Modernizing Philippine Rulemaking: Drawing Lessons from the United States

AbstractModernizing Rulemaking in Philippine Administrative Law:Drawing Lessons from the United StatesbyJose Arturo Cagampang de CastroDoctor of Juridical ScienceUniversity of California, BerkeleyProfessor Kenneth A. Bamberger, ChairAdministrative rulemaking as currently practiced by agencies in the Philippine administrative bureaucracy is beset by a host of recurring issues that reflect the remnants of an outdated, autocratic rulemaking system that is in dire need of much-needed reform. Although the Philippines has, since 1987, adopted the statutory baseline procedures for agency rulemaking, there is as yet no one-to-one correspondence between what is prescribed by law, and what is actually practiced by agencies. This work addresses the problematic nature of Philippine rulemaking by filling in its statutory interstices and doctrinal gaps with pertinent lessons from the United States (U.S.). This approach to the problem is supported by several findings. Owing to the shared history between the two nations, their respective systems of public and administrative law have many similarities. Philippine courts have in many cases adopted US case doctrines in the Philippine setting. They could thus very well do the same for agency rulemaking, which is an area of US administrative law that is robustly developed with judicial gloss. At the statutory level, the laws on administrative rulemaking procedure in both countries provide for (a) notice, (b) hearing, and (c) publication of legislative rules as their common foundational backbones. Thus, although the rulemaking provisions of the 1987 RAC are concededly not as detailed as those of the US Administrative Procedure Act (APA), the potential benefits of drawing from US precedents for purposes of modernizing agency rulemaking in the Philippines can be concretely realized.Chapter 1 of this dissertation provides a background of agency rulemaking as it is currently practiced in the Philippines, and explains why it is problematic. Contemporary examples of problematic rulemaking from the Department of Finance, the Bureau of Internal Revenue, the Philippine National Police, the Bureau of Customs, and the Land Transportation Office are presented to show the recurring ailments of the autocratic rulemaking practices being used in the Philippines. The ramifications of these rulemaking practices within and outside the Philippines are also discussed.Chapter 2 of this work delves into the history and development of Philippine administrative law, including its roots and origins from the US, in order to clarify the connections and similarities between the two jurisdictions. The shared history between the two countries supports the propriety of mining US administrative law and policy for purposes of modernizing Philippine administrative law and rulemaking. This chapter also reveals how the current rulemaking practices have been carried over from the pre-1987 era of Philippine administrative law, characterized by the general lack of trans-substantive administrative procedures for agency rulemaking. Chapter 3 discusses the place of administrative agencies and agency rulemaking in the Philippines. This chapter initially discusses the foundations that justify the existence of administrative agencies; the general concept of what they are, and the different perspectives upon which they are seen; and the legitimacy issues arising from their existence, and their exercise of derivative governmental authority. The different types of administrative agencies in the Philippines—the constitutional agencies, semi-constitutional agencies, and statutorily created agencies—and their respective rulemaking functions, are also discussed. Taking account of their places as governmental actors in the Philippine bureaucracy is particularly important because there are agencies that invariably engage in rulemaking but are exempt from the coverage of the statutory baseline rulemaking procedures under the 1987 RAC.Chapter 4 presents a modern rulemaking framework for the Philippines, sketched from an overall analysis of the 1987 Philippine Constitution, the 1987 RAC, other relevant Philippine statutes, and Philippine case law, as supplemented in their interstices and doctrinal gaps with pertinent developments from the administrative law of the USChapter 5 synthesizes the findings and interconnections of the previous chapters, and presents the conclusions and recommendations of the dissertation. With the objective of setting a concrete path towards realizing the potentials of modern rulemaking in the Philippines, this chapter also provides a summarized list of 8 observations that are recommended for adoption in the Philippines.