Senators want oversight on how government drafts implementing rules and regulations

The Senate is considering forming an oversight body to check on the implementing rules and regulations (IRR) drafted by executive agencies to operationalize Philippine laws.

Senator Francis Tolentino raised this in a privilege speech on Monday, September 14, citing several instances in which the IRR drafted by an executive agency conflicted with its corresponding law.

The IRR is usually drafted by an administrative agency under the Executive following the enactment of a law. It sets guidelines on the minutiae of enforcing a law, such as bureaucratic procedures.

However, Tolentino said there have been instances – “around 50 or 60” – when the IRRs clashed with the laws they were based on.

An administrative agency may be “usurping” Congress’ lawmaking power when it issues rules or regulations beyond the scope of the law, he added. 

“This begs the question of whether there is some way, within the powers of this highly respected body, to prevent our future laws from being mangled by its IRR, and to prevent the IRR from straying far from the laws,” Tolentino said. 

'Veto power'

Several senators agreed with Tolentino, including Senate President Vicente Sotto III.

Para silang may veto power eh (It’s as if they have veto power), no?” Sotto said, noting how some agencies have delayed the implementation of laws because the IRR remained pending.

Even the controversial, highly anticipated Anti-Terrorism Law is held back from enforcement, Sotto said, because the Executive is still working on its IRR.

“That’s BS. It’s already a law. It’s been signed by the President. Anong (What) IRR? It’s not necessary. They have to implement the law,” Sotto added.

Senator Lito Lapid presented his own Free Legal Assistance Act as another example. Signed into law in 2010, the measure has not been implemented because it still lacks its IRR.

Tolentino pointed out that IRRs are not a prerequisite to enforcing a law. He said the Revised Penal Code, the New Civil Code, and the Bangsamoro Organic Law are all in force even without IRR.

He proposed amending the Senate’s rules of procedure to allow lawmakers to work with executive agencies in drafting the IRR of every law. He also proposed an oversight committee from the appropriate Senate panel to check IRR against their parent laws, and make recommendations.

Is Senate allowed to do it?

But can senators do this?

Senators Pia Cayetano and Panfilo Lacson pointed out that lawmakers are prohibited by law from participating in the drafting of IRR.

Following a Supreme Court ruling, lawmakers are at most only allowed to observe the crafting of a law’s IRR.

“I find that very difficult kasi tayo naman ‘yung gumawa nung batas (because we’re the ones making the laws after all),” Cayetano said. 

“We can exercise oversight but we cannot participate directly in the drafting of the IRR,” said Lacson.

Senate Minority Leader Franklin Drilon said the remedy for an IRR that clashes with its corresponding laws would be to bring it before the judiciary, which could declare the IRR void.

“We are operating under a system of separation of powers. We craft policy and the law. That is our role as legislators. The Executive branch executes the law and it is part of their mandate to issue rules and regulations,” said Drilon, a lawyer and former justice secretary.

Lawmakers should be 'very specific'

The senators admitted, however, that the problem may also partly lie with lawmakers themselves, who sometimes leave it up to IRR from the Executive to spell out the nitty gritty their laws leave out.

“Sa bagay, I’ve been here for ages and there were times times na umaandar ‘yung katamaran din kung minsan ng Legislature eh. May mga narinig din ako nung araw na, ‘Okay na ‘yan, sa IRR na lang natin galawin,” Sotto said.

(Come to think of it, I’ve been here for ages and there were times when the Legislature’s laziness got the better of it. I used to hear it said, ‘That’ll do, let’s just fix it in the IRR.)

“We also have to be disciplined to be clear about our legislative intent,” said Cayetano.

Senator Cynthia Villar told her colleagues to be “very specific” in order to prevent other agencies from “changing the intent of the law.” 

“Whenever I write a law, it’s just like an IRR – there is no more question about the implementation,” Villar said.

After the discussion, the senators resolved to refer the matter to the committee on rules, to consider creating an oversight committee on IRR. –

JC Gotinga

JC Gotinga often reports about the West Philippine Sea, the communist insurgency, and terrorism as he covers national defense and security for Rappler. He enjoys telling stories about his hometown, Pasig City. JC has worked with Al Jazeera, CNN Philippines, News5, and CBN Asia.