range of delegations to subordinate officers. This sub-delegation of power has been justified by “sound principles of organization” which demand that “those at the top be able to concentrate their attention upon the larger and more-important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail. Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made.

The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. There is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. It is, however, required that to “give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.”

Kinds of Administrative Regulations (Quasi-Legislative)
  1. Legislative – subordinate legislation; details of the law
  2. Interpretative – guidelines to the law to be enforced

Q: Why is it important to distinguish between legislative and interpretative rules and regulations?
A: It is important to distinguish between the two because the requirements of due process generally apply to one but not to the other. Thus, interpretative rules and regulations do not require notice and hearing or publication for their validity. However, legislative rules may require notice and hearing (1) if the law itself provides that there is a need for observance of due process (e.g. provisional fixing of rate); and (2) if the rule adds burden to the governed. Publication is likewise a condition precedent to the effectivity of legislative rules and regulations, EXCEPT if they are merely internal regulations (e.g. letters of instruction).

Eslao vs. Commission on Audit, 236 SCRA 161 (1994)

COA, under its constitutional mandate, is not authorized to substitute its own judgment for any applicable law or administrative regulation with the wisdom or propriety of which, however, it does not agree, at least not before such law or regulation is set aside by the authorized agency of government – i.e., the courts – as unconstitutional or illegal and void. The COA, like all other government agencies, must respect the presumption of legality and constitutionality to which statutes and administrative regulations are entitled until such statute or regulation is repealed or amended, or until set aside in appropriate case by a competent court and ultimately the Supreme Court.

Commissioner of Internal Revenue vs. CA, 261 SCRA 236 (1996)


A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing.

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.

Peralta vs. Civil Service Commission, 211 SCRA 425 (1992)


When an administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law means. It has also been held that interpretative regulations need not be published.


Administrative construction is not necessarily binding upon the courts. Action of an administrative agency may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment.


The general rule vis-à-vis legislation is that an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed. But it is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such determination is an operative fact and may have consequences which cannot always be ignored.

Melendres vs. COMELEC, 319 SCRA 262 (1999)

It needs to be stressed that the power of administrative agencies to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. However, a long line of cases establish the basic rule that courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.

Generally, the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts. However, courts will not hesitate to set aside such executive interpretation when it is clearly erroneous, or when there is no ambiguity in the rule, or when the language or words used are clear and plain or readily understandable to any ordinary reader.

Eastern Telecommunications Philippines, Inc. vs. International Communication Corporation, G.R. No. 135992, Jan. 31, 2006

The interpretation of an agency of its own rules should be given more weight than the interpretation by that agency of the law it is merely tasked to administer. Thus, in cases where the dispute concerns the interpretation by an agency of its own rules, one should apply only these standards: “Whether the delegation of power was valid; whether the regulation was within that delegation; and if so, whether it was a reasonable regulation under a due process test.”

Requisites of Valid Administrative Regulations

  • Authorized by Congress - must have Constitutional or statutory basis
  • Within the scope of authority (must not be “ultra vires”) - must be in harmony with the spirit and the letter of law
Q: Is there a valid administrative rule that conforms only to the spirit of the law but not to its letter? If yes, how do you reconcile this with the rule that administrative issuances should be construed liberally?
A: No matter how wise a rule may be, if it is not in harmony with the law, it is invalid. Thus, in People vs. Maceren, the rule was held invalid for the reason that it made punishable an act which the law did not specify as punishable even as the rule conformed to the legislative policy of protecting marine life. This case is peculiar as it involved an administrative issuance which contained a penal provision. As a rule, laws with penal provisions are strictly construed for they subject a person to punishment and sanctions. Anent the rule that administrative issuances should be construed liberally, issuances with penal provisions can be said to be an exception by their very nature. Moreover, while it is true that administrative issuances enjoy the presumption of legality and accorded great respect, it is likewise true the courts may declare them invalid based on grounds such as grave abuse of discretion, lack of jurisdiction, error of law, abuse of power, and clear conflict between the statute and the issuance.

Boie-Takeda Chemicals, Inc. vs. de la Serna, 228 SCRA 329

It is a fundamental rule that implementing rules cannot add to or detract from the provisions of the law it is designed to implement. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law they are intended to carry into effect. They cannot widen its scope. An administrative agency cannot amend an act of Congress.

Romulo, Mabana, Buenaventura, Sayoc & de los Angeles vs. Home Development Mutual Fund, 333 SCRA 777

The HDMF cannot, in the exercise of its rule-making power, issue a regulation not consistent with the law it seeks to apply. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out. Only Congress can repeal or amend the law.

A department zeal may not be permitted to outrun the authority conferred by the statute.

Observance of Prescribed Procedure: Notice and Hearing

Hon. Executive Secretary vs. Southwing Heavy Industries, G.R. No. 164171, Feb. 20, 2006

In order to determine whether the rule has been issued or promulgated in accordance with the prescribed procedure, it is necessary that the nature of the administrative issuance is properly determined. As in the enactment of laws, the general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing. A legislative rule, on the other hand, is in the nature of subordinate legislation, crafted to implement a primary legislation.

When an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter, to be duly informed, before the issuance is given the force and effect of law.

Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, 153 SCRA 622 (1987)

The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates.


When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character.

  • Fair and Reasonable

It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they were authorized to be issued, then they must be held to be invalid. (Hon. Executive Secretary vs. Southwing Heavy Industries)

  • Publication
  1. file with UP Law Center 3 certified copies of the rule
  2. file or publish with the National Administrative Register

Penal Regulations; Requisites for Validity
  1. the law itself must make the violation punishable
  2. the law itself must impose and specify the penalty
  3. the regulation must be published

Q: What cannot be delegated to the administrative body as regards penal regulations?
A: The Legislature cannot delegate to the administrative body (1) what acts should constitute a criminal offense and (2) how they shall be punished.


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