Abakada v Purisima Concur Opinion

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PHILIPPINE JURISPRUDENCE - FULL TEXTThe Lawphil Project - Arellano Law FoundationG.R. No. 166715 August 14, 2008Tinga - Concurring Opinion

Republic of the PhilippinesSUPREME COURT

Manila

G.R. No. 166715 August 14, 2008

(ABAKADA GURO Party List, et al. v. Hon. Cesar V. Purisima, et. al)

CONCURRING OPINION

TINGA, J .:

I join Justice Coronas lucid opinion one of the more legally significant decisions of thisCourt of recent years because it concludes for the first time that legislative vetoes areimpermissible in this jurisdiction. I fully concur with the majoritys reasoning for declaringlegislative veto as invalid. Yet even as the ponencia aligns with most of my views, I writeseparately to fully explain my viewpoint.

I.

The controversy rests on the so-called "legislative veto", defined by Tribe as "measuresallowing [Congress], or one of its Houses or committees, to review and revoke the actionsof federal agencies and executive departments."1Our Constitution specifically neitherprohibits nor allows legislative vetoes, unlike presidential vetoes, which are formallyauthorized under Section 27, Article VI. Until today, Court has likewise declined so far topass judgment on the constitutionality of a legislative veto.2

The Court is unanimous that a legislative veto, such as that contained in Section 12 ofRep. Act No. 9335 is unconstitutional. Such a ruling would be of momentousconsequence, not only because the issue has never been settled before, but also becausemany of our statutes incorporate a similarly worded provision that empowers members ofCongress to approve the Implementing Rules of various particular laws. Moreover, theinvalidation of legislative vetoes will send a definite signal to Congress that its currentunderstanding of the extent of legislative powers is awry.

Concededly, our ruling will greatly affect the workings of the legislative branch of

government. It would thus be intellectually honest to also consider the question from theperspective of that branch which is the branch most affected by that ruling. Of course, theperspective of the executive should be reckoned with as well since it has traditionallyinveighed against legislative vetoes. Still, if we are to consider the congressionalperspective of the question, there will emerge important nuances to the question thatshould dissuade against any simplistic analysis of the issue.

II.
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I have previously intimated that the President, in chartering the extent of his plenarypowers, may be accorded a degree of flexibility for so long as he is not bound by anyspecific constitutional proscription. That same degree of deference should be extended toCongress as well. Thus, I wish to inquire into whether there is a constitutionally justifiablemeans to affirm legislative vetoes.

The emergence of the legislative veto in the United States coincided with the decline ofthe non-delegation doctrine, which barred Congress from delegating its law-makingpowers elsewhere.3Modern jurisprudence has authorized the delegation of lawmakingpowers to administrative agencies, and there are resulting concerns that there is noconstitutional assurance that the agencies are responsive to the peoples will.4From thatframework, the legislative veto can be seen as a means of limiting agency rule-makingauthority by lodging final control over the implementing rules to Congress. "But instead ofcontrolling agency policy in advance by laying out a roadmap in the statute creating theagency, Congress now proposes to control policy as it develops in notice-and-commentrulemaking, after the agencys expert staff and interested members of the public have hadan opportunity to assist in its formation."5It is a negative check by Congress on policiesproposed by the agencies, and not a means for making policy directly.6

From the perspective of Congress, the legislative veto affords maximum consideration tothe plenary power of legislation, as it bolsters assurances that the legislative policyembodied in the statute will be faithfully executed upon its implementation. The faithfulexecution of the laws of the land is a constitutional obligation imposed on the President7,yet as a matter of practice, there could be a difference of opinion between the executiveand legislative branches as to the meaning of the law. The clash may be especially tellingif the President and Congress are politically hostile with each other, and it bears noticethat the legislative veto in the United States became especially popular beginning in theearly 1970s, when the ties between the Democratic-controlled Congress and theRepublican President Richard Nixon were especially frayed.8More recently, the currentU.S. President Bush has had a penchant of attaching "signing statements" to legislation hehas approved, such statements indicating his own understanding of the bill he is signing

into law. The legislative veto, as a practical matter, allows Congress to prevent acountervailing attempt by the executive branch to implement a law in a manner contrary tothe legislative intent.

There is nothing obnoxious about the policy considerations behind the legislative veto.Since the courts, in case of conflict, will uphold legislative intent over the executiveinterpretation of a law, the legislative veto could ensure the same judicially-confirmedresult without need of elevating the clash before the courts. The exercise of the legislativeveto could also allow both branches to operate within the grayer areas of their respectiveconstitutional functions without having to resort to the judicial resolution of their potentiallycompeting claims. As the future U.S. Supreme Court Justice Stephen Breyer once wrote:

The [legislative] veto sometimes offers a compromise of important substantiveconflicts embedded deeply in the Constitution. How are we to reconcile theConstitutions grant to Congress of the power to declare war with its grant to thePresident of authority over the Armed Forces as their Commander in Chief? TheWar Powers Act approaches the problem, in part, by declaring that the Presidentcannot maintain an armed conflict for longer than ninety days if both Houses ofCongress enact a resolution of disapproval. Similar vetoes are embedded in lawsauthorizing the President to exercise various economic powers during times of"national emergency". To take another example, how are we to reconcile article Is
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grant to Congress of the power to appropriate money with article IIs grant to thePresident of the power to supervise its expenditure? Must the President spend allthat Congress appropriates? Congress has addressed this conflict, authorizing thePresident to defer certain expenditures subject to a legislative veto.9

There are practical demerits imputed as well to the legislative veto, such as the delay in

the implementation of the law that may ensue with requiring congressional approval of theimplementing rules.10Yet the question must ultimately rest not on the convenience orwisdom of the legislative veto device, but on whether it is constitutionally permissible.

In 1983, the United States Supreme Court struck a decisive blow against the legislativeveto in INS v. Chadha11, a ruling which essentially held the practice as unconstitutional. Itappears that the foremost consideration of the majority opinion in Chadha were the issuesof bicameralism and presentment, as discussed by the Chief Justice in his SeparateOpinion in Macalintal v. COMELEC12. The twin issues of presentment and bicameralismwould especially come to fore with respect to the Joint Congressional OversightCommittee under Rep. Act No. 9335, composed as it is by seven Members from theSenate and seven Members from the House of Representatives.13

Chadha emphasized that the bills passed by the U.S. Congress must be presented forapproval to the President of the United States in order that they may become law.14Section 27(1), Article VI of our Constitution imposes a similar presentment requirement.Chadha also noted that a bill must be concurred in by a majority of both Houses ofCongress. Under our Constitution, Congress consists of a House of Representatives anda Senate, and the underlying uncontroverted implication is that both Houses must concurto the bill before it can become law. Assuming that the approval of the Implementing Rulesto Rep. Act No. 9335 by seven Members from each House of Congress is a legislative act,such act fails either the presentment or bicameralism requirement. Such approval isneither presented to the President of the Philippines for consent, nor concurred in by amajority of either House of Congress.

Yet with respect to the implications ofChadha on the principle of separation of powers,there are critical informed comments against that decision. Chadha involved the statutoryauthority of either House of Congress to disapprove the decision of the executive branchto allow a deportable alien to remain in the United States. The majority had characterizedsuch disapproval as a legislative act, since it "had the purpose and effect of altering thelegal rights, duties and relations of persons".15Yet that emphasis "on the labels oflegislative, executive and judicial" was criticized as "provid[ing] the rhetorical ammunitionfor a variety of cases seeking judicial reassessment of the constitutionality not only of thegreat number of statutes that have incorporated some kind of legislative veto mechanism,but of regulatory statutes in general that sought to delegate legislative, executive and

judicial power, and various combinations thereof, to the unelected officials that run thevarious federal agencies."16

Fisher presents a veritable laundry list of criticisms of the Chadha reasoning, replete withaccusations that the analysis employed on separation of powers detracted from the intentof the Framers, resulting in giving the "executive branch a one-sided advantage in anaccommodation that was meant to be a careful balancing of executive and legislativeinterests".17He further observed:

The Courts misreading of history and congressional procedures has producedsome strange results. Its theory of government is too much at odds with the
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practices developed over a period of decades by the political branches. Neitheradministrators nor congressmen want the static model proferred by the Court. Theconditions that spawned the legislative veto a half century ago have notdisappeared. Executive officials still want substantial latitude in administeringdelegated authority; legislators still insist on maintaining control without having topass another law. The executive and legislative branches will, therefore develop

substitutes to serve as the functional equivalent of the legislative veto. Forms willchange but not power relationships and the need forquid pro quo.18

And Tribe himself finds flaw in the Chadha analysis of what constituted a legislative act:

And why, precisely, did the veto of the suspension ofChadhas deportation have tobe deemed legislative? It was "essentially legislative," according to the Court,because it "had the purpose and effect of altering the legal rights, duties andrelations of persons outside the legislative branch". Without Congress exerciseof the legislative veto in his case, Chadha would have remained in America;without the veto provision in the immigration statute, the change in Chadhas legalstatus could have been wrought only be legislation requiring his deportation. The

difficulty with this analysis is that the same observations apply with equal validity tonearly all exercises of delegated authority, whether by a House of Congress or byan executive department or an administrative agency. Both through rule-makingand through case-by-case adjudication, exercises of delegated authority changelegal rights and privileges no less than do full-fledged laws.

There was perhaps less need than the Court perceived to squeeze the legislativeveto into one of the three pigeonholes envisioned by the Framers. Even ifCongress action had been deemed "executive" in nature, it presumably wouldhave been unconstitutional, since Congress may make, but not execute the laws.

And if the legislative veto had been deemed "judicial," it would still have violatedthe separation of powers, as Justice Powell recognized in his concurring opinion.19

The majority in Chadha did not address the reality that the U.S. Congress had relied onthe legislative veto device for over five decades20, or for that matter, the valid concernsover the executive usurpation of legislative prerogatives that led to the invention of theveto as a countervailing measure. Justice Byron White relied extensively on theseconcerns in his dissenting opinion in Chadha.

Nonetheless, the invalidation of the legislative veto in Chadha has caused seriousdiscussion as to alternative constitutional means through which Congress could stillensure that its legislative intentions would not be countermanded by the executive branch.On one extreme, a Republican congressman, Nick Smith of Michigan, filed a bill requiringthat significant new regulations adopted by administrative agencies be approved by a jointresolution of Congress before they would become effective.21Less constitutionally

controversial perhaps were the suggestions of Justice Breyer in remarks he made afterChadha was decided. He explained that "Congress unquestionably retains a host oftraditional weapons in its legislative and political arsenal that can accomplish some of thevetos objectives."22

These include the power to provide that legislation delegating authority to theexecutive expires every so often. To continue to exercise that authority, theexecutive would have to seek congressional approval, at which point past agencybehavior that Congress disliked would become the subject of serious debate.
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Moreover, Congress might tailor its statutes more specifically, limiting executivepower. Further, Congress can require the President, before taking action, toconsult with congressional representatives whose views would carry significantpolitical weight. Additionally, Congress can delay implementation of an executiveaction (as it does when the Supreme Court promulgates rules of civil procedure)until Congress has had time to consider it an to enact legislation preventing the

action from taking effect. Finally, each year Congress considers the agencysbudget. If a significant group of legislators strongly opposes a particular agencydecision, it might well succeed in including a sentence in the appropriations billdenying the agency funds to enforce that decision.23

I raise these points because even with the invalidation of the legislative veto, Congressneed not simply yield to the executive branch. The invalidation of the legislative veto canbe mistakenly perceived as signal by the executive branch that it can, in the guise of rule-making power, adopt measures not authorized or even forbidden in the enablinglegislation. If that happens, undue weight will be shifted to the executive branch, much likewhat had happened when former President Marcos exercised both executive andlegislative powers. One might correctly argue that the judicial branch may still exercisecorrective relief against such unauthorized exercise by the executive24, yet the relief maynot come for years to come, considering the inherently deliberative judicial process.

I do believe that there is a constitutionally sound mechanism through which Congress mayvalidly influence the approval of a laws Implementing Rules. Section 12 of Rep. Act No.9335 may not be such a means, but I maintain that it would be highly useful for the Courtto explain how this can be accomplished. In this light, I submit the following proposedframework for invalidating the legislative veto while recognizing the pre-eminentcongressional prerogative in defining the manner how legislation is to be implemented.

III.

We can consider that in the enactment and implementation of a law, there is a legislativephase and an executive phase. The legislative phase encompasses the period from theinitiation of a bill in Congress until it becomes effective as a law. On the other hand, theexecutive phase begins the moment the law is effective and falls within the capacity of theexecutive branch to enforce.

Notably, as such, it is only upon the effectivity of the statute that legal rights andobligations become available to those entitled by the language of the statute. Now, subjectto the indispensable requisite of publication under the due process clause,25thedetermination as to when a law takes effect is wholly the prerogative of Congress.26Assuch, it is only upon effectivity that the law may be executed, and the executive branchacquires the duties and powers to execute that law. Before that point, the role of theexecutive branch, particularly the President, is limited to signing or vetoing the law. All

other powers of government that attach to the proposed law are exercised exclusively byCongress and are hence, legislative in character. In fact, the United States SupremeCourt, speaking through Justice Black, has gone as far as to hold that the Constitution"limits [the Presidents] functions in the lawmaking process to the recommending of lawshe thinks wise and the vetoing of laws he thinks bad."27

It is viable to hold that any provision of law that empowers Congress or any of its membersto play any role in the implementation or enforcement of the law after the execution phasehas begun violates the principle of separation of powers and is thus unconstitutional.
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Under this principle, a provision that requires Congress or its members to approve theImplementing Rules after the law has already taken effect is unconstitutional, as is aprovision that allows Congress or its members to overturn any directive or ruling made bythose members of the executive branch charged with the implementation of the law.

This time or phase demarcation not only affords a convenient yardstick by which to assess

the constitutionality of a legislated role for Congress vis--vis a law, it also hews to theproper allocation of governmental powers. Again, the exercise of executive powers relativeto a statute can only emanate after the effectivity of the law, since before that point, saidlaw cannot be executed or enforced. Until a law becomes effective, there are no executivefunctions attached to the law.

Of course, following this rationale, Section 12 of Rep. Act No. 9335 will have to beinvalidated. To cite one outstanding example of what else would be invalidated as a resultis the Joint Congressional Power Commission established in the EPIRA (Rep. Act No.9136), where the Commission composed of several members of Congress exercises acontinuing role in overseeing the implementation of the EPIRA.28The functions of the JointCongressional Power Commission are exercised in the execution phase, and thus beyond

the pale of legislative power. There are many other provisions in our laws, such as thosesimilar to Section 12 of Rep. Act No. 9335, that will similarly not pass muster after thisruling, and the Court will have to reckon with the real problem as to whether this decisioneffectively nullifies those provisions as well. Nonetheless, the Court need not invalidatethose provisions in other laws yet and await the appropriate cases to do so, similar to theapproach previously taken on the invalidation of municipalities created by the President inPelaez v. Auditor General.29

IV.

I seriously disagree with Justice Carpios assertion that the power to formulate or adoptimplementing rules inheres in the executive function. That power is a legislative functiontraditionally delegated by Congress to the executive branch. Theponencia satisfactorilyasserts this point through its Footnote No. 63, and I need not belabor it.

One option for congressional control over executive action is to be very specific andlimiting in the delegation of power to agencies, so that their rulemaking power will in turnbe limited.30The power to make rules and regulation is that kind of legislative power whichmay be delegated.31In practice, the United States Congress has engaged frequently inbroad delegations that in effect require agencies to make specific sub-rules i.e., toexercise legislative power.32This practice has drawn some criticism that power is nowconcentrated in the executive branch and that it is thus necessary to restore Congress toits original status of preeminence.33The growth of an enormous national bureaucracy,operating for the most part within the executive branch, may have fundamentally alteredthe original constitutional framework and requires some sort of response if the original

constitutional concerns are to be satisfied.34

Section 12 of Rep. Act No. 9335, or any other provision of law granting components of theexecutive branch the power to formulate implementing rules, is a delegation of legislativepower belonging to Congress to the executive branch. Congress itself has the power toformulate those particular rules and incorporate them in the law itself. What I believeCongress is precluded from doing is to exercise such power after the law has taken effect,in other words, after the execution phase has begun. Unless such a limitation were laiddown, there would ensue undue encroachment by Congress in the exercise of legislative
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power.

This delegable rule-making power may be classified into two types: (1) rules intended toregulate the internal management of the agencies themselves; and (2) rulessupplementing a statute and intended to affect persons and entities outside thegovernment made subject to agency regulation.35Either case, the power of the executive

branch to promulgate such rules springs from legislative delegation. In the Philippines, thepower of executive officials to enact rules to regulate the internal management ofexecutive departments was specifically allocated to them by a statute, the AdministrativeCode of 1987, promulgated by President Aquino in the exercise of her then extantlegislative powers. With respect to supplementary rules to particular legislation, the powerof executive officials to formulate such rules derives from the legislation itself. But in nocase does such power emanate actually from inherent executive power.

The rule need not be hard and fast. We may as well pay heed to Blackstones practicalobservation that the "manner, time and circumstances of putting laws in execution mustfrequently be left to the discretion of the executive magistrates".36But by and large, anyproblem left by the absence of clear and explicit statutory language is avoided in turn by

the statutory delegation of legislative power to executive officials to vest them sufficientdiscretion to fill in the details.37

We thus cannot detract from the fundamental principle that rule-making power islegislative in character and exercised by executive officials only upon a statutorydelegation of legislative power. As Fisher summarizes the peculiar dynamic:

Presidents are obligated under the Constitution to take care that the laws be"faithfully executed." The often conflicting and ambiguous passages within alaw must be interpreted by executive officials to construct the purpose andintent of Congress. As important as intent is the extent to which a law is carriedout. President Taft once remarked, "Let anyone make the laws of the country, if Ican construe them."

To carry out the laws, administrators issue rules and regulations of their own. Thecourts long ago appreciated this need. Rules and regulations "must be received asthe acts of the executive, and as such, be binding upon all within the sphere of hislegal and constitutional authority. Current law authorizes the head of an executivedepartment or military department to prescribe regulations "for the government ofhis department, the conduct of its employees, the distribution and performance ofits business, and the custody, use, and preservation of its records, papers, andproperty.

These duties, primarily of a "housekeeping" nature, relate only distantly to thecitizenry. Many regulations, however, bear directly on the public. It is here that

administrative legislation must be restricted in its scope and application.Regulations are not supposed to be a substitute for the generalpolicymaking that Congress enacts in the form of a public law. Althoughadministrative regulations are entitled to respect, the authority to prescriberules and regulations is not an independent source of power to make laws.Agency rulemaking must rest on authority granted directly or indirectly byCongress.38

The Courts rightful rejection of Justice Carpios premise that the power of the President of
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promulgate Implementing Rules and Regulations is inherently executive provides anecessary clarification that is critical to the understanding of the Courts ruling today. HadJustice Carpios position been adopted by the Court, the result would have been apresidency much stronger than the Constitution envisioned. Acceding to the President thepower to craft Implementing Rules to legislation even if Congress specifically withholdssuch power to the Chief Executive would have upset the finely measured schematic of

balanced powers, to the benefit of the President. Fortunately, with the disavowal of thattheory, greater consideration is accorded to legislative prerogatives without compromisingthe important functions of the presidency.

V.

Thusly, there is nothing inherently unconstitutional in congressional participation in theformulation of implementing rules of legislation since that power is legislative in character.Yet there still are multiple roadblocks impeding a constitutionally valid exercise of thatprerogative by Congress. The matters of bicameralism and presentment, as expounded inChadha, are hurdles which I submit should bind the Philippine Congress as it exercises itslegislative functions. Section 12 of Rep. Act No. 9335 can be struck down on that ground

alone.

39

Moreover, imposing a rule barring a legislative role in the implementation of a lawafter the statutes effectivity will sufficiently preserve the integrity of our system ofseparation of powers.

At the same time, the concerns of Congress that may have animated the rise of thelegislative veto should not be disrespected by simply raising formalistic barriers againstthem. In practice, the legislative veto is an effective check against abuses by the executivebranch. The end may not justify unconstitutional means, yet we should leave ample roomfor Congress to be able to address such concerns within broad constitutional parameters.

There are a myriad of creative ways by which Congress may influence the formulation ofImplementing Rules without offending the Constitution. If there are especially problematicareas in the law itself which Congress is not minded to leave any room for interpretativediscretion by executive officials, then the provision involved can be crafted with suchspecificity to preclude alternative interpretations. At the same time, commonly, legislatorsand their staffs may lack the expertise to draft specific language.40Speaking from my ownlegislative experience, it is in the drafting of the Implementing Rules, rather than in thestatute itself, that the particular expertise of the agency officials and experts tasked withthe implementation of the law become especially vital.

Also, Congress can dictate which particular executive officials will draft the implementingrules, prescribe legal or factual standards that must be taken into account by suchdrafters, or otherwise impose requirements or limitations which such drafters are bound tocomply with. Again, because the power to draft implementing rules is delegated legislativepower, its exercise must be within the confines of the authority charted by Congress.

And because executive functions cannot commence until after the effectivity of the law,Congress may very well adopt creative but constitutional measures that suspend theeffectivity of the law until implementing rules to its liking are crafted. There is nothingunconstitutional with suspending the effectivity of laws pending the occurrence of astipulated condition. "[I]t is not always essential that a legislative act should be acompleted statute which must in any event take effect as a law, at the time it leaves thehands of the legislative department. A statute may be conditional, and its taking effect maybe made to depend upon some subsequent event."41
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The requirements of bicameralism and especially presentment may pose insurmountablehurdles to a provision that plainly suspends the effectivity of a law pending approval byCongress or some of its members of the implementing rules.42At the same time, it shouldbe recognized that Congress does have the prerogative to participate in the drafting of therules, and if it finds a means to do so before the execution phase has begun, withoutoffending bicameralism or presentment, such means may be upheld.

DANTE O. TINGAAssociate Justice

Footnotes

1L. Tribe, I. American Constitutional Law 142 (3rd ed., 2000.) , at 142.

2See, e.g., PHILCONSA v. Enriquez, G.R. Nos. 113105, 113174, 113766,113888, 19 August 1994, 234 SCRA 506. Neither was the question considered by

the majority opinion in Macalintal v. COMELEC, 453 Phil. 586 (2003).

3See., e.g., Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). See also H. Bruff& E. Gellhorn, "Congressional Control of Administrative Regulation: A Study ofLegislative Vetoes", 90 Harv. L. Rev. 1369, 1372-1373 (1977).

4Bruff & Gellhorn, supra note 3, at 1373.

5Ibid.

6Ibid.

7See Sec. 17, Article VII, Constitution.

8"One survey found five such [legislative veto clauses] enacted between 1932 and1939, nineteen in the 1940s, thirty four in the 1950s, forty-nine in the 1960s, andeighty-nine enacted between 1970 and 1975." S. Breyer, The Legislative Veto

After Chadha, 72 Geo. L.J. 785, 786 (1984)

9Breyer, supra note 8, at 789.

10Bruff & Gellhorn, supra note 3, at 1379.

11462 U.S. 919 (1983).

12453 Phil. 586 (2003). "[T]he Court [in Chadha] shied away from the issue ofseparation of powers and instead held that the provision violates the presentmentclause and bicameralism. It held that the one-house veto was essentiallylegislative in purpose and effect. As such, it is subject to the procedures set out in

Article I of the Constitution requiring the passage by a majority of both Houses andpresentment to the President.xxx" Id., at 763 (J. Puno, Separate Opinion)
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13See Section 12, Rep. Act No. 9335.

14"The records of the Constitutional Convention reveal that the requirement that alllegislation be presented to the President before becoming law was uniformlyaccepted by the Framers. Presentment to the President and the Presidential vetowere considered so imperative that the draftsmen took special pains to assure that

these requirements could not be circumvented." INS v. Chadha, supra note 11, at946-947.

15Id., at 952.

16A. Aman & W. Mayton, Administrative Law (2nd ed., 2001), at 594.

17L. Fisher. Constitutional Conflicts Between Congress and the President. (4th ed.,1997), at 153.

18Id., at 155.

19Tribe, supra note 1, at 144. Citations omitted.

20See note 8.

21N. Smith, "Restoration of Congressional Authority and Responsibility Over theRegulatory Process. 33 Harv. J. on Legis. 323 (1996).

22S. Breyer, supra note 8, at 792.

23Ibid.

24See, e.g., John Hay Peoples Alternative Coalition v. Lim, 460 Phil. 530 (2003).

25See Section1, Article III, Constitution. In Taada v. Tuvera, 230 Phil. 528 (1986),the Court also cited Section 6 of the Bill of Rights, which recognized "the right ofthe people to information on matters of public concern", as a constitutional basisfor mandating publication of laws.

26As much is recognized in Article 2 of the Civil Code, which states that "Lawsshall take effect after fifteen days following the completion of their publicationeither in the Official Gazette, or in a newspaper of general circulation in thePhilippines, unless it is otherwise provided." The Court in Taada recognized that"unless it is otherwise provided" referred to the date of effectivity. Simply put, a lawwhich is silent as to its effectivity date takes effect fifteen days following

publication, though there is no impediment for Congress to provide for a differenteffectivity date.

27Youngstown Co. v. Sawyer, 343 U.S. 579, 587 (1952)

28See Section 62, Rep. Act No. 9136, which provides:

Section 62: Joint Congressional Power Commission.
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Upon the effectivity of this Act, a congressional commission, hereinafterreferred to as the "Power Commission", is hereby constituted. The PowerCommission shall be composed of fourteen (14) members with thechairmen of the Committee on Energy of the Senate and the House ofRepresentatives and six (6) additional members from each House, to bedesignated by the Senate President and the Speaker of the House of

Representatives, respectively. The minority shall be entitled to pro ratarepresentation but shall have at least one (1) representative in the PowerCommission.

The Commission shall, in aid of legislation, perform the following functions,among others:

a. Set the guidelines and overall framework to monitor and ensurethe proper implementation of this Act;

b. Endorse the initial privatization plan within one (1) month fromsubmission of such plan to the Power Commission by PSALM

Corp. for approval by the President of the Philippines;

c. To ensure transparency, require the submission of reports fromgovernment agencies concerned on the conduct of public biddingprocedures regarding privatization of NPC generation andtransmission assets;

d. Review and evaluate the performance of the industryparticipants in relation to the objectives and timelines set forth inthis Act;

e. Approve the budget for the programs of the Power Commission

and all disbursements therefrom, including compensation of allpersonnel;

f. Submit periodic reports to the President of the Philippines andCongress;

g. Determine inherent weaknesses in the law and recommendnecessary remedial legislation or executive measures; and

h. Perform such other duties and functions as may be necessary toattain its objectives.

In furtherance hereof, the Power Commission is hereby empowered torequire the DOE, ERC, NEA, TRANSCO, generation companies,distribution utilities, suppliers and other electric power industry participantsto submit reports and all pertinent data and information relating to theperformance of their respective functions in the industry. Any person whowillfully and deliberately refuses without just cause to extend the supportand assistance required by the Power Commission to effectively attain itsobjectives shall, upon conviction, be punished by imprisonment of not lessthan one (1) year but not more than six (6) years or a fine of not less than


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Fifty thousand pesos (P50,000.00) but not more than Five hundredthousand pesos (P500,000.00) or both at the discretion of the court.

The Power Commission shall adopt its internal rules of procedures;conduct hearings and receive testimonies, reports and technical advice;invite or summon by subpoena ad testificandum any public official, private

citizen or any other person to testify before it, or require any person bysubpoena duces tecum to produce before it such records, reports,documents or other materials as it may require; and generally require allthe powers necessary to attain the purposes for which it is created. ThePower Commission shall be assisted by a secretariat to be composed ofpersonnel who may be seconded from the Senate and the House ofRepresentatives and may retain consultants. The secretariat shall beheaded by an executive director who has sufficient background andcompetence on the policies and issues relating to electricity industryreforms as provided in this Act. To carry out its powers and functions, theinitial sum of twenty- five million pesos (P25,000,000.00) shall be chargedagainst the current appropriations of the Senate. Thereafter, such amountnecessary for its continued operation shall be included in the annualGeneral Appropriations Act.

The Power Commission shall exist for period of ten (10) years from theeffectivity of this Act and may be extended by a joint concurrent resolution.

29122 Phil. 965 (1965).

30K. Sullivan & G. Gunther, Constitutional Law (14th ed., 2001), at 351.

31State ex .rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 427, 220 N.W. 929(1928)

32Sullivan & Gunther, supra note 30, at 351.

33G. Stone, L. Seidman, C. Sunstein, and M. Tushnet, Constitutional Law (4th ed.,2001), at 334.

34Ibid.

35Ibid.

36W. Blackstone, Commentaries, Book 1, 270.

37

"The nature of government often requires Congress to pass general legislationand leave to other branches the responsibility to fill in the details". Fisher, supranote 17, at 90, citing Wayman v. Southard, 10 Wheat. 1, 46 (1825).

38Id., at 106-107. Citations omitted.

39The twin issues of presentment and bicameralism would especially come to forewith respect to the Joint Congressional Oversight Committee under Rep. Act No.9335, composed as it is by seven Members from the Senate and seven Members
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from the House of Representatives. Chadha emphasized that the bills passed bythe U.S. Congress must be presented for approval to the President of the UnitedStates in order that they may become law.[39] Section 27(1), Article VI of ourConstitution imposes a similar presentment requirement. Chadha also noted that abill must be concurred in by a majority of both Houses of Congress. Under ourConstitution, Congress consists of a House of Representatives and a Senate, and

the underlying uncontroverted implication is that both Houses must concur to thebill before it can become law. Assuming that the approval of the ImplementingRules to Rep. Act No. 9335 by seven Members from each House of Congress is alegislative act, such act fails either the presentment or bicameralism requirement.Such approval is neither presented to the President of the Philippines for consent,nor concurred in by a majority of either House of Congress.

40Fisher, supra note 17, at 91.

414 Cooley on Constitutional Limitations, cited in Ex parte Mode, 77 Tex. Crim.432, 441, 180 S.W. 708, Am. Ann. Cas. 1918E (1915).

42

Of course, the problem of presentment would be avoided if the implementingrules would also be submitted for approval to the President, but this roundaboutmanner should be discouraged, since it could be avoided simply by having thoserules previously incorporated in the law earlier presented to the President.

The Lawphil Project - Arellano Law Foundation
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