G. R. No.
192935 - Louis “Barok” C. Biraogo, Petitioner versus The Philippine Truth
Commission of 2010, Respondent.
G.R. No.
193036 - Representative Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep.
Simeon A. Datumanong and Rep. Orlando B. Fua, Sr., Petitioners versus Executive
Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management
Secretary Florencio B. Abad, Respondents.
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Promulgated: December
7, 2010 |
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NACHURA, J.:
Before us are two (2) consolidated
petitions:
1. G.R.
No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo
(Biraogo), in his capacity as a citizen and taxpayer, assailing Executive Order
(E.O.) No. 1, entitled “Creating the Philippine Truth Commission of 2010” for
violating Section 1, Article VI of the 1987 Constitution; and
2. G.R.
No. 193036 is a petition for certiorari
and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr., in their capacity as members of
the House of Representatives, similarly bewailing the unconstitutionality of
E.O. No. 1.
First, the all too familiar facts
leading to this cause celebre.
On May 10, 2010, Benigno Simeon C.
Aquino III was elected President of the
Barely a month after his assumption
to office, and intended as fulfillment of his campaign promise, President
Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE
TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society;
WHEREAS, corruption in the
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON
AQUINO III, President of the Republic of the
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendation to the President, Congress and the Ombudsman. In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
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 corporation, to produce documents, books, records and other papers;
c) Upon proper request and representation, obtain information and documents from the Senate and the House of Representatives records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource person, professional and other personnel determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – The Commission shall be assisted by such assistants and personnel as may be necessary to enable it to perform its functions, and shall formulate and establish its organization structure and staffing pattern composed of such administrative and technical personnel as it may deem necessary to efficiently and effectively carry out its functions and duties prescribed herein, subject to the approval of the Department of Budget and Management. The officials of the Commission shall in particular include, but not limited to, the following:
a. General Counsel
b. Deputy General Counsel
c. Special Counsel
d. Clerk of the Commission
SECTION 4. Detail of Employees. – The President, upon recommendation of the Commission, shall detail such public officers or personnel from other department or agencies which may be required by the Commission. The detailed officers and personnel may be paid honoraria and/or allowances as may be authorized by law, subject to pertinent accounting and auditing rules and procedures.
SECTION 5. Engagement of Experts. – The Truth Commission shall have the power to engage the services of experts as consultants or advisers as it may deem necessary to accomplish its mission.
SECTION 6. Conduct of Proceedings. – The proceedings of the Commission shall be in accordance with the rules promulgated by the Commission. Hearings or proceedings of the Commission shall be open to the public. However, the Commission, motu propio, or upon the request of the person testifying, hold an executive or closed-door hearing where matters of national security or public safety are involved or when the personal safety of the witness warrants the holding of such executive or closed-door hearing. The Commission shall provide the rules for such hearing.
SECTION 7. Right to Counsel of Witnesses/Resources Persons. – Any person called to testify before the Commission shall have the right to counsel at any stage of the proceedings.
SECTION 8. Protection of Witnesses/Resource Persons. – The Commission shall always seek to assure the safety of the persons called to testify and, if necessary make arrangements to secure the assistance and cooperation of the Philippine National Police and other appropriate government agencies.
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.
SECTION 10. Duty to Extend Assistance to the Commission. – The departments, bureaus, offices, agencies or instrumentalities of the Government, including government-owned and controlled corporations, are hereby directed to extend such assistance and cooperation as the Commission may need in the exercise of its powers, execution of its functions and discharge of its duties and responsibilities with the end in vies of accomplishing its mandate. Refusal to extend such assistance or cooperation for no valid or justifiable reason or adequate cause shall constitute a ground for disciplinary action against the refusing official or personnel.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – The Commission may avail itself of such office space which may be available in government buildings accessible to the public space after coordination with the department or agencies in control of said building or, if not available, lease such space as it may require from private owners.
SECTION 13. Furniture/Equipment. – The Commission shall also be entitled to use such equipment or furniture from the Office of the President which are available. In the absence thereof, it may request for the purchase of such furniture or equipment by the Office of the President.
SECTION. 14. Term of the Commission. – The Commission shall accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – On or before December 31, 2012, the Commission shall render a comprehensive final report which shall be published upon the directive of the president. Prior thereto, also upon directive of the President, the Commission may publish such special interim reports it may issue from time to time.
SECTION 16. Transfer of Records and Facilities of the Commission. – Upon the completion of its work, the records of the Commission as well as its equipment, furniture and other properties it may have acquired shall be returned to the Office of the President.
SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. – If any provision of this Order is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.
Section 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Without delay, petitioners Biraogo
and Congressmen Lagman,
In
compliance with our Resolution, the Office of the Solicitor General (OSG) filed
its Consolidated Comment to the petitions. Motu
proprio, the Court heard oral arguments on September 7 and 28, 2010, where
we required the parties, thereafter, to file their respective memoranda.
In
his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1
violates Section 1, Article VI of the 1987 Constitution because it creates a
public office which only Congress is empowered to do. Additionally,
“considering certain admissions made by the OSG during the oral arguments,” the
petitioner questions the alleged intrusion of E.O. No. 1 into the independence
of the Office of the Ombudsman mandated in, and protected under, Section 5,
Article XI of the 1987 Constitution.
Holding
parallel views on the invalidity of the E.O., petitioner Members of the House
of Representatives raise the following issues:
I.
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF THE CONGRESS (1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2) TO APPROPRIATE PUBLIC FUNDS.
II.
EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987 CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH COMMISSION TO OFFICIALS AND EMPLOYEES OF THE “PREVIOUS ADMINISTRATION” (THE ADMINISTRATION OF OFRMER PRESIDENT GLORIA MACAPAGAL-ARROYO).
III.
EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS OF THE OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE “OMBUDSMAN ACT OF 1989.”
Expectedly,
in its Memorandum, the OSG traverses the contention of petitioners and upholds
the constitutionality of E.O. No. 1 on the strength of the following arguments:
I.
PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH THE ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING TO ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.
II.
EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO. 1 DOES NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE AND TO APPROPRIATE FUNDS FOR ITS OPERATIONS.
III.
THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR NATION-BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND CONSEQUENCES OF CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS FOR THEIR REDRESS AND FUTURE PREVENTION. ALTHOUGH ITS INVESTIGATION MAY CONTRIBUTE TO SUBSEQUENT PROSECUTORIAL EFFORTS, THE COMMISSION WILL NOT ENCROACH BUT COMPLEMENT THE POWERS OF THE OMBUDSMAN AND THE DOJ IN INVESTIGATING CORRUPTION.
IV.
EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE AND LAUDABLE PURPOSES.
In
resolving these issues, the ponencia, penned
by the learned Justice Jose Catral Mendoza, concludes that:
1.
Petitioners have legal standing to file the instant petitions; petitioner
Biraogo only because of the transcendental importance of the issues involved,
while petitioner Members of the House of Representatives have standing to
question the validity of any official action which allegedly infringes on their
prerogatives as legislators;
2.
The creation of the Truth Commission by E. O. No. 1 is not a valid
exercise of the President’s power to reorganize under the Administrative Code
of 1987;
3.
However, the President’s power to create the herein assailed Truth
Commission is justified under Section 17,[1]
Article VII of the Constitution, albeit what may be created is merely an ad hoc Commission;
4. The Truth Commission does not
supplant the Ombudsman or the Department of Justice (DOJ) nor erode their
respective powers; and
5. Nonetheless, E.O. No. 1 is
unconstitutional because it transgresses the equal protection clause enshrined
in Section 1, Article III of the Constitution.
I agree with the ponencia that, given our liberal approach in David v. Arroyo[2]
and subsequent cases, petitioners have locus
standi to raise the question of constitutionality of the Truth Commission’s
creation. I also concur with Justice Mendoza’s conclusion that the Truth
Commission will not supplant the Office of the Ombudsman or the DOJ, nor
impermissibly encroach upon the latter’s exercise of constitutional and
statutory powers.
I agree with the ponencia that the President of the
However, I find myself unable to concur
with Justice Mendoza’s considered opinion that E.O. No. 1 breaches the
constitutional guarantee of equal protection of the laws.
Let me elucidate.
The Truth Commission is a Public Office
The
first of two core questions that confront the Court in this controversy is
whether the President of the
A
public office is defined as the right, authority, or duty, created and
conferred by law, by which for a given period, either fixed by law or enduring
at the pleasure of the creating power, an individual is invested with some sovereign power of government to be
exercised by him for the benefit of the public.[3] Public offices are created either by the
Constitution, by valid statutory enactments, or by authority of law. A person who holds a public office is a public
officer.
Given
the powers conferred upon it, as spelled out in E.O. No. 1, there can be no
doubt that the Truth Commission is a public office, and the Chairman and the
Commissioners appointed thereto, public officers.
As
will be discussed hereunder, it is my respectful submission that the President
of the
E. O. No. 1 and the Executive Power
Central to the resolution of these
consolidated petitions is an understanding of the “lines of demarcation” of the
powers of government, i.e., the
doctrine of separation of powers. The
landmark case of Government of the
Philippine Islands v. Springer[4]
has mapped out this legal doctrine:
The Government of the
No department of the government of the Philippine Islands may legally exercise any of the powers conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no such explicit prohibitions. But it is fairly implied by the division of the government into three departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly been announced by this court that each of the branches of the Government is in the main independent of the others. The doctrine is too firmly imbedded in Philippine institutions to be debatable.
It is beyond the power of any branch of the Government of the Philippine islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An Act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this court and other courts is derived from the constitutional provisions.
x x x
The Organic Act vests “the supreme
executive power” in the Governor-General of the Philippine Islands. In addition
to specified functions, he is given “general supervisions and control of all
the departments and bureaus of the government of the Philippine Islands as far
is not inconsistent with the provisions of this Act.” He is also made “responsible
for the faithful execution of the laws of the Philippine islands and of the
These “lines of demarcation” have
been consistently recognized and upheld in all subsequent Organic Acts applied
to the
Section 1, Article VII of the 1987
Constitution[5] vests
executive power in the President of the
Executive
power is briefly described as the power to enforce and administer the laws, but
it is actually more than this. In the
exercise of this power, the President of the
In National Electrification Administration v. Court of Appeals,[7] this Court said that, as the
administrative head of the government, the President is vested with the power
to execute, administer and carry out laws into practical operation. Impressed upon us, then, is the fact that
executive power is the power of carrying out the laws into practical operation
and enforcing their due observance.
Relevant
to this disquisition are two specific powers that flow from this “plenitude of
authority.” Both are found in Section
17, Article VII of the Constitution.[8] They are commonly referred to as the power of control and the take care clause.
Section
17 is a self-executing provision. The
President’s power of control is derived directly from the Constitution and not
from any implementing legislation.[9] On the other hand, the power to take care
that the laws be faithfully executed makes the President a dominant figure in
the administration of the government.
The law he is supposed to enforce includes the Constitution itself,
statutes, judicial decisions, administrative rules and regulations and
municipal ordinances, as well as the treaties entered into by our government.[10] At almost every cusp of executive power is
the President’s power of control and his constitutional obligation to ensure
the faithful execution of the laws.
Demonstrating the mirabile dictu of presidential power and
obligation, we declared in Ople v. Torres:[11]
As head of the Executive Department,
the President is the Chief Executive. He represents the government as a whole
and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices.
This means that he has the authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of
its officials. Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative
power over bureaus and offices under his control to enable him to discharge
his duties effectively.
Mondano v. Silvosa,[12]
defines the power of control as “the power of an officer to alter, modify, or
set aside what a subordinate officer had done in the performance of his duties,
and to substitute the judgment of the former for that of the latter.” It includes the authority to order the doing
of an act by a subordinate, or to undo such act or to assume a power directly
vested in him by law.[13]
In this regard, Araneta v. Gatmaitan[14]
is instructive:
If under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban fishing by trawl, then the President of the Philippines may exercise the same power and authority because of the following: (a) The President shall have control of all the executive departments, bureaus or offices pursuant to Section 10(1), Article VII, of the Constitution; (b) Executive Orders may be issued by the President under Section 63 of the Revised Administrative Code :governing the general performance of duties by public employees or disposing of issues of general concern;” and (c) Under Section 74 of the Revised Administrative Code, “All executive functions of the Government of the Republic of the Philippines shall be directly under the Executive Department, subject to the supervision and control of the President of the Philippines in matters of general policy.”
Our ruling in City of Iligan v. Director of Lands[15] echoes the same principle in this wise:
Since it is the Director of Lands who has direct executive control among others in the lease, sale or any form of concession or disposition of the land of the public domain subject to the immediate control of the Secretary of Agriculture and Natural Resources, and considering that under the Constitution the President of the Philippines has control over all executive departments, bureaus and offices, etc., the President of the Philippines has therefore the same authority to dispose of the portions of the public domain as his subordinates, the Director of Lands, and his alter-ego the Secretary of Agriculture and Natural Resources.
From
these cited decisions, it is abundantly clear that the overarching framework in
the President’s power of control enables him to assume directly the powers of
any executive department, bureau or office.
Otherwise stated, whatever powers conferred by law upon subordinate
officials within his control are powers also vested in the President of the
When
this power of control is juxtaposed with the constitutional duty to ensure that
laws be faithfully executed, it is obvious that, for the effective exercise of
the take care clause, it may become
necessary for the President to create an office, agency or commission, and
charge it with the authority and the power that he has chosen to assume for
himself. It will not simply be an
exercise of the power of control, but also a measure intended to ensure that
laws are faithfully executed.
To
reiterate, the take care clause is the
constitutional mandate for the President to ensure that laws be faithfully
executed. Dean Vicente G. Sinco observed
that the President’s constitutional obligation of ensuring the faithful
execution of the laws “is a fundamental function of the executive head
[involving] a two-fold task, [i.e.,]
the enforcement of laws by him and the enforcement of laws by other officers
under his direction.” [16]
As
adverted to above, the laws that the President is mandated to execute include
the Constitution, statutes, judicial decisions, administrative rules and
regulations and municipal ordinances.
Among the constitutional provisions that the President is obliged to
enforce are the following General Principles and State Policies of the 1987
Philippine Constitution:
Section 4, Article II: The prime duty of government is to serve and protect the people x x x
Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
Section 9, Article II: The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
Section 13, Article II: The State values the dignity of every human person and guarantees full respect for human rights.
Section 27, Article II: The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
Section 28, Article II: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Closer to home, as head of the
biggest bureaucracy in the country, the President must also see to the faithful
execution of Section 1, Article XI of the Constitution, which reads: “Public office is a public trust. Public officers and employees must at all
times be accountable to the people; serve them with utmost responsibility,
integrity, loyalty and efficiency; act with patriotism and justice; and lead
modest lives.”
These are constitutional provisions
the enforcement of which is inextricably linked to the spirit and objective of
E.O. No. 1.
Although only
Section 1, Article XI, is cited in the Whereas
clauses of E. O. No. 1, the President is obliged to execute the other
constitutional principles as well.
Absent any law that provides a specific manner in which these
constitutional provisions are to be enforced, or prohibits any particular mode
of enforcement, the President could invoke the doctrine of necessary implication, i.e., that the express grant of
the power in Section 17, Article VII, for the President to faithfully execute
the laws, carries with it the grant of all other powers necessary, proper, or
incidental to the effective and efficient exercise of the expressly granted
power.[17] Thus, if a Truth Commission is deemed the
necessary vehicle for the faithful execution of the constitutional mandate on
public accountability, then the power to create the same would necessarily be
implied, and reasonably derived, from the basic power granted in the
Constitution. Accordingly, the take care clause, in harmony with the
President’s power of control, along with the pertinent provisions of the
Administrative Code of 1987, would justify the issuance of E. O. No. 1 and the
creation of the Truth Commission.
Further to
this discussion, it is cogent to examine the administrative framework of Executive
Power, as outlined in the Administrative Code.
Quite logically, the power of control
and the take care clause precede all others in the enumeration of the Powers of
the President. Section 1, Book III,
Title I simply restates the constitutional provision, to wit:
SECTION 1. Power of Control.—The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
Next in the enumeration is the
ordinance power of the President which defines executive orders, thus:
SEC. 2. Executive Orders. - Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
At the bottom of the list are the other powers (Chapter 7, Book III of the
Code) of the President, which include
the residual power, viz:
SEC. 19. Powers Under the Constitution.—The President shall exercise such other powers as are provided for in the Constitution.
SEC. 20. Residual Powers.—Unless Congress provides otherwise, the president shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.
In
addition, pursuant to the organizational structure of the Executive Department,[18]
one of the powers granted to the President is his continuing authority to
reorganize his Office:[19]
SEC. 31. Continuing Authority of the
President to Reorganize his Office. - The President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of
the following actions:
(1) Restructure the internal
organization of the Office of the President Proper, including the immediate Offices,
the Presidential Special Assistants/Advisers System and the Common staff
Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another;
(2) Transfer any function under the
Office of the President to any other Department or Agency as well as transfer
functions to the Office of the President from other Departments and Agencies;
and
(3) Transfer any agency under the
Office of the President to any other department or agency as well as transfer
agencies to the Office of the President from other departments or agencies.
Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The Executive Branch) that “[t]he Executive Branch shall have such Departments as are necessary for the functional distribution of the work of the President and for the performance of their functions.” Hence, the primary articulated policy in the Executive Branch is the organization and maintenance of the Departments to insure their capacity to plan and implement programs in accordance with established national policies.[20]
With
these Administrative Code provisions in mind, we note the triptych function of
the Truth Commission, namely: (1) gather facts; (2) investigate; and (3)
recommend, as set forth in Section 1 of E.O. No. 1:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall [1] primarily seek and find the truth on, and toward this end, [2] investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter [3] recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. (emphasis and numbering supplied)
It is plain to see that the Truth Commission’s fact-finding and investigation into “reports of large scale corruption by the previous administration” involve policy-making on issues of fundamental concern to the President, primarily, corruption and its linkage to the country’s social and economic development.
On this point, I differ from the ponencia, as it reads the President’s
power to reorganize in a different light, viz:
The question, therefore, before the Court is this: Does the creation of the Truth Commission fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates “reorganization” as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent by a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer is in the negative.
x x x
xxx [T]he creation of the Truth Commission is not justified by the president’s power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.
I am constrained to disagree because,
contrary to the ponencia’s holding,
the President’s power to reorganize is not limited by the enumeration in
Section 31 of the Administrative Code.
As previously discussed, the
President’s power of control, in conjunction with his constitutional obligation
to faithfully execute the laws, allows his direct assumption of the powers and
functions of executive departments, bureaus and offices.[21] To repeat, the overarching framework in the
President’s power of control enables him to assume directly the functions of an
executive department. On the macro level,
the President exercises his power of control by directly assuming all the functions of executive
departments, bureaus or offices. On the micro level, the President may directly
assume certain or specific, not all, functions of a
Department. In the milieu under which
the Truth Commission is supposed to operate, pursuant to E. O. No. 1, only the
investigatory function of the DOJ for certain crimes is directly assumed by the
President, then delegated to the Truth Commission. After all, it is axiomatic that
the grant of broad powers includes the grant of a lesser power; in this case,
to be exercised — and delegated —at the President’s option.
My conclusion that the transfer of
functions of a Department to the Office of the President falls within the President’s
power of reorganization is reinforced by jurisprudence.
In Larin v. Executive Secretary,[22] the Court sustained the President’s
power to reorganize under Section 20, Book III of E.O. 292, in relation to PD
No. 1416, as amended by PD No. 1772:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:
“Sec. 20. Residual Powers.—Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.
This provision speaks of such other
powers vested in the president under the law. What law then gives him the power
to reorganize? It is Presidential decree No. 1772 which amended Presidential
Decree no. 1416. These decrees expressly grant the President of the
Subsequently,
Buklod ng Kawaning EIIB v.
But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very sources of the power—that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), “the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the president.” For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” It takes place when there is an alteration of the existing structure of government or units therein, including the lines of control, authority and responsibility between them. xxx (emphasis supplied)
Then, and quite significantly, in Bagaoisan v. National Tobacco Administration,[24] this Court clarified the nature of the
grant to the President of the power to reorganize the administrative structure
of the Office of the President, thus:
In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon.
Ronaldo d.
“x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office of the President Proper by abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast, under Section 31(2) and (3) of EO 292, the President’s power to reorganize offices outside the Office of the President Proper but still within the Office of the President is limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies, and vice versa.”
The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative code of 1987), above-referred to, reads thusly:
Sec. 31. Continuing Authority
of the President to Reorganize his Office. - The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of
the following actions:
(1) Restructure the internal
organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common
staff Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another;
(2) Transfer any function under
the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under
the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or
agencies.
The first sentence of the law is an express grant to the President of a continuing authority to reorganize the administrative structure of the Office of the President. The succeeding numbered paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize but are to be viewed in consonance therewith. Section 31(1) of Executive order No. 292 specifically refers to the President’s power to restructure the internal organization of the Office of the President Proper, by abolishing, consolidating or merging units hereof or transferring functions from unit to another, while Section 31(2) and (3) concern executive offices outside the Office of the President Proper allowing the President to transfer any function under the Office of the President to any other Department or Agency and vice versa, and the transfer of any agency under the Office of the President to any other department or agency and vice versa. (Emphasis supplied)
Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as amended by P.D. No. 1772, the
abstraction of the Truth Commission, as fortified by the President’s power to
reorganize found in paragraph 2, Section 31 of the Administrative Code, is demonstrably
permitted.
That the Truth Commission is a
derivative of the reorganization of the Office of the President should brook no
dissent. The President is not precluded from transferring and re-aligning the fact-finding
functions of the different Departments regarding certain and specific issues,
because ultimately, the President’s authority to reorganize is derived from the
power-and-duty nexus fleshed out in the two powers granted to him in Section
17, Article VII of the Constitution.[25]
I
earnestly believe that, even with this Court’s expanded power of judicial
review, we still cannot refashion, and dictate on, the policy determination made by the President
concerning what function, of whichever Department, regarding specific issues,
he may choose to directly assume and take cognizance of. To do so would exceed the boundaries of
judicial authority and encroach on an executive prerogative. It would violate the principle of separation
of powers, the constitutional guarantee that no branch of government should
arrogate unto itself those functions and powers vested by the Constitution in
the other branches.[26]
In fine, it is my submission that the
Truth Commission is a public office validly created by the President of the
Philippines under authority of law, as an
adjunct of the Office of the President — to which the President has validly
delegated the fact-finding and investigatory powers [of the Department of
Justice] which he had chosen to personally assume. Further, it is the product of the President’s
exercise of the power to reorganize the Office of the President granted under
the Administrative Code.
This conclusion inevitably brings to
the threshold of our discussion the matter of the “independence” of the Truth
Commission, subject of an amusing exchange we had with the Solicitor General
during the oral argument, and to which the erudite Justice Arturo D. Brion
devoted several pages in his Separate Concurring Opinion. The word “independent,” as used in E. O. No.
1, cannot be understood to mean total separateness or full autonomy from the
Office of the President. Being a
creation of the President of the
The word “independent,” used to
describe the Commission, should be interpreted as an expression of the intent
of the President: that the Truth Commission shall be accorded the fullest
measure of freedom and objectivity in the pursuit of its mandate, unbound and
uninhibited in the performance of its duties by interference or undue pressure
coming from the President. Our exchange
during the oral argument ended on this note: that while the Truth Commission
is, technically, subject to the power of control of the President, the latter has
manifested his intention, as indicated in the Executive Order, not to exercise
the power over the acts of the Commission.
E. O. No. 1 and the Equal Protection Clause
Enshrined
in Section 1, Article III of the Philippine Constitution is the assurance that
all persons shall enjoy the equal protection of the laws, expressed as follows:
Section 1. No person shall be
deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal
protection of the laws. (emphasis supplied)
The
equality guaranteed under this clause is equality under the same conditions and
among persons similarly situated; it is equality among equals, not similarity
of treatment of persons who are classified based on substantial differences in
relation to the object to be accomplished.[27] When
things or persons are different in fact or circumstances, they may be treated
in law differently. On this score, this
Court has previously intoned that:
The equal protection of the laws clause of the
Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping
of things in speculation or practice because they agree with one another in
certain particulars. A law is not
invalid because of simple inequality.
The very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is
required of a valid classification should be based on substantial distinctions
which make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification
or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.[28]
Thus,
when a statute or executive action is challenged on the ground that it violates
the equal protection clause, the standards of judicial review are clear and
unequivocal:
It is an
established principle in constitutional
law that the guaranty of the equal protection of the laws is not violated by a
legislation based on a reasonable classification. Classification, to be valid, must: (1) rest
on substantial distinctions; (2) be germane to the purpose of the law; (3) not
be limited to existing conditions only; and (4) apply equally to all members of
the same class.[29]
Further, in a more recent decision, we also declared:
In
consonance thereto, we have held that “in our jurisdiction, the standard and analysis of equal
protection challenges in the main have followed the ‘rational basis’ test,
coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution.” x x x.
Under this
test, a legislative classification, to survive an equal protection challenge,
must be shown to rationally further a legitimate state interest. The
classifications must be reasonable and rest upon some ground of difference
having a fair and substantial relation to the object of the legislation. Since
every law has in its favor the presumption of constitutionality, the burden of
proof is on the one attacking the constitutionality of the law to prove beyond
reasonable doubt that the legislative classification is without rational basis.
The presumption of constitutionality can be overcome only by the most explicit
demonstration that a classification is a hostile and oppressive discrimination
against particular persons and classes, and that there is no conceivable basis
which might support it.[30]
The
“rational basis” test is one of three “levels of scrutiny” analyses developed
by courts in reviewing challenges of unconstitutionality against statutes and
executive action. Carl Cheng, in his dissertation, “Important Right and the Private Attorney General Doctrine,”[31] enlightens us, thus:
[I]n
the area of equal protection analysis, the judiciary has developed a ‘level of
scrutiny’ analysis for resolving the tensions inherent in judicial review. When
engaging in this analysis, a court subjects the legislative or executive action
to one of three levels of scrutiny, depending on the class of persons and the
rights affected by the action. The three levels are rational basis scrutiny, intermediate scrutiny, and strict scrutiny.
If a particular legislative or executive act does not survive the appropriate
level of scrutiny, the act is held to be unconstitutional. If it does survive,
it is deemed constitutional. The three tensions discussed above and, in turn,
the three judicial responses to each, run parallel to these three levels of
scrutiny. In response to each tension, the court applies a specific level of
scrutiny.
He goes
on to explain these “levels of scrutiny”, as follows:
The first level of scrutiny, rational
basis scrutiny, requires only that the purpose of the legislative or executive
act not be invidious or arbitrary, and that the act’s classification be
reasonably related to the purpose.
Rational basis scrutiny is applied to legislative or executive acts that
have the general nature of economic or social welfare legislation. While purporting to set limits, rational
basis scrutiny in practice results in complete judicial deference to the
legislature or executive. Thus, a
legislative or executive act which is subject to rational basis scrutiny is for
all practical purposes assured of being upheld as constitutional.
The second
level of scrutiny, intermediate scrutiny, requires that the purpose of the
legislative or executive act be an important governmental interest and that the
act’s classification be significantly related to the purpose. Intermediate scrutiny has been applied to
classifications based on gender and illegitimacy. The rationale for this higher level of
scrutiny is that gender and illegitimacy classifications historically have
resulted from invidious discrimination.
However, compared to strict scrutiny, intermediate scrutiny’s
presumption of invidious discrimination is more readily rebutted, since benign
motives are more likely to underlie classifications triggering intermediate
scrutiny.
The third
level of scrutiny is strict scrutiny.
Strict scrutiny requires that the legislative or executive act’s purpose
be a compelling state interest and that the act’s classification be narrowly
tailored to the purpose. Strict scrutiny
is triggered in two situations: (1) where the act infringes on a fundamental
right; and (2) where the act’s classification is based on race or national
origin. While strict scrutiny purports
to be only a very close judicial examination of legislative or executive acts,
for all practical purposes, an act subject to strict scrutiny is assured of
being held unconstitutional. (Citations
omitted.)
It is
noteworthy that, in a host of cases, this Court has recognized the
applicability of the foregoing tests.
Among them are City of Manila v.
Laguio, Jr.,[32] Central Bank Employees Association v. Bangko
Sentral ng Pilipinas,[33] and British American Tobacco v. Camacho, et al.,[34] in all
of which the Court applied the minimum level of scrutiny, or the rational basis test.
It is
important to remember that when this Court resolves an equal protection
challenge against a legislative or executive act, “[w]e do not inquire whether
the [challenged act] is wise or desirable xxx. Misguided laws may nevertheless
be constitutional. Our task is merely to determine whether there is ‘some rationality in the nature of
the class singled out.’”[35]
Laws
classify in order to achieve objectives, but the classification may not
perfectly achieve the objective.[36] Thus, in Michael
M. v. Supreme Court of Sonoma County,[37] the U.S.
Supreme Court said that the relevant inquiry is not whether the statute is
drawn as precisely as it might have been, but whether the line chosen [by the
legislature] is within constitutional limitations. The equal protection clause does not require
the legislature to enact a statute so broad that it may well be incapable of
enforcement.[38]
It is
equally significant to bear in mind that when a governmental act draws up a
classification, it actually creates two classes: one consists of the people in
the “statutory class” and the other consists precisely of those people
necessary to achieve the objective of the governmental action (the “objective
class”).[39] It could happen that –
The “statutory
class” may include “more” than is necessary in the classification to achieve
the objective. If so, the law is
“over-inclusive.” The classification may
also include “less” than is necessary to achieve the objective. If so, the statute is “under-inclusive.”
A curfew
law, requiring all persons under age eighteen to be off the streets between the
hours of midnight and 6 a.m., presumably has as its objective the prevention of
street crime by minors; this is “over-inclusive” since the class of criminal
minors (the objective class) is completely included in the class of people
under age eighteen (the statutory class), but many people under age eighteen
are not part of the class of criminal minors.
A city
ordinance that bans streetcar vendors in a heavily visited “tourist quarter” of
the city in order to alleviate sidewalk and street congestion is
“under-inclusive”. All streetcar vendors
(the statutory class) contribute toward sidewalk and street congestion, but the
class of people causing sidewalk and street congestion (the objective class)
surely includes many others as well.
It is
rare if not virtually impossible for a statutory class and an objective class
to coincide perfectly.[40]
And, as
the ponencia itself admits, “under-inclusion”
or “over-inclusion, per se, is not
enough reason to invalidate a law for violation of the equal protection clause,
precisely because perfection in classification is not required.[41]
Thus, in the determination of whether
the classification is invidious or arbitrary, its relation to the purpose must
be examined. Under the rational basis test, the presence of any
plausible legitimate objective for the classification, where the classification serves to accomplish
that objective to
any degree,
no matter how tiny, would validate the classification. To be invalidated on constitutional grounds,
the test requires that the classification must have one of the following
traits: (1) it has absolutely no conceivable legitimate purpose; or (2) it is
so unconnected to any conceivable objective, that it is absurd, utterly
arbitrary, whimsical, or even perverse.[42]
Given
the foregoing discussion on this constitutional guarantee of equal protection,
we now confront the question: Does the mandate of Executive Order No. 1, for
the Truth Commission to investigate “graft and corruption during the previous
administration,” violate the equal protection clause?
I answer
in the negative.
First,
because Executive Order No. 1 passes the rational
basis test.
To repeat,
the first level of scrutiny known as the rational
basis test, requires only that the purpose of the legislative or
executive act not be invidious or arbitrary, and that the act’s classification
be reasonably related to the purpose. The classification must be shown to
rationally further a legitimate state interest.[43] In its
recent equal protection jurisprudence, the Court has focused primarily upon (1)
the “rationality” of the government’s distinction, and (2) the “purpose” of
that distinction.
To the
point, we look at the definition of an executive order and the articulated
purpose of E.O. No. 1.
An
executive order is an act of the President providing for rules in
implementation or execution of constitutional or statutory powers.[44] From this definition, it can easily be
gleaned that E. O. No. 1 is intended to implement a number of constitutional
provisions, among others, Article XI, Section 1. In fact, E.O. No. 1 is
prefaced with the principle that “public office is a public trust” and “public
officers and employees, who are servants of the people, must at all time be
accountable to the latter, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead modest
lives.”
What
likewise comes to mind, albeit not articulated therein, is Article II, Section
27, of the 1987 Constitution, which declares that “[t]he State shall maintain
honesty and integrity in the public service and take positive and effective
measures against graft and corruption.” In addition, the immediately following
section provides: “[s]ubject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.”[45] There is also Article XI, Section 1, which
sets the standard of conduct of public officers, mandating that “[p]ublic
officers and employees must, at all
times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and lead
modest lives.” There is, therefore, no
gainsaying that the enforcement of these provisions, i.e., the fight against
corruption, is a compelling state interest.
Not only
does the Constitution oblige the President to ensure that all laws be
faithfully executed,[46] but he
has also taken an oath to preserve and defend the Constitution.[47] In this regard, the President’s current
approach to restore public accountability in government service may be said to
involve a process, starting with the creation of the Truth Commission.
It is
also no secret that various commissions had been established by previous
Presidents, each specifically tasked to investigate certain reports and issues in
furtherance of state interest. Among the latest of such commissions is the
Zeñarosa Commission, empowered to investigate the existence of private armies,
as well as the Maguindanao Massacre.[48]
Under E.O. No. 1, the President
initially classified the investigation of reports of graft and corruption
during the previous administration because of his avowed purpose to maintain
the public trust that is characteristic of a public office. The first recital
(paragraph) of E.O. No. 1 does not depart therefrom. The succeeding recitals
(paragraphs) enumerate the causality of maintaining public office as a public
trust with corruption as “among the most despicable acts of defiance of this
principle and notorious violation of this mandate.” Moreover, the President views
corruption as “an evil and scourge which seriously affects the political,
economic, and social life of a nation.” Thus, the incumbent President has
determined that the first phase of his fight against graft and corruption is to
have reports thereof during the previous administration investigated. There is
then a palpable relation between the supposed classification and the
articulated purpose of the challenged executive order.
The
initial categorization of the issues and reports which are to be the subject of
the Truth Commission’s investigation is the President’s call. Pursuing a system of priorities does not
translate to suspect classification resulting in violation of the equal
protection guarantee. In his assignment
of priorities to address various
government concerns, the
President, as the
Chief
Executive, may initially limit the focus of his inquiry and investigate issues
and reports one at a time. As such,
there is actually no differential treatment that can be equated to an invalid classification.
E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because
there is a claimed inequality on its face or in the manner it is to be
applied. On its face, there is actually
no class created. The ponencia harps on three provisions in
the executive order directing the conduct of an investigation into cases of
large scale graft and corruption “during the previous administration.” On that basis, the ponencia concludes that there is invidious discrimination, because
the executive order is focused only on the immediate past administration.
I disagree. While the phrase “previous administration”
alludes to persons, which may, indeed, be a class within the equal protection
paradigm, it is important to note that the entire phrase is “during the
previous administration,” which connotes a time frame that limits the scope of
the Commission’s inquiry. The phrase
does not really create a separate class; it merely lays down the pertinent
period of inquiry. The limited period of
inquiry, ostensibly (but only initially) excluding administrations prior to the
immediate past administration, is not, per
se, an intentional and invidious discrimination anathema to a valid
classification. Even granting that the
phrase creates a class, E.O. No. 1 has not, as yet, been given any room for
application, since barely a few days from its issuance, it was subjected to a
constitutional challenge. We cannot allow the furor generated by
this controversy over the creation of the Truth Commission to be an excuse to
apply the strict scrutiny test, there being no basis for a facial challenge,
nor for an “as-applied” challenge.
To
reiterate for emphasis, the determination of the perceived instances of graft
and corruption that ought to claim priority of investigation is addressed to
the executive, as it involves a policy decision. This determination must not to be overthrown
simply because there are other instances of graft and corruption which the
Truth Commission should also investigate.[49] In any
event, Section 17 of E.O. No. 1 responds to this objection, when it 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 so extended
accordingly by way of a supplemental Executive Order.
It may also be pointed out that E.O.
No. 1 does not confer a right nor deprive anyone of the exercise of his
right. There is no right conferred nor
liability imposed that would constitute a burden on fundamental rights so as to
justify the application of the strict
scrutiny test. A fact-finding investigation of certain acts of public
officers committed during a specific period hardly merits this Court’s
distraction from its regular functions.
If we must exercise the power of judicial review, then we should use the
minimum level of scrutiny, the rational
basis test.
On more
than one occasion, this Court denied equal protection challenges to statutes
without evidence of a clear and intentional discrimination.[50] The
pervasive theme in these rulings is a claim of discriminatory prosecution, not simply a claim of discriminatory
investigation. In People v. Piedra,[51] we
explained:
The
prosecution of one guilty person while others equally guilty are not
prosecuted, however, is not, by itself, a denial of the equal protection of the
laws. Where the official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of the statutory duty,
although a violation of the statute, is not without more a denial of the equal
protection of the laws. The unlawful administration by officers of a statute
fair on its face, resulting in its unequal application to those who are
entitled to be treated alike, is not a denial of equal protection unless there
is shown to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with respect to
a particular class or person, or it may only be shown by extrinsic evidence
showing a discriminatory design over another not to be inferred from the action
itself. But a discriminatory purpose is not presumed, there must be a
showing of "clear and intentional discrimination." Appellant has
failed to show that, in charging appellant in court, that there was a
"clear and intentional discrimination" on the part of the prosecuting
officials.
The discretion of who to prosecute depends on the prosecution's sound
assessment whether the evidence before it can justify a reasonable belief that
a person has committed an offense. The presumption is that the prosecuting
officers regularly performed their duties, and this presumption can be overcome
only by proof to the contrary, not by mere speculation. Indeed, appellant
has not presented any evidence to overcome this presumption. 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 x x x. Protection
of the law will be extended to all persons equally in the pursuit of their
lawful occupations, but no person has the right to demand protection of the law
in the commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to
some persons should be converted into a defense for others charged with crime,
the result would be that the trial of the district attorney for nonfeasance
would become an issue in the trial of many persons charged with heinous crimes
and the enforcement of law would suffer a complete breakdown. (emphasis
supplied.)
Evidently, the abstraction of the
President’s power to directly prosecute crimes, hand in hand with his duty to faithfully
execute the laws, carries with it the lesser power of investigation. To what extent, then, should this Court
exercise its review powers over an act of the President directing the conduct
of a fact-finding investigation that has not even commenced? These are clearly
issues of wisdom and policy. Beyond what
is presented before this Court, on its face, the rest remains within the realm
of speculation.
It bears stressing that by tradition,
any administration’s blueprint for governance covers a wide range of
priorities. Contrary to the ponencia’s conclusion, such a roadmap
for governance obviously entails a “step by step” process in the President’s
system of priorities.
Viewed
in this context, the fact that the “previous administration” was mentioned
thrice in E.O. No. 1, as pointed out by the ponencia,
is not “purposeful and intentional discrimination” which violates the equal
protection clause. Such a circumstance
does not demonstrate a “history of purposeful unequal treatment, or relegated to
such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process.”[52] It simply has to be taken in the light of
the President’s discretion to determine his government’s priorities.
It,
therefore, remains unclear how the equal protection clause is violated merely
because the E. O. does not specify that reports of large scale graft and
corruption in other prior administrations should likewise be investigated. Notably, the investigation of these reports
will not automatically lead to prosecution, as E.O No. 1 only authorizes the
investigation of certain reports with an
accompanying recommended action.
The following provisions of the
executive order are too clear to brook objection:
1. 5th Whereas Clause
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;
2. Section
1
SECTION 1. Creation
of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the “COMMISSION,” which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities
of the people, committed by the public officers and employees, their
co-principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the appropriate
action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
3. Section 2
SECTION 2. Powers
and Functions. – The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative
Code of 1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption referred to in Section
1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendation to
the President, Congress and the Ombudsman.
Second,
petitioners do not even attempt to overthrow the presumption of constitutionality of executive acts. They simply
hurl pastiche arguments hoping that at least one will stick.
In any
imputed violations of the equal protection clause, the standard of judicial
review is always prefaced by a presumption
of constitutionality:
As this
Court enters upon the task of passing on the validity of an act of a co-equal
and coordinate branch of the Government, it bears emphasis that deeply
ingrained in our jurisprudence is the time-honored principle that statute is
presumed to be valid. This presumption is rooted in the doctrine of separation
of powers which enjoins upon the three coordinate departments of the Government
a becoming courtesy for each other’s acts. Hence, to doubt is to sustain. The
theory is that before the act was done or the law was enacted, earnest studies
were made by Congress, or the President, or both, to insure that the
Constitution would not be breached. This Court, however, may declare a law, or
portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal
breach of the Constitution, not merely a doubtful or argumentative one. In
other words, before a statute or a portion thereof may be declared
unconstitutional, it must be shown that the statute or issuance violates the
Constitution clearly, palpably and plainly, and in such a manner as to leave no
doubt or hesitation in the mind of the Court.[53]
Clearly,
the acts of the President, in the exercise of his or her power, is
preliminarily presumed constitutional such that the party challenging the constitutionality
thereof (the executive act) on equal protection grounds bears the heavy burden
of showing that the official act is arbitrary and capricious.[54]
Indeed,
laws or executive orders, must comply with the basic requirements of the
Constitution, and as challenged herein, the equal protection of the laws.
Nonetheless, only in clear cases of invalid classification violative of the
equal protection clause will this Court strike down such laws or official
actions.
Third, petitioner Members of the House of Representatives are not
proper parties to challenge the constitutionality of E.O. No. 1 on equal
protection grounds. Petitioner Members of the House of Representatives cannot
take up the lance for the previous administration. Under all three levels of scrutiny
earlier discussed, they are precluded from raising the equal protection of the
laws challenge. The perceptive notation by my esteemed colleague, Justice
Carpio Morales, in her dissent, comes to life when she observes that petitioner
Members of the House of Representatives cannot vicariously invoke violation of
equal protection of the laws. Even assuming E.O. No. 1 does draw a
classification, much less an unreasonable one, petitioner Members of the House
of Representatives, as well as petitioner Biraogo, are not covered by the
supposed arbitrary and unreasonable classification.
If we
applied both intermediate and strict scrutiny, the nakedness of
petitioners’ arguments are revealed because they do not claim violation of any
of their fundamental rights, nor do they cry discrimination based on race,
gender and illegitimacy. Petitioners’ equal protection clause challenge
likewise dissolves when calibrated against the purpose of E.O. No. 1 and its
supposed classification of the administration which the Truth Commission is
tasked to investigate. Nowhere in the pleadings of petitioners and their claim
of violation of separation of powers and usurpation of legislative power by the
executive is it established how such violation or usurpation translates to violation
by E.O. No. 1 of the equal protection of the laws. Thus, no reason exists for
the majority to sustain the challenge of equal protection if none of the
petitioners belong to the class, claimed by the majority to be, discriminated
against.
Finally, I wish to address the proposition contained in Justice
Brion’s concurrence— the creation of the Truth Commission has a reasonable
objective, albeit accomplished through unreasonable means. According to him,
E.O. No. 1 is objectionable on due process grounds as well. He propounds that
the “truth-telling” function of the Truth Commission violates due process
because it primes the public to accept the findings of the Commission as actual
and gospel truth.
Considering all the
foregoing discussion, I must, regrettably, disagree with the suggestion.
Peculiar to our nation is a verbose Constitution. Herein enshrined are
motherhood statements— exhortations for public officers to follow. A quick
perusal of E.O. No. 1 bears out a similar intonation. Although the Solicitor
General may have made certain declarations, read as admissions by the other
Members of this Court, these cannot bind the Supreme Court in interpreting the
constitutional grant of executive power. The matter is simply a failure of
articulation which cannot be used to diminish the power of the executive. On
the whole, the erroneous declarations of the Solicitor General, preempting and
interpreting the President’s exercise of executive power beyond the articulated
purpose of E.O. No. 1, are not equivalent to the wrongful exercise by the
President of executive power.
Let me then close this
dissertation with Marcos v. Manglapus[55] which trailblazed and redefined the
extent of judicial review on the powers of the co-equal branches of government,
in particular, executive power:
Under the Constitution, judicial power includes the duty to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of the Government.” xxx
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court’s jurisdiction the determination which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President’s recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberation of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining “judicial power,” which specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check—not to supplant—the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.
It is for the foregoing
reasons that I vote to DISMISS the
petitions.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
[1] SEC. 17. The President shall have control of all the executive departments, bureau and offices. He shall ensure that the laws be faithfully executed.
[2] G.R.
No. 171396, May 3, 2006, 489 SCRA 160.
[3] Fernandez v. Sto. Tomas, 312 Phil. 235,
247 (1995).
[4] 50 Phil. 259 (1927).
[5] Section
1. The executive power shall be vested
in the President of the
[6] Cruz,
Philippine Political Law (2005 ed.), p. 182.
[7] G.R.
No. 143481, February 15, 2002.
[8] Sec.
17. The President shall have control of
all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully
executed.
[9] Cruz, Philippine Political Law (2005 ed.), p. 213.
[10]
[11] 354 Phil. 948 (1998).
[12] 97 Phil. 143 (1955).
[13] Cruz,
Philippine Political Law (2005 ed.), pp. 211-212.
[14] 101
Phil. 328 (1957).
[15] G.R.
No.L-30852, February 26, 1988, 158 SCRA 158.
[16] Sinco, Philippine Political Law (10th ed.), p. 260.
[17] See
Marcos v. Manglapus, G.R. No. 88211,
September 15, 1989, 178 SCRA 760.
[18] See Chapter 8, Title II, Book III of the Administrative Code.
[19] Section 31, Chapter 10, Title III, Book III of the Administrative Code.
[20] Section 2, Chapter 1, Book IV of the 1987 Administrative Code.
[21] Ople v. Torres, 354 Phil 949 (1998).
[22] G.R. No. 112745, October 16, 1997, 280 SCRA 713.
[23] G.R Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
[24] G.R. No. 152845, August 5, 2003, 408 SCRA 337.
[25] Sinco, Philippine Political Law, p. 261,
[26] See Tañada v. Angara, 338 Phil. 546 (1997), where the Court did not “review the wisdom of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused by the said international body.” The issue passed upon by the Court was limited to determining whether there had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in ratifying the WTO Agreement and its three annexes.
[27] British American Tobacco v. Camacho, G.R.
No. 163583, August 20, 2008, 562 SCRA 511.
[28] Victoriano v. Elizalde Rope Workers’
[29] Coconut Oil Refiners Association v. Torres, 503
Phil. 42, 53-54 (2005).
[30] British American Tobacco, v. Camacho, et al.,
supra note 27.
[31]
[32] G.R.
No. 118127, April 12, 2005, 455 SCRA 308.
[33] 487
Phil. 531 (2004).
[34] Supra
note 27.
[35] Prince Eric Fuller v. State of
[36] Calvin
Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
[37] 450
[38]
[39] Massey,
Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
[40]
[41]
[42]
[43]
[44] Section
2, Book III, Title I, Administrative Code.
[45] CONSTITUTION,
Section 28, Article II.
[46] CONSTITUTION,
Section 17, Article VII.
[47] CONSTITUTION,
Section, 5, Article VII.
[48] See
Annex “A” of the Respondent’s Memorandum.
[49] See: Miller v.
[50] See
People v. Dumlao, G.R. No. 168198,
March 2, 2009, 580 SCRA 409 citing
[51] G.R.
No. 121777, January 24, 2001, 350 SCRA 163.
[52] State
v. Hatori, 92
[53] Coconut Oil Refiners Association, Inc., et
al. v. Hon. Ruben Torres, et. al., 503 Phil. 42, 53-54 (2005).
[54] People v. Dela Piedra, 403 Phil. 31 (2001).
[55] G.R.
No. 88211, September 15, 1989, 177 SCRA 668, 695-697.