Press Release
September 14, 2020

Privilege Speech of Sen. Francis "Tol" N. Tolentino
September 14, 2020
Topic: Law vs. IRR - The Spring Cannot Rise Higher than the Source

Mr. President, ladies and gentlemen of the Senate, I rise today on a matter of personal and collective privilege. My speech is entitled The Spring Cannot Rise Higher than the Source.

Mr. President, for the last several weeks, we've witnessed investigations, after investigations, showing the lack of respect of some department secretaries, of some bureau heads towards the Senate, as an institution, and even Congress Mr. President.

We have an anomaly right in our very midst. As we all know in Sec. 1, Art. VI of the 1987 Constitution, legislative power resides in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives. As the representatives of the people, we and our predecessors have enacted laws with the noble intention of improving the life of our people in this nation. Throughout the years of our young Republic, together with our predecessors, we carried out the mandate of the people right on this very floor.

However, as every road to hell is paved with good intentions, we find that some of our laws, those once well-intentioned, including all the bills pending in the 18th Congress, pieces of legislations, have been leading us to depths of ignorance, confusion and even unlawfulness by its Implementing Rules and Regulations (IRR). Yun pong mga IRR. Our Supreme Court cases have shed light on the times when the laws and the IRR have clashed, which, to this humble representation's personal research, is estimated to number around fifty or sixty, as my recent research would show.

For this reason, Mr. President, I rise today out of fear and apprehension that the very laws that my colleagues, all of you who are listening--Sen. Villanueva has been working hard for the Labor Sector, Sen. Lacson has been working hard to eradicate corruption, Sen. Lapid has been working hard to improve the sports level competitiveness of our country, Sen. Gatchalian and all virtually present here have been working hard to improve the energy sector.

Lahat po nang ginagawa nilang batas, I fear, Mr. President may be twisted, deformed, mutilated and become unrecognizable Implementing Rules and Regulations. Consider this fact, Mr. President. Nagkaproblema po tayo noon sa GCTA. Eh iniba po nila yung implementing rules. Iniba sa batas yung implementing rules, nagkaproblema po tayo. The committee of Sen. Lacson, the Committee of the Whole was able to unravel that the IRM, the Interim Reimbursement Mechanism was not mentioned in the law. It is not part of Republic Act 7875, Mr. President. Inimbento lang po ng Board. Although mayroong capitulation word sa law

Ganun din po Mr. President, last Congress, the Senate, the Congress enacted the DHSUD Law, Republic Act 11201. Iniba rin po yung implementing rules sa DHSUD law Mr. President. At napakarami pa hong iba. Kinakabahan po ako, wala lang po dito si Sen. Dela Rosa, baka po yung kapapasa lang niya na batas, yung tungkol po sa height ng Philippine National Police na 5 feet, e baka po ibahin po yung implementing rules. E baka ang gawin po dun Mr. President, e yung height sukatin 'pag hapon. Because we all know scientifically, that the height of a person is taller in the morning than in the afternoon, baka ibahin nanaman po nila yun, Mr. President.

Again, the spring cannot rise higher than the source, as the old legal maxim goes, but this humble representation believes that the spring is not just rising higher, but it threatens to overflow and spill from the source and drown us all.

The IRRs have not only misinterpreted our laws, but ultimately defied the will of the people as the real sovereign imbibed in our laws.

In the light of this realization, Mr. President, this humble representation submits to my esteemed colleagues and to the public the following points:

First, that there is a plethora of Supreme Court cases wherein the Court struck down Implementing Rules and Regulations of various agencies for usurping the power of Congress.

Second, these cases show that Congress must take a proactive stance in addressing this to avoid future conflicts between the law and the IRR that will precipitate further controversy.

As his duty as a legislator and his right as a Filipino citizen, this humble representation takes it upon himself to open this Pandora's Box, to bring to light the impending crisis brought about by the large number of the IRRs that are at odds with our laws and to propose actions addressing this need.

This humble representation begins with the enumeration of cases wherein the Implementing Rules and Regulations of administrative agencies were struck down by the Supreme Court for being inconsistent with or against the law itself.

First, in the case, Pharmaceutical and Health Care Association of the Philippines versus Health Secretary Francisco T. Duque III, GR No. 173034, October 9, 2007, the Court tackled the validity of the IRR of Executive Order No.51, otherwise known as the Milk Code, Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes. The IRR contained provisions that blatantly expanded the provisions of the law it implemented. The Milk Code limited its coverage to infants 0-12 months old but the IRR extended it to young children up to 3 years. The Milk Code allowed advertisements as long as they were approved by the agency, but the IRR prohibited them totally. The IRR also imposed additional requirements that were not found in the Milk Code and it even provided for administrative sanctions which the law never envisioned. It was as if the DOH made a new law by themselves.

Second, in the case, Judge Tomas C. Leynes versus Commission on Audit (COA), G.R. No. 143596, December 11, 2003, the law in question, the Local Government Code, allows the local government to grant allowances to the judges in its territory with one condition that only when their finances can allow it. However, a budget circular from the Department of Budget and Management imposed a further condition not found in the law. The Court herein ruled that the budget circular, being a mere administrative issuance, cannot repeal a substantive law in line with the rules on elementary construction, and thus struck it down for being null and void.

Also, in the case, GMA-7 versus COMELEC, G.R. No. 205357, September 2, 2014, the Court struck down as unconstitutional a provision in the Implementing Rules and Regulation of COMELEC for being contrary to the Fair Elections Act. Under the law, each candidate for national and local elective office shall be entitled to not more than 120 minutes and 60 minutes of television advertisement and 180 and 90 minutes of radio advertisement, respectively, without distinguishing whether the time limits were aggregate or on a per station basis. However, COMELEC went beyond the authority granted to it by law when it adopted the "aggregate" basis in determining the allowable airtime and not in a per station basis, drastically reducing the air-time allotted to the candidates.

Fourth, in Imbong v. Ochoa, G.R. No. 204819, dated April 8, 2014, the IRR of the Reproductive Health Law redefined the meaning of "abortifacient" and "contraceptive" as found in the law. The law, particularly Sec.4(a), defines an "abortifacient" as any drug or device that primarily induces abortion or the destruction of a fetus inside the mother's womb, however Section 3.0l(a) and Section 3.0lG) of the IRR added the word, "primarily," in the definition. As a result, this insinuates that a contraceptive will only be considered as an "abortifacient" if its sole known effect is abortion. Thus, paving the way for the approval of contraceptives which may harm or destroy the life of the unborn. The Court held that the addition of the word "primarily," in Section 3.0l(a) and G) of the IRR was considered ultra vires as it contravened Section 4(a) of the RH Law which did not distinguish whether or not the sole known effect of the abortifacient is abortion.

Fifth, in the case of CIR vs. Fortune Tobacco, GR Nos. 167274-75, July 21, 2008, the Supreme Court declared as invalid and indefensibly flawed Revenue Regulation No. 17-99 since it effectively tried to amend Section 145 of the Tax Code. The Revenue Regulation provided that the excise tax for cigarettes shall not be lower than the excise tax that is actually being paid prior to January 1, 2000, whereas the Tax Code specifically provides that the average net retail prices of the listed brands under Annex "D," should remain as the bases for the application of the increase in excise tax rates effective on 1 January 2000.

In an obiter dictum, the Court said that it was not the first time that national revenue officials had ventured in the area of unauthorized administrative legislation. It enumerated a long list of cases where Revenue Regulations and Revenue Memorandum Orders were also stricken down by the Court. The transgressions include expansions of definition, alteration or restriction of the application of a provision, inclusion of another requirement not contemplated by the legislature, and the list goes on.

Sixth, in another tax case, Philippine Bank of Communications Vs Commissioner of Internal Revenue, GR No. 112024, dated January 28, 1999, the BIR issued Revenue Memorandum Circular No.7-85 which changed the prescriptive period of two years found in the National Internal Revenue Code for excess income tax payments to a glaringly inconsistent period of ten years. In so doing, the BIR did not simply interpret the law; rather it legislated guidelines contrary to the statute passed by Congress.

Seventh, in Genuino v. De Lima, GR No. 197930, dated April 17, 2018, the then DOJ Secretary Agra issued DOJ Circular No. 41 prescribing rules and regulations governing the issuance of Hold Departure Orders and the issuance and implementation of watchlist orders. The Supreme Court declared the DOJ Circular as unconstitutional because the Constitution required that a law must be passed by Congress before the liberty of abode and the right to travel may be limited. In this case, there was none.

These cases are just among the multitude of jurisprudence in a similar vein involving the various different agencies of the government. Despite the Supreme Court's pronouncements, there remain laws with Implementing Rules and Regulations that are at odds with each other, leaving the public in confusion and diluting the impact the wellmeaning law could have had.

This begs the question of whether there is some way, within the powers of this highly respected body, to prevent our future laws from being mangled by its IRR and to prevent the IRR from straying far from the laws.

We begin with the foundational principle of separation of powers in our political law which is enshrined in our Constitution. As enunciated in the well-known case of Angara v. Electoral Commission, G.R. No. L-45081, dated July 15, 1936, the "separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere."

This is further elucidated in the earlier case of United States v. Ang Tang Ho, G.R. No. 17122, dated February 27, 1922, which states that "By the organic law of the Philippine Islands... all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction."

Despite the separate and supreme spheres of the three branches of the government, the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws has led to the relaxation of the principle of separation of powers, as explained in the cases of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, dated June 12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, dated June 26, 1940. This is likewise recognized as an exception to the principle of nondelegability of legislative power, which is traditionally enshrined in Congress under our republican system of government.

It gave rise to the now well-accepted subordinate legislation or delegated legislation, also known as the rule-making power of the administrative agencies. With this power, they can issue rules and regulations to fix the details in the execution and enforcement of a policy in the law. The construction of statutes by agencies charged with administration of those statutes is entitled to great weight. As such, their regulations, promulgated pursuant to law, have the force and effect of law.

However, any rule or regulation issued by the administrative agencies beyond its delegated statutory authority is an act of usurpation of the Congress' legislative power and shall be struck down. So, to temper the potential for abuse brought about by this subordinate legislative power, our good and learned legal luminaries laid down the requisites for its valid delegation to the administrative agencies.

First, the law must be complete in itself; it must set forth the policy to be executed and second, the law must fix a standard; the limits of which are sufficiently determinate or determinable, to which the delegate must conform in the performance of his functions.

More for our guidance as lawmakers than for the administrative agencies, this is the gold standard that we must all adhere to as we make our laws. Falling short of this - passing a hastily crafted piece of legislation full of holes - makes it easy for the government agencies to abuse this delegated power. Not only is it irresponsible but grossly disrespectful of the mandate of the people who, as the supreme sovereign, is the source of all powers and the reason why we are all here.

Moreover, it is not enough that these administrative agencies comply with the requisites for valid delegation of legislative power in order for their rules and regulations to be valid. These administrative rules and regulations must also meet not only the publication, but filing requirements laid down by relevant laws.

Foremost among which is Art. 2 of the New Civil Code of the Philippines which provides, "Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided."

Interpreting this provision, the seminal case of Tañada v. Tuvera G.R. No. L63915, dated December 29, 1986, provides that "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 date is fixed by the legislature. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation."

For these rules and regulations to attain binding force and effect, aside from publication, the administrative agencies must also comply with the filing requirement laid down in Book VII, Chapter 2, Section 3 of Executive Order No. 292 or the Administrative Code of 1987. It provides that every agency shall file with the Office of the National Administrative Register in 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 the date shall not thereafter be the basis of any sanction against any party or persons.

By virtue of the ruling in Tañada v. Tuvera and the Administrative Code of 1987, the Court, in Republic of the Philippines v. Shell1 G.R. No. 173918, dated April 8, 2008 said that for administrative rules and regulations, both the requirements of publication and filing of administrative issuance intended to enforce existing laws are mandatory for their effectivity.

Mr. President, I propose several remedies. Without overstepping the finely drawn lines between the three branches and encroaching on the realm of administrative rulemaking, this humble representation believes that we, my esteemed colleagues, can take action now to bridge the gaps between future laws and its IRRs.

First, it is hereby proposed that the Senate rules of procedure be studied and amended to the effect that legislators be allowed and given time and resources to draft with the government agency concerned a draft of the implementing rules and regulations of the proposed bill prior to it becoming signed into law or the lapse of the thirty day period from the President's receipt of the bill. Second, it is also proposed that the succeeding laws and its corresponding IRRs be submitted to an oversight committee composed of the concerned Senate committee which prepared the bills. The oversight committee will be tasked to study the law and its IRR for any incongruencies and is limited only in making recommendations on how to harmonize the IRR with the law, without any authority to revoke or disapprove the same.

Nevertheless, these proposals take into consideration the fact that there is no general law which require implementing agencies to promulgate its implementing rules and regulations. Foremost among our laws which have no IRRs is Act No. 3815 or the Revised Penal Code which was enacted in December 8, 1930 which took effect on January 1, 1932 by the then Governor-General of the Philippines with the advice and consent of the Philippine Legislature. Another law without an accompanying IRR was Republic Act No. 386 or the New Civil Code of the Philippines which was enacted in June 18, 1949 and took effect on August 30, 1950.

Likewise, in our recent laws, according to an annual report on the implementation of laws by the Executive-Legislative Liaison Service here in the Senate, there are laws which do not require its implementing agencies to issue IRRs, such as Rep. Act No. 11054 or the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao which was passed on July 27, 2018 and took effect August 10, 2018 and Rep. Act No. 10708 or the Act Enhancing Transparency in the Management and Accounting of Tax Incentives, administered by Investment Promotion Agencies which was enacted on Dec. 9, 2015, among many other laws.

In this light, again, I reiterate the old legal maxim, the spring cannot rise higher than the source, but this I also declare, that, as much as we are able, we shall not let any spring in the future rise higher than the source of all power and that is, the sovereign will of the people.

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1 G.R. No. 173918, 8 April 2008

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