puno concurring (macalintal v. comelec)

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  • 8/11/2019 PUNO Concurring (Macalintal v. COMELEC)



    Does Congress, through the Joint Congressional Oversight Committee created in section 25 of Rep. Act No.9!9, have the po"er to revie", revise, amend and approve the #mplementing Rules and Regulations that theCommission on $lections shall promulgate "ithout violating the independence of the CO%$&$C under section ,Article #'(A of the Constitution)

    Both the Commission on Elections (COMELEC) and the Office of the Solicitor General (OSG) agree with the petitionerthat sections 19 and 2 of !ep" #ct $o" 91%9 are &nconstit&tional on the gro&nd that the' iolate the independence of theCOMELEC"*+,-he imp&gned proisions re.&ire the p&/lic respondent COMELEC to s&/mit its 0mplementing !&les and!eg&lations to the oint Congressional Oersight Committee for reiew reision amendment or approal viz3

    Sec. 19. Authority of the Commission to Promulgate Rules.- The Commission shall issue the necessary rules and regulations toeffectively implement the provisions of this Act within sixty (60) days from effectivity of this Act. The Implementing Rules andRegulations shall be submitted to the Joint !ersight Committee created by !irtue of this Act for prior appro!al.

    n the formulation of the rules and regulations! the Commission shall coordinate with the "epartment of #oreign Affairs! "epartment of$a%or and &mployment! 'hilippine verseas &mployment Administration! verseas or*ers+ elfare Administration and theCommission on #ilipino verseas. ,on-government organiations and accredited #ilipino organiations or associations a%road shall %econsulted.

    Sec. "#. Joint Congressional !ersight Committee.- A /oint Congressional versight Committee is here%y created! composed of theChairman of the enate Committee on Constitutional Amendments! 1evision of Codes and $aws! and seven (2) other enators designated%y the enate 'resident! and the Chairman of the 3ouse Committee on uffrage and &lectoral 1eforms! and seven (2) other mem%ers ofthe 3ouse of 1epresentatives designated %y the pea*er of the 3ouse of 1epresentatives4Provided! That! of the seven (2) mem%ers to %edesignated %y each 3ouse of Congress! four (5) should come from the ma/ority and the remaining three () from the minority.

    The 7oint Congressional versight Committee shall have the power to monitor and evaluate the implementation of this Act. It shallre!ie$% re!ise% amend and appro!e the Implementing Rules and Regulations promulgated by the Commission. (emphases supplied)

    4&/lic respondents aer that as an independent constit&tional /od' the COMELEC is not &nder the control of thee5ec&tie or the legislatie*6,in the performance of its constit&tional f&nction to 7enforce and administer all laws andreg&lations relatie to the cond&ct of an election"8*,4&/lic respondent COMELEC asserts that its right to form&late r&lesand reg&lations flows from its power to enforce and administer election laws and reg&lations"*, -his power is e5cl&sie andits e5ercise is not s&/:ect to the reiew reision or approal of Congress" **,-he Solicitor General shares the same iewthat the role of the legislat&re ends with the finished tas; of legislation" *%,

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    of the iss&e entails a two?tiered disc&ssion of the following3 (1) whether Congress has oersight f&nctions oer constit&tional/odies li;e the COMELEC@ and (2) ass&ming that it has whether Congress e5ceeded the permissi/le e5ercise of itsoersight f&nctions"

    Before proceeding we m&st foc&s on the e5act place of the power of congressional oersight in o&r constit&tionalcanass" -his will inole an e5position of two principles /asic to o&r constit&tional democrac'3 separation of powers andchec;s and /alances"

    eparation of po"ers and chec/s and alances

    -he principle of separation of powers preents the concentrationof legislatie e5ec&tie and :&dicial powers to asingle /ranch of goernment /' deftl' allocating their e5ercise to the three /ranches of goernment" -his principle dates /ac;from the time of Aristotle%1,/&t the 7modern8 concept owes its origin in the seenteenth and eighteenth cent&r' writings ofpolitical philosophers incl&ding &oc/eand%ontes0uieu" -heir writings were mainl' reactions to the r&ino&s str&ggle forpower /' the monarchs and the parliaments in Aestern E&rope"%2,

    0n his econd 1reatise of Civil overnment%+,ohn Loc;e adocated the proper diision of the legislatiee5ec&tie and federatie powers of the commonwealth"

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    legislative and executive powers! or either of them4 to the end that it may %e a government of laws and not of men.@:B

    -he 3!3 4.. Constitutiondid not contain a similar proision li;e that fo&nd in the Massach&setts Constit&tion or an'principle proclaiming the adherence of the Dramers to the principle of separation of powers" B&t legal scholars are of the iewthat the Dramers essentiall' followed Montes.&ie&s recommendation for the diision of powers noting that the "S"Constit&tion ests 7all legislatie powers8 in the Congress of the nited States9+,the 7e5ec&tie power8 in the 4resident96,and the 7:&dicial power8 in one S&preme Co&rt and in s&ch inferior co&rts as Congress ma' proide"9,

    -hese legal scholars also note that the "S" Constit&tion allows the 7sharing8 of the three great powers /etween andamong the three /ranches" -he 4resident for instance shares in the e5ercise of legislatie power thro&gh his eto powerand the co&rts thro&gh their power to ma;e r&les of :&dicial proced&re and especiall' thro&gh their right to interpret laws andinalidate them as &nconstit&tional" Congress shares in the e5ercise of e5ec&tie power thro&gh its confirmation ofappointments and assent to treaties and in the :&dicial power thro&gh its power to create inferior co&rts and reg&late then&m/er and pa' of :&dges"9, -h&s the' post&late that the Dramers esta/lished a goernment g&ided not /' strictseparation of powers /&t one of chec/s and alancesto preent the separate /ranches from 7r&nning wild8 and to aertdeadloc;s and /rea;downs viz3

    The #ramers expected the %ranches to %attle each other to ac=uire and defend power. To prevent the supremacy of one %ranch over anyother in these %attles! powers were mixed< each %ranch was granted important power over the same area of activity. The >ritish andConference experience has led the #ramers to avoid regarding controversy %etween the %ranches as a conflict %etween good and evil orright or wrong! re=uiring definitive! institutionally permanent resolution. 1ather! they viewed such conflict as an expression of theaggressive and perverse part of human nature that demanded outlet %ut has to %e *ept from finding lasting resolution so that li%erty could%e reserved.@2B

    Een then some legal l&minaries were of the iew that the concept of chec;s and /alances is diametricall' opposed tothe principle of separation of powers" ames Madison howeer e5plained that Montes.&ie&s concept of separation ofpowers did not re.&ire a strict diision of f&nctions among the three /ranches of goernment" Madison defended theConstit&tion as haing s&fficient diision of f&nctions among the three /ranches of goernment to aoid the consolidation ofpower in an' one /ranch and also stressed that a rigid segregation of the three /ranches wo&ld &ndermine the p&rpose ofthe separation doctrine"9%,,-h&s3

    &ach department of the government has exclusive cogniance of the matters within its /urisdiction! and is supreme within its own sphere.>ut it does not follow from the fact that the three powers are to %e *ept separate and distinct that the Constitution intended them to %ea%solutely unrestrained and independent of each other. The Constitution has provided for an ela%orate system of chec*s and %alances to

    secure coordination in the wor*ings of the various departments of the government. #or example! the Chief &xecutive under ourConstitution is so far made a chec* on the legislative power that this assent is re=uired in the enactment of laws. This! however! is su%/ectto the further chec* that a %ill may %ecome a law notwithstanding the refusal of the 'resident to approve it! %y a vote of two-thirds orthree-fourths! as the case may %e! of the ,ational Assem%ly. The 'resident has also the right to convene the Assem%ly in special sessionwhenever he chooses. n the other hand! the ,ational Assem%ly operates as a chec* on the &xecutive in the sense that its consent throughits Commission on Appointments is necessary in the appointment of certain officers< and the concurrence of a ma/ority of all its mem%ersis essential to the conclusion of treaties. #urthermore! in its power to determine what courts other than the upreme Court shall %eesta%lished! to define their /urisdiction and to appropriate funds for their support! the ,ational Assem%ly controls the /udicial departmentto a certain extent. The Assem%ly also exercises the /udicial power of trying impeachments. And the /udiciary in turn! with the upremeCourt as the final ar%iter! effectively chec*s the other departments in the exercise of its power to determine the law! and hence to declareexecutive and legislative acts void if violative of the Constitution.@802B

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    0n lanas v. il1>%,&stice La&rel f&rther disc&ssed the intricate interpla' of the principle of separation of powers andchec;s and /alances viz3

    The classical separation of governmental powers! whether viewed in the light of political philosophy of Aristotle! $oc*e or 9ontes=uieu!or to the postulations of 9a%ini! 9adison! or 7efferson! is a relative theory of government. There is more truism and actuality ininterdependence than in independence and separation of powers! for as o%served %y 7ustice 3olmes in a case of 'hilippine origin! wecannot lay down with mathematical precision and divide the %ranches in watertight compartments? not only %ecause the ordinances ofthe Constitution do not esta%lish and divide fields of %lac* and white? %ut also %ecause even more specific to them are found to terminatein a penum%ra shading gradually from one extreme to the other.?@80B

    0t is no" e+onddeatethat the principle of separation of powers (1) allows the 7lending8 of some of the e5ec&tielegislatie or :&dicial powers in one /od'@ (2) does not preent one /ranch of goernment from in.&iring into the affairs of theother /ranches to maintain the /alance of power@ (+) ut ensures that there is no encroachment on matters "ithin thee-clusive *urisdiction of the other ranches"

    Dor its part this Courtchec;s the e5ercise of power of the other /ranches of goernment thro&gh :&dicial reiew" 0t isthe final ar/iter of disp&tes inoling the proper allocation and e5ercise of the different powers &nder the Constit&tion" -h&s3

    The Constitution is a definition of the powers of government. ho is to determine the nature! scope and extent of such powersD TheConstitution itself has provided for the instrumentality of the /udiciary as the rational way. And when the /udiciary mediates to allocateconstitutional %oundaries! it does not assert any superiority over the other departments< it does not in reality nullify or invalidate an act ofthe legislature! %ut only asserts the solemn and sacred o%ligation assigned to it %y the Constitution to determine conflicting claims ofauthority under the Constitution and to esta%lish for the parties in an actual controversy the rights which that instrument secures and

    guarantees to them. This is in truth all that is involved in what is termed E/udicial supremacyE which properly is the power of /udicialreview under the Constitution.@880B

    -he power of :&dicial reiew is howeer limited to 7act&al cases and controersies to /e e5ercised after f&ll opport&nit'of arg&ment /' the parties and limited f&rther to the constit&tional .&estion raised or the er' lis motapresented8 for 7an'attempt at a/straction co&ld onl' lead to dialectics and /arren legal .&estions and to sterile concl&sions of wisdom :&stice ore5pedienc' of legislation"8111,Co&rts are also en:oined to accord the pres&mption of constit&tionalit' to legislatieenactments 7not onl' /eca&se the legislat&re is pres&med to a/ide /' the Constit&tion /&t also /eca&se the :&diciar' in thedetermination of act&al cases and controersies m&st reflect the wisdom and :&stice of the people as e5pressed thro&gh theirrepresentaties in the e5ec&tie and legislatie departments of the goernment"8112,

    -he role of the :&diciar' in mapping the metes and /o&nds of powers of the different /ranches of goernment wasredefined in the 19%* Constit&tion which e-panded the *urisdiction of this Courtto incl&de the determination of 7graea/&se of discretion amo&nting to lac; or e5cess of :&risdiction on the part of an' /ranch or instr&mentalit' of theGoernment"811+,-he e5pansion was made /eca&se of the dissatisfaction with the practice of this Co&rt in fre.&entl'ino;ing the 7political .&estion8116,doctrine d&ring the period of martial law to dodge its d&t'"11, Be that as it ma' thee5panded power 7definitel' does not do awa' with the political .&estion doctrine itself"811,

    -h&s in %arcos v. %anglapus11*,the Co&rt held3

    Fnder the Constitution! /udicial power includes the duty to determine whether or not there has %een a grave a%use of discretion amountingto lac* or excess of /urisdiction on the part of any %ranch or instrumentality of the Government. @Art. ;! ec. 8.B Given this wording!we cannot agree with the olicitor General that the issue constitutes a political =uestion which is %eyond the /urisdiction of the Court todecide.

    The present Constitution limits resort to the political =uestion doctrine and %roadens the scope of /udicial in=uiry into areas which theCourt! under previous constitutions! would have normally left to the political departments to decide. >ut nonetheless there remain issues%eyond the CourtHs /urisdiction the determination of which is exclusively for the 'resident! for Congress or for the people themselvesthrough a ple%iscite or referendum. e cannot! for example! =uestion the 'residentHs recognition of a foreign government! no matter howpremature or improvident such action may appear. e cannot set aside a presidential pardon though it may appear to us that the%eneficiary is totally undeserving of the grant. ,or can we amend the Constitution under the guise of resolving a dispute %rought %eforeus %ecause the power is reserved to the people.@88IB

    Since then the Co&rt has &sed its e5panded power to chec; acts of the ,and een of independent /odies s&ch as the Electoral -ri/&nal121,the Commission on Elections122,and the CiilSerice Commission"12+,

    Congresschec;s the other /ranches of goernment primaril' thro&gh its law ma;ing powers" Congress can createadministratie agencies define their powers and d&ties fi5 the terms of officers and their compensation" 126,0t can alsocreate co&rts define their :&risdiction and reorganie the :&diciar' so long as it does not &ndermine the sec&rit' of ten&re ofits mem/ers"12,1he po"er of Congress does not end "ith the finished tas/ of legislation " Concomitant "ith its

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    principal po"er to legislate is the au-iliar+ po"er to ensure that the la"s it enacts are faithfull+ e-ecuted " #s wellstressed /' one scholar the legislat&re 7fi5es the main lines of s&/stantie polic' and is entitled to see that administratiepolic' is in harmon' with it@ it esta/lishes the ol&me and p&rpose of p&/lic e5pendit&res and ens&res their legalit' andpropriet'@ it m&st /e satisfied that internal administratie controls are operating to sec&re econom' and efficienc'@ and itinforms itself of the conditions of administration of remedial meas&re"8 12,

    Concept and ases of congressional oversight

    Broadl' defined the po"er of oversightem/races all actiities &nderta;en /' Congress to enhance its &nderstandingof and infl&ence oer the implementationof legislation it has enacted"12*,Clearl' oersight concerns post(enactmentmeas&res &nderta;en /' Congress3 (a) to monitor /&rea&cratic compliance with program o/:ecties (/) todetermine whether agencies are properl' administered (c) to eliminate e5ec&tie waste and dishonest' (d) to preente5ec&tie &s&rpation of legislatie a&thorit' and (d) to assess e5ec&tie conformit' with the congressional perception ofp&/lic interest"12%,

    1he po"er of oversight has een held to e intrinsic in the grant of legislative po"er itself and integral to thechec/s and alances inherent in a democratic s+stem of government"129,#mong the most .&oted :&stifications for thispower are the writings of ohn St&art Mill and Aoodrow Ailson" 0n his Consideration of Representative overnment1+>,Mill wrote that the d&t' of the legislat&re is 7to watch and control the goernment@ to throw the light of p&/licit' on itsacts@ to compel a f&ll e5position and :&stification of all of them which an' one considers o/:ectiona/le@ and to cens&re them iffo&nd condemna/le"81+1,Ailson went one step farther and opined that the legislat&res informing f&nction sho&ld /epreferred to its legislatie f&nction" ,

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    den'ing them an' appropriation"16+,

    7ut legislative scrutin+ does not end in udget hearings. Congress can as/ the heads of departments toappear efore and e heard + either atasang 'am%ansa may provide! whichshall %e included in its agenda! during which the 'rime 9inister! the "eputy 'rime 9inister or any 9inister may %e re=uired to appearand answer =uestions and interpellations %y 9em%ers of the >atasang 'am%ansa. ritten =uestions shall %e su%mitted to the pea*er atleast three days %efore a scheduled =uestion hour. nterpellations shall not %e limited to the written =uestions! %ut may cover matters

    related thereto. The agenda shall specify the su%/ects of the =uestion hour. hen the security of the tate so re=uires and the 'resident sostates in writing! the =uestion hour shall %e conducted in executive session.

    -he 7.&estion ho&r8 was retained despite the reersion to the presidential s'stem in 19%1" F&ring the deli/erations ofthe 9!3 Constitution the report of the legislatie committee called for the adoption of the 7.&estion ho&r8 for the followingreasons3

    ts purposes are to elicit concrete information from the administration! to re=uest its intervention! and when necessary! to exposea%uses and see* redress. The procedure provides the opposition with a means of discovering the government+s wea* points and %ecause ofthe pu%licity it generates! it has a salutary influence on the administration. n the whole! %ecause of the detailed facts elicited during theinterpellation or in the written answers! it will help mem%ers to understand the complicated su%/ect matter of %ills and statutory measureslaid %efore the Assem%ly. t may %e added that the popularity of this procedure can %e attri%uted to the fact that in ma*ing use of his rightto as* =uestions! the mem%er is a completely free agent of the people. The only limits on his actions are the rules governing theadmissi%ility of =uestions concerned with matters of form and not with the merits of the issue at hand. The fact that we also impose a timelimit means that the government is o%liged to furnish the information as*ed for and this o%ligation is what gives the procedure its real


    -his proposal was igoro&sl' opposed on the gro&nd of separation of powers" CO$COM Felegate Christian Monsodpointed o&t that the proision was historicall' intended to appl' to mem/ers of the legislat&re who are in the e5ec&tie /rancht'pical in a parliamentar' form of goernment" 0n fine the 7.&estion ho&r8 was cond&cted on a peer /asis" B&t since thedelegates decided to adopt a presidential form of goernment ca/inet mem/ers are p&rel' alter egos of the 4resident andare no longer mem/ers of the legislat&re" -o re.&ire them to appear /efore the legislators and acco&nt for their actions 7p&tsthem on &ne.&al terms with the legislators8 and 7wo&ld iolate the separation of powers of the e5ec&tie and the legislatie/ranches"812,Felegate Monsod howeer recognied that a mechanism sho&ld /e adopted where Ca/inet mem/ers ma'/e s&mmoned and ma' een on their own initiatie appear /efore the legislat&re" -his he said wo&ld promote coordinationwitho&t s&/ordinating one /od' to another"

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    #fter m&ch deli/eration delegate Monsods s&ggestion preailed" -h&s the 4resident ma' or ma' not consent to theappearance of the heads of departments@ and een if he does he ma' re.&ire that the appearance /e in e5ec&tie session"!eciprocall' Congress ma' ref&se the initiatie ta;en /' a department secretar'"

    &i/e"ise, Congress e-ercises legislative scrutin+ thru its po"er of confirmation" Section 1% #rticle =0 of the 19%*Constit&tion proides for the organiation of a Commission on #ppointments consisting of the 4resident of the Senate as exofficioChairman twele Senators and twele mem/ers of the when no proision 'et e5isted granting Congress thepower to cond&ct inestigation" 0n the said case the Senate passed !esol&tion $o"% creating a special committee toinestigate the B&enaista and the -am/o/ong Estates Feal wherein the goernment was allegedl'defra&ded 4>>>>>>">>" -he special committee e5amined ario&s witnesses among whom was ean L" #rna&lt" F&eto the ref&sal of #rna&lt to answer a .&estion which he claimed to /e 7self?incriminator'81*>,the Senate passed a

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    resol&tion citing #rna&lt in contempt" -he Senate committed him to the c&stod' of the Sergeant?at?#rms and ordered hisimprisonment &ntil he shall hae answered the .&estion" #rna&lt filed a petition /efore this Co&rt contending that (a) theSenate has no power to p&nish him for contempt@ (/) the information so&ght to /e o/tained /' the Senate is immaterial andwill not sere an' intended or p&rported legislation@ and (c) the answer re.&ired of him will incriminate him"

    pholding the power of the Senate to p&nish #rna&lt for contempt the Co&rt r&led as follows3

    Although there is no provision in the Constitution expressly investing either 3ouse of Congress with power to ma*e investigations andexact testimony to the end that it may exercise its legislative functions advisedly and effectively! such power is so far incidental to thelegislative function as to %e implied. n other words! the power of in=uiry K with process to enforce it K is an essential and appropriateauxiliary to the legislative function. A legislative %ody cannot legislate wisely or effectively in the a%sence of information respecting theconditions which legislation is intended to affect or change< and where the legislative %ody does not itself possess the re=uisiteinformation K which is not fre=uently true K recourse must %e had to others who do possess it. &xperience has shown that mere re=uestsfor such information are often unavailing! and also that information which is volunteered is not always accurate or complete< so somemeans of compulsion is essential to o%tain what is needed The fact that the Constitution expressly gives the Congress the power topunish its 9em%ers for disorderly %ehaviour! does not %y necessary implication exclude the power to punish for contempt any otherperson.@828B

    -he Co&rt f&rther r&led that the power of the Senate to p&nish a witness for contempt does not terminate &pon thead:o&rnment of the session"1*2, 0t held that the inestigation was within the power of the Senate since the 7transactioninoled a .&estiona/le and allegedl' &nnecessar' and irreg&lar e5pendit&re of no less than 4>>>>>>">> of p&/lic f&ndsof which the Congress is the constit&tional g&ardian"8 1*+,-he inestigation was also fo&nd to /e 7in aid of legislation"8 #sres&lt of the 'et &nfinished inestigation the Co&rt noted that the inestigating committee has recommended and the Senate

    has approed three /ills"1*6,

    -he Co&rt f&rther held that once an in.&ir' is admitted or estalishedto /e within the :&risdiction of a legislatie /od'to ma;e the inestigating committee has the power to re.&ire a witness to answer an' .&estion pertinent to that in.&ir's&/:ect to his constit&tional right against self?incrimination" -he in.&ir' m&st /e material or necessar' to the e5ercise of apower in it ested /' the Constit&tion" >>>">> to a representatie of B&rt in compliance with the latters er/al instr&ction there is therefore no /asis &ponwhich to s&stain his claim that to reeal the name of that person wo&ld incriminate him"1**, 0t held that it is not eno&gh forthe witness to sa' that the answer will incriminate him for he is not the sole :&dge of his lia/ilit' th&s3

    @TBhe danger of self-incrimination must appear reasona%le and real to the court! from all the circumstances and from the whole case! aswell as from his general conception of the relations of the witness The fact that the testimony of the witness may tend to show that hehas violated the law is not sufficient to entitle him to claim the protection of the constitutional provision against self-incrimination! unlesshe is at the same time lia%le to prosecution and punishment for such violation. The witness cannot assert his privilege %y reason of somefanciful excuse! for protection against an imaginary danger! or to secure immunity to a third person. @82IB

    As no" contained in the 9!3 Constitution the power of Congress to inestigate is circ&mscri/ed /' threelimitations namel'3 (a) it m&st /e in aid of its legislatie f&nctions (/) it m&st /e cond&cted in accordance with d&l'p&/lished r&les of proced&re and (c) the persons appearing therein are afforded their constit&tional rights"

    0n 7eng@on, Jr. v. enate 7lue Rion Committee1*9,this Co&rt held that the senate committee e5ceeded thepermissi/le e5ercise of legislatie inestigation" -he case started with a speech /' Senator Enrile s&ggesting the need todetermine possi/le iolation of law in the alleged transfer of some properties of former #m/assador Ben:amin 7Ho;o'8!om&alde to the Lopa Gro&p of Companies" -he Senate Bl&e !i//on Committee decided to inestigate the transactionp&rportedl' in aid of legislation" Ahen the Bl&e !i//on Committee s&mmoned the petitioners to appear the' as;ed thisCo&rt for a restraining order on the gro&nd among others that the inestigation was not in aid of legislation and that theirappearance /efore the inestigating /od' co&ld pre:&dice their case /efore the Sandiganbayan" !&ling in faor of thepetitioner we held as follows3

    ;erily! the speech of enator &nrile contained no suggestion of contemplated legislation< he merely called upon the enate to loo* into apossi%le violation of ec. J of 1A ,o. 08! otherwise *nown as The Anti-Graft and Corrupt 'ractices Act.? n other words! the purposeof the in=uiry to %e conducted %y respondent >lue 1i%%on Committee was to find out whether or not the relatives of 'resident A=uino!particularly! 9r. 1icardo $opa! had violated the law in connection with the alleged sale of the 6 or corporations %elonging to

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    >en/amin Lo*oy? 1omualde to the $opa Group. There appears to %e! therefore! no intended legislation involved.

    -he cond&ct of legislatie inestigation is also s&/:ect to the r&les of each ,Ahile /oth congressional scr&tin' andinestigation inole in.&ir' into past e-ecutiveranchactions in order to infl&ence f&t&re e5ec&tie /ranchperformance congressional supervision allo"s Congress to scrutini@e the e-ercise of delegated la"(ma/ingauthorit+, and permits Congress to retain part of that delegated authorit+"

    Congress e-ercises supervision over the e-ecutive agencies through its veto po"er. #t t+picall+ utili@es vetoprovisions "hen granting the resident or an e-ecutive agenc+ the po"er to promulgate regulations "ith the forceof la". 1hese provisions re0uire the resident or an agenc+ to present the proposed regulations to Congress, "hichretains a :right; to approve or disapprove an+ regulation efore it ta/es effect " S&ch legislatie eto proisions &s&all'

    proide that a proposed reg&lation will /ecome a law after the e5piration of a certain period of time onl' if Congress does notaffirmatiel' disapproe of the reg&lation in the meantime" Less fre.&entl' the stat&te proides that a proposed reg&lationwill /ecome law if Congress affirmatiel' approes it"191,

    -he legislative vetowas deeloped initiall+in response to the pro/lems of reorganiing the "S" Goernment

    str&ct&re d&ring the Great Fepression in earl' 2> thcent&r'" Ahen "S" 4resident

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    times"196,Oer the 'ears the proision was &sed e5tensiel'" =ario&s #merican 4residents s&/mitted to Congress some11 !eorganiation 4lans 2+ of which were disapproed p&rs&ant to legislatie eto proisions"19,

    F&ring Aorld Aar 00 Congress and the 4resident applied the legislatie eto proced&re to resole the delegationpro/lem inoling national sec&rit' and foreign affairs" -he legislatie eto offered the means /' which Congress co&ldconfer additional a&thorit' to the 4resident while presering its own constit&tional role" F&ring this period Congress enactedoer +> stat&tes conferring powers on the E5ec&tie with legislatie eto proisions"19,

    #fter Aorld Aar 00 legislatie eto proisions hae /een inserted in laws delegating a&thorit' in new areas ofgoernmental inolement incl&ding the space program international agreements on n&clear energ' tariff arrangementsand ad:&stment of federal pa' rates"19*,0t has also fig&red prominentl' in resoling a series of ma:or constit&tional disp&tes/etween the 4resident and Congress oer claims of the 4resident to /road impo&ndment war and national emergenc'powers"19%,Oerall 29 congressional eto?t'pe proced&res hae /een inserted in 19 different stat&tes since 19+2 whenthe first eto proision was enacted into law"199,

    upporters of legislative vetostress that it is necessar' to maintain the /alance of power /etween the legislatie andthe e5ec&tie /ranches of goernment as it offers lawma;ers a wa' to delegate ast power to the e5ec&tie /ranch or toindependent agencies while retaining the option to cancel partic&lar e5ercise of s&ch power witho&t haing to pass newlegislation or to repeal e5isting law"2>>,-he' contend that this arrangement promotes democratic acco&nta/ilit' as itproides legislatie chec; on the actiities of &nelected administratie agencies"2>1,One proponent th&s e5plains3

    t is too late to de%ate the merits of this delegation policy4 the policy is too deeply em%edded in our law and practice. t suffices to say thatthe complexities of modern government have often led Congress-whether %y actual or perceived necessity- to legislate %y declaring %roadpolicy goals and general statutory standards! leaving the choice of policy options to the discretion of an executive officer. Congressarticulates legislative aims! %ut leaves their implementation to the /udgment of parties who may or may not have participated in or agreedwith the development of those aims. Conse=uently! a%sent safeguards! in many instances the reverse of our constitutional scheme could %eeffected4 Congress proposes! the &xecutive disposes. ne safeguard! of course! is the legislative power to enact new legislation or tochange existing law. >ut without some means of overseeing post enactment activities of the executive %ranch! Congress would %e una%leto determine whether its policies have %een implemented in accordance with legislative intent and thus whether legislative intervention isappropriate.@:0:B

    0ts opponents howeer critici@e the legislative vetoas &nd&e encroachment &pon the e5ec&tie prerogaties" -he'&rge that an' post?enactment meas&res &nderta;en /' the legislatie /ranch sho&ld /e limited to scr&tin' and inestigation@an' meas&re /e'ond that wo&ld &ndermine the separation of powers g&aranteed /' the Constit&tion" 2>+,-he' contend thatlegislatie eto constit&tes an impermissi/le easion of the 4residents eto a&thorit' and intr&sion into the powers ested inthe e5ec&tie or :&dicial /ranches of goernment"2>6,4roponents co&nter that legislatie eto enhances separation ofpowers as it preents the e5ec&tie /ranch and independent agencies from acc&m&lating too m&ch power" 2>,-he' s&/mit

    that reporting re.&irements and congressional committee inestigations allow Congress to scr&tinie onl' the e5ercise ofdelegated law?ma;ing a&thorit'" -he' do not allow Congress to reiew e5ec&tie proposals /efore the' ta;e effect and the'do not afford the opport&nit' for ongoing and /inding e5pressions of congressional intent"2>,0n contrast legislatie etopermits Congress to participate prospectiel' in the approal or disapproal of 7suordinate la"8 or those enacted /' thee5ec&tie /ranch p&rs&ant to a delegation of a&thorit' /' Congress" -he' f&rther arg&e that legislatie eto 7is a necessar'response /' Congress to the accretion of polic' control /' forces o&tside its cham/ers"8 0n an era of delegated a&thorit' the'point o&t that legislatie eto 7is the most efficient means Congress has 'et deised to retain control oer the eol&tion andimplementation of its polic' as declared /' stat&te"82>*,

    0n #mmigration and Naturali@ation ervice v. Chadha2>%,the "S" S&preme Co&rt resoled the alidit' of legislatieeto proisions" -he case arose from the order of the immigration :&dge s&spending the deportation of Chadha p&rs&ant to J266(c)(1) of the 0mmigration and $ationalit' #ct" -he nited States

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    the purpose and effect of altering the legal rights! duties! and relations of persons! including the Attorney General! &xecutive >ranchofficials and Chadha! all outside the $egislative >ranch. ection :55(c)(:) purports to authorie one 3ouse Congress to re=uire theAttorney General to deport an individual alien whose deportation otherwise would %e canceled under M :55. The one-3ouse veto operatedin these cases to overrule the Attorney General and mandate Chadha+s deportation< a%sent the 3ouse action! Chadha would remain in theFnited tates. Congress has acted and its action altered Chadha+s status.

    The legislative character of the one-3ouse veto in these cases is confirmed %y the character of the congressional action it supplants.,either the 3ouse of 1epresentatives nor the enate contends that! a%sent the veto provision in M :55(c)(:)! either of them! or %oth ofthem acting together! could effectively re=uire the Attorney General! in exercise of legislatively delegated authority! had determined the

    alien should remain in the Fnited tates. ithout the challenged provision in M :55(c)(:)! this could have %een achieved! if at all! only %ylegislation re=uiring deportation. imilarly! a veto %y one 3ouse of Congress under M :55(c)(:) cannot %e /ustified as an attempt atamending the standards set out in M :55(a)(8)! or as a repeal of M :55 as applied to Chadha. Amendment and repeal of statutes! no lessthan enactment! must conform with Art .

    The nature of the decision implemented %y one-3ouse veto in these cases further manifests its legislative character. After long experiencewith the clumsy! time-consuming private %ill procedure! Congress made a deli%erate choice to delegate to the &xecutive >ranch! andspecifically to the Attorney General! the authority to allow deporta%le aliens to remain in this country in certain specified circumstances. tis not disputed that this choice to delegate authority is precisely the *ind of decision that can %e implemented only in accordance with theprocedures set out in Art . "isagreement with the Attorney General+s decision on Chadha+s deportation- that is! Congress+ decision todeport Chadha- no less than Congress+ original choice to delegate to the Attorney General the authority to ma*e decision! involvesdeterminations of policy that Congress can implement in only one way< %icameral passage followed %y presentment to the 'resident.Congress must a%ide %y its delegation of authority until that delegation is legislatively altered or revo*ed. @:0B

    -wo wee;s after the Chadha decision the Co&rt &pheld in memorand&m decision two lower co&rt decisions

    inalidating the legislatie eto proisions in the $at&ral Gas 4olic' #ct of 19*%21>,and the Dederal -rade Commission0mproement #ct of 19%>"211,Dollowing this precedence lower co&rts inalidated stat&tes containing legislatie etoproisions altho&gh some of these proisions re.&ired the approal of /oth , -h&s the COMELEC was gien*udicial po"eraside from its traditionaladministratie and e5ec&tie f&nctions"

    1he trend to"ards strengthening the CO%$&$C continued "ith the 9!3 Constitution. -oda' the COMELECenforces and administers all laws and regulationsrelatie to the cond&ct of elections ple/iscites initiaties referenda andrecalls" Election contests inoling regional proincial and cit' electie officials are &nder its e5cl&sie original :&risdictionwhile all contests inoling electie m&nicipal and /aranga' officials are &nder its appellate :&risdiction"221,

    everal safeguards have een put in place to protect the independence of the CO%$&$C from un"arrantedencroachment + the other ranches of government.Ahile the 4resident appoints the Commissioners with theconc&rrence of the Commission on #ppointments the Commissioners are not acco&nta/le to the 4resident in the discharge

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    of their f&nctions" -he' hae a fi5ed ten&re and are remoa/le onl' /' impeachment"222,-o ens&re that not allCommissioners are appointed /' the same 4resident at an' one time a staggered s'stem of appointment was deised"-h&s of the Commissioners first appointed three shall hold office for seen 'ears three for fie 'ears and the last three forthree 'ears"22+, !eappointment and temporar' designation or appointment is prohi/ited"226, 0n case of acanc' theappointee shall onl' sere the &ne5pired term of the predecessor" 22, -he COMELEC is li;ewise granted the power toprom&lgate its own r&les of proced&re22,and to appoint its own officials and emplo'ees in accordance with Ciil Sericelaws"22*,

    1he CO%$&$C e-ercises 0uasi(*udicial po"ers ut it is not part of the *udiciar+" -his Co&rt has no general powerof s&perision oer the Commission on Elections e5cept those specificall' granted /' the Constit&tion"22%, #s s&ch the!&les of Co&rt are not applica/le to the Commission on Elections" 229,0n addition the decisions of the COMELEC arereiewa/le onl' /' petition for certiorari on gro&nds of grae a/&se of discretion2+>,viz3

    Conceived %y the charter as the effective instrument to preserve the sanctity of popular suffrage! endowed with independence and all theneeded concomitant powers! it is %ut proper that the Court should accord the greatest measure of presumption of regularity to its course ofaction and choice of means in performing its duties! to the end that it may achieve its designed place in the democratic fa%ric of ourgovernment. deally! its mem%ers should %e free from all suspicions of partisan inclinations! %ut the fact that actually some of them havehad stints in the arena of politics should not! unless the contrary is shown! serve as %asis for denying to its actuations the respect andconsideration that the Constitution contemplates should %e accorded to it! in the same manner that the upreme Court itself which fromtime to time may have mem%ers drawn from the political ran*s or even from the military is at all times deemed insulated from everydegree or form of external pressure and influence as well as improper internal motivations that could arise from such %ac*ground ororientation.

    e hold! therefore! that under the existing constitutional and statutory provisions! the certiorari /urisdiction of the Court over orders!

    rulings and decisions of the Comelec is not as %road as it used to %e and should %e confined to instances of grave a%use of discretionamounting to patent and su%stantial denial of due process. @:8B

    -he COMELEC is howeer su*ect to congressional scrutin+especiall' d&ring /&dget hearings" B&t Congresscannot a/olish the COMELEC as it can in case of other agencies &nder the e5ec&tie /ranch" -he reason is o/io&s" -heCOMELEC is not a mere creat&re of the legislat&re@ it owes its origin from the Constit&tion" D&rthermore the salar' of theChairman and the Commissioners cannot /e decreased d&ring their ten&re"2+2,En:o'ing fiscal a&tonom' the COMELEChas a wider discretion in the dis/&rsement and allocation of approed appropriations" -o safeg&ard the COMELEC from&nd&e legislatie interference the 19%* Constit&tion proides that its approed ann&al appropriations are to /e a&tomaticall'and reg&larl' released"2++,#lso Congress has no power to call the commissioners of the COMELEC to a .&estion ho&r"-he Constit&tion proides that the .&estion ho&r is limited to heads of departments &nder the E5ec&tie /ranch and thedeli/erations d&ring the drafting of the 19%* Constit&tion clearl' reflect this sentiment" Be that as it ma' the COMELEC ismandated to 7s&/mit to the 4resident and the Congress a comprehensie report on the cond&ct of each election ple/isciteinitiatie referend&m and recall"82+6,-his proision allows Congress to reiew and assess the effectiit' of election laws

    and if necessar' enact new laws or amend e5isting stat&tes"

    7e that as it ma+, # respectfull+ sumit that the legislative veto po"er or congressional oversight po"er overthe authorit+ of CO%$&$C to issue rules and regulations in order to enforce election la"s is unconstitutional"

    #s aforedisc&ssed the Constit&tion diided the powers of o&r goernment into three categories legislatie e5ec&tieand :&dicial" #ltho&gh not 7hermeticall' sealed8 from one another the powers of the three /ranches are f&nctionall'identifia/le" 0n this respect legislatie power is generall' e5ercised in the enactment of the law@ e5ec&tie power in itse5ec&tion@ and :&dicial power in its interpretation" 0n the a/sence of specific proision in the Constit&tion it is f&ndamental&nder the principle of separation of powers that one /ranch cannot e5ercise or share the power of the other"

    0n addition o&r Constit&tion created other officesaside from the e5ec&tie the legislatie and the :&diciar' and definedtheir powers and prerogaties" #mong these /odies especiall' created /' the Constit&tion itself is the COMELEC"

    1he CO%$&$C occupies a distinct place in our scheme of government" #s the constit&tional /od' charged withthe administration of o&r election laws it is endowed with independence in the e5ercise of someof its powers and thedischarge of its responsi/ilities" 1he po"er to promulgate rules and regulations in order to administer our electionla"s elongs to this categor+ of po"ers as this has een vested e-clusivel+ + the 9!3 Constitution to theCO%$&$C. #t cannot e trenched upon + Congress in the e-ercise of its oversight po"ers"

    0n allardo v. 1aamo, Jr"2+,this Co&rt traced the originof COMELECs power to prom&lgate r&les andreg&lations" #t "as initiall+ a statutor+ grant" Both the 19+ and the 19*+ Constit&tions did not e5plicitl' grant theCOMELEC the power to prom&lgate r&les and reg&lations" -he power was ested /' Congress to the COMELEC in theOmni/&s Election Code2+,viz3

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    ec. J:. 'owers and functions of the Commission on &lections.- n addition to the powers and functions conferred upon it %y theConstitution! the Commission shall have the exclusive charge of the enforcement and administration of all laws relative to the conduct ofelections for the purpose of ensuring free! orderly and honest elections! and shall4

    (c) 'romulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is re=uired to enforceand administer.

    -his statutor+ po"er "as elevated to a constitutional status with the insertion of the word 7reg&lations8 in section2(1) of #rticle 0K?C of the 19%* Constit&tion viz3

    hile under the 8J Constitution it had Eexclusive charge of the enforcement and administration of all laws relative to the conduct ofelections!E exercised Eall other functions . . . conferred upon it %y lawE and had the power to deputie all law enforcement agencies andinstrumentalities of the Government for the purpose of insuring free! orderly and honest elections! and under the 82 Constitution ithad! inter alia! the power to (a) E@&Bnforce and administer all laws relative to the conduct of electionsE (%) E@"Beputie! with the consentor at the instance of the 'rime 9inister! law enforcement agencies and instrumentalities of the Government! including the Armed #orcesof the 'hilippines! for the purpose of ensuring free! orderly! and honest elections!E and (c) E@'Berform such other functions as may %eprovided %y law!E it was not expressly vested with the power to promulgate regulations relative to the conduct of an election. That powercould only originate from a special law enacted %y Congress< this is the necessary implication of the a%ove constitutional provisionauthoriing the Commission to E@'Berform such other functions as may %e provided %y law.E

    The present Constitution! however! implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent

    portion of ection : of Article N-C thereof reads as follows4E&C. :. The Commission on &lections shall exercise the following powers and functions4

    (8) &nforce and administer all laws and regulationsrelative to the conduct of an election! ple%iscite! initiative! referendum! andrecall.E (emphasis supplied)

    5 5 5 5 5 5 5 5 5

    The word regulations is not found in either the 8J or 82 Constitutions. t is thus clear that its incorporation into the presentConstitution too* into account the CommissionHs power under the mni%us &lection Code (>atas 'am%ansa >lg. II8)! which was alreadyin force when the said Constitution was drafted and ratified! to4

    5 5 5 5 5 5 5 5 5

    E'romulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is re=uired to enforce

    and administer . . . .E

    3ence! the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission %roader andmore flexi%le powers to effectively perform its duties and to insulate it further from legislative intrusions. "ou%tless! if its rule-ma*ingpower is made to depend on statutes! Congress may withdraw the same at any time. ndeed! the present Constitution envisions a trulyindependent Commission on &lections committed to ensure free! orderly! honest! peaceful and credi%le elections! and to serve as theguardian of the peopleHs sacred right of suffrage K the citienryHs vital weapon in effecting a peaceful change of government and inachieving and promoting political sta%ility.@:2B

    1he elevation of the CO%$&$C>s po"er to promulgate rules and regulations in the 9!3 Constitution issuffused "ith significance"

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    canass the otes and proclaim the winning candidates for 4resident and =ice?4resident" 0 also conc&r with the ma:orit' withrespect to the &nconstit&tionalit' of sections 1*"1 19 and 2 of !ep" #ct $o" 91%9 s&/:ecting the implementation of oting /'mail and the 0mplementing !&les and !eg&lations of !ep" #ct $o" 91%9 to /e prom&lgated /' COMELEC to prior reiewand approal /' Congress"

    0 so ote"

    1,7#n #ct 4roiding for # S'stem of Oerseas #/sentee =oting /' &alified Citiens of the 4hilippines #/road #ppropriatingD&nds -herefor and for Other 4&rposes"8 !ep" #ct $o" 91%9 was signed into law /' 4resident Gloria Macapagal#rro'o on De/r&ar' 1+ 2>>+ and was p&/lished on De/r&ar' 1 2>>+ at aily TribuneandToday"

    @:B ec. :. The Congress shall provide a system for securing the secrecy and sanctity of the %allot as well as a system for a%sentee voting%y =ualified #ilipinos a%road.

    -he Congress shall also design a proced&re for the disa/led and the illiterates to ote witho&t the assistance of otherpersons" ntil then the' shall /e allowed to ote &nder e5isting laws and s&ch r&les as the Commission onElections ma' prom&lgate to protect the secrec' of the /allot"8

    @B ec. 8. uffrage may %e exercised %y all citiens of the 'hilippines not otherwise dis=ualified %y law! who are at least eighteen yearsof age! and who shall have resided in the 'hilippines for at least one year and in the place wherein they propose to vote for atleast six months immediately preceding the election. ,o literacy! property! or other su%stantive re=uirement shall %e imposed onthe exercise of suffrage.?

    @5B 88 C1A :: (80).

    @JB 'etition! pp. 2-.

    @6B "ecision! p. ::.


    @IBId.at :6.

    @B Supranote 5.

    @80B "ecision! p. :6.

    @88B >ernas! The 8I2 Constitution of the 1epu%lic of the 'hilippines4 A Commentary JI: (86).

    @8:B overeignty resides in the people and all government authority emanates from them.?

    @8B >rent O $evinson! 'rocess of Constitutional "emocracy4 Cases and 9aterials 80J (8:).

    @85B 9cCrary on &lections 80 (8I2).

    @8JB : $d. 1aymond! I (8 mith+s $eading Cases! p. 52:)! cited in 9cCrary! id. at .

    @86BId.at 80.

    @82B $ie%erman! The &volving Constitution J6.


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    @8B The last survival of religious test appears in the Constitution of outh Carolina (Article N)! in force from 822I to 820! limitingsuffrage to every free white man who ac*nowledges the %eing of a God! and %elieves in a future state of rewards andpunishments.? See9cCrary on &lections! supranote 85! f.n. 2 at J (8I2).

    @:0BId. at .

    @:8B $ie%erman! supranote 82.

    @::B Fnited tates v. Crui*shan*! : F.. J5:.


    @:5B The exclusion of women originated in the common-law idea of the merger of a married woman+s existence in that of her hus%and!and her unfitness %y nature for the occupation of civil life. See Cooley on Const. $imitation at I.

    @:JB 6: 'hil. 5J (86).

    @:6BId. at 5I! citations omitted.

    @:2B Aruego! The #raming of the 'hilippine Constitution :82 (86).

    @:IBId.at :86.

    @:BId.at :82.

    @0BId.at :8I-:8.

    @8BId.at ::J.

    @:BId.at ::J-::6.

    @B 8J C1A 2 (86J).

    @5BId.at .

    @JB $aurel! 'hilippine $aw on &lections : (850).

    @6BId.at 86.

    @2B Gallego v. ;era! 2 'hil. 5J! 5J (858).

    @IB Supranote 8 at 8066-8062.

    @B 1omualde-9arcos v. Commission on &lections! :5I C1A 00! : (8J).

    @50B See,uval v. Guray! J: 'hil. 65J (8:I).

    @58B ng v. 1epu%lic! 8 C1A 66! 6 (862).

    @5:B Supranote .

    @5BId.at :J.

    @55B >ernas! Constitutional 1ights and "emands4 ,otes and Cases JJI (88).

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    @5JB 1ecords at 5-J.

    @56BId.at 88-8:.

    @52B 1&C1" at J-6.

    @5IB :J Am 7ur :d! "omicil M 88 at 8.

    @5BId.at M 8:.

    @J0BId.at M 8.

    @J8B Supranote .

    @J:BId.at 8.

    @JB Supra note 5.

    @J5BId.at :2.

    @JJB See for instance! 1ep. Act ,o. 2860! section 50 (f)< >.'. >lg. J: ! sec. 5< >.'. >lg. II8! sec. 6I.

    @J6B "ecision! p. :J.

    @J2BId. at :6.

    @JIBId. at :I.

    @JB 1estatement of $aw (Conflict of $aws) :d! p. 52 (828).

    @60B >eale! A Treatise on the Conflict of $aws 8I (8J).

    @68B :J Am 7ur :d! ection 8J at 86.

    @6:B coles! et al., Conflict of $aws! rded.! p. :6I (:000).

    @6BId. at :6. See Graveson! 1eform of the $aw of "omicile! 20 $.P. 1ev. 5: (8J5)< At*in! The "omicile Act of 826! 2 ,.Q.F. $.1ev. :I6 (822)< 1afferty! "omicile! The ,eed for 1eform! 9an. $.7. :0 (822).

    @65B Supranote J at 2I.

    @6JBId.at 6:-6J.

    @66B coles! et al., supra note 6: at :5I-:5.

    @62B >eale! supranote 60 at 8I:.

    @6IBId. at 8I-8I5.

    @6B Supranote J at I8.

    @20BId. at I:.


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  • 8/11/2019 PUNO Concurring (Macalintal v. COMELEC)


    @6B Supranote I8 at :I-:.

    @2B A. ofaer! ar! #oreign Affairs! and Constitutional 'ower4 The rigins 60 (826).

    @IB 7. 9adison! The #ederalist ,o. 52 at 0:-0 (new American $i%rary &d. 868).

    @B 7. 9adison! The #ederalist ,o. 5I at 5 (>. right &d. 868).

    @800B 5 F J2! 6J (8J:).

    @808B 5:5 F 8 (826).

    @80:BId.at 8:8.

    @80B 5 F 5:J! 5 (822).


    @80JB 6 'hil. 8 (86).

    @806BId.at 8J6.

    @802BId.at 8J6-8J2.

    @80IB 62 'hil. 6: (8).

    @80BId.at 2-25.

    @880BAngara v. &lectoral Commission! supranote .



    @88B8I2 Const.! Article ;! sec. 8. n Sinon !. Ci!il Ser!ice Commission! :8J C1A 580 (8:)! the Court defined grave a%use ofdiscretion as such capricious and whimsical exercise of /udgment as is e=uivalent to lac* of /urisdiction. The a%use ofdiscretion must %e patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty en/oined %ylaw! or to act at all in contemplation of law! as where the power is exercised in an ar%itrary and despotic manner %y reason ofpassion or hostility.?

    @885BThe accepted meaning of Epolitical =uestionE is that Ewhere the matter involved is left to a decision %y the people acting in theirsovereign capacity or to the sole determination %y either or %oth the legislative or executive %ranch of the government! it is%eyond /udicial cogniance. Thus it was that in suits where the party proceeded against was either the 'resident or Congress! orany of its %ranches for that matter! the courts refused to act.E SeeA=uino v. 'once &nrile! J C1A 8I! 86 (825).

    @88JB 1&C1" at 55.

    @886B 1&C1" at 55. 'ertinent part of the deli%eration of the delegates of the Constitutional Commission are hereto =uoted! viz4

    D!" BE!$#S" On another point is it the intention of Section 1 to do awa' with the political .&estion doctrineN

    Mr" CO$CE4C0O$" $o"

    D!" BE!$#S" 0t is not"

    M!"CO$CE4C0O$" $o /eca&se wheneer there is an a/&se of discretion amo&nting to lac; of :&risdiction

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    D!" BE!$#S" So 0 am satisfied with the answer that it is not intended to do awa' with the political .&estion doctrine"

    M!" CO$CE4C0O$" $o certainl' not"

    Ahen this proision was originall' drafted it so&ght to define what is :&dicial power" B&t the Gentleman will notice it sa's7:&dicial power incl&des8 and the reason /eing that the definition that we might ma;e ma' not coer all possi/leareas"

    D!" BE!$#S" So it is not an attempt to sole the pro/lems arising from political .&estion doctrine"

    M!" CO$CE4C0O$" 0t definitel' does not eliminate the fact that tr&l' political .&estions are /e'ond the pale of :&dicial power"

    @882B822 C1A 66I (8I).

    @88IBId. at 6J-66.

    @88B>ondoc v. 'ineda! :08 C1A 2: (88).

    @8:0B Supranote .