G.R. No. 192935 (LOUIS “BAROK” C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010)

G.R. No. 193036 (REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG and REP. ORLANDO B. FUA, SR. vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD)

Promulgated:

December 7, 2010

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CONCURRING OPINION

Leonardo-De Castro, J.:

I concur in the result of the ponencia of Justice Jose Catral Mendoza and join the separate opinions of my colleagues, Chief Justice Renato C. Corona, Justice Arturo D. Brion and Justice Jose Portugal Perez. I vote to declare Executive Order No. 1 (EO No. 1) unconstitutional, as a well-intentioned, but ill-devised, presidential issuance that transgresses the boundaries of executive power and responsibility set by the Constitution and our laws.

While I agree with the majority consensus that equal protection is an issue that must be resolved in these consolidated petitions, the weightier legal obstacles to the creation of the Philippine Truth Commission (the Commission) by executive order deserve greater attention in this discussion.

If the Commission created by EO No. 1 were a living person, it would be suffering from the most acute identity crisis. Is it an independent body? Is it a mere ad hoc fact-finding body under the control of the President? And in either case, what legal repercussion does its creation have on our constitutionally and statutorily developed system for investigating and prosecuting graft and corruption cases?

Indeed, from the answers to these questions, it becomes evident that those who have designed this constitutional anomaly designated as a “truth commission” have painted themselves into a legal corner with no escape.

If the Commission is an office independent of the President, then its creation by executive fiat is unconstitutional.

The concept of a “truth commission” in other jurisdictions has a primordial characteristic – independence. As a body created to investigate and report on the “truth” of historical events (ordinarily involving State violations of human rights en masse) in a country in transition from an authoritarian regime to a democratic one or from a conflict situation to one of peace, the freedom of the members of the truth commission from any form of influence is paramount to ensure the credibility of any findings it may make.

Thus, “truth commissions” have been described in this wise:

Truth commissions are non-judicial, independent panels of inquiry typically set up to establish the facts and context of serious violations of human rights or of international humanitarian law in a country’s past. Commissions’ members are usually empowered to conduct research, support victims, and propose policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms. Most commissions focus on victims’ needs as a path toward reconciliation and reducing conflict about what occurred in the past.[1] (Emphases supplied.)

Notably, the Office of the United Nations High Commissioner for Human Rights likewise lists operational independence as one of the core principles in the establishment of a truth commission:

The legitimacy and public confidence that are essential for a successful truth commission process depend on the commission’s ability to carry out its work without political interference. Once established, the commission should operate free of direct influence or control by the Government, including in its research and investigations, budgetary decision-making, and in its report and recommendations. Where financial oversight is needed, operational independence should be preserved. Political authorities should give clear signals that the commission will be operating independently.[2] (Emphases supplied.)

With due respect, I disagree with Justice Antonio T. Carpio’s opinion that the naming of the body created by EO No. 1 as the “Philippine Truth Commission” was a mere attempt to be novel, to depart from the tired and repetitious scheme of naming a commission after its appointed head/leader or of calling it a “fact-finding” body. Obviously, the title given to the Commission is meant to convey the message that it is independent of the Office of the President.

Those who dissent from the majority position gloss over the fact that EO No. 1 itself expressly states that the Commission’s members shall “act as an independent collegial body.”[3] During oral arguments, the Solicitor General confirmed that what EO No. 1 intended is for the Commission to be an independent body over which the President has no power of control.[4] The Solicitor General further claimed that one of the functions of the Commission is “truth-telling.” Verily, the creation of the Philippine Truth Commission and its naming as such were done as a deliberate reference to the tradition of independent truth commissions as they are conceived in international law, albeit adapted to a particular factual situation in this jurisdiction.

If this Philippine Truth Commission is an office independent of the President and not subject to the latter’s control and supervision, then the creation of the Commission must be done by legislative action and not by executive order. It is undisputed that under our constitutional framework only Congress has the power to create public offices and grant to them such functions and powers as may be necessary to fulfill their purpose. Even in the international sphere, the creation of the more familiar truth commissions has been done by an act of legislature.[5]

Neither can the creation of the Commission be justified as an exercise of the delegated legislative authority of the President to reorganize his office and the executive department under Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987. The acts of reorganization authorized under said provision are limited to the following:

SEC. 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common 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. (Emphases supplied.)

There is nothing in EO No. 1 that indicates that the Commission is a part of the executive department or of the Office of the President Proper. Indeed, it is Justice Carpio who suggests that the President may appoint the commissioners of the Philippine Truth Commission as presidential special assistants or advisers in order that the Commission be subsumed in the Office of the President Proper and to clearly place EO No. 1 within the ambit of Section 31. To my mind, the fact that the commissioners are proposed to be appointed as presidential advisers is an indication that the Philippine Truth Commission was initially planned to be independent of the President and the subsequent appointment of the commissioners as presidential advisers will be merely curative of the patent defect in the creation of the Commission by an Executive Order, as an independent body.

I agree with Justice Brion that what EO No. 1 sought to accomplish was not a mere reorganization under the delegated legislative authority of the President. The creation of the Philippine Truth Commission did not involve any restructuring of the Office of the President Proper nor the transfer of any function or office from the Office of the President to the various executive departments and vice-versa. The Commission is an entirely new specie of public office which, as discussed in the concurring opinions, is not exercising inherently executive powers or functions but infringing on functions reserved by the Constitution and our laws to other offices.

If the Commission is under the control and supervision of the President, and not an independent body, the danger that the Commission may be used for partisan political ends is real and not imagined.

For the sake of argument, let us accept for the moment the propositions of our dissenting colleagues that:

(a) The Commission is not a separate public office independent of the President;

(b) The Commission is an executive body (or a part of the Office of the President Proper) that may be created by the President through an executive order under Section 31; and

(c) The Commission is merely an ad hoc fact-finding body intended to apprise the President of facts that will aid him in the fulfillment of his duty to ensure the faithful execution of the laws.

If the foregoing statements are true, then what EO No. 1 created is a body under the control and supervision of the President. In fact, if the commissioners are to be considered special advisers to the President, the Commission would be a body that serves at the pleasure of the President. Proponents who support the creation of the Commission in the manner provided for under EO No. 1 should drop all arguments regarding the purported independence and objectivity of the proceedings before it.

Indeed, EO No. 1 itself is replete with provisions that indicate that the existence and operations of the Commission will be dependent on the Office of the President. Its budget shall be provided by the Office of the President[6] and therefore it has no fiscal autonomy. The reports of the Commission shall be published upon the directive of the President.[7] Further, if we follow the legal premises of our dissenting colleagues to their logical conclusion, then the Commission as a body created by executive order may likewise be abolished (if it is part of the Presidential Special Assistants/Advisers System of the Office of the President Proper) or restructured by executive order. EO No. 1 may be amended, modified, and repealed all by executive order. More importantly, if the Commission is subject to the power of control of the President, he may reverse, revise or modify the actions of the Commission or even substitute his own decision for that of the Commission.

Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically “neutral” so as to assure a completely impartial conduct of its purported fact-finding mandate. I further concur with Chief Justice Corona that attempts to “sugar coat” the Philippine Truth Commission’s functions as “harmless” deserve no credence.

The purported functions to be served by the Commission, as the concurring opinions vividly illustrate, will subvert the functions of the Ombudsman and the constitutional and statutory developed criminal justice system.

First, it is apparent on the face of EO No. 1 that in general “it is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption [of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people], involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration.”[8] I agree with the Chief Justice’s proposition that there is no law authorizing the President to create a body to investigate persons outside the executive department in relation to graft and corruption cases, concurrently with the Office of the Ombudsman which has such express legal authority. Indeed, even in jurisprudence, the instances when the power of the President to investigate and create ad hoc committees for that purpose were upheld have been usually related to his power of control and discipline over his subordinates or his power of supervision over local government units.

In Ganzon v. Kayanan,[9] a case involving the investigation of a mayor, we held that the power of the President to remove any official in the government service under the Revised Administrative Code and his constitutional power of supervision over local governments were the bases for the power of the President to order an investigation of any action or the conduct of any person in the government service, and to designate the official committee, or person by whom such investigation shall be conducted.

In Larin v. Executive Secretary,[10] where the petitioner subject of the investigation was an Assistant Commissioner in the Bureau of Internal Revenue, we held that:

Being a presidential appointee, he comes under the direct disciplining authority of the President. This is in line with the well settled principle that the "power to remove is inherent in the power to appoint" conferred to the President by Section 16, Article VII of the Constitution. Thus, it is ineluctably clear that Memorandum Order No. 164, which created a committee to investigate the administrative charge against petitioner, was issued pursuant to the power of removal of the President. x x x.[11] (Emphases supplied.)

In a similar vein, it was ruled in Joson v. Executive Secretary,[12] that:

The power of the President over administrative disciplinary cases against elective local officials is derived from his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions."

The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.[13] (Emphases ours.)

Still on the same point, Department of Health v. Camposano[14] likewise discussed that:

The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry.[15] (Emphases supplied.)

Second, the functions of the Commission, although ostensibly only recommendatory, are basically prosecutorial in nature and not confined to objective fact finding. EO No. 1 empowers the Commission to, among others:

SECTION 2. x x x.

x x x x

(b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers;

x x x x

(g) Turn over from time to time, for expeditious prosecution to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws. (Emphasis ours.)

I agree with Justice Perez that the aforementioned functions run counter to the very purpose for the creation of the Office of the Ombudsman, to constitutionalize a politically independent office responsible for public accountability as a response to the negative experience with presidential commissions. His discussion on the constitutional history of the Office of the Ombudsman and the jurisprudential bases for its primary jurisdiction over cases cognizable by the Sandiganbayan (i.e., specific offenses, including graft and corruption, committed by public officials as provided for in Presidential Decree No. 1606, as amended) is apropos indeed.

I likewise find compelling Justice Brion’s presentation regarding the Commission’s “truth-telling” function’s potential implications on due process rights and the right to a fair trial and the likelihood of duplication of, or interference with, the investigatory or adjudicatory functions of the Ombudsman and the courts. I need not repeat Justice Brion’s comprehensive and lucid discussion here. However, I do find it fitting to echo here former Chief Justice Claudio Teehankee, Sr.’s dissenting opinion in Evangelista v. Jarencio,[16] the oft-cited authority for the President’s power to investigate, where he stated that:

The thrust of all this is that the State with its overwhelming and vast powers and resources can and must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the constitutional guarantees of the individual's right to privacy, silence and due process and against self-incrimination and unreasonable search and seizure. x x x.[17] (Emphases ours.)

The constitutional mandate for public accountability and the present administration’s noble purpose to curb graft and corruption simply cannot justify trivializing individual rights equally protected under the Constitution. This Court cannot place its stamp of approval on executive action that is constitutionally abhorrent even if for a laudable objective, and even if done by a President who has the support of popular opinion on his side. For the decisions of the Court to have value as precedent, we cannot decide cases on the basis of personalities nor on something as fickle and fleeting as public sentiment. It is worth repeating that our duty as a Court is to uphold the rule of law and not the rule of men.

Concluding Statement

Section 1, Article VIII of the 1987 Constitution provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Undeniably, from the foregoing, judicial review is not only a power but a constitutional duty of the courts. The framers of our Constitution found an imperative need to provide for an expanded scope of review in favor of the “non-political” courts as a vital check against possible abuses by the political branches of government. For this reason, I cannot subscribe to Justice Maria Lourdes Sereno’s view that the Court’s exercise of its review power in this instance is tantamount to supplanting the will of the electorate. A philosophical view that the exercise of such power by the Judiciary may from a certain perspective be “undemocratic” is not legal authority for this Court to abdicate its role and duty under the Constitution. It also ignores the fact that it is the people by the ratification of the Constitution who has given this power and duty of review to the Judiciary.

The insinuations that the members of the majority are impelled by improper motives, being countermajoritarian and allowing graft and corruption to proliferate with impunity are utterly baseless. Not only are these sort of ad hominem attacks and populist appeals to emotion fallacious, they are essentially non-legal arguments that have no place in a debate regarding constitutionality. At the end of the day, Justices of this Court must vote according to their conscience and their honest belief of what the law is in a particular case. That is what gives us courage to stand by our actions even in the face of the harshest criticism. Those who read our opinions, if they are truly discerning, will be able to determine if we voted on points of law and if any one of us was merely pandering to the appointing power.

Needless to say, this Court will fully support the present administration’s initiatives on transparency and accountability if implemented within the bounds of the Constitution and the laws that the President professes he wishes to faithfully execute. Unfortunately, in this instance, EO No. 1 fails this ultimate legal litmus test.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

[1] From the website of the International Center for Transitional Justice, http://ictj.org/en/tj/138.html, accessed on December 6, 2010.

[2] Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the United Nations High Commissioner for Human Rights, United Nations, New York and Geneva (2006) at p. 6.

[4] TSN, September 28, 2010, pp. 209-215, cited in the Separate Opinion of Justice Brion.

[5] To cite a few examples: The South African “Truth and Reconciliation Commission” was established under the Promotion of National Unity and Reconciliation Act 34 of 1995 passed by that country’s parliament. The “National Unity and Reconciliation Commission” in Rwanda was officially set up in 1999 by an act of the Transitional National Assembly.

[6] Section 11 of EO No. 1.

[7] Section 15 of EO No. 1.

[8] Section 2, EO No. 1 with phrase in brackets supplied from Section 1.