Professional Documents
Culture Documents
THE PHILIPPINE
TRUTH COMMISSION OF 2010)
Promulgated:
December 7, 2010
x--------------------------------------------------x
CONCURRING OPINION
I concur in the result of the ponencia of Justice Jose Catral Mendoza and
join the separate opinions of my colleagues, Chief Justice Renato C. Corona,
Justice Arturo D. Brion and Justice Jose Portugal Perez. I vote to declare
Executive Order No. 1 (EO No. 1) unconstitutional, as a well-intentioned, but ill-
devised, presidential issuance that transgresses the boundaries of executive power
and responsibility set by the Constitution and our laws.
While I agree with the majority consensus that equal protection is an issue
that must be resolved in these consolidated petitions, the weightier legal obstacles
to the creation of the Philippine Truth Commission (the Commission) by executive
order deserve greater attention in this discussion.
Indeed, from the answers to these questions, it becomes evident that those
who have designed this constitutional anomaly designated as a “truth commission”
have painted themselves into a legal corner with no escape.
Notably, the Office of the United Nations High Commissioner for Human
Rights likewise lists operational independence as one of the core principles in the
establishment of a truth commission:
The legitimacy and public confidence that are essential for a successful truth
commission process depend on the commission’s ability to carry out its work
without political interference. Once established, the commission should
operate free of direct influence or control by the Government, including in its
research and investigations, budgetary decision-making, and in its report
and recommendations. Where financial oversight is needed, operational
independence should be preserved. Political authorities should give clear signals
that the commission will be operating independently.[2](Emphases supplied.)
With due respect, I disagree with Justice Antonio T. Carpio’s opinion that
the naming of the body created by EO No. 1 as the “Philippine Truth Commission”
was a mere attempt to be novel, to depart from the tired and repetitious scheme of
naming a commission after its appointed head/leader or of calling it a “fact-
finding” body. Obviously, the title given to the Commission is meant to convey
the message that it is independent of the Office of the President.
Those who dissent from the majority position gloss over the fact that EO No.
1 itself expressly states that the Commission’s members shall “act as an
independent collegial body.”[3] During oral arguments, the Solicitor General
confirmed that what EO No. 1 intended is for the Commission to be an
independent body over which the President has no power of control.[4] The
Solicitor General further claimed that one of the functions of the Commission is
“truth-telling.” Verily, the creation of the Philippine Truth Commission and its
naming as such were done as a deliberate reference to the tradition of independent
truth commissions as they are conceived in international law, albeit adapted to a
particular factual situation in this jurisdiction.
(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.(Emphases supplied.)
I agree with Justice Brion that what EO No. 1 sought to accomplish was not
a mere reorganization under the delegated legislative authority of the
President. The creation of the Philippine Truth Commission did not involve any
restructuring of the Office of the President Proper nor the transfer of any function
or office from the Office of the President to the various executive departments and
vice-versa. The Commission is an entirely new specie of public office which, as
discussed in the concurring opinions, is not exercising inherently executive powers
or functions but infringing on functions reserved by the Constitution and our laws
to other offices.
For the sake of argument, let us accept for the moment the propositions of
our dissenting colleagues that:
If the foregoing statements are true, then what EO No. 1 created is a body
under the control and supervision of the President. In fact, if the commissioners
are to be considered special advisers to the President, the Commission would be a
body that serves at the pleasure of the President. Proponents who support the
creation of the Commission in the manner provided for under EO No. 1 should
drop all arguments regarding the purported independence and objectivity of the
proceedings before it.
Indeed, EO No. 1 itself is replete with provisions that indicate that the
existence and operations of the Commission will be dependent on the Office of the
President. Its budget shall be provided by the Office of the President[6] and
therefore it has no fiscal autonomy. The reports of the Commission shall be
published upon the directive of the President.[7] Further, if we follow the legal
premises of our dissenting colleagues to their logical conclusion, then the
Commission as a body created by executive order may likewise be abolished (if it
is part of the Presidential Special Assistants/Advisers System of the Office of the
President Proper) or restructured by executive order. EO No. 1 may be amended,
modified, and repealed all by executive order. More importantly, if the
Commission is subject to the power of control of the President, he may reverse,
revise or modify the actions of the Commission or even substitute his own decision
for that of the Commission.
SECTION 2. x x x.
xxxx
xxxx
(g) Turn over from time to time, for expeditious prosecution to the
appropriate prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable
laws. (Emphasis ours.)
I agree with Justice Perez that the aforementioned functions run counter to
the very purpose for the creation of the Office of the Ombudsman, to
constitutionalize a politically independent office responsible for public
accountability as a response to the negative experience with presidential
commissions. His discussion on the constitutional history of the Office of the
Ombudsman and the jurisprudential bases for its primary jurisdiction over cases
cognizable by the Sandiganbayan (i.e., specific offenses, including graft and
corruption, committed by public officials as provided for in Presidential Decree
No. 1606, as amended) is apropos indeed.
The thrust of all this is that the State with its overwhelming and vast
powers and resources can and must ferret out and investigate wrongdoing,
graft and corruption and at the same time respect the constitutional
guarantees of the individual's right to privacy, silence and due process and
against self-incrimination and unreasonable search and seizure. x x
x.[17] (Emphases ours.)
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Undeniably, from the foregoing, judicial review is not only a power but
a constitutional duty of the courts. The framers of our Constitution found an
imperative need to provide for an expanded scope of review in favor of the “non-
political” courts as a vital check against possible abuses by the political branches
of government. For this reason, I cannot subscribe to Justice Maria Lourdes
Sereno’s view that the Court’s exercise of its review power in this instance is
tantamount to supplanting the will of the electorate. A philosophical view that the
exercise of such power by the Judiciary may from a certain perspective be
“undemocratic” is not legal authority for this Court to abdicate its role and duty
under the Constitution. It also ignores the fact that it is the people by the
ratification of the Constitution who has given this power and duty of review to the
Judiciary.
The insinuations that the members of the majority are impelled by improper
motives, being countermajoritarian and allowing graft and corruption to proliferate
with impunity are utterly baseless. Not only are these sort of ad hominem attacks
and populist appeals to emotion fallacious, they are essentially non-legal
arguments that have no place in a debate regarding constitutionality. At the end of
the day, Justices of this Court must vote according to their conscience and their
honest belief of what the law is in a particular case. That is what gives us courage
to stand by our actions even in the face of the harshest criticism. Those who read
our opinions, if they are truly discerning, will be able to determine if we voted on
points of law and if any one of us was merely pandering to the appointing power.
Needless to say, this Court will fully support the present administration’s
initiatives on transparency and accountability if implemented within the bounds of
the Constitution and the laws that the President professes he wishes to faithfully
execute. Unfortunately, in this instance, EO No. 1 fails this ultimate legal litmus
test.
[1]
From the website of the International Center for Transitional
Justice, http://ictj.org/en/tj/138.html, accessed on December 6, 2010.
[2]
Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the
United Nations High Commissioner for Human Rights, United Nations, New York and
Geneva (2006) at p. 6.
[3]
Section 1, EO No. 1.
[4]
TSN, September 28, 2010, pp. 209-215, cited in the Separate Opinion of Justice Brion.
[5]
To cite a few examples: The South African “Truth and Reconciliation Commission” was
established under the Promotion of National Unity and Reconciliation Act 34 of 1995 passed by
that country’s parliament. The “National Unity and Reconciliation Commission” in Rwanda was
officially set up in 1999 by an act of the Transitional National Assembly.
[6]
Section 11 of EO No. 1.
[7]
Section 15 of EO No. 1.
[8]
Section 2, EO No. 1 with phrase in brackets supplied from Section 1.
[9]
104 Phil. 483 (1958).
[10]
345 Phil. 962 (1997).
[11]
Id. at 974.
[12]
352 Phil. 888 (1998).
[13]
Id. at 913-914.
[14]
496 Phil. 886 (2005).
[15]
Id. at 896-897.
[16]
160-A Phil. 753 (1975).
[17]
Id. at 776.