Professional Documents
Culture Documents
Promulgated:
December 7, 2010
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SEPARATE
DISSENTING OPINION
ABAD, J.:
Brief Background
As the opinion written for the majority by Justice Jose Catral Mendoza says,
President Benigno Simeon Aquino III (President P-Noy to distinguish him from
former President Corazon C. Aquino) campaigned on a platform of “kung walang
corrupt, walang mahirap.” On being elected President, he issued Executive Order
1,[1] creating the Philippine Truth Commission of 2010 that he tasked with the
investigation of reported corruption during the previous administration. The Truth
Commission is to submit its findings and recommendations to the President, the
Congress, and the Ombudsman.
Discussion
The majority holds that petitioners have standing before the Court; that
President P-Noy has the power to create the Truth Commission; that he has not
usurped the powers of Congress to create public offices and appropriate funds for
them; and, finally, that the Truth Commission can conduct investigation without
supplanting the powers of the Ombudsman and the Department of Justice since the
Commission has not been vested with quasi-judicial powers. I fully conform to
these rulings.
The majority holds, however, that Executive Order 1 violates the equal
protection clause of the Constitution. It is here that I register my dissent.
The idea behind the “equal protection clause” is that public authorities
should treat all persons or things equally in terms of rights granted to and
responsibilities imposed on them. As an element of due process, the equal
protection clause bars arbitrary discrimination in favor of or against a class
whether in what the law provides and how it is enforced.
Take the comic example of a law that requires married women to wear their
wedding rings at all times to warn other men not to entice women to violate their
marriage vows. Such law would be unfair and discriminatory since married men,
who are not covered by it, are exposed to similar enticements from women other
than their wives.
But it would be just as unfair and discriminatory if people who hardly share
anything in common are grouped together and treated similarly. [2] The equal
protection clause is not violated by a law that applies only to persons falling within
a specified class, if such law applies equally to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within it
and those who do not.[3]
Evidently, the objective the President sets for the Truth Commission is the
uncovering of the “truth” regarding reported corruption in the previous
administration “to ensure that the full measure of justice [evidently upon those
responsible for it] is served without fear or favor.” Ultimately, the purpose of the
creation of the Truth Commission is to ensure that the corrupt officials of the
previous administration are exposed and brought to justice.
The majority holds that picking on the “previous administration” and not the
others before it makes the Commission’s investigation an “adventure in partisan
hostility.” To be fair, said the majority, the search for truth must include corrupt
acts not only during the previous administration but also during the administrations
before it where the “same magnitude of controversies and anomalies” has been
reported.
The majority points out that corruption in the previous administration and
corruption in the administrations before it have no substantial difference. And
what difference they have, the majority adds, is not relevant to the purpose of
Executive Order 1, which is to uncover corrupt acts and recommend their
punishment. Superficial difference like the difference in time in this case does not
make for a valid classification.
Here the past presidential administrations the country has gone through in
modern history cover a period of 75 years, going back from when President Gloria
Macapagal Arroyo ended her term in 2010 to the time President Manuel L. Quezon
began his term in 1935. The period could even go back 111 years if the
administration of President Emilio Aguinaldo from 1989 to 1901 is included. But,
so as not to complicate matters, the latter’s administration might just as well be
excluded from this discussion.
When the government of President Marcos fell in 1986, the new government
acted swiftly to sequester suspected wealth, impound documents believed to
constitute evidence of wrong-doing, and interview witnesses who could help
prosecute the Marcoses and their cronies. One would think that these actions will
ensure successful prosecution of those who committed graft and corruption in that
era. Yet, after just a decade, the prosecution has been mostly unable to find the
right documents or call the right witnesses. Today, after 24 years, the full force of
government has failed to produce even one conviction.
Clearly, it would be a waste of effort and time to scour all of 66 years of the
administrations before the last, looking for evidence that would produce
conviction. Time has blurred the chance of success. Limiting the Truth
Commission’s investigation to the 9 years of the previous administration gives it
the best chance of yielding the required proof needed for successful action against
the offenders.
At any rate, it does not mean that when the President created the Truth
Commission, he shut the door to the investigation of corruption committed during
the 66 years before the previous one. All existing government agencies that are
charged with unearthing crimes committed by public officials are not precluded
from following up leads and uncovering corruptions committed during the earlier
years. Those corrupt officials of the remote past have not gained immunity by
reason of Executive Order 1.
That is the first point. The second point is that the Court needs to stand
within the limits of its power to review the actions of a co-equal branch, like those
of the President, within the sphere of its constitutional authority. Since, as the
majority concedes, the creation of the Truth Commission is within the
constitutional powers of President P-Noy to undertake, then to him, not to the
Court, belongs the discretion to define the limits of the investigation as he deems
fit. The Court cannot pit its judgment against the judgment of the President in such
matter.
And when can the Supreme Court interfere with the exercise of that
discretion? The answer is, as provided in Section 1, Article VIII of the 1987
Constitution, only when the President gravely abuses his exercise of such
discretion. This means that, in restricting the Truth Commission’s investigation
only to corruptions committed during the previous administration, he
acted capriciously and whimsically or in an arbitrary or despotic manner.[7]
Besides, the Court is not better placed than the President to make the
decision he made. Unlike the President, the Court does not have the full resources
of the government available to it. It does not have all the information and data it
would need for deciding what objective is fair and viable for a five-member body
like the Truth Commission. Only when the President’s actions are plainly
irrational and arbitrary even to the man on the street can the Court step in
from Mount Olympus and stop such actions.
For the above reasons, I join the main dissent of Justice Antonio T. Carpio.
ROBERTO A. ABAD
Associate Justice
[1]
Dated July 30, 2010.
[2]
Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
[3]
2 Cooley, Constitutional Limitations, 824-825.
[4]
People v. Cayat, 68 Phil. 12 (1939), citing leading American cases.
[5]
1987 CONSTITUTION OF THE PHILIPPINES, Article 11, Section 15.
[6]
Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
[7]
Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.