Requisites for valid administrative issuance
Construction and Interpretation
Amendment and Repeal
5. Its promulgation must be authorized by the legislature.
Authority to promulgate the regulation is usually conferred by the charter itself of the administrative body or by the law it is supposed to enforce.
There are limitation on the rule-making power of administrative agencies. A rule shaped out by jurisprudence is that when Congress authorized the promulgation of administrative rules and regulations to implement given legislation, all that is required is that the regulation be not in contravention with it, but conform to the standards that the law prescribes.
A regulation is binding on the courts as long as the procedure fixed for its promulgation is followed. Even if the courts may not be in agreement with its stated policy, provided that its scope is within the statutory authority or standard granted by the legislature.
6. It must be within the scope of the authority given by the legislature.
The authority delegated must be properly exercised, which simply means that the regulation promulgated must not be ultra vires or beyond the limits of the authority conferred. Administrative rules and regulations are necessarily limited to carrying into effect what is provided in the legislative enactment. It is intended to carry out, not supplant or modify the law.
In case of conflict, between a statute and an administrative order, the former must prevail. A “regulation adopted pursuant to a law is law.” Conversely, a regulation or any portion thereof not adopted pursuant to law is not law and has neither the force not the effect of law.
All that is required is that the regulation should be germane to the objects and purposes of the law and that it should conform to the standards that the law prescribes.
While it may be true that what determines whether an act is a law or an administrative issuance is not its form but its nature, it is equally ought to determine whether or not an act is a law or an administrative decree should be its source.
Ordinance Powers granted to the President under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987)
• Executive Orders – acts of the President providing rules of a general or permanent character in implementation or execution of constitutional or statutory powers.
• Administrative Orders – acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head.
• Proclamations – acts of the President fixing a date or declaring a status or condition of public moment or interest upon the existence of which the operation of a specific law or regulation is made to depend and which shall have the force of an executive order.
• Memorandum Orders – acts of the President on matters of administrative detail or subordinate or temporary interest which only concern a particular officer or office of the Government
• Memorandum Circulars – acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance.
• General or Special Orders – acts and commands of the Rpesident in his capcity as Commmander-in-Chief of the Armed Forces of the Philippines
Note: The president’s power is only limited to the above-mentioned. He has no power to issue “decrees”.
In Bitoon v. Fernandez, The Supreme Court discussed the difference between Power of supervision vs Power of control
Power of supervision is defined as the power of a superior officer to see to it that the lower officers perform their functions in accordance with law.
Power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.
The Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments (Power of supervision). He cannot interfere with local governments provided that the same or its officers act within the scope of their authority.
7. It must be promulgated in accordance with the prescribed procedure.
The promulgation of administrative regulations of general application does not require previous notice and hearing, the only exception being where the legislature itself requires it and mandate that the regulation shall be based on certain facts as determined at an appropriate investigation.
According to the Supreme Court, “quasi-legislative power is exercised by administrative agencies through the promulgation of rules and regulations. As a general rule, prior notice and hearing are not essential to the validity of rules and regulations promulgated to govern future conduct since there is no determination of past events or facts that have to be established or ascertained.
But where the regulation is in effect a settlement of a controversy between specific parties, it is considered an administrative adjudication and so will required notice and hearing.
As to Regulations fixing rates:
The functions of prescribing rates may 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. If it is in the exercise of quasi-judicial function, prior notice and hearing are essential to the validity of such rates. When the rules and/or rates 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.
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 govern, it behoves 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.
In Tanada vs. Tuvera, publication is a condition precedent to the effectivity of a law.
“All statutes, including those of local application and private laws shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity dates is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of eth so-called letters of instructions issued by administrative superiors concerning the guidelines to be followed by their subordinates in the performance of their duties.
The Supreme Court, it would seem, requires publication of the administrative regulation if it is of general application and penal in nature.
Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law.
The rule is that the usual fifteen-day period required for the effectivity of said law or regulation is reckoned not from the date or “printed date” of the edition of the Official Gazette in which said law or regulation appears, but on the date of the “release” for circulation of said edition of the Official Gazette.
In addition to the foregoing, Administrative Code provides that “every agency shall file with the University of the Philippines Law Center three (3) certified true 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 person or persons. Section 4 of Chapter 2 of the Book VII of the Administrative Code further provides, interestingly, that “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. Administrative issuances which are not published or filed with the National Administrative Register as required by the Administrative Code of 1987 are ineffective and may not be enforced.
However, in the cases of Villanueva v. Judicial and Bar Council, the Supreme Court said “the publication requirement in the ONAR (University of the Philippines Law Center Office of the National Administrative Register) is confined to issuance of administrative agencies under the Executive branch of the government. Since the JBC is a body under the supervision of the Supreme Court, it is not covered by the publication requirements of the Administrative Code.” But is should be emphasized that in the same case, publication is indispensable. (Thus, JBC is not required to file in the ONAR, but is still covered by the publication requirement)
In Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, the Supreme Court explained that “in the same wat htat laws must have the benefit of public hearing, it is generally requied that before a legislative rule is adopted there must be a hearing. In this connection the Administrative Code of 1987 provides: 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 weeks before the first hearing thereon. (3) In case of opposition, the rules on contested cases shall be observed.
8. It must be reasonable.
Like statues, administrative regulations promulgated thereunder must not be unreasonable or arbitrary as to violate due process. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. The regulation must involve the public welfare and the method employed must be reasonably related to the purposes of the rule and, as previously discussed, not arbitrary.
The power to define and punish crime is exclusively legislative and may not be delegated to the administrative authorities. While administrative regulations may have the force and effect of law, their violation cannot give rise to criminal prosecution unless the legislature makes such punishable.
From the general requirement of dues process and as discussed in the case of United States v. Panlilio, the special requisites of a valid administrative regulation with a penal sanction are:
4. The law itself must make a violation of the administrative regulation punishable
5. The law itself must impose and specify the penaly for the violation of the regulation
6. The regulation must be published.
As noted earlier, the effectivity of laws or rules published in the Official Gazette is determined from the date of the release for circulation of the edition of the Official Gazette in which said law or rule appears.
Construction and Interpretation
The same rules on the construction and interpretation of statutes are applied to administrative regulations, with the specific requirement that the regulation should be read in harmony with the statute and not in violation of the authority conferred on the administrative authorities.
The principle is well-entrenched that statutes, including administrative rules and regulations, operate prospectively only, unless the legislative intent to the contrary is manifest by express terms or by necessary implication.
Doctrine of respect for administrative or practical construction, In applying said doctrine, courts often refer to several factors which may be regarded as bases thereof- factors leading the courts to give the principle controlling weight in particular instances. These factors include the respect due the government agencies charged with administration, their competence, expertness, experience, and informed judgment and the fact that they frequently are the drafters of the law they interpret; that the agency is the on which the legislature must rely to advise it as to the practical working out of the statute, and practical application of the statute presents the agency with unique opportunity and experiences for discovering deficiencies, inaccuracies, or improvements in the statue.
The interpretation given by the administrative body to its own rules, while not binding on the courts, is received with much respect and will usually be followed except only where it is clearly arbitrary or unreasonable. However, while the Court has consistently yielded and accorded great respect to such doctrine, it will not hesitate to set aside an executive interpretation if there is an error of law, abuse of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law.
The basic guidelines in resolving concerning the interpretation by an agency of its own rules and regulations are (1) whether the delegation of power was valid; (2) whether the regulation was within that delegation; (3) whether it was a reasonable regulation under a due process test.
It is established that the power to promulgate administrative regulation carries with it the implied power to enforce them. This may be effected through judicial action, as in petitions for mandamus and injunction, or through sanctions that the statute itself may allow the administrative body to impose.
In most cases, it is the statute creating the administrative body that will provide for the means by which the administrative regulation will be enforced although, as previously observed, the usual judicial actions may also be available.
The power to enforce administrative regulations likewise includes the power to issue opinions and rulings to enable the administrative agency to properly execute said regulations.
Amendment or Repeal
Like the statute, administrative regulation made thereunder is subject to amendment or repeal by the authorities that promulgated them. There is no question of course, that the administrative regulation may be changed directly by the legislature.
It should be noted in this connection that it has been held that “the requirement that the implementing rules of law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the so-called rule on presentment.” Thus, every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and Executive. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its member to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law.
At any rate, it has been ruled that an “express grant of rule-making power necessarily includes the power to amend, revise, alter or repeal the same. This is to allow administrative agencies flexibility. Hence, it is a standard provision in administrative rules that prior issuance of administrative agencies that are inconsistent therewith are declared repealed or midified.
Quasi-judicial power is the power of administrative agency to determine questions of fact to which the legislative policy is to apply, in accordance with the standards laid down by law itself. It exercises the quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to, or reasonably necessary for, the performance of the executive or administrative duty entrusted to it. There’s no invalid delegation of judicial power where the legislature authorizes it to resolve factual questions in certain controversies in order to give effect to the mandate and policy of the law it is supposed to enforce.
Administrative Code of 1987 defines this “power of adjudication” as an agency process for the formulation of a final order.
According to the Supreme Court, a respondent is said to be exercising judicial function by which he has the power to determine what the law is and what the legal rights of the parties are, and them undertakes to determine these questions and adjudicate upon the rights of the parties. Quasi-judicial function is a term which applies to the action and discretion of public administrative officers or bodies, which are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. Ministerial function is one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard for the exercise of his/its own judgement upon the propriety of the act done.
The proper exercise of the quasi-judicial power requires compliance with two conditions, to wit:
3. Jurisdiction must be properly acquired by administrative body
4. Due process must be observed in the conduct of the proceedings.