by Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
Why is President Noynoy Aquino’s Executive Order (EO) No. 1, dated July 30, 2010, “CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010” – unconstitutional?
Because it appears to violate two (2) constitutional principles. First, the principle of equal protection of the law, and second, the principle of separation of powers.
Violation of equal protection
1. The EO materially provides:
“...WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined (sic) 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;...”
“... NOW THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION, hereafter 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.
The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial body:
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, 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...”
“...SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before Decmber 31, 2012...”
2. In short, the Commission was created to investigate reported cases of graft and corruption during the previous administration, meaning the Gloria Arroyo administration, and not the other previous administrations.
3. The EO singles out the Arroyo administration from the other previous administrations.
4. Does the EO claim there are no reports of graft and corruption during previous administrations other than the Arroyo administration? NO.
5. Does the EO claim there are no reports of large-scale graft and corruption during previous administrations other than the Arroyo administration? NO. In fact, it states corruption in the Philippines has reached very alarming levels, resulting in the need to restore the people’s faith and confidence in the Government.
6. Does the EO claim the very alarming levels of corruption in the Philippines were caused wholly and exclusively by the Arroyo administration? NO.
7. Does the EO claim the previous administrations other than the Arroyo administration, did not contribute to the very alarming levels of corruption in the Philippines? NO.
8. Does the EO claim there is no causal relation between the previous administrations other than the Arroyo administration, on one hand, and the very alarming levels of corruption in the Philippines, on the other? NO.
9. Consequently, it would appear that, compared with the other previous administrations, the Arroyo administration does not have a monopoly of reports of large-scale graft and corruption that need to be investigated. The truth is, all previous administrations share the common predicament.
10. Thus: (a) there appears no substantial distinction between the Arroyo administration and the other previous administrations, and (b) the EO does not apply equally to all members of the class of previous administrations. While the EO commands the Truth Commission to investigate the Arroyo administration, there apppears no command to investigate the OTHER previous administrations. According to jurisprudence, these infirmities would render the EO violative of the equal protection clause (Quinto v. Comelec, G.R. No. 189698, December 1, 2009) and, therefore, VOID from the beginning (Art. 5, CIVIL CODE; Velasco v. Lopez, 1 Phil 720).
Violation of separation of powers
11. Under the Constitution, the essential duty of the Chief Executive is to ensure that the laws be faithfully executed (Sec. 17, Art. VII).
12. What law does EO 1 seek to ensure to be faithfully executed? The Anti-Graft and Corrupt Practices Act (RA 3019).
13. What government agency has the constitutional duty to investigate cases of graft and corruption? The independent Office of the Ombudsman (Sec. 5, Art. XI).
14. What is the scope of the Ombudsman’s power of investigation? According to the Constitution, it shall: “Investigate on its own, or on complaint by any person, any act or ommission of any public official, employee, office or agency, when such act or ommission appears to be illegal, unjust, improper, or inefficient” (Sec. 13, subpar. 1, ibid.).
15. Under the EO, the duty of the Truth Commission is to investigate reports of graft and corruption during the previous administration. Under the Constitution, the duty of the Ombudsman is to investigate any act or ommission when such act or ommission appears to be illegal. Is there any substantial difference? NONE. Both laws seek to investigate graft and corruption or illegal acts or ommissions committed by public officials. The Truth Commission is, therefor, a DUPLICATION of the Ombudsman. It is the Chief Executive’s “Ombudsman”, as against the Constitution’s “independent Office of the Ombudsman”.
16. The Chief Executive, through EO 1, instead of respecting the SEPARATE power of the “independent Office of the Ombudsman” to investigate cases of graft and corruption, does the opposite by creating a Truth Commission that will USURP, or ENCROACH upon, the same power to investigate vested by the Constitution exclusively in favor of the Ombudsman.
17. The Chief Executive either has trust or no trust in the current Ombudsman, Merceditas Gutierrez. In the first case, there would be no need for EO 1. The Ombudsman can do the job of the Truth Commission. In the second case, the question that naturally arises is: WHY? Regardless of the answer, and regardless of the need for a Truth Commission, the answer is the Chief Executive must follow the Rule of Law. If indeed there is a need for an executive Truth Commission outside of the Office of the Ombudsman, then let it be created through an Executive Order that does not violate the Constitution.
18. The Chief Executive appears to ignore, albeit without any apparent reason, the fact that Ombudsman Gutierrez’s term of office had expired in 2009. Ombudsman Aniano Desierto’s seven-year term from 1995 to 2002 was completed. Ombudsman Simeon Marcelo followed and began his seven-year term from 2002 to 2009, but did not complete the same. He resigned in 2005. To complete Marcelo’s term, Ombudsman Merceditas Gutierrez was appointed in his place in 2005. Thus, the latter’s TENURE was cut short by the expiration of Marcelo’s TERM in 2009. The Constitution vested Desierto and Marcelo with a TERM of seven (7) years each. Gutierrez had no such term under the law. She only had a TENURE or actual stay in office for the balance of Marcelo’s term. Gutierrez is, therefore, an overstaying Ombudsman who is acting WITHOUT JURISDICTION.
19. Under the foregoing premises, should the Chief Executive declare the Office of the Ombudsman vacant, and appoint a new one? YES. It is a matter of DUTY under the Constitution.
(Editorial Note: This is a Commentary on President Noynoy Aquino's Executive Order No. 1 creating a Truth Commission headed by former Chief Justice Hilario Davide, Jr. It was written last August 15, 2010 by Prof. Alan F. Paguia, with whose gracious permission it is here republished. --DJB)