Saturday, December 11, 2010

The SC and the Truth Commission

Upon reading the various opinions condemning the Truth Commission, I was reminded of a line from Hamlet: "The lady doth protest too much, methinks."

Collectively, the justices threw everything, including the kitchen sink, against the Executive. One concurring opinion already sees in the title “Truth Commission” a violation of due process because, he says, its version of the truth will mislead the public (as if the public were a gullible lot), will sap the credibility of the Ombudsman (as if it needed more sapping), violate the right of those of who are touched by the telling of truth (as if current investigators do not publish their version of truth), and thus deny them a fair trial. Wow! Amazing how a treasure trove of unconstitutionality can be mined in a mere title!

The ponencia of Justice Mendoza, however, is fairly straightforward and is summarized by Justice Nachura thus:

“1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the transcendental importance of the issues involved, while petitioner Members of the House of Representatives have standing to question the validity of any official action which allegedly infringes on their prerogatives as legislators;

“2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the President’s power to reorganize under the Administrative Code of 1987;

“3. However, the President’s power to create the herein assailed Truth Commission is justified under Section 17,[1] Article VII of the Constitution, albeit what may be created is merely an ad hoc Commission;

“4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor erode their respective powers; and

“5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause enshrined in Section 1, Article III of the Constitution.”

Of course, to taste the full flavor of the opinions, one must read them in full. Nevertheless, within the limited space of a column, let me just discuss two points raised in the Mendoza ponencia.

First, reliance on the “faithful execution of law law clause” found in Article VII, Section 17 is also affirmed by Nachura, Carpio, and implicitly by Carpio-Morales, Sereno, Abad and, I assume, by the three justices who concurred with the ponencia but did not write separate opinions (Velasco, del Castillo and Villarama). Thus I would count nine as possibly defending the position that the President could create the Truth Commission at least by authority of the “faithful execution clause.”

I myself would agree with that position, but on the understanding that the Commission is merely an investigatory and recommendatory body without power to punish for contempt (as also affirmed by Carpio).

Second, violation of the equal protection clause is affirmed by a majority of the justices. I find this difficult to understand in the light of the four jurisprudential requirements needed to make classification reasonable. These are well known to law students.

First, the EO’s classification is based on substantial distinction. The past administrations (from Aguinaldo to Estrada) are distinct either because they have already been investigated by their successors or because including all past administrations would mean including offenses whose prescriptive periods have already lapsed.

Second, the classification is germane to the purpose of the law. The purpose of the EO is to achieve success in identifying corruption and this would be severely impeded if the scope of the investigation must cover 111 years of presidential history.

Third, the classification applies not only to present condition but also to future conditions. Section 17 of the EO can include the future. The “under-inclusiveness of remedial measures is not unconstitutional, especially when the purpose can be attained through inclusive future legislation or regulation.”

Fourth, the classification includes everyone belonging to the class. The classification of the previous administration as a class by itself is a recognition of the “the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration” and of the “reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration.”

For the validity of classification all that is required is reasonableness.

Finally, the concluding words of Justice Carpio are worth noting: “Neither the Constitution nor any existing law prevents the incumbent President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that: ‘The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.’

13 December 2010

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