Unformatted text preview: LEGAL RESEARCH AND THESIS WRITING 2.
G.R. No. 192935 December 7, 2010 LOUIS “BAROK” C. BIRAOGO, Petitioner,
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
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G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.
When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
— Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed
among the several departments.2 The Constitution is the basic and paramount law to which all other laws
must conform and to which all persons, including the highest officials of the land, must
defer.3 Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot
be simply made to sway and accommodate the call of situations and much more tailor itself to the whims
and caprices of government and the people who run it. 4
For consideration before the Court are two consolidated cases 5 both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled “Creating the
Philippine Truth Commission of 2010.”
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (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 6 as it
usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor.7 The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption
with his slogan, “Kung walang corrupt, walangmahirap.” The Filipino people, convinced of his sincerity
and of his ability to carry out this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest
liveWHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized
and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined 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, walangmahirap” 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;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize
the Office of the President.
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 PHILIPPINETRUTH
COMMISSION, hereinafter 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
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
finding and recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules
of Court of the Philippines be admitted for that purpose;
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;
h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties; i) Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to car ry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
and purposes of this Order.
SECTION 3. Staffing Requirements. – xxx.
SECTION 4. Detail of Employees. – xxx.
SECTION 5. Engagement of Experts. – xxx
SECTION 6. Conduct of Proceedings. – xxx.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – xxx.
SECTION 8. Protection of Witnesses/Resource Persons.– xxx.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony.– Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any private
person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission.– xxx.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – xxx.
SECTION 13. Furniture/Equipment. – xxx.
SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before
December 31, 2012.
SECTION 15. Publication of Final Report. – xxx.
SECTION 16. Transfer of Records and Facilities of the Commission. –xxx.
SECTION 17. Special Provision Concerning Mandate.If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same
shall not affect the validity and effectivity of the other provisions hereof. SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
By the President: BENIGNO (SGD.)
Executive Secretary PAQUITO S. N. AQUINO OCHOA, III JR. Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere
ad hoc body formed under the Office of the President with the primary task to investigate reports of graft
and corruption committed by third-level public officers and employees, their co-principals, accomplices
and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an
“independent collegial body,” it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one. 8
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot
adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can
do is gather, collect and assess evidence of graft and corruption and make recommendations. It may
have subpoena powers but it has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil
or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies “to establish the facts and context of serious violations of
human rights or of international humanitarian law in a country’s past.” 9 They are usually established by
states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for
Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of a
report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.10 “Commission’s members are usually empowered to conduct research, support
victims, and propose policy recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for
crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of
South Africa, the principal function of which was to heal the wounds of past violence and to prevent future
conflict by providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on
judicial retribution, while the marching order of the PTC is the identification and punishment of
perpetrators. As one writer12 puts it: The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: “To those who talk about reconciliation, if they mean that they would like us to simply forget about
the wrongs that they have committed in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give consent to their occurring over and over
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized
them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize
E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not include the power to create an entirely
new public office which was hitherto inexistent like the “Truth Commission.”
(c) 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 under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and present, who may be indictable.
(e) The creation of the “Philippine Truth Commission of 2010” violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration
of Principles enshrined in the Constitution.
(f) The creation of the “Truth Commission” is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even addressing
the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute.”13
In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed
executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President’s
executive power and power of control necessarily include the inherent power to conduct investigations to
ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15Presidential Decree (P.D.) No. 1416 16 (as amended by P.D. No. 1772),
R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasijudicial body and its functions do not duplicate, supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for
The OSG then points to the continued existence and validity of other exe...
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