LOUIS "BAROK" C. BIRAOGO v. THE PHILIPPINE TRUTH COMMISSION
LOUIS "BAROK" C. BIRAOGO v. THE PHILIPPINE TRUTH COMMISSION
LOUIS "BAROK" C. BIRAOGO v. THE PHILIPPINE TRUTH COMMISSION
- versus -
x -------------------------------------------------------------------------------------- x
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DECISION
MENDOZA, J.:
For consideration before the Court are two consolidated cases5[5] both of
which essentially assail the validity and constitutionality of Executive Order No. 1,
dated July 30, 2010, entitled “Creating the Philippine Truth Commission of 2010.”
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and
taxpayer. Biraogo assails Executive Order No. 1 for being violative of the
1[1]
Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
2[2]
Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p. xxxiv, citing
Miller, Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers of Government 1
(1963).
3[3]
Cruz, Philippine Political law, 2002 ed. p. 12.
4[4]
Id.
5[5]
Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, rollo, pp. 87-88.
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legislative power of Congress under Section 1, Article VI of the Constitution 6[6] as
it usurps the constitutional authority of the legislature to create a public office and
to appropriate funds therefor.7[7]
The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon
A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent
members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the
historic May 2010 elections, when then Senator Benigno Simeon Aquino III
declared his staunch condemnation of graft and corruption with his slogan, “Kung
walang corrupt, walang mahirap.” The Filipino people, convinced of his sincerity
and of his ability to carry out this noble objective, catapulted the good senator to
the presidency.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth Commission of
2010 (Truth Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
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WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the people‘s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a closure
to them by the filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people‘s faith and confidence in the
Government and in their public servants;
WHEREAS, the President‘s battlecry during his campaign for the Presidency in
the last elections ―kung walang corrupt, walang mahirap‖ expresses a solemn pledge that
if elected, he would end corruption and the evil it breeds;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines, gives the
President the continuing authority to reorganize the Office of the President.
SECTION 2. Powers and Functions. – The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
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b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch, including government-owned or
controlled corporations, to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by
committees thereof relating to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator, information or
documents in respect to corruption cases filed with the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness
to ensure that the ends of justice be fully served, that such person who qualifies as a state
witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all
evidence on corruption of public officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are liable for graft
and corruption under pertinent applicable laws;
k) Exercise such other acts incident to or are appropriate and necessary in connection
with the objectives and purposes of this Order.
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SECTION 6. Conduct of Proceedings. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall
provide the necessary funds for the Commission to ensure that it can exercise its powers,
execute its functions, and perform its duties and responsibilities as effectively, efficiently,
and expeditiously as possible.
SECTION 14. Term of the Commission. – The Commission shall accomplish its
mission on or before December 31, 2012.
SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
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By the President:
To accomplish its task, the PTC shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is
not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle,
or render awards in disputes between contending parties. All it can do is gather,
collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much
less order their arrest. Although it is a fact-finding body, it cannot determine from
such facts if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or administrative
penalties or sanctions.
The PTC is different from the truth commissions in other countries which
have been created as official, transitory and non-judicial fact-finding bodies ―to
establish the facts and context of serious violations of human rights or of
international humanitarian law in a country‘s past.‖9[9] They are usually established
by states emerging from periods of internal unrest, civil strife or authoritarianism
to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of
8[8]
Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, citing F.R. Mechem, A Treatise On The Law
of Public Offices and Officers.
9[9]
International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November 20, 2010.
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abuse committed over a period of time, as opposed to a particular event; (3) they
are temporary bodies that finish their work with the submission of a report
containing conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.10[10] ―Commission‘s members
are usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and
recommend institutional reforms.‖11[11]
The PTC is a far cry from South Africa‘s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching order of
the PTC is the identification and punishment of perpetrators. As one writer12[12]
puts it:
The order ruled out reconciliation. It translated the Draconian code spelled
out by Aquino in his inaugural speech: ―To those who talk about reconciliation, if
they mean that they would like us to simply forget about the wrongs that they
have committed in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give consent to their
occurring over and over again.‖
Barely a month after the issuance of Executive Order No. 1, the petitioners
asked the Court to declare it unconstitutional and to enjoin the PTC from
10[10]
Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner, UnspeakableTruths:
Facing the Challenge of Truth Commissions.
11[11]
International Center for Transitional Justice, supra note 9.
12[12]
Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
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performing its functions. A perusal of the arguments of the petitioners in both
cases shows that they are essentially the same. The petitioners-legislators
summarized them in the following manner:
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major causes of poverty.
13[13]
Lagman Petition, pp. 50-52, rollo, pp. 58-60.
14[14]
Rollo, pp. 111-216.
15[15]
Otherwise known as the Administrative Code of 1987.
16[16]
Granting Continuing Authority To The President Of The Philippines To Reorganize The National Government.
17[17]
Otherwise known as the General Appropriations Act of 2010.
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The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify the
creation of the PTC such as Presidential Complaint and Action Commission
(PCAC) by President Ramon B. Magsaysay, Presidential Committee on
Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and
Presidential Agency on Reform and Government Operations (PARGO) by President
Ferdinand E. Marcos.18[18]
From the petitions, pleadings, transcripts, and memoranda, the following are
the principal issues to be resolved:
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging
the act must have the standing to question the validity of the subject act or
issuance; otherwise stated, he must have a personal and substantial interest in the
18[18]
OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos. 105965-70, March
20, 2001, 354 SCRA 651, 660-661.
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case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.19[19]
Among all these limitations, only the legal standing of the petitioners has
been put at issue.
To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the
powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a resort
to the courts.
19[19]
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco v.
House of Representatives, 460 Phil. 830, 842 (2003).
20[20]
OSG Memorandum, p. 29, rollo, p. 348.
21[21]
G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
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mind, infringes on their prerogatives as legislators.22[22]
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury attributable
to the implementation of Executive Order No. 1. Nowhere in his petition is an
assertion of a clear right that may justify his clamor for the Court to exercise
judicial power and to wield the axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo24[24] explained the deep-seated rules on
locus standi. Thus:
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a ―public right‖ in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person who
is affected no differently from any other person. He could be suing as a
―stranger,‖ or in the category of a ―citizen,‖ or ‗taxpayer.‖ In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the
securing of relief as a ―citizen‖ or ―taxpayer.
Case law in most jurisdictions now allows both ―citizen‖ and ―taxpayer‖
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayer‘s suit is in a different
22[22]
Supra note 19, citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-
632.
23[23]
OSG Memorandum, p. 30, rollo, p. 349.
24[24]
G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
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category from the plaintiff in a citizen‘s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins: ―In matter of mere public right, however…the
people are the real parties…It is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued and punished, and
that a public grievance be remedied.‖ With respect to taxpayer‘s suits, Terr v.
Jordan held that ―the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied.‖
This Court adopted the ―direct injury‖ test in our jurisdiction. In People
v. Vera, it held that the person who impugns the validity of a statute must have ―a
personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result.‖ The Vera doctrine was upheld in a litany
of cases, such as, Custodio v. President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and
Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted]
Notwithstanding, the Court leans on the doctrine that ―the rule on standing is
a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.‖25[25]
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26[26] the Court held
that in cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of
25[25]
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, G.R.
No. 157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of Energy,
346 Phil 321 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
26[26]
G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
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judicial review. In the first Emergency Powers Cases,27[27] ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders
although they had only an indirect and general interest shared in common with the
public.
The OSG claims that the determinants of transcendental importance 28[28] laid
down in CREBA v. ERC and Meralco29[29] are non-existent in this case. The Court,
however, finds reason in Biraogo‘s assertion that the petition covers matters of
transcendental importance to justify the exercise of jurisdiction by the Court.
There are constitutional issues in the petition which deserve the attention of this
Court in view of their seriousness, novelty and weight as precedents. Where the
issues are of transcendental and paramount importance not only to the public but
also to the Bench and the Bar, they should be resolved for the guidance of all.30[30]
Undoubtedly, the Filipino people are more than interested to know the status of the
President‘s first effort to bring about a promised change to the country. The Court
takes cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm in its
oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the Office of the
President.31[31] Thus, in order that the President may create a public office he must
be empowered by the Constitution, a statute or an authorization vested in him by
law. According to petitioner, such power cannot be presumed32[32] since there is no
provision in the Constitution or any specific law that authorizes the President to
create a truth commission.33[33] He adds that Section 31 of the Administrative Code
of 1987, granting the President the continuing authority to reorganize his office,
cannot serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as ―reorganize,‖ ―transfer,‖
27[27]
84 Phil. 368, 373 (1949).
28[28]
―(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard
of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government;
and, (3) the lack of any other party with a more direct and specific interest in the questions being raised.‖
29[29]
G.R. No. 174697, July 8, 2010.
30[30]
Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
31[31]
Biraogo Memorandum, p. 7, rollo, p. 69.
32[32]
Id. at 6, rollo, p. 68.
33[33]
Id. at 9, rollo, p. 71.
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―consolidate,‖ ―merge,‖ and ―abolish.‖34[34] Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent of creating a
public office, Section 31 is inconsistent with the principle of separation of powers
enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof.35[35]
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth commission.
Pointing to numerous offices created by past presidents, it argues that the authority
of the President to create public offices within the Office of the President Proper
has long been recognized.37[37] According to the OSG, the Executive, just like the
other two branches of government, possesses the inherent authority to create fact-
finding committees to assist it in the performance of its constitutionally mandated
functions and in the exercise of its administrative functions.38[38] This power, as the
OSG explains it, is but an adjunct of the plenary powers wielded by the President
under Section 1 and his power of control under Section 17, both of Article VII of
the Constitution.39[39]
It contends that the President is necessarily vested with the power to conduct
fact-finding investigations, pursuant to his duty to ensure that all laws are enforced
by public officials and employees of his department and in the exercise of his
authority to assume directly the functions of the executive department, bureau and
34[34]
Id. at 10, rollo, p. 72.
35[35]
Id. at 10-11, rollo pp. 72-73.
36[36]
Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp. 270-271.
37[37]
OSG Memorandum, p. 32, rollo, p. 351.
38[38]
Id. at 33, rollo, p. 352.
39[39]
OSG Consolidated Comment, p. 24, rollo, p. 144.
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office, or interfere with the discretion of his officials.40[40] The power of the
President to investigate is not limited to the exercise of his power of control over
his subordinates in the executive branch, but extends further in the exercise of his
other powers, such as his power to discipline subordinates,41[41] his power for rule
making, adjudication and licensing purposes42[42] and in order to be informed on
matters which he is entitled to know.43[43]
The OSG also cites the recent case of Banda v. Ermita,44[44] where it was
held that the President has the power to reorganize the offices and agencies in the
executive department in line with his constitutionally granted power of control and
by virtue of a valid delegation of the legislative power to reorganize executive
offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the
power to create offices. For the OSG, the President may create the PTC in order to,
among others, put a closure to the reported large scale graft and corruption in the
government.45[45]
The question, therefore, before the Court is this: Does the creation of the
PTC fall within the ambit of the power to reorganize as expressed in Section 31 of
the Revised Administrative Code? Section 31 contemplates ―reorganization‖ as
limited by the following functional and structural lines: (1) restructuring the
internal organization of the Office of the President Proper by abolishing,
consolidating or merging units thereof or transferring functions from one unit to
another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office
of the President to any other Department/Agency or vice versa. Clearly, the
provision refers to reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent but a modification or
alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer to the
question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
40[40]
OSG Memorandum, pp. 38-39, rollo, pp. 357-358.
41[41]
Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
42[42]
Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104.
43[43]
Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445.
44[44]
G.R. No. 166620, April 20, 2010.
45[45]
Consolidated Comment, p. 45, rollo, p. 165.
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President under Section 31 is a misplaced supposition, even in the plainest
meaning attributable to the term ―restructure‖– an ―alteration of an existing
structure.‖ Evidently, the PTC was not part of the structure of the Office of the
President prior to the enactment of Executive Order No. 1. As held in Buklod ng
Kawaning EIIB v. Hon. Executive Secretary,46[46]
But of course, the list of legal basis authorizing the President to reorganize
any department or agency in the executive branch does not have to end here. We
must not lose sight of the very source of the power – that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject to
the policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the
functions of other Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization
"involves the reduction of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions." It takes place when there is
an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. It falls under the Office
of the President. Hence, it is subject to the President‘s continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President‘s
power of control. Control is essentially the power to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties and
to substitute the judgment of the former with that of the latter. 47[47] Clearly, the
power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to
the above provision finds statutory basis under P.D. 1416, as amended by P.D. No.
1772.48[48] The said law granted the President the continuing authority to reorganize
46[46]
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda, supra.
47[47]
The Veterans Federation of the Philippines v. Reyes, G. R. No. 155027, February 28, 2006, 483 SCRA 526,
564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143 (1955).
48[48]
OSG Memorandum, p. 56, rollo, p. 375.
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the national government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions,
services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive Secretary.49[49]
The Court, however, declines to recognize P.D. No. 1416 as a justification
for the President to create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a delegation to then President
Marcos of the authority to reorganize the administrative structure of the national
government including the power to create offices and transfer appropriations
pursuant to one of the purposes of the decree, embodied in its last ―Whereas‖
clause:
WHEREAS, the transition towards the parliamentary form of government
will necessitate flexibility in the organization of the national government.
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last
whereas clause of P.D. 1416 says ―it was
enacted to prepare the transition from
presidential to parliamentary. Now, in a
parliamentary form of government, the
legislative and executive powers are fused,
correct?
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D.
1416 should not be considered effective
anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
49[49]
G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
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ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize
the entire National Government is deemed
repealed, at least, upon the adoption of the
1987 Constitution, correct.
While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds
justification under Section 17, Article VII of the Constitution, imposing upon the
President the duty to ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).
50[50]
TSN, September 28, 2010, pp. 205-207.
51[51]
OSG Memorandum, p. 37, rollo, p.356.
52[52]
G.R. 88211, September 15, 1989, 177 SCRA 688.
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On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that
is neither legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not limited to
those specific powers under the Constitution.53[53] One of the recognized powers of
the President granted pursuant to this constitutionally-mandated duty is the power
to create ad hoc committees. This flows from the obvious need to ascertain facts
and determine if laws have been faithfully executed. Thus, in Department of
Health v. Camposano,54[54] the authority of the President to issue Administrative
Order No. 298, creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health for the anomalous
purchase of medicines was upheld. In said case, it was ruled:
53[53]
Id. at 691.
54[54]
496 Phil. 886, 896-897 (2005).
Page 21 of 256
government structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have changed.
55[55]
Consolidated Comment, p. 48; rollo, p. 168.
56[56]
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
57[57]
Ople v. Torres, 354 Phil. 948, 967 (1998).
58[58]
Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156 (2003).
Page 22 of 256
The distinction between the power to investigate and the power to adjudicate
was delineated by the Court in Cariño v. Commission on Human Rights.59[59] Thus:
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest sense;"
and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to
sentence or condemn. x x. Implies a judicial determination of a fact, and the entry
of a judgment." [Italics included. Citations Omitted]
59[59]
G.R. No. 96681, December 2, 1991, 204 SCRA 483.
Page 23 of 256
controversy is not a judicial function. To be considered as such, the act of receiving
evidence and arriving at factual conclusions in a controversy must be accompanied
by the authority of applying the law to the factual conclusions to the end that the
controversy may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law.60[60] Even
respondents themselves admit that the commission is bereft of any quasi-judicial
power.61[61]
At any rate, the Ombudsman‘s power to investigate under R.A. No. 6770 is
not exclusive but is shared with other similarly authorized government agencies.
Thus, in the case of Ombudsman v. Galicia,65[65] it was written:
60[60]
Id. at 492.
61[61]
TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, rollo, p. 339.
62[62]
OSG Consolidated Comment, p. 55, rollo, p. 175.
63[63]
Id. at 56, rollo, p. 176.
64[64]
Id.
65[65]
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
Page 24 of 256
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No. 6770,
which states:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of its primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such cases.
[Emphases supplied]
The same holds true with respect to the DOJ. Its authority under Section 3
(2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by no
means exclusive and, thus, can be shared with a body likewise tasked to investigate
the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings
of the PTC are to be accorded conclusiveness. Much like its predecessors, the
Davide Commission, the Feliciano Commission and the Zenarosa Commission, its
findings would, at best, be recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of latitude to decide whether or not
to reject the recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for possible
indictments for violations of graft laws.
Although the purpose of the Truth Commission falls within the investigative
power of the President, the Court finds difficulty in upholding the constitutionality
of Executive Order No. 1 in view of its apparent transgression of the equal
protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Page 25 of 256
Constitution. Section 1 reads:
The petitioners argue that the search for truth behind the reported cases of
graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior administrations
where the ―same magnitude of controversies and anomalies‖68[68] were reported to
have been committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the recognized exceptions
because first, ―there is no substantial distinction between the group of officials
targeted for investigation by Executive Order No. 1 and other groups or persons
who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end
corruption.‖69[69] In order to attain constitutional permission, the petitioners
advocate that the commission should deal with ―graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with equal
force.‖70[70]
Position of respondents
66[66]
Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
67[67]
Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp. 347-348.
68[68]
Lagman Petition, p. 31, rollo, p. 39.
69[69]
Id. at 28-29, rollo, pp. 36-37.
70[70]
Id. at 29, rollo, p. 37.
Page 26 of 256
corruption solely during the said administration.71[71] Assuming arguendo that the
commission would confine its proceedings to officials of the previous
administration, the petitioners argue that no offense is committed against the equal
protection clause for ―the segregation of the transactions of public officers during
the previous administration as possible subjects of investigation is a valid
classification based on substantial distinctions and is germane to the evils which
the Executive Order seeks to correct.‖72[72] To distinguish the Arroyo administration
from past administrations, it recited the following:
71[71]
OSG Memorandum, p. 88; rollo, p. 407.
72[72]
OSG Consolidated Comment. p. 68, rollo, p. 188.
Page 27 of 256
Presidential Commission on Good Government (PCGG), created by
the late President Corazon C. Aquino under Executive Order No. 1 to
pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the Saguisag
Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent
citizens‘ committee to investigate all the facts and circumstances
surrounding ―Philippine Centennial projects‖ of his predecessor,
former President Fidel V. Ramos.73[73] [Emphases supplied]
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.74[74]
Page 28 of 256
between individuals solely on differences that are irrelevant to a legitimate
governmental objective.‖78[78]
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79[79] Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to all
actions of a state denying equal protection of the laws, through whatever agency or
whatever guise is taken. 80[80]
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality among
equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid
must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of
the law; (3) It is not limited to existing conditions only; and
78[78]
Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
79[79]
See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
80[80]
See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
Page 29 of 256
(4) It applies equally to all members of the same class.81[81] ―Superficial differences
do not make for a valid classification.‖82[82]
Page 30 of 256
The equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to operate.
Applying these precepts to this case, Executive Order No. 1 should be struck
down as violative of the equal protection clause. The clear mandate of the
envisioned truth commission is to investigate and find out the truth ―concerning the
reported cases of graft and corruption during the previous administration”87[87]
only. The intent to single out the previous administration is plain, patent and
manifest. Mention of it has been made in at least three portions of the questioned
executive order. Specifically, these are:
SECTION 2. Powers and Functions. – The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
87[87]
7th Whereas clause, Executive Order No. 1.
Page 31 of 256
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-
finding investigation of reported cases of graft and corruption referred to in
Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a class of
its own. Not to include past administrations similarly situated constitutes
arbitrariness which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
88[88]
Cruz, Constitutional Law, 2003 ed., p. 128.
89[89]
OSG, Memorandum, p. 89, rollo, p. 408.
90[90] th
6 Whereas clause, Executive Order No. 1
Page 32 of 256
expected to conduct simultaneous investigations of previous administrations, given
the body‘s limited time and resources. ―The law does not require the impossible‖
(Lex non cogit ad impossibilia).91[91]
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century‘s worth of graft
cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of searching for the truth, must
not exclude the other past administrations. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable prioritization
is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins,92[92]
It could be argued that considering that the PTC is an ad hoc body, its scope
is limited. The Court, however, is of the considered view that although its focus is
restricted, the constitutional guarantee of equal protection under the laws should
not in any way be circumvented. The Constitution is the fundamental and
paramount law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public authority
administered.93[93] Laws that do not conform to the Constitution should be stricken
down for being unconstitutional.94[94] While the thrust of the PTC is specific, that
is, for investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To exclude
the earlier administrations in the guise of ―substantial distinctions‖ would only
confirm the petitioners‘ lament that the subject executive order is only an
91[91]
Lee, Handbook of Legal Maxims, 2002 Ed., p.
92[92]
118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35 <accessed on
December 4, 2010>.
93[93]
Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila Prince Hotel
vs. GSIS, 335 Phil. 82, 101 (1997).
94[94]
Id. at 632.
Page 33 of 256
―adventure in partisan hostility.‖ In the case of US v. Cyprian,95[95] it was written:
―A rather limited number of such classifications have routinely been held or
assumed to be arbitrary; those include: race, national origin, gender, political
activity or membership in a political party, union activity or membership in a labor
union, or more generally the exercise of first amendment rights.‖
The Court is not unaware that ―mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause.‖98[98] ―Legislation is not
unconstitutional merely because it is not all-embracing and does not include all the
evils within its reach.‖99[99] It has been written that a regulation challenged under
the equal protection clause is not devoid of a rational predicate simply because it
happens to be incomplete.100[100] In several instances, the underinclusiveness was
not considered a valid reason to strike down a law or regulation where the purpose
can be attained in future legislations or regulations. These cases refer to the ―step
by step‖ process.101[101] ―With regard to equal protection claims, a legislature does
not run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.‖102[102]
95[95]
756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42; also
http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19910130_0000002.NIN.htm/qx <accessed
December 5, 2010>
96[96]
McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
97[97]
Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368 .
98[98]
Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371.
99[99]
Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370.
100[100]
Clements v. Fashing, 457 US 957.
101[101]
See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the Equal
Protection Clause, address a problem one step at a time, or even select one phase of one field and apply a remedy
there, neglecting the others. [Jeffeson v. Hackney, 406 US 535].
102[102]
McDonald v. Board of Election Com’rs of Chicago, 394 US 802 cited in Am Jur 2d, Footnote No. 9.
Page 34 of 256
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as can be
gleaned from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even
mention any particular act, event or report to be focused on unlike the investigative
commissions created in the past. ―The equal protection clause is violated by
purposeful and intentional discrimination.‖103[103]
The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to include the acts
of graft and corruption committed in other past administrations, it does not
guarantee that they would be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the President. If he
would decide not to include them, the section would then be meaningless. This will
only fortify the fears of the petitioners that the Executive Order No. 1 was ―crafted
to tailor-fit the prosecution of officials and personalities of the Arroyo
administration.‖105[105]
The Court tried to seek guidance from the pronouncement in the case of
Virata v. Sandiganbayan,106[106] that the ―PCGG Charter (composed of Executive
Orders Nos. 1, 2 and 14) does not violate the equal protection clause.‖ The
decision, however, was devoid of any discussion on how such conclusory
103[103]
Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
104[104]
OSG Consolidated Comment, p. 66, rollo, p.186.
105[105]
Lagman Memorandum, p. 30; rollo, p. 118.
106[106]
G.R. No. 86926, October 15, 1991; 202 SCRA 680.
Page 35 of 256
statement was arrived at, the principal issue in said case being only the sufficiency
of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the
Supreme Court, in the exercise of its constitutionally mandated power of Judicial
Review with respect to recent initiatives of the legislature and the executive
department, is exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of violating
fundamental tenets like the doctrine of separation of powers? Time and again, this
issue has been addressed by the Court, but it seems that the present political
situation calls for it to once again explain the legal basis of its action lest it
continually be accused of being a hindrance to the nation‘s thrust to progress.
Page 36 of 256
guarantees to them.‖107[107]
Thus, the Court, in exercising its power of judicial review, is not imposing
its own will upon a co-equal body but rather simply making sure that any act of
government is done in consonance with the authorities and rights allocated to it by
the Constitution. And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing the actions
under review. Otherwise, the Court will not be deterred to pronounce said act as
void and unconstitutional.
It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people. But then
again, it is important to remember this ethical principle: ―The end does not justify
the means.‖ No matter how noble and worthy of admiration the purpose of an act,
but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.108[108] The Court cannot
just turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.
“The Constitution must ever remain supreme. All must bow to
the mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude.”109[109]
Lest it be misunderstood, this is not the death knell for a truth commission as
nobly envisioned by the present administration. Perhaps a revision of the
executive issuance so as to include the earlier past administrations would
allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the
most interested in knowing the truth and so it will not allow itself to be a hindrance
or obstacle to its attainment. It must, however, be emphasized that the search for
the truth must be within constitutional bounds for ―ours is still a government of
laws and not of men.‖110[110]
107[107]
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
108[108]
Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
109[109]
Id.
110[110]
Republic v. Southside Homeowners Association, G.R. No. 156951, September 22, 2006.
Page 37 of 256
protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist
from carrying out the provisions of Executive Order No. 1.
SO ORDERED.
WE CONCUR:
RENATO C. CORONA
Chief Justice
Page 38 of 256
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
Page 39 of 256
MARIA LOURDES P.A. SERENO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
G.R. No. 192935 — Louis „Barok‟ C. Biraogo versus The Philippine Truth
Commission of 2010
x------------------------x
G.R. No. 193036 — Rep. Edcel C. Lagman et al. versus Executive Secretary
Paquito N. Ochoa, Jr. and Department of Budget Secretary Florencio B. Abad.
Promulgated:
December 7, 2010
Page 40 of 256
x----------------------------------------------x
SEPARATE OPINION
CORONA, C.J.:
The fundamental base upon which a truth commission is created is the right
to the truth.111[1] While the right to the truth is yet to be established as a right under
customary law112[2] or as a general principle of international law,113[3] it has
nevertheless emerged as a ―legal concept at the national, regional and international
levels, and relates to the obligation of the state to provide information to victims or
to their families or even society as a whole about the circumstances surrounding
serious violations of human rights.‖114[4]
111[1]
PROMOTION AND PROTECTION OF HUMAN RIGHTS (Study on the Right to the Truth): Report of
the Office of the United Nations High Commissioner for Human Rights, United Nations Economic and
Social Council (E/CN.4/2006/91), 8 February 2006.
112[2] See Yasmin Naqvi, The Right to the Truth in International Law: Fact or Fiction?, International Review of
the Red Cross (2006), 88:862:254-
268.
113[3]
Ibid., 268.
114[4]
Ibid., 245.
115[5]
But see Eric Brahm, What is a Truth Commission and Why Does it Matter?, Peace and Conflict Review
(Spring 2009), 3:2:1-14, which proposes that ―Mark Freeman‘s (2006) typology of human rights
investigations as the definition offering the most analytical clarity and the strongest potential to move the
field forward.‖ Freeman [Truth Commissions and Procedural Fairness (2006), New York: Cambridge
University Press; E.H.R.L.R., 2008, 2, 294-297] defines a truth commission as an ―ad hoc, autonomous,
and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of
(1) investigating and reporting on the principal causes and consequences of broad and relatively recent
patterns of severe violence or repression that occurred in the state during determinate periods of abusive
rule or conflict, and (2) making recommendations for their redress and future prevention.‖
116[6]
Priscilla B. Hayner, Fifteen Truth Commissions – 1974 to 1994: A Comparative Study, Human Rights
Quarterly (Nov. 1994), 16:4:600.
Page 41 of 256
report of its findings. Finally, a truth commission is always vested with some sort
of authority, by way of its sponsor, that allows it greater access to information,
greater security or protection to dig into sensitive issues, and a greater impact with
its report.117[7]
Notably, Pres. Corazon C. Aquino created not one but two truth
commissions.119[9] Aside from the PCHR, which was created to address human
rights violations, the Presidential Commission on Good Government or PCGG was
also established. The PCGG was tasked with assisting the President in the
―recovery of all in-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or sequestration of all
business enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue advantage of their
public office and/or using their powers, authority, influence, connections or
relationship,‖ among others.120[10] Unlike the present embattled and controversial
Truth Commission, however, the PCGG was created by Pres. Corazon C. Aquino
pursuant to her legislative powers under Executive Order No. 1,121[11] which in
turn, was sanctioned by Proclamation No. 3.122[12]
117[7]
Ibid., 604.
118[8]
http://www.amnesty.org/en/library/asset/POL30/009/2007/en/7988f852-d38a-11dd-a329-2f46302a8cc6/
pol300092007en.html, viewed on 9 November 2010.
119[9]
Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic
Crimes?, The International Journal of Transitional Justice, Vol. 2, 2008, 322.
120[10]
Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No.
75885, May 27, 1987, 150 SCRA 181, 202.
121[11]
Promulgated on February 28, 1986, creating the Presidential Commission on Good Government.
122[12]
Promulgated on March 25, 1986, promulgating the Provisional Constitution (also known as the Freedom
Constitution). Article II, Section 1 thereof stated that the President shall continue to exercise legislative
power until a legislature is elected and convened under a new constitution x x x.
Page 42 of 256
And unlike the PCGG, the present Truth Commission suffers from both
legal and constitutional infirmities and must be struck down as unconstitutional.
The power under scrutiny in this case is the creation of a public office. It is
settled that, except for the offices created by the Constitution, the creation of a
public office is primarily a legislative function. The legislature decides what
offices are suitable, necessary or convenient for the administration of
government.126[16]
123[13]
Angara v. Electoral Commission, 68 Phil. 139, 156 (1936).
124[14]
Secretary of Justice v. Lantion, G.R. No. 139465, 17 October 2000.
125[15]
Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 29 August 2007.
126[16]
Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) citing AM JUR 2d on Public Officers
and Employees.
Page 43 of 256
to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President
Proper, including the immediate Offices, the Presidential Special
Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating, or merging units thereof or transferring functions from
one unit to another;
(2) Transfer any function under the Office of the President to any
other Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the President
from other departments or agencies. (Emphasis supplied)
In creating the Truth Commission, did the President merely exercise his
continuing authority to reorganize the executive department? No.
Considering that the President was exercising a delegated power, his actions
should have conformed to the standards set by the law, that is, that the
reorganization be in the interest of ―simplicity, economy and efficiency.‖ Were
such objectives met? They were not. The Truth Commission clearly duplicates and
supplants the functions and powers of the Office of the Ombudsman and/or the
Department of Justice, as will be discussed in detail later. How can the creation of
a new commission with the same duplicative functions as those of already existing
offices result in economy or a more efficient bureaucracy?129[19] Such a creation
becomes even more questionable considering that the 1987 Constitution itself
mandates the Ombudsman to investigate graft and corruption cases.130[20]
THE TRUTH COMMISSION IN THE LIGHT OF
THE EQUAL PROTECTION CLAUSE
127[17]
Banda v. Ermita, G.R. No. 166620, April 20, 2010.
128[18]
Ibid.
129[19]
Buklod ng Kawaniang EIIB v. Sec. Zamora, 413 Phil. 281, 295.
130[20]
Office of the Ombudsman v. Samaniego, G.R. No. 175573, 11 September 2008.
Page 44 of 256
Equal protection is a fundamental right guaranteed by the Constitution.
Section 1, Article III of the 1987 Constitution reads:
... nor shall any person be denied the equal protection of the
laws.
It is a right afforded every man. The right to equal protection does not require a
universal application of the laws to all persons or things without distinction.131[21] It
requires simply that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed.132[22]
131[21]
Chamber of Real Estate and Builders’ Associations, Inc. v. Executive Secretary Alberto Romulo (G.R. No.
160756, 2010)
132[22]
Quinto v. Comelec (G.R. No. 189698, 2009)
133[23]
Abakada Guro v. Hon. Cesar V. Purisima (G.R. No. 166715, 2008)
134[24]
59 SCRA 54, 1974.
135[25]
League of Cities of the Philippines v. COMELEC (G.R. No. 176951; G.R. No. 177499; 2008; G.R. No.
178056, 2008)
Page 45 of 256
(2) it must be germane to the purpose of the law;
(3) it must not be limited to present conditions; and
(4) it must apply equally to all members of the same class.
All four requisites must be complied with for the classification to be valid and
constitutional.
Petitioners argue that E.O. No. 1 violates the equal protection clause as it
deliberately vests the Truth Commission with jurisdiction and authority to solely
target officials and employees of the Arroyo Administration.136[26] Moreover, they
claim that there is no substantial distinction of graft reportedly committed under
the Arroyo administration and graft committed under previous administrations to
warrant the creation of a Truth Commission which will investigate for prosecution
officials and employees of the past administration.137[27]
Respondents, on the other hand, argue that the creation of the Truth
Commission does not violate the equal protection clause. According to them, while
E.O. No. 1 names the previous administration as the initial subject of the
investigation, it does not confine itself to cases of graft and corruption committed
solely during the past administration. Section 17 of E.O. No. 1 clearly speaks of
the President‘s power to expand its coverage to previous administrations.
Moreover, respondents argue that the segregation of the transactions of public
officers during the previous administration as possible subjects of investigation is a
valid classification based on substantial distinctions and is germane to the evils
which the executive order seeks to correct.138[28]
On its face, E.O. No. 1 clearly singles out the previous administration as the
Truth Commission‘s sole subject of investigation.
136[26]
Par. 69, Lagman, et al‘s Petition
137[27]
Par. 67, Lagman, et al‘s Petition
138[28]
OSG Memorandum, pp. 88-90.
Page 46 of 256
that shock and offend the moral and ethical sensibilities of the people committed
by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any during the previous administration; and thereafter
recommend the appropriate action to be taken to ensure that the full measure of
justice shall be served without fear or favor.
Section 2. Powers and Functions. – The Commission, which shall have the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-
finding investigation of reported cases of graft and corruption referred to in
Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any during the previous
administration and thereafter submit its findings and recommendations to the
President, Congress and the Ombudsman. x x x‖ (Emphasis supplied)
such expanded mandate of the Truth Commission will still depend on the whim
and caprice of the President. If the President decides not to expand the coverage of
the investigation, then the Truth Commission‘s sole directive is the investigation of
officials and employees of the Arroyo administration.
Given the indubitably clear mandate of E.O. No. 1, does the identification of
the Arroyo administration as the subject of the Truth Commission‘s investigation
pass the jurisprudential test of reasonableness? Stated differently, does the mandate
of E.O. No. 1 violate the equal protection clause of the Constitution? Yes.
Page 47 of 256
(2) Not Germane to the Purpose of the Law –
The purpose of E.O. No. 1 (to put an end to corruption in the government) is
stated clearly in the preamble of the aforesaid order:
WHEREAS, the President‘s battle-cry during his campaign for the
Presidency in the last elections “kung walang corrupt, walang mahirap”
expresses a solemn pledge that if elected, he would end corruption and the evil it
breeds; xxx
As correctly pointed out by petitioners, the classification does not even refer
to present conditions, much more to future conditions vis-avis the commission of
graft and corruption. It is limited to a particular past administration and not to all
past administrations.139[29]
xxx
Whereas, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases if graft and
corruption during the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
xxx
Section 1. Creating of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
―COMMISSION‖, which shall primarily seek and find the truth on, and toward
this end investigate reports of graft and corruption, x x x if any, during the
previous administration; xxx
139[29]
Par. 73, Lagman, et al‘s Petition
Page 48 of 256
Section 2. Power and Functions. Powers and Functions. – The
Commission, which shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft
and corruption x x x, if any, during the previous administration and thereafter
submit its findings and recommendations to the President, Congress and the
Ombudsman. x x x
The above-quoted provisions show that the sole subject of the investigation
will be public officers and employees of the previous administration only, that is,
until such time if and when the President decides to expand the Truth
Commission‘s mandate to include other administrations (if he does so at all).
Lastly, E.O. No. 1 does not apply to all of those belonging to the same class
for it only applies to the public officers and employees of the past administration.
It excludes from its purview the graft and the grafters of administrations prior to
the last one. Graft is not exclusive to the previous presidency alone, hence there is
no justification to limit the scope of the mandate only to the previous
administration.
FACT-FINDING OR INVESTIGATION?
The nature of the powers and functions allocated by the President to the
Truth Commission by virtue of E.O. No. 1 is investigatory,140[30] with the purposes
of determining probable cause of the commission of ―graft and corruption under
pertinent applicable laws‖ and referring such finding and evidence to the proper
authorities for prosecution.141[31]
The respondents pass off these powers and functions as merely fact-finding,
short of investigatory. I do not think so. Sugar-coating the description of the Truth
Commission‘s processes and functions so as to make it ―sound harmless‖ falls
140[30]
Section 2. xxx b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any agency, official or
employee of the Executive Branch, including government-owned or controlled corporations, to produce
documents, books, records and other papers xxx.
141[31]
Section 2. xxx g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on
corruption of public officers and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the Commission finds that there is reasonable
ground to believe that they are liable for graft and corruption under pertinent applicable laws xxx.
Page 49 of 256
short of constitutional requirements. It has in its hands the vast arsenal of the
government to intimidate, harass and humiliate its perceived political enemies
outside the lawful prosecutorial avenues provided by law in the Ombudsman or the
Department of Justice.
There is no doubt in my mind that what the President granted the Truth
Commission is the authority to conduct preliminary investigation of complaints of
graft and corruption against his immediate predecessor and her associates.
The respondents see nothing wrong with that. They believe that, pursuant to
his power of control and general supervision under Article VII of the
Constitution,143[33] the President can create an ad-hoc committee like the Truth
Commission to investigate graft and corruption cases. And the President can
endow it with authority parallel to that of the Ombudsman to conduct preliminary
investigations. Citing Ombudsman v. Galicia144[34] the power of the Ombudsman to
conduct preliminary investigations is not exclusive but shared with other similarly
authorized government agencies.
Indeed, the power of control and supervision of the President includes the
power to discipline which in turn implies the power to investigate. 145[35] No
Congress or Court can derogate from that power146[36] but the Constitution itself
may set certain limits.147[37] And the Constitution has in fact carved out the
preliminary investigatory aspect of the control power and allocated the same to the
following:
142[32]
Id.
143[33]
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
144[34]
568 SCRA 327 (2008)
145[35]
Joson v. Executive Secretary, et al., G.R. No. 131255, May 20, 1998; Villaluz v. Zaldivar, et al. (En
Banc), G.R. No. L-22754, December 31, 1965.
146[36]
Rufino v. Endriga, G.R. No. 139554, July 21, 2006.
147[37]
Ang-Angco v. Hon. Natalio Castillo, et al., G.R. No. L-17169, November 30, 1963.
Page 50 of 256
(a) to Congress over presidential appointees who are impeachable officers
(Article XI, Sections 2 and 3);
(b) to the Supreme Court over members of the courts and the personnel
thereof (Article VIII, Section 6); and
(c) to the Ombudsman over any other public official, employee, office or
agency (Article XI, Section 13 (1)).
However, even as the Constitution has granted to the Ombudsman the power
to investigate other public officials and employees, such power is not absolute and
exclusive. Congress has the power to further define the powers of the Ombudsman
and, impliedly, to authorize other offices to conduct such investigation over their
respective officials and personnel.148[38]
The Constitution has vested in Congress alone the power to grant to any
office concurrent jurisdiction with the Ombudsman to conduct preliminary
investigation of cases of graft and corruption.
148[38]
Article XI states:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx
(8) x x x exercise such other powers or perform such functions or duties as may be provided by
law.
149[39]
G.R. No. 168670, April 13, 2007, 521 SCRA 155.
150[40]
See also Emin v. De Leon (G.R. No. 139794, February 27, 2002, 378 SCRA 143) on the concurrent
authority of the Civil Service Commission and the DEPED Investigating Committee under RA 4670. See
Page 51 of 256
Likewise, in Ombudsman v. Medrano151[41] the Court held that by virtue of
RA 4670 the Department of Education Investigating Committee has concurrent
jurisdiction with the Ombudsman to conduct a preliminary investigation of
complaints against public school teachers.
further Puse v. Santos-Puse (G.R. No. 183678, March 15, 2010) where the Court held that the concurrent
jurisdiction of the DEPED and CSC to cause preliminary investigation is also shared by the Board of
Professional Teachers under RA 7836 or Philippine Teachers Professionalization Act of 1994.
151[41]
G.R. No. 177580, October 17, 2008.
152[42]
See Ombudsman v. Rolson Rodriguez, G.R. No. 172700, July 23, 2010 citing Laxina, Sr. v.Ombudsman,
G.R. No. 153155, 30 September 2005, 471 SCRA 542.
153[43]
Sevilla Decin v. SPO1 Melzasar Tayco, et al., G.R. No. 1 4 9 9 9 1 , Feb r uar y 1 4 , 2 0 0 7 ; Ho n a sa n II
v. Th e Pa n el o f I n v es tig a tin g Pro s ecu to r s o f th e Dep a r tmen t o f Ju s ti ce , G.R. No. 159747,
April 13, 2004.
154[44]
G.R. No. 157684. April 27, 2005.
Page 52 of 256
However, although pursuant to his power of control the President may
supplant and directly exercise the investigatory functions of departments and
agencies within the executive department,155[45] his power of control under the
Constitution and the Administrative Code is confined only to the executive
department.156[46] Without any law authorizing him, the President cannot legally
create a committee to extend his investigatory reach across the boundaries of the
executive department to ―public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration‖ without setting apart those who are still in the executive
department from those who are not. Only the Ombudsman has the investigatory
jurisdiction over them under Article XI, Section 13. There is no law granting to the
President the authority to create a committee with concurrent investigatory
jurisdiction of this nature.
INVESTIGATION OR QUASI-
ADJUDICATION?
155[45]
See Review Center Association of the Philippines v. Executive Secretary Eduardo Ermita, et al., G.R. No.
180046 , April 2, 2009; Bermudez v. Executive Secretary, G.R. No. 131429, August 4, 1999.
156[46]
KMU v. Director General, et al., G.R. No. 167798, April 19, 2006.
157[47]
G.R. No. 96681, 2 December 1991, 204 SCRA 483.
Page 53 of 256
"Investigate," commonly understood, means to examine, explore, inquire
or delve or probe into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: . . . to subject to an official probe . . .: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to
learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by
application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up
step by step by patient inquiry or observation. To trace or track; to search into; to
examine and inquire into with care and accuracy; to find out by careful
inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to
make an investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters."158[48]
(Italics in the original)
158[48]
Id., pp. 495-496.
159[49]
Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30 November 2006, 509 SCRA 332, 369-370.
Page 54 of 256
b) Collect, receive, review, and evaluate evidence related to or regarding
the cases of large scale corruption which it has chosen to investigate, …
xxx
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable
ground to believe they are liable for graft and corruption under pertinent
applicable laws;
xxx
It is the ―the act or the liberty to decide, according to the principles of justice and
one‘s ideas of what is right and proper under the circumstances, without
willfulness or favor.‖161[51]
160[50]
Manotoc v. Court of Appeals, G.R. No. 130974, 16 August 2006.
161[51]
Philippine Long Distance Telephone Co. Inc. v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No.
162783, 14 July 2005.
Page 55 of 256
Although such a preliminary investigation is not a trial and is not intended
to usurp the function of the trial court, it is not a casual affair. The officer
conducting the same investigates or inquires into the facts concerning the
commission of the crime with the end in view of determining whether or not an
information may be prepared against the accused. Indeed, a preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that when the case
is tried, the trial court may not be bound as a matter of law to order an acquittal. A
preliminary investigation has then been called a judicial inquiry. It is a
judicial proceeding. An act becomes judicial when there is opportunity to be
heard and for, the production and weighing of evidence, and a decision is
rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to
preside or to conduct a preliminary investigation is no less than that of a
municipal judge or even a regional trial court judge. While the investigating
officer, strictly speaking is not a "judge," by the nature of his functions he is
and must be considered to be a quasi judicial officer.162[52]
As a mere creation of the executive and without a law granting it the power
to investigate person and agencies outside the executive department, the Truth
Commission can only perform administrative functions, not quasi-judicial
functions. ―Administrative agencies are not considered courts; they are neither part
of the judicial system nor are they deemed judicial tribunals.‖163[53]
Executive Order No. 1 and the Philippine Truth Commission of 2010, being
contrary to the Constitution, should be nullified.
RENATO C. CORONA
162[52]
Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, 2 October 2, 1990.
This is an En Banc case that had been reiterated in two other En Banc cases, namely, Olivas v. Office of the
Ombudsman (G.R. No. 102420, 20 December 1994) and Uy v. Office of the Ombudsman (G.R. Nos.
156399-400, 27 June 2008, 556 SCRA 73). Thus it cannot be said to have been overturned by Balangauan
v. Court f Appeals, Special Nineteenth Division, Cebu City (G.R. No. 174350, 13 August 2008, 562 SCRA
184) a decision of the Court through the Third Division wherein the Court declared: ―It must be
remembered that a preliminary investigation is not a quasi-judicial proceeding…. (p. 203)‖
163[53]
Meralco v. Energy Regulatory Board, G.R. No. 145399, 17 March 2006.
Page 56 of 256
Chief Justice
EN BANC
Agenda for December 7, 2010
Item No. 103
SEPARATE OPINION
BRION, J.:
I concur, through this Separate Opinion, with the conclusion that the
Executive Order No. 1 (EO 1 or EO) creating the Truth Commission is fatally
defective and thus should be struck down.
I base my conclusion:
(1) On due process grounds;
(2) On the unconstitutional impact of the EO on the established legal
framework of the criminal justice system;
(3) On the violation of the rule on separation of powers;
(4) On the violations of the personal rights of the investigated persons and
their constitutional right to a fair trial;164[1] and
164[1]
CONSTITUTION, Article III, Section 1 and 14, which states:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
Page 57 of 256
(5) On the violation of the equal protection clause.
The full disclosure of the truth about irregular and criminal government
activities, particularly about graft and corruption, is a very worthy ideal that those
in government must fully support; the ideal cannot be disputed, sidetracked or
much less denied. It is a matter that the Constitution itself is deeply concerned
about as shown by Article XI on Accountability of Public Officers.
This concern, however, co-exists with many others and is not the be-all and
end-all of the Charter. The means and manner of addressing this constitutional
concern, for example, rate very highly in the hierarchy of constitutional values,
particularly their effect on the structure and operations of government and the
rights of third parties.
Section 14. (1) No person shall be held to answer for a criminal offense without due process of
law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.
Page 58 of 256
innocent in its coverage and grant of rights and guarantees. In fact, it has very
specific guarantees for all accused based on its general concern for every Filipino‘s
life, liberty, security and property. The Constituion, too, ensures that persons of
the same class, whether natural or juridical, are treated equally, and that the
government does not discriminate in its actions.
All these, this Court must zealously guard. We in the Court cannot ever
allow a disturbance of the equilibrium of the constitutional structure in favour of
one or the other branch, especially in favour of the Judiciary. Much less can we
pre-judge any potential accused, even in the name of truth-telling, retribution,
national healing or social justice. The justice that the Constitution envisions is
largely expressed and embodied in the Constitution itself and this concept of
justice, more than anything else, the Judiciary must serve and satisfy. In doing
this, the Judiciary must stand as a neutral and apolitical judge and cannot be an
advocate other than for the primacy of the Constitution.
These, in brief, reflect the underlying reasons for the cited grounds for the
invalidity of E.O. 1.
―to seek and find the truth on, and toward this end, investigate reports of graft
and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officials and employees,
their co-principals, accomplices and accessories from the private sector, if any,
during the previous administration, and thereafter recommend the
appropriate action to be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.‖
165[2]
Executive Order No. 1, ―Creating the Philippine Truth Commission of 2010,‖ Section 1.
Page 59 of 256
Under these terms and by the Solicitor General‘s admissions and
representations, the Truth Commission has three basic functions, namely, fact-
finding,166[3] policy recommendation,167[4] and truth-telling,168[5] all with respect to
reported massive graft and corruption committed by officials and employees of the
previous administration.
166[3]
TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75, 123-126.
167[4]
Id. at 182.
168[5]
Id. at 58-60.
169[6]
EO 1, Section 1, par. 2.
170[7]
Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5.
171[8]
Id., Sections 12, 13.
172[9]
Id., Section 11.
173[10]
Id., Section 2 (b).
174[11]
Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6.
175[12]
Id., Section 6.
176[13]
Id., Section 2.
177[14]
Id., Section 15.
178[15]
Id., Section 7.
179[16]
Id., Section 8.
180[17]
Resolution 001, ―Rules of Procedure of the Philippine Truth Commission,‖ September 20, 2010.
181[18]
Rules, Rule 4, Section 1(b).
Page 60 of 256
who appear responsible under the complaints shall be provided copies of the
complaints and supporting documents, and be required to comment on or file
counter-affidavits within ten (10) days.182[19] The Rules declare that the
Commission is not bound by the technical rules of evidence,183[20] reiterate the
protection afforded to witnesses provided under the EO,184[21] and confirm that
hearings shall be open to the public.185[22]
Both the parties‘ memoranda dwelt on the origins and nature of the term
―Truth Commission,‖ with both using their reading of the term‘s history and
usages to support their respective positions.186[23] What comes across in available
literature is that no nation has a lock on the meaning of the term; there is only a
long line of practice that attaches the term to a body established upon restoration of
democracy after a period of massive violence and repression.187[24] The term truth
commission has been specifically used as a title for the body investigating the
human rights violations188[25] that attended past violence and repression,189[26] and
in some instances for a body working for reconciliation in society.190[27]
The traditional circumstances that give rise to the use of a truth commission
along the lines of established international practice are not present in the Philippine
setting. The Philippines has a new democratically-elected President, whose
election has been fully accepted without protest by all presidential candidates and
by the people. A peaceful transition of administration took place, where Congress
harmoniously convened, with the past President now sitting as a member of the
House of Representatives. While charges of human rights violations may have
been lodged against the government during the past administration, these charges
182[19]
Id., Rule 4, Section 1(b), paragraph 2.
183[20]
Rules, Rule 4, Section 2.
184[21]
EO 1, Section 8.
185[22]
Rules, Rule 5.
186[23]
Petitioner Lagman‘s Petition for Certiorari, rollo, pp. 34-43; Respondents‘ Memorandum, id. at 322-323.
187[24]
See Mark Freeman, Truth Commissions and Procedural Fairness (2006).
188[25]
Freeman, supra note 24 at 12-13 citing Priscilla Hayner, Unspeakable Truths: Facing the Challenge of
Truth Commissions (2nd ed., 2004), p. 14.
189[26]
Freeman, supra note 24 at 14 [Freeman points out that Hayner omitted the element in the definition that
―truth commissions focus on severe acts of violence or repression.‖ He stated further that ―[s]uch acts may take
many forms, ranging from arbitrary detention to torture to enforced disappearance to summary execution.‖
190[27]
Theresa Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little? Too
Late? 15 ARIZ. J. INT'L & COMP. L. 833, 843-844 (1998). See also Priscilla Hayner, Fifteen Truth
Commissions 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597, 600, 607 (1994).
Page 61 of 256
are not those addressed by EO 1.191[28] Rather, EO 1 focuses entirely on graft and
corruption. Significantly, reconciliation does not appear to be a goal – either in
the EO, in the pleadings filed by the parties, or in the oral arguments – thus,
removing a justification for any massive information campaign aimed at healing
divisions that may exist in the nation.
No international law can also prevent a sovereign country from using the
term as the title of a body tasked to investigate graft and corruption affecting its
citizens within its borders. At the same time, international law cannot be invoked
as a source of legitimacy for the use of the title when it is not based on the
internationally-recognized conditions of its use.
No local law likewise specifically prohibits or regulates the use of the term
―truth commission.‖ Apart from the procedural ―deviation‖ above adverted to,
what may render the use of the term legally objectionable is the standard of
reason, applicable to all government actions, as applied to the attendant
circumstances surrounding the use in the EO of the title Truth Commission. 192[29]
The use of this standard is unavoidable since the title Truth Commission is used in
a public instrument that defines the Commission‘s functions and affects both the
government and private parties.193[30] The Commission‘s work affects third parties
as it is specifically tasked to investigate and prosecute officials and employees of
191[28]
An attempt has been made during the oral arguments to characterize massive graft and corruption as a
violation of human rights, but this characterization does not appear to be based on the settled definition of
human rights (TSN, Sept. 7, 2010, p. 83-84).
192[29]
See Villanueva v. CA, G.R. No. 110921, January 28, 1998, 285 SCRA 180; Fabia v. IAC, G.R. No. L-66101
November 21, 1984, 133 SCRA 364; Lacoste v. Hernandez, G.R. No. L-63796-97, May 21, 1984, 129 SCRA 373;
Lu v. Yorkshire Insurance, 43 Phil. 633 (1922); People v. Macasinag, G.R. No. L-18779, August 18, 1922, 43 Phil.
674 (1922); Correa v. Mateo, 55 Phil. 79 (1930); People v. Macasinag, 43 Phil. 674 (1922).
193[30]
See Joaquin G. Bernas, S.J. The 1987 Constitution Of The Republic Of The Philippines: A Commentary
(2009 ed.), p. 118.
Page 62 of 256
the previous administration. This line of work effectively relates it to the processes
of the criminal justice system.
Whether a Commission can engage in fact-finding, whose input can aid the
President in policy formulation, is not a disputed issue. What is actively disputed
194[31]
See Id. at 119, citing U.S. v. Toribio, 15 Phil. 85 (1910), which quoted Lawton v. Steel:
[T]he State may interfere wherever the public interests demand it, and in this particular a large
discretion is necessarily vested in the legislature to determine, not only what the interests of the public
require, but what measures are necessary for the protection of such interests. (Barbier vs. Connolly,
113 U.S. 27; Kidd vs. Pearson, 128 U.S. 1.) To justify the State in thus interposing its authority in
behalf of the public, it must appear, first, that the interests of the public generally, as distinguished
from those of a particular class, require such interference; and, second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The
legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its
determination as to what is a proper exercise of its police powers is not final or conclusive, but is
subject to the supervision of the court.
195[32]
Republic Act No. 6770, Section 15, par.1, November 17, 1989, ―An Act Providing For the Functional and
Structural Organization of the Office of the Ombudsman, and For Other Purposes,‖ See also Ombudsman v.
Enoc, G.R. Nos. 145957-68, January 25, 2002, 374 SCRA 691. See also Ombudsman v. Breva, G.R. No.
145938, February 10, 2006, 482 SCRA 182.
196[33]
Presidential Decree No. 1606, December 10, 1978, ―Revising Presidential Decree No. 1486, Creating a
Special Court to be known as Sandiganbayan and for other purposes,‖ as amended by Republic Act No. 8249,
February 5, 1997, ―An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending For The Purpose
Presidential Decree No. 1606, As Amended, Providing Funds Therefor, And For Other Purposes.‖ See also
PCGG v. Hon. Emmanuel G. Peña, etc., et al., G.R. No. L-77663, April 12, 1988, 159 SCRA 556.
197[34]
Id. at 561-562, citing Presidential Decree No. 1606, Section 7, which provides that ―decisions and final
orders [of the Sandiganbayan] shall be subject of review on certiorari by the Supreme Court in accordance with
Rule 45 of the Rules of Court.‖
Page 63 of 256
is whether the Truth Commission shall undertake its tasks in a purely investigative
fact-finding capacity or in the exercise of quasi-judicial powers. This issue impacts
on the level of fairness that should be observed (and the standard of reason that
should apply), and thus carries due process implications. Equally important to the
issue of due process are the function of truth-telling and the effects of this function
when considered with the title “Truth Commission.”
Solicitor General Cadiz: Your Honor, of course our people will find closure if
aside from the truth finding of facts, those who have been found by the body to
have committed graft and corruption will be prosecuted by the Ombudsman.
It is. . .Your Honor, there is a crime committed and therefore punishment must be
meted out. However, Your Honor, truth-telling part, the mere narration of
facts, the telling of the truth, will likewise I think to a certain degree, satisfy
our people.
Justice Sereno: Are you saying therefore the truth-telling, that the narration like
the other narrations in the past commissions has an independent value apart from
the recommendations to indict which particular persons?
His statement is justified by the EO‘s mandate to seek and find the truth under
Section 1; the opening to the public of the hearing and proceedings under Section
6; and the publication of the Commission‘s final report under Section 15 of the
EO.199[36]
198[35]
TSN, September 28, 2010, pp. 58–60, 147.
199[36]
The Dissent of J. Sereno itself echoes and reechoes with the truth-telling intent of the Truth Commission and
even speaks of ―the need to shape collective memory as a way for the public to confront injustice and move
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C.2. Legal Implications of Truth-Telling
Truth-telling, as its name connotes, does not exist solely for the sake of
―truth‖; the “telling” side is equally important as the Solicitor General impressed
upon this Court during the oral arguments.200[37] Thus, to achieve its objectives,
truth-telling needs an audience to whom the truth shall be told.201[38] This
requirement opens up the reality that EO 1 really speaks in two forums.
The second forum – not as explicitly defined as the first but which must
implicitly and necessarily be there – is that shared with the general public as the
audience to whom the President (through the EO and the Truth Commission)
wishes to tell the story of the allegedly massive graft and corruption during the
previous administration. This is the distinct domain of truth-telling as the Solicitor
General himself impliedly admits in his quoted arguments.203[40] Section 6 of the
EO fully supports truth-telling, as it opens up the Commission‘s hearings or
proceedings to the public (and hence, to the mass media), subject only to an
towards a more just society‖ (p. 27, dissent). It proceeds to claim that this Separate Opinion ―eliminates the
vital role of the Filipino people in constructing collective memories of injustices as basis for redress.‖ J.
Sereno‘s Dissenting Opinion, pp. 27-28.
200[37]
TSN, September 28, 2010, pp. 146 – 147.
201[38]
See e.g. Bilbija, et al., eds., The Art of Truth Telling About Authoritarian Rule (2005), p. 14.
202[39]
CONSTITUTION, Article XI, Sections 12 and 13.
203[40]
Supra note 35.
Page 65 of 256
executive session ―where matters of national security or public safety are involved
or when the personal safety of the witness warrants the holding of such executive
or closed-door session hearing.‖
In the second forum, a very high element of finality exists as the information
communicated through the hearings, proceedings and the reports are directly ―told‖
the people as the ―truth‖ of the graft and corruption that transpired during the
previous administration. In other words, the Commission’s outputs are already the
end products, with the people as the direct consumers. In this sense, the element of
fairness that must exist in the second forum must approximate the rights of an
accused in a criminal trial as the consequence of truth-telling is no less than a final
―conviction‖ before the bar of public opinion based on the ―truth‖ the Commission
―finds.‖ Thus, if the Commission is to observe the rights of due process as Rule 1,
Section 4 of its Rules guarantees, then the right of investigated persons to cross-
204[41]
See Freeman, supra note 24, pp. 88-155.
205[42]
See Freeman, id. at 88.
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examine witnesses against them,206[43] the right against self-incrimination,207[44] and
all the rights attendant to a fair trial must be observed. The rights of persons under
investigation under Section 12 of the Bill of Rights of the Constitution208[45] must
likewise be respected.
The first problem of the EO is its use of the title ―Truth Commission‖ and its
objective of truth-telling; these assume that what the Truth Commission speaks of
is the ―truth‖ because of its title and of its truth-telling function; thus, anything
other than what the Commission reports would either be a distortion of the truth, or
may even be an ―untruth.‖
This problem surfaced during the oral arguments on queries about the effect
of the title ―Truth Commission‖ on the authority of the duly constituted tribunals
that may thereafter rule on the matters that the Commission shall report on.209[46]
Since the Commission‘s report will constitute the ―truth,‖ any subsequent contrary
finding by the Ombudsman210[47] would necessarily be suspect as an ―untruth;‖ it is
up then to the Ombudsman to convince the public that its findings are true.
Based on common and usual Philippine experience with its very active
media exemplified by the recent taking of Chinese and Canadian hostages at the
206[43]
CONSTITUTION, Article III, Section 14 (2), supra note 1.
207[44]
CONSTITUTION, Article III, Section 17.
208[45]
CONSTITUTION, Article III, Section 12.
209[46]
TSN, September 28, 2010, pp. 149-151.
210[47]
The Commission is bound to furnish the Ombudsman a copy of its partial and final reports for the
Ombudsman‘s consideration and action, under Sec. 2 of the EO.
211[48]
EO 1, Section 16.
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Luneta, a full opening to the media of the Commission‘s hearings, proceedings and
reports means a veritable media feast that, in the case of the Truth Commission,
shall occur on small but detailed daily doses, from the naming of all the persons
under investigation all the way up to the Commission‘s final report. By the time
the Commission report is issued, or even before then, the public shall have been
saturated with the details of the charges made through the publicly-aired written
and testimonial submissions of witnesses, variously viewed from the vantage
points of straight reporting, three-minute TV news clips, or the slants and personal
views of media opinion writers and extended TV coverage. All these are
highlighted as the power of the media and the environment that it creates can
never be underestimated. Hearing the same ―truth‖ on radio and television
and seeing it in print often enough can affect the way of thinking and the
perception, even of those who are determined, in their conscious minds, to avoid
bias.212[49]
As expected, this is a view that those supporting the validity of the EO either
dismisses as an argument that merely relies on a replaceable name, 213[50] or with
more general argument couched under the question ―Who Fears the Truth.‖214[51]
The ―Who Fears the Truth?‖ arguments, on the other hand, completely miss
the point of this Separate Opinion. This Opinion does not dispute that past graft
212[49]
See generally Malcolm Gladwell, Blink (2005); see also, Cardozo, The Nature of the Judicial Process, pp.
167-180, and as quoted elsewhere in this Separate Opinion, infra note 55.
213[50]
J. Carpio‘s Dissenting Opinion, pp. 19-211.
214[51]
J. Sereno‘s Dissenting Opinion, pp. 25- 29.
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and corruption must investigated and fully exposed; any statement to the contrary
in the Dissent are unfounded rhetoric written solely for its own partisan audience.
What this Opinion clearly posits as legally objectionable is the government‘s
manner of ―telling;‖ any such action by government must be made according to the
norms and limits of the Constitution to which all departments of government –
including the Executive – are subject. Specifically, the Executive cannot be left
unchecked when its methods grossly violate the Constitution. This matter is
discussed in full below.
This consequence does not seem to be a serious concern for the framers and
defenders of the EO, as the Commission‘s truth-telling function by then would
have been exercised and fully served. In the Solicitor General‘s words ―Your
Honor, there is crime committed and therefore punishment must be meted out.
However, your Honor, truth-telling part, the mere narration of facts, the telling of
the truth, will likewise I think to a certain degree satisfy our people.‖ On the
question of whether truth-telling has an independent value separate from the
indictment - he said: ―And it is certainly, as the EO says, it’s a Truth Commission
the narration of facts by the members of the Commission, I think, will be
appreciated by the people independent of the indictment that is expected
likewise.”215[52]
In other words, faced with the findings of the Commission, the Ombudsman
who enters a contrary ruling effectively carries the burden of proving that its
findings, not those of the Commission, are correct. To say the least, this resulting
reversal of roles is legally strange since the Ombudsman is the body officially
215[52]
TSN, September 28, 2010, p. 59.
Page 69 of 256
established and designated by the Constitution to investigate graft and other crimes
committed by public officers, while the Commission is a mere ―creation‖ of the
Executive Order. The Ombudsman, too, by statutory mandate has primary
jurisdiction over the investigation and prosecution of graft and corruption, while
the Commission‘s role is merely recommendatory.
At this point in the political development of the nation, the public is already
a very critical audience who can examine announced results and can form its own
conclusions about the culpability or innocence of the investigated persons,
irrespective of what conclusions investigative commissions may arrive at. This is a
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reality that cannot be doubted as the public has been exposed in the past to these
investigative commissions.
The present Truth Commission operating under the terms of the EO,
however, introduces a new twist that the public and the country have not met
before. For the first time, a Truth Commission, tasked with a truth-telling function,
shall speak on the ―truth‖ of what acts of graft and corruption were actually
committed and who the guilty parties are. This official communication from a
governmental body – the Truth Commission – whose express mandate is to find
and ―tell the truth‖ cannot but make a difference in the public perception.
A very interesting related material about the effect of core beliefs on the
decision-making of judges is the point raised by United States Supreme Court
Associate Justice Benjamin N. Cardozo217[54] in his book The Nature of the Judicial
Process218[55] where he said:
… Of the power of favour or prejudice in any sordid or vulgar or evil sense, I
have found no trace, not even the faintest, among the judges whom I have known.
But every day there is borne in on me a new conviction of the inescapable relation
216[53]
See Gladwell, supra note 49, pp. 49-73.
217[54]
Born May 24, 1870, New York; died July 9, 1938, Port Chester, NY. US Supreme Court – 1932-1938. He
was also a Judge of NY Court of Appeals from 1914 to 1932, and was its Chief Judge in the last 6 years of his
term with the Court of Appeals. See http://www.courts.state.ny.us/history/cardozo.htm [last visited December 2,
2010].
218[55]
Benjamin N. Cardozo, The Nature of the Judicial Process, (1921).
Page 71 of 256
between the truth without us and the truth within. The spirit of the age, as it is
revealed to each of us, is too often only the spirit of the group in which the
accidents of birth or education or occupation or fellowship have given us place.
No effort or revolution of the mind will overthrow utterly and at all times the
empire of the subconscious loyalties. ―Our beliefs and opinions,‖ says James
Harvey Robinson, ―like our standards of conduct come to us insensibly as
products of our companionship with our fellow men, not as results of our personal
experience and the inferences we individually make from our own observations.
We are constantly misled by our extraordinary faculty of ‗rationalizing‘ – that is,
of devising plausible arguments by accepting what is imposed upon us by the
traditions of the group to which we belong. We are abjectly credulous by nature,
and instinctively accept the verdict of the group. We are suggestible not merely
when under the spell of an excited mob, or a fervent revival, but we are ever and
always listening to the still small voice of the herd, and are ever ready to defend
and justify the instructions and warnings, and accept them as the mature results of
our own reasoning.‖ This was written, not of judges specially, but of men and
women of all classes.219[56] [Emphasis supplied]
Thus, Justice Cardozo accepted that ―subconscious loyalties‖ to the ―spirit‖ of the
group, i.e., the core beliefs within, is a major factor that affects the decision of a
judge. In the context of EO 1, that ―spirit‖ or core belief is what a generally trusted
government‘s220[57] repeated invocation of ―truth‖ apparently aims to reach. This
goal assumes significance given the Solicitor General‘s statement that truth-telling
is an end in itself. Read with what Justice Cardozo said, this goal translates to the
more concrete and currently understandable aim – to establish the ―truth‖ as
part of the accepted public belief; the EO‘s aim is achieved irrespective of what
the pertinent adjudicatory bodies may conclude, as even they could be influenced
by the generally accepted ―truth.‖
219[56]
Id. at 175-176.
220[57]
According to a recent SWS Survey conducted from October 20-29, 2010
http://www.mb.com.ph/articles/287833/80-filipinos-still-trust-aquino-despite-ratings-dip [last visited November
17, 2010].
221[58]
Supra note 55, pp. 178-179, citing Foreign Corporations in American Constitutional Law, p. 164 cf. Powell
―The Changing Law of Foreign Corporations,‖ 33 Pol. Science Quarterly, p. 569.
Page 72 of 256
comes that conduct and sympathies and fundamental desires have become so
inconsistent with the logical framework that it must be discarded. Then begins
the task of building up and rationalizing a new faith.
Although written in another context, this statement – relating to how one‘s belief is
supplanted by another – runs parallel to how the belief system of an individual
judge can be subtly affected by inconsistent influences and how he ultimately
succumbs to a new belief.
In the context of the EO, the Executive can investigate within the limits of
its legal parameters and can likewise publicize the results of its investigations to
the full limit of allowable transparency. But in so doing, it cannot act as catalyst
by labelling the action of the Commission it has created as officially-sanctioned
and authoritative truth-telling before the officially-designated bodies – the
Ombudsman and the courts – have spoken. While the emergence of truth is a basic
and necessary component of the justice system, the truth-seeking and truth-finding
processes cannot be speeded up through steps that shortcut and bypass processes
established by the Constitution and the laws. As heretofore mentioned, the
international experiences that gave rise to the title Truth Commission were
transitional situations where, for peculiar reasons (such as the temporary absence
of an established judicial system or the need to speed up the transition to
democratic rule), the use of ad hoc commissions were called for. In the Philippine
setting, the closest similar situation would be the immediate aftermath of the 1986
EDSA Revolution as the country struggled in the transition from authoritarian
martial law regime into a full-fledged democracy. To be sure, the shortcut to the
emergence of truth, fashioned under the terms of EO 1, finds no justification
after the 1987 Constitution and its rights, freedoms and guarantees have been
fully put in place.
Page 73 of 256
A.4.2. The Effects on the Judicial System
Under the present justice system, the media may fully report, as they do
report, all the details of a reported crime and may even give the suspects detailed
focus. These reports, however, are not branded as the “truth” but as matters that
will soon be brought to the appropriate public authorities for proper investigation
and prosecution, if warranted. In the courts, cases are handled on the basis of the
rules of evidence and with due respect for the constitutional rights of the accused,
and are reported based on actual developments, subject only to judicial
requirements to ensure orderly proceedings and the observance of the rights of the
accused. Only after the courts have finally spoken shall there be any conclusive
narrative report of what actually transpired and how accused individuals may have
participated in committing the offense charged. At this point, any public report
and analysis of the findings can no longer adversely affect the constitutional rights
of the accused as they had been given all the opportunities to tell their side in court
under the protective guarantees of the Constitution.
222[59]
Rules, Rule 4, Section 2.
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Viewed from the above perspectives, what becomes plainly evident is an EO
that, as a means of fighting graft and corruption, will effectively and prejudicially
affect the parties inter-acting with the Truth Commission. The EO will erode the
authority and even the integrity of the Ombudsman and the courts in acting on
matters brought before them under the terms of the Constitution; its premature and
―truthful‖ report of guilt will condition the public’s mind to reject any finding other
than those of the Commission.
The EO and its truth-telling function must also be struck down as they
distort the constitutional and statutory plan of the criminal justice system without
the authority of law and with an unconstitutional impact on the system.
The Constitution has given the country a well-laid out and balanced division
of powers, distributed among the legislative, executive and judicial branches, with
Page 75 of 256
specially established offices geared to accomplish specific objectives to strengthen
the whole constitutional structure.
The Executive branch is tasked with the enforcement of the laws that the
Legislature shall pass. In the dispensation of justice, the Executive has the
prerogative of appointing justices and judges,227[64] and the authority to investigate
and prosecute crimes through a Department of Justice constituted in accordance the
Administrative Code.228[65] Specifically provided and established by the
Constitution, for a task that would otherwise fall under the Executive’s
investigatory and prosecutory authority, is an independent Ombudsman for the
purpose of acting on, investigating and prosecuting allegedly criminal acts or
omissions of public officers and employees in the exercise of their functions.
While the Ombudsman‘s jurisdiction is not exclusive, it is primary; it takes
precedence and overrides any investigatory and prosecutory action by the
Department of Justice.229[66]
The Judiciary, on the other hand, is given the task of standing in judgment
over the criminal cases brought before it, either at the first instance through the
municipal and the regional trial courts, or on appeal or certiorari, through the
appellate courts and ultimately to the Supreme Court.230[67] An exception to these
generalities is the Sandiganbayan, a special statutorily-created court with the
exclusive jurisdiction over criminal acts committed by public officers and
223[60]
CONSTITUTION, Article VIII, Section 2. See also Bernas, supra note 30, p. 959.
224[61]
Id., Article VIII, Section 7 (2).
225[62]
People v. Maceren, G.R. No. L-32166 October 18, 1977, 79 SCRA 450, 461 citing 1 Am. Jur. 2nd, sec.
127, p. 938; Texas Co. v. Montgomery, 73 F. Supp. 527: It has been held that "to declare what shall constitute a
crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be delegated
to any other body or agency."
226[63]
CONSTITUTION, Article VIII, Section 5.
227[64]
CONSTITUTION, Article VIII, Section 8.
228[65]
REVISED ADMINISTRATIVE CODE, Book II, Chapter II, Section 22.
229[66]
Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April
13, 2004, 427 SCRA 46. See also Ombudsman v. Enoc, supra note 32.
230[67]
See Batas Pambansa Blg. 129, “An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and For
Other Purposes.”
Page 76 of 256
employees in the exercise of their functions.231[68] Underlying all these is the
Supreme Court‘s authority to promulgate the rules of procedure applicable to
courts and their proceedings,232[69] to appoint all officials and employees of the
Judiciary other than judges,233[70] and to exercise supervision over all courts and
judiciary employees.234[71]
In the usual course, an act allegedly violative of our criminal laws may be
brought to the attention of the police authorities for unilateral fact-finding
investigation. If a basis for a complaint exists, then the matter is brought before
the prosecutor‘s office for formal investigation, through an inquest or a preliminary
investigation, to determine if probable cause exists to justify the filing of a formal
complaint or information before the courts. Aside from those initiated at the
instance of the aggrieved private parties, the fact-finding investigation may be
made at the instance of the President or of senior officials of the Executive branch,
to be undertaken by police authorities, by the investigatory agencies of the
Department of Justice, or by specially constituted or delegated officials or
employees of the Executive branch; the preliminary investigation for the
determination of probable cause is a task statutorily vested in the prosecutor‘s
office.235[72] Up to this point, these activities lie within the Executive branch of
government and may be called its extrajudicial participation in the justice system.
By specific authority of the Constitution and the law, a deviation from the
above general process occurs in the case of acts allegedly committed by public
officers and employees in the performance of their duties where, as mentioned
above, the Ombudsman has primary jurisdiction. While the Executive branch itself
may undertake a unilateral fact-finding, and the prosecutor‘s office may conduct
preliminary investigation for purposes of filing a complaint or information with the
courts, the Ombudsman‘s primary jurisdiction gives this office precedence and
dominance once it decides to take over a case.236[73]
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innocence of the accused. A case involving criminal acts or omissions of public
officers and employees in the performance of duties falls at the first instance within
the exclusive jurisdiction of the Sandiganbayan,237[74] subject to higher recourse to
the Supreme Court. This is the strictly judicial aspect of the criminal justice
system.
Under the above processes, our laws have delegated the handling of criminal
cases to the justice system and there the handling should solely lie, supported by all
the forces the law can muster, until the disputed matter is fully resolved. The
proceedings – whether before the Prosecutor‘s Office, the Ombudsman, or before
the courts – are open to the public and are thereby made transparent; freedom of
information238[75] and of the press239[76] guarantee media participation, consistent
with the justice system‘s orderly proceedings and the protection of the rights of
parties.
Page 78 of 256
described first forum), since the Commission will investigate matters that are
bound to go to the justice system. In other words, the Commission‘s activities,
including its truth-telling function and the second forum this function creates,
become the prelude to the entry of criminal matters into the Ombudsman and into
the strictly judicial aspect of the system.
Once the door is opened to the Truth Commission approach and public
opinion enters as a consideration in the judicial handling of criminal cases, then the
rules of judging would have effectively changed; reliance on the law, the rules and
jurisprudence would have been weakened to the extent that judges are on the
lookout, not only for what the law and the rules say, but also for what the public
feels about the case. In this eventuality, even a noisy minority can change the
course of a case simply because of their noise and the media attention they get.
(Such tactics have been attempted in the immediate past where pressure has been
brought to bear on this Court through street demonstrations bordering on anarchy,
the marshalling of opinions locally and internationally, and highly partisan media
comments.) The primacy of public opinion may, without doubt, appeal to some but
this is simply not the way of a Judiciary constitutionally-designed to follow the
rule of law.
The Executive can also designate officials and employees of the Executive
Department (or even appoint presidential assistants or consultants)242[79] to
undertake fact-finding investigation for its use pursuant to the vast powers and
responsibilities of the Presidency, but it cannot create a separate body, in the way
and under the terms it created the Truth Commission, without offending the
Constitution.
The following indicators, however, show that the President was not simply
appointing presidential assistants or assistants when he constituted the Truth
Commission as an investigating or fact-finding body.
First, the President ―created‖ the Truth Commission; the act of creation goes
beyond the mere naming, designation or appointment of assistants and consultants.
There is no need to ―create‖ – i.e., to constitute or establish something out of
nothing, or to establish for the first time243[80] – if only the designation or
appointment of a presidential assistant or consultant is intended. To ―create‖ an
office, too, as the petitioners rightfully claim, is a function of the Legislature under
the constitutional division of powers.244[81] Note in this regard, and as more fully
240[77]
Honasan II v. Panel of Investigators, supra note 66.
241[78]
See Honasan II v. Panel of Investigators, supra note 66. See also RULES OF COURT, Rule 112, Sections 2
and 4.
242[79]
REVISED ADMINISTRATIVE CODE, Chapter 9 (D), Title II, Book III.
243[80] th
BLACK’S LAW DICTIONARY (5 ed., 1979), p. 330.
244[81]
Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718,
726, citing Isagani Cruz, The Law on Public Officers (1999 ed.), p. 4.
Page 81 of 256
discussed below, that what the Revised Administrative Code, through its Section
31, allows the President is to ―reorganize,‖ not to create a public office within the
Executive department.
It is not insignificant that the Commission has its own Rules of Procedure
that it issued on its own on the authority of the EO. Note that these are not the
rules of the Office of the President but of another body, although one constituted
by the President.
The Commission has its own complete set of officers, beginning from the
Chair and members of the Commission; it has its own consultants, experts, and
employees, although the latter are merely drawn from the Executive
department;246[83] and it even has provisions for its own budget, although these
funds ride on and are to be drawn from the budget of the Office of the President.
Third, the Commission has its own identity, separate and distinct from the
Office of the President, although it still falls within the structural framework of that
office. The Commission undertakes its own ―independent‖ investigation 247[84] that,
according to the Solicitor General, will not be controlled by the Office of the
President;248[85] and it communicates on its own, under its own name, to other
branches of government outside of the Executive branch.
Lastly, the Commission as an office has been vested with functions that not
even the Office of the President possesses by authority of law, and which the
President, consequently, cannot delegate. Specifically, the Commission has its
truth-telling function, because it has been given the task to disclose the ―truth‖ by
the President, thus giving its report the imprimatur of truth well ahead of any
determination in this regard by the constitutional bodies authorized to determine
the existence of probable cause and the guilt or culpability of individuals.
245[82]
EO 1, Section 1.
246[83]
EO 1, Sections 3 and 5.
247[84]
EO 1, Section 1.
248[85]
TSN, September 28, 2010, p. 166.
Page 82 of 256
If the President cannot give the official label of truth independently of the
courts in a fact-finding in a criminal case, either by himself or through the
Department of Justice, it only follows that he cannot delegate this task to any
assistant, consultant, or subordinate, even granting that he can order a fact-finding
investigation based on the powers of his office. This truth-telling function
differentiates the Truth Commission from other commissions constituted in the
past such as the Agrava, Feliciano and Melo Commissions; the pronouncements of
the latter bodies did not carry the imprimatur of truth, and were mere preliminary
findings for the President‘s consideration. An exact recent case to drive home this
point is the Chinese hostage incident where the Office of the President modified
the Report submitted by a duly-constituted group headed by Secretary Leila de
Lima.249[86] Apparently, the findings of the De Lima committee did not carry the
imprimatur of truth and were merely recommendatory; otherwise the Office of the
President would not have modified its findings and recommendations.
Given all the possibilities open to the President for a legitimate fact-finding
intervention – namely, through fact-finding by the Department of Justice or by the
Office of the President itself, utilizing its own officials, employees, consultants or
assistants – the President is not wanting in measures within the parameters allowed
by law to fight graft and corruption and to address specific instances that come to
his attention. To be sure, the Philippine situation right now is far from the
situations in South Africa, Rwanda, and South America,250[87] where quick
transitional justice251[88] had to be achieved because these countries were coming
249[86]
See http://www.gmanews.tv/story/201465/full-text-iirc-report-on-august-23-2010-rizal-park-hostage-
taking-incident, [last visited November 17, 2010].
250[87]
See Jonathan Horowitz, Racial (Re) Construction: The Case of the South African Truth and Reconciliation
Commission, 17 NAT'L BLACK L.J. 67 (2003); Evelyn Bradley, In Search for Justice – A Truth and
Reconciliation Commission for Rwanda, 7 J. INT'L L. & PRAC. 129 (1998).
251[88]
See Catherine O’Rourke, The Shifting Signifier of “Community in Transitional Justice: A Feminist Analysis¸
23 WIS. J.L. GENDER & SOC'Y 269 (2008) citing Transitional Justice and Rule of Law Interest Group, American
Page 83 of 256
from a period of non-democratic rule and their desired justice systems were not yet
fully in place. This reality removes any justification for the President to resort to
extralegal (or even illegal) measures and to institutions and mechanisms outside of
those already in place, in proceeding against grafters in the previous
administration.
Page 84 of 256
In the present case, the exclusive authority of Congress in creating a public
office is not questioned. The issue raised regarding the President‘s power to create
the Truth Commission boils down to whether the Constitution allows the creation
of the Truth Commission by the President or by an act of Congress.
255[92]
EO 1, 8th and last Whereas Clause.
256[93]
Buklod ng Kawaning EIIB v. Hon. Executive Secretary, supra note 81.
Page 85 of 256
These traditional concepts of reorganization do not appear to have taken
place in the establishment of the Truth Commission. As heretofore mentioned, by
its plain terms, it was ―created‖ and did not simply emerge from the functions or
the personality of another office, whether within or outside the Office of the
President. Thus, it is a completely new body that the President constituted, not a
body that appropriated the powers of, or derived its powers from, the investigatory
and prosecutory powers of the Department of Justice or any other investigatory
body within the Executive branch.
From the Solicitor General‘s Memorandum, it appears that the inspiration for
the EO came from the use and experiences of truth commissions in other countries
that were coming from ―determinate periods of abusive rule or conflict‖ for
purposes of making ―recommendations for [the] redress and future
prevention‖257[94] of similar abusive rule or conflict. It is a body to establish the
―truth of what abuses actually happened in the past;‖ the Solicitor General even
suggests that the ―doctrine of separation of powers and the extent of the powers of
co-equal branches of government should not be so construed as to restrain the
Executive from uncovering the truth about betrayals of public trust, from
addressing their enabling conditions, and from preventing their recurrence.‖258[95]
By these perorations, the Solicitor General unwittingly strengthens the view that no
reorganization ever took place when the Truth Commission was created; what the
President ―created‖ was a new office that does not trace its roots to any existing
office or function from the Office of the President or from the executive
departments and agencies he controls.
Thus, the President cannot legally invoke Section 31 to create the Truth
Commission. The requirements for the application of this Section are simply not
present; any insistence on the use of this Section can only lead to the invalidity of
EO 1.
257[94]
Solicitor General‘s Memorandum, rollo, p. 332.
258[95]
Id. at 324.
Page 86 of 256
1416, as amended by PD No. 1772, based on the President‘s residual powers under
Section 20, Title I, Book III of E.O. No. 292.‖ He cites in this regard the case of
Larin v. Executive Secretary259[96] and according to him:
x x x This provision speaks of such other powers vested in the President under the
law. What law then which gives him the power to reorganize? It is Presidential
Decree No. 1772 which amended Presidential Decree No. 1416. These decrees
expressly grant the President of the Philippines the continuing authority to
reorganize the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities and to standardize salaries
and materials. The validity of these two decrees are unquestionable. The 1987
Constitution clearly provides that "all laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed
or revoked." So far, there is yet no law amending or repealing said decrees.260[97]
[Emphasis supplied]
Upon the adoption of the 1987 Constitution, and the re-introduction of the
presidential form of government, the ―separation of legislative and executive
powers‖262[99] was restored. Similarly recognized were the limits on the exercise of
259[96]
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
260[97]
Solicitor General‘s Consolidated Comment, rollo, pp. 148-149.
261[98]
Aquino v. COMELEC, No. L-40004, January 31, 1975, 62 SCRA 275.
262[99]
Gonzales v. PAGCOR, G. R. No. 144891, May 27, 2004, 429 SCRA 533,545.
Page 87 of 256
the carefully carved-out and designated powers of each branch of government.
Thus, Congress regained the exclusive power to create public offices; PD 1416, as
amended by PD 1776 – a creation of the legal order under President Marcos – lost
its authority as a justification for the creation of an office by the President.
Thus, the present and firmly established legal reality is that under the 1987
Constitution and the Revised Administrative Code, the President cannot create a
public office except to the extent that he is allowed by Section 31, Chapter 10,
Book III of the Revised Administrative Code. As discussed above, even this
narrow window cannot be used as the President did not comply with the
requirements of Section 31.
Article VII, Section 17 of the 1987 Constitution directs and authorizes the
President to faithfully execute the laws and the potency of this power cannot be
underestimated. Owing perhaps to the latitude granted to the President under this
constitutional provision, the Solicitor General posited that the President‘s power to
create the Truth Commission may be justified under this general grant of authority.
In particular, the Solicitor General argues that the ―President‘s power to conduct
investigations to aid him in ensuring the faithful execution of laws – in this case,
263[100]
G.R. No. 166620, April 20, 2010.
264[101]
Supra note 96.
265[102]
Supra note 81.
266[103]
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
267[104]
J. Carpio‘s Separate Concurring Opinion. Supra note 100.
Page 88 of 256
fundamental laws on public accountability and transparency – is inherent in the
President‘s powers as the Chief Executive.‖ 268[105] The Solicitor General further
argues: ―That the authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the Constitution or in
statutes does not mean he is bereft of such authority.‖269[106]
That the President cannot, in the absence of any statutory justification, refuse
to execute the laws when called for is a principle fully recognized by
jurisprudence. In In re Neagle, the US Supreme Court held that the faithful
execution clause is ―not limited to the enforcement of acts of Congress according
to their express terms.‖270[107] According to Father Bernas, Neagle ―saw as law that
had to be faithfully executed not just formal acts of the legislature but any duty or
obligation inferable from the Constitution or from statutes.‖271[108]
Under his broad powers to execute the laws, the President can undoubtedly
create ad hoc bodies for purposes of investigating reported crimes. The President,
however, has to observe the limits imposed on him by the constitutional plan: he
must respect the separation of powers and the independence of other bodies which
have their own constitutional and statutory mandates, as discussed above. Contrary
to what J. Antonio Eduardo B. Nachura claims in his Dissent, the President cannot
claim the right to create a public office in the course of implementing the law, as
this power lodged exclusively in Congress. An investigating body, furthermore,
must operate within the Executive branch; the President cannot create an office
outside the Executive department.
These legal realities spawned the problems that the Solicitor General created
for himself when he made conflicting claims about the Truth Commission during
the oral arguments. For accuracy, the excerpts from the oral arguments are best
quoted verbatim.272[109]
Associate Justice Nachura: Mr. Solicitor General, most of my questions have
actually been asked already and there are few things that I would like to be
clarified on. Well, following the questions asked by Justice Carpio, I would like a
clarification from you, a definite answer, is the Truth Commission a public office?
268[105]
Solicitor General‘s Consolidated Comment, rollo, p. 160.
269[106]
Id. at 41.
270[107]
135 U.S. 1, 59 (1890).
271[108]
Bernas, supra note 30, p. 895.
272[109]
TSN, September 28, 2010, pp. 209-214.
Page 89 of 256
Associate Justice Nachura: Ah, you mean it is not a public office?
Solicitor General Cadiz: It is not a public office in the concept that it has to be
created by Congress, Your Honor.
Associate Justice Nachura: Oh, come on, I agree with you that the President can
create public offices, that was what, ah, one of the questions I asked Congressman
Lagman.
Associate Justice Nachura: Because he was insisting that only Congress could
create public office although, he said, the President can create public offices but
only in the context of the authority granted under the Administrative Code of
1987. So, it is a public office?
Associate Justice Nachura: This is definite, categorical. You are certain now
that Truth Commission (interrupted)
Solicitor General Cadiz: Yes, Your Honor, under the Office of the President
Proper, yes, Your Honor.
Solicitor General Cadiz: That this Truth Commission is a public office, Your
Honor, created under the Office of the President.
Associate Justice Nachura: Okay, created under the Office of the President,
because it is the President who created it. And the President can create offices
only within the executive department. He cannot create a public office outside of
the executive department, alright.
Associate Justice Nachura: Okay. So, the Commissioners who are appointed
are what, Presidential Assistants? Are they Presidential Assistants?
Page 90 of 256
Solicitor General Cadiz: No, Your Honor. There is created a Truth
Commission, and Commissioners are appointed and it so stated here that they are
independent.
Associate Justice Nachura: Are you saying now that the Commissioners are not
under the power and control of the President of the Philippines?
Associate Justice Nachura: Aha, alright. So, the Truth Commission is not an
office within the executive department, because it is not under the power of
control of the President, then, Section 17 of Article VII would not apply to them,
is that it?
Solicitor General Cadiz: Your Honor, the President has delineated his power by
creating an Executive Order which created the Commission, which says, that this
is an independent body, Your Honor.
Associate Justice Nachura: Okay. So, what you are saying is, this is a creation
of the President, it is under the President‘s power of control, but the President has
chosen not to exercise the power of control by declaring that it shall be an
independent body?
Associate Justice Nachura: That is your position. I would like you to place that
in your memorandum and see. I would like to see how you will develop that
argument.
Page 91 of 256
Specifically, while admitting that the Truth Commission is a ―creation‖ of
the President under his office pursuant to the latter‘s authority under the
Administrative Code of 1987, the Solicitor General incongruously claimed that the
Commission is ―independent‖ of the Office of the President and is not under his
control. Mercifully, J. Nachura suggested that the President may have created a
body under his control but has chosen not to exercise the power of control by
declaring that it is an independent body, to which the Solicitor General fully
agreed.
Truth to tell (no pun intended), the Solicitor General appears under these
positions to be playing a game of smoke and mirrors with the Court. For purposes
of the creation of the Truth Commission, he posits that the move is fully within the
President‘s authority and in the performance of his executive functions. This
claim, of course, must necessarily be based on the premise that execution is by the
President himself or by people who are within the Executive Department and
within the President‘s power of supervision and control, as the President cannot
delegate his powers beyond the Executive Department. At the same time, he
claims that the Commissioners (whom he refuses to refer to as Presidential
Assistants or as alter egos of the President)274[111] are independent of the President,
apparently because the President has waived his power of control over them.
All these necessarily lead to the question: can the President really create an
office within the Executive branch that is independent of his control? The short
answer is he cannot, and the short reason again is the constitutional plan. The
execution and implementation of the laws have been placed by the Constitution on
the shoulders of the President and on none other.275[112] He cannot delegate his
executive powers to any person or entity outside the Executive department except
by authority of the Constitution or the law (which authority in this case he does not
have), nor can he delegate his authority to undertake fact-finding as an incident of
General’s own admission during oral arguments that the Truth Commission, particularly the Commissioners
are not under the power of control by the President. In fact, the Solicitor General went as far as to admit that
the President has in fact relinquished the power of control over the Commission to underscore its
independence.
274[111]
TSN, September 28, 2010, p. 214.
275[112]
CONSTITUTION, Article VII, Section 1: ‗The Executive Power shall be vested in the President of the
Philippines.‖ See Bernas, supra note 30, p. 820: ―With the 1987 Constitution, the constitutional system returns
to the presidential model of the 1935 Constitution: executive power is vested in the President.‖ Father Bernas
further states: ―In vesting executive power in one person rather than in a plural executive, the evident intention
was to invest the power holder with energy.‖
Page 92 of 256
his executive power, and at the same time take the position that he has no
responsibility for the fact-finding because it is independent of him and his office.
Under the constitutional plan, the creation of this kind of office with this
kind of independence is lodged only in the Legislature.276[113] For example, it is
only the Legislature which can create a body like the National Labor Relations
Commission whose decisions are final and are neither appealable to the President
nor to his alter ego, the Secretary of Labor.277[114] Yet another example, President
Corazon Aquino herself, because the creation of an independent commission was
outside her executive powers, deemed it necessary to act pursuant to a legislative
fiat in constituting the first Davide Commission of 1989.278[115]
Page 93 of 256
is within the Executive branch and as such is subject to the control and supervision
of the President. In fact, the circumstances surrounding the existence of the
Commission – already outlined above in terms of its processes, facilities, budget
and staff – cannot but lead to control. Likewise, if indeed the Truth Commission is
under the control of the President who issued the EO with openly-admitted
political motivation,279[116] then the Solicitor General‘s representation about the
Commission‘s independently-arrived ―truth‖ may fall under the classification of a
smoke and mirror political move. Sad to state, the Solicitor General chose to aim
for the best of all worlds in making representations about the creation and the
nature of the Commission. We cannot allow this approach to pass unnoticed and
without the observations it deserves.
In sum, this Court cannot and should not accept an arrangement where: (1)
the President creates an office pursuant to his constitutional power to execute the
laws and to his Administrative Code powers to reorganize the Executive branch,
and (2) at the same time or thereafter allow the President to disavow any link with
the created body or its results through a claim of independence and waiver of
control. This arrangement bypasses and mocks the constitutional plan on the
separation of powers; among others, it encroaches into Congress‘ authority to
create an office. This consequence must necessarily be fatal for the arrangement is
inimical to the doctrine of separation of powers whose purpose, according to
Father Joaquin Bernas, is:
to prevent concentration of powers in one department and thereby to avoid
tyranny. But the price paid for the insurance against tyranny is the risk of a
degree of inefficiency and even the danger of gridlock. As Justice Brandeis put it,
279[116]
See 6th Whereas Clause, EO 1.
Page 94 of 256
―the doctrine of separation of powers was adopted…not to promote efficiency but
to preclude the exercise of arbitrary power. The purpose was not to avoid friction,
but, by means of the inevitable friction incident to the distribution of
governmental powers among the three departments, to save the people from
autocracy.‖280[117]
Indeed, to allow one department of government, without the authority of law or the
Constitution, to be granted the authority to bestow an advanced imprimatur of
“truth” bespeaks of a concentration of power that may well overshadow any
initiative to combat graft and corruption; in its own way, this grant itself is an open
invitation to the very evils sought to be avoided.
Separately from the above effects, truth-telling as envisioned under the EO,
carries prejudicial effects on the persons it immediately targets, namely: the
officials, employees and private individuals alleged to have committed graft and
corruption during the previous administration. This consequence proceeds from the
above discussed truth-telling premise that –whether the Commission reports
(recommending the charging of specific individuals) are proven or not in the
appropriate courts – the Commission‘s function of truth-telling function would
have been served and the Commission would have effectively acted against the
charged individuals.
Page 95 of 256
however, is hardly necessary where the prejudicial effects are self-evident, i.e.,
given that the announced and undisputed government position that truth-telling per
se, in the manner envisioned by the EO and its implementing rules, is an
independent objective the government wants to achieve. When the government
itself has been heard on the ―truth,‖ the probability of prejudice for the individual
charged is not only a likelihood; it approaches the level of certainty.
In testing the validity of a government act or statute, such potential for harm
suffices to invalidate the challenged act; evidence of actual harm is not necessary
in the way it is necessary for a criminal conviction or to justify an award for
damages. In plainer terms, the certainty of consequent damage requires no
evidence or further reasoning when the government itself declares that for as long
as the ―story‖ of the allegedly massive graft and corruption during the past
administration is told, the Commission would have fulfilled one of its functions to
satisfaction; under this reckless approach, it is self-evident that the mistaken object
of the ―truth‖ told must necessarily suffer.
When the Commission‘s report itself is characterized, prior to trial, and held
out by the government to be the true story of the graft and corruption charged, the
chances of individuals to have a fair trial in a subsequent criminal case cannot be
very great.
Consider on this point that not even the main actors in the criminal justice
system – the Ombudsman, the Sandiganbayan and even this Court – can avoid the
cloud of ―untruth‖ and a doubtful taint in their integrity after the government has
Page 96 of 256
publicized the Commission‘s findings as the truth. If the rulings of these
constitutional bodies themselves can be suspect, individual defenses for sure
cannot rise any higher.
Where the government simply wants to tell its story, already labelled as true,
well ahead of any court proceedings, and judicial notice is taken of the kind of
publicity and the ferment in public opinion that news of government scandals
generate, it does not require a leap of faith to conclude that an accused brought to
court against overwhelming public opinion starts his case with a less than equal
chance of acquittal. The presumption of innocence notwithstanding, the playing
field cannot but be uneven in a criminal trial when the accused enters trial with a
government-sponsored badge of guilt on his forehead.281[118] The presumption of
innocence in law cannot serve an accused in a biased atmosphere pointing to
guilt in fact because the government and public opinion have spoken against
the accused.
Viewed from the perspective of its cause, the prejudicial publicity, that
adversely affects the chances of an accused for a fair trial after the EO has done its
job, is not the kind that occurs solely because of the identity of the individual
accused. This prejudice results from a cause systemic to the EO because of its
truth-telling feature that allows the government to call its proceedings and reports a
process of truth-telling where the tales cannot but be true. This kind of systemic
aberration has no place in the country‘s dispensation of criminal justice system and
should be struck down as invalid before it can fully work itself into the criminal
justice system as an acceptable intervention.
281[118]
See e.g. Allenet de Ribemont v. France, February 10, 1995, 15175/89 [1995] ECHR 5, where the European
Court of Human Rights held that the right to presumption of innocence may be ―infringed not only by a judge or
court but also by other public authorities.‖ The ECHR likewise held:
The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the
elements of the fair criminal trial that is required by paragraph 1 (art. 6-1) (see, among other
authorities, the Deweer v. Belgium judgment, of 27 February 1980, Series A no. 35, p. 30, para.
56, and the Minelli judgment previously cited, p. 15, para. 27). It will be violated if a judicial
decision concerning a person charged with a criminal offence reflects an opinion that he is guilty
before he has been proved guilty according to law. It suffices, even in the absence of any formal
finding, that there is some reasoning suggesting that the court regards the accused as guilty
(see the Minelli judgment previously cited, p. 18, para. 37). [emphasis supplied]
Page 97 of 256
The guarantee of equal protection of the law is a branch of the right to due
process embodied in Article III, Section 1 of the Constitution. It is rooted in the
same concept of fairness that underlies the due process clause. In its simplest
sense, it requires equal treatment, i.e., the absence of discrimination, for all those
under the same situation. An early case, People v. Cayat,282[119] articulated the
requisites determinative of valid and reasonable classification under the equal
protection clause, and stated that it must
(1) rest on substantial distinctions;
282[119]
68 Phil. 12 (1939).
283[120]
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15,
2004, 446 SCRA 299, 370.
284[121]
See Central Bank Employees Association, Inc. v. Bangko Sental ng Pilipinas, id., where the Court
expanded the concept of suspect classification; See also Serrano v. Gallant Maritime Services, Inc., infra
where the Court applied the strict scrutiny test.
285[122]
G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-278.
Page 98 of 256
interferes with the exercise of a fundamental right or operates to the peculiar
disadvantage of a suspect class is presumed unconstitutional, and the burden is
upon the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such
interest. [Emphasis supplied]
The most exacting of the three tests is evidently the strict scrutiny test,
which requires the government to show that the challenged classification serves a
compelling state interest and that the classification is necessary to serve that
interest.286[123] Briefly stated, the strict scrutiny test is applied when the challenged
statute either:
EO 1‘s problem with the equal protection clause lies in the truth-telling
function it gave the Truth Commission.
286[123]
Supra note 30, pp. 139-140.
287[124]
J. Carpio-Morales‘ Dissenting Opinion. Supra note 120, p. 485.
288[125]
See Item I (c) of this Concurring Opinion, p. 8.
Page 99 of 256
As extensively discussed earlier in this Opinion, truth-telling is not an
ordinary task, as the Commission‘s reports to the government and the public are
already given the imprimatur of truth way before the allegations of graft and
corruption are ever proven in court. This feature, by itself, is a unique differential
treatment that cannot but be considered in the application of the jurisprudential
equal protection clause requirements.
Thus, from the points of truth-telling and the focus on the people to be
investigated, at least a double layer of differential treatment characterizes the Truth
Commission‘s investigation. Given these disparate treatment, the equal protection
question that arises is: does the resulting classification and segregation of third
level officials of the previous administration and their differential treatment rest on
substantial distinctions? Stated more plainly, is there reasonable basis to
differentiate the officials of the previous administration, both from the focus
given to them in relation with all other officials as pointed out above, and in the
truth-telling treatment accorded to them by the Commission?
289[126]
EO 1, Section 2.
In the present case, as shown by the previously cited grounds for the EO‘s
invalidity, EO No. 1 infringes the personal due process rights of the
investigated persons, as well as their constitutional right to a fair trial.
Indisputably, both these rights – one of them guaranteed under Section 1, Article
III, and under Section 14 of the same Article – are, by jurisprudential definition,
fundamental rights. With these infringements, the question now thus shifts to the
application of the strict scrutiny test – an exercise not novel in this jurisdiction.
290[127]
Supra note 120, pp. 495-496.
291[128]
Id. at 387, 390.
xxx
Stripped of the usual deference accorded to it, the government must show that a
compelling state interest exists to justify the differential treatment that EO 1
fosters.
In this same cited case, the Court categorically ruled that ―the burden is upon the
government to prove that the classification is necessary to achieve a compelling
state interest and that it is the least restrictive means to protect such
interest.‖293[130]
On its face, the compelling state interest the EO cites is the “urgent call for
the determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the Government
and in their public servants.‖294[131] Under these terms, what appears important to
292[129]
Supra note 120, p. 296.
293[130]
Id. at 278 citing Grutter v. Bollinger,539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).
294[131]
EO 1, 5th Whereas Clause.
In the usual course and irrespective of who the malefactors are and when
they committed their transgressions, grafters and corruptors ought to be
prosecuted. This is not only a goal but a duty of government. Thus, by itself, the
prosecution that the EO envisions is not any different from all other actions the
government undertakes day to day under the criminal justice system in proceeding
against the grafters and the corrupt. In other words, expressed as a duty, the
compelling drive to prosecute must be the same irrespective of the administration
under which the graft and corruption were perpetrated. If indeed this is so, what
compelling reasons can there be to drive the government to use the EO and its
unusual terms in proceeding against the officials of the previous administration?
If the EO‘s terms are to be the yardstick, the basis for the separate focus is
the ―extent and magnitude‖ of the reported graft and corruption which ―shock and
offend the moral and ethical sensibilities of the people.‖ What this ―extent and
magnitude‖ is or what specific incidents of massive graft are referred to, however,
have been left vague. Likewise, no explanation has been given on why special
measures – i.e., the special focus on the targeted officials, the creation of a new
office, and the grant of truth-telling authority – have been taken.
It is noteworthy that the terms of the EO itself do not provide any specific
reason why, for purposes of conveying a message against graft and corruption, the
focus should be on officials of the previous administration under the EO‘s special
truth-telling terms. As mentioned above, the extent of the alleged graft and
corruption during the previous administration does not appear to be a sufficient
reason for distinction under the EO‘s vague terms. Additionally, if a lesson for the
public is really intended, the government already has similar successful
prosecutions to its credit and can have many more graphic examples to draw from;
it does not need to be driven to unusual means to show the graft and corruption
committed under the previous administration. The host of examples and
methodologies already available to the government only demonstrate that the focus
on, and differential treatment of, specific officials for public lesson purposes
involves a classification unsupported by any special overriding reason.
Given the lack of sufficiently compelling reasons to use two (2) of the three
(3) objectives or interests the government cited in EO 1, what is left of these
expressed interests is simply the desire to expose the graft and corruption the
previous administration might have committed. Interestingly, the EO itself partly
provides the guiding spirit that might have moved the Executive to its intended
expose as it unabashedly points to the President‘s promise made in the last election
– “Kung walang corrupt, walang mahirap.”295[132] There, too, is the Solicitor
295[132]
EO 1, 6th Whereas Clause.
Juxtaposing these overt indicators with the EO‘s singleness of focus on the
previous administration, what emerges in bold relief is the conclusion that the EO
was issued largely for political ends: the President wants his election promise
fulfilled in a dramatic and unforgettable way; none could be more so than criminal
convictions, or at least, exposure of the ―truth‖ that would forever mark his
political opponents; thus, the focus on the previous administration and the stress on
establishing their corrupt ways as the ―truth.‖
For these reasons, the conclusion that the EO violates the equal protection
clause is unavoidable.
Our ruling in this case should not in any way detract from the concept that
the Judiciary is the least dangerous branch of government. The Judiciary has no
direct control over policy nor over the national purse, in the way that the
Legislature does. Neither does it implement laws nor exercise power over those
who can enforce laws and national policy. All that it has is the power to safeguard
the Constitution in a manner independent of the two other branches of government.
Ours is merely the power to check and ensure that constitutional powers and
guarantees are observed, and constitutional limits are not violated.
296[133]
Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).
This Court, by constitutional design and for good reasons, is not an elective
body and, as already stated above, has neither reason nor occasion to delve into
politics – the realm already occupied by the two other branches of government. It
cannot exercise any ascendancy over the two other branches of government as it is,
in fact, dependent on these two branches in many ways, most particularly for its
budget, for the laws and policies that are the main subjects for its interpretation,
and for the enforcement of its decisions. While it has the power to interpret the
Constitution, the Judiciary itself, however, is subject to the same Constitution and,
for this reason, must in fact be very careful and zealous in ensuring that it respects
the very instrument it is sworn to safeguard. We are aware, too, that we ―cannot be
the repository of all remedies‖298[135] and cannot presume that we can cure all the
ills of society through the powers the Constitution extended to us. Thus, this
Court – by its nature and functions – cannot be in any way be ―imperial,‖ nor has it
297[134]
See then Associate Justice Reynato S. Puno‘s Concurring and Dissenting Opinion in Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. No. 160261, November 10,
2003, 415 SCRA 44, 211, where former Chief Justice Puno spoke of an ―imperial judiciary,‖ viz:
The 1987 Constitution expanded the parameters of judicial power, but that by no means is
a justification for the errant thought that the Constitution created an imperial judiciary. An
imperial judiciary composed of the unelected, whose sole constituency is the blindfolded lady
without the right to vote, is counter-majoritarian, hence, inherently inimical to the central ideal of
democracy. We cannot pretend to be an imperial judiciary for in a government whose cornerstone
rests on the doctrine of separation of powers, we cannot be the repository of all remedies.
298[135]
Ibid.
As evident in the way this Court resolved the present case, it had no way but
to declare EO invalid for the many reasons set forth above. The cited grounds are
neither flimsy nor contrived; they rest on solid legal bases. Unfortunately, no other
approach exists in constitutional interpretation except to construe the assailed
governmental issuances in their best possible lights or to reflect these effects in a
creative way where these approaches are at all possible. Even construction in the
best lights or a creative interpretation, however, cannot be done where the cited
grounds are major, grave and affect the very core of the contested issuance – the
situation we have in the present case.
Nor can this Court be too active or creative in advocating a position for or
against a cause without risking its integrity in the performance of its role as the
middle man with the authority to decide disputed constitutional issues. The better
(and safer) course for democracy is to have a Court that holds on to traditional
values, departing from these values only when these values have become
inconsistent with the spirit and intent of the Constitution.
In the present case, as should be evident in reading the ponencia and this
Separate Opinion, we have closely adhered to traditional lines. If this can be called
activism at all, we have been an activist for tradition. Thereby, we invalidated the
act of the Executive without however foreclosing or jeopardizing his opportunity to
work for the same objective in some future, more legally reasoned, and better
framed course of action.
ARTURO D. BRION
Associate Justice
G.R. No. 192935 - LOUIS “BAROK” C. BIRAOGO v. THE PHILIPPINE
TRUTH COMMISSION OF 2010.
SEPARATE OPINION
BERSAMIN, J.:
I
Locus Standi of Petitioners
Justice Mendoza‘s main opinion, which well explains why the petitioners
have locus standi, is congruent with my view on the matter that I expressed in De
Castro v. Judicial and Bar Council, et al.,300[2] viz:
299[1]
Philippine Constitution Association v. Hon. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888,
August 19, 1994, 235 SCRA 506.
300[2]
G.R. Nos. 191002, 191032, 191057, 191149, 191342 and 191420, and A.M. No. 10-2-5-SC, March 17,
2010.
Yet, the Court has also held that the requirement of locus standi, being a
mere procedural technicality, can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized
the approach when the cases had ―transcendental importance.‖ Some notable
controversies whose petitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.
Yet, if any doubt still lingers about the locus standi of any petitioner, we
dispel the doubt now in order to remove any obstacle or obstruction to the
resolution of the essential issue squarely presented herein. We are not to shirk
from discharging our solemn duty by reason alone of an obstacle more technical
than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc., we
pointed out: ―Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest.‖ But even if, strictly
speaking, the petitioners ―are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
II
The President Has No Power to Create A Public Office
A public office may be created only through any of the following modes,
namely: (a) by the Constitution; or (b) by statute enacted by Congress; or (c) by
authority of law (through a valid delegation of power).301[3]
Yet, the Solicitor General contends that the legal basis for the President‘s
creation of the Truth Commission through E. O. No. 1 is Section 31, Chapter 10,
Book III, of the Administrative Code of 1987.
Section 31, Chapter 10, Book III, of the Administrative Code of 1987, which
reads:
Section 31. Continuing Authority of the President to Reorganize his Office. –
The President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
2. Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the President
from other Departments and Agencies; and
3. Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the President
301[3]
Secretary of the Department of Transportation and Communications v. Malabot, G.R. No. 138200, February 27,
2002, 378 SCRA 128.
nowhere refers to the creation of a public office by the President. On the contrary,
only a little effort is needed to know from reading the text of the provision that
what has been granted is limited to an authority for reorganization through any of
the modes expressly mentioned in the provision.
The Truth Commission has not existed before E. O. No. 1 gave it life on
July 30, 2010. Without a doubt, it is a new office, something we come to know
from the plain words of Section 1 of E. O. No. 1 itself, to wit:
If the Truth Commission is an entirely new office, then it is not the result of
any reorganization undertaken pursuant to Section 31, Chapter 10, Book III, of the
Administrative Code of 1987. Thus, the contention of the Solicitor General is
absolutely unwarranted.
Neither may the creation of the Truth Commission be made to rest for its
validity on the fact that the Constitution, through its Section 17, Article VII,
invests the President with the duty to ensure that the laws are faithfully executed.
In my view, the duty of faithful execution of the laws necessarily presumes the
prior existence of a law or rule to execute on the part of the President. But, here,
there is no law or rule that the President has based his issuance of E. O. No. 1.
I cannot also bring myself to accept the notion that the creation of the Truth
Commission is traceable to the President‘s power of control over the Executive
Department. It is already settled that the President‘s power of control can only
mean ―the power of an officer to alter, modify, or set aside what a subordinate
officer had done in the performance of his duties, and to substitute the judgment of
Page 112 of 256
the former for that of the latter.‖302[4] As such, the creation by the President of a
public office like the Truth Commission, without either a provision of the
Constitution or a proper law enacted by
Congress authorizing such creation, is not an act that the power of control
includes.
III
Truth Commission Replicates and Usurps the
Duties and Functions of the
Office of the Ombudsman
I find that the Truth Commission replicates and usurps the duties and
functions of the Office of the Ombudsman. Hence, the Truth Commission is
superfluous and may erode the public trust and confidence in the Office of the
Ombudsman.
xxx
xxx
302[4]
Mondano v. Silvosa, 97 Phil. 143.
SPONSORSHIP SPEECH
OF COMMISSIONER MONSOD
xxx
xxx
SPONSORSHIP SPEECH
OF COMMISSIONER COLAYCO
xxx
303[5]
Record of the Deliberation of the 1986 Constitutional Commission, R.C.C. No. 40, Saturday, July 26, 1986,
pp. 265.
xxx
xxx
SPONSORSHIP SPEECH
OF COMMISSIONER NOLLEDO
xxx
304[6]
Id., at 265-266.
305[7]
Id., at 267.
xxx
WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against those
involved, if warranted, and to deter others from committing the evil, restore the
people‘s faith and confidence in the Government and in their public servants;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines, gives the
President the continuing authority to reorganize the Office of the President.
LUCAS P. BERSAMIN
Associate Justice
EN BANC
x-------------------------------------------------------------------------------------------------x
SEPARATE OPINION
PEREZ, J.:
The transplant of idea and mechanism, the adoption of the ends and the
assumption of the means of 1973 leads to the definite conclusion that the present
Constitution is an affirmance that, driven by the breadth of corruption in public
office needing enduring solutions, there must be no less than a constitutionally
secured institution with impregnable authority to combat corruption. This is the
Ombudsman.
306[1]
G.R. No. 105965-70, 354 SCRA 651, 661.
The frameworks for the Office of the Ombudsman and the Office of the
Special Prosecutor were laid down by President Corazon Aquino in Executive
Order (EO) 243 and EO 244, both passed on July 24, 1987.
Clear then from the chronicle, that, as it was at the time of its
constitutionalization in 1973, the power of the Ombudsman ―shall not be limited to
receiving complaints and making recommendations, but shall also include the
filing and prosecution of criminal xxx cases before the appropriate body xxx.‖
More importantly, the grant of political independence to the Ombudsman which
was the spirit behind the 1973 provisions was specifically stated in the 1987
Constitution. Thus:
Of direct relevance and application to the case at bar is the reason behind the
constitutionalization of the Ombudsman. Again, we refer to Uy308[3] citing Cortez,
Redress of Grievance and the Philippine Ombudsman (Tanodbayan):
307[2]
Id. at 664-665.
308[3]
Id. at 660-661.
309[4]
Records of the Constitutional Commission Vol. II, 26 July 1986, p. 267.
It is with the ground and setting just described that Executive Order No. 1
created the Philippine Truth Commission. Naturally, the Order had to state that the
Philippine Truth Commission was created by the President of the Republic of the
Philippines further describing the act as the exercise of his ―continuing authority to
reorganize the Office of the President.‖ The Order specified that the budget of the
Commission shall be provided by the Office of the President and even its furniture
and equipment will come from the Office of the President. More significantly, a
basic premise of the creation is the President‘s battlecry during his campaign for
the Presidency in the last elections ―kung walang corrupt, walang mahirap,”
which is considered a ―solemn pledge that if elected, he would end corruption and
the evil it breeds.‖ So much so that the issuance states that ―a comprehensive final
report shall be published upon directive of the President‖ upon whose directive
likewise, interim reports may issue from time to time.
310[5]
Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987 Constitution.
Having thus taken account of the foregoing, this writer takes the following
position:
It can easily be seen that the powers of the Truth Commission to: 1)
identify and determine the reported cases of graft and corruption which it will
investigate; and 2) collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate,312[7] are the same as the power of the Ombudsman to investigate any
illegal, unjust, improper, or inefficient act or omission of any public official,
employee, office or agency.313[8]
Likewise, the right to obtain information and documents from the Senate,
the House of Representatives and the courts,316[11] granted by Executive Order No.
1 to the Truth Commission, is analogous to the license of the Ombudsman to
311[6]
Records of the Constitutional Commission, Vol. II, 26 July 1986, p. 296.
312[7]
Section 2(a) and (b), respectively, E.O. No. 1, dated 30 July 2010.
313[8]
Article XI, Section 13(1), 1987 Constitution.
314[9]
Section 2(b), E.O. No. 1, supra note 7.
315[10]
Article XI, Section 13(4), 1987 Constitution.
316[11]
Section 2(c) and (d), E.O. No. 1, supra.
317[12]
Article XI, Section 13(5), 1987 Constitution.
318[13]
Section 2(e), E.O. No. 1, supra.
319[14]
Id., Section 9.
320[15]
The Ombudsman Act of 1989, Section 15(8) and (9) and Section 26(4).
The ruling was clear: the duty to investigate contained in Section 13(1)
having been conferred on the Office of the Ombudsman, left the then Tanodbayan
without authority to conduct preliminary investigation except upon orders of the
Ombudsman. The message was definite. The conferment of plenary power upon
the Ombudsman to investigate ―any act or omission of any public official xxx
when such act or omission appears to be illegal, unjust, improper or inefficient‖
321[16]
G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843, 846-847.
322[17]
G.R. No. 159747, 13 April 2004, 427 SCRA 46.
While the DOJ has a broad general jurisdiction over crimes found in the
Revised Penal Code and special laws, however, this jurisdiction is not
plenary or total. Whenever the Constitution or statute vests jurisdiction over the
investigation and prosecution of certain crimes in an office, the DOJ has no
jurisdiction over those crimes. In election offenses, the Constitution vests the
power to investigate and prosecute in the Commission on Elections. In crimes
committed by public officers in relation to their office, the Ombudsman is given
by both the Constitution and the statute the same power of investigation and
prosecution. These powers may not be exercised by the DOJ. xxx
323[18]
Id. at 74.
324[19]
Id. at 77-78.
325[20]
Id. at 86.
326[21]
Id. at 92.
In view of the foregoing, it is evident that the petitioners have not borne
out any distinction between ―the duty to investigate‖ and ―the power to
conduct preliminary investigations;‖ neither have the petitioners established that
the latter remains with the Tanodbayan, now the Special Prosecutor. Thus, this
Court can only reject the petitioners‘ first proposition.
Indeed, Executive Order No. 1 itself pronounces that what it empowers the
Philippine Truth Commission with is the authority of preliminary investigation.
Section 2(g) of the executive order states:
Investigation to find reasonable ground to believe ―that they are liable for
graft and corruption under applicable laws‖ is preliminary investigation as defined
in Rule 112, Section 1 of the Rules of Criminal Procedure, which states:
328[23]
G.R. No. 120422, 248 SCRA 566, 579.
xxxx
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial
or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
In other words, under existing Rule which follows the statutorily defined
primary jurisdiction of the Ombudsman in obeisance to the constitutional
conferment of authority, the Ombudsman reviews and may reverse or modify the
resolution of the investigating prosecutor. In the case of the Philippine Truth
Commission, the Ombudsman not only shares its constitutional power but, over
and above this, it is divested of any and all investigatory power because the
Philippine Truth Commission‘s finding of ―reasonable ground‖ is final and
unreviewable and is turned over to the Ombudsman solely for ―expeditious
prosecution.‖
The Truth Commission will submit its recommendation to, among others,
the OMB and to the ―appropriate prosecutorial authorities‖ which then shall
exercise their constitutional and statutory powers and jurisdiction to evaluate the
recommendation or endorsements of the Truth Commission. While findings of the
Truth Commission are recommendatory, the facts gathered by the Commission
will decisively aid prosecutorial bodies in supporting possible indictments for
violations of anti-graft laws. Moreover, the policy recommendations to address
corruption in government will be invaluable to the Executive‘s goal to realize its
anti-corruption policies.329[24]
xxxx
The Reports of the Truth Commission will serve as bases for possible
prosecutions and as sources of policy options xxx.
The Ombudsman on its own investigates any act or omission of any public
official when such act or omission appears to be illegal (Section 13(1), Article XI
of the Constitution). The power is broad enough, if not specially intended, to cover
fact-finding of the tenor that was given to the Philippine Truth Commission by
Executive Order No. 1 which is:
329[24]
Memorandum for Respondents, pp. 73-74.
Moreover, as at the outset already pointed out, the power of the Philippine
Truth Commission to obtain information and documents from the Congress and the
Judiciary [Section 2(c) and (d) of Executive Order No. 1] is a reproduction of the
Ombudsman powers provided for in Section 13 (4) and (5), Article XI of the
Constitution.
The concerned agencies need not wait until the completion of the
investigation of the Truth Commission before they can proceed with their own
investigative and prosecutorial functions. Moreover, the Truth Commission will,
from time to time, publish special interim reports and recommendations, over and
above the comprehensive final report. If any, the preliminary reports may aid the
concerned agencies in their investigations and eventually, in the filing of a
complaint or information. (Underscoring supplied)
Apparently, the statement proceeds from the position that ―the power of the
OMB to investigate offenses involving public officers or employees is not
exclusive but is concurrent with other similarly authorized agencies of the
The truth is, in the intensely political if not partisan matter of ―reports of
graft and corruption xxx committed by public officers xxx, if any, during the
previous administration,‖ there can only be one finding of truth. Any addition to
that one finding would result in din and confusion, a babel not needed by a nation
trying to be one. And this is why all that fall under the topic accountability of
public officers have been particularized and gathered under one authority - The
Ombudsman. This was done by the Constitution. It cannot be undone as the
nation now stands and remains.
WHEREFORE, I vote for the grant of the petition and the declaration of
Executive Order No. 1 as unconstitutional.
330[25]
Memorandum for Respondents, p. 82.
G.R. No. 192935 − Louis ―Barok‖ C. Biraogo, Petitioner, vs. The Philippine
Truth Commission, Respondent.
G.R. No. 193036 − Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep.
Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr., Petitioners, vs.
Executive Secretary Paquito N. Ochoa, Jr. and Department of Budget and
Management Secretary Florencio B. Abad, Respondents.
Promulgated:
December 7, 2010
x-----------------------------------------------------------------------------------------x
DISSENTING OPINION
CARPIO, J.:
The two petitions before this Court seek to declare void Executive Order No.
1, Creating the Philippine Truth Commission of 2010 (EO 1), for being
unconstitutional.
Section 31. Continuing Authority of the President to Reorganize his Office. The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize
the administrative structure of the Office of the President. For this purpose, he
may take any of the following actions:
331[1]
Also known as the Administrative Code of 1987. One of EO 1‘s WHEREAS clauses reads:
―WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President.‖
(2) Transfer any function under the Office of the President to any other Department
or Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or
agency as well as transfer agencies to the Office of the President from other
departments or agencies. (Emphasis supplied)
x x x The law grants the President this power in recognition of the recurring need
of every President to reorganize his office ―to achieve simplicity, economy and
efficiency.‖ The Office of the President is the nerve center of the Executive Branch. To
remain effective and efficient, the Office of the President must be capable of being
shaped and reshaped by the President in the manner he deems fit to carry out his
directives and policies. After all, the Office of the President is the command post of
the President. This is the rationale behind the President‘s continuing authority to
reorganize the administrative structure of the Office of the President.332[2] (Emphasis
supplied)
332[2]
Domingo v. Zamora, 445 Phil. 7, 13 (2003).
To execute faithfully the law, the President must first know the facts that
justify or require the execution of the law. To know the facts, the President may
have to conduct fact-finding investigations. Otherwise, without knowing the
facts, the President may be blindly or negligently, and not faithfully and
intelligently, executing the law.
Due to time and physical constraints, the President cannot obviously conduct
by himself the fact-finding investigations. The President will have to delegate the
fact-finding function to one or more subordinates. Thus, the President may appoint
333[3]
Emphasis supplied.
334[4]
Emphasis supplied. President Aquino took his oath in Filipino.
Moreover, petitioner cannot claim that his investigation as acting general manager
is for the purpose of removing him as such for having already been relieved, the
obvious purpose of the investigation is merely to gather facts that may aid the
President in finding out why the NARIC failed to attain its objectives, particularly in
the stabilization of the prices of rice and corn. His investigation is, therefore, not
punitive, but merely an inquiry into matters which the President is entitled to
know so that he can be properly guided in the performance of his duties relative
to the execution and enforcement of the laws of the land. In this sense, the
President may authorize the appointment of an investigator of petitioner Rodriguez
in his capacity as acting general manager even if under the law the authority to
appoint him and discipline him belongs to the NARIC Board of Directors. The
petition for prohibition, therefore, has no merit.335[5] (Boldfacing and italicization
supplied)
335[5]
Rodriguez, et al. v. Santos Diaz, et al., 119 Phil. 723, 727-728 (1964).
CONGRESSMAN LAGMAN:
And it is also inherent in judicial power, we must know the facts to render a
decision, correct?
CONGRESSMAN LAGMAN:
And it is also inherent in executive power that [the] President has to know the facts
so that he can faithfully execute the laws, correct?
CONGRESSMAN LAGMAN:
So (interrupted)
CONGRESSMAN LAGMAN:
It has been essayed that the lifeblood of the administrative process is the flow of
fact[s], the gathering, the organization and the analysis of evidence. Investigations
are useful for all administrative functions, not only for rule making,
adjudication, and licensing, but also for prosecuting, for supervising and
directing, for determining general policy, for recommending legislation, and for
purposes no more specific than illuminating obscure areas to find out what if
anything should be done. An administrative agency may be authorized to make
investigations, not only in proceedings of a legislative or judicial nature, but also in
proceedings whose sole purpose is to obtain information upon which future action of
a legislative or judicial nature may be taken and may require the attendance of
witnesses in proceedings of a purely investigatory nature. It may conduct general
inquiries into evils calling for correction, and to report findings to appropriate bodies
and make recommendations for actions. (Emphasis supplied)
336[6]
TSN, 7 September 2010, pp. 56-57.
337[7]
No. L-29274, 27 November 1975, 68 SCRA 99, 104.
Thus, the President can create the Truth Commission as a public office in his
Office pursuant to his power to reorganize the Office of the President Proper.338[8]
In such a case, the President is exercising his delegated power to create a public
office within the Office of the President Proper. There is no dispute that the
President possesses this delegated power.
In the alternative, the President can also create the Truth Commission as an
ad hoc body to conduct a fact-finding investigation pursuant to the President‘s
inherent power to find facts as basis to execute faithfully the law. The creation of
such ad hoc fact-finding body is indisputably necessary and proper for the
President to execute faithfully the law. In such a case, members of the Truth
Commission may be appointed as Special Assistants or Advisers of the
President,339[9] and then assigned to conduct a fact-finding investigation. The
President can appoint as many Special Assistants or Advisers as he may need.340[10]
There is no public office created and members of the Truth Commission are
incumbents already holding public office in government. These incumbents are
given an assignment by the President to be members of the Truth Commission.
Thus, the Truth Commission is merely an ad hoc body assigned to conduct a fact-
finding investigation.
338[8]
Section 31, Chapter 10, Title III, Book III of EO 292, quoted on page 2.
339[9]
Section 22, Chapter 8, Title II, Book III of EO 292 reads:
Section 22. Office of the President Proper. (1) The Office of the President Proper shall consist of the
Private Office, the Executive Office, the Common Staff Support System, and the Presidential Special
Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries
and Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the offices or units under the general categories of
development and management, general government administration and internal administration; and
(4) The Presidential Special Assistants/Advisers System includes such special
assistants or advisers as may be needed by the President.‖ (Emphasis supplied)
340[10]
Section 22(4), Id.
Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the
President‘s power to reorganize his Office or create the Truth Commission. PD
1416, as amended, delegates to the President ―continuing authority to reorganize
the National Government,‖342[12] which means the Executive, Legislative and
341[11]
Section 47(2), Chapter 6, Book V of EO 292 provides:
Section 47. Disciplinary Jurisdiction. -
xxx
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action
against officers and employees under their jurisdiction. x x x. (Emphasis supplied)
342[12]
Paragraph 1 of PD 1416, as amended, provides:
1. The President of the Philippines shall have continuing authority to reorganize the
National Government. In exercising this authority, the President shall be guided by generally
acceptable principles of good government and responsive national development, including but not
limited to the following guidelines for a more efficient, effective, economical and development-oriented
governmental framework:
(a) More effective planning, implementation, and review functions;
(b) Greater decentralization and responsiveness in the decision-making process;
The President‘s power to create ad hoc fact-finding bodies does not emanate
from the President‘s power of control over the Executive branch. The President‘s
power of control is the power to reverse, revise or modify the decisions of
subordinate executive officials, or substitute his own decision for that of his
subordinate, or even make the decision himself without waiting for the action of
(c) Further minimization, if not elimination, of duplication or overlapping of purposes, functions,
activities, and programs;
(d) Further development of as standardized as possible ministerial, sub-ministerial and corporate
organizational structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and administrative relationship among government
entities.
For purposes of this Decree, the coverage of the continuing authority of the President to reorganize shall
be interpreted to encompass all agencies, entities, instrumentalities, and units of the National
Government, including all government-owned or controlled corporations, as well as the entire range of
the powers, functions, authorities, administrative relationships, and related aspects pertaining to these
agencies, entities, instrumentalities, and units.
2. For this purpose, the President may, at his discretion, take the following actions:
(a) Group, coordinate, consolidate or integrate departments, bureaus, offices, agencies,
instrumentalities and functions of the government;
(b) Abolish departments, offices, agencies or functions which may not be necessary, or create
those which are necessary, for the efficient conduct of government functions services and activities;
(c) Transfer functions, appropriations, equipment, properties, records and personnel from one
department, bureau, office, agency or instrumentality to another;
(d) Create, classify, combine, split, and abolish positions;
(e) Standardize salaries, materials and equipment;
(f) Create, abolish, group, consolidate, merge, or integrate entities, agencies, instrumentalities, and
units of the National Government, as well as expand, amend, change, or otherwise modify their
powers, functions and authorities, including, with respect to government-owned or controlled
corporations, their corporate life, capitalization, and other relevant aspects of their charters; and
(g) Take such other related actions as may be necessary to carry out the purposes and objectives of
this Decree. (Emphasis supplied)
343[13]
Paragraph 1 (c) and (e), PD 1416, as amended.
344[14]
The clause states: ―WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government.‖
Objections to EO 1
Section 11 of EO 1 merely states that the Office of the President shall fund
the operations of the Truth Commission. Under EO 1, the funds to be spent for the
operations of the Truth Commission have already been appropriated by Congress
to the Office of the President under the current General Appropriations Act. The
budget for the Office of the President under the annual General Appropriations Act
always contains a Contingent Fund348[18] that can fund the operations of ad hoc
investigating bodies like the Truth Commission. In this case, there is no
appropriation but merely a disbursement by the President of funds that Congress
had already appropriated for the Office of the President.
While petitioners Lagman, et al. insist that the Truth Commission is a quasi-
judicial body, they admit that there is no specific provision in EO 1 that states that
the Truth Commission has quasi-judicial powers.349[19]
ASSOCIATE JUSTICE CARPIO:
Okay. Now. Let‘s tackle that issue. Where in the Executive Order is it stated that
[the Truth Commission] has a quasi-judicial power? Show me the provision.
348[18]
See Special Provision No. 2, General Appropriations Act of 2010 or Republic Act No. 9970.
349[19]
TSN, 7 September 2010, p. 61.
350[20]
Doran v. Executive Judge Luczon, Jr., G.R. No. 151344, 26 September 2006, 503 SCRA 106.
351[21]
Id.
352[22]
G.R. No. 179830, 3 December 2009, 606 SCRA 554, citing Dole Philippines Inc. v. Esteva, G.R. No.
161115, 30 November 2006, 509 SCRA 332.
The creation of the Truth Commission has three distinct purposes since it is
tasked to submit its findings to the President, Congress and the Ombudsman. The
Truth Commission will submit its findings to the President so that the President
can faithfully execute the law. For example, the Truth Commission may
recommend to the President that Department Secretaries should personally approve
disbursements of funds in certain contracts or projects above a certain amount and
not delegate such function to their Undersecretaries.354[24] The Truth Commission
353[23]
Id. at 570-571.
354[24]
Section 65, Chapter 13, Book IV of EO 292 merely provides:
Section 65. Approval of other types of Government Contracts. — All other types of government
contracts which are not within the coverage of this Chapter shall, in the absence of a special
provision, be executed with the approval of the Secretary or by the head of the bureau or office
Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive
jurisdiction to investigate graft and corruption cases, the Truth Commission
encroaches on this exclusive power of the Ombudsman.
having control of the appropriation against which the contract would create a charge. Such
contracts shall be processed and approved in accordance with existing laws, rules and regulations.
355[25]
http://www.mb.com.ph/node/270641/ombud, accessed on 19 November 2010.
On the other hand, an administrative investigation follows, and takes up, the
recommendation of a purely fact-finding investigation to charge formally a public
official or employee for possible misconduct in office. Similarly, a preliminary
investigation is an inquiry to determine whether there is sufficient ground to
believe that a crime has been committed and that the respondent is probably guilty
SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have
the following powers, functions and duties: x x x
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
his primary jurisdiction, it may take over, at any stage, from any investigatory
agency of Government, the investigation of such cases; x x x (Emphasis supplied)
356[26]
Section 1, Rule 112, Rules of Court.
357[27]
―An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and
for Other Purposes.‖ Also known as ―The Ombudsman Act of 1989.‖
358[28]
Republic Act No. 8249, entitled ―An Act Further Defining the Jurisdiction of the Sandiganbayan,
Amending For the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefore, and
For Other Purposes.‖ Approved on 5 February 1997.
359[29]
Section 13(1), Article XI, Constitution.
360[30]
G.R. No. 159747, 13 April 2004, 427 SCRA 46.
361[31]
Id. at 70.
362[32]
Id.
363[33]
People vs. Morial, 415 Phil. 310 (2001).
364[34]
An Act Establishing The Philippine National Police Under A Reorganized Department of Interior and
Local Government And For Other Purposes. Also known as the Philippine National Police Law or the
Department of Interior and Local Government Act of 1990.
(a) x x x
xxx
(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice, and assist in their prosecution;
x x x. (Emphasis supplied)
(a) To undertake investigation of crimes and other offenses against the laws of
the Philippines, upon its own initiative and as public interest may require;
x x x. (Emphasis supplied)
The PNP and the NBI are under the control of the President. Indisputably,
the President can at any time direct the PNP and NBI, whether singly, jointly or in
coordination with other government bodies, to investigate possible violations of
penal laws, whether committed by public officials or private individuals. To say
that the Ombudsman has the exclusive power to conduct fact-finding investigations
of crimes involving public officials and employees is to immobilize our law-
enforcement agencies and allow graft and corruption to run riot. The fact-finding
arm of the Department of Justice (DOJ) to investigate crimes, whether committed
Section 2 of EO 1 provides that the Truth Commission shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of EO 292,
which reads:
365[35]
Section 3, Chapter I, Title III, Book IV of EO 292 provides:
Section 3. Powers and Functions. - To accomplish its mandate, the Department (DOJ) shall have the
following powers and functions:
(1) x x x
(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;
x x x.
Section 9 of EO 1 provides:
Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by
the Commission or who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when required, shall be
subject to administrative disciplinary action. Any private person who does the same may
be dealt with in accordance with law.
366[36]
TSN, 28 September 2010, pp. 41-42.
367[37]
Section 46(25), Chapter 7, Book V, EO 292.
368[38]
Section 1, Rule 21 of the Rules of Court provides:
SEC. 1. Subpoena and Subpoena duces tecum. - Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which case it is called a subpoena duces tecum.
There is much ado about the words ―Truth Commission‖ as the name of the
fact-finding body created under EO 1. There is no law or rule prescribing how a
fact-finding body should be named. In fact, there is no law or rule prescribing
how permanent government commissions, offices, or entities should be
named.370[40] There is also no law or rule prohibiting the use of the words
―Truth Commission‖ as the name of a fact-finding body. Most fact-finding
bodies are named, either officially or unofficially, after the chairperson of such
body, which by itself, will not give any clue as to the nature, powers or functions
of the body. Thus, the name Feliciano Commission or Melo Commission, by
itself, does not indicate what the commission is all about. Naming the present
(Emphasis supplied)
369[39]
Section 9, Rule 21 of the Rules of Court provides:
SEC. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued
by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule. (Emphasis supplied)
370[40]
In sharp contrast, Section 26(1), Article VI of the Constitution provides: ―Every bill passed by the Congress
shall embrace only one subject which shall be expressed in the title thereof.‖ Thus, the title of a bill must
express the subject of the bill.
371[41]
With apologies to William Shakespeare. These are the lines in Romeo and Juliet: ―What‘s in a name?
That which we call a rose by any other name would smell as sweet.‖
The fear that the public will automatically perceive the findings of the Truth
Commission as the ―truth,‖ and any subsequent contrary findings by the
Ombudsman or Sandiganbayan as the ―untruth,‖ is misplaced. First, EO 1 is
unequivocally clear that the findings of the Truth Commission are neither final nor
binding on the Ombudsman, more so on the Sandiganbayan which is not even
mentioned in EO 1. No one reading EO 1 can possibly be deceived or misled that
the Ombudsman or the Sandiganbayan are bound by the findings of the Truth
Commission.
Third, the Filipino people are familiar with the Agrava Board,372[42] a fact-
finding body that investigated the assassination of former Senator Benigno S.
Aquino, Jr. The people know that the findings of the Agrava Board were not
binding on the then Tanodbayan or the Sandiganbayan. The Agrava Board
recommended for prosecution 26 named individuals373[43] but the Tanodbayan
charged 40 named individuals374[44] before the Sandiganbayan. On the other hand,
372[42]
Created by Presidential Decree No. 1886 dated 14 October 1983.
373[43]
The Majority Opinion of the Agrava Board recommended for prosecution 26 named individuals, including
Gen. Fabian Ver. The Minority Opinion of Chairperson Corazon Agrava recommended for prosecution
only 7 named individuals, excluding Gen. Ver.
374[44]
Excluding those charged as ―John Does.‖
Section 17. Special Provision Concerning Mandate. If and when in the judgment of
the President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be extended
accordingly by way of a supplemental Executive Order. (Emphasis supplied)
375[45]
One of the accused died during the trial and three remained at large.
Section 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates xxx.
(b) The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.
x x x x . (Emphasis supplied)
Thus, under Section 2(b) of the PCGG Charter, the President can expand the
investigation of the PCCG even as its primary task is to recover the ill-gotten
wealth of the Marcoses and their cronies. Both EO 1 and the PCGG Charter
have the same provisions on the scope of their investigations. Both the Truth
Commission and the PCGG are primarily tasked to conduct specific investigations,
with their mandates subject to expansion by the President from time to time. This
Court has consistently upheld the constitutionality of the PCGG Charter.376[46]
Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the
investigation of acts of graft and corruption that may have taken place during the Arroyo administration. If time allows, the
President may extend the mandate of the Truth Commission to investigate other administrations prior to the Arroyo
376[46]
Virata v. Sandiganbayan, G.R. No. 86926, 15 October 1991, 202 SCRA 680; PCGG v. Peña, 293 Phil. 93
(1988); and Baseco v. PCGG, 234 Phil. 180 (1987).
First, the prescriptive period for the most serious acts of graft and corruption
under the Revised Penal Code is 20 years,377[47] 15 years for offenses punishable
under the Anti-Graft and Corrupt Practices Act,378[48] and 12 years for offenses
punishable under special penal laws that do not expressly provide for prescriptive
periods.379[49] Any investigation will have to focus on alleged acts of graft and
corruption within the last 20 years, almost half of which or 9 years is under the
Arroyo administration.
While it is true that the prescriptive period is counted from the time of
discovery of the offense, the ―reported cases‖380[50] of ―large scale corruption‖381[51]
involving ―third level public officers and higher,‖382[52] which the Truth
Commission will investigate, have already been widely reported in media, and
many of these reported cases have even been investigated by the House of
Representatives or the Senate. Thus, the prescriptive periods of these ―reported
cases‖ of ―large scale corruption‖ may have already began to run since these
anomalies are publicly known and may be deemed already discovered.383[53] These
prescriptive periods refer to the criminal acts of public officials under penal laws,
and not to the recovery of ill-gotten wealth which under the Constitution is
imprescriptible.384[54]
377[47]
Article 90, in relation to Articles 211-A and 217, of the Revised Penal Code.
378[48]
Section 11, RA No. 3019.
379[49]
Section 1, Act No. 3326.
380[50]
Section 2, EO 1.
381[51]
Section 2(b), EO 1.
382[52]
Id.
383[53]
See People v. Duque, G.R. No. 100285, 13 August 1992, 212 SCRA 607.
384[54]
Section 15, Article XI, Constitution.
Fourth, the more recent the alleged acts of graft and corruption, the more
readily available will be the witnesses, and the more easily the witnesses can recall
with accuracy the relevant events. Inaction over time means the loss not only of
witnesses but also of material documents, not to mention the loss of public interest.
Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating other past
administrations.385[55]
There is also the constraint on the enormous resources needed to investigate other past
administrations
. Just identifying the transactions, locating relevant documents, and
looking for witnesses would require a whole bureaucracy.
These are not only reasonable but also compelling grounds for the Truth
Commission to prioritize the investigation of the Arroyo administration. To
prioritize based on reasonable and even compelling grounds is not to
discriminate, but to act sensibly and responsibly.
In any event, there is no violation of the equal protection clause just because the authorities focus
their
or prosecution on one particular law-breaker for surely a person accused of robbery cannot
investigation alleged ,
raise as a defense that other robbers like him all over the country are not being prosecuted.386[56]
By the very nature
of an investigation or prosecution, there must be a focus on particular act or acts of
a person or a group of persons.
Section 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
The PCGG Charter has survived all constitutional attacks before this Court,
including the claim that its Section 2(a) violates the equal protection clause. In
Virata v. Sandiganbayan,387[57] this Court categorically ruled that the PCGG
Charter ―does not violate the equal protection clause and is not a bill of
attainder or an ex post facto law.‖388[58]
387[57]
G.R. No. 86926, 15 October 1991, 202 SCRA 680.
388[58]
Id. at 698. (Emphasis supplied)
389[59]
Created by President Franklin Roosevelt.
Graft and corruption cases before the Arroyo administration have already been investigated by the previous
administrations President Corazon Aquino created the Presidential Commission on Good Government to recover the ill-gotten
.
wealth of the Marcoses and
their cronies.392[62] President Joseph Estrada created the Saguisag Commission to investigate
the Philippine Centennial projects of President Fidel Ramos.393[63]
The glaring acts of corruption during the Estrada
administration have already been investigated resulting in the conviction of President Estrada for plunder. Thus, it stands to
reason that the Truth Commission should give priority to the alleged acts of graft and corruption during the Arroyo
administration.
The majority opinion claims that EO 1 violates the equal protection clause
because the Arroyo administration belongs to a class of past administrations and
the other past administrations are not included in the investigation of the Truth
Commission. Thus, the majority opinion states:
In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a class of its
own. Not to include past administrations similarly situated constitutes arbitrariness
which the equal protection clause cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.
xxx
390[60]
Created by President Lyndon Johnson.
391[61]
Created through law by the U.S. Congress.
392[62]
Executive Order No. 1, dated 28 February 1986.
393[63]
Administrative Order No. 53 – Creating an Ad-hoc and Independent Citizens‘ Committee to
Investigate All the Facts and Circumstances Surrounding Philippine Centennial Projects, Including
its Component Activities, dated 24 February 1999.
xxx
xxx
The majority opinion goes on to suggest that EO 1 could be amended ―to include
the earlier past administrations‖ to allow it ―to pass the test of reasonableness
and not be an affront to the Constitution.‖
Classifying the ―earlier past administrations‖ in the last 111 years as just
one class is not germane to the purpose of investigating possible acts of graft and
corruption. There are prescriptive periods to prosecute crimes. There are
administrations that have already been investigated by their successor
administrations. There are also administrations that have been subjected to several
Congressional investigations for alleged large-scale anomalies. There are past
Presidents, and the officials in their administrations, who are all dead. There are
past Presidents who are dead but some of the officials in their administrations are
still alive. Thus, all the ―earlier past administrations‖ cannot be classified as just
one single class − ―a class of past administrations‖ ‒ because they are not all
similarly situated.
Section 15. The right of the State to recover properties unlawfully acquired by
public officials or employees, from them or from their nominees or transferees, shall not
be barred by prescription, laches or estoppel. (Emphasis supplied)
Legally and morally, any ill-gotten wealth since the Presidency of Gen.
Emilio Aguinaldo can still be recovered by the State. Thus, if the Truth
Commission is required to investigate ―earlier past administrations‖ that
could still be legally investigated, the Truth Commission may have to start
with the Presidency of Gen. Emilio Aguinaldo.
394[64]
Even prior to the 1987 Constitution, public officials could not acquire ownership of their ill-gotten wealth
by prescription. Section 11 of Republic Act No. 1379, or the Law on Forfeiture of Ill-Gotten Wealth
enacted on 18 June 1956, provides:
Under Article 1133 of the New Civil Code, “[m]ovables possessed through a crime can never be acquired
through prescription by the offender.” And under Article 1956 of the Spanish Civil Code of 1889,
“ownership of personal property stolen or taken by robbery cannot be acquired by prescription by the
thief or robber, or his accomplices, or accessories, unless the crime or misdemeanor or the penalty
therefor and the action to enforce the civil liability arising from the crime or misdemeanor are barred by
prescription.”
395[65]
517 U.S. 456, decided 13 May 1996. The U.S. Supreme Court reiterated this ruling in United States v.
Bass, 536 U.S. 862 (2002), a per curiam decision.
396[66]
517 U.S. 456, 465.
In the present case, no one has been charged before the prosecutor or the
courts. What petitioners want this Court to do is invalidate a mere administrative
fact-finding investigation by the Executive branch, an investigative phase prior to
preliminary investigation. Clearly, if courts cannot exercise the Executive‘s
―special province‖ to decide whether or not to indict, which is the equivalent of
determination of probable cause, with greater reason courts cannot exercise the
Executive‘s ―special province‖ to decide what or what not to investigate for
administrative fact-finding purposes.
397[67]
Id. at 464.
398[68]
470 U.S. 821 (1985).
399[69]
Id. at 832.
400[70]
197 Phil. 407, 423 (1982). This ruling was reiterated in City of Manila v. Laguio, 495 Phil. 289 (2005);
Mejia v. Pamaran, 243 Phil. 600 (1998); Bautista v. Juinio, 212 Phil. 307 (1984); and Calubaquib v.
This Court has categorically rejected this specious reasoning and false
invocation of the equal protection clause in People v. dela Piedra,401[71] where the
Court emphatically ruled:
x x x The mere allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in appellant‘s eyes, was
not, is insufficient to support a conclusion that the prosecution officers denied appellant
equal protection of the laws.
Likewise,
[i]f the failure of prosecutors to enforce the criminal laws as to some persons
should be converted into a defense for others charged with crime, the result
would be that the trial of the district attorney for nonfeasance would become an
issue in the trial of many persons charged with heinous crimes and the
enforcement of law would suffer a complete breakdown (State v. Hicks, 325
P.2d 794 [1958]).402[72] (Emphasis supplied)
The Court has reiterated this ―common sense‖ ruling in People v. Dumlao403[73]
and in Santos v. People,404[74] for to hold otherwise is utter nonsense as it means
effectively granting immunity to all criminals.
402[72]
Id. at 54-56.
403[73]
G.R. No. 168918, 2 March 2009, 580 SCRA 409.
404[74]
G.R. No. 173176, 26 August 2008, 563 SCRA 341.
Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
x x x. (Emphasis supplied)
A person investigated or prosecuted for a possible crime cannot raise the defense
that he is being singled out because others who may have committed the same
crime are not being investigated or prosecuted. Such person cannot even raise
the defense that after several decades he is the first and only one being
investigated or prosecuted for a specific crime. The law expressly states that
disuse of a law, or custom or practice allowing violation of a law, will never justify
the violation of the law or its non-observance.
405[75]
Section 1, Article XI, Constitution.
406[76]
Id.
The majority opinion will also mean that the PCGG Charter − which tasked
the PCGG to recover the ill-gotten wealth of the Marcoses and their cronies −
violates the equal protection clause because the PCCG Charter specifically
mentions the Marcoses and their cronies. The majority opinion reverses several
decisions407[77] of this Court upholding the constitutionality of the PCCG Charter,
endangering over two decades of hard work in recovering ill-gotten wealth.
407[77]
Supra, note 46.
408[78]
See Spouses Aduan v. Levi Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; UCPB v. Looyuko, G.R.
No. 156337, 28 September 2007, 534 SCRA 322; First Women’s Credit Corporation v. Perez, G.R. No.
169026, 15 June 2006, 490 SCRA 774; and Dupasquier v. Court of Appeals, 403 Phil. 10 (2001).
A Final Word
The incumbent President was overwhelmingly elected by the Filipino people in the 10 May 2010
elections based
on his announced program of eliminating graft and corruption in government.
As the Solicitor General explains
the incumbent President has pledged to the electorate that the elimination of graft and corruption will start with the
it,
investigation and prosecution of those who may have committed large-scale corruption in the previous administration.409[79]
During the election campaign, the incumbent President identified graft and corruption as the major
cause of poverty in the country
as depicted in his campaign theme ―kung walang corrupt, walang mahirap.‖ It was
largely on this campaign pledge to eliminate graft and corruption in government that the electorate
overwhelmingly
409[79]
Memorandum for Respondents, p. 91.
Neither the Constitution nor any existing law prevents the incumbent President
from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President‘s campaign pledge is merely a
reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption.
(Emphasis supplied)
This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the Filipino people to
start the difficult task of putting an end to graft and corruption in government, denies the President his basic constitutional power
to determine the facts in his faithful execution of the law and suppresses whatever truth may come out in the purely fact-finding
,
investigation of the Truth Commission.
This Court, in invoking the equal protection clause to
strike down a purely fact-finding investigation, grants immunity to those who
violate anti-corruption laws and other penal laws, renders meaningless the
constitutional principle that public office is a public trust, and makes public
officials unaccountable to the people at any time.
410[80]
The 2010 Transparency International Corruption Index ranks the Philippines at 134 out of 178 countries.
See http:/www.transparency.org/policy_research/surveys_indices/cpi/2010/results, accessed on 13
November 2010.
411[81]
Section 1, Article XI, Constitution.
412[82]
Id.
History will record the ruling today of the Court‘s majority as a severe case
of judicial overreach that made the incumbent President a diminished Executive in
an affront to a co-equal branch of government, crippled our already challenged
justice system, and crushed the hopes of the long suffering Filipino people for an
end to graft and corruption in government.
ANTONIO T. CARPIO
Associate Justice
December 7, 2010
x-----------------------------------------------------------------------------------------x
NACHURA, J.:
First, the all too familiar facts leading to this cause celebre.
On May 10, 2010, Benigno Simeon C. Aquino III was elected President of
the Philippines. Oft repeated during his campaign for the presidency was the
uncompromising slogan, ―Kung walang corrupt, walang mahirap.‖
WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the people‘s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a closure
to them by the filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people‘s faith and confidence in the
Government and in their public servants;
WHEREAS, the President‘s battlecry during his campaign for the Presidency in
the last elections ―kung walang corrupt, walang mahirap‖ expresses a solemn pledge that
if elected, he would end corruption and the evil it breeds;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines, gives the
President the continuing authority to reorganize the Office of the President.
The Commission shall be composed of a Chairman and four (4) members who
will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the
powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration and thereafter submit
its finding and recommendation to the President, Congress and the Ombudsman. In
particular, it shall:
e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;
a. General Counsel
b. Deputy General Counsel
c. Special Counsel
d. Clerk of the Commission
SECTION 11. Budget for the Commission. – The Office of the President shall
provide the necessary funds for the Commission to ensure that it can exercise its powers,
execute its functions, and perform its duties and responsibilities as effectively, efficiently,
and expeditiously as possible.
SECTION 12. Office. – The Commission may avail itself of such office space
which may be available in government buildings accessible to the public space after
coordination with the department or agencies in control of said building or, if not
available, lease such space as it may require from private owners.
SECTION. 14. Term of the Commission. – The Commission shall accomplish its
mission on or before December 31, 2012.
SECTION 16. Transfer of Records and Facilities of the Commission. – Upon the
completion of its work, the records of the Commission as well as its equipment, furniture
and other properties it may have acquired shall be returned to the Office of the President.
Section 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
By the President:
In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No.
1 violates Section 1, Article VI of the 1987 Constitution because it creates a public
office which only Congress is empowered to do. Additionally, ―considering certain
admissions made by the OSG during the oral arguments,‖ the petitioner questions
the alleged intrusion of E.O. No. 1 into the independence of the Office of the
Ombudsman mandated in, and protected under, Section 5, Article XI of the 1987
Constitution.
I.
II.
III.
I.
II.
IV.
In resolving these issues, the ponencia, penned by the learned Justice Jose
Catral Mendoza, concludes that:
I agree with the ponencia that, given our liberal approach in David v.
Arroyo414[2] and subsequent cases, petitioners have locus standi to raise the
question of constitutionality of the Truth Commission‘s creation. I also concur
with Justice Mendoza‘s conclusion that the Truth Commission will not supplant
the Office of the Ombudsman or the DOJ, nor impermissibly encroach upon the
latter‘s exercise of constitutional and statutory powers.
I agree with the ponencia that the President of the Philippines can create an
ad hoc investigative body. But more than that, I believe that, necessarily implied
from his power of control over all executive departments and his constitutional
duty to faithfully execute the laws, as well as his statutory authority under the
Administrative Code of 1987, the President may create a public office.
Let me elucidate.
413[1]
SEC. 17. The President shall have control of all the executive departments, bureau and offices. He shall
ensure that the laws be faithfully executed.
414[2]
G.R. No. 171396, May 3, 2006, 489 SCRA 160.
The first of two core questions that confront the Court in this controversy is
whether the President of the Philippines can create a public office. A corollary, as
a consequence of statements made by the Solicitor General during the oral
argument, is whether the Truth Commission is a public office.
Given the powers conferred upon it, as spelled out in E.O. No. 1, there can
be no doubt that the Truth Commission is a public office, and the Chairman and
the Commissioners appointed thereto, public officers.
415[3]
Fernandez v. Sto. Tomas, 312 Phil. 235, 247 (1995).
It is beyond the power of any branch of the Government of the Philippine islands
to exercise its functions in any other way than that prescribed by the Organic Law or by
local laws which conform to the Organic Law. The Governor-General must find his
powers and duties in the fundamental law. An Act of the Philippine Legislature must
comply with the grant from Congress. The jurisdiction of this court and other courts is
derived from the constitutional provisions.
xxx
The Organic Act vests ―the supreme executive power‖ in the Governor-General
of the Philippine Islands. In addition to specified functions, he is given ―general
supervisions and control of all the departments and bureaus of the government of the
Philippine Islands as far is not inconsistent with the provisions of this Act.‖ He is also
made ―responsible for the faithful execution of the laws of the Philippine islands and of
the United States operative within the Philippine Islands.‖ The authority of the Governor-
General is made secure by the important proviso ―that all executive functions of
Government must be directly under the governor-General or within one of the executive
departments under the supervision and control of the governor-general.‖ By the
Administrative Code, ―the governor-general, as Chief executive of the islands, is charged
with the executive control of the Philippine Government, to be exercised in person or
through the Secretaries of Departments, or other proper agency, according to law.‖
416[4]
50 Phil. 259 (1927).
Executive power is briefly described as the power to enforce and administer the laws,
but it is actually more than this. In the exercise of this power, the President of the
Philippines assumes a plenitude of authority, and the corresponding awesome
responsibility, that makes him, indeed, the most influential person in the land.418[6]
Relevant to this disquisition are two specific powers that flow from this
―plenitude of authority.‖ Both are found in Section 17, Article VII of the
Constitution.420[8] They are commonly referred to as the power of control and the
take care clause.
417[5]
Section 1. The executive power shall be vested in the President of the Philippines.
418[6]
Cruz, Philippine Political Law (2005 ed.), p. 182.
419[7]
G.R. No. 143481, February 15, 2002.
420[8]
Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
If under the law the Secretary of Agriculture and Natural Resources has authority to
regulate or ban fishing by trawl, then the President of the Philippines may exercise the
421[9]
Cruz, Philippine Political Law (2005 ed.), p. 213.
422[10]
Id. at 216.
423[11]
354 Phil. 948 (1998).
424[12]
97 Phil. 143 (1955).
425[13]
Cruz, Philippine Political Law (2005 ed.), pp. 211-212.
426[14]
101 Phil. 328 (1957).
Our ruling in City of Iligan v. Director of Lands427[15] echoes the same principle in
this wise:
Since it is the Director of Lands who has direct executive control among others in the
lease, sale or any form of concession or disposition of the land of the public domain
subject to the immediate control of the Secretary of Agriculture and Natural Resources,
and considering that under the Constitution the President of the Philippines has control
over all executive departments, bureaus and offices, etc., the President of the Philippines
has therefore the same authority to dispose of the portions of the public domain as his
subordinates, the Director of Lands, and his alter-ego the Secretary of Agriculture and
Natural Resources.
To reiterate, the take care clause is the constitutional mandate for the
President to ensure that laws be faithfully executed. Dean Vicente G. Sinco
observed that the President‘s constitutional obligation of ensuring the faithful
execution of the laws ―is a fundamental function of the executive head [involving]
a two-fold task, [i.e.,] the enforcement of laws by him and the enforcement of laws
by other officers under his direction.‖ 428[16]
Section 4, Article II: The prime duty of government is to serve and protect the people x
xx
Section 5, Article II: The maintenance of peace and order, the protection of life, liberty
and property, and promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy.
Section 9, Article II: The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all.
428[16]
Sinco, Philippine Political Law (10th ed.), p. 260.
Section 27, Article II: The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.
Section 28, Article II: Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions involving
public interest.
Closer to home, as head of the biggest bureaucracy in the country, the President
must also see to the faithful execution of Section 1, Article XI of the Constitution,
which reads: “Public office is a public trust. Public officers and employees must at
all times be accountable to the people; serve them with utmost responsibility,
integrity, loyalty and efficiency; act with patriotism and justice; and lead modest
lives.”
Quite logically, the power of control and the take care clause precede all
others in the enumeration of the Powers of the President. Section 1, Book III, Title
I simply restates the constitutional provision, to wit:
SECTION 1. Power of Control.—The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
Next in the enumeration is the ordinance power of the President which defines
executive orders, thus:
SEC. 2. Executive Orders. - Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers
shall be promulgated in executive orders.
At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of
the President, which include the residual power, viz:
SEC. 19. Powers Under the Constitution.—The President shall exercise such other
powers as are provided for in the Constitution.
SEC. 20. Residual Powers.—Unless Congress provides otherwise, the president shall
exercise such other powers and functions vested in the President which are provided for
under the laws and which are not specifically enumerated above, or which are not
delegated by the President in accordance with law.
SEC. 31. Continuing Authority of the President to Reorganize his Office. - The
President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the Presidential Special Assistants/Advisers
System and the Common staff Support System, by abolishing, consolidating or
merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department
or Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or
agency as well as transfer agencies to the Office of the President from other
departments or agencies.
430[18]
See Chapter 8, Title II, Book III of the Administrative Code.
431[19]
Section 31, Chapter 10, Title III, Book III of the Administrative Code.
432[20]
Section 2, Chapter 1, Book IV of the 1987 Administrative Code.
It is plain to see that the Truth Commission‘s fact-finding and investigation into
―reports of large scale corruption by the previous administration‖ involve policy-
making on issues of fundamental concern to the President, primarily, corruption
and its linkage to the country‘s social and economic development.
On this point, I differ from the ponencia, as it reads the President‘s power to
reorganize in a different light, viz:
The question, therefore, before the Court is this: Does the creation of the Truth
Commission fall within the ambit of the power to reorganize as expressed in Section 31
of the Revised Administrative Code? Section 31 contemplates ―reorganization‖ as limited
by the following functional and structural lines: (1) restructuring the internal organization
of the Office of the President Proper by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions. These point to situations where a body or an office is already existent by a
modification or alteration thereof has to be effected. The creation of an office is nowhere
mentioned, much less envisioned in said provision. Accordingly, the answer is in the
negative.
xxx
xxx [T]he creation of the Truth Commission is not justified by the president‘s
power of control. Control is essentially the power to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to substitute the
judgment of the former with that of the latter. Clearly, the power of control is entirely
433[21]
Ople v. Torres, 354 Phil 949 (1998).
434[22]
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
This provision speaks of such other powers vested in the president under the law.
What law then gives him the power to reorganize? It is Presidential decree No. 1772
which amended Presidential Decree no. 1416. These decrees expressly grant the
President of the Philippines the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus and agencies, to
abolish offices, to transfer functions, to create and classify functions, services and
activities and to standardize salaries and materials. The validity of these two decrees are
unquestionable. The 1987 Constitution clearly provides that ―all laws, decrees, executive
orders, proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed or
revoked.‖ So far, there is yet not law amending or repealing said decrees.
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must not
lose sight of the very sources of the power—that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), “the President, subject to the policy in the Executive
Office and in order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the Office of the
president.” For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that
reorganization “involves the reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions.” It takes place when there is an
alteration of the existing structure of government or units therein, including the lines of
control, authority and responsibility between them. xxx (emphasis supplied)
435[23]
G.R Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon. Ronaldo d. Zamora,
in his capacity as the Executive Secretary, et. al., this Court has had occasion to also
delve on the President‘s power to reorganize the Office of the President under Section 31
(2) and (3) of Executive Order No. 292 and the power to reorganize the Office of the
President Proper. The Court has there observed:
―x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office
of the President Proper by abolishing, consolidating or merging units, or by transferring
functions from one unit to another. In contrast, under Section 31(2) and (3) of EO 292,
the President‘s power to reorganize offices outside the Office of the President Proper but
still within the Office of the President is limited to merely transferring functions or
agencies from the Office of the President to Departments or Agencies, and vice versa.‖
The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292
(Administrative code of 1987), above-referred to, reads thusly:
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of
the President from other Departments and Agencies; and
436[24]
G.R. No. 152845, August 5, 2003, 408 SCRA 337.
The first sentence of the law is an express grant to the President of a continuing authority
to reorganize the administrative structure of the Office of the President. The succeeding
numbered paragraphs are not in the nature of provisos that unduly limit the aim
and scope of the grant to the President of the power to reorganize but are to be
viewed in consonance therewith. Section 31(1) of Executive order No. 292 specifically
refers to the President‘s power to restructure the internal organization of the Office of the
President Proper, by abolishing, consolidating or merging units hereof or transferring
functions from unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to transfer any
function under the Office of the President to any other Department or Agency and
vice versa, and the transfer of any agency under the Office of the President to any
other department or agency and vice versa. (Emphasis supplied)
437[25]
Sinco, Philippine Political Law, p. 261,
The equality guaranteed under this clause is equality under the same
conditions and among persons similarly situated; it is equality among equals, not
similarity of treatment of persons who are classified based on substantial
differences in relation to the object to be accomplished.439[27] When things or
persons are different in fact or circumstances, they may be treated in law
differently. On this score, this Court has previously intoned that:
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required of
a valid classification should be based on substantial distinctions which make for real
differences; that it must be germane to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply equally to each member of the class.
439[27]
British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511.
Thus, when a statute or executive action is challenged on the ground that it violates
the equal protection clause, the standards of judicial review are clear and
unequivocal:
In consonance thereto, we have held that ―in our jurisdiction, the standard and
analysis of equal protection challenges in the main have followed the ‗rational basis‘
test, coupled with a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.‖ x x x.
440[28]
Victoriano v. Elizalde Rope Workers’ Union, 158 Phil. 60 (1974).
441[29]
Coconut Oil Refiners Association v. Torres, 503 Phil. 42, 53-54 (2005).
442[30]
British American Tobacco, v. Camacho, et al., supra note 27.
[I]n the area of equal protection analysis, the judiciary has developed a ‗level of
scrutiny‘ analysis for resolving the tensions inherent in judicial review. When engaging
in this analysis, a court subjects the legislative or executive action to one of three levels
of scrutiny, depending on the class of persons and the rights affected by the action. The
three levels are rational basis scrutiny, intermediate scrutiny, and strict scrutiny. If a
particular legislative or executive act does not survive the appropriate level of scrutiny,
the act is held to be unconstitutional. If it does survive, it is deemed constitutional. The
three tensions discussed above and, in turn, the three judicial responses to each, run
parallel to these three levels of scrutiny. In response to each tension, the court applies a
specific level of scrutiny.
The first level of scrutiny, rational basis scrutiny, requires only that the purpose of
the legislative or executive act not be invidious or arbitrary, and that the act‘s
classification be reasonably related to the purpose. Rational basis scrutiny is applied to
legislative or executive acts that have the general nature of economic or social welfare
legislation. While purporting to set limits, rational basis scrutiny in practice results in
complete judicial deference to the legislature or executive. Thus, a legislative or
executive act which is subject to rational basis scrutiny is for all practical purposes
assured of being upheld as constitutional.
The second level of scrutiny, intermediate scrutiny, requires that the purpose of the
legislative or executive act be an important governmental interest and that the act‘s
classification be significantly related to the purpose. Intermediate scrutiny has been
applied to classifications based on gender and illegitimacy. The rationale for this higher
level of scrutiny is that gender and illegitimacy classifications historically have resulted
from invidious discrimination. However, compared to strict scrutiny, intermediate
scrutiny‘s presumption of invidious discrimination is more readily rebutted, since benign
motives are more likely to underlie classifications triggering intermediate scrutiny.
The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the
legislative or executive act‘s purpose be a compelling state interest and that the act‘s
classification be narrowly tailored to the purpose. Strict scrutiny is triggered in two
situations: (1) where the act infringes on a fundamental right; and (2) where the act‘s
classification is based on race or national origin. While strict scrutiny purports to be only
443[31]
California Law Review 1929, December 1985.
It is noteworthy that, in a host of cases, this Court has recognized the applicability
of the foregoing tests. Among them are City of Manila v. Laguio, Jr.,444[32] Central
Bank Employees Association v. Bangko Sentral ng Pilipinas,445[33] and British
American Tobacco v. Camacho, et al.,446[34] in all of which the Court applied the
minimum level of scrutiny, or the rational basis test.
Laws classify in order to achieve objectives, but the classification may not
perfectly achieve the objective.448[36] Thus, in Michael M. v. Supreme Court of
Sonoma County,449[37] the U.S. Supreme Court said that the relevant inquiry is not
whether the statute is drawn as precisely as it might have been, but whether the line
chosen [by the legislature] is within constitutional limitations. The equal
protection clause does not require the legislature to enact a statute so broad that it
may well be incapable of enforcement.450[38]
444[32]
G.R. No. 118127, April 12, 2005, 455 SCRA 308.
445[33]
487 Phil. 531 (2004).
446[34]
Supra note 27.
447[35]
Prince Eric Fuller v. State of Oregon, 417 U.S., 40, 94 S.Ct.2116, 40 L.Ed.2d 577.
448[36]
Calvin Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
449[37]
450 U.S. 464, 101 S.Ct. 1200, U.S. Cal., 1981, March 23, 1981.
450[38]
Id.
The ―statutory class‖ may include ―more‖ than is necessary in the classification to
achieve the objective. If so, the law is ―over-inclusive.‖ The classification may also
include ―less‖ than is necessary to achieve the objective. If so, the statute is ―under-
inclusive.‖
A curfew law, requiring all persons under age eighteen to be off the streets between
the hours of midnight and 6 a.m., presumably has as its objective the prevention of street
crime by minors; this is ―over-inclusive‖ since the class of criminal minors (the objective
class) is completely included in the class of people under age eighteen (the statutory
class), but many people under age eighteen are not part of the class of criminal minors.
A city ordinance that bans streetcar vendors in a heavily visited ―tourist quarter‖ of
the city in order to alleviate sidewalk and street congestion is ―under-inclusive‖. All
streetcar vendors (the statutory class) contribute toward sidewalk and street congestion,
but the class of people causing sidewalk and street congestion (the objective class) surely
includes many others as well.
It is rare if not virtually impossible for a statutory class and an objective class to
coincide perfectly.452[40]
451[39]
Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
452[40]
Id. at 302-302.
453[41]
Id. at 303.
First, because Executive Order No. 1 passes the rational basis test.
To repeat, the first level of scrutiny known as the rational basis test, requires
only that the purpose of the legislative or executive act not be invidious or
arbitrary, and that the act‘s classification be reasonably related to the purpose. The
classification must be shown to rationally further a legitimate state interest. 455[43] In
its recent equal protection jurisprudence, the Court has focused primarily upon (1)
the ―rationality‖ of the government‘s distinction, and (2) the ―purpose‖ of that
distinction.
454[42]
Id.
455[43]
Id. at 299.
456[44]
Section 2, Book III, Title I, Administrative Code.
What likewise comes to mind, albeit not articulated therein, is Article II,
Section 27, of the 1987 Constitution, which declares that ―[t]he State shall
maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.‖ In addition, the immediately following
section provides: ―[s]ubject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest.‖457[45] There is also Article XI, Section 1, which sets the
standard of conduct of public officers, mandating that ―[p]ublic officers and
employees must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.‖ There is, therefore, no gainsaying that the enforcement of
these provisions, i.e., the fight against corruption, is a compelling state interest.
Not only does the Constitution oblige the President to ensure that all laws be
faithfully executed,458[46] but he has also taken an oath to preserve and defend the
Constitution.459[47] In this regard, the President‘s current approach to restore public
accountability in government service may be said to involve a process, starting
with the creation of the Truth Commission.
457[45]
CONSTITUTION, Section 28, Article II.
458[46]
CONSTITUTION, Section 17, Article VII.
459[47]
CONSTITUTION, Section, 5, Article VII.
460[48]
See Annex ―A‖ of the Respondent‘s Memorandum.
The initial categorization of the issues and reports which are to be the
subject of the Truth Commission‘s investigation is the President‘s call. Pursuing a
system of priorities does not translate to suspect classification resulting in violation
of the equal protection guarantee. In his assignment of priorities to address
various government concerns, the President, as the
E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because
there is a claimed inequality on its face or in the manner it is to be applied. On its
face, there is actually no class created. The ponencia harps on three provisions in
the executive order directing the conduct of an investigation into cases of large
scale graft and corruption ―during the previous administration.‖ On that basis, the
ponencia concludes that there is invidious discrimination, because the executive
order is focused only on the immediate past administration.
SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of
the President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
It may also be pointed out that E.O. No. 1 does not confer a right nor deprive
anyone of the exercise of his right. There is no right conferred nor liability
imposed that would constitute a burden on fundamental rights so as to justify the
application of the strict scrutiny test. A fact-finding investigation of certain acts of
public officers committed during a specific period hardly merits this Court‘s
distraction from its regular functions. If we must exercise the power of judicial
review, then we should use the minimum level of scrutiny, the rational basis test.
On more than one occasion, this Court denied equal protection challenges to
statutes without evidence of a clear and intentional discrimination.462[50] The
pervasive theme in these rulings is a claim of discriminatory prosecution, not
simply a claim of discriminatory investigation. In People v. Piedra,463[51] we
explained:
The prosecution of one guilty person while others equally guilty are not
prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where
the official action purports to be in conformity to the statutory classification, an erroneous
or mistaken performance of the statutory duty, although a violation of the statute, is not
without more a denial of the equal protection of the laws. The unlawful administration by
officers of a statute fair on its face, resulting in its unequal application to those who are
entitled to be treated alike, is not a denial of equal protection unless there is shown to be
461[49]
See: Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 59 L. Ed. 628 (1915).
462[50]
See People v. Dumlao, G.R. No. 168198, March 2, 2009, 580 SCRA 409 citing Santos v. People and People
v. Dela Piedra.
463[51]
G.R. No. 121777, January 24, 2001, 350 SCRA 163.
While all persons accused of crime are to be treated on a basis of equality before the law,
it does not follow that they are to be protected in the commission of crime. It would be
unconscionable, for instance, to excuse a defendant guilty of murder because others have
murdered with impunity. The remedy for unequal enforcement of the law in such
instances does not lie in the exoneration of the guilty at the expense of society x x x.
Protection of the law will be extended to all persons equally in the pursuit of their lawful
occupations, but no person has the right to demand protection of the law in the
commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons
should be converted into a defense for others charged with crime, the result would be that
the trial of the district attorney for nonfeasance would become an issue in the trial of
many persons charged with heinous crimes and the enforcement of law would suffer a
complete breakdown. (emphasis supplied.)
Viewed in this context, the fact that the ―previous administration‖ was
mentioned thrice in E.O. No. 1, as pointed out by the ponencia, is not ―purposeful
and intentional discrimination‖ which violates the equal protection clause. Such a
circumstance does not demonstrate a ―history of purposeful unequal treatment, or
relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process.‖464[52] It simply
has to be taken in the light of the President‘s discretion to determine his
government‘s priorities.
It, therefore, remains unclear how the equal protection clause is violated
merely because the E. O. does not specify that reports of large scale graft and
corruption in other prior administrations should likewise be investigated. Notably,
the investigation of these reports will not automatically lead to prosecution, as E.O
No. 1 only authorizes the investigation of certain reports with an accompanying
recommended action.
464[52]
State v. Hatori, 92 Hawaii 217, 225 [1999] citing State v. Sturch, 82 Hawaii 269, 276 [1996].
2. Section 1
3. Section 2
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code
of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendation to the President, Congress and the Ombudsman.
Clearly, the acts of the President, in the exercise of his or her power, is
preliminarily presumed constitutional such that the party challenging the
constitutionality thereof (the executive act) on equal protection grounds bears the
heavy burden of showing that the official act is arbitrary and capricious.466[54]
Indeed, laws or executive orders, must comply with the basic requirements
of the Constitution, and as challenged herein, the equal protection of the laws.
Nonetheless, only in clear cases of invalid classification violative of the equal
protection clause will this Court strike down such laws or official actions.
465[53]
Coconut Oil Refiners Association, Inc., et al. v. Hon. Ruben Torres, et. al., 503 Phil. 42, 53-54 (2005).
466[54]
People v. Dela Piedra, 403 Phil. 31 (2001).
Under the Constitution, judicial power includes the duty to ―determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the party of any branch or instrumentality of the Government.‖ xxx
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court‘s jurisdiction the determination which
is exclusively for the President, for Congress or for the people themselves through a
plebiscite or referendum. We cannot, for example, question the President‘s recognition of
a foreign government, no matter how premature or improvident such action may appear.
We cannot set aside a presidential pardon though it may appear to us that the beneficiary
is totally undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on
the political question doctrine. The deliberation of the Constitutional Commission cited
by petitioners show that the framers intended to widen the scope of judicial review but
they did not intend courts of justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. In this
light, it would appear clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining ―judicial power,‖ which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the government, incorporates in the fundamental law the
ruling in Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks
and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine
467[55]
G.R. No. 88211, September 15, 1989, 177 SCRA 668, 695-697.
Promulgated:
December 7, 2010
x--------------------------------------------------x
I concur in the result of the ponencia of Justice Jose Catral Mendoza and
join the separate opinions of my colleagues, Chief Justice Renato C. Corona,
Justice Arturo D. Brion and Justice Jose Portugal Perez. I vote to declare
Executive Order No. 1 (EO No. 1) unconstitutional, as a well-intentioned, but ill-
devised, presidential issuance that transgresses the boundaries of executive power
and responsibility set by the Constitution and our laws.
While I agree with the majority consensus that equal protection is an issue
that must be resolved in these consolidated petitions, the weightier legal obstacles
to the creation of the Philippine Truth Commission (the Commission) by executive
order deserve greater attention in this discussion.
Indeed, from the answers to these questions, it becomes evident that those
who have designed this constitutional anomaly designated as a ―truth commission‖
have painted themselves into a legal corner with no escape.
If the Commission is an office independent of the President, then its creation by executive fiat is
unconstitutional.
Notably, the Office of the United Nations High Commissioner for Human
Rights likewise lists operational independence as one of the core principles in the
establishment of a truth commission:
The legitimacy and public confidence that are essential for a successful truth commission
process depend on the commission‘s ability to carry out its work without political
interference. Once established, the commission should operate free of direct influence
or control by the Government, including in its research and investigations,
budgetary decision-making, and in its report and recommendations. Where financial
oversight is needed, operational independence should be preserved. Political authorities
should give clear signals that the commission will be operating independently. 469[2]
(Emphases supplied.)
468[1]
From the website of the International Center for Transitional Justice, http://ictj.org/en/tj/138.html,
accessed on December 6, 2010.
469[2]
Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the United Nations
High Commissioner for Human Rights, United Nations, New York and Geneva (2006) at p. 6.
Page 223 of 256
With due respect, I disagree with Justice Antonio T. Carpio‘s opinion that
the naming of the body created by EO No. 1 as the ―Philippine Truth Commission‖
was a mere attempt to be novel, to depart from the tired and repetitious scheme of
naming a commission after its appointed head/leader or of calling it a ―fact-
finding‖ body. Obviously, the title given to the Commission is meant to convey
the message that it is independent of the Office of the President.
Those who dissent from the majority position gloss over the fact that EO No.
1 itself expressly states that the Commission‘s members shall ―act as an
independent collegial body.‖470[3] During oral arguments, the Solicitor General
confirmed that what EO No. 1 intended is for the Commission to be an
independent body over which the President has no power of control.471[4] The
Solicitor General further claimed that one of the functions of the Commission is
―truth-telling.‖ Verily, the creation of the Philippine Truth Commission and its
naming as such were done as a deliberate reference to the tradition of independent
truth commissions as they are conceived in international law, albeit adapted to a
particular factual situation in this jurisdiction.
470[3]
Section 1, EO No. 1.
471[4]
TSN, September 28, 2010, pp. 209-215, cited in the Separate Opinion of Justice Brion.
472[5]
To cite a few examples: The South African ―Truth and Reconciliation Commission‖ was
established under the Promotion of National Unity and Reconciliation Act 34 of 1995 passed by
that country‘s parliament. The ―National Unity and Reconciliation Commission‖ in Rwanda was
officially set up in 1999 by an act of the Transitional National Assembly.
Page 224 of 256
Administrative Code of 1987. The acts of reorganization authorized under said
provision are limited to the following:
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the President from
other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department
or agency as well as transfer agencies to the Office of the President from other
Departments or Agencies. (Emphases supplied.)
I agree with Justice Brion that what EO No. 1 sought to accomplish was not
a mere reorganization under the delegated legislative authority of the President.
If the Commission is under the control and supervision of the President, and not an independent
body, the danger that the Commission may be used for partisan political ends is real and not
imagined.
For the sake of argument, let us accept for the moment the propositions of
our dissenting colleagues that:
If the foregoing statements are true, then what EO No. 1 created is a body
under the control and supervision of the President. In fact, if the commissioners
are to be considered special advisers to the President, the Commission would be a
body that serves at the pleasure of the President. Proponents who support the
creation of the Commission in the manner provided for under EO No. 1 should
drop all arguments regarding the purported independence and objectivity of the
proceedings before it.
Page 226 of 256
Indeed, EO No. 1 itself is replete with provisions that indicate that the
existence and operations of the Commission will be dependent on the Office of the
President. Its budget shall be provided by the Office of the President 473[6] and
therefore it has no fiscal autonomy. The reports of the Commission shall be
published upon the directive of the President.474[7] Further, if we follow the legal
premises of our dissenting colleagues to their logical conclusion, then the
Commission as a body created by executive order may likewise be abolished (if it
is part of the Presidential Special Assistants/Advisers System of the Office of the
President Proper) or restructured by executive order. EO No. 1 may be amended,
modified, and repealed all by executive order. More importantly, if the
Commission is subject to the power of control of the President, he may reverse,
revise or modify the actions of the Commission or even substitute his own decision
for that of the Commission.
The purported functions to be served by the Commission, as the concurring opinions vividly
illustrate, will subvert the functions of the Ombudsman and the constitutional and statutory
developed criminal justice system.
Being a presidential appointee, he comes under the direct disciplining authority of the
President. This is in line with the well settled principle that the "power to remove is
inherent in the power to appoint" conferred to the President by Section 16, Article VII of
the Constitution. Thus, it is ineluctably clear that Memorandum Order No. 164,
which created a committee to investigate the administrative charge against
petitioner, was issued pursuant to the power of removal of the President. x x x.478[11]
(Emphases supplied.)
476[9]
104 Phil. 483 (1958).
477[10]
345 Phil. 962 (1997).
478[11]
Id. at 974.
479[12]
352 Phil. 888 (1998).
Page 228 of 256
The power of the President over administrative disciplinary cases against elective
local officials is derived from his power of general supervision over local governments.
Section 4, Article X of the 1987 Constitution provides:
The power of supervision means "overseeing or the authority of an officer to see that
the subordinate officers perform their duties. If the subordinate officers fail or neglect
to fulfill their duties, the official may take such action or step as prescribed by law to
make them perform their duties. The President's power of general supervision means
no more than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law. Supervision is not incompatible with
discipline. And the power to discipline and ensure that the laws be faithfully
executed must be construed to authorize the President to order an investigation of
the act or conduct of local officials when in his opinion the good of the public service
so requires.480[13] (Emphases ours.)
480[13]
Id. at 913-914.
481[14]
496 Phil. 886 (2005).
482[15]
Id. at 896-897.
Page 229 of 256
Second, the functions of the Commission, although ostensibly only
recommendatory, are basically prosecutorial in nature and not confined to
objective fact finding. EO No. 1 empowers the Commission to, among others:
SECTION 2. x x x.
xxxx
(b) Collect, receive, review and evaluate evidence related to or regarding the
cases of large scale corruption which it has chosen to investigate, and to this end require
any agency, official or employee of the Executive Branch, including government-owned
or controlled corporations, to produce documents, books, records and other papers;
xxxx
(g) Turn over from time to time, for expeditious prosecution to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all
evidence on corruption of public officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are liable for graft
and corruption under pertinent applicable laws. (Emphasis ours.)
I agree with Justice Perez that the aforementioned functions run counter to
the very purpose for the creation of the Office of the Ombudsman, to
constitutionalize a politically independent office responsible for public
accountability as a response to the negative experience with presidential
commissions. His discussion on the constitutional history of the Office of the
Ombudsman and the jurisprudential bases for its primary jurisdiction over cases
cognizable by the Sandiganbayan (i.e., specific offenses, including graft and
corruption, committed by public officials as provided for in Presidential Decree
No. 1606, as amended) is apropos indeed.
The thrust of all this is that the State with its overwhelming and vast powers and
resources can and must ferret out and investigate wrongdoing, graft and corruption
and at the same time respect the constitutional guarantees of the individual's right
to privacy, silence and due process and against self-incrimination and unreasonable
search and seizure. x x x.484[17] (Emphases ours.)
Concluding Statement
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.
483[16]
160-A Phil. 753 (1975).
484[17]
Id. at 776.
Page 231 of 256
Undeniably, from the foregoing, judicial review is not only a power but a
constitutional duty of the courts. The framers of our Constitution found an
imperative need to provide for an expanded scope of review in favor of the ―non-
political‖ courts as a vital check against possible abuses by the political branches
of government. For this reason, I cannot subscribe to Justice Maria Lourdes
Sereno‘s view that the Court‘s exercise of its review power in this instance is
tantamount to supplanting the will of the electorate. A philosophical view that the
exercise of such power by the Judiciary may from a certain perspective be
―undemocratic‖ is not legal authority for this Court to abdicate its role and duty
under the Constitution. It also ignores the fact that it is the people by the
ratification of the Constitution who has given this power and duty of review to the
Judiciary.
The insinuations that the members of the majority are impelled by improper
motives, being countermajoritarian and allowing graft and corruption to proliferate
with impunity are utterly baseless. Not only are these sort of ad hominem attacks
and populist appeals to emotion fallacious, they are essentially non-legal
arguments that have no place in a debate regarding constitutionality. At the end of
the day, Justices of this Court must vote according to their conscience and their
honest belief of what the law is in a particular case. That is what gives us courage
to stand by our actions even in the face of the harshest criticism. Those who read
our opinions, if they are truly discerning, will be able to determine if we voted on
points of law and if any one of us was merely pandering to the appointing power.
Needless to say, this Court will fully support the present administration‘s
initiatives on transparency and accountability if implemented within the bounds of
the Constitution and the laws that the President professes he wishes to faithfully
execute. Unfortunately, in this instance, EO No. 1 fails this ultimate legal litmus
test.
Promulgated:
December 7, 2010
x-------------------------------------------------- x
PERALTA, J.:
On July 30, 2010, President Benigno Simeon C. Aquino III issued Executive
Order (E.O.) No. 1 creating the Philippine Truth Commission of 2010 (Truth
Commission), which is ―primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption x x x involving third level
public officers and higher, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration and thereafter submit
its findings and recommendations to the President, Congress and the
Ombudsman.‖
Respondents, through the Office of the Solicitor General (OSG), counter that
the issuance of E.O. No. 1 is mainly supported by Section 17, Article VII of the
Constitution,488[4] Section 31, Title III, Book III of E.O. No. 292, and Presidential
Decree (P.D.) No. 1416, as amended by P.D. No. 1772.
Quoted in E.O. No. 1 as the legal basis for its creation is Section 31, Title
III, Book III of E.O. No. 292, otherwise known as the Revised Administrative Code
of 1987, which provides:
SEC. 31. Continuing Authority of the President to Reorganize his
Office. – The President, subject to the policy in the Executive Office and in order
to achieve simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
487[3]
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.
488[4]
Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure
that the laws be faithfully executed.
Moreover, in its Comment, the OSG stated that one of the bases for the
creation of E.O. No. 1 is P.D. No. 1416, as amended by P.D. No. 1772, which
amendment was enacted by President Ferdinand E. Marcos on January 15, 1981.
489[5]
G.R. No. 152845, August 5, 2003, 408 SCRA 337.
490[6]
Id. (Emphasis supplied.)
491[7]
Id. (Emphasis supplied.)
492[8]
Enacted on June 9, 1978.
493[9]
Emphasis supplied.
Assuming that P.D. No. 1416, as amended, is still a valid law, it cannot be
the basis of the creation of the Truth Commission, because all the cases, from
Larin v. Executive Secretary;498[14] Buklod ng Kawaning EIIB v. Zamora;499[15]
Secretary of the Department of Transportation and Communications v.
Mabalot;500[16] Bagaoisan v. National Tobacco Administration;501[17] Department
of Environment and Natural Resources v. DENR Region 12 Employees;502[18]
Tondo Medical Center Employees Association v. Court of Appeals;503[19] Malaria
Employees and Workers Association of the Philippines, Inc. (MEWAP) v.
Romulo504[20] to Banda v. Ermita,505[21] which cited P.D. No. 1416, as amended, as
a basis to reorganize, involved reorganization or streamlining of an agency of the
494[10]
Conducted on September 28, 2010.
495[11]
Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, First
edition, pp. 70-73, citing Legaspi v. Minister of Finance, 115 SCRA 418. (1982).
496[12]
Id. at 73.
497[13]
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
498[14]
Id.
499[15]
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.
500[16]
G.R. No. 138200, February 27, 2002, 378 SCRA 128.
501[17]
Supra note 5.
502[18]
G.R. No. 149724, August 19, 2003, 409 SCRA 359.
503[19]
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
504[20]
G.R. No. 160093, July 31, 2007, 528 SCRA 673.
505[21]
G.R. No. 166620, April 20, 2010.
The purpose of reorganization under P.D. No. 1416, as amended by P.D. No.
1772, is to ―promote simplicity, economy and efficiency in the government to
enable it to pursue programs consistent with national goals for accelerated social
and economic development, and to improve upon the services of the government in
the transaction of the public business.‖
In its Memorandum, the OSG justifies the power of the President to create
the Truth Commission based on his authority to create ad hoc fact-finding
committees or offices within the Office of the President, which authority is
described as an adjunct of his plenary executive power under Section 1 and his
power of control under Section 17, both of Article VII of the Constitution.506[22] It
cited the case of Department of Health v. Camposano,507[23] which held:
506[22]
OSG Memorandum, p. 43.
507[23]
496 Phil. 886, 896-897 (2005).
The ponencia justifies the creation of the Truth Commission based on the
President‘s duty to ensure that the laws be faithfully executed under Section 17,
Article VII of the Constitution, thus:
Sec. 17. The President shall have control of all executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.509[25]
x x x The investigation was authorized under Administrative Order No. 298 dated
October 25, 1996, which had created an Ad Hoc Committee to look into the
administrative charges filed against Director Rosalinda U. Majarais, Priscilla G.
Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L. Perez.
508[24]
Secretary of the Department of Transportation and Communications v. Mabalot, supra note 16.
509[25]
Emphasis supplied.
510[26]
Supra note 23.
Albeit the President has the power to create ad hoc committees to investigate
or inquire into matters for the guidance of the President to ensure that the laws be
faithfully executed, I am of the view that the Truth Commission was not created in
the nature of the aforementioned ad hoc investigating/fact-finding bodies. The
Truth Commission was created more in the nature of a public office.
511[27]
Department of Health v. Camposano, supra note 23.
512[28]
G.R. No. 145184, March 14, 2008, 548 SCRA 295. In this case, President Fidel V. Ramos issued on
October 8, 1992, Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest
Loans (Committee), which reads:
WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that ―Subject to
reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all transactions involving public interest‖;
WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that ―The right of the
state to recover properties unlawfully acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by prescription, laches or estoppel‖;
WHEREAS, there have been allegations of loans, guarantees, or other forms of financial
accommodation granted, directly or indirectly, by government owned and controlled bank or
financial institutions, at the behest, command or urging by previous government officials to the
disadvantage and detriment of the Philippine government and the Filipino people;
ACCORDINGLY, an ―Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS‖
is hereby created to be composed of the following:
1. Inventory all behest loans; identify the lenders and borrowers, including the principal
officers and stockholders of the borrowing firms, as well as the persons responsible for
granting the loans or who influenced the grant thereof;
2. Identify the borrowers who were granted ―friendly waivers‖, as well as the government
officials who granted these waivers; determine the validity of these waivers;
3. Determine the courses of action that the government should take to recover those loans,
and to recommend appropriate actions to the Office of the President within sixty (60) days
from the date hereof.
The Committee is hereby empowered to call upon any department, bureau, office, agency,
instrumentality or corporation of the government, or any officer or employee thereof, for such
assistance as it may need in the discharge of its function.
In this case, the members of the Truth Commission are not officials from
existing government offices. Moreover, the Truth Commission has been granted
powers of an independent office as follows:
In addition, the Truth Commission has coercive powers such as the power to
subpoena witnesses.517[33] Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to
administrative disciplinary action.518[34] Any private person who does the same
may be dealt with in accordance with law.519[35] Apparently, the grant of such
powers to the Truth Commission is no longer part of the executive power of the
President, as it is part of law-making, which legislative power is vested in
Congress.520[36] There are only two instances in the Constitution wherein Congress
may delegate its law-making authority to the President:521[37]
513[29]
See Footnote 28.
514[30]
E.O. No. 1, Section 2 (i).
515[31]
E.O. No. 1, Section 2 (j).
516[32]
E.O. No. 1, Section 5.
517[33]
E.O. No. 1, Section 2 (e).
518[34]
E.O. No. 1. Section 9.
519[35]
Id.
520[36]
The Constitution, Article VI, Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
521[37]
Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, supra
note 11, at 70, 140-141, 161.
Article VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable.
The Congress shall evolve a progressive system of taxation.
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts within the framework of the national development
program of the government.522[38]
Although the President may create investigating bodies to help him in his
duty to ensure that the laws are faithfully executed, he cannot be allowed to
encroach on or usurp the law-making power of the Legislature in the creation of
such investigative bodies.
Based on Section 2 of E.O. No. 1, the powers and functions of the Truth
Commission do not supplant the powers and functions of the Ombudsman. 524[40]
Nevertheless, what is the use of the Truth Commission if its power is merely
recommendatory? Any finding of graft and corruption by the Truth Commission is
522[38]
Emphasis supplied.
523[39]
G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
524[40]
Republic Act No. 6770, Section 15. Powers, Functions and Duties. – The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation
of such cases x x x.
Further, E.O. No. 1 violates that equal protection clause enshrined in the
Constitution. The guarantee of equal protection of the laws means that no person or
class of persons shall be denied the same protection of laws which is enjoyed by
other persons or other classes in like circumstances.525[41]
In this case, investigation by the Truth Commission covers only third level
public officers and higher, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration of former President Gloria
Macapagal-Arroyo.526[42]
The OSG, however, counters in its Memorandum that the equal protection
clause of the Constitution is not violated, because although E.O. No. 1 names the
previous administration as the initial subject of the investigation of cases of graft
and corruption, it is not confined to the said administration, since E.O. No. 1
clearly speaks of the President‘s power to expand its coverage to prior
administrations as follows:
The OSG further states that even if the Truth Commission would solely
concern itself with graft and corruption, if there be any, of the previous
administration, there is still no violation of the equal protection clause. It submits
that the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification based
on substantial distinctions and is germane to the evils which the E.O. seeks to
correct. The distinctions cited are:
1) E.O No. 1 was issued in view of widespread reports of large scale graft
and corruption in the previous administration which have eroded public
confidence in public institutions.
2) The segregation of the preceding administration as the object of fact-
finding investigations is warranted by the reality that the current
administration will most likely bear the immediate consequences of the
policies of the previous administration, unlike those of the
administrations long gone.
3) The classification of the previous administration as a separate class for
investigation lies in the reality that the evidence of possible criminal
activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more easily established in the
regime that immediately precedes the current administration.
528[44]
Memorandum, p. 89.
The equal protection clause does not forbid all legal classifications. What
[it] proscribes is a classification which is arbitrary and unreasonable. It is not
violated by a reasonable classification based upon substantial distinctions, where
the classification is germane to the purpose of the law and applies equally to all
those belonging to the same class. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within the class and those who do
not. There is, of course, no concise or easy answer as to what an arbitrary
classification is. No definite rule has been or can be laid down on the basis of
which such question may be resolved. The determination must be made in
accordance with the facts presented by the particular case. The general rule, which
is well-settled by the authorities, is that a classification, to be valid, must rest upon
material differences between the persons, activities or things included and those
excluded. There must, in other words, be a basis for distinction. Furthermore, such
classification must be germane and pertinent to the purpose of the law. And,
finally, the basis of classification must, in general, be so drawn that those who
stand in substantially the same position with respect to the law are treated alike.
The distinctions cited by the OSG are not substantial to separate the previous
administration as a distinct class from prior administrations as subject matter for
529[45]
Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15,
2004, 446 SCRA 299, citing Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54. (1974).
530[46]
City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348.
531[47]
Id. at 348-349.
532[48]
No. L-47771, March 11, 1978, 82 SCRA 30.
DIOSDADO M. PERALTA
Associate Justice
EN BANC
533[49]
Peralta v. Commission on Elections, supra.
534[50]
Id.
Promulgated:
December 7, 2010
x ---------------------------------------------------------------------------------------- x
SEPARATE
DISSENTING OPINION
ABAD, J.:
Brief Background
As the opinion written for the majority by Justice Jose Catral Mendoza says,
President Benigno Simeon Aquino III (President P-Noy to distinguish him from
former President Corazon C. Aquino) campaigned on a platform of ―kung walang
corrupt, walang mahirap.‖ On being elected President, he issued Executive Order
1,535[1] creating the Philippine Truth Commission of 2010 that he tasked with the
investigation of reported corruption during the previous administration. The Truth
Commission is to submit its findings and recommendations to the President, the
Congress, and the Ombudsman.
535[1]
Dated July 30, 2010.
Discussion
The majority holds that petitioners have standing before the Court; that
President P-Noy has the power to create the Truth Commission; that he has not
usurped the powers of Congress to create public offices and appropriate funds for
them; and, finally, that the Truth Commission can conduct investigation without
supplanting the powers of the Ombudsman and the Department of Justice since the
Commission has not been vested with quasi-judicial powers. I fully conform to
these rulings.
The majority holds, however, that Executive Order 1 violates the equal
protection clause of the Constitution. It is here that I register my dissent.
The idea behind the ―equal protection clause‖ is that public authorities
should treat all persons or things equally in terms of rights granted to and
responsibilities imposed on them. As an element of due process, the equal
protection clause bars arbitrary discrimination in favor of or against a class
whether in what the law provides and how it is enforced.
Take the comic example of a law that requires married women to wear their
wedding rings at all times to warn other men not to entice women to violate their
marriage vows. Such law would be unfair and discriminatory since married men,
who are not covered by it, are exposed to similar enticements from women other
than their wives.
xxx seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by public
officials and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration, and
thereafter recommend the appropriate action to be taken thereon to ensure
that the full measure of justice shall be served without fear or favor.
536[2]
Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
537[3]
2 Cooley, Constitutional Limitations, 824-825.
538[4]
People v. Cayat, 68 Phil. 12 (1939), citing leading American cases.
The majority holds that picking on the ―previous administration‖ and not the
others before it makes the Commission‘s investigation an ―adventure in partisan
hostility.‖ To be fair, said the majority, the search for truth must include corrupt
acts not only during the previous administration but also during the administrations
before it where the ―same magnitude of controversies and anomalies‖ has been
reported.
The majority points out that corruption in the previous administration and
corruption in the administrations before it have no substantial difference. And
what difference they have, the majority adds, is not relevant to the purpose of
Executive Order 1, which is to uncover corrupt acts and recommend their
punishment. Superficial difference like the difference in time in this case does not
make for a valid classification.
Here the past presidential administrations the country has gone through in
modern history cover a period of 75 years, going back from when President Gloria
Macapagal Arroyo ended her term in 2010 to the time President Manuel L. Quezon
began his term in 1935. The period could even go back 111 years if the
administration of President Emilio Aguinaldo from 1989 to 1901 is included. But,
so as not to complicate matters, the latter‘s administration might just as well be
excluded from this discussion.
That the distinction makes for a substantial difference is the first point in this
dissent.
539[5]
1987 CONSTITUTION OF THE PHILIPPINES, Article 11, Section 15.
When the government of President Marcos fell in 1986, the new government
acted swiftly to sequester suspected wealth, impound documents believed to
constitute evidence of wrong-doing, and interview witnesses who could help
prosecute the Marcoses and their cronies. One would think that these actions will
ensure successful prosecution of those who committed graft and corruption in that
era. Yet, after just a decade, the prosecution has been mostly unable to find the
right documents or call the right witnesses. Today, after 24 years, the full force of
government has failed to produce even one conviction.
Clearly, it would be a waste of effort and time to scour all of 66 years of the
administrations before the last, looking for evidence that would produce
conviction. Time has blurred the chance of success. Limiting the Truth
Commission‘s investigation to the 9 years of the previous administration gives it
the best chance of yielding the required proof needed for successful action against
the offenders.
540[6]
Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
At any rate, it does not mean that when the President created the Truth
Commission, he shut the door to the investigation of corruption committed during
the 66 years before the previous one. All existing government agencies that are
charged with unearthing crimes committed by public officials are not precluded
from following up leads and uncovering corruptions committed during the earlier
years. Those corrupt officials of the remote past have not gained immunity by
reason of Executive Order 1.
That is the first point. The second point is that the Court needs to stand
within the limits of its power to review the actions of a co-equal branch, like those
of the President, within the sphere of its constitutional authority. Since, as the
majority concedes, the creation of the Truth Commission is within the
constitutional powers of President P-Noy to undertake, then to him, not to the
Court, belongs the discretion to define the limits of the investigation as he deems
fit. The Court cannot pit its judgment against the judgment of the President in such
matter.
And when can the Supreme Court interfere with the exercise of that
discretion? The answer is, as provided in Section 1, Article VIII of the 1987
Constitution, only when the President gravely abuses his exercise of such
discretion. This means that, in restricting the Truth Commission‘s investigation
only to corruptions committed during the previous administration, he acted
capriciously and whimsically or in an arbitrary or despotic manner.541[7]
Besides, the Court is not better placed than the President to make the
decision he made. Unlike the President, the Court does not have the full resources
of the government available to it. It does not have all the information and data it
would need for deciding what objective is fair and viable for a five-member body
like the Truth Commission. Only when the President‘s actions are plainly
541[7]
Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.
For the above reasons, I join the main dissent of Justice Antonio T. Carpio.
ROBERTO A. ABAD
Associate Justice