Saturday, December 24, 2011


Joaquin G. Bernas, S.J.
Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the President’s campaign against corruption? I took a second look at the decision. If the President had read it with an open mind, he would have found that his speech writers and advisers may have given him the wrong signal about the impact of the court’s decision.
The fact is that, when the report on the death knell on the Truth Commission was rung by the Supreme Court, there was no lamentation in the Palace. A Palace spokesman simply said in a matter of fact way that the Palace accepted the decision.
My colleagues and I were not surprised by such reaction. One main reason for creating the Truth Commission, after all, was the obvious Palace and public perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. And so indeed the President’s allies would relently go after the Ombudsman and they could rely on a vast majority in House of Representatives only too ready to satisfy the President’s wishes. With the departure of the former Ombudsman, the urgency of a Truth Commission would disappear.
As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have rescued the Executive Order by minor amendments to make it conform with what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the law that it would not exclusively target the past administration. The Court’s desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMA’s time
As the Court emphasized: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.” All that was needed was a little tweaking as suggested by the Court itself. (I myself did not think that tweaking would be necessary.)
The Palace, however, believed that it did not need a Truth Commission and therefore chose to let it die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented by the Palace. Why so? Because, aside from the fact that the Palace was looking toward a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.
The decision, very importantly, was and is an affirmation of the often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.”
Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”
The Palace in fact was preparing a new team that would lead the exercise of these vast powers. However, I don’t know what happened to that team after the person who was supposed to lead it was incapacitated by sudden illness.
The Truth Commission was also challenged by the opposition on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”
Why is it then that in his recent speeches the President has repeatedly blamed the invalidation of the Truth Commission as a major cause of the government’s failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its single-minded campaign to pin down Gloria Arroyo and CJ Corona, he is seeing that his investigation and prosecution arms, are failing him. He may be seeing this as his own personal failure. Thus, sadly, his lamentation over the death of the Truth Commission sounds like a smoke-screen for personal failure.
26 December 2011

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