The disappearing Congress: The Philippines as an administrative state

Section 12 of RA 11525 (“COVID-19 Vaccination Program Act of 2021”) makes it very clear that vaccination cards cannot be made a requirement for government or business transactions and declares that vaccinated individuals shall “not be considered immune from COVID-19.” So why is it that government agencies are requiring vaccine cards for entry into hotels, restaurants, and businesses, including the Commission on Higher Education (CHED) for students and faculty to go to school? More pointedly: Why are unelected government bureaucrats able to go directly against a law made by elected legislators?

Because this essentially is what happens when a country morphs into an “administrative state.”

An administrative state is one where Executive Branch’s administrative agencies exercise “the power to create, adjudicate, and enforce their own rules” (see Ballotpedia). There are two features at play here which, although constitutional, the undue over-employment of which unfortunately leads to a weakening of our democratic system of government.

The first is the constant delegation of powers to the Executive Branch, whereby powers traditionally in Congress’ hands are instead given to government agencies under the control and supervision of the President. So long as two jurisprudential conditions are met (i.e., completeness and the sufficient standards test), the Congress can very well abdicate its responsibilities to the Executive Branch.

The other feature is judicial deference, a principle of judicial review whereby the courts defer to the agency’s interpretation or enforcement of a law. Thus, in Remolona vs. Civil Service Commission (G.R. No. 137473), the Supreme Court said that courts will not generally interfere with purely administrative matters addressed to the sound discretion of government agencies unless there is a clear showing of arbitrary, capricious, or grave abuse of discretion amounting to lack of jurisdiction. And in Nuesa vs. Court of Appeals (G.R. No. 132048), findings of administrative officials and agencies that have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence (see Antonio Nachura’s “Outline Reviewer in Political Law”).

The problem with having a civil service of expanded powers is that it upends the deliberately designed tripartite form of government of equal and separate powers. Effectively, substantial power is concentrated under the Executive Branch headed by one person: the President.

Thus, this relevant point: “power and authority vested in one body is the very definition of tyranny. The US Constitution’s system of separated powers [from which we derive our own constitutional system] safeguards individual liberties by dividing legislative, executive, and judicial authority across three coequal branches, ensuring that no one branch can exert absolute rule. Federalist Papers authors such as James Madison and Alexander Hamilton used the flaws of human nature to support the necessary constraints of government.” Hence why “ambition must be made to counteract ambition” (“How America’s Administrative State Undermines the Constitution,” American Legislative and Exchange Council, October 2020).

So called “progressives,” believing their cause justifies a work-around the legislative process, called for ever faster means of imposing increasing government regulations. But this only resulted in “unelected bureaucrats” setting aside elected officials “in determining broad ranging regulations, free from democratic oversight or political interference. Over time, a complete lack of accountability from the courts and further enablement by Congress have allowed federal entities with ‘quasi-legislative’ and ‘quasi-judicial’ powers to subvert constitutional principles and exert inordinate influence in the lives of citizens with minimal recourse.”

A profound illustration of this shift can be seen in our budget system. Congress has always been touted as possessing the “power of the purse” and the reason for this is that, since tax funds are culled from citizens, then it is but fair that the spending or allocation of tax money be decided by their duly elected representatives — hence, Congress.

Not anymore.

In 2014, then university professor, now Secretary of Education, Leonor Magtolis Briones pointed out that Congress has control of only “around 23% of the budget.” Instead, the power “now belongs to the President.” The reason is that “lump sums indicate an inherent vulnerability in the budget because of limited transparency and accountability in handling these funds.” Thus, “after the budget is passed, executive power may even disregard Congress’ approved budget altogether.” (“President, not Congress, holds power of the purse,” Philippine Star, August 2014; see also “Who really holds the ‘power of the purse’?,” PIDS, December 2009).

This shift to an administrative state, where unelected bureaucrats hold sway over people’s lives without accountability is not only inherently undemocratic but utterly despotic. It also encourages incompetence, as we have seen in recent years’ COVID-19 measures.

Fixing the budget system to have it firmly under Congress’ power is a step in the right direction. Imposing greater public and regular congressional oversight over these administrative agencies is another. Finally, it would be better to vastly reduce the number of national government agencies and instead devolve many of their functions to local government units, whose administrators have greater accountability to their constituents.

Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

Twitter@jemygatdula