Truth strangled? Executive and Judicial branches battle.

G. R. No. 192935

I do not agree with the ratio decidendi in the majority opinion of the Supreme Court (which many call the "Arroyo Court") in GR No. 1939235, "Biraogo v. The Philippine Truth Commission", the relevant parts of which are extensively quoted hereinbelow. It declares as unconstitutional the Truth Commission created by E.O. No. 1 (2010) of Pres. Noynoy Aquino on the ground that it violates the equal protection clause of the 1987 Constitution. The legal fight is not yet over. The Office of the Solicitor General will soon file a motion for reconsideration. Five justices dissented; ten concurred. I am also quoting hereinbelow the dissenting opinions, for comparative analysis of my readers.

The truth commission, which is headed by retired chief justice Hilario Davide Jr. and composed of other equally brilliant and honest retired Supreme Court justices, was tasked by the executive order to "primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor." (Sec. 1).

In the coming weeks, we will see whether the Arroyo Court will reconsider its opinion or whether it will stick to its original position (which, incidentally, saves ex Pres. Gloria Arroyo from the legal scrutiny of history), despite the massive protest of public opinion.

LOUIS “BAROK” C. BIRAOGO
vs. THE PHILIPPINE TRUTH COMMISSION OF 2010,
GR No. 192935, Dec. 7, 2010. (With Companion Cases).
DECISION
MENDOZA, J.:



x x x.

EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010



WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;



WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate;



WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society;



WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s trust and confidence in the Government and its institutions;



WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;



WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;



WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;



WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the President.



NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order:



SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body.



SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman.



In particular, it shall:



a) Identify and determine the reported cases of such graft and corruption which it will investigate;



b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled corporations, to produce documents, books, records and other papers;



c) Upon proper request or representation, obtain information and documents from the Senate and the House of Representatives records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission;



d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;



e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be;



f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose;



g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws;



h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties;



i) Engage or contract the services of resource persons, professionals and other personnel determined by it as necessary to carry out its mandate;



j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of evidence;



k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order.



SECTION 3. Staffing Requirements. – x x x.



SECTION 4. Detail of Employees. – x x x.



SECTION 5. Engagement of Experts. – x x x



SECTION 6. Conduct of Proceedings. – x x x.



SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.



SECTION 8. Protection of Witnesses/Resource Persons. – x x x.



SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in accordance with law.



SECTION 10. Duty to Extend Assistance to the Commission. – x x x.



SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.



SECTION 12. Office. – x x x.



SECTION 13. Furniture/Equipment. – x x x.



SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before December 31, 2012.



SECTION 15. Publication of Final Report. – x x x.



SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.



SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.




SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.



SECTION 19. Effectivity. – This Executive Order shall take effect immediately.



DONE in the City of Manila, Philippines, this 30th day of July 2010.



(SGD.) BENIGNO S. AQUINO III



By the President:



(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary




Nature of the Truth Commission



As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the previous administration, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Though it has been described as an “independent collegial body,” it is essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8]



To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.



The PTC is different from the truth commissions in other countries which have been created as official, transitory and non-judicial fact-finding bodies “to establish the facts and context of serious violations of human rights or of international humanitarian law in a country’s past.”[9] They are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.



Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the State.[10] “Commission’s members are usually empowered to conduct research, support victims, and propose policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional reforms.”[11]



Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future conflict by providing a cathartic experience for victims.



The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As one writer[12] puts it:





The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech: “To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that they have committed in the past, we have this to say: There can be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring over and over again.”



x x x.


Power of the President to Create the Truth Commission



x x x.

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates “reorganization” as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the negative.



To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the plainest meaning attributable to the term “restructure”– an “alteration of an existing structure.” Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]





But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power – that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the President’s continuing authority to reorganize. [Emphasis Supplied]





In the same vein, the creation of the PTC is not justified by the President’s power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter.[47] Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.



The question is this, is there a valid delegation of power from Congress, empowering the President to create a public office?



According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.[48] The said law granted the President the continuing authority to reorganize the national government, including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.[49]



The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the administrative structure of the national government including the power to create offices and transfer appropriations pursuant to one of the purposes of the decree, embodied in its last “Whereas” clause:



WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the organization of the national government.





Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus:





ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says “it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of government, the legislative and executive powers are fused, correct?



SOLICITOR GENERAL CADIZ: Yes, Your Honor.



ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987 Constitution.



SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.



ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.



SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]





While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:



Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).



As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a grant of all powers inherent in them. The President’s power to conduct investigations to aid him in ensuring the faithful execution of laws – in this case, fundamental laws on public accountability and transparency – is inherent in the President’s powers as the Chief Executive. That the authority of the President to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such authority.[51] As explained in the landmark case of Marcos v. Manglapus:[52]



x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of government with provision for checks and balances.



It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.





On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.



It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. x x x.





Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution.[53] One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. Thus, in Department of Health v. Camposano,[54] the authority of the President to issue Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:



The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry. [Emphasis supplied]



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



On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, “whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission.”[55] Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.



Power of the Truth Commission to Investigate



The President’s power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof.[56] As the Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has the authority to directly assume the functions of the executive department.[57]



Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the said body as it cannot adjudicate rights of persons who come before it. It has been said that “Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and administering the same law.”[58] In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of administrative agencies.



The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cariño v. Commission on Human Rights.[59] Thus:



"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry.



The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters."



"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics included. Citations Omitted]



Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by law.[60] Even respondents themselves admit that the commission is bereft of any quasi-judicial power.[61]



Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation.”[62] The actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them,[63] is certainly not a function given to the commission. The phrase, “when in the course of its investigation,” under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.[64]



At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,[65] it was written:



This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied].





Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:



(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases. [Emphases supplied]





The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary investigation or the determination of the existence of probable cause. This is categorically out of the PTC’s sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of the Ombudsman’s primordial duties.



The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to investigate the commission of crimes.



Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for violations of graft laws.



Violation of the Equal Protection Clause



Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:



Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.



The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the “previous administration” as its sole object makes the PTC an “adventure in partisan hostility.”[66] Thus, in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo.[67]



The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts committed not only during the administration of former President Arroyo but also during prior administrations where the “same magnitude of controversies and anomalies”[68] were reported to have been committed against the Filipino people. They assail the classification formulated by the respondents as it does not fall under the recognized exceptions because first, “there is no substantial distinction between the group of officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the selective classification is not germane to the purpose of Executive Order No. 1 to end corruption.”[69] In order to attain constitutional permission, the petitioners advocate that the commission should deal with “graft and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal force.”[70]



Position of respondents



According to respondents, while Executive Order No. 1 identifies the “previous administration” as the initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and corruption solely during the said administration.[71] Assuming arguendo that the commission would confine its proceedings to officials of the previous administration, the petitioners argue that no offense is committed against the equal protection clause for “the segregation of the transactions of public officers during the previous administration as possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils which the Executive Order seeks to correct.”[72] To distinguish the Arroyo administration from past administrations, it recited the following:



First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants.



Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration.



Third. 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.



Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a nascent administration like the Presidential Commission on Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens’ committee to investigate all the facts and circumstances surrounding “Philippine Centennial projects” of his predecessor, former President Fidel V. Ramos.[73] [Emphases supplied]



Concept of the Equal Protection Clause



One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[74]



“According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.”[75] It “requires public bodies and institutions to treat similarly situated individuals in a similar manner.”[76] “The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state’s duly constituted authorities.”[77] “In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.”[78]



The equal protection clause is aimed at all official state actions, not just those of the legislature.[79] Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken. [80]



It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[81] “Superficial differences do not make for a valid classification.”[82]



For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.[83] “The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him.”[84]



The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. 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[85] and reiterated in a long line of cases,[86]

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. [Citations omitted]



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”[87] only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are:



WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;



SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.



SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]



In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.



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 reports of widespread corruption in the Arroyo administration cannot be taken as basis for distinguishing said administration from earlier administrations which were also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, “Superficial differences do not make for a valid classification.”[88]





The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended 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.”[89] The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or “end corruption and the evil it breeds.”[90]



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 cogit ad impossibilia).[91]



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 administrations. 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. In the often quoted language of Yick Wo v. Hopkins,[92]



Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied]



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 laws 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.[93] Laws that do not conform to the Constitution should be stricken down for being unconstitutional.[94] 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” would only confirm the petitioners’ lament that the subject executive order is only an “adventure in partisan hostility.” In the case of US v. Cyprian,[95] it was written: “A rather limited number of such classifications have routinely been held or assumed to be arbitrary; those include: race, national origin, gender, political activity or membership in a political party, union activity or membership in a labor union, or more generally the exercise of first amendment rights.”



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.[96] “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 a 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 are the members of the class.”[97]



The Court is not unaware that “mere underinclusiveness is not fatal to the validity of a law under the equal protection clause.”[98] “Legislation is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach.”[99] It has been written that a regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.[100] 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.[101] “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.”[102]



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.”[103]



To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the commission does not only confine itself to cases of large scale graft and corruption committed during the previous administration.[104] The OSG points to Section 17 of Executive Order No. 1, which provides:



SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.



The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of investigations of the PTC so as to include the acts of graft and corruption committed in other past administrations, 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.”[105]



The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,[106] that the “PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause.” The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.



A final word



The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nation’s thrust to progress.



The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial Power that “includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”



Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of asserting superiority over the other departments.



To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: “And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.”[107]



Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather simply making sure that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional.



It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: “The end does not justify the means.” No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed.[108] The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles.



“The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.”[109]



Lest it be misunderstood, this is not the 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. Of all the branches of the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within constitutional bounds for “ours is still a government of laws and not of men.”[110]



WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.


As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1.

SO ORDERED.

x x x.



DISSENTING OPINION
OF JUSTICE CARPIO:






EN BANC





G.R. No. 192935 − Louis “Barok” C. Biraogo, Petitioner, vs. The Philippine Truth Commission, Respondent.



G.R. No. 193036 − Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr., Petitioners, vs. Executive Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management Secretary Florencio B. Abad, Respondents.



Promulgated:

December 7, 2010

x-----------------------------------------------------------------------------------------x





DISSENTING OPINION





CARPIO, J.:





The two petitions before this Court seek to declare void Executive Order No. 1, Creating the Philippine Truth Commission of 2010 (EO 1), for being unconstitutional.



In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a Filipino citizen and as a taxpayer, filed a petition under Rule 65 for prohibition and injunction. Biraogo prays for the issuance of a writ of preliminary injunction and temporary restraining order to declare EO 1 unconstitutional, and to direct the Philippine Truth Commission (Truth Commission) to desist from proceeding under the authority of EO 1.



In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (Lagman, et al.), as Members of the House of Representatives, filed a petition under Rule 65 for certiorari and prohibition. Petitioners Lagman, et al. pray for the issuance of a temporary restraining order or writ of preliminary injunction to declare void EO 1 for being unconstitutional.



The Powers of the President



Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail the creation of the Truth Commission. They claim that President Benigno S. Aquino III (President Aquino) has no power to create the Commission. Petitioners’ objections are mere sound bites, devoid of sound legal reasoning.



On 30 July 2010, President Aquino issued EO 1 pursuant to Section 31, Chapter 10, Title III, Book III of Executive Order No. 292 (EO 292).[1] Section 31 reads:



Section 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:



(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;



(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and


(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)





The law expressly grants the President the “continuing authority to reorganize the administrative structure of the Office of the President,” which necessarily includes the power to create offices within the Office of the President Proper. The power of the President to reorganize the Office of the President Proper cannot be disputed as this power is expressly granted to the President by law. Pursuant to this power to reorganize, all Presidents under the 1987 Constitution have created, abolished or merged offices or units within the Office of the President Proper, EO 1 being the most recent instance. This Court explained the rationale behind the President’s continuing authority to reorganize the Office of the President Proper in this way:



x x x The law grants the President this power in recognition of the recurring need of every President to reorganize his office “to achieve simplicity, economy and efficiency.” The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies. After all, the Office of the President is the command post of the President. This is the rationale behind the President’s continuing authority to reorganize the administrative structure of the Office of the President.[2] (Emphasis supplied)







The Power To Execute

Faithfully the Laws



Section 1, Article VI of the 1987 Constitution states that “[t]he executive power is vested in the President of the Philippines.” Section 17, Article VII of the 1987 Constitution states that “[t]he President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.”[3] Before he enters office, the President takes the following oath prescribed in Section 5, Article VII of the 1987 Constitution: “I do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.”[4]



Executive power is vested exclusively in the President. Neither the Judiciary nor the Legislature can execute the law. As the Executive, the President is mandated not only to execute the law, but also to execute faithfully the law.



To execute faithfully the law, the President must first know the facts that justify or require the execution of the law. To know the facts, the President may have to conduct fact-finding investigations. Otherwise, without knowing the facts, the President may be blindly or negligently, and not faithfully and intelligently, executing the law.



Due to time and physical constraints, the President cannot obviously conduct by himself the fact-finding investigations. The President will have to delegate the fact-finding function to one or more subordinates. Thus, the President may appoint a single fact-finding investigator, or a collegial body or committee. In recognizing that the President has the power to appoint an investigator to inquire into facts, this Court held:



Moreover, petitioner cannot claim that his investigation as acting general manager is for the purpose of removing him as such for having already been relieved, the obvious purpose of the investigation is merely to gather facts that may aid the President in finding out why the NARIC failed to attain its objectives, particularly in the stabilization of the prices of rice and corn. His investigation is, therefore, not punitive, but merely an inquiry into matters which the President is entitled to know so that he can be properly guided in the performance of his duties relative to the execution and enforcement of the laws of the land. In this sense, the President may authorize the appointment of an investigator of petitioner Rodriguez in his capacity as acting general manager even if under the law the authority to appoint him and discipline him belongs to the NARIC Board of Directors. The petition for prohibition, therefore, has no merit.[5] (Boldfacing and italicization supplied)









The Power To Find Facts



The power to find facts, or to conduct fact-finding investigations, is necessary and proper, and thus inherent in the President’s power to execute faithfully the law. Indeed, the power to find facts is inherent not only in Executive power, but also in Legislative as well as Judicial power. The Legislature cannot sensibly enact a law without knowing the factual milieu upon which the law is to operate. Likewise, the courts cannot render justice without knowing the facts of the case if the issue is not purely legal. Petitioner Lagman admitted this during the oral arguments:



ASSOCIATE JUSTICE CARPIO:

x x x The power to fact-find is inherent in the legislature, correct? I mean, before you can pass a law, you must determine the facts. So, it’s essential that you have to determine the facts to pass a law, and therefore, the power to fact-find is inherent in legislative power, correct?



CONGRESSMAN LAGMAN:

Yes, Your Honor.



ASSOCIATE JUSTICE CARPIO:

And it is also inherent in judicial power, we must know the facts to render a decision, correct?



CONGRESSMAN LAGMAN:

Yes, Your Honor.



ASSOCIATE JUSTICE CARPIO:

And it is also inherent in executive power that [the] President has to know the facts so that he can faithfully execute the laws, correct?



CONGRESSMAN LAGMAN:

Yes, Your Honor, in that context (interrupted).



ASSOCIATE JUSTICE CARPIO:

So (interrupted)



CONGRESSMAN LAGMAN:

Your Honor, in that context, the legislature has the inherent power to make factual inquiries in aid of legislation. In the case of the Supreme Court and the other courts, the power to inquire into facts [is] in aid of adjudication. And in the case of the Office of the President, or the President himself [has the power] to inquire into the facts in order to execute the laws.[6]

Being an inherent power, there is no need to confer explicitly on the President, in the Constitution or in the statutes, the power to find facts. Evangelista v. Jarencio[7] underscored the importance of the power to find facts or to investigate:



It has been essayed that the lifeblood of the administrative process is the flow of fact[s], the gathering, the organization and the analysis of evidence. Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing, for determining general policy, for recommending legislation, and for purposes no more specific than illuminating obscure areas to find out what if anything should be done. An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations for actions. (Emphasis supplied)





The Power To Create

A Public Office



The creation of a public office must be distinguished from the creation of an ad hoc fact-finding public body.



The power to create a public office is undeniably a legislative power. There are two ways by which a public office is created: (1) by law, or (2) by delegation of law, as found in the President’s authority to reorganize his Office. The President as the Executive does not inherently possess the power to reorganize the Executive branch. However, the Legislature has delegated to the President the power to create public offices within the Office of the President Proper, as provided in Section 31(1), Chapter 10, Title III, Book III of EO 292.



Thus, the President can create the Truth Commission as a public office in his Office pursuant to his power to reorganize the Office of the President Proper.[8] In such a case, the President is exercising his delegated power to create a public office within the Office of the President Proper. There is no dispute that the President possesses this delegated power.



In the alternative, the President can also create the Truth Commission as an ad hoc body to conduct a fact-finding investigation pursuant to the President’s inherent power to find facts as basis to execute faithfully the law. The creation of such ad hoc fact-finding body is indisputably necessary and proper for the President to execute faithfully the law. In such a case, members of the Truth Commission may be appointed as Special Assistants or Advisers of the President,[9] and then assigned to conduct a fact-finding investigation. The President can appoint as many Special Assistants or Advisers as he may need.[10] There is no public office created and members of the Truth Commission are incumbents already holding public office in government. These incumbents are given an assignment by the President to be members of the Truth Commission. Thus, the Truth Commission is merely an ad hoc body assigned to conduct a fact-finding investigation.



The creation of ad hoc fact-finding bodies is a routine occurrence in the Executive and even in the Judicial branches of government. Whenever there is a complaint against a government official or employee, the Department Secretary, head of agency or head of a local government unit usually creates a fact-finding body whose members are incumbent officials in the same department, agency or local government unit.[11] This is also true in the Judiciary, where this Court routinely appoints a fact-finding investigator, drawn from incumbent Judges or Justices (or even retired Judges or Justices who are appointed consultants in the Office of the Court Administrator), to investigate complaints against incumbent officials or employees in the Judiciary.



The creation of such ad hoc investigating bodies, as well as the appointment of ad hoc investigators, does not result in the creation of a public office. In creating ad hoc investigatory bodies or appointing ad hoc investigators, executive and judicial officials do not create public offices but merely exercise a power inherent in their primary constitutional or statutory functions, which may be to execute the law, to exercise disciplinary authority, or both. These fact-finding bodies and investigators are not permanent bodies or functionaries, unlike public offices or their occupants. There is no separate compensation, other than per diems or allowances, for those designated as members of ad hoc investigating bodies or as ad hoc investigators.



Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the President’s power to reorganize his Office or create the Truth Commission. PD 1416, as amended, delegates to the President “continuing authority to reorganize the National Government,”[12] which means the Executive, Legislative and Judicial branches of government, in addition to the independent constitutional bodies. Such delegation can exist only in a dictatorial regime, not under a democratic government founded on the separation of powers. The other powers granted to the President under PD 1416, as amended, like the power to transfer appropriations without conditions and the power to standardize salaries, are also contrary to the provisions of the 1987 Constitution.[13] PD 1416, which was promulgated during the Martial Law regime to facilitate the transition from the presidential to a parliamentary form of government under the 1973 Constitution,[14] is now functus officio and deemed repealed upon the ratification of the 1987 Constitution.



The President’s power to create ad hoc fact-finding bodies does not emanate from the President’s power of control over the Executive branch. The President’s power of control is the power to reverse, revise or modify the decisions of subordinate executive officials, or substitute his own decision for that of his subordinate, or even make the decision himself without waiting for the action of his subordinate.[15] This power of control does not involve the power to create a public office. Neither does the President’s power to find facts or his broader power to execute the laws give the President the power to create a public office. The President can exercise the power to find facts or to execute the laws without creating a public office.



Objections to EO 1





There Is No Usurpation of Congress’

Power To Appropriate Funds





Petitioners Lagman, et al. argue that EO 1 usurps the exclusive power of Congress to appropriate funds because it gives the President the power to appropriate funds for the operations of the Truth Commission. Petitioners Lagman, et al. add that no particular source of funding is identified and that the amount of funds to be used is not specified.



Congress is exclusively vested with the “power of the purse,” recognized in the constitutional provision that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”[16] The specific purpose of an appropriation law is to authorize the release of unappropriated public funds from the National Treasury.[17]



Section 11 of EO 1 merely states that “the Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.” Section 11 does not direct the National Treasurer to release unappropriated funds in the National Treasury to finance the operations of the Truth Commission. Section 11 does not also say that the President is appropriating, or is empowered to appropriate, funds from the unappropriated funds in the National Treasury. Clearly, there is absolutely no language in EO 1 appropriating, or empowering the President to appropriate, unappropriated funds in the National Treasury.



Section 11 of EO 1 merely states that the Office of the President shall fund the operations of the Truth Commission. Under EO 1, the funds to be spent for the operations of the Truth Commission have already been appropriated by Congress to the Office of the President under the current General Appropriations Act. The budget for the Office of the President under the annual General Appropriations Act always contains a Contingent Fund[18] that can fund the operations of ad hoc investigating bodies like the Truth Commission. In this case, there is no appropriation but merely a disbursement by the President of funds that Congress had already appropriated for the Office of the President.





The Truth Commission Is Not

A Quasi-Judicial Body



While petitioners Lagman, et al. insist that the Truth Commission is a quasi-judicial body, they admit that there is no specific provision in EO 1 that states that the Truth Commission has quasi-judicial powers.[19]

ASSOCIATE JUSTICE CARPIO:

Okay. Now. Let’s tackle that issue. Where in the Executive Order is it stated that [the Truth Commission] has a quasi-judicial power? Show me the provision.



CONGRESSMAN LAGMAN:

There is no exact provision.



There is no language in EO 1 granting the Truth Commission quasi-judicial power, whether expressly or impliedly, because the Truth Commission is not, and was never intended to be, a quasi-judicial body. The power of the President to create offices within the Office of the President Proper is a power to create only executive or administrative offices, not quasi-judicial offices or bodies. Undeniably, a quasi-judicial office or body can only be created by the Legislature. The Truth Commission, as created under EO 1, is not a quasi-judicial body and is not vested with any quasi-judicial power or function.



The exercise of quasi-judicial functions involves the determination, with respect to the matter in controversy, of what the law is, what the legal rights and obligations of the contending parties are, and based thereon and the facts obtaining, the adjudication of the respective rights and obligations of the parties.[20] The tribunal, board or officer exercising quasi-judicial functions must be clothed with the power to pass judgment on the controversy.[21] In short, quasi-judicial power is the power of an administrative body to adjudicate the rights and obligations of parties under its jurisdiction in a manner that is final and binding, unless there is a proper appeal. In the recent case of Bedol v. Commission on Elections,[22] this Court declared:



Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature.[23] (Emphasis supplied)





Under EO 1, the Truth Commission primarily investigates reports of graft and corruption and recommends the appropriate actions to be taken. Thus, Section 2 of EO 1 states that the Truth Commission is “primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption and thereafter submit its findings and recommendations to the President, Congress and the Ombudsman.” The President, Congress and the Ombudsman are not bound by the findings and recommendations of the Truth Commission. Neither are the parties subject of the fact-finding investigation bound by the findings and recommendations of the Truth Commission.



Clearly, the function of the Truth Commission is merely investigative and recommendatory in nature. The Truth Commission has no power to adjudicate the rights and obligations of the persons who come before it. Nothing whatsoever in EO 1 gives the Truth Commission quasi-judicial power, expressly or impliedly. In short, the Truth Commission is not a quasi-judicial body because it does not exercise the quasi-judicial power to bind parties before it with its actions or decisions.



The creation of the Truth Commission has three distinct purposes since it is tasked to submit its findings to the President, Congress and the Ombudsman. The Truth Commission will submit its findings to the President so that the President can faithfully execute the law. For example, the Truth Commission may recommend to the President that Department Secretaries should personally approve disbursements of funds in certain contracts or projects above a certain amount and not delegate such function to their Undersecretaries.[24] The Truth Commission will also submit its findings to Congress for the possible enactment by Congress of remedial legislation. For example, Congress may pass a law penalizing Department Secretaries who delegate to their Undersecretaries the approval of disbursement of funds contrary to the directive of the President. Lastly, the Truth Commission will submit its findings to the Ombudsman for possible further investigation of those who may have violated the law. The Ombudsman may either conduct a further investigation or simply ignore the findings of the Truth Commission. Incidentally, the Ombudsman has publicly stated that she supports the creation of the Truth Commission and that she will cooperate with its investigation.[25]



That EO 1 declares that the Truth Commission “will act as an independent collegial body” cannot invalidate EO 1. This provision merely means that the President will not dictate on the members of the Truth Commission on what their findings and recommendations should be. The Truth Commission is free to come out with its own findings and recommendations, free from any interference or pressure from the President. Of course, as EO 1 expressly provides, the President, Congress and the Ombudsman are not bound by such findings and recommendations.





There Is No Usurpation of the

Powers of the Ombudsman





Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive jurisdiction to investigate graft and corruption cases, the Truth Commission encroaches on this exclusive power of the Ombudsman.



There are three types of fact-finding investigations in the Executive branch. First, there is the purely fact-finding investigation the purpose of which is to establish the facts as basis for future executive action, excluding the determination of administrative culpability or the determination of probable cause. Second, there is the administrative investigation to determine administrative culpabilities of public officials and employees. Third, there is the preliminary investigation whose sole purpose is to determine probable cause as to the existence and perpetrator of a crime. These three types of fact-finding investigations are separate and distinct investigations.



A purely fact-finding investigation under the Office of the President is the first type of fact-finding investigation. Such fact-finding investigation has three distinct objectives. The first is to improve administrative procedures and efficiency, institute administrative measures to prevent corruption, and recommend policy options − all with the objective of enabling the President to execute faithfully the law. The second is to recommend to Congress possible legislation in response to new conditions brought to light in the fact-finding investigation. The third is to recommend to the head of office the filing of a formal administrative charge, or the filing of a criminal complaint before the prosecutor.





Under the third objective, the fact-finding investigation is merely a gathering and evaluation of facts to determine whether there is sufficient basis to proceed with a formal administrative charge, or the filing of a criminal complaint before the prosecutor who will conduct a preliminary investigation. This purely fact-finding investigation does not determine administrative culpability or the existence of probable cause. The fact-finding investigation comes before an administrative investigation or preliminary investigation, where administrative culpability or probable cause, respectively, is determined.



On the other hand, an administrative investigation follows, and takes up, the recommendation of a purely fact-finding investigation to charge formally a public official or employee for possible misconduct in office. Similarly, a preliminary investigation is an inquiry to determine whether there is sufficient ground to believe that a crime has been committed and that the respondent is probably guilty of such crime, and should be held for trial.[26] A preliminary investigation’s sole purpose is to determine whether there is probable cause to charge a person for a crime.



Section 15 of Republic Act No. 6770[27] provides:



SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: x x x



(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x (Emphasis supplied)







The Ombudsman has “primary jurisdiction over cases cognizable by the Sandiganbayan.” The cases cognizable by the Sandiganbayan are criminal cases as well as quasi-criminal cases like the forfeiture of unexplained wealth.[28] “[I]n the exercise of this primary jurisdiction” over cases cognizable by the Sandiganbayan, the Ombudsman “may take over x x x the investigation of such cases” from any investigatory agency of the Government. The cases covered by the “primary jurisdiction” of the Ombudsman are criminal or quasi-criminal cases but not administrative cases. Administrative cases, such as administrative disciplinary cases, are not cognizable by the Sandiganbayan. With more reason, purely fact-finding investigations conducted by the Executive branch are not cognizable by the Sandiganbayan.



Purely fact-finding investigations to improve administrative procedures and efficiency, to institute administrative measures to prevent corruption, to provide the President with policy options, to recommend to Congress remedial legislation, and even to determine whether there is basis to file a formal administrative charge against a government official or employee, do not fall under the “primary jurisdiction” of the Ombudsman. These fact-finding investigations do not involve criminal or quasi-criminal cases cognizable by the Sandiganbayan.



If the Ombudsman has the power to take-over purely fact-finding investigations from the President or his subordinates, then the President will become inutile. The President will be wholly dependent on the Ombudsman, waiting for the Ombudsman to establish the facts before the President can act to execute faithfully the law. The Constitution does not vest such power in the Ombudsman. No statute grants the Ombudsman such power, and if there were, such law would be unconstitutional for usurping the power of the President to find facts necessary and proper to his faithful execution of the law.



Besides, if the Ombudsman has the exclusive power to conduct fact-finding investigations, then even the Judiciary and the Legislature cannot perform their fundamental functions without the action or approval of the Ombudsman. While the Constitution grants the Office of the Ombudsman the power to “[i]nvestigate on its own x x x any act or omission of any public official, employee, office or agency,”[29] such power is not exclusive. To hold that such investigatory power is exclusive to the Ombudsman is to make the Executive, Legislative and Judiciary wholly dependent on the Ombudsman for the performance of their Executive, Legislative and Judicial functions.



Even in investigations involving criminal and quasi-criminal cases cognizable by the Sandiganbayan, the Ombudsman does not have exclusive jurisdiction to conduct preliminary investigations. In Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,[30] this Court held:





In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases.[31] (Emphasis supplied)





To repeat, Honasan II categorically ruled that “the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman exclusive jurisdiction to investigate offenses committed by public officials and employees.”



The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary investigation to determine if there is probable cause to charge a public officer or employee with an offense, not to the conduct of a purely administrative fact-finding investigation that does not involve the determination of probable cause.[32] The Truth Commission is a purely fact-finding body that does not determine the existence of probable cause. There is no accused or even a suspect before the Truth Commission, which merely conducts a general inquiry on reported cases of graft and corruption. No one will even be under custodial investigation before the Truth Commission.[33] Thus, the claim that the Truth Commission is usurping the investigatory power of the Ombudsman, or of any other government official, has no basis whatsoever.



In criminal fact-finding investigations, the law expressly vests in the Philippine National Police (PNP) and the National Bureau of Investigation (NBI) investigatory powers. Section 24 of Republic Act No. 6975[34] provides:



Section 24. Powers and Functions – The PNP shall have the following powers and duties:



(a) x x x

x x x

(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice, and assist in their prosecution;

x x x. (Emphasis supplied)









Section 1 of Republic Act No. 157 also provides:



Section 1. There is hereby created a Bureau of Investigation under the Department of Justice which shall have the following functions:



(a) To undertake investigation of crimes and other offenses against the laws of the Philippines, upon its own initiative and as public interest may require;



x x x. (Emphasis supplied)





The PNP and the NBI are under the control of the President. Indisputably, the President can at any time direct the PNP and NBI, whether singly, jointly or in coordination with other government bodies, to investigate possible violations of penal laws, whether committed by public officials or private individuals. To say that the Ombudsman has the exclusive power to conduct fact-finding investigations of crimes involving public officials and employees is to immobilize our law-enforcement agencies and allow graft and corruption to run riot. The fact-finding arm of the Department of Justice (DOJ) to investigate crimes, whether committed by public or private parties, is the NBI.[35] The DOJ Proper does not conduct fact-finding investigations of crimes, but only preliminary investigations.







The Truth Commission

Has Subpoena Powers





Section 2 of EO 1 provides that the Truth Commission shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of EO 292, which reads:



Sec. 37. Powers Incidental to Taking of Testimony. - When authority to take testimony or receive evidence is conferred upon any administrative officer or any non-judicial person, committee, or other body, such authority shall include the power to administer oaths, summon witnesses, and require the production of documents by a subpoena duces tecum. (Emphasis supplied)





Section 2(e) of EO 1 confers on the Truth Commission the power to “[i]nvite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmation as the case may be.” Thus, the Truth Commission, a body authorized to take testimony, can administer oaths and issue subpoena and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of EO 292. In fact, this power to administer oaths and to issue subpoena and subpoena duces tecum is a power of every administrative fact-finding investigative body created in the Executive, Legislative or Judicial branch. Section 37, Chapter 9, Book I of EO 292 grants such power to every fact-finding body so created.





The Truth Commission

Has No Contempt Powers





Section 9 of EO 1 provides:



Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in accordance with law.





There is no provision in EO 1 that gives the Truth Commission the power to cite persons for contempt. As explained by Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to obey the subpoena, take oath or give testimony is a public officer, he can be charged with “defiance of a lawful order,”[36] which should mean insubordination[37] if his superior had ordered him to obey the subpoena of the Truth Commission. If the person is not a public officer or employee, he can only be dealt with in accordance with law, which should mean that the Truth Commission could file a petition with the proper court to cite such private person in contempt pursuant to Sections 1[38] and 9[39] of Rule 21 of the Rules of Court.



However, the mere fact that the Truth Commission, by itself, has no coercive power to compel any one, whether a government employee or a private individual, to testify before the Commission does not invalidate the creation by the President, or by the Judiciary or Legislature, of a purely administrative fact-finding investigative body. There are witnesses who may voluntarily testify, and bring relevant documents, before such fact-finding body. The fact-finding body may even rely only on official records of the government. To require every administrative fact-finding body to have coercive or contempt powers is to invalidate all administrative fact-finding bodies created by the Executive, Legislative and Judicial branches of government.







The Name “Truth Commission”

Cannot Invalidate EO 1





There is much ado about the words “Truth Commission” as the name of the fact-finding body created under EO 1. There is no law or rule prescribing how a fact-finding body should be named. In fact, there is no law or rule prescribing how permanent government commissions, offices, or entities should be named.[40] There is also no law or rule prohibiting the use of the words “Truth Commission” as the name of a fact-finding body. Most fact-finding bodies are named, either officially or unofficially, after the chairperson of such body, which by itself, will not give any clue as to the nature, powers or functions of the body. Thus, the name Feliciano Commission or Melo Commission, by itself, does not indicate what the commission is all about. Naming the present fact-finding body as the “Truth Commission” is more descriptive than naming it the Davide Commission after the name of its chairperson.



The name of a government commission, office or entity does not determine its nature, powers or functions. The specific provisions of the charter creating the commission, office or entity determine its nature, powers or functions. The name of the commission, office or entity is not important and may even be misleading. For example, the term Ombudsman connotes a male official but no one in his right mind will argue that a female cannot be an Ombudsman. In fact, the present Ombudsman is not a man but a woman. In the private sector, the name of a corporation may not even indicate what the corporation is all about. Thus, Apple Corporation is not in the business of selling apples or even oranges. An individual may be named Honesto but he may be anything but honest. All this tells us that in determining the nature, powers or functions of a commission, office or entity, courts should not be fixated by its name but should examine what it is tasked or empowered to do.



In any event, there is nothing inherently wrong in the words “Truth Commission” as the name of a fact-finding body. The primary purpose of every fact-finding body is to establish the facts. The facts lead to, or even constitute, the truth. In essence, to establish the facts is to establish the truth. Thus, the name “Truth Commission” is as appropriate as the name “Fact-Finding Commission.” If the name of the commission created in EO 1 is changed to “Fact-Finding Commission,” the nature, powers and functions of the commission will remain exactly the same. This simply shows that the name of the commission created under EO 1 is not important, and any esoteric discourse on the ramifications of the name “Truth Commission” is merely an academic exercise. Of course, the name “Truth Commission” is more appealing than the worn-out name “Fact-Finding Commission.” Courts, however, cannot invalidate a law or executive issuance just because its draftsman has a flair for catchy words and a disdain for trite ones. Under the law, a fact-finding commission by any other name is a fact-finding commission.[41]



The Public Will Not Be Deceived that

Findings of Truth Commission Are Final





The fear that the public will automatically perceive the findings of the Truth Commission as the “truth,” and any subsequent contrary findings by the Ombudsman or Sandiganbayan as the “untruth,” is misplaced. First, EO 1 is unequivocally clear that the findings of the Truth Commission are neither final nor binding on the Ombudsman, more so on the Sandiganbayan which is not even mentioned in EO 1. No one reading EO 1 can possibly be deceived or misled that the Ombudsman or the Sandiganbayan are bound by the findings of the Truth Commission.



Second, even if the Truth Commission is renamed the “Fact-Finding Commission,” the same argument can also be raised — that the public may automatically perceive the findings of the Fact-Finding Commission as the unquestionable “facts,” and any subsequent contrary findings by the Ombudsman or Sandiganbayan as “non-factual.” This argument is bereft of merit because the public can easily read and understand what EO 1 expressly says — that the findings of the Truth Commission are not final or binding but merely recommendatory.



Third, the Filipino people are familiar with the Agrava Board,[42] a fact-finding body that investigated the assassination of former Senator Benigno S. Aquino, Jr. The people know that the findings of the Agrava Board were not binding on the then Tanodbayan or the Sandiganbayan. The Agrava Board recommended for prosecution 26 named individuals[43] but the Tanodbayan charged 40 named individuals[44] before the Sandiganbayan. On the other hand, the Sandiganbayan convicted only 16 of those charged by the Tanodbayan and acquitted 20 of the accused.[45]



Fourth, as most Filipinos know, many persons who undergo preliminary investigation and are charged for commission of crimes are eventually acquitted by the trial courts, and even by the appellate courts. In short, the fear that the public will be misled that the findings of the Truth Commission is the unerring gospel truth is more imagined than real.





EO 1 Does Not Violate

The Equal Protection Clause





Petitioners Lagman, et al. argue that EO 1 violates the equal protection clause because the investigation of the Truth Commission is limited to alleged acts of graft and corruption during the Arroyo administration.



A reading of Section 17 of EO 1 readily shows that the Truth Commission’s investigation is not limited to the Arroyo administration. Section 17 of EO 1 provides:



Section 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be extended accordingly by way of a supplemental Executive Order. (Emphasis supplied)





The President can expand the mandate of the Truth Commission to investigate alleged graft and corruption cases of other past administrations even as its primary task is to investigate the Arroyo administration. EO 1 does not confine the mandate of the Truth Commission solely to alleged acts of graft and corruption during the Arroyo Administration.



Section 17 of EO 1 is the same as Section 2(b) of Executive Order No. 1 dated 28 February 1986 issued by President Corazon Aquino creating the Presidential Commission on Good Government (PCGG Charter). Section 2(b) of the PCGG Charter provides:



Section 2. The Commission shall be charged with the task of assisting the President in regard to the following matters:



(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates xxx.



(b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time to time.



x x x x . (Emphasis supplied)



Thus, under Section 2(b) of the PCGG Charter, the President can expand the investigation of the PCCG even as its primary task is to recover the ill-gotten wealth of the Marcoses and their cronies. Both EO 1 and the PCGG Charter have the same provisions on the scope of their investigations. Both the Truth Commission and the PCGG are primarily tasked to conduct specific investigations, with their mandates subject to expansion by the President from time to time. This Court has consistently upheld the constitutionality of the PCGG Charter.[46]



Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the investigation of acts of graft and corruption that may have taken place during the Arroyo administration. If time allows, the President may extend the mandate of the Truth Commission to investigate other administrations prior to the Arroyo administration. The prioritization of such work or assignment does not violate the equal protection clause because the prioritization is based on reasonable grounds.



First, the prescriptive period for the most serious acts of graft and corruption under the Revised Penal Code is 20 years,[47] 15 years for offenses punishable under the Anti-Graft and Corrupt Practices Act,[48] and 12 years for offenses punishable under special penal laws that do not expressly provide for prescriptive periods.[49] Any investigation will have to focus on alleged acts of graft and corruption within the last 20 years, almost half of which or 9 years is under the Arroyo administration.



While it is true that the prescriptive period is counted from the time of discovery of the offense, the “reported cases”[50] of “large scale corruption”[51] involving “third level public officers and higher,”[52] which the Truth Commission will investigate, have already been widely reported in media, and many of these reported cases have even been investigated by the House of Representatives or the Senate. Thus, the prescriptive periods of these “reported cases” of “large scale corruption” may have already began to run since these anomalies are publicly known and may be deemed already discovered.[53] These prescriptive periods refer to the criminal acts of public officials under penal laws, and not to the recovery of ill-gotten wealth which under the Constitution is imprescriptible.[54]



Second, the Marcos, Ramos and Estrada administrations were already investigated by their successor administrations. This alone is incontrovertible proof that the Arroyo administration is not being singled out for investigation or prosecution.



Third, all the past Presidents, with the exception of Presidents Ramos, Estrada and Arroyo, are already dead. The possible witnesses to alleged acts of graft and corruption during the Presidencies of the deceased presidents may also be dead or unavailable. In fact, the only living President whose administration has not been investigated by its successor administration is President Arroyo.



Fourth, the more recent the alleged acts of graft and corruption, the more readily available will be the witnesses, and the more easily the witnesses can recall with accuracy the relevant events. Inaction over time means the loss not only of witnesses but also of material documents, not to mention the loss of public interest.



Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating other past administrations.[55] There is also the constraint on the enormous resources needed to investigate other past administrations. Just identifying the transactions, locating relevant documents, and looking for witnesses would require a whole bureaucracy.



These are not only reasonable but also compelling grounds for the Truth Commission to prioritize the investigation of the Arroyo administration. To prioritize based on reasonable and even compelling grounds is not to discriminate, but to act sensibly and responsibly.



In any event, there is no violation of the equal protection clause just because the authorities focus their investigation or prosecution on one particular alleged law-breaker, for surely a person accused of robbery cannot raise as a defense that other robbers like him all over the country are not being prosecuted.[56] By the very nature of an investigation or prosecution, there must be a focus on particular act or acts of a person or a group of persons.



Indeed, almost every fact-finding body focuses its investigation on a specific subject matter ─ whether it be a specific act, incident, event, situation, condition, person or group of persons. This specific focus results from the nature of a fact-finding investigation, which is a necessary and proper response to a specific compelling act, incident, event, situation, or condition involving a person or group of persons. Thus, the fact-finding commissions created under the previous Arroyo administration had specific focus: the Feliciano Commission focused on the Oakwood mutiny, the Melo Commission focused on extra-judicial killings, and the Zeñarosa Commission focused on private armies.



Significantly, the PCGG Charter even specifies the persons to be investigated for the recovery of ill-gotten wealth. Thus, Section 2(a) of the PCGG Charter provides:



Section 2. The Commission shall be charged with the task of assisting the President in regard to the following matters:



(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship.



(b) x x x . (Emphasis supplied)



The PCGG Charter has survived all constitutional attacks before this Court, including the claim that its Section 2(a) violates the equal protection clause. In Virata v. Sandiganbayan,[57] this Court categorically ruled that the PCGG Charter “does not violate the equal protection clause and is not a bill of attainder or an ex post facto law.”[58]



This specific focus of fact-finding investigations is also true in the United States. Thus, the Roberts Commission[59] focused on the Pearl Harbor attack, the Warren Commission[60] focused on the assassination of President John F. Kennedy, and the 9/11 Commission[61] focused on the 11 September 2001 terrorist attacks on the United States. These fact-finding commissions were created with specific focus to assist the U.S. President and Congress in crafting executive and legislative responses to specific acts or events of grave national importance. Clearly, fact-finding investigations by their very nature must have a specific focus.



Graft and corruption cases before the Arroyo administration have already been investigated by the previous administrations. President Corazon Aquino created the Presidential Commission on Good Government to recover the ill-gotten wealth of the Marcoses and their cronies.[62] President Joseph Estrada created the Saguisag Commission to investigate the Philippine Centennial projects of President Fidel Ramos.[63] The glaring acts of corruption during the Estrada administration have already been investigated resulting in the conviction of President Estrada for plunder. Thus, it stands to reason that the Truth Commission should give priority to the alleged acts of graft and corruption during the Arroyo administration.



The majority opinion claims that EO 1 violates the equal protection clause because the Arroyo administration belongs to a class of past administrations and the other past administrations are not included in the investigation of the Truth Commission. Thus, the majority opinion states:



In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.



x x x



x x x The PTC [Philippine Truth Commission], to be true to its mandate of searching the truth, must not exclude the other past administrations. 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.



x x x



x x x To exclude the earlier administrations in the guise of “substantial distinctions” would only confirm the petitioners' lament that the subject executive order is only an “adventure in partisan hostility.” x x x.



x x x



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 a nature as to embrace all those who may hereafter 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 are the members of the class.” (Emphasis supplied)





The majority opinion goes on to suggest that EO 1 could be amended “to include the earlier past administrations” to allow it “to pass the test of reasonableness and not be an affront to the Constitution.”



The majority opinion’s reasoning is specious, illogical, impractical, impossible to comply, and contrary to the Constitution and well-settled jurisprudence. To require that “earlier past administrations” must also be included in the investigation of the Truth Commission, with the Truth Commission expressly empowered “to investigate all past administrations,” before there can be a valid investigation of the Arroyo administration under the equal protection clause, is to prevent absolutely the investigation of the Arroyo administration under any circumstance.



While the majority opinion admits that there can be “reasonable prioritization” of past administrations to be investigated, it not only fails to explain how such reasonable prioritization can be made, it also proceeds to strike down EO 1 for prioritizing the Arroyo administration in the investigation of the Truth Commission. And while admitting that there can be a valid classification based on substantial distinctions, the majority opinion inexplicably makes any substantial distinction immaterial by stating that “[t]o exclude the earlier administrations in the guise of “substantial distinctions” would only confirm the petitioners' lament that the subject executive order is only an 'adventure in partisan hostility.'”



The “earlier past administrations” prior to the Arroyo administration cover the Presidencies of Emilio Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Ramon Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Fidel Ramos, and Joseph Estrada, a period spanning 102 years or more than a century. All these administrations, plus the 9-year Arroyo administration, already constitute the universe of all past administrations, covering a total period of 111 years. All these “earlier past administrations” cannot constitute just one class of administrations because if they were to constitute just one class, then there would be no other class of administrations. It is like saying that since all citizens are human beings, then all citizens belong to just one class and you cannot classify them as disabled, impoverished, marginalized, illiterate, peasants, farmers, minors, adults or seniors.



Classifying the “earlier past administrations” in the last 111 years as just one class is not germane to the purpose of investigating possible acts of graft and corruption. There are prescriptive periods to prosecute crimes. There are administrations that have already been investigated by their successor administrations. There are also administrations that have been subjected to several Congressional investigations for alleged large-scale anomalies. There are past Presidents, and the officials in their administrations, who are all dead. There are past Presidents who are dead but some of the officials in their administrations are still alive. Thus, all the “earlier past administrations” cannot be classified as just one single class − “a class of past administrations” ‒ because they are not all similarly situated.

On the other hand, just because the Presidents and officials of “earlier past administrations” are now all dead, or the prescriptive periods under the penal laws have all prescribed, does not mean that there can no longer be any investigation of these officials. The State's right to recover the ill-gotten wealth of these officials is imprescriptible.[64] Section 15, Article XI of the 1987 Constitution provides:



Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel. (Emphasis supplied)





Legally and morally, any ill-gotten wealth since the Presidency of Gen. Emilio Aguinaldo can still be recovered by the State. Thus, if the Truth Commission is required to investigate “earlier past administrations” that could still be legally investigated, the Truth Commission may have to start with the Presidency of Gen. Emilio Aguinaldo.



A fact-finding investigation of “earlier past administrations,” spanning 111 years punctuated by two world wars, a war for independence, and several rebellions ─ would obviously be an impossible task to undertake for an ad hoc body like the Truth Commission. To insist that “earlier past administrations” must also be investigated by the Truth Commission, together with the Arroyo administration, is utterly bereft of any reasonable basis other than to prevent absolutely the investigation of the Arroyo administration. No nation on this planet has even attempted to assign to one ad-hoc fact-finding body the investigation of all its senior public officials in the past 100 years.



The majority opinion’s overriding thesis − that “earlier past administrations” belong to only one class and they must all be included in the investigation of the Truth Commission, with the Truth Commission expressly empowered “to investigate all past administrations” − is even the wrong assertion of discrimination that is violative of the equal protection clause. The logical and correct assertion of a violation of the equal protection clause is that the Arroyo administration is being investigated for possible acts of graft and corruption while other past administrations similarly situated were not.



Thus, in the leading case of United States v. Armstrong,[65] decided in 1996, the U.S. Supreme Court ruled that “to establish a discrimination effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.”[66] Applied to the present petitions, petitioners must establish that similarly situated officials of other past administrations were not investigated. However, the incontrovertible and glaring fact is that the Marcoses and their cronies were investigated and prosecuted by the PCGG, President Fidel Ramos and his officials in the Centennial projects were investigated by the Saguisag Commission, and President Joseph Estrada was investigated, prosecuted and convicted of plunder under the Arroyo administration. Indisputably, the Arroyo administration is not being singled out for investigation or prosecution because other past administrations and their officials were also investigated or prosecuted.



In United States v. Armstrong, the U.S. Supreme Court further stated that “[a] selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive,”[67] citing Hecker v. Chaney[68] which held that a decision whether or not to indict “has long been regarded

as the special province of the Executive Branch, inasmuch it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’”[69] These U.S. cases already involved the prosecution of cases before the grand jury or the courts, well past the administrative fact-finding investigative phase.



In the present case, no one has been charged before the prosecutor or the courts. What petitioners want this Court to do is invalidate a mere administrative fact-finding investigation by the Executive branch, an investigative phase prior to preliminary investigation. Clearly, if courts cannot exercise the Executive’s “special province” to decide whether or not to indict, which is the equivalent of determination of probable cause, with greater reason courts cannot exercise the Executive’s “special province” to decide what or what not to investigate for administrative fact-finding purposes.



For this Court to exercise this “special province” of the President is to encroach on the exclusive domain of the Executive to execute the law in blatant violation of the finely crafted constitutional separation of power. Any unwarranted intrusion by this Court into the exclusive domain of the Executive or Legislative branch disrupts the separation of power among the three co-equal branches and ultimately invites re-balancing measures from the Executive or Legislative branch.



A claim of selective prosecution that violates the equal protection clause can be raised only by the party adversely affected by the discriminatory act. In Nunez v. Sandiganbayan,[70] this Court declared:





‘x x x Those adversely affected may under the circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason.’ x x x. (Emphasis supplied)





Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under EO 1. Even in the absence of such a claim by the proper party, the majority opinion strikes down EO 1 as discriminatory and thus violative of the equal protection clause. This is a gratuitous act to those who are not before this Court, a discriminatory exception to the rule that only those “adversely affected” by an alleged selective prosecution can invoke the equal protection clause. Ironically, such discriminatory exception is a violation of the equal protection clause. In short, the ruling of the majority is in itself a violation of the equal protection clause, the very constitutional guarantee that it seeks to enforce.



The majority opinion’s requirement that “earlier past administrations” in the last 111 years should be included in the investigation of the Truth Commission to comply with the equal protection clause is a recipe for all criminals to escape prosecution. This requirement is like saying that before a person can be charged with estafa, the prosecution must also charge all persons who in the past may have committed estafa in the country. Since it is impossible for the prosecution to charge all those who in the past may have committed estafa in the country, then it becomes impossible to prosecute anyone for estafa.



This Court has categorically rejected this specious reasoning and false invocation of the equal protection clause in People v. dela Piedra,[71] where the Court emphatically ruled:



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. x x x



x x x The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboangueña, the guilty party in appellant’s eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws.



There is also common sense practicality in sustaining appellant’s prosecution.



While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society . . . . Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime. (People v. Montgomery, 117 P.2d 437 [1941])





Likewise,



[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]).[72] (Emphasis supplied)



The Court has reiterated this “common sense” ruling in People v. Dumlao[73] and in Santos v. People,[74] for to hold otherwise is utter nonsense as it means effectively granting immunity to all criminals.



Indeed, it is a basic statutory principle that non-observance of a law by disuse is not a ground to escape prosecution for violation of a law. Article 7 of Civil Code expressly provides:



Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.



x x x. (Emphasis supplied)





A person investigated or prosecuted for a possible crime cannot raise the defense that he is being singled out because others who may have committed the same crime are not being investigated or prosecuted. Such person cannot even raise the defense that after several decades he is the first and only one being investigated or prosecuted for a specific crime. The law expressly states that disuse of a law, or custom or practice allowing violation of a law, will never justify the violation of the law or its non-observance.



A fact-finding investigation in the Executive or Judicial branch, even if limited to specific government officials ─ whether incumbent, resigned or retired ─ does not violate the equal protection clause. If an anomaly is reported in a government transaction and a fact-finding investigation is conducted, the investigation by necessity must focus on the public officials involved in the transaction. It is ridiculous for anyone to ask this Court to stop the investigation of such public officials on the ground that past public officials of the same rank, who may have been involved in similar anomalous transactions in the past, are not being investigated by the same fact-finding body. To uphold such a laughable claim is to grant immunity to all criminals, throwing out of the window the constitutional principle that “[p]ublic office is a public trust”[75] and that “[p]ublic officials and employees must at all times be accountable to the people.”[76]



When the Constitution states that public officials are “at all times” accountable to the people, it means at any time public officials can be held to account by the people. Nonsensical claims, like the selective prosecution invoked in People v. dela Piedra, are unavailing. Impossible conditions, like requiring the investigation of “earlier past administrations,” are disallowed. All these flimsy and dilatory excuses violate the clear command of the Constitution that public officials are accountable to the people “at all times.”



The majority opinion will also mean that the PCGG Charter − which tasked the PCGG to recover the ill-gotten wealth of the Marcoses and their cronies − violates the equal protection clause because the PCCG Charter specifically mentions the Marcoses and their cronies. The majority opinion reverses several decisions[77] of this Court upholding the constitutionality of the PCCG Charter, endangering over two decades of hard work in recovering ill-gotten wealth.



Ominously, the majority opinion provides from hereon every administration a cloak of immunity against any investigation by its successor administration. This will institutionalize impunity in transgressing anti-corruption and other penal laws. Sadly, the majority opinion makes it impossible to bring good governance to our government.



The Truth Commission is only a fact-finding body to provide the President with facts so that he can understand what happened in certain government transactions during the previous administration. There is no preliminary investigation yet and the Truth Commission will never conduct one. No one is even being charged before the prosecutor or the Ombudsman. This Court has consistently refused to interfere in the determination by the prosecutor of the existence of probable cause in a preliminary investigation.[78] With more reason should this Court refuse to interfere in the purely fact-finding work of the Truth Commission, which will not even determine whether there is probable cause to charge any person of a crime.



Before the President executes the law, he has the right, and even the duty, to know the facts to assure himself and the public that he is correctly executing the law. This Court has no power to prevent the President from knowing the facts to understand certain government transactions in the Executive branch, transactions that may need to be reviewed, revived, corrected, terminated or completed. If this Court can do so, then it can also prevent the House of Representatives or the Senate from conducting an investigation, in aid of legislation, on the financial transactions of the Arroyo administration, on the ground of violation of the equal protection clause. Unless, of course, the House or the Senate attempts to do the impossible ― conduct an investigation on the financial transactions of “earlier past administrations” since the Presidency of General Emilio Aguinaldo. Indeed, under the majority opinion, neither the House nor the Senate can conduct any investigation on any administration, past or present, if “earlier past administrations” are not included in the legislative investigation.



In short, the majority opinion’s requirements that EO 1 should also include “earlier past administrations,” with the Truth Commission empowered “to investigate all past administrations,” to comply with the equal protection clause, is a requirement that is not only illogical and impossible to comply, it also allows the impunity to commit graft and corruption and other crimes under our penal laws. The majority opinion completely ignores the constitutional principle that public office is a public trust and that public officials are at all times accountable to the people.



A Final Word



The incumbent President was overwhelmingly elected by the Filipino people in the 10 May 2010 elections based on his announced program of eliminating graft and corruption in government. As the Solicitor General explains it, the incumbent President has pledged to the electorate that the elimination of graft and corruption will start with the investigation and prosecution of those who may have committed large-scale corruption in the previous administration.[79] During the election campaign, the incumbent President identified graft and corruption as the major cause of poverty in the country as depicted in his campaign theme “kung walang corrupt, walang mahirap.” It was largely on this campaign pledge to eliminate graft and corruption in government that the electorate overwhelmingly voted for the incumbent President. The Filipino people do not want to remain forever at the bottom third of 178 countries ranked in terms of governments free from the scourge of corruption.[80]



Neither the Constitution nor any existing law prevents the incumbent President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that:



Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. (Emphasis supplied)



The incumbent President’s campaign pledge also reiterates the constitutional principle that “[p]ublic office is a public trust”[81] and that “[p]ublic officers and employees must at all times be accountable to the people.”[82]



This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the Filipino people to start the difficult task of putting an end to graft and corruption in government, denies the President his basic constitutional power to determine the facts in his faithful execution of the law, and suppresses whatever truth may come out in the purely fact-finding investigation of the Truth Commission. This Court, in invoking the equal protection clause to strike down a purely fact-finding investigation, grants immunity to those who violate anti-corruption laws and other penal laws, renders meaningless the constitutional principle that public office is a public trust, and makes public officials unaccountable to the people at any time.



Ironically, this Court, and even subordinates of the President in the Executive branch, routinely create all year round fact-finding bodies to investigate all kinds of complaints against officials and employees in the Judiciary or the Executive branch, as the case may be. The previous President created through executive issuances three purely fact-finding commissions similar to the Truth Commission. Yet the incumbent President, the only official mandated by the Constitution to execute faithfully the law, is now denied by this Court the power to create the purely fact-finding Truth Commission.



History will record the ruling today of the Court’s majority as a severe case of judicial overreach that made the incumbent President a diminished Executive in an affront to a co-equal branch of government, crippled our already challenged justice system, and crushed the hopes of the long suffering Filipino people for an end to graft and corruption in government.



Accordingly, I vote to DISMISS the petitions.


ANTONIO T. CARPIO
Associate Justice




DISSENTING OPINION
OF JUSTICE NACHURA:




G. R. No. 192935 - Louis “Barok” C. Biraogo, Petitioner versus The Philippine Truth Commission of 2010, Respondent.



G.R. No. 193036 - Representative Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong and Rep. Orlando B. Fua, Sr., Petitioners versus Executive Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management Secretary Florencio B. Abad, Respondents.









Promulgated:



December 7, 2010

x-----------------------------------------------------------------------------------------x



CONCURRING AND DISSENTING OPINION





NACHURA, J.:





Before us are two (2) consolidated petitions:



1. G.R. No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo (Biraogo), in his capacity as a citizen and taxpayer, assailing Executive Order (E.O.) No. 1, entitled “Creating the Philippine Truth Commission of 2010” for violating Section 1, Article VI of the 1987 Constitution; and



2. G.R. No. 193036 is a petition for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr., in their capacity as members of the House of Representatives, similarly bewailing the unconstitutionality of E.O. No. 1.



First, the all too familiar facts leading to this cause celebre.



On May 10, 2010, Benigno Simeon C. Aquino III was elected President of the Philippines. Oft repeated during his campaign for the presidency was the uncompromising slogan, “Kung walang corrupt, walang mahirap.”



Barely a month after his assumption to office, and intended as fulfillment of his campaign promise, President Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:



EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE

TRUTH COMMISSION OF 2010



WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a public office is a public trust and mandates that public officers and employees, who are servants of the people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;



WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this mandate;



WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and underprivileged sector of society;



WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s trust and confidence in the Government and its institutions;



WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;



WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections “kung walang corrupt, walang mahirap” expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;







WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;



WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the President.



NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order:



SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.



The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body.



SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendation to the President, Congress and the Ombudsman. In particular, it shall:



a) Identify and determine the reported cases of such graft and corruption which it will investigate;



b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including government-owned or controlled corporation, to produce documents, books, records and other papers;



c) Upon proper request and representation, obtain information and documents from the Senate and the House of Representatives records of investigations conducted by committees thereof relating to matters or subjects being investigated by the Commission;



d) Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;



e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as the case may be;



f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the Philippines be admitted for that purpose;



g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means of a special or interim report and recommendation, all evidence on corruption of public officers and employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under pertinent applicable laws;



h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties;



i) Engage or contract the services of resource person, professional and other personnel determined by it as necessary to carry out its mandate;



j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and hearings, including the presentation of evidence;



k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and purposes of this Order.



SECTION 3. Staffing Requirements. – The Commission shall be assisted by such assistants and personnel as may be necessary to enable it to perform its functions, and shall formulate and establish its organization structure and staffing pattern composed of such administrative and technical personnel as it may deem necessary to efficiently and effectively carry out its functions and duties prescribed herein, subject to the approval of the Department of Budget and Management. The officials of the Commission shall in particular include, but not limited to, the following:



a. General Counsel

b. Deputy General Counsel

c. Special Counsel

d. Clerk of the Commission



SECTION 4. Detail of Employees. – The President, upon recommendation of the Commission, shall detail such public officers or personnel from other department or agencies which may be required by the Commission. The detailed officers and personnel may be paid honoraria and/or allowances as may be authorized by law, subject to pertinent accounting and auditing rules and procedures.



SECTION 5. Engagement of Experts. – The Truth Commission shall have the power to engage the services of experts as consultants or advisers as it may deem necessary to accomplish its mission.



SECTION 6. Conduct of Proceedings. – The proceedings of the Commission shall be in accordance with the rules promulgated by the Commission. Hearings or proceedings of the Commission shall be open to the public. However, the Commission, motu propio, or upon the request of the person testifying, hold an executive or closed-door hearing where matters of national security or public safety are involved or when the personal safety of the witness warrants the holding of such executive or closed-door hearing. The Commission shall provide the rules for such hearing.



SECTION 7. Right to Counsel of Witnesses/Resources Persons. – Any person called to testify before the Commission shall have the right to counsel at any stage of the proceedings.



SECTION 8. Protection of Witnesses/Resource Persons. – The Commission shall always seek to assure the safety of the persons called to testify and, if necessary make arrangements to secure the assistance and cooperation of the Philippine National Police and other appropriate government agencies.



SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in accordance with law.



SECTION 10. Duty to Extend Assistance to the Commission. – The departments, bureaus, offices, agencies or instrumentalities of the Government, including government-owned and controlled corporations, are hereby directed to extend such assistance and cooperation as the Commission may need in the exercise of its powers, execution of its functions and discharge of its duties and responsibilities with the end in vies of accomplishing its mandate. Refusal to extend such assistance or cooperation for no valid or justifiable reason or adequate cause shall constitute a ground for disciplinary action against the refusing official or personnel.



SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.



SECTION 12. Office. – The Commission may avail itself of such office space which may be available in government buildings accessible to the public space after coordination with the department or agencies in control of said building or, if not available, lease such space as it may require from private owners.



SECTION 13. Furniture/Equipment. – The Commission shall also be entitled to use such equipment or furniture from the Office of the President which are available. In the absence thereof, it may request for the purchase of such furniture or equipment by the Office of the President.



SECTION. 14. Term of the Commission. – The Commission shall accomplish its mission on or before December 31, 2012.



SECTION 15. Publication of Final Report. – On or before December 31, 2012, the Commission shall render a comprehensive final report which shall be published upon the directive of the president. Prior thereto, also upon directive of the President, the Commission may publish such special interim reports it may issue from time to time.



SECTION 16. Transfer of Records and Facilities of the Commission. – Upon the completion of its work, the records of the Commission as well as its equipment, furniture and other properties it may have acquired shall be returned to the Office of the President.



SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.



SECTION 18. Separability Clause. – If any provision of this Order is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.



Section 19. Effectivity. – This Executive Order shall take effect immediately.



DONE in the City of Manila, Philippines, this 30th day of July 2010.



(SGD.) BENIGNO S. AQUINO III



By the President:



(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary





Without delay, petitioners Biraogo and Congressmen Lagman, Albano, Datumanong, and Fua filed their respective petitions decrying the constitutionality of the Truth Commission, primarily, for being a usurpation by the President of the legislative power to create a public office.



In compliance with our Resolution, the Office of the Solicitor General (OSG) filed its Consolidated Comment to the petitions. Motu proprio, the Court heard oral arguments on September 7 and 28, 2010, where we required the parties, thereafter, to file their respective memoranda.



In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1 violates Section 1, Article VI of the 1987 Constitution because it creates a public office which only Congress is empowered to do. Additionally, “considering certain admissions made by the OSG during the oral arguments,” the petitioner questions the alleged intrusion of E.O. No. 1 into the independence of the Office of the Ombudsman mandated in, and protected under, Section 5, Article XI of the 1987 Constitution.



Holding parallel views on the invalidity of the E.O., petitioner Members of the House of Representatives raise the following issues:



I.



EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF THE CONGRESS (1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2) TO APPROPRIATE PUBLIC FUNDS.



II.



EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987 CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH COMMISSION TO OFFICIALS AND EMPLOYEES OF THE “PREVIOUS ADMINISTRATION” (THE ADMINISTRATION OF OFRMER PRESIDENT GLORIA MACAPAGAL-ARROYO).



III.



EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS OF THE OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE “OMBUDSMAN ACT OF 1989.”







Expectedly, in its Memorandum, the OSG traverses the contention of petitioners and upholds the constitutionality of E.O. No. 1 on the strength of the following arguments:



I.



PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH THE ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING TO ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.



II.



EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO. 1 DOES NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE AND TO APPROPRIATE FUNDS FOR ITS OPERATIONS.



III.



THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR NATION-BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND CONSEQUENCES OF CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS FOR THEIR REDRESS AND FUTURE PREVENTION. ALTHOUGH ITS INVESTIGATION MAY CONTRIBUTE TO SUBSEQUENT PROSECUTORIAL EFFORTS, THE COMMISSION WILL NOT ENCROACH BUT COMPLEMENT THE POWERS OF THE OMBUDSMAN AND THE DOJ IN INVESTIGATING CORRUPTION.

IV.



EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE AND LAUDABLE PURPOSES.



In resolving these issues, the ponencia, penned by the learned Justice Jose Catral Mendoza, concludes that:



1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the transcendental importance of the issues involved, while petitioner Members of the House of Representatives have standing to question the validity of any official action which allegedly infringes on their prerogatives as legislators;



2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the President’s power to reorganize under the Administrative Code of 1987;



3. However, the President’s power to create the herein assailed Truth Commission is justified under Section 17,[1] Article VII of the Constitution, albeit what may be created is merely an ad hoc Commission;



4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor erode their respective powers; and



5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause enshrined in Section 1, Article III of the Constitution.



I agree with the ponencia that, given our liberal approach in David v. Arroyo[2] and subsequent cases, petitioners have locus standi to raise the question of constitutionality of the Truth Commission’s creation. I also concur with Justice Mendoza’s conclusion that the Truth Commission will not supplant the Office of the Ombudsman or the DOJ, nor impermissibly encroach upon the latter’s exercise of constitutional and statutory powers.



I agree with the ponencia that the President of the Philippines can create an ad hoc investigative body. But more than that, I believe that, necessarily implied from his power of control over all executive departments and his constitutional duty to faithfully execute the laws, as well as his statutory authority under the Administrative Code of 1987, the President may create a public office.



However, I find myself unable to concur with Justice Mendoza’s considered opinion that E.O. No. 1 breaches the constitutional guarantee of equal protection of the laws.



Let me elucidate.



The Truth Commission is a Public Office



The first of two core questions that confront the Court in this controversy is whether the President of the Philippines can create a public office. A corollary, as a consequence of statements made by the Solicitor General during the oral argument, is whether the Truth Commission is a public office.



A public office is defined as the right, authority, or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public.[3] Public offices are created either by the Constitution, by valid statutory enactments, or by authority of law. A person who holds a public office is a public officer.



Given the powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that the Truth Commission is a public office, and the Chairman and the Commissioners appointed thereto, public officers.



As will be discussed hereunder, it is my respectful submission that the President of the Philippines has ample legal authority to create a public office, in this case, the Truth Commission. This authority flows from the President’s constitutional power of control in conjunction with his constitutional duty to ensure that laws be faithfully executed, coupled with provisions of a valid statutory enactment, E.O. No. 292, otherwise known as the Administrative Code of 1987.



E. O. No. 1 and the Executive Power



Central to the resolution of these consolidated petitions is an understanding of the “lines of demarcation” of the powers of government, i.e., the doctrine of separation of powers. The landmark case of Government of the Philippine Islands v. Springer[4] has mapped out this legal doctrine:



The Government of the Philippines Islands is an agency of the Congress of the United States. The powers which the Congress, the principal, has seen fit to entrust to the Philippine Government, the agent, are distributed among three coordinate departments, the executive, the legislative, and the judicial. It is true that the Organic Act contains no general distributing clause. But the principle is clearly deducible from the grant of powers. It is expressly incorporated in our Administrative Code. It has time and again been approvingly enforced by this court.



No department of the government of the Philippine Islands may legally exercise any of the powers conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no such explicit prohibitions. But it is fairly implied by the division of the government into three departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly been announced by this court that each of the branches of the Government is in the main independent of the others. The doctrine is too firmly imbedded in Philippine institutions to be debatable.



It is beyond the power of any branch of the Government of the Philippine islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An Act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this court and other courts is derived from the constitutional provisions.



x x x



The Organic Act vests “the supreme executive power” in the Governor-General of the Philippine Islands. In addition to specified functions, he is given “general supervisions and control of all the departments and bureaus of the government of the Philippine Islands as far is not inconsistent with the provisions of this Act.” He is also made “responsible for the faithful execution of the laws of the Philippine islands and of the United States operative within the Philippine Islands.” The authority of the Governor-General is made secure by the important proviso “that all executive functions of Government must be directly under the governor-General or within one of the executive departments under the supervision and control of the governor-general.” By the Administrative Code, “the governor-general, as Chief executive of the islands, is charged with the executive control of the Philippine Government, to be exercised in person or through the Secretaries of Departments, or other proper agency, according to law.”



These “lines of demarcation” have been consistently recognized and upheld in all subsequent Organic Acts applied to the Philippines, including the present fundamental law, the 1987 Constitution.



Section 1, Article VII of the 1987 Constitution[5] vests executive power in the President of the Philippines. On the nature of the executive power, Justice Isagani A. Cruz writes:



Executive power is briefly described as the power to enforce and administer the laws, but it is actually more than this. In the exercise of this power, the President of the Philippines assumes a plenitude of authority, and the corresponding awesome responsibility, that makes him, indeed, the most influential person in the land.[6]





In National Electrification Administration v. Court of Appeals,[7] this Court said that, as the administrative head of the government, the President is vested with the power to execute, administer and carry out laws into practical operation. Impressed upon us, then, is the fact that executive power is the power of carrying out the laws into practical operation and enforcing their due observance.



Relevant to this disquisition are two specific powers that flow from this “plenitude of authority.” Both are found in Section 17, Article VII of the Constitution.[8] They are commonly referred to as the power of control and the take care clause.



Section 17 is a self-executing provision. The President’s power of control is derived directly from the Constitution and not from any implementing legislation.[9] On the other hand, the power to take care that the laws be faithfully executed makes the President a dominant figure in the administration of the government. The law he is supposed to enforce includes the Constitution itself, statutes, judicial decisions, administrative rules and regulations and municipal ordinances, as well as the treaties entered into by our government.[10] At almost every cusp of executive power is the President’s power of control and his constitutional obligation to ensure the faithful execution of the laws.



Demonstrating the mirabile dictu of presidential power and obligation, we declared in Ople v. Torres:[11]



As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.



Mondano v. Silvosa,[12] defines the power of control as “the power of an officer to alter, modify, or set aside what a subordinate officer had done in the performance of his duties, and to substitute the judgment of the former for that of the latter.” It includes the authority to order the doing of an act by a subordinate, or to undo such act or to assume a power directly vested in him by law.[13]



In this regard, Araneta v. Gatmaitan[14] is instructive:



If under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban fishing by trawl, then the President of the Philippines may exercise the same power and authority because of the following: (a) The President shall have control of all the executive departments, bureaus or offices pursuant to Section 10(1), Article VII, of the Constitution; (b) Executive Orders may be issued by the President under Section 63 of the Revised Administrative Code :governing the general performance of duties by public employees or disposing of issues of general concern;” and (c) Under Section 74 of the Revised Administrative Code, “All executive functions of the Government of the Republic of the Philippines shall be directly under the Executive Department, subject to the supervision and control of the President of the Philippines in matters of general policy.”



Our ruling in City of Iligan v. Director of Lands[15] echoes the same principle in this wise:



Since it is the Director of Lands who has direct executive control among others in the lease, sale or any form of concession or disposition of the land of the public domain subject to the immediate control of the Secretary of Agriculture and Natural Resources, and considering that under the Constitution the President of the Philippines has control over all executive departments, bureaus and offices, etc., the President of the Philippines has therefore the same authority to dispose of the portions of the public domain as his subordinates, the Director of Lands, and his alter-ego the Secretary of Agriculture and Natural Resources.





From these cited decisions, it is abundantly clear that the overarching framework in the President’s power of control enables him to assume directly the powers of any executive department, bureau or office. Otherwise stated, whatever powers conferred by law upon subordinate officials within his control are powers also vested in the President of the Philippines. In contemplation of law, he may directly exercise the powers of the Secretary of Foreign Affairs, the Secretary of National Defense, the Commissioner of Customs, or of any subordinate official in the executive department. Thus, he could, for example, take upon himself the investigatory functions of the Department of Justice, and personally conduct an investigation. If he decides to do so, he would be at liberty to delegate a portion of this investigatory function to a public officer, or a panel of public officers, within his Office and under his control. There is no principle of law that proscribes his doing so. In this context, the President may, therefore, create an agency within his Office to exercise the functions, or part of the functions, that he has assumed for himself. Even the ponencia admits that this can be done.



When this power of control is juxtaposed with the constitutional duty to ensure that laws be faithfully executed, it is obvious that, for the effective exercise of the take care clause, it may become necessary for the President to create an office, agency or commission, and charge it with the authority and the power that he has chosen to assume for himself. It will not simply be an exercise of the power of control, but also a measure intended to ensure that laws are faithfully executed.



To reiterate, the take care clause is the constitutional mandate for the President to ensure that laws be faithfully executed. Dean Vicente G. Sinco observed that the President’s constitutional obligation of ensuring the faithful execution of the laws “is a fundamental function of the executive head [involving] a two-fold task, [i.e.,] the enforcement of laws by him and the enforcement of laws by other officers under his direction.” [16]



As adverted to above, the laws that the President is mandated to execute include the Constitution, statutes, judicial decisions, administrative rules and regulations and municipal ordinances. Among the constitutional provisions that the President is obliged to enforce are the following General Principles and State Policies of the 1987 Philippine Constitution:



Section 4, Article II: The prime duty of government is to serve and protect the people x x x



Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.



Section 9, Article II: The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.



Section 13, Article II: The State values the dignity of every human person and guarantees full respect for human rights.



Section 27, Article II: The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.



Section 28, Article II: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.





Closer to home, as head of the biggest bureaucracy in the country, the President must also see to the faithful execution of Section 1, Article XI of the Constitution, which reads: “Public office is a public trust. Public officers and employees must at all times be accountable to the people; serve them with utmost responsibility, integrity, loyalty and efficiency; act with patriotism and justice; and lead modest lives.”



These are constitutional provisions the enforcement of which is inextricably linked to the spirit and objective of E.O. No. 1.



Although only Section 1, Article XI, is cited in the Whereas clauses of E. O. No. 1, the President is obliged to execute the other constitutional principles as well. Absent any law that provides a specific manner in which these constitutional provisions are to be enforced, or prohibits any particular mode of enforcement, the President could invoke the doctrine of necessary implication, i.e., that the express grant of the power in Section 17, Article VII, for the President to faithfully execute the laws, carries with it the grant of all other powers necessary, proper, or incidental to the effective and efficient exercise of the expressly granted power.[17] Thus, if a Truth Commission is deemed the necessary vehicle for the faithful execution of the constitutional mandate on public accountability, then the power to create the same would necessarily be implied, and reasonably derived, from the basic power granted in the Constitution. Accordingly, the take care clause, in harmony with the President’s power of control, along with the pertinent provisions of the Administrative Code of 1987, would justify the issuance of E. O. No. 1 and the creation of the Truth Commission.



Further to this discussion, it is cogent to examine the administrative framework of Executive Power, as outlined in the Administrative Code.



Quite logically, the power of control and the take care clause precede all others in the enumeration of the Powers of the President. Section 1, Book III, Title I simply restates the constitutional provision, to wit:



SECTION 1. Power of Control.—The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.





Next in the enumeration is the ordinance power of the President which defines executive orders, thus:



SEC. 2. Executive Orders. - Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.



At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of the President, which include the residual power, viz:



SEC. 19. Powers Under the Constitution.—The President shall exercise such other powers as are provided for in the Constitution.



SEC. 20. Residual Powers.—Unless Congress provides otherwise, the president shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.



In addition, pursuant to the organizational structure of the Executive Department,[18] one of the powers granted to the President is his continuing authority to reorganize his Office:[19]



SEC. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:



(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;



(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and



(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies.





Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The Executive Branch) that “[t]he Executive Branch shall have such Departments as are necessary for the functional distribution of the work of the President and for the performance of their functions.” Hence, the primary articulated policy in the Executive Branch is the organization and maintenance of the Departments to insure their capacity to plan and implement programs in accordance with established national policies.[20]



With these Administrative Code provisions in mind, we note the triptych function of the Truth Commission, namely: (1) gather facts; (2) investigate; and (3) recommend, as set forth in Section 1 of E.O. No. 1:



SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall [1] primarily seek and find the truth on, and toward this end, [2] investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter [3] recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. (emphasis and numbering supplied)



It is plain to see that the Truth Commission’s fact-finding and investigation into “reports of large scale corruption by the previous administration” involve policy-making on issues of fundamental concern to the President, primarily, corruption and its linkage to the country’s social and economic development.



On this point, I differ from the ponencia, as it reads the President’s power to reorganize in a different light, viz:



The question, therefore, before the Court is this: Does the creation of the Truth Commission fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates “reorganization” as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent by a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer is in the negative.



x x x



xxx [T]he creation of the Truth Commission is not justified by the president’s power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.



I am constrained to disagree because, contrary to the ponencia’s holding, the President’s power to reorganize is not limited by the enumeration in Section 31 of the Administrative Code.



As previously discussed, the President’s power of control, in conjunction with his constitutional obligation to faithfully execute the laws, allows his direct assumption of the powers and functions of executive departments, bureaus and offices.[21] To repeat, the overarching framework in the President’s power of control enables him to assume directly the functions of an executive department. On the macro level, the President exercises his power of control by directly assuming all the functions of executive departments, bureaus or offices. On the micro level, the President may directly assume certain or specific, not all, functions of a Department. In the milieu under which the Truth Commission is supposed to operate, pursuant to E. O. No. 1, only the investigatory function of the DOJ for certain crimes is directly assumed by the President, then delegated to the Truth Commission. After all, it is axiomatic that the grant of broad powers includes the grant of a lesser power; in this case, to be exercised — and delegated —at the President’s option.



My conclusion that the transfer of functions of a Department to the Office of the President falls within the President’s power of reorganization is reinforced by jurisprudence.



In Larin v. Executive Secretary,[22] the Court sustained the President’s power to reorganize under Section 20, Book III of E.O. 292, in relation to PD No. 1416, as amended by PD No. 1772:

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:



“Sec. 20. Residual Powers.—Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.



This provision speaks of such other powers vested in the president under the law. What law then gives him the power to reorganize? It is Presidential decree No. 1772 which amended Presidential Decree no. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that “all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked.” So far, there is yet not law amending or repealing said decrees.





Subsequently, Buklod ng Kawaning EIIB v. Zamora,[23] affirmed the holding in Larin and explicitly recognized the President’s authority to transfer functions of other Departments or Agencies to the Office of the President, consistent with his powers of reorganization, to wit:



But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very sources of the power—that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), “the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the president.” For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” It takes place when there is an alteration of the existing structure of government or units therein, including the lines of control, authority and responsibility between them. xxx (emphasis supplied)



Then, and quite significantly, in Bagaoisan v. National Tobacco Administration,[24] this Court clarified the nature of the grant to the President of the power to reorganize the administrative structure of the Office of the President, thus:



In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon. Ronaldo d. Zamora, in his capacity as the Executive Secretary, et. al., this Court has had occasion to also delve on the President’s power to reorganize the Office of the President under Section 31 (2) and (3) of Executive Order No. 292 and the power to reorganize the Office of the President Proper. The Court has there observed:



“x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office of the President Proper by abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast, under Section 31(2) and (3) of EO 292, the President’s power to reorganize offices outside the Office of the President Proper but still within the Office of the President is limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies, and vice versa.”



The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative code of 1987), above-referred to, reads thusly:



Sec. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:



(1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;



(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and



(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies.



The first sentence of the law is an express grant to the President of a continuing authority to reorganize the administrative structure of the Office of the President. The succeeding numbered paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize but are to be viewed in consonance therewith. Section 31(1) of Executive order No. 292 specifically refers to the President’s power to restructure the internal organization of the Office of the President Proper, by abolishing, consolidating or merging units hereof or transferring functions from unit to another, while Section 31(2) and (3) concern executive offices outside the Office of the President Proper allowing the President to transfer any function under the Office of the President to any other Department or Agency and vice versa, and the transfer of any agency under the Office of the President to any other department or agency and vice versa. (Emphasis supplied)





Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as amended by P.D. No. 1772, the abstraction of the Truth Commission, as fortified by the President’s power to reorganize found in paragraph 2, Section 31 of the Administrative Code, is demonstrably permitted.



That the Truth Commission is a derivative of the reorganization of the Office of the President should brook no dissent. The President is not precluded from transferring and re-aligning the fact-finding functions of the different Departments regarding certain and specific issues, because ultimately, the President’s authority to reorganize is derived from the power-and-duty nexus fleshed out in the two powers granted to him in Section 17, Article VII of the Constitution.[25]

I earnestly believe that, even with this Court’s expanded power of judicial review, we still cannot refashion, and dictate on, the policy determination made by the President concerning what function, of whichever Department, regarding specific issues, he may choose to directly assume and take cognizance of. To do so would exceed the boundaries of judicial authority and encroach on an executive prerogative. It would violate the principle of separation of powers, the constitutional guarantee that no branch of government should arrogate unto itself those functions and powers vested by the Constitution in the other branches.[26]



In fine, it is my submission that the Truth Commission is a public office validly created by the President of the Philippines under authority of law, as an adjunct of the Office of the President — to which the President has validly delegated the fact-finding and investigatory powers [of the Department of Justice] which he had chosen to personally assume. Further, it is the product of the President’s exercise of the power to reorganize the Office of the President granted under the Administrative Code.



This conclusion inevitably brings to the threshold of our discussion the matter of the “independence” of the Truth Commission, subject of an amusing exchange we had with the Solicitor General during the oral argument, and to which the erudite Justice Arturo D. Brion devoted several pages in his Separate Concurring Opinion. The word “independent,” as used in E. O. No. 1, cannot be understood to mean total separateness or full autonomy from the Office of the President. Being a creation of the President of the Philippines, it cannot be totally dissociated from its creator. By the nature of its creation, the Truth Commission is intimately linked to the Office of the President, and the Executive Order, as it were, is the umbilical cord that binds the Truth Commission to the Office of the President.



The word “independent,” used to describe the Commission, should be interpreted as an expression of the intent of the President: that the Truth Commission shall be accorded the fullest measure of freedom and objectivity in the pursuit of its mandate, unbound and uninhibited in the performance of its duties by interference or undue pressure coming from the President. Our exchange during the oral argument ended on this note: that while the Truth Commission is, technically, subject to the power of control of the President, the latter has manifested his intention, as indicated in the Executive Order, not to exercise the power over the acts of the Commission.



E. O. No. 1 and the Equal Protection Clause



Enshrined in Section 1, Article III of the Philippine Constitution is the assurance that all persons shall enjoy the equal protection of the laws, expressed as follows:



Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. (emphasis supplied)





The equality guaranteed under this clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished.[27] When things or persons are different in fact or circumstances, they may be treated in law differently. On this score, this Court has previously intoned that:



The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.[28]



Thus, when a statute or executive action is challenged on the ground that it violates the equal protection clause, the standards of judicial review are clear and unequivocal:



It is an established principle in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on a reasonable classification. Classification, to be valid, must: (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.[29]





Further, in a more recent decision, we also declared:



In consonance thereto, we have held that “in our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the ‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.” x x x.



Under this test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. The classifications must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Since every law has in its favor the presumption of constitutionality, the burden of proof is on the one attacking the constitutionality of the law to prove beyond reasonable doubt that the legislative classification is without rational basis. The presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes, and that there is no conceivable basis which might support it.[30]

The “rational basis” test is one of three “levels of scrutiny” analyses developed by courts in reviewing challenges of unconstitutionality against statutes and executive action. Carl Cheng, in his dissertation, “Important Right and the Private Attorney General Doctrine,”[31] enlightens us, thus:



[I]n the area of equal protection analysis, the judiciary has developed a ‘level of scrutiny’ analysis for resolving the tensions inherent in judicial review. When engaging in this analysis, a court subjects the legislative or executive action to one of three levels of scrutiny, depending on the class of persons and the rights affected by the action. The three levels are rational basis scrutiny, intermediate scrutiny, and strict scrutiny. If a particular legislative or executive act does not survive the appropriate level of scrutiny, the act is held to be unconstitutional. If it does survive, it is deemed constitutional. The three tensions discussed above and, in turn, the three judicial responses to each, run parallel to these three levels of scrutiny. In response to each tension, the court applies a specific level of scrutiny.



He goes on to explain these “levels of scrutiny”, as follows:



The first level of scrutiny, rational basis scrutiny, requires only that the purpose of the legislative or executive act not be invidious or arbitrary, and that the act’s classification be reasonably related to the purpose. Rational basis scrutiny is applied to legislative or executive acts that have the general nature of economic or social welfare legislation. While purporting to set limits, rational basis scrutiny in practice results in complete judicial deference to the legislature or executive. Thus, a legislative or executive act which is subject to rational basis scrutiny is for all practical purposes assured of being upheld as constitutional.



The second level of scrutiny, intermediate scrutiny, requires that the purpose of the legislative or executive act be an important governmental interest and that the act’s classification be significantly related to the purpose. Intermediate scrutiny has been applied to classifications based on gender and illegitimacy. The rationale for this higher level of scrutiny is that gender and illegitimacy classifications historically have resulted from invidious discrimination. However, compared to strict scrutiny, intermediate scrutiny’s presumption of invidious discrimination is more readily rebutted, since benign motives are more likely to underlie classifications triggering intermediate scrutiny.



The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the legislative or executive act’s purpose be a compelling state interest and that the act’s classification be narrowly tailored to the purpose. Strict scrutiny is triggered in two situations: (1) where the act infringes on a fundamental right; and (2) where the act’s classification is based on race or national origin. While strict scrutiny purports to be only a very close judicial examination of legislative or executive acts, for all practical purposes, an act subject to strict scrutiny is assured of being held unconstitutional. (Citations omitted.)





It is noteworthy that, in a host of cases, this Court has recognized the applicability of the foregoing tests. Among them are City of Manila v. Laguio, Jr.,[32] Central Bank Employees Association v. Bangko Sentral ng Pilipinas,[33] and British American Tobacco v. Camacho, et al.,[34] in all of which the Court applied the minimum level of scrutiny, or the rational basis test.



It is important to remember that when this Court resolves an equal protection challenge against a legislative or executive act, “[w]e do not inquire whether the [challenged act] is wise or desirable xxx. Misguided laws may nevertheless be constitutional. Our task is merely to determine whether there is ‘some rationality in the nature of the class singled out.’”[35]



Laws classify in order to achieve objectives, but the classification may not perfectly achieve the objective.[36] Thus, in Michael M. v. Supreme Court of Sonoma County,[37] the U.S. Supreme Court said that the relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line chosen [by the legislature] is within constitutional limitations. The equal protection clause does not require the legislature to enact a statute so broad that it may well be incapable of enforcement.[38]



It is equally significant to bear in mind that when a governmental act draws up a classification, it actually creates two classes: one consists of the people in the “statutory class” and the other consists precisely of those people necessary to achieve the objective of the governmental action (the “objective class”).[39] It could happen that –



The “statutory class” may include “more” than is necessary in the classification to achieve the objective. If so, the law is “over-inclusive.” The classification may also include “less” than is necessary to achieve the objective. If so, the statute is “under-inclusive.”



A curfew law, requiring all persons under age eighteen to be off the streets between the hours of midnight and 6 a.m., presumably has as its objective the prevention of street crime by minors; this is “over-inclusive” since the class of criminal minors (the objective class) is completely included in the class of people under age eighteen (the statutory class), but many people under age eighteen are not part of the class of criminal minors.



A city ordinance that bans streetcar vendors in a heavily visited “tourist quarter” of the city in order to alleviate sidewalk and street congestion is “under-inclusive”. All streetcar vendors (the statutory class) contribute toward sidewalk and street congestion, but the class of people causing sidewalk and street congestion (the objective class) surely includes many others as well.



It is rare if not virtually impossible for a statutory class and an objective class to coincide perfectly.[40]





And, as the ponencia itself admits, “under-inclusion” or “over-inclusion, per se, is not enough reason to invalidate a law for violation of the equal protection clause, precisely because perfection in classification is not required.[41]



Thus, in the determination of whether the classification is invidious or arbitrary, its relation to the purpose must be examined. Under the rational basis test, the presence of any plausible legitimate objective for the classification, where the classification serves to accomplish that objective to

any degree, no matter how tiny, would validate the classification. To be invalidated on constitutional grounds, the test requires that the classification must have one of the following traits: (1) it has absolutely no conceivable legitimate purpose; or (2) it is so unconnected to any conceivable objective, that it is absurd, utterly arbitrary, whimsical, or even perverse.[42]



Given the foregoing discussion on this constitutional guarantee of equal protection, we now confront the question: Does the mandate of Executive Order No. 1, for the Truth Commission to investigate “graft and corruption during the previous administration,” violate the equal protection clause?



I answer in the negative.



First, because Executive Order No. 1 passes the rational basis test.



To repeat, the first level of scrutiny known as the rational basis test, requires only that the purpose of the legislative or executive act not be invidious or arbitrary, and that the act’s classification be reasonably related to the purpose. The classification must be shown to rationally further a legitimate state interest.[43] In its recent equal protection jurisprudence, the Court has focused primarily upon (1) the “rationality” of the government’s distinction, and (2) the “purpose” of that distinction.



To the point, we look at the definition of an executive order and the articulated purpose of E.O. No. 1.



An executive order is an act of the President providing for rules in implementation or execution of constitutional or statutory powers.[44] From this definition, it can easily be gleaned that E. O. No. 1 is intended to implement a number of constitutional provisions, among others, Article XI, Section 1. In fact, E.O. No. 1 is prefaced with the principle that “public office is a public trust” and “public officers and employees, who are servants of the people, must at all time be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.”



What likewise comes to mind, albeit not articulated therein, is Article II, Section 27, of the 1987 Constitution, which declares that “[t]he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” In addition, the immediately following section provides: “[s]ubject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”[45] There is also Article XI, Section 1, which sets the standard of conduct of public officers, mandating that “[p]ublic officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.” There is, therefore, no gainsaying that the enforcement of these provisions, i.e., the fight against corruption, is a compelling state interest.



Not only does the Constitution oblige the President to ensure that all laws be faithfully executed,[46] but he has also taken an oath to preserve and defend the Constitution.[47] In this regard, the President’s current approach to restore public accountability in government service may be said to involve a process, starting with the creation of the Truth Commission.



It is also no secret that various commissions had been established by previous Presidents, each specifically tasked to investigate certain reports and issues in furtherance of state interest. Among the latest of such commissions is the Zeñarosa Commission, empowered to investigate the existence of private armies, as well as the Maguindanao Massacre.[48]



Under E.O. No. 1, the President initially classified the investigation of reports of graft and corruption during the previous administration because of his avowed purpose to maintain the public trust that is characteristic of a public office. The first recital (paragraph) of E.O. No. 1 does not depart therefrom. The succeeding recitals (paragraphs) enumerate the causality of maintaining public office as a public trust with corruption as “among the most despicable acts of defiance of this principle and notorious violation of this mandate.” Moreover, the President views corruption as “an evil and scourge which seriously affects the political, economic, and social life of a nation.” Thus, the incumbent President has determined that the first phase of his fight against graft and corruption is to have reports thereof during the previous administration investigated. There is then a palpable relation between the supposed classification and the articulated purpose of the challenged executive order.



The initial categorization of the issues and reports which are to be the subject of the Truth Commission’s investigation is the President’s call. Pursuing a system of priorities does not translate to suspect classification resulting in violation of the equal protection guarantee. In his assignment of priorities to address various government concerns, the President, as the

Chief Executive, may initially limit the focus of his inquiry and investigate issues and reports one at a time. As such, there is actually no differential treatment that can be equated to an invalid classification.



E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because there is a claimed inequality on its face or in the manner it is to be applied. On its face, there is actually no class created. The ponencia harps on three provisions in the executive order directing the conduct of an investigation into cases of large scale graft and corruption “during the previous administration.” On that basis, the ponencia concludes that there is invidious discrimination, because the executive order is focused only on the immediate past administration.



I disagree. While the phrase “previous administration” alludes to persons, which may, indeed, be a class within the equal protection paradigm, it is important to note that the entire phrase is “during the previous administration,” which connotes a time frame that limits the scope of the Commission’s inquiry. The phrase does not really create a separate class; it merely lays down the pertinent period of inquiry. The limited period of inquiry, ostensibly (but only initially) excluding administrations prior to the immediate past administration, is not, per se, an intentional and invidious discrimination anathema to a valid classification. Even granting that the phrase creates a class, E.O. No. 1 has not, as yet, been given any room for application, since barely a few days from its issuance, it was subjected to a constitutional challenge. We cannot allow the furor generated by this controversy over the creation of the Truth Commission to be an excuse to apply the strict scrutiny test, there being no basis for a facial challenge, nor for an “as-applied” challenge.

To reiterate for emphasis, the determination of the perceived instances of graft and corruption that ought to claim priority of investigation is addressed to the executive, as it involves a policy decision. This determination must not to be overthrown simply because there are other instances of graft and corruption which the Truth Commission should also investigate.[49] In any event, Section 17 of E.O. No. 1 responds to this objection, when it provides:



SECTION 17. Special Provision Concerning Mandate. – If and when in the judgment of the President there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive Order.



It may also be pointed out that E.O. No. 1 does not confer a right nor deprive anyone of the exercise of his right. There is no right conferred nor liability imposed that would constitute a burden on fundamental rights so as to justify the application of the strict scrutiny test. A fact-finding investigation of certain acts of public officers committed during a specific period hardly merits this Court’s distraction from its regular functions. If we must exercise the power of judicial review, then we should use the minimum level of scrutiny, the rational basis test.



On more than one occasion, this Court denied equal protection challenges to statutes without evidence of a clear and intentional discrimination.[50] The pervasive theme in these rulings is a claim of discriminatory prosecution, not simply a claim of discriminatory investigation. In People v. Piedra,[51] we explained:



The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed to show that, in charging appellant in court, that there was a "clear and intentional discrimination" on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting officers regularly performed their duties, and this presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellant's prosecution.


While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime.

Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown. (emphasis supplied.)



Evidently, the abstraction of the President’s power to directly prosecute crimes, hand in hand with his duty to faithfully execute the laws, carries with it the lesser power of investigation. To what extent, then, should this Court exercise its review powers over an act of the President directing the conduct of a fact-finding investigation that has not even commenced? These are clearly issues of wisdom and policy. Beyond what is presented before this Court, on its face, the rest remains within the realm of speculation.



It bears stressing that by tradition, any administration’s blueprint for governance covers a wide range of priorities. Contrary to the ponencia’s conclusion, such a roadmap for governance obviously entails a “step by step” process in the President’s system of priorities.



Viewed in this context, the fact that the “previous administration” was mentioned thrice in E.O. No. 1, as pointed out by the ponencia, is not “purposeful and intentional discrimination” which violates the equal protection clause. Such a circumstance does not demonstrate a “history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”[52] It simply has to be taken in the light of the President’s discretion to determine his government’s priorities.



It, therefore, remains unclear how the equal protection clause is violated merely because the E. O. does not specify that reports of large scale graft and corruption in other prior administrations should likewise be investigated. Notably, the investigation of these reports will not automatically lead to prosecution, as E.O No. 1 only authorizes the investigation of certain reports with an accompanying recommended action.

The following provisions of the executive order are too clear to brook objection:



1. 5th Whereas Clause

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in the Government and in their public servants;





2. Section 1



SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by the public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.





3. Section 2

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendation to the President, Congress and the Ombudsman.



Second, petitioners do not even attempt to overthrow the presumption of constitutionality of executive acts. They simply hurl pastiche arguments hoping that at least one will stick.



In any imputed violations of the equal protection clause, the standard of judicial review is always prefaced by a presumption of constitutionality:

As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored principle that statute is presumed to be valid. This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other’s acts. Hence, to doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies were made by Congress, or the President, or both, to insure that the Constitution would not be breached. This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, before a statute or a portion thereof may be declared unconstitutional, it must be shown that the statute or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or hesitation in the mind of the Court.[53]



Clearly, the acts of the President, in the exercise of his or her power, is preliminarily presumed constitutional such that the party challenging the constitutionality thereof (the executive act) on equal protection grounds bears the heavy burden of showing that the official act is arbitrary and capricious.[54]



Indeed, laws or executive orders, must comply with the basic requirements of the Constitution, and as challenged herein, the equal protection of the laws. Nonetheless, only in clear cases of invalid classification violative of the equal protection clause will this Court strike down such laws or official actions.



Third, petitioner Members of the House of Representatives are not proper parties to challenge the constitutionality of E.O. No. 1 on equal protection grounds. Petitioner Members of the House of Representatives cannot take up the lance for the previous administration. Under all three levels of scrutiny earlier discussed, they are precluded from raising the equal protection of the laws challenge. The perceptive notation by my esteemed colleague, Justice Carpio Morales, in her dissent, comes to life when she observes that petitioner Members of the House of Representatives cannot vicariously invoke violation of equal protection of the laws. Even assuming E.O. No. 1 does draw a classification, much less an unreasonable one, petitioner Members of the House of Representatives, as well as petitioner Biraogo, are not covered by the supposed arbitrary and unreasonable classification.



If we applied both intermediate and strict scrutiny, the nakedness of petitioners’ arguments are revealed because they do not claim violation of any of their fundamental rights, nor do they cry discrimination based on race, gender and illegitimacy. Petitioners’ equal protection clause challenge likewise dissolves when calibrated against the purpose of E.O. No. 1 and its supposed classification of the administration which the Truth Commission is tasked to investigate. Nowhere in the pleadings of petitioners and their claim of violation of separation of powers and usurpation of legislative power by the executive is it established how such violation or usurpation translates to violation by E.O. No. 1 of the equal protection of the laws. Thus, no reason exists for the majority to sustain the challenge of equal protection if none of the petitioners belong to the class, claimed by the majority to be, discriminated against.



Finally, I wish to address the proposition contained in Justice Brion’s concurrence— the creation of the Truth Commission has a reasonable objective, albeit accomplished through unreasonable means. According to him, E.O. No. 1 is objectionable on due process grounds as well. He propounds that the “truth-telling” function of the Truth Commission violates due process because it primes the public to accept the findings of the Commission as actual and gospel truth.



Considering all the foregoing discussion, I must, regrettably, disagree with the suggestion. Peculiar to our nation is a verbose Constitution. Herein enshrined are motherhood statements— exhortations for public officers to follow. A quick perusal of E.O. No. 1 bears out a similar intonation. Although the Solicitor General may have made certain declarations, read as admissions by the other Members of this Court, these cannot bind the Supreme Court in interpreting the constitutional grant of executive power. The matter is simply a failure of articulation which cannot be used to diminish the power of the executive. On the whole, the erroneous declarations of the Solicitor General, preempting and interpreting the President’s exercise of executive power beyond the articulated purpose of E.O. No. 1, is not equivalent to the wrongful exercise by the President of executive power.



Let me then close this dissertation with Marcos v. Manglapus[55] which trailblazed and redefined the extent of judicial review on the powers of the co-equal branches of government, in particular, executive power:



Under the Constitution, judicial power includes the duty to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of the Government.” xxx



The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court’s jurisdiction the determination which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President’s recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.



There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberation of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining “judicial power,” which specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia that:



Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.



In the exercise of such authority, the function of the Court is merely to check—not to supplant—the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.



It is for the foregoing reasons that I vote to DISMISS the petitions.







ANTONIO EDUARDO B. NACHURA

Associate Justice




DISSENTING OPINION
OF JUSTICE ABAD:




EN BANC





G.R. No. 192935 -- Louis “Barok” C. Biraogo, Petitioner, versus The Philippine Truth Commission of 2010, Respondent.



G.R. No. 193036 -- Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr., Petitioners, versus Executive Secretary Paquito N. Ochoa, Jr. and Department of Budget and Management Secretary Florencio B. Abad, Respondents.



Promulgated:



December 7, 2010

x ---------------------------------------------------------------------------------------- x



SEPARATE

DISSENTING OPINION



ABAD, J.:



Brief Background



As the opinion written for the majority by Justice Jose Catral Mendoza says, President Benigno Simeon Aquino III (President P-Noy to distinguish him from former President Corazon C. Aquino) campaigned on a platform of “kung walang corrupt, walang mahirap.” On being elected President, he issued Executive Order 1,[1] creating the Philippine Truth Commission of 2010 that he tasked with the investigation of reported corruption during the previous administration. The Truth Commission is to submit its findings and recommendations to the President, the Congress, and the Ombudsman.



Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr. have come to this Court to challenge the Constitutionality of Executive Order 1.



The Issues Presented



The parties present four issues:



1. Whether or not petitioners have legal standing to challenge the constitutionality of Executive Order 1;



2. Whether or not Executive Order 1 usurps the authority of Congress to create and appropriate funds for public offices, agencies, and commissions;



3. Whether or not Executive Order 1 supplants the powers of the Ombudsman and the DOJ; and



4. Whether or not Executive Order 1 violates the equal protection clause in that it singles out the previous administration for investigation.



Discussion



The majority holds that petitioners have standing before the Court; that President P-Noy has the power to create the Truth Commission; that he has not usurped the powers of Congress to create public offices and appropriate funds for them; and, finally, that the Truth Commission can conduct investigation without supplanting the powers of the Ombudsman and the Department of Justice since the Commission has not been vested with quasi-judicial powers. I fully conform to these rulings.



The majority holds, however, that Executive Order 1 violates the equal protection clause of the Constitution. It is here that I register my dissent.



The 1987 Constitution provides in section 1 of Article III (The Bill of Rights) as follows:



Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.



The idea behind the “equal protection clause” is that public authorities should treat all persons or things equally in terms of rights granted to and responsibilities imposed on them. As an element of due process, the equal protection clause bars arbitrary discrimination in favor of or against a class whether in what the law provides and how it is enforced.



Take the comic example of a law that requires married women to wear their wedding rings at all times to warn other men not to entice women to violate their marriage vows. Such law would be unfair and discriminatory since married men, who are not covered by it, are exposed to similar enticements from women other than their wives.



But it would be just as unfair and discriminatory if people who hardly share anything in common are grouped together and treated similarly.[2] The equal protection clause is not violated by a law that applies only to persons falling within a specified class, if such law applies equally to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within it and those who do not.[3]



For example, restaurant cooks and waiters cannot complain of discrimination against an ordinance that requires them but not other workers to undergo periodic medical check-ups. Such check-ups are important for food-handlers in the interest of public health but not for ordinary office clerks. Also, a law that grants a 60-day paid leave to pregnant workers but not to other workers, male or female, is not discriminatory since female workers who just had their babies need more time to care for the latter and make adjustments for going back to work.



Here, the issue I address is whether or not President P-Noy’s decision to focus the Truth Commission’s investigation solely on the reported corruption during the previous administration, implicitly excluding the corruption during the administrations before it, violates the equal protection clause. Since absolute equality in treating matters is not required, the ultimate issue in this case is whether or not the President has reasonable grounds for making a distinction between corruptions committed in the recent past and those committed in the remote past. As a rule, his grounds for making a distinction would be deemed reasonable if they are germane or relevant to the purpose for which he created the Truth Commission.[4]



And what is the President’s purpose in creating the Truth Commission? This can be inferred from section 1 of Executive Order 1 which states that the Commission’s primary function is to –



xxx seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officials and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration, and thereafter recommend the appropriate action to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.



Evidently, the objective the President sets for the Truth Commission is the uncovering of the “truth” regarding reported corruption in the previous administration “to ensure that the full measure of justice [evidently upon those responsible for it] is served without fear or favor.” Ultimately, the purpose of the creation of the Truth Commission is to ensure that the corrupt officials of the previous administration are exposed and brought to justice.



The majority holds that picking on the “previous administration” and not the others before it makes the Commission’s investigation an “adventure in partisan hostility.” To be fair, said the majority, the search for truth must include corrupt acts not only during the previous administration but also during the administrations before it where the “same magnitude of controversies and anomalies” has been reported.



The majority points out that corruption in the previous administration and corruption in the administrations before it have no substantial difference. And what difference they have, the majority adds, is not relevant to the purpose of Executive Order 1, which is to uncover corrupt acts and recommend their punishment. Superficial difference like the difference in time in this case does not make for a valid classification.



But time differentiation should not be so easily dismissed as superficial. The world in which people live has two great dimensions: the dimension of space and the dimension of time. Nobody can say that the difference in time between two acts or events makes for a superficial difference. Such difference is the substance of human existence. As the Bible says:



There is an appointed time for everything,

and a time for every affair under the heavens.

A time to be born, and a time to die;

a time to plant, and a time to uproot the plant.

A time to kill, and a time to heal;

a time to tear down, and a time to build.

A time to weep, and a time to laugh;

a time to mourn, and a time to dance;

A time to scatter stones, and a time to gather them;

a time to embrace, and a time to be far from embraces.

A time to seek, and a time to lose;

a time to keep, and a time to cast away;

A time to rend, and a time to sew;

a time to be silent and a time to speak.

A time to love, and a time to hate;

a time of war, and a time of peace.

(Ecclesiastes 3:1-8, New American Bible)



Recognizing the irreversibility of time is indispensable to every sound decision that people make in their lives everyday, like not combing the hair that is no longer there. In time, parents let their married children leave to make their own homes. Also, when a loved one passes away, he who is left must know that he cannot bring back the time that is gone. He is wise to move on with his life after some period of mourning. To deny the truth that the difference in time makes for substantial difference in human lives is to deny the idea of transition from growth to decay, from life to death, and from relevant to irrelevant.



Here the past presidential administrations the country has gone through in modern history cover a period of 75 years, going back from when President Gloria Macapagal Arroyo ended her term in 2010 to the time President Manuel L. Quezon began his term in 1935. The period could even go back 111 years if the administration of President Emilio Aguinaldo from 1989 to 1901 is included. But, so as not to complicate matters, the latter’s administration might just as well be excluded from this discussion.



It should be remembered that the right of the State to recover properties unlawfully acquired by public officials does not prescribe.[5] So, if the majority’s advice were to be literally adopted, the Truth Commission’s investigation to be fair to all should go back 75 years to include the administrations of former Presidents Arroyo, Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino, Roxas, Osmena, Laurel, and Quezon.



As it happens, President P-Noy limited the Truth Commission’s investigation to the 9 years of the previous administration. He did not include the 66 years of the 12 other administrations before it. The question, as already stated, is whether the distinction between the recent past and the remote past makes for a substantial difference that is relevant to the purpose of Executive Order 1.



That the distinction makes for a substantial difference is the first point in this dissent.



1. The Right to Equal Protection



Feasibility of success. Time erodes the evidence of the past. The likelihood of finding evidence needed for conviction diminishes with the march of time. Witnesses, like everyone else, have short memories. And they become scarce, working overseas, migrating, changing addresses, or just passing away. Official or private documents needed as evidence are easily overwhelmed by the demand to file and keep even more documents generated by new activities and transactions. Thus, old documents are stored away in basements, garages, or corridors, and eventually lost track of, misplaced, or simply destroyed, whether intentionally or not. In a government that is notorious for throwing away or mishandling old records, searching for a piece of document after ten years would be uncertain, tedious, long, and costly.



When the government of President Marcos fell in 1986, the new government acted swiftly to sequester suspected wealth, impound documents believed to constitute evidence of wrong-doing, and interview witnesses who could help prosecute the Marcoses and their cronies. One would think that these actions will ensure successful prosecution of those who committed graft and corruption in that era. Yet, after just a decade, the prosecution has been mostly unable to find the right documents or call the right witnesses. Today, after 24 years, the full force of government has failed to produce even one conviction.



Clearly, it would be a waste of effort and time to scour all of 66 years of the administrations before the last, looking for evidence that would produce conviction. Time has blurred the chance of success. Limiting the Truth Commission’s investigation to the 9 years of the previous administration gives it the best chance of yielding the required proof needed for successful action against the offenders.



Historically, there have been no known or outstanding inquiries done by the Executive Department into corrupt acts of the past that went beyond the term of the immediately preceding administration. It makes sense for President P-Noy to limit the investigation to what is practical and attainable, namely, the 9 years of the previous administration. He strikes at what is here and near. Perchance, he can get a conviction. Investigating corruption in the past 75 years rather than in the nearest 9 years, under a nebulous claim of evenhandedness, is the key to failing altogether. It has been held that if the law presumably hits the evil where it is felt, it is not to be overthrown because there are other instances to which it might have been applied.[6]



Neutralization of Presidential bias. The Court can take judicial notice of the fact that President P-noy openly attacked the previous administration for its alleged corruption in the course of his election campaign. In a sense, he has developed a bias against it. Consequently, his creation of the Truth Commission, consisting of a former Chief Justice, two former Associate Justices of the Supreme Court, and two law professors serves to neutralize such bias and ensure fairness. The President did not have to include the 66 years of earlier administrations for investigation since he did not specifically target them in his election campaign.



At any rate, it does not mean that when the President created the Truth Commission, he shut the door to the investigation of corruption committed during the 66 years before the previous one. All existing government agencies that are charged with unearthing crimes committed by public officials are not precluded from following up leads and uncovering corruptions committed during the earlier years. Those corrupt officials of the remote past have not gained immunity by reason of Executive Order 1.



Matching task to size. The Truth Commission is a collegial body of just five members with no budget or permanent staffs of its own. It simply would not have the time and resources for examining hundreds if not thousands of anomalous government contracts that may have been entered into in the past 75 years up to the time of President Quezon. You cannot order five men to pull a train that a thousand men cannot move.



Good housekeeping. Directing the investigation of reported corrupt acts committed during the previous administration is, as the Solicitor General pointed out, consistent with good housekeeping. For example, a new treasurer would be prudent to ensure that the former treasurer he succeeds has balanced his accounts and submitted himself to a closing audit even after the new treasurer has taken over. This prevents the latter having to unfairly assume the liabilities of his predecessor for shortages in the cash box. Of course, the new treasurer is not required to look farther into the accounts of the earlier treasurers.



In like manner, it is reasonable for President P-Noy to cause the investigation of the anomalies reportedly committed during the previous administration to which he succeeded. He has to locate government funds that have not been accounted for. He has to stanch the bleeding that the government could be suffering even now by reason of anomalous contracts that are still on-going. Such is a part of good housekeeping. It does not violate the equal protection clause by its non-inclusion of the earlier administrations in its review. The latter’s dealings is remotely relevant to good housekeeping that is intended to manage a smooth transition from one administration to the next.



2. The President’s Judgment

as against the Court’s



That is the first point. The second point is that the Court needs to stand within the limits of its power to review the actions of a co-equal branch, like those of the President, within the sphere of its constitutional authority. Since, as the majority concedes, the creation of the Truth Commission is within the constitutional powers of President P-Noy to undertake, then to him, not to the Court, belongs the discretion to define the limits of the investigation as he deems fit. The Court cannot pit its judgment against the judgment of the President in such matter.



And when can the Supreme Court interfere with the exercise of that discretion? The answer is, as provided in Section 1, Article VIII of the 1987 Constitution, only when the President gravely abuses his exercise of such discretion. This means that, in restricting the Truth Commission’s investigation only to corruptions committed during the previous administration, he acted capriciously and whimsically or in an arbitrary or despotic manner.[7]



To act capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing one moment and crying the next without apparent reason. Does this characterize the President’s action in this case, considering that he merely acted to set a feasible target, neutralize political bias, assign the Commission a task suitable to its limited capacity, and observe correct housekeeping procedures? Did he act arbitrarily in the manner of little children changing the rules of the game in the middle of the play or despotically in the manner of a dictator? Unless he did, the Court must rein in its horses. It cannot itself exceed the limits of its power of review under the Constitution.



Besides, the Court is not better placed than the President to make the decision he made. Unlike the President, the Court does not have the full resources of the government available to it. It does not have all the information and data it would need for deciding what objective is fair and viable for a five-member body like the Truth Commission. Only when the President’s actions are plainly irrational and arbitrary even to the man on the street can the Court step in from Mount Olympus and stop such actions.



Notably, none of those who have been reported as involved in corruption in the previous administration have come forward to complain that the creation of the Truth Commission has violated their rights to equal protection. If they committed no wrong, and I believe many would fall in this category, they would probably have an interest in pushing for the convening of the Commission. On the other hand, if they believe that the investigation unfairly threatens their liberties, they can, if subpoenaed, to testify invoke their right to silence. As stated in the majority opinion, the findings of the Commission would not bind them. Such findings would not diminish their right to defend themselves at the appropriate time and forum.



For the above reasons, I join the main dissent of Justice Antonio T. Carpio.







ROBERTO A. ABAD

Associate Justice