Louis “Baro Louis “Barok” k” C. Birao Biraogo go v. The Phili Philippi ppine ne Truth Truth Commi Commissi ssion on of 2010 (G.R. No. 192935, December 7, 2010) Honor Honorabl able e Repres Represent entat ative ives s Edcel Edcel Lagman Lagman,, Orland Orlando o Fua, Fua, Ro Rodol dolfo fo Albano Albano,, and Simeon Simeon Datum Datumano anong ng v. Ex Execu ecutiv tive e Secret Secretary ary Paquit Paquito o Ochoa and DBM Secretary Florencio Abad (G.R. No. 193036, December 7, 2010) FACTS: At the dawn of his administration, President Noynoy Aquino signed Executive Order Order No. 1 establ establish ishing ing the Phi Philip lippin pine e Truth Truth Commis Commissio sion n of 20 2010 10.. The Philippine Truth Commission (PTC) is created to investigate reports of graft and corruption committed by third-level public officers and employees, their co-pri co-princi ncipal pals, s, accomp accompli lices ces and access accessori ories es during during the admini administr strati ation on of Gloria Gloria Macapag Macapagal al Arroy Arroyo o ONLY, ONLY, and there thereafte afterr to submi submitt its findin finding g and recom recommen mendat dation ions s to the Presi Presiden dent, t, Congre Congress ss and the Ombud Ombudsma sman. n. The commission is expected to finish their investigation on or before December 31, 2012. There are 5 commissioners, including the chairman. The Philippine Truth Truth Commis Commissio sion n of 20 2010 10 is spearh spearhead eaded ed by forme formerr Chief Chief Justic Justice e Hilari Hilario o Davide, Jr., while the members are former Supreme Court Justices Romeo Callejo Jr., Ruth Romero, and Ateneo Law Professors Menardo Guevarra and Carlos Medina Jr. Barely a month after the issuance of EO No. 1, two cases were filed before the SC assailing the validity and constitutionality of the said EO. The The firs firstt case case is a speci special al civi civill acti action on for for proh prohib ibit itio ion n inst instit itut uted ed by petitioner Louis Biraogo in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. Biraogo argues that EO No. 1 is unconstitutional because there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission. The second case is a special civil action for certiorari and prohibition file filed d by peti petiti tion oner ers s Edce Edcell C. Lagm Lagman an,, Rodo Rodolf lfo o B. Alban Albano o Jr., Jr., Sime Simeon on A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives. Petitioners-Legislators argue that the said Order is unconstitutional because the creation of a public office lies Page 1 of 7
within the province of Congress and not with the executive branch of government. The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the Office of the President Proper has long been recognized. According to the OSG, the Executive, just like the other two branches of government, possesses the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated functions and in the exercise of its administrative functions. The OSG also cites the recent case of Banda v. Ermita, where it was held that the President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes. The OSG concludes that the power of control necessarily includes the power to create offices.
1. 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?
No. The power to reorganize as expressed in Section 31 of the Revised Administrative Code 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. Page 2 of 7
2. May the President legally create the Philippine Truth Commission (PTC)? Is there a valid delegation of power from Congress empowering the President to create a public office?
Yes. 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. 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. 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. 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. 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.
3. According to petitioners, 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 Page 3 of 7
under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987. Is this correct?
No. 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. “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.
The actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them, is certainly not a function given to the commission. Furthermore, 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.
4. Petitioners argue that E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration ONLY as it excludes those of the other administrations, past and present, who may be indictable. Are the petitioners correct?
Yes! 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, which reads:
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Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall anyone be denied the equal protection of the laws.
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.
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth “concerning the reported cases of graft and corruption during the previous administration” only. The intent to single out the previous administration is a plain and patent manifestation that the equal protection clause is indeed violated.
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.
JUSTICE ANTONIO CARPIO’S DISSENTING OPINION: In his dissenting opinion, Justice Carpio insists that EO 1’s focus on controversies under Gloria Macapagal-Arroyo’s presidency is constitutional and reasonable. Carpio, an Arroyo appointee, said that the creation of the truth Commission does not, in any way, violate the equal protection clause. Page 5 of 7
Also, he stated that EO 1 does not limit the Truth Commission’s investigation only to anomalies under the Arroyo presidency because he can expand the body’s mandate to that of other previous administrations. Furthermore, he added that EO 1 only “prioritizes” based on reasonable grunds and does not confine the investigation of acts of graft and corruption that may have been committed during the past administration. The associate justice also argued that it is “reasonable” to give priority to supposed anomalies under the Arroyo administration, since the Marcos (1965-1986), Ramos (1992-1998) and Estrada (1998-2001) presidencies “were already investigated by their successor administrations,” while all the other past Philippine presidents are already dead. The only living President whose administration has not been investigated by its successor administration is President Arroyo’s. This alone is proof that the Arroyo administration is not being singled out for investigation or prosecution. Moreover, Justice Carpio said that it is very unfortunate and ironic that the SC en banc chose to struck down the Truth Commission since the Supreme Court itself creates various fact-finding committees to investigate anomalies within the scope of the judiciary. He likewise said that the SC’s decision to trash the Truth Commission crushed the hopes of the long suffering Filipino people for an end to graft and corruption in government.
INTERESTING FACT: The Truth Commission is also being compared to the Presidential Commission on Good Government which was created by Cory Aquino. The comparison at least is that both bodies seek to ascertain the sins of the previous dispensation. But that is the beginning and end of the comparison. For unlike the Truth Commission, the PCGG was a legislative creation, created pursuant to EO 1 issued by then President Corazon Aquino when she was exercising extraordinary powers that were both executive and legislative in nature. The PCGG could hence issue summons, order the production of evidence issue writs of sequestrations, and cause the filing of cases in court. The difference lies, in other words, with the fact that the law gave the PCGG extraordinary powers whereas the Truth Commission, being a mere creation of the Executive, cannot exercise powers not delegated to it by Congress, the latter in the exercise of its policy making mandate. Therefore, the Philippine Truth Commission, in reality, is a toothless tiger which cannot go beyond gathering facts. It cannot have the powers to issue summons, nor will it have the power to cite individuals in contempt. In truth and in fact, the Commission should meanwhile perform the fact-finding function that the Page 6 of 7
Ombudsman has opted not to perform. With Merceditas Gutierrez appointed precisely to protect the Arroyos, the intention should be not to accord the latter impunity, but to engage in fact finding while there is paralysis in the Office of the Ombudsman.
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