8/9/2019 Consti Grave Abuse

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  Constitutional Kritarchy under the Grave Abuse Clause 

by Theoben Jerdan C. Orosa Order this Issue | Subscribe 

We fear to grant power and we are unwilling to recognize it when it exists.- Mr. Justice Oliver Wendell Holmes 

INTRODUCTION 

It was not long ago when a ³democratic´ façade hid an exercise of power by only a few in the Philippine political

system. The constitutional-authoritarianist rule that the country experienced during the Martial Law era remains a

bleak reminder of the conquest of the Philippine masses by the power of stalwart political regimes. Come 1986,

the political environment had an upheaval against this fastidious demagoguery. The illusion of constitutionalism

could no longer sustain the felt necessities for a revolution in the political system. The Filipino people overthrew a

dictator and instituted a new Constitution that would be the casket of authoritarianism.

The ideals that fueled the commissioners who drafted this new Constitution were fears of another despot arising in

future administrations. Drawing from the wisdom of political theory conceived from Polybius to Montesquieu, the

Constitution was written with a dedicated intent ² to enact a methodology by which despotism and arbitrary rule

would be eliminated; a methodological separation of authority and a demarcation of powers to diffuse the hold of 

the few over national governance. So that, at last, the remains of authoritarianism will finally rest in a proper

sepulcher.

The drafters of the new Constitution thus knighted one of the three branches of government with the role of 

overseer and inserted in the very first section of Article VIII thereof, a new phraseology that would add to the role

of the Supreme Court, aside from being a pacifier of societal conflicts. This was the power and authority ³to

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 is the G rave Abuse Clause of the 1987 Constitution and this Clause gives the Supreme Court of the

Philippines the power and authority to nullify acts of any branch or instrumentality of the Government that may be

deemed as an act of grave abuse of discretion.

When the drafters of the 1987 Constitution gave the Supreme Court the power to determine acts of grave abuse

of discretion, they perhaps unwittingly handed the individuals who shall compose the Supreme Magistracy with the

authority to disregard and nullify acts of the other branches of the Government that they may find to be acts

within the contemplation of the G rave Abuse Clause. This authority is now recognized in modern legal theory and

in Constitutional Law as the doctrine of judicial supremacy .