Abad's Separate Dissenting Opinion Re TruthComm

8/8/2019 Abad's Separate Dissenting Opinion Re TruthComm

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EN BANC

G.R. No. 192935 -- Louis Barok C. Biraogo,Petitioner,versus The

Philippine Truth Commission of2010,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,versusExecutive Secretary

Paquito N. Ochoa, Jr. and Department of

Budget and Management Secretary Florencio

B. Abad,Respondents.Promulgated:

December 7, 2010x ---------------------------------------------------------------------------------------- x

SEPARATEDISSENTING 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 TruthCommission 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.


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The Issues PresentedThe 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; and4. 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


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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-Noys decision to

focus the Truth Commissions 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 TruthCommission.

[4]And what is the Presidents purpose in creating the Truth

Commission? This can be inferred from section 1 of Executive Order 1 which

states that the Commissions primary function is to


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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 ensurethat 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 Commissions 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;


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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 aftersome 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 latters administration might just as well beexcluded 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 majoritys

advice were to be literally adopted, the Truth Commissions 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 Commissions

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.


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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 takenover. 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


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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 latters dealings is remotely relevant to good housekeeping that is

intended to manage a smooth transition from one administration to the next.

2. The Presidents Judgmentas against the Courts

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 theconstitutional 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 Commissions investigation

only to corruptions committed during the previous administration, he

acted capriciously and whimsically or in an arbitrary ordespotic 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 Presidents 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 themanner 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


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would need for deciding what objective is fair and viable for a five-member body

like the Truth Commission. Only when the Presidents 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. ABADAssociate Justice

[1] Dated July 30, 2010.[2] Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.[3] 2 Cooley, Constitutional Limitations, 824-825.[4]People v. Cayat, 68 Phil. 12 (1939), citing leading American cases.[5]

1987 CONSTITUTION OF THE PHILIPPINES, Article 11, Section 15.[6]

Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.[7]

Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.

Abad's Separate Dissenting Opinion Re TruthComm

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