Distinguished from judicial power.

Judicial power, in the strict sense, is the power to hear, try and determine all sorts of cases at law and
equity which are brought before the courts. It is the power and authority to make a final, rather than an
initial determination, of what the law is and adjudicates the respective legal rights or liabilities of the
contending parties with respect to the matter in controversy.

For the purpose of deciding questions as to the powers with which an administrative agency may be
vested, the true rule is that where the function of the agency is primarily administrative and the power to
hear and determine controversies is granted as an incident to the administrative duty, the power is
administrative, or at least it is properly exercisable by administrative agencies.

Where the duty is primarily to decide questions of legal rights between private parties with respect to the
matter in controversy, such decision being the primary object and not merely incidental to regulation or
some other administrative function, the question raised is judicial involving the exercise of judicial
function.

An element of judicial action which is sometimes stressed by the courts is freedom of action or
independence and the absence of control or coercive influence. 1

The Constitution carries with in it an anti-corruption principle such as the separation of powers
principle. It is a free standing principle embedded in the Constitution’s structure and should be given
independent weight, like these other principles, in deciding difficult questions concerning how we
govern ourselves.
-----=

The recognized weaknesses of administrative agencies considered typical have been

summed up as follows:

1) Tendency towards arbitrariness;

2) Lack of legal knowledge and aptitude in sound judicial technique;

3) Susceptibility to political bias or pressure, often brought about by uncertainty of

tenure;

4) A disregard for the safeguards that insure full and fair hearing;

5) Absence of standard rules and procedure suitable to the activities of each agency; and

6) A dangerous combination of legislative, executive, and judicial functions2

De leon admin book page 17 & 18

1
1 Am. Jur. 2d 963-964
2
McDermott, To What Should Decisions of Administrative Bodies be Reviewable by the Courts, 7 Lawyers, J. 560; Macapagal, Judicial
Supremacy Over Administrative Bodies, 12 Lawyer’s, J. 312-314, cited in J. Rivera
 Administrative agencies typically hold legislative, executive, and judicial functions. This

sort of combined power structure allows agencies to more expeditiously develop and enforce

policies. However, combined power also allows these agencies to act more arbitrarily to use ad

hoc solutions and sanctions rather than solutions and sanctions formally prescribed by standing

law.3

To a large extent, the status and character of administrative agencies depend on the terms

of the constitutional or statutory provisions creating them and the powers, rights, duties,

liabilities, or functions conferred on them.

As public or governmental agencies – While their exact status and character are thus

variable, generally they may be said to be agencies of the state or government.

a. They represent no private interests of their own, but functioning or acting within the

scope of their authority, for and on behalf of the government. As representatives of the

public, or guardians or protectors of their interests, and not those of private persons,

although they may, as an incident to the performance of their public functions,

determine issues between private parties or private rights.

Administrative agencies are just that, and are not courts or part of the judicial system.

a. Not courts in the strict sense. – They are not courts, or judicial bodies, or tribunals in

the strict sense, even though they have the name of “court.” The mere fact that a

statute setting up a commission and the rules of procedure adopted by such

commission provide a mode of procedure conforming in many respects to the regular

practice of courts, or the fact that the commission possesses and exercises certain

powers and functions resembling those conferred upon and exercised by courts, does

not in itself render the commission a court.

1. Administrative agencies cannot exercise purely judicial functions, do have the

inherent powers of a court, are not bound in their proceedings by all the rules

applicable to the proceedings in court, and do not come within the statute

3
Aman, Jr. & Mahon, Administrative Law 4 (1992)
 prohibiting injunction to constitute courts or against proceeding “in any court” of a

state.

2. Certain administrative agencies may be held not to constitute courts or judicial

bodies because their function is not to adjudicate impartially but to represent a

public interest, because of their investigatory and inquisitorial powers, or because

they exercise comingled legislative, executive, and judicial functions.

a. Functions primarily regulatory – The functions of an administrative agency are

primarily regulatory even if it conducts hearings and decides controversies to

carry out his duty. On the other hand, the primary duty of a judicial body is to

adjudicate upon and protect the rights and interests of private parties and to that

end, construes and applies the law.

Adoption is a juridical act which creates between two persons a relationship similar to
that which results from legitimate paternity (Prasnick vs. Republic, 98 Phil. 669).

(2) Adoption is a juridical act, a proceeding in rem, which creates between the two
persons a relationship similar to that which results from legitimate paternity and filiation.

(3) Adoption is not an adversarial proceeding. An adversarial proceeding is one having

opposing parties, contested, as distinguished from an ex parte application, one of which
the party seeking relief has given legal warning to the other party and afforded the latter
an opportunity to contest it excludes an adoption proceeding. In adoption, there is no
particular defendant to speak of since the proceeding involves the status of a person it
being an action in rem.

Under Section 6 of Article VIII of the Constitution, the Supreme Court is granted the
power of administrative supervision over all courts and the personnel thereof. Pursuant to
this power, the Court issues administrative circulars and memoranda to promote the
efficient and effective administration of justice, and holds judges and court personnel
administratively accountable for lapses they may commit.[6] Through these circulars,
memoranda and administrative matters and cases, the Court likewise interprets laws
relevant to its power of supervision.[7] The Court likewise issues rules concerning, among
others, the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, and the Integrated Bar.[8]
 According to the World Bank and Transparency International, corruption is the “misuse of public office
for private use.”4

A similar definition was provided by professor Susan Rose-Akerman: “Corruption is a symptom that
something has gone wrong in the management of the state. Institutions designed to govern the
interrelationships between the citizen and he state is used instead of personal enrichment and the
provision of benefits to corrupt. The price mechanism, so often a source of economic efficiency and a
contributor to growth, in the form of bribery, undermines the legitimacy and effectiveness of
government.”

Corruption exists in any institution where legitimate means of getting ahead are circumvented by
allowing individuals to enhance their personal power with money or favors. As a result, it becomes
harder or impossible for others to operate above board.

Corruption has many damaging effects: weakened national institutions, inequitable social services, and
blatant injustice in the courts – along with widespread economic inefficiency and unchecked
environmental exploitation. And it hits hardest at the poor – who often depend heavily on public
services and the natural environment and are least able to pay bribes for essential services that should be
theirs by right. – UNDP (2008, p. 1)

Perhaps the most useful way of classifying the many contemporary social science definitions of
corruption is Arnold J. Heidenheimer’s threefold classification of public-office-centered, market-
centered, and public-interest centered definitions (Heidenheimer, Johnston, & LeVine, 1989, pp. 8–11).
Public-office-centered definitions of corruption focus on the concept of the public office and describe
corruption in terms of the deviations from the norms binding upon its incumbents. An example of a
public-office-centered definition is that provided by Joseph S. Nye (1967, p. 419), who defines
corruption as
behavior which deviates from the normal duties of a public role because of private
regarding (family, close private clique), pecuniary or status gains; or violates rules against the
exercise of certain types of private-regarding influence. This includes such behavior as bribery
(use of reward to pervert the judgement of a person in a position of trust); nepotism (bestowal or
patronage by reason of a scriptive relationship rather than merit); and misappropriation (illegal
appropriation of public resources for private-regarding influence.

While Nye’s definition is useful, it should be noted that in those countries where corruption is a
way of life, corrupt behavior is not viewed as deviant as it is practised by the majority of the population.
Indeed, in these countries those who are incorrupt are considered to be deviant as they constitute the
minority.

4
 In contrast, market-centered definitions of corruption shift the emphasis from the public office to
the market. Jacob van Klaveren (1989, p. 26) has provided the following market-centered definition of
corruption:
A corrupt civil servant who regards his public office as a business, the income of which
he willyseek to maximize. The office then becomes a ‘‘maximizing unit.’’ The size of his income
dependsyupon the market situation and his talents for finding the point of maximal gain on the
public’s demand curve.
The third type of definition views corruption as an erosion of the public interest. Rejecting the
public-office-centered definitions as being too narrow and the market-centered definitions as being too
broad, Carl Friedrich recommended the use of public-interest-centered definitions instead. He has
defined corruption thus:
The pattern of corruption can be said to exist whenever a power holder who is charged
with doing certain things, i.e., who is a responsible functionary or officeholder, is by monetary or
other rewards not legally provided for, induced to take actions which favor whoever provides the
rewards and thereby does damage to the public and its interests. (Friedrich, 1989, p. 15)
However, the problem with the above definition is that the concept of public interest is itself
vague and has not been defined at all.
For this book, a public-office-centered definition of corruption is preferred because it is more
relevant and useful than the market-centered and public interest-centered definitions. The United
Nations Development Programme (UNDP) has defined corruption as ‘‘the misuse of public power,
office or authority for private benefit – through bribery, extortion, influence peddling, nepotism, fraud,
speed money or embezzlement’’ (UNDP, 1999, p. 7). This definition identifies the major forms of
corruption and focuses on the public sector.

CAUSES OF CORRUPTION

Under what conditions does corruption thrive? What are the factors that induce civil servants or political
leaders to commit corrupt acts? Conversely, what prevents or discourages individuals from being corrupt? An
individual is more likely to commit a corrupt act if he or she (1) is paid a low or inadequate salary; (2) is
exposed to ample opportunities for corruption; and (3) perceives corruption to be a low-risk, high-reward
activity. In other words, corruption thrives when the individuals concerned receive meager salaries, have ample
opportunities to be corrupt, and are unlikely to be caught and not severely punished even if they are caught.

In his comparative study of the control of bureaucratic corruption in Hong Kong, India, and Indonesia,
Leslie Palmier (1985, p. 271) identifies these three factors as important causes of corruption: opportunities
(which depended on the extent of involvement of civil servants in the administration or control of lucrative
activities), salaries, and policing (the probability of detection and punishment). Palmier (1985, p. 272)
hypothesized thus:

bureaucratic corruption seems to depend not on any one of the [three] factors identified, but
rather on the balance between them. At one extreme, with few opportunities, good salaries, and effective
policing, corruption will be minimal; at the other, with many opportunities, poor salaries, and weak
policing, it will be considerable (emphasis added)

Opportunities for Corruption and Red Tape

 The scope of public administration has grown and the role of the public bureaucracy in national
development has become more important with the advent of the modern administrative state (Caiden,
1971, pp. 23–24). The expanding role of the public bureaucracy in national development has increased
the opportunities for administrative discretion and corruption as ‘‘regulations governing access to goods
and services can be exploited by civil servants in extracting ‘rents’ from groups vying for access to such
goods and services’’ (Gould & Amaro-Reyes, 1983, p. 17).

In his classic book, Red Tape: Its Origins, Uses, and Abuses, Herbert Kaufman (1977, p. 5)
observed that ‘‘when people rail against red tape, they mean that they are subjected to too many
constraints, that many of these constraints seem pointless, and that agencies seem to take forever to
act.’’ He further argued that civil servants are tempted ‘‘by opportunities to sell their official discretion
and information’’ and ‘‘by the opportunities to extort payments’’ as ‘‘permits can be delayed, licenses
held up, deliberations protracted, proceedings prolonged, unless rewards are offered’’ (Kaufman, 1977,
pp. 51–53). Red tape and cumbersome administrative procedures provide civil servants with the excuse
to extort bribes from those members of the public who are prepared to pay ‘‘speed money’’ to ‘‘cut’’ red
tape and reduce delay by expediting their applications for permits or licenses (Quah, 2009b, pp. 820–
821)

Corruption only benefits those who are corrupt by providing them with more money, power, and
social mobility at the expense of those who are not corrupt in the country. However, corruption increases
administrative costs through overpayment of supplies and materials and losses in government revenue.
Corruption also increases administrative inefficiency by undermining the formal hierarchy of authority.
Policies can be distorted by corruption through the imposition of unauthorized controls or fees on the
population or changing the target beneficiaries. Above all, corruption weakens the political system and
undermines political stability (Carino, 1986b, pp. 170–190). Carino (1986b,p. 192)concluded that
corruption has ‘‘largely toxic consequences to the organization and the society.’’

In the same vein, Human Development in South Asia 1999: The Crisis of Governance began its
chapter on ‘‘The Corruption Menace’’ by identifying these negative consequences of corruption:

Corruption is one of the most damaging consequences of poor governance. It undermines

investment and economic growth, decreases the resources available for human development
goals, deepens the extent of poverty, subverts the judicial system, and undermines the legitimacy
of the state. In fact, when corruption becomes entrenched, it can devastate the entire economic,
political, and social fabric of a country. y Corruption breeds corruption – and a failure to combat
it effectively can lead to an era of entrenched corruption. (Haq, 1999, pp. 96, 105)

Why is corruption such a serious problem today in the Philippines? The first factor responsible
for corruption in the contemporary Philippines is the low salaries of the political leaders and civil
servants.

Red Tape
Second, the excessive red tape and inefficiency of the Philippine Civil Service provide ample
opportunities for corruption. Indeed, papers in the government are processed in an unsystematic
and time-consuming manner. Furthermore, the cumbersome and complicated procedures also
slow down paper processing. The filing systems are disorganized, and there is no disposal policy
for files accumulated for many years. In other words, ‘‘there is much room for simplifying
procedures in the bureaucracy’’ (de Guzman,Brillantes, & Pacho, 1988, p. 199). Excessive
regulations coupled with increased bureaucratic discretion provide opportunities and incentives
for corruption as regulations governing access to goods and services are exploited by civil
servants to extract ‘‘rents’’ from groups vying for access to these goods and services (Gould &
Amaro-Reyes, 1983, p. 17).

Another factor providing opportunities for corruption is excessive discretion, which often results
from a well-intended delegation of authority in order to expedite proceedings.

People are subjected to too many constraints that many of these constraints seem pointless, and
that agencies seem to take forever to act. Here civil servants are tempted by opportunities to sell
their official discretion and information and by the opportunities to extort payments as permits
can be delayed, licenses held up, deliberations protracted, proceedings prolonged, unless rewards
are offered.

Low Risk of Detection and Punishment

Third, corruption has flourished in the Philippines because of the low risk of detection of corrupt
offenses and the low probability of punishment for corrupt offenders. Leslie Palmier (1985, p.
271) uses the term ‘‘policing’’ to refer to ‘‘the probability of detection and punishment.’’

Cultural Factors

Fourth, the importance of the family and the cultural value of utang na loob among Filipinos
have made them more tolerant of corruption. According to Jean Grossholz (1964, pp. 86–87), the
family in the Philippines is ‘‘the strongest unit of society, demanding the deepest loyalties of the
individual and coloring all social activity with its own set of demands,’’ but its ‘‘communal
values’’ are ‘‘often in conflict with the impersonal values of the institutions of the larger
society.’’

Lack of Political Will

Finally, the lack of political will is responsible for the rampant corruption in the Philippines.
Defining ‘‘political will’’ as ‘‘the use of the power one has to effect changes desired by the
society,’’Ledivina V. Carino (1994, pp. 115–118) identified six reasons for the lack of political
will in curbing corruption in the Philippines. First, the decentralization of power was not
accompanied by regular monitoring and evaluation of the subordinates’ performance. Second,
the inability of the political elite and senior civil servants to distinguish between public needs
and private interests resulted in many conflicts of interest. Third, officials were not punished for
their failure to perform their duties. Fourth, political will was lacking as there was unequal or
selective enforcement of the laws. Fifth, political will did not exist as pronouncements were not
followed by action. Sixth, political will was absent as adequate manpower and funds were not
provided for the implementation of the anticorruption measures. In short, the rampant corruption
in the Philippines is the combined result of several causes.

The following paragraph by Co, Lim, Lao, and Juan(2007, pp. 35, 37)provides a good summary
of the preceding analysis on the causes of corruption in the Philippines: Bribery proliferates and
is sustained among agencies that do not address the need for efficiency for procedures and
effectiveness of service delivery. Bribery is sustained in a system where personnel get meager
pay from government employment. The culture of corruption is sustained by a sub-culture of gift
giving, reciprocity, ‘clientelism,’ the so-called ‘dark side of social capital,’ fixing, facilitation
used in a negative way, dualism, and the expansive yet discretionary use of bureaucratic power.

Corruption will remain a serious problem in the Philippines as long as the five causes identified
in an earlier section are not eliminated. The salaries of the civil servants and political leaders are
unlikely to be increased substantially because the government would not be able to afford such
an expensive strategy without sustained economic growth.

Although the opportunities for corruption can be minimized by reducing red tape and improving
the efficiency of the civil service by streamlining the cumbersome and complicated
administrative procedures, such opportunities will remain as long as low salaries or ‘‘starvation
wages’’ reinforce the need for civil servants to accept ‘‘speed money’’ for expediting the
approval of applications for permits. As discussed earlier, the population’s tolerance for
corruption is reinforced by the importance of the family and particularistic values such as utang
na loob in Philippine society.

Thus, curbing corruption in the Philippines remains an impossible dream for the foreseeable
future until its political leaders can demonstrate that they have the political will to do so. So far,
the political leaders in the Philippines are ‘‘either incompetent or corrupt’’ and have ‘‘failed to
lead the battle against corruption’’ (Co et al., 2007, p. 33).

Quah, Jon S. T. 2011. Curbing Corruption in Asian Countries : An Impossible Dream?. Bingley: Emerald
Group Publishing Limited, 2011. eBook Academic Collection (EBSCOhost), EBSCOhost (accessed
August 13, 2018)

APA (American Psychological Assoc.)

Quah, J. T. (2011). Curbing Corruption in Asian Countries : An Impossible Dream?. Bingley: Emerald
Group Publishing Limited.

MLA (Modern Language Assoc.)

Quah, Jon S. T. Curbing Corruption in Asian Countries : An Impossible Dream?. Emerald Group
Publishing Limited, 2011. Research in Public Policy Analysis and Management. EBSCOhost.

The principle of separation of powers is a mechanism for the state to constrain itself. According
to Richard Bellamy, the rationale of the doctrine of separation of powers is to ensure that those
who formulate laws are distinct from those who apply, enforce, and interpret them, thereby
guaranteeing that the makers of the law will be made subject to them. Separation of powers
results in being an incentive for lawmakers to enact laws that are stated in general terms in order
for them to be equally applicable to all and to avoid self-interested legislation. The separation of
 powers is a principle that prevents tyranny. As Charles de Secondat, Baron De Montesquieu
declared, “when the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty because apprehensions may arise, lest the same
monarch or senate should enact tyrannical laws, and execute them in a tyrannical manner.

A prime benefit of the principle of separation of powers is that arbitrariness is replaced with
stability, as public power is not used to enact whimsical laws or laws that promote private ends.
Instead, public power is used to enact laws that are prospective, clear, and relatively fixed.
Separation of powers allows the branches of government to compel horizontal accountability and
prevent arbitrary government actions. Here, a clear relationship is seen between separation of
powers and the rule of law.

A corrupt system creates a condition of enslavement by a government official against the

applicants, those who need a particular license, service, or approval from him. The government
official can exercise arbitrariness - he can choose whether to demand a low or high bribe or
whether or not to exact any bribe at all. This arbitrariness places the applicant at the mercy of the
government official.

Discretionary Power, Corruption, and Separation of Powers: An Evaluation of the Pork Barrel
System from the Rule of Law Perspective – Ma. Nina C. Araneta – Alana

http://web.b.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=2&sid=e5a04b76-59fa-4a6d-96d8-
17c0bc176895%40sessionmgr104

Araneta-Alamf, Nina C. 2014. "Discretionary Povfrer, Corruption, and Separation of Powers: An

Evaluation of the Pork Barrel System from the Rule of Law Perspective." Ateneo Law Journal 59, no. 2:
411-452. Academic Search Complete, EBSCOhost (accessed August 13, 2018).

Araneta-Alamf, N. C. (2014). Discretionary Povfrer, Corruption, and Separation of Powers: An Evaluation

of the Pork Barrel System from the Rule of Law Perspective. Ateneo Law Journal, 59(2), 411-452.

The principle of separation of powers is explained by the Court in the leading case of Angara v. Electoral
Commission:37

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. But it does not follow from
the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments of the government.
x xx And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other
department in its exercise of its power to determine the law, and hence to declare executive and legislative acts
void if violative of the Constitution.

What they do not realize is that family courts are, in fact, deluged with an unbelievable volume of cases, and
that there is simply not enough family courts to cope with the volume. In the summit, a common
recommendation from all the workshops was to validate the proposal to regularize family courts. Regularizing
family courts means to create new courts which will exclusively handle family cases. As it is now, family courts
are merely designated, from existing courts, without adding to the number of courts. Thus, there are
municipalities with no family court at all. The number of courts in the Philippines was determined and created
in 1981 when Batas Pambansa Blg. 129, re-organizing the judiciary, came into effect. It has been 29 years. The
population in 1980 was 48 million. In 2009 the Philippine population was estimated at 92 million. Yet, the
number of courts in the entire country remains as it was in 1981.

Apart from the growth of the Philippine population, new laws have been passed which paved the way for the
filing of countless cases in courts designated as family courts. These are: the Family Code which opened the
gates to the filing of cases involving annulment or nullity of marriages; laws on domestic and inter-country
adoption; the new rape law; the law on Anti-Violence against Women and their Children; the law on Child
Abuse, and the Juvenile Justice Law, among others.