Saturday, August 14, 2010

The Truth Commission

In my column last week I concluded with what in effect were two questions: (1) Does the creation of the Truth Commission have a legal foundation? (2) Does anybody now have standing to challenge its validity?

First, on the issue of standing. Standing, of course, is an issue which the Supreme Court approaches with a certain degree of flexibility. On that understanding I would probably say that a legislator like Congressman Lagman would have standing to challenge an act that might encroach into the power of Congress.

A more crucial question, however, is whether indeed the creation of the Commission is an encroachment on the power of the legislature. It would be if its creation has no legal basis at all. An executive order, after all, as the Administrative Code defines it, is an implementation of a constitutional or a statutory provision.

Executive Order No. 1 (which I would prefer to call an administrative order) relies on the power of the President to reorganize the Office of the President. This power is recognized in Book III, Chapter 10, Section 31 of the 1987 Revised Administrative Code of the Philippines. This is cited in Executive Order No 1. Is this enough to empower the President to create a commission?

Reorganization, according to jurisprudence, can involve the reduction of personnel, consolidation of offices, or even abolition of positions by reason of economy or redundancy of functions. All of these, however, presuppose the existence of something to reorganize. But E. O. No. 1 admits that there is as yet nothing to reorganize. Hence, what it does is create.

E.O. No. 1 clearly involves the creation of a new position. It says “There is hereby created the PHILIPPINE TRUTH 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.”

It is an ambitious creation which is also described as “independent” even if it is not clear from whom or from what it would be independent. Certainly, not from the President, because the President constitutionally has control over all executive offices.

I and some of my colleagues, because one of our colleagues is in danger of being appointed to the truth Commission, have been trying to look for ways of laying a legal foundation for the executive order. The closest we could find were provisions found in the Administrative Code regarding the elements that constitute the Office of the President Proper. Book III, Title II, Chapter 8, Section 22 of the Code says “The President Special Assistants/Advisers System includes such special assistants or advisers as may be needed by the President.” And Book III, Title III, Chapter 9, Section 29 says “Functions of Presidential Assistants/Advisers Systems. - The Special Assistants/Advisers System shall provide advisory or consultative services to the President in such fields and under such conditions as the President may determine.”

Is that all that the Truth Commission is – a body of “Special Assistants and Advisers” strung together as a toothless tiger? I remember a line from the Latin poet Horace which said ”Montes laborant et nascitur ridiculus mus.” (The mountains heaved in labor and gave birth to a tiny mouse)! But the Truth commission, far from being a ridiculous mouse, is supposed to be the centerpiece of the Aquino administration’s fight against corruption!

Indeed, if one looks at the powers it is supposed to exercise, they are powers which a mere tiny mouse cannot do. Mighty Mouse, perhaps, but not a ridiculus mus. If the Truth Commission is expected to perform a herculean task, the mouse, if I may mix meats, must be beefed up!

Of course, the Truth Commission, according to E.O. No. 1, may “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 suspect, in fact, that the staffing will be drawn from already existing investigative bodies. They will be the “beef” in the mix. (Recall, e.g., that the Melo Commission included as members the Chief Prosecutor and the Head of NBI.) In fact, too, these bodies could have been made the investigative body through “reorganization.” Unfortunately, mere reorganization of the Department of Justice or of the Presidential Anti-Graft Commission would not have made the eloquent and ambitious statement the Truth Commission is trying to make against the past administration. Rhetoric can have its value if it does not backfire.

16 August 2010

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