Professional Documents
Culture Documents
, 2010)
Function – that which one is bound to do or which it The term AP or AF is a convenient rather than a
is one’s business to do. technical term.
Power – the means by which a function is fulfilled. An AP is said to be any power not explicitly allocated in
the Constitution, although in its nature, legislative,
Sources: executive, or judicial.
Constitution Includes:
Statute creating it
- powers which may be invested in agencies other
NOTE: Failure to exercise powers granted to than the legislature without delegating legislative
administrative agencies does not forfeit or extinguish powers;
such powers. - powers which may be vested in agencies other
that courts without infringing upon the judicial
Scope: power; and
- functions which may not be imposed upon a
1. Express and implied powers member of the judiciary.
Jurisdiction and powers of AAs are measured and Most important AF is the exercise of judgment and
limited, by the Constitution or law creating them, to those discretion which statues have vested in the
conferred expressly or by necessary or fair implication. administrative agency. In the exercise of quasi-judicial
functions, ABs must not be too dogmatic as to restrict
HOWEVER, statues conferring powers on AAs must be themselves to literal interpretation of words and phrases.
liberally construed to enable them to discharge their A complete and wholistic view is needed to render a just
assigned duties in accordance with the legislative and equitable judgment.
purpose.
Classification of powers:
An AA has ONLY such powers as are expressly granted
to it by law, but it has ALSO such powers as are As to nature:
necessarily implied in the exercise of its express powers.
1. investigatory
Where a general power is conferred or duly 2. quasi-legislative or rule-making
enjoined by law, every particular power 3. quasi-judicial or adjudicatory
necessary for the exercise of one or the
performance of another is also conferred. As to degree of subjective choice:
An AA has no inherent power. Discretion – the power of right conferred upon them
by law of acting officially under certain
NOTE: Sometimes, implied powers are referred to as circumstances, according to the dictates of their own
inherent. judgment and conscience, and not controlled by the
judgment or conscience of others.
3. Quasi-judicial powers
Essence is that the person exercising it may choose
Unless expressly empowered, AAs are bereft of quasi- which of several courses will be followed.
judicial powers. The extent to which an AA may exercise
given judicial powers depends largely, if not wholly, on 2. Ministerial
the statute empowering such agency. HOWEVER, they
have in their favor the presumption of regularity in the A ministerial duty is one in respect to which nothing
performance of official function. is left to discretion. It is a simple, definite duty arising
under the conditions admitted or proved to exist, and
Nature of powers: imposed by law.
In general, the jurisdiction of AOs and AAs is special and A ministerial act is one performed in response to a
limited. HOWEVER, the powers conferred must be duty which has been positively imposed by law and
commensurate with the duties to be performed and the its performance required at a time and in a manner
purposes to be lawfully effected. Powers of ABs have or upon conditions specifically designated, the duty
been held broad and plenary within their fields, and only to perform under the conditions specified not being
in cases of manifest abuse may a court interfere. dependent upon the officer’s judgment or discretion.
investigate the activities of persons or entities coming himself, and no duty rests on such body to furnish the
under its jurisdiction, or to secure, or to require the person being investigated with counsel.
disclosure of information by means of accounts, records,
reports, statements, testimony of witnesses, production Right to counsel not always imperative because such
of documents, or otherwise. inquiries are conducted merely to determine whether
there are facts that merit disciplinary measure against
Test to determine whether an AB is exercising erring public officers and employees.
judicial functions or merely investigatory functions:
2. Exclusionary rule in custodial investigation NOT
- If the only purpose for investigation is to applicable.
evaluate evidence submitted before it based on
the facts and circumstances presented to it, and
if the agency is not authorized to make a final C. RULE-MAKING POWERS
pronouncement affecting the parties, then there
is an absence of judicial discretion and In general:
judgment.
1. Nature
NOTES: This is conferred on practically all AAs. It is the
distinctive function which sets them apart from the court. What may be granted to an AA is rule-making power to
implement the law it is entrusted to enforce.
As SOLE power - Some AAs exist solely to secure and
provide info, and sometimes, to make recommendations. 2. Necessity
As AID to other powers – It is used to inform AAs of Impractical for lawmakers to provide general regulation
particular situations to determine whether they should for various AAs
take further action; useful in rule-making or adjudicatory
functions. Subordinate legislation is permitted to adapt to the
increasing complexity of modern life and variety of public
Investigation is indispensable to prosecution. functions.
Investigative powers must be exercised within the limits - Statute is COMPLETE in itself, setting forth the
prescribed and bear a reasonable and legitimate policy to be executed by the agency; and
relationship to the general powers granted. - Statute fixes a STANDARD, mapping out the
boundaries of the agency’s authority to which it
must conform.
1. Initiation of Investigation (on a complaint or on
its motion) 4. Binding force and effect
2. Conduct of Investigation
A valid rule/regulation duly promulgated by an AA has
Usually private; so conducted that harmful publicity the force and effect of law and is binding on the agency
will not be used in lieu of sanctions provided by law and on all those dealing with the agency.
6. Hearing (NOT necessary part of investigation) - Rule-making is legislation in the admin level
7. Contempt Proceedings (legislation within the confines of the granting
statute, as required by the Consti); also called
May punish for contempt, but such power may be admin legislation, delegated legislation,
exercised only through a statutory grant of power ordinance-making, and quasi-legislation.
8. Application of technical rules of procedure and The power conferred upon an AA to issue or promulgate
evidence (NOT strictly applied) R or R necessary to carry out its functions has been held
to be an adequate source of authority to delegate a
Right to counsel in administrative investigations: particular function.
A party in an administrative inquiry may or may not be 1. It may not make R&R which are inconsistent
assisted by counsel, irrespective of the nature of the with the provis of the Consti or a statute.
charges and of the respondent’s capacity to represent
Administrative law (De Leon and de leon, jr., 2010)
2. It may not amend, alter, modify, supplant, They are those which purport to do no more than
enlarge or expand, restrict or limit the provis or interpret the statute being administered. They have
coverage of the statute. validity in judicial proceedings only to the extent that they
3. It cannot engraft additional requirements not correctly construe the statute.
covered by the statute.
4. In case of discrepancy between the basic law 2. Entitled to great weight and respect
and R or R, the basic law prevails because the
latter cannot go beyond the terms and provis of Nevertheless, while interpretations of an AB ordinarily
the basic law. control the construction of the courts, they are not
5. An R or R should be uniform in operation, conclusive. They are at best advisory.
reasonable, and not unfair or discriminatory.
Legislative and interpretative rules distinguished
Rules, regulations, and orders or rulings:
1. Power to create new law
The R&R on an admin body or officer usually comprise
those actions of such body or officer in which the LR are in the nature of subordinate legislation; products
legislative element predominates in that they establish a of the power to create new and additional legal
pattern of conduct thereafter to be followed. provisions that have the effect of law, while IR are the
product of interpretation of previously existing law.
Regulations may be used in the sense of “rules” or only
in the sense of “interpretative regulation.” 2. Need for express delegation
The term ruling is used to signify an interpretation or an LR may be issued only under express delegation of the
application of a rule or statute to a particular situation. law, while IR may be issued as a necessary incident of
They are actions in which there is more of the judicial the administration of a regulatory statute.
function.
3. Presence of statutory sanction
Kinds of rule-making powers
LR may or may not have statutory sanction; IR none.
1. Supplementary or detailed legislation
4. Binding force and effect
Rule-making by reason of particular delegation of
Valid legislative rules have the same force and effect as
authority
valid statutes. IR are always subject to judicial
2. Interpretative legislation determination that they are erroneous, even when their
issuance is authorized by statute.
Rule-making by the construction and interpretation of a
statute being administered 5. Consequence of wrong construction
1. Discretionary or legislative Congress may provide that a law shall take effect upon
2. Interpretative the happening of future specified contingencies leaving
3. Contingent to some other person or body the power to determine
4. Procedural when the specified contingency has arisen.
5. Internal or penal
Procedural rules
Legislative rules and regulations
Refers to those describing the methods by which the
1. A form of subordinate legislation agency will carry out its appointed functions.
Can be used only in virtue of statutory delegation; when Practical Necessity of Rule-Making Power
valid, they are accorded the force and effect of law
immediately upon going into effect. 1. Regulation of highly complex and changing
conditions
AA acts in a legislative capacity, supplementing the
statute, filling in the details, or “making the law”. 2. Gradual change in regulatory role of
Congress
2. Characteristics
a. The statute has delegated power to the Complexity of conditions resulted in regulatory role of
agency to adopt the rule; and Congress, i.e. provide only general principles of
b. It provides that the rule shall, if within the regulation, and to devolve upon admin authorities the
delegated power, have authoritative force. task of applying those general principles.
Interpretative rules and regulations Considered as not violative of due process as long as
cardinal rights of the parties affected are observed.
1. Resemble judicial adjudication
Administrative law (De Leon and de leon, jr., 2010)
Those carrying penal or criminal sanctions for violations 4. Where rules have the force and effect of law
of the same.
When the issuances are of general applicability, pub in
ABs have the authority to issue admin regulations which OG or in a newspaper of general circ in the Phil is
are penal in nature where the delegating statute itself necessary.
makes the violation of the admin regulation punishable
and provides for its penalty. CA 638 mandates that EOs and Procs of general
applicability must also be published.
1. Requisites for validity
a. The law which authorizes the promulgation NOTE:
of R&R must itself provide for the imposition Publication is required as a condition precedent to the
of a penalty for their violation; effectivity of a law to inform the public of the contents of
b. It must fix or define such penalty; the law or the R&R before their rights and interests are
c. The violation for which the R&R impose a affected by the same. Subsequent pub will not cure the
penalty must be punishable or made a crime defect.
under the law itself; and
d. The R&R must be published in the Official Pub must be in full or it is no pub at all.
Gazette.
2. Nature of power to prescribe penalties 5. Where the regulations merely or
interpretative
The lawmaking body cannot delegate to an AA or AO,
the power to declare what acts shall constitute a criminal Need not be published.
offense and how it shall be punished.
- Will not compel or prohibit, unless in cases of Where the rules are meant to apply to all enterprises of a
grave abuse or excess of jurisdiction given kind throughout the country, they may partake of
legislative character.
Distinguished from investigative power
Where the rules and rates imposed apply exclusively to
To INVESTIGATE means to examine, explore, inquire or a particular party, based upon a finding of fact, the
delve into. Does not involve resolving a controversy function is quasi-judicial. Prior notice and hearing
involved in the facts inquired into by application of the required. But, an AA may be empowered by law to
laws to the facts established by the inquiry. approve provisionally, when demanded by urgent
public need, rates of public utilities without a hearing.
To ADJUDICATE means to adjudge, arbitrate,
determine, rule on, to settle in the exercise of judicial - In any case, the rates must both be non-
authority. confiscatory and must have been established in
the manner prescribed by the legislature.
Distinguished from rule-making
- The basic requirement of reasonableness
A rule is the product of rule-making, and rule-making is a comprehends such rates which must not be so
part of the admin process that resembles a legislature’s low as to be confiscatory, or too high as to be
enactment of statutes. oppressive. It assumes that the rates are fair to
both the public utility and the consumer.
Adjudication is that part which resembles a court’s
decision of a case. 3. Miscellaneous acts
1. Futurity and retrospection Admin on the one hand, or as judicial in nature or quasi-
judicial, on the other hand
Adjudicatory action investigates, declares and enforces
liabilities as they stand on present or past facts and Classification of adjudicatory powers
under laws supposed to exist.
1. Enabling powers
Rule-making looks to the future and changes existing
conditions by making a new rule to be applied thereafter Usually characterized by the grant or denial of permit or
to all or some part of those subject thereto. authorization
2. Generality and particularity 2. Directing powers
Adjudicatory function applies to named persons or to Illustrated by the corrective powers of public utility
specific situations. commissions, powers of assessment under the revenue
laws, reparations under public utility laws, and awards
Rule-making lays down general regulations that apply to under workmen’s compensation laws, and powers of
or affect classes of persons or situations. abstract determination such as definition-valuation,
classification, and fact-finding
HOWEVER, even though action is evidences by a rule, it
may still constitute adjudication. (Case in point, a 3. Dispensing powers
licensing board may law down general substantive
regulations, failure to meet such would deny a grant of Exemplified by the authority to exempt from or relax a
license.) general prohibition, or authority to relieve from an
Administrative law (De Leon and de leon, jr., 2010)
affirmative duty. Sanctions a deviation from a standard When the legislature laid down the fundamentals of a
(whereas licensing power sets or assumes a standard). law, it may delegate to AAs the authority to exercise
such legislative power as is necessary to carry into effect
4. Summary powers the general legislative purpose.
AA generally may not themselves enforce their - Matter requires more specialized knowledge and
determinations, at least not by direct and positive action. expertise
5. Equitable powers 2. Requisites for delegation
a. Completeness of the statute making the
CH.4: SEPARTION OF ADMINISTRATIVE AND
delegation; and
OTHER POWERS
- a statute must be complete in itself so that by
Doctrine of Separation of Powers appropriate judicial review and control, any
action taken pursuant to delegated authority
Fundamental principle in a republic government. It may be kept within the defined limits of the
obtains not through express provision but by actual authority conferred.
division in the Constitution.
- a statute may be compete when the subject,
1. Allocation of governmental powers manner and the extent of its operation are stated
in it such that when it reaches the delegate, the
Governmental powers are divided among the 3 depts only thing he will have to do is enforce it.
and confined such powers, precluding one branch from
exercising or invading the powers of another. - TEST: W the provision is sufficiently definite and
certain to enable one to know his rights and
It is the duty of the Legislature to make the law; the obligations thereunder.
Executive to execute it; and the Judiciary to construe it.
Based on the maxim potestas delegata non potest Restriction on grant of judicial power
delegari (what has been delegated cannot in turn be
delegated). Doctrine of separation of powers also operates to restrict
the exercise of judicial functions to AA. However, it is
Principle: A delegated power constitutes not only a right recognized that some judicial powers may be conferred
but a duty to be performed by the delegate by the upon and exercised by AAs without violating the Consti,
instrumentality of his own judgment acting immediately provided that it be a restricted one, limited only to the
upon the matter and not through the intervening mind of efficient administration of the statutes.
another. A further delegation of such power would
constitute a negation of the duty in violation of the trust
reposed in the delegate mandated to discharge it
directly.
Permissible Delegation
Delegation to AAs