EN
BANC
G.R. No. 192935 − Louis “Barok” C. Biraogo, Petitioner, vs. The
Philippine Truth Commission, Respondent.
G.R. No. 193036 − Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep.
Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr., Petitioners, vs. Executive
Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management
Secretary Florencio B. Abad, Respondents.
Promulgated:
December 7, 2010
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DISSENTING
OPINION
CARPIO, J.:
The two petitions before this Court seek to
declare void Executive Order No. 1, Creating the Philippine Truth Commission
of 2010 (EO 1), for being
unconstitutional.
In G.R. No. 192935, petitioner Louis C.
Biraogo (Biraogo), as a Filipino citizen and as a taxpayer, filed a petition
under Rule 65 for prohibition and injunction. Biraogo prays for the issuance of
a writ of preliminary injunction and temporary restraining order to declare EO
1 unconstitutional, and to direct the Philippine Truth Commission (Truth
Commission) to desist from proceeding under the authority of EO 1.
In G.R. No. 193036, petitioners Edcel C.
Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(Lagman, et al.), as Members of the House of Representatives, filed a
petition under Rule 65 for certiorari and prohibition. Petitioners Lagman, et
al. pray for the issuance of a temporary restraining order or writ of
preliminary injunction to declare void EO 1 for being unconstitutional.
The
Powers of the President
Petitioners Biraogo and Lagman, et al.
(collectively petitioners) assail the creation of the Truth Commission. They
claim that President Benigno S. Aquino III (President Aquino) has no power to
create the Commission. Petitioners’ objections are mere sound bites, devoid of
sound legal reasoning.
On 30 July 2010, President Aquino issued EO 1
pursuant to Section 31, Chapter 10, Title III, Book III of Executive Order No.
292 (EO 292).1
Section 31 reads:
Section 31. Continuing Authority of the President to
Reorganize his Office. The President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any
of the following actions:
(1) Restructure the internal organization of the Office
of the President Proper, including the immediate Offices, the Presidential
Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions
from one unit to another;
(2) Transfer any function under the Office of the President
to any other Department or Agency as well as transfer functions to the Office
of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other departments or agencies. (Emphasis supplied)
The law expressly grants the President the “continuing
authority to reorganize the
administrative structure of the Office of the President,” which necessarily includes the power to create
offices within the Office of the President Proper. The power of the President
to reorganize the Office of the President Proper cannot be disputed as this
power is expressly granted to the President by law. Pursuant to this power to
reorganize, all Presidents under the 1987 Constitution have created, abolished
or merged offices or units within the Office of the President Proper, EO 1
being the most recent instance. This Court explained the rationale behind the
President’s continuing authority to reorganize the Office of the President
Proper in this way:
x
x x The law grants the President this power in recognition of the recurring
need of every President to reorganize his office “to achieve simplicity,
economy and efficiency.” The Office of the President is the nerve center of the
Executive Branch. To remain effective and efficient, the Office of the
President must be capable of being shaped and reshaped by the President in the
manner he deems fit to carry out his directives and policies. After all, the
Office of the President is the command post of the President. This is the
rationale behind the President’s continuing authority to reorganize the
administrative structure of the Office of the President.2 (Emphasis supplied)
The Power To Execute
Faithfully the Laws
Section 1, Article VI of the 1987 Constitution
states that “[t]he executive power is
vested in the President of the Philippines.” Section 17, Article VII of the 1987 Constitution states that “[t]he
President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.”3
Before he enters office, the President takes the
following oath prescribed in Section 5, Article VII of the 1987 Constitution:
“I do solemnly swear that I will faithfully and conscientiously fulfill my
duties as President of the Philippines, preserve and defend its Constitution, execute
its laws, do justice to every man, and consecrate myself to the service of
the Nation. So help me God.”4
Executive power is vested exclusively
in the President. Neither the Judiciary nor the
Legislature can execute the law. As the Executive, the President is mandated not only to
execute the law, but also to execute faithfully the law.
To execute faithfully the law, the President must first know the facts that
justify or require the execution of the law. To know the facts, the President
may have to conduct fact-finding investigations. Otherwise, without knowing
the facts, the President may be blindly or negligently, and not faithfully and
intelligently, executing the law.
Due to time and physical constraints, the
President cannot obviously conduct by himself the fact-finding investigations.
The President will have to delegate the fact-finding function to one or more
subordinates. Thus, the President may appoint a single fact-finding
investigator, or a collegial body or committee. In recognizing that the
President has the power to appoint an investigator to inquire into facts, this
Court held:
Moreover, petitioner cannot claim that his investigation as
acting general manager is for the purpose of removing him as such for having
already been relieved, the obvious purpose of the investigation is merely to
gather facts that may aid the President in finding out why the NARIC failed to
attain its objectives, particularly in the stabilization of the prices of rice
and corn. His investigation is, therefore, not punitive, but merely an
inquiry into matters which the President is entitled to know so that he can be
properly guided in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this sense, the President may
authorize the appointment of an investigator of petitioner Rodriguez in his
capacity as acting general manager even if under the law the authority to
appoint him and discipline him belongs to the NARIC Board of Directors.
The petition for prohibition, therefore, has no merit.5 (Boldfacing and italicization
supplied)
The Power To Find Facts
The power to find facts, or to conduct
fact-finding investigations, is necessary and proper, and thus inherent
in the President’s power to execute faithfully the law. Indeed, the
power to find facts is inherent not only in Executive power, but also in
Legislative as well as Judicial power. The Legislature cannot sensibly enact a
law without knowing the factual milieu upon which the law is to operate.
Likewise, the courts cannot render justice without knowing the facts of the
case if the issue is not purely legal. Petitioner Lagman admitted this during
the oral arguments:
ASSOCIATE JUSTICE CARPIO:
x x x The power to fact-find is inherent in the legislature,
correct? I mean, before you can pass a law, you must determine the facts. So,
it’s essential that you have to determine the facts to pass a law, and
therefore, the power to fact-find is inherent in legislative power, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
And it is also inherent in judicial power, we must know the
facts to render a decision, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
And it is also inherent in executive power that [the]
President has to know the facts so that he can faithfully execute the laws,
correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor, in that context (interrupted).
ASSOCIATE JUSTICE CARPIO:
So (interrupted)
CONGRESSMAN LAGMAN:
Your Honor, in that context, the legislature has the
inherent power to make factual inquiries in aid of legislation. In the case of
the Supreme Court and the other courts, the power to inquire into facts [is] in
aid of adjudication. And in the case of the Office of the President, or the
President himself [has the power] to inquire into the facts in order to execute
the laws.6
Being an inherent power, there is no need to
confer explicitly on the President, in the Constitution or in the statutes, the
power to find facts. Evangelista v. Jarencio7
underscored the importance of the power to find
facts or to investigate:
It has been essayed that the lifeblood of the administrative
process is the flow of fact[s], the gathering, the organization and the
analysis of evidence. Investigations are useful for all administrative
functions, not only for rule making, adjudication, and licensing, but also for
prosecuting, for supervising and directing, for determining general policy, for
recommending legislation, and for purposes no more specific than illuminating
obscure areas to find out what if anything should be done. An
administrative agency may be authorized to make investigations, not only in proceedings
of a legislative or judicial nature, but also in proceedings whose sole purpose
is to obtain information upon which future action of a legislative or judicial
nature may be taken and may require the attendance of witnesses in proceedings
of a purely investigatory nature. It may conduct general inquiries into evils
calling for correction, and to report findings to appropriate bodies and make
recommendations for actions. (Emphasis supplied)
The Power To Create
A Public Office
The creation of a public office must be
distinguished from the creation of an ad hoc fact-finding public body.
The power to create a public office is
undeniably a legislative power. There are two ways by which a public office is
created: (1) by law, or (2) by delegation of law, as found in the President’s
authority to reorganize his Office. The President as the Executive does not
inherently possess the power to reorganize the Executive branch. However, the
Legislature has delegated to the President the power to create public offices
within the Office of the President Proper, as provided in Section 31(1),
Chapter 10, Title III, Book III of EO 292.
Thus, the President can create the Truth
Commission as a public office in his Office pursuant to his power to reorganize
the Office of the President Proper.8 In
such a case, the President is exercising his delegated power to create a public
office within the Office of the President Proper. There is no dispute that the
President possesses this delegated power.
In the alternative, the President can also
create the Truth Commission as an ad hoc body to conduct a fact-finding investigation pursuant to the
President’s inherent power to find facts as basis to execute faithfully the
law. The creation of such ad hoc fact-finding body is indisputably necessary
and proper for the President to
execute faithfully the law. In such a case, members of the Truth Commission may
be appointed as Special Assistants or Advisers of the President,9
and then assigned to conduct a fact-finding
investigation. The President can appoint as many Special Assistants or Advisers
as he may need.10
There is no public office created and members of
the Truth Commission are incumbents already holding public office in
government. These incumbents are given an assignment by the President to be
members of the Truth Commission. Thus, the Truth Commission is merely an ad
hoc body assigned to conduct a fact-finding investigation.
The creation of ad hoc fact-finding bodies is a routine occurrence
in the Executive and even in the Judicial
branches of government. Whenever there is a complaint against a government
official or employee, the Department Secretary, head of agency or head of a
local government unit usually creates a fact-finding body whose members are
incumbent officials in the same department, agency or local government unit.11
This is also true in the Judiciary, where this
Court routinely appoints a fact-finding investigator, drawn from incumbent
Judges or Justices (or even retired Judges or Justices who are appointed
consultants in the Office of the Court Administrator), to investigate
complaints against incumbent officials or employees in the Judiciary.
The creation of such ad hoc investigating bodies, as well as the appointment of ad
hoc investigators, does not result in
the creation of a public office. In creating ad hoc investigatory bodies or appointing ad hoc investigators,
executive and judicial officials do not create public offices but merely
exercise a power inherent in their primary constitutional or statutory
functions, which may be to execute the law, to exercise disciplinary authority,
or both. These fact-finding bodies and investigators are not permanent bodies
or functionaries, unlike public offices or their occupants. There is no
separate compensation, other than per diems or allowances, for those designated as members of ad
hoc investigating bodies or as ad
hoc investigators.
Presidential Decree No. 1416 (PD 1416) cannot
be used as basis of the President’s power to reorganize his Office or create
the Truth Commission. PD 1416, as amended, delegates to the President
“continuing authority to reorganize the National Government,”12
which means the Executive, Legislative and
Judicial branches of government, in addition to the independent constitutional
bodies. Such delegation can exist only in a dictatorial regime, not under a
democratic government founded on the separation of powers. The other powers
granted to the President under PD 1416, as amended, like the power to transfer
appropriations without conditions and the power to standardize salaries, are
also contrary to the provisions of the 1987 Constitution.13
PD 1416, which was promulgated during the
Martial Law regime to facilitate the transition from the presidential to a
parliamentary form of government under the 1973 Constitution,14
is now functus officio and deemed repealed upon the ratification of the 1987
Constitution.
The President’s power to create ad hoc
fact-finding bodies does not emanate from the
President’s power of control over the Executive branch. The President’s power
of control is the power to reverse, revise or modify the decisions of
subordinate executive officials, or substitute his own decision for that of his
subordinate, or even make the decision himself without waiting for the action
of his subordinate.15
This power of control does not involve the power
to create a public office. Neither does the President’s power to find facts or
his broader power to execute the laws give the President the power to create a
public office. The President can exercise the power to find facts or to execute
the laws without creating a public office.
Objections
to EO 1
There Is No Usurpation of Congress’
Power To Appropriate Funds
Petitioners Lagman, et al. argue that
EO 1 usurps the exclusive power of Congress to appropriate funds because it
gives the President the power to appropriate funds for the operations of the
Truth Commission. Petitioners Lagman, et al. add that no
particular source of funding is identified and that the amount of funds to be
used is not specified.
Congress is exclusively vested with the “power of the purse,”
recognized in the constitutional provision that “no money shall be paid out of
the Treasury except in pursuance of an
appropriation made by law.”16 The
specific purpose of an appropriation law is to authorize the release of
unappropriated public funds from the National Treasury.17
Section 11 of EO 1 merely states that “the
Office of the President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as
possible.” Section 11 does not direct the National Treasurer to release
unappropriated funds in the National Treasury to finance the operations of the
Truth Commission. Section 11 does not also say that the President is
appropriating, or is empowered to appropriate, funds from the unappropriated
funds in the National Treasury. Clearly, there is absolutely no language in EO
1 appropriating, or empowering the President to appropriate, unappropriated
funds in the National Treasury.
Section 11 of EO 1 merely states that the
Office of the President shall fund the operations of the Truth Commission.
Under EO 1, the funds to be spent for the operations of the Truth Commission
have already been appropriated by Congress to the Office of the President under
the current General Appropriations Act. The budget for the Office of the
President under the annual General Appropriations Act always contains a Contingent
Fund18
that can fund the operations of ad hoc
investigating bodies like the Truth Commission.
In this case, there is no appropriation but merely a disbursement by the
President of funds that Congress had already appropriated for the Office of the
President.
The Truth Commission Is Not
A Quasi-Judicial Body
While petitioners Lagman, et al.
insist that the Truth Commission is a
quasi-judicial body, they admit that there is no specific provision in EO 1 that
states that the Truth Commission has quasi-judicial powers.19
ASSOCIATE JUSTICE CARPIO:
Okay. Now. Let’s tackle that issue. Where in the Executive
Order is it stated that [the Truth Commission] has a quasi-judicial power? Show
me the provision.
CONGRESSMAN LAGMAN:
There is no exact provision.
There is no language in EO 1 granting the
Truth Commission quasi-judicial power, whether expressly or impliedly,
because the Truth Commission is not, and was never intended to be, a
quasi-judicial body. The power of the President to create offices within the
Office of the President Proper is a power to create only executive or
administrative offices, not quasi-judicial offices or bodies. Undeniably, a
quasi-judicial office or body can only be created by the Legislature. The Truth
Commission, as created under EO 1, is not a quasi-judicial body and is not
vested with any quasi-judicial power or function.
The exercise of quasi-judicial functions
involves the determination, with respect
to the matter in controversy, of what the law is, what the legal rights and
obligations of the contending parties are, and based thereon and the facts
obtaining, the adjudication of the respective rights and obligations of the
parties.20
The tribunal, board or officer exercising
quasi-judicial functions must be clothed with the power to pass judgment on the
controversy.21
In short, quasi-judicial power is the
power of an administrative body to adjudicate the rights and obligations of
parties under its jurisdiction in a manner that is final and binding, unless
there is a proper appeal. In the
recent case of Bedol v. Commission on Elections,22
this Court declared:
Quasi-judicial
or administrative adjudicatory power on the other hand is the power of the
administrative agency to adjudicate the rights of persons before it. It is the power to hear and
determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by the law itself in
enforcing and administering the same law. The administrative body exercises its
quasi-judicial power when it performs in a judicial manner an act which is
essentially of an executive or administrative nature, where the power to act in
such manner is incidental to or reasonably necessary for the performance of the
executive or administrative duty entrusted to it. In carrying out their
quasi-judicial functions the administrative officers or bodies are required to
investigate facts or ascertain the existence of facts, hold hearings, weigh
evidence, and draw conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.23 (Emphasis supplied)
Under EO 1, the Truth Commission primarily
investigates reports of graft and corruption and recommends the appropriate
actions to be taken. Thus, Section 2 of EO 1 states that the Truth Commission
is “primarily tasked to conduct a thorough fact-finding investigation
of reported cases of graft and corruption and
thereafter submit its findings and recommendations to the President, Congress
and the Ombudsman.” The
President, Congress and the Ombudsman are not bound by the findings and
recommendations of the Truth Commission. Neither are the parties subject of the
fact-finding investigation bound by the findings and recommendations of the Truth
Commission.
Clearly, the function of the Truth Commission
is merely investigative and recommendatory
in nature. The Truth Commission has no power to
adjudicate the rights and obligations of the persons who come before it. Nothing
whatsoever in EO 1 gives the Truth Commission quasi-judicial power, expressly
or impliedly. In short, the Truth Commission is not a quasi-judicial body
because it does not exercise the quasi-judicial power to bind parties before it
with its actions or decisions.
The creation of the Truth Commission has
three distinct purposes since it is tasked to submit its findings to the
President, Congress and the Ombudsman. The Truth Commission will submit its
findings to the President so that the President can faithfully execute the law.
For example, the Truth Commission may recommend to the President that
Department Secretaries should personally approve disbursements of funds in
certain contracts or projects above a certain amount and not delegate such
function to their Undersecretaries.24 The
Truth Commission will also submit its findings to Congress for the possible
enactment by Congress of remedial legislation. For example, Congress may pass a
law penalizing Department Secretaries who delegate to their Undersecretaries
the approval of disbursement of funds contrary to the directive of the
President. Lastly, the Truth Commission will submit its findings to the
Ombudsman for possible further investigation of those who may have violated the
law. The Ombudsman may either conduct a further investigation or simply ignore
the findings of the Truth Commission. Incidentally, the Ombudsman has publicly
stated that she supports the creation of the Truth Commission and that she will
cooperate with its investigation.25
That EO 1 declares that the Truth Commission
“will act as an independent collegial body” cannot invalidate EO 1. This
provision merely means that the President will not dictate on the members of
the Truth Commission on what their findings and recommendations should be. The
Truth Commission is free to come out with its own findings and recommendations,
free from any interference or pressure from the President. Of course, as EO 1
expressly provides, the President, Congress and the Ombudsman are not bound by
such findings and recommendations.
There Is No Usurpation of the
Powers of the Ombudsman
Petitioners Lagman, et al. argue that
since the Ombudsman has the exclusive jurisdiction to investigate graft and
corruption cases, the Truth Commission encroaches on this exclusive power of
the Ombudsman.
There are three types of fact-finding
investigations in the Executive branch. First, there is the purely
fact-finding investigation the purpose of which is to establish the facts as
basis for future executive action, excluding the determination of
administrative culpability or the determination of probable cause. Second,
there is the administrative investigation to determine administrative
culpabilities of public officials and employees. Third, there is the
preliminary investigation whose sole purpose is to determine probable cause as
to the existence and perpetrator of a crime. These three types of fact-finding
investigations are separate and distinct investigations.
A purely fact-finding investigation under the
Office of the President is the first type of fact-finding investigation. Such
fact-finding investigation has three distinct objectives. The first is to
improve administrative procedures and efficiency, institute administrative
measures to prevent corruption, and recommend policy options − all with the objective of enabling the President to
execute faithfully the law. The second is to recommend to Congress possible
legislation in response to new conditions brought to light in the fact-finding
investigation. The third is to recommend to the head of office the filing of a
formal administrative charge, or the filing of a criminal complaint before the
prosecutor.
Under the third objective, the fact-finding
investigation is merely a gathering and evaluation of facts to determine
whether there is sufficient basis to proceed with a formal administrative
charge, or the filing of a criminal complaint before the prosecutor who will
conduct a preliminary investigation. This purely fact-finding investigation
does not determine administrative culpability or the existence of probable
cause. The fact-finding investigation comes before an administrative investigation or preliminary
investigation, where administrative culpability or probable cause,
respectively, is determined.
On the other hand, an administrative
investigation follows, and takes up, the recommendation of a purely fact-finding
investigation to charge formally a public official or employee for possible
misconduct in office. Similarly, a preliminary investigation is an inquiry to
determine whether there is sufficient ground to believe that a crime has been
committed and that the respondent is probably guilty of such crime, and should
be held for trial.26
A preliminary investigation’s sole purpose is to determine whether there is
probable cause to charge a person for a crime.
Section 15 of Republic Act No. 677027
provides:
SEC. 15. Powers, Functions and Duties. - The Office
of the Ombudsman shall have the following powers, functions and duties: x x x
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or employee, office or
agency when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of his primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases; x x x (Emphasis supplied)
The Ombudsman has “primary jurisdiction
over cases cognizable by the
Sandiganbayan.” The cases cognizable
by the Sandiganbayan are criminal cases as well as quasi-criminal cases like
the forfeiture of unexplained wealth.28 “[I]n
the exercise of this primary jurisdiction” over cases cognizable by the
Sandiganbayan, the Ombudsman “may take over x x x the investigation of such
cases” from any investigatory agency of the Government. The cases covered by
the “primary jurisdiction” of
the Ombudsman are criminal or quasi-criminal cases but not administrative cases. Administrative cases, such as administrative
disciplinary cases, are not cognizable by the Sandiganbayan. With more reason,
purely fact-finding investigations conducted by the Executive branch are not
cognizable by the Sandiganbayan.
Purely fact-finding investigations to improve
administrative procedures and efficiency, to institute administrative measures
to prevent corruption, to provide the President with policy options, to
recommend to Congress remedial legislation, and even to determine whether there
is basis to file a formal administrative charge against a government official
or employee, do not fall under the “primary jurisdiction” of the Ombudsman. These
fact-finding investigations do not involve criminal or quasi-criminal cases
cognizable by the Sandiganbayan.
If the Ombudsman has the power to take-over
purely fact-finding investigations from the President or his subordinates, then
the President will become inutile. The President will be wholly dependent on
the Ombudsman, waiting for the Ombudsman to establish the facts before the
President can act to execute faithfully the law. The Constitution does not vest
such power in the Ombudsman. No statute grants the Ombudsman such power, and if
there were, such law would be unconstitutional for usurping the power of the
President to find facts necessary and proper to his faithful execution of the
law.
Besides, if the Ombudsman has the exclusive
power to conduct fact-finding investigations,
then even the Judiciary and the Legislature cannot perform their fundamental
functions without the action or approval of the Ombudsman. While the
Constitution grants the Office of the Ombudsman the power to “[i]nvestigate on
its own x x x any act or omission of any public official, employee, office or
agency,”29
such power is not exclusive. To hold that
such investigatory power is exclusive to the Ombudsman is to make the
Executive, Legislative and Judiciary wholly dependent on the Ombudsman for the
performance of their Executive, Legislative and Judicial functions.
Even in investigations involving criminal and
quasi-criminal cases cognizable by the Sandiganbayan, the Ombudsman does not
have exclusive jurisdiction to conduct preliminary investigations. In Honasan
II v. The Panel of Investigating Prosecutors of the Department of Justice,30
this Court held:
In summation, the
Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction
to investigate offenses committed by public officers or employees. The
authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as
provincial, city and state prosecutors. However, the Ombudsman, in the exercise
of its primary jurisdiction over cases cognizable by the Sandiganbayan, may
take over, at any stage, from any investigating agency of the government, the
investigation of such cases.31 (Emphasis supplied)
To repeat, Honasan II categorically
ruled that “the Constitution, Section 15 of the Ombudsman Act of 1989 and
Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman
exclusive jurisdiction to investigate offenses committed by public officials
and employees.”
The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary
investigation to determine if there
is probable cause to charge a public officer or employee with an offense, not
to the conduct of a purely administrative fact-finding investigation that does
not involve the determination of probable cause.32 The
Truth Commission is a purely fact-finding body that does not determine the
existence of probable cause. There is no accused or even a suspect before the
Truth Commission, which merely conducts a general inquiry on reported cases of
graft and corruption. No one will even be under custodial investigation before
the Truth Commission.33 Thus,
the claim that the Truth Commission is usurping the investigatory power of the
Ombudsman, or of any other government official, has no basis whatsoever.
In criminal fact-finding investigations,
the law expressly vests in the Philippine National Police (PNP) and the
National Bureau of Investigation (NBI) investigatory powers. Section 24 of
Republic Act No. 697534
provides:
Section
24. Powers and Functions – The PNP shall have the following powers and duties:
(a)
x x x
x
x x
(c)
Investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice, and assist in their prosecution;
x
x x. (Emphasis supplied)
Section 1 of Republic Act No. 157 also
provides:
Section
1. There is hereby created a Bureau of Investigation under the Department of
Justice which shall have the following functions:
(a)
To undertake investigation of crimes and other offenses against the laws
of the Philippines, upon its own initiative and as public interest may require;
x
x x. (Emphasis supplied)
The PNP and the NBI are under the control
of the President. Indisputably, the President can at any time direct the PNP
and NBI, whether singly, jointly or in coordination with other government
bodies, to investigate possible violations of penal laws, whether committed by
public officials or private individuals. To say that the Ombudsman has the
exclusive power to conduct fact-finding investigations of crimes involving
public officials and employees is to immobilize our law-enforcement agencies
and allow graft and corruption to run riot. The fact-finding arm of the
Department of Justice (DOJ) to investigate crimes, whether committed by public
or private parties, is the NBI.35 The DOJ Proper does not conduct
fact-finding investigations of crimes, but only preliminary investigations.
The Truth Commission
Has Subpoena Powers
Section 2 of EO 1 provides that the Truth
Commission shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of EO 292, which reads:
Sec. 37. Powers Incidental to Taking of Testimony. -
When authority to take testimony or receive evidence is conferred upon any
administrative officer or any non-judicial person, committee, or other body, such
authority shall include the power to administer oaths, summon witnesses, and
require the production of documents by a subpoena duces tecum.
(Emphasis supplied)
Section 2(e) of EO 1 confers on the Truth
Commission the power to “[i]nvite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths or affirmation as the case
may be.” Thus, the Truth Commission, a body authorized to take testimony, can
administer oaths and issue subpoena and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of EO 292.
In fact, this power to administer oaths and to issue subpoena and subpoena
duces tecum is a power of every
administrative fact-finding investigative body created in the Executive,
Legislative or Judicial branch. Section 37, Chapter 9, Book I of EO 292
grants such power to every fact-finding body so created.
The Truth Commission
Has No Contempt Powers
Section 9 of EO 1 provides:
Section
9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena
issued by the Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for inspection,
when required, shall be subject to administrative disciplinary action. Any
private person who does the same may be dealt with in accordance with law.
There is no provision in EO 1 that gives the
Truth Commission the power to cite persons for contempt. As explained by
Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to obey the
subpoena, take oath or give testimony is a public officer, he can be charged
with “defiance of a lawful order,”36 which
should mean insubordination37 if
his superior had ordered him to obey the subpoena of the Truth Commission. If
the person is not a public officer or employee, he can only be dealt with in
accordance with law, which should mean that the Truth Commission could file a
petition with the proper court to cite such private person in contempt pursuant
to Sections 138
and 939 of
Rule 21 of the Rules of Court.
However, the mere fact that the Truth
Commission, by itself, has no coercive power to compel any one, whether a
government employee or a private individual, to testify before the Commission
does not invalidate the creation by the President, or by the Judiciary or
Legislature, of a purely administrative fact-finding investigative body. There
are witnesses who may voluntarily testify, and bring relevant documents, before
such fact-finding body. The fact-finding body may even rely only on official
records of the government. To require every administrative fact-finding body to
have coercive or contempt powers is to invalidate all administrative
fact-finding bodies created by the Executive, Legislative and Judicial branches
of government.
The Name “Truth Commission”
Cannot Invalidate EO 1
There is much ado about the words “Truth
Commission” as the name of the fact-finding body created under EO 1. There
is no law or rule prescribing how a fact-finding body should be named. In
fact, there is no law or rule prescribing how permanent government commissions,
offices, or entities should be named.40 There is also no law or rule
prohibiting the use of the words “Truth Commission” as the name of a
fact-finding body. Most fact-finding bodies are named, either officially or
unofficially, after the chairperson of such body, which by itself, will not
give any clue as to the nature, powers or functions of the body. Thus, the name
Feliciano Commission or Melo Commission, by itself, does not indicate what the
commission is all about. Naming the present fact-finding body as the “Truth
Commission” is more descriptive than naming it the Davide Commission after the
name of its chairperson.
The name of a government commission, office
or entity does not determine its nature, powers or functions. The specific
provisions of the charter creating the commission, office or entity determine
its nature, powers or functions. The name of the commission, office or entity
is not important and may even be misleading. For example, the term Ombudsman
connotes a male official but no one in his right mind will argue that a female
cannot be an Ombudsman. In fact, the present Ombudsman is not a man but a
woman. In the private sector, the name of a corporation may not even indicate
what the corporation is all about. Thus, Apple Corporation is not in the
business of selling apples or even oranges. An individual may be named Honesto
but he may be anything but honest. All this tells us that in determining the
nature, powers or functions of a commission, office or entity, courts should
not be fixated by its name but should examine what it is tasked or empowered to
do.
In any event, there is nothing inherently
wrong in the words “Truth Commission” as the name of a fact-finding body. The
primary purpose of every fact-finding body is to establish the facts. The facts
lead to, or even constitute, the truth. In essence, to establish the facts is
to establish the truth. Thus, the name “Truth Commission” is as appropriate as
the name “Fact-Finding Commission.” If the name of the commission created in EO
1 is changed to “Fact-Finding Commission,” the nature, powers and functions of
the commission will remain exactly the same. This simply shows that the name of
the commission created under EO 1 is not important, and any esoteric discourse
on the ramifications of the name “Truth Commission” is merely an academic
exercise. Of course, the name “Truth Commission” is more appealing than the
worn-out name “Fact-Finding Commission.” Courts, however, cannot invalidate a
law or executive issuance just because its draftsman has a flair for catchy
words and a disdain for trite ones. Under the law, a fact-finding commission by
any other name is a fact-finding commission.41
The Public Will Not Be Deceived that
Findings of Truth Commission Are Final
The fear that the public will automatically
perceive the findings of the Truth Commission as the “truth,” and any
subsequent contrary findings by the Ombudsman or Sandiganbayan as the
“untruth,” is misplaced. First, EO 1 is unequivocally clear that the
findings of the Truth Commission are neither final nor binding on the
Ombudsman, more so on the Sandiganbayan which is not even mentioned in EO 1. No
one reading EO 1 can possibly be deceived or misled that the Ombudsman or the
Sandiganbayan are bound by the findings of the Truth Commission.
Second, even if the Truth Commission is renamed the “Fact-Finding
Commission,” the same argument can also be raised — that the public may automatically perceive the
findings of the Fact-Finding Commission as the unquestionable “facts,” and any
subsequent contrary findings by the Ombudsman or Sandiganbayan as
“non-factual.” This argument is bereft of merit because the public can easily
read and understand what EO 1 expressly says — that the findings of the Truth Commission are not final or binding but
merely recommendatory.
Third, the Filipino people are familiar with the Agrava Board,42
a fact-finding body that investigated the
assassination of former Senator Benigno S. Aquino, Jr. The people know that the
findings of the Agrava Board were not binding on the then Tanodbayan or the
Sandiganbayan. The Agrava Board recommended for prosecution 26 named
individuals43
but the Tanodbayan charged 40 named individuals44
before the Sandiganbayan. On the other hand, the
Sandiganbayan convicted only 16 of those charged by the Tanodbayan and
acquitted 20 of the accused.45
Fourth, as most Filipinos know, many persons who undergo preliminary
investigation and are charged for commission of crimes are eventually acquitted
by the trial courts, and even by the appellate courts. In short, the fear that
the public will be misled that the findings of the Truth Commission is the
unerring gospel truth is more imagined than real.
EO 1 Does Not Violate
The Equal Protection Clause
Petitioners Lagman, et al. argue
that EO 1 violates the equal protection clause because the investigation of the
Truth Commission is limited to alleged acts of graft and corruption during the
Arroyo administration.
A reading of Section 17 of EO 1 readily shows
that the Truth Commission’s investigation
is not limited to the Arroyo administration. Section 17 of EO 1 provides:
Section 17. Special Provision Concerning Mandate. If
and when in the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be extended accordingly by way
of a supplemental Executive Order. (Emphasis supplied)
The President can expand the mandate of the
Truth Commission to investigate alleged graft and corruption cases of other past
administrations even as its primary
task is to investigate the Arroyo administration. EO 1 does not confine the mandate of the Truth
Commission solely to alleged acts of graft and corruption during the
Arroyo Administration.
Section 17 of EO 1 is the same
as Section 2(b) of Executive Order No. 1 dated
28 February 1986 issued by President Corazon Aquino creating the Presidential
Commission on Good Government (PCGG Charter). Section 2(b) of the PCGG Charter
provides:
Section
2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
1.
The recovery of all ill-gotten wealth
accumulated by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates xxx.
2.
The investigation of such cases of graft and
corruption as the President may assign to the Commission from time to time.
x
x x x . (Emphasis supplied)
Thus, under Section 2(b) of the PCGG Charter,
the President can expand the investigation of the PCCG even as its primary
task is to recover the ill-gotten wealth of the Marcoses and their cronies.
Both EO 1 and the PCGG Charter have the same provisions on the scope of their
investigations. Both the Truth Commission and the PCGG are primarily tasked to
conduct specific investigations, with their mandates subject to expansion by
the President from time to time. This Court has consistently upheld the
constitutionality of the PCGG Charter.46
Like Section 2(b) of the PCGG Charter,
Section 17 of EO 1 merely prioritizes the investigation of acts of graft and corruption that
may have taken place during the Arroyo administration. If time allows, the
President may extend the mandate of the Truth Commission to investigate other
administrations prior to the Arroyo administration. The prioritization of
such work or assignment does not violate the equal protection clause because the
prioritization is based on reasonable grounds.
First, the prescriptive period for the most serious acts of
graft and corruption under the Revised Penal Code is 20 years,47
15 years for offenses punishable under the
Anti-Graft and Corrupt Practices Act,48 and
12 years for offenses punishable under special penal laws that do not expressly
provide for prescriptive periods.49 Any
investigation will have to focus on alleged acts of graft and corruption within
the last 20 years, almost half of which or 9 years is under the Arroyo
administration.
While it is true that the prescriptive period
is counted from the time of discovery of the offense, the “reported cases”50
of “large scale corruption”51 involving “third level public
officers and higher,”52
which the Truth Commission will investigate, have already been widely
reported in media, and many of these reported cases have even been
investigated by the House of Representatives or the Senate. Thus, the
prescriptive periods of these “reported cases” of “large scale corruption” may
have already began to run since these anomalies are publicly known and may be
deemed already discovered.53
These prescriptive periods refer to the criminal acts of public officials under
penal laws, and not to the recovery of ill-gotten wealth which under the
Constitution is imprescriptible.54
Second, the Marcos, Ramos and Estrada administrations were
already investigated by their successor administrations. This alone is
incontrovertible proof that the Arroyo administration is not being singled
out for investigation or
prosecution.
Third, all the past Presidents, with the exception of
Presidents Ramos, Estrada and Arroyo, are already dead. The possible witnesses
to alleged acts of graft and corruption during the Presidencies of the deceased
presidents may also be dead or unavailable. In fact, the only living
President whose administration has not been investigated by its successor
administration is President Arroyo.
Fourth, the more recent the alleged acts of graft and
corruption, the more readily available will be the witnesses, and the more
easily the witnesses can recall with accuracy the relevant events. Inaction
over time means the loss not only of witnesses but also of material documents,
not to mention the loss of public interest.
Fifth, the 29-month time limit given to the Truth
Commission prevents it from investigating other past administrations.55
There is also the constraint on the enormous resources needed to
investigate other past administrations. Just identifying the transactions,
locating relevant documents, and looking for witnesses would require a whole
bureaucracy.
These are not only reasonable but also
compelling grounds for the Truth Commission to prioritize the investigation of
the Arroyo administration. To
prioritize based on reasonable and even compelling grounds is not to
discriminate, but to act sensibly and responsibly.
In any event, there is no violation of the
equal protection clause just because the authorities focus their
investigation or prosecution on one particular alleged law-breaker, for surely a person accused of robbery cannot raise as
a defense that other robbers like him all over the country are not being
prosecuted.56
By the very nature of an investigation or
prosecution, there must be a focus on particular act or acts of a person or a
group of persons.
Indeed, almost every fact-finding body
focuses its investigation on a specific subject matter ─ whether it be a specific act, incident, event,
situation, condition, person or group of persons. This specific focus results
from the nature of a fact-finding investigation, which is a necessary and
proper response to a specific compelling act, incident, event, situation, or
condition involving a person or group of persons. Thus, the fact-finding
commissions created under the previous Arroyo administration had specific
focus: the Feliciano Commission focused on the Oakwood mutiny, the Melo
Commission focused on extra-judicial killings, and the Zeñarosa Commission
focused on private armies.
Significantly, the PCGG Charter even
specifies the persons to be investigated for the recovery of ill-gotten wealth.
Thus, Section 2(a) of the PCGG Charter provides:
Section
2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a)
The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the
takeover or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship.
(b)
x x x . (Emphasis supplied)
The PCGG Charter has survived all
constitutional attacks before this Court, including the claim that its Section
2(a) violates the equal protection clause. In Virata v. Sandiganbayan,57
this Court categorically ruled that the PCGG
Charter “does not violate the equal protection clause and is not a bill of
attainder or an ex post facto law.”58
This specific focus of fact-finding
investigations is also true in the United States. Thus, the Roberts Commission59
focused on the Pearl Harbor attack, the Warren
Commission60
focused on the assassination of President John
F. Kennedy, and the 9/11 Commission61 focused
on the 11 September 2001 terrorist attacks on the United States. These
fact-finding commissions were created with specific focus to assist the U.S.
President and Congress in crafting executive and legislative responses to
specific acts or events of grave national importance. Clearly, fact-finding
investigations by their very nature must have a specific focus.
Graft and corruption cases before the Arroyo
administration have already been investigated by the previous administrations.
President Corazon Aquino created the Presidential Commission on Good Government
to recover the ill-gotten wealth of the Marcoses and their cronies.62
President Joseph Estrada created the Saguisag
Commission to investigate the Philippine Centennial projects of President Fidel
Ramos.63
The glaring acts of corruption during the
Estrada administration have already been investigated resulting in the
conviction of President Estrada for plunder. Thus, it stands to reason that the
Truth Commission should give priority to the alleged acts of graft and
corruption during the Arroyo administration.
The majority opinion claims that EO 1
violates the equal protection clause because the Arroyo administration belongs
to a class of past administrations and the other past administrations are not
included in the investigation of the Truth Commission. Thus, the majority
opinion states:
In
this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
x
x x
x
x x The PTC [Philippine Truth Commission], to be true to its mandate of
searching the truth, must not exclude the other past administrations. The
PTC must, at least, have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be arbitrary lest
it be struck down for being unconstitutional.
x
x x
x
x x To exclude the earlier administrations in the guise of “substantial
distinctions” would only confirm the petitioners' lament that the subject
executive order is only an “adventure in partisan hostility.” x x x.
x
x x
To
reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally belong
to the class. “Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may hereafter be in similar circumstances and conditions. Furthermore, all
who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and treated
by it in the same way as are the members of the class.” (Emphasis supplied)
The majority opinion goes on to suggest that
EO 1 could be amended “to include the earlier past administrations”
to allow it “to pass the test of
reasonableness and not be an affront to the Constitution.”
The majority opinion’s reasoning is specious,
illogical, impractical, impossible to comply, and contrary to the Constitution
and well-settled jurisprudence. To require that “earlier past
administrations” must also be
included in the investigation of the Truth Commission, with the Truth
Commission expressly empowered “to investigate all past administrations,” before there can be a valid investigation of the Arroyo
administration under the equal protection clause, is to prevent absolutely
the investigation of the Arroyo administration under any circumstance.
While the majority opinion admits that there
can be “reasonable prioritization” of
past administrations to be investigated, it not only fails to explain how such
reasonable prioritization can be made, it also proceeds to strike down EO 1 for
prioritizing the Arroyo administration in the investigation of the Truth
Commission. And while admitting that there can be a valid classification based
on substantial distinctions, the majority opinion inexplicably makes any
substantial distinction immaterial by stating that “[t]o exclude the earlier
administrations in the guise of “substantial distinctions” would only confirm
the petitioners' lament that the subject executive order is only an 'adventure
in partisan hostility.'”
The “earlier past administrations” prior to the Arroyo administration cover the Presidencies
of Emilio Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas,
Elpidio Quirino, Ramon Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand
Marcos, Corazon Aquino, Fidel Ramos, and Joseph Estrada, a period spanning
102 years or more than a century. All these administrations, plus the
9-year Arroyo administration, already constitute the universe of all past
administrations, covering a total period of 111 years. All these “earlier
past administrations” cannot
constitute just one class of administrations because if they were to constitute
just one class, then there would be no other class of administrations. It is
like saying that since all citizens are human beings, then all citizens belong
to just one class and you cannot classify them as disabled, impoverished,
marginalized, illiterate, peasants, farmers, minors, adults or seniors.
Classifying the “earlier past
administrations” in the last 111 years as just one class is not germane to
the purpose of investigating possible acts of graft and corruption. There are
prescriptive periods to prosecute crimes. There are administrations that have
already been investigated by their successor administrations. There are also
administrations that have been subjected to several Congressional
investigations for alleged large-scale anomalies. There are past Presidents,
and the officials in their administrations, who are all dead. There are past
Presidents who are dead but some of the officials in their administrations are
still alive. Thus, all the “earlier past administrations” cannot be
classified as just one single class − “a class of past administrations”
‒ because they are not all similarly situated.
On the other hand, just because the
Presidents and officials of “earlier past administrations” are now all dead, or the prescriptive periods under
the penal laws have all prescribed, does not mean that there can no longer be
any investigation of these officials. The State's right to recover the
ill-gotten wealth of these officials is imprescriptible.64
Section 15, Article XI of the 1987 Constitution
provides:
Section
15. The right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not
be barred by prescription, laches or estoppel. (Emphasis supplied)
Legally and morally, any ill-gotten wealth
since the Presidency of Gen. Emilio Aguinaldo can still be recovered by the
State. Thus, if the Truth Commission is required to investigate “earlier
past administrations” that could still be legally investigated, the Truth
Commission may have to start with the Presidency of Gen. Emilio Aguinaldo.
A fact-finding investigation of “earlier
past administrations,” spanning 111 years punctuated by two world wars, a
war for independence, and several rebellions ─ would obviously be an impossible task to undertake for
an ad hoc body like the Truth
Commission. To insist that “earlier past administrations” must also be investigated by the Truth Commission,
together with the Arroyo administration, is utterly bereft of any reasonable
basis other than to prevent absolutely the investigation of the Arroyo
administration. No nation on this planet has even attempted to assign to one ad-hoc
fact-finding body the investigation of all its
senior public officials in the past 100 years.
The majority opinion’s overriding thesis −
that “earlier past administrations”
belong to only one class and they must all be
included in the investigation of the Truth Commission, with the Truth
Commission expressly empowered “to investigate all past administrations” − is even the wrong assertion of discrimination that is violative of the equal protection
clause. The logical and correct assertion of a violation of the equal
protection clause is that the Arroyo administration is being investigated for
possible acts of graft and corruption while other past administrations
similarly situated were not.
Thus, in the leading case of United States
v. Armstrong,65
decided in 1996, the U.S. Supreme Court ruled
that “to establish a discrimination effect in a race case, the claimant must
show that similarly situated individuals of a different race were not
prosecuted.”66
Applied to the present petitions, petitioners
must establish that similarly situated officials of other past administrations
were not investigated. However, the incontrovertible and glaring fact
is that the Marcoses and their cronies were investigated and prosecuted by the
PCGG, President Fidel Ramos and his officials in the Centennial projects were
investigated by the Saguisag Commission, and President Joseph Estrada was
investigated, prosecuted and convicted of plunder under the Arroyo
administration. Indisputably, the Arroyo administration is not being singled
out for investigation or prosecution because other past administrations and
their officials were also investigated or prosecuted.
In United States v. Armstrong, the
U.S. Supreme Court further stated that “[a] selective-prosecution claim asks a
court to exercise judicial power over a “special province” of the Executive,”67
citing Hecker v. Chaney68
which held that a decision whether or not to
indict “has long been regarded
as the special province of the Executive
Branch, inasmuch it is the Executive who is charged by the Constitution to
‘take Care that the Laws be faithfully executed.’”69
These U.S. cases already involved the
prosecution of cases before the grand jury or the courts, well past the
administrative fact-finding investigative phase.
In the present case, no one has been charged
before the prosecutor or the courts. What petitioners want this Court to do is
invalidate a mere administrative fact-finding investigation by the Executive
branch, an investigative phase prior to preliminary investigation. Clearly, if
courts cannot exercise the Executive’s “special province” to decide whether or
not to indict, which is the equivalent of determination of probable cause, with
greater reason courts cannot exercise the Executive’s “special province” to
decide what or what not to investigate for administrative fact-finding
purposes.
For this Court to exercise this “special
province” of the President is to encroach on the exclusive domain of the
Executive to execute the law in blatant violation of the finely crafted
constitutional separation of power. Any unwarranted intrusion by this Court
into the exclusive domain of the Executive or Legislative branch disrupts the
separation of power among the three co-equal branches and ultimately invites
re-balancing measures from the Executive or Legislative branch.
A claim of selective prosecution that
violates the equal protection clause can be raised only by the party adversely affected by
the discriminatory act. In Nunez
v. Sandiganbayan,70 this
Court declared:
‘x
x x Those adversely affected may under the circumstances invoke the
equal protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common weal was
prompted by the spirit of hostility, or at the very least, discrimination that
finds no support in reason.’ x x x. (Emphasis supplied)
Here, petitioners do not claim to be
adversely affected by the alleged selective prosecution under EO 1. Even in the
absence of such a claim by the proper party, the majority opinion strikes down
EO 1 as discriminatory and thus violative of the equal protection clause. This
is a gratuitous act to those who are not before this Court, a discriminatory
exception to the rule that only those “adversely affected” by an alleged
selective prosecution can invoke the equal protection clause. Ironically,
such discriminatory exception is a violation of the equal protection clause.
In short, the ruling of the majority is in itself a violation of the equal
protection clause, the very constitutional guarantee that it seeks to enforce.
The majority opinion’s requirement that “earlier
past administrations” in the last 111
years should be included in the investigation of the Truth Commission to comply
with the equal protection clause is a recipe for all criminals to escape
prosecution. This requirement is like saying that before a person can be
charged with estafa, the prosecution must also charge all persons who in the
past may have committed estafa in the country. Since it is impossible for the
prosecution to charge all those who in the past may have committed estafa in
the country, then it becomes impossible to prosecute anyone for estafa.
This Court has categorically rejected this
specious reasoning and false invocation of the equal protection clause in People
v. dela Piedra,71
where the Court emphatically ruled:
The prosecution of one guilty person while others equally
guilty are not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws.
x x x
x
x x The mere allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in appellant’s
eyes, was not, is insufficient to support a conclusion that the prosecution
officers denied appellant equal protection of the laws.
There
is also common sense practicality in sustaining appellant’s prosecution.
While
all persons accused of crime are to be treated on a basis of equality before
the law, it does not follow that they are to be protected in the commission of
crime. It would be unconscionable, for instance, to excuse a defendant
guilty of murder because others have murdered with impunity. The remedy
for unequal enforcement of the law in such instances does not lie in the
exoneration of the guilty at the expense of society . . . . Protection of
the law will be extended to all persons equally in the pursuit of their lawful
occupations, but no person has the right to demand protection of the law in the
commission of a crime. (People v. Montgomery, 117 P.2d 437 [1941])
Likewise,
[i]f
the failure of prosecutors to enforce the criminal laws as to some persons
should be converted into a defense for others charged with crime, the result
would be that the trial of the district attorney for nonfeasance would become
an issue in the trial of many persons charged with heinous crimes and the
enforcement of law would suffer a complete breakdown (State v. Hicks,
325 P.2d 794 [1958]).72
(Emphasis supplied)
The Court has reiterated this “common
sense” ruling in People v. Dumlao73
and in Santos v. People,74
for to hold otherwise is utter nonsense as it
means effectively granting immunity to all criminals.
Indeed, it is a basic statutory principle
that non-observance of a law by disuse is not a ground to escape prosecution
for violation of a law. Article 7 of Civil Code expressly provides:
Article
7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
x
x x. (Emphasis supplied)
A person investigated or prosecuted for a
possible crime cannot raise the defense that he is being singled out because
others who may have committed the same crime are not being investigated or
prosecuted. Such person cannot even raise the defense that after several
decades he is the first and only one being investigated or
prosecuted for a specific crime. The law expressly states that disuse of a
law, or custom or practice allowing violation of a law, will never justify the
violation of the law or its non-observance.
A fact-finding investigation in the Executive
or Judicial branch, even if limited to specific government officials ─
whether incumbent, resigned or retired ─
does not violate the equal protection clause. If
an anomaly is reported in a government transaction and a fact-finding
investigation is conducted, the investigation by necessity must focus on the
public officials involved in the transaction. It is ridiculous for anyone to
ask this Court to stop the investigation of such public officials on the ground
that past public officials of the same rank, who may have been involved in
similar anomalous transactions in the past, are not being investigated by the
same fact-finding body. To uphold such a laughable claim is to grant immunity
to all criminals, throwing out of the window the constitutional principle that “[p]ublic office is a public trust”75
and that “[p]ublic officials and employees must at
all times be accountable to the
people.”76
When the Constitution states that public
officials are “at all times” accountable
to the people, it means at any time public
officials can be held to account by the people. Nonsensical claims, like the
selective prosecution invoked in People v. dela Piedra, are unavailing.
Impossible conditions, like requiring the investigation of “earlier past
administrations,” are disallowed. All these flimsy and dilatory excuses
violate the clear command of the Constitution that public officials are
accountable to the people “at all times.”
The majority opinion will also mean that the
PCGG Charter − which tasked the
PCGG to recover the ill-gotten wealth of the Marcoses and their cronies −
violates the equal protection clause because the
PCCG Charter specifically mentions the Marcoses and their cronies. The majority
opinion reverses several decisions77 of
this Court upholding the constitutionality of the PCCG Charter, endangering
over two decades of hard work in recovering ill-gotten wealth.
Ominously, the majority opinion provides from
hereon every administration a cloak of immunity against any investigation by
its successor administration. This will institutionalize impunity in
transgressing anti-corruption and other penal laws. Sadly, the majority opinion
makes it impossible to bring good governance to our government.
The Truth Commission is only a fact-finding
body to provide the President with facts so that he can understand what
happened in certain government transactions during the previous administration.
There is no preliminary investigation yet and the Truth Commission will
never conduct one. No one is even being charged before the prosecutor or the
Ombudsman. This Court has consistently refused to interfere in the
determination by the prosecutor of the existence of probable cause in a
preliminary investigation.78 With
more reason should this Court refuse to interfere in the purely fact-finding
work of the Truth Commission, which will not even determine whether there is
probable cause to charge any person of a crime.
Before the President executes the law, he
has the right, and even the duty, to know the
facts to assure himself and the public that he is correctly executing the law. This
Court has no power to prevent the President from knowing the facts to
understand certain government transactions in the Executive branch,
transactions that may need to be reviewed, revived, corrected, terminated or
completed. If this Court can do so, then it can also prevent the House of
Representatives or the Senate from conducting an investigation, in aid of
legislation, on the financial transactions of the Arroyo administration, on the
ground of violation of the equal protection clause. Unless, of course, the
House or the Senate attempts to do the impossible ― conduct an investigation on the financial transactions
of “earlier past administrations” since
the Presidency of General Emilio Aguinaldo. Indeed, under the majority opinion,
neither the House nor the Senate can conduct any investigation on any
administration, past or present, if “earlier past administrations” are not included
in the legislative investigation.
In short, the majority opinion’s requirements
that EO 1 should also include “earlier past administrations,” with the Truth Commission empowered “to investigate
all past administrations,” to comply with the equal protection clause, is a
requirement that is not only illogical and impossible to comply, it also allows
the impunity to commit graft and corruption and other crimes under our penal
laws. The majority opinion completely ignores the constitutional principle that
public office is a public trust and that public officials are at all times
accountable to the people.
A
Final Word
The incumbent President was overwhelmingly
elected by the Filipino people in the 10 May 2010 elections based on his
announced program of eliminating graft and corruption in government. As the
Solicitor General explains it, the incumbent President has pledged to the
electorate that the elimination of graft and corruption will start with the
investigation and prosecution of those who may have committed large-scale
corruption in the previous administration.79 During
the election campaign, the incumbent President identified graft and corruption
as the major cause of poverty in the country as depicted in his campaign theme
“kung walang corrupt, walang mahirap.” It was largely on this campaign pledge to eliminate graft and
corruption in government that the electorate overwhelmingly voted for the
incumbent President. The Filipino people
do not want to remain forever at the bottom third of 178 countries ranked in
terms of governments free from the scourge of corruption.80
Neither the Constitution nor any existing
law prevents the incumbent
President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a reiteration of the basic
State policy, enshrined in Section 27, Article II of the Constitution, that:
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and
corruption. (Emphasis supplied)
The incumbent President’s campaign pledge
also reiterates the constitutional principle that “[p]ublic office is a public
trust”81
and that “[p]ublic officers and employees must at
all times be accountable to the
people.”82
This Court, in striking down EO 1 creating
the Truth Commission, overrules the manifest will of the Filipino people to
start the difficult task of putting an end to graft and corruption in
government, denies the President his basic constitutional power to determine
the facts in his faithful execution of the law, and suppresses whatever truth
may come out in the purely fact-finding investigation of the Truth Commission.
This Court, in invoking the equal protection
clause to strike down a purely fact-finding investigation, grants immunity to those
who violate anti-corruption laws and other penal laws, renders meaningless the
constitutional principle that public office is a public trust, and makes public
officials unaccountable to the people at any time.
Ironically, this Court, and even subordinates
of the President in the Executive branch, routinely create all year round
fact-finding bodies to investigate all kinds of
complaints against officials and employees in the Judiciary or the Executive
branch, as the case may be. The previous President created through executive
issuances three purely fact-finding commissions similar to the Truth
Commission. Yet the incumbent President, the only official mandated by the
Constitution to execute faithfully the law, is now denied by this Court the
power to create the purely fact-finding Truth Commission.
History will record the ruling today of the
Court’s majority as a severe case of judicial overreach that made the incumbent
President a diminished Executive in an affront to a co-equal branch of government,
crippled our already challenged justice system, and crushed the hopes of the
long suffering Filipino people for an end to graft and corruption in
government.
Accordingly, I vote to DISMISS the
petitions.
ANTONIO T.
CARPIO
Associate Justice