EN BANC
G.R. No. 192935
-- Louis “Barok” C.
Biraogo, Petitioner, versus The
Philippine Truth Commission of 2010, 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, versus Executive
Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management
Secretary Florencio B. Abad, Respondents.
Promulgated:
December 7, 2010
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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,[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.
Petitioners Louis Biraogo, Rep. Edcel
C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong, and Rep.
Orlando B. Fua, Sr. have come to this Court to challenge the Constitutionality
of Executive Order 1.
The Issues
Presented
The parties present four issues:
1. Whether or not petitioners have legal standing to challenge
the constitutionality of Executive Order 1;
2. Whether or not Executive Order 1 usurps the authority of
Congress to create and appropriate funds for public offices, agencies, and
commissions;
3. Whether or not Executive Order 1 supplants the powers of the
Ombudsman and the DOJ; and
4. Whether or not Executive Order 1 violates the equal protection
clause in that it singles out the previous administration for investigation.
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 1987 Constitution provides in
section 1 of Article III (The Bill of Rights) as follows:
Section 1. No person shall be deprived of life,
liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
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.
But it would be just as unfair and
discriminatory if people who hardly share anything in common are grouped
together and treated similarly.[2] The equal protection clause is not violated
by a law that applies only to persons falling within a specified class, if such
law applies equally to all persons within such class, and reasonable grounds
exist for making a distinction between those who fall within it and those who
do not.[3]
For example, restaurant cooks and
waiters cannot complain of discrimination against an ordinance that requires
them but not other workers to undergo periodic medical check-ups. Such check-ups are important for food-handlers
in the interest of public health but not for ordinary office clerks. Also, a law that grants a 60-day paid leave
to pregnant workers but not to other workers, male or female, is not
discriminatory since female workers who just had their babies need more time to
care for the latter and make adjustments for going back to work.
Here, the issue I address is whether
or not President P-Noy’s decision to focus the Truth Commission’s investigation
solely on the reported corruption during the previous administration,
implicitly excluding the corruption during the administrations before it,
violates the equal protection clause.
Since absolute equality in treating matters is not required, the
ultimate issue in this case is whether or not the President has reasonable
grounds for making a distinction between corruptions committed in the recent
past and those committed in the remote past.
As a rule, his grounds for making a distinction would be deemed
reasonable if they are germane or relevant to the purpose for which he created
the Truth Commission.[4]
And what is the President’s
purpose in creating the Truth Commission?
This can be inferred from section 1 of Executive Order 1 which states
that the Commission’s primary function is to –
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.
Evidently, the objective the
President sets for the Truth Commission is the uncovering of the “truth”
regarding reported corruption in the previous administration “to ensure that
the full measure of justice [evidently upon those responsible for it] is served
without fear or favor.” Ultimately, the
purpose of the creation of the Truth Commission is to ensure that the corrupt
officials of the previous administration are exposed and brought to justice.
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.
But time differentiation should
not be so easily dismissed as superficial.
The world in which people live has two great dimensions: the dimension
of space and the dimension of time.
Nobody can say that the difference in time between two acts or events
makes for a superficial difference. Such
difference is the substance of human existence.
As the Bible says:
There is an appointed time for everything,
and a time for every affair under the heavens.
A time to be born, and a time to die;
a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from
embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.
(Ecclesiastes
3:1-8, New American Bible)
Recognizing the irreversibility
of time is indispensable to every sound decision that people make in their
lives everyday, like not combing the hair that is no longer there. In time, parents let their married children
leave to make their own homes. Also,
when a loved one passes away, he who is left must know that he cannot bring
back the time that is gone. He is wise
to move on with his life after some period of mourning. To deny the truth that the difference in
time makes for substantial difference in human lives is to deny the idea of
transition from growth to decay, from life to death, and from relevant to
irrelevant.
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.
It should be remembered that the
right of the State to recover properties unlawfully acquired by public
officials does not prescribe.[5] So, if the majority’s advice were to be
literally adopted, the Truth Commission’s investigation to be fair to all
should go back 75 years to include the administrations of former Presidents Arroyo,
Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino, Roxas,
Osmena, Laurel, and Quezon.
As it happens, President P-Noy
limited the Truth Commission’s investigation to the 9 years of the previous
administration. He did not include the
66 years of the 12 other administrations before it. The question, as already stated, is whether
the distinction between the recent past and the remote past makes for a
substantial difference that is relevant to the purpose of Executive Order 1.
That the distinction makes for a
substantial difference is the first point in this dissent.
1. The Right to
Equal Protection
Feasibility
of success. Time erodes the evidence of the past. The likelihood of finding evidence needed for
conviction diminishes with the march of time.
Witnesses, like everyone else, have short memories. And they become scarce, working overseas,
migrating, changing addresses, or just passing away. Official or private documents needed as
evidence are easily overwhelmed by the demand to file and keep even more
documents generated by new activities and transactions. Thus, old documents are stored away in
basements, garages, or corridors, and eventually lost track of, misplaced, or
simply destroyed, whether intentionally or not.
In a government that is notorious for throwing away or mishandling old
records, searching for a piece of document after ten years would be uncertain,
tedious, long, and costly.
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.
Historically, there have been no
known or outstanding inquiries done by the Executive Department into corrupt
acts of the past that went beyond the term of the immediately preceding
administration. It makes sense for
President P-Noy to limit the investigation to what is practical and attainable,
namely, the 9 years of the previous administration. He strikes at what is here and near. Perchance, he can get a conviction. Investigating corruption in the past 75 years
rather than in the nearest 9 years, under a nebulous claim of evenhandedness,
is the key to failing altogether. It has
been held that if the law presumably hits the evil where it is felt, it is not
to be overthrown because there are other instances to which it might have been
applied.[6]
Neutralization
of Presidential bias. The Court can take judicial notice of the
fact that President P-noy openly attacked the previous administration for its
alleged corruption in the course of his election campaign. In a sense, he has developed a bias against
it. Consequently, his creation of the
Truth Commission, consisting of a former Chief Justice, two former Associate
Justices of the Supreme Court, and two law professors serves to neutralize such
bias and ensure fairness. The President
did not have to include the 66 years of earlier administrations for investigation
since he did not specifically target them in his election campaign.
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.
Matching
task to size. The Truth Commission is a collegial body of
just five members with no budget or permanent staffs of its own. It simply would not have the time and
resources for examining hundreds if not thousands of anomalous government
contracts that may have been entered into in the past 75 years up to the time
of President Quezon. You cannot order
five men to pull a train that a thousand men cannot move.
Good
housekeeping. Directing the investigation of reported
corrupt acts committed during the previous administration is, as the Solicitor
General pointed out, consistent with good housekeeping. For example, a new treasurer would be prudent
to ensure that the former treasurer he succeeds has balanced his accounts and
submitted himself to a closing audit even after the new treasurer has taken
over. This prevents the latter having
to unfairly assume the liabilities of his predecessor for shortages in the cash
box. Of course, the new treasurer is not
required to look farther into the accounts of the earlier treasurers.
In like manner, it is reasonable
for President P-Noy to cause the investigation of the anomalies reportedly
committed during the previous administration to which he succeeded. He has to locate government funds that have
not been accounted for. He has to stanch
the bleeding that the government could be suffering even now by reason of anomalous
contracts that are still on-going. Such
is a part of good housekeeping. It does
not violate the equal protection clause by its non-inclusion of the earlier
administrations in its review. The
latter’s dealings is remotely relevant to good housekeeping that is intended to
manage a smooth transition from one administration to the next.
2. The President’s
Judgment
as against the
Court’s
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.[7]
To act capriciously and
whimsically is to act freakishly, abruptly, or erratically, like laughing one
moment and crying the next without apparent reason. Does this characterize the President’s action
in this case, considering that he merely acted to set a feasible target,
neutralize political bias, assign the Commission a task suitable to its limited
capacity, and observe correct housekeeping procedures? Did he act arbitrarily in the manner of
little children changing the rules of the game in the middle of the play or
despotically in the manner of a dictator?
Unless he did, the Court must
rein in its horses. It cannot itself
exceed the limits of its power of review under the Constitution.
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 irrational and arbitrary even to the
man on the street can the Court step in from
Notably, none of those who have
been reported as involved in corruption in the previous administration have
come forward to complain that the creation of the Truth Commission has violated
their rights to equal protection. If
they committed no wrong, and I believe many would fall in this category, they
would probably have an interest in pushing for the convening of the
Commission. On the other hand, if they
believe that the investigation unfairly threatens their liberties, they can, if
subpoenaed, to testify invoke their right to silence. As stated in the majority opinion, the
findings of the Commission would not bind them.
Such findings would not diminish their right to defend themselves at the
appropriate time and forum.
For the above reasons, I join the
main dissent of Justice Antonio T. Carpio.
ROBERTO A. ABAD
Associate Justice
[1]
Dated July 30, 2010.
[2]
Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
[3]
2 Cooley, Constitutional Limitations, 824-825.
[4]
People v. Cayat, 68 Phil. 12
(1939), citing leading American cases.
[5]
1987 Constitution of the
[6]
Keokee Coke Co. v.
[7]
Perez v. Court of Appeals, G.R.
No. 162580, January 27, 2006, 480 SCRA 411, 416.