SEPARATION OF POWERS

Q: What is separation?
A: Allocation/distribution of governmental powers

Q: What is the true test?

A: TRUE TEST: Whether or not the power in question, regardless of its nature, has been constitutionally
conferred upon the department claiming its exercise.

NOTE: The conferment is usually done expressly, as in the vesture of the legislative power in the Congress,
the executive power in the President, and the judicial power in the Supreme Court and such lower courts as
may be established by law. Even in the absence of an express conferment, the exercise of a given power may
be justified under the DOCTRINE OF IMPLICATION, which is based on the theory that the grant of an
express power carries with all other powers that may be reasonably inferred from it.

Q: What are the legislative powers?

A: MAR
Make, amend/alter, repeal laws

Q: What are the Executive powers?

A: Execute/implement laws

Q: What are the Judiciary powers?

A: Apply/interpret laws

Note: Separation of powers is inherent in a republican system of government. The major powers of
government are actually distributed by the constitution among the several departments and the constitutional
commissions.

Constitutional Commissions:
1. Commission on Audit (COA)
2. Commission on Elections (COMELEC)
3. Civil Service Commission (CSC)

Q: Is the principle of separation of powers absolute?

A: No. It should be applied in accordance with the principle of checks and balances.

Q: Is there a provision in the Constitution that states that the Philippines follows separation of power?
A: None. We follow separation of powers because it is one of the manifestations of a republican state. (Note:
Do not just say that it is inherent in a republican state)

GRABE-SBC-DB
Government of laws, not of men
Rule of Majority
Accountability of Public Officers
Bill of Rights
Election of Public Officers
Separation of Powers
Blending of Powers
Checks and Balances
Delegation

Q: What are the purposes of separation of powers?

A:
(1) intended to prevent a concentration of authority in one person or group of persons that might lead to an
irreversible error or abuse in its exercise to the detriment of our republican institutions
(2) designed to prevent the accumulation of powers in the same hands, which result of tyranny.
(3) to secure action, to forestall overaction, to prevent despotism and to obtain efficiency (Justice Laurel)

Q: Explain the penumbra

A: The three departments of government are coordinate, co-equal and co-important. While interdependent,
in the sense that each is unable to perform its functions fully and adequately without the other, they are
nonetheless in many instances independent of each other. That is to say, one department may not control or
even interfere with another in the exercise of its particular functions.

PENUMBRA

Q: Describe the relationship of the three departments.

A:
1. The three departments are interdependent of one another.
2. They are co-equal and coordinate.
3. They allow for checks and balances.

Q: What is the principle of blending of powers?

A: It is a situation where there is a sharing of two or more departments in the performance of a given
constitutional task. One department acts in a manner complementary or supplementary to another.

Examples:
1. Enactment of general appropriations
2. Grant of amnesty by the president
3. Deputization by Commission on Elections (COMELEC) of law enforcement agencies and
instrumentalities.
Q: What is check and balances?
A: It means that one department is allowed to resist encroachments upon its prerogatives or rectify mistakes
or excesses committed by the other department.

Q: What are the powers of the three departments?

A: Each department is given certain powers with which to check the other, thus:

1. Checks by the President

President may veto or disapprove bills enacted by Congress [Art. 6, Sec. 27 (1)]. Through the
pardoning power, he/she may modify or set aside the judgments of courts (Article 7 Sec.19).

2. Checks by Congress
 Congress may override the veto of the President [Art. 6, Sec. 27 (1)]; revoke the proclamation of
martial law or suspension of the privilege of the writ of habeas corpus by the President; and amend or
revoke decisions of the courts (by the enactment of a new law or by an amendment of the old, giving it such
meaning and interpretation as to wipe out the effect of such decisions). It has the power to define, prescribe
and apportion the jurisdiction of the various acts (Art. 8, Sec. 2); prescribe the qualifications of judges of
lower courts; determine the salaries of the President and Vice President (Art. 7, Sec. 6), the members of the
Supreme Court (SC) and judges of lower courts (Art. 8, Sec. 10); and impeach the President and members of
SC (Art. 11, Sec. 2).
3. Checks by the Judiciary
The judiciary, with the SC as the final arbiter, may declare legislative measures or executive acts
unconstitutional [Art. 8, Sec. 4(2)] and determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the Congress or the President.

Judicial Review – ultimate “check” on the two departments

Q: By judicial review, does it mean that the Judiciary is supreme over the two other departments?
A: No, what it is upholding is not its own supremacy but the supremacy of the Constitution.

Q: What is a justiciable question?

A: It implies a given right, legally demandable and enforceable, an act or omission, violative of such right,
and a remedy granted and sanctioned by law for said breach of right. (e.g. compliance with a voting
requirement; qualifications of an appointee of the President)

Q: What is a political question?

A: It is a question of policy, that question which under the constitution is to be decided by the people in their
sovereign capacity; or in regard to which, full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of
a particular measure. (e.g. interpretation of phrases such as “other high crimes”, “disorderly behaviour”, etc.)

Illustration:
X – power Y; Y cannot delegate such power to Z

Legend:
X= people; Y= government agency (LEJ); Z= anyone

Q: What is the basis of the principle of delegation?

A: The basis is the principle of potestas delegata non potest delegare.

Q: What is the meaning of potestas delegata non potest delegare?

A: Delegated power cannot be further delegated or what has been delegated cannot be delegated. It means
that a delegated power constitutes not only a right but a duty to be performed by the delegate by the
instrumentality of his own judgment and not through the intervening mind of another.

Q: Why is it that a power delegated cannot be further delegated?

A: It is because of the trust reposed by the people to the three departments.

Q: Is the principle of non-delegation of powers absolute?

A: No. There are permissible delegations.

Q: What are permissible delegations?

A: (1) Tariff powers to the President
(2) Emergency powers to the President
(3) People at large
(4) Local Governments
(5) Administrative Bodies

Q: What is the reason for delegation of powers?

A:
(1) Increasing complexity of the tasks of government
(2) Growing inability of the Legislative to cope with the many problems demanding its
attention
Q: What is the delegation of tariff powers to the President [Article 6 Section 28(2)]?
A: The President is granted stand-by or flexible tariff powers in the *Tariff and Customs Code. The reason
for this delegation is NECESSITY, not to say expediency. It is recognized that the legislative process is
much too cumbersome for the speedy solution of some economic problems, especially those relating to
foreign trade. The President must exercise the authority given within the framework of the national
development program of the government.

TARIFF= TIE-TWO(ID)
Tariff, Import/Export Quotas, Tonnage, Wharfage Dues, Other Imposts and Duties

Q: What is the delegation of emergency powers [Article 6 Section 23(2)]?

A: During grave emergencies, it may not be practicable for Congress to meet and exercise power. In such
occasions, the *Constitution expressly permits Congress to grant legislative powers to the President subject
to certain limitations:

a.) The emergency powers may be granted by law to the President only in times of war or national
emergency (rebellion, grave economic depression). It is the Congress that determines whether
there is war or national emergency.
Q: When is there a national emergency?
A: Majority is affected. The emergency must be of nationwide proportions and effect.

b.) The said powers must be exercised only during a limited period, that is, for the duration of the
war or other national emergency.
If Congress said that the President can exercise the emergency power for one (1) year, but after 1
year the emergency still exists. Does the power of the President continue?
No. According to Justice Paras, “emergency itself cannot and should not create power.” The mere
continuance of the emergency does not necessarily continue the President’s emergency power if they have
been granted to him for a shorter period.

If Congress allowed one (1) year for the emergency power of the President but after 1 month the
emergency ceased. Will the emergency power of the President continue?
No. The emergency powers are self-liquidating unless sooner withdrawn, in the sense that they will
automatically cease upon the end of the emergency that justified their delegation.

c.) They must be exercised subject to such restrictions (limitations/ conditions) (e.g. requiring the
President to make a report to the Congress when it meets in session).
d.) They must be exercised to carry out a national policy as declared in the law delegating the
authority.

Q: When will the emergency power end?

A: Adjournment Withdrawal  Cessation of Emergency  Period (Whichever comes first)

NOTE: They shall automatically cease upon the next adjournment of Congress unless sooner withdrawn by
resolution in view of its opinion that emergency has ceased. It is not necessary that the withdrawal be done
through a statute. A resolution does not need the approval of the President whereas a statute, to be effective,
needs the President’s approval.

Q: What is delegation to the people (Article 17 Section 2)?

*According to Atty. Bugayong, for him, this is not a permissible delegation

X –power LEJ  X?? The Sovereignty of the people = Reserved power (Sec. 1 Art. 6)
A; It is a method whereby the people themselves can directly propose amendments to the *Constitution. It is
an application of the democratic concept embodied in Article 2, Section 1.

The government of the state is democratic, but it is a representative democracy, and in passing general laws
the people act only through their representatives in the legislature. Such reference of the law to the people at
large for acceptance or rejection is plain surrender of the law making power.

Referendum: method of submitting an important legislative measure to a direct vote of the whole people.

Plebiscite: questions submitted in the plebiscite are intended to work more permanent changes in the
political structure, like a proposal to amend the constitution; device to obtain a direct popular vote on a
matter of political importance, but chiefly in order to create some more or less permanent political condition.

Q: What is delegation to the Local Government Units (LGUs) (Art. 10, Sec.3)?*Local Government
Code
A: This traditional exception is based on the recognition that local legislatures are more knowledgeable than
the national law making body on matters of purely local concerns and are therefore in a better position to
enact the necessary and appropriate legislation thereon.

Q: What is delegation to administrative bodies? *Charter

A: 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 Implementing Rules and Regulations (IRR), such as the implementing
rules issued by the Department of Labor on Labor Code. These regulations have the force and effect of law.

Contingent Regulations: They are allowed to ascertain the existence of particular contingencies and on the
basis thereof enforce or suspend the operation of a law. Such also have the force and effect of law.

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

Q: How can the test of delegation be valid?

A: To be valid, the delegation itself must be circumscribed by legislative restrictions which will not give the
delegate unlimited legislative authority.

Q: What are the tests?

A:

1.) COMPLETENESS TEST the law must be complete in all its essential terms and conditions when it
leaves legislature so that there will be nothing left for the delegate to do when it reaches him except to
enforce it. (US vs. Ang Tang Ho)

2.) SUFFICIENT STANDARD TESTintended to map out the boundaries of the delegate’s authority by
(1) defining the legislative policy; and (2) indicating the circumstances under which it is to be pursued and
effected. The standard is usually indicated in the law delegating legislative power (Ynot vs. IAC). But even
if the law does not expressly pinpoint the standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional infirmity.

*Standards, parameter, guidelines

*Are the two standards required alternately or should both tests be present for it to be considered validly
delegated? Generally, one is enough. It depends on the situation.
Even if the law does not spell out in details the limit of the delegate’s authority, it may still be sustained if
the delegation of legislative power is made subject to a sufficient standard. HOWEVER, according to the
Pelaez Case, the two tests must be applied concurrently and not alternatively.

Completeness Test and Sufficient Standard Test must be applied together or concurrently.

According to Justice Concepcion, “Although Congress may delegate, it is essential, to forestall a violation of
the principle of separation of powers, said law should:

(a) Be complete in itself – it must set therein the policy to be executed, carried out or implemented
by the delegate.
(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