G.R. Nos. 192935 & 193036

EN BANC

G.R. No. 192935 – LOUIS “BAROK” C. BIRAOGO, petitioner, versus THE PHILIPPINE TRUTH COMMISSION OF 2010, respondent, and G.R. No. 193036 – REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR., petitioners, versus EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, respondents.

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SEPARATE OPINION

PEREZ, J.:

Executive Order No. 1 of President Benigno S. Aquino III Creating the Philippine Truth Commission of 2010 violates Article XI, Section 5 and Section 7 together with Section 13(1) and (7) and related provisions in Paragraphs (2), (3), (4), (5) and (6) of the same Section 7, all of the Philippine Constitution.

Particularized, the presidential issuance offends against the independence of the Office of the Ombudsman; defies the protection against legislation of the mandates of the Ombudsman; and defiles the bestowal of these mandates by their reappointment to the lesser body. The presidential creation, if unchecked, would, under the layer of good intentions, sully the integrity of the organic act which, for law to rule, can be touched by no one except the sovereign people and only by the way and manner they have ordained. This is a democratic original. The sovereign people can, of course, choose to cut the essential ties, scatter the existing entirety and slay the standing system. That did not happen. The sovereign elected to stay put; to stay in the present ordinance. Everyone must honor the election. And there can be no permissible disregard, even in part, of the free and deliberate choice.

The proposition is truly significant in this study of the questioned executive order. The country has had a historic revolution that gave the people the chance to right the wrong that shoved the nation on the verge. A new charter was written. But the topic of Executive Order No. 1, accountability of public officers, was rewritten and as the same constitutional heading. The injunction that public office is a public trust, including its meaning and import, was copied from the otherwise discarded document. And having adopted the objective of the old, the new law assumed likewise the means for the end which are the anti-graft institutions of 1973,to wit, the special graft court named Sandiganbayan and the Ombudsman, the corruption investigator and prosecutor then known as the Tanodbayan both of which were, in the 1973 Charter, ordered created by legislation.

The transplant of idea and mechanism, the adoption of the ends and the assumption of the means of 1973 leads to the definite conclusion that the present Constitution is an affirmance that, driven by the breadth of corruption in public office needing enduring solutions, there must be no less than a constitutionally secured institution with impregnable authority to combat corruption. This is the Ombudsman.

Uy vs. Sandiganbayan,[1] chronicled the origins of the Ombudsman. It was there recounted that:

In the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of the Ombudsman, to give it political independence and adequate powers to enforce its recommendations. The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read:

Section 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil or administrative case before the proper court of body.

Uy went on to enumerate the implementing presidential decrees, issued as legislation, namely Presidential Decree No. 1487 creating the Office of the Ombudsman known as the Tanodbayan; Presidential Decree No. 1607 broadening the authority of the Tanodbayan to investigate administrative acts of administrative agencies; Presidential Decree 1630 reorganizing the Office of the Tanodbayan and vesting the powers of the Special Prosecutor in the Tanodbayan himself.

The events at and following the ratification of the 1987 Constitution, as likewise historified in Uy, must be made part of this writer’s position:

With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof. He possesses the following powers, functions and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties.

3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursements or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

8. Promulgate its rules or procedure and exercise such other powers or perform such functions or duties as may be provided by law.

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.

The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.

In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people’s grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law.[2]

Clear then from the chronicle, that, as it was at the time of its constitutionalization in 1973, the power of the Ombudsman “shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal xxx cases before the appropriate body xxx.” More importantly, the grant of political independence to the Ombudsman which was the spirit behind the 1973 provisions was specifically stated in the 1987 Constitution. Thus:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the Military establishment may likewise be appointed. (Underscoring supplied.)

Of direct relevance and application to the case at bar is the reason behind the constitutionalization of the Ombudsman. Again, we refer to Uy[3] citing Cortez, Redress of Grievance and the Philippine Ombudsman (Tanodbayan):

In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the people’s medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and the Office of the Citizens counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending.

The lack of political independence of these presidential commissions, to which was attributed their failure to realize their objectives, was clarified during the deliberations of the Constitutional Commission on what is now Article XI of the Constitution with, as already observed, the same heading used in 1973, “Accountability of Public Officials.” The Commissioners also alluded to the unsuccessful presidential attempts.

In his sponsorship speech, Commissioner Colayco, Vice-Chairman of the Committee on Accountability of Public Officers, articulated:

In 1950, for instance, President Quirino created the Integrity Board in an attempt to formalize the procedure for executive direction and control of the bureaucracy. This Board lasted for six months. When President Magsaysay took over the reins of government in 1953, he created the Presidential Complaints and Action Committee. The primary purpose of this Committee was to expedite action on complaints received by the Office of the President against the manner in which the officials of the executive departments and offices were performing the duties entrusted to them by law, or against their acts, conduct or behavior. xxx. But again politics came in – this office did not last long. Two months after President Magsaysay’s death, the office was abolished.

Next, President Garcia created his own Presidential Committee on Administration, Performance and Efficiency [PCAPE]. Again this office did not last long and was replaced by the Presidential Agency on Reforms and Government Operations or PARGO under the regime of President Marcos.[4]

As Commissioner Colayco pointed out in the continuation of his sponsorship speech: although these programs were “good per se,” the succeeding Presidents discarded them – as the incoming Presidents generally tend to abandon the policies and programs of their predecessors – a political barrier to the eventual success of these bodies. He concluded by saying that “[t]he intention, therefore, of our proposal is to constitutionalize the office so that it cannot be touched by the Presidents as they come and go.”

It may thus be said that the 1987 Constitution completed the Ombudsman’s constitutionalization which was started in 1973. The past Constitution mandated the creation by the legislature, the National Security Assembly, later the Batasang Pambansa, of an office of the Ombudsman, which mandate, incidentally, was given also for the creation of a special court, the Sandiganbayan. The present Constitution, while allowing the continuation of the Sandiganbayan and leaving its functions and jurisdiction to provisions “by law,” itself created “the independent Office of the Ombudsman” and itself determined its powers, functions and duties. The independence of the Ombudsman is further underscored by the constitutional orders that the Ombudsman and his Deputies shall be appointed by the President from a list prepared by the Judicial and Bar Council which appointments shall require no confirmation; that the Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office; that the Office of the Ombudsman shall enjoy fiscal autonomy and its approved annual appropriations shall be automatically and regularly released; and that the Ombudsman may only be removed from office by impeachment.[5]

It is with the ground and setting just described that Executive Order No. 1 created the Philippine Truth Commission. Naturally, the Order had to state that the Philippine Truth Commission was created by the President of the Republic of the Philippines further describing the act as the exercise of his “continuing authority to reorganize the Office of the President.” The Order specified that the budget of the Commission shall be provided by the Office of the President and even its furniture and equipment will come from the Office of the President. More significantly, a basic premise of the creation is the President’s battlecry during his campaign for the Presidency in the last elections “kung walang corrupt, walang mahirap,” which is considered a “solemn pledge that if elected, he would end corruption and the evil it breeds.” So much so that the issuance states that “a comprehensive final report shall be published upon directive of the President” upon whose directive likewise, interim reports may issue from time to time.

The Philippine Truth Commission anchored itself on the already constitutionalized principle that public office is a public trust. It adopted the already defined goal to circle and contain corruption, an enemy of the good state already identified way back in 1973. What Executive Order No. 1 did was to shorten the sight and set it from the incumbent’s standpoint. Therefrom, it fixed its target at “reported cases of graft and corruption involving third level public officers and higher, their co-principals, accomplice and accessories from the private sector” and further pinpointed the subjects as “third level public officers during the previous administration.” For this commission, the Philippine Truth Commission was presidentially empowered as an “investigative body” for a thorough fact finding investigation, thereafter to:

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional 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, accomplice 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.

Having thus taken account of the foregoing, this writer takes the following position:

1. In light of the constitutionally declared and amply underscored independence of the Office of the Ombudsman, which declaration is winnowed wisdom from the experienced inherent defects of presidential creations, so real and true that the Ombudsman’s constitutionalization was adopted to completion even if from the charter of an overthrown regime, Executive Order No. 1 cannot pass the present constitutional test. Executive Order No. 1 is unconstitutional precisely because it was issued by the President. As articulated by Commissioner Colayco of the Commission that resurrected the Ombudsman, “our proposal is to constitutionalize the office so that it cannot be touched by the Presidents as they come and go.” And as this Court stated, repeating the observation regarding the erstwhile presidential anti-graft commissions, such commissions failed to realize their objective because they did not enjoy the political independence necessary for the effective performance of a government critic.

Relevant too are the words of Commissioner Regalado:

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity to render service to Juan dela Cruz.[6]

Verily, the Philippine Truth Commission is a defiance of the constitutional wisdom that established the politically independent Ombudsman for one of its reasons for being is the very campaign battlecry of the President “kung walang corrupt, walang mahirap.” Not that there is anything wrong with the political slogan. What is wrong is the pursuit of the pledge outside the limits of the Constitution. What is wrong is the creation by the President himself of an Ombudsman-like body while there stands established an Ombudsman, constitutionally created especially because of unsuccessful presidential antecedents, and thus made independent from presidential prerogative.

2. A simple comparison will show that likeness of the Philippine Truth Commission with the Ombudsman. No such likeness is permitted by the Constitution.

It can easily be seen that the powers of the Truth Commission to: 1) identify and determine the reported cases of graft and corruption which it will investigate; and 2) collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate,[7] are the same as the power of the Ombudsman to investigate any illegal, unjust, improper, or inefficient act or omission of any public official, employee, office or agency.[8]

The authority of the Truth Commission to require any agency, official or employee of the Executive Branch to produce documents, books, records and other papers[9] mirrors the authority of the Ombudsman to direct concerned government officials to furnish it with copies of documents relating to contracts or transactions entered into by the latter’s office involving the disbursement or use of public funds or properties.[10]

Likewise, the right to obtain information and documents from the Senate, the House of Representatives and the courts,[11] granted by Executive Order No. 1 to the Truth Commission, is analogous to the license of the Ombudsman to request any government agency for assistance and information and to examine pertinent records and documents.[12]

And, the powers of the Truth Commission to invite or subpoena witnesses, take their testimonies, administer oaths[13] and impose administrative disciplinary action for refusal to obey subpoena, take oath or give testimony[14] are parallel to the powers to administer oaths, issue subpoena, take testimony and punish for contempt or subject to administrative disciplinary action any officer or employee who delays or refuses to comply with a referral or directive granted by Republic Act (RA) 6770[15] to the Ombudsman.

If Executive Order No. 1 is allowed, there will be a violation of Section 7 of Article XI, the essence of which is that the function and powers (enumerated in Section 13 of Article XI) conferred on the Ombudsman created under the 1987 Constitution cannot be removed or transferred by law. Section 7 states:

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

There is a self-evident reason for the shield against legislation provided by Section 7 in protection of the functions conferred on the Office of the Ombudsman in Section 13. The Ombudsman is a constitutional office; its enumerated functions are constitutional powers.

So zealously guarded are the constitutional functions of the Ombudsman that the prohibited assignment of the conferred powers was mentioned in Section 7 in relation to the authority of the Tanodbayan which, while renamed as Office of the Special Prosecutor, remained constitutionally recognized and allowed to “continue to function and exercise its powers as now or hereafter may be provided by law.”

The position of the Office of the Special Prosecutor, as a continuing office with powers “as may be provided by law” vis-à-vis the Ombudsman created by the 1987 Constitution would be unraveled by subsequent law and jurisprudence. Most apt is Zaldivar vs. Sandiganbayan,[16] which said:

Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan (Ombudsman) and can investigate and prosecute cases only upon the latter’s authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Special Prosecutor in connection with the cases he is ordered to investigate. (Underscoring supplied.)

The ruling was clear: the duty to investigate contained in Section 13(1) having been conferred on the Office of the Ombudsman, left the then Tanodbayan without authority to conduct preliminary investigation except upon orders of the Ombudsman. The message was definite. The conferment of plenary power upon the Ombudsman to investigate “any act or omission of any public official xxx when such act or omission appears to be illegal, unjust, improper or inefficient” cannot, after 1987 and while the present Constitution remains, be shared even by the body previously constitutionalized as vested with such authority, even if there is such assignment “by law.”

Indeed, the subsequent law obeyed Section 7 as correctly read in Zaldivar. Thus, in Republic Act No. 6770, an Act Providing For the Functional And Structural Organization of the Office of the Ombudsman and For Other Purposes, it was made clear in Section 11(3) second sentence that “the Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.”

Constitutional history, specific constitutional provisions, jurisprudence and current statute combine to say that after the ratification of the Constitution in 1987, no body can be given “by law” any of the powers, functions and duties already conferred on the Ombudsman by Section 13, Article XI of the Constitution. As already shown, the Truth Commission insofar as concerns the mentioned third level officers or higher of the previous administration appropriates, not just one but virtually, all of the powers constitutionally enumerated for the Ombudsman. The violation of Section 7 in relation to Section 13 of Article XI of the Constitution is evident.

3. No comfort is given to the respondents by the fact that, as mentioned in Honasan II vs. Panel of Investigating Prosecutors of the Department of Justice,[17] there are “jurisprudential declarations” that the Ombudsman and the Department of Justice (DOJ) have concurrent jurisdiction. Concurrence of jurisdiction does not allow concurrent exercise of such jurisdiction. Such is so that the Ombudsman Act specifically states in Section 15 that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan – precisely the kind of cases covered by the Philippine Truth Commission – and proceeds to define “primary jurisdiction” by again, specifically, stating that the Ombudsman “may take over, at any stage, from any investigation of such cases.” This primary jurisdiction was the premise when a majority of the Court in Honasan discussed the relevance of OMB-DOJ Joint Circular No. 95-001 (which provides that the preliminary investigation and prosecution of offenses committed by public officers in relation to office filed with the Office of the Prosecutor shall be “under the control and supervision of the Office of the Ombudsman”) in relation to Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, which concerns the review of the resolution of the investigating prosecutor in such cases. Honasan would conclude that the authority of the DOJ prosecutors to conduct preliminary investigation of offenses within the original jurisdiction of the Sandiganbayan is subject to the qualification:

xxx that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman, or his deputy.[18] (Underscoring in the original)

Three separate opinions, two of which were dissents were submitted in Honasan. Justice Vitug said that the investigating fiscal must be particularly deputized by the Ombudsman and the investigation must be conducted under the supervision and control of the Ombudsman;[19] Justice Ynares-Santiago discussed at length the concept of primary jurisdiction and took the position that:[20]

Where the concurrent authority is vested in both the Department of Justice and the Office of the Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of Justice from exercising its investigative authority if the case will likely be cognizable by the Sandiganbayan. In such cases, the Office of the Ombudsman should be the proper agency to conduct the preliminary investigation over such an offense, it being vested with the specialized competence and undoubted probity to conduct the investigation.

Justice Sandoval-Gutierrez was more straightforward:[21]

While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and special laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or statute vests jurisdiction over the investigation and prosecution of certain crimes in an office, the DOJ has no jurisdiction over those crimes. In election offenses, the Constitution vests the power to investigate and prosecute in the Commission on Elections. In crimes committed by public officers in relation to their office, the Ombudsman is given by both the Constitution and the statute the same power of investigation and prosecution. These powers may not be exercised by the DOJ. xxx

At the very least, therefore, the prosecutor, in Sandiganbayan cases must, after investigation transmit the records and their resolution to the Ombudsman whose prior written authority is needed before the prosecutor can dismiss a complaint or file an information in which latter instance, a deputization of the fiscal is additionally needed. Even as this writer submits that the position of the minority in Honasan hews far better to the Constitution since, as already observed, the Ombudsman’s authority excludes even the Tanodbayan which used to be the constitutionally recognized holder of the power, the further submission is that the majority ruling to the effect that the Ombudsman is the supervisor of the prosecutor who investigates graft in high places, nonetheless illegalizes the Philippine Truth Commission.

Respondent’s main reliance is that –

Unlike that of the OMB or DOJ which conducts formal investigation as a result of criminal complaints filed before them, or upon reports, the Truth Commission conducts fact-finding investigation preliminary to the filing of a complaint that could lead to a criminal investigation.[22]

If the Philippine Truth Commission would, indeed, conduct only fact-finding investigations preliminary to a criminal investigation, then the foregoing discussion would truly be irrelevant. The fact, however, is that the Philippine Truth Commission is, to use the Solicitor General’s phrase a “criminal investigator” or one who conducts a preliminary investigation for the prosecution of a criminal case.

Detailing the powers and functions of the Philippine Truth Commission, Section 2 of Executive Order No. 1 says that the Commission shall identify and determine the reported cases of such graft and corruption which it will investigate (Section 2[a]) and collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate (Sec. 2[b]). As aforenoted, the Philippine Truth Commission’s power to investigate graft and corruption is no different from the constitutional power of the Ombudsman to investigate any act of any public official when such act appears to be illegal, unjust, improper, or inefficient. The Philippine Truth Commission cannot avoid the comparison by differentiating “formal investigation” or “criminal investigation” which it says is conducted by the Ombudsman or the DOJ, from the “fact-finding investigation” of the Philippine Truth Commission. Let us go back to Zaldivar. There it was as much as stated that the power to investigate mentioned in Section 13(1) of the 1987 Constitution is the authority to conduct preliminary investigation which authority was removed from the Tandobayan called Special Prosecutor when it was given to the Ombudsman. This equivalence was affirmed in Acop vs. Office of the Ombudsman,[23] where it was stated:

In view of the foregoing, it is evident that the petitioners have not borne out any distinction between “the duty to investigate” and “the power to conduct preliminary investigations;” neither have the petitioners established that the latter remains with the Tanodbayan, now the Special Prosecutor. Thus, this Court can only reject the petitioners’ first proposition.

Such established definition of “investigation” of graft and corruption cases, especially for the purpose of determining the authority of one body in relation to another, which is exactly one of the issues in this case, must be read into Executive Order No. 1. No source citation is needed for the generally accepted rule that the words used in a legal document, indeed one which is intended to be a law, has the meaning that is established at the time of the law’s promulgation. “Investigation” in Section 1(a) of Executive Order No. 1 is the same as preliminary investigation and its conduct by the Truth Commission cannot be independent of the Ombudsman. The Truth Commission cannot exist outside the Ombudsman. Executive Order No. 1 so places the Truth Commission and, is, therefore unconstitutional.

Indeed, Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth Commission with is the authority of preliminary investigation. Section 2(g) of the executive order states:

Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional 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, accomplice 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. (Underscoring supplied.)

Investigation to find reasonable ground to believe “that they are liable for graft and corruption under applicable laws” is preliminary investigation as defined in Rule 112, Section 1 of the Rules of Criminal Procedure, which states:

Section 1. Preliminary investigation defined; when required. – Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Moreover, as clearly stated in Section 2(g) of Executive Order No. 1, the Philippine Truth Commission will be more powerful than the DOJ prosecutors who are required, after their investigation, to transmit the records and their resolution for appropriate action by the Ombudsman or his deputy, which action is taken only after a review by the Ombudsman. Section 4 of Rule 112 states that:

x x x x

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

In other words, under existing Rule which follows the statutorily defined primary jurisdiction of the Ombudsman in obeisance to the constitutional conferment of authority, the Ombudsman reviews and may reverse or modify the resolution of the investigating prosecutor. In the case of the Philippine Truth Commission, the Ombudsman not only shares its constitutional power but, over and above this, it is divested of any and all investigatory power because the Philippine Truth Commission’s finding of “reasonable ground” is final and unreviewable and is turned over to the Ombudsman solely for “expeditious prosecution.”

4. There is an attempt by the Solicitor General to read around the explicitness of Section 2(g) of Executive Order No. 1. Thus, skirting the words “for expeditious prosecution” and their obvious meanings as just discussed, the respondents argue that:

The Truth Commission will submit its recommendation to, among others, the OMB and to the “appropriate prosecutorial authorities” which then shall exercise their constitutional and statutory powers and jurisdiction to evaluate the recommendation or endorsements of the Truth Commission. While findings of the Truth Commission are recommendatory, the facts gathered by the Commission will decisively aid prosecutorial bodies in supporting possible indictments for violations of anti-graft laws. Moreover, the policy recommendations to address corruption in government will be invaluable to the Executive’s goal to realize its anti-corruption policies.[24]

x x x x

The Reports of the Truth Commission will serve as bases for possible prosecutions and as sources of policy options xxx.

Fact gathering as basis for preliminary investigation and not as preliminary investigation itself and basis for prosecution, is, seemingly, the function respondents want to attribute to the Philippine Truth Commission to escape the obvious unconstitutional conferment of Ombudsman power. That is no route out of the bind. Fact gathering, fact finding, indeed truth finding is, as much as investigation as preliminary investigation, also constitutionally conferred on the Ombudsman. Section 12 of Article XI states:

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

The Ombudsman on its own investigates any act or omission of any public official when such act or omission appears to be illegal (Section 13(1), Article XI of the Constitution). The power is broad enough, if not specially intended, to cover fact-finding of the tenor that was given to the Philippine Truth Commission by Executive Order No. 1 which is:

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate xxx.

And, the objective of the Philippine Truth Commission pointed to by the Solicitor General which is to make findings for “policy recommendations to address corruption in government” and to serve as “sources of policy options” is exactly the function described for and ascribed to the Ombudsman in Section 13(7), Art. XI of the Constitution:

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

Moreover, as at the outset already pointed out, the power of the Philippine Truth Commission to obtain information and documents from the Congress and the Judiciary [Section 2(c) and (d) of Executive Order No. 1] is a reproduction of the Ombudsman powers provided for in Section 13 (4) and (5), Article XI of the Constitution.

Virtually, another Ombudsman is created by Executive Order No. 1. That cannot be permitted as long as the 1987 Constitution remains as the fundamental law.

5. To excuse the existence of the presidentially created, manned, funded and equipped Truth Commission side-by-side with the Constitutionally created and empowered Ombudsman, the Solicitor General provides the very argument against the proposition. In page 75 of his memorandum, the Solicitor General says that:

The concerned agencies need not wait until the completion of the investigation of the Truth Commission before they can proceed with their own investigative and prosecutorial functions. Moreover, the Truth Commission will, from time to time, publish special interim reports and recommendations, over and above the comprehensive final report. If any, the preliminary reports may aid the concerned agencies in their investigations and eventually, in the filing of a complaint or information. (Underscoring supplied)

Apparently, the statement proceeds from the position that “the power of the OMB to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government.”[25] Without cutting off from the discussions that the concurrence of jurisdiction of the Ombudsman with any other body should be read to mean that at the very least any finding by any other body is reviewable by the Ombudsman and that in full obedience to the Constitution, graft cases against high officials should be investigated alone by or under the aegis of the Ombudsman, it need only be repeated that concurrence of jurisdiction does not allow concurrent exercise of jurisdiction. This is the reason why we have the rule that excludes any other concurrently authorized body from the body first exercising jurisdiction. This is the reason why forum shopping is malpractice of law.

The truth is, in the intensely political if not partisan matter of “reports of graft and corruption xxx committed by public officers xxx, if any, during the previous administration,” there can only be one finding of truth. Any addition to that one finding would result in din and confusion, a babel not needed by a nation trying to be one. And this is why all that fall under the topic accountability of public officers have been particularized and gathered under one authority - The Ombudsman. This was done by the Constitution. It cannot be undone as the nation now stands and remains.

WHEREFORE, I vote for the grant of the petition and the declaration of Executive Order No. 1 as unconstitutional.

JOSE PORTUGAL PEREZ

Associate Justice

[1] G.R. No. 105965-70, 354 SCRA 651, 661.

[2] Id. at 664-665.

[3] Id. at 660-661.

[4] Records of the Constitutional Commission Vol. II, 26 July 1986, p. 267.

[5] Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987 Constitution.

[6] Records of the Constitutional Commission, Vol. II, 26 July 1986, p. 296.

[7] Section 2(a) and (b), respectively, E.O. No. 1, dated 30 July 2010.

[8] Article XI, Section 13(1), 1987 Constitution.

[9] Section 2(b), E.O. No. 1, supra note 7.

[10] Article XI, Section 13(4), 1987 Constitution.

[11] Section 2(c) and (d), E.O. No. 1, supra.

[12] Article XI, Section 13(5), 1987 Constitution.

[13] Section 2(e), E.O. No. 1, supra.

[15] The Ombudsman Act of 1989, Section 15(8) and (9) and Section 26(4).

[16] G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843, 846-847.

[17] G.R. No. 159747, 13 April 2004, 427 SCRA 46.

[22] Memorandum for Respondent, p. 79.

[23] G.R. No. 120422, 248 SCRA 566, 579.

[24] Memorandum for Respondents, pp. 73-74.

[25] Memorandum for Respondents, p. 82.