EN BANC

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

Philippine Truth Commission of
2010, Respondent.

G.R. No. 193036 -- Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano,

Jr., Rep. Simeon A. Datumanong, and Rep.
Orlando B. Fua,
Sr., Petitioners, versusExecutive Secretary
Paquito N. Ochoa, Jr. and Department of
Budget and Management Secretary Florencio
B. Abad, Respondents.

Promulgated:

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

SEPARATE
DISSENTING OPINION
ABAD, J.:

Brief Background

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

Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano,

Jr., Rep. Simeon A. Datumanong, and Rep. Orlando B. Fua, Sr. have come to this
Court to challenge the Constitutionality of Executive Order 1.
 The Issues Presented

The parties present four issues:

1. Whether or not petitioners have legal standing to challenge the

constitutionality of Executive Order 1;

2. Whether or not Executive Order 1 usurps the authority of Congress to

create and appropriate funds for public offices, agencies, and commissions;

3. Whether or not Executive Order 1 supplants the powers of the

Ombudsman and the DOJ; and

4. Whether or not Executive Order 1 violates the equal protection clause

in that it singles out the previous administration for investigation.

Discussion

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

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

The 1987 Constitution provides in section 1 of Article III (The Bill of

Rights) as follows:

Section 1. No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied the equal
protection of the laws.

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

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

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

For example, restaurant cooks and waiters cannot complain of

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

Here, the issue I address is whether or not President P-Noy’s decision to

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

And what is the President’s purpose in creating the Truth

Commission? This can be inferred from section 1 of Executive Order 1 which
states that the Commission’s primary function is to –
 xxx seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by public
officials and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration, and
thereafter recommend the appropriate action to be taken thereon to ensure
that the full measure of justice shall be served without fear or favor.

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

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

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

But time differentiation should not be so easily dismissed as superficial. The

world in which people live has two great dimensions: the dimension of space and
the dimension of time. Nobody can say that the difference in time between two
acts or events makes for a superficial difference. Such difference is the substance
of human existence. As the Bible says:

There is an appointed time for everything,

and a time for every affair under the heavens.
A time to be born, and a time to die;
a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
 a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.
(Ecclesiastes 3:1-8, New American Bible)

Recognizing the irreversibility of time is indispensable to every sound

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

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

It should be remembered that the right of the State to recover properties

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

As it happens, President P-Noy limited the Truth Commission’s

investigation to the 9 years of the previous administration. He did not include the
66 years of the 12 other administrations before it. The question, as already stated,
is whether the distinction between the recent past and the remote past makes for a
substantial difference that is relevant to the purpose of Executive Order 1.
 That the distinction makes for a substantial difference is the first point in this
dissent.

1. The Right to Equal Protection

Feasibility of success. Time erodes the evidence of the past. The

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

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

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

Historically, there have been no known or outstanding inquiries done by the

Executive Department into corrupt acts of the past that went beyond the term of the
immediately preceding administration. It makes sense for President P-Noy to limit
the investigation to what is practical and attainable, namely, the 9 years of the
previous administration. He strikes at what is here and near. Perchance, he can get
a conviction. Investigating corruption in the past 75 years rather than in the nearest
9 years, under a nebulous claim of evenhandedness, is the key to failing
altogether. It has been held that if the law presumably hits the evil where it is felt,
it is not to be overthrown because there are other instances to which it might have
been applied.[6]

Neutralization of Presidential bias. The Court can take judicial notice of

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

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

Matching task to size. The Truth Commission is a collegial body of just

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

Good housekeeping. Directing the investigation of reported corrupt acts

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

In like manner, it is reasonable for President P-Noy to cause the

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

2. The President’s Judgment

as against the Court’s

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

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

To act capriciously and whimsically is to act freakishly, abruptly, or

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

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

Notably, none of those who have been reported as involved in corruption in

the previous administration have come forward to complain that the creation of the
Truth Commission has violated their rights to equal protection. If they committed
no wrong, and I believe many would fall in this category, they would probably
have an interest in pushing for the convening of the Commission. On the other
hand, if they believe that the investigation unfairly threatens their liberties, they
can, if subpoenaed, to testify invoke their right to silence. As stated in the majority
opinion, the findings of the Commission would not bind them. Such findings
would not diminish their right to defend themselves at the appropriate time and
forum.

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

ROBERTO A. ABAD
Associate Justice

[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.