Grave Abuse Of Discretion 2i359

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‘Grave abuse of discretion’ is unreasonable standard Written by ALAN F. PAGUIA

Published on 04 December 2012

The 1987 Philippine Constitution, unlike its 1935, 1973, and 1986 versions, has introduced the standard known as grave abuse of discretion.

The law 1. According to the 1987 Charter, “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” (2nd par., Sec. 1, ART. VIII). 2. On February 11, 2010, the Supreme Court (SC) en banc ruled that: “Grave abuse of discretion is a concept that defies exact definition, but generally refers to „capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction‟; the abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty ened by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of ion and hostility. Mere abuse of discretion is not enough; it must be grave. Use of wrong or irrelevant considerations in deciding an issue is sufficient to taint a decision maker‟s action with grave abuse of discretion.” Query 3. Is the standard reasonable? It is respectfully submitted the answer is NO. Comments 4. What does „grave‟ mean? According to the SC, as applied to public officers, and as a ground for disciplinary action, grave misconduct refers to such misconduct which shows the elements of (a) corruption, (b) clear intent to violate the law, or (c) flagrant disregard of established rule (Landrito v. CSC, 223 SCRA 564, [1993]). 5. What does „abuse‟ mean? According to Black‟s Law Dictionary, it may be understood in two ways, either as a noun or as a verb. As a noun, it means “Everything which is contrary to good order established by usage. Departure from reasonable use; immoderate or improper use. Physical or mental maltreatment. Misuse. Deception.” As a verb, it means “To make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one‟s authority.” 6. What does „abuse of discretion‟ mean? According to Black‟s Law Dictionary, it is “synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that appellate court is of opinion that there was commission of an error of law by the trial court... it is any unreasonable, unconscionable and arbitrary action taken without proper consideration of facts and law pertaining to matters

submitted.” 7. In other words, mere abuse or abuse of discretion is ILLEGAL. The fact that the abuse is grave or not grave will not affect the ILLEGALITY of the abuse. Why? An illegal act is void from the beginning. According to the SC, void means “no legal existence” (Velasco v. Lopez, 1 Phil 720). Thus, in the eyes of the law, the illegal act creates no right in favor of the actor. 8. The Civil Code provides that: “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith” (Art. 19). Stated differently, CONDUCT is either (a) an exercise of a right, or (b) a performance of duty. MISCONDUCT is, therefore, ABUSE in the exercise of a right, or in the performance of a duty. 9. If „misconduct‟ constitutes a violation of Article 19 of the Civil Code, with greater reason would „grave misconduct‟ constitute such a violation. 10. The SC‟s definition of „grave abuse of discretion‟ does not seem to take into consideration the established legal definition of the „grave‟, „abuse‟ and „abuse of discretion‟. Neither does it seem to consider its own definition of „grave misconduct‟. 11. With all due respect, it would appear that „abuse of discretion‟ is in itself a misconduct. The abuse or misconduct is ILLEGAL whether or not it is grave or less than grave. 12. Hence, grave abuse and grave misconduct appear to be unreasonable legal standards considering Article 19 of the Civil Code which effectively prohibits ABUSE in the exercise of a right or in the performance of a duty, by holding the actor liable for civil damages. 13. Furthermore, the use of the term „grave‟ as a qualifying term appears to be a form of deception in derogation of the public trust. While ABUSE is illegal per se, the qualification creates a dubious distinction between an illegal act that is grave and an illegal act that is not grave. It is clear that in both cases, the abusive act is illegal. Hence, the abusive actor is guilty of an illegal act. 14. Strangely, the principal sponsor of the subject constitutional provision, former Chief Justice Roberto R. Concepcion, in the conclusion of his sponsorship speech, spoke merely of abuse of discretion, NOT grave abuse of discretion. He is quoted by Fr. Joaquin Bernas, as follows: “Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction, or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to judgment on matters of this nature.” (BERNAS, The Intent of the 1986 Constitution Writers, 1995 ed., p. 408.) The clear indication is that mere abuse of discretion is subject to the power of judicial review. Conclusion 15. What then is the problem? By having elevated the standard into the level of a constitutional requirement, those public officers who are guilty of LESS THAN GRAVE

abuse of discretion would appear to be exempted from the judiciary‟s power and duty to review the abusive acts.