Truth Commission Admin Law

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G.R. No. 192935. December 7, 2010.*LOUIS “BAROK” C. BIRAOGO, petitioner, vs.

THE PHILIPPINE TRUTH COMMISSION OF 2010,respondent.G.R. No. 193036. December 7, 2010.*REP. EDCEL C. LAGMAN, REP. RODOLFO B.ALBANO, JR., REP. SIMEON A. DATUMANONG,and REP. ORLANDO B. FUA, SR., petitioners, vs.

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.and DEPARTMENT OF BUDGET ANDMANAGEMENT SECRETARY FLORENCIO B.ABAD, respondents.

Public Officers; Philippine Truth Commission(PTC); Words and Phrases; Truth commissionshave been described as bodies that share thefollowing characteristics: (1) they examineonly past events; (2) they investigate patternsof abuse committed over a period of time, asopposed to a particular event; (3) they aretemporary bodies that finish their work with

the submission of a report containingconclusions and recommendations; and (4)they are officially sanctioned, authorized orempowered by the State; The Philippine TruthCommission (PTC) is different from the truthcommissions in other countries which havebeen created as official, transitory and non-

judicial fact-finding bodies “to establish thefacts and context of serious violations of human rights or of international humanitarianlaw in a country’s past.”—The PTC is differentfrom the truth commissions in other countrieswhich have been created as official, transitoryand non-judicial fact-finding bodies “toestablish the facts and context of seriousviolations of human rights or of internationalhumanitarian law in a country’s past.” Theyare usually established by states emergingfrom periods of internal unrest, civil strife orauthoritarianism to serve as mechanisms fortransitional justice. Truth commissions havebeen described as bodies that share thefollowing characteristics: (1) they examineonly past events; (2) they investigate patternsof abuse committed over a period of time, asopposed to a particular event; (3) they aretemporary bodies that finish their work withthe submission of a report containingconclusions and recommendations; and (4)they are officially sanctioned, authorized orempowered by the State. “Commission’smembers are usually empowered to conductresearch, support victims, and propose policyrecommendations to prevent recurrence of crimes. Through their investigations, thecommissions may aim to discover and learnmore about past abuses, or formallyacknowledge them. They may aim to prepare

the way for prosecutions and recommendinstitutional reforms.”

Judicial Review; Requisites.—Like almost allpowers conferred by the Constitution, thepower of judicial review is subject tolimitations, to wit: (1) there must be an actualcase or controversy calling for the exercise of

judicial power; (2) the person challenging theact must have the standing to question thevalidity of the subject act or issuance;otherwise stated, he must have a personal andsubstantial interest in the case such that hehas sustained, or will sustain, direct injury as aresult of its enforcement; (3) the question of constitutionality must be raised at the earliestopportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

Same; Locus Standi; An act of the Executive

which injures the institution of Congresscauses a derivative but nonethelesssubstantial injury, which can be questioned bya member of Congress.—The Court disagreeswith the OSG in questioning the legal standingof the petitioners-legislators to assailExecutive Order No. 1. Evidently, their petitionprimarily invokes usurpation of the power of the Congress as a body to which they belongas members. This certainly justifies theirresolve to take the cudgels for Congress as aninstitution and present the complaints on theusurpation of their power and rights asmembers of the legislature before the Court.As held in Philippine Constitution Association v.Enriquez, 235 SCRA 506 (1994)—“To theextent the powers of Congress are impaired,so is the power of each member thereof, sincehis office confers a right to participate in theexercise of the powers of that institution. Anact of the Executive which injures theinstitution of Congress causes a derivative butnonetheless substantial injury, which can bequestioned by a member of Congress. In sucha case, any member of Congress can have aresort to the courts.”

Same; Same; The Supreme Court leans on thedoctrine that the rule on standing is a matterof procedure, hence, can be relaxed fornontraditional plaintiffs like ordinary citizens,taxpayers, and legislators when the publicinterest so requires, such as when the matteris of transcendental importance, of overreaching significance to society, or of paramount public interest.—The Court leanson the doctrine that “the rule on standing is amatter of procedure, hence, can be relaxed for



nontraditional plaintiffs like ordinary citizens,taxpayers, and legislators when the publicinterest so requires, such as when the matteris of transcendental importance, of overreaching significance to society, or of paramount public interest.” Thus, in CoconutOil Refiners Association, Inc. v. Torres, 465SCRA 47 (2005), the Court held that in cases of

paramount importance where seriousconstitutional questions are involved, thestanding requirements may be relaxed and asuit may be allowed to prosper even wherethere is no direct injury to the party claimingthe right of judicial review. In the firstEmergency Powers Cases, 84 Phil. 368 (1949),ordinary citizens and taxpayers were allowedto question the constitutionality of severalexecutive orders although they had only anindirect and general interest shared incommon with the public.

Presidency; Philippine Truth Commission (PTC);Reorganizations; Administrative Code of 1987(E.O. 292); Words and Phrases; To say that thePhilippine Truth Commission (PTC) is borne outof a restructuring of the Office of the Presidentunder Section 31, Chapter 10, Book III, of Executive Order (E.O.) No. 292, is a misplacedsupposition, even in the plainest meaningattributable to the term “restructure”—an“alteration of an existing structure”—the PTCwas not part of the structure of the Office of the President prior to the enactment of Executive Order No. 1.—The question,therefore, before the Court is this: Does thecreation of the PTC fall within the ambit of thepower to reorganize as expressed in Section31 of the Revised Administrative Code?Section 31 contemplates “reorganization” aslimited by the following functional andstructural lines: (1) restructuring the internalorganization of the Office of the PresidentProper by abolishing, consolidating or mergingunits thereof or transferring functions from oneunit to another; (2) transferring any functionunder the Office of the President to any otherDepartment/Agency or vice versa; or (3)transferring any agency under the Office of thePresident to any other Department/Agency orvice versa. Clearly, the provision refers toreduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Thesepoints to situations where a body or an officeis already existent but a modification oralteration thereof has to be effected. Thecreation of an office is nowhere mentioned,much less envisioned in said provision.Accordingly, the answer to the question is in

the negative. To say that the PTC is borne outof a restructuring of the Office of the Presidentunder Section 31 is a misplaced supposition,even in the plainest meaning attributable tothe term “restructure”—an “alteration of anexisting structure.” Evidently, the PTC was notpart of the structure of the Office of thePresident prior to the enactment of Executive

Order No. 1.

Same; Same; Same; Same; Power of Control; The power of control is entirely different fromthe power to create public offices—the formeris inherent in the Executive, while the latterfinds basis from either a valid delegation fromCongress, or his inherent duty to faithfullyexecute the laws.—In the same vein, thecreation of the PTC is not justified by thePresident’s power of control. Control isessentially the power to alter or modify ornullify or set aside what a subordinate officer

had done in the performance of his duties andto substitute the judgment of the former withthat of the latter. Clearly, the power of controlis entirely different from the power to createpublic offices. The former is inherent in theExecutive, while the latter finds basis fromeither a valid delegation from Congress, or hisinherent duty to faithfully execute the laws.

Same; Same; Same; Same; Same; Statutes; The Court declines to recognize PresidentialDecree (P.D.) No. 1416 as a justification for thePresident to create a public office—P.D. No.1416, as amended by P.D. No. 1772, becamefunctus oficio upon the convening of the FirstCongress, as expressly provided in Section 6,Article XVIII of the 1987 Constitution.—TheCourt, however, declines to recognize P.D. No.1416 as a justification for the President tocreate a public office. Said decree is alreadystale, anachronistic and inoperable. P.D. No.1416 was a delegation to then PresidentMarcos of the authority to reorganize theadministrative structure of the nationalgovernment including the power to createoffices and transfer appropriations pursuant toone of the purposes of the decree, embodiedin its last “Whereas” clause: WHEREAS, thetransition towards the parliamentary form of government will necessitate flexibility in theorganization of the national government.Clearly, as it was only for the purpose of providing manageability and resiliency duringthe interim, P.D. No. 1416, as amended by P.D.No. 1772, became functus oficio upon theconvening of the First Congress, as expresslyprovided in Section 6, Article XVIII of the 1987Constitution.



Same; Same; Faithful Execution Clause; Thecreation of the Philippine Truth Commission(PTC) finds justification under Section 17,Article VII of the Constitution, imposing uponthe President the duty to ensure that the lawsare faithfully executed.—While the power tocreate a truth commission cannot pass muster

on the basis of P.D. No. 1416 as amended byP.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of theConstitution, imposing upon the President theduty to ensure that the laws are faithfullyexecuted. Section 17 reads: Section 17. ThePresident shall have control of all the executivedepartments, bureaus, and offices. He shallensure that the laws be faithfully executed.(Emphasis supplied). As correctly pointed outby the respondents, the allocation of power inthe three principal branches of government isa grant of all powers inherent in them. The

President’s power to conduct investigations toaid him in ensuring the faithful execution of laws—in this case, fundamental laws on publicaccountability and transparency—is inherent inthe President’s powers as the Chief Executive.

That the authority of the President to conductinvestigations and to create bodies to executethis power is not explicitly mentioned in theConstitution or in statutes does not mean thathe is bereft of such authority.

Same; Same; Same; Residual Powers; Thepowers of the President are not limited tothose specific powers under the Constitution—one of the recognized powers of the Presidentgranted pursuant to this constitutionally-mandated duty is the power to create ad hoccommittees, a power which flows from theobvious need to ascertain facts and determineif laws have been faithfully executed.—TheExecutive is given much leeway in ensuringthat our laws are faithfully executed. As statedabove, the powers of the President are notlimited to those specific powers under theConstitution. One of the recognized powers of the President granted pursuant to thisconstitutionally-mandated duty is the power tocreate ad hoc committees. This flows from theobvious need to ascertain facts and determineif laws have been faithfully executed. Thus, inDepartment of Health v. Camposano, 457SCRA 438 (2005), the authority of thePresident to issue Administrative Order No.298, creating an investigative committee tolook into the administrative charges filedagainst the employees of the Department of Health for the anomalous purchase of medicines was upheld.

Same; Same; Same; The purpose of allowingad hoc investigating bodies to exist is to allowan inquiry into matters which the President isentitled to know so that he can be properlyadvised and guided in the performance of hisduties relative to the execution andenforcement of the laws of the land.—It should

be stressed that the purpose of allowing adhoc investigating bodies to exist is to allow aninquiry into matters which the President isentitled to know so that he can be properlyadvised and guided in the performance of hisduties relative to the execution andenforcement of the laws of the land. And if history is to be revisited, this was also theobjective of the investigative bodies created inthe past like the PCAC, PCAPE, PARGO, theFeliciano Commission, the Melo Commissionand the Zenarosa Commission. There being nochanges in the government structure, the

Court is not inclined to declare such executivepower as non-existent just because thedirection of the political winds have changed.

Same; Same; Appropriations; There is nousurpation on the part of the Executive of thepower to appropriate funds where there is onlyallotment or allocations of existing fundsalready appropriated.—On the charge thatExecutive Order No. 1 transgresses the powerof Congress to appropriate funds for theoperation of a public office, suffice it to saythat there will be no appropriation but only anallotment or allocations of existing fundsalready appropriated. Accordingly, there is nousurpation on the part of the Executive of thepower of Congress to appropriate funds.Further, there is no need to specify the amountto be earmarked for the operation of thecommission because, in the words of theSolicitor General, “whatever funds theCongress has provided for the Office of thePresident will be the very source of the fundsfor the commission.” Moreover, since theamount that would be allocated to the PTCshall be subject to existing auditing rules andregulations, there is no impropriety in thefunding.

Same; Same; Words and Phrases; No quasi- judicial powers have been vested in thePhilippine Truth Commission (PTC) as it cannotadjudicate rights of persons who come beforeit; Quasi-judicial powers involve the power tohear and determine questions of fact to whichthe legislative policy is to apply and to decidein accordance with the standards laid down bylaw itself in enforcing and administering the



same law.—Invoking this authority, thePresident constituted the PTC to primarilyinvestigate reports of graft and corruption andto recommend the appropriate action. Aspreviously stated, no quasi-judicial powershave been vested in the said body as it cannotadjudicate rights of persons who come beforeit. It has been said that “Quasi-judicial powers

involve the power to hear and determinequestions of fact to which the legislative policyis to apply and to decide in accordance withthe standards laid down by law itself inenforcing and administering the same law.” Insimpler terms, judicial discretion is involved inthe exercise of these quasi-judicial power, suchthat it is exclusively vested in the judiciary andmust be clearly authorized by the legislature inthe case of administrative agencies.

Same; Same; Same; “Power to Investigate,”and “Power to Adjudicate,” Distinguished.—

The distinction between the power toinvestigate and the power to adjudicate wasdelineated by the Court in Cariño v.Commission on Human Rights, 204 SCRA 483(1991). Thus: “Investigate,” commonlyunderstood, means to examine, explore,inquire or delve or probe into, research on,study. The dictionary definition of “investigate”is “to observe or study closely: inquire intosystematically: “to search or inquire into: x xto subject to an official probe x x: to conductan official inquiry.” The purpose of investigation, of course, is to discover, to findout, to learn, obtain information. Nowhereincluded or intimated is the notion of settling,deciding or resolving a controversy involved inthe facts inquired into by application of the lawto the facts established by the inquiry. Thelegal meaning of “investigate” is essentiallythe same: “(t)o follow up step by step bypatient inquiry or observation. To trace ortrack; to search into; to examine and inquireinto with care and accuracy; to find out bycareful inquisition; examination; the taking of evidence; a legal inquiry;” “to inquire; to makean investigation,” “investigation” being in turndescribed as “(a)n administrative function, theexercise of which ordinarily does not require ahearing. 2 Am J2d Adm L Sec. 257; x x aninquiry, judicial or otherwise, for the discoveryand collection of facts concerning a certainmatter or matters.” “Adjudicate,” commonly orpopularly understood, means to adjudge,arbitrate, judge, decide, determine, resolve,rule on, settle. The dictionary defines the termas “to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass judgment on: settle

judicially: x x act as judge.” And “adjudge”means “to decide or rule upon as a judge orwith judicial or quasi-judicial powers: x x toaward or grant judicially in a case of controversy x x.” In the legal sense,“adjudicate” means: “To settle in the exerciseof judicial authority. To determine finally.Synonymous with adjudge in its strictest

sense;” and “adjudge” means: “To pass on judicially, to decide, settle or decree, or tosentence or condemn. x x. Implies a judicialdetermination of a fact, and the entry of a

judgment.”

Same; Same; Same; Ombudsman; ThePhilippine Truth Commission (PTC) will notsupplant the Ombudsman or the Departmentof Justice (DOJ) or erode their respectivepowers—if at all, the investigative function of the commission will complement those of thetwo offices; The Ombudsman’s power to

investigate under Republic Act (R.A.) No. 6770is not exclusive but is shared with othersimilarly authorized government agencies.—Contrary to petitioners’ apprehension, the PTCwill not supplant the Ombudsman or the DOJ orerode their respective powers. If at all, theinvestigative function of the commission willcomplement those of the two offices. Aspointed out by the Solicitor General, therecommendation to prosecute is but aconsequence of the overall task of thecommission to conduct a fact-findinginvestigation.” The actual prosecution of suspected offenders, much less adjudicationon the merits of the charges against them, iscertainly not a function given to thecommission. The phrase, “when in the courseof its investigation,” under Section 2(g),highlights this fact and gives credence to acontrary interpretation from that of thepetitioners. The function of determiningprobable cause for the filing of the appropriatecomplaints before the courts remains to bewith the DOJ and the Ombudsman. At any rate,the Ombudsman’s power to investigate underR.A. No. 6770 is not exclusive but is sharedwith other similarly authorized governmentagencies.

Same; Same; Equal Protection Clause; Theequal protection of the laws is embraced in theconcept of due process, as every unfairdiscrimination offends the requirements of

justice and fair play.—One of the basicprinciples on which this government wasfounded is that of the equality of right which isembodied in Section 1, Article III of the 1987Constitution. The equal protection of the laws



is embraced in the concept of due process, asevery unfair discrimination offends therequirements of justice and fair play. It hasbeen embodied in a separate clause, however,to provide for a more specific guaranty againstany form of undue favoritism or hostility fromthe government. Arbitrariness in general maybe challenged on the basis of the due process

clause. But if the particular act assailedpartakes of an unwarranted partiality orprejudice, the sharper weapon to cut it down isthe equal protection clause.

Same; Same; Same; The concept of equal justice under the law requires the state togovern impartially, and it may not drawdistinctions between individuals solely ondifferences that are irrelevant to a legitimategovernmental objective; The equal protectionclause is aimed at all official state actions, not

just those of the legislature.—According to a

long line of decisions, equal protection simplyrequires that all persons or things similarlysituated should be treated alike, both as torights conferred and responsibilities imposed.”It “requires public bodies and institutions totreat similarly situated individuals in a similarmanner.” “The purpose of the equal protectionclause is to secure every person within astate’s jurisdiction against intentional andarbitrary discrimination, whether occasionedby the express terms of a statue or by itsimproper execution through the state’s dulyconstituted authorities.” “In other words, theconcept of equal justice under the law requiresthe state to govern impartially, and it may notdraw distinctions between individuals solely ondifferences that are irrelevant to a legitimategovernmental objective.” The equal protectionclause is aimed at all official state actions, not

just those of the legislature. Its inhibitionscover all the departments of the governmentincluding the political and executivedepartments, and extend to all actions of astate denying equal protection of the laws,through whatever agency or whatever guise istaken.

Same; Same; Same; Requisites; Superficialdifferences do not make for a validclassification.—It, however, does not requirethe universal application of the laws to allpersons or things without distinction. What itsimply requires is equality among equals asdetermined according to a valid classification.Indeed, the equal protection clause permitsclassification. Such classification, however, tobe valid must pass the test of reasonableness.

The test has four requisites: (1) The

classification rests on substantial distinctions;(2) It is germane to the purpose of the law; (3)It is not limited to existing conditions only; and(4) It applies equally to all members of thesame class. “Superficial differences do notmake for a valid classification.”

Same; Same; Same; For a classification to

meet the requirements of constitutionality, itmust include or embrace all persons whonaturally belong to the class.—For aclassification to meet the requirements of constitutionality, it must include or embrace allpersons who naturally belong to the class.“The classification will be regarded as invalid if all the members of the class are not similarlytreated, both as to rights conferred andobligations imposed. It is not necessary thatthe classification be made with absolutesymmetry, in the sense that the members of the class should possess the same

characteristics in equal degree. Substantialsimilarity will suffice; and as long as this isachieved, all those covered by theclassification are to be treated equally. Themere fact that an individual belonging to aclass differs from the other members, as longas that class is substantially distinguishablefrom all others, does not justify the non-application of the law to him.”

Same; Same; Same; The classification mustnot be based on existing circumstances only,or so constituted as to preclude addition to thenumber included in the class—it must be of such a nature as to embrace all those whomay thereafter be in similar circumstances andconditions.—The classification must not bebased on existing circumstances only, or soconstituted as to preclude addition to thenumber included in the class. It must be of such a nature as to embrace all those whomay thereafter be in similar circumstances andconditions. It must not leave out or“underinclude” those that should otherwise fallinto a certain classification. As elucidated inVictoriano v. Elizalde Rope Workers’ Union, 59SCRA 54 (1974), and reiterated in a long line of cases, The guaranty of equal protection of thelaws is not a guaranty of equality in theapplication of the laws upon all citizens of thestate. It is not, therefore, a requirement, inorder to avoid the constitutional prohibitionagainst inequality, that every man, womanand child should be affected alike by a statute.Equality of operation of statutes does notmean indiscriminate operation on personsmerely as such, but on persons according tothe circumstances surrounding them. It



guarantees equality, not identity of rights. TheConstitution does not require that things whichare different in fact be treated in law as thoughthey were the same. The equal protectionclause does not forbid discrimination as tothings that are different. It does not prohibitlegislation which is limited either in the objectto which it is directed or by the territory within

which it is to operate. The equal protection of the laws clause of the Constitution allowsclassification. Classification in law, as in theother departments of knowledge or practice, isthe grouping of things in speculation orpractice because they agree with one anotherin certain particulars. A law is not invalidbecause of simple inequality. The very idea of classification is that of inequality, so that itgoes without saying that the mere fact of inequality in no manner determines the matterof constitutionality. All that is required of avalid classification is that it be reasonable,

which means that the classification should bebased on substantial distinctions which makefor real differences, that it must be germane tothe purpose of the law; that it must not belimited to existing conditions only; and that itmust apply equally to each member of theclass. This Court has held that the standard issatisfied if the classification or distinction isbased on a reasonable foundation or rationalbasis and is not palpably arbitrary.

Same; Same; Same; Not to include pastadministrations similarly situated constitutesarbitrariness which the equal protection clausecannot sanction—the Arroyo administration isbut just a member of a class, that is, a class of past administrations, not a class of its own.—Applying these precepts to this case, ExecutiveOrder No. 1 should be struck down as violativeof the equal protection clause. The clearmandate of the envisioned truth commission isto investigate and find out the truth“concerning the reported cases of graft andcorruption during the previous administration”only. The intent to single out the previousadministration is plain, patent and manifest.Mention of it has been made in at least threeportions of the questioned executive order.Specifically, these are: * * * In this regard, itmust be borne in mind that the Arroyoadministration is but just a member of a class,that is, a class of past administrations. It is nota class of its own. Not to include pastadministrations similarly situated constitutesarbitrariness which the equal protection clausecannot sanction. Such discriminatingdifferentiation clearly reverberates to label thecommission as a vehicle for vindictiveness and

selective retribution.

Same; Same; Same; The reports of widespreadcorruption in the Arroyo administration cannotbe taken as basis for distinguishing saidadministration from earlier administrationswhich were also blemished by similarwidespread reports of impropriety.—Though

the OSG enumerates several differencesbetween the Arroyo administration and otherpast administrations, these distinctions are notsubstantial enough to merit the restriction of the investigation to the “previousadministration” only. The reports of widespreadcorruption in the Arroyo administration cannotbe taken as basis for distinguishing saidadministration from earlier administrationswhich were also blemished by similarwidespread reports of impropriety. They arenot inherent in, and do not inure solely to, theArroyo administration. As Justice Isagani Cruz

put it, “Superficial differences do not make fora valid classification.”Same; Same; Same; The fact remains thatExecutive Order No. 1 suffers from arbitraryclassification—the Philippine Truth Commission(PTC), to be true to its mandate of searchingfor the truth, must not exclude the other pastadministrations.—Given the foregoing physicaland legal impossibility, the Court logicallyrecognizes the unfeasibility of investigatingalmost a century’s worth of graft cases.However, the fact remains that ExecutiveOrder No. 1 suffers from arbitraryclassification. The PTC, to be true to itsmandate of searching for the truth, must notexclude the other past administrations. ThePTC must, at least, have the authority toinvestigate all past administrations. Whilereasonable prioritization is permitted, it shouldnot be arbitrary lest it be struck down forbeing unconstitutional. In the often quotedlanguage of Yick Wo v. Hopkins, Though thelaw itself be fair on its face and impartial inappearance, yet, if applied and administeredby public authority with an evil eye and anunequal hand, so as practically to make unjustand illegal discriminations between persons insimilar circumstances, material to their rights,the denial of equal justice is still within theprohibition of the constitution.

Same; Same; Same; While with regard to equalprotection claims, a legislature does not runthe risk of losing the entire remedial schemesimply because it fails, through inadvertenceor otherwise, to cover every evil that mightconceivably have been attacked, in ExecutiveOrder No. 1, however, there is no



inadvertence.—The Court is not unaware that“mere underinclusiveness is not fatal to thevalidity of a law under the equal protectionclause.” “Legislation is not unconstitutionalmerely because it is not all-embracing anddoes not include all the evils within its reach.”It has been written that a regulationchallenged under the equal protection clause

is not devoid of a rational predicate simplybecause it happens to be incomplete. Inseveral instances, the underinclusiveness wasnot considered a valid reason to strike down alaw or regulation where the purpose can beattained in future legislations or regulations.

These cases refer to the “step by step” pro-cess. “With regard to equal protection claims,a legislature does not run the risk of losing theentire remedial scheme simply because it fails,through inadvertence or otherwise, to coverevery evil that might conceivably have beenattacked.” In Executive Order No. 1, however,

there is no inadvertence. That the previousadministration was picked out was deliberateand intentional as can be gleaned from thefact that it was underscored at least threetimes in the assailed executive order. It mustbe noted that Executive Order No. 1 does noteven mention any particular act, event orreport to be focused on unlike the investigativecommissions created in the past. “The equalprotection clause is violated by purposeful andintentional discrimination.”89

Same; Same; Judicial Review; The SupremeCourt, in exercising its power of judicial review,is not imposing its own will upon a co-equalbody but rather simply making sure that anyact of government is done in consonance withthe authorities and rights allocated to it by theConstitution.—To answer this accusation, thewords of Justice Laurel would be a good sourceof enlightenment, to wit: “And when the

judiciary mediates to allocate constitutionalboundaries, it does not assert any superiorityover the other departments; it does not inreality nullify or invalidate an act of thelegislature, but only asserts the solemn andsacred obligation assigned to it by theConstitution to determine conflicting claims of authority under the Constitution and toestablish for the parties in an actualcontroversy the rights which that instrumentsecures and guarantees to them.” Thus, theCourt, in exercising its power of judicial review,is not imposing its own will upon a co-equalbody but rather simply making sure that anyact of government is done in consonance withthe authorities and rights allocated to it by theConstitution. And, if after said review, the

Court finds no constitutional violations of anysort, then, it has no more authority of proscribing the actions under review.Otherwise, the Court will not be deterred topronounce said act as void andunconstitutional.

Same; Same; Same; Perhaps a revision of the

executive issuance so as to include the earlierpast administrations would allow it to pass thetest of reasonableness and not be an affront tothe Constitution; Of all the branches of thegovernment, it is the judiciary which is themost interested in knowing the truth and so itwill not allow itself to be a hindrance orobstacle to its attainment.—Lest it bemisunderstood, this is not the death knell for atruth commission as nobly envisioned by thepresent administration. Perhaps a revision of the executive issuance so as to include theearlier past administrations would allow it to

pass the test of reasonableness and not be anaffront to the Constitution. Of all the branchesof the government, it is the judiciary which isthe most interested in knowing the truth andso it will not allow itself to be a hindrance orobstacle to its attainment. It must, however,be emphasized that the search for the truthmust be within constitutional bounds for “oursis still a government of laws and not of men.”

Corona, C.J., Separate Opinion:

Philippine Truth Commission; While the right tothe truth is yet to be established as a rightunder customary law or as a general principleof international law, it has neverthelessemerged as a “legal concept at the national,regional and international levels, and relates tothe obligation of the state to provideinformation to victims or to their families oreven society as a whole

Biraogo vs. Philippine Truth Commission of 2010

about the circumstances surrounding seriousviolations of human rights.”—The fundamentalbase upon which a truth commission is createdis the right to the truth. While the right to thetruth is yet to be established as a right undercustomary law or as a general principle of international law, it has nevertheless emergedas a “legal concept at the national, regionaland international levels, and relates to theobligation of the state to provide informationto victims or to their families or even societyas a whole about the circumstancessurrounding serious violations of human



rights.” A truth commission has been generallydefined as a “body set up to investigate a pasthistory of violations of human rights in aparticular country ...,” and includes fourelements: ... First, a truth commission focuseson the past. Second, a truth commission is notfocused on a specific event, but attempts topaint the overall picture of certain human

rights abuses, or violations of internationalhumanitarian law, over a period of time. Third,a truth commission usually exists temporarilyand for a pre-defined period of time, ceasing toexist with the submission of a report of itsfindings. Finally, a truth commission is alwaysvested with some sort of authority, by way of its sponsor, that allows it greater access toinformation, greater security or protection todig into sensitive issues, and a greater impactwith its report.

Presidency; Separation of Powers; Public

Office; It is settled that, except for the officescreated by the Constitution, the creation of apublic office is primarily a legislative function.—The separation of powers is a fundamentalprinciple in our system of government. Thisprinciple is one of the cornerstones of ourconstitutional democracy and it cannot beeroded without endangering our government.

The 1987 Constitution divides governmentalpower into three co-equal branches: theexecutive, the legislative and the judicial. Itdelineates the powers of the three branches:the legislature is generally limited to theenactment of laws, the executive departmentto the enforcement of laws and the judiciary totheir interpretation and application to casesand controversies. Each branch is independentand supreme within its own sphere and theencroachment by one branch on another is tobe avoided at all costs. The power underscrutiny in this case is the creation of a publicoffice. It is settled that, except for the officescreated by the Constitution, the creation of apublic office is primarily a legislative function.

The legislature decides what offices aresuitable, necessary or convenient for theadministration of government.

Same; Philippine Truth Commission; EqualProtection Clause; The identification of theArroyo administration as the subject of the

Truth Commission’s investigation does notpass the jurisprudential test of reasonableness.—Given the indubitably clearmandate of E.O. No. 1, does the identificationof the Arroyo administration as the subject of the Truth Commission’s investigation pass the

jurisprudential test of reasonableness? Stated

differently, does the mandate of E.O. No. 1violate the equal protection clause of theConstitution? Yes.

Same; Same; What the President granted the Truth Commission is the authority to conductpreliminary investigation of complaints of graftand corruption against his immediate

predecessor and her associates.—The scope of the investigatory powers and functionsassigned by the President to the TruthCommission encompasses all “public officersand employees, their co-principals,accomplices and accessories from the privatesector, if any, during the previousadministration.” There is no doubt in my mindthat what the President granted the TruthCommission is the authority to conductpreliminary investigation of complaints of graftand corruption against his immediatepredecessor and her associates.

Same; Same; Ombudsman; Separation of Powers; The Constitution has vested inCongress alone the power to grant to anyoffice concurrent jurisdiction with theOmbudsman to conduct preliminaryinvestigation of cases of graft and corruption.—The power of control and supervision of thePresident includes the power to disciplinewhich in turn implies the power to investigate.No Congress or Court can derogate from thatpower but the Constitution itself may setcertain limits. And the Constitution has in factcarved out the preliminary investigatoryaspect of the control power and allocated thesame to the following: (a) to Congress overpresidential appointees who are impeachableofficers (Article XI, Sections 2 and 3); (b) to theSupreme Court over members of the courtsand the personnel thereof (Article VIII, Section6); and (c) to the Ombudsman over any otherpublic official, employee, office or agency(Article XI, Section 13 (1)). However, even asthe Constitution has granted to theOmbudsman the power to investigate otherpublic officials and employees, such power isnot absolute and exclusive. Congress has thepower to further define the powers of theOmbudsman and, impliedly, to authorize otheroffices to conduct such investigation over theirrespective officials and personnel. TheConstitution has vested in Congress alone thepower to grant to any office concurrent

jurisdiction with the Ombudsman to conductpreliminary investigation of cases of graft andcorruption.

Same; Same; Same; Same; Without any law



authorizing him, the President cannot legallycreate a committee to extend his investigatoryreach across the boundaries of the executivedepartment to “public officers and employees,their co-principals, accomplices andaccessories from the private sector, if any,during the previous administration”without setting apart those who are still in the

executive department from those who are not—only the Ombudsman has the investigatory jurisdiction over them under Article XI, Section13.—Although pursuant to his power of controlthe President may supplant and directlyexercise the investigatory functions of departments and agencies within theexecutive department, his power of controlunder the Constitution and the AdministrativeCode is confined only to the executivedepartment. Without any law authorizing him,the President cannot legally create acommittee to extend his investigatory reach

across the boundaries of the executivedepartment to “public officers and employees,their co-principals, accomplices andaccessories from the private sector, if any,during the previous administration” withoutsetting apart those who are still in theexecutive department from those who are not.Only the Ombudsman has the investigatory

jurisdiction over them under Article XI, Section13. There is no law granting to the Presidentthe authority to create a committee withconcurrent investigatory jurisdiction of thisnature.

Same; Same; Same; It is patent from theprovisions of Executive Order (E.O.) No. 1 itself that quasi-judicial powers are indeed vested inthe Truth Commission, particularly in Section2, paragraphs (b) and (g).—Despiterespondents’ denial that the Truth Commissionis infused with quasi-judicial powers, it ispatent from the provisions of E.O. No. 1 itself that such powers are indeed vested in the

Truth Commission, particularly in Section 2,paragraphs (b) and (g): “b) Collect, receive,review, and evaluate evidence related to orregarding the cases of large scale corruptionwhich it has chosen to investigate, … x x x g)

Turn over from time to time, for expeditiousprosecution, to the appropriate prosecutorialauthorities, by means of a special or interimreport and recommendation, all evidence oncorruption of public officers and employeesand their private sector co-principals,accomplices or accessories, if any, when in thecourse of its investigation the Commissionfinds that there is reasonable ground tobelieve they are liable for graft and corruption

under pertinent applicable laws; x x x.

Same; Same; Same; Words and Phrases; Thepowers to “evaluate evidence” and “findreasonable ground to believe that someone isliable for graft and corruption” are not merelyfact-finding or investigatory—these are quasi-

judicial in nature.—The powers to “evaluate

evidence” and “find reasonable ground tobelieve that someone is liable for graft andcorruption” are not merely fact-finding orinvestigatory. These are quasi-judicial in naturebecause they actually go into the weighing of evidence, drawing up of legal conclusions fromthem as basis for their official action and theexercise of discretion of a judicial or quasi-

judicial nature.93

Same; Same; Same; The power to establish if there is reasonable ground to believe thatcertain persons are liable for graft and

corruption under pertinent applicable laws isquasi-judicial in nature because it is akin to thediscretion exercised by a prosecutor in thedetermination of probable cause during apreliminary investigation.—The power toestablish if there is reasonable ground tobelieve that certain persons are liable for graftand corruption under pertinent applicable lawsis quasi-judicial in nature because it is akin tothe discretion exercised by a prosecutor in thedetermination of probable cause during apreliminary investigation. It involves a judicial(or quasi-judicial) appraisal of the facts for thepurpose of determining if a violation has infact been committed.

Same; Same; Same; As a mere creation of theexecutive and without a law granting it thepower to investigate person and agenciesoutside the executive department, the TruthCommission can only perform administrativefunctions, not quasi-judicial functions.—As amere creation of the executive and without alaw granting it the power to investigate personand agencies outside the executivedepartment, the Truth Commission can onlyperform administrative functions, not quasi-

judicial functions. “Administrative agencies arenot considered courts; they are neither part of the judicial system nor are they deemed

judicial tribunals.”

Carpio, J., Dissenting Opinion:

Presidency; Faithful Execution Clause; Toexecute faithfully the law, the President mustfirst know the facts that justify or require theexecution of the law, and to know the facts,



the President may have to conduct fact-findinginvestigations.—Executive power is vestedexclusively in the President. Neither the

Judiciary nor the Legislature can execute thelaw. As the Executive, the President ismandated not only to execute the law, but alsoto execute faithfully the law. To executefaithfully the law, the President must first know

the facts that justify or require the execution of the law. To know the facts, the President mayhave to conduct fact-finding investigations.Otherwise, without knowing the facts, thePresident may be blindly or negligently, andnot faithfully and intelligently, executing thelaw. Due to time and physical constraints, thePresident cannot obviously conduct by himself the fact-finding investigations. The Presidentwill have to delegate the fact-finding functionto one or more subordinates. Thus, thePresident may appoint a single fact-findinginvestigator, or a collegial body or

committee.94

Same; Same; The power to find facts, or toconduct fact-finding investigations, isnecessary and proper, and thus inherent in thePresident’s power to execute faithfully the law.—The power to find facts, or to conduct fact-finding investigations, is necessary and proper,and thus inherent in the President’s power toexecute faithfully the law. Indeed, the power tofind facts is inherent not only in Executivepower, but also in Legislative as well as Judicialpower. The Legislature cannot sensibly enact alaw without knowing the factual milieu uponwhich the law is to operate. Likewise, thecourts cannot render justice without knowingthe facts of the case if the issue is not purelylegal.

Same; Same; Philippine Truth Commission; ThePresident can create the Truth Commission asa public office in his Office pursuant to hispower to reorganize the Office of the PresidentProper.—The creation of a public office must bedistinguished from the creation of an ad hocfact-finding public body. The power to create apublic office is undeniably a legislative power.

There are two ways by which a public office iscreated: (1) by law, or (2) by delegation of law,as found in the President’s authority toreorganize his Office. The President as theExecutive does not inherently possess thepower to reorganize the Executive branch.However, the Legislature has delegated to thePresident the power to create public officeswithin the Office of the President Proper, asprovided in Section 31(1), Chapter 10, Title III,Book III of EO 292. Thus, the President can

create the Truth Commission as a public officein his Office pursuant to his power toreorganize the Office of the President Proper.In such a case, the President is exercising hisdelegated power to create a public officewithin the Office of the President Proper. Thereis no dispute that the President possesses thisdelegated power.

Same; Same; Same; In the alternative, thePresident can also create the TruthCommission as an ad hoc body to conduct afact-finding investigation pursuant to thePresident’s inherent power to find facts asbasis to execute faithfully the law.—In thealternative, the President can also create the

Truth Commission as an ad hoc body toconduct a fact-finding investigation pursuantto the President’s inherent power to find factsas basis to execute faithfully the law. Thecreation of such ad hoc fact-finding body is

indisputably necessary and proper for thePresident to execute faithfully the law. In sucha case, members of the Truth Commission maybe appointed as Special Assistants or Advisersof the President, and then assigned to conducta fact-finding investigation. The President canappoint as many Special Assistants or Advisersas he may need. There is no public officecreated and members of the Truth Commissionare incumbents already holding public office ingovernment. These incumbents are given anassignment by the President to be members of the Truth Commission. Thus, the TruthCommission is merely an ad hoc bodyassigned to conduct a fact-findinginvestigation.

Same; Same; Same; The creation of ad hocinvestigating bodies, as well as theappointment of ad hoc investigators, does notresult in the creation of a public office.—Thecreation of such ad hoc investigating bodies,as well as the appointment of ad hocinvestigators, does not result in the creation of a public office. In creating ad hoc investigatorybodies or appointing ad hoc investigators,executive and judicial officials do not createpublic offices but merely exercise a powerinherent in their primary constitutional orstatutory functions, which may be to executethe law, to exercise disciplinary authority, orboth. These fact-finding bodies andinvestigators are not permanent bodies orfunctionaries, unlike public offices or theiroccupants. There is no separate compensation,other than per diems or allowances, for thosedesignated as members of ad hocinvestigating bodies or as ad hoc investigators.



Same; Same; Same; Power of Control; Thepower of control does not involve the power tocreate a public office, neither does thePresident’s power to find facts or his broaderpower to execute the laws give the Presidentthe power to create a public office.—ThePresident’s power to create ad hoc fact-finding

bodies does not emanate from the President’spower of control over the Executive branch. The President’s power of control is the powerto reverse, revise or modify the decisions of subordinate executive officials, or substitutehis own decision for that of his subordinate, oreven make the decision himself withoutwaiting for the action of his subordinate. Thispower of control does not involve the power tocreate a public office. Neither does thePresident’s power to find facts or his broaderpower to execute the laws give the Presidentthe power to create a public office. The

President can exercise the power to find factsor to execute the laws without creating apublic office.

Same; Philippine Truth Commission; Words andPhrases; There is no language in ExecutiveOrder (E.O.) No. 1 granting the TruthCommission quasi-judicial power, whetherexpressly or impliedly, because the TruthCommission is not, and was never intended tobe, a quasi-judicial body; Quasi-judicial poweris the power of an administrative body toadjudicate the rights and obligations of partiesunder its jurisdiction in a manner that is finaland binding, unless there is a proper appeal.—

There is no language in EO 1 granting the Truth Commission quasi-judicial power,whether expressly or impliedly, because the

Truth Commission is not, and was neverintended to be, a quasi-judicial body. Thepower of the President to create offices withinthe Office of the President Proper is a power tocreate only executive or administrative offices,not quasi-judicial offices or bodies. Undeniably,a quasi-judicial office or body can only becreated by the Legislature. The TruthCommission, as created under EO 1, is not aquasi-judicial body and is not vested with anyquasi-judicial power or function. The exerciseof quasi-judicial functions involves thedetermination, with respect to the matter incontroversy, of what the law is, what the legalrights and obligations of the contendingparties are, and based thereon and the factsobtaining, the adjudication of the respectiverights and obligations of the parties. Thetribunal, board or officer exercising quasi-

judicial functions must be clothed with the

power to pass judgment on the controversy. Inshort, quasi-judicial power is the power of anadministrative body to adjudicate the rightsand obligations of parties under its jurisdictionin a manner that is final and binding, unlessthere is a proper appeal.

Same; Same; Same; That Executive Order

(E.O.) No. 1 declares that the TruthCommission “will act as an independentcollegial body” cannot invalidate EO 1—thisprovision merely means that the President willnot dictate on the members of the TruthCommission on what their findings andrecommendations should be.—That EO 1declares that the Truth Commission “will act asan independent collegial body” cannotinvalidate EO 1. This provision merely meansthat the President will not dictate on themembers of the Truth Commission on whattheir findings and recommendations should be.

The Truth Commission is free to come out withits own findings and recommendations, freefrom any interference or pressure from thePresident. Of course, as EO 1 expresslyprovides, the President, Congress and theOmbudsman are not bound by such findingsand recommendations.

Same; Same; Three Types of Fact-FindingInvestigations in the Executive Department.—

There are three types of fact-findinginvestigations in the Executive branch. First,there is the purely fact-finding investigationthe purpose of which is to establish the factsas basis for future executive action, excludingthe determination of administrative culpabilityor the determination of probable cause.Second, there is the administrativeinvestigation to determine administrativeculpabilities of public officials and employees.

Third, there is the preliminary investigationwhose sole purpose is to determine probablecause as to the existence and perpetrator of acrime. These three types of fact-findinginvestigations are separate and distinctinvestigations.

Same; Same; Ombudsman; Purely fact-findinginvestigations to improve administrativeprocedures and efficiency, to instituteadministrative measures to prevent corruption,to provide the President with policy options, torecommend to Congress remedial legislation,and even to determine whether there is basisto file a formal administrative charge against agovernment official or employee, do not fallunder the “primary jurisdiction” of theOmbudsman.—The Ombudsman has “primary



jurisdiction over cases cognizable by theSandiganbayan.” The cases cognizable by theSandiganbayan are criminal cases as well asquasi-criminal cases like the forfeiture of unexplained wealth. “[I]n the exercise of thisprimary jurisdiction” over cases cognizable bythe Sandiganbayan, the Ombudsman “maytake over x x x the investigation of such

cases” from any investigatory agency of theGovernment. The cases covered by the“primary jurisdiction” of the Ombudsman arecriminal or quasi-criminal cases but notadministrative cases. Administrative cases,such as administrative disciplinary cases, arenot cognizable by the Sandiganbayan. Withmore reason, purely fact-finding investigationsconducted by the Executive branch are notcognizable by the Sandiganbayan. Purely fact-finding investigations to improveadministrative procedures and efficiency, toinstitute administrative measures to prevent

corruption, to provide the President with policyoptions, to recommend to Congress remediallegislation, and even to determine whetherthere is basis to file a formal administrativecharge against a government official oremployee, do not fall under the “primary

jurisdiction” of the Ombudsman. These fact-finding investigations do not involve criminalor quasi-criminal cases cognizable by theSandiganbayan.

Same; Same; Same; If the Ombudsman hasthe exclusive power to conduct fact-findinginvestigations, then even the Judiciary and theLegislature cannot perform their fundamentalfunctions without the action or approval of theOmbudsman.—If the Ombudsman has theexclusive power to conduct fact-findinginvestigations, then even the Judiciary and theLegislature cannot perform their fundamentalfunctions without the action or approval of theOmbudsman. While the Constitution grants theOffice of the Ombudsman the power to“[i]nvestigate on its own x x x any act oromission of any public official, employee,office or agency,” such power is not exclusive.

To hold that such investigatory power isexclusive to the Ombudsman is to make theExecutive, Legislative and Judiciary whollydependent on the Ombudsman for theperformance of their Executive, Legislative and

Judicial functions.

Same; Same; The Truth Commission, a bodyauthorized to take testimony, can administeroaths and issue subpoena and subpoenaduces tecum pursuant to Section 37, Chapter9, Book I of Executive Order (E.O.) No. 292.—

Section 2(e) of EO 1 confers on the TruthCommission the power to “[i]nvite or subpoenawitnesses and take their testimonies and forthat purpose, administer oaths or affirmationas the case may be.” Thus, the TruthCommission, a body authorized to taketestimony, can administer oaths and issuesubpoena and subpoena duces tecum

pursuant to Section 37, Chapter 9, Book I of EO292. In fact, this power to administer oathsand to issue subpoena and subpoena ducestecum is a power of every administrative fact-finding investigative body created in theExecutive, Legislative or Judicial branch.Section 37, Chapter 9, Book I of EO 292 grantssuch power to every fact-finding body socreated.

Same; Same; Contempt Power; There is noprovision in Executive Order (E.O.) No. 1 thatgives the Truth Commission the power to cite

persons for contempt; To require everyadministrative fact-finding body to havecoercive or contempt powers is to invalidate alladministrative fact-finding bodies created bythe Executive, Legislative and Judicialbranches of government.—There is noprovision in EO 1 that gives the TruthCommission the power to cite persons forcontempt. As explained by Solicitor General

Jose Anselmo I. Cadiz, if the person whorefuses to obey the subpoena, take oath orgive testimony is a public officer, he can becharged with “defiance of a lawful order,”which should mean insubordination if hissuperior had ordered him to obey thesubpoena of the Truth Commission. If theperson is not a public officer or employee, hecan only be dealt with in accordance with law,which should mean that the Truth Commissioncould file a petition with the proper court tocite such private person in contempt pursuantto Sections 1 and 9 of Rule 21 of the Rules of Court. However, the mere fact that the TruthCommission, by itself, has no coercive powerto compel any one, whether a governmentemployee or a private individual, to testifybefore the Commission does not invalidate thecreation by the President, or by the Judiciary orLegislature, of a purely administrative fact-finding investigative body. There are witnesseswho may voluntarily testify, and bring relevantdocuments, before such fact-finding body. Thefact-finding body may even rely only on officialrecords of the government. To require everyadministrative fact-finding body to havecoercive or contempt powers is to invalidate alladministrative fact-finding bodies created bythe Executive, Legislative and Judicial



branches of government.

Same; Same; Words and Phrases; There ismuch ado about the words “Truth Commission”as the name of the fact-finding body createdunder Executive Order (E.O.) No. 1—there is nolaw or rule prescribing how a fact-finding bodyshould be named.—There is much ado about

the words “Truth Commission” as the name of the fact-finding body created under EO 1. There is no law or rule prescribing how a fact-finding body should be named. In fact, there isno law or rule prescribing how permanentgovernment commissions, offices, or entitiesshould be named. There is also no law or ruleprohibiting the use of the words “TruthCommission” as the name of a fact-findingbody. Most fact-finding bodies are named,either officially or unofficially, after thechairperson of such body, which by itself, willnot give any clue as to the nature, powers or

functions of the body. Thus, the name FelicianoCommission or Melo Commission, by itself,does not indicate what the commission is allabout. Naming the present fact-finding body asthe “Truth Commission” is more descriptivethan naming it the Davide Commission afterthe name of its chairperson.

Same; Same; Equal Protection Clause; Toprioritize based on reasonable and evencompelling grounds is not to discriminate, butto act sensibly and responsibly.—These are notonly reasonable but also compelling groundsfor the Truth Commission to prioritize theinvestigation of the Arroyo administration. Toprioritize based on reasonable and evencompelling grounds is not to discriminate, butto act sensibly and responsibly. In any event,there is no violation of the equal protectionclause just because the authorities focus theirinvestigation or prosecution on one particularalleged law-breaker, for surely a personaccused of robbery cannot raise as a defensethat other robbers like him all over the countryare not being prosecuted. By the very natureof an investigation or prosecution, there mustbe a focus on particular act or acts of a personor a group of persons.

Same; Same; Same; To require that “earlierpast administrations” must also be included inthe investigation of the Truth Commission, withthe Truth Commission expressly empowered“to investigate all past administrations,”before there can be a valid investigation of theArroyo administration under the equalprotection clause, is to prevent absolutely theinvestigation of the Arroyo administration

under any circumstance.—The majority opiniongoes on to suggest that EO 1 could beamended “to include the earlier pastadministrations” to allow it “to pass the test of reasonableness and not be an affront to theConstitution.” The majority opinion’s reasoningis specious, illogical, impractical, impossible tocomply, and contrary to the Constitution and

well-settled jurisprudence. To require that“earlier past administrations” must also beincluded in the investigation of the TruthCommission, with the Truth Commissionexpressly empowered “to investigate all pastadministrations,” before there can be a validinvestigation of the Arroyo administrationunder the equal protection clause, is toprevent absolutely the investigation of theArroyo administration under anycircumstance.100

Same; Same; Same; Classifying the “earlier

past administrations” in the last 111 years as just one class is not germane to the purpose of investigating possible acts of graft andcorruption.—The “earlier past administrations”prior to the Arroyo administration cover thePresidencies of Emilio Aguinaldo, ManuelQuezon, Jose Laurel, Sergio Osmeña, ManuelRoxas, Elpidio Quirino, Ramon Magsaysay,Carlos Garcia, Diosdado Macapagal, FerdinandMarcos, Corazon Aquino, Fidel Ramos, and

Joseph Estrada, a period spanning 102 years ormore than a century. All these administrations,plus the 9-year Arroyo administration, alreadyconstitute the universe of all pastadministrations, covering a total period of 111years. All these “earlier past administrations”cannot constitute just one class of administrations because if they were toconstitute just one class, then there would beno other class of administrations. It is likesaying that since all citizens are humanbeings, then all citizens belong to just oneclass and you cannot classify them asdisabled, impoverished, marginalized,illiterate, peasants, farmers, minors, adults orseniors. Classifying the “earlier pastadministrations” in the last 111 years as justone class is not germane to the purpose of investigating possible acts of graft andcorruption. There are prescriptive periods toprosecute crimes. There are administrationsthat have already been investigated by theirsuccessor administrations. There are alsoadministrations that have been subjected toseveral Congressional investigations foralleged large-scale anomalies. There are pastPresidents, and the officials in theiradministrations, who are all dead. There are



past Presidents who are dead but some of theofficials in their administrations are still alive.

Thus, all the “earlier past administrations”cannot be classified as just one single class—“a class of past administrations”—becausethey are not all similarly situated.

Same; Same; Same; To insist that “earlier past

administrations” must also be investigated bythe Truth Commission, together with theArroyo administration, is utterly bereft of anyreasonable basis other than to preventabsolutely the investigation of the Arroyoadministration.—A fact-finding investigation of “earlier past administrations,” spanning 111years punctuated by two world wars, a war forindependence, and several rebellions—wouldobviously be an impossible task to undertakefor an ad hoc body like the Truth Commission.

To insist that “earlier past administrations”must also be investigated by the Truth

Commission, together with the Arroyoadministration, is utterly bereft of anyreasonable basis other than to preventabsolutely the investigation of the Arroyoadministration. No nation on this planet haseven attempted to assign to one ad-hoc fact-finding body the investigation of all its seniorpublic officials in the past 100 years.101

Same; Same; Same; Separation of Powers; If courts cannot exercise the Executive’s “specialprovince” to decide whether or not to indict,which is the equivalent of determination of probable cause, with greater reason courtscannot exercise the Executive’s “specialprovince” to decide what or what not toinvestigate for administrative fact-findingpurposes.—In the present case, no one hasbeen charged before the prosecutor or thecourts. What petitioners want this Court to dois invalidate a mere administrative fact-findinginvestigation by the Executive branch, aninvestigative phase prior to preliminaryinvestigation. Clearly, if courts cannot exercisethe Executive’s “special province” to decidewhether or not to indict, which is theequivalent of determination of probable cause,with greater reason courts cannot exercise theExecutive’s “special province” to decide whator what not to investigate for administrativefact-finding purposes. For this Court toexercise this “special province” of thePresident is to encroach on the exclusivedomain of the Executive to execute the law inblatant violation of the finely craftedconstitutional separation of power. Anyunwarranted intrusion by this Court into the

exclusive domain of the Executive orLegislative branch disrupts the separation of power among the three co-equal branches andultimately invites re-balancing measures fromthe Executive or Legislative branch.

Same; Same; Same; A claim of selectiveprosecution that violates the equal protection

clause can be raised only by the partyadversely affected by the discriminatory act.—A claim of selective prosecution that violatesthe equal protection clause can be raised onlyby the party adversely affected by thediscriminatory act. In Nunez v. Sandiganbayan,111 SCRA 433 (1982), this Court declared: ‘x xx Those adversely affected may under thecircumstances invoke the equal protectionclause only if they can show that thegovernmental act assailed, far from beinginspired by the attainment of the commonweal was prompted by the spirit of hostility, or

at the very least, discrimination that finds nosupport in reason.’ x x x. (Emphasis supplied)Here, petitioners do not claim to be adverselyaffected by the alleged selective prosecutionunder EO 1. Even in the absence of such aclaim by the proper party, the majority opinionstrikes down EO 1 as discriminatory and thusviolative of the equal protection clause. This isa gratuitous act to those who are not beforethis Court, a discriminatory exception to therule that only those “adversely affected” by analleged selective prosecution can invoke theequal protection clause. Ironically, suchdiscriminatory exception is a violation of theequal protection clause. In short, the ruling of the majority is in itself a violation of the equalprotection clause, the very constitutionalguarantee that it seeks to enforce.102

Same; Same; Same; The majority opinion’srequirement that “earlier past administrations”in the last 111 years should be included in theinvestigation of the Truth Commission tocomply with the equal protection clause is arecipe for all criminals to escape prosecution.—The majority opinion’s requirement that“earlier past administrations” in the last 111years should be included in the investigationof the Truth Commission to comply with theequal protection clause is a recipe for allcriminals to escape prosecution. Thisrequirement is like saying that before a personcan be charged with estafa, the prosecutionmust also charge all persons who in the pastmay have committed estafa in the country.Since it is impossible for the prosecution tocharge all those who in the past may havecommitted estafa in the country, then it



becomes impossible to prosecute anyone forestafa.

Same; Same; Same; A fact-findinginvestigation in the Executive or Judicialbranch, even if limited to specific governmentofficials—whether incumbent, resigned orretired—does not violate the equal protection

clause.—A fact-finding investigation in theExecutive or Judicial branch, even if limited tospecific government officials — whetherincumbent, resigned or retired — does notviolate the equal protection clause. If ananomaly is reported in a governmenttransaction and a fact-finding investigation isconducted, the investigation by necessity mustfocus on the public officials involved in thetransaction. It is ridiculous for anyone to askthis Court to stop the investigation of suchpublic officials on the ground that past publicofficials of the same rank, who may have been

involved in similar anomalous transactions inthe past, are not being investigated by thesame fact-finding body. To uphold such alaughable claim is to grant immunity to allcriminals, throwing out of the window theconstitutional principle that “[p]ublic office is apublic trust” and that “[p]ublic officials andemployees must at all times be accountable tothe people.”

Same; Same; Same; Accountability of PublicOfficers; The majority opinion completelyignores the constitutional principle that publicoffice is a public trust and that public officialsare at all times accountable to the people.—

The majority opinion’s requirements that EO 1should also include “earlier pastadministrations,” with the Truth Commissionempowered “to investigate all pastadministrations,” to comply with the equalprotection clause, is a requirement that is notonly illogical and impossible to comply, it alsoallows the impunity to commit graft andcorruption and other crimes under our penallaws. The majority opinion completely ignoresthe constitutional principle that public office isa public trust and that public officials are at alltimes accountable to the people.103

Same; Same; Separation of Powers; The Court,in striking down Executive Order (E.O.) No. 1creating the Truth Commission, overrules themanifest will of the Filipino people to start thedifficult task of putting an end to graft andcorruption in government, denies the Presidenthis basic constitutional power to determine thefacts in his faithful execution of the law, andsuppresses whatever truth may come out in

the purely fact-finding investigation of the Truth Commission.—Neither the Constitutionnor any existing law prevents the incumbentPresident from redeeming his campaign pledgeto the Filipino people. In fact, the incumbentPresident’s campaign pledge is merely areiteration of the basic State policy, enshrinedin Section 27, Article II of the Constitution,

that: Section 27. The State shall maintainhonesty and integrity in the public service andtake positive and effective measures againstgraft and corruption. (Emphasis supplied) Theincumbent President’s campaign pledge alsoreiterates the constitutional principle that“[p]ublic office is a public trust” and that“[p]ublic officers and employees must at alltimes be accountable to the people.” ThisCourt, in striking down EO 1 creating the TruthCommission, overrules the manifest will of theFilipino people to start the difficult task of putting an end to graft and corruption in

government, denies the President his basicconstitutional power to determine the facts inhis faithful execution of the law, andsuppresses whatever truth may come out inthe purely fact-finding investigation of the

Truth Commission. This Court, in invoking theequal protection clause to strike down a purelyfact-finding investigation, grants immunity tothose who violate anti-corruption laws andother penal laws, renders meaningless theconstitutional principle that public office is apublic trust, and makes public officialsunaccountable to the people at any time.

Carpio-Morales, J., Dissenting Opinion:

Judicial Review; Locus Standi; Equal ProtectionClause; Petitioners with legal standing aslegislators cannot properly assert the equalprotection claim of the previous administration—the peculiarity of the locus standi of legislators necessarily confines theadjudication of their petition only on mattersthat tend to impair the exercise of their officialfunctions.—Petitioners in G.R. No. 193036, withlegal standing as legislators, cannot properlyassert the equal protection claim of theprevious administration. While legislators havelocus standi in certain cases, their legalstanding as such is recognized only insofar asthe assailed issuance affects their functions aslegislators. In the absence of a claim that theissuance in question violated the rights of petitioner-legislators or impermissibly intrudedinto the domain of the Legislature, they haveno legal standing to institute the presentaction



in their capacity as members of Congress. Nodoubt, legislators are allowed to sue toquestion the validity of any official action upona claim of usurpation of legislative power. Thatis why, not every time that a Senator or aRepresentative invokes the power of judicialreview, the Court automatically clothes them

with locus standi. The Court examines first, asthe ponencia did, if the petitioner raises anissue pertaining to an injury to Congress as aninstitution or a derivative injury to membersthereof, before proceeding to resolve thatparticular issue. The peculiarity of the locusstandi of legislators necessarily confines theadjudication of their petition only on mattersthat tend to impair the exercise of their officialfunctions.

Same; Same; Same; Breach of the equalprotection clause, as presently raised by

petitioner-legislators on behalf of the ExecutiveDepartment of the immediate pastadministration, has nothing to do with theimpairment of the powers of Congress.—Breach of the equal protection clause, aspresently raised by petitioner-legislators onbehalf of the Executive Department of theimmediate past administration, has nothing todo with the impairment of the powers of Congress. Thus, with respect to the issue inPimentel, Jr. v. Exec. Secretary Ermita, 469SCRA 1 (2005), that did not involve anyimpairment of the prerogatives of Congress,some Senators who merely invoked theirstatus as legislators were not grantedstanding. Moreover, petitioner-legislatorscannot take the cudgels for the previousadministration/s, unless they admit that theyare maintaining a confidential relation withit/them or acting as advocates of the rights of a non-party who seeks access to their marketor function.

Equal Protection Clause; Philippine TruthCommission; There is nothing arbitrary orunreasonable in the Truth Commission’sdefined scope of investigation.—The ponenciaholds that the previous administration hasbeen denied equal protection of the laws. To it,“[t]o restrict the scope of the commission’sinvestigation to said particular administrationconstitutes arbitrariness which the equalprotection clause cannot sanction.” I findnothing arbitrary or unreasonable in the TruthCommission’s defined scope of investigation.In issues involving the equal protection clause,the test developed by jurisprudence is that of reasonableness, which has four requisites: (1)

The classification rests on substantialdistinctions; (2) It is germane to the purposesof the law; (3) It is not limited to existingconditions only; and (4) It applies equally to allmembers of the same class.

Same; Same; Presidency; Separation of Powers; The Court could not, in any way,

determine or dictate what information thePresident would be needing in fulfilling theduty to ensure the faithful execution of laws onpublic

accountability.—This Court could not, in anyway, determine or dictate what informationthe President would be needing in fulfilling theduty to ensure the faithful execution of laws onpublic accountability. This sweeping directiveof the ponencia to include all pastadministrations in the probe tramples upon theprerogative of a co-equal branch of

government. The group or class, from which toelicit the needed information, rests onsubstantial distinction that sets the classapart.

Same; Same; Same; The exclusion of otherpast administrations from the scope of investigation by the Truth Commission is

justified by the substantial distinction thatcomplete and definitive reports covering theirrespective periods have already beenrendered.—The Executive Department’sdetermination of the futility or redundancy of investigating other administrations should beaccorded respect. Respondents havingmanifested that pertinent and credible dataare already in their hands or in the archives,petitioners’ idea of an all-encompassing denovo inquiry becomes tenuous as it goesbeyond what the Executive Department needs.

The exclusion of other past administrationsfrom the scope of investigation by the TruthCommission is justified by the substantialdistinction that complete and definitive reportscovering their respective periods have alreadybeen rendered. The same is not true with theimmediate past administration. There is thusno undue favor or unwarranted partiality. Toinclude everybody all over again is to insist ona useless act.

Philippine Truth Commission; The purpose of Executive Order (E.O.) No. 1 is to produce areport which, insofar as the Truth Commissionis concerned, is the end in itself—the purposeof the report is another matter which is alreadyoutside the control of E.O. No. 1.—The purposeof E.O. No. 1 is to produce a report which,



insofar as the Truth Commission is concerned,is the end in itself. The purpose of the report isanother matter which is already outside thecontrol of E.O. No. 1. Once the reportcontaining the needed information iscompleted, the Truth Commission is dissolvedfunctus officio. At that point, the endeavor of data-gathering is accomplished, and E.O No. 1

has served its purpose. It cannot be said,however, that it already eradicated graft andcorruption. The report would still be passedupon by government agencies. Insofar as theExecutive Department is concerned, the reportassimilates into a broader database thatadvises and guides the President in lawenforcement. To state that the purpose of E.O.No. 1 is to stamp out acts of graft andcorruption leads to the fallacious and artificialconclusion that respondents are stamping outcorrupt acts of the previous administrationonly, as if E.O. No. 1 represents the entire anti-

corruption efforts of the ExecutiveDepartment.106

Same; Equal Protection Clause; Laws that arelimited in duration (e.g., generalappropriations act) do not circumvent theguarantee of equal protection by notembracing all that may, in the years to come,be in similar conditions even beyond theeffectivity of the law.—The Truth Commission isan ad hoc body formed under the Office of thePresident. The nature of an ad hoc body is thatit is limited in scope. Ad hoc means for theparticular end or case at hand withoutconsideration of wider application. An ad hocbody is inherently temporary. E.O. No. 1provides that the Truth Commission “shallaccomplish its mission on or before December31, 2012.” That the classification should not belimited to existing conditions only, as appliedin the present case, does not mean theinclusion of future administrations. Laws thatare limited in duration (e.g., generalappropriations act) do not circumvent theguarantee of equal protection by notembracing all that may, in the years to come,be in similar conditions even beyond theeffectivity of the law. The requirement not tolimit the classification to existing conditionsgoes into the operational details of the law.

The law cannot, in fine print, enumerate extantitems that exclusively compose theclassification, thereby excluding soon-to-existones that may also fall under the classification.

Nachura, J., Concurring and DissentingOpinion:

Philippine Truth Commission; Public Office;Given the powers conferred upon it, as spelledout in Executive Order (E.O.) No. 1, there canbe no doubt that the Truth Commission is apublic office, and the Chairman and theCommissioners appointed thereto, publicofficers.—A public office is defined as the right,authority, or duty, created and conferred by

law, by which for a given period, either fixedby law or enduring at the pleasure of thecreating power, an individual is invested withsome sovereign power of government to beexercised by him for the benefit of the public.Public offices are created either by theConstitution, by valid statutory enactments, orby authority of law. A person who holds apublic office is a public officer. Given thepowers conferred upon it, as spelled out in E.O.No. 1, there can be no doubt that the TruthCommission is a public office, and theChairman and the Commissioners appointed

thereto, public officers.

Presidency; Power of Control; Take CareClause; The President’s power of control isderived directly from the Constitution and notfrom any implementing legislation, while, onthe other hand, the power to take care that thelaws be faithfully executed makes thePresident a dominant figure in theadministration of the government.—Relevantto this disquisition are two specific powers thatflow from this “plenitude of authority.” Bothare found in Section 17, Article VII of theConstitution. They are commonly referred to asthe power of control and the take care clause.Section 17 is a self-executing provision. ThePresident’s power of control is derived directlyfrom the Constitution and not from anyimplementing legislation. On the other hand,the power to take care that the laws befaithfully executed makes the President adominant figure in the administration of thegovernment. The law he is supposed toenforce includes the Constitution itself,statutes, judicial decisions, administrativerules and regulations and municipalordinances, as well as the treaties entered intoby our government. At almost every cusp of executive power is the President’s power of control and his constitutional obligation toensure the faithful execution of the laws.

Same; Same; Same; It is abundantly clear thatthe overarching framework in the President’spower of control enables him to assumedirectly the powers of any executivedepartment, bureau or office—whateverpowers conferred by law upon subordinate



officials within his control are powers alsovested in the President of the Philippines;When the power of control is juxtaposed withthe constitutional duty to ensure that laws befaithfully executed, it is obvious that, for theeffective exercise of the take care clause, itmay become necessary for the President tocreate an office, agency or commission, and

charge it with the authority and the power thathe has chosen to assume for himself.—Fromthese cited decisions, it is abundantly clearthat the overarching framework in thePresident’s power of control enables him toassume directly the powers of any executivedepartment, bureau or office. Otherwisestated, whatever powers conferred by lawupon subordinate officials within his controlare powers also vested in the President of thePhilippines. In contemplation of law, he maydirectly exercise the powers of the Secretary of Foreign Affairs, the Secretary of National

Defense, the Commissioner of Customs, or of any subordinate official in the executivedepartment. Thus, he could, for example, takeupon himself the investigatory functions of theDepartment of Justice, and personally conductan investigation. If he decides to do so, hewould be at liberty to delegate a portion of thisinvestigatory function to a public officer, or apanel of public officers, within his Office andunder his control. There is no principle of lawthat proscribes his doing so. In this context,the President may, therefore, create an agencywithin his Office to exercise the functions, orpart of the functions, that he has assumed forhimself. Even the ponencia admits that thiscan be done. When this power of control is

juxtaposed with the constitutional duty toensure that laws be faithfully executed, it isobvious that, for the effective exercise of thetake care clause, it may become necessary forthe President to create an office, agency orcommission, and charge it with the authorityand the power that he has chosen to assumefor himself. It will not simply be an exercise of the power of

Biraogo vs. Philippine Truth Commission of 2010control, but also a measure intended to ensurethat laws are faithfully executed.

Same; Philippine Truth Commission; That the Truth Commission is a derivative of thereorganization of the Office of the Presidentshould brook no dissent.—That the TruthCommission is a derivative of thereorganization of the Office of the Presidentshould brook no dissent. The President is not

precluded from transferring and re-aligning thefact-finding functions of the differentDepartments regarding certain and specificissues, because ultimately, the President’sauthority to reorganize is derived from thepower-and-duty nexus fleshed out in the twopowers granted to him in Section 17, Article VIIof the Constitution.

Same; Judicial Review; Separation of Powers;Even with the Court’s expanded power of

judicial review, we still cannot refashion, anddictate on, the policy determination made bythe President concerning what function, of whichever Department, regarding specificissues, he may choose to directly assume andtake cognizance of.—I earnestly believe that,even with this Court’s expanded power of

judicial review, we still cannot refashion, anddictate on, the policy determination made bythe President concerning what function, of

whichever Department, regarding specificissues, he may choose to directly assume andtake cognizance of. To do so would exceed theboundaries of judicial authority and encroachon an executive prerogative. It would violatethe principle of separation of powers, theconstitutional guarantee that no branch of government should arrogate unto itself thosefunctions and powers vested by theConstitution in the other branches.

Same; Same; The Truth Commission is a publicoffice validly created by the President of thePhilippines under authority of law, as anadjunct of the Office of the President—to whichthe President has validly delegated the fact-finding and investigatory powers [of theDepartment of Justice] which he had chosen topersonally assume.—In fine, it is mysubmission that the Truth Commission is apublic office validly created by the President of the Philippines under authority of law, as anadjunct of the Office of the President — towhich the President has validly delegated thefact-finding and investigatory powers [of theDepartment of Justice] which he had chosen topersonally assume. Further, it is the product of the President’s exercise of the power toreorganize the Office of the President grantedunder the Administrative Code.

Same; Same; Words and Phrases; The word“independent,” as used in Executive Order(E.O.) No. 1, cannot be understood to meantotal separateness

or full autonomy from the Office of thePresident—it should be interpreted as an



expression of the intent of the President: thatthe Truth Commission shall be accorded thefullest measure of freedom and objectivity inthe pursuit of its mandate, unbound anduninhibited in the performance of its duties byinterference or undue pressure coming fromthe President.—This conclusion inevitablybrings to the threshold of our discussion the

matter of the “independence” of the TruthCommission, subject of an amusing exchangewe had with the Solicitor General during theoral argument, and to which the erudite JusticeArturo D. Brion devoted several pages in hisSeparate Concurring Opinion. The word“independent,” as used in E.O. No. 1, cannotbe understood to mean total separateness orfull autonomy from the Office of the President.Being a creation of the President of thePhilippines, it cannot be totally dissociatedfrom its creator. By the nature of its creation,the Truth Commission is intimately linked to

the Office of the President, and the ExecutiveOrder, as it were, is the umbilical cord thatbinds the Truth Commission to the Office of thePresident. The word “independent,” used todescribe the Commission, should beinterpreted as an expression of the intent of the President: that the Truth Commission shallbe accorded the fullest measure of freedomand objectivity in the pursuit of its mandate,unbound and uninhibited in the performanceof its duties by interference or undue pressurecoming from the President. Our exchangeduring the oral argument ended on this note:that while the Truth Commission is, technically,subject to the power of control of thePresident, the latter has manifested hisintention, as indicated in the Executive Order,not to exercise the power over the acts of theCommission.

Equal Protection Clause; Standards of Review;Words and Phrases; The “rational basis” test isone of three “levels of scrutiny” analysesdeveloped by courts in reviewing challenges of unconstitutionality against statutes andexecutive action.—The “rational basis” test isone of three “levels of scrutiny” analysesdeveloped by courts in reviewing challenges of unconstitutionality against statutes andexecutive action. Carl Cheng, in hisdissertation, “Important Right and the PrivateAttorney General Doctrine,” enlightens us,thus: “[I]n the area of equal protectionanalysis, the judiciary has developed a ‘levelof scrutiny’ analysis for resolving the tensionsinherent in judicial review. When engaging inthis analysis, a court subjects the legislative orexecutive action to one of three levels of

scrutiny, depending on the class of personsand the rights affected by the action. Thethree levels are rational basis scrutiny,intermediate scrutiny, and strict scrutiny. If aparticular legislative or executive act does notsurvive the appropriate level of scrutiny, theact is held to be unconstitutional. If it doessurvive, it is deemed constitutional.

The three tensions discussed above and, inturn, the three judicial responses to each, runparallel to these three levels of scrutiny. Inresponse to each tension, the court applies aspecific level of scrutiny.”

Same; Same; Laws classify in order to achieveobjectives, but the classification may notperfectly achieve the objective.—Laws classifyin order to achieve objectives, but theclassification may not perfectly achieve theobjective. Thus, in Michael M. v. Supreme

Court of Sonoma County, the U.S. SupremeCourt said that the relevant inquiry is notwhether the statute is drawn as precisely as itmight have been, but whether the line chosen[by the legislature] is within constitutionallimitations. The equal protection clause doesnot require the legislature to enact a statute sobroad that it may well be incapable of enforcement.

Same; Same; Under the rational basis test, thepresence of any plausible legitimate objectivefor the classification, where the classificationserves to accomplish that objective to anydegree, no matter how tiny, would validate theclassification.—In the determination of whether the classification is invidious orarbitrary, its relation to the purpose must beexamined. Under the rational basis test, thepresence of any plausible legitimate objectivefor the classification, where the classificationserves to accomplish that objective to anydegree, no matter how tiny, would validate theclassification. To be invalidated onconstitutional grounds, the test requires thatthe classification must have one of thefollowing traits: (1) it has absolutely noconceivable legitimate purpose; or (2) it is sounconnected to any conceivable objective,that it is absurd, utterly arbitrary, whimsical, oreven perverse.

Same; Same; Pursuing a system of prioritiesdoes not translate to suspect classificationresulting in violation of the equal protectionguarantee.—The initial categorization of theissues and reports which are to be the subjectof the Truth Commission’s investigation is the



President’s call. Pursuing a system of prioritiesdoes not translate to suspect classificationresulting in violation of the equal protectionguarantee. In his assignment of priorities toaddress various government concerns, thePresident, as the Chief Executive, may initiallylimit the focus of his inquiry and investigateissues and reports one at a time. As such,

there is actually no differential treatment thatcan be equated to an invalid classification.

Presidency; Constitutional Law; Peculiar to ournation is a verbose Constitution; Although theSolicitor General may have made certaindeclarations, read as admissions by the otherMembers of this Court, these cannot bind the

Supreme Court in interpreting theconstitutional grant of executive power—thematter is simply a failure of articulation whichcannot be used to diminish the power of the

executive.—Considering all the foregoingdiscussion, I must, regrettably, disagree withthe suggestion. Peculiar to our nation is averbose Constitution. Herein enshrined aremotherhood statements—exhortations forpublic officers to follow. A quick perusal of E.O.No. 1 bears out a similar intonation. Althoughthe Solicitor General may have made certaindeclarations, read as admissions by the otherMembers of this Court, these cannot bind theSupreme Court in interpreting theconstitutional grant of executive power. Thematter is simply a failure of articulation whichcannot be used to diminish the power of theexecutive. On the whole, the erroneousdeclarations of the Solicitor General,preempting and interpreting the President’sexercise of executive power beyond thearticulated purpose of E.O. No. 1, are notequivalent to the wrongful exercise by thePresident of executive power.

Leonardo-De Castro, J., Concurring Opinion:

Philippine Truth Commission; Words andPhrases; Obviously, the title given to theCommission is meant to convey the messagethat it is independent of the Office of thePresident—the creation of the Philippine TruthCommission and its naming as such were doneas a deliberate reference to the tradition of independent truth commissions as they areconceived in international law, albeit adaptedto a particular factual situation in this

jurisdiction.—With due respect, I disagree with Justice Antonio T. Carpio’s opinion that thenaming of the body created by EO No. 1 as the“Philippine Truth Commission” was a mere

attempt to be novel, to depart from the tiredand repetitious scheme of naming acommission after its appointed head/leader orof calling it a “fact-finding” body. Obviously,the title given to the Commission is meant toconvey the message that it is independent of the Office of the President. Those who dissentfrom the majority position gloss over the fact

that EO No. 1 itself expressly states that theCommission’s members shall “act as anindependent collegial body.” During oralarguments, the Solicitor General confirmedthat what EO No. 1 intended is for theCommission to be an independent body overwhich the President has no power of control.

The Solicitor General further claimed that oneof the functions of the Commission is “truth-telling.” Verily, the creation of the Philippine

Truth Commission and its naming as such weredone as a deliberate reference to the traditionof independent truth commissions as they are

conceived in international law, albeit adaptedto a particular factual situation in this jurisdiction.

Same; Separation of Powers; If this Philippine Truth Commission is an office independent of the President and not subject to the latter’scontrol and

supervision, then the creation of theCommission must be done by legislative actionand not by executive order.—If this Philippine

Truth Commission is an office independent of the President and not subject to the latter’scontrol and supervision, then the creation of the Commission must be done by legislativeaction and not by executive order. It isundisputed that under our constitutionalframework only Congress has the power tocreate public offices and grant to them suchfunctions and powers as may be necessary tofulfill their purpose. Even in the internationalsphere, the creation of the more familiar truthcommissions has been done by an act of legislature.

Same; There is nothing in Executive Order(E.O.) No. 1 that indicates that the Commissionis a part of the executive department or of theOffice of the President Proper.—There isnothing in EO No. 1 that indicates that theCommission is a part of the executivedepartment or of the Office of the PresidentProper. Indeed, it is Justice Carpio whosuggests that the President may appoint thecommissioners of the Philippine TruthCommission as presidential special assistantsor advisers in order that the Commission be



subsumed in the Office of the President Properand to clearly place EO No. 1 within the ambitof Section 31. To my mind, the fact that thecommissioners are proposed to be appointedas presidential advisers is an indication thatthe Philippine Truth Commission was initiallyplanned to be independent of the Presidentand the subsequent appointment of the

commissioners as presidential advisers will bemerely curative of the patent defect in thecreation of the Commission by an ExecutiveOrder, as an independent body.

Same; Whether by name or by nature, thePhilippine Truth Commission cannot bedeemed politically “neutral” so as to assure acompletely impartial conduct of its purportedfact-finding mandate.—EO No. 1 itself isreplete with provisions that indicate that theexistence and operations of the Commissionwill be dependent on the Office of the

President. Its budget shall be provided by theOffice of the President and therefore it has nofiscal autonomy. The reports of theCommission shall be published upon thedirective of the President. Further, if we followthe legal premises of our dissenting colleaguesto their logical conclusion, then theCommission as a body created by executiveorder may likewise be abolished (if it is part of the Presidential Special Assistants/AdvisersSystem of the Office of the President Proper) orrestructured by executive order. EO No. 1 maybe amended, modified, and repealed all byexecutive order. More importantly, if theCommission is subject to the power of controlof the President, he may reverse, revise ormodify the actions of the Commission or evensubstitute his own decision for that of theCommission. Whether by name or by nature,the Philippine Truth Commission cannot bedeemed politically “neutral” so as to assure acompletely impartial conduct of

its purported fact-finding mandate. I furtherconcur with Chief Justice Corona that attemptsto “sugar coat” the Philippine TruthCommission’s functions as “harmless” deserveno credence.

Same; Judicial Review; The Court cannot placeits stamp of approval on executive action thatis constitutionally abhorrent even if for alaudable objective, and even if done by aPresident who has the support of popularopinion on his side.—The constitutionalmandate for public accountability and thepresent administration’s noble purpose to curbgraft and corruption simply cannot justify

trivializing individual rights equally protectedunder the Constitution. This Court cannotplace its stamp of approval on executive actionthat is constitutionally abhorrent even if for alaudable objective, and even if done by aPresident who has the support of popularopinion on his side. For the decisions of theCourt to have value as precedent, we cannot

decide cases on the basis of personalities noron something as fickle and fleeting as publicsentiment. It is worth repeating that our dutyas a Court is to uphold the rule of law and notthe rule of men.

Brion, J., Separate Opinion:

Philippine Truth Commission; Words andPhrases; The first problem of the ExecutiveOrder (E.O.) is its use of the title “TruthCommission” and its objective of truth-telling;these assume that what the Truth Commission

speaks of is the “truth” because of its title andof its truth-telling function—anything otherthan what the Commission reports wouldeither be a distortion of the truth, or may evenbe an “untruth.”—The first problem of the EOis its use of the title “Truth Commission” andits objective of truth-telling; these assume thatwhat the Truth Commission speaks of is the“truth” because of its title and of its truth-telling function; thus, anything other than whatthe Commission reports would either be adistortion of the truth, or may even be an“untruth.” This problem surfaced during theoral arguments on queries about the effect of the title “Truth Commission” on the authorityof the duly constituted tribunals that maythereafter rule on the matters that theCommission shall report on. Since theCommission’s report will constitute the “truth,”any subsequent contrary finding by theOmbudsman would necessarily be suspect asan “untruth;” it is up then to the Ombudsmanto convince the public that its findings aretrue.

Same; Ombudsman; Faced with the findings of the Commission, the Ombudsman who entersa contrary ruling effectively carries the burdenof proving that its findings, not those of theCommission, are correct; What the ExecutiveOrder (E.O.) patently expresses as a primaryrole for the Commis-

sion is negated in actual application by thetitle Truth Commission and its truth-tellingfunction.—In other words, faced with thefindings of the Commission, the Ombudsmanwho enters a contrary ruling effectively carries



the burden of proving that its findings, notthose of the Commission, are correct. To saythe least, this resulting reversal of roles islegally strange since the Ombudsman is thebody officially established and designated bythe Constitution to investigate graft and othercrimes committed by public officers, while theCommission is a mere “creation” of the

Executive Order. The Ombudsman, too, bystatutory mandate has primary jurisdictionover the investigation and prosecution of graftand corruption, while the Commission’s role ismerely recommendatory. Thus, what the EOpatently expresses as a primary role for theCommission is negated in actual application bythe title Truth Commission and its truth-tellingfunction. Expressed in terms of the forums theEO spawned, the EO’s principal intent to usethe Truth Commission as a second foruminstrument is unmasked; the first forum—theofficially sanctioned forum for the prosecution

of crimes—becomes merely a convenientcover for the second forum.

Same; Even the Supreme Court will beperceived to have sided with an “untruth”when and if it goes against the Commission’sreport.—The effects of truth-telling could gobeyond those that affect the Ombudsman. If the Ombudsman concurs with the Commissionand brings the recommended graft andcorruption charges before the Sandiganbayan—a constitutionally-established court—thiscourt itself would be subject to the same truth-telling challenge if it decides to acquit theaccused. For that matter, even this Court, willbe perceived to have sided with an “untruth”when and if it goes against the Commission’sreport. Thus, the authority, independence, andeven the integrity of these constitutionalbodies—the Ombudsman, the Sandiganbayan,and the Supreme Court—would have beeneffectively compromised, to the prejudice of the justice system. All these, of course, beginwith the premise that the Truth Commissionhas the mandate to find the “truth,” as it nameimplies, and has a truth-telling function that itcan fully exercise through its own efforts andthrough the media.

Same; At the very least, the widely-publicizedconclusions of the Truth Commission shallserve as a mechanism for “priming” the public,even the Ombudsman and the courts, to theCommission’s way of thinking.—The present

Truth Commission operating under the termsof the EO, however, introduces a new twistthat the public and the country have not metbefore. For the first time, a Truth Commission,

tasked with a truth-telling function, shall speakon the “truth” of what acts of graft andcorruption were actually com-

mitted and who the guilty parties are. Thisofficial communication from a governmentalbody—the Truth Commission—whose expressmandate is to find and “tell the truth” cannot

but make a difference in the public perception.At the very least, the widely-publicizedconclusions of the Truth Commission shallserve as a mechanism for “priming” the public,even the Ombudsman and the courts, to theCommission’s way of thinking. Pervasivelyrepeated as an official governmentpronouncement, the Commission’s influencecan go beyond the level of priming and canaffect the public environment as well as thethinking of both the decision makers in thecriminal justice system and the public ingeneral. Otherwise stated, the Commission’s

publicly announced conclusions cannot butassume the appearance of truth once theypenetrate and effectively color the public’sperception, through repetition withoutsignificant contradiction as official governmentfindings. These conclusions thus graduate tothe level of “truth” in self-fulfillment of thename the Commission bears; the subtlemanipulation of the Commission’s name andfunctions, fades in the background or simplybecomes explainable incidents that cannotdefeat the accepted truth.

Same; To be sure, the shortcut to theemergence of truth, fashioned under the termsof Executive Order (E.O.) No. 1, finds no

justification after the 1987 Constitution and itsrights, freedoms and guarantees have beenfully put in place.—In the context of the EO,the Executive can investigate within the limitsof its legal parameters and can likewisepublicize the results of its investigations to thefull limit of allowable transparency. But in sodoing, it cannot act as catalyst by labelling theaction of the Commission it has created asofficially-sanctioned and authoritative truth-telling before the officially-designated bodies—the Ombudsman and the courts—have spoken.While the emergence of truth is a basic andnecessary component of the justice system,the truth-seeking and truth-finding processescannot be speeded up through steps thatshortcut and bypass processes established bythe Constitution and the laws. As heretoforementioned, the international experiences thatgave rise to the title Truth Commission weretransitional situations where, for peculiarreasons (such as the temporary absence of an



established judicial system or the need tospeed up the transition to democratic rule),the use of ad hoc commissions were called for.In the Philippine setting, the closest similarsituation would be the immediate aftermath of the 1986 EDSA Revolution as the countrystruggled in the transition from authoritarianmartial law regime into a full-fledged

democracy. To be sure, the shortcut to theemergence of truth, fashioned under the termsof EO 1, finds no justification after the 1987Constitution and its rights, freedoms andguarantees have been fully put in place.116

Same; Ombudsman; The extrajudicialintervention of the Commission, as provided inthe Executive Order (E.O.), even for theavowed purpose of “assisting” theOmbudsman, directly disrupts the establishedorder, as the Constitution and the law do notenvision a situation where fact-finding

recommendations, already labelled as “true,”would be submitted to the Ombudsman by anentity within the Executive branch.—Theextrajudicial intervention of the Commission,as provided in the EO, even for the avowedpurpose of “assisting” the Ombudsman,directly disrupts the established order, as theConstitution and the law do not envision asituation where fact-finding recommendations,already labelled as “true,” would be submittedto the Ombudsman by an entity within theExecutive branch. This arrangement is simplynot within the dispensation of justice scheme,as the determination of whether probablecause exists cannot be defeated, renderedsuspect, or otherwise eroded by any priorprocess whose results are represented to bethe “truth” of the alleged criminal acts. TheOmbudsman may be bound by the findings of a court, particularly those of this Court, but notof any other body, most especially a bodyoutside the regular criminal justice system.Neither can the strictly judicial aspect of the

justice system be saddled with this type of fact-finding, as the determination of the guiltor innocence of an accused lies strictly andsolely with the courts. Nor can the EO cloak itsintent of undercutting the authority of thedesignated authorities to rule on the merits of the alleged graft and corruption through astatement that its findings arerecommendatory; as has been discussedabove, this express provision is negated inactual application by the title TruthCommission and its truth-telling function.

Same; Once the door is opened to the TruthCommission approach and public opinion

enters as a consideration in the judicialhandling of criminal cases, then the rules of

judging would have effectively changed—reliance on the law, the rules and

jurisprudence would have been weakened tothe extent that judges are on the lookout, notonly for what the law and the rules say, butalso for what the public feels about the case;

The primacy of public opinion may, withoutdoubt, appeal to some but this is simply notthe way of a Judiciary constitutionally-designedto follow the rule of law.—Because of truth-telling and its consequence of actively bringingin public opinion as a consideration, standardsand usages other than those strictly laid downor allowed by the Constitution, by the laws andby the Rules of Court will play a part in thecriminal justice system. For example, publiccomments on the merits of cases that are stillsub judice may become rampant as commentson a truth commission’s findings, not on the

cases pending before the courts. Thecommission’s “truthful” findings, made withoutrespect for the rules on evidence and therights of the accused, would become thestandards of public perception of and reactionto cases, not the evidence as found by thecourts based on the rules of evidence. Oncethe door is opened to the Truth Commissionapproach and public opinion enters as aconsideration in the judicial handling of criminal cases, then the rules of judging wouldhave effectively changed; reliance on the law,the rules and jurisprudence would have beenweakened to the extent that judges are on thelookout, not only for what the law and therules say, but also for what the public feelsabout the case. In this eventuality, even anoisy minority can change the course of a casesimply because of their noise and the mediaattention they get. (Such tactics have beenattempted in the immediate past wherepressure has been brought to bear on thisCourt through street demonstrations borderingon anarchy, the marshalling of opinions locallyand internationally, and highly partisan mediacomments.) The primacy of public opinionmay, without doubt, appeal to some but this issimply not the way of a Judiciaryconstitutionally-designed to follow the rule of law.

Same; Presidency; Separation of Powers; ThePresident of the Philippines, through anexecutive or administrative order and withoutauthority of law, cannot introduce changes orinnovations into the justice system andsignificantly water down the authoritativepower of the courts and of duly designated



constitutional bodies in dispensing justice.—Tobe sure, the President of the Philippines,through an executive or administrative orderand without authority of law, cannot introducechanges or innovations into the justice systemand significantly water down the authoritativepower of the courts and of duly designatedconstitutional bodies in dispensing justice. The

nobility of the President’s intentions is notenough to render his act legal. As has beensaid often enough, ours is a government of laws, not of men.

Same; Ombudsman; The independence of theOmbudsman and its freedom from interferencefrom all other departments of government inthe performance of its functions is a barrierthat cannot be breached, directly or indirectly,except only as the Constitution and the lawsmay allow.—While the Executive participates inthe dispensation of justice under our

constitutional and statutory system through itsinvestigatory and prosecutory arms and hasevery authority in law to ensure that the law isenforced and that violators are prosecuted,even these powers have limits. Theindependence of the Ombudsman and itsfreedom from interference from all otherdepartments of government in theperformance of its functions is a barrier thatcannot be breached, directly or indirectly,except only as the Constitution and the lawsmay allow. No such exception has beenallowed or given to the Presidentother than through the prosecution theDepartment of Justice may undertake whenthe Ombudsman has not asserted its primary

jurisdiction. The concurrent jurisdiction givento the Department of Justice to prosecutecriminal cases, incidentally, is a grant specificto that office, not to any other office that theExecutive may create through an executiveorder.

Same; Presidency; Separation of Powers; Whileunder his broad powers to execute the lawsthe President can undoubtedly create ad hocbodies for purposes of investigating reportedcrimes, he, however, has to observe the limitsimposed on him by the constitutional plan: hemust respect the separation of powers and theindependence of other bodies which have theirown constitutional and statutory mandates.—Under his broad powers to execute the laws,the President can undoubtedly create ad hocbodies for purposes of investigating reportedcrimes. The President, however, has toobserve the limits imposed on him by theconstitutional plan: he must respect the

separation of powers and the independence of other bodies which have their ownconstitutional and statutory mandates, asdiscussed above. Contrary to what J. AntonioEduardo B. Nachura claims in his Dissent, thePresident cannot claim the right to create apublic office in the course of implementing thelaw, as this power lodged exclusively in

Congress. An investigating body, furthermore,must operate within the Executive branch; thePresident cannot create an office outside theExecutive department.

Same; Same; The President cannot create anoffice within the Executive branch that isindependent of his control—under theconstitutional plan, the creation of this kind of office with this kind of independence is lodgedonly in the Legislature.—All these necessarilylead to the question: can the President reallycreate an office within the Executive branch

that is independent of his control? The shortanswer is he cannot, and the short reasonagain is the constitutional plan. The executionand implementation of the laws have beenplaced by the Constitution on the shoulders of the President and on none other. He cannotdelegate his executive powers to any personor entity outside the Executive departmentexcept by authority of the Constitution or thelaw (which authority in this case he does nothave), nor can he delegate his authority toundertake fact-finding as an incident of hisexecutive power, and at the same time takethe position that he has no responsibility forthe fact-finding because it is independent of him and his office. Under the constitutionalplan, the creation of this kind of office with thiskind of independence is lodged only in theLegislature. For example, it is only theLegislature which can create a body like theNational Labor Relations Commission whosedecisions are final and are neither appealableto the President nor to his alter

ego, the Secretary of Labor. Yet anotherexample, President Corazon Aquino herself,because the creation of an independentcommission was outside her executive powers,deemed it necessary to act pursuant to alegislative fiat in constituting the first DavideCommission of 1989.

Same; Truth-telling as envisioned under theExecutive Order (E.O.), carries prejudicialeffects on the persons it immediately targets,namely, the officials, employees and privateindividuals alleged to have committed graftand corruption during the previous



administration.—Separately from the aboveeffects, truth-telling as envisioned under theEO, carries prejudicial effects on the persons itimmediately targets, namely: the officials,employees and private individuals alleged tohave committed graft and corruption duringthe previous administration. This consequenceproceeds from the above discussed truth-

telling premise that—whether the Commissionreports (recommending the charging of specific individuals) are proven or not in theappropriate courts—the Commission’s functionof truth-telling function would have beenserved and the Commission would haveeffectively acted against the chargedindividuals. The most obvious prejudicial effectof the truth-telling function on the personsinvestigated is on their persons, reputationand property. Simply being singled out as“charged” in a truth-telling report willinevitably mean disturbance of one’s routines,

activities and relationships; the preparation fora defense that will cost money, time andenergy; changes in personal, job and businessrelationships with others; and adverse effectson jobs and businesses. Worse, reputationscan forever be tarnished after one is labelledas a participant in massive graft andcorruption.

Same; Judicial Review; Evidence is hardlynecessary where the prejudicial effects areself-evident, i.e., given that the announcedand undisputed government position thattruth-telling per se, in the manner envisionedby the Executive Order (E.O.) and itsimplementing rules, is an independentobjective the government wants to achieve; Intesting the validity of a government act orstatute, such potential for harm suffices toinvalidate the challenged act—evidence of actual harm is not necessary in the way it isnecessary for a criminal conviction or to justifyan award for damages.—These prejudicialeffects may be dismissed as speculativearguments that are not justified by anysupporting evidence and, hence, cannoteffectively be cited as factual basis for theinvalidity of the EO. Evidence, however, ishardly necessary where the prejudicial effectsare self-evident, i.e., given that the announcedand undisputed government position thattruth-telling per se, in the manner envisionedby the EO and its implementing rules, is anindependent objective the government wantsto achieve. When the government itself hasbeen heard on the “truth,” the probability of prejudice for the individual charged is not onlya likelihood; it approaches the level of

certainty. In testing the validity of agovernment act or statute, such potential forharm suffices to invalidate the challenged act;evidence of actual harm is not necessary inthe way it is necessary for a criminalconviction or to justify an award for damages.In plainer terms, the certainty of consequentdamage requires no evidence or further

reasoning when the government itself declaresthat for as long as the “story” of the allegedlymassive graft and corruption during the pastadministration is told, the Commission wouldhave fulfilled one of its functions tosatisfaction; under this reckless approach, it isself-evident that the mistaken object of the“truth” told must necessarily suffer.

Same; Due Process; Presumption of Innocence;When the Commission’s report itself ischaracterized, prior to trial, and held out bythe government to be the true story of the

graft and corruption charged, the chances of individuals to have a fair trial in a subsequentcriminal case cannot be very great; Thepresumption of innocence in law cannot servean accused in a biased atmosphere pointing toguilt in fact because the government andpublic opinion have spoken against theaccused.—The essence of the due processguarantee in a criminal case, as providedunder Section 14(1) of the Constitution, is theright to a fair trial. What is fair depends oncompliance with the express guarantees of theConstitution, and on the circumstances of eachcase. When the Commission’s report itself ischaracterized, prior to trial, and held out bythe government to be the true story of thegraft and corruption charged, the chances of individuals to have a fair trial in a subsequentcriminal case cannot be very great. Consideron this point that not even the main actors inthe criminal justice system—the Ombudsman,the Sandiganbayan and even this Court—canavoid the cloud of “untruth” and a doubtfultaint in their integrity after the governmenthas publicized the Commission’s findings asthe truth. If the rulings of these constitutionalbodies themselves can be suspect, individualdefenses for sure cannot rise any higher.Where the government simply wants to tell itsstory, already labelled as true, well ahead of any court proceedings, and judicial notice istaken of the kind of publicity and the fermentin public opinion that news of governmentscandals generate, it does not require a leap of faith to conclude that an accused brought tocourt against overwhelming public opinionstarts his case with a less than equal chance of acquittal. The presumption of innocence



notwithstanding, the playing field cannot butbe uneven in a criminal trial when the accusedenters trial with a government-sponsoredbadge of guilt on his forehead. Thepresumption of innocence in law cannot servean accused in a biased atmosphere pointing toguilt in fact because the government andpublic opinion have spoken against the

accused.

Same; Same; Standards of Review;“Fundamental rights” whose infringementleads to strict scrutiny under the equalprotection clause are those basic libertiesexplicitly or implicitly guaranteed in theConstitution; In the present case, ExecutiveOrder (E.O.) No. 1 infringes the personal dueprocess rights of the investigated persons, aswell as their constitutional right to a fair trial.—“Fundamental rights” whose infringementleads to strict scrutiny under the equal

protection clause are those basic libertiesexplicitly or implicitly guaranteed in theConstitution. Justice Carpio-Morales, althoughin dissent in Central Bank EmployeesAssociation, Inc. v. Bangko Sentral ng Pilipinas,elaborated on this point when she said: “Mostfundamental rights cases decided in theUnited States require equal protection analysisbecause these cases would involve a review of statutes which classify persons and imposediffering restrictions on the ability of a certainclass of persons to exercise a fundamentalright. Fundamental rights include only thosebasic liberties explicitly or implicitlyguaranteed by the U.S. Constitution. Andprecisely because these statutes affectfundamental liberties, any experimentinvolving basic freedoms which the legislatureconducts must be critically examined underthe lens of Strict Scrutiny. Fundamental rightswhich give rise to Strict Scrutiny include theright of procreation, the right to marry, theright to exercise First Amendment freedomssuch as free speech, political expression,press, assembly, and so forth, the right totravel, and the right to vote.” [Emphasissupplied] In the present case, as shown by thepreviously cited grounds for the EO’s invalidity,EO No. 1 infringes the personal due processrights of the investigated persons, as well astheir constitutional right to a fair trial.Indisputably, both these rights—one of themguaranteed under Section 1, Article III, andunder Section 14 of the same Article—are, by

jurisprudential definition, fundamental rights.With these infringements, the question nowthus shifts to the application of the strictscrutiny test—an exercise not novel in this

jurisdiction.

Same; In the absence of any specific guidingprinciple or directive, indicative of its rationale,the conclusion is unavoidable that theExecutive Order (E.O.) carries no specialcompelling reason to single out officials of theprevious administration—what is important is

that the graft be attributed to the previousadministration.—If the EO’s terms are to be theyardstick, the basis for the separate focus isthe “extent and magnitude” of the reportedgraft and corruption which “shock and offendthe moral and ethical sensibilities of thepeople.” What this “extent and magnitude” isor what specific incidents of massive graft arereferred to, however, have been left vague.Likewise, no explanation has been given onwhy special measures—i.e., the special focuson the targeted officials, the creation of a newoffice, and the grant of truth-telling authority—

have been taken. Effectively, by acting as hedid, the President simply gave the Commissionthe license to an open hunting season to tellthe “truth” against the previousadministration; the Commission caninvestigate an alleged single billion-peso scam,as well as transactions during the pastadministration that, collectively, may reachthe same amount. Only the Commission, in itswisdom, is to judge what allegations or reportsof graft and corruption to cover for as long asthese were during the past administration. Inthe absence of any specific guiding principle ordirective, indicative of its rationale, theconclusion is unavoidable that the EO carriesno special compelling reason to single outofficials of the previous administration; what isimportant is that the graft be attributed to theprevious administration. In other words, thereal reason for the EO’s focus lies elsewhere,not necessarily in the nature or extent of thematters to be investigated.

Peralta, J., Separate Concurring Opinion:

Philippine Truth Commission; Public Office; The Truth Commission was not created in thenature of the previous ad hocinvestigating/fact-finding bodies—it wascreated more in the nature of a public office.—

The President has the power to create ad hoccommittees to investigate or inquire intomatters for the guidance of the President toensure that the laws be faithfully executed, Iam of the view that the Truth Commission wasnot created in the nature of theaforementioned ad hoc investigating/fact-finding bodies. The Truth Commission was



created more in the nature of a public office.Based on the creation of ad hoc investigatingbodies in Department of Health v. Camposanoand Presidential Ad Hoc Fact-FindingCommittee on Behest Loans v. Desierto, themembers of an ad hoc investigative body areheads and representatives of existinggovernment offices, depending on the nature

of the subject matter of the investigation. Thead hoc investigating body’s functions areprimarily fact-finding/investigative andrecommendatory in nature. In this case, themembers of the Truth Commission are notofficials from existing government offices.

Same; Equal Protection Clause; There is nosubstantial distinction cited between publicofficers who may be involved in reported casesof graft and corruption during the previousadministration and public officers who may beinvolved in reported cases of graft and

corruption during prior administrations inrelation to the purpose of ending graft andcorruption.—The distinctions cited by the OSGare not substantial to separate the previousadministration as a distinct class from prioradministrations as subject matter forinvestigation for the purpose of ending graftand corruption. As stated by the ponencia, thereports of widespread corruption in theprevious administration cannot be taken as asubstantial distinction, since similar reportshave been made in earlier administrations.Moreover, a valid classification must rest uponmaterial differences between the persons, oractivities or thing included and excluded.Reasonable grounds must exist for making adistinction between those who fall within theclass and those who do not. There is nosubstantial distinction cited between publicofficers who may be involved in reported casesof graft and corruption during the previousadministration and public officers who may beinvolved in reported cases of graft andcorruption during prior administrations inrelation to the purpose of ending graft andcorruption. To limit the investigation to publicofficers of the previous administration isviolative of the equal protection clause.

Bersamin, J., Separate Opinion:

Philippine Truth Commission; Public Office;Separation of Powers; The power to create apublic office is essentially legislative, and,therefore, it belongs to Congress.—A publicoffice may be created only through any of thefollowing modes, namely: (a) by theConstitution; or (b) by statute enacted by

Congress; or (c) by authority of law (through avalid delegation of power). The power tocreate a public office is essentially legislative,and, therefore, it belongs to Congress. It is notshared by Congress with the President, untiland unless Congress enacts legislation thatdelegates a part of the power to the President,or any other officer or agency.

Same; Same; The Truth Commission has notexisted before Executive Order (E.O.) No. 1gave it life on 30 July 2010—it is a new office;If the Truth Commission is an entirely newoffice, then it is not the result of anyreorganization undertaken pursuant to Section31, Chapter 10, Book III, of the AdministrativeCode of 1987.—The Truth Commission has notexisted before E.O. No. 1 gave it life on July 30,2010. Without a doubt, it is a new office,something we come to know from the plainwords of Section 1 of E.O. No. 1 itself, to wit:

“Section 1.

Creation of a Commission.—Thereis hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the“COMMISSION”, which shall primarily seek andfind the truth on, and toward this end,investigate reports of graft and corruption of such scale and magnitude that shock andoffend the moral and ethical sensibilities of thepeople, committed by public officers andemployees, their co-principals, accomplicesand accessories from the private sector, if any,during the previous administration; andthereafter recommend the appropriate actionor measure to be taken thereon to ensure thatthe full measure of justice shall be servedwithout fear or favor. The Commission shall becomposed of a Chairman and four (4)members who will act as an independentcollegial body.” If the Truth Commission is anentirely new office, then it is not the result of any reorganization undertaken pursuant toSection 31, Chapter 10, Book III, of theAdministrative Code of 1987. Thus, thecontention of the Solicitor General isabsolutely unwarranted.

Same; Ombudsman; The Truth Commissionreplicates and usurps the duties and functionsof the Office of the Ombudsman.—I find thatthe Truth Commission replicates and usurpsthe duties and functions of the Office of theOmbudsman. Hence, the Truth Commission issuperfluous and may erode the public trustand confidence in the Office of theOmbudsman.

Abad, J., Separate Dissenting Opinion:



Equal Protection Clause; As an element of dueprocess, the equal protection clause barsarbitrary discrimination in favor of or against aclass whether in what the law provides andhow it is enforced.—The idea behind the“equal protection clause” is that publicauthorities should treat all persons or thingsequally in terms of rights granted to and

responsibilities imposed on them. As anelement of due process, the equal protectionclause bars arbitrary discrimination in favor of or against a class whether in what the lawprovides and how it is enforced.

Same; It would be just as unfair anddiscriminatory if people who hardly shareanything in common are grouped together andtreated similarly.—But it would be just as unfairand discriminatory if people who hardly shareanything in common are grouped together andtreated similarly. The equal protection clause is

not violated by a law that applies only topersons falling within a specified class, if suchlaw applies equally to all persons within suchclass, and reasonable grounds exist for makinga distinction between those who fall within itand those who do not.

Same; Time differentiation should not be soeasily dismissed as superficial.—The majorityholds that picking on the “previousadministration” and not the others before itmakes the Commission’s investigation an“adventure in partisan hostility.” To be fair,said the majority, the search for truth mustinclude corrupt acts not only during theprevious administration but also during theadministrations before it where the “samemagnitude of controversies and anomalies”has been reported. The majority points outthat corruption in the previous administrationand corruption in the administrations before ithave no substantial difference. And whatdifference they have, the majority adds, is notrelevant to the purpose of Executive Order 1,which is to uncover corrupt acts andrecommend their punishment. Superficialdifference like the difference in time in thiscase does not make for a valid classification.But time differentiation should not be so easilydismissed as superficial. The world in whichpeople live has two great dimensions: thedimension of space and the dimension of time.Nobody can say that the difference in timebetween two acts or events makes for asuperficial difference. Such difference is thesubstance of human existence.

Same; Recognizing the irreversibility of time is

indispensable to every sound decision thatpeople make in their lives everyday.—Recognizing the irreversibility of time isindispensable to every sound decision thatpeople make in their lives everyday, like notcombing the hair that is no longer there. Intime, parents let their married children leaveto make their own homes. Also, when a loved

one passes away, he who is left must knowthat he cannot bring back the time that isgone. He is wise to move on with his life aftersome period of mourning. To deny the truththat the difference in time makes forsubstantial difference in human lives is to denythe idea of transition from growth to decay,from life to death, and from relevant toirrelevant.

Same; Time erodes the evidence of the past.— Time erodes the evidence of the past. Thelikelihood of finding evidence needed for

conviction diminishes with the march of time.Witnesses, like everyone else, have shortmemories. And they become scarce, workingoverseas, migrating, changing addresses, or

just passing away. Official or privatedocuments needed as evidence are easilyoverwhelmed by the demand to file and keepeven more documents generated by newactivities and transactions. Thus, olddocuments are stored away in basements,garages, or corridors, and eventually lost trackof, misplaced, or simply destroyed, whetherintentionally or not. In a government that isnotorious for throwing away or mishandling oldrecords, searching for a piece of documentafter ten years would be uncertain, tedious,long, and costly.

Philippine Truth Commission; Limiting the TruthCommission’s investigation to the 9 years of the previous administration gives it the bestchance of yielding the required proof neededfor successful action against the offenders.—Itwould be a waste of effort and time to scour allof 66 years of the administrations before thelast, looking for evidence that would produceconviction. Time has blurred the chance of success. Limiting the Truth Commission’sinvestigation to the 9 years of the previousadministration gives it the best chance of yielding the required proof needed forsuccessful action against the offenders.

Same; You cannot order five men to pull a trainthat a thousand men cannot move.—The TruthCommission is a collegial body of just fivemembers with no budget or permanent staffsof its own. It simply would not have the time



and resources for examining hundreds if notthousands of anomalous government contractsthat may have been entered into in the past75 years up to the time of President Quezon.

You cannot order five men to pull a train that athousand men cannot move.

Same; Directing the investigation of reported

corrupt acts committed during the previousadministration is consistent with goodhousekeeping.—Directing the investigation of reported corrupt acts committed during theprevious administration is, as the SolicitorGeneral pointed out, consistent with goodhousekeeping. For example, a new treasurerwould be prudent to ensure that the formertreasurer he succeeds has balanced hisaccounts and submitted himself to a closingaudit even after the new treasurer has takenover. This prevents the latter having to unfairlyassume the liabilities of his predecessor for

shortages in the cash box. Of course, the newtreasurer is not required to look farther intothe accounts of the earlier treasurers.

Same; Presidency; Since, as the majorityconcedes, the creation of the TruthCommission is within the constitutional powersof the President to undertake, then to him, notto the Court, belongs the discretion to definethe limits of the investigation as he deems fit.—That is the first point. The second point isthat the Court needs to stand within the limitsof its power to review the actions of a co-equalbranch, like those of the President, within thesphere of its constitutional authority. Since, asthe majority concedes, the creation of the

Truth Commission is within the constitutionalpowers of President P-Noy to undertake, thento him, not to the Court, belongs the discretionto define the limits of the investigation as hedeems fit. The Court cannot pit its judgmentagainst the judgment of the President in suchmatter.

Same; Same; Words and Phrases; To actcapriciously and whimsically is to actfreakishly, abruptly, or erratically, like laughingone moment and crying the next withoutapparent reason.—And when can the SupremeCourt interfere with the exercise of thatdiscretion? The answer is, as provided inSection 1, Article VIII of the 1987 Constitution,only when the President gravely abuses hisexercise of such discretion. This means that, inrestricting the Truth Commission’sinvestigation only to corruptions committedduring the previous administration, he actedcapriciously and whimsically or in an arbitrary

or despotic manner. To act capriciously andwhimsically is to act freakishly, abruptly, orerratically, like laughing one moment andcrying the next without apparent reason. Doesthis characterize the President’s action in thiscase, considering that he merely acted to set afeasible target, neutralize political bias, assignthe Commission a task suitable to its limited

capacity, and observe correct housekeepingprocedures? Did he act arbitrarily in themanner of little children changing the rules of the game in the middle of the play ordespotically in the manner of a dictator?Unless he did, the Court must rein in itshorses. It cannot itself exceed the limits of itspower of review under the Constitution.

Perez, J., Separate Opinion:

Philippine Truth Commission; Ombudsman; Inlight of the constitutionally declared and amply

underscored independence of the Office of theOmbudsman, which declaration is winnowedwisdom from the experienced inherent defectsof presidential creations, so real and true thatthe Ombudsman’s constitutionalization wasadopted to completion even if from the charterof an overthrown regime, Executive Order No.1 cannot pass the present constitutional test.—In light of the constitutionally declared andamply underscored independence of the Officeof the Ombudsman, which declaration iswinnowed wisdom from the experiencedinherent defects of presidential creations, soreal and true that the Ombudsman’sconstitutionalization was adopted tocompletion even if from the charter of anoverthrown regime, Executive Order No. 1cannot pass the present constitutional test.Executive Order No. 1 is unconstitutionalprecisely because it was issued by thePresident. As articulated by CommissionerColayco of the Commission that resurrectedthe Ombudsman, “our proposal is toconstitutionalize the office so that it cannot betouched by the Presidents as they come andgo.” And as this Court stated, repeating theobservation regarding the erstwhilepresidential anti-graft commissions, suchcommissions failed to realize their objectivebecause they did not enjoy the politicalindependence necessary for the effectiveperformance of a government critic.

Same; Same; The Philippine Truth Commissionis a defiance of the constitutional wisdom thatestablished the politically independentOmbudsman.—The Philippine TruthCommission is a defiance of the constitutional



wisdom that established the politicallyindependent Ombudsman for one of itsreasons for being is the very campaignbattlecry of the President “kung walangcorrupt, walang mahirap.” Not that there isanything wrong with the political slogan. Whatis wrong is the pursuit of the pledge outsidethe limits of the Constitution. What is wrong is

the creation by the President himself of anOmbudsman-like body while there standsestablished an Ombudsman, constitutionallycreated especially because of unsuccessfulpresidential antecedents, and thus madeindependent from presidential prerogative.

Same; Same; Constitutional history, specificconstitutional provisions, jurisprudence andcurrent statute combine to say that after theratification of the Constitution in 1987, nobody can be given “by law” any of the powers,functions and duties already conferred on the

Ombudsman by Section 13, Article XI of theConstitution.—Constitutional history, specificconstitutional provisions, jurisprudence andcurrent statute combine to say that after theratification of the Constitution in 1987, nobody can be given “by law” any of the powers,functions and duties already conferred on theOmbudsman by Section 13, Article XI of theConstitution. As already shown, the TruthCommission insofar as concerns thementioned third level officers or higher of theprevious administration appropriates, not justone but virtually, all of the powersconstitutionally enumerated for theOmbudsman. The violation of Section 7 inrelation to Section 13 of Article XI of theConstitution is evident.

Same; Same; Executive Order No. 1 itself pronounces that what it empowers thePhilippine Truth Commission with is theauthority of preliminary investigation.—Executive Order No. 1 itself pronounces thatwhat it empowers the Philippine TruthCommission with is the authority of preliminary investigation. Section 2(g) of theexecutive order states: “Turn over from time totime, for expeditious prosecution, to theappropriate prosecutional authorities, bymeans of a special or interim report andrecommendation, all evidence on corruption of public officers and employees and their privatesector co-principals, accomplice oraccessories, if any, when in the course of itsinvestigation the Commission finds that thereis reasonable ground to believe that they areliable for graft and corruption under pertinentapplicable laws.” (Underscoring supplied.)

Investigation to find reasonable ground tobelieve “that they are liable for graft andcorruption under applicable laws” ispreliminary investigation as defined in Rule112, Section 1 of the Rules of CriminalProcedure, which states: “Section 1.Preliminary investigation defined; whenrequired.—Preliminary investigation is an

inquiry or proceeding to determine whetherthere is sufficient ground to engender a well-founded belief that a crime has beencommitted and the respondent is probablyguilty thereof, and should be held for trial.”129

Same; Same; In the case of the Philippine Truth Commission, the Ombudsman not onlyshares its constitutional power but, over andabove this, it is divested of any and allinvestigatory power because the Philippine

Truth Commission’s finding of “reasonableground” is final and unreviewable and is

turned over to the Ombudsman solely for“expeditious prosecution.”—In other words,under existing Rule which follows thestatutorily defined primary jurisdiction of theOmbudsman in obeisance to the constitutionalconferment of authority, the Ombudsmanreviews and may reverse or modify theresolution of the investigating prosecutor. Inthe case of the Philippine Truth Commission,the Ombudsman not only shares itsconstitutional power but, over and above this,it is divested of any and all investigatorypower because the Philippine TruthCommission’s finding of “reasonable ground”is final and unreviewable and is turned over tothe Ombudsman solely for “expeditiousprosecution.”

Same; Same; Fact gathering, fact finding,indeed truth finding is, as much asinvestigation as preliminary investigation, alsoconstitutionally conferred on the Ombudsman.—Fact gathering as basis for preliminaryinvestigation and not as preliminaryinvestigation itself and basis for prosecution,is, seemingly, the function respondents wantto attribute to the Philippine Truth Commissionto escape the obvious unconstitutionalconferment of Ombudsman power. That is noroute out of the bind. Fact gathering, factfinding, indeed truth finding is, as much asinvestigation as preliminary investigation, alsoconstitutionally conferred on the Ombudsman.Section 12 of Article XI states: “Section 12. TheOmbudsman and his Deputies, as protectors of the people, shall act promptly on complaintsfiled in any form or manner against publicofficials or employees of the government, or



any subdivision, agency or instrumentalitythereof, including government-owned orcontrolled corporations, and shall, inappropriate cases, notify the complainants of the action taken and the result thereof.”

Sereno, J., Dissenting Opinion:

Philippine Truth Commission; Equal ProtectionClause; Public Officers; The majority Decisiondefeats the constitutional mandate on publicaccountability—it effectively toleratesimpunity for graft and corruption, and itsinvocation of the constitutional clause on equalprotection of the laws is an unwarrantedmisuse of the same and is a disservice tothose classes of people for whom theconstitutional guarantee was created as asuccor.—The majority Decision defeats theconstitutional mandate on publicaccountability; it effectively tolerates impunity

for graft and corruption. Its invocation of theconstitutional clause on equal protection of thelaws is an unwarranted misuse of


the same and is a disservice to those classesof people for whom the constitutionalguarantee was created as a succor. Themajority Decision accomplished this bycompletely disregarding “reasonableness” andall its jurisprudential history as constitutional

justification for classification and by replacingthe analytical test of reasonableness withmere recitations of general case doctrines toarrive at its forced conclusion. By denying theright of the President to classify persons inExecutive Order No. (EO) 1 even if theclassification is founded on reason, theDecision has impermissibly infringed on theconstitutional powers of the President. It waftsthe smell of hope onto the air towards thosewho seek the affirmance of EO 1 by saying: “...[T]his is not a death knell for a truthcommission as nobly envisioned by thepresent administration. Perhaps a revision of the executive issuance so as to include theearlier past administrations would allow it topass the test of reasonableness and not be anaffront to the Constitution... but the scent of hope, as will be demonstrated, is that whichemanates from a red herring. Since FerdinandMarcos’s presidency, no Court has stifled thepowers of the Philippine presidency as has thisCourt through the majority Decision.

Same; Same; Prioritization per se is not

classification.—At the outset, it must beemphasized that EO 1 did not, for purposes of application of the laws on graft and corruption,create two classes—that of President Arroyoand that of other past administrations. Rather,it prioritized fact-finding on the administrationof President Arroyo while saying that thePresident could later expand the coverage of

EO 1 to bring other past administrations underthe same scrutiny. Prioritization per se is notclassification. Else, as all human activitiesrequire prioritization, everyone in a priority listfor regulation or investigation can make out acase that there is prima facie classification,and that the prioritization is not supported bya reasonable objective. All acts of governmentwould have to come to a halt and all publicoffices would need to justify every plan of action as to reasonableness of phases andprioritization. The step-by-step approach of legislative and regulatory remedies—

recognized as valid in Quinto v. COMELEC andin the case law cited by the Decision—inessence says that prioritization is notclassification, much less invalid classification.

Same; Same; Judicial Review; A judicialanalysis must not stop at reciting legaldoctrines which are its mere beginning points,but, especially in equal protection claims, itmust move forward to examine the facts andthe context of the controversy.—A judicialanalysis must not stop at reciting legaldoctrines which are its mere beginning points,but, especially in equal protection claims, itmust move forward to examine the facts andthe context of the controversy. Had themajority taken pains to examine its own citedcases, it would have discovered that the cases,far from condemning EO 1, would actuallysupport the constitutionality of the latter.

Same; Same; Fact-finding or investigation canonly begin by identifying the phenomenon,event or matter that is to be investigated.—Fact-finding or investigation can only begin byidentifying the phenomenon, event or matterthat is to be investigated. Then it can onlyproceed if the fact-finder, or the authorityunder whom he works, identifies or selects thepersons to be investigated.

Same; Same; To support a claim of selectiveprosecution, a defendant must establish aviolation of equal protection and show that theprosecution (1) had a discriminatory effect and(2) was motivated by a discriminatorypurpose.—Although such discretion is broad, itis not without limit. In order to constitute



denial of equal protection, selectiveenforcement must be deliberately based onunjustifiable or arbitrary classification; themere failure to prosecute all offenders is noground for the claim of a denial of equalprotection. To support a claim of selectiveprosecution, a defendant must establish aviolation of equal protection and show that the

prosecution (1) had a discriminatory effect and(2) was motivated by a discriminatorypurpose. First, he must show that “he hasbeen singled out for prosecution while othersimilarly situated generally have not beenproceeded against for the type of conductforming the basis of the charge against him.”Second, he must prove that his selection forprosecution was invidious or in bad faith andwas “based on impermissible considerationssuch as race, religion, or the desire to preventthe exercise of constitutional rights.” InAmerican constitutional history, it is the

traditionally oppressed—racial or religiousminorities and the politically disenfranchised—who have succeeded in making a case of unequal protection when their prejudicedstatus is shown to be the principal invidious orbad faith consideration for the selectiveprosecution. The standard for demonstratingselective prosecution therefore is demanding:a “presumption of regularity supportsprosecutorial decisions and in the absence of clear evidence to the contrary, courts presumethat they have properly discharged theirofficial functions.”

Same; Same; Presumption of Regularity; Thefact that other administrations are not thesubject of the Philippine Truth Commission’s(PTC’s) investigative aim is not a case of selective prosecution that violates equalprotection—the Executive is given broaddiscretion to initiate criminal prosecution andenjoys clear presumption of regularity andgood faith in the performance thereof; Thepresumption of good faith must be observed,especially when the action taken is pursuant toa constitutionally enshrined state policy suchas the taking of positive and effectivemeasures against graft and corruption.—In theinstant case, the fact that otheradministrations are not the subject of thePTC’s investigative aim is not a case of selective prosecution that violates equalprotection. The Executive is given broaddiscretion to initiate criminal prosecution andenjoys clear presumption of regularity andgood faith in the performance thereof. Forpetitioners to overcome that presumption,they must carry the burden of showing that

the PTC is a preliminary step to selectiveprosecution, and that it is laden with adiscriminatory effect and a discriminatorypurpose. However, petitioner has sorely failedin discharging that burden. The presumption of good faith must be observed, especially whenthe action taken is pursuant to aconstitutionally enshrined state policy such as

the taking of positive and effective measuresagainst graft and corruption. For this purpose,the President created the PTC. If a law neitherburdens a fundamental right nor targets asuspect class, the Court must uphold theclassification, as long as it bears a rationalrelationship to some legitimate governmentend.

Same; Same; To strike down the Philippine Truth Commission’s (PTC’s) mandate toinvestigate the previous administration simplybecause other administrations are not

immediately included is tantamount to sayingthat a police investigation of a recent murdercase is violative of equal protection becausethere are other prior yet equally heinousmurders that remain uninvestigated andunsolved by the police.—EO 1 activities are atmost initiatory investigations. There is nopreliminary investigation – much lessprosecution – to be conducted under theauspices of EO 1. The PTC is tasked to “collect,receive, review and evaluate evidence relatedto or regarding the cases of large scalecorruption,” tasks that constitutes nothingmore than a general inquiry into such reportedcases in the previous administration. Similar toan initiatory police investigation, the PTC istasked with general fact-finding to uncover thetruth of the events pertaining to an allegedunsolved crime. To strike down the PTC’smandate to investigate the previousadministration simply because otheradministrations are not immediately includedis tantamount to saying that a policeinvestigation of a recent murder case isviolative of equal protection because there areother prior yet equally heinous murders thatremain uninvestigated and unsolved by thepolice.

Same; Same; What renders the plaintregarding an alleged violation of the equalprotection clause ridiculous is that it is beingraised at the inception stage for thedetermination of possible criminal liability,where threat to liberty is most absent.—Whatrenders the plaint regarding an allegedviolation of the equal protection clauseridiculous is that it is being raised at the



inception stage for the determination of possible criminal liability, where threat toliberty is most absent. In contrast, with respectto petitions to stop later and more freedom-threatening stages in the determination of criminal liability such as in formal criminalinvestigations and prosecutions, Philippinecourts instinctively reject the defense of a

suspect or accused that the investigation isillegitimate because others who may have alsoviolated the relevant rule, are not beinginvestigated. In Gallardo v. People, 456 SCRA494 (2005), the Supreme Court held that therewas no violation of the equal protection clausewhen the Ombudsman recommended the filingof an information against a public officer, evenif it had previously dismissed sixteen (16)other cases of similar factual circumstances:

Same; Official acknowledgment of the truth isextremely powerful in the healing process,

especially in an atmosphere previouslydominated by official denial.—Truthcommissions operate on the premise that thetruth – if faced squarely, documentedthoroughly, and acknowledged officially – willreduce the likelihood that a repetition of government abuses will recur in the future.Official acknowledgment of the truth isextremely powerful in the healing process,especially in an atmosphere previouslydominated by official denial. Aside from theircathartic value, truth commissions like the PTCcan be useful in uncovering the causes andpatterns that led to such corruption, if itindeed existed, so that it may be prevented inthe future. The absence of any form of accountability for public officials’ pastmisconduct of a grave nature and massivescale will promote a culture of impunity. If thepresent administration does not demonstratethat it can hold accountable persons whocommitted acts of corruption, such inabilitymay be interpreted as a “license to engage infurther acts of corruption” and emboldenpublic officials to steal from the governmentcoffers more often and in greater quantity.

Same; By ignoring the Filipino public’sexperience as a witness to the frustration of attempts to hold the past administrationaccountable for its reported misdeeds, andframing it instead as a group that stands readyto convict past officials at the bar of publicopinion, the Concurring Opinion of Justice Brionturns social reality on its head. It minimizesthe status of the Filipino people as a groupwronged by the imbalance of power and thebetrayal of public trust.—By ignoring the

Filipino public’s experience as a witness to thefrustration of attempts to hold the pastadministration accountable for its reportedmisdeeds, and framing it instead as a groupthat stands ready to convict past officials atthe bar of public opinion, the ConcurringOpinion turns social reality on its head. Itminimizes the status of the Filipino people as a

group wronged by the imbalance of power andthe betrayal of public trust. It ignores the needof this group to see these rectified. It ascribesan excess of strength to public opinion andgrounds its logic on fear of the public acting asan angry mob. It does not attribute the properimportance to the active, participatory role theFilipino people desire to take in the process of dealing with the possible misdeeds of the past.

Same; It does not follow that repetition of information guarantees the acceptance of itsveracity—to make that logical leap in this

instance is to insinuate that repetition wouldrob the Filipino people of the capacity to makedistinctions between what to accept and whatto reject; The public does not need shelteringfrom the “potentially prejudicial effects of truth-telling.”—Implicit in Justice Brion’sConcurring Opinion are the roles the public isexpected to take: that of passive observer,receiver of information and susceptible to thebranding of “truth” and its repetition; and thatof a source of pressure. In the latter role, theConcurring Opinion envisions the Filipinopeople, having adjudged guilt according towhat it was told by the PTC and the media,wielding the threat of public disapprovalagainst the Ombudsman and the judiciary soas to shift the burden to these bodies todemonstrate proof and the basis for theiractions if they were to disagree with thefindings of the PTC. This is gross speculation. Itdoes not follow that repetition of informationguarantees the acceptance of its veracity; tomake that logical leap in this instance is toinsinuate that repetition would rob the Filipinopeople of the capacity to make distinctionsbetween what to accept and what to reject.Neither does it follow that the Ombudsmanand the judiciary must inevitably accede topublic clamor, or that the entry of publicopinion into the discussion would cause a“qualitative change in the criminal justicesystem” and weaken “reliance on the law, therules and jurisprudence.” The public does notneed sheltering from the “potentiallyprejudicial effects of truth-telling.” Nor is thepublic to be viewed as unwitting victims to “anoisy minority [who] can change the course of a case simply because of their noise and the



media attention they get.” The Filipino peoplehave a genuine stake in the addressing of abuses possibly committed by the pastadministration and are entitled to informationon the same.

Same; To declare the Filipino publicundeserving of the truth on the grounds of its

supposed lack of capacity to deal with thetruth and its alleged susceptibility to the“priming” effect of the Philippine TruthCommission’s (PTC’s) findings, while ignoringthe public’s need to know the truth and toseek redress for wrongs, is to deny the publicthe means to move towards social justice.—While it is true that public opinion will beinfluenced by the information that the publiccan access, it would be specious to claim thatthe possible turning of the tide of publicopinion against those subject to investigationis tantamount to a conviction before the court

of the Filipino people. To declare the Filipinopublic undeserving of the truth on the groundsof its supposed lack of capacity to deal withthe truth and its alleged susceptibility to the“priming” effect of the PTC's findings, whileignoring the public’s need to know the truthand to seek redress for wrongs, is to deny thepublic the means to move towards social

justice.

Same; State Capture; Words and Phrases;State capture encompasses the state’s“capture” as evinced in the “formation of laws,rules, and decrees by a wider range of stateinstitutions, including the executive, ministriesand state agencies, legislature, and the

judiciary”; State capture alters the “rules of the game” in favor of those who have capturedthe state; The fundamental characteristic of state capture is that it is channeled throughillicit, informal, and non-transparent means of providing private gains to public officials asincentives for these very officials to influencethe formation of laws and prejudice the rulesto these captors’ narrow advantage.—This lastpoint regarding situations wherein the formerregime still possesses a certain degree of influence over the system is especially salientin the light of state capture. According to theWorld Bank, state capture may be treated asakin in essence to regulatory capture as it isused in economics literature: state regulatoryagencies are considered “captured” when they“regulate businesses in accordance with theprivate interests of the regulated as opposedto the public interest for which they wereestablished.” State capture, then,encompasses the state’s “capture” as evinced

in the “formation of laws, rules, and decreesby a wider range of state institutions, includingthe executive, ministries and state agencies,legislature, and the judiciary.” State capturealters the “rules of the game” in favor of thosewho have captured the state. While statecapture encompasses a variety of situations,its fundamental characteristic is that it is

channeled through illicit, informal, and non-transparent means of providing private gainsto public officials as incentives for these veryofficials to influence the formation of laws andprejudice the rules to these captors’ narrowadvantage. If public officials are perceived tohave been captured, the credibility of officialprocesses—such as rendering decrees, forminglaws, and shaping policies—will suffer. It is notdifficult to see how state capture may rendertraditional means such as prosecutioncompletely ineffective against those who mayhave captured the state.

Same; Equal Protection Clause; Unlawfuldiscrimination, as shown in American cases onequal protection claims in criminalinvestigation and prosecution, is not inherentlyan argument of the powerful, but that of thetraditionally oppressed.—Unlawfuldiscrimination, as shown in American cases onequal protection claims in criminalinvestigation and prosecution, is not inherentlyan argument of the powerful, but that of thetraditionally oppressed. This is because thepolitically powerful, as in the pastadministration, still contain all the advantagesthat such past formal political power begot. Itis the height of incongruity that anadministration that held power for nine years,successfully evaded all congressionalinvestigations, and effectively invoked all legaldefenses from investigation for all those nineyears will be extended the same immunity thatthe former presidential office gave it. ThePhilippines will be the laughing stock of theworld, incapable of correcting any error,unable to erase the perception by many that itis a country where the law only serves theends of the powerful.

Same; Judicial Review; Invalidating thePhilippine Truth Commission (PTC) is anunconstitutional denial of the legitimateexercise of executive power and a stingingreproach against the people’s sovereign right;Rather than exercise judicial restraint, themajority has pushed the boundaries of judicialactivism bordering on what former Chief

Justice Puno once described as an imperial judiciary.—If the Court is to avoid illegitimacy



in its actions as suggested by Professor Bickel,then it must ensure that its discharge of theduty to prevent abuse of the President’sexecutive power does not translate to strikingdown as invalid even a legitimate exercisethereof, especially when the exercise is inkeeping with the will of the people.Invalidating the PTC is an unconstitutional

denial of the legitimate exercise of executivepower and a stinging reproach against thepeople’s sovereign right. Sadly, there is a widefissure between the public’s hunger forgovernance justice through the successfuldelivery by President Aquino of his promise toget behind the stories on corruption of theformer administration, and the Court’sconfirmation of an alleged violation of formerPresident Arroyo’s equal protection right. Toemphasize, it is not even former PresidentArroyo who is officially raising this matterbefore the Court. Rather than exercise judicial

restraint, the majority has pushed theboundaries of judicial activism bordering onwhat former Chief Justice Puno once describedas an imperial judiciary.

Same; When forgotten, history does have atendency to repeat itself—unless an officialand comprehensive narrative of findings of fact on large-scale corruption that reportedlyoccurred during the previous administration ismade public, the country may find the samealleged patterns of corruption repeatingthemselves.—When forgotten, history doeshave a tendency to repeat itself. Unless anofficial and comprehensive narrative of findings of fact on large-scale corruption thatreportedly occurred during the previousadministration is made public, the countrymay find the same alleged patterns of corruption repeating themselves. Worse, publicofficials subject of the investigation—and whomay actually be guilty—with continuedpossession or access to power may spin theseevents and cause a revision of our history tomake those allegations of wrongdoing appearnothing more than unsubstantiated rumorswhispered in secret and perpetuated by bitteropponents. The PTC is a step towards nationalhealing over a sordid past. The Court mustallow the nation to move forward and thepeople’s faith in a just and accountablegovernment to be restored.

SPECIAL CIVIL ACTIONS in the Supreme Court.Certiorari and Prohibition.

The facts are stated in the opinion of theCourt.

Johween O. Atienza and Manuel Angelo B.Ventura III for petitioners in G.R. No. 193036.

MENDOZA, J.:

When the judiciary mediates to allocateconstitutional boundaries, it does not assert

any superiority over the other departments; itdoes not in reality nullify or invalidate an act of the legislature, but only asserts the solemnand sacred obligation assigned to it by theConstitution to determine conflicting claims of authority under the Constitution and toestablish for the parties in an actualcontroversy the rights which that instrumentsecures and guarantees to them.

— Justice Jose P. Laurel1

The role of the Constitution cannot be

overlooked. It is through the Constitution thatthe fundamental powers of government areestablished, limited and defined, and by whichthese powers are distributed among theseveral departments.2 The Constitution is thebasic and paramount law to which all otherlaws must conform and to which all persons,including the highest officials of the land, mustdefer.3 Constitutional doctrines must remainsteadfast no matter what may be the tides of time. It cannot be simply made to sway andaccommodate the call of situations and muchmore tailor itself to the whims and caprices of government and the people who run it.4

For consideration before the Court are twoconsolidated cases5 both of which essentiallyassail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010,entitled “Creating the Philippine TruthCommission of 2010.”

The first case is G.R. No. 192935, a special civilaction for prohibition instituted by petitionerLouis Biraogo (Biraogo) in his capacity as acitizen and taxpayer. Biraogo assails ExecutiveOrder No. 1 for being violative of thelegislative power of Congress under Section 1,Article VI of the Constitution6 as it usurps theconstitutional authority of the legislature tocreate a public office and to appropriate fundstherefor.7

The second case, G.R. No. 193036, is a specialcivil action for certiorari and prohibition filedby petitioners Edcel C. Lagman, Rodolfo B.Albano Jr., Simeon A. Datumanong, andOrlando B. Fua, Sr. (petitioners-legislators) as



incumbent members of the House of Representatives.

The genesis of the foregoing cases can betraced to the events prior to the historic May2010 elections, when then Senator BenignoSimeon Aquino III declared his staunchcondemnation of graft and corruption with his

slogan, “Kung walang corrupt, walangmahirap.” The Filipino people, convinced of hissincerity and of his ability to carry out thisnoble objective, catapulted the good senatorto the presidency.

To transform his campaign slogan into reality,President Aquino found a need for a specialbody to investigate reported cases of graft andcorruption allegedly committed during theprevious administration.

Thus, at the dawn of his administration, the

President on July 30, 2010, signed ExecutiveOrder No. 1 establishing the Philippine TruthCommission of 2010 (Truth Commission).Pertinent provisions of said executive orderread:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSIONOF 2010

WHEREAS, Article XI, Section 1 of the 1987Constitution 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 the mostdespicable acts of defiance of this principleand notorious violation of this mandate;

WHEREAS, corruption is an evil and scourgewhich seriously affects the political, economic,and social life of a nation; in a very special wayit inflicts untold misfortune and misery on thepoor, the marginalized and underprivilegedsector of society;

WHEREAS, corruption in the Philippines hasreached very alarming levels, and underminedthe people’s trust and confidence in theGovernment and its institutions;

WHEREAS, there is an urgent call for the

determination of the truth regarding certainreports of large scale graft and corruption inthe government and to put a closure to themby the filing of the appropriate cases againstthose involved, if warranted, and to deterothers from committing the evil, restore thepeople’s faith and confidence in theGovernment and in their public servants;

WHEREAS, the President’s battlecry during hiscampaign for the Presidency in the lastelections “kung walang corrupt, walangmahirap” expresses a solemn pledge that if elected, he would end corruption and the evilit breeds;

WHEREAS, there is a need for a separate bodydedicated solely to investigating and findingout the truth concerning the reported cases of graft and corruption during the previousadministration, and which will recommend the

prosecution of the offenders and secure justicefor all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known asthe Revised Administrative Code of thePhilippines, gives the President the continuingauthority to reorganize the Office of thePresident.

NOW, THEREFORE, I, BENIGNO SIMEONAQUINO III, President of the Republic of thePhilippines, by virtue of the powers vested inme by law, do hereby order:

SECTION 1. Creation of a Commission.— There is hereby created the PHILIPPINE TRUTHCOMMISSION, hereinafter referred to as the“COMMISSION,” which shall primarily seek andfind the truth on, and toward this end,investigate reports of graft and corruption of such scale and magnitude that shock andoffend the moral and ethical sensibilities of thepeople, committed by public officers andemployees, their co-principals, accomplicesand accessories from the private sector, if any,during the previous administration; andthereafter recommend the appropriate actionor measure to be taken thereon to ensure thatthe full measure of justice shall be servedwithout fear or favor.

The Commission shall be composed of aChairman and four (4) members who will actas an independent collegial body.

SECTION 2. Powers and Functions.—TheCommission, which shall have all the powers of



an investigative body under Section 37,Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct athorough fact-finding investigation of reportedcases of graft and corruption referred to inSection 1, involving third level public officersand higher, their co-principals, accomplicesand accessories from the private sector, if any,

during the previous administration andthereafter submit its finding andrecommendations to the President, Congressand the Ombudsman.

In particular, it shall:

a) Identify and determine the reported casesof such graft and corruption which it willinvestigate;

b) Collect, receive, review and evaluateevidence related to or regarding the cases of

large scale corruption which it has chosen toinvestigate, and to this end require anyagency, official or employee of the ExecutiveBranch, including government-owned orcontrolled corporations, to producedocuments, books, records and otherpapers;141

c) Upon proper request or representation,obtain information and documents from theSenate and the House of Representativesrecords of investigations conducted bycommittees thereof relating to matters orsubjects being investigated by theCommission;

d) Upon proper request and representation,obtain information from the courts, includingthe Sandiganbayan and the Office of the CourtAdministrator, information or documents inrespect to corruption cases filed with theSandiganbayan or the regular courts, as thecase may be;

e) Invite or subpoena witnesses and taketheir testimonies and for that purpose,administer oaths or affirmations as the casemay be;

f) Recommend, in cases where there is aneed to utilize any person as a state witness toensure that the ends of justice be fully served,that such person who qualifies as a statewitness under the Revised Rules of Court of the Philippines be admitted for that purpose;

g) Turn over from time to time, forexpeditious prosecution, to the appropriate

prosecutorial authorities, by means of aspecial or interim report and recommendation,all evidence on corruption of public officersand employees and their private sector co-principals, accomplices or accessories, if any,when in the course of its investigation theCommission finds that there is reasonableground to believe that they are liable for graft

and corruption under pertinent applicablelaws;

h) Call upon any government investigative orprosecutorial agency such as the Departmentof Justice or any of the agencies under it, andthe Presidential Anti-Graft Commission, forsuch assistance and cooperation as it mayrequire in the discharge of its functions andduties;

i) Engage or contract the services of resource persons, professionals and other

personnel determined by it as necessary tocarry out its mandate;

j) Promulgate its rules and regulations orrules of procedure it deems necessary toeffectively and efficiently carry out theobjectives of this Executive Order and toensure the orderly conduct of itsinvestigations, proceedings and hearings,including the presentation of evidence;

k) Exercise such other acts incident to or areappropriate and necessary in connection withthe objectives and purposes of this Order.

SECTION 3. Staffing Requirements.—x x x.

SECTION 4. Detail of Employees.—x x x.

SECTION 5. Engagement of Experts.—x x x

SECTION 6. Conduct of Proceedings.—x xx.142

SECTION 7. Right to Counsel of Witnesses/Resource Persons.—x x x.

SECTION 8. Protection of Witnesses/ResourcePersons.—x x x.

SECTION 9. Refusal to Obey Subpoena, TakeOath or Give Testimony.—Any governmentofficial or personnel who, without lawfulexcuse, fails to appear upon subpoena issuedby the Commission or who, appearing beforethe Commission refuses to take oath oraffirmation, give testimony or producedocuments for inspection, when required, shall



be subject to administrative disciplinaryaction. Any private person who does the samemay be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance tothe Commission.—x x x.

SECTION 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.

SECTION 12. Office.—x x x.

SECTION 13. Furniture/Equipment.—x x x.

SECTION 14. Term of the Commission.—The

Commission shall accomplish its mission on orbefore December 31, 2012.

SECTION 15. Publication of Final Report.—x xx.

SECTION 16. Transfer of Records andFacilities of the Commission.—x x x.

SECTION 17. Provision Concerning Mandate.—If and when in the judgment of the Presidentthere is a need to expand the mandate of theCommission as defined in Section 1 hereof to

include the investigation of cases andinstances of graft and corruption during theprior administrations, such mandate may be soextended accordingly by way of asupplemental Executive Order.

SECTION 18. Separability Clause.—If anyprovision of this Order is declaredunconstitutional, the same shall not affect thevalidity and effectivity of the other provisionshereof.

SECTION 19. Effectivity.—This ExecutiveOrder shall take effect immediately.

DONE in the City of Manila, Philippines, this30th day of July 2010.

(SGD.) BENIGNO S. AQUINOIII143

By the President:

(SGD.) PAQUITO N. OCHOA, JR.Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quotedprovisions, the Philippine Truth Commission(PTC) is a mere ad hoc body formed under theOffice of the President with the primary task toinvestigate reports of graft and corruption

committed by third-level public officers andemployees, their co-principals, accomplicesand accessories during the previousadministration, and thereafter to submit itsfinding and recommendations to the President,Congress and the Ombudsman. Though it hasbeen described as an “independent collegialbody,” it is essentially an entity within theOffice of the President Proper and subject tohis control. Doubtless, it constitutes a publicoffice, as an ad hoc body is one.8

To accomplish its task, the PTC shall have all

the powers of an investigative body underSection 37, Chapter 9, Book I of theAdministrative Code of 1987. It is not,however, a quasi-judicial body as it cannotadjudicate, arbitrate, resolve, settle, or renderawards in disputes between contendingparties. All it can do is gather, collect andassess evidence of graft and corruption andmake recommendations. It may havesubpoena powers but it has no power to citepeople in contempt, much less order theirarrest. Although it is a fact-finding body, itcannot determine from such facts if probablecause exists as to warrant the filing of aninformation in our courts of law. Needless tostate, it cannot impose criminal, civil oradministrative penalties or sanctions.

The PTC is different from the truthcommissions in other countries which havebeen created as official, transitory and non-

judicial fact-finding bodies “to establish thefacts and context of serious violationsof human rights or of internationalhumanitarian law in a country’s past.”9 Theyare usually established by states emergingfrom periods of internal unrest, civil strife orauthoritarianism to serve as mechanisms fortransitional justice.

Truth commissions have been described asbodies that share the following characteristics:(1) they examine only past events; (2) theyinvestigate patterns of abuse committed overa period of time, as opposed to a particularevent; (3) they are temporary bodies thatfinish their work with the submission of areport containing conclusions and



recommendations; and (4) they are officiallysanctioned, authorized or empowered by theState.10 “Commission’s members are usuallyempowered to conduct research, supportvictims, and propose policy recommendationsto prevent recurrence of crimes. Through theirinvestigations, the commissions may aim todiscover and learn more about past abuses, or

formally acknowledge them. They may aim toprepare the way for prosecutions andrecommend institutional reforms.”11

Thus, their main goals range from retributionto reconciliation. The Nuremburg and Tokyowar crime tribunals are examples of aretributory or vindicatory body set up to tryand punish those responsible for crimesagainst humanity. A form of a reconciliatorytribunal is the Truth and ReconciliationCommission of South Africa, the principalfunction of which was to heal the wounds of

past violence and to prevent future conflict byproviding a cathartic experience for victims.

The PTC is a far cry from South Africa’s model. The latter placed more emphasis onreconciliation than on judicial retribution, whilethe marching order of the PTC is theidentification and punishment of perpetrators.As one writer12 puts it:

The order ruled out reconciliation. It translatedthe Draconian code spelled out by Aquino inhis inaugural speech: “To those who talk aboutreconciliation, if they mean that they wouldlike us to simply forget about the wrongs thatthey have committed in the past, we have thisto say: There can be no reconciliation without

justice. When we allow crimes to gounpunished, we give consent to their occurringover and over again.”

The Thrusts of the Petitions

Barely a month after the issuance of ExecutiveOrder No. 1, the petitioners asked the Court todeclare it unconstitutional and to enjoin thePTC from performing its functions. A perusal of the arguments of the petitioners in both casesshows that they are essentially the same. Thepetitioners-legislators summarized them in thefollowing manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of theCongress to create a public office andappropriate funds for its operation.

(b) The provision of Book III, Chapter 10,

Section 31 of the Administrative Code of 1987cannot legitimize E.O. No. 1 because thedelegated authority of the President tostructurally reorganize the Office of thePresident to achieve economy, simplicity andefficiency does not include the power to createan entirely new public office which washitherto inexistent like the “Truth

Commission.”

(c) E.O. No. 1 illegally amended theConstitution and pertinent statutes when itvested the “Truth Commission” with quasi-

judicial powers duplicating, if not superseding,those of the Office of the Ombudsman createdunder the 1987 Constitution and theDepartment of Justice created under theAdministrative Code of 1987.

(d) E.O. No. 1 violates the equal protectionclause as it selectively targets for investigation

and prosecution officials and personnel of theprevious administration as if corruption is theirpeculiar species even as it excludes those of the other administrations, past and present,who may be indictable.

(e) The creation of the “Philippine TruthCommission of 2010” violates the consistentand general international practice of fourdecades wherein


States constitute truth commissions toexclusively investigate human rightsviolations, which customary practice formspart of the generally accepted principles of international law which the Philippines ismandated to adhere to pursuant to theDeclaration of Principles enshrined in theConstitution.

(f) The creation of the “Truth Commission” isan exercise in futility, an adventure in partisanhostility, a launching pad for trial/conviction bypublicity and a mere populist propaganda tomistakenly impress the people thatwidespread poverty will altogether vanish if corruption is eliminated without evenaddressing the other major causes of poverty.

(g) The mere fact that previous commissionswere not constitutionally challenged is of nomoment because neither laches nor estoppelcan bar an eventual question on theconstitutionality and validity of an executiveissuance or even a statute.”13



In their Consolidated Comment,14 therespondents, through the Office of the SolicitorGeneral (OSG), essentially questioned thelegal standing of petitioners and defended theassailed executive order with the followingarguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because thePresident’s executive power and power of control necessarily include the inherent powerto conduct investigations to ensure that lawsare faithfully executed and that, in any event,the Constitution, Revised Administrative Codeof 1987 (E.O. No. 292), 15 Presidential Decree(P.D.) No. 141616 (as amended by P.D. No.1772), R.A. No. 9970,17 and settled

jurisprudence that authorize the President tocreate or form such bodies.

2]

E.O. No. 1 does not usurp the power of Congress to appropriate funds because thereis no appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicateor supersede the functions of the Office of theOmbudsman (Ombudsman) and theDepartment of

Justice (DOJ), because it is a fact-finding bodyand not a quasi-judicial body and its functionsdo not duplicate, supplant or erode the latter’s

jurisdiction.

4] The Truth Commission does not violate theequal protection clause because it was validlycreated for laudable purposes.

The OSG then points to the continuedexistence and validity of other executiveorders and presidential issuances creatingsimilar bodies to justify the creation of the PTCsuch as Presidential Complaint and ActionCommission (PCAC) by President Ramon B.Magsaysay, Presidential Committee onAdministrative Performance Efficiency (PCAPE)by President Carlos P. Garcia and PresidentialAgency on Reform and Government Operations(PARGO) by President Ferdinand E. Marcos.18

From the petitions, pleadings, transcripts, andmemoranda, the following are the principalissues to be resolved:

1. Whether or not the petitioners have thelegal standing to file their respective petitionsand question Executive Order No. 1;

2. Whether or not Executive Order No. 1violates the principle of separation of powersby usurping the powers of Congress to createand to appropriate funds for public offices,agencies and commissions;

3. Whether or not Executive Order No. 1

supplants the powers of the Ombudsman andthe DOJ;

4. Whether or not Executive Order No. 1violates the equal protection clause; and

5. Whether or not petitioners are entitled toinjunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of theconstitutionality of Executive Order No. 1, the

Court needs to ascertain whether therequisites for a valid exercise of its power of judicial review are present.Like almost all powers conferred by theConstitution, the power of judicial review issubject to limitations, to wit: (1) there must bean actual case or controversy calling for theexercise of judicial power; (2) the personchallenging the act must have the standing toquestion the validity of the subject act orissuance; otherwise stated, he must have apersonal and substantial interest in the casesuch that he has sustained, or will sustain,direct injury as a result of its enforcement; (3)the question of constitutionality must be raisedat the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.19

Among all these limitations, only the legalstanding of the petitioners has been put atissue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of thepetitioners-legislators to file their petition forfailure to demonstrate their personal stake inthe outcome of the case. It argues that thepetitioners have not shown that they havesustained or are in danger of sustaining anypersonal injury attributable to the creation of the PTC. Not claiming to be the subject of thecommission’s investigations, petitioners willnot sustain injury in its creation or as a resultof its proceedings.20

The Court disagrees with the OSG in



questioning the legal standing of thepetitioners-legislators to assail Executive OrderNo. 1. Evidently, their petition primarilyinvokes usurpation of the power of theCongress as a body to which they belong asmembers. This certainly justifies their resolveto take the cudgels for Congress as aninstitution and present the complaints on the

usurpation of their power and rights asmembers of the legislature before the Court.As held in Philippine Constitution Association v.Enriquez,21

“To the extent the powers of Congress areimpaired, so is the power of each memberthereof, since his office confers a right toparticipate in the exercise of the powers of that institution.

An act of the Executive which injures theinstitution of Congress causes a derivative but

nonetheless substantial injury, which can bequestioned by a member of Congress. In sucha case, any member of Congress can have aresort to the courts.”

Indeed, legislators have a legal standing to seeto it that the prerogative, powers andprivileges vested by the Constitution in theiroffice remain inviolate. Thus, they are allowedto question the validity of any official actionwhich, to their mind, infringes on theirprerogatives as legislators.22

With regard to Biraogo, the OSG argues that,as a taxpayer, he has no standing to questionthe creation of the PTC and the budget for itsoperations.23 It emphasizes that the funds tobe used for the creation and operation of thecommission are to be taken from those fundsalready appropriated by Congress. Thus, theallocation and disbursement of funds for thecommission will not entail congressional actionbut will simply be an exercise of thePresident’s power over contingent funds.

As correctly pointed out by the OSG, Biraogohas not shown that he sustained, or is indanger of sustaining, any personal and directinjury attributable to the implementation of Executive Order No. 1. Nowhere in his petitionis an assertion of a clear right that may justifyhis clamor for the Court to exercise judicialpower and to wield the axe over presidentialissuances in defense of the Constitution. Thecase of David v. Arroyo24 explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as “a right of

appearance in a court of justice on a givenquestion.” In private suits, standing isgoverned by the “real-parties-in interest” ruleas contained in Section 2, Rule 3 of the 1997Rules of Civil Procedure, as amended. Itprovides that “every action must beprosecuted or defended in the name of thereal party in interest.” Accordingly, the “real-

party-in interest” is “the party who stands tobe benefited or injured by the judgment in thesuit or the party entitled to the avails of thesuit.” Succinctly put, the plaintiff’s standing isbased on his own right to the relief sought.

The difficulty of determining locus standiarises in public suits. Here, the plaintiff whoasserts a “public right” in assailing anallegedly illegal official action, does so as arepresentative of the general public. He maybe a person who is affected no differently fromany other person. He could be suing as a

“stranger,” or in the category of a “citizen,” or‘taxpayer.” In either case, he has toadequately show that he is entitled to seek

judicial protection. In other words, he has tomake out a sufficient interest in the vindicationof the public order and the securing of relief asa “citizen” or “taxpayer.

Case law in most jurisdictions now allows both“citizen” and “taxpayer” standing in publicactions. The distinction was first laid down inBeauchamp v. Silk, where it was held that theplaintiff in a taxpayer’s suit is in a differentcategory from the plaintiff in a citizen’s suit. Inthe former, the plaintiff is affected by theexpenditure of public funds, while in the latter,he is but the mere instrument of the publicconcern. As held by the New York SupremeCourt in People ex rel Case v. Collins: “Inmatter of mere public right, however…thepeople are the real parties…It is at least theright, if not the duty, of every citizen tointerfere and see that a public offence beproperly pursued and punished, and that apublic grievance be remedied.” With respect totaxpayer’s suits, Terr v. Jordan held that “theright of a citizen and a taxpayer to maintain anaction in courts to restrain the unlawful use of public funds to his injury cannot be denied.”

However, to prevent just about any personfrom seeking judicial interference in anyofficial policy or act with which he disagreedwith, and thus hinders the activities of governmental agencies engaged in publicservice, the United State Supreme Court laiddown the more stringent “direct injury” test inEx Parte Levitt, later reaffirmed in Tileston v.



Ullman. The same Court ruled that for aprivate individual to invoke the judicial powerto determine the validity of an executive orlegislative action, he must show that he hassustained a direct injury as a result of thataction, and it is not sufficient that he has ageneral interest common to all members of thepublic.

This Court adopted the “direct injury” test inour jurisdiction. In People v. Vera, it held thatthe person who impugns the validity of astatute must have “a personal and substantialinterest in the case such that he hassustained, or will sustain direct injury as aresult.” The Vera doctrine was upheld in alitany of cases, such as, Custodio v. Presidentof the Senate, Manila Race Horse Trainers’Association v. De la Fuente, Pascual v.Secretary of Public Works and Anti-ChineseLeague of the Philippines v. Felix. [Emphases

included. Citations omitted]

Notwithstanding, the Court leans on thedoctrine that “the rule on standing is a matterof procedure, hence, can be relaxed fornontraditional plaintiffs like ordinary citizens,taxpayers, and legislators when the publicinterest so requires, such as when the matteris of transcendental importance, of overreaching significance to society, or of paramount public interest.”25

Thus, in Coconut Oil Refiners Association, Inc.v. Torres,26 the Court held that in cases of paramount importance where seriousconstitutional questions are involved, thestanding requirements may be relaxed and asuit may be allowed to prosper even wherethere is no direct injury to the party claimingthe right of judicial review. In the firstEmergency Powers Cases,27 ordinary citizensand taxpayers were allowed to question theconstitutionality of several executive ordersalthough they had only an indirect and generalinterest shared in common with the public.

The OSG claims that the determinants of transcendental importance28 laid down inCREBA v. ERC and Meralco29 are non-existentin this case. The Court, however, finds reasonin Biraogo’s assertion that the petition coversmatters of transcendental importance to justifythe exercise of jurisdiction by the Court. Thereare constitutional issues in the petition whichdeserve the attention of this Court in view of their seriousness, novelty and weight asprecedents. Where the issues are of transcendental and paramount importance not

only to the public but also to the Bench andthe Bar, they should be resolved for theguidance of all.30 Undoubtedly, the Filipinopeople are more than interested to know thestatus of the President’s first effort to bringabout a promised change to the country. TheCourt takes cognizance of the petition not dueto overwhelming political undertones that

clothe the issue in the eyes of the public, butbecause the Court stands firm in its oath toperform its constitutional duty to settle legalcontroversies with overreaching significance tosociety.

Power of the President to Create the TruthCommission

In his memorandum in G.R. No. 192935,Biraogo asserts that the Truth Commission is apublic office and not merely an adjunct body of the Office of the President.31 Thus, in order

that the President may create a public officehe must be empowered by the Constitution, astatute or an authorization vested in him bylaw. According to petitioner, such powercannot be presumed32 since there is noprovision in the Constitution or any specific lawthat authorizes the President to create a truthcommission.33 He adds that Section 31 of theAdministrative Code of 1987, granting thePresident the continuing authority toreorganize his office, cannot serve as basis forthe creation of a truth commission consideringthe aforesaid provision merely uses verbs suchas “reorganize,” “transfer,” “consolidate,”“merge,” and “abolish.”34 Insofar as it vests inthe President the plenary power to reorganizethe Office of the President to the extent of creating a public office, Section 31 isinconsistent with the principle of separation of powers enshrined in the Constitution and mustbe deemed repealed upon the effectivitythereof.35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a publicoffice lies within the province of Congress andnot with the executive branch of government.

They maintain that the delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does notpermit the President to create a public office,much less a truth commission; 2) is limited tothe reorganization of the administrativestructure of the Office of the President; 3) islimited to the restructuring of the internalorgans of the Office of the President Proper,transfer of functions and transfer of agencies;and 4) only to achieve simplicity, economy and



efficiency.36 Such continuing authority of thePresident to reorganize his office is limited,and by issuing Executive Order No. 1, thePresident overstepped the limits of thisdelegated authority.

The OSG counters that there is nothingexclusively legislative about the creation by

the President of a fact-finding body such as atruth commission. Pointing to numerous officescreated by past presidents, it argues that theauthority of the President to create publicoffices within the Office of the President Properhas long been recognized.37 According to theOSG, the Executive, just like the other twobranches of government, possesses theinherent authority to create fact-findingcommittees to assist it in the performance of its constitutionally mandated functions and inthe exercise of its administrative functions.38

This power, as the OSG explains it, is but an

adjunct of the plenary powers wielded by thePresident under Section 1 and his power of control under Section 17, both of Article VII of the Constitution.39

It contends that the President is necessarilyvested with the power to conduct fact-findinginvestigations, pursuant to his duty to ensurethat all laws are enforced by public officialsand employees of his department and in theexercise of his authority to assume directly thefunctions of the executive department, bureauand office, or interfere with the discretion of his officials.40 The power of the President toinvestigate is not limited to the exercise of hispower of control over his subordinates in theexecutive branch, but extends further in theexercise of his other powers, such as his powerto discipline subordinates,41 his power for rulemaking, adjudication and licensing purposes42and in order to be informed on matters whichhe is entitled to know.43

The OSG also cites the recent case of Banda v.Ermita,44 where it was held that the Presidenthas the power to reorganize the offices andagencies in the executive department in linewith his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executiveoffices under existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the power tocreate offices. For the OSG, the President maycreate the PTC in order to, among others, put aclosure to the reported large scale graft andcorruption in the government.45

The question, therefore, before the Court isthis: Does the creation of the PTC fall withinthe ambit of the power to reorganize asexpressed in Section 31 of the RevisedAdministrative Code? Section 31 contemplates“reorganization” as limited by the followingfunctional and structural lines: (1)

restructuring the internal organization of the

Office of the President Proper by abolishing,consolidating or merging units thereof ortransferring functions from one unit toanother; (2) transferring any function underthe Office of the President to any otherDepartment/Agency or vice versa; or (3)transferring any agency under the Office of thePresident to any other Department/Agency orvice versa. Clearly, the provision refers toreduction of personnel, consolidation of offices, or abolition thereof by reason of

economy or redundancy of functions. Thesepoint to situations where a body or an office isalready existent but a modification oralteration thereof has to be effected. Thecreation of an office is nowhere mentioned,much less envisioned in said provision.Accordingly, the answer to the question is inthe negative.

To say that the PTC is borne out of arestructuring of the Office of the Presidentunder Section 31 is a misplaced supposition,even in the plainest meaning attributable tothe term “restructure”—an “alteration of anexisting structure.” Evidently, the PTC was notpart of the structure of the Office of thePresident prior to the enactment of ExecutiveOrder No. 1. As held in Buklod ng KawaningEIIB v. Hon. Executive Secretary,46

But of course, the list of legal basis authorizingthe President to reorganize any department oragency in the executive branch does not haveto end here. We must not lose sight of the verysource of the power—that which constitutes anexpress grant of power. Under Section 31,Book III of Executive Order No. 292 (otherwiseknown as the Administrative Code of 1987),“the President, subject to the policy in theExecutive Office and in order to achievesimplicity, economy and efficiency, shall havethe continuing authority to reorganize theadministrative structure of the Office of thePresident.” For this purpose, he may transferthe functions of other Departments orAgencies to the Office of the President. InCanonizado v. Aguirre [323 SCRA 312 (2000)],we ruled that reorganization “involves the



reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” It takesplace when there is an alteration of theexisting structure of government offices orunits therein, including the lines of control,authority and responsibility between them.

The

EIIB is a bureau attached to the Department of Finance. It falls under the Office of thePresident. Hence, it is subject to thePresident’s continuing authority to reorganize.[Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President’s power of control.Control is essentially the power to alter ormodify or nullify or set aside what asubordinate officer had done in theperformance of his duties and to substitute the

judgment of the former with that of thelatter.47 Clearly, the power of control isentirely different from the power to createpublic offices. The former is inherent in theExecutive, while the latter finds basis fromeither a valid delegation from Congress, or hisinherent duty to faithfully execute the laws.

The question is this, is there a valid delegationof power from Congress, empowering thePresident to create a public office?

According to the OSG, the power to create atruth commission pursuant to the aboveprovision finds statutory basis under P.D. 1416,as amended by P.D. No. 1772.48 The said lawgranted the President the continuing authorityto reorganize the national government,including the power to group, consolidatebureaus and agencies, to abolish offices, totransfer functions, to create and classifyfunctions, services and activities, transferappropriations, and to standardize salaries andmaterials. This decree, in relation to Section20, Title I, Book III of E.O. 292 has beeninvoked in several cases such as Larin v.Executive Secretary.49

The Court, however, declines to recognize P.D.No. 1416 as a justification for the President tocreate a public office. Said decree is alreadystale, anachronistic and inoperable. P.D. No.1416 was a delegation to then PresidentMarcos of the authority to reorganize theadministrative structure of the nationalgovernment including the power to createoffices and transfer appropriations pursuant toone of the purposes of the decree, embodied

in its last “Whereas” clause:

WHEREAS, the transition towards theparliamentary form of government willnecessitate flexibility in the organization of thenational government.

Clearly, as it was only for the purpose of

providing manageability and resiliency duringthe interim, P.D. No. 1416, as amended by P.D.No. 1772, became functus oficio upon theconvening of the First Congress, as expresslyprovided in Section 6, Article XVIII of the 1987Constitution. In fact, even the Solicitor Generalagrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D.1416 was enacted was the last whereas clauseof P.D. 1416 says “it was enacted to preparethe transition from presidential toparliamentary. Now, in a parliamentary form of

government, the legislative and executivepowers are fused, correct?

SOLICITOR GENERAL CADIZ:Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why,that P.D. 1416 was issued. Now would youagree with me that P.D. 1416 should not beconsidered effective anymore upon thepromulgation, adoption, ratification of the1987 Constitution.

SOLICITOR GENERAL CADIZ:Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire NationalGovernment is deemed repealed, at least,upon the adoption of the 1987 Constitution,correct.

SOLICITOR GENERAL CADIZ: Yes, YourHonor.50

While the power to create a truth commissioncannot pass muster on the basis of P.D. No.1416 as amended by P.D. No. 1772, thecreation of the PTC finds justification underSection 17, Article VII of the Constitution,imposing upon the President the duty toensure that the laws are faithfully executed.Section 17 reads:

Section 17. The President shall have controlof all the executive departments, bureaus, andoffices. He shall ensure that the laws befaithfully executed. (Emphasis supplied).



As correctly pointed out by the respondents,the allocation of power in the three principalbranches of government is a grant of allpowers inherent in them. The President’spower to conduct investigations to aid him inensuring the faithful execution of laws—in thiscase, fundamental laws on publicaccountability and transparency—is inherent in

the President’s powers as the Chief Executive. That the authority of the President to conductinvestigations and to create bodies to executethis power is not explicitly mentioned in theConstitution or in statutes does not mean thathe is bereft of such authority.51 As explainedin the landmark case of Marcos v.Manglapus:52

x x x. The 1987 Constitution, however, broughtback the presidential system of governmentand restored the separation of legislative,executive and judicial powers by their actual

distribution among three distinct branches of government with provision for checks andbalances.

It would not be accurate, however, to statethat “executive power” is the power to enforcethe laws, for the President is head of state aswell as head of government and whateverpowers inhere in such positions pertain to theoffice unless the Constitution itself withholdsit. Furthermore, the Constitution itself providesthat the execution of the laws is only one of the powers of the President. It also grants thePresident other powers that do not involve theexecution of any provision of law, e.g., hispower over the country’s foreign relations.

On these premises, we hold the view thatalthough the 1987 Constitution imposeslimitations on the exercise of specific powersof the President, it maintains intact what istraditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited onlyto the specific powers enumerated in theConstitution. In other words, executive poweris more than the sum of specific powers soenumerated.

It has been advanced that whatever powerinherent in the government that is neitherlegislative nor judicial has to be executive. x xx.

Indeed, the Executive is given much leeway inensuring that our laws are faithfully executed.As stated above, the powers of the Presidentare not limited to those specific powers under

the Constitution.53 One of the recognizedpowers of the President granted pursuant tothis constitutionally-mandated duty is thepower to create ad hoc committees. This flowsfrom the obvious need to ascertain facts anddetermine if laws have been faithfullyexecuted. Thus, in Department of Health v.Camposano,54 the authority of the President

to issue Administrative Order No. 298, creatingan investigative committee to look into theadministrative charges filed against theemployees of the Department of Health for theanomalous purchase of medicines was upheld.In said case, it was ruled:

The Chief Executive’s power to create the Adhoc Investigating Committee cannot bedoubted. Having been constitutionally grantedfull control of the Executive Department, towhich respondents belong, the President hasthe obligation to ensure that all executive

officials and employees faithfully comply withthe law. With AO 298 as mandate, the legalityof the investigation is sustained. Such validityis not affected by the fact that theinvestigating team and the PCAGC had thesame composition, or that the former used theoffices and facilities of the latter in conductingthe inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist isto allow an inquiry into matters which thePresident is entitled to know so that he can beproperly advised and guided in theperformance of his duties relative to theexecution and enforcement of the laws of theland. And if history is to be revisited, this wasalso the objective of the investigative bodiescreated in the past like the PCAC, PCAPE,PARGO, the Feliciano Commission, the MeloCommission and the Zeñarosa Commission.

There being no changes in the governmentstructure, the Court is not inclined to declaresuch executive power as non-existent justbecause the direction of the political windshave changed.

On the charge that Executive Order No. 1transgresses the power of Congress toappropriate funds for the operation of a publicoffice, suffice it to say that there will be noappropriation but only an allotment orallocations of existing funds alreadyappropriated. Accordingly, there is nousurpation on the part of the Executive of thepower of Congress to appropriate funds.Further, there is no need to specify the amountto be earmarked for the operation of the



commission because, in the words of theSolicitor General, “whatever funds theCongress has provided for the Office of thePresident will be the very source of the fundsfor the commission.”55 Moreover, since theamount that would be allocated to the PTCshall be subject to existing auditing rules andregulations, there is no impropriety in the

funding.

Power of the Truth Commission to Investigate

The President’s power to conductinvestigations to ensure that laws are faithfullyexecuted is well recognized. It flows from thefaithful-execution clause of the Constitutionunder Article VII, Section 17 thereof.56 As theChief Executive, the president represents thegovernment as a whole and sees to it that alllaws are enforced by the officials andemployees of his department. He has the

authority to directly assume the functions of the executive department.57

Invoking this authority, the Presidentconstituted the PTC to primarily investigatereports of graft and corruption and torecommend the appropriate action. Aspreviously stated, no quasi-judicial powershave been vested in the said body as it cannotadjudicate rights of persons who come beforeit. It has been said that “Quasi-judicial powersinvolve the power to hear and determinequestions of fact to which the legislative policyis to apply and to decide in accordance withthe standards laid down by law itself inenforcing and administering the same law.”58In simpler terms, judicial discretion is involvedin the exercise of these quasi-judicial power,such that it is exclusively vested in the

judiciary and must be clearly authorized by thelegislature in the case of administrativeagencies.

The distinction between the power toinvestigate and the power to adjudicate wasdelineated by the Court in Cariño v.Commission on Human Rights.59 Thus:

“Investigate,” commonly understood, meansto examine, explore, inquire or delve or probeinto, research on, study. The dictionarydefinition of “investigate” is “to observe orstudy closely: inquire into systematically: “tosearch or inquire into: x x to subject to anofficial probe x x: to conduct an officialinquiry.” The purpose of investigation, of course, is to discover, to find out, to learn,obtain information. Nowhere included or

intimated is the notion of settling, deciding orresolving a controversy involved in the factsinquired into by application of the law to thefacts established by the inquiry.

The legal meaning of “investigate” isessentially the same: “(t)o follow up step bystep by patient inquiry or observation. To trace

or track; to search into; to examine and inquireinto with care and accuracy; to find out bycareful inquisition; examination; the taking of evidence; a legal inquiry;” “to inquire; to makean investigation,” “investigation” being in turndescribed as “(a)n administrative function, theexercise of which ordinarily does not require ahearing. 2 Am J2d Adm L Sec. 257; x x aninquiry, judicial or otherwise, for the discoveryand collection of facts concerning a certainmatter or matters.”

“Adjudicate,” commonly or popularly

understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on,settle. The dictionary defines the term as “tosettle finally (the rights and duties of theparties to a court case) on the merits of issuesraised: x x to pass judgment on: settle

judicially: x x act as judge.” And “adjudge”means “to decide or rule upon as a judge orwith judicial or quasi-judicial powers: x x toaward or grant judicially in a case of controversy x x.”

In the legal sense, “adjudicate” means: “Tosettle in the exercise of judicial authority. Todetermine finally. Synonymous with adjudge inits strictest sense;” and “adjudge” means: “Topass on judicially, to decide, settle or decree,or to sentence or condemn. x x. Implies a

judicial determination of a fact, and the entryof a judgment.” [Italics included. CitationsOmitted]

Fact-finding is not adjudication and it cannotbe likened to the judicial function of a court of

justice, or even a quasi-judicial agency oroffice. The function of receiving evidence andascertaining therefrom the facts of acontroversy is not a judicial function. To beconsidered as such, the act of receivingevidence and arriving at factual conclusions ina controversy must be accompanied by theauthority of applying the law to the factualconclusions to the end that the controversymay be decided or resolved authoritatively,finally and definitively, subject to appeals ormodes of review as may be provided by law.60Even respondents themselves admit that thecommission is bereft of any quasi-judicial



power.61

Contrary to petitioners’ apprehension, the PTCwill not supplant the Ombudsman or the DOJ orerode their respective powers. If at all, theinvestigative function of the commission willcomplement those of the two offices. Aspointed out by the Solicitor General, the

recommendation to prosecute is but aconsequence of the overall task of thecommission to conduct a fact-findinginvestigation.”62The actual prosecution of suspected offenders, much less adjudicationon the merits of the charges against them,63is certainly not a function given to thecommission. The phrase, “when in the courseof its investigation,” under Section 2(g),highlights this fact and gives credence to acontrary interpretation from that of thepetitioners. The function of determiningprobable cause for the filing of the appropriate

complaints before the courts remains to bewith the DOJ and the Ombudsman.64

At any rate, the Ombudsman’s power toinvestigate under R.A. No. 6770 is notexclusive but is shared with other similarlyauthorized government agencies. Thus, in thecase of Ombudsman v. Galicia,65 it waswritten:

This power of investigation granted to theOmbudsman by the 1987 Constitution and TheOmbudsman Act is not exclusive but is sharedwith other similarly authorized governmentagencies such as the PCGG and judges of municipal trial courts and municipal circuit trialcourts. The power to conduct preliminaryinvestigation on charges against publicemployees and officials is likewiseconcurrently shared with the Department of

Justice. Despite the passage of the LocalGovernment Code in 1991, the Ombudsmanretains concurrent jurisdiction with the Officeof the President and the local Sanggunians toinvestigate complaints against local electiveofficials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravenethe power of the Ombudsman to investigatecriminal cases under Section 15 (1) of R.A. No.6770, which states:

(1) Investigate and prosecute on its own oron 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 orinefficient. It has primary jurisdiction over

cases cognizable by the Sandiganbayan and,in the exercise of its primary jurisdiction, itmay take over, at any stage, from anyinvestigatory agency of government, theinvestigation of such cases. [Emphasessupplied]

The act of investigation by the Ombudsman as

enunciated above contemplates the conduct of a preliminary investigation or thedetermination of the existence of probablecause. This is categorically out of the PTC’ssphere of functions. Its power to investigate islimited to obtaining facts so that it can adviseand guide the President in the performance of his duties relative to the execution andenforcement of the laws of the land. In thisregard, the PTC commits no act of usurpationof the Ombudsman’s primordial duties.

The same holds true with respect to the DOJ.

Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised AdministrativeCode is by no means exclusive and, thus, canbe shared with a body likewise tasked toinvestigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can itbe inferred that the findings of the PTC are tobe accorded conclusiveness. Much like itspredecessors, the Davide Commission, theFeliciano Commission and the ZeñarosaCommission, its findings would, at best, berecommendatory in nature. And being so, theOmbudsman and the DOJ have a wider degreeof latitude to decide whether or not to rejectthe recommendation. These offices, therefore,are not deprived of their mandated duties butwill instead be aided by the reports of the PTCfor possible indictments for violations of graftlaws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commissionfalls within the investigative power of thePresident, the Court finds difficulty inupholding the constitutionality of ExecutiveOrder No. 1 in view of its apparenttransgression of the equal protection clauseenshrined in Section 1, Article III (Bill of Rights)of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life,liberty, or property without due process of law,nor shall any person be denied the equalprotection of the laws.

The petitioners assail Executive Order No. 1



because it is violative of this constitutionalsafeguard. They contend that it does not applyequally to all members of the same class suchthat the intent of singling out the “previousadministration” as its sole object makes thePTC an “adventure in partisan hostility.”66

Thus, in order to be accorded with validity, thecommission must also cover reports of graft

and corruption in virtually all administrationsprevious to that of former President Arroyo.67

The petitioners argue that the search for truthbehind the reported cases of graft andcorruption must encompass acts committednot only during the administration of formerPresident Arroyo but also during prioradministrations where the “same magnitude of controversies and anomalies”68 were reportedto have been committed against the Filipinopeople. They assail the classificationformulated by the respondents as it does not

fall under the recognized exceptions becausefirst, “there is no substantial distinctionbetween the group of officials targeted forinvestigation by Executive Order No. 1 andother groups or persons who abused theirpublic office for personal gain; and second, theselective classification is not germane to thepurpose of Executive Order No. 1 to endcorruption.”69 In order to attain constitutionalpermission, the petitioners advocate that thecommission should deal with “graft andgrafters prior and subsequent to the Arroyoadministration with the strong arm of the lawwith equal force.”70

Position of respondents

According to respondents, while ExecutiveOrder No. 1 identifies the “previousadministration” as the initial subject of theinvestigation, following Section 17 thereof, thePTC will not confine itself to cases of largescale graft and corruption solely during thesaid administration.71 Assuming arguendothat the commission would confine itsproceedings to officials of the previousadministration, the petitioners argue that nooffense is committed against the equalprotection clause for “the segregation of thetransactions of public officers during theprevious administration as possible subjects of investigation is a valid classification based onsubstantial distinctions and is germane to theevils which the Executive Order seeks tocorrect.”72 To distinguish the Arroyoadministration from past administrations, itrecited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft andcorruption in the previous administration whichhave eroded public confidence in publicinstitutions. There is, therefore, an urgent callfor the determination of the truth regardingcertain reports of large scale graft andcorruption in the government and to put a

closure to them by the filing of the appropriatecases against those involved, if warranted, andto deter others from committing the evil,restore the people’s faith and confidence inthe Government and in their public servants.

Second. The segregation of the precedingadministration as the object of fact-finding iswarranted by the reality that unlike withadministrations long gone, the currentadministration will most likely bear theimmediate consequence of the policies of theprevious administration.

Third. The classification of the previousadministration as a separate class forinvestigation lies in the reality that theevidence of possible criminal activity, theevidence that could lead to recovery of publicmonies illegally dissipated, the policy lessonsto be learned to ensure that anti-corruptionlaws are faithfully executed, are more easilyestablished in the regime that immediatelyprecede the current administration.

Fourth. Many administrations subject thetransactions of their predecessors toinvestigations to provide closure to issues thatare pivotal to national life or even as a routinemeasure of due diligence and goodhousekeeping by a nascent administration likethe Presidential Commission on GoodGovernment (PCGG), created by the latePresident Corazon C. Aquino under ExecutiveOrder No. 1 to pursue the recovery of ill-gottenwealth of her predecessor former PresidentFerdinand Marcos and his cronies, and theSaguisag Commission created by formerPresident Joseph Estrada under AdministrativeOrder No, 53, to form an ad-hoc andindependent citizens’ committee to investigateall the facts and circumstances surrounding“Philippine Centennial projects” of hispredecessor, former President Fidel V.Ramos.73 [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which thisgovernment was founded is that of theequality of right which is embodied in Section



1, Article III of the 1987 Constitution. Theequal protection of the laws is embraced in theconcept of due process, as every unfairdiscrimination offends the requirements of

justice and fair play. It has been embodied in aseparate clause, however, to provide for amore specific guaranty against any form of undue favoritism or hostility from the

government. 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 isthe equal protection clause.74

“According to a long line of decisions, equalprotection simply requires that all persons orthings similarly situated should be treatedalike, both as to rights conferred andresponsibilities imposed.”75 It “requires publicbodies and institutions to treat similarly

situated individuals in a similar manner.”76“The purpose of the equal protection clause isto secure every person within a state’s

jurisdiction against intentional and arbitrarydiscrimination, whether occasioned by theexpress terms of a statue or by its improperexecution through the state’s duly constitutedauthorities.”77 “In other words, the concept of equal justice under the law requires the stateto govern impartially, and it may not drawdistinctions between individuals solely ondifferences that are irrelevant to a legitimategovernmental objective.”78

The equal protection clause is aimed at allofficial state actions, not just those of thelegislature.79 Its inhibitions cover all thedepartments of the government including thepolitical and executive departments, andextend to all actions of a state denying equalprotection of the laws, through whateveragency or whatever guise is taken.80

It, however, does not require the universalapplication of the laws to all persons or thingswithout distinction. What it simply requires isequality among equals as determinedaccording to a valid classification. Indeed, theequal protection clause permits classification.Such classification, however, to be valid mustpass the test of reasonableness. The test hasfour requisites: (1) The classification rests onsubstantial distinctions; (2) It is germane tothe purpose of the law; (3) It is not limited toexisting conditions only; and (4) It appliesequally to all members of the same class.81“Superficial differences do not make for a validclassification.”82

For a classification to meet the requirementsof constitutionality, it must include or embraceall persons who naturally belong to theclass.83 “The classification will be regarded asinvalid if all the members of the class are notsimilarly treated, both as to rights conferredand obligations imposed. It is not necessary

that the classification be made with absolutesymmetry, in the sense that the members of the class should possess the samecharacteristics in equal degree. Substantialsimilarity will suffice; and as long as this isachieved, all those covered by theclassification are to be treated equally. Themere fact that an individual belonging to aclass differs from the other members, as longas that class is substantially distinguishablefrom all others, does not justify the non-application of the law to him.”84

The classification must not be based onexisting circumstances only, or so constitutedas to preclude addition to the number includedin the class. It must be of such a nature as toembrace all those who may thereafter be insimilar circumstances and conditions. It mustnot leave out or “underinclude” those thatshould otherwise fall into a certainclassification. As elucidated in Victoriano v.Elizalde Rope Workers' Union85 and reiteratedin a long line of cases,86

The guaranty of equal protection of the laws isnot a guaranty of equality in the application of the laws upon all citizens of the state. It is not,therefore, a requirement, in order to avoid theconstitutional prohibition against inequality,that every man, woman and child should beaffected alike by a statute. Equality of operation of statutes does not meanindiscriminate operation on persons merely assuch, but on persons according to thecircumstances surrounding them. Itguarantees equality, not identity of rights. TheConstitution does not require that things whichare different in fact be treated in law as thoughthey were the same. The equal protectionclause does not forbid discrimination as tothings that are different. It does not prohibitlegislation which is limited either in the objectto which it is directed or by the territory withinwhich it is to operate.

The equal protection of the laws clause of theConstitution allows classification. Classificationin law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they



agree with one another in certain particulars. Alaw is not invalid because of simple inequality.

The very idea of classification is that of inequality, so that it goes without saying thatthe mere fact of inequality in no mannerdetermines the matter of constitutionality. Allthat is required of a valid classification is thatit be reasonable, which means that the

classification should be based on substantialdistinctions which make for real differences,that it must be germane to the purpose of thelaw; that it must not be limited to existingconditions only; and that it must apply equallyto each member of the class. This Court hasheld that the standard is satisfied if theclassification or distinction is based on areasonable foundation or rational basis and isnot palpably arbitrary. [Citations omitted]

Applying these precepts to this case, ExecutiveOrder No. 1 should be struck down as violative

of the equal protection clause. The clearmandate of the envisioned truth commission isto investigate and find out the truth“concerning the reported cases of graft andcorruption during the previousadministration”87 only. The intent to single outthe previous administration is plain, patentand manifest. Mention of it has been made inat least three portions of the questionedexecutive order. Specifically, these are:

“WHEREAS, there is a need for a separatebody dedicated solely to investigating andfinding out the truth concerning the reportedcases of graft and corruption during theprevious administration, and which willrecommend the prosecution of the offendersand secure justice for all;

SECTION 1. Creation of a Commission.— There is hereby created the PHILIPPINE TRUTHCOMMISSION, hereinafter referred to as the“COMMISSION,” which shall primarily seek andfind the truth on, and toward this end,investigate reports of graft and corruption of such scale and magnitude that shock andoffend the moral and ethical sensibilities of thepeople, committed by public officers andemployees, their co-principals, accomplicesand accessories from the private sector, if any,during the previous administration; andthereafter recommend the appropriate actionor measure to be taken thereon to ensure thatthe full measure of justice shall be servedwithout fear or favor.

SECTION 2. Powers and Functions.—TheCommission, which shall have all the powers of

an investigative body under Section 37,Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct athorough fact-finding investigation of reportedcases of graft and corruption referred to inSection 1, involving third level public officersand higher, their co-principals, accomplicesand accessories from the private sector, if any,

during the previous administration andthereafter submit its finding andrecommendations to the President, Congressand the Ombudsman.” [Emphases supplied]

In this regard, it must be borne in mind thatthe Arroyo administration is but just a memberof a class, that is, a class of pastadministrations. It is not a class of its own. Notto include past administrations similarlysituated constitutes arbitrariness which theequal protection clause cannot sanction. Suchdiscriminating differentiation clearly

reverberates to label the commission as avehicle for vindictiveness and selectiveretribution.

Though the OSG enumerates severaldifferences between the Arroyo administrationand other past administrations, thesedistinctions are not substantial enough tomerit the restriction of the investigation to the“previous administration” only. The reports of widespread corruption in the Arroyoadministration cannot be taken as basis fordistinguishing said administration from earlieradministrations which were also blemished bysimilar widespread reports of impropriety. Theyare not inherent in, and do not inure solely to,the Arroyo administration. As Justice IsaganiCruz put it, “Superficial differences do notmake for a valid classification.”88

The public needs to be enlightened whyExecutive Order No. 1 chooses to limit thescope of the intended investigation to theprevious administration only. The OSGventures to opine that “to include other pastadministrations, at this point, mayunnecessarily overburden the commission andlead it to lose its effectiveness.”89 The reasongiven is specious. It is without doubt irrelevantto the legitimate and noble objective of thePTC to stamp out or “end corruption and theevil it breeds.”90

The probability that there would be difficulty inunearthing evidence or that the earlier reportsinvolving the earlier administrations werealready inquired into is beside the point.Obviously, deceased presidents and cases



which have already prescribed can no longerbe the subjects of inquiry by the PTC. Neitheris the PTC expected to conduct simultaneousinvestigations of previous administrations,given the body’s limited time and resources.“The law does not require the impossible” (Lexnon cogit ad impossibilia).91

Given the foregoing physical and legalimpossibility, the Court logically recognizes theunfeasibility of investigating almost acentury’s worth of graft cases. However, thefact remains that Executive Order No. 1 suffersfrom arbitrary classification. The PTC, to betrue to its mandate of searching for the truth,must not exclude the other pastadministrations. The PTC must, at least, havethe authority to investigate all pastadministrations. While reasonable prioritizationis permitted, it should not be arbitrary lest itbe struck down for being unconstitutional. In

the often quoted language of Yick Wo v.Hopkins,92

Though the law itself be fair on its face andimpartial in appearance, yet, if applied andadministered by public authority with an evileye and an unequal hand, so as practically tomake unjust and illegal discriminationsbetween persons in similar circumstances,material to their rights, the denial of equal

justice is still within the prohibition of theconstitution. [Emphasis supplied]

It could be argued that considering that thePTC is an ad hoc body, its scope is limited. TheCourt, however, is of the considered view thatalthough its focus is restricted, theconstitutional guarantee of equal protectionunder the laws should not in any way becircumvented. The Constitution is thefundamental and paramount law of the nationto which all other laws must conform and inaccordance with which all private rightsdetermined and all public authorityadministered.93 Laws that do not conform tothe Constitution should be stricken down forbeing unconstitutional.94 While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive OrderNo. 1, to survive, must be read together withthe provisions of the Constitution. To excludethe earlier administrations in the guise of “substantial distinctions” would only confirmthe petitioners’ lament that the subjectexecutive order is only an “adventure inpartisan hostility.” In the case of US v.Cyprian,95 it was written: “A rather limitednumber of such classifications have routinely

been held or assumed to be arbitrary; thoseinclude: race, national origin, gender, politicalactivity or membership in a political party,union activity or membership in a labor union,or more generally the exercise of firstamendment rights.”

To reiterate, in order for a classification to

meet the requirements of constitutionality, itmust include or embrace all persons whonaturally belong to the class.96 “Such aclassification must not be based on existingcircumstances only, or so constituted as topreclude additions to the number includedwithin a class, but must be of such a nature asto embrace all those who may thereafter be insimilar circumstances and conditions.Furthermore, all who are in situations andcircumstances which are relative to thediscriminatory legislation and which areindistinguishable from those of the members

of the class must be brought under theinfluence of the law and treated by it in thesame way as are the members of the class.”97

The Court is not unaware that “mereunderinclusiveness is not fatal to the validityof a law under the equal protection clause.”98“Legislation is not unconstitutional merelybecause it is not all-embracing and does notinclude all the evils within its reach.”99 It hasbeen written that a regulation challengedunder the equal protection clause is not devoidof a rational predicate simply because ithappens to be incomplete.100 In severalinstances, the underinclusiveness was notconsidered a valid reason to strike down a lawor regulation where the purpose can beattained in future legislations or regulations.

These cases refer to the “step by step”process.101 “With regard to equal protectionclaims, a legislature does not run the risk of losing the entire remedial scheme simplybecause it fails, through inadvertence orotherwise, to cover every evil that mightconceivably have been attacked.”102

In Executive Order No. 1, however, there is noinadvertence. That the previous administrationwas picked out was deliberate and intentionalas can be gleaned from the fact that it wasunderscored at least three times in theassailed executive order. It must be noted thatExecutive Order No. 1 does not even mentionany particular act, event or report to befocused on unlike the investigativecommissions created in the past. “The equalprotection clause is violated by purposeful andintentional discrimination.”103



To disprove petitioners’ contention that thereis deliberate discrimination, the OSG clarifiesthat the commission does not only confineitself to cases of large scale graft andcorruption committed during the previousadministration.104 The OSG points to Section17 of Executive Order No. 1, which provides:

“SECTION 17. Special Provision ConcerningMandate.—If and when in the judgment of thePresident there is a need to expand themandate of the Commission as defined inSection 1 hereof to include the investigation of cases and instances of graft and corruptionduring the prior administrations, such mandatemay be so extended accordingly by way of asupplemental Executive Order.

The Court is not convinced. Although Section17 allows the President the discretion to

expand the scope of investigations of the PTCso as to include the acts of graft andcorruption committed in other pastadministrations, it does not guarantee thatthey would be covered in the future. Suchexpanded mandate of the commission will stilldepend on the whim and caprice of thePresident. If he would decide not to includethem, the section would then be meaningless.

This will only fortify the fears of the petitionersthat the Executive Order No. 1 was “crafted totailor-fit the prosecution of officials andpersonalities of the Arroyo administration.”105

The Court tried to seek guidance from thepronouncement in the case of Virata v.Sandiganbayan,106 that the “PCGG Charter(composed of Executive Orders Nos. 1, 2 and14) does not violate the equal protectionclause.” The decision, however, was devoid of any discussion on how such conclusorystatement was arrived at, the principal issue insaid case being only the sufficiency of a causeof action.

A final word

The issue that seems to take center stage atpresent is – whether or not the Supreme Court,in the exercise of its constitutionally madatedpower of Judicial Review with respect to recentinitiatives of the legislature and the executivedepartment, is exercising undue interference.Is the Highest Tribunal, which is expected to bethe protector of the Constitution, itself guilty of violating fundamental tenets like the doctrineof separation of powers? Time and again, thisissue has been addressed by the Court, but it

seems that the present political situation callsfor it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the nation’s thrust toprogress.

The Philippine Supreme Court, according toArticle VIII, Section 1 of the 1987 Constitution,

is vested with Judicial Power that “includes theduty of the courts of justice to settle actualcontroversies involving rights which are legallydemandable and enforceable, and todetermine whether or not there has been agrave of abuse of discretion amounting to lackor excess of jurisdiction on the part of anybranch or instrumentality of the government.”

Furthermore, in Section 4(2) thereof, it isvested with the power of judicial review whichis the power to declare a treaty, internationalor executive agreement, law, presidential

decree, proclamation, order, instruction,ordinance, or regulation unconstitutional. Thispower also includes the duty to rule on theconstitutionality of the application, oroperation of presidential decrees,proclamations, orders, instructions,ordinances, and other regulations. Theseprovisions, however, have been fertile groundsof conflict between the Supreme Court, on onehand, and the two co-equal bodies of government, on the other. Many times theCourt has been accused of assertingsuperiority over the other departments.

To answer this accusation, the words of JusticeLaurel would be a good source of enlightenment, to wit: “And when the judiciarymediates to allocate constitutional boundaries,it does not assert any superiority over theother departments; it does not in reality nullifyor invalidate an act of the legislature, but onlyasserts the solemn and sacred obligationassigned to it by the Constitution to determineconflicting claims of authority under theConstitution and to establish for the parties inan actual controversy the rights which thatinstrument secures and guarantees tothem.”107

Thus, the Court, in exercising its power of judicial review, is not imposing its own willupon a co-equal body but rather simplymaking sure that any act of government isdone in consonance with the authorities andrights allocated to it by the Constitution. And,if after said review, the Court finds noconstitutional violations of any sort, then, ithas no more authority of proscribing the



actions under review. Otherwise, the Court willnot be deterred to pronounce said act as voidand unconstitutional.

It cannot be denied that most governmentactions are inspired with noble intentions, allgeared towards the betterment of the nationand its people. But then again, it is important

to remember this ethical principle: “The enddoes not justify the means.” No matter hownoble and worthy of admiration the purpose of an act, but if the means to be employed inaccomplishing it is simply irreconcilable withconstitutional parameters, then it cannot stillbe allowed.108 The Court cannot just turn ablind eye and simply let it pass. It will continueto uphold the Constitution and its enshrinedprinciples.

“The Constitution must ever remain supreme.All must bow to the mandate of this law.

Expediency must not be allowed to sap itsstrength nor greed for power debase itsrectitude.”109

Lest it be misunderstood, this is not the deathknell for a truth commission as noblyenvisioned by the present administration.Perhaps a revision of the executive issuance soas to include the earlier past administrationswould allow it to pass the test of reasonableness and not be an affront to theConstitution. Of all the branches of thegovernment, it is the judiciary which is themost interested in knowing the truth and so itwill not allow itself to be a hindrance orobstacle to its attainment. It must, however,be

emphasized that the search for the truth mustbe within constitutional bounds for “ours is stilla government of laws and not of men.”110

WHEREFORE, the petitions are GRANTED.Executive Order No. 1 is hereby declaredUNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are herebyordered to cease and desist from carrying outthe provisions of Executive Order No. 1.

SO ORDERED

Carpio, J., See Dissenting Opinion.

Carpio-Morales, J., Please see DissentingOpinion.

Velasco, Jr., J., I certify that Justice Velasco lefthis concurring vote. (Sgd. C.J. Corona)

Nachura, J., See Concurring & DissentingOpinion.

Leonardo-De Castro, J., See SeparateConcurring Opinion.

Brion, J., See Separate Opinion (concurring).

Peralta, J., See Separate Concurring Opinion.

Bersamin, J., See my Separate ConcurringOpinion.

Abad, J., See Separate Dissenting Opinion.

Perez, J., See Separate Opinion (concurring).

Sereno, J., See Dissenting Opinion.

_______________ [Biraogo vs. Philippine TruthCommission of 2010, 637 SCRA 78(2010)]

Documents

Truth Commission Admin Law