DOJ Opinion No. 113, s. 1994

DOJ OPINION NO. 113 , s. 1994 August 4, 1994 Secretary Rizalino S. Navarro Department of Trade and Industry Trade and Industry Building 361 Sen. Gil J. Puyat Avenue Makati, Metro Manila Sir : This refers to your request for opinion relative to a proposed Executive Order creating WTO/AFTA Advisory Commission composed of representatives from the Executive Department, the Legislative Department and the private sector. You state that the Philippines was among 111 countries that signed the Uruguay Round Final Act in Marrakesh, Morocco; that in view of the far-reaching effects of the UR Agreement on the Philippine Economy, the executive department proposed the issuance of an Executive Order creating the said Advisory Commission with powers to coordinate the various activities of various government agencies affected by the UR Agreement, evolve an integrated Plan of Action to be adopted by the Philippines and work for the ratification of the UR Final Act by the Senate. Specifically, you inquire whether the proposed composition of the said Commission "has any constitutional implications on the principle of separation of powers considering the fact that membership comes from two co-equal branches of government". You note that past similar bodies with executive and legislative memberships have been constituted citing, inter alia, the Joint Legislative Executive Development Advisory Council created under R.A. No. 7640 and the ASEAN Free Trade Area (AFTA) Advisory Commission created under E.O. No. 38, implying that there is no legal impediment to establishing the proposed WTO/AFTA Advisory Commission. After a close review of the provisions of the proposed Executive Order, we entertain doubts as to its legal propriety not because of its composition but because of the nature of some of its proposed functions. There are indeed precedents, not only in the Philippines, but also in the United States on the establishment of government bodies whose memberships come from the legislative and executive branches. In the United States, there were the Warren Commission and the Nuremberg Commission; in the Philippines, we have, in addition to those you cited in your basic letter, the Joint-Legislative-Executive Tax Commission and the Coordinating Council for the Philippine Assistance Program. In all of these bodies, however, the respective functions of the legislators-members were deemed to be in aid of legislation, aside from the fact that their positions therein were merely ad hoc or temporary and, therefore, do not come within the constitutional prohibition barring members of Congress from holding other positions in the government (Art., VI, Sec. 13, 1987 Constitution). In this case, while the function of the proposed WTO/AFTA Advisory Commission would include reviewing and evaluating existing laws and economic policies, conducting researches and studies on issues with economic implications; identifying private sector initiatives and technological innovations functions which may be deemed incidental to the lawmaking functions of the legislators-members, we find the other functions of the proposed Commission which are intended to push for or assure the ratification of the Uruguay Round Final Act, legally inappropriate for the legislators-members to discharge, since it could affect, and might pre-empt, the constitutional prerogative of the Senate to ratify the said agreement pursuant to Section 21, Article VII of the 1987 Constitution. In this regard, the proposed Executive Order might be constitutionally objectionable. Furthermore, the proposal would "create" the WTO/AFTA Advisory Commission (see Sec. 1). The term "create" should advisedly be replaced with the word "organized", "constituted" or "established", consistent with the principle that an Executive Order cannot be the source of the legal creation of an administrative body because only Congress can create such bodies. Finally, the repealing clause (Sec. 11) of the proposal should omit mention of "laws" since an Executive Order, which is not a law, cannot repeal laws. Please be guided accordingly. Very truly yours, (SGD.) RAMON J. LIWAG Acting Secretary