Saturday, February 11, 2012

On Grave Abuse of Discretion and Betrayal of Public Trust

In trying to answer this question, we must look at two particular articles of the 1987 Constitution.

The judicial power is mentioned in 1987 Constitution Article VIII Section 1 
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. 
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
On the other hand, impeachment power is found in  1987 Constitution Article XI Section 2:
Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
Lately, I've been thinking a lot about the two phrases "grave abuse of discretion" and "betrayal of public trust" and the 1987 provisions quoted above. I think they are central to the current struggles involving all three branches of the the Government.

Notice that Betrayal of Public Trust is listed as an impeachable offense in 1987 Article Eleven on Accountability of Public Officers. Meanwhile,  Grave Abuse of Discretion is an offense whose existence is now the duty of the courts of justice to determine, under 1987 Article Eight on The Judicial Department.

Under the 1987 Constitution, the Impeachment Power is vested in the Congress (from initiation of a Case of Impeachment to its final and executory judgment after trial and decision by the Senate Impeachment Court).

Meanwhile the Judicial Power  is vested "one Supreme Court" and "in such lower courts as may be established by law." Significantly, Art.VIII Sec. 1.2 defines the Judicial Power as composed of two DUTIES of the COURTS OF JUSTICE: (1) to settle actual controversies involving rights that are legally demandable and enforceable -- which is the traditional role of judiciaries in free democratic countries. and (2) to determine the existence of "grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of government."

Above second duty of the "courts of justice" under the 1987 Constitution is often referred to as the EXPANDED CERTIORARI POWER of the Philippine Judiciary. The landmark Supreme Court Decision Francisco Jr. v. House (2003) quotes former Chief Justice Reynato Puno's description of this 1987 innovation:
          In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power.  For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts “x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”  This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also Xeroxed from the US Constitution or any foreign state constitution.  The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine.  Led by the eminent former Chief Justice Roberto Concepcion,  the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense.
It is very clear from Puno that Expanded Certiorari Power has become the Superman Suit of the Supreme Court, into which it changes from time to time, not to exercise judicial supremacy, but according to Justice Tinga in Francisco v. House:
      The term “judicial supremacy” was previously used in relation to the Supreme Court’s power of judicial review,[43] yet the phrase wrongly connotes the bugaboo of a judiciary supreme to all other branches of the government. When the Supreme Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy, but the supremacy of the Constitution.[44]  When this supremacy is invoked, it compels the errant branches of government to obey not the Supreme Court, but the Constitution.

1 comment:

honesto said...

Dean Bocobo in other words Article XI is powerless against Article VIII Section 1, when any of the justices of the supreme court will be impeached since all what the SC justice will do is petition to itself and invoke grave abuse of discretion by the house of representatives or senate! Judicial Review trumps Accountability of Public officials...