house minority files petition with sc against truth commission

8/9/2019 House Minority files petition with SC against Truth Commission

1/54

Republic of the Philippines

SUPREME COURTManila

REP. EDCEL C. LAGMAN, REP.

RODOLFO B. ALBANO, JR., REP.

SIMEON A. DATUMANONG AND REP.

ORLANDO B. FUA, SR.,

Petitioners,

- versus - G.R. No. 193036

EXECUTIVE SECRETARY PAQUITON. OCHOA, JR. AND DEPARTMENTOF BUDGET AND MANAGEMENTSECRETARY FLORENCIO B. ABAD,

Respondents.

x-----------------------------------------------------x

PETITION FOR CERTIORARI AND PROHIBITIONWITH PRAYER FOR ISSUANCE OF A

TEMPORARY RESTRAINING ORDER AND/ORA WRIT OF PRELIMINARY INJUNCTION

PETITIONERS, through counsel, respectfully state:

NATURE OF THE PETITION

1. This is a Petition for Certiorari and Prohibition under Rule 65

of the Rules of Civil Procedure to declare null and void Executive Order

No. 1 dated 30 July 2010 and entitled Creating the Philippine Truth

Commission of 2010, for being unconstitutional, among other infirmities.

A certified true copy of Executive Order No. 1 is attached as ANNEX A.


2/54

2. The Petitioners invoke the Honorable Supreme Courts

constitutional jurisdiction to (a) determine the constitutionality or validity of

Executive Order No. 1; and (b) determine on petition for certiorari and

prohibition whether or not the Office of the President committed grave

abuse of discretion amounting to lack or excess of jurisdiction in issuing

the subject Executive Order.

3. Petitioners respectfully beseech the Honorable Court to

exempt this petition from the hierarchy-of-courts rule pursuant to the ruling

in Enrile vs. Salazar (186 SCRA 217) in the exercise of this Honorable

Courts plenary power to suspend the operation of its rules in the interest

of justice or when the equities of a case require it (Burgos, Sr. vs. Chief

of Staff, 133 SCRA 800; Yong Chan Kim vs. People, 176 SCRA 277;

and Republic vs. Court of Appeals, 107 SCRA 504). Moreover, as

recognized in Enrile, paramount public interest is a compelling reason for

such exemption.

4. Furthermore, as held in Tatad vs. Secretary of the

Department of Energy (281 SCRA 330), this Honorable Court has the

power to exercise its primary jurisdiction over transcendental issues of

importance such as to determine whether or not the other branches of

government have kept themselves within the limits of the Constitution and

have not abused their discretion.

5. Verily, this Honorable Court has the mandate to adjudicate,

whenever possible, the entire controversy in a single proceeding, leaving

2


3/54

no root or branch to bear the seeds of future litigation. (Caurdanetaan

Piece Workers Union vs. Laguesma, 286 SCRA 401)

6. Petitioners have no appeal or any plain, speedy and

adequate remedy in the ordinary course of law, except the filing of the

instant petition for certiorari and prohibition.

THE PARTIES

Petitioners

7. Petitioners REP. EDCEL C. LAGMAN, REP. RODOLFO B.

ALBANO, JR., REP. SIMEON A. DATUMANONG and REP. ORLANDO

B. FUA, SR. are all of legal age, Filipinos, and Members of the House of

Representatives with official address at Constitution Hills, Quezon City.

They may be served with orders, resolutions, decisions and processes of

the Honorable Court through their counsel, Lagman Lagman and Mones

Law Firm at 2/F Tempus Place Condominium II, Matalino and

Makatarungan Streets, Diliman, Quezon City.

8. Petitioners are real parties-in-interest pursuant to the ruling

of the Honorable Court in Ople vs. Torres, (293 SCRA 141). Petitioners

are possessed with the requisite standing to file this petition because theissuance of Executive Order No. 1 is a usurpation of the legislative power

of the Congress of which they are Members. They have personal and

substantial interest in the instant Petition and have suffered and would

3


4/54

suffer direct injury with the creation of a Truth Commission pursuant to

the standard set in People vs. Vera as reiterated in De La Llana vs. Alba

(112 SCRA 294). Moreover, petitioners as taxpayers can also impugn the

legality of the allocation of public funds for the operation of the Truth

Commission without prior legislative authorization.

Respondents

9. Respondent SECRETARY PAQUITO N. OCHOA, JR. is the

incumbent Executive Secretary who signed Executive Order No. 1

together with President Benigno Aquino III. Respondent SECRETARY

FLORENCIO B. ABAD is the incumbent Secretary of the Department of

Budget and Management who is tasked with the release of funding

allocation and support for governmental agencies and bodies.

10. Both Respondent Secretaries are sued in their respective

official capacities and as alter egos of the President of the Republic.

SEASONABLENESS AND URGENCY OF THE PETITION

11. On 30 July 2010, President Benigno Aquino III issued

Executive Order No. 1 creating the Philippine Truth Commission of 2010.

12. Executive Order No. 1 took effect immediately, although

the Truth Commission is yet to be fully constituted and operational.

4


5/54

13. This Petition is seasonably interposed to challenge the

constitutionality or validity of Executive Order No. 1 and the resolution of

the issues raised herein is of critical immediacy since they involve the

fundamental doctrine of separation of powers and the abiding principle of

rule of law as enshrined in the Constitution.

GROUNDS RELIED UPON FOR THE PETITION

I

EXECUTIVE ORDER NO. 1 DATED 30 JULY 2010SUFFERS FROM FATAL CONSTITUTIONALINFIRMITIES WHICH INVALIDATE ITS CREATIONOF THE PHILIPPINE TRUTH COMMISSION OF2010.

A. E.O. NO. 1 ARROGATES THE

POWER OF THE CONGRESS TOCREATE GOVERNMENTAL OR PUBLICOFFICES, AGENCIES ANDCOMMISSIONS, THEREBY BREACHINGTHE CONSTITUTIONALLY ORDAINEDSEPARATION OF POWERS.

A.1 UNDER THEADMINISTRATIVE CODE OF 1987, THEPOWER GRANTED TO THE PRESIDENTIS ONLY TO REORGANIZE THE

ADMINISTRATIVE STRUCTURE OF THEOFFICE OF THE PRESIDENT TOACHIEVE SIMPLICITY, ECONOMY ANDEFFICIENCY, BUT NOT TO CREATENEW BODIES HITHERTOUNORGANIZED AND NON-EXISTING.

A.2 THE TRUTH COMMISSIONCREATED UNDER E.O. NO. 1 IS NOTONLY A FACT-FINDING BODY BUT IT ISALSO VESTED WITH QUASI-JUDICIAL

POWERS, CONSEQUENTLY, WITHMORE REASON, IT CANNOT BECREATED BY EXECUTIVE FIAT.

A.3 PREVIOUS COMMISSIONSOF GREAT IMPORT WERE CREATEDBY LEGISLATIVE AUTHORIZATION.

5


6/54

B. E.O. NO. 1 USURPS THE POWEROF CONGRESS TO APPROPRIATEPUBLIC FUNDS.

B.1 THE APPROPRIATIONLANGUAGE UNDER SECTION 11 OFEXECUTIVE ORDER NO. 1 IS NOT EVENDEFINITE AND LACKSTRANSPARENCY AS TO THE SPECIFICAMOUNT BUDGETED, THE CEILING TOBE UTILIZED AND THEIDENTIFICATION OF A DEFINITEFUNDING SOURCE.

B.2 A GENERAL STATEMENTTHAT THE OFFICE OF THEPRESIDENT SHALL PROVIDE THENECESSARY FUNDS FOR THECOMMISSION MAY BE ADEQUATEFOR COMMISSIONS OF LESSERIMPORT WHICH ARE STRICTLY FACT-FINDING EXECUTIVE ADJUNCTS ANDARE CHARGED WITH SUBMITTINGREPORTS DIRECT TO THEPRESIDENT, BUT NOT FOR A TRUTH

COMMISSION WITH FAR-REACHINGQUASI-JUDICIAL POWERS AKIN TOTHE OMBUDSMAN AND THEDEPARTMENT OF JUSTICE.

C. E.O. NO. 1 VIOLATES THE EQUALPROTECTION CLAUSE.

D. E.O. NO. 1 DUPLICATES, IF NOTSUPERSEDES, THECONSTITUTIONALLY MANDATED

POWERS OF THE OMBUDSMAN ANDTHE STATUTORILY VESTED POWERSOF THE DEPARTMENT OF JUSTICE,THUS ILLEGALLY AMENDING THECONSTITUTION AND THEADMINISTRATIVE CODE OF 1987.

E. E.O. NO. 1 DEPARTS FROM THEGENERALLY ACCEPTED PRINCIPLESOF INTERNATIONAL LAW ON THECREATION OF TRUTH COMMISSIONS.

II

THE CREATION OF THE TRUTH COMMISSIONUNDER EXECUTIVE ORDER NO. 1 IS ANEXERCISE IN FUTILITY AND AN ENTERPRISE IN

6


7/54

PARTISAN HOSTILITY, FOR WHICH REASON ITMUST BE SCUTTLED BEFORE IT EVEN STARTSITS MISSION.

A. PROSECUTORIAL AND JUDICIALBODIES ARE IN PLACE TO TAKECOGNIZANCE AND JURISDICTIONOVER GRAFT AND CORRUPTIONCOMPLAINTS WITHOUT INVENTING ATRUTH COMMISSION.

B. THE FINDINGS OF THE TRUTHCOMMISSION ARE ONLYRECOMMENDATORY AND COULD BE

REJECTED BY THE OMBUDSMAN ANDTHE DEPARTMENT OF JUSTICE WHICHARE OBLIGATED TO CONDUCT THEIROWN INDEPENDENT ASSESSMENT OFPROBABLE CAUSE AS WELL AS THECOMPETENCE AND CREDIBILITY OFEVIDENCE.

B.1 SINCE DOJ OFFICIALS ANDPERSONNEL ARE AUTHORIZED TO BEUSED BY THE TRUTH COMMISSION,

THEN THE INVESTIGATION IS BESTLEFT TO THE JURISDICTION OF THEDOJ AND THE OMBUDSMAN.

C. INSTEAD OF A FORTHWITHCLOSURE OF ALLEGED MISDEEDS OFTHE PREVIOUS ADMINISTRATION, ITWOULD EVEN LENGTHEN THECLOSURE PROCESS.

C.1 THE FILING AND

PROSECUTION OF GRAFT CASESWILL HAVE TO WAIT UNTIL THETRUTH COMMISSION FINISHES ITSINVESTIGATION.

C.2 THE TRUTH COMMISSIONIS AUTHORIZED TO INORDINATELYFOOT-DRAG FOR 29 MONTHS SINCEITS CREATION ON 30 JULY 2010 UNTIL31 DECEMBER 2012 TO TERMINATEITS PROCEEDINGS AND SUBMIT ITS

RECOMMENDATIONS.

D. THE PROCEEDINGS OF THETRUTH COMMISSION CAN BECONVENIENTLY USED FOR TRIAL ANDCONVICTION BY PUBLICITY OFEXPECTED RESPONDENTS.

7


8/54

III

NEITHER LACHES NOR ESTOPPEL CAN

BAR A CHALLENGE ON THECONSTITUTIONALITY OF AN EXECUTIVEORDER OR STATUTE.

IV

ALL OF THE FOREGOING INFIRMITIESCONSTITUTE PATENT GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OREXCESS OF JURISDICTION COMMITTED

BY THE OFFICE OF THE PRESIDENT.

ARGUMENTS/ DISCUSSIONS

I

EXECUTIVE ORDER NO. 1 DATED 30 JULY

2010 SUFFERS FROM FATALCONSTITUTIONAL INFIRMITIES WHICHINVALIDATE ITS CREATION OF THEPHILIPPINE TRUTH COMMISSION OF2010.

A. E.O. NO. 1 ARROGATES THEPOWER OF THE CONGRESS TOCREATE GOVERNMENTAL OR

PUBLIC OFFICES, AGENCIES ANDCOMMISSIONS, THEREBYBREACHING THE CONSTITUTIONALLY ORDAINEDSEPARATION OF POWERS.===============================

14. One of the hallmarks of a republican democracy is the

doctrine of separation powers among the three great departments of

government. This disquisition is limited to the separation of powers

between the political departments, the legislative and executive branches.

8


9/54

15. Under the 1987 Constitution, the legislative power is vested

in the Congress of the Philippines. This general plenary power of

Congress is defined in Article VI, Section 1, which provides:

Sec.1. The legislative power shall bevested in the Congress of the Philippines whichshall consist of a Senate and a House ofRepresentatives, except to the extent reservedto the people by the provision on initiative andreferendum.

16. On the other hand, the powers to enforce and administer

laws are vested in the Executive Department, as provided in Article VII,

Sections 1 and 17, to wit:

Sec. 1. The executive power shall bevested in the President of the Philippines.

Sec. 17. The President shall havecontrol of all the executive departments,bureaus, and offices. He shall ensure that thelaws be faithfully executed.

17. The separation of powers of the Executive and the

Legislative Departments was well explained by the Honorable Court in the

case ofOple vs. Torres, Ibid., in this wise:

The line that delineates Legislative andExecutive power is not indistinct. Legislativepower is "the authority, under the Constitution,to make laws, and to alter and repeal them."

The Constitution, as the will of the people intheir original, sovereign and unlimited capacity,has vested this power in the Congress of thePhilippines. The grant of legislative power toCongress is broad, general and comprehensive.The legislative body possesses plenary powerfor all purposes of civil government. Any power,

9


10/54

deemed to be legislative by usage and tradition,is necessarily possessed by Congress, unlessthe Constitution has lodged it elsewhere. In fine,

except as limited by the Constitution, eitherexpressly or impliedly, legislative powerembraces all subjects and extends to matters ofgeneral concern or common interest.

While Congress is vested with the powerto enact laws, the President executes the laws.The executive power is vested in the President.It is generally defined as the power to enforceand administer the laws. It is the power ofcarrying the laws into practical operation and

enforcing their due observance.

As head of the Executive Department,the President is the Chief Executive. Herepresents the government as a whole and seesto it that all laws are enforced by the officialsand employees of his department. He hascontrol over the executive department, bureausand offices. This means that he has theauthority to assume directly the functions of theexecutive department, bureau and office, or

interfere with the discretion of its officials.Corollary to the power of control, the Presidentalso has the duty of supervising theenforcement of laws for the maintenance ofgeneral peace and public order. Thus, he isgranted administrative power over bureaus andoffices under his control to enable him todischarge his duties effectively.

18. However, in issuing Executive Order No. 1, the Office of the

President encroached and infringed on the sanctity of the principle of

separation of power.

19. There are only two sources of life of governmental or public

offices, agencies, commissions and bodies. These are the Constitution

and the statutes enacted by the Congress.

10


11/54

20. Examples of public offices created by the Constitution are

the Congress (Article VI), the Executive Department (Article VII), the

House and the Senate Electoral Tribunals (Article VI, Section 17), the

Commission on Appointments (Article XII, Section 18), the Supreme Court

(Article VIII), the Civil Service Commission (Article IX-B), the Commission

on Elections (Article IX-C), the Commission on Audit (Article IX-D), the

Commission on Human Rights (Article VIII, Section 17 [1]) and the Office

of the Ombudsman (Article XI, Section 5).

21. In the exercise of its legislative power to make laws and to

alter and repeal the same, Congress may create or abolish offices except

those created by the Constitution. This legislative prerogative has been

upheld both by the United States and Philippine Supreme Courts, thus:

The legislative power of a state,except so far as restrained by its ownConstitution, is at all times absolute with respectto all offices within its reach. It may at pleasurecreate or abolish them or merely modify theirduties. (Higginbrother v. Baton Rouge, 306U.S. 535 [1939])

At this point, It is apropos toreiterate the elementary rule in administrastivelaw and the law on public officers that a publicoffice may be created through any of thefollowing modes, to wit, either: (1) by theConstitution (fundamental law), (2) by law(statute duly enacted by Congress), or (3) byauthority of law.. (Secretary of theDepartment of Transportation andCommunications vs. Mabalot, 378 SCRA

128)

Admittedly, the act of Congress increating a public office, defining its powers,functions and fixing the term of the periodduring which the officer may claim to hold the

11


12/54

office as of right and the tenure or the termduring which the incumbent actually holds theoffice is a valid in constitutional exercise of

legislative power. (Alba vs. Evangelista, 100Phil. Reports 683)

22. The vast majority of the coterie of offices is created by the

Congress as an inherent function of lawmaking.

23. Not being vested either by the Constitution or by an

appropriate statute to create public offices like the Truth Commission,

the Office of the President verily arrogated the power of the Congress to

create a public office.

24. No life has been breathed to the Truth Commission

because the President of the Republic is powerless to give life to such

public office.

25. This power to create public offices is not shared by the

Constitution and by the Congress with the President of the Republic,

except in a very limited and circumscribed delegated authority as provided

for in the Administrative Code of 1987, and this delimited delegation is

with respect to the continuing structural reorganization of the Office of the

President which is granted to the President by authority of law.

A.1 UNDER THE ADMINISTRATIVECODE OF 1987, THE POWERGRANTED TO THE PRESIDENT ISONLY TO REORGANIZE THE

ADMINISTRATIVE STRUCTURE OFTHE OFFICE OF THE PRESIDENT TO

12


13/54

ACHIEVE SIMPLICITY, ECONOMY AND EFFICIENCY, BUT NOT TOCREATE NEW BODIES HITHERTO

UNORGANIZED AND NON-EXISTING.===============================

26. The Office of the President anchored the establishment of

the Truth Commission on the Presidents continuing authority to

reorganize the Office of the President pursuant to Book III, Chapter 10,

Section 31 of Executive Order No. 292, otherwise known as the

Administrative Code of 1987, which provides:

Sec. 31. Continuing Authority of thePresident to Reorganize his Office. - ThePresident, subject to the policy in the ExecutiveOffice and in order to achieve simplicity,economy and efficiency, shall have continuing

authority to reorganize the administrativestructure of the Office of the President. For thispurpose, he may take any of the followingactions:

(1) Restructure the internalorganization of the Office of thePresident Proper, including theimmediate Offices, the PresidentialSpecial Assistants/Advisers System andthe Common staff Support System, by

abolishing, consolidating or merging unitsthereof or transferring functions from oneunit to another;

(2) Transfer any function under theOffice of the President to any otherDepartment or Agency as well as transferfunctions to the Office of the Presidentfrom other Departments and Agencies;and

(3) Transfer any agency under theOffice of the President to any otherdepartment or agency as well as transferagencies to the Office of the Presidentfrom other departments or agencies.(Underscoring supplied).

13


14/54

27. This limited delegation of authority is circumscribed by the

following standards prescribed by the legislature:

(a) The power is limited to the reorganization of existing

agencies and offices;

(b) The reorganization must pertain only to the administrative

structure of the Office of the President;

(c) The reorganization may entail (i) restructuring of the internal

organization of the Office of the President; (ii) transfer of functions;

and (iii) transfer of agencies; and

(d) The reorganization is to achieve simplicity, economy and

efficiency.

28. The creation of the Truth Commission defies all the

foregoing standards imposed by the Administrative Code of 1987

because:

(a) The Truth Commission is a new creation and not the result

of a structural reorganization. Before the advent of Executive Order

No. 1, the Truth Commission was hitherto nonexistent;

(b) The Truth Commission is not a restructuring, transfer of

functions or transfer of agencies; and

14


15/54

(c) The Truth Commission does not achieve simplicity,

economy and efficiency in the operation of the Office of the

President. In fact, it duplicates the functions and powers of the

Ombudsman and the Department of Justice even as its budget

lacks transparency and limit.

29. It must be underscored that this Honorable Court in the very

recent case of Banda, et. al. vs. Ermita (G.R. No. 166620, April 20,

2010, citing Domingo vs. Zamora [397 SCRA 56]), ruled that the

rationale of the Presidents continuing authority to effect structural

reorganization of the Office of the President is:

The law grants the President thepower to reorganize the Office of thePresident in recognition of the recurringneed of every President to reorganize his orher office to achieve simplicity, economyand efficiency. (Emphasis supplied).

30. All told, the Truth Commission is utterly devoid of

legitimacy.

A.2 THE TRUTH COMMISSIONCREATED UNDER E.O. NO. 1 IS NOTONLY A FACT-FINDING BODY BUT ITIS ALSO VESTED WITH QUASI-JUDICIAL POWERS,CONSEQUENTLY, WITH MORE

REASON, IT CANNOT BE CREATEDBY EXECUTIVE FIAT.===============================

15


16/54

31. The Truth Commission is not a mere fact-finding body. Its

functions transcend that of a collator of facts or an assessor of the cause

and effect of a particular incident, circumstance or factual milieu. It is

vested with quasi-judicial powers which partake of judicial nature.

32. Its being manifestly clothed with quasi-judicial powers makes

its creation by a mere executive fiat even more chronically infirm.

33. Mr. Justice Bellosilo in his separate opinion in

Commissioner of Internal Revenue vs. Court of Appeals (261 SCRA

236) stressed that in carrying out their quasi-judicial functions the

administrative officers or bodies are required to investigate facts or

ascertain the existence of facts, hold hearings, weigh evidence, and

draw conclusions from them as basis for their official action and

exercise of discretion in a judicial nature. (Emphasis supplied).

34. The Truth Commission is authorized to exercise the

following quasi-judicial functions:

(a) Investigate facts or ascertain the existence of facts . It is

primarily tasked to conduct a thorough fact-finding investigation of

reported (covered) cases of graft and corruption and identify and

determine the reported cases of such graft and corruption which it

will investigate. (Section 2 and 2[a])

(b) Hold hearings . It is empowered to invite or subpoena

witnesses and take their testimonies and for that purpose,

16


17/54

administer oaths or affirmations as the case may be (Section 2 [e])

as well as promulgate its rules and regulations or rules of procedure

x x x to ensure the orderly conduct of its investigations,

proceedings, hearings, including the presentation of evidence.

(Section 2 [j]) (Emphasis supplied).

(c) Weigh evidence . It is also empowered to collect, receive,

review and evaluate evidence related to or regarding the cases of

large-scale corruption which it has chosen to investigate x x x

(Section 2 [f]) (Emphasis supplied), which entails the assessment of

evidence.

(d) Draw conclusions and exercise discretion in a judicial nature .

It is likewise authorized to 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.

(Emphasis supplied).

A.3 PREVIOUS COMMISSIONS OF

GREAT IMPORT WERE CREATED BYLEGISLATIVE AUTHORIZATION.==============================

17


18/54

35. It is on record that prior commissions of great consequence

were created by law or legislative authorization, namely:

(a) The Agrava Board was constituted on 14 October

1983 with the issuance by the late President Ferdinand Marcos of

P.D. No. 1886, entitled Creating a Fact-Finding Board with Plenary

Powers to Investigate the Tragedy Which Occurred on August 21,

1983. President Marcos then exercised both executive and

legislative powers.

(b) The Presidential Commission on Good Government

(PCGG), a special body with quasi-judicial powers, was created on

28 February 1986 under Executive Order No. 1 issued by then

Pres. Corazon C. Aquino in exercise of her legislative powers under

the Freedom Constitution during the Revolutionary Government.

The PCGG continues to exist today.

(c) The Presidential Committee on Human Rights was

established on 18 March 1986 when the late President Corazon C.

Aquino issued Executive Order No. 8, again in exercise of her

legislative authority under the Freedom Constitution. The

Committee is now the Commission on Human Rights.

(d) The Davide Commission which was tasked to

conduct a fact-finding investigation of the 1989 rebellion and the

involvement of military, civilian official and private persons therein.

Albeit created by Administrative Order No. 146 issued by President

18


19/54

Corazon Aquino on 06 December 1989 when the 8th Congress was

already functioning, it was legitimized with the enactment of R.A.

No. 6832, entitled An Act Creating a Commission to Conduct a

Thorough Fact-Finding Investigation of the Failed Coup d Etat of

December 1989, Recommend Measures to Prevent the Occurrence

of Similar Attempts at a Violent Seizure of Power, and for Other

Purposes.

36. It bears emphasis that the doubts then on the

constitutionality and validity of the Davide Commission which was initially

created by executive fiat, were resolved with the approval of Republic Act

No. 6832 on 05 January 1990, only one (1) month after the issuance of

Administrative Order No. 146.

37. The other Commissions which were principally, if not solely,

fact-finding and responsible to the President for their report, like the

Feliciano Commission, Melo Commission and Zearosa Commission,

although constituted by executive issuance, were not formally challenged

as constitutionally infirm.

38. Moreover, unlike the controverted Truth Commission, the

other Commissions were not granted full quasi-judicial powers.

39. Neither did the other Commissions transgress the equal

protection clause as they were incident-bound on their fact-finding

missions:

19


20/54

(a) The Feliciano Commission was tasked under

Administrative Order No. 78 dated 30 July 2003 to conduct a fact-

finding investigation of the 2003 rebellion or the Oakwood Mutiny.

More specifically, it was authorized to investigate the roots of the

rebellion and the promulgations that inspired it.

(b) The Melo Commission was created under

Administrative Order No. 157 dated 21 August 2006 to address

media and activist killings.

(c) The Zearosa Commission was constituted by

Administrative Order No. 275 dated 08 December 2009 to address

the alleged existence of private armies in the country in the wake

of the Maguindanao Massacre

40. It is best to reiterate that no quasi-judicial powers of the

range and extent granted to the Truth Commission were extended to the

aforesaid Commissions.

41. In the case of the Melo Commission, Section 4 of

Administrative Order No. 157 provides that the government members of

the Commission, namely the NBI Director and the Chief State Prosecutor,

shall form a team to prioritize the prosecution of media and activist

killings. In other words, the traditional investigatory and prosecutorial

powers of the NBI Director and the Chief State Prosecutor were

maintained, and were not granted to the Melo Commission.

20


21/54

42. With respect to the Zearosa Commission, Section 4 of

Administrative Order No. 275 provides that the Department of Justice

shall prioritize the prosecution of members and leaders of such private

armed groups, with a view to their conviction at the soonest possible time.

Consequently, the Zearosa Commission did not duplicate the powers of

the Department of Justice with respect to the investigation and

prosecution of criminal cases.

B. E.O. NO. 1 USURPS THE POWER OF CONGRESS TO

APPROPRIATE PUBLIC FUNDS.===============================

43. The legislative authorization of an appropriation or public

expenditure is the benchmark of republican democracies. It underscores

the tradition of legislative supremacy over the public purse. It sustains the

historical and exclusive prerogative of the popularly-elected legislature to

appropriate the peoples money and control government expenditures.

This is a zealously protected power of the Congress, particularly of the

House of Representatives where appropriation measures exclusively

originate.

44. Jesse Burkhead, a renowned expert in government

budgeting, documents that this legislative power is a heritage from the

English House of Commons which successfully waged the battle for the

right to levy taxes and to make the royalty accountable to it for the

expenditure of public funds. The long and bitter struggle between the

Crown and the representative bodies in England and Europe for the

control of government has made this power one of the most jealously

21


22/54

guarded prerogatives of the legislature. Consequently, it is axiomatic in a

democratic society that no money can be spent except in pursuance of a

legislative appropriation and that all appropriation bills must originate

exclusively in the more popularly elected chamber of the legislature, which

in the Philippines is the House of Representatives.

45. Thus, Article VI, Section 29 (1) of the 1987 Constitution

succinctly and unequivocally provides:

No money shall be paid out of theTreasury except in pursuance of anappropriation made by law. (Emphasissupplied).

46. The Honorable Supreme Court in Philippine Constitution

Association vs. Enriquez(235 SCRA 506) ruled:

Under the Constitution, the spendingpower called by James Madison as the powerof the purse belongs to Congress, subject onlyto the veto power of the President. ThePresident may propose the budget but still thefinal say on the matter of appropriations islodged to Congress.

47. In Bengzon vs. Secretary of Justice and Insular Auditor

(62 Phil. Reports 912), the Honorable Court defined appropriation as

setting apart by law of a certain sum from the public revenue for a

specified purpose. (Emphasis supplied).

48. This plenary power of the Congress was usurped by the

Office of the President when it issued the assailed Executive Order No. 1

22


23/54

wherein the President allocated an undetermined budget for the Truth

Commission in this wise:

Sec 11. Budget for the Commission. The Office of the President shall provide thenecessary funds for the Commission to ensurethat it can exercise its powers, execute itsfunctions, and perform its duties andresponsibilities as effectively, efficiently, andexpeditiously as possible.

B.1 THE APPROPRIATION LANGUAGE UNDER SECTION 11 OFEXECUTIVE ORDER NO. 1 IS NOTEVEN DEFINITE AND LACKSTRANSPARENCY AS TO THESPECIFIC AMOUNT BUDGETED, THECEILING TO BE UTILIZED AND THEIDENTIFICATION OF A DEFINITEFUNDING SOURCE.

================================

49. Aside from illegally seizing the power of the legislature to

appropriate public funds, the Office of the President violated a cardinal

tenet that a budget must be a certain or specific amount. The

appropriation language of Section 17 lacks particularity and transparency

because no specific amount is appropriated, no ceiling is provided and no

definitive funding source is identified.

50. It is essential to have the amount of the appropriation and,

or the maximum sum from which the expenses could be paid, stated. xxx

it is usual and necessary to fix a maximum. (State vs. Eggers, 16 L.R.A.,

N.S. 630 and Ingram vs Colgan, 106 Cal 118). With the nebulous

appropriation language under Section 11 the President gave himself

unlimited and absolute discretion in releasing public funds to the Truth

23


24/54

Commission. This cannot be done. This does not only transgress the

domain of the Congress but it borders on wanton absolutism.

B.2 A GENERAL STATEMENT THATTHE OFFICE OF THE PRESIDENTSHALL PROVIDE THE NECESSARYFUNDS FOR THE COMMISSIONMAY BE ADEQUATE FOR COMMISSIONS OF LESSER IMPORT

WHICH ARE STRICTLY FACT-FINDING EXECUTIVE ADJUNCTS

AND ARE CHARGED WITH SUBMITTING REPORTS DIRECT TOTHE PRESIDENT, BUT NOT FOR ATRUTH COMMISSION WITH FAR-REACHING QUASI-JUDICIALPOWERS AKIN TO THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE.===============================

51. The appropriation language of Section 11 is a reproduction

of the funding provision of previous Commissions of lesser import like the

Feliciano, Melo and Zearosa Commissions which had a uniform

appropriation language which reads: The Office of the President shall

provide the funds for the operation of the Commission.

52. The appropriation language for the aforesaid earlier

Commissions may be considered adequate for the strictly fact-finding

bodies which are adjunct to the Office of the President and mandated to

submit their reports to the President.

53. Strictly speaking, however, the appropriation language in the

Administrative Orders creating the Feliciano, Melo and Zearosa

24


25/54

Commissions is essentially faulty because it lacks particularity and

certainty with respect to the amount appropriated. Such error should have

been avoided in the crafting and issuance of Executive Order No. 1

because unchallenged errors in the past cannot be used to legitimize

current errors.

C. E.O. NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE.

==============================

54. The 1987 Constitution guarantees every person equal

protection of the laws under Article III, Section 1 which provides xxx nor

shall any person be denied the equal protection of the laws.

55. Equal protection safeguards all persons against any form of

hostilities from the government as succinctly explained by the Honorable

Court in Philippine Judges Association vs. Prado (227 SCRA 703):

The equal protection of the laws isembraced in the concept of due process, as

every unfair discrimination offends therequirements of justice and fair play. It hasnonetheless been embodied in a separateclause in Article III Sec. 1., of the Constitution toprovide for a more, specific guaranty againstany form of undue favoritism or hostility from thegovernment. Arbitrariness in general may bechallenged on the basis of the due processclause. But if the particular act assailedpartakes of an unwarranted partiality orprejudice, the sharper weapon to cut it down is

the equal protection clause.

According to a long line of decisions,equal protection simply requires that all personsor things similarly situated should be treatedalike, both as to rights conferred andresponsibilities imposed, Similar subjects, in

25


26/54

other words, should not be treated differently,so as to give undue favor to some and unjustlydiscriminate against others.

56. If eliminating graft and corruption is the noble aim, then

equal protection demands that all persons who belong to the same class

of suspected or alleged perpetrators of graft and corruption must be

investigated and prosecuted equally without regard to personalities and

regimes. They must be exposed to the same rigors and processes, the

same hostility and persecution.

57. But not the Truth Commission which is explicitly ordered to

target only officials and employees, and their conspirators, who belong to

the previous administration the regime of former President Gloria

Macapagal Arroyo.

58. This errant selective search for truth and pursuit of justice is

wantonly discriminatory. It patently breaches the equal protection clause

which is guaranteed in the Constitution.

59. The malevolent motive and discriminatory nature of the

Truth Commission speaks for itself in the whereases and provisions of

Executive Order No. 1, which states, among others:

WHEREAS, there is a need for aseparate body dedicated solely toinvestigating and finding out the truthconcerning the reported cases of graft andcorruption during the previous administrationx x x.

26


27/54

x x x x x x x x x

Section 1.Creation of a Commission. There is hereby created the PHILIPPINETRUTH COMMISSION, hereinafter referred toas the Commission, which shall primarilyseek and find the truth on, and toward this end,investigate reports of graft and corruption ofsuch scale and magnitude that shock andoffend the moral and ethical sensibilities of thepeople, committed by public officers andemployees, their co-principals, accomplices andaccessories from the private sector, if any,during the previous administration; andthereafter recommend the appropriate action ormeasure to be taken thereon to ensure that thefull measure of justice shall be served withoutfear or favor. (Emphasis supplied)

x x x x x x x x x

Section 2. Powers and Functions. The Commission, x x x is primarily tasked toconduct a thorough fact-finding investigation of

reported cases of graft and corruption referredto in Section 1, involving third level publicofficers and higher, their co-principals,accomplices and accessories from the privatesector, if any, during the previousadministration and thereafter submit itsfindings and recommendations to the President,Congress and the Ombudsman. In particular, itshall:

(a) Identify and determine

the reported cases of such graftand corruption which it willinvestigate. (Emphasis supplied).

60. Equal protection requires that all persons or things similarly

situated should be treated alike, both as to rights conferred and

responsibilities imposed. Similar subjects, in other words, should not be

treated differently, so as to give undue favor to some and unjustly

discriminate against others. The guarantee means that no person or class

of persons shall be denied the same protection of laws which is enjoyed

27


28/54

by other persons or other classes in like circumstances. The equal

protection of the laws is a pledge of the protection of equal laws. It limits

governmental discrimination.(City of Manila vs. Laguio, Jr., 455 SCRA

308)

61. The Honorable Court has ruled in City of Manila vs.

Laguio, Jr. that in order not to violate the equal protection clause, a

classification must be reasonable and is deemed reasonable where:

(1) it is based on substantial distinctions which make real

differences;

(2) these are germane to the purpose of the law;

(3) the classification applies not only to present conditions

but also to future conditions which are substantially identical to

those of the present;

(4) the classification applies only to those who belong to the

same class.

62. These aforesaid standards can be summarized into two: (1)

the classification must be substantial; and (2) it must be germane to the

purpose of the enactment or issuance.

63. In the case at bar, the standards for a reasonable

classification have not been observed because:

28


29/54

(a) Firstly, there is no substantial distinction between the

group of officials targeted for investigation by Executive Order No. 1

and other groups or persons who abused their public office for

personal gain.

Executive Order No. 1 without doubt singles out for

investigation and prosecution those who were connected with the

Arroyo administration as if graft were unique to them and corruption

was their species:

In Quinto vs. COMELEC, (G.R. No. 189698, December 1,

2009), the Honorable Court defined the concept of substantial

distinction in this wise:

It does not demand absolute equality

among residents; it merely requires that allpersons shall be treated alike, under likecircumstances and conditions both as toprivileges conferred and liabilitiesenforced. (Emphasis supplied).

The classification rests on real and substantial, not merely

imaginary or whimsical, distinctions. (People vs. Cayat, 68 Phil.

Reports 12)

In other words, graft and grafters prior and subsequent to the

Arroyo administration must also be dealt with the strong arm of the

law with equal force by the so-called Truth Commission.

(b) Secondly, the selective classification is void because

it is not germane to the purpose of Executive Order No. 1 to end

corruption.

29


30/54

Executive Order No. 1 intones the following premises andpurposes:

WHEREAS, Article XI, Section 1 of the1987 Constitution of the Philippines solemnlyenshrines the principle that a public office is apublic trust and mandates that public officersand employees, who are servants of thepeople, must at all times be accountable to thelatter, serve them with utmost responsibility,integrity, loyalty and efficiency, act withpatriotism and justice, and lead modest lives;

WHEREAS, corruption is among themost despicable acts of defiance of thisprinciple and notorious violation of thismandate;

WHEREAS, corruption is an evil andscourge which seriously affects the political,economic, and social life of a nation; in a veryspecial way it inflicts untold misfortune andmisery on the poor, the marginalized andunderprivileged sector of society;

WHEREAS, corruption in thePhilippines has reached very alarming levels,and undermined the peoples trust andconfidence in the Government and itsinstitutions;

WHEREAS, there is an urgent call forthe determination of the truth regarding certainreports of large scale graft and corruption inthe government and to put a closure to them by

the filing of the appropriate cases against thoseinvolved, if warranted, and to deter others fromcommitting the evil, restore the peoples faithand confidence in the Government and in theirpublic servants;

WHEREAS, the Presidents battlecryduring his campaign for the Presidency in thelast elections kung walang corrupt, walangmahirap expresses a solemn pledge that ifelected, he would end corruption and the evil it

breeds;

WHEREAS, there is a need for aseparate body dedicated solely to investigatingand finding out the truth concerning thereported cases of graft and corruption duringthe previous administration, and which will

30


31/54

recommend the prosecution of the offendersand secure justice for all;

Consequently, Executive Order No. 1 was issued

presumably to eradicate graft and corruption in government.

The commission of graft and corruption is not limited to the

Arroyo administration. Prior administrations are hounded by the

same magnitude of controversies and anomalies that need to be

brought before the realm of justice, to name a few: the PEA-Amari

scandal, dubbed by the Philippine Center for Investigative

Journalism as the Grandmother of all Scams1; the Clark Centennial

Expo Scandal, and the BW Resources Scandal.

To have validity, Executive Order No. 1 should not limit its

jurisdiction on the Arroyo administration and exclude reported

cases of corruption in other administrations. The search for truth is

universal, not parochial. It must be timeless like eternity and

limitless like the horizons. The Truth Commission is tasked to do

the opposite.

D. E.O. NO. 1 DUPLICATES, IF NOT SUPERSEDES, THE CONSTITUTIONALLY MANDATEDPOWERS OF THE OMBUDSMAN ANDTHE STATUTORILY VESTEDPOWERS OF THE DEPARTMENT OF

JUSTICE, THUS ILLEGALLY AMENDING THE CONSTITUTION AND THE ADMINISTRATIVE CODEOF 1987.===============================

1 http://www.pcij.org/stories/1998/amari.html

31


32/54

64. The Office of the Ombudsman is the countrys principal graft

buster which is a constitutional body as it was created by the 1987

Constitution under Article XI, Section 5, which provides:

There is hereby created the independentOffice of the Ombudsman, composed of theOmbudsman to be known as Tanodbayan, oneoverall Deputy and at least one Deputy each forLuzon, Visayas, and Mindanao. A separateDeputy for the military establishment may

likewise be appointed.

65. Article XI, Section 12, of the Constitution likewise provides:

The Ombudsman and his Deputies, asprotectors of the people, shall act promptly on

complaints filed in any form or manner againstpublic officials or employees of the government,or any subdivision, agency or instrumentalitythereof, including government-owned orcontrolled corporations, and shall, in appropriatecases, notify the complainants of the actiontaken and the result thereof.

66. Section 13 of the aforesaid Article XI provides for the

following powers, functions, and duties of the Office of the Ombudsman:

(1) Investigate on its own, or oncomplaint by any person, any act or omission ofany public official, employee, office or agency,when such act or omission appears to be illegal,unjust, improper, or inefficient.

xxx xxx xxx

(5) Request any government agency forassistance and information necessary in thedischarge of its responsibilities, and to examine,if necessary, pertinent records and documents.

xxx xxx xxx

32


33/54

(7) Determine the causes of inefficiency,red tape, mismanagement, fraud, and

corruption in the Government and makerecommendations for their elimination and theobservance of high standards of ethics andefficiency.

67. To further strengthen the Office of the Ombudsman,

Congress enacted Republic Act Number 6770, otherwise known as

Ombudsman Act of 1989, which reiterated the power, functions and

duties of the Ombudsman, particularly its investigatory powers and vested

it with prosecutorial authority. Thus, Section 15 of RA 6770 provides:

(1) Investigate and prosecute on itsown or on complaint by any person, any act oromission of any public officer or employee,office or agency, when such act or omissionappears to be illegal, unjust, improper or

inefficient. It has primary jurisdiction over casescognizable by the Sandiganbayan and, in theexercise of this primary jurisdiction, it maytake over, at any stage, form anyinvestigatory agency of Government, theinvestigation of such cases. (Emphasissupplied)

68. The foregoing constitutional and statutory provisions clearly

vest quasi-judicial powers to the Office of the Ombudsman.

69. The improvident creation of the Truth Commission has

duplicated, if not arrogated, the Constitutional mandate of the Office of the

Ombudsman to investigate complaints or reported cases of graft and

corruption with respect to alleged misdeeds of the previous Administration.

33


34/54

70. Likewise, the statutory power of the Office of the

Ombudsman under RA 6770 to initiate the prosecution of graft and

corruption cases has also been usurped by the Truth Commission.

71. It also needs emphasis that the Truth Commission also

overlaps the Department of Justices power to investigate the commission

of crimes (and) prosecute offenders under Section 3, Chapter I, Title III,

Book IV of the Administrative Code of 1987.

72. A review of the powers granted to the Truth Commission as

previously detailed in a prior discussion, verily shows that Executive Order

No. 1 virtually illegally amended both the Constitution and pertinent laws

which granted quasi-judicial powers to the Ombudsman and the

Department of Justice.

73. Consequently, it now appears that the clone, which is the

Truth Commission, has ascendancy over the originals the Office of the

Ombudsman and the Department of Justice, which are respectively

created by the Constitution and by statute.

E. E.O. NO. 1 DEPARTS FROMTHE GENERALLY ACCEPTEDPRINCIPLES OF INTERNATIONALLAW ON THE CREATION OF TRUTHCOMMISSIONS.==============================

74. Under Article II, Section 1, of the Constitution on Declaration

of Principles, it is enunciated that the Philippines adopts the generally

accepted principles of international law as part of the law of the land.

34


35/54

75. Generally accepted principles of international law, by virtueof the incorporation clause of the Constitution, form part of the laws of the

land even if they do not derive from treaty obligations. The classical

formulation in international law sees those customary rules accepted as

binding result from the combination of two elements: the established,

widespread, and consistent practice on the part of States; and a

psychological element known as the opinion juris sive necessitates

(opinion as to law or necessity). Implicit in the latter element is a belief that

the practice in question is rendered obligatory by the existence of a rule of

law requiring it. (Pharmaceutical and Healthcare Association of the

Philippines vs. Health Secretary Francisco T. Duque III, et al, 535

SCRA 265). (Emphasis supplied)

76. Custom or customary international law means a general

and consistent practice of states followed by them from a sense of legal

obligation (opinionjuris). This statement contains the two basic elements

of custom: the material factor, that is, how states behave, and the

psychological or subjective factor, that is, why they behave the way they

do. The initial factor for determining the existence of custom is the actual

behavior of states. This includes several elements: duration, consistency,

and generality of the practice of states. (Pharmaceutical Health Care vs.

Health Secretary Duque, ibid)

77. The required duration can either be short or long. However,

duration is not the most important element of customary practice as part of

35


36/54

the concept of international law. More important is the consistency and

the generality of the practice as observed by many States. (Emphasis

supplied)

78. With respect to the constitution of truth commissions, the

invariable practice of nations, without any exception, is that these

commissions are organized solely and exclusively to investigate violations

of human rights as an integral part of the peace and closure process.

79. From the first truth commission established in Uganda in

1974 up to the present debates in the United States Federal Congress

and the Canadian Parliament on establishing their own truth commissions,

the principal and only issue is on human rights violations. There are now

proposals in the United States to constitute a truth commission to

investigate human rights violations of the Bush administration with respect

to interrogation techniques in Guantanamo Bay, Iraq and Afghanistan and

illegal wire tapping violative of human rights. In the Canadian Parliament,

there are also proposals to create a truth commission to investigateenforced assimilation of aborigine children.

80. A history and documentary of all truth commissions

organized worldwide since the mid-1970s indubitably evidence the

consistent and general practice of creating truth commissions to look into

violations of human rights.

36


37/54

81. The following truth commissions were constituted for the

exclusive mission of investigating human rights violations and bringing to

justice the perpetrators:

Uganda I: Commission of Inquiry into the Disappearances of

People in Uganda, 1971; Brazil: Commission of Inquiry, No More

(Brasil: Nunca Mais), 1979; Bolivia Truth Commission: National

Commission for Investigation for Forced Disappearances (Comisin

Nacional de Investigacin de Desaparecidos, 1982, Zimbabwe:

Commission of Inquiry into the Matabeleland Disturbances (also

known as the Chihambakwe Commission of Inquiry),1983;

Argentina: National Commission on the Disappeared (Comisin

Nacional sobre la Desaparicin de Personas, CONADEP), 1983;

Uganda II: Commission of Inquiry into Violations of Human

Rights, 1986, Peru I: Commission of Inquiry to Investigate the

Massacre of Prisoners (Comisin investigadora de las masacres en

los Penales), 1986; Nepal: Commission of Inquiry to Locate the

Persons Disappeared during the Panchayat Period, 1990; Chile:

National Commission for Truth and Reconciliation (Comisin

Nacional de Verdad y Reconciliacin or the Rettig Commission),

1990; Chad: The Commission of Inquiry into the tortures and killings

during the Habr regime (Commission d'Enqute du Ministre

Chadien de la Justice sur les Crimes du Rgime de Hissne Habr),

1990;

37


38/54

Germany I: Study Commission for Working Through the

History and the Consequences of the SED Dictatorship in Germany

(Die Enquete-Kommission des 12. Deutschen Bundestages

Aufarbeitung von Geschichte und Folgen der SED-Diktatur in

Deutschland), May 1992; El Salvador: Commission on the Truth

for El Salvador (Comisin de la Verdad Para El Salvador, CVES),

1992; Ethiopia Commission of Inquiry: The Special Prosecution

Process in Ethiopia by the Office of the Special Prosecutor, 1993;

Rwanda I: International Commission of Investigation on

Human Rights Violations in Rwanda (Commission internationale

denqute sur les violations des droits de lhomme au Rwanda

depuis le 1er Octobre 1990), 1993; Sri Lanka: Commissions of

Inquiry into the Involuntary Removal or Disappearance of Persons,

1995; Haiti: National Truth and Justice Commission to inquire into

the human rights violations committed under the regime of General

Raoul Cedras (Commission Nationale de Vrit et de Justice),1995;

Germany II: Study Commission for the Overcoming of the

Consequences of the SED Dictatorship in the Process of German

Unity (Enquete-Kommission "berwindung der Folgen der SED-

Diktatur im Prozess der Deutschen Einheit), 1995; Burundi:

International Commission of Inquiry for Burundi (Commission

d'Enqute Internationale sur les violations des droits de l'homme au

Burundi depuis le 21 octobre 1993), 1995; South Africa:

38


39/54

Commission of Truth and Reconciliation (TRC), 1995; Ecuador :

Truth and Justice Commission (Comisin de Verdad y Justicia),

1996; Guatemala: Commission for Historical Clarification (Comisin

para el Esclarecimiento Histrico), inquiry into sate repression

against citizens of Guatemala, 1997.

Rwanda II: National Unity and Reconciliation Commission

(Commission Nationale dUnit et de Rconciliation), inquiry into

crimes committed during the Rwandan civil war, 1999; Nigeria:

Human Rights Violations Investigation Commission (later called The

Judicial Commission for the Investigation of Human Rights

Violations), 1999; Uruguay: Commission for Peace (Comisin Para

la Paz), 2000; South Korea: Presidential Truth Commission on

Suspicious Deaths, 2000; Cte dIvoire: Mediation Committee for

National Reconciliation (Le Comit de Mdiation pour la

Rconciliation Nationale), 2000; Panama: Panama Truth

Commission (Comisin de la Verdad de Panam), inquiry into the

human rights abuses of the military junta led by General Omar

Torrijos, 2001;

Peru II: Truth and Reconciliation Commission (Comisin de

la Verdad y Reconciliacin, CVR) to investigate assassinations,

torture, disappearances, displacement, employment of terrorist

methods and other violations attributable to the State, the Shining

Path and the Tpac Amaru Revolutionary Movement, 2001; Serbia

and Montenegro: Truth and Reconciliation Commission for Serbia

39
http://www.usip.org/resources/commission-inquiry-cote-divoirehttp://www.usip.org/resources/commission-inquiry-cote-divoire


40/54

and Montenegro, also called the Yugoslav Truth and Reconciliation

Commission (Komisija za istinu i pomirenje), 2002;

Timor Leste (East Timor): Commission for Reception, Truth,

and Reconciliation (Comisso de Acolhimento, Verdade e

Reconciliao de Timor-Leste, CAVR), 2002; Sierra Leone: Truth

and Reconciliation Commission to produce a report on human rights

violations, provide a forum for both victims and perpetrators, and

recommend policies to facilitate reconciliation and prevent future

violations, 1990; Ghana: National Reconciliation Commission, to

establish "an accurate and complete historical record" of human

rights violations and abuses during three periods of unconstitutional

government, 2003;

Democratic Republic of Congo: Truth and Reconciliation

Commission (Commission Verit et Rconciliation), 2003; Chile:

National Commission on Political Imprisonment and Torture

(Comisin Nacional Sobre Prisn Politica y Tortura), 2003; Algeria:

Ad Hoc Inquiry Commission in Charge of the Question of

Disappearances (Commission dEnqute ad hoc charge de la

question des disparus), 2003; Paraguay: Truth and Justice

Commission (Comisin Verdad y Justicia, CVJ) to o provide a

historical record of abusive practices during the Stroessner

dictatorship, 2004; Morocco: Equity and Reconciliation Commission

(Instance Equit et Rconciliation, IER) to investigate forced

disappearances and arbitrary detention, 2004;

40


41/54

Liberia: Truth and Reconciliation Commission (TRC) of

Liberia to investigate gross human rights violations and violations of

humanitarian law, 2006; Ecuador: Truth Commission to Impede

Impunity (Comisin de la Verdad para impedir la impunidad), 2007;

Solomon Islands: Truth and Reconciliation Commission (TRC)

tasked to engage stakeholders in reconciliation, and to examine the

nature, antecedents, root causes, responsibility for, and the extent of

the impact on human rights violations or abuses, 2009; and Kenya:

Truth, Justice, and Reconciliation Commission, mandated to

investigate and recommend appropriate action on human rights

abuses, 2009.

82. Many of the foregoing commissions had terms averaging

only a year, possibly to hasten the need for closure.

83. Against this backdrop of consistent and long customary

practice of states which form truth commissions exclusively to investigate

human rights violations, the creation of the Philippine Truth Commission

of 2010 to investigate graft and corruption cases of the previous

administration is a blatant departure from such customary practice as part

of international law to which the Philippines is constitutionally mandated to

adhere to and accept. Regrettably, the Philippine version of a truth

commission appears to be an embarrassing aberration.

84. In the post-apartheid South Africa, where reconciliation of its

minority white and majority black communities was the ultimate goal to

41


42/54

end injurious and often violent enforced racial segregation, the Truth and

Reconciliation Commission successfully fulfilled its mandate, inspired by

the impeccable impartiality, enduring patriotism, and ennobling vision of

Nelson Mandela, who caused its creation, and the unbending

resoluteness and inexhaustible zeal of a great ecclesiastic who chaired it,

Archbishop Desmond Tutu.

85. In contrast, especially as to its goal of selective search for

truth and justice, the Philippine Truth Commission of 2010 is a farcical

and infirm imitation.

II

THE CREATION OF THE TRUTHCOMMISSION UNDER EXECUTIVE ORDERNO. 1 IS AN EXERCISE IN FUTILITY AND ANENTERPRISE IN PARTISAN HOSTILITY, FORWHICH REASON IT MUST BE SCUTTLEDBEFORE IT EVEN STARTS ITS MISSION.

A. PROSECUTORIAL AND

JUDICIAL BODIES ARE IN PLACE TOTAKE COGNIZANCE ANDJURISDICTION OVER GRAFT ANDCORRUPTION COMPLAINTSWITHOUT INVENTING A TRUTHCOMMISSION.==============================

86. As adverted to and discussed above, there are existing

bodies like the Office of the Ombudsman and the Department of Justicewhich have competent jurisdiction to investigate and initiate the

prosecution of all cases of graft and corruption, including those allegedly

committed during the previous administration. Consequently, there is

42


43/54

absolutely no need for a separate body dedicated solely to investigating

and finding out the truth concerning the reported case of graft and

corruption during the previous administration.

87. The extant investigative and prosecutorial bodies negate

the necessity of inventing a Truth Commission whose powers duplicate

and erode the jurisdiction of these existing quasi-judicial agencies.

B. THE FINDINGS OF THETRUTH COMMISSION ARE ONLYRECOMMENDATORY AND COULDBE REJECTED BY THE OMBUDSMAN AND THE DEPARTMENT OF JUSTICE WHICH

ARE OBLIGATED TO CONDUCT

THEIR OWN INDEPENDENT ASSESSMENT OF PROBABLECAUSE AS WELL AS THE COMPETENCE AND CREDIBILITY OFEVIDENCE.==============================

88. Despite the quasi-judicial powers vested in the Truth

Commission which duplicate those of the Office of the Ombudsman and

the Department of Justice, the report and findings of the Truth

Commission on the prosecution of alleged offenders are only

recommendatory to the appropriate prosecutorial authorities, which are

essentially the Office of the Ombudsman and the Department of Justice.

89. However, considering that the Ombudsman is an

independent constitutional body which has its own mandate under the

Constitution and Republic Act No. 6770, and the Department of Justice is

43


44/54

the principal prosecutorial arm of the Executive, both bodies are mandated

to conduct their own separate and independent investigations. Perforce,

they are obligated to make their own assessment of existence of probable

cause as well as the competence and credibility of evidence.

90. Consequently, both the Office of the Ombudsman and the

Department of Justice are not supposed to accept the recommendations

of the Truth Commission as a verity, hook line and sinker. They can

altogether reject the recommendations of the Truth Commission, thus

rendering the proceedings in the Truth Commission as an exercise in

futility.

B.1 SINCE DOJ OFFICIALS AND

PERSONNEL ARE AUTHORIZED TOBE USED BY THE TRUTH COMMISSION, THEN THEINVESTIGATION IS BEST LEFT TOTHE JURISDICTION OF THE DOJ

AND THE OMBUDSMAN.==============================

91. Under Section 2 (g) of Executive Order No. 1, the Truth

Commission shall 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. (Emphasis supplied)

92. If the Truth Commission would avail of the services and

expertise of Department of Justice officials and personnel, why not leave

such investigations to the proper agency like the Department of Justice?

44


45/54

This is a redundant rigodon which definitely will not promote economy,

simplicity and efficiency, the very standards imposed by the legislature in

delegating the continuing power of the President to reorganize the

structure of the Office of the President.

93. One of the articulated objectives for the creation of the

Truth Commission is to put closure to the alleged misdeeds and

scandals of the previous administration.

94. A whereas clause of Executive Order No. 1 reads:

WHEREAS, there is an urgent call forthe determination of the truth regarding reportsof large scale graft and corruption in the

government and to put a closure to them byfiling of the appropriate cases against thoseinvolved, if warranted, and to deter others fromcommitting the evil, restore the peoples faithand confidence in the government and in theirpublic servants. (Emphasis supplied)

C. INSTEAD OF A FORTHWITHCLOSURE OF ALLEGED MISDEEDS

OF THE PREVIOUS ADMINISTRATION, IT WOULD EVENLENGTHEN THE CLOSUREPROCESS.

C.1 THE FILING ANDPROSECUTION OF GRAFT CASESWILL HAVE TO WAIT UNTIL THETRUTH COMMISSION FINISHESITS INVESTIGATION.

C.2 THE TRUTH COMMISSION IS AUTHORIZED TO INORDINATELYFOOT-DRAG FOR 29 MONTHS SINCEITS CREATION ON 30 JULY 2010UNTIL 31 DECEMBER 2012 TOTERMINATE ITS PROCEEDINGS ANDSUBMIT ITS RECOMMENDATIONS.

45


46/54

D. THE PROCEEDINGS OF THETRUTH COMMISSION CAN BE

CONVENIENTLY USED FOR TRIALAND CONVICTION BY PUBLICITY OFEXPECTED RESPONDENTS.==============================

95. President Benigno S. Aquino III also underscored upon

signing of Executive Order No. 1 that the process of bringing a

necessary closure to the allegations of official wrongdoings and

impunity has begun. (Emphasis supplied)

96. But when will the closure process end? The Truth

Commission was given a maximum term of 29 long months from the

approval of the controverted Executive Order on 30 July 2010. More

particularly, Section 14 of Executive Order No. 1 provides: The

Commission shall accomplish its mission on or before December 31,

2012. (Emphasis supplied)

97. The long period within which to achieve the avowed

closure renders suspect the motives for the creation of the Truth

Commission. The maximum term of 21 months is a virtual license for the

Truth Commission to foot-drag its investigation as if to maximize the

period for partisan hostility against expected respondents.

98. Moreover, the constitution of the Truth Commission will

temporize the investigative and prosecutorial functions of the Department

of Justice and the Office of the Ombudsman as they are bound to await

the completion of the Truth Commission.

46


47/54

99. In fact, the Department of Justice has already deferred or

held in abeyance its action on post-election complaints filed with it against

very ranking officials of the past administration in view of the projected

creation of the Truth Commission even before the actual issuance of

E.O. No. 1.

100. On the other hand, the Ombudsman herself has

announced that she favors the creation of the Truth Commission,

probably unmindful that Executive Order No. 1 derogates the

constitutional jurisdiction of the Office of the Ombudsman.

101. It appears that no closure with reasonable alacrity is

forthcoming. What may be expected to ensue are trial by publicity of

expected respondents and avalanche of populist tirades capitalizing on

the proceedings of the Truth Commission. These expected aftermaths

are consistent with the pronouncements of officials of the current

Administration that a principal audience of the Truth Commission is the

public or the Filipino people.

III

NEITHER LACHES NOR ESTOPPEL CANBAR A CHALLENGE ON THE CONSTITUTIONALITY OF AN EXECUTIVEORDER OR STATUTE.

102. The pretension that since previous commissions which were

similarly created by executive fiat were not challenged as unconstitutional

for usurpation of legislative power by the President who constituted said

47


48/54

commissions is a feeble justification for the validity of the controverted

Truth Commission.

103. In the case ofMoldex Realty, Inc. vs. HLURB (G.R. No.

149719, June 21, 2007), the Honorable Court held that constitutional

challenge can be made anytime:

That the question of constitutionalityhas not been raised before is not a validreason for refusing to allow it to be raisedlater. A contrary rule would mean that a law,otherwise unconstitutional, would lapse intoconstitutionality by the mere failure of theproper party to promptly file a case tochallenge the same. (Emphasis supplied).

104. The mere fact that a law has been relied upon in the past

and all that time has not been attacked as unconstitutional is not a ground

for considering petitioner estopped from assailing its validity. For courts

will pass upon a constitutional question only when presented before it in

bona fide cases for determination, and the fact that the question has not

been raised before is not a valid reason for refusing to allow it to be raised

later. (British American Tobacco vs. Camacho, et al., 562 SCRA 511)

105. A statute valid at one time may become void at another time

because of altered circumstances. Thus, if a statute in its practical

operation becomes arbitrary or confiscatory, its validity, even though

affirmed by a former adjudication, is open to inquiry and investigation in

the light of changed conditions (Central Bank Employees Assn. Inc. vs.

BSP, 446 SCRA 299)

48


49/54

IV

ALL OF THE FOREGOING INFIRMITIESCONSTITUTE PATENT GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OREXCESS OF JURISDICTION COMMITTED BYTHE OFFICE OF THE PRESIDENT.

106. To summarize, the foregoing fatal infirmities as thoroughly

discussed above indubitably make Executive Order No. 1 creating the

Philippine Truth Commission of 2010 a patent nullity, and the issuance

of said Executive Order No. 1 was attended with grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of the

Office of the President, represented by herein respondent Executive

Secretary Paquito N. Ochoa, Jr.

107. To reiterate, E.O. No. 1 is unconstitutional and invalid due to

the following overriding reasons:

(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,

49


50/54

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

50


51/54

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.

ALLEGATIONS IN SUPPORT OF THE PRAYER FOR THEISSUANCE OF TEMPORARY RESTRAINING ORDER

AND/OR PRELIMINARY INJUNCTION

108. Petitioners replead and incorporate all the foregoing

allegations insofar as they are relevant and material to support the prayer

for the issuance of a Temporary Restraining Order and/or Writ of

Preliminary Injunction.

109. Injunction is a preservative remedy for the protection of

ones substantive right or interest (Land Bank of the Philippines vs.

Listana, Sr., 408 SCRA 328). As an extraordinary remedy, injunction is

designed to preserve or maintain the status quo and is generally availed of

to prevent actual or threatened acts until the merits of the case can be

heard. (Toyota Motor Philippines Corporation Workers Association

(TMPCWA) vs. Court of Appeals, 412 SCRA 69).

51


52/54

110. The subject acts complained of if not restrained before the

matter can be heard on notice or pending litigation will result to grave

injustice and damage to the petitioners whose collective right as Members

of the Congress is derogated by the issuance and eventual operation of

the Truth Commission.

111. The grant of injunctive relief is made more seasonable

because the challenged Truth Commission has not been fully constituted

and operational, although Executive Order No. 1 is now effective.

112. Finally, petitioners are willing to post a bond, in an amount to

be fixed by the Honorable Court to answer for any damage which the

respondents may suffer as a consequence of the issuance of injunctive

relief.

PRAYER

ACCORDINGLY, it is respectfully prayed that the Honorable Court:

a. ISSUES a Temporary Restraining Order and/or Writ of

Preliminary Injunction restraining the respondents from implementing or

enforcing Executive Order No. 1 upon the filing of the instant Petition or

soon thereafter.

b. RENDERS a Decision nullifying Executive Order No. 1 as

unconstitutional and invalid.

52


53/54

c. ORDERS that the Writ of Preliminary Injunction be made

permanent.

Petitioners pray for other just and equitable reliefs.

Quezon City, for Manila.

12 August 2010.

LAGMAN LAGMAN AND MONES LAW FIRM2/F Tempus Place Condominium IIMakatarungan and Matalino StreetsDiliman, Quezon CityTelefax: 4335353 to 54Mobile No. [email protected]

By:

JOHWEEN O. ATIENZAPTR NO. 3200326/01-05-10/Quezon CityIBP NO. 805559/01-05-10/BatangasROLL NO. 51690MCLE COMPLIANCE NO. III-0007237/01-11-10

MANUEL ANGELO B. VENTURA IIIPTR NO. 3910192/06-02-10/Quezon City

IBP NO. 824162/05-25-10/Quezon CityROLL NO. 57868Admitted to the Bar April 2010(MCLE COMPLIANCE N/A)

EXPLANATION

The foregoing Petition for Certiorari and Prohibition with Prayer for

Issuance of a Temporary Restraining Order and/or a Writ of PreliminaryInjunction is filed personally with the Honorable Court and copies thereofserved on the other parties and/or their counsel, by registered mailbecause of time and personnel constraints.

JOHWEEN O. ATIENZA

53


54/54

MANUEL ANGELO B. VENTURA III

Copy furnished by registered mail:

SECRETARY PAQUITO N. OCHOA, JR. Reg. Receipt No.______Office of the Executive Secretary QC Hall Post OfficeMalacaan Palace 12 August 2010San Miguel, Manila

SECRETARY FLORENCIO B. ABAD Reg. Receipt No.______Department of Budget and Management QC Hall Post OfficeGeneral Solano Street, San Miguel 12 August 2010Manila 1005

OFFICE OF THE SOLICITOR GENERAL Reg. Receipt No.______134 Amorsolo Street, Legaspi Village QC Hall Post OfficeMakati City 12 August 2010

54

house minority files petition with sc against truth commission

Documents