Thursday, December 9, 2010

Justice Carpio-Morales on "equal protection clause"


G.R. No. 192935, Louis “Barok” C. Biraogo v. The Philippine Truth Commission of 2010,
December 7, 2010


x x x.


The ponencia holds that the previous administration has been denied equal protection of the laws. To it, “[t]o restrict the scope of the commission’s investigation to said particular administration constitutes arbitrariness which the equal protection clause cannot sanction.”[18]

I find nothing arbitrary or unreasonable in the Truth Commission’s defined scope of investigation.

In issues involving the equal protection clause, the test developed by jurisprudence is that of reasonableness, which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the

purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.[19]

The classification rests on
substantial distinction

Reasonableness should consider the nature of the truth commission which, as found by the ponencia, emanates from the power of the President to conduct investigations to aid him in ensuring the faithful execution of laws. The ponencia explains that the Executive Department is given much leeway in ensuring that our laws are faithfully executed. It adds:

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission, and the Zenarosa Commission. There being no changes in the government structure, the Court is not inclined to declare such executive power as non-existent just because the direction of the political winds ha[s] changed.[20] (underscoring supplied)

This Court could not, in any way, determine or dictate what information the President would be needing in fulfilling the duty to ensure the faithful execution of laws on public accountability. This sweeping directive of the ponencia to include all past administrations in the probe tramples upon the prerogative of a co-equal branch of government.

The group or class, from which to elicit the needed information, rests on substantial distinction that sets the class apart.

Proximity and magnitude of incidents

Fairly recent events like the exigencies of transition and the reported large-scale corruption explain the determined need to focus on no other period but the tenure of the previous administration.

The proximity and magnitude of particular contemporary events like the Oakwood mutiny and Maguindanao massacre similarly justified the defined scope of the Feliciano Commission and the Zenarosa Commission, respectively. As applied to the two commissions whose objective the ponencia itself recognizes, the same test of reasonableness rejects the absurd proposition to widen their respective scopes to include all incidents of rebellion/mutiny and election-related violence since the First Republic. Certainly, it is far removed not just from the present time but also from logic and experience.

This explained need for specific information removes the arbitrariness from recognizing the previous administration as a distinct class of its own.

Without a complete and definitive report

The ponencia brushes aside the proffered reasons for limiting the investigation to the previous administration since “earlier administrations have also been blemished by similar widespread reports of impropriety.”[21]

The ponencia employs the premise that previous administrations have all been blemished by reports of improprieties similar[22] to those of the previous administration. Whether reports of such nature exist is not borne by the pleadings submitted by petitioners who allege unequal protection. Without any factual basis, the statement is inconclusive and, at best, arguable.

Assuming arguendo that comparable reports of large-scale graft and corruption existed during administrations previous to the last, petitioners do not allege that information regarding these reported activities is not yet available in the Executive Department. On the contrary, respondents disclose that the Presidential Commission on Good Government and the Saguisag Commission have already probed into certain anomalous transactions that occurred during the Marcos and Ramos administrations, respectively. During past administrations, parallel functions had been discharged by the Integrity Board, Presidential Complaints and Action Commission (PCAC), Presidential Committee on Administrative Performance Efficiency (PCAPE), and Presidential Anti-Graft Committee (PAGCOM, later replaced by the Presidential Committee on Administering Performance Efficiency), that were created by former Presidents Quirino, Magsaysay, Garcia and Macapagal, respectively.[23] Not to mention the plunder committed during the Estrada administration, the facts of which – already judicially ascertained, at that – are contained in public records.

The Executive Department’s determination of the futility or redundancy of investigating other administrations should be accorded respect. Respondents having manifested that pertinent and credible data are already in their hands or in the archives, petitioners’ idea of an all-encompassing de novo inquiry becomes tenuous as it goes beyond what the Executive Department needs.

The exclusion of other past administrations from the scope of investigation by the Truth Commission is justified by the substantial distinction that complete and definitive reports covering their respective periods have already been rendered. The same is not true with the immediate past administration. There is thus no undue favor or unwarranted partiality. To include everybody all over again is to insist on a useless act.

The distinction is not discriminatory

I find it contradictory for the ponencia to state, on the one hand, that the Truth Commission would be labeled as a “vehicle for vindictiveness and selective retribution”[24] and declare, on the other, that “its power to investigate is limited to obtaining facts x x x and its findings “would at best be recommendatory in nature[,] [a]nd x x x [the concerned agencies] have a wide degree of latitude to decide whether or not to reject the recommendation.”[25]

After precisely explaining that “fact-finding is not adjudication,”[26] the ponencia relates it to retribution which it depicts, in the context of truth commissions, as a “retributory body set up to try and punish those responsible for the crimes.”[27] The ponencia jumps into conclusion but lands nowhere for it has no ground on which to stand.

Further, the Court should not concern itself with the nebulous concept of “partisan hostility,” a relatively redundant term that eludes exact definition in a political world of turncoatism. Had the assailed issuance provided exemption to former members of the previous administration who have joined the prevailing political party, I would not hesitate to declare EO No. 1 void.

Far from being discriminatory, E.O No. 1 permits the probing of current administration officials who may have had a hand in the reported graft and corruption committed during the previous administration, regardless of party affiliation. The classification notably rests not on personalities but on period, as shown by the repeated use of the phrase “during the previous administration.”[28]

The ponencia treats adventures in “partisan hostility” as a form of undue discrimination. Without defining what it is, the ponencia gives life to a political creature and transforms it into a legal animal. By giving legal significance to a mere say-so of “partisan hostility,” it becomes unimaginable how the Court will refuse to apply this novel doctrine in the countless concerns of the inherently political branches of government under an invocation of equal protection. And to think, the present matter only involves the gathering of information.

To knowingly classify per se is not synonymous to intentional discrimination, which brings me to the next point that the classification is germane to the purpose of the law.

The classification is germane
to the purpose of the law

I entertain no doubt that respondents consciously and deliberately decided to focus on the corrupt activities reportedly committed during the previous administration. For respondents to admit that the selection was inadvertent is worse. The ponencia, however, is quick to ascribe intentional discrimination from the mere fact that the classification was intentional.

Good faith is presumed. I find it incomprehensible how the ponencia overturns that presumption. Citing an array of foreign jurisprudence, the ponencia, in fact, recognizes that mere under-inclusiveness or incompleteness is not fatal to the validity of a law under the equal protection clause. Thus the ponencia pontificates:

The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law under the equal protection clause.” “Legislation is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach.” It has been written that a regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete. In several instances, the underinclusiveness was not considered 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 clear indicia of inadvertence. That the previous administration was picked out was deliberate and intentional as can be gathered from the fact that it was stressed three times in the assailed executive order. “The equal protection clause is voided by purposeful and intentional discrimination.”[29] (emphasis and underscoring supplied)

According to the ponencia itself, the E.O.’s failure to include all evils within its reach, even by design, is not vulnerable to an equal protection challenge. How the ponencia arrives at a contrary conclusion puzzles.

Within our own jurisprudential shores, the Court expounded in Quinto v. Comelec[30] on those classifications which, albeit not all-inclusive, remain germane to the purpose of the law.

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time." In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious." He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment, such that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable." In the case at bar, the petitioners failed – and in fact did not even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:

. . . [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment. (underscoring supplied)

The “one step at a time” approach is thus not unconstitutional. E.O. No. 1 is not the first, but the latest, step in a series of initiatives undertaken by Presidents, as earlier illustrated. Neither will it be the last step. E.O. No. 1 contains a special provision[31] concerning the expansion of mandate. There being no constitutional violation in a step-by-step approach, the present and future administrations may release supplementary or comparable issuances.

The wisdom behind the issuance of the E.O. No. 1 is “outside the rubric of judicial scrutiny.”[32] Analogous to Quinto’s instructions, this Court cannot and should not arrogate unto itself the power to ascertain and impose on the President the best or complete way of obtaining information to eradicate corruption. Policy choices on the practicality or desirability of data-gathering that is responsive to the needs of the Executive Department in discharging the duty to faithfully execute the laws are best left to the sound discretion of the President.

Most enlightening as to how the classification is germane to the purpose of the law is knowing first what is the purpose of the law.

According to the ponencia, the objective of E.O. No. 1 is the “stamping out [of] acts of graft and corruption.”[33]

I differ.

The purpose of E.O. No. 1 is the gathering of needed information to aid the President in the implementation of public accountability laws. Briefly stated, E.O. No. 1 aims to provide data for the President.

The ponencia, in fact, has earlier explained: “It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land.”[34]

The long-term goal of the present administration must not be confused with what E.O. No. 1 intends to achieve within its short life. The opening clauses and provisions of E.O No. 1 are replete with phrases like “an urgent call for the determination of the truth,” “dedicated solely to investigating and finding out the truth,” and “primarily seek and find the truth.”

The purpose of E.O. No. 1 is to produce a report which, insofar as the Truth Commission is concerned, is the end in itself. The purpose of the report is another matter which is already outside the control of E.O. No. 1.

Once the report containing the needed information is completed, the Truth Commission is dissolved functus officio. At that point, the endeavor of data-gathering is accomplished, and E.O No. 1 has served its purpose. It cannot be said, however, that it already eradicated graft and corruption. The report would still be passed upon by government agencies. Insofar as the Executive Department is concerned, the report assimilates into a broader database that advises and guides the President in law enforcement.

To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to the fallacious and artificial conclusion that respondents are stamping out corrupt acts of the previous administration only, as if E.O. No. 1 represents the entire anti-corruption efforts of the Executive Department.

To state that the purpose of E.O. No. 1 is to eradicate graft and corruption begs the question. What is there to eradicate in the first place, if claims of graft and corruption are yet to be verified by the Truth Commission? Precisely, by issuing E.O. No. 1, respondents saw the need to verify raw data before initiating the law enforcement mechanism, if warranted.

The classification is not limited
to existing conditions only

The Truth Commission is an ad hoc body formed under the Office of the President. The nature of an ad hoc body is that it is limited in scope. Ad hoc means for the particular end or case at hand without consideration of wider application.[35] An ad hoc body is inherently temporary. E.O. No. 1 provides that the Truth Commission “shall accomplish its mission on or before December 31, 2012.”[36]

That the classification should not be limited to existing conditions only, as applied in the present case, does not mean the inclusion of future administrations. Laws that are limited in duration (e.g., general appropriations act) do not circumvent the guarantee of equal protection by not embracing all that may, in the years to come, be in similar conditions even beyond the effectivity of the law.

The requirement not to limit the classification to existing conditions goes into the operational details of the law. The law cannot, in fine print, enumerate extant items that exclusively compose the classification, thereby excluding soon-to-exist ones that may also fall under the classification.

In the present case, the circumstance of available reports of large-scale anomalies that fall under the classification (i.e., committed during the previous administration) makes one an “existing condition.” Those not yet reported or unearthed but likewise fall under the same class must not be excluded from the application of the law. There is no such exclusionary clause in E.O. No. 1.

The ratiocination on this third requisite so as to include previous administrations already goes into the “classifications,” not the “conditions.” The ponencia rewrites the rule leading to the absurd requirement that the classification should not be limited to the existing “classification” only.

The classification applies equally
to all members of the same class

Petitioners concede, by their failure to allege otherwise, that the classification applies equally to all members within the same class (i.e., all reports of large-scale graft and corruption during the previous administration). By this implied admission, this fourth requirement meets no objection.

Petitioners’ only insistent contention, as sustained by the ponencia, is that all prior administrations belong to the same class, citing that equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.[37]

Petitioners do not espouse the view that no one should be investigated. What they advocate is that all administrations should be investigated or, more accurately, all reports of large-scale graft and corruption during the tenure of past administrations should be subjected to investigation.

Discrimination presupposes prejudice. I find none.

First, no one complains of injury or prejudice. Petitioners do not seek the lifting of their own obligations or the granting of their own rights that E.O. No. 1 imposes or disallows. As earlier expounded, petitioner-legislators cannot plausibly invoke the equal protection claims of other persons, while petitioner Biraogo did not invoke it at all.

Second, petitioners do not allege that previous administrations, other than the immediate past administration, have been denied the right to appear before or be examined by the Truth Commission. Neither do petitioners identify the specific fact-finding obligations exclusively imposed upon the immediate past administration by the Truth Commission whose primary duty is merely to “investigate reports of graft and corruption and to recommend the appropriate action.”[38]

Third, assuming that there already exists an imposition of obligation from the mere recommendation for prosecution (as one of the possible appropriate measures) by the Truth Commission, the act of not recommending the prosecution of all those who could be probably guilty of graft and corruption is not violative of the equal protection clause. Even in the succeeding stage of preliminary investigation, which is already “out of the Truth Commission’s sphere of functions,”[39] jurisprudence instructs that the right to equal protection of the laws “may not be perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of those who are probably guilty thereof were charged.”[40]

Verily, where there is claim of breach of the due process and equal protection clauses, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail.[41]

Finally, even assuming arguendo that all prior administrations should be included within the scope of investigation of the Truth Commission, E.O. No 1 is saved by a separability clause,[42] considering that the remaining portions can stand independently of the assailed portions and constitute a complete, intelligible and valid law which carries out the intent of the law.[43] There is thus no basis for denying the other provisions of their continued force and enjoining the operation of the Truth Commission.

I, therefore, submit that there exists a “reasonable foundation or rational basis”[44] for defining the subject of the special fact-finding investigation by the Truth Commission.

For the foregoing reasons, I vote to DISMISS the petitions.

Associate Justice