EN BANC

Agenda for December 7, 2010

Item No. 103

G.R. No. 192935 - LOUIS “BAROK” C. BIRAOGO, Petitioner, versus THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent, and 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 on December 7, 2010

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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;[1] and

(5) On the violation of the equal protection clause.

Two inter-related features of the EO primarily contribute to the resulting violations. The first is the use of the title Truth Commission, which, as used in the EO, is fraught with hidden and prejudicial implications beyond the seemingly simple truth that purportedly characterizes the Commission. The second relates to the truth-telling function of the Truth Commission under the terms of the EO. Together, these features radiate outwards with prejudicial effects, resulting in the above violations.

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.

The working of government is based on a well-laid and purposeful constitutional plan, essentially based on the doctrine of separation of powers, that can only be altered by the ultimate sovereign – the people. Short of this sovereign action, not one of the departments of government – neither the Executive, nor the Legislature, and nor the Judiciary – can modify this constitutional plan, whether directly or indirectly.

Concern for the individual is another overriding constitutional value. Significantly, the Constitution does not distinguish between the guilty and the 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.

I. THE EO AND THE “TRUTH” COMMISSION.

A. THE TERMS OF THE EO AND THE RULES;

NATURE OF THE “TRUTH COMMISSION”

The Philippine Truth Commission (Truth Commission or Commission) is a body “created” by the President of the Philippines by way of an Executive Order (EO 1 or EO) entitled “Executive Order No. 1, Creating the Philippine Truth Commission of 2010.” The Truth Commission’s express and avowed purpose is – [2]

“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.”

Under these terms and by the Solicitor General’s admissions and representations, the Truth Commission has three basic functions, namely, fact-finding,[3] policy recommendation,[4] and truth-telling,[5] all with respect to reported massive graft and corruption committed by officials and employees of the previous administration.

The EO defines the Truth Commission as an “independent collegial body” with a Chairman and four members;[6] and provides for the staff,[7] facilities[8] and budgetary support[9] it can rely on, all of which are sourced from or coursed through the Office of the President. It specifically empowers the Truth Commission to “collect, receive, review and evaluate evidence.”[10] It defines how the Commission will operate and how its proceedings will be conducted.[11] Notably, its hearings shall be open to the public, except only when they are held in executive sessions for reasons of national security, public safety or when demanded by witnesses’ personal security concerns.[12] It is tasked to submit its findings and recommendations on graft and corruption to the President, Congress and the Ombudsman,[13] and submit special interim reports and a comprehensive final report which shall be published.[14] Witnesses or resource persons are given the right to counsel,[15] as well as security protection to be provided by government police agencies.[16]

The Rules of Procedure of the Philippine Truth Commission of 2010 (Rules), promulgated pursuant to Section 2(j) of EO 1, further flesh out the operations of the Commission.[17] Section 4 assures that “due process shall at all times be observed in the application of the Rules.” It provides for formal complaints that may be filed before it,[18] and that after evaluation, the parties 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.[19] The Rules declare that the Commission is not bound by the technical rules of evidence,[20] reiterate the protection afforded to witnesses provided under the EO,[21] and confirm that hearings shall be open to the public.[22]

B. THE TITLE ”TRUTH COMMISSION”

AND DUE PROCESS

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.[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.[24] The term truth commission has been specifically used as a title for the body investigating the human rights violations[25] that attended past violence and repression,[26] and in some instances for a body working for reconciliation in society.[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 are not those addressed by EO 1.[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.

As a matter of law, that a body called a Truth Commission is tasked to investigate past instances of graft and corruption would not per se be an irregularity that should cause its invalidation. The use of the word “truth” is not ordinarily a ground for objection. Not even the Constitution itself defines or tells us what truth is; the Charter, fleshed out by the statutes, can only outline the process of arriving at the truth. After the Constitution and the statutes, however, have laid down the prescribed procedure, then that procedure must be observed in securing the truth. Any deviation could be a violation depending on the attendant circumstances.

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.[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.[30] The Commission’s work affects third parties as it is specifically tasked to investigate and prosecute officials and employees of the previous administration. This line of work effectively relates it to the processes of the criminal justice system.

In the simplest due process terms, the EO – as a governmental action – must have a reasonable objective and must use equally reasonable means to achieve this objective.[31] When the EO – viewed from the prism of its title and its truth-telling function – is considered a means of achieving the objective of fighting graft and corruption, it would be invalid if it unreasonably or oppressively affects parties, whether they be government or private.

C. THE COMMISSION’S FUNCTIONS

As worded, the EO establishes the Commission as an investigative body tasked to act on cases of graft and corruption committed during the previous administration. This is an area that the law has assigned to the primary jurisdiction of the Ombudsman to investigate and prosecute.[32] If probable cause exists, these same cases fall under the exclusive jurisdiction of the Sandiganbayan[33] whose decisions are appealable to the Supreme Court.[34]

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 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.”

C.1. The Truth-Telling Function

The Solicitor General fully verbalized the truth-telling function when he declared that it is a means of letting the people know the truth in the allegations of graft and corruption against the past administration.[35] The Solicitor General, in response to the questions of J. Sereno, said:

Justice Sereno: . . .I go now to the truth-telling part of the commission. In other words, can you describe to us the truth telling and truth seeking part of the 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?

Solicitor General Cadiz: I agree Your Honor. 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. [Emphasis supplied.]

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.[36]

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.[37] Thus, to achieve its objectives, truth-telling needs an audience to whom the truth shall be told.[38] This requirement opens up the reality that EO 1 really speaks in two forums.

The first forum, as expressly provided in the EO, is composed of the persons to be investigated and the recipients of the Commission’s reports who are expected to act on these reports, specifically, the President (who needs investigative and policy formulation assistance); Congress (who may use the Commission’s information for its own legislative purposes); and the Ombudsman as the investigative and prosecutory constitutional office[39] to which, under the EO, the Commission must forward its interim and final reports. The Commission’s hearings and proceedings are important venues for this forum, as this is where the investigated persons can defend themselves against the accusations made. The element of policy formulation, on the other hand, is present through the Commission’s interim and final reports from which appropriate remedial policy measures can be distilled. The element of truth-telling – in the sense of communicating to the public the developments as they happen and through the interim and final reports – exists but only plays a secondary role, as the public is not a direct participant in this forum.

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.[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 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.”

These separate forums are not distinguished merely for purposes of academic study; they are there, plainly from the terms of the EO, and carry clear distinctions from which separate legal consequences arise.

Both forums involve third parties, either as persons to be investigated or as part of the general public (in whose behalf criminal complaints are nominally brought and who are the recipients of the Commission’s truth-telling communications) so that, at the very least, standards of fairness must be observed.[41] In the investigative function, the standard depends on whether the tasks performed are purely investigative or are quasi-judicial, but this distinction is not very relevant to the discussions of this opinion. In truth-telling, on the other hand, the level of the required fairness would depend on the objective of this function and the level of finality attained with respect to this objective.[42]

In the first forum, no element of finality characterizes the Commission’s reports since – from the perspective of the EO’s express purposes of prosecution and policy formulation – they are merely recommendatory and are submitted for the President’s, Congress’ and the Ombudsman’s consideration. Both the President and Congress may reject the reports for purposes of their respective policy formulation activities; the Ombudsman may likewise theoretically and nominally reject them (although with possibly disastrous results as discussed below).

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-examine witnesses against them,[43] the right against self-incrimination,[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 Constitution[45] must likewise be respected.

II. THE EO’S LEGAL INFIRMITIES.

A. THE TITLE “TRUTH COMMISSION” + THE TRUTH-TELLING FUNCTION = VIOLATION OF DUE PROCESS

A.1. The Impact of the Commission’s “Truth”

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.[46] Since the Commission’s report will constitute the “truth,” any subsequent contrary finding by the Ombudsman[47] would necessarily be suspect as an “untruth;” it is up then to the Ombudsman to convince the public that its findings are true.

To appreciate the extent of this problem, it must be considered that the hearings or proceedings, where charges of graft and corruption shall be aired, shall be open to the public. The Commission’s report shall likewise be published.[48] These features cannot but mean full media coverage.

Based on common and usual Philippine experience with its very active media exemplified by the recent taking of Chinese and Canadian hostages at the 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.[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,[50] or with more general argument couched under the question “Who Fears the Truth.”[51]

The dismissive argument, to be sure, would have been meritorious if only the name Truth Commission had not been supported by the Commission’s truth-telling function; or, if the name “Truth Commission” were a uniquely Filipino appellation that does not carry an established meaning under international practice and usage. Even if it were to be claimed that the EO’s use of the name is unique because the Philippines’ version of the Truth Commission addresses past graft and corruption and not violence and human rights violations as in other countries, the name Truth Commission, however, cannot simply be dissociated from its international usage. The term connotes abuses of untold proportions in the past by a repressive undemocratic regime – a connotation that may be applicable to the allegations of graft and corruption, but is incongruous when it did not arise from a seriously troubled regime; even the present administration cannot dispute that it assumed office in a peaceful transition of power after relatively clean and peaceful elections.

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 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.

A.2. Truth-telling and the Ombudsman

To return to the scenario described above, it is this scenario that will confront the Ombudsman when the Commission’s report is submitted to it. At that point, there would have been a full and extended public debate heavily influenced by the Commission’s “truthful” conclusions. Thus, when and if the Ombudsman finds the evidence from the report unconvincing or below the level that probable cause requires, it stands to incur the public ire, as the public shall have by then been fully informed of the “facts” and the “truth” in the Commission’s report that the Ombudsman shall appear to have disregarded.

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.”[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 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.

Thus, what the EO patently expresses as a primary role for the Commission is negated in actual application by the title Truth Commission and its truth-telling function. Expressed in terms of the forums the EO spawned, the EO’s principal intent to use the Truth Commission as a second forum instrument is unmasked; the first forum – the officially sanctioned forum for the prosecution of crimes – becomes merely a convenient cover for the second forum.

A.3. Truth-telling and the Courts

The effects of truth-telling could go beyond those that affect the Ombudsman. If the Ombudsman concurs with the Commission and brings the recommended graft and corruption charges before the Sandiganbayan – a constitutionally-established court – this court itself would be subject to the same truth-telling challenge if it decides to acquit the accused. For that matter, even this Court, will be perceived to have sided with an “untruth” when and if it goes against the Commission’s report. Thus, the authority, independence, and even the integrity of these constitutional bodies – the Ombudsman, the Sandiganbayan, and the Supreme Court – would have been effectively compromised, to the prejudice of the justice system. All these, of course, begin with the premise that the Truth Commission has the mandate to find the “truth,” as it name implies, and has a truth-telling function that it can fully exercise through its own efforts and through the media.

A.4. Truth-telling and the Public.

A.4.1. Priming and Other Prejudicial Effects.

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 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.

At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a mechanism for “priming” [53] the public, even the Ombudsman and the courts, to the Commission’s way of thinking. Pervasively repeated as an official government pronouncement, the Commission’s influence can go beyond the level of priming and can affect the public environment as well as the thinking of both the decision makers in the criminal justice system and the public in general.

Otherwise stated, the Commission’s publicly announced conclusions cannot but assume the appearance of truth once they penetrate and effectively color the public’s perception, through repetition without significant contradiction as official government findings. These conclusions thus graduate to the level of “truth” in self-fulfillment of the name the Commission bears; the subtle manipulation of the Commission’s name and functions, fades in the background or simply becomes explainable incidents that cannot defeat the accepted truth.

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. Cardozo[54] in his book The Nature of the Judicial Process[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 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.[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’s[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.”

Further on, Justice Cardozo, speaking in the context of the development of case law in common law, went on to say, quoting Henderson:[58]

When an adherent to a systematic faith is brought continuously in touch with influences and exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging clearly into consciousness. In the meantime, the formulas of the old faith are retained and repeated by force of habit, until one day the realization 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.

Without doubt, the process of converting to a new belief is an unavoidable and continuous process that every decision maker undergoes as the belief system he started with, changes and evolves through in-court experiences and exposure to outside influences. Such exposure cannot be faulted, particularly when brought on by the media working pursuant to its exercise of the freedoms of the press and speech, and speaking in the course of the clash of ideas in the public forum. The same exposure, however, is not as neutral and fault-free when it is precipitated by the government acting as a catalytic agent to hasten the achievement of its own ends, in this case, the disclosure of the “truth” regarding the alleged graft and corruption during the previous regime.

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.

A.4.2. The Effects on the Judicial System

To fully appreciate the potential prejudicial effects of truth-telling on the judicial system, the effects of media exposure – from the point of view of what transpires and the circumstances present under truth-telling and under the present justice system – deserve examination.

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.

In contrast, the circumstances that underlie Commission reports are different. The “truth” that the Commission shall publicize shall be based on “facts” that have not been tested and admitted according to the rules of evidence; by its own express rules, the technical rules of evidence do not apply to the Commission.[59] The reported facts may have also been secured under circumstances violative of the rights of the persons investigated under the guarantees of the Constitution. Thus, what the Commission reports might not at all pass the tests of guilt that apply under the present justice system, yet they will be reported with the full support of the government as the “truth” to the public. As fully discussed below, these circumstances all work to the active prejudice of the investigated persons whose reputations, at the very least, are blackened once they are reported by the Commission as participants in graft and corruption, even if the courts subsequently find them innocent of these charges.

A.5. Truth-telling: an unreasonable means

to a reasonable objective.

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.

Under this environment, the findings or results of the second forum described above overwhelm the processes and whatever may be the findings or results of the first forum. In other words, the findings or results of the second forum – obtained without any assurance of the observance of constitutional guarantees – would not only create heightened expectations and exert unwanted pressure, but even induce changed perceptions and bias in the processes of the first forum in the manner analogous to what Justice Cardozo described above. The first casualties, of course, are the investigated persons and their basic rights, as fully explained elsewhere in this Opinion.

While EO 1 may, therefore, serve a laudable anti-graft and corruption purpose and may have been launched by the President in good faith and with all sincerity, its truth-telling function, undertaken in the manner outlined in the EO and its implementing rules, is not a means that this Court can hold as reasonable and valid, when viewed from the prism of due process. From this vantage point, the Commission is not only a mislabelled body but one whose potential outputs must as well be discarded for being unacceptable under the norms of the Constitution.

B. DISTORTION OF EXISTING LEGAL FRAMEWORK

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.

B.1. The Existing Legal Framework

The Constitution has given the country a well-laid out and balanced division of powers, distributed among the legislative, executive and judicial branches, with specially established offices geared to accomplish specific objectives to strengthen the whole constitutional structure.

The Legislature is provided, in relation with the dispensation of justice, the authority to create courts with defined jurisdictions below the level of the Supreme Court;[60] to define the required qualifications for judges;[61] to define what acts are criminal and what penalties they shall carry;[62] and to provide the budgets for the courts.[63]

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,[64] and the authority to investigate and prosecute crimes through a Department of Justice constituted in accordance the Administrative Code.[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.[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.[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 employees in the exercise of their functions.[68] Underlying all these is the Supreme Court’s authority to promulgate the rules of procedure applicable to courts and their proceedings,[69] to appoint all officials and employees of the Judiciary other than judges,[70] and to exercise supervision over all courts and judiciary employees.[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.[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.[73]

Whether a complaint or information emanates from the prosecutor’s office or from the Ombudsman, jurisdiction to hear and try the case belongs to the courts, mandated to determine – under the formal rules of evidence of the Rules of Court and with due observance of the constitutional rights of the accused – the guilt or 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,[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 information[75] and of the press[76] guarantee media participation, consistent with the justice system’s orderly proceedings and the protection of the rights of parties.

The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed purpose of “assisting” the Ombudsman, directly disrupts the established order, as the Constitution and the law do not envision a situation where fact-finding recommendations, already labelled as “true,” would be submitted to the Ombudsman by an entity within the Executive branch. This arrangement is simply not within the dispensation of justice scheme, as the determination of whether probable cause exists cannot be defeated, rendered suspect, or otherwise eroded by any prior process whose results are represented to be the “truth” of the alleged criminal acts. The Ombudsman may be bound by the findings of a court, particularly those of this Court, but not of any other body, most especially a body outside the regular criminal justice system. Neither can the strictly judicial aspect of the justice system be saddled with this type of fact-finding, as the determination of the guilt or innocence of an accused lies strictly and solely with the courts. Nor can the EO cloak its intent of undercutting the authority of the designated authorities to rule on the merits of the alleged graft and corruption through a statement that its findings are recommendatory; as has been discussed above, this express provision is negated in actual application by the title Truth Commission and its truth-telling function.

A necessary consequence of the deviation from the established constitutional and statutory plan is the extension of the situs of the justice system from its constitutionally and statutorily designated locations (equivalent to the above-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.

In practical terms, this extension undermines the established order in the judicial system by directly bringing in considerations that are extraneous to the adjudication of criminal cases, and by co-mingling and confusing these with the standards of the criminal justice system. The result, unavoidably, is a qualitative change in the criminal justice system that is based, not on a legislative policy change, but on an executive fiat.

Because of truth-telling and its consequence of actively bringing in public opinion as a consideration, standards and usages other than those strictly laid down or allowed by the Constitution, by the laws and by the Rules of Court will play a part in the criminal justice system. For example, public comments on the merits of cases that are still sub judice may become rampant as comments on a truth commission’s findings, not on the cases pending before the courts. The commission’s “truthful” findings, made without respect for the rules on evidence and the rights of the accused, would become the standards of public perception of and reaction to cases, not the evidence as found by the courts based on the rules of evidence.

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.

Another consequent adverse impact could be erosion of what the Constitution has very carefully fashioned to be a system where the interpretation of the law and the dispensation of justice are to be administered apolitically by the Judiciary. Politics always enters the picture once public opinion begins to be a significant consideration. At this point, even politicians – ever attuned to the public pulse – may register their own statements in the public arena on the merits of the cases even while matters are sub judice. The effects could be worse where the case under consideration carries its own political dimensions, as in the present case where the target involves the misdeeds of the previous administration.

Whether the Judiciary shall involve, or be involved, in politics, or whether it should consider, or be affected by, political considerations in adjudication, has been firmly decided by the Constitution and our laws in favour of insulation through provisions on the independence of the Judiciary – the unelected branch of government whose standard of action is the rule of law rather than the public pulse. This policy has not been proven to be unsound. Even if it is unsound, any change will have to be effected through legitimate channels – through the sovereignty that can change the Constitution, to the extent that the Judiciary’s and the Ombudsman’s independence and the exercise of judicial discretion are concerned, and through the Congress of the Philippines, with respect to other innovations that do not require constitutional changes.

To be sure, the President of the Philippines, through an executive or administrative order and without authority of law, cannot introduce changes or innovations into the justice system and significantly water down the authoritative power of the courts and of duly designated constitutional bodies in dispensing justice. The nobility of the President’s intentions is not enough to render his act legal. As has been said often enough, ours is a government of laws, not of men.

C. LIMITS OF THE EXERCISE OF EXECUTIVE

POWER IN THE JUSTICE SYSTEM

While the Executive participates in the dispensation of justice under our constitutional and statutory system through its investigatory and prosecutory arms and has every authority in law to ensure that the law is enforced and that violators are prosecuted, even these powers have limits.

The independence of the Ombudsman and its freedom from interference from all other departments of government in the performance of its functions is a barrier that cannot be breached, directly or indirectly, except only as the Constitution and the laws may allow. No such exception has been allowed or given to the President other than through the prosecution the Department of Justice may undertake[77] when the Ombudsman has not asserted its primary jurisdiction. The concurrent jurisdiction given to the Department of Justice to prosecute criminal cases, incidentally, is a grant specific to that office,[78] not to any other office that the Executive may create through an executive order.

The Executive can, without doubt, recommend that specific violators be prosecuted and the basis for this recommendation need not even come from the Department of Justice; the basis may be the findings of the Office of the President itself independently of its Department of Justice. Notably, the other branches of government may also, and do in fact, make recommendations to the Ombudsman in the way that Congress, in the course of its fact-finding for legislative purposes, unearths anomalies that it reports to the Ombudsman. Even the Supreme Court recommends that Judiciary officials and employees found administratively liable be also criminally prosecuted.

The Executive can also designate officials and employees of the Executive Department (or even appoint presidential assistants or consultants)[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 time[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.[81] Note in this regard, and as more fully 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.

Second, the Truth Commission, as created by the EO, appears to be a separate body[82] that is clearly beyond being merely a group of people tasked by the President to accomplish a specific task within his immediate office; its members do not operate in the way that presidential assistants and consultants usually do.

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;[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[84] that, according to the Solicitor General, will not be controlled by the Office of the President;[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.

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.[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.

Still on the point of the President’s authority to delegate tasks to a body he has constituted, in no case can the President order a fact-finding whose results will operate to undercut the authority and integrity of the Ombudsman in a reported violation of the criminal laws by a public servant. The President’s authority – outside of the instance when the Department of Justice acts in default of the Ombudsman – is to bring to the attention of, or make recommendations to, the Ombudsman violations of the law that the Executive branch uncovers in the course of law enforcement. This authority should be no different from that which Congress and the Supreme Court exercise on the same point.

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,[87] where quick transitional justice[88] had to be achieved because these countries were coming 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.

If the President and Congress are dissatisfied with the Ombudsman’s performance of duty, the constitutionally-provided remedy is to impeach the Ombudsman based on the constitutionally-provided grounds for removal. The remedy is not through the creation of a parallel office that either duplicates or renders ineffective the Ombudsman’s actions. By the latter action, the President already situates himself and the Executive Department into the justice system in a manner that the Constitution and the law do not allow.

D. THE PRESIDENT HAS NO AUTHORITY EITHER UNDER THE CONSTITUTION OR UNDER THE LAWS TO CREATE THE TRUTH COMMISSION.

Under the 1987 Constitution, the authority to create offices is lodged exclusively in Congress. This is a necessary implication[89] of its “plenary legislative power.”[90] Thus, except as otherwise provided by the Constitution or statutory grant, no public office can be created except by Congress; any unauthorized action in this regard violates the doctrine of separation of powers.

In essence, according to Father Joaquin Bernas, “separation of powers means that legislation belongs to Congress, execution to the executive, settlement of legal controversies to the judiciary.”[91] This means that the President cannot, under the present Constitution and in the guise of “executing the laws,” perform an act that would impinge on Congress’ exclusive power to create laws, including the power to create a public office.

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.

D.1 The Section 31 Argument.

EO 1, by its express terms, [92] is premised on “Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, which gives the President the

continuing authority to reorganize the Office of the President. The Solicitor General, of course, did not steadfastly hold on to this view; in the course of the oral arguments and in his Memorandum, he invoked other bases for the President’s authority to issue EO 1. In the process, he likewise made various claims, not all of them consistent with one another, on the nature of the Truth Commission that EO 1 created.

Section 31 shows that it is a very potent presidential power, as it empowers him to (1) to re-organize his own internal office; (2) transfer any function or office from the Office of the President to the various executive departments; and (3) transfer any function or office from the various executive departments to the Office of the President.

To reorganize presupposes that an office is or offices are already existing and that (1) a reduction is effected, either of staff or of its functions, for transfer to another or for abolition because of redundancy; (2) offices are merged resulting in the retention of one as the dominant office; (3) two offices are abolished resulting in the emergence of a new office carrying the attributes of its predecessors as well as their responsibilities; or (4) a new office is created by dividing the functions and staff of an existing office. Buklod ng Kawaning EIIB v. Hon. Executive Secretary addresses this point when it said:

[R]eorganization 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.[93]

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”[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.”[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.

D.2. The PD 1416 and Residual Powers Argument

Independently of the EO’s express legal basis, the Solicitor-General introduced a new basis of authority, theorizing that “the power of the President to reorganize the executive branch” is justifiable under Presidential Decree (PD) No. 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 Secretary[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.[97] [Emphasis supplied]

Unfortunately, even the invocation of the transitory clause of the 1987 Constitution (regarding the validity of laws and decrees not inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a legislation that has long lost its potency.

Contemporary history teaches us that PD 1416 was passed under completely different factual and legal milieus that are not present today, thus rendering this presidential decree an anachronism that can no longer be invoked.

Prior to the EDSA Revolution of 1986 (and the 1987 Constitution), President Marcos exercised legislative powers and issued PD 1416, as amended by PD 1772, which, by its express terms, allowed the President to reorganize and/or create offices within the National Government. This was sanctioned in the exercise of the President’s martial law powers and on the basis of Article XVII, Section 3(2) of the 1973 Constitution.[98]

Upon the adoption of the 1987 Constitution, and the re-introduction of the presidential form of government, the “separation of legislative and executive powers”[99] was restored. Similarly recognized were the limits on the exercise of 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.

That PD 1416, as amended by PD 1776, has been overtaken and rendered an obsolete law, is not a new position taken within this Court. In his separate concurring opinion in Banda v. Executive Secretary,[100] Justice Antonio T. Carpio pointedly posited that the ruling in Larin v. Executive Secretary[101] (reiterated in Buklod ng Kawaning EIIB v. Hon. Sec. Zamora[102] and Tondo Medical Center Employees Association v. Court of Appeals[103]), which relied on Section 20, Chapter 7, Book II of the Administrative Code of 1987 in relation with P.D. 1416, cannot validate Executive Order No. 378 assailed in that case because “P.D. 1416, as amended, with its blending of legislative and executive powers, is a vestige of an autrocratic era, totally anachronistic to our present-day constitutional democracy.” [104]

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.

D.3. The Authority of the President under the Faithful Execution Clause

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, fundamental laws on public accountability and transparency – is inherent in the President’s powers as the Chief Executive.” [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.”[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.”[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.”[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.[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?

Solicitor General Cadiz: No, Your Honor.

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.

Solicitor General Cadiz: Thank you, your Honor.

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?

Solicitor General Cadiz: Yes, Your Honor.

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.

Associate Justice Nachura: Again?

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.

Solicitor General Cadiz: Yes, Your Honor.

Associate Justice Nachura: Okay. So, the Commissioners who are appointed are what, Presidential Assistants? Are they Presidential Assistants?

Solicitor General Cadiz: They are Commissioners, Your Honor.

Associate Justice Nachura: They are, therefore, alter-egos of the President?

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: Aha, okay.

Solicitor General Cadiz: Of the Office of the President.

Associate Justice Nachura: Are you saying now that the Commissioners are not under the power and control of the President of the Philippines?

Solicitor General Cadiz: It is so stated in the Executive Order, Your Honor.

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?

Solicitor General Cadiz: Yes, Your Honor.

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.

The Solicitor General, despite his promise to respond through his Memorandum, never bothered to explain point-by-point his unusual positions and conclusions during the oral arguments, responding only with generalities that were not responsive or in point.[110]

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)[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.[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 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.[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.[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.[115]

Apparently, the President wanted to create a separate, distinct and independent Commission because he wants to continuously impress upon the public – his audience in the second forum – that this Commission can tell the “truth” without any control or prompting from the Office of the President and without need of waiting for definitive word from those constitutionally-assigned to undertake this task. Here, truth-telling again rears its ugly head and is unmasked for what it really is – an attempt to bypass the constitutional plan on how crimes are investigated and resolved with finality.

Otherwise stated, if indeed the President can create the Commission as a fact-finding or investigating body, the Commission must perforce be an entity that 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,[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.

If the President wants a truly independent Commission, then that Commission must be created through an act of Congress; otherwise, that independent Commission will be an unconstitutional body. Note as added examples in this regard that previous presidential fact-finding bodies, created either by Executive or Administrative Orders (i.e., Feliciano, Melo, Zeñarosa and IIRC Commissions), were all part of the Executive department and their findings, even without any express representation in the orders creating them, were necessarily subject to the power of the President to review, alter, modify or revise according to the best judgment of the President. That the President who received these commissions’ reports did not alter the recommendations made is not an argument that the President can create an “independent” commission, as the Presidents receiving the commissions’ reports could have, but simply did not, choose to interfere with these past commissions’ findings.

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, “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.”[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.

E. VIOLATIONS OF THE RIGHTS

OF INVESTIGATED PERSONS

E.1 Violation of Personal Rights

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.

The most obvious prejudicial effect of the truth-telling function on the persons investigated is on their persons, reputation and property. Simply being singled out as “charged” in a truth-telling report will inevitably mean disturbance of one’s routines, activities and relationships; the preparation for a defense that will cost money, time and energy; changes in personal, job and business relationships with others; and adverse effects on jobs and businesses. Worse, reputations can forever be tarnished after one is labelled as a participant in massive graft and corruption.

Conceivably, these prejudicial effects may be dismissed as speculative arguments that are not justified by any supporting evidence and, hence, cannot effectively be cited as factual basis for the invalidity of the EO. Evidence, 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.

In the context of this effect, the government statement translates to the message: forget the damage the persons investigated may suffer on their persons and reputation; forget the rights they are entitled to under the Constitution; give primacy to the story told. This kind of message, of course, is unacceptable under a Constitution that establishes the strongest safeguards, through the Bill of Rights, in favor of the individual’s right to life, security and property against the overwhelming might of the government.

E.2 Denial of the right to a fair criminal trial.

The essence of the due process guarantee in a criminal case, as provided under Section 14(1) of the Constitution, is the right to a fair trial. What is fair depends on compliance with the express guarantees of the Constitution, and on the circumstances of each case.

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 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.[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.

F. THE TRUTH COMMISSION AND

THE EQUAL PROTECTION CLAUSE

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,[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;

(2) be germane to the purpose of the law;

(3) not be limited to existing conditions only; and

(4) apply equally to all members of the same class.

In our jurisdiction, we mainly decide equal protection challenges using a “rational basis” test, coupled with a “deferential” scrutiny of legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.[120] Our views on the matter, however, have not remained static, and have been attuned to the jurisprudential developments in the United States on the levels of scrutiny that are applied to determine the acceptability of any differences in treatment that may result from the law. [121]

Serrano v. Gallant Maritime Services, Inc.[122] summarizes the three tests employed in this jurisdiction as follows:

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative classification which impermissibly 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.[123] Briefly stated, the strict scrutiny test is applied when the challenged statute either:

(1) classifies on the basis of an inherently suspect characteristic; or

(2) infringes fundamental constitutional rights.

In these situations, the usual presumption of constitutionality is reversed, and it falls upon the government to demonstrate that its classification has been narrowly tailored to further compelling governmental interests; otherwise, the law shall be declared unconstitutional for violating the equal protection clause.[124]

In EO 1, for the first time in Philippine history, the Executive created a public office to address the “reports of graft and corruption of such magnitude that shock and offend the moral and ethical sensibilities of the people, committed….during the previous administration” through fact-finding, policy formulation and truth-telling.[125] While fact-finding has been undertaken by previous investigative commissions for purposes of possible prosecution and policy-formulation, a first for the current Truth Commission is its task of truth-telling. The Commission not only has to investigate reported graft and corruption; it also has the authority to announce to the public the “truth” regarding alleged graft and corruption committed during the previous administration.

EO 1’s problem with the equal protection clause lies in the truth-telling function it gave the Truth Commission.

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.

Equally unique is the focus of the Commission’s investigation - it solely addresses alleged graft and corruption committed during the past administration. This focus is further narrowed down to “third level public officers and higher, their co-principal, accomplices and accessories from the private sector, if any, during the previous administration.”[126] Under these terms, the subject of the EO is limited only to a very select group – the highest officials, not any ordinary government official at the time. Notably excluded under these express terms are third level and higher officials of other previous administrations who can still be possibly be charged of similar levels of graft and corruption they might have perpetrated during their incumbency. Likewise excepted are the third level officials of the present administration who may likewise commit the same level of graft and corruption during the term of the Commission.

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?

Still a deeper question to be answered is: what level of scrutiny should be given to the patent discrimination in focus and in treatment that the EO abets? Although this question is stated last, it should have been the initial consideration, as its determination governs the level of scrutiny to be accorded; if the strict scrutiny test is appropriate, the government, not the party questioning a classification, carries the burden of showing that permissible classification took place. This critical consideration partly accounts, too, for the relegation to the last, among the EO’s cited grounds for invalidity, of the equal protection clause violation; the applicable level of scrutiny may depend on the prior determination of whether, as held in Serrano, the disparate treatment is attended by infringement of fundamental constitutional rights.

“Fundamental rights” whose infringement leads to strict scrutiny under the equal protection clause are those basic liberties explicitly or implicitly guaranteed in the Constitution. Justice Carpio-Morales, although in dissent in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[127] elaborated on this point when she said:

Most fundamental rights cases decided in the United States require equal protection analysis because these cases would involve a review of statutes which classify persons and impose differing restrictions on the ability of a certain class of persons to exercise a fundamental right. Fundamental rights include only those basic liberties explicitly or implicitly guaranteed by the U.S. Constitution. And precisely because these statutes affect fundamental liberties, any experiment involving basic freedoms which the legislature conducts must be critically examined under the lens of Strict Scrutiny.

Fundamental rights which give rise to Strict Scrutiny include the right of procreation, the right to marry, the right to exercise First Amendment freedoms such as free speech, political expression, press, assembly, and so forth, the right to travel, and the right to vote. [Emphasis supplied]

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.

In the above-cited Central Bank Employees Association, Inc. case,[128] we stated:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution.  When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations.  Rational basis should not suffice.

xxx

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict.  A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines.  This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities.  Oppressive acts will be struck down regardless of the character or nature of the actor. [Underscoring supplied]

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.

Serrano v. Gallant Maritime Services, Inc.[129] helpfully tells us the compelling state interest that is critical in a strict scrutiny examination:

What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history. It is akin to the paramount interest of the state for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, or in maintaining access to information on matters of public concern.

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.”[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.”[131] Under these terms, what appears important to the government as means or mediums in its fight against graft and corruption are (1) to expose the graft and corruption the past administration committed; (2) to prosecute the malefactors, if possible; and (3) to set an example for others. Whether a compelling State interest exists can best be tested through the prism of the means the government has opted to utilize.

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.

Effectively, by acting as he did, the President simply gave the Commission the license to an open hunting season to tell the “truth” against the previous administration; the Commission can investigate an alleged single billion-peso scam, as well as transactions during the past administration that, collectively, may reach the same amount. Only the Commission, in its wisdom, is to judge what allegations or reports of graft and corruption to cover for as long as these were during the past administration. In the absence of any specific guiding principle or directive, indicative of its rationale, the conclusion is unavoidable that the EO carries no special compelling reason to single out officials of the previous administration; what is important is that the graft be attributed to the previous administration. In other words, the real reason for the EO’s focus lies elsewhere, not necessarily in the nature or extent of the matters to be investigated.

If, as strongly hinted by the Solicitor General, dissatisfaction exists regarding the Ombudsman’s zeal, efforts, results, and lack of impartiality, these concerns should be addressed through the remedies provided under the Constitution and the laws, not by bypassing the established remedies under these instruments. Certainly, the remedy is not through the creation of new public office without the authority of Congress.

Every successful prosecution of a graft and corruption violation ought to be an opportunity to set an example and to send a message to the public that the government seriously intends to discharge its duties and responsibilities in the area of graft and corruption. To be sure, the conviction of a third level officer is a high profile accomplishment that the government can and should announce to all as evidence of its efforts and of the lesson that the conviction conveys. This government’s accomplishment, however, does not need to be against an official or officials of the previous administration in order to be a lesson; it can be any third level or higher official from any administration, including the present. In fact, the present administration’s serious intent in fighting graft may all the more be highlighted if it will also proceed against its own people.

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.”[132] There, too, is the Solicitor General’s very calculated statement that truth-telling is an end in itself that the EO wishes to achieve.

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.”

Viewed in these lights, the political motivation behind the EO becomes inescapable. Political considerations, of course, cannot be considered a legitimate state purpose as basis for proper classification.[133] They may be specially compelling but only for the point of view of a political party or interest, not from the point of view of an equality-sensitive State.

In sum, no sufficient and compelling state interest appears to be served by the EO to justify the differential treatment of the past administration’s officials. In fact, exposure of the sins of the previous administration through truth-telling should not even be viewed as “least restrictive” as it is in fact a means with pernicious effects on government and on third parties.

For these reasons, the conclusion that the EO violates the equal protection clause is unavoidable.

G. A FEW LAST WORDS

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.

Under this constitutional arrangement, the Judiciary offers the least threat to the people and their rights, and the least threat, too, to the two other branches of government. If we rule against the other two branches of government at all in cases properly brought before us, we do so only to exercise our sworn duty under the Constitution. We do not prevent the two other branches from undertaking their respective constitutional roles; we merely confine them to the limits set by the Constitution.

This is how we view our present action in declaring the invalidity of EO 1. We do not thereby impugn the nobility of the Executive’s objective of fighting graft and corruption. We simply tell the Executive to secure this objective within the means and manner the Constitution ordains, perhaps in a way that would enable us to fully support the Executive.

To be sure, no cause exists to even impliedly use the term “imperial judiciary” [134] in characterizing our action in this case.

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”[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 any intention to be so. Otherwise, we ourselves shall violate the very instrument we are sworn to uphold.

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

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[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 shall any person be denied the equal protection of the laws.

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.

[2] Executive Order No. 1, “Creating the Philippine Truth Commission of 2010,” Section 1.

[3] TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75, 123-126.

[4] Id. at 182.

[5] Id. at 58-60.

[6] EO 1, Section 1, par. 2.

[7] Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5.

[8] Id., Sections 12, 13.

[9] Id., Section 11.

[10] Id., Section 2 (b).

[11] Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6.

[12] Id., Section 6.

[13] Id., Section 2.

[14] Id., Section 15.

[15] Id., Section 7.

[16] Id., Section 8.

[17] Resolution 001, “Rules of Procedure of the Philippine Truth Commission,” September 20, 2010.

[18] Rules, Rule 4, Section 1(b).

[19] Id., Rule 4, Section 1(b), paragraph 2.

[20] Rules, Rule 4, Section 2.

[21] EO 1, Section 8.

[22] Rules, Rule 5.

[23] Petitioner Lagman’s Petition for Certiorari, rollo, pp. 34-43; Respondents’ Memorandum, id. at 322-323.

[24] See Mark Freeman, Truth Commissions and Procedural Fairness (2006).

[25] Freeman, supra note 24 at 12-13 citing Priscilla Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (2^nd ed., 2004), p. 14.

[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.”

[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).

[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).

[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).

[30] See Joaquin G. Bernas, S.J. The 1987 Constitution Of The Republic Of The Philippines: A Commentary (2009 ed.), p. 118.

[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.

[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.

[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.

[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.”

[35] TSN, September 28, 2010, pp. 58–60, 147.

[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 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.

[37] TSN, September 28, 2010, pp. 146 – 147.

[38] See e.g. Bilbija, et al., eds., The Art of Truth Telling About Authoritarian Rule (2005), p. 14.

[39] Constitution, Article XI, Sections 12 and 13.

[40] Supra note 35.

[41] See Freeman, supra note 24, pp. 88-155.

[42] See Freeman, id. at 88.

[43] Constitution, Article III, Section 14 (2), supra note 1.

[44] Constitution, Article III, Section 17.

[45] Constitution, Article III, Section 12.

[46] TSN, September 28, 2010, pp. 149-151.

[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.

[48] EO 1, Section 16.

[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.

[50] J. Carpio’s Dissenting Opinion, pp. 19-211.

[51] J. Sereno’s Dissenting Opinion, pp. 25- 29.

[52] TSN, September 28, 2010, p. 59.

[53] See Gladwell, supra note 49, pp. 49-73.

[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].

[55] Benjamin N. Cardozo, The Nature of the Judicial Process, (1921).

[56] Id. at 175-176.

[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].

[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.

[59] Rules, Rule 4, Section 2.

[60] Constitution, Article VIII, Section 2. See also Bernas, supra note 30, p. 959.

[61] Id., Article VIII, Section 7 (2).

[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."

[63] Constitution, Article VIII, Section 5.

[64] Constitution, Article VIII, Section 8.

[65] Revised Administrative Code, Book II, Chapter II, Section 22.

[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.

[67] See Batas Pambansa Blg. 129, “An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and For Other Purposes.”

[68] Republic Act No. 8249, supra note 33, Section 4.

[69] Constitution, Article VIII, Section 5 (5).

[70] Id., Article VIII, Section 5 (6).

[71] Id., Article VIII, Section 6.

[72] Revised Administrative Code, Chapter I, Title III, Book IV. See also Honasan II v. Panel of Investigators, supra note 66.

[73] Ibid. See Section 15, par. 1, Republic Act No. 6770.

[74] For officials in Salary Grade 27 and beyond.

[75] Constitution, Article III, Section 7.

[76] Id., Article III, Section 4.

[77] Honasan II v. Panel of Investigators, supra note 66.

[78] See Honasan II v. Panel of Investigators, supra note 66. See also Rules of Court, Rule 112, Sections 2 and 4.

[79] Revised Administrative Code, Chapter 9 (D), Title II, Book III.

[80] Black’s Law Dictionary (5^th ed., 1979), p. 330.

[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.

[82] EO 1, Section 1.

[83] EO 1, Sections 3 and 5.

[84] EO 1, Section 1.

[85] TSN, September 28, 2010, p. 166.

[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].

[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).

[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 Society of International Law, Statement of Purpose, http://www.asil.org/interest-groups-view.cfm?groupid=32.

[89] Isagani Cruz, Philippine Political Law (1998 ed.) p. 79. See also Bernas, supra note 30, pp. 676-677, stating: “Thus, any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress.”

[90] Ibid. See also Canonizado v. Aguirre, G.R. No. 133132, January 25, 2000, 323 SCRA 312; Buklod ng Kawaning EIIB v. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.

[91] Bernas, supra note 30, p. 678.

[92] EO 1, 8^th and last Whereas Clause.

[93] Buklod ng Kawaning EIIB v. Hon. Executive Secretary, supra note 81.

[94] Solicitor General’s Memorandum, rollo, p. 332.

[95] Id. at 324.

[96] G.R. No. 112745, October 16, 1997, 280 SCRA 713.

[97] Solicitor General’s Consolidated Comment, rollo, pp. 148-149.

[98] Aquino v. COMELEC, No. L-40004, January 31, 1975, 62 SCRA 275.

[99] Gonzales v. PAGCOR, G. R. No. 144891, May 27, 2004, 429 SCRA 533,545.

[100] G.R. No. 166620, April 20, 2010.

[101] Supra note 96.

[102] Supra note 81.

[103] G.R. No. 167324, July 17, 2007, 527 SCRA 746.

[104] J. Carpio’s Separate Concurring Opinion. Supra note 100.

[105] Solicitor General’s Consolidated Comment, rollo, p. 160.

[106] Id. at 41.

[107] 135 U.S. 1, 59 (1890).

[108] Bernas, supra note 30, p. 895.

[109] TSN, September 28, 2010, pp. 209-214.

[110] Part of the argument the Solicitor General relied upon was Department of Health v. Campasano, (G.R. No. 157684. April 27, 2005, 457 SCRA 438) Solicitor General’s Consolidated Comment, rollo, pp. 145-146. Reliance on this case, however, is misplaced. In Campasano, the Court upheld the power of the President to create an ad hoc investigating committee in the Department of Health on the basis of the President’s constitutional power of control over the Executive Department as well as his obligation under the faithful execution clause to ensure that all executive officials and employees faithfully comply with the law. The Court’s ruling in Campasano is not determinative of the present case as the Truth Commission is claimed to be a body entirely distinct and independent from the Office of the President. This conclusion is bolstered by the Solicitor 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.

[111] TSN, September 28, 2010, p. 214.

[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.”

[113] 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.” See Vera v. Avelino, 77 Phil. 192, 212 (1946): “any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress x x x” cited in Bernas, supra note 30, pp. 676-677.

[114] Even in the case of the NLRC, however, presidential control cannot be avoided as the NLRC is part of the Executive branch and the President, through his Secretary of Labor, sets the policies on labor and employment (expressed through rules and regulations and interpretation) that, consistent with the existing laws and jurisprudence, must be followed.

[115] Republic Act 6832, otherwise known as “An Act Creating A Commission To Conduct A Thorough Fact-Finding Investigation Of The Failed Coup D′État Of December 1989, Recommend Measures To Prevent The Occurrence Of Similar Attempts At A Violent Seizure Of Power, And For Other Purposes.” Its Section 1 provides:

Section 1. Creation, Objectives and Powers. — There is hereby created an independent Commission which shall investigate all the facts and circumstances of the failed coup d'état of December 1989, and recommend measures to prevent similar attempts at a violent seizure of power. [Emphasis supplied]

[116] See 6^th Whereas Clause, EO 1.

[117] Bernas, supra note 30, p. 678.

[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]

[119] 68 Phil. 12 (1939).

[120] Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004, 446 SCRA 299, 370.

[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.

[122] G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-278.

[123] Supra note 30, pp. 139-140.

[124] J. Carpio-Morales’ Dissenting Opinion. Supra note 120, p. 485.

[125] See Item I (c) of this Concurring Opinion, p. 8.

[126] EO 1, Section 2.

[127] Supra note 120, pp. 495-496.

[128] Id. at 387, 390.

[129] Supra note 120, p. 296.

[130] Id. at 278 citing Grutter v. Bollinger,539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).

[131] EO 1, 5^th Whereas Clause.

[132] EO 1, 6^th Whereas Clause.

[133] Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).

[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.

[135] Ibid.