G.R. Nos. 192935 & 193036 – Louis ‘Barok’ C. Biraogo v. The
Philippine Truth Commission 2010; and Rep. Edcel C. Lagman, et al., v.
Executive Secretary Paquito N. Ochoa, Jr., et al.
Promulgated:
December
7, 2010
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DISSENTING OPINION
Benjamin Disraeli, in a speech delivered before the British House of Commons, February 11, 1851
SERENO, J:
The majority Decision defeats the
constitutional mandate on public accountability; it effectively tolerates
impunity for graft and corruption. Its invocation of the constitutional clause
on equal protection of the laws is an unwarranted misuse of the same and is a
disservice to those classes of people for whom the constitutional guarantee was
created as a succor. The majority Decision accomplished this by completely
disregarding “reasonableness” and all its jurisprudential history as
constitutional justification for classification and by replacing the analytical
test of reasonableness with mere recitations of general case doctrines to
arrive at its forced conclusion. By denying the right of the President to
classify persons in Executive Order No. (EO) 1 even if the classification is
founded on reason, the Decision has impermissibly infringed on the
constitutional powers of the President. It wafts the smell of hope onto the air
towards those who seek the affirmance of EO 1 by saying:
... [T]his is not a death
knell for a truth commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an
affront to the Constitution...[1]
but the scent of hope,
as will be demonstrated, is that which emanates from a red herring. Since
Ferdinand Marcos’s presidency, no Court has stifled the powers of the Philippine
presidency as has this Court through the majority Decision.
The Concurring Opinion of Justice Arturo Brion reveals one
undercurrent beneath the majority’s logically indefensible conclusion that
flows thusly: (1) the Filipino people cannot be trusted to recognize truth from
untruth; (2) because the people cannot make the distinction, there exists a
large possibility that the people would accept as truth the Philippine Truth
Commission (PTC) version of the story on reports of graft and corruption under
the administration of President Gloria Macapagal-Arroyo even if it turns out to
be untruth; (3) this potential public belief in the untruth also enables the
credulous public’s inordinate pressure on the Ombudsman and the courts to
concur in the untruth; (4) because of the possibility of this inordinate
pressure being brought to bear, the probability that the Ombudsman and the
courts would give in to such pressure exists; (5) thus the formula emerges –
the public clamor supportive of the untruth plus the Ombudsman and the courts
possibly giving way to this clamor equals violation of the due process rights
of former President Arroyo and her officials; in turn, this sum equals striking
down the Philippine Truth Commission for being unconstitutional.
The separate opinions of Chief Justice Renato Corona and Justices
Teresita de Castro, Lucas Bersamin, and Jose Perez hold an extreme view on EO
1, opposing well-established jurisprudence which categorically pronounce that
the investigatory powers of the Ombudsman may be concurrently exercised with
other legally authorized bodies. Chief
Justice Corona and Justices de Castro, Diosdado Peralta, and Bersamin even go
further in saying that it would take congressional action, by means of
legislation, to create a truth commission with the same mandate as that in EO
1; and even if Congress itself were to create such commission, it would still
be struck down for violating the equal
protection right of former President Arroyo.
Justice Antonio Carpio opines that the effect of the
majority Decision is the absolute prevention of the investigation of the Arroyo
administration.[2] I agree with his
assessment, especially considering the further views on the matter expressed
separately by Chief Justice Corona and Justices de Castro, Brion, Peralta,
Bersamin, and Perez. In my view, the Decision and the separate concurring
opinions manifest the “backlash effect” wherein movements to achieve social
justice and a more equitable distribution of powers are met with opposition
from the dominant group. When the people
start demanding accountability, in response to which truth commissions and
other fact-finding bodies are established, those from the previously ruling
elite, who retain some hold on power, lash back at the effort by crying “persecution,”
“violation of due process” and “violation of the equal protection guarantee.”
Some of the petitioners, according to Justice Conchita Carpio Morales, are in
essence acting for and in behalf of former President Arroyo and her officials,
otherwise they would not be invoking the “equal protection clause,” a defense
that is inherently personal to President Arroyo and her officials. These
petitioners are wielding the backlash whip through the Petitions. In bending
over backwards to accommodate the Petitions, especially on equal protection
claims which Petitioners could not properly raise, this Court is wittingly or
unwittingly compromising important constitutional principles and rendering the
path to a genuinely strong democratic Philippines more difficult. With all due
respect, the Decision in effect conveys the immoral lesson that what is
all-important is to capture and retain political power at all costs and misuse
the legal infrastructure, including the Bill of Rights and the power of
appointment, to create a shield of immunity from prosecution of misdeeds.
Findings
and Dispositive Conclusion of the Majority
The dispositive conclusion of the majority Decision contradicts its
own understanding of both the Constitution and the legal implication of recent
political events. It finds that: (1) the
Filipino people convinced in the sincerity and ability of Benigno Simeon Aquino
III to carry out the noble objective of stamping out graft and corruption,
“catapulted the good senator to the Presidency”[3]; (2) to
transform his campaign slogan into reality, “President Aquino found a need for
a special body to investigate reported cases of graft and corruption allegedly
committed during the administration of his predecessor”[4]; (3) the
Philippine Truth Commission (PTC) is an ad
hoc committee that flows from the President’s constitutional duty to ensure
that the laws are faithfully executed, and thus it can conduct investigations
under the authority of the President to determine whether the laws were
faithfully executed in the past and to recommend measures for the future to
ensure that the laws will be faithfully executed;[5] (4) the
PTC is constitutional as to its manner of creation and the scope of its powers;[6] (5) that
it is similar to valid investigative bodies like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and the Zeñarosa Commission.[7] Nevertheless,
the majority Decision concluded that the PTC should be struck down as
unconstitutional for violating the equal protection clause for the reason that
the PTC’s clear mandate is to “investigate and find out the truth concerning
the reported cases of graft and corruption during the previous administration only.”[8]
There is a disjoint
between the premises and the conclusion of the Decision caused by its discard
of the elementary rules of logic and legal precedents. It suffers from internal contradiction,
engages in semantic smoke-and-mirrors and blatantly disregards what must be
done in evaluating equal protection claims, i.e., a judge must ask whether
there was indeed a classification; the purpose of the law or executive action;
whether that purpose achieves a legitimate state objective; the reason for the
classification; and the relationship between the means and the end. Within
those layers of analysis, the judge must compare the claimed reason for
classification with cases of like or unlike reasoning. He knows the real world,
he looks at its limitations, he applies his common sense, and the judge knows
in his judicial heart whether the claimed reason makes sense or not. And
because he is a practical man, who believes as Justice Oliver Wendell Holmes
did that the life of the law is in experience, he knows false from genuine
claims of unconstitutional discrimination.
With all due respect,
it is bad enough that the Decision upsets the long line of precedents on equal
protection and displays self-contradiction. But the most unacceptable effect of
the majority Decision is that a court of unelected people – which recognizes
that the President “need(s) to create a special body to investigate reports of
graft and corruption allegedly committed during the previous administration” to
“transform his campaign promise” “to stamp out graft and corruption”[9] –
proposes to supplant the will of the more than 15 million voters who voted for
President Aquino and the more than 80% of Filipinos who now trust him, by
imposing unreasonable restrictions on and impossible, unknowable standards for
presidential action. The Decision thereby prevents the fulfillment of the political
contract that exists between the Philippine President and the Filipino
people. In so doing, the Court has
arrogated unto itself a power never imagined for it since the days of Marbury v. Madison[10] when the doctrine of judicial review was
first laid down by the U.S. Supreme Court.
The majority does not only violate the separation of powers doctrine by
its gratuitous intrusion into the powers of the President – which violation the
Decision seeks to deny. Nay, the majority created a situation far worse – the
usurpation by the judiciary of the sovereign power of the people to determine
the priorities of Government.
The
Majority Decision’s Expansive Views of the Powers of the Presidency and the
Mandate of the Aquino Government
The majority Decision starts with an expansive view of the powers of
the Philippine presidency and what this presidency is supposed to accomplish
for the Filipino people:
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his slogan, “Kung walang corrupt, walang mahirap.” The Filipino people convinced in his sincerity and in his ability to carry out this noble objective catapulted the good senator to the Presidency.[11]
Here
we have the majority affirming that there exists a political contract between
the incumbent President and the Filipino people – that he must stamp out graft
and corruption. It must be remembered that the presidency does not exist for
its own sake; it is but the instrument of the will of the people, and this
relationship is embodied in a political contract between the President and the
people. This political contract creates many of the same kinds of legal and
constitutional imperatives under the social contract theory as organic charters
do. It also undergirds the moral legitimacy of political administrations. This
political contract between President Aquino
and the Filipino people is a potent force that must be viewed with the same
seriousness as the 1987 Constitution, whose authority is only maintained by the
continuing assent thereto of the same Filipino people.
Then the Decision
proceeds to affirm the power of the President to conduct investigations as a
necessary offshoot of his express constitutional duty to ensure that the laws
are faithfully executed.[12] It then proceeds to explain that fact-finding
powers must necessarily carry the power to create ad hoc committees to undertake fact-finding. And because the PTC is only an ad hoc committee that is to be funded
from the approved budget of the Office of the President, the Executive Order
that created it is not a usurpation of any legislative power.
The Decision upholds in
extensive affirmatory language what, since the creation of the Republic, has
been understood about the powers of the Presidency and the need for the
effective exercise of the investigatory powers of that office to serve state objectives. Unfortunately, it then breaks its own chain
of thought and shrinks the vista from its grand view of representative
government to a view that is myopic and logically infirm.
The Majority Decision’s Turn-Around to Unconstitutionally Restrict the Powers of the Aquino Presidency, its Unpredictable Standard for “Reasonable Prioritization,” and the Resulting Imposition of an Impossible Condition on Aquino’s Campaign Promise, as Well as Its Internal Contradiction
Having strongly
expounded on the need of President Aquino to fulfill his political contract
with the Filipino people to address graft and corruption, and his
constitutional duty to ensure that the laws are faithfully executed, the Court
suddenly finds itself impermissibly restricting this power when the object of
the exercise of the Presidential powers of investigation under EO 1 focused on
the reported misdeeds of the Arroyo administration. From full support of the
incumbent President and his constitutional powers, the majority Decision
reverses its track to unconstitutionally restrict his powers by effectively
denying him the right to choose the priority – in this case the Arroyo
administration – in his graft-busting campaign.
The reasoning of the
Decision proceeds thus: (a) all past administrations are a class and to exclude
other past administrations is on its face unlawful discrimination; (b) the
reasons given by the Solicitor General for the limited scope of the intended
investigation – administrative overburden if other past administrations are
included, difficulty in unearthing evidence on old administrations, duplication
of investigations already made – are either specious, irrelevant to the
legitimate and noble objective of the PTC to stamp out corruption, or beside
the point and thus do not justify the discrimination; (c) to be constitutional,
the PTC must, “at least, have authority
to investigate all past administrations”[13] and
“must not exclude the other past administrations”;[14] (d)
“[p]erhaps a revision of the executive
issuance so as to include the earlier past administrations would allow it to
pass the test of reasonableness and not be an affront to the Constitution”;[15] and (e)
“reasonable prioritization is permitted,” but “it should not be arbitrary lest
it be struck down as unconstitutional.”[16]
The Decision is telling
the President to proceed with his program of anti-corruption on the condition
that, when constituting a fact-finding commission, he must include “all past
administrations” without exception, save he cannot be expected to investigate
dead presidents[17]
or those whose crimes have prescribed. He may prioritize, but he must make sure
such prioritization is not arbitrary.
In talking about an
acceptable formulation for a fact-finding commission, it is as if the Decision is
talking past EO 1. The President has already made his fact-finding
prioritization in EO 1, and his prioritization is not arbitrary. The government has already explained why
investigation of the Arroyo administration is its priority – (a) the audit of an
immediate past administration is usually where audits begin; (b) the evidence
of graft and corruption is more likely to still be intact; (c) the most
immediate deleterious effects of the reported graft and corruption of the
immediate past administration will need to be faced by the present
administration; (d) the resources required for investigation of the immediate
past administration alone will take up all the resources of the PTC; and (e)
other past administrations have already been investigated and one past
president has already been jailed. But
this Court is saying that all the above are not indicators of rational
prioritization. Then, what is? This Court seems to have set an inordinately
high standard for reasonableness that is impossible to satisfy, primarily
because it is unknowable and unpredictable. The only conclusion is that there
is no other standard out there acceptable to the majority, and there never will
be.[18] Even
the majority Decision gives no clue, and perhaps the majority has no clue on
what those reasonable standards are. As Justice Florentino Feliciano said in
his concurrence in Tañada v. Tuvera:[19]
x x x The enforcement of prescriptions which are both unknown to and unknowable by those subjected to the statute, has been throughout history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations between a government and its people.
This is the red herring
– for the majority Decision to speak as if there were a way to “tweak” EO 1 so
that it becomes acceptable to the majority when in reality there is no way that
can be done without loss of dignity to the incumbent presidency. The tweaked
EO, according to the Decision, must include all past administrations in its
coverage, and can identify its priority; but a reading of the Decision already
indicates that the moment the prioritization hints at focusing on the Arroyo
administration, then the majority is ready to once again strike it down. Such proposition is to require the Aquino
administration to engage in hypocrisy – to fact-find on “the elephant in the
room” without talking about that elephant in particular because the majority
finds that to talk about that particular elephant without talking about all
other elephants is to deprive that particular elephant of its equal protection
right. This Court has imposed an unbearable and undignified yoke on the
presidency. It is to require the Aquino Presidency to pretend that addressing
the reported graft and corruption of the Arroyo administration was never a
major campaign promise of this Presidency to the people.
It is incumbent upon
any administration to conduct an internal audit of its organization – in this
case, the executive department. This is standard practice in the private
sector; it should likewise be standard practice for the public sector if the
mandate of public accountability is to be fulfilled. No President should be
prevented from creating administrative structures to exact accountability; from
conducting internal audits and creating controls for executive operations; and
from introducing governance reforms. For the Court to do so would be to counter
progress and to deny the executive department the use of best practices that are
par for the course in modern democracies.
The Decision
contradicts itself by concluding that the graft and corruption fact-finding
mandate of the PTC is confined only to those incidents in the Arroyo
administration. In the same breath, it acknowledges that the express language
of EO 1 indicates that the President can expand the focus of the PTC at any
time by including other past misdeeds of other administrations. In other words,
the clear and unmistakable language of EO 1 precludes any conclusion that the
PTC’s investigation of graft and corruption is confined only to the
administration of President Arroyo. EO 1
should be read as empowering the PTC to conduct its fact-finding on the Arroyo
administration, and that this fact-finding may expand to include other
past administrations on the instruction of President Aquino.
The use of the word
“only” in the majority Decision[20] is
unwarranted, as it indicates exclusivity of the PTC’s focus on the Arroyo
administration – an exclusivity that is incompatible with the unequivocally
non-exclusive language of Sec. 17 of EO 1.[21] The
litmus test that should have been applied by this Court is whether or not EO 1
is unconstitutional for prioritizing fact-finding on the reported graft and
corruption of the Arroyo administration without foreclosing, but not
guaranteeing, future investigation into other administrations.
At the outset, it must be emphasized that EO 1 did not, for purposes
of application of the laws on graft and corruption, create two classes – that
of President Arroyo and that of other past administrations. Rather, it
prioritized fact-finding on the administration of President Arroyo while saying
that the President could later expand the coverage of EO 1 to bring other past
administrations under the same scrutiny. Prioritization per se is not classification. Else, as all human activities require
prioritization, everyone in a priority list for regulation or investigation can
make out a case that there is prima facie classification, and that the
prioritization is not supported by a reasonable objective. All acts of
government would have to come to a halt and all public offices would need to
justify every plan of action as to reasonableness of phases and prioritization.
The step-by-step approach of legislative
and regulatory remedies – recognized as valid in Quinto v. COMELEC[22]
and in the case law[23] cited by
the Decision – in essence says that
prioritization is not classification, much less invalid classification.
The majority looks at
the issue of equal protection by lumping into a single class all past
administrations,[24]
i.e., those of former Presidents Aguinaldo,
Quezon, Osmeña, Laurel, Roxas, Quirino, Magsaysay, Garcia, Macapagal, Marcos,
Aquino, Ramos, Estrada and Arroyo. Justice Carpio makes the case that recovery
of ill-gotten wealth is imprescriptible. Then conceivably under the formulation
of the majority, all past administrations are required to be
investigated. In fact, even with the exceptions introduced by the Decision, its
conclusory parts emphasize the need to include all past administrations
in the coverage of EO 1. It then pronounces that any difference in treatment
between members of this class is unequal protection, such that to treat the
Arroyo administration differently from the administration of President
Aguinaldo is unconstitutional. After all, says the majority Decision,
corruption was reported in other past administrations as well.
The lumping together of
all Philippine political administrations spanning 111 years, for purposes of
testing valid legislation, regulation, or even fact-finding is unwarranted.
There is inherent illogic in the premise of the Decision that administrations
from the time of Aguinaldo to Arroyo belong to one class.[25]
Assuming arguendo that all the political
administrations can be categorized as one class, the test of reasonableness has
been more than met by EO 1, as extensively discussed by Justices Carpio, Carpio
Morales, Antonio Eduardo Nachura, and Roberto Abad. Let me just add to their
voices by looking at the constitutional problem before this Court from other
angles.
The Majority Decision Indirectly Admits
that the “Reasonableness Test” Has Been Satisfied in the Same Breath that it
Requires the Public to Live with an Unreal World View
To quote from the majority Decision’s discussion of the
claim of violation of the equal protection clause:
Although the purpose of the Truth Commission falls within the
investigative powers of the President ...
. . . .
. . . . .
... It must not leave out or “underinclude” those that should
otherwise fall into a certain classification.
. . . .
. . . . .
As elucidated in Victoriano v. Elizalde
Rope Workers’ Union and reiterated in a long line of cases,
The guaranty of equal protection of the laws is not
a guaranty of equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by
statute. Equality of operation of statutes does not mean indiscriminate
operation on circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in law, as in 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. All that is required of a valid classification is that it
be reasonable, which means that 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 apply equally to each member of the class. The
Court has held that the standard is satisfied if the classification is based on
a reasonable foundation or rational basis and is not palpably arbitrary.
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The clear mandate
of the envisioned truth commission is to investigate and find out the truth
“concerning the reported cases of graft and corruption during the previous
administration” only. The intent to
single out the previous administration is plain, patent and manifest ...
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
“previous administration” only.
...
The OSG ventures to opine that “to include other past administrations, at this
point, may unnecessarily overburden the commission and lead it to lose its
effectiveness.” The reason given is specious. It is without doubt irrelevant to
a legitimate and noble objective of the PTC to stamp out or “end corruption and
the evil it breeds.”
The
probability that there would be difficulty in unearthing evidence or that
the earlier reports involving the earlier administrations were already inquired
into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no
longer be the subjects of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous administrations, given the
body’s limited time and resources. “The Law does not require the impossible” (Lex non cognit ad impossibilia).
Given
the foregoing physical and legal impossibility, the Court logically recognizes
the unfeasibility of investigating almost a century’s worth of graft cases.
However, the fact remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of searching for the truth,
must not exclude the other past administration. The PTC must, at least, have
the authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck down
for being unconstitutional. …
It
could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the
considered view that although its focus is restricted, the constitutional
guarantee of equal protection under the law should not in any way be
circumvented.
The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights
determined and all public authority administered. Laws that do not conform to
the Constitution should be stricken down for being unconstitutional. While the
thrust of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together with the
provisions of the Constitution. To exclude the earlier administrations in the
guise of “substantial distinctions” only an “adventure in partisan hostility.”
…
To
reiterate, in order for a classification to meet the requirements of constitutionality,
it must include or embrace all persons who naturally belong to the class. “Such
a classification must not be based on existing circumstances only, or so
constituted as to preclude additions to the number included within a class, but
must be of such nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory
legislation and which are indistinguishable from those of the members of the
class must be brought under the influence of the law and treated by it in the
same way as members of the class.”
The
Court is not unaware that “mere underinclusiveness is not fatal to the validity
of a law under the equal protection clause” ... In several instances, the underinclusiveness
was not considered a valid reason to strike down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the “step by step” process.
“With regard to equal protection claims, a legislature does not run the risk
of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.”
In
Executive Order No. 1, however, there is no inadvertence. That the previous
administration was picked out was deliberate and intentional as can be gleaned
from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even
mention any particular act, event or report to be focused on unlike the
investigative commissions created in the past. “The equal protection clause is
violated by purposeful and intentional discrimination.”
...
Although Section 17 allows the President the discretion to expand the scope of
the investigations of the Truth Commission so as to include the acts of graft
and corruption, it does not guarantee that they would be covered in the future.
Such expanded mandate of the commission will still depend on the whim and
caprice of the President. If he would decide not to include them, the section
would then be meaningless. This will only fortify the fears of the petitioners
that the Executive Order No. 1 was “crafted to tailor-fit the prosecution of
officials and personalities of the Arroyo administration.”[26]
(Emphasis and underscoring supplied)
In an earlier portion, I discussed the findings of the majority Decision regarding the mandate of President Aquino from the electorate and the vast expanse of his powers to investigate and ensure the faithful execution of the laws. The majority concedes the reasonableness of the purpose of EO 1, but, as shown in the above excerpts, it contests the manner by which President Aquino proposes to achieve his purpose. The very discussion above, however, demonstrates the self-contradiction and unreality of the majority Decision’s worldview.
First, the Decision concedes that classification per se is not forbidden in the process of legislation or regulation. Indeed, cases identified by the Decision, when examined, pronounce that the legislature and the regulators must necessarily pick and choose in the process of their work.
Second, in legislation or regulation, a step-by-step process resulting in a classification of those that are immediately included therein versus those that have yet to be included in the future is constitutional.
Third, the Decision also concedes that the under-inclusiveness of remedial measures is not unconstitutional, especially when the purpose can be attained through inclusive future legislation or regulation. I note of course, that the Decision states in an earlier part that “under-inclusiveness” makes for invalid classification. It is important to note the observation of Justice Carpio that the creation of the Presidential Commission on Good Government (PCGG) has consistently been upheld by the Court despite constitutional challenges on equal protection grounds. The PCGG’s charter has the same “future inclusion” clause as Section 17 of EO 1; yet, the majority Decision ignores jurisprudence on the PCGG.
Fourth, the Decision, through a quoted case,[27] observes that valid under-inclusiveness can be the result of either inadvertence or deliberateness.
Regardless of the foregoing findings and discussions, which in effect support its validity, EO 1 is struck down by the Decision. The majority creates an argument for the invalidity of EO 1 by quoting only from general principles of case law and ignoring specific applications of the constitutional tests for valid classification. Instead of drawing from real-world experiences of classification decided in the past by the Court, the Decision relies on general doctrinal statements normally found in cases, but divorces these doctrinal statements from their specific contextual setting and thereby imposes unrealistic standards for presidential action.
The law has always been that a class can be validly distinguished from others if there is a reasonable basis for the distinction. The reasonableness of the classification in EO 1 was amply demonstrated by the Solicitor General, but the majority simply responds dismissively that the distinctions are superficial, specious and irrelevant, without clearly explaining why they are so. Contrary to the conclusion of the majority, jurisprudence bear out the substantial and reasonable nature of the distinction.
With respect to the first reason for the classification claimed by the Solicitor General – that other past administrations have already been investigated and, hence, there is constitutional basis not to include them in the immediate focus of the investigation – the case of Luna v. Sarmiento[28] supports the conclusion that the distinction is constitutional.
Commonwealth Act No. (CA) 703, which was sustained by Luna v. Sarmiento, created two sets of situations – one in which persons were delinquent in their tax payments for half of the year 1941 and the entirety of the years 1942-45 (during the Japanese occupation), and another in which persons had paid their taxes for the said periods. Only the first set of persons was benefited by the tax amnesty provision of CA 703. The law was silent on the treatment of the tax payments made by compliant taxpayers during that period. A claim of unequal protection was raised. The Court said:
Does this provision cover taxes paid before its
enactment, as the plaintiff maintains and the court below held, or does it
refer, as the City Treasurer believes, only to taxes which were still unpaid?
There is no ambiguity in the language of the law. It says “taxes and
penalties due and payable,” the literal meaning of which is taxes owed or
owing. (See Webster's New International Dictionary.) Note that the provision
speaks of penalties, and note that penalties
accrue only when taxes are not paid on time. The word “remit” underlined by the
appellant does not help its theory, for to remit is to desist or refrain from
exacting, inflicting, or enforcing something as well as to restore what has
already been taken. (Webster's New International Dictionary)
We
do not see that literal interpretation of Commonwealth
Act No. 703 runs counter and does violence to its spirit and intention, nor
do we think that such interpretation would be “constitutionally bad” in that
“it would unduly discriminate against taxpayers who had paid in favor of
delinquent taxpayers.”The remission of taxes due and payable to the
exclusion of taxes already collected does not constitute unfair discrimination.
Each set of taxes is a class by itself, and the law would be open to attack as
class legislation only if all taxpayers belonging to one class were not treated
alike. They are not.[29]
In other words, within the class of taxpayers obligated to pay taxes
in the period from the second half of 1941 to the end of 1945 are two subclasses
– those who did not pay their taxes and those who did. By the same kind of
reasoning, within the class of political administrations, if past
administrations have already been the subject of a fact-finding commission,
while one particular administration has not been so, that alone is a good basis
for making a distinction between them and an administration that has not yet
been investigated. There is a constitutionally valid basis, therefore, to
distinguish between the Marcos, Ramos, and Estrada administrations – which have already been the subject of
fact-finding commissions – and the Arroyo administration.
With respect to the second reason for the classification – that it would be unduly oppressive and burdensome
to require the PTC to investigate all administrations – case law holds that
administrative constraints are a valid basis for classification.
In British American Tobacco v. Camacho,[30] the
Court declared the legislative classification freeze on the four-tiered system
of cigarette taxes as a valid and reasonable classification arising from practicality and expediency.[31] Thus,
freezing the tax classification of cigarettes based on their 1996 or 2003 net
retail prices was found to be the most efficient way to respond to Congress’
legitimate concern with simplifying tax collections from cigarette
products. In a similar vein, the
President believed that the most efficient and effective way of jump-starting
his administration’s fight against corruption was to focus on one freezable
time frame – the latest past administration. The legitimate and valid
administrative concern is obviously the limited resources and time available to
the PTC to make a comprehensive yet valuable fact-finding report with recommendations
to address the problem of graft and corruption in a timely and responsive
manner within a period of two years. Hence, there can be no violation of equal
protection based on the fact that the PTC’s investigation is limited to the
investigation of what can be feasibly investigated, a classification based on
the Executive’s practical administrative constraints.
With respect to the third reason for the classification made by EO 1, one that lumps together the various temporal reasons, the Solicitor General describes it thus:
... The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administration long
gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
... The classification of the previous
administration as a separate class for investigation lies in the reality that
the evidence of possible criminal
activity, the evidence that could lead to recovery of public monies illegally
dissipated, the policy lessons to be learned to ensure that anti-corruption
laws are faithfully executed, are more
easily established in the regime that immediately precede the current
administration.
The temporal
dimension of every legal argument is supremely important, imposed by the
inevitable fact that this world and its inhabitants are creatures of space and
time. Every public official, therefore, must accomplish his duties within the
constraints of space and time. To ignore the limitation of time by assuming
that a public official has all the time in the world to accomplish an
investigative goal, and to force the subject of the universe of his scrutiny to
comprise all past administrations, is the height of legal unreasonableness. In
other words, according to the majority Decision, within the limited term of
President Aquino, and within the more severely limited life span of an ad hoc fact-finding committee, President
Aquino must launch his pursuit to eradicate graft and corruption by fact-finding
into all past administrations spanning multitudes of decades. Truth
commissions, of which the PTC according to Chief Justice Corona is one, are all
highly limited in investigations, statement taking, and transcribing
information.[32]
In order to be swift and independent, truth commissions operate within strict
time constraints. They are also restricted in the subject matter they can
review.[33]
This is the real world of truth commissions, not that imagined by the majority.
The
Majority Decision Grievously Omitted the Analytical Process Required of this
Court in Equal Protection Claims
A judicial analysis
must not stop at reciting legal doctrines which are its mere beginning points,
but, especially in equal protection claims, it must move forward to examine the
facts and the context of the controversy. Had the majority taken pains to
examine its own cited cases, it would have discovered that the cases, far from
condemning EO 1, would actually support the constitutionality of the latter.
The majority Decision and the separate opinion of Chief Justice Corona
rely greatly on Victoriano v. Elizalde Rope Workers Union[34]
for their main doctrinal authority. The Court in that case held that the questioned
classification was constitutional, and it went through a step-by-step analysis
to arrive at this conclusion. To clarify the kind of analytical process that
must go into an examination of the equal protection claim, let us quote from
the case in extenso:
Thirdly,
the Union contended that Republic Act No. 3350 discriminatorily favors those
religious sects which ban their members from joining labor unions, in violation
of Article III, Section 1(7) of the 1935 Constitution; and while said Act
unduly protects certain religious sects, it leaves no rights or protection to
labor organizations.
...
that said Act does not violate the constitutional provision of equal
protection, for the classification of workers under the Act depending on their
religious tenets is based on substantial distinction, is germane to the purpose
of the law, and applies to all the members of a given class...
...
All presumptions are indulged in favor of constitutionality; one who attacks
a statute, alleging unconstitutionality must prove its invalidity beyond a
reasonable doubt, that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports
the statute, it will be upheld, and the challenger must negate all possible bases;
that the courts are not concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal interpretation of the constitution
in favor of the constitutionality of legislation should be adopted.
...
In Aglipay v. Ruiz, this Court had
occasion to state that the government should not be precluded from pursuing
valid objectives secular in character even if the incidental result would be
favorable to a religion or sect...
The
primary effects of the exemption from closed shop agreements in favor of
members of religious sects that prohibit their members from affiliating with a
labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs; and by eliminating to a
certain extent economic insecurity due to unemployment, which is a serious
menace to the health, morals, and welfare of the people of the State, the
Act also promotes the well-being of society.
It is our view that the exemption from the effects of closed shop
agreement does not directly advance, or diminish, the interests of any
particular religion. Although the exemption may benefit those who are members
of religious sects that prohibit their members from joining labor unions, the
benefit upon the religious sects is merely incidental and indirect. The “establishment clause” (of religion) does
not ban regulation on conduct whose reason or effect merely happens to coincide
or harmonize with the tents of some or all religions. The free exercise clause
of the Constitution has been interpreted to require that religious exercise be
preferentially aided.
The
guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute.
Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that
are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within
which it is to operate.
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 is that it be reasonable,
which means that the 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.
In
the exercise of its power to make classifications for the purpose of enacting
laws over matters within its jurisdiction,
the state is recognized as enjoying a wide range of discretion. It
is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither
is it necessary that the classification be
made with mathematical nicety. Hence legislative
classification may in many cases properly
rest on narrow distinctions, for the equal protection
guaranty does not preclude the legislature
from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.
We
believe that Republic Act No. 3350 satisfies the aforementioned requirements. The
Act classifies employees and workers, as to
the effect and coverage of union shop security agreements, into those
who by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose
religion does not prohibit membership in labor unions. The
classification rests on real or substantial, not merely imaginary or whimsical,
distinctions...
...The classification, introduced by Republic Act No. 3350,
therefore, rests on substantial distinctions.
The
classification introduced by said Act is also germane to its purpose. The
purpose of the law is precisely to avoid those who cannot, because of their
religious belief, join labor unions, from
being deprived of their right to work and from being dismissed from their work because of union shop security
agreements.
Republic
Act No. 3350, furthermore, is not limited in its application to conditions
existing at the time of its enactment. The
law does not provide that it is to be effective for a certain period of
time only. It is intended to apply for all times as long as the conditions
to which the law is applicable exist. As long as there are closed shop
agreements between an employer and a labor
union, and there are employees who are prohibited by their religion from
affiliating with labor unions, their exemption from the coverage of said agreements continues.
Finally,
the Act applies equally to all members of said religious sects; this is
evident from its provision. The fact that
the law grants a privilege to members of said religious sects cannot by itself render the Act
unconstitutional, for as We have adverted to, the Act only restores to them
their freedom of association which closed shop agreements have taken away, and puts them in the same plane
as the other workers who are not prohibited
by their religion from joining labor unions. The circumstance, that the other employees, because they are differently situated,
are not granted the same privilege, does not render the law
unconstitutional, for every classification allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not offend the constitution simply because in practice it results in some inequality. Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object is for the benefit of the public and the means by which the benefit is to be obtained are of public character, the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed by the general public.[35]
The above analysis is
the kind of processed reasoning to which EO 1 should be subjected. The majority
Decision falls short of satisfying this process.
On the
first test. Is the classification reasonable, based on
substantial distinctions that make for real difference? The government has
already given several reasons why the distinction between the administration of
President Arroyo is different from other past administrations. The distinction
does not lie in any claim that corruption is the sole hallmark of the Arroyo
administration – far from it. The distinction lies in reason – administrative
constraints, availability of evidence, immediate past acts, non-prescription of
causes of actions – all of which are not whimsical, contrived, superficial or
irrelevant. It must also be emphasized that the Court, as quoted above,
recognizes that in many cases, the classification lies in narrow
distinctions. We have already discussed how in Luna v. Sarmiento the
Court recognized subclasses within a class and upheld the narrow distinction
made by Congress between these subclasses. So if past administrations have
already been the subject of a fact-finding commission, while one particular
administration has not been so subjected, that alone is a good basis for making
a distinction between them and an administration that has not yet been
investigated. It must be emphasized that the Victoriano case, which the
majority heavily relied on, reiterated that as long as there is a public benefit
to be obtained in a government action, incidental advantage (and conversely,
disadvantage) to a group is not sufficient to upset the presumption of
constitutionality of a government action.
On the second test. The classification is germane to the purpose of
the law – to get a headstart on the campaign against graft and corruption. If
the investigation into the root of corruption is to gain traction, it must
start somewhere, and the best place to start is to examine the immediate past
administration, not distant past administrations.
On the third test. Of course this is not
relevant in this case, for the law being examined in Victoriano was one
that granted prospective rights, and not one that involves fact-finding into
past acts as with EO 1.
On the last test. This asks whether the law applies equally to all
members of the segregated class. It must be emphasized that in the Victoriano
case, this last test was applied not to all the workers in the bargaining unit,
but it was applied to the subclass of workers whose religions prohibit them
from joining labor unions. In application to this case, the question should
then have been, not whether there is equality of treatment between all
political administrations under EO 1, but whether within the subclass of third
level public officials of the Arroyo administration – that is, the subject of
EO 1 – there is unequal treatment. Obviously, the answer is no. The majority
applied the last test backwards by asking whether there is equality of
treatment among all political administrations and concluding that there was no
equality of treatment, even before it could answer the first test of whether
the classification between the Arroyo administration and other past
administrations was reasonable.
It must be emphasized that the Victoriano case on which the
majority heavily relies states in several parts that classification must
necessarily result in inequality of treatment and that such inequality does not
give rise to a constitutional problem. It is the lack of reason that gives rise
to a constitutional issue, not the inequality per se. To quote again:
The mere fact that the legislative classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not offend the constitution simply because in practice it results in some inequality. Anent this matter, it has been said that whenever it is apparent from the scope of the law that its object is for the benefit of the public and the means by which the benefit is to be obtained are of public character, the law will be upheld even though incidental advantage may occur to individuals beyond those enjoyed by the general public.[36]
Selective Investigation, Enforcement and Prosecution
Fact-finding or investigation can only begin by
identifying the phenomenon, event or matter that is to be investigated. Then it
can only proceed if the fact-finder, or the authority under whom he works,
identifies or selects the persons to be investigated.
The validity of the Feliciano Commission created by Administrative
Order No. (AO) 78 of former President Arroyo is affirmed by the majority
Decision. AO 78 zeroed in on the investigation of “the rebellion of misguided
military officers last July (2003),” in order “to investigate the roots of the
rebellion and the provocations that inspired it,” and concludes that “this
rebellion is deplorable.” AO 78 labeled
the officers involved in the July 2003 Oakwood rebellion as “misguided” and
cast their actions as “rebellion” and “deplorable.” President Arroyo selected a
class – the officers involved in the July 2003 “rebellion” – in
contradistinction to all other all military officers who had ever rebelled
against the Republic since its founding.
The acts were stigmatized as acts of “rebellion,” a crime punishable by
law. The majority does not condemn this classification made in AO 78 by
President Arroyo which uses condemnatory language on the class of people
targeted. In contrast, the language of EO 1 of President Aquino is mild,
willing to grant the administration of President Arroyo the benefit of the
doubt by using adjectives to denote the tentativeness of the observations on
corruption such as “alleged” and “reported” instead of treating them as
actuality. AO 78 is affirmed while EO 1 is struck down; no explanation for the
differing treatment is made by the majority Decision. This difference in
treatment is disturbing considering the long history of the treatment by courts
of the defense of selective investigation and prosecution.
In fulfilling its duty to execute the laws and
bring violators thereof to justice, the Executive is presumed to
undertake criminal prosecution “in good faith and in a nondiscriminatory
fashion.”[37]
The government has broad discretion over decisions to initiate
criminal prosecutions[38] and whom
to prosecute.[39] Indeed,
the fact that the general evil will only be partially corrected may serve to
justify the limited application of criminal law without violating the equal
protection clause.[40] Mere
laxity in the enforcement of laws by public officials is not a denial of equal
protection.[41]
Although such discretion is broad, it is not without limit.[42] In order
to constitute denial of equal protection, selective enforcement must be
deliberately based on unjustifiable or arbitrary classification; the mere
failure to prosecute all offenders is no ground for the claim of a denial of
equal protection.[43] To support a claim of selective prosecution,
a defendant must establish a violation of equal protection and show that the
prosecution (1) had a discriminatory
effect and (2) was motivated by a discriminatory
purpose.[44] First, he must show that “he has been
singled out for prosecution while other similarly situated generally have not
been proceeded against for the type of conduct forming the basis of the charge
against him.”[45] Second, he must prove that his selection
for prosecution was invidious or in bad faith and was “based on
impermissible considerations such as race, religion, or the desire to prevent
the exercise of constitutional rights.”[46] In
American constitutional history, it is the traditionally oppressed – racial or
religious minorities and the politically disenfranchised – who have succeeded
in making a case of unequal protection when their prejudiced status is shown to
be the principal invidious or bad faith consideration for the selective
prosecution.
The standard for demonstrating
selective prosecution therefore is demanding: a “presumption of regularity
supports prosecutorial decisions and in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their official
functions.”[47]
In People v. Dela Piedra,[48] the
Philippine Supreme Court, adhering to the precedents set in American
jurisprudence, likewise denied the equal protection argument of an illegal
recruiter, who claimed that others who had likewise performed acts of
recruitment remained scot-free:
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. (Emphasis
supplied)
In the instant case, the fact that other administrations are not the
subject of the PTC’s investigative aim is not a case of selective prosecution
that violates equal protection. The Executive is given broad discretion to
initiate criminal prosecution and enjoys clear presumption of regularity and
good faith in the performance thereof. For petitioners to overcome that
presumption, they must carry the burden of showing that the PTC is a
preliminary step to selective prosecution, and that it is laden with a discriminatory
effect and a discriminatory purpose. However, petitioner has sorely failed in
discharging that burden.
The presumption of good faith must be observed, especially when the action taken is pursuant to a constitutionally enshrined state policy such as the taking of positive and effective measures against graft and corruption.[49] For this purpose, the President created the PTC. If a law neither burdens a fundamental right nor targets a suspect class, the Court must uphold the classification, as long as it bears a rational relationship to some legitimate government end.[50]
The same presumption of good faith and latitude in the
selection of what a truth commission must fact-find must be given to the
President. Too wide a
mandate would no doubt drown the commission in a sea of history, in the process
potentially impeding the more forward-looking aspects of its work.[51] To require the PTC to look into all
acts of large-scale corruption in all prior administrations would be to make
truth-telling overly comprehensive, resulting in a superficial fact-finding
investigation of a multitude of allegations without depth and insightful
analysis. The Philippines’ past experience with ad hoc investigating commissions has
been characterized by a focus on the truth regarding a key period or event in
our collective history and by a reasonable time frame for achieving their
purpose, i.e., the assassination of
Ninoy Aquino,[52] the 1989 coup d’état,[53] the 2003
Oakwood mutiny,[54] the
extra-judicial killings of media and activists,[55] and
private armed groups.[56]
Here, petitioners who are not even the injured
parties are invoking the equal protection clause. Their standing to raise this
issue is seriously contested in the Dissent of Justice Carpio Morales. They do not
claim in any manner that they are the subject of EO 1. Courts have warned that
the right of equal protection of the law “may not be perversely invoked” to
justify desistance by the authorities from the prosecution of a criminal case,
just because not all of those who are probably guilty thereof were charged.[57] This characterization would apply especially
if the ones who invoke the equal protection clause are those who are not
injured by the contested executive action.
EO 1 activities are at most initiatory investigations. There is no
preliminary investigation – much less prosecution – to be conducted under the
auspices of EO 1. The PTC is tasked to “collect, receive, review and evaluate
evidence related to or regarding the cases of large scale corruption,”[58] tasks that
constitutes nothing more than a general
inquiry into such reported
cases in the previous administration. Similar to an initiatory police
investigation, the PTC is tasked with general fact-finding to uncover the truth
of the events pertaining to an alleged unsolved crime. To strike down the PTC’s
mandate to investigate the previous administration simply because other
administrations are not immediately included is tantamount to saying that a
police investigation of a recent murder case is violative of equal protection
because there are other prior yet equally heinous murders that remain
uninvestigated and unsolved by the police.
What renders the plaint regarding an alleged violation of the equal
protection clause ridiculous is that it is being raised at the inception stage
for the determination of possible criminal liability, where threat to liberty
is most absent. In contrast, with respect to petitions to stop later and more
freedom-threatening stages in the determination of criminal liability such as
in formal criminal investigations and prosecutions, Philippine courts
instinctively reject the defense of a suspect or accused that the investigation
is illegitimate because others who may have also violated the relevant rule,
are not being investigated.[59] In Gallardo v. People,[60] the
Supreme Court held that there was no violation of the equal protection clause
when the Ombudsman recommended the filing of an information against a public
officer, even if it had previously dismissed sixteen (16) other cases of
similar factual circumstances:
The contention that petitioners’ right to equal protection of the law
has been transgressed is equally untenable. The equal protection clause
requires that the law operates uniformly on all persons under similar circumstances
or that all persons are treated in the same manner, the conditions not being
different, both in privileges conferred and the liabilities imposed. It allows
reasonable classification. If the classification is characterized by real
and substantial differences, one class may be treated differently from another.
Simply because the respondent Ombudsman
dismissed some cases allegedly similar to the case at bar is not sufficient to
impute arbitrariness or caprice on his part, absent a clear showing that he
gravely abused his discretion in pursuing the instant case. The Ombudsman
dismissed those cases because he believed there were no sufficient grounds for
the accused therein to undergo trial. On the other hand, he recommended
the filing of appropriate information against petitioners because there are
ample grounds to hold them for trial. He was only exercising his
power and discharging his duty based upon the constitutional mandate of his
office. Stated otherwise, the circumstances obtaining in the numerous
cases previously dismissed by the Ombudsman are entirely divergent from those
here existing. (Emphasis supplied)
Even on the assumption that the recommendation of the PTC is that acts
of graft and corruption were indeed committed by the Arroyo administration,
there is still a long way to go before the recommendation would ripen to
criminal prosecution, much less conviction. The Ombudsman must accept the
referral and conduct its own preliminary investigation. It must find probable
cause, then file the appropriate information. The Court must then preside over
a criminal trial at which the findings of the PTC have no conclusive effect on
the Court’s ultimate judgment, in the same way they treated the findings of the
Davide Commission in Kapunan v. Court of
Appeals:[61]
We do not wish to denigrate from the wisdom of the Davide Commission. However, its findings cannot be deemed
as conclusive and binding on this Court, or any court for that matter.
Nothing in R.A. No. 6832 mandates that the findings of fact or evaluations of
the Davide Commission acquire binding effect or otherwise countermand the
determinative functions of the judiciary. The proper role of the findings
of fact of the Davide Commission in relation to the judicial system is
highlighted by Section 1 (c) of R.A. No. 6832, which requires the Commission to
‘[t]urn over to the appropriate prosecutorial authorities all evidence
involving any person when in the course of its investigation, the Commission
finds that there is reasonable ground to believe that he appears to be liable
for any criminal offense in connection with said coup d'état.’
Whatever factual
findings or evidence unearthed by the Davide Commission that could form the
basis for prosecutorial action still need be evaluated by the appropriate
prosecutorial authorities to serve as the nucleus of either a criminal
complaint or exculpation therefrom. If a criminal complaint is indeed filed, the
same findings or evidence are still subject to the normal review and evaluation
processes undertaken by the judge, to be assessed in accordance with our
procedural law. (Emphasis and underscoring supplied)
Who Fears
the Truth?
Truth commissions operate on the premise that the
truth – if faced squarely, documented thoroughly, and acknowledged officially –
will reduce the likelihood that a repetition of government abuses will recur in
the future.[62] Official acknowledgment of the truth is extremely powerful
in the healing process, especially in an atmosphere previously dominated by
official denial.[63] Aside from their cathartic value, truth
commissions like the PTC can be useful in uncovering the causes and patterns that
led to such corruption, if it indeed existed, so that it may be prevented in
the future. The absence of any form of
accountability for public officials’ past misconduct of a grave nature and
massive scale will promote a culture of impunity. If the present administration does not demonstrate that it can
hold accountable persons who committed acts of corruption, such inability may
be interpreted as a “license to engage in further acts of corruption”[64]
and embolden public officials to steal from the government coffers more
often and in greater quantity.
The
Concurring Opinion of my esteemed colleague Justice Brion speaks to the fear
that the PTC would be a mind-conditioning commission such that if the
Ombudsman, the Sandiganbayan or the Supreme Court itself were to reject the
PTC’s findings, they would incur the ire of the people. The potential imminence
of public wrath would thus serve as a deterrent to rejection (and an incentive
to acceptance) of the findings of the PTC.
He regards the release of the conclusions of the PTC as a “priming”
mechanism upon the public, the Ombudsman and the Court to concur with the PTC’s
way of thinking. He objects to the PTC’s
appropriation of the word “truth” and assumes that all conclusions contrary to
the PTC’s would be more likely labeled as “untruth.” According to the
Concurring Opinion, because President Aquino is highly trusted by Filipinos,
then repeated “truth” from him or his government would be believed, wholesale
and with finality, by a credulous people.
This would thus, the Concurring Opinion states, bring undue pressure to
bear on the Ombudsman, the Sandiganbayan, and the Supreme Court: in the event
of any of these bodies “go[ing] against the Commission’s report,” the
consequent public perception that said body sided with an “untruth” would
compromise “the authority, independence, and even the integrity of these
constitutional bodies ... to the prejudice of the justice system.”[65] Justice
Brion theorizes that, in the light of the potential of the Commission’s influence
to “prime the public” and “go beyond the level of priming” in a way that “can
affect the public environment as well as the thinking of both the decision
makers in the criminal justice system and the public in general,” the PTC’s
primary role is “negated in actual application by the title Truth Commission
and its truth-telling function.”[66] According
to the Concurring Opinion, this renders the Commission an “unreasonable means
to a reasonable objective.”[67] I
believe these arguments betray a very poor view of the Filipino people and that
this view lies at the root of his “due process” problem.
Woven as binding
threads throughout the Concurring Opinion are a denial of an imbalance of power
and an unwillingness to see it shift in favor of a weaker group seeking redress
for the perpetration of injustice against its members. It is an oft-observed
phenomenon that when there are attempts to address past abuses committed by a
powerful group, and when steps are taken to rectify the systemic inequalities,
members of the powerful group decry the threats represented by these efforts to
rebalance the scales. In this manner
cries and accusations of reverse “discrimination” and “persecution” are raised
by persons who have to answer to the demands of those seeking the righting of
past wrongs. This reaction may be viewed as part of a larger pattern of
backlash, meant to both “lash back” against those perceived to be behind the
threat to the security of power and to return the system to the state it
occupied before attempts to seek redress were made.[68] In the
United States, this pattern is evident in various bills, policies and
initiatives – from the campaign rhetoric of a presidential contender,
immigration bills, and laws on language to university admissions policies –
that aim to challenge and minimize any gains made by disadvantaged and
subordinated groups over the past years.[69]
To be sure, the
differences both in history and circumstance, between the backlash experienced
by various disprivileged groups in the U.S. and the situation at hand, are not
insignificant. However, the parallels that can be drawn are striking and
unsettling. In our present context, it is the Filipino people – a great
majority of whom have been disprivileged by institutions that heavily favor the
ruling elite – that have suffered the damaging consequences of graft and
corruption. It is the Filipino people who have been wronged by past abuses and
systematic inequality; and it is they who now desire justice in truth. In the
Philippine context, the pre-redress state was that of an imbalance so great it
allowed the immunity of past high officials (the privileged class) from public
accountability; members from such group will try to return to that state by
seeking to continue eluding accountability.
By ignoring the
Filipino public’s experience as a witness to the frustration of attempts to
hold the past administration accountable for its reported misdeeds, and framing
it instead as a group that stands ready to convict past officials at the bar of
public opinion, the Concurring Opinion turns social reality on its head. It
minimizes the status of the Filipino people as a group wronged by the imbalance
of power and the betrayal of public trust. It ignores the need of this group to
see these rectified. It ascribes an excess of strength to public opinion and
grounds its logic on fear of the public acting as an angry mob. It does not
attribute the proper importance to the active, participatory role the Filipino
people desire to take in the process of dealing with the possible misdeeds of
the past.
Implicit in Justice
Brion’s Concurring Opinion are the roles the public is expected to take: that
of passive observer, receiver of information and susceptible to the branding of
“truth” and its repetition;[70] and
that of a source of pressure. In the latter role, the Concurring Opinion
envisions the Filipino people, having adjudged guilt according to what it was
told by the PTC and the media, wielding the threat of public disapproval
against the Ombudsman and the judiciary so as to shift the burden to these
bodies to demonstrate proof and the basis for their actions if they were to
disagree with the findings of the PTC.[71]
This is gross
speculation. It does not follow that repetition of information guarantees the
acceptance of its veracity; to make that logical leap in this instance is to
insinuate that repetition would rob the Filipino people of the capacity to make
distinctions between what to accept and what to reject. Neither does it follow
that the Ombudsman and the judiciary must inevitably accede to public clamor,
or that the entry of public opinion into the discussion would cause a
“qualitative change in the criminal justice system” and weaken “reliance on the
law, the rules and jurisprudence.”[72]
The public does not
need sheltering from the “potentially prejudicial effects of truth-telling.” Nor is the public to be viewed as unwitting
victims to “a noisy minority [who] can change the course of a case simply
because of their noise and the media
attention they get.”[73] The
Filipino people have a genuine stake in the addressing of abuses possibly
committed by the past administration and are entitled to information on the
same.
Striking down efforts
to give the public information regarding the misdeeds of powerful officials
sends a signal of the continuing dominance of “might makes right” and the
futility of attempting to hold public officials accountable for their actions.
Conversely, by carrying out investigations of the past actions of public
officials, and by holding up its results to public scrutiny and criticism, the
government reinforces respect for the rule of law and educate the people on the
nature and extent of past wrongdoing.[74]
Moreover, the characterization of public discussion – the “second forum” – as
an inappropriate venue for the release of the PTC's findings devalues the
utility and meaning that truth possesses for the aggrieved group, and
denigrates the need for the construction and repair of the group’s collective
memory. Indeed, the Concurring Opinion implies that the PTC's influence on
public perceptions – and consequently the shaping of the collective memory of
Filipinos – will only instigate more injustice.
To the contrary, the
need to shape collective memory as a way for the public to confront injustice
and move towards a more just society should not be diminished or denied. The
Concurring Opinion disregards the significance to justice of what is seen and
remembered and eliminates the vital role of the people themselves in
“constructing collective memories of injustice as a basis for redress.”[75] This disregard need not prevail.
There is much value to be found in memory, as Hom and Yamamoto recounted:
For many of the 10,000 Philippine citizens tortured and murdered for their political opposition to the former Ferdinand Marcos regime, reshaping memory became both a means to challenge injustice and a psychological end in itself. Consider the anguish of the family of Archimedes Trajano, a college student who posed a mildly critical question to Marcos's daughter at a forum and was whisked away, tortured for days, and thrown off a building. For his family, and thousands of others, there existed the need to create a new memory beyond the excruciating story of personal loss and suffering – a memory that included a sense of social justice and government accountability. To write this new memory collectively, many families, lawyers, bureaucrats risked much in the Philippines to aid the thirteen-year human rights multidistrict class action litigation in the United States.[76]
While it is true that public
opinion will be influenced by the information that the public can access, it
would be specious to claim that the possible turning of the tide of public
opinion against those subject to investigation is tantamount to a conviction
before the court of the Filipino people. To declare the Filipino public
undeserving of the truth on the grounds of its supposed lack of capacity to
deal with the truth and its alleged susceptibility to the “priming” effect of
the PTC's findings, while ignoring the public’s need to know the truth and to
seek redress for wrongs, is to deny the public the means to move towards social
justice.
In Razon v. Tagitis,[77] the
Court, speaking through no less than Justice Brion himself, affirmed the grant of
the Writ of Amparo petitioned by the wife of Engineer Morced Tagitis, and
touched on the “the right of relatives of the disappeared persons and of the
society as a whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the investigation,” as
expressed in the United Nations Declaration on the Protection of All Persons
from Enforced Disappearance. It would be
inconsistent for this Court not to afford the same level of openness and
accountability in enforced disappearances of individuals to allegations of
criminal acts of massive corruption committed against the entire Philippine
nation, under the fundamental premise of Razon v. Tagitis that the
Filipino have the right to know and can handle the truth. The public’s right to
know[78] and the
concomitant public policy of full public disclosure[79] support
the fact-finding mandate of the PTC to uncover the truth of these allegations
and reports in the Arroyo administration.[80] Justice
Brion’s Concurring Opinion does not lay down enough legal basis for his
argument that the PTC has to be struck down due to the possibility of bias to
be created in the public mind through public reports of the PTC and the
inordinate pressure this bias will bring on the Ombudsman and the judiciary. The Philippine judiciary has had more than a
century’s worth of experience dealing with judicial cases and criminal
investigations under the harsh light of public scrutiny, yet not one case or
investigation has been stopped on the simple basis of the public forming a
strong opinion on them and voicing this opinion in a loud manner.[81] A judge
is expected to act impartially and independently, under any set of
circumstances, with or without the public as witness. This is the role of a
judge and if the neutrality required of a judge is not maintained, the fault
lies not in the creation of a fact-finding commission that started the search
for truth, but in the judge’s character. To this end, the statement of the
Court in People v. Sesbreño[82] on
undue publicity and its effect on the right of the accused is worth recalling:
x x x Besides, a thorough review of the records yields no
sufficient basis to show that pervasive publicity unduly influenced the court's
judgment. Before we could conclude that appellant was prejudiced by hostile
media, he must first show substantial proof, not merely cast suspicions. There
must be a showing that adverse publicity indeed influenced the court's
decision, as held in Webb v. De Leon,
247 SCRA 653 (1995) and People v. Teehankee,
249 SCRA 54 (1995).
“[T]o
warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by
the barrage of publicity.”
“Pervasive publicity is not per se prejudicial
to the right of an accused to fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge and impaired
his impartiality. For one, it is impossible to seal the minds of the members of
the bench from pre-trial and other off-court publicity of sensational criminal
cases. The state of the art of our communication system brings news as they
happen straight to our breakfast tables and right to our bedrooms. These news
form part of our everyday menu of the facts and fictions of life. For another,
our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are
overly protected from publicity lest they lose their impartiality. . . . Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties
to a litigation. Their mere exposure to publications and publicity stunts does
not per se infect their impartiality.
“At
best appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity,
there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar,
the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and
trial of his case. The totality of circumstances of the case does not prove
that the trial judge acquired a fixed opinion as a result of prejudicial
publicity which is incapable of change even by evidence presented during the
trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden. (Italics in the original)”
Absent
a persuasive showing by the appellant that publicity prejudicial to his case
was responsible for his conviction by the trial judge, we cannot accept his bare
claim that his conviction ought to be reversed on that ground.
Justice Cardozo, the Judge and Society
In his Concurring Opinion,
Justice Brion quotes Justice Benjamin Cardozo of the United States Supreme Court
in the context of “what the repeated” “truth from a generally trusted
government can achieve” and “the effect of outside influence on judging.” The
Concurring Opinion uses quotations from Justice Cardozo's book, The Nature
of the Judicial Process, to drive home its points on how “the Commission's
influence can go beyond the level of priming and can affect the public
environment as well as the thinking of both the decision makers in the criminal
justice system and the public in general” and on the “potential prejudicial
effects of truth-telling.”[83]
The source of the
quotations featured in Justice Brion's Concurring Opinion is entitled “Adherence
to Precedent. The Subconscious Element in the Judicial Process. Conclusion,”
fourth in a series of lectures delivered by Justice Cardozo at Yale University
and subsequently published as a book. In the lecture, Justice Cardozo spoke
about the gaps left by absence of precedents in systems of law, the development
of principles to address these gaps, and adherence to the rule of precedent.
With regard to the latter he expressed his belief that “when a rule, after it
has been duly tested by experience, has been found to be inconsistent with the
sense of justice or with the social welfare, there should be less hesitation in
frank avowal and full abandonment.”[84] Building on this principle, he
discussed the rule of precedent in application, and from there went on to
survey judicial methods, comparing “static” with “dynamic” precedents,
narrating his personal struggles first to find certainty, then to reconcile
himself with uncertainty.
Throughout all this,
one forms the image of a man fully aware of the doubts and tensions that beset
a judge, keenly cognizant of the limitations of his position and the temporal
nature of even those principles of whose development he earlier spoke: “I have
grown to see that the process in its highest reaches is not discovery, but
creation; and that the doubts and misgivings, the hopes and fears, are part of
the travail of mind, the pangs of death and the pangs of birth, in which
principles that have served their day expire, and new principles are born.”[85]
Justice Cardozo was
also conscious of the close intertwining between a judge's philosophy and the judicial
process, in his analysis of Roosevelt's statement on the philosophy of judges,
the timeliness of their philosophy, and the impact of the same on the decisions
of the courts.[86]
It is due to the limits of human nature, Justice Cardozo conceded, that the
ideal of “eternal verities” is beyond the reach of a judge; thus it is
impossible to completely eliminate the “personal measure of the [judicial]
interpreter.” Of such personal measures and the signs of the times he wrote: “My duty as judge may be to objectify in
law, not my own aspirations and convictions and philosophies, but the
aspirations and convictions and philosophies of the men and women of my time.
Hardly shall I do this well if my own sympathies and beliefs and passionate
devotions are with a time that is past.”[87]
It is clear that
Justice Cardozo did not expect a judge to cut himself completely off from the
pressures, forces, and beliefs of his society – far from it. “We may figure
the task of the judge, if we please, as the task of a translator, the reading
of signs and symbols given from without,”[88] he went
on to say. Indeed, the first lines of the paragraph quoted in Justice Brion's
Concurring Opinion[89]
state: “I have no quarrel, therefore,
with the doctrine that judges ought to be in sympathy with the spirit of their
times.”[90]
Justice Cardozo did not regard the influence of “the truth without us” on the
shaping of individual beliefs as harmful in and of itself, nor did he say that
judges must be completely free of outside influences. He spoke of the effect
the thinking of the group could play in the thinking of the individual, and how
these factors and influences, as part of human nature, might play out in the
judicial process, without considering such effect as a problem. He wrote,
following his quoting of James Harvey Robinson, that “[t]he training of the
judge, if coupled with what is styled the judicial temperament, will help in
some degree to emancipate him from the suggestive power of individual dislikes
and prepossessions. It will help to broaden the group to which his subconscious
loyalties are due. Never will these loyalties be utterly extinguished while
human nature is what it is.”[91]
Accepting fully the
flaws inherent in human nature and the “eccentricities of judges,” optimistic
in the belief that “because [the flaws] are not only there but visible, we have
faith that they will be corrected,”[92] Justice
Cardozo concluded with words on the temporal nature of the work of a
judge: “The work of a judge is in one
sense enduring and in another sense ephemeral. What is good in it endures. What
is erroneous is pretty sure to perish.” It was in this sense – the building of
new structures upon good foundations, the rejection of errors as they are
determined by the years – that Justice
Cardozo wrote the lines that constitute the second excerpt quoted in Justice
Brion's Concurring Opinion. Preceding Justice Cardozo's quoting of Henderson,
he wrote: “Little by little the old doctrine is undermined. Often the
encroachments are so gradual that their significance is at first obscured.
Finally we discover that the contour of the landscape has been changed, that
the old maps must be cast aside, and the ground charted anew.”[93] It was
change – in the spirit of the times, in the principles underpinning the judicial
process, in the personal and very human beliefs of individual judges – that
Justice Cardozo spoke of in this passage. It does not speak of damage
wrought by societal influence, nor of destructive or prejudicial effects due to
shifts in public opinion and belief, but rather of how law develops and
changes. Indeed, Justice Cardozo ends on a note rich with hope in change:
Ever in the making, as law develops through the centuries, is this new faith which silently and steadily effaces our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors. They may work a little confusion for a time. In the end, they will be modified or corrected or their teachings ignored. The future takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.[94]
Truly, the role of the
judge is to do his utmost to exercise his independence, even against
overwhelming pressure, to uphold the rule of law. But simply because the
possibility exists that the judiciary may go along with a public that is hungry
for the truth does not mean we do not allow the truth to be found out. As we
can see from a reading of Justice Cardozo's lecture, we need not fear societal
influences and forces. The “truth without us” does not negate the validity of
“the truth within.”
Appropriateness of Establishing a “Truth” Commission
In his Concurring Opinion, Justice Brion raises the points that: (1)
the term “truth commission” is usually reserved for a body “investigating the
human rights violations that attended past violence and repression, and in some
instances for a body working for reconciliation in society,” and (2)
reconciliation is not present as one of the goals of the PTC[95]. These
two points, according to the Concurring Opinion, further distance the PTC from
other truth commissions; the latter point in particular thereby “remov[es] a
justification for any massive information campaign aimed at healing divisions
that may exist in the nation.”[96]
To arrive at this
conclusion is to place unwarranted restrictions on the definitions and
functions of bodies bearing the name of “truth commission.” While many truth
commissions have indeed been established in the wake of a violent conflict
leading to a transition between two regimes, this does not preclude that truth
commissions in some countries may be used for circumstances that do not duplicate
the violence of the conflict or the character of the regime transition in other
countries. The needs of various countries differ and consequently determine a
great deal of variation in the fundamental goals, purposes, and characteristics
of the bodies they establish, to deal with the abuses of previous
administrations.[97]
David Crocker puts forth the view that even nations other than new democracies
may see the need for ways to “reckon with past wrongs,” and classifies these
other nations into three broad categories: (1) post-conflict societies aspiring
to transition to democracy, but occupied with pressing security issues; (2)
authoritarian and conflict-ridden societies; (3) mature democracies that are
reckoning with abuses their own governments may have committed in the past.[98] The
Philippine context does not, therefore, close off the avenue of a truth
commission as a permissible means to address past abuses. Likewise, a
definition that expects reconciliation as a requisite goal for the PTC[99] is an
unduly narrow definition.
Another argument raised
in Justice Brion’s Concurring Opinion refers to the EO 1’s creation of the PTC
as a “shortcut to the emergence of truth”[100] – one
which should not be taken as it “bypass[es] processes established by the
Constitution and the laws.” Because it deems “the international experiences
that give rise to the title Truth Commission” as not applying to the present
Philippine situation and claims there is no need for “quick transitional
justice,” the Concurring Opinion reasons that “there is no need to resort to...
institutions and mechanisms outside of those already in place.”[101] In other words, only the Ombudsman and the
judiciary have the rightful duopoly on truth-finding and truth-telling in graft
and corruption cases.
Yet the justifications
for the use of truth commissions are not confined only to certain post-conflict
scenarios or the absence of functioning judicial systems. Even in some contexts
where there is a judicial system already in place, a truth commission may be used
by the government as a redress mechanism.[102] There
are numerous reasons prosecution and other means usually undertaken within the
judicial system may not be viable. There may be too many incidents to
prosecute; due to the atmosphere of secrecy in which abuses took place,
evidence may be insufficient for a criminal conviction.[103]
Current political policies, as well as concerns about vengeance and the
resulting societal tensions, may also make prosecution difficult or impossible.[104] The
element of time may also be a significant factor.[105] In
addition, some of the aims of truth commissions may be outside the purview of
courts, as in the case of giving an account of events that transpired: “A court
is not supposed to give an account about the circumstances of the historic,
economic, and political reasons for a crime, nor about the involvement of
different groups in the society or political influence from the outside which
may have encouraged the perpetrators... Giving an account, providing
explanations, and offering recommendations for a better future are exactly the
purposes of a truth commission.”[106] Means
of redress attempted within the confines of the judicial system may also not be
viable precisely because of elements influencing the system itself. Officials
allied with the previous regime may also still retain power, and through
various means hinder proceedings undertaken within the judicial system.
This last point
regarding situations wherein the former regime still possesses a certain degree
of influence over the system is especially salient in the light of state
capture. According to the World Bank, state capture may be treated as akin in
essence to regulatory capture as it is used in economics literature: state
regulatory agencies are considered “captured” when they “regulate businesses in
accordance with the private interests of the regulated as opposed to the public
interest for which they were established.” State capture, then, encompasses the
state’s “capture” as evinced in the “formation of laws, rules, and decrees by a
wider range of state institutions, including the executive, ministries and
state agencies, legislature, and the judiciary.”[107] State
capture alters the “rules of the game” in favor of those who have captured the
state. While state capture encompasses a variety of situations, its fundamental
characteristic is that it is channeled through illicit, informal, and
non-transparent means of providing private gains to public officials as
incentives for these very officials to influence the formation of laws
and prejudice the rules to these captors’ narrow advantage.[108] If
public officials are perceived to have been captured, the credibility of
official processes – such as rendering decrees, forming laws, and shaping
policies – will suffer. It is not difficult to see how state capture may render
traditional means such as prosecution completely ineffective against those who
may have captured the state.
To that end, S. Sandile
Ngcobo writes:
...many transitional
governments do not represent a complete break with the past. In some
cases, members of the police and security forces that were responsible for
heinous acts under the old regime remain in influential positions. Their
numbers and their continued control of deadly weapons provide them with the
capability to undermine the peaceful transition. Their continued influence may
threaten the new democratic order, making prosecutions both undesirable and
impractical. Given these realities, the emerging democracy may be compelled to
look for alternative approaches. At this point, a truth commission may become
an attractive option.[109]
(Emphasis supplied.)
It is true that in the
Philippine context we may not be speaking of a past regime’s continuing control
of guns and armed men; but power, in any form, is power. In any event, the
appropriateness of naming the PTC as a “truth commission” is not a legal
argument for its invalidation, as Justice Brion himself conceded.
Unlawful
Discrimination is not an Argument of the Powerful; the Phenomenon of State
Capture
Unlawful discrimination, as shown in
American cases on equal protection claims in criminal investigation and
prosecution, is not inherently an argument of the powerful, but that of the
traditionally oppressed. This is because the politically powerful, as in the
past administration, still contain all the advantages that such past formal
political power begot. It is the height of incongruity that an administration
that held power for nine years, successfully evaded all congressional investigations,
and effectively invoked all legal defenses from investigation for all those
nine years will be extended the same immunity that the former presidential
office gave it. The Philippines will be the laughing stock of the world,
incapable of correcting any error, unable to erase the perception by many that
it is a country where the law only serves the ends of the powerful.
If evidence will later turn out, congruent to the theory of
some quarters as intimated by the Solicitor General during the oral arguments,
that the reason that former President Arroyo and her closest relatives and
officials have not been prosecuted by the present Ombudsman is because the
Ombudsman is not independent but is acting out of loyalty for her appointment
to the position, then such evidence reinforces the immoral political lesson
that the misuse of the law and the power of appointment can be purposively
committed to create a strong shield of immunity from accountability. With or
without such evidence, however, and especially because the belief in the
non-independence of the Ombudsman is openly expressed by people, the only way
for this Court to not abet such a plan if such a plan indeed existed on the
part of Arroyo administration, is to allow the people to exact accountability
upon those from whom accountability is due. It must let the President fulfill
his promise to the people, and if the President believes that the best way for
him is to start from fact-finding into the past administration, then he must be
allowed to do so without unconstitutional judicial restraint.
The “Least Dangerous” Branch
The majority took pains to reiterate the honorable role of the Court
in exercising the constitutional and awesome power of judicial review, amidst the
recent string of rebukes against the initiatives of the legislature and elected
executives – democratically elected representatives of the people.
In
the seminal book “The Least Dangerous
Branch: The Supreme Court at the Bar of Politics,” Alexander M. Bickel
expounded on the “counter-majoritarian difficulty”[110] of
judicial review exercised by an unelected court to declare null and void an act
of the legislature or an elected executive in this wise:
The root difficulty is that judicial review is a counter-majoritarian force in our system. x x x when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens. It is an altogether different kettle of fish, and it is the reason the charge can be made that judicial review is undemocratic.[111]
Bickel’s “counter-majoritarian
difficulty” is met by the argument that the Court’s duty is to uphold the
Constitution, that in determining the “boundaries of the great departments of
government” is not to assert superiority over them but merely to assert its
solemn and sacred obligation to determine conflicting claims of authority under
the Constitution.[112]
If the Court is to
avoid illegitimacy in its actions as suggested by Professor Bickel, then it
must ensure that its discharge of the duty to prevent abuse of the President’s
executive power does not translate to striking down as invalid even a
legitimate exercise thereof, especially when the exercise is in keeping with
the will of the people.[113]
Invalidating the PTC is an unconstitutional denial of the legitimate exercise of
executive power and a stinging reproach against the people’s sovereign right.
Sadly, there is a wide fissure between the public’s hunger for governance
justice through the successful delivery by President Aquino of his promise to
get behind the stories on corruption of the former administration, and the
Court’s confirmation of an alleged violation of former President Arroyo’s equal
protection right. To emphasize, it is not even former President Arroyo who is
officially raising this matter before the Court.
Rather than exercise
judicial restraint, the majority has pushed the boundaries of judicial activism
bordering on what former Chief Justice Puno once described as an imperial
judiciary:
“[T]he Court should strive to work out a
constitutional equilibrium where each branch of government cannot dominate each
other, an equilibrium where each branch in the exercise of its distinct power
should be left alone yet bereft of a license to abuse. It is our hands
that will cobble the components of this delicate constitutional
equilibrium. In the discharge of this duty, Justice Frankfurter requires
judges to exhibit that ‘rare disinterestedness of mind and purpose, a freedom
from intellectual and social parochialism.’ The call for that quality of “rare
disinterestedness” should counsel us to resist the temptation of unduly
inflating judicial power and deflating the executive and legislative powers.
The 1987 Constitution expanded the parameters of judicial power, but
that by no means is a justification for the errant thought that the
Constitution created an imperial judiciary. An imperial judiciary
composed of the unelected, whose sole constituency is the blindfolded lady
without the right to vote, is counter-majoritarian, hence, inherently inimical
to the central ideal of democracy. We cannot pretend to be an imperial
judiciary for in a government whose cornerstone rests on the doctrine of
separation of powers, we cannot be the repository of all remedies.”[114]
(Emphasis supplied)
When
forgotten, history does have a tendency to repeat itself.[115]
Unless an official and comprehensive narrative of findings of fact on
large-scale corruption that reportedly occurred during the previous
administration is made public, the country may find the same alleged patterns
of corruption repeating themselves. Worse, public officials subject of the
investigation – and who may actually be guilty – with continued possession or
access to power may spin these events and cause a revision of our history to
make those allegations of wrongdoing appear nothing more than unsubstantiated
rumors whispered in secret and perpetuated by bitter opponents. The PTC is a
step towards national healing over a sordid past. The Court must allow the nation
to move forward and the people’s faith in a just and accountable government to
be restored.
MARIA LOURDES P. A. SERENO
Associate Justice
[1] Decision, at p. 43.
[2] This is discussed in the part of this
Opinion on “The Majority Decision’s Turn-Around.”
[3] Decision at p. 3.
[4] Id.
[5] Id. at p. 24.
[6] Id. at p. 23.
[7] Id. at p. 25.
[8] Decision at p. 35.
[9] Id. at 3.
[10] 5 U.S. 137
(1803).
[11]
Decision at p. 3.
[12] Decision at p. 24.
[13] The majority Decision clarifies that
investigation of deceased presidents, cases which have already prescribed and
simultaneous investigations of previous administration are not expected of the
PTC. (Decision at p. 37)
[14] Decision at p. 37.
[15] Decision at p. 43.
[16] Id. at pp. 37-38.
[17] I submit that the majority Decision
must have intended to refer to all officials of past presidents, and not only
to the Presidents themselves.
[18] Unless the Court is impliedly saying that
the reported crimes that are the earliest in point of time are the ones that
must be prioritized, i.e., reported crimes committed during the administrations
of Presidents Corazon Aquino and Fidel Ramos. But to impose this standard is
the height of legal unreasonableness and the worst form of judicial overreach.
[19] G.R. No. L-63915, 29 December 1986, 146 SCRA 446.
[20]
Decision at p. 36.
[21] 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.
[22] G.R. No. 189698, 22 February 2010.
[23]
Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur.
2d, Vol. 16(b), p. 371; Hunter v. Flowers,
43 So. 2d 435 cited in Am. Jur. 2d, Vol. 16(b), p. 370; Clements v. Fashing, 457 U.S. 957.
[24] Decision at p. 36.
[25] Despite the attempt of the majority
Decision to make it appear that it is not unreasonable in requiring an
all-comprehensive coverage when it says that it does not require the
impossible, the fact that it keeps on insisting that all past administrations
must be included in the coverage of EO 1 give basis for the opinion that the
Decision indeed requires coverage spanning at least 6 decades, and even
perhaps, a century. See Dissent of J. Carpio.
[26]
Decision, at pp. 29-40.
[27]
Decision at p. 39, citing McDonald
v. Board of Election Com’rs of Chicago, 394 US 802 cited in AM. Jur 2d,
note 9.
[28] G.R. No. L-3538,
28 May 1952, 91 Phil. 371.
[29] G.R. No. L-3538, 28 May 1952, 91
Phil. 371.
[30] G.R. No. 163583,
20 August 2008, 562 SCRA 511.
[31] “All
in all, the classification freeze
provision addressed Congress’s administrative concerns in the
simplification of tax administration of sin products, elimination of potential
areas for abuse and corruption in tax collection, buoyant and stable revenue
generation, and ease of projection of revenues. Consequently, there can be no denial of the equal protection of the
laws since the rational-basis test is amply satisfied.” (British American
Tobacco v. Camacho, id.)
[32] Matiangai Sirleaf, Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the Truth & Reconciliation Commission for Liberia, 21 Fla. J. Int’l L. 209, 213 (2009), citing E. Gyimah-Boadi, Executive Director, CDD-Ghana, Paper Presentation at the British Hall Council: Reconciliation: Comparative Perspectives, 7 (June 13, 2005).
[33] Kristin Bohl, Breaking the Rules of Transitional Justice, 24 Wis. Int’l L. J. 557, 473 (2006).
[34] G.R. L-25246, 12 September 1974, 59
SCRA 54.
[35] G.R. L-25246, 12 September 1974, 59
SCRA 54.
[36] G.R. L-25246, 12 September 1974, 59 SCRA 54.
[37]
United States v. Haggerty, 528 F.Supp. 1268, 1291 (D.Colo.1981).
[38]
United States v. Armstrong, 517 US 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687
(1996).
[39] United
States v. Goodwin,
457 U.S. 368, 380, n. 11 (1982).
[40] McLaughlin
v. State of Fla., 85 S.Ct. 283 (1964).
[41]
Application of Finn,
356 P.2D 685 (1960).
[42]
United States v. Wayte, 470 US 598, 608 (1995).
[43] Bell
v. State,
369 So.2d 932 (1979).
[44]
United States v. Armstrong, supra,
517 U.S. 456, 465 (1996).
[45]
United States v. Furman, 31 F.33 1034, 1038 (10th Cir. 1994),
quoting United States v. Salazar, 720
F.2d 1482, 1487 (10th Cir. 1983).
[46]
United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983).
[47]
United States v. Hunter, 13 F.Supp.2D 586, 10 June 1998.
[48] G.R. No. 121777,
24 January 2001, 350 SCRA 163.
[49] Constitution, Article II,
Section 27.
[50] Ang
Ladlad LGBT Party v. COMELEC, G.R. No. 190582, 08 April 2010.
[51] Ariel Meyerstein, Transitional Justice and Post Conflict
Israel/Palestine: Assessing the Applicability of the Truth Commission Paradigm,
38 Case W. Res. J. Int’l. L. 281, 330 (2006-2007).
[52] Agrava Commission, Presidential
Decree No. 1886 (14 October 1983).
[53] Davide Commission, Administrative
Order No. 146 (06 December 1989) and Republic Act No. 6832 (05 January 1990).
[54] Feliciano Commission, Administrative
Order No. 78 (30 July 2003).
[55] Melo Commission, Administrative Order
No. 173 (23 March 2007).
[56] Zeñarosa Commission, Administrative
Order No. 275 (09 December 2009).
[57]
Reyes v. Pearlbank Security, Inc., G.R. No. 171435, 30 July 2008, 560
SCRA 518.
[58] Executive Order No. 1, Section 2 (b).
[59] “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.” (People v. Dumlao, G.R. No. 168918, 02 March 2009, 580 SCRA
409).
[60] G.R. No.
142030, 21 April 2005, 456 SCRA 494.
[61] G.R. Nos. 148213-17, 13 March 2009,
581 SCRA 42.
[62] Rose Weston, Facing the Past, Facing
the Future: Applying the Truth Commission Model to the Historic Treatment of
Native Americans in the United States, 18
Ariz. J. Int’l & Comp. L. 1017, 1018-1019 (2001).
[63] Jocelyn E. Getgen, Untold Truths: The
Exclusion of Enforced Sterilizations From the Peruvian Truth Commission’s Final
Report, 29 B.C.
Third World L.J. 1, 34 (2009).
[64] James Thuo Gathii, Defining The
Relationship of Human Rights to Corruption, 31 U. Pa. J. Int'l L. 125, 170 (2009).
[65] Concurring Opinion of
Justice Brion, p. 16
[66] Id.
[67] Id. at p. 22
[68] Keith Aoki, The Scholarship of
Reconstruction and the Politics of Backlash, 81
Iowa L. Rev p. 1468, July 1996.
[69] Id.
[70] Justice Brion’s
Concurring Opinion, pp. 13, 17-18
[71] Id. at p. 15
[72] Id. at p. 27
[73] Brion, supra at p. 27.
[74] Stephen Landsman, Alternative
Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions,
Law & Contemp. Probs ., Vol.
59, No. 4, p. 88 (1997).
[75] Sharon K. Hom and Eric K. Yamamoto, Collective Memory, History, and Social
Justice, 47 UCLA Law Review
1747 (2000), p. 1764.
[76] Hom and Yamamoto, supra at p. 1759.
[77] G.R. No. 182498,
03 December 2009, 606 SCRA 598.
[78] The right of the people to information
on matters of public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may
be provided by law. (Constitution,
Article III, Section 7)
[79] 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. (Constitution, Article II, Section 28)
[80] “The policy of full public disclosure
enunciated in above-quoted Section 28 complements the right of access to information
on matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if
nobody demands.
“The
policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece.
It is a mandate of the State to be accountable by following such policy. These
provisions are vital to the exercise of the freedom of expression and essential
to hold public officials at all times accountable to the people.” (Province of North Cotabato v. GRP Peace
Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 &
183962, 14 October 2008, 568 SCRA 402; emphasis supplied)
[81] In every case, a judge shall endeavor
diligently to ascertain the facts and the applicable law unswayed by partisan
interests, public opinion or fear of criticism. (Barillo v. Lantion, G.R. No. 159117 & A.M. No. MTJ-10-1752, 10
March 2010).
[82] People v. Sebreño, G.R. No. 121764, 09 September 1999, 314 SCRA 87.
[83] Justice Brion’s Concurring Opinion,
at pp. 18-19.
[84] Benjamin N. Cardozo, The Nature of the Judicial Process (New
Haven: Yale University Press, 150 (1921).
[85] Cardozo, supra at pp. 166-167.
[86] Roosevelt as cited in Cardozo, id.,
at p. 171.
[87] Id., at pp. 172-173.
[88] Cardozo, supra at p. 174
[89] Concurring Opinion of Justice Brion,
p. 18.
[90] Cardozo, supra at p. 174.
[91] Id. at p. 176.
[92] Id. at p. 177.
[93] Cardozo, supra at p. 178.
[94] Id. at p. 179.
[95] Justice Brion’s
Concurring Opinion, pp. 5-6.
[96] Id. at p. 6.
[97] Juan E. Mendéz, Accountability for Past Abuses, 19 Hum. Rts. Q2, 255-282 (1997); Charles
O. Lerche III, Truth Commissions and National Reconciliation: Some Reflections
on Theory and Practice <http://www.gmu.edu/academic/pcs/LERCHE71PCS.html>
(accessed 7 November 2010).
[98] David Crocker,
Reckoning with Past Wrongs: A Normative Framework, 13 Ethics & International Affairs, 43-64 (1999).
[99] Brion, supra at p. 6.
[100] Id. at p. 20
[101] Id. at p. 33
[102] Angelika Schlunck,
Truth and Reconciliation Commissions, 4 ILSA
J. Int’l & Comp. L, 415, 2.
[103] S. Sandile Ngcobo,
Truth, Justice, and Amnesty in South Africa: Sins from the Past and Lessons for
the Future, 8 IUS Gentium, 6-7.
[104] Landsman, supra note
72.
[105] Neil J. Kritz, Coming
to Terms with Atrocities: A Review of Accountability Mechanisms for Mass
Violations of Human Rights, 59 Law &
Contemp. Probs. 4, 127-152.
[106] Schlunck, supra at pp.
419-420.
[107] World Bank,
Anticorruption in Transition: A Contribution to the Policy Debate (2000)
<http://info.worldbank.org/etools/docs/library/17506/contribution.pdf>
(accessed on 7 November 2010).
[108] World Bank, supra at
pp. 1-2.
[109] Ngcobo, supra note 103
at p. 7.
[110] “The question at the heart of the
anomaly is why a democracy – a political system based on representation and
accountability – should entrust the final, or near final, making of such highly
significant decisions to judges – unelected, independent and insulated from the
direct impact of public opinion.” (Stephen G. Breyer, Judicial Review: A Practising Judge’s Perspective, 19 Oxford
Journal of Legal Studies 153 [1999], cited in Vicente
V. Mendoza, Judicial Review of Constitutional Questions, 261 [2004]
[111] Alexander M. Bickel,
The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 16-17 (1962).
[112] Decision, at p. 42.
[113]
Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R. No.
170516, 16 July 2008, 558 SCRA 468.
[114] Puno, Concurring and Dissenting
Opinion in Francisco v. House of
Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44, 211.
[115] Getgen, supra note 63, at p. 33.