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Manila REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG AND REP. ORLANDO B. FUA, SR., Petitioners, versus G.R. No. 193036
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. AND DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents. x-----------------------------------------------------x
PETITION FOR CERTIORARI AND PROHIBITION WITH PRAYER FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND/OR A WRIT OF PRELIMINARY INJUNCTION
PETITIONERS, through counsel, respectfully state:
NATURE OF THE PETITION
This is a Petition for Certiorari and Prohibition under Rule 65
of the Rules of Civil Procedure to declare null and void Executive Order No. 1 dated 30 July 2010 and entitled “Creating the Philippine Truth Commission of 2010”, for being unconstitutional, among other infirmities. A certified true copy of Executive Order No. 1 is attached as ANNEX “A”.
The Petitioners invoke the Honorable Supreme Court’s
constitutional jurisdiction to (a) determine the constitutionality or validity of Executive Order No. 1; and (b) determine on petition for certiorari and prohibition whether or not the Office of the President committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the subject Executive Order.
Petitioners respectfully beseech the Honorable Court to
exempt this petition from the hierarchy-of-courts rule pursuant to the ruling in Enrile vs. Salazar (186 SCRA 217) in the exercise of this Honorable Court’s plenary power to suspend the operation of its rules in the interest of justice or when the equities of a case require it (Burgos, Sr. vs. Chief of Staff, 133 SCRA 800; Yong Chan Kim vs. People, 176 SCRA 277; and Republic vs. Court of Appeals, 107 SCRA 504). Moreover, as recognized in Enrile, paramount public interest is a compelling reason for such exemption.
Furthermore, as held in Tatad vs. Secretary of the
Department of Energy (281 SCRA 330), this Honorable Court has the power to exercise its primary jurisdiction over transcendental issues of importance such as to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and have not abused their discretion.
Verily, this Honorable Court has the mandate to adjudicate,
whenever possible, the entire controversy in a single proceeding, leaving
no root or branch to bear the seeds of future litigation. (Caurdanetaan Piece Workers Union vs. Laguesma, 286 SCRA 401)
Petitioners have no appeal or any plain, speedy and
adequate remedy in the ordinary course of law, except the filing of the instant petition for certiorari and prohibition.
THE PARTIES Petitioners
Petitioners REP. EDCEL C. LAGMAN, REP. RODOLFO B.
ALBANO, JR., REP. SIMEON A. DATUMANONG and REP. ORLANDO B. FUA, SR. are all of legal age, Filipinos, and Members of the House of Representatives with official address at Constitution Hills, Quezon City. They may be served with orders, resolutions, decisions and processes of the Honorable Court through their counsel, Lagman Lagman and Mones Law Firm at 2/F Tempus Place Condominium II, Matalino and Makatarungan Streets, Diliman, Quezon City.
Petitioners are real parties-in-interest pursuant to the ruling
of the Honorable Court in Ople vs. Torres, (293 SCRA 141). Petitioners are possessed with the requisite standing to file this petition because the issuance of Executive Order No. 1 is a usurpation of the legislative power of the Congress of which they are Members. They have personal and substantial interest in the instant Petition and have suffered and would
suffer direct injury with the creation of a “Truth Commission” pursuant to the standard set in People vs. Vera as reiterated in De La Llana vs. Alba (112 SCRA 294). Moreover, petitioners as taxpayers can also impugn the legality of the allocation of public funds for the operation of the “Truth Commission” without prior legislative authorization.
Respondent SECRETARY PAQUITO N. OCHOA, JR. is the
incumbent Executive Secretary who signed Executive Order No. 1 together with President Benigno Aquino III. Respondent SECRETARY FLORENCIO B. ABAD is the incumbent Secretary of the Department of Budget and Management who is tasked with the release of funding allocation and support for governmental agencies and bodies.
Both Respondent Secretaries are sued in their respective
official capacities and as alter egos of the President of the Republic.
SEASONABLENESS AND URGENCY OF THE PETITION
On 30 July 2010, President Benigno Aquino III issued
Executive Order No. 1 creating the “Philippine Truth Commission of 2010”.
Executive Order No. 1 took effect immediately, although
the “Truth Commission” is yet to be fully constituted and operational.
This Petition is seasonably interposed to challenge the
constitutionality or validity of Executive Order No. 1 and the resolution of the issues raised herein is of critical immediacy since they involve the fundamental doctrine of separation of powers and the abiding principle of rule of law as enshrined in the Constitution.
GROUNDS RELIED UPON FOR THE PETITION
I EXECUTIVE ORDER NO. 1 DATED 30 JULY 2010 SUFFERS FROM FATAL CONSTITUTIONAL INFIRMITIES WHICH INVALIDATE ITS CREATION OF THE “PHILIPPINE TRUTH COMMISSION OF 2010”. A. E.O. NO. 1 ARROGATES THE POWER OF THE CONGRESS TO CREATE GOVERNMENTAL OR PUBLIC OFFICES, AGENCIES AND COMMISSIONS, THEREBY BREACHING THE CONSTITUTIONALLY ORDAINED SEPARATION OF POWERS. A.1 UNDER THE ADMINISTRATIVE CODE OF 1987, THE POWER GRANTED TO THE PRESIDENT IS ONLY TO REORGANIZE THE ADMINISTRATIVE STRUCTURE OF THE OFFICE OF THE PRESIDENT TO “ACHIEVE SIMPLICITY, ECONOMY AND EFFICIENCY”, BUT NOT TO CREATE NEW BODIES HITHERTO UNORGANIZED AND NON-EXISTING. A.2 THE “TRUTH COMMISSION” CREATED UNDER E.O. NO. 1 IS NOT ONLY A FACT-FINDING BODY BUT IT IS ALSO VESTED WITH QUASI-JUDICIAL POWERS, CONSEQUENTLY, WITH MORE REASON, IT CANNOT BE CREATED BY EXECUTIVE FIAT. A.3 PREVIOUS COMMISSIONS OF GREAT IMPORT WERE CREATED BY LEGISLATIVE AUTHORIZATION.
B. E.O. NO. 1 USURPS THE POWER OF CONGRESS TO APPROPRIATE PUBLIC FUNDS. B.1 THE APPROPRIATION LANGUAGE UNDER SECTION 11 OF EXECUTIVE ORDER NO. 1 IS NOT EVEN DEFINITE AND LACKS TRANSPARENCY AS TO THE SPECIFIC AMOUNT BUDGETED, THE CEILING TO BE UTILIZED AND THE IDENTIFICATION OF A DEFINITE FUNDING SOURCE. B.2 A GENERAL STATEMENT THAT THE “OFFICE OF THE PRESIDENT SHALL PROVIDE THE NECESSARY FUNDS FOR THE COMMISSION” MAY BE ADEQUATE FOR COMMISSIONS OF LESSER IMPORT WHICH ARE STRICTLY FACTFINDING EXECUTIVE ADJUNCTS AND ARE CHARGED WITH SUBMITTING REPORTS DIRECT TO THE PRESIDENT, BUT NOT FOR A “TRUTH COMMISSION” WITH FAR-REACHING QUASI-JUDICIAL POWERS AKIN TO THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE. C. E.O. NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE. D. E.O. NO. 1 DUPLICATES, IF NOT SUPERSEDES, THE CONSTITUTIONALLY MANDATED POWERS OF THE OMBUDSMAN AND THE STATUTORILY VESTED POWERS OF THE DEPARTMENT OF JUSTICE, THUS ILLEGALLY AMENDING THE CONSTITUTION AND THE ADMINISTRATIVE CODE OF 1987. E. E.O. NO. 1 DEPARTS FROM THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW ON THE CREATION OF TRUTH COMMISSIONS. II THE CREATION OF THE “TRUTH COMMISSION” UNDER EXECUTIVE ORDER NO. 1 IS AN EXERCISE IN FUTILITY AND AN ENTERPRISE IN
PARTISAN HOSTILITY, FOR WHICH REASON IT MUST BE SCUTTLED BEFORE IT EVEN STARTS ITS “MISSION”. A. PROSECUTORIAL AND JUDICIAL BODIES ARE IN PLACE TO TAKE COGNIZANCE AND JURISDICTION OVER GRAFT AND CORRUPTION COMPLAINTS WITHOUT INVENTING A “TRUTH COMMISSION”. B. THE FINDINGS OF THE “TRUTH COMMISSION” ARE ONLY RECOMMENDATORY AND COULD BE REJECTED BY THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE WHICH ARE OBLIGATED TO CONDUCT THEIR OWN INDEPENDENT ASSESSMENT OF PROBABLE CAUSE AS WELL AS THE COMPETENCE AND CREDIBILITY OF EVIDENCE. B.1 SINCE DOJ OFFICIALS AND PERSONNEL ARE AUTHORIZED TO BE USED BY THE “TRUTH COMMISSION”, THEN THE INVESTIGATION IS BEST LEFT TO THE JURISDICTION OF THE DOJ AND THE OMBUDSMAN. C. INSTEAD OF A FORTHWITH CLOSURE OF ALLEGED MISDEEDS OF THE PREVIOUS ADMINISTRATION, IT WOULD EVEN LENGTHEN THE CLOSURE PROCESS. C.1 THE FILING AND PROSECUTION OF GRAFT CASES WILL HAVE TO WAIT UNTIL THE “TRUTH COMMISSION” FINISHES ITS INVESTIGATION. C.2 THE “TRUTH COMMISSION” IS AUTHORIZED TO INORDINATELY FOOT-DRAG FOR 29 MONTHS SINCE ITS CREATION ON 30 JULY 2010 UNTIL 31 DECEMBER 2012 TO TERMINATE ITS PROCEEDINGS AND SUBMIT ITS RECOMMENDATIONS. D. THE PROCEEDINGS OF THE “TRUTH COMMISSION” CAN BE CONVENIENTLY USED FOR TRIAL AND CONVICTION BY PUBLICITY OF EXPECTED RESPONDENTS.
III NEITHER LACHES NOR ESTOPPEL CAN BAR A CHALLENGE ON THE CONSTITUTIONALITY OF AN EXECUTIVE ORDER OR STATUTE. IV ALL OF THE FOREGOING INFIRMITIES CONSTITUTE PATENT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION COMMITTED BY THE OFFICE OF THE PRESIDENT.
I EXECUTIVE ORDER NO. 1 DATED 30 JULY 2010 SUFFERS FROM FATAL CONSTITUTIONAL INFIRMITIES WHICH INVALIDATE ITS CREATION OF THE “PHILIPPINE TRUTH COMMISSION OF 2010”.
A. E.O. NO. 1 ARROGATES THE POWER OF THE CONGRESS TO CREATE GOVERNMENTAL OR PUBLIC OFFICES, AGENCIES AND COMMISSIONS, THEREBY BREACHING THE CONSTITUTIONALLY ORDAINED SEPARATION OF POWERS. ===============================
One of the hallmarks of a republican democracy is the
doctrine of separation powers among the three great departments of government. This disquisition is limited to the separation of powers between the political departments, the legislative and executive branches.
Under the 1987 Constitution, the legislative power is vested This general plenary power of
in the Congress of the Philippines.
Congress is defined in Article VI, Section 1, which provides:
“Sec.1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.”
On the other hand, the powers to enforce and administer
laws are vested in the Executive Department, as provided in Article VII, Sections 1 and 17, to wit:
“Sec. 1. The executive power shall be vested in the President of the Philippines.” “Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.”
The separation of powers of the Executive and the
Legislative Departments was well explained by the Honorable Court in the case of Ople vs. Torres, Ibid., in this wise:
“The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. “While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. “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.”
However, in issuing Executive Order No. 1, the Office of the
President encroached and infringed on the sanctity of the principle of separation of power.
There are only two sources of life of governmental or public
offices, agencies, commissions and bodies. These are the Constitution and the statutes enacted by the Congress.
Examples of public offices created by the Constitution are
the Congress (Article VI), the Executive Department (Article VII), the House and the Senate Electoral Tribunals (Article VI, Section 17), the Commission on Appointments (Article XII, Section 18), the Supreme Court (Article VIII), the Civil Service Commission (Article IX-B), the Commission on Elections (Article IX-C), the Commission on Audit (Article IX-D), the Commission on Human Rights (Article VIII, Section 17 ) and the Office of the Ombudsman (Article XI, Section 5).
In the exercise of its legislative power to make laws and to
alter and repeal the same, Congress may create or abolish offices except those created by the Constitution. This legislative prerogative has been upheld both by the United States and Philippine Supreme Courts, thus:
“The legislative power of a state, except so far as restrained by its own Constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them or merely modify their duties.” (Higginbrother v. Baton Rouge, 306 U.S. 535 )
“At this point, It is apropos to reiterate the elementary rule in administrastive law and the law on public officers that a public office may be created through any of the following modes, to wit, either: (1) by the Constitution (fundamental law), (2) by law (statute duly enacted by Congress), or (3) by authority of law.”. (Secretary of the Department of Transportation and Communications vs. Mabalot, 378 SCRA 128) “Admittedly, the act of Congress in creating a public office, defining its powers, functions and fixing the ‘term’ of the period during which the officer may claim to hold the
office as of right and the ‘tenure’ or the term during which the incumbent actually holds the office is a valid in constitutional exercise of legislative power.” (Alba vs. Evangelista, 100 Phil. Reports 683)
The vast majority of the “coterie of offices” is created by the
Congress as an inherent function of lawmaking.
Not being vested either by the Constitution or by an
appropriate statute to create public offices like the “Truth Commission”, the Office of the President verily arrogated the power of the Congress to create a public office.
No life has been breathed to the “Truth Commission”
because the President of the Republic is powerless to give life to such public office.
This power to create public offices is not shared by the
Constitution and by the Congress with the President of the Republic, except in a very limited and circumscribed delegated authority as provided for in the Administrative Code of 1987, and this delimited delegation is with respect to the continuing structural reorganization of the Office of the President which is granted to the President by “authority of law”.
A.1 UNDER THE ADMINISTRATIVE CODE OF 1987, THE POWER GRANTED TO THE PRESIDENT IS ONLY TO REORGANIZE THE ADMINISTRATIVE STRUCTURE OF THE OFFICE OF THE PRESIDENT TO
“ACHIEVE SIMPLICITY, ECONOMY AND EFFICIENCY”, BUT NOT TO CREATE NEW BODIES HITHERTO UNORGANIZED AND NON-EXISTING. ===============================
The Office of the President anchored the establishment of authority to
the “Truth Commission” on the President’s “continuing
reorganize the Office of the President” pursuant to Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Administrative Code of 1987, which provides:
“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. (Underscoring supplied).
This limited delegation of authority is circumscribed by the
following standards prescribed by the legislature:
(a) The power is limited to the reorganization of existing agencies and offices;
(b) The reorganization must pertain only to the administrative structure of the Office of the President;
(c) The reorganization may entail (i) restructuring of the internal organization of the Office of the President; (ii) transfer of functions; and (iii) transfer of agencies; and
(d) The reorganization is to achieve simplicity, economy and efficiency.
The creation of the “Truth Commission” defies all the
foregoing standards imposed by the Administrative Code of 1987 because:
(a) The “Truth Commission” is a new creation and not the result of a structural reorganization. Before the advent of Executive Order No. 1, the “Truth Commission” was hitherto nonexistent;
(b) The “Truth Commission” is not a restructuring, transfer of functions or transfer of agencies; and
(c) The “Truth Commission” does not achieve simplicity, economy and efficiency in the operation of the Office of the President. In fact, it duplicates the functions and powers of the Ombudsman and the Department of Justice even as its budget lacks transparency and limit.
It must be underscored that this Honorable Court in the very
recent case of Banda, et. al. vs. Ermita (G.R. No. 166620, April 20, 2010, citing Domingo vs. Zamora [397 SCRA 56]), ruled that the rationale of the President’s continuing authority to effect structural reorganization of the Office of the President is: “The law grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office “to achieve simplicity, economy and efficiency.” (Emphasis supplied).
All told, the “Truth Commission” is utterly devoid of
A.2 THE “TRUTH COMMISSION” CREATED UNDER E.O. NO. 1 IS NOT ONLY A FACT-FINDING BODY BUT IT IS ALSO VESTED WITH QUASIJUDICIAL POWERS, CONSEQUENTLY, WITH MORE REASON, IT CANNOT BE CREATED BY EXECUTIVE FIAT. ===============================
The “Truth Commission” is not a mere fact-finding body. Its
functions transcend that of a collator of facts or an assessor of the cause and effect of a particular incident, circumstance or factual milieu. It is vested with quasi-judicial powers which partake of judicial nature.
Its being manifestly clothed with quasi-judicial powers makes
its creation by a mere executive fiat even more chronically infirm.
Commissioner of Internal Revenue vs. Court of Appeals (261 SCRA 236) stressed that “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.” (Emphasis supplied).
The “Truth Commission” is authorized to exercise the
following quasi-judicial functions:
(a) Investigate facts or ascertain the existence of facts. – It is “primarily tasked to conduct a thorough fact-finding investigation of reported (covered) cases of graft and corruption” and “identify and determine the reported cases of such graft and corruption which it will investigate.” (Section 2 and 2[a])
(b) Hold hearings. – It is empowered to “invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be (Section 2 [e]) as well as “promulgate its rules and regulations or rules of procedure x x x to “ensure the orderly conduct of its investigations,
proceedings, hearings, including the presentation of evidence.” (Section 2 [j]) (Emphasis supplied).
(c) Weigh evidence. – It is also empowered to “collect, receive, review and evaluate evidence related to or regarding the cases of large-scale corruption which it has chosen to investigate x x x”
(Section 2 [f]) (Emphasis supplied), which entails the assessment of evidence.
(d) Draw conclusions and exercise discretion in a judicial nature. – It is likewise authorized to “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. (Emphasis supplied).
A.3 PREVIOUS COMMISSIONS OF GREAT IMPORT WERE CREATED BY LEGISLATIVE AUTHORIZATION. ==============================
It is on record that prior commissions of great consequence
were created by law or legislative authorization, namely:
The Agrava Board was constituted on 14 October
1983 with the issuance by the late President Ferdinand Marcos of P.D. No. 1886, entitled “Creating a Fact-Finding Board with Plenary Powers to Investigate the Tragedy Which Occurred on August 21, 1983”. President Marcos then exercised both executive and legislative powers.
The Presidential Commission on Good Government
(PCGG), a special body with quasi-judicial powers, was created on 28 February 1986 under Executive Order No. 1 issued by then Pres. Corazon C. Aquino in exercise of her legislative powers under the Freedom Constitution during the Revolutionary Government. The PCGG continues to exist today.
The Presidential Committee on Human Rights was
established on 18 March 1986 when the late President Corazon C. Aquino issued Executive Order No. 8, again in exercise of her legislative authority under the Freedom Constitution. The
Committee is now the Commission on Human Rights.
The Davide Commission which was tasked “to
conduct a fact-finding investigation of the 1989 rebellion and the involvement of military, civilian official and private persons therein.” Albeit created by Administrative Order No. 146 issued by President
Corazon Aquino on 06 December 1989 when the 8th Congress was already functioning, it was legitimized with the enactment of R.A. No. 6832, entitled “An Act Creating a Commission to Conduct a Thorough Fact-Finding Investigation of the Failed Coup d’ Etat of December 1989, Recommend Measures to Prevent the Occurrence of Similar Attempts at a Violent Seizure of Power, and for Other Purposes.”
constitutionality and validity of the Davide Commission which was initially created by executive fiat, were resolved with the approval of Republic Act No. 6832 on 05 January 1990, only one (1) month after the issuance of Administrative Order No. 146.
The other Commissions which were principally, if not solely,
fact-finding and responsible to the President for their report, like the Feliciano Commission, Melo Commission and Zeñarosa Commission, although constituted by executive issuance, were not formally challenged as constitutionally infirm.
Moreover, unlike the controverted “Truth Commission”, the
other Commissions were not granted full quasi-judicial powers.
Neither did the other Commissions transgress the equal
protection clause as they were incident-bound on their fact-finding missions:
Administrative Order No. 78 dated 30 July 2003 “to conduct a factfinding investigation of the 2003 rebellion” or the “Oakwood Mutiny”. More specifically, it was authorized “to investigate the roots of the rebellion and the promulgations that inspired it.”
Administrative Order No. 157 dated 21 August 2006 “to address media and activist killings.”
The Zeñarosa Commission was constituted by
Administrative Order No. 275 dated 08 December 2009 “to address the alleged existence of private armies in the country” in the wake of the “Maguindanao Massacre”
It is best to reiterate that no quasi-judicial powers of the
range and extent granted to the “Truth Commission” were extended to the aforesaid Commissions.
In the case of the Melo Commission, Section 4 of
Administrative Order No. 157 provides that the “government members of the Commission, namely the NBI Director and the Chief State Prosecutor, shall form a team to prioritize the prosecution of media and activist killings”. In other words, the traditional investigatory and prosecutorial powers of the NBI Director and the Chief State Prosecutor were maintained, and were not granted to the Melo Commission.
With respect to the Zeñarosa Commission, Section 4 of
Administrative Order No. 275 provides that the “Department of Justice shall prioritize the prosecution of members and leaders of such private armed groups, with a view to their conviction at the soonest possible time.” Consequently, the Zeñarosa Commission did not duplicate the powers of the Department of Justice with respect to the investigation and prosecution of criminal cases.
B. E.O. NO. 1 USURPS THE POWER OF CONGRESS TO APPROPRIATE PUBLIC FUNDS. =============================== 43. The legislative authorization of an appropriation or public
expenditure is the benchmark of republican democracies. It underscores the tradition of legislative supremacy over the public purse. It sustains the historical and exclusive prerogative of the popularly-elected legislature to appropriate the people’s money and control government expenditures. This is a zealously protected power of the Congress, particularly of the House of Representatives where appropriation measures exclusively originate.
budgeting, documents that this legislative power is a heritage from the English House of Commons which successfully waged the battle for the right to levy taxes and to make the royalty accountable to it for the expenditure of public funds. The long and bitter struggle between the Crown and the representative bodies in England and Europe for the control of government has made this power one of the most jealously
guarded prerogatives of the legislature. Consequently, it is axiomatic in a democratic society that no money can be spent except in pursuance of a legislative appropriation and that all appropriation bills must originate exclusively in the more popularly elected chamber of the legislature, which in the Philippines is the House of Representatives. 45. Thus, Article VI, Section 29 (1) of the 1987 Constitution
succinctly and unequivocally provides:
“No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” (Emphasis supplied).
The Honorable Supreme Court in Philippine Constitution
Association vs. Enriquez (235 SCRA 506) ruled: “Under the Constitution, the spending power called by James Madison as the ‘power of the purse’ belongs to Congress, subject only to the veto power of the President. The President may propose the budget but still the final say on the matter of appropriations is lodged to Congress.”
In Bengzon vs. Secretary of Justice and Insular Auditor
(62 Phil. Reports 912), the Honorable Court defined appropriation as “setting apart by law of a certain sum from the public revenue for a specified purpose.” (Emphasis supplied).
This plenary power of the Congress was usurped by the
Office of the President when it issued the assailed Executive Order No. 1
wherein the President allocated an undetermined budget for the “Truth Commission” in this wise:
“Sec 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.”
B.1 THE APPROPRIATION LANGUAGE UNDER SECTION 11 OF EXECUTIVE ORDER NO. 1 IS NOT EVEN DEFINITE AND LACKS TRANSPARENCY AS TO THE SPECIFIC AMOUNT BUDGETED, THE CEILING TO BE UTILIZED AND THE IDENTIFICATION OF A DEFINITE FUNDING SOURCE. ================================
Aside from illegally seizing the power of the legislature to
appropriate public funds, the Office of the President violated a cardinal tenet that a budget must be a certain or specific amount. The appropriation language of Section 17 lacks particularity and transparency because no specific amount is appropriated, no ceiling is provided and no definitive funding source is identified.
“It is essential to have the amount of the appropriation and,
or the maximum sum from which the expenses could be paid, stated. xxx it is usual and necessary to fix a maximum.” (State vs. Eggers, 16 L.R.A., N.S. 630 and Ingram vs Colgan, 106 Cal 118). With the nebulous appropriation language under Section 11 the President gave himself unlimited and absolute discretion in releasing public funds to the “Truth
Commission”. This cannot be done. This does not only transgress the domain of the Congress but it borders on wanton absolutism.
B.2 A GENERAL STATEMENT THAT THE “OFFICE OF THE PRESIDENT SHALL PROVIDE THE NECESSARY FUNDS FOR THE COMMISSION” MAY BE ADEQUATE FOR COMMISSIONS OF LESSER IMPORT WHICH ARE STRICTLY FACTFINDING EXECUTIVE ADJUNCTS AND ARE CHARGED WITH SUBMITTING REPORTS DIRECT TO THE PRESIDENT, BUT NOT FOR A “TRUTH COMMISSION” WITH FARREACHING QUASI-JUDICIAL POWERS AKIN TO THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE. ===============================
The appropriation language of Section 11 is a reproduction
of the funding provision of previous Commissions of lesser import like the Feliciano, Melo and Zeñarosa Commissions which had a uniform appropriation language which reads: “The Office of the President shall provide the funds for the operation of the Commission.”
The appropriation language for the aforesaid earlier
Commissions may be considered adequate for the strictly fact-finding bodies which are adjunct to the Office of the President and mandated to submit their reports to the President.
Strictly speaking, however, the appropriation language in the
Administrative Orders creating the Feliciano, Melo and Zeñarosa
Commissions is essentially faulty because it lacks particularity and certainty with respect to the amount appropriated. Such error should have been avoided in the crafting and issuance of Executive Order No. 1 because unchallenged errors in the past cannot be used to legitimize current errors.
C. E.O. NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE. ==============================
The 1987 Constitution guarantees every person equal
protection of the laws under Article III, Section 1 which provides “xxx nor shall any person be denied the equal protection of the laws”.
Equal protection safeguards all persons against any form of
hostilities from the government as succinctly explained by the Honorable Court in Philippine Judges Association vs. Prado (227 SCRA 703):
“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 nonetheless been embodied in a separate clause in Article III Sec. 1., of the Constitution 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.” “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, Similar subjects, in
other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.”
If eliminating graft and corruption is the noble aim, then
equal protection demands that all persons who belong to the same class of suspected or alleged perpetrators of graft and corruption must be investigated and prosecuted equally without regard to personalities and regimes. They must be exposed to the same rigors and processes, the same hostility and persecution.
But not the “Truth Commission” which is explicitly ordered to
target only officials and employees, and their conspirators, who belong to the “previous administration” – the regime of former President Gloria Macapagal Arroyo.
This errant selective search for truth and pursuit of justice is
wantonly discriminatory. It patently breaches the equal protection clause which is guaranteed in the Constitution.
The malevolent motive and discriminatory nature of the
“Truth Commission” speaks for itself in the “whereases” and provisions of Executive Order No. 1, which states, among others:
“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 x x x.”
“x x x
“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.” (Emphasis supplied) “x x x xxx xxx
“Section 2. Powers and Functions. – The Commission, x x x 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 findings 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.” (Emphasis supplied).
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed
by other persons or other classes in like circumstances. The “equal protection of the laws is a pledge of the protection of equal laws.” It limits governmental discrimination. (City of Manila vs. Laguio, Jr., 455 SCRA 308) 61. The Honorable Court has ruled in City of Manila vs.
Laguio, Jr. that in order not to violate the equal protection clause, a classification must be reasonable and is deemed reasonable where:
(1) it is based on substantial distinctions which make real differences;
(2) these are germane to the purpose of the law;
(3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present;
(4) the classification applies only to those who belong to the same class.
These aforesaid standards can be summarized into two: (1)
the classification must be substantial; and (2) it must be germane to the purpose of the enactment or issuance.
In the case at bar, the standards for a reasonable
classification have not been observed because:
(a) Firstly, 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. Executive Order No. 1 without doubt singles out for investigation and prosecution those who were connected with the Arroyo administration as if graft were unique to them and corruption was their species: In Quinto vs. COMELEC, (G.R. No. 189698, December 1, 2009), the Honorable Court defined the concept of substantial distinction in this wise: “It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.” (Emphasis supplied). The classification rests on real and substantial, not merely imaginary or whimsical, distinctions. (People vs. Cayat, 68 Phil. Reports 12) In other words, graft and grafters prior and subsequent to the Arroyo administration must also be dealt with the strong arm of the law with equal force by the so-called “Truth Commission”. (b) Secondly, the selective classification is void because
it is not germane to the purpose of Executive Order No. 1 to end corruption.
Executive Order No. 1 intones the following premises and purposes: “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;
presumably to eradicate graft and corruption in government.
The commission of graft and corruption is not limited to the Arroyo administration. Prior administrations are hounded by the same magnitude of controversies and anomalies that need to be brought before the realm of justice, to name a few: the PEA-Amari scandal, dubbed by the Philippine Center for Investigative Journalism as the Grandmother of all Scams1; the Clark Centennial Expo Scandal, and the BW Resources Scandal.
To have validity, Executive Order No. 1 should not limit its jurisdiction on the Arroyo administration and exclude reported cases of corruption in other administrations. The search for truth is universal, not parochial. It must be timeless like eternity and limitless like the horizons. The “Truth Commission” is tasked to do the opposite.
D. E.O. NO. 1 DUPLICATES, IF NOT SUPERSEDES, THE CONSTITUTIONALLY MANDATED POWERS OF THE OMBUDSMAN AND THE STATUTORILY VESTED POWERS OF THE DEPARTMENT OF JUSTICE, THUS ILLEGALLY AMENDING THE CONSTITUTION AND THE ADMINISTRATIVE CODE OF 1987. ===============================
The Office of the Ombudsman is the country’s principal graft
buster which is a constitutional body as it was created by the 1987 Constitution under Article XI, Section 5, which provides: “There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.”
Article XI, Section 12, of the Constitution likewise provides:
“The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.”
Section 13 of the aforesaid Article XI provides for the
following powers, functions, and duties of the Office of the Ombudsman: “(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. xxx xxx xxx
(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. xxx xxx xxx
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.” 67. To further strengthen the Office of the Ombudsman,
Congress enacted Republic Act Number 6770, otherwise known as “Ombudsman Act of 1989”, which reiterated the power, functions and duties of the Ombudsman, particularly its investigatory powers and vested it with prosecutorial authority. Thus, Section 15 of RA 6770 provides:
“(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 this primary jurisdiction, it may take over, at any stage, form any investigatory agency of Government, the investigation of such cases”. (Emphasis supplied)
The foregoing constitutional and statutory provisions clearly
vest quasi-judicial powers to the Office of the Ombudsman.
The improvident creation of the “Truth Commission” has
duplicated, if not arrogated, the Constitutional mandate of the Office of the Ombudsman to investigate complaints or reported cases of graft and corruption with respect to alleged misdeeds of the previous Administration.
Likewise, the statutory power of the Office of the
Ombudsman under RA 6770 to initiate the prosecution of graft and corruption cases has also been usurped by the “Truth Commission”.
It also needs emphasis that the “Truth Commission” also
overlaps the Department of Justice’s power to “investigate the commission of crimes (and) “prosecute offenders” under Section 3, Chapter I, Title III, Book IV of the Administrative Code of 1987.
A review of the powers granted to the “Truth Commission” as
previously detailed in a prior discussion, verily shows that Executive Order No. 1 virtually illegally amended both the Constitution and pertinent laws which granted quasi-judicial powers to the Ombudsman and the Department of Justice.
Consequently, it now appears that the clone, which is the
“Truth Commission”, has ascendancy over the originals – the Office of the Ombudsman and the Department of Justice, which are respectively created by the Constitution and by statute.
E. E.O. NO. 1 DEPARTS FROM THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW ON THE CREATION OF TRUTH COMMISSIONS. ==============================
Under Article II, Section 1, of the Constitution on Declaration
of Principles, it is enunciated that the Philippines “adopts the generally accepted principles of international law as part of the law of the land”.
Generally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Pharmaceutical and Healthcare Association of the Philippines vs. Health Secretary Francisco T. Duque III, et al, 535 SCRA 265). (Emphasis supplied)
Custom or customary international law means “a general
and consistent practice of states followed by them from a sense of legal obligation (opinion juris)”. This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do. The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states. (Pharmaceutical Health Care vs. Health Secretary Duque, ibid)
The required duration can either be short or long. However,
duration is not the most important element of customary practice as part of
the concept of international law. More important is the consistency and the generality of the practice as observed by many States. (Emphasis supplied)
With respect to the constitution of truth commissions, the
invariable practice of nations, without any exception, is that these commissions are organized solely and exclusively to investigate violations of human rights as an integral part of the peace and closure process.
From the first truth commission established in Uganda in
1974 up to the present debates in the United States Federal Congress and the Canadian Parliament on establishing their own truth commissions, the principal and only issue is on human rights violations. There are now proposals in the United States to constitute a truth commission to investigate human rights violations of the Bush administration with respect to interrogation techniques in Guantanamo Bay, Iraq and Afghanistan and illegal wire tapping violative of human rights. In the Canadian Parliament, there are also proposals to create a truth commission to investigate enforced assimilation of aborigine children.
A history and documentary of all truth commissions
organized worldwide since the mid-1970’s indubitably evidence the consistent and general practice of creating truth commissions to look into violations of human rights.
The following truth commissions were constituted for the
exclusive mission of investigating human rights violations and bringing to justice the perpetrators:
Uganda I: Commission of Inquiry into the Disappearances of
People in Uganda, 1971; Brazil: Commission of Inquiry, No More (Brasil: Nunca Mais), 1979; Bolivia Truth Commission: National Commission for Investigation for Forced Disappearances (Comisión Nacional de Investigación de Desaparecidos, 1982, Zimbabwe: Commission of Inquiry into the Matabeleland Disturbances (also known as the Chihambakwe Commission of Inquiry),1983;
Argentina: National Commission on the Disappeared (Comisión Nacional sobre la Desaparición de Personas, CONADEP), 1983;
Uganda II: Commission of Inquiry into Violations of Human
Rights, 1986, Peru I: Commission of Inquiry to Investigate the Massacre of Prisoners (Comisión investigadora de las masacres en los Penales), 1986; Nepal: Commission of Inquiry to Locate the Persons Disappeared during the Panchayat Period, 1990; Chile: National Commission for Truth and Reconciliation (Comisión Nacional de Verdad y Reconciliación or the “Rettig Commission”), 1990; Chad: The Commission of Inquiry into the tortures and killings during the Habré regime (Commission d'Enquête du Ministère Chadien de la Justice sur les Crimes du Régime de Hissène Habré), 1990;
Germany I: Study Commission for Working Through the
History and the Consequences of the SED Dictatorship in Germany (Die Enquete-Kommission des 12. Deutschen Bundestages
“Aufarbeitung von Geschichte und Folgen der SED-Diktatur in Deutschland”), May 1992; El Salvador: Commission on the Truth for El Salvador (Comisión de la Verdad Para El Salvador, CVES), 1992; Ethiopia Commission of Inquiry: The Special Prosecution Process in Ethiopia by the Office of the Special Prosecutor, 1993;
Rwanda I: International Commission of Investigation on
Human Rights Violations in Rwanda (Commission internationale d’enquête sur les violations des droits de l’homme au Rwanda depuis le 1er Octobre 1990), 1993; Sri Lanka: Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons, 1995; Haiti: National Truth and Justice Commission to inquire into the human rights violations committed under the regime of General Raoul Cedras (Commission Nationale de Vérité et de Justice),1995;
Germany II: Study Commission for the Overcoming of the
Consequences of the SED Dictatorship in the Process of German Unity (Enquete-Kommission "Überwindung der Folgen der SEDDiktatur im Prozess der Deutschen Einheit”), 1995; Burundi: International Commission of Inquiry for Burundi (Commission d'Enquête Internationale sur les violations des droits de l'homme au Burundi depuis le 21 octobre 1993), 1995; South Africa:
Commission of Truth and Reconciliation (TRC), 1995; Ecuador : Truth and Justice Commission (Comisión de Verdad y Justicia), 1996; Guatemala: Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico), inquiry into sate repression against citizens of Guatemala, 1997.
Rwanda II: National Unity and Reconciliation Commission
(Commission Nationale d’Unité et de Réconciliation), inquiry into crimes committed during the Rwandan civil war, 1999; Nigeria: Human Rights Violations Investigation Commission (later called The Judicial Commission for the Investigation of Human Rights Violations), 1999; Uruguay: Commission for Peace (Comisión Para la Paz), 2000; South Korea: Presidential Truth Commission on Suspicious Deaths, 2000; Côte d’Ivoire: Mediation Committee for National Reconciliation (Le Comité 2000; de Médiation pour la
Commission (Comisión de la Verdad de Panamá), inquiry into the human rights abuses of the military junta led by General Omar Torrijos, 2001;
Peru II: Truth and Reconciliation Commission (Comisión de
la Verdad y Reconciliación, CVR) to investigate assassinations, torture, disappearances, displacement, employment of terrorist methods and other violations attributable to the State, the Shining Path and the Túpac Amaru Revolutionary Movement, 2001; Serbia and Montenegro: Truth and Reconciliation Commission for Serbia
and Montenegro, also called the Yugoslav Truth and Reconciliation Commission (Komisija za istinu i pomirenje), 2002;
Timor Leste (East Timor): Commission for Reception, Truth, Reconciliation (Comissão de Acolhimento, Verdade e
Reconciliação de Timor-Leste, CAVR), 2002; Sierra Leone: Truth and Reconciliation Commission to produce a report on human rights violations, provide a forum for both victims and perpetrators, and recommend policies to facilitate reconciliation and prevent future violations, 1990; Ghana: National Reconciliation Commission, to establish "an accurate and complete historical record" of human rights violations and abuses during three periods of unconstitutional government, 2003;
Democratic Republic of Congo: Truth and Reconciliation
Commission (Commission Verité et Réconciliation), 2003; Chile: National Commission on Political Imprisonment and Torture (Comisión Nacional Sobre Prisón Politica y Tortura), 2003; Algeria: Ad Hoc Inquiry Commission in Charge of the Question of Disappearances (Commission d’Enquête ad hoc chargée de la question des disparus), 2003; Paraguay: Truth and Justice Commission (Comisión Verdad y Justicia, CVJ) to o provide a historical record of abusive practices during the Stroessner dictatorship, 2004; Morocco: Equity and Reconciliation Commission (Instance Equité et Réconciliation, IER) to investigate forced disappearances and arbitrary detention, 2004;
Liberia: Truth and Reconciliation Commission (TRC) of
Liberia to investigate gross human rights violations and violations of humanitarian law, 2006; Ecuador: Truth Commission to Impede Impunity (Comisión de la Verdad para impedir la impunidad), 2007; Solomon Islands: Truth and Reconciliation Commission (TRC) tasked to engage stakeholders in reconciliation, and to examine the nature, antecedents, root causes, responsibility for, and the extent of the impact on human rights violations or abuses, 2009; and Kenya: Truth, Justice, and Reconciliation Commission, mandated to investigate and recommend appropriate action on human rights abuses, 2009.
Many of the foregoing commissions had terms averaging
only a year, possibly to hasten the need for closure.
Against this backdrop of consistent and long customary
practice of states which form truth commissions exclusively to investigate human rights violations, the creation of the “Philippine Truth Commission of 2010” to investigate graft and corruption cases of the previous administration is a blatant departure from such customary practice as part of international law to which the Philippines is constitutionally mandated to adhere to and accept. Regrettably, the Philippine version of a truth commission appears to be an embarrassing aberration.
In the post-apartheid South Africa, where reconciliation of its
minority white and majority black communities was the ultimate goal to
end injurious and often violent enforced racial segregation, the Truth and Reconciliation Commission successfully fulfilled its mandate, inspired by the impeccable impartiality, enduring patriotism, and ennobling vision of Nelson Mandela, who caused its creation, and the unbending
resoluteness and inexhaustible zeal of a great ecclesiastic who chaired it, Archbishop Desmond Tutu.
In contrast, especially as to its goal of selective search for
truth and justice, the “Philippine Truth Commission of 2010” is a farcical and infirm imitation.
II THE CREATION OF THE “TRUTH COMMISSION” UNDER EXECUTIVE ORDER NO. 1 IS AN EXERCISE IN FUTILITY AND AN ENTERPRISE IN PARTISAN HOSTILITY, FOR WHICH REASON IT MUST BE SCUTTLED BEFORE IT EVEN STARTS ITS “MISSION”.
A. PROSECUTORIAL AND JUDICIAL BODIES ARE IN PLACE TO TAKE COGNIZANCE AND JURISDICTION OVER GRAFT AND CORRUPTION COMPLAINTS WITHOUT INVENTING A “TRUTH COMMISSION”. ============================== 86. As adverted to and discussed above, there are existing
bodies like the Office of the Ombudsman and the Department of Justice which have competent jurisdiction to investigate and initiate the prosecution of all cases of graft and corruption, including those allegedly committed during the previous administration. Consequently, there is
absolutely no “need for a separate body dedicated solely to investigating and finding out the truth concerning the reported case of graft and corruption during the previous administration.”
The extant investigative and prosecutorial bodies negate
the necessity of inventing a “Truth Commission” whose powers duplicate and erode the jurisdiction of these existing quasi-judicial agencies.
B. THE FINDINGS OF THE “TRUTH COMMISSION” ARE ONLY RECOMMENDATORY AND COULD BE REJECTED BY THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE WHICH ARE OBLIGATED TO CONDUCT THEIR OWN INDEPENDENT ASSESSMENT OF PROBABLE CAUSE AS WELL AS THE COMPETENCE AND CREDIBILITY OF EVIDENCE. ==============================
Despite the quasi-judicial powers vested in the “Truth
Commission” which duplicate those of the Office of the Ombudsman and the Department of Justice, the report and findings of the “Truth Commission” on the prosecution of alleged offenders are only
recommendatory to the “appropriate prosecutorial authorities, which are essentially the Office of the Ombudsman and the Department of Justice.
However, considering that the
Ombudsman is an
independent constitutional body which has its own mandate under the Constitution and Republic Act No. 6770, and the Department of Justice is
the principal prosecutorial arm of the Executive, both bodies are mandated to conduct their own separate and independent investigations. Perforce, they are obligated to make their own assessment of existence of probable cause as well as the competence and credibility of evidence.
Consequently, both the Office of the Ombudsman and the
Department of Justice are not supposed to accept the recommendations of the “Truth Commission” as a verity, hook line and sinker. They can altogether reject the recommendations of the “Truth Commission”, thus rendering the proceedings in the Truth Commission as an exercise in futility.
B.1 SINCE DOJ OFFICIALS AND PERSONNEL ARE AUTHORIZED TO BE USED BY THE “TRUTH COMMISSION”, THEN THE INVESTIGATION IS BEST LEFT TO THE JURISDICTION OF THE DOJ AND THE OMBUDSMAN. ==============================
Under Section 2 (g) of Executive Order No. 1, the “Truth shall “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.” (Emphasis supplied)
If the “Truth Commission” would avail of the services and
expertise of Department of Justice officials and personnel, why not leave such investigations to the proper agency like the Department of Justice?
This is a redundant rigodon which definitely will not promote economy, simplicity and efficiency, the very standards imposed by the legislature in delegating the continuing power of the President to reorganize the structure of the Office of the President.
One of the articulated objectives for the creation of the
“Truth Commission” is to put closure to the alleged misdeeds and scandals of the previous administration.
A “whereas” clause of Executive Order No. 1 reads:
“WHEREAS, there is an urgent call for the determination of the truth regarding reports of large scale graft and corruption in the government and to put a closure to them by 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”. (Emphasis supplied)
C. INSTEAD OF A FORTHWITH CLOSURE OF ALLEGED MISDEEDS OF THE PREVIOUS ADMINISTRATION, IT WOULD EVEN LENGTHEN THE CLOSURE PROCESS. C.1 THE FILING AND PROSECUTION OF GRAFT CASES WILL HAVE TO WAIT UNTIL THE “TRUTH COMMISSION” FINISHES ITS INVESTIGATION. C.2 THE “TRUTH COMMISSION” IS AUTHORIZED TO INORDINATELY FOOT-DRAG FOR 29 MONTHS SINCE ITS CREATION ON 30 JULY 2010 UNTIL 31 DECEMBER 2012 TO TERMINATE ITS PROCEEDINGS AND SUBMIT ITS RECOMMENDATIONS.
D. THE PROCEEDINGS OF THE “TRUTH COMMISSION” CAN BE CONVENIENTLY USED FOR TRIAL AND CONVICTION BY PUBLICITY OF EXPECTED RESPONDENTS. ==============================
President Benigno S. Aquino III also underscored upon
signing of Executive Order No. 1 that “the process of bringing a necessary closure to the allegations of official wrongdoings and impunity has begun.” (Emphasis supplied)
But when will the closure process end? The “Truth
Commission” was given a maximum term of 29 long months from the approval of the controverted Executive Order on 30 July 2010. More particularly, Section 14 of Executive Order No. 1 provides: “The Commission shall accomplish its mission on or before December 31, 2012.” (Emphasis supplied)
The long period within which to achieve the “avowed”
closure renders suspect the motives for the creation of the “Truth Commission”. The maximum term of 21 months is a virtual license for the “Truth Commission” to foot-drag its investigation as if to maximize the period for partisan hostility against expected respondents.
Moreover, the constitution of the “Truth Commission” will
temporize the investigative and prosecutorial functions of the Department of Justice and the Office of the Ombudsman as they are bound to await the completion of the “Truth Commission”.
In fact, the Department of Justice has already deferred or
held in abeyance its action on post-election complaints filed with it against very ranking officials of the past administration in view of the projected creation of the “Truth Commission” even before the actual issuance of E.O. No. 1.
On the other hand, the Ombudsman herself has
announced that she favors the creation of the “Truth Commission”, probably unmindful that Executive Order No. 1 derogates the
constitutional jurisdiction of the Office of the Ombudsman.
It appears that no closure with reasonable alacrity is
forthcoming. What may be expected to ensue are trial by publicity of expected respondents and avalanche of populist tirades capitalizing on the proceedings of the “Truth Commission”. These expected aftermaths are consistent with the pronouncements of officials of the current Administration that a principal audience of the “Truth Commission” is the public or the Filipino people. III NEITHER LACHES NOR ESTOPPEL CAN BAR A CHALLENGE ON THE CONSTITUTIONALITY OF AN EXECUTIVE ORDER OR STATUTE.
The pretension that since previous commissions which were
similarly created by executive fiat were not challenged as unconstitutional for usurpation of legislative power by the President who constituted said
commissions is a feeble justification for the validity of the controverted “Truth Commission”.
In the case of Moldex Realty, Inc. vs. HLURB (G.R. No.
149719, June 21, 2007), the Honorable Court held that constitutional challenge can be made anytime: “That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.” (Emphasis supplied).
The mere fact that a law has been relied upon in the past
and all that time has not been attacked as unconstitutional is not a ground for considering petitioner estopped from assailing its validity. For courts will pass upon a constitutional question only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. (British American Tobacco vs. Camacho, et al., 562 SCRA 511)
A statute valid at one time may become void at another time
because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions (Central Bank Employees Assn. Inc. vs. BSP, 446 SCRA 299)
IV ALL OF THE FOREGOING INFIRMITIES CONSTITUTE PATENT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION COMMITTED BY THE OFFICE OF THE PRESIDENT.
To summarize, the foregoing fatal infirmities as thoroughly
discussed above indubitably make Executive Order No. 1 creating the “Philippine Truth Commission of 2010” a patent nullity, and the issuance of said Executive Order No. 1 was attended with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Office of the President, represented by herein respondent Executive Secretary Paquito N. Ochoa, Jr.
To reiterate, E.O. No. 1 is unconstitutional and invalid due to
the following overriding reasons:
E.O. No. 1 violates the separation of powers as it
arrogates the power of the Congress to create a public office and appropriate funds for its operation.
The provision of Book III, Chapter 10, Section 31 of
the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create an entirely new public office which was hitherto inexistent like the “Truth Commission”. (c) E.O. No. 1 illegally amended the Constitution and
pertinent statutes when it vested the “Truth Commission” with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987.
E.O. No. 1 violates the equal protection clause as it
selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable.
The creation of the “Philippine Truth Commission of
2010” violates the consistent and general international practice of four decades wherein States constitute truth commissions to exclusively investigate human rights violations, which customary practice forms part of the generally accepted principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration of Principles enshrined in the Constitution.
The creation of the “Truth Commission” is an exercise
in futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to mistakenly impress the people that widespread poverty will altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of an executive issuance or even a statute.
ALLEGATIONS IN SUPPORT OF THE PRAYER FOR THE ISSUANCE OF TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION
108. Petitioners replead and incorporate all the foregoing
allegations insofar as they are relevant and material to support the prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction.
Injunction is a preservative remedy for the protection of
one’s substantive right or interest (Land Bank of the Philippines vs. Listana, Sr., 408 SCRA 328). As an extraordinary remedy, injunction is designed to preserve or maintain the status quo and is generally availed of to prevent actual or threatened acts until the merits of the case can be heard. (Toyota Motor Philippines Corporation Worker’s Association (TMPCWA) vs. Court of Appeals, 412 SCRA 69).
The subject acts complained of if not restrained before the
matter can be heard on notice or pending litigation will result to grave injustice and damage to the petitioners whose collective right as Members of the Congress is derogated by the issuance and eventual operation of the “Truth Commission”.
The grant of injunctive relief is made more seasonable
because the challenged “Truth Commission” has not been fully constituted and operational, although Executive Order No. 1 is now effective.
Finally, petitioners are willing to post a bond, in an amount to
be fixed by the Honorable Court to answer for any damage which the respondents may suffer as a consequence of the issuance of injunctive relief.
ACCORDINGLY, it is respectfully prayed that the Honorable Court:
ISSUES a Temporary Restraining Order and/or Writ of
Preliminary Injunction restraining the respondents from implementing or enforcing Executive Order No. 1 upon the filing of the instant Petition or soon thereafter.
RENDERS a Decision nullifying Executive Order No. 1 as
unconstitutional and invalid.
ORDERS that the Writ of Preliminary Injunction be made
Petitioners pray for other just and equitable reliefs. Quezon City, for Manila.
12 August 2010.
LAGMAN LAGMAN AND MONES LAW FIRM 2/F Tempus Place Condominium II Makatarungan and Matalino Streets Diliman, Quezon City Telefax: 4335353 to 54 Mobile No. 09186120172 firstname.lastname@example.org By: JOHWEEN O. ATIENZA PTR NO. 3200326/01-05-10/Quezon City IBP NO. 805559/01-05-10/Batangas ROLL NO. 51690 MCLE COMPLIANCE NO. III-0007237/01-11-10 MANUEL ANGELO B. VENTURA III PTR NO. 3910192/06-02-10/Quezon City IBP NO. 824162/05-25-10/Quezon City ROLL NO. 57868 Admitted to the Bar April 2010 (MCLE COMPLIANCE N/A)
The foregoing Petition for Certiorari and Prohibition with Prayer for Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction is filed personally with the Honorable Court and copies thereof served on the other parties and/or their counsel, by registered mail because of time and personnel constraints.
JOHWEEN O. ATIENZA
MANUEL ANGELO B. VENTURA III
Copy furnished by registered mail: SECRETARY PAQUITO N. OCHOA, JR. Office of the Executive Secretary Malacañan Palace San Miguel, Manila SECRETARY FLORENCIO B. ABAD Department of Budget and Management General Solano Street, San Miguel Manila 1005 OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo Street, Legaspi Village Makati City Reg. Receipt No.______ QC Hall Post Office 12 August 2010 Reg. Receipt No.______ QC Hall Post Office 12 August 2010 Reg. Receipt No.______ QC Hall Post Office 12 August 2010
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