Law vs. IRR: The spring cannot rise higher than the source

(Part I)

(Privilege Speech “Law vs. IRR The Spring Cannot Rise Higher than the Source” delivered in the Senate on September 14, 2020.)

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

We have an anomaly right in our very midst. As we all know as provided in Sec. 1, Art. VI, of the Constitution, legislative power resides in the Congress of the Philippines, which consists of the Senate and the 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

However, we find that some of our laws, 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 their Implementing Rules and Regulations (IRR). Our Supreme Court cases have shed light on the times when the laws and the IRR have clashed, numbering around 50 or 60 according to my recent research.

I rise today out of fear and apprehension that the very laws that my colleagues, all of you who are listening may be twisted, deformed, mutilated, and become unrecognizable because of their 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… The committee of Senator 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. Inimbento lang po ng board although mayroong capitation word sa law.

Ganun din po last Congress, the Senate, Congress enacted the DHSUD Law, Republic Act 11201. Iniba rin po yung implementing rules sa DHSUD law. 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. Baka ang gawin yung height sukatin ‘pag hapon. Because we all know scientifically, that a person is taller in the morning than in the afternoon, baka ibahin nanaman po nila yun.

The spring cannot rise higher than the source, as the old 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.

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

First, there is a plethora of Supreme Court cases where 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.

I have taken it upon myself to open this Pandora’s Box, to bring to light the impending crisis brought about by the large number of IRRs that are at odds with our laws and to propose actions addressing this need.

Let me enumerate the 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 of 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, 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. 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 law. It even provided for administrative sanctions which the law never envisioned. It was as if the DOH made a new law by itself.

Second, in the case of 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 – 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.

In the case of 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 perstation 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 on 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 in 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. 1799 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 was 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 into 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, and inclusion of another requirement not contemplated by the legislature. The list goes on.