IRRs should implement the law as it is

Last July, I wrote an article appealing to then-incoming President Marcos Jr. to sign, or allow to lapse into law, four bills not acted upon by outgoing President Rodrigo Duterte. Three bills lapsed into law namely Republic Act No. 11900 or the vape law, RA 11909 or the Permanent Validity of the Certificates of Live Birth, Death, and Marriage Act, and RA 11930 or the Anti-Online Sexual Abuse and Exploitation of Children and Anti-Child Sexual Abuse or Exploitation Materials Act. The President vetoed the bill on the creation of a National Transportation Safety Board.

Four months have passed and the implementing rules and regulations of these laws have not been completed and published by those department agencies tasked to do so. The issuance of implementing rules and regulations (IRRs) has always been a thorny issue between the legislative and executive branches of government. While the Philippine Constitution vests the legislative branch with the exclusive power to enact laws, this power is sometimes negated by the act of executive agencies when they issue IRRs that contain provisions inconsistent with the law it seeks to implement.

What triggered this was a recent example of what-not-to-do was a revised IRR for the BOT law made at the end of the last administration. It distorted the intent of the law in a number of completely unacceptable ways. Incredibly it said the government could make changes that would affect a contract with impunity. Even more incredibly the IRR said the government wouldn’t accept international arbitration—the venue must be in the Philippines. What a great way to stop all foreign investment. There was more, equally unbelievable.

Outspoken opposition by the business sector led to a review by the National Economic and Development Authority under this administration. They agreed to remove the onerous conditions, and make the amendments the likely users of the law recommended.

That raises a critical point. When an IRR is being prepared, it must be discussed with those likely to be affected by it, both directly and indirectly. In a number of instances in the past, this has not been done.

Disagreements like this have led to Congress placing safeguard provisions in new laws that the non-issuance of the IRR doesn’t stop the law from taking effect, and that officials who draft IRRs that are inconsistent with the law it is implementing will be held liable.

But they didn’t put in place what I think is an equally important requirement: to do it with alacrity. The Real Estate Investment Trust Act was approved by Congress in 2009. Its IRR was released in 2020 — 11 incredible years when the law couldn’t be implemented. I’d like to suggest that Congress pass a new law that requires the IRR to be completed, and issued within two months. If the agency can’t decide how to do something within two months that it is supposed to be fully knowledgeable about, then maybe new personnel are required.

An IRR can only “implement” the provisions of the law, it cannot change, expand or limit the provisions of that law. To be absolutely clear, the power of Congress to enact laws is absolute except where otherwise provided by the Constitution. Thus, what the law allows, an IRR cannot prohibit. The reverse is also true. What the law prohibits, an IRR cannot allow. Similarly, if the law provides for specific requirements, an IRR cannot expand or limit those requirements. State policies are determined by Congress and not by the executive branch.

Also, power delegated by Congress cannot be further delegated. Once the power to delegate is exercised by Congress, it cannot be further delegated. For example, if a law mandates that a specific executive agency is the exclusive regulator or implementer of a law, that agency cannot give another executive agency jurisdiction or power to act as the regulator. If the law mandates several executive agencies, through an inter-agency committee, to regulate a specific activity under a law, no single executive agency can claim that it has exclusive power or jurisdiction to enforce the law.

If our executive agencies, including the lawyers within these agencies, can follow these basic legal principles in drafting an IRR, I think we can limit the clash between the legislative and executive branches of government on this otherwise simple matter. To reiterate, the role of the executive branch in our system of government is to implement the laws passed by the legislative branch, as detailed by Congress. And do so in a timely fashion.

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