Thursday, December 9, 2010

Justice Sereno: Truth Commission is constitutional

G.R. Nos. 192935 & 193036

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., December 7, 2010


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.

Unwarranted Creation of “Class of All Political Administrations” as the Object of Constitutional Review by This Court

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.

Associate Justice