0233 Biraogo v. Philippine Truth Commission of 2010 [196p]

10/20/24, 9:06 PM G.R. Nos. 192935 & 193036 | Biraogo v.
Philippine Truth Commission of 2010
EN BANC
[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 AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, respondents.
DECISION
MENDOZA, J : p
When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them.
— Justice Jose P. Laurel [1]
The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which these powers are
distributed among the several departments. [2] The Constitution is the basic and paramount law to which
all other laws must conform and to which all persons, including the highest officials of the land, must
defer. [3] Constitutional doctrines must remain steadfast no matter what may be the tides of time. It
cannot be simply made to sway and accommodate the call of situations and much more tailor itself to
the whims and caprices of government and the people who run it. [4]
For consideration before the Court are two consolidated cases [5] both of which essentially assail
the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress under Section 1, Article VI of the Constitution [6] as it
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10/20/24, 9:06 PM G.R. Nos. 192935 & 193036 | Biraogo v. Philippine Truth Commission of 2010
usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor. [7]
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft
and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced
of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the
presidency. ITESAc
To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order
No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of
said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly
enshrines the principle that a public office is a public trust and mandates that public officers and
employees, who are servants of the people, must at all times be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and
notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic,
and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor,
the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined
the people's trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports
of large scale graft and corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others from committing the evil,
restore the people's faith and confidence in the Government and in their public servants;
WHEREAS, the President's battlecry during his campaign for the Presidency in the last
elections "kung walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he
would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding
out the truth concerning the reported cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as
the Revised Administrative Code of the Philippines, gives the President the continuing authority to
reorganize the Office of the President. cTIESa
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude
that shock and offend the moral and ethical sensibilities of the people, committed by public officers
and employees, their co-principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. — The Commission, 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 a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration and
thereafter submit its finding and recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any agency, official
or employee of the Executive Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by committees thereof
relating to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including
the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state witness
under the Revised Rules of Court of the Philippines be admitted for that purpose; TacADE
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation, all evidence
on corruption of public officers and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the Commission finds that there is
reasonable ground to believe that they are liable for graft and corruption under pertinent applicable
laws;
h) Call upon any government investigative or prosecutorial agency such as the

Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission,
for such assistance and cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to

effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection
with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. — . . . .
SECTION 4. Detail of Employees. — . . . .
SECTION 5. Engagement of Experts. — . . .
SECTION 6. Conduct of Proceedings. — . . . .
SECTION 7. Right to Counsel of Witnesses/Resource Persons. — . . . .
SECTION 8. Protection of Witnesses/Resource Persons. — . . . .
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. — Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. — . . . . .
SECTION 11. Budget for the Commission. — The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its functions,
and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible. aDSAEI
SECTION 12. Office. — . . . .
SECTION 13. Furniture/Equipment. — . . . .
SECTION 14. Term of the Commission. — The Commission shall accomplish its mission on or
before December 31, 2012.
SECTION 15. Publication of Final Report. — . . . .
SECTION 16. Transfer of Records and Facilities of the Commission. — . . . .
SECTION 17. Special Provision Concerning Mandate. — If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1 hereof
to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be so extended accordingly by way of a supplemental Executive
Order.
SECTION 18. Separability Clause. — If any provision of this Order is declared

unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. — This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary
Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a
mere ad hoc body formed under the Office of the President with the primary task to investigate reports
of graft and corruption committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one. [8]
To accomplish its task, the PTC shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All
it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal, civil
or administrative penalties or sanctions. cADaIH
The PTC is different from the truth commissions in other countries which have been created as
official, transitory and non-judicial fact-finding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in a country's past." [9] They are usually
established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1)
they examine only past events; (2) they investigate patterns of abuse committed over a period of time,
as opposed to a particular event; (3) they are temporary bodies that finish their work with the submission
of a report containing conclusions and recommendations; and (4) they are officially sanctioned,
authorized or empowered by the State. [10] "Commission's members are usually empowered to conduct
research, support victims, and propose policy recommendations to prevent recurrence of crimes.
Through their investigations, the commissions may aim to discover and learn more about past abuses,
or formally acknowledge them. They may aim to prepare the way for prosecutions and recommend
institutional reforms." [11]
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war
crime tribunals are examples of a retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of
past violence and to prevent future conflict by providing a cathartic experience for victims.
The PTC is a far cry from South Africa's model. The latter placed more emphasis on reconciliation
than on judicial retribution, while the marching order of the PTC is the identification and punishment of
perpetrators. As one writer [12] puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his
inaugural speech: "To those who talk about reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have committed in the past, we have this to say: There can
be no reconciliation without justice. When we allow crimes to go unpunished, we give consent to their
occurring over and over again."
The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to
declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are essentially the same. The petitioners-
legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress
to create a public office and appropriate funds for its operation. cAaTED
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy, simplicity and efficiency does not include
the power to create an entirely new public office which was hitherto inexistent like the "Truth
Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the
"Truth Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of
the Ombudsman created under the 1987 Constitution and the Department of Justice created under
the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation
and prosecution officials and personnel of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past and present, who may be
indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and
general international practice of four decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which customary practice forms part of the generally
accepted principles of international law which the Philippines is mandated to adhere to pursuant to
the Declaration of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in

partisan hostility, a launching pad for trial/conviction by publicity and a mere populist propaganda to
mistakenly impress the people that widespread poverty will altogether vanish if corruption is
eliminated without even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no
moment because neither laches nor estoppel can bar an eventual question on the constitutionality
and validity of an executive issuance or even a statute." [13]
In their Consolidated Comment, [14] the respondents, through the Office of the Solicitor General
(OSG), essentially questioned the legal standing of petitioners and defended the assailed executive
order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because
the President's executive power and power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully executed and that, in any event, the
Constitution, Revised Administrative Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No.
1416 [16] (as amended by P.D. No. 1772), R.A. No. 9970, [17] and settled jurisprudence that
authorize the President to create or form such bodies. DIAcTE
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is
no appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding
body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latter's
jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and
presidential issuances creating similar bodies to justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee
on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential
Agency on Reform and Government Operations (PARGO) by President Ferdinand E. Marcos. [18]
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues
to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective petitions
and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and
the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court
needs to ascertain whether the requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case. [19] AIHDcC
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the commission's investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings. [20]
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators
to assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly justifies their resolve to take the
cudgels for Congress as an institution and present the complaints on the usurpation of their power and
rights as members of the legislature before the Court. As held in Philippine Constitution Association v.
Enriquez, [21]
To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a case,
any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges
vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity
of any official action which, to their mind, infringes on their prerogatives as legislators. [22]
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the
creation of the PTC and the budget for its operations. [23] It emphasizes that the funds to be used for the
creation and operation of the commission are to be taken from those funds already appropriated by
Congress. Thus, the allocation and disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the President's power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to
exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution.
The case of David v. Arroyo [24] explained the deep-seated rules on locus standi. Thus: ACcHIa
Locus standi is defined as "a right of appearance in a court of justice on a given question." In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit." Succinctly put, the plaintiff's standing is based on his own right to the
relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in
a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff
is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter
of mere public right, however . . . the people are the real parties . . . It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly pursued and punished,
and that a public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan held that
"the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse
Trainers' Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League
of the Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest." [25] cDAITS
Thus, in Coconut Oil Refiners Association, Inc. v. Torres, [26] the Court held that in cases of
paramount importance where serious constitutional questions are involved, the standing requirements
may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases, [27] ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they had
only an indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance [28] laid down in CREBA v.
ERC and Meralco [29] are non-existent in this case. The Court, however, finds reason in Biraogo's
assertion that the petition covers matters of transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and weight as precedents. Where the issues are of
transcendental and paramount importance not only to the public but also to the Bench and the Bar, they
should be resolved for the guidance of all. [30] Undoubtedly, the Filipino people are more than interested
to know the status of the President's first effort to bring about a promised change to the country. The
Court takes cognizance of the petition not due to overwhelming political undertones that clothe the issue
in the eyes of the public, but because the Court stands firm in its oath to perform its constitutional duty to
settle legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public
office and not merely an adjunct body of the Office of the President. [31] Thus, in order that the President
may create a public office he must be empowered by the Constitution, a statute or an authorization
vested in him by law. According to petitioner, such power cannot be presumed [32] since there is no
provision in the Constitution or any specific law that authorizes the President to create a truth
commission. [33] He adds that Section 31 of the Administrative Code of 1987, granting the President the
continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission
considering the aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate,"
"merge," and "abolish." [34] Insofar as it vests in the President the plenary power to reorganize the Office
of the President to the extent of creating a public office, Section 31 is inconsistent with the principle of
separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof. [35]
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies
within the province of Congress and not 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 not permit the President to create a public office, much less a truth commission; 2) is
limited to the reorganization of the administrative structure of the Office of the President; 3) is limited to
the restructuring of the internal organs 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 the President to reorganize his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority. HCEaDI
The OSG counters that there is nothing exclusively legislative about the creation by the President
of a fact-finding body such as a truth commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create public offices within the Office of the
President Proper has long been recognized. [37] According to the OSG, the Executive, just like the other
two branches of government, possesses the inherent authority to create fact-finding committees to
assist it in the performance of its constitutionally mandated functions and in the exercise of its
administrative functions. [38] This power, as the OSG explains it, is but an adjunct of the plenary powers
wielded by the President 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 necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials and employees
of his department and in the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials. [40] The power of the
President to investigate is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his power to discipline
[41] [42]
subordinates, his power for rule making, adjudication and licensing purposes and in order to be
informed on matters which he is entitled to know. [43]
The OSG also cites the recent case of Banda v. Ermita, [44] where it was held that the President
has the power to reorganize the offices and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid delegation of the legislative power to
reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create
offices. For the OSG, the President may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government. [45]
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit
of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional and structural lines: (1) restructuring
the internal organization of the Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency
under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation 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 out of a restructuring of the Office of the President under Section 31
is a misplaced supposition, even in the plainest meaning attributable to the term "restructure" — an
"alteration of an existing structure." Evidently, the PTC was not part of the structure of the Office of the
President prior to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary, [46] aSIAHC
But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very source
of the power — that which constitutes an express grant of power. Under Section 31, Book III of
Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President,
subject to the policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the administrative structure of the Office
of the President." For this purpose, he may transfer the functions of other Departments or Agencies
to the Office of the President. In Canonizado 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 takes place when there is an alteration of the
existing structure of government offices or units 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 the President. Hence, it is subject to the President'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 or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former with that of the latter.
[47] Clearly, the power of control is entirely different from the power to create public offices. The former is
inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the
President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the above provision
finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. [48] The said law granted the
President the continuing authority to reorganize the national government, including the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities, transfer appropriations, and to standardize salaries and materials. This
decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked 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 to
create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize the administrative structure of the
national government including the power to create offices and transfer appropriations pursuant to one of
the purposes of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate
flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim,
P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO:
Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says "it was
enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary
form of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ:
Yes, Your Honor.
That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416 should
not be considered effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.
Not the whole of P.D. [No.] 1416, Your Honor.
The power of the President to reorganize the entire National Government is deemed repealed,
at least, upon the adoption of the 1987 Constitution, correct. cHSIDa
Yes, Your Honor. [50]
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416
as amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed.
Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The President's power to conduct
investigations to aid him in ensuring the faithful execution of laws — in this case, fundamental laws on
public accountability and transparency — is inherent in the President's powers as the Chief Executive.
That the authority of the President to conduct investigations and to create bodies to execute this power
is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority. [51] As explained in the landmark case of Marcos v. Manglapus: [52]
. . . . The 1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual distribution among
three distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of government and whatever powers inhere in
such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the execution of any provision of law, e.g.,
his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise of specific powers of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. . . . . cSATEH
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As
stated above, the powers of the President are not limited to those specific powers under the
Constitution. [53] One of the recognized powers of the President granted pursuant to this constitutionally-
mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain
facts and determine if laws have been faithfully executed. Thus, in Department of Health v.
Camposano, [54] the authority of the President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative charges filed against the employees of the
Department of Health for the anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executive's power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had
the same composition, or that the former used the offices and facilities of the latter in conducting the
inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow
an inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the land.
And if history is to be revisited, this was also the objective of the investigative bodies created in the past
like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure, the Court is not inclined to declare
such executive power as non-existent just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the
part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify
the amount to be earmarked for the operation of the commission because, in the words of the Solicitor
General, "whatever funds the Congress has provided for the Office of the President will be the very
source of the funds for the commission." [55] Moreover, since the amount that would be allocated to the
PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President's power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof. [56] As the Chief Executive, the president represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department. [57]
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft
and corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers
have been vested in the said body as it cannot adjudicate rights of persons who come before it. It has
been said that "Quasi-judicial powers involve the power to hear and determine questions of fact to which
the legislative policy is to apply and to decide in accordance with the standards laid down by law itself in
enforcing and administering the same law." [58] In simpler terms, judicial discretion is involved in the
exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of administrative agencies. caAICE
The distinction between the power to investigate and the power to adjudicate was delineated by
the Court in Cariño v. Commission on Human Rights. [59] Thus:
"Investigate," commonly understood, 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 into systematically: "to search or inquire into: . . . to subject to an official probe . . . : to
conduct an official inquiry." 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 or resolving a
controversy involved in the facts inquired into by application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care
and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;"
"to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . .
an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter
or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle
judicially: . . . act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial
or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." HScaCT
In the legal sense, "adjudicate" means: "To settle in the exercise of 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 to sentence or condemn. . . . . Implies a judicial determination
of a fact, and the entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice,
or even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom
the facts of a controversy is not a judicial function. To be considered as such, the act of receiving
evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of review as may be provided by law.
[60] Even respondents themselves admit that the commission is bereft of any quasi-judicial power. [61]
Contrary to petitioners' apprehension, the PTC will not supplant the Ombudsman or the DOJ or
erode their respective powers. If at all, the investigative function of the commission will complement
those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but
a consequence of the overall task of the commission to conduct a fact-finding investigation." [62] The
actual prosecution of suspected offenders, much less adjudication on the merits of the charges against
them, [63] is certainly not a function given to the commission. The phrase, "when in the course of its
investigation," under Section 2 (g), highlights this fact and gives credence to a contrary interpretation
from that of the petitioners. The function of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the Ombudsman. [64]
At any rate, the Ombudsman's power to investigate under R.A. No. 6770 is not exclusive but is
shared with other similarly authorized government agencies. Thus, in the case of Ombudsman v.
Galicia, [65] it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial courts.
The power to conduct preliminary investigation on charges against public employees and officials is
likewise concurrently shared with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective officials.
[Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate
criminal cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission appears to
be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from
any investigatory agency of government, the investigation of such cases. [Emphases supplied]
AIHDcC
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is categorically
out of the PTC's sphere of functions. Its power to investigate is limited to obtaining facts so that it can
advise and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of usurpation of 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 Administrative Code is by no means exclusive and, thus, can be shared with a
body likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in nature.
And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to
reject the recommendation. These offices, therefore, are not deprived of their mandated duties but will
instead be aided by the reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of
its apparent transgression of the equal protection clause enshrined 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 equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard.
They contend that it does not apply equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes the PTC an "adventure in partisan
hostility." [66] Thus, in order to be accorded with validity, the commission must also cover reports of graft
and corruption in virtually all administrations previous to that of former President Arroyo. [67]
The petitioners argue that the search for truth behind the reported cases of graft and corruption
must encompass acts committed not only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of controversies and anomalies" [68] were
reported to have been committed against the Filipino people. They assail the classification formulated by
the respondents as it does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for investigation by Executive Order No. 1
and other groups or persons who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end corruption." [69] In order to
attain constitutional permission, the petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal
force." [70] cEaDTA
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous administration" as
the initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to
cases of large scale graft and corruption solely during the said administration. [71] Assuming arguendo
that the commission would confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal protection clause for "the segregation of
the transactions of public officers during the previous administration as possible subjects of investigation
is a valid classification based on substantial distinctions and is germane to the evils which the Executive
Order seeks to correct." [72] To distinguish the Arroyo administration from past administrations, it recited
the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption
in the previous administration which have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth regarding certain reports of large scale graft
and corruption in the government and to put a closure to them by the filing of the appropriate cases
against those involved, if warranted, and to deter others from committing the evil, restore the
people's faith and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is

warranted by the reality that unlike with administrations long gone, the current administration will
most likely bear the immediate consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for investigation
lies in the reality that the evidence of possible criminal activity, the evidence that could lead to
recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more easily established in the regime that immediately
precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations

to provide closure to issues that are pivotal to national life or even as a routine measure of due
diligence and good housekeeping by a nascent administration like the Presidential Commission on
Good Government (PCGG), created by the late President Corazon C. Aquino under Executive Order
No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created by former President Joseph Estrada
under Administrative Order No, 53, to form an ad-hoc and independent citizens' committee to
investigate all the facts and circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos. [73] [Emphases supplied] TcHEaI
Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general
may be challenged on the basis of the due process clause. But if the particular act assailed partakes of
an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.
[74]
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." [75] It
"requires public bodies and institutions to treat similarly situated individuals in a similar manner." [76]
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted authorities." [77] "In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental objective." [78]
The equal protection clause is aimed at all official state actions, not just those of the legislature.
[79] Its inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. [80]
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be 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 the same class. [81] "Superficial differences
do not make for a valid classification." [82]
For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. [83] "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and
as long as this is achieved, all those covered by the classification are to be treated equally. The mere
fact that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him." [84]
cSICHD
The classification must not be based on existing circumstances only, or so constituted as to

preclude addition to the number included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification. As elucidated in Victoriano v.
Elizalde Rope Workers' Union [85] and reiterated in a long line of cases, [86]
The guaranty of equal protection of the laws is not 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 the
constitutional prohibition against inequality, that every man, woman and child should be affected alike
by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons
merely as such, but on persons according to the circumstances surrounding them. It guarantees
equality, not identity of rights. The Constitution does not require that things which are different in fact
be treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which is limited either in
the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification
in 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. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of
the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and
find out the truth "concerning the reported cases of graft and corruption during the previous
administration" [87] only. The intent to single out the previous administration is plain, patent and
manifest. Mention of it has been made in at least three portions of the questioned executive order.
Specifically, these are:
out the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice for
all;

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
during the previous administration; and thereafter recommend the appropriate action or measure
to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers of
thereafter submit its finding and recommendations to the President, Congress and the Ombudsman.
[Emphases supplied] HIaSDc
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other
past administrations, these distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of widespread corruption in the Arroyo
administration cannot be taken as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread reports of impropriety. They are not
inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification." [88]
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that "to include
other past administrations, at this point, may unnecessarily overburden the commission and lead it to
[89]
lose its effectiveness." The reason given is specious. It is without doubt irrelevant to the legitimate
and noble objective of the PTC to stamp out or "end corruption and the evil it breeds." [90]
The probability that there would be difficulty in unearthing evidence or that the earlier reports
involving the earlier administrations were already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer be the subjects of inquiry by the
PTC. Neither is the PTC expected to conduct simultaneous investigations of previous administrations,
given the body's limited time and resources. "The law does not require the impossible" (Lex non cogit ad
impossibilia). [91]
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility
of investigating almost a century's worth of graft cases. However, the fact remains that Executive Order
No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth,
must not exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is permitted, it should not be
arbitrary lest it be 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 and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar circumstances, material to their rights,
the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority administered. [93] Laws that do not
conform to the Constitution should be stricken down for being unconstitutional. [94] While the thrust of
the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To exclude the earlier
administrations in the guise of "substantial distinctions" would only confirm the petitioners' lament that
the subject executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian, [95] it
was written: "A rather limited number of such classifications have routinely been held or assumed to be
arbitrary; those include: race, national origin, gender, political activity or membership in a political party,
union activity or membership in a labor union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. [96] "Such a classification must not be
based on existing circumstances only, or so constituted as to preclude additions to the number included
within a class, but must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are
relative to the discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same way as are the
members of the class." [97] TaDAIS
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under
the equal protection clause." [98] "Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach." [99] It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational predicate simply because it
happens to be incomplete. [100] In several instances, the underinclusiveness was not considered a valid
reason to strike down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process. [101] "With regard to equal protection
claims, a legislature does not run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might conceivably have been attacked." [102]
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at
least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not
even mention any particular act, event or report to be focused on unlike the investigative commissions
created in the past. "The equal protection clause is violated by purposeful and intentional
discrimination." [103]
To disprove petitioners' contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during the
previous administration. [104] The OSG points to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. — If and when in the judgment of
the President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the prior
Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the
scope of investigations of the PTC so as to include the acts of graft and corruption committed in other
past administrations, it does not guarantee that they would be covered in the future. Such expanded
mandate of the commission will still depend on the whim and caprice of the President. If he would
decide not to include them, the section would then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration." [105]
The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,
[106]
that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the
equal protection clause." The decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is — whether or not the Supreme Court, in
the exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of
the legislature and the executive department, is exercising undue interference. Is the Highest Tribunal,
which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like
the doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for 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 to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is
vested with Judicial Power that "includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." SECHIA
Furthermore, in Section 4 (2) thereof, it is vested with the power of judicial review which is the
power to declare a treaty, international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on
the constitutionality of the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the
other. Many times the Court has been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment,
to wit: "And when the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them." [107]
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-
equal body but rather simply making sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter how noble and worthy of admiration
the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed. [108] The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude." [109]
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by
the present administration. Perhaps a revision of the executive issuance so as to include the earlier
past administrations would allow it to pass the test of reasonableness and not be an affront to
the Constitution. Of all the branches of the government, it is the judiciary which is the most interested
in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must,
however, be emphasized that the search for the truth must be within constitutional bounds for "ours is
still a government of laws and not of men." [110]
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.
Velasco, Jr., Del Castillo, Abad and Villarama, Jr., JJ., concur.
Corona, C.J., see separate opinion (concurring).
Carpio, J., see dissenting opinion.
Carpio Morales, J., please see dissenting opinion.
Velasco Jr., J., C.J. Corona certifies that Justice Velasco left his concurring vote.
Nachura, J., see concurring and dissenting opinion.
Leonardo-De Castro, J., see separate concurring opinion.
Brion, J., see separate opinion (concurring).
Peralta, J., see separate concurring opinion.
Bersamin, J., see his separate opinion.
Abad, J., see separate dissenting opinion.
Perez, J., see separate opinion (concurring).
Sereno, J., see dissenting opinion.
Separate Opinions
CORONA, C.J.:
OF TRUTH AND TRUTH COMMISSIONS
The fundamental base upon which a truth commission is created is the right to the truth. [1] While
[2]
the right to the truth is yet to be established as a right under customary law or as a general principle
of international law, [3] it has nevertheless emerged as a "legal concept at the national, regional and
international levels, and relates to the obligation of the state to provide information to victims or to their
families or even society as a whole about the circumstances surrounding serious violations of human
rights." [4] cDTHIE
A truth commission has been generally defined [5] as a "body set up to investigate a past history
of violations of human rights in a particular country . . .," [6] and includes four elements:
. . . First, a truth commission focuses on the past. Second, a truth commission is not focused
on a specific event, but attempts to paint the overall picture of certain human rights abuses, or
violations of international humanitarian law, over a period of time. Third, a truth commission usually
exists temporarily and for a pre-defined period of time, ceasing to exist with the submission of a
report of its findings. Finally, a truth commission is always vested with some sort of authority, by way
of its sponsor, that allows it greater access to information, greater security or protection to dig into
sensitive issues, and a greater impact with its report. [7]
As reported by Amnesty International, [8] there are at least 33 truth commissions established in 28
countries from 1974 to 2007 and this includes the Philippines, which created the Presidential Committee
on Human Rights (PCHR) in 1986 under the post-Marcos administration of Pres. Corazon C. Aquino.
THE PHILIPPINE EXPERIENCE
Notably, Pres. Corazon C. Aquino created not one but two truth commissions. [9] Aside from the
PCHR, which was created to address human rights violations, the Presidential Commission on Good
Government or PCGG was also established. The PCGG was tasked with assisting the President in the
"recovery of all in-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate
family, relatives, subordinates and close associates, whether located in the Philippines or abroad,
including the takeover or sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue advantage of their public
office and/or using their powers, authority, influence, connections or relationship," among others. [10]
Unlike the present embattled and controversial Truth Commission, however, the PCGG was created by
Pres. Corazon C. Aquino pursuant to her legislative powers under Executive Order No. 1, [11] which in
turn, was sanctioned by Proclamation No. 3. [12] CaTcSA
And unlike the PCGG, the present Truth Commission suffers from both legal and constitutional
infirmities and must be struck down as unconstitutional.
POWER TO CREATE PUBLIC OFFICES: INHERENTLY LEGISLATIVE
The separation of powers is a fundamental principle in our system of government. [13] This
principle is one of the cornerstones of our constitutional democracy and it cannot be eroded without
endangering our government. [14] The 1987 Constitution divides governmental power into three co-equal
branches: the executive, the legislative and the judicial. It delineates the powers of the three branches:
the legislature is generally limited to the enactment of laws, the executive department to the
enforcement of laws and the judiciary to their interpretation and application to cases and controversies.
[15] Each branch is independent and supreme within its own sphere and the encroachment by one
branch on another is to be avoided at all costs.
The power under scrutiny in this case is the creation of a public office. It is settled that, except for
the offices created by the Constitution, the creation of a public office is primarily a legislative function.
The legislature decides what offices are suitable, necessary or convenient for the administration of
government. [16]
The question is whether Congress, by law, has delegated to the Chief Executive this power to
create a public office.
In creating the Truth Commission, Executive Order No. 1 (E.O. No. 1) points to Section 31,
Chapter 10, Book III of E.O. No. 292 or the Administrative Code of 1987 as its legal basis:
Section 31. Continuing Authority of the President to Reorganize his Office. — The
President, subject to the policy in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have continuing authority to reorganize the administrative structure of the Office
of the President. For this purpose, he may take any of the following actions: IDcAHT
(1) Restructure the internal organization of the Office of the President Proper, including
the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff
Support System, by abolishing, consolidating, or merging units thereof or transferring functions from
one unit to another;
(2) Transfer any function under the Office of the President to any other Department or
Agency as well as transfer functions to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to any other department or
agency as well as transfer agencies to the Office of the President from other departments or
agencies. (Emphasis supplied)
This provision pertains to the President's continuing delegated power to reorganize the Office of
the President. The well-settled principle is that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally granted power of control over
executive offices and by virtue of his delegated legislative power to reorganize them under existing
statutes. [17] Needless to state, such power must always be in accordance with the Constitution,
relevant laws and prevailing jurisprudence. [18]
In creating the Truth Commission, did the President merely exercise his continuing authority to
reorganize the executive department? No.
Considering that the President was exercising a delegated power, his actions should have
conformed to the standards set by the law, that is, that the reorganization be in the interest of "simplicity,
economy and efficiency." Were such objectives met? They were not. The Truth Commission clearly
duplicates and supplants the functions and powers of the Office of the Ombudsman and/or the
Department of Justice, as will be discussed in detail later. How can the creation of a new commission
with the same duplicative functions as those of already existing offices result in economy or a more
efficient bureaucracy? [19] Such a creation becomes even more questionable considering that the 1987
Constitution itself mandates the Ombudsman to investigate graft and corruption cases. [20] ASTcaE
THE TRUTH COMMISSION IN THE LIGHT OF

THE EQUAL PROTECTION CLAUSE
Equal protection is a fundamental right guaranteed by the Constitution. Section 1, Article III of the
1987 Constitution reads:
. . . nor shall any person be denied the equal protection of the laws.
It is a right afforded every man. The right to equal protection does not require a universal application of
the laws to all persons or things without distinction. [21] It requires simply that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. [22]
In certain cases, however, as when things or persons are different in fact or circumstance, they
may be treated in law differently. [23] In Victoriano vs. Elizalde Rope Workers Union, [24] the Court
declared:
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary.
[25]
Thus, for a classification to be valid it must pass the test of reasonableness, which requires
that:
(1) it be based on substantial distinctions;
(2) it must be germane to the purpose of the law;
(3) it must not be limited to present conditions; and
(4) it must apply equally to all members of the same class.
All four requisites must be complied with for the classification to be valid and constitutional.
The constitutionality of E.O. No. 1 is being attacked on the ground that it violates the equal
protection clause. EaDATc
Petitioners argue that E.O. No. 1 violates the equal protection clause as it deliberately vests the
Truth Commission with jurisdiction and authority to solely target officials and employees of the Arroyo
Administration. [26] Moreover, they claim that there is no substantial distinction of graft reportedly
committed under the Arroyo administration and graft committed under previous administrations to
warrant the creation of a Truth Commission which will investigate for prosecution officials and
employees of the past administration. [27]
Respondents, on the other hand, argue that the creation of the Truth Commission does not violate
the equal protection clause. According to them, while E.O. No. 1 names the previous administration as
the initial subject of the investigation, it does not confine itself to cases of graft and corruption committed
solely during the past administration. Section 17 of E.O. No. 1 clearly speaks of the President's power to
expand its coverage to previous administrations. Moreover, respondents argue that the segregation of
the transactions of public officers during the previous administration as possible subjects of investigation
is a valid classification based on substantial distinctions and is germane to the evils which the executive
order seeks to correct. [28]
On its face, E.O. No. 1 clearly singles out the previous administration as the Truth Commission's
sole subject of investigation.
Section 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find
the truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people committed by public
officers and employees, their co-principals, accomplices and accessories from the private sector, if
any during the previous administration; and thereafter recommend the appropriate action to be
taken to ensure that the full measure of justice shall be served without fear or favor. aCSEcA
Section 2. Powers and Functions. — The Commission, which shall have the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
accomplices and accessories from the private sector, if any during the previous administration and
thereafter submit its findings and recommendations to the President, Congress and the Ombudsman.
. . ." (Emphasis supplied)
Notwithstanding Section 17, which provides:
If and when in the judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of cases and instances of
graft and corruption during the prior administration, such mandate may be so extended accordingly
by way of supplemental Executive Order." (Emphasis supplied).
such expanded mandate of the Truth Commission will still depend on the whim and caprice of the
President. If the President decides not to expand the coverage of the investigation, then the Truth
Commission's sole directive is the investigation of officials and employees of the Arroyo administration.
Given the indubitably clear mandate of E.O. No. 1, does the identification of 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. 1 violate the equal protection clause
of the Constitution? Yes. IDETCA
I rule in favor of petitioners.

(1) No Substantial Distinction —
There is no substantial distinction between the corruption which occurred during the past
administration and the corruption of the administrations prior to it. Allegations of graft and corruption in
the government are unfortunately prevalent regardless of who the President happens to be.
Respondents' claim of widespread systemic corruption is not unique only to the past administration.
(2) Not Germane to the Purpose of the Law —
The purpose of E.O. No. 1 (to put an end to corruption in the government) is stated clearly in the
preamble of the aforesaid order:
WHEREAS, the President's battle-cry during his campaign for the Presidency in the last
would end corruption and the evil it breeds; . . .
In the light of the unmistakable purpose of E.O. No. 1, the classification of the past regime as
separate from the past administrations is not germane to the purpose of the law. Corruption did not
occur only in the past administration. To stamp out corruption, we must go beyond the façade of each
administration and investigate all public officials and employees alleged to have committed graft in any
previous administration.
(3) E.O. No. 1 does Not Apply to Future Conditions —
As correctly pointed out by petitioners, the classification does not even refer to present conditions,
much more to future conditions vis-a-vis the commission of graft and corruption. It is limited to a
particular past administration and not to all past administrations. [29]
We go back to the text of the executive order in question.
xxx xxx xxx
Whereas, there is a need for a separate body dedicated solely to investigating and finding out
the truth concerning the reported cases if graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and secure justice for all; AcaEDC
xxx xxx xxx
Section 1. Creating of a Commission. — There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find the
truth on, and toward this end investigate reports of graft and corruption, . . . if any, during the
previous administration; . . .
Section 2. Powers and Functions. — The Commission, which shall have all the powers of
corruption . . ., if any, during the previous administration and thereafter submit its findings and
recommendations to the President, Congress and the Ombudsman. . . .
The above-quoted provisions show that the sole subject of the investigation will be public officers
and employees of the previous administration only, that is, until such time if and when the President
decides to expand the Truth Commission's mandate to include other administrations (if he does so at
all).
(4) E.O. No. 1 Does Not Apply to the Same Class —
Lastly, E.O. No. 1 does not apply to all of those belonging to the same class for it only applies to
the public officers and employees of the past administration. It excludes from its purview the graft and
the grafters of administrations prior to the last one. Graft is not exclusive to the previous presidency
alone, hence there is no justification to limit the scope of the mandate only to the previous
administration.
FACT-FINDING OR INVESTIGATION?
The nature of the powers and functions allocated by the President to the Truth Commission by
virtue of E.O. No. 1 is investigatory, [30] with the purposes of determining probable cause of the
commission of "graft and corruption under pertinent applicable laws" and referring such finding and
evidence to the proper authorities for prosecution. [31]
The respondents pass off these powers and functions as merely fact-finding, short of
investigatory. I do not think so. Sugar-coating the description of the Truth Commission's processes and
functions so as to make it "sound harmless" falls short of constitutional requirements. It has in its hands
the vast arsenal of the government to intimidate, harass and humiliate its perceived political enemies
outside the lawful prosecutorial avenues provided by law in the Ombudsman or the Department of
Justice. SDHAcI
The scope of the investigatory powers and functions assigned by the President to the Truth
Commission encompasses all "public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration." [32]
There is no doubt in my mind that what the President granted the Truth Commission is the
authority to conduct preliminary investigation of complaints of graft and corruption against his
immediate predecessor and her associates.

The respondents see nothing wrong with that. They believe that, pursuant to his power of control
and general supervision under Article VII of the Constitution, [33] the President can create an ad-hoc
committee like the Truth Commission to investigate graft and corruption cases. And the President can
endow it with authority parallel to that of the Ombudsman to conduct preliminary investigations. Citing
Ombudsman v. Galicia [34] the power of the Ombudsman to conduct preliminary investigations is not
exclusive but shared with other similarly authorized government agencies.
I take a different view. The operative word is "authorized".
Indeed, the power of control and supervision of the President includes the power to discipline
which in turn implies the power to investigate. [35] No Congress or Court can derogate from that power
[36] but the Constitution itself may set certain limits. [37] And the Constitution has in fact carved out the
preliminary investigatory aspect of the control power and allocated the same to the following:
(a) to Congress over presidential appointees who are impeachable officers (Article XI,
Sections 2 and 3);
(b) to the Supreme Court over members of the courts and the personnel thereof (Article
VIII, Section 6); and AaIDCS
(c) to the Ombudsman over any other public official, employee, office or agency (Article
XI, Section 13 (1)).
However, even as the Constitution has granted to the Ombudsman the power to investigate other
public officials and employees, such power is not absolute and exclusive. Congress has the power to
further define the powers of the Ombudsman and, impliedly, to authorize other offices to conduct such
investigation over their respective officials and personnel. [38]
The Constitution has vested in Congress alone the power to grant to any office concurrent
jurisdiction with the Ombudsman to conduct preliminary investigation of cases of graft and
corruption.
In a myriad of cases, this Court has recognized the concurrent jurisdiction of other bodies vis-à-vis
the Ombudsman to conduct preliminary investigation of complaints of graft and corruption as
authorized by law, meaning, for any other person or agency to be able to conduct such investigations,
there must be a law authorizing him or it to do so.
In Ombudsman v. Galicia (cited in the ponencia) as well as Ombudsman v. Estandarte, [39] the
Court recognized the concurrent jurisdiction of the Division School Superintendent vis-à-vis the
Ombudsman to conduct preliminary investigation of complaints of graft and corruption committed by
public school teachers. Such concurrent jurisdiction of the Division School Superintendent was granted
by law, specifically RA 4670 or the Magna Carta for Public School Teachers. [40]
Likewise, in Ombudsman v. Medrano [41] the Court held that by virtue of RA 4670 the Department
of Education Investigating Committee has concurrent jurisdiction with the Ombudsman to conduct a
preliminary investigation of complaints against public school teachers.

Even the Sangguniang Panlungsod has concurrent jurisdiction with the Ombudsman to look into
complaints against the punong barangay. [42] Such concurrent authority is found in RA 7160 or the Local
Government Code. IcESDA
The Department of Justice is another agency with jurisdiction concurrent with the Ombudsman to
[43]
conduct preliminary investigation of public officials and employees. Its concurrent jurisdiction is
based on the 1987 Administrative Code.
Certainly, there is a law, the Administrative Code, which authorized the Office of the President to
exercise jurisdiction concurrent with the Ombudsman to conduct preliminary investigation of graft and
corruption cases. However, the scope and focus of its preliminary investigation are restricted. Under the
principle that the power to appoint includes the power to remove, each President has had his or her own
version of a presidential committee to investigate graft and corruption, the last being President Gloria
Macapagal Arroyo's Presidential Anti-Graft Commission (PAGC) under E.O. No. 268. The PAGC
exercised concurrent authority with the Ombudsman to investigate complaints of graft and corruption
against presidential appointees who are not impeachable officers and non-presidential appointees in
conspiracy with the latter. It is in this light that DOH v. Camposano, et al. [44] as cited in the ponencia
should be understood. At that time, the PCAGC (now defunct) had no investigatory power over non-
presidential appointees; hence the President created an ad-hoc committee to investigate both the
principal respondent who was a presidential appointee and her co-conspirators who were non-
presidential appointees. The PAGC (now also defunct), however, was authorized to investigate both
presidential appointees and non-presidential appointees who were in conspiracy with each other.
However, although pursuant to his power of control the President may supplant and directly
exercise the investigatory functions of departments and agencies within the executive department, [45]
his power of control under the Constitution and the Administrative Code is confined only to the executive
department. [46] Without any law authorizing him, the President cannot legally create a committee to
extend his investigatory reach across the boundaries of the executive department to "public officers and
employees, their co-principals, accomplices and accessories 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, Section
13. There is no law granting to the President the authority to create a committee with concurrent
investigatory jurisdiction of this nature. SECHIA
The President acted in violation of the Constitution and without authority of law when he created a
Truth Commission under E.O. No. 1 to exercise concurrent jurisdiction with the Ombudsman to conduct
the preliminary investigation of complaints of graft and corruption against public officers and employees,
their co-principals, accomplices and accessories from the private sector, if any, during the previous
administration.
INVESTIGATION OR QUASI-ADJUDICATION?
Respondents argue that the Truth Commission is merely an investigative and fact-finding body
tasked to gather facts, draw conclusions therefrom and recommend the appropriate actions or measures
to be taken. Petitioners, however, argue that the Truth Commission is vested with quasi-judicial powers.
Offices with such awesome powers cannot be legally created by the President through mere executive
orders.
Petitioners are correct.
The definition of investigation was extensively discussed in Cariño v. Commission on Human
Rights: [47]
"Investigate," commonly understood, 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 into systematically: "to search or inquire into: . . . to subject to an official probe . . .: to conduct
an official inquiry." 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 or resolving a
controversy involved in the facts inquired into by application of the law to the facts established by the
inquiry. 2005jur
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care
and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;"
"to inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . .
an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter
or matters." [48] (Italics in the original)
The exercise of quasi-judicial power goes beyond mere investigation and fact-finding. Quasi-
judicial power has been defined as
. . . the power of the administrative agency to adjudicate the rights of persons before it. It is
the power to hear and determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by the law itself in enforcing and
administering the same law. The administrative body exercises its quasi-judicial power when it
performs in a judicial manner an act which is essentially of an executive or administrative nature,
where the power to act in such manner is incidental to or reasonably necessary for the performance
of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the
administrative officers or bodies are required to investigate facts or ascertain the existence of
facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their
official action and exercise of discretion in a judicial nature. [49] (Emphasis supplied)
Despite respondents' denial that the Truth Commission is infused with quasi-judicial powers, it is
patent 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 or regarding the cases of
large scale corruption which it has chosen to investigate, . . .
xxx xxx xxx
reasonable ground to believe they are liable for graft and corruption under pertinent
applicable laws; aDIHTE
xxx xxx xxx
The powers to "evaluate evidence" and "find reasonable ground to believe that someone is liable
for graft and corruption" are not merely fact-finding or investigatory. These are quasi-judicial in nature
because they actually go into the weighing of evidence, drawing up of legal conclusions from them as
basis for their official action and the exercise of discretion of a judicial or quasi-judicial nature.
The evaluation of the sufficiency of the evidence is a quasi-judicial/judicial function. It involves an
assessment of the evidence which is an exercise of judicial discretion. We have defined discretion
as the ability to make decisions which represent a responsible choice and for which an
understanding of what is lawful, right or wise may be presupposed. [50]
It is the "the act or the liberty to decide, according to the principles of justice and one's ideas of what is
right and proper under the circumstances, without willfulness or favor." [51]
Likewise, the power to establish if there is reasonable ground to believe that certain persons are
liable for graft and corruption under pertinent applicable laws is quasi-judicial in nature because it is akin
to the discretion exercised by a prosecutor in the determination of probable cause during a preliminary
investigation. It involves a judicial (or quasi-judicial) appraisal of the facts for the purpose of determining
if a violation has in fact been committed. acHTIC
Although such a preliminary investigation is not a trial and is not intended to usurp the function
of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into
the facts concerning the commission of the crime with the end in view of determining whether or not
an information may be prepared against the accused. Indeed, a preliminary investigation is in
effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the
accused must be adduced so that when the case is tried, the trial court may not be bound as a
matter of law to order an acquittal. A preliminary investigation has then been called a judicial
inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard
and for, the production and weighing of evidence, and a decision is rendered thereon.
The authority of a prosecutor or investigating officer duly empowered to preside or to conduct

a preliminary investigation is no less than that of a municipal judge or even a regional trial court
judge. While the investigating officer, strictly speaking is not a "judge," by the nature of his
functions he is and must be considered to be a quasi judicial officer. [52]
Hence, the Truth Commission is vested with quasi-judicial discretion in the discharge of its
functions.
As a mere creation of the executive and without a law granting it the power to investigate person
and agencies outside the executive department, the Truth Commission can only perform administrative
functions, not quasi-judicial functions. "Administrative agencies are not considered courts; they are
neither part of the judicial system nor are they deemed judicial tribunals." [53]
Executive Order No. 1 and the Philippine Truth Commission of 2010, being contrary to the
Constitution, should be nullified.
I therefore vote that the petitions be GRANTED.
BRION, J.:
I concur, through this Separate Opinion, with the conclusion that the Executive Order No. 1 (EO 1
or EO) creating the Truth Commission is fatally defective and thus should be struck down.
I base my conclusion:
(1) On due process grounds;
(2) On the unconstitutional impact of the EO on the established legal framework of the
criminal justice system;
(3) On the violation of the rule on separation of powers;
(4) On the violations of the personal rights of the investigated persons and their
constitutional right to a fair trial; [1] and
(5) On the violation of the equal protection clause.
Two inter-related features of the EO primarily contribute to the resulting violations. The first is the
use of the title Truth Commission, which, as used in the EO, is fraught with hidden and prejudicial
implications beyond the seemingly simple truth that purportedly characterizes the Commission. The
second relates to the truth-telling function of the Truth Commission under the terms of the EO. Together,
these features radiate outwards with prejudicial effects, resulting in the above violations.
The full disclosure of the truth about irregular and criminal government activities, particularly about
graft and corruption, is a very worthy ideal that those in government must fully support; the ideal cannot
be disputed, sidetracked or much less denied. It is a matter that the Constitution itself is deeply
concerned about as shown by Article XI on Accountability of Public Officers. SACTIH
This concern, however, co-exists with many others and is not the be-all and end-all of the Charter.
The means and manner of addressing this constitutional concern, for example, rate very highly in the
hierarchy of constitutional values, particularly their effect on the structure and operations of government
and the rights of third parties.
The working of government is based on a well-laid and purposeful constitutional plan, essentially
based on the doctrine of separation of powers, that can only be altered by the ultimate sovereign — the
people. Short of this sovereign action, not one of the departments of government — neither the
Executive, nor the Legislature, and nor the Judiciary — can modify this constitutional plan, whether
directly or indirectly.
Concern for the individual is another overriding constitutional value. Significantly, the Constitution
does not distinguish between the guilty and the innocent in its coverage and grant of rights and
guarantees. In fact, it has very specific guarantees for all accused based on its general concern for
every Filipino's life, liberty, security and property. The Constitution, too, ensures that persons of the
same class, whether natural or juridical, are treated equally, and that the government does not
discriminate in its actions.
All these, this Court must zealously guard. We in the Court cannot ever allow a disturbance of the
equilibrium of the constitutional structure in favour of one or the other branch, especially in favour of the
Judiciary. Much less can we pre-judge any potential accused, even in the name of truth-telling,
retribution, national healing or social justice. The justice that the Constitution envisions is largely
expressed and embodied in the Constitution itself and this concept of justice, more than anything else,
the Judiciary must serve and satisfy. In doing this, the Judiciary must stand as a neutral and apolitical
judge and cannot be an advocate other than for the primacy of the Constitution.
These, in brief, reflect the underlying reasons for the cited grounds for the invalidity of E.O. 1.
I. THE EO AND THE "TRUTH" COMMISSION.
A. THE TERMS OF THE EO AND THE RULES;
NATURE OF THE "TRUTH COMMISSION"
The Philippine Truth Commission (Truth Commission or Commission) is a body "created" by the
President of the Philippines by way of an Executive Order (EO 1 or EO) entitled "Executive Order No. 1,
Creating the Philippine Truth Commission of 2010." The Truth Commission's express and avowed
purpose is —[2]
"to seek and find the truth on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officials and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration, and thereafter
recommend the appropriate action to be taken thereon to ensure that the full measure of justice
shall be served without fear or favor."
Under these terms and by the Solicitor General's admissions and representations, the Truth
Commission has three basic functions, namely, fact-finding, [3] policy recommendation, [4] and truth-
telling, [5] all with respect to reported massive graft and corruption committed by officials and employees
of the previous administration.
The EO defines the Truth Commission as an "independent collegial body" with a Chairman and
four members; [6] and provides for the staff, [7] facilities [8] and budgetary support [9] it can rely on, all of
which are sourced from or coursed through the Office of the President. It specifically empowers the
Truth Commission to "collect, receive, review and evaluate evidence." [10] It defines how the
Commission will operate and how its proceedings will be conducted. [11] Notably, its hearings shall be
open to the public, except only when they are held in executive sessions for reasons of national
security, public safety or when demanded by witnesses' personal security concerns. [12] It is tasked to
submit its findings and recommendations on graft and corruption to the President, Congress and the
[13]
Ombudsman, and submit special interim reports and a comprehensive final report which shall be
published. [14] Witnesses or resource persons are given the right to counsel, [15] as well as security
protection to be provided by government police agencies. [16] caHIAS
The Rules of Procedure of the Philippine Truth Commission of 2010 (Rules), promulgated
pursuant to Section 2 (j) of EO 1, further flesh out the operations of the Commission. [17] Section 4
assures that "due process shall at all times be observed in the application of the Rules." It provides for
formal complaints that may be filed before it, [18] and that after evaluation, the parties who appear
responsible under the complaints shall be provided copies of the complaints and supporting documents,
and be required to comment on or file counter-affidavits within ten (10) days. [19] The Rules declare that
the Commission is not bound by the technical rules of evidence, [20] reiterate the protection afforded to
witnesses provided under the EO, [21] and confirm that hearings shall be open to the public. [22]
B. THE TITLE "TRUTH COMMISSION"
AND DUE PROCESS
Both the parties' memoranda dwelt on the origins and nature of the term "Truth Commission," with
both using their reading of the term's history and usages to support their respective positions. [23] What
comes across in available literature is that no nation has a lock on the meaning of the term; there is only
a long line of practice that attaches the term to a body established upon restoration of democracy after a
period of massive violence and repression. [24] The term truth commission has been specifically used as
a title for the body investigating the human rights violations [25] that attended past violence and
repression, [26] and in some instances for a body working for reconciliation in society. [27]
The traditional circumstances that give rise to the use of a truth commission along the lines of
established international practice are not present in the Philippine setting. The Philippines has a new
democratically-elected President, whose election has been fully accepted without protest by all
presidential candidates and by the people. A peaceful transition of administration took place, where
Congress harmoniously convened, with the past President now sitting as a member of the House of
Representatives. While charges of human rights violations may have been lodged against the
government during the past administration, these charges are not those addressed by EO 1. [28] Rather,
EO 1 focuses entirely on graft and corruption. Significantly, reconciliation does not appear to be a goal
— either in the EO, in the pleadings filed by the parties, or in the oral arguments — thus, removing a
justification for any massive information campaign aimed at healing divisions that may exist in the
nation.
As a matter of law, that a body called a Truth Commission is tasked to investigate past instances
of graft and corruption would not per se be an irregularity that should cause its invalidation. The use of
the word "truth" is not ordinarily a ground for objection. Not even the Constitution itself defines or tells us
what truth is; the Charter, fleshed out by the statutes, can only outline the process of arriving at the truth.
After the Constitution and the statutes, however, have laid down the prescribed procedure, then that
procedure must be observed in securing the truth. Any deviation could be a violation depending on the
attendant circumstances.
No international law can also prevent a sovereign country from using the term as the title of a
body tasked to investigate graft and corruption affecting its citizens within its borders. At the same time,
international law cannot be invoked as a source of legitimacy for the use of the title when it is not based
on the internationally-recognized conditions of its use.
No local law likewise specifically prohibits or regulates the use of the term "truth commission."
Apart from the procedural "deviation" above adverted to, what may render the use of the term legally
objectionable is the standard of reason, applicable to all government actions, as applied to the attendant
circumstances surrounding the use in the EO of the title Truth Commission. [29] The use of this standard
is unavoidable since the title Truth Commission is used in a public instrument that defines the
Commission's functions and affects both the government and private parties. [30] The Commission's
work affects third parties as it is specifically tasked to investigate and prosecute officials and employees
of the previous administration. This line of work effectively relates it to the processes of the criminal
justice system. TSaEcH
In the simplest due process terms, the EO — as a governmental action — must have a
reasonable objective and must use equally reasonable means to achieve this objective. [31] When the
EO — viewed from the prism of its title and its truth-telling function — is considered a means of
achieving the objective of fighting graft and corruption, it would be invalid if it unreasonably or
oppressively affects parties, whether they be government or private.
C. THE COMMISSION'S FUNCTIONS
As worded, the EO establishes the Commission as an investigative body tasked to act on cases
of graft and corruption committed during the previous administration. This is an area that the law has
assigned to the primary jurisdiction of the Ombudsman to investigate and prosecute. [32] If probable
[33]
cause exists, these same cases fall under the exclusive jurisdiction of the Sandiganbayan whose
decisions are appealable to the Supreme Court. [34]
Whether a Commission can engage in fact-finding, whose input can aid the President in policy
formulation, is not a disputed issue. What is actively disputed is whether the Truth Commission shall
undertake its tasks in a purely investigative fact-finding capacity or in the exercise of quasi-judicial
powers. This issue impacts on the level of fairness that should be observed (and the standard of reason
that should apply), and thus carries due process implications. Equally important to the issue of due
process are the function of truth-telling and the effects of this function when considered with the title
"Truth Commission."
C.1. The Truth-Telling Function
The Solicitor General fully verbalized the truth-telling function when he declared that it is a
means of letting the people know the truth in the allegations of graft and corruption against the past
administration. [35] The Solicitor General, in response to the questions of J. Sereno, said:
Justice Sereno: . . . I go now to the truth-telling part of the commission. In other words, can
you describe to us the truth telling and truth seeking part of the commission?
Solicitor General Cadiz: Your Honor, of course our people will find closure if aside from the
truth finding of facts, those who have been found by the body to have committed graft and
corruption will be prosecuted by the Ombudsman. It is . . . Your Honor, there is a crime committed
and therefore punishment must be meted out. However, Your Honor, truth-telling part, the mere
narration of facts, the telling of the truth, will likewise I think to a certain degree, satisfy our
people.
Justice Sereno: Are you saying therefore the truth-telling, that the narration like the other
narrations in the past commissions has an independent value apart from the recommendations to
indict which particular persons?
Solicitor General Cadiz: I agree Your Honor. And it is certainly, as the EO says, it's a Truth
Commission the narration of facts by the members of the Commission, I think, will be
appreciated by the people independent of the indictment that is expected likewise. [Emphasis
supplied.]
His statement is justified by the EO's mandate to seek and find the truth under Section 1; the opening to
the public of the hearing and proceedings under Section 6; and the publication of the Commission's final
report under Section 15 of the EO. [36] CIaDTE
C.2. Legal Implications of Truth-Telling

Truth-telling, as its name connotes, does not exist solely for the sake of "truth"; the "telling" side
[37]
is equally important as the Solicitor General impressed upon this Court during the oral arguments.
Thus, to achieve its objectives, truth-telling needs an audience to whom the truth shall be told. [38] This
requirement opens up the reality that EO 1 really speaks in two forums.
The first forum, as expressly provided in the EO, is composed of the persons to be investigated
and the recipients of the Commission's reports who are expected to act on these reports, specifically,
the President (who needs investigative and policy formulation assistance); Congress (who may use the
Commission's information for its own legislative purposes); and the Ombudsman as the investigative
and prosecutory constitutional office [39] to which, under the EO, the Commission must forward its
interim and final reports. The Commission's hearings and proceedings are important venues for this
forum, as this is where the investigated persons can defend themselves against the accusations made.
The element of policy formulation, on the other hand, is present through the Commission's interim and
final reports from which appropriate remedial policy measures can be distilled. The element of truth-
telling — in the sense of communicating to the public the developments as they happen and through the
interim and final reports — exists but only plays a secondary role, as the public is not a direct participant
in this forum.
The second forum — not as explicitly defined as the first but which must implicitly and
necessarily be there — is that shared with the general public as the audience to whom the President
(through the EO and the Truth Commission) wishes to tell the story of the allegedly massive graft and
corruption during the previous administration. This is the distinct domain of truth-telling as the Solicitor
General himself impliedly admits in his quoted arguments. [40] Section 6 of the EO fully supports truth-
telling, as it opens up the Commission's hearings or proceedings to the public (and hence, to the mass
media), subject only to an executive session "where matters of national security or public safety are
involved or when the personal safety of the witness warrants the holding of such executive or closed-
door session hearing."
These separate forums are not distinguished merely for purposes of academic study; they are
there, plainly from the terms of the EO, and carry clear distinctions from which separate legal
consequences arise.
Both forums involve third parties, either as persons to be investigated or as part of the general
public (in whose behalf criminal complaints are nominally brought and who are the recipients of the
Commission's truth-telling communications) so that, at the very least, standards of fairness must be
observed. [41] In the investigative function, the standard depends on whether the tasks performed are
purely investigative or are quasi-judicial, but this distinction is not very relevant to the discussions of this
opinion. In truth-telling, on the other hand, the level of the required fairness would depend on the
objective of this function and the level of finality attained with respect to this objective. [42]
In the first forum, no element of finality characterizes the Commission's reports since — from the
perspective of the EO's express purposes of prosecution and policy formulation — they are merely
recommendatory and are submitted for the President's, Congress' and the Ombudsman's consideration.
Both the President and Congress may reject the reports for purposes of their respective policy
formulation activities; the Ombudsman may likewise theoretically and nominally reject them (although
with possibly disastrous results as discussed below).
In the second forum, a very high element of finality exists as the information communicated
through the hearings, proceedings and the reports are directly "told" the people as the "truth" of the graft
and corruption that transpired during the previous administration. In other words, the Commission's
outputs are already the end products, with the people as the direct consumers. In this sense, the
element of fairness that must exist in the second forum must approximate the rights of an accused in a
criminal trial as the consequence of truth-telling is no less than a final "conviction" before the bar of
public opinion based on the "truth" the Commission "finds." Thus, if the Commission is to observe the
rights of due process as Rule 1, Section 4 of its Rules guarantees, then the right of investigated persons
to cross-examine witnesses against them, [43] the right against self-incrimination, [44] and all the rights
attendant to a fair trial must be observed. The rights of persons under investigation under Section 12 of
the Bill of Rights of the Constitution [45] must likewise be respected. ITcCSA
II. THE EO'S LEGAL INFIRMITIES.

A. THE TITLE "TRUTH COMMISSION" + THE TRUTH-TELLING FUNCTION = VIOLATION OF
DUE PROCESS
A.1. The Impact of the Commission's "Truth"
The first problem of the EO is its use of the title "Truth Commission" and its objective of truth-
telling; these assume that what the Truth Commission speaks of is the "truth" because of its title and of
its truth-telling function; thus, anything other than what the Commission reports would either be a
distortion of the truth, or may even be an "untruth."
This problem surfaced during the oral arguments on queries about the effect of the title "Truth
Commission" on the authority of the duly constituted tribunals that may thereafter rule on the matters
that the Commission shall report on. [46] Since the Commission's report will constitute the "truth," any
subsequent contrary finding by the Ombudsman [47] would necessarily be suspect as an "untruth;" it is
up then to the Ombudsman to convince the public that its findings are true.
To appreciate the extent of this problem, it must be considered that the hearings or proceedings,
where charges of graft and corruption shall be aired, shall be open to the public. The Commission's
report shall likewise be published. [48] These features cannot but mean full media coverage.
Based on common and usual Philippine experience with its very active media exemplified by the
recent taking of Chinese and Canadian hostages at the Luneta, a full opening to the media of the
Commission's hearings, proceedings and reports means a veritable media feast that, in the case of the
Truth Commission, shall occur on small but detailed daily doses, from the naming of all the persons
under investigation all the way up to the Commission's final report. By the time the Commission report is
issued, or even before then, the public shall have been saturated with the details of the charges made
through the publicly-aired written and testimonial submissions of witnesses, variously viewed from the
vantage points of straight reporting, three-minute TV news clips, or the slants and personal views of
media opinion writers and extended TV coverage. All these are highlighted as the power of the media
and the environment that it creates can never be underestimated. Hearing the same "truth" on
radio and television and seeing it in print often enough can affect the way of thinking and the
perception, even of those who are determined, in their conscious minds, to avoid bias. [49]
As expected, this is a view that those supporting the validity of the EO either dismisses as an
[50]
argument that merely relies on a replaceable name, or with more general argument couched under
the question "Who Fears the Truth." [51]
The dismissive argument, to be sure, would have been meritorious if only the name Truth
Commission had not been supported by the Commission's truth-telling function; or, if the name "Truth
Commission" were a uniquely Filipino appellation that does not carry an established meaning under
international practice and usage. Even if it were to be claimed that the EO's use of the name is unique
because the Philippines' version of the Truth Commission addresses past graft and corruption and not
violence and human rights violations as in other countries, the name Truth Commission, however,
cannot simply be dissociated from its international usage. The term connotes abuses of untold
proportions in the past by a repressive undemocratic regime — a connotation that may be applicable to
the allegations of graft and corruption, but is incongruous when it did not arise from a seriously troubled
regime; even the present administration cannot dispute that it assumed office in a peaceful transition of
power after relatively clean and peaceful elections.
The "Who Fears the Truth?" arguments, on the other hand, completely miss the point of this
Separate Opinion. This Opinion does not dispute that past graft and corruption must investigated and
fully exposed; any statement to the contrary in the Dissent are unfounded rhetoric written solely for its
own partisan audience. What this Opinion clearly posits as legally objectionable is the government's
manner of "telling;" any such action by government must be made according to the norms and limits of
the Constitution to which all departments of government — including the Executive — are subject.
Specifically, the Executive cannot be left unchecked when its methods grossly violate the Constitution.
This matter is discussed in full below. ISHaCD
A.2. Truth-telling and the Ombudsman

To return to the scenario described above, it is this scenario that will confront the Ombudsman
when the Commission's report is submitted to it. At that point, there would have been a full and extended
public debate heavily influenced by the Commission's "truthful" conclusions. Thus, when and if the
Ombudsman finds the evidence from the report unconvincing or below the level that probable cause
requires, it stands to incur the public ire, as the public shall have by then been fully informed of the
"facts" and the "truth" in the Commission's report that the Ombudsman shall appear to have
disregarded.
This consequence does not seem to be a serious concern for the framers and defenders of the
EO, as the Commission's truth-telling function by then would have been exercised and fully served. In
the Solicitor General's words "Your Honor, there is crime committed and therefore punishment must be
meted out. However, your Honor, truth-telling part, the mere narration of facts, the telling of the truth, will
likewise I think to a certain degree satisfy our people." On the question of whether truth-telling has an
independent value separate from the indictment — he said: "And it is certainly, as the EO says, it's a
Truth Commission the narration of facts by the members of the Commission, I think, will be
appreciated by the people independent of the indictment that is expected likewise." [52]
In other words, faced with the findings of the Commission, the Ombudsman who enters a contrary
ruling effectively carries the burden of proving that its findings, not those of the Commission, are correct.
To say the least, this resulting reversal of roles is legally strange since the Ombudsman is the body
officially established and designated by the Constitution to investigate graft and other crimes committed
by public officers, while the Commission is a mere "creation" of the Executive Order. The Ombudsman,
too, by statutory mandate has primary jurisdiction over the investigation and prosecution of graft and
corruption, while the Commission's role is merely recommendatory.
Thus, what the EO patently expresses as a primary role for the Commission is negated in
actual application by the title Truth Commission and its truth-telling function. Expressed in terms
of the forums the EO spawned, the EO's principal intent to use the Truth Commission as a second
forum instrument is unmasked; the first forum — the officially sanctioned forum for the prosecution of
crimes — becomes merely a convenient cover for the second forum.
A.3. Truth-telling and the Courts
The effects of truth-telling could go beyond those that affect the Ombudsman. If the Ombudsman
concurs with the Commission and brings the recommended graft and corruption charges before the
Sandiganbayan — a constitutionally-established court — this court itself would be subject to the same
truth-telling challenge if it decides to acquit the accused. For that matter, even this Court, will be
perceived to have sided with an "untruth" when and if it goes against the Commission's report. Thus, the
authority, independence, and even the integrity of these constitutional bodies — the Ombudsman, the
Sandiganbayan, and the Supreme Court — would have been effectively compromised, to the prejudice
of the justice system. All these, of course, begin with the premise that the Truth Commission has the
mandate to find the "truth," as it name implies, and has a truth-telling function that it can fully exercise
through its own efforts and through the media.
A.4. Truth-telling and the Public.
A.4.1. Priming and Other Prejudicial Effects.
At this point in the political development of the nation, the public is already a very critical audience
who can examine announced results and can form its own conclusions about the culpability or
innocence of the investigated persons, irrespective of what conclusions investigative commissions may
arrive at. This is a reality that cannot be doubted as the public has been exposed in the past to these
investigative commissions. TSEcAD
The present Truth Commission operating under the terms of the EO, however, introduces a new
twist that the public and the country have not met before. For the first time, a Truth Commission, tasked
with a truth-telling function, shall speak on the "truth" of what acts of graft and corruption were actually
committed and who the guilty parties are. This official communication from a governmental body — the
Truth Commission — whose express mandate is to find and "tell the truth" cannot but make a difference
in the public perception.
At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a
mechanism for "priming" [53] the public, even the Ombudsman and the courts, to the Commission's
way of thinking. Pervasively repeated as an official government pronouncement, the Commission's
influence can go beyond the level of priming and can affect the public environment as well as
the thinking of both the decision makers in the criminal justice system and the public in general.
Otherwise stated, the Commission's publicly announced conclusions cannot but assume the
appearance of truth once they penetrate and effectively color the public's perception, through repetition
without significant contradiction as official government findings. These conclusions thus graduate to the
level of "truth" in self-fulfillment of the name the Commission bears; the subtle manipulation of the
Commission's name and functions, fades in the background or simply becomes explainable incidents
that cannot defeat the accepted truth.
A very interesting related material about the effect of core beliefs on the decision-making of
judges is the point raised by United States Supreme Court Associate Justice Benjamin N. Cardozo [54]
in his book The Nature of the Judicial Process [55] where he said:
. . . Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no
trace, not even the faintest, among the judges whom I have known. But every day there is borne in
on me a new conviction of the inescapable relation between the truth without us and the truth
within. The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in
which the accidents of birth or education or occupation or fellowship have given us place. No effort or
revolution of the mind will overthrow utterly and at all times the empire of the subconscious loyalties.
"Our beliefs and opinions," says James Harvey Robinson, "like our standards of conduct come to us
insensibly as products of our companionship with our fellow men, not as results of our personal
experience and the inferences we individually make from our own observations. We are constantly
misled by our extraordinary faculty of 'rationalizing' — that is, of devising plausible arguments by
accepting what is imposed upon us by the traditions of the group to which we belong. We are abjectly
credulous by nature, and instinctively accept the verdict of the group. We are suggestible not merely
when under the spell of an excited mob, or a fervent revival, but we are ever and always listening to
the still small voice of the herd, and are ever ready to defend and justify the instructions and
warnings, and accept them as the mature results of our own reasoning." This was written, not of
judges specially, but of men and women of all classes. [56] [Emphasis supplied]
Thus, Justice Cardozo accepted that "subconscious loyalties" to the "spirit" of the group, i.e., the core
beliefs within, is a major factor that affects the decision of a judge. In the context of EO 1, that "spirit" or
core belief is what a generally trusted government's [57] repeated invocation of "truth" apparently aims to
reach. This goal assumes significance given the Solicitor General's statement that truth-telling is an end
in itself. Read with what Justice Cardozo said, this goal translates to the more concrete and currently
understandable aim — to establish the "truth" as part of the accepted public belief; the EO's aim is
achieved irrespective of what the pertinent adjudicatory bodies may conclude, as even they could be
influenced by the generally accepted "truth." aCIHcD
Further on, Justice Cardozo, speaking in the context of the development of case law in common
law, went on to say, quoting Henderson: [58]
When an adherent to a systematic faith is brought continuously in touch with influences and
exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place,
by which a growing store of hostile mental inclinations may accumulate, strongly motivating action
and decision, but seldom emerging clearly into consciousness. In the meantime, the formulas of the
old faith are retained and repeated by force of habit, until one day the realization comes that conduct
and sympathies and fundamental desires have become so inconsistent with the logical framework
that it must be discarded. Then begins the task of building up and rationalizing a new faith.
Although written in another context, this statement — relating to how one's belief is supplanted by
another — runs parallel to how the belief system of an individual judge can be subtly affected by
inconsistent influences and how he ultimately succumbs to a new belief.
Without doubt, the process of converting to a new belief is an unavoidable and continuous
process that every decision maker undergoes as the belief system he started with, changes and evolves
through in-court experiences and exposure to outside influences. Such exposure cannot be faulted,
particularly when brought on by the media working pursuant to its exercise of the freedoms of the press
and speech, and speaking in the course of the clash of ideas in the public forum. The same exposure,
however, is not as neutral and fault-free when it is precipitated by the government acting as a catalytic
agent to hasten the achievement of its own ends, in this case, the disclosure of the "truth" regarding the
alleged graft and corruption during the previous regime.
In the context of the EO, the Executive can investigate within the limits of its legal parameters and
can likewise publicize the results of its investigations to the full limit of allowable transparency. But in so
doing, it cannot act as catalyst by labelling the action of the Commission it has created as officially-
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 and necessary component of the
justice system, the truth-seeking and truth-finding processes cannot be speeded up through steps that
shortcut and bypass processes established by the Constitution and the laws. As heretofore mentioned,
the international experiences that gave rise to the title Truth Commission were transitional situations
where, for peculiar reasons (such as the temporary absence of an established judicial system or the
need to speed up the transition to democratic rule), the use of ad hoc commissions were called for. In
the Philippine setting, the closest similar situation would be the immediate aftermath of the 1986 EDSA
Revolution as the country struggled in the transition from authoritarian martial law regime into a full-
fledged democracy. To be sure, the shortcut to the emergence of truth, fashioned under the terms
of EO 1, finds no justification after the 1987 Constitution and its rights, freedoms and guarantees
have been fully put in place.
A.4.2. The Effects on the Judicial System
To fully appreciate the potential prejudicial effects of truth-telling on the judicial system, the effects
of media exposure — from the point of view of what transpires and the circumstances present under
truth-telling and under the present justice system — deserve examination. SCETHa
Under the present justice system, the media may fully report, as they do report, all the details of a
reported crime and may even give the suspects detailed focus. These reports, however, are not branded
as the "truth" but as matters that will soon be brought to the appropriate public authorities for proper
investigation and prosecution, if warranted. In the courts, cases are handled on the basis of the rules of
evidence and with due respect for the constitutional rights of the accused, and are reported based on
actual developments, subject only to judicial requirements to ensure orderly proceedings and the
observance of the rights of the accused. Only after the courts have finally spoken shall there be any
conclusive narrative report of what actually transpired and how accused individuals may have
participated in committing the offense charged. At this point, any public report and analysis of the
findings can no longer adversely affect the constitutional rights of the accused as they had been given
all the opportunities to tell their side in court under the protective guarantees of the Constitution.
In contrast, the circumstances that underlie Commission reports are different. The "truth" that the
Commission shall publicize shall be based on "facts" that have not been tested and admitted according
to the rules of evidence; by its own express rules, the technical rules of evidence do not apply to the
Commission. [59] The reported facts may have also been secured under circumstances violative of the
rights of the persons investigated under the guarantees of the Constitution. Thus, what the Commission
reports might not at all pass the tests of guilt that apply under the present justice system, yet they will be
reported with the full support of the government as the "truth" to the public. As fully discussed below,
these circumstances all work to the active prejudice of the investigated persons whose reputations, at
the very least, are blackened once they are reported by the Commission as participants in graft and
corruption, even if the courts subsequently find them innocent of these charges.
A.5. Truth-telling: an unreasonable means to a reasonable objective.

Viewed from the above perspectives, what becomes plainly evident is an EO that, as a means of
fighting graft and corruption, will effectively and prejudicially affect the parties inter-acting with the Truth
Commission. The EO will erode the authority and even the integrity of the Ombudsman and the courts in
acting on matters brought before them under the terms of the Constitution; its premature and "truthful"
report of guilt will condition the public's mind to reject any finding other than those of the Commission.
Under this environment, the findings or results of the second forum described above overwhelm
the processes and whatever may be the findings or results of the first forum. In other words, the
findings or results of the second forum — obtained without any assurance of the observance of
constitutional guarantees — would not only create heightened expectations and exert unwanted
pressure, but even induce changed perceptions and bias in the processes of the first forum in the
manner analogous to what Justice Cardozo described above. The first casualties, of course, are the
investigated persons and their basic rights, as fully explained elsewhere in this Opinion.
While EO 1 may, therefore, serve a laudable anti-graft and corruption purpose and may have
been launched by the President in good faith and with all sincerity, its truth-telling function,
undertaken in the manner outlined in the EO and its implementing rules, is not a means that this
Court can hold as reasonable and valid, when viewed from the prism of due process. From this
vantage point, the Commission is not only a mislabelled body but one whose potential outputs must as
well be discarded for being unacceptable under the norms of the Constitution. EaHATD
B. DISTORTION OF EXISTING LEGAL FRAMEWORK

The EO and its truth-telling function must also be struck down as they distort the constitutional
and statutory plan of the criminal justice system without the authority of law and with an unconstitutional
impact on the system.
B.1. The Existing Legal Framework
The Constitution has given the country a well-laid out and balanced division of powers, distributed
among the legislative, executive and judicial branches, with specially established offices geared to
accomplish specific objectives to strengthen the whole constitutional structure.
The Legislature is provided, in relation with the dispensation of justice, the authority to create
[60]
courts with defined jurisdictions below the level of the Supreme Court; to define the required
qualifications for judges; [61] to define what acts are criminal and what penalties they shall carry; [62] and
to provide the budgets for the courts. [63]
The Executive branch is tasked with the enforcement of the laws that the Legislature shall pass.
In the dispensation of justice, the Executive has the prerogative of appointing justices and judges, [64]
and the authority to investigate and prosecute crimes through a Department of Justice constituted in
accordance the Administrative Code. [65] Specifically provided and established by the Constitution, for a
task that would otherwise fall under the Executive's investigatory and prosecutory authority, is an
independent Ombudsman for the purpose of acting on, investigating and prosecuting allegedly criminal
acts or omissions of public officers and employees in the exercise of their functions. While the
Ombudsman's jurisdiction is not exclusive, it is primary; it takes precedence and overrides any
investigatory and prosecutory action by the Department of Justice. [66]
The Judiciary, on the other hand, is given the task of standing in judgment over the criminal cases
brought before it, either at the first instance through the municipal and the regional trial courts, or on
appeal or certiorari, through the appellate courts and ultimately to the Supreme Court. [67] An exception
to these generalities is the Sandiganbayan, a special statutorily-created court with the exclusive
jurisdiction over criminal acts committed by public officers and employees in the exercise of their
functions. [68] Underlying all these is the Supreme Court's authority to promulgate the rules of procedure
applicable to courts and their proceedings, [69] to appoint all officials and employees of the Judiciary
other than judges, [70] and to exercise supervision over all courts and judiciary employees. [71]
In the usual course, an act allegedly violative of our criminal laws may be brought to the attention
of the police authorities for unilateral fact-finding investigation. If a basis for a complaint exists, then the
matter is brought before the prosecutor's office for formal investigation, through an inquest or a
preliminary investigation, to determine if probable cause exists to justify the filing of a formal complaint
or information before the courts. Aside from those initiated at the instance of the aggrieved private
parties, the fact-finding investigation may be made at the instance of the President or of senior officials
of the Executive branch, to be undertaken by police authorities, by the investigatory agencies of the
Department of Justice, or by specially constituted or delegated officials or employees of the Executive
branch; the preliminary investigation for the determination of probable cause is a task statutorily vested
in the prosecutor's office. [72] Up to this point, these activities lie within the Executive branch of
government and may be called its extrajudicial participation in the justice system. cSEaTH
By specific authority of the Constitution and the law, a deviation from the above general process
occurs in the case of acts allegedly committed by public officers and employees in the performance of
their duties where, as mentioned above, the Ombudsman has primary jurisdiction. While the Executive
branch itself may undertake a unilateral fact-finding, and the prosecutor's office may conduct preliminary
investigation for purposes of filing a complaint or information with the courts, the Ombudsman's primary
jurisdiction gives this office precedence and dominance once it decides to take over a case. [73]
Whether a complaint or information emanates from the prosecutor's office or from the
Ombudsman, jurisdiction to hear and try the case belongs to the courts, mandated to determine —
under the formal rules of evidence of the Rules of Court and with due observance of the constitutional
rights of the accused — the guilt or innocence of the accused. A case involving criminal acts or
omissions of public officers and employees in the performance of duties falls at the first instance within
the exclusive jurisdiction of the Sandiganbayan, [74] subject to higher recourse to the Supreme Court.
This is the strictly judicial aspect of the criminal justice system.
Under the above processes, our laws have delegated the handling of criminal cases to the justice
system and there the handling should solely lie, supported by all the forces the law can muster, until the
disputed matter is fully resolved. The proceedings — whether before the Prosecutor's Office, the
Ombudsman, or before the courts — are open to the public and are thereby made transparent; freedom
of information [75] and of the press [76] guarantee media participation, consistent with the justice
system's orderly proceedings and the protection of the rights of parties.
The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed
purpose of "assisting" the Ombudsman, directly disrupts the established order, as the Constitution and
the law do not envision a situation where fact-finding recommendations, already labelled as "true,"
would be submitted to the Ombudsman by an entity within the Executive branch. This arrangement is
simply not within the dispensation of justice scheme, as the determination of whether probable cause
exists cannot be defeated, rendered suspect, or otherwise eroded by any prior process whose results
are represented to be the "truth" of the alleged criminal acts. The Ombudsman may be bound by the
findings of a court, particularly those of this Court, but not of any other body, most especially a body
outside 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 guilt or innocence of an accused lies
strictly and solely with the courts. Nor can the EO cloak its intent of undercutting the authority of the
designated authorities to rule on the merits of the alleged graft and corruption through a statement that
its findings are recommendatory; as has been discussed above, this express provision is negated in
actual application by the title Truth Commission and its truth-telling function.
A necessary consequence of the deviation from the established constitutional and statutory plan is
the extension of the situs of the justice system from its constitutionally and statutorily designated
locations (equivalent to the above-described first forum), since the Commission will investigate matters
that are bound to go to the justice system. In other words, the Commission's activities, including its truth-
telling function and the second forum this function creates, become the prelude to the entry of criminal
matters into the Ombudsman and into the strictly judicial aspect of the system.
In practical terms, this extension undermines the established order in the judicial system by
directly bringing in considerations that are extraneous to the adjudication of criminal cases, and by co-
mingling and confusing these with the standards of the criminal justice system. The result, unavoidably,
is a qualitative change in the criminal justice system that is based, not on a legislative policy change, but
on an executive fiat. cDTACE
Because of truth-telling and its consequence of actively bringing in public opinion as a

consideration, standards and usages other than those strictly laid down or allowed by the Constitution,
by the laws and by the Rules of Court will play a part in the criminal justice system. For example, public
comments on the merits of cases that are still sub judice may become rampant as comments on a truth
commission's findings, not on the cases pending before the courts. The commission's "truthful" findings,
made without respect for the rules on evidence and the rights of the accused, would become the
standards of public perception of and reaction to cases, not the evidence as found by the courts based
on the rules of evidence.
Once the door is opened to the Truth Commission approach and public opinion enters as a
consideration in the judicial handling of criminal cases, then the rules of judging would have effectively
changed; reliance on the law, the rules and jurisprudence would have been weakened to the extent that
judges are on the lookout, not only for what the law and the rules say, but also for what the public feels
about the case. In this eventuality, even a noisy minority can change the course of a case simply
because of their noise and the media attention they get. (Such tactics have been attempted in the
immediate past where pressure has been brought to bear on this Court through street demonstrations
bordering on anarchy, the marshalling of opinions locally and internationally, and highly partisan media
comments.) The primacy of public opinion may, without doubt, appeal to some but this is simply not the
way of a Judiciary constitutionally-designed to follow the rule of law.
Another consequent adverse impact could be erosion of what the Constitution has very carefully
fashioned to be a system where the interpretation of the law and the dispensation of justice are to be
administered apolitically by the Judiciary. Politics always enters the picture once public opinion begins
to be a significant consideration. At this point, even politicians — ever attuned to the public pulse — may
register their own statements in the public arena on the merits of the cases even while matters are sub
judice. The effects could be worse where the case under consideration carries its own political
dimensions, as in the present case where the target involves the misdeeds of the previous
administration.
Whether the Judiciary shall involve, or be involved, in politics, or whether it should consider, or be
affected by, political considerations in adjudication, has been firmly decided by the Constitution and our
laws in favour of insulation through provisions on the independence of the Judiciary — the unelected
branch of government whose standard of action is the rule of law rather than the public pulse. This
policy has not been proven to be unsound. Even if it is unsound, any change will have to be effected
through legitimate channels — through the sovereignty that can change the Constitution, to the extent
that the Judiciary's and the Ombudsman's independence and the exercise of judicial discretion are
concerned, and through the Congress of the Philippines, with respect to other innovations that do not
require constitutional changes.
To be sure, the President of the Philippines, through an executive or administrative order and
without authority of law, cannot introduce changes or innovations into the justice system and
significantly water down the authoritative power of the courts and of duly designated constitutional
bodies in dispensing justice. The nobility of the President's intentions is not enough to render his act
legal. As has been said often enough, ours is a government of laws, not of men.
C. LIMITS OF THE EXERCISE OF EXECUTIVE
POWER IN THE JUSTICE SYSTEM
While the Executive participates in the dispensation of justice under our constitutional and
statutory system through its investigatory and prosecutory arms and has every authority in law to ensure
that the law is enforced and that violators are prosecuted, even these powers have limits. cTDECH
The independence of the Ombudsman and its freedom from interference from all other
departments of government in the performance of its functions is a barrier that cannot be breached,
directly or indirectly, except only as the Constitution and the laws may allow. No such exception has
been allowed or given to the President other than through the prosecution the Department of Justice
may undertake [77] when the Ombudsman has not asserted its primary jurisdiction. The concurrent
jurisdiction given to the Department of Justice to prosecute criminal cases, incidentally, is a grant
specific to that office, [78] not to any other office that the Executive may create through an executive
order.
The Executive can, without doubt, recommend that specific violators be prosecuted and the basis
for this recommendation need not even come from the Department of Justice; the basis may be the
findings of the Office of the President itself independently of its Department of Justice. Notably, the other
branches of government may also, and do in fact, make recommendations to the Ombudsman in the
way that Congress, in the course of its fact-finding for legislative purposes, unearths anomalies that it
reports to the Ombudsman. Even the Supreme Court recommends that Judiciary officials and
employees found administratively liable be also criminally prosecuted.
The Executive can also designate officials and employees of the Executive Department (or even
appoint presidential assistants or consultants) [79] to undertake fact-finding investigation for its use
pursuant to the vast powers and responsibilities of the Presidency, but it cannot create a separate body,
in the way and under the terms it created the Truth Commission, without offending the Constitution.
The following indicators, however, show that the President was not simply appointing presidential
assistants or assistants when he constituted the Truth Commission as an investigating or fact-finding
body.
First, the President "created" the Truth Commission; the act of creation goes beyond the mere
naming, designation or appointment of assistants and consultants. There is no need to "create" — i.e.,
to constitute or establish something out of nothing, or to establish for the first time [80] — if only the
designation or appointment of a presidential assistant or consultant is intended. To "create" an office,
too, as the petitioners rightfully claim, is a function of the Legislature under the constitutional division of
powers. [81] Note in this regard, and as more fully discussed below, that what the Revised Administrative
Code, through its Section 31, allows the President is to "reorganize," not to create a public office within
the Executive department.
Second, the Truth Commission, as created by the EO, appears to be a separate body [82] that is
clearly beyond being merely a group of people tasked by the President to accomplish a specific task
within his immediate office; its members do not operate in the way that presidential assistants and
consultants usually do.
It is not insignificant that the Commission has its own Rules of Procedure that it issued on its own
on the authority of the EO. Note that these are not the rules of the Office of the President but of another
body, although one constituted by the President.
The Commission has its own complete set of officers, beginning from the Chair and members of
the Commission; it has its own consultants, experts, and employees, although the latter are merely
drawn from the Executive department; [83] and it even has provisions for its own budget, although these
funds ride on and are to be drawn from the budget of the Office of the President. STECAc
Third, the Commission has its own identity, separate and distinct from the Office of the President,
although it still falls within the structural framework of that office. The Commission undertakes its own
"independent" investigation [84] that, according to the Solicitor General, will not be controlled by the
Office of the President; [85] and it communicates on its own, under its own name, to other branches of
government outside of the Executive branch.
Lastly, the Commission as an office has been vested with functions that not even the Office of the
President possesses by authority of law, and which the President, consequently, cannot delegate.
Specifically, the Commission has its truth-telling function, because it has been given the task to disclose
the "truth" by the President, thus giving its report the imprimatur of truth well ahead of any determination
in this regard by the constitutional bodies authorized to determine the existence of probable cause and
the guilt or culpability of individuals.
If the President cannot give the official label of truth independently of the courts in a fact-finding in
a criminal case, either by himself or through the Department of Justice, it only follows that he cannot
delegate this task to any assistant, consultant, or subordinate, even granting that he can order a fact-
finding investigation based on the powers of his office. This truth-telling function differentiates the Truth
Commission from other commissions constituted in the past such as the Agrava, Feliciano and Melo
Commissions; the pronouncements of the latter bodies did not carry the imprimatur of truth, and were
mere preliminary findings for the President's consideration. An exact recent case to drive home this point
is the Chinese hostage incident where the Office of the President modified the Report submitted by a
duly-constituted group headed by Secretary Leila de Lima. [86] Apparently, the findings of the De Lima
committee did not carry the imprimatur of truth and were merely recommendatory; otherwise the Office
of the President would not have modified its findings and recommendations.
Still on the point of the President's authority to delegate tasks to a body he has constituted, in no
case can the President order a fact-finding whose results will operate to undercut the authority and
integrity of the Ombudsman in a reported violation of the criminal laws by a public servant. The
President's authority — outside of the instance when the Department of Justice acts in default of the
Ombudsman — is to bring to the attention of, or make recommendations to, the Ombudsman violations
of the law that the Executive branch uncovers in the course of law enforcement. This authority should be
no different from that which Congress and the Supreme Court exercise on the same point.
Given all the possibilities open to the President for a legitimate fact-finding intervention — namely,
through fact-finding by the Department of Justice or by the Office of the President itself, utilizing its own
officials, employees, consultants or assistants — the President is not wanting in measures within the
parameters allowed by law to fight graft and corruption and to address specific instances that come to
his attention. To be sure, the Philippine situation right now is far from the situations in South Africa,
Rwanda, and South America, [87] where quick transitional justice [88] had to be achieved because these
countries were coming from a period of non-democratic rule and their desired justice systems were not
yet fully in place. This reality removes any justification for the President to resort to extralegal (or even
illegal) measures and to institutions and mechanisms outside of those already in place, in proceeding
against grafters in the previous administration.
If the President and Congress are dissatisfied with the Ombudsman's performance of duty, the
constitutionally-provided remedy is to impeach the Ombudsman based on the constitutionally-provided
grounds for removal. The remedy is not through the creation of a parallel office that either duplicates or
renders ineffective the Ombudsman's actions. By the latter action, the President already situates himself
and the Executive Department into the justice system in a manner that the Constitution and the law do
not allow.
D. THE PRESIDENT HAS NO AUTHORITY EITHER
UNDER THE CONSTITUTION OR UNDER THE LAWS
TO CREATE THE TRUTH COMMISSION.
Under the 1987 Constitution, the authority to create offices is lodged exclusively in Congress. This
is a necessary implication [89] of its "plenary legislative power." [90] Thus, except as otherwise provided
by the Constitution or statutory grant, no public office can be created except by Congress; any
unauthorized action in this regard violates the doctrine of separation of powers. SCHIac
In essence, according to Father Joaquin Bernas, "separation of powers means that legislation
belongs to Congress, execution to the executive, settlement of legal controversies to the judiciary." [91]
This means that the President cannot, under the present Constitution and in the guise of "executing the
laws," perform an act that would impinge on Congress' exclusive power to create laws, including the
power to create a public office.
In the present case, the exclusive authority of Congress in creating a public office is not
questioned. The issue raised regarding the President's power to create the Truth Commission boils
down to whether the Constitution allows the creation of the Truth Commission by the President or by an
act of Congress.
D.1 The Section 31 Argument.
EO 1, by its express terms, [92] is premised on "Book III, Chapter 10, Section 31 of Executive
Order No. 292, otherwise known as the Revised Administrative Code of the Philippines, which gives the
President the continuing authority to reorganize the Office of the President. The Solicitor General, of
course, did not steadfastly hold on to this view; in the course of the oral arguments and in his
Memorandum, he invoked other bases for the President's authority to issue EO 1. In the process, he
likewise made various claims, not all of them consistent with one another, on the nature of the Truth
Commission that EO 1 created.
Section 31 shows that it is a very potent presidential power, as it empowers him to (1) to re-
organize his own internal office; (2) transfer any function or office from the Office of the President to the
various executive departments; and (3) transfer any function or office from the various executive
departments to the Office of the President.
To reorganize presupposes that an office is or offices are already existing and that (1) a reduction
is effected, either of staff or of its functions, for transfer to another or for abolition because of
redundancy; (2) offices are merged resulting in the retention of one as the dominant office; (3) two
offices are abolished resulting in the emergence of a new office carrying the attributes of its
predecessors as well as their responsibilities; or (4) a new office is created by dividing the functions and
staff of an existing office. Buklod ng Kawaning EIIB v. Hon. Executive Secretary addresses this point
when it said:
[R]eorganization involves the reduction of personnel, consolidation of offices, or abolition

thereof by reason of economy or redundancy of functions. It takes place when there is an alteration
of the existing structure of government offices or units therein, including the lines of control, authority
and responsibility between them. [93]
These traditional concepts of reorganization do not appear to have taken place in the
establishment of the Truth Commission. As heretofore mentioned, by its plain terms, it was "created"
and did not simply emerge from the functions or the personality of another office, whether within or
outside the Office of the President. Thus, it is a completely new body that the President constituted, not
a body that appropriated the powers of, or derived its powers from, the investigatory and prosecutory
powers of the Department of Justice or any other investigatory body within the Executive branch.
From the Solicitor General's Memorandum, it appears that the inspiration for the EO came from
the use and experiences of truth commissions in other countries that were coming from "determinate
periods of abusive rule or conflict" for purposes of making "recommendations for [the] redress and future
prevention" [94] of similar abusive rule or conflict. It is a body to establish the "truth of what abuses
actually happened in the past;" the Solicitor General even suggests that the "doctrine of separation of
powers and the extent of the powers of co-equal branches of government should not be so construed as
to restrain the Executive from uncovering the truth about betrayals of public trust, from addressing their
enabling conditions, and from preventing their recurrence." [95] By these perorations, the Solicitor
General unwittingly strengthens the view that no reorganization ever took place when the Truth
Commission was created; what the President "created" was a new office that does not trace its roots to
any existing office or function from the Office of the President or from the executive departments and
agencies he controls. IACDaS
Thus, the President cannot legally invoke Section 31 to create the Truth Commission. The
requirements for the application of this Section are simply not present; any insistence on the use of this
Section can only lead to the invalidity of EO 1.
D.2. The PD 1416 and Residual Powers Argument
Independently of the EO's express legal basis, the Solicitor-General introduced a new basis of
authority, theorizing that "the power of the President to reorganize the executive branch" is justifiable
under Presidential Decree (PD) No. 1416, as amended by PD No. 1772, based on the President's
residual powers under Section 20, Title I, Book III of E.O. No. 292." He cites in this regard the case of
Larin v. Executive Secretary [96] and according to him:
. . . This provision speaks of such other powers vested in the President under the law. What
law then which gives him the power to reorganize? It is Presidential Decree No. 1772 which
amended Presidential Decree No. 1416. These decrees expressly grant the President of the
Philippines the continuing authority to reorganize the national government, which includes the power
to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize salaries and materials. The validity of
these two decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees,
executive orders, proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed or revoked." So far,
there is yet no law amending or repealing said decrees. [97] [Emphasis supplied]
Unfortunately, even the invocation of the transitory clause of the 1987 Constitution (regarding the
validity of laws and decrees not inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a
legislation that has long lost its potency.
Contemporary history teaches us that PD 1416 was passed under completely different factual and
legal milieus that are not present today, thus rendering this presidential decree an anachronism that can
no longer be invoked.
Prior to the EDSA Revolution of 1986 (and the 1987 Constitution), President Marcos exercised
legislative powers and issued PD 1416, as amended by PD 1772, which, by its express terms, allowed
the President to reorganize and/or create offices within the National Government. This was sanctioned
in the exercise of the President's martial law powers and on the basis of Article XVII, Section 3(2) of the
1973 Constitution. [98]
Upon the adoption of the 1987 Constitution, and the re-introduction of the presidential form of
government, the "separation of legislative and executive powers" [99] was restored. Similarly recognized
were the limits on the exercise of the carefully carved-out and designated powers of each branch of
government. Thus, Congress regained the exclusive power to create public offices; PD 1416, as
amended by PD 1776 — a creation of the legal order under President Marcos — lost its authority as a
justification for the creation of an office by the President.
That PD 1416, as amended by PD 1776, has been overtaken and rendered an obsolete law, is
not a new position taken within this Court. In his separate concurring opinion in Banda v. Executive
Secretary, [100] Justice Antonio T. Carpio pointedly posited that the ruling in Larin v. Executive Secretary
[101] (reiterated in Buklod ng Kawaning EIIB v. Hon. Sec. Zamora [102] and Tondo Medical Center
Employees Association v. Court of Appeals), [103] which relied on Section 20, Chapter 7, Book II of the
Administrative Code of 1987 in relation with P.D. 1416, cannot validate Executive Order No. 378
assailed in that case because "P.D. 1416, as amended, with its blending of legislative and executive
powers, is a vestige of an autocratic era, totally anachronistic to our present-day constitutional
democracy." [104] aTADcH
Thus, the present and firmly established legal reality is that under the 1987 Constitution and the
Revised Administrative Code, the President cannot create a public office except to the extent that he is
allowed by Section 31, Chapter 10, Book III of the Revised Administrative Code. As discussed above,
even this narrow window cannot be used as the President did not comply with the requirements of
Section 31.
D.3. The Authority of the President under the Faithful Execution Clause
Article VII, Section 17 of the 1987 Constitution directs and authorizes the President to faithfully
execute the laws and the potency of this power cannot be underestimated. Owing perhaps to the
latitude granted to the President under this constitutional provision, the Solicitor General posited that the
President's power to create the Truth Commission may be justified under this general grant of authority.
In particular, the Solicitor General argues that the "President's power to conduct investigations to aid him
in ensuring the faithful execution of laws — in this case, fundamental laws on public accountability and
transparency — is inherent in the President's powers as the Chief Executive." [105] The Solicitor General
further argues: "That the authority of the President to conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the Constitution or in statutes does not mean he is
bereft of such authority." [106]
That the President cannot, in the absence of any statutory justification, refuse to execute the laws
when called for is a principle fully recognized by jurisprudence. In In re Neagle, the US Supreme Court
held that the faithful execution clause is "not limited to the enforcement of acts of Congress according to
their express terms." [107] According to Father Bernas, Neagle "saw as law that had to be faithfully
executed not just formal acts of the legislature but any duty or obligation inferable from the Constitution
or from statutes." [108]
Under his broad powers to execute the laws, the President can undoubtedly create ad hoc bodies
for purposes of investigating reported crimes. The President, however, has to observe the limits
imposed on him by the constitutional plan: he must respect the separation of powers and the
independence of other bodies which have their own constitutional and statutory mandates, as discussed
above. Contrary to what J. Antonio Eduardo B. Nachura claims in his Dissent, the President cannot
claim the right to create a public office in the course of implementing the law, as this power lodged
exclusively in Congress. An investigating body, furthermore, must operate within the Executive branch;
the President cannot create an office outside the Executive department.
These legal realities spawned the problems that the Solicitor General created for himself when he
made conflicting claims about the Truth Commission during the oral arguments. For accuracy, the
excerpts from the oral arguments are best quoted verbatim. [109]
Associate Justice Nachura:
Mr. Solicitor General, most of my questions have actually been asked already and there are
few things that I would like to be clarified on. Well, following the questions asked by Justice
Carpio, I would like a clarification from you, a definite answer, is the Truth Commission a
public office?
Solicitor General Cadiz:
No, Your Honor.
Ah, you mean it is not a public office?
It is not a public office in the concept that it has to be created by Congress, Your Honor.
Oh, come on, I agree with you that the President can create public offices, that was what, ah,
one of the questions I asked Congressman Lagman. CSEHcT
Thank you, your Honor.
Because he was insisting that only Congress could create public office although, he said, the
President can create public offices but only in the context of the authority granted under the
Administrative Code of 1987. So, it is a public office?
Yes, Your Honor.
This is definite, categorical. You are certain now that Truth Commission (interrupted)
Yes, Your Honor, under the Office of the President Proper, yes, Your Honor.
Again?
That this Truth Commission is a public office, Your Honor, created under the Office of the
President.
Okay, created under the Office of the President, because it is the President who created it.
And the President can create offices only within the executive department. He cannot create a
public office outside of the executive department, alright.
Yes, Your Honor.
Okay. So, the Commissioners who are appointed are what, Presidential Assistants? Are they
Presidential Assistants?
They are Commissioners, Your Honor.
They are, therefore, alter-egos of the President?
No, Your Honor. There is created a Truth Commission, and Commissioners are appointed and
it so stated here that they are independent.
Aha, okay. THIcCA
Of the Office of the President.
Are you saying now that the Commissioners are not under the power and control of the
President of the Philippines?
It is so stated in the Executive Order, Your Honor.
Aha, alright. So, the Truth Commission is not an office within the executive department,
because it is not under the power of control of the President, then, Section 17 of Article VII
would not apply to them, is that it?
Your Honor, the President has delineated his power by creating an Executive Order which
created the Commission, which says, that this is an independent body, Your Honor.
Okay. So, what you are saying is, this is a creation of the President, it is under the President's
power of control, but the President has chosen not to exercise the power of control by
declaring that it shall be an independent body?
Yes, Your Honor.
That is your position. I would like you to place that in your memorandum and see. I would like
to see how you will develop that argument.
The Solicitor General, despite his promise to respond through his Memorandum, never bothered
to explain point-by-point his unusual positions and conclusions during the oral arguments, responding
only with generalities that were not responsive or in point. [110]
Specifically, while admitting that the Truth Commission is a "creation" of the President under his
office pursuant to the latter's authority under the Administrative Code of 1987, the Solicitor General
incongruously claimed that the Commission is "independent" of the Office of the President and is not
under his control. Mercifully, J. Nachura suggested that the President may have created a body under
his control but has chosen not to exercise the power of control by declaring that it is an independent
body, to which the Solicitor General fully agreed.
Truth to tell (no pun intended), the Solicitor General appears under these positions to be playing a
game of smoke and mirrors with the Court. For purposes of the creation of the Truth Commission, he
posits that the move is fully within the President's authority and in the performance of his executive
functions. This claim, of course, must necessarily be based on the premise that execution is by the
President himself or by people who are within the Executive Department and within the President's
power of supervision and control, as the President cannot delegate his powers beyond the Executive
Department. At the same time, he claims that the Commissioners (whom he refuses to refer to as
Presidential Assistants or as alter egos of the President) [111] are independent of the President,
apparently because the President has waived his power of control over them. DTESIA
All these necessarily lead to the question: can the President really create an office within the
Executive branch that is independent of his control? The short answer is he cannot, and the short
reason again is the constitutional plan. The execution and implementation of the laws have been placed
by the Constitution on the shoulders of the President and on none other. [112] He cannot delegate his
executive powers to any person or entity outside the Executive department except by authority of the
Constitution or the law (which authority in this case he does not have), nor can he delegate his authority
to undertake fact-finding as an incident of his executive power, and at the same time take the position
that he has no responsibility for the fact-finding because it is independent of him and his office.
Under the constitutional plan, the creation of this kind of office with this kind of independence is
lodged only in the Legislature. [113] For example, it is only the Legislature which can create a body like
the National Labor Relations Commission whose decisions are final and are neither appealable to the
President nor to his alter ego, the Secretary of Labor. [114] Yet another example, President Corazon
Aquino herself, because the creation of an independent commission was outside her executive powers,
deemed it necessary to act pursuant to a legislative fiat in constituting the first Davide Commission of
1989. [115]
Apparently, the President wanted to create a separate, distinct and independent Commission
because he wants to continuously impress upon the public — his audience in the second forum — that
this Commission can tell the "truth" without any control or prompting from the Office of the President and
without need of waiting for definitive word from those constitutionally-assigned to undertake this task.
Here, truth-telling again rears its ugly head and is unmasked for what it really is — an attempt to bypass
the constitutional plan on how crimes are investigated and resolved with finality.
Otherwise stated, if indeed the President can create the Commission as a fact-finding or
investigating body, the Commission must perforce be an entity that is within the Executive branch and
as such is subject to the control and supervision of the President. In fact, the circumstances surrounding
the existence of the Commission — already outlined above in terms of its processes, facilities, budget
and staff — cannot but lead to control. Likewise, if indeed the Truth Commission is under the control of
the President who issued the EO with openly-admitted political motivation, [116] then the Solicitor
General's representation about the Commission's independently-arrived "truth" may fall under the
classification of a smoke and mirror political move. Sad to state, the Solicitor General chose to aim for
the best of all worlds in making representations about the creation and the nature of the Commission.
We cannot allow this approach to pass unnoticed and without the observations it deserves.
If the President wants a truly independent Commission, then that Commission must be
created through an act of Congress; otherwise, that independent Commission will be an
unconstitutional body. Note as added examples in this regard that previous presidential fact-finding
bodies, created either by Executive or Administrative Orders (i.e., Feliciano, Melo, Zeñarosa and IIRC
Commissions), were all part of the Executive department and their findings, even without any express
representation in the orders creating them, were necessarily subject to the power of the President to
review, alter, modify or revise according to the best judgment of the President. That the President who
received these commissions' reports did not alter the recommendations made is not an argument that
the President can create an "independent" commission, as the Presidents receiving the commissions'
reports could have, but simply did not, choose to interfere with these past commissions' findings.
In sum, this Court cannot and should not accept an arrangement where: (1) the President creates
an office pursuant to his constitutional power to execute the laws and to his Administrative Code powers
to reorganize the Executive branch, and (2) at the same time or thereafter allow the President to
disavow any link with the created body or its results through a claim of independence and waiver of
control. This arrangement bypasses and mocks the constitutional plan on the separation of powers;
among others, it encroaches into Congress' authority to create an office. This consequence must
necessarily be fatal for the arrangement is inimical to the doctrine of separation of powers whose
purpose, according to Father Joaquin Bernas, is: HcaDTE
to prevent concentration of powers in one department and thereby to avoid tyranny. But the
price paid for the insurance against tyranny is the risk of a degree of inefficiency and even the danger
of gridlock. As Justice Brandeis put it, "the doctrine of separation of powers was adopted . . . not to
promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid
friction, but, by means of the inevitable friction incident to the distribution of governmental powers
among the three departments, to save the people from autocracy." [117]
Indeed, to allow one department of government, without the authority of law or the Constitution, to be
granted the authority to bestow an advanced imprimatur of "truth" bespeaks of a concentration of power
that may well overshadow any initiative to combat graft and corruption; in its own way, this grant itself is
an open invitation to the very evils sought to be avoided.
E. VIOLATIONS OF THE RIGHTS

OF INVESTIGATED PERSONS
E.1 Violation of Personal Rights
Separately from the above effects, truth-telling as envisioned under the EO, carries prejudicial
effects on the persons it immediately targets, namely: the officials, employees and private individuals
alleged to have committed graft and corruption during the previous administration. This consequence
proceeds from the above discussed truth-telling premise that — whether the Commission reports
(recommending the charging of specific individuals) are proven or not in the appropriate courts — the
Commission's function of truth-telling function would have been served and the Commission would have
effectively acted against the charged individuals.
The most obvious prejudicial effect of the truth-telling function on the persons investigated is on
their persons, reputation and property. Simply being singled out as "charged" in a truth-telling report will
inevitably mean disturbance of one's routines, activities and relationships; the preparation for a defense
that will cost money, time and energy; changes in personal, job and business relationships with others;
and adverse effects on jobs and businesses. Worse, reputations can forever be tarnished after one is
labelled as a participant in massive graft and corruption.
Conceivably, these prejudicial effects may be dismissed as speculative arguments that are not
justified by any supporting evidence and, hence, cannot effectively be cited as factual basis for the
invalidity of the EO. Evidence, however, is hardly necessary where the prejudicial effects are self-
evident, i.e., given that the announced and undisputed government position that truth-telling per se, in
the manner envisioned by the EO and its implementing rules, is an independent objective the
government wants to achieve. When the government itself has been heard on the "truth," the probability
of prejudice for the individual charged is not only a likelihood; it approaches the level of certainty.
In testing the validity of a government act or statute, such potential for harm suffices to invalidate
the challenged act; evidence of actual harm is not necessary in the way it is necessary for a criminal
conviction or to justify an award for damages. In plainer terms, the certainty of consequent damage
requires no evidence or further reasoning when the government itself declares that for as long as the
"story" of the allegedly massive graft and corruption during the past administration is told, the
Commission would have fulfilled one of its functions to satisfaction; under this reckless approach, it is
self-evident that the mistaken object of the "truth" told must necessarily suffer. CEIHcT
In the context of this effect, the government statement translates to the message: forget the
damage the persons investigated may suffer on their persons and reputation; forget the rights
they are entitled to under the Constitution; give primacy to the story told. This kind of message, of
course, is unacceptable under a Constitution that establishes the strongest safeguards, through the Bill
of Rights, in favor of the individual's right to life, security and property against the overwhelming might of
the government.
E.2 Denial of the right to a fair criminal trial.
The essence of the due process guarantee in a criminal case, as provided under Section 14 (1) of
the Constitution, is the right to a fair trial. What is fair depends on compliance with the express
guarantees of the Constitution, and on the circumstances of each case.

When the Commission's report itself is characterized, prior to trial, and held out by the
government to be the true story of the graft and corruption charged, the chances of individuals to have a
fair trial in a subsequent criminal case cannot be very great.
Consider on this point that not even the main actors in the criminal justice system — the
Ombudsman, the Sandiganbayan and even this Court — can avoid the cloud of "untruth" and a doubtful
taint in their integrity after the government has publicized the Commission's findings as the truth. If the
rulings of these constitutional bodies themselves can be suspect, individual defenses for sure cannot
rise any higher.
Where the government simply wants to tell its story, already labelled as true, well ahead of any
court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion
that news of government scandals generate, it does not require a leap of faith to conclude that an
accused brought to court against overwhelming public opinion starts his case with a less than equal
chance of acquittal. The presumption of innocence notwithstanding, the playing field cannot but be
uneven in a criminal trial when the accused enters trial with a government-sponsored badge of guilt on
his forehead. [118] The presumption of innocence in law cannot serve an accused in a biased
atmosphere pointing to guilt in fact because the government and public opinion have spoken
against the accused.
Viewed from the perspective of its cause, the prejudicial publicity, that adversely affects the
chances of an accused for a fair trial after the EO has done its job, is not the kind that occurs solely
because of the identity of the individual accused. This prejudice results from a cause systemic to the EO
because of its truth-telling feature that allows the government to call its proceedings and reports a
process of truth-telling where the tales cannot but be true. This kind of systemic aberration has no place
in the country's dispensation of criminal justice system and should be struck down as invalid before it
can fully work itself into the criminal justice system as an acceptable intervention.
F. THE TRUTH COMMISSION AND
THE EQUAL PROTECTION CLAUSE
The guarantee of equal protection of the law is a branch of the right to due process embodied in
Article III, Section 1 of the Constitution. It is rooted in the same concept of fairness that underlies the
due process clause. In its simplest sense, it requires equal treatment, i.e., the absence of discrimination,
for all those under the same situation. An early case, People v. Cayat, [119] articulated the requisites
determinative of valid and reasonable classification under the equal protection clause, and stated that it
must
(1) rest on substantial distinctions;
(2) be germane to the purpose of the law;
(3) not be limited to existing conditions only; and
(4) apply equally to all members of the same class. SaDICE
In our jurisdiction, we mainly decide equal protection challenges using a "rational basis" test,
coupled with a "deferential" scrutiny of legislative classifications and a reluctance to invalidate a law
unless there is a showing of a clear and unequivocal breach of the Constitution. [120] Our views on the
matter, however, have not remained static, and have been attuned to the jurisprudential developments in
the United States on the levels of scrutiny that are applied to determine the acceptability of any
differences in treatment that may result from the law. [121]
Serrano v. Gallant Maritime Services, Inc. [122] summarizes the three tests employed in this
jurisdiction as follows:
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the
challenged classification needs only be shown to be rationally related to serving a legitimate state
interest; b) the middle-tier or intermediate scrutiny in which the government must show that the
challenged classification serves an important state interest and that the classification is at least
substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative
classification which impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the
burden is upon the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such interest.
[Emphasis supplied]
The most exacting of the three tests is evidently the strict scrutiny test, which requires the
government to show that the challenged classification serves a compelling state interest and that the
classification is necessary to serve that interest. [123] Briefly stated, the strict scrutiny test is applied
when the challenged statute either:
(1) classifies on the basis of an inherently suspect characteristic; or
(2) infringes fundamental constitutional rights.
In these situations, the usual presumption of constitutionality is reversed, and it falls upon the
government to demonstrate that its classification has been narrowly tailored to further
compelling governmental interests; otherwise, the law shall be declared unconstitutional for violating
the equal protection clause. [124]
In EO 1, for the first time in Philippine history, the Executive created a public office to address the
"reports of graft and corruption of such magnitude that shock and offend the moral and ethical
sensibilities of the people, committed. . . . during the previous administration" through fact-finding, policy
formulation and truth-telling. [125] While fact-finding has been undertaken by previous investigative
commissions for purposes of possible prosecution and policy-formulation, a first for the current Truth
Commission is its task of truth-telling. The Commission not only has to investigate reported graft and
corruption; it also has the authority to announce to the public the "truth" regarding alleged graft and
corruption committed during the previous administration.
EO 1's problem with the equal protection clause lies in the truth-telling function it gave the Truth
Commission.
As extensively discussed earlier in this Opinion, truth-telling is not an ordinary task, as the
Commission's reports to the government and the public are already given the imprimatur of truth way
before the allegations of graft and corruption are ever proven in court. This feature, by itself, is a unique
differential treatment that cannot but be considered in the application of the jurisprudential equal
protection clause requirements. cDIHES
Equally unique is the focus of the Commission's investigation — it solely addresses alleged graft
and corruption committed during the past administration. This focus is further narrowed down to "third
level public officers and higher, their co-principal, accomplices and accessories from the private sector, if
any, during the previous administration." [126] Under these terms, the subject of the EO is limited only to
a very select group — the highest officials, not any ordinary government official at the time. Notably
excluded under these express terms are third level and higher officials of other previous administrations
who can still be possibly be charged of similar levels of graft and corruption they might have perpetrated
during their incumbency. Likewise excepted are the third level officials of the present administration who
may likewise commit the same level of graft and corruption during the term of the Commission.
Thus, from the points of truth-telling and the focus on the people to be investigated, at least a
double layer of differential treatment characterizes the Truth Commission's investigation. Given these
disparate treatment, the equal protection question that arises is: does the resulting classification and
segregation of third level officials of the previous administration and their differential treatment rest on
substantial distinctions? Stated more plainly, is there reasonable basis to differentiate the officials
of the previous administration, both from the focus given to them in relation with all other
officials as pointed out above, and in the truth-telling treatment accorded to them by the
Commission?
Still a deeper question to be answered is: what level of scrutiny should be given to the patent
discrimination in focus and in treatment that the EO abets? Although this question is stated last, it should
have been the initial consideration, as its determination governs the level of scrutiny to be accorded; if
the strict scrutiny test is appropriate, the government, not the party questioning a classification, carries
the burden of showing that permissible classification took place. This critical consideration partly
accounts, too, for the relegation to the last, among the EO's cited grounds for invalidity, of the equal
protection clause violation; the applicable level of scrutiny may depend on the prior determination of
whether, as held in Serrano, the disparate treatment is attended by infringement of fundamental
constitutional rights.
"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause
are those basic liberties explicitly or implicitly guaranteed in the Constitution. Justice Carpio-Morales,
although in dissent in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, [127]
elaborated on this point when she said:
Most fundamental rights cases decided in the United States require equal protection analysis
because these cases would involve a review of statutes which classify persons and impose differing
restrictions on the ability of a certain class of persons to exercise a fundamental right. Fundamental
rights include only those basic liberties explicitly or implicitly guaranteed by the U.S.
Constitution. And precisely because these statutes affect fundamental liberties, any
experiment involving basic freedoms which the legislature conducts must be critically
examined under the lens of Strict Scrutiny. ATHCac
Fundamental rights which give rise to Strict Scrutiny include the right of procreation,
the right to marry, the right to exercise First Amendment freedoms such as free speech,
political expression, press, assembly, and so forth, the right to travel, and the right to vote.
[Emphasis supplied]
In the present case, as shown by the previously cited grounds for the EO's invalidity, EO No. 1
infringes the personal due process rights of the investigated persons, as well as their
constitutional right to a fair trial. Indisputably, both these rights — one of them guaranteed under
Section 1, Article III, and under Section 14 of the same Article — are, by jurisprudential definition,
fundamental rights. With these infringements, the question now thus shifts to the application of the strict
scrutiny test — an exercise not novel in this jurisdiction.
In the above-cited Central Bank Employees Association, Inc. case, [128] we stated:
Congress retains its wide discretion in providing for a valid classification, and its policies
should be accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations. Rational basis
should not suffice.
xxx xxx xxx
But if the challenge to the statute is premised on the denial of a fundamental right, or
the perpetuation of prejudice against persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A weak and watered down view would call
for the abdication of this Court's solemn duty to strike down any law repugnant to the Constitution
and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a
private person or the government itself or one of its instrumentalities. Oppressive acts will be struck
down regardless of the character or nature of the actor. [Underscoring supplied]
Stripped of the usual deference accorded to it, the government must show that a compelling state
interest exists to justify the differential treatment that EO 1 fosters.
[129]
Serrano v. Gallant Maritime Services, Inc. helpfully tells us the compelling state interest that
is critical in a strict scrutiny examination:
What constitutes compelling state interest is measured by the scale of rights and powers
arrayed in the Constitution and calibrated by history. It is akin to the paramount interest of the state
for which some individual liberties must give way, such as the public interest in safeguarding health
or maintaining medical standards, or in maintaining access to information on matters of public

concern.
In this same cited case, the Court categorically ruled that "the burden is upon the government to prove
that the classification is necessary to achieve a compelling state interest and that it is the least
restrictive means to protect such interest." [130]
On its face, the compelling state interest the EO cites is the "urgent call for the determination of
the truth regarding certain reports of large scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against those involved if warranted, and to deter
others from committing the evil, restore the people's faith and confidence in the Government and in their
public servants." [131] Under these terms, what appears important to the government as means or
mediums in its fight against graft and corruption are (1) to expose the graft and corruption the past
administration committed; (2) to prosecute the malefactors, if possible; and (3) to set an example
for others. Whether a compelling State interest exists can best be tested through the prism of the
means the government has opted to utilize. cSICHD
In the usual course and irrespective of who the malefactors are and when they committed their
transgressions, grafters and corruptors ought to be prosecuted. This is not only a goal but a duty of
government. Thus, by itself, the prosecution that the EO envisions is not any different from all other
actions the government undertakes day to day under the criminal justice system in proceeding against
the grafters and the corrupt. In other words, expressed as a duty, the compelling drive to prosecute must
be the same irrespective of the administration under which the graft and corruption were perpetrated. If
indeed this is so, what compelling reasons can there be to drive the government to use the EO and its
unusual terms in proceeding against the officials of the previous administration?
If the EO's terms are to be the yardstick, the basis for the separate focus is the "extent and
magnitude" of the reported graft and corruption which "shock and offend the moral and ethical
sensibilities of the people." What this "extent and magnitude" is or what specific incidents of massive
graft are referred to, however, have been left vague. Likewise, no explanation has been given on why
special measures — i.e., the special focus on the targeted officials, the creation of a new office, and the
grant of truth-telling authority — have been taken.
Effectively, by acting as he did, the President simply gave the Commission the license to an open
hunting season to tell the "truth" against the previous administration; the Commission can investigate an
alleged single billion-peso scam, as well as transactions during the past administration that, collectively,
may reach the same amount. Only the Commission, in its wisdom, is to judge what allegations or reports
of graft and corruption to cover for as long as these were during the past administration. In the absence
of any specific guiding principle or directive, indicative of its rationale, the conclusion is unavoidable that
the EO carries no special compelling reason to single out officials of the previous administration; what is
important is that the graft be attributed to the previous administration. In other words, the real reason for
the EO's focus lies elsewhere, not necessarily in the nature or extent of the matters to be investigated.
If, as strongly hinted by the Solicitor General, dissatisfaction exists regarding the Ombudsman's
zeal, efforts, results, and lack of impartiality, these concerns should be addressed through the remedies
provided under the Constitution and the laws, not by bypassing the established remedies under these
instruments. Certainly, the remedy is not through the creation of new public office without the authority of
Congress.
Every successful prosecution of a graft and corruption violation ought to be an opportunity to set
an example and to send a message to the public that the government seriously intends to discharge its
duties and responsibilities in the area of graft and corruption. To be sure, the conviction of a third level
officer is a high profile accomplishment that the government can and should announce to all as evidence
of its efforts and of the lesson that the conviction conveys. This government's accomplishment, however,
does not need to be against an official or officials of the previous administration in order to be a lesson;
it can be any third level or higher official from any administration, including the present. In fact, the
present administration's serious intent in fighting graft may all the more be highlighted if it will
also proceed against its own people.
It is noteworthy that the terms of the EO itself do not provide any specific reason why, for
purposes of conveying a message against graft and corruption, the focus should be on officials of the
previous administration under the EO's special truth-telling terms. As mentioned above, the extent of the
alleged graft and corruption during the previous administration does not appear to be a sufficient reason
for distinction under the EO's vague terms. Additionally, if a lesson for the public is really intended, the
government already has similar successful prosecutions to its credit and can have many more graphic
examples to draw from; it does not need to be driven to unusual means to show the graft and corruption
committed under the previous administration. The host of examples and methodologies already
available to the government only demonstrate that the focus on, and differential treatment of, specific
officials for public lesson purposes involves a classification unsupported by any special overriding
reason. IDATCE
Given the lack of sufficiently compelling reasons to use two (2) of the three (3) objectives or
interests the government cited in EO 1, what is left of these expressed interests is simply the desire to
expose the graft and corruption the previous administration might have committed. Interestingly, the EO
itself partly provides the guiding spirit that might have moved the Executive to its intended expose as it
unabashedly points to the President's promise made in the last election — "Kung walang corrupt,
walang mahirap." [132] There, too, is the Solicitor General's very calculated statement that truth-telling is
an end in itself that the EO wishes to achieve.
Juxtaposing these overt indicators with the EO's singleness of focus on the previous
administration, what emerges in bold relief is the conclusion that the EO was issued largely for political
ends: the President wants his election promise fulfilled in a dramatic and unforgettable way; none could
be more so than criminal convictions, or at least, exposure of the "truth" that would forever mark his
political opponents; thus, the focus on the previous administration and the stress on establishing their
corrupt ways as the "truth."
Viewed in these lights, the political motivation behind the EO becomes inescapable. Political
considerations, of course, cannot be considered a legitimate state purpose as basis for proper
classification. [133] They may be specially compelling but only for the point of view of a political party or
interest, not from the point of view of an equality-sensitive State.
In sum, no sufficient and compelling state interest appears to be served by the EO to justify the
differential treatment of the past administration's officials. In fact, exposure of the sins of the previous
administration through truth-telling should not even be viewed as "least restrictive" as it is in fact a
means with pernicious effects on government and on third parties.
For these reasons, the conclusion that the EO violates the equal protection clause is unavoidable.
G. A FEW LAST WORDS
Our ruling in this case should not in any way detract from the concept that the Judiciary is the
least dangerous branch of government. The Judiciary has no direct control over policy nor over the
national purse, in the way that the Legislature does. Neither does it implement laws nor exercise power
over those who can enforce laws and national policy. All that it has is the power to safeguard the
Constitution in a manner independent of the two other branches of government. Ours is merely the
power to check and ensure that constitutional powers and guarantees are observed, and constitutional
limits are not violated.
Under this constitutional arrangement, the Judiciary offers the least threat to the people and their
rights, and the least threat, too, to the two other branches of government. If we rule against the other
two branches of government at all in cases properly brought before us, we do so only to exercise our
sworn duty under the Constitution. We do not prevent the two other branches from undertaking their
respective constitutional roles; we merely confine them to the limits set by the Constitution.
This is how we view our present action in declaring the invalidity of EO 1. We do not thereby
impugn the nobility of the Executive's objective of fighting graft and corruption. We simply tell the
Executive to secure this objective within the means and manner the Constitution ordains, perhaps in a
way that would enable us to fully support the Executive. TICDSc
[134]
To be sure, no cause exists to even impliedly use the term "imperial judiciary" in
characterizing our action in this case.
This Court, by constitutional design and for good reasons, is not an elective body and, as already
stated above, has neither reason nor occasion to delve into politics — the realm already occupied by the
two other branches of government. It cannot exercise any ascendancy over the two other branches of
government as it is, in fact, dependent on these two branches in many ways, most particularly for its
budget, for the laws and policies that are the main subjects for its interpretation, and for the enforcement
of its decisions. While it has the power to interpret the Constitution, the Judiciary itself, however, is
subject to the same Constitution and, for this reason, must in fact be very careful and zealous in
ensuring that it respects the very instrument it is sworn to safeguard. We are aware, too, that we "cannot
be the repository of all remedies" [135] and cannot presume that we can cure all the ills of society
through the powers the Constitution extended to us. Thus, this Court — by its nature and functions —
cannot be in any way be "imperial," nor has it any intention to be so. Otherwise, we ourselves shall
violate the very instrument we are sworn to uphold.
As evident in the way this Court resolved the present case, it had no way but to declare EO invalid
for the many reasons set forth above. The cited grounds are neither flimsy nor contrived; they rest on
solid legal bases. Unfortunately, no other approach exists in constitutional interpretation except to
construe the assailed governmental issuances in their best possible lights or to reflect these effects in a
creative way where these approaches are at all possible. Even construction in the best lights or a
creative interpretation, however, cannot be done where the cited grounds are major, grave and affect the
very core of the contested issuance — the situation we have in the present case.
Nor can this Court be too active or creative in advocating a position for or against a cause without
risking its integrity in the performance of its role as the middle man with the authority to decide disputed
constitutional issues. The better (and safer) course for democracy is to have a Court that holds on to
traditional values, departing from these values only when these values have become inconsistent with
the spirit and intent of the Constitution.
In the present case, as should be evident in reading the ponencia and this Separate Opinion, we
have closely adhered to traditional lines. If this can be called activism at all, we have been an activist for
tradition. Thereby, we invalidated the act of the Executive without however foreclosing or jeopardizing
his opportunity to work for the same objective in some future, more legally reasoned, and better framed
course of action.
BERSAMIN, J.:
I register my full concurrence with the Majority's well reasoned conclusion to strike down
Executive Order No. 1 (E.O. No. 1) for its incurable unconstitutionality.
I share and adopt the perspectives of my colleagues in the Majority on why the issuance has to be
struck down. I render this Separate Opinion only to express some thoughts on a few matters.
I
Locus Standi of Petitioners
I hold that the petitioners have locus standi.
In particular reference to the petitioners in G.R. No. 193036, I think that their being incumbent
Members of the House of Representatives gave them the requisite legal standing to challenge E. O. No.
1 as an impermissible intrusion of the Executive into the domain of the Legislature. Indeed, to the extent
that the powers of Congress are impaired, so is the power of each Member, whose office confers a right
to participate in the exercise of the powers of that institution; consequently, an act of the Executive that
injures the institution of Congress causes a derivative but nonetheless substantial injury that a Member
of Congress can assail. [1] Moreover, any intrusion of one Department in the domain of another
Department diminishes the enduring idea underlying the incorporation in the Fundamental Law of the
time-honored republican concept of separation of powers.
Justice Mendoza's main opinion, which well explains why the petitioners have locus standi, is
congruent with my view on the matter that I expressed in De Castro v. Judicial and Bar Council, et al., [2]
viz.: aSTAIH
Black defines locus standi as "a right of appearance in a court of justice on a given question."
In public or constitutional litigations, the Court is often burdened with the determination of the locus
standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of
the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of
public officials and offices involved in public service. It is required, therefore, that the petitioner must
have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions." Accordingly, it has been held that the interest of a person
assailing the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that the
person who would assail the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." Vera was followed in
Custodio v. President of the Senate, Manila Race Horse Trainers' Association v. De la Fuente, Anti-
Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in
Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental
importance." Some notable controversies whose petitioners did not pass the direct injury test were
allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the
issues raised by the petition due to their "far-reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to
bring their suits involving the constitutionality or validity of laws, regulations, and rulings. HICATc
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents the
public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition that he
is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus
standi. That is not surprising, for even if the issue may appear to concern only the public in general,
such capacities nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that
the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In
the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is
but the mere instrument of the public concern. As held by the New York Supreme Court in
People ex rel Case v. Collins: "In matter of mere public right, however . . . the people are the
real parties . . . It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer's suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot
be denied."
xxx xxx xxx
In any event, the Court retains the broad discretion to waive the requirement of legal standing
in favor of any petitioner when the matter involved has transcendental importance, or otherwise
requires a liberalization of the requirement.
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now
in order to remove any obstacle or obstruction to the resolution of the essential issue squarely
presented herein. We are not to shirk from discharging our solemn duty by reason alone of an
obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,
we pointed out: "Standing is a peculiar concept in constitutional law because in some cases, suits
are not brought by parties who have been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who actually sue in the public
interest." But even if, strictly speaking, the petitioners "are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised."
II
The President Has No Power to Create A Public Office
A public office may be created only through any of the following modes, namely: (a) by the
Constitution; or (b) by statute enacted by Congress; or (c) by authority of law (through a valid delegation
of power). [3] HcTEaA
The power to create a public office is essentially legislative, and, therefore, it belongs to
Congress. It is not shared by Congress with the President, until and unless Congress enacts legislation
that delegates a part of the power to the President, or any other officer or agency.
Yet, the Solicitor General contends that the legal basis for the President's creation of the Truth
Commission through E. O. No. 1 is Section 31, Chapter 10, Book III, of the Administrative Code of 1987.
Section 31, Chapter 10, Book III, of the Administrative Code of 1987, which reads:
of the President. For this purpose, he may take any of the following actions:
1. Restructure the internal organization of the Office of the President Proper, including the
immediate Offices, the Presidential Special Assistants/Advisers System, by abolishing, consolidating
or merging units thereof or transferring functions from one unit to another;
2. Transfer any function under the Office of the President to any other Department or
Agencies; and
3. Transfer any agency under the Office of the President to any other department or
agencies.
nowhere refers to the creation of a public office by the President. On the contrary, only a little effort is
needed to know from reading the text of the provision that what has been granted is limited to an
authority for reorganization through any of the modes expressly mentioned in the provision.
The Truth Commission has not existed 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 plain words of Section 1 of E. O. No. 1
itself, to wit:
Section 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION", which shall primarily seek and find the
during the previous administration; and thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice shall be served without fear or favor. CDaTAI
If the Truth Commission is an entirely new office, then it is not the result of any reorganization
undertaken pursuant to Section 31, Chapter 10, Book III, of the Administrative Code of 1987. Thus, the
contention of the Solicitor General is absolutely unwarranted.
Neither may the creation of the Truth Commission be made to rest for its validity on the fact that
the Constitution, through its Section 17, Article VII, invests the President with the duty to ensure that the
laws are faithfully executed. In my view, the duty of faithful execution of the laws necessarily presumes
the prior existence of a law or rule to execute on the part of the President. But, here, there is no law or
rule that the President has based his issuance of E. O. No. 1.
I cannot also bring myself to accept the notion that the creation of the Truth Commission is
traceable to the President's power of control over the Executive Department. It is already settled that the
President's power of control can only mean "the power of an officer to alter, modify, or set aside what a
subordinate officer had done in the performance of his duties, and to substitute the judgment of the
former for that of the latter." [4] As such, the creation by the President of a public office like the Truth
Commission, without either a provision of the Constitution or a proper law enacted by Congress
authorizing such creation, is not an act that the power of control includes.
III
Truth Commission Replicates and Usurps the
Duties and Functions of the
Office of the Ombudsman
I find that the Truth Commission replicates and usurps the duties and functions of the Office of the
Ombudsman. Hence, the Truth Commission is superfluous and may erode the public trust and
confidence in the Office of the Ombudsman.
The Office of the Ombudsman is a constitutionally-created quasi-judicial body established to
investigate and prosecute illegal acts and omissions of those who serve in the Government. Section 5,
Article XI of the 1987 Constitution enumerates the powers, functions, and duties of the Office of the
Ombudsman, including the power to:
(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
xxx xxx xxx
(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. aTDcAH
xxx xxx xxx
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption
in the Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
The Framers of the Constitution, particularly those of them who composed the Committee on
Accountability of Public Officers, intended the Office of the Ombudsman to be strong and effective, in
order to enable the Office of the Ombudsman to carry out its mandate as the Protector of the People
against the inept, abusive, and corrupt in the Government. This intent is clear from the proceedings on
the establishment of the Office of the Ombudsman, as follows:
SPONSORSHIP SPEECH
OF COMMISSIONER MONSOD
MR. MONSOD. Madam President, the Committee on Accountability of Public Officers is

respectfully submitting its proposed Article in the Constitution, and we would just want to make a few
remarks on the articles and sections that we have included.
xxx xxx xxx
With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a
distinction between the purely prosecutory function of the Tanodbayan and the function of a pure
Ombudsman who will use the prestige and persuasive powers of his office. To call the attention of
government officials to any impropriety, misconduct or injustice, we conceive the
Ombudsman as a champion of citizens . . . The concept of the Ombudsman here is admittedly a
little bit different from the 1973 concept . . . The idea here is to address ourselves to the problem
that those who have unlawfully benefitted from the acquisition of public property over the
years, through technicalities or practice, have gained immunity and that, therefore, the right of
the people to recover should be respected . . . . [5]
xxx xxx xxx
SPONSORSHIP SPEECH
OF COMMISSIONER COLAYCO
MR. COLAYCO. Thank you, Madam President.
The Committee is proposing the creation of an office which can act in a quick,
inexpensive and effective manner on complaints against the administrative inaction, abuse
and arbitrariness of government officials and employees in dealing with the people. . . . .
xxx xxx xxx
[W]e have proposed as briefly as possible in our resolution an office which will not require any
formal condition for the filing of a complaint. Under our proposal, a person can file a complaint even
by telephone and without much ado, the office of the Ombudsman is under obligation to see to it that
the complaint is acted upon, not merely attended to but acted upon. . . . . If the employee admits that
there was reason behind the complaint, he is told to do what the complainant wanted him to do
without much ado. And then that is followed up by the corresponding report to the department of the
government which has supervision over the employee at fault, with the proper recommendation. SHIcDT
xxx xxx xxx
Under our proposal, the Ombudsman is empowered to investigate, to inquire into and
to demand the production of documents involving transactions and contracts of the
government where disbursement of public finds is reported . . . [t]he main thrust is action; the
disciplinary and punitive remedy is secondary. On a higher level then, the Ombudsman is going
to be the eyes and ears of the people. Where administrative action demanded is not forthcoming . . .
he (Ombudsman) is authorized to make public the nature of the complaint and the inaction of the
official concerned, . . . . [6]
xxx xxx xxx
SPONSORSHIP SPEECH
OF COMMISSIONER NOLLEDO
MR. NOLLEDO. Thank you, Madam President.
xxx xxx xxx
Madam President, the creation of the Ombudsman . . . is in answer to the crying need of our
people for an honest and responsive government. The office of the Ombudsman as proposed by the
Committee on Accountability of Public Officers . . . is really an institution primarily for the citizens
as against the malpractices and corruption in the government. As an official critic, the
Ombudsman will study the law, the procedure and practice in the government, and make
appropriate recommendations for a more systematic operation of the governmental
machinery, free from bureaucratic inconveniences. As a mobilizer, the Ombudsman will see to it
that there be a steady flow of services to the individual consumers of government. And as a
watchdog, the Ombudsman will look after the general, as well as specific performances of all
government officials and employees so that the law may not be administered with an evil eye
or an uneven hand. [7]
On the other hand, E. O. No. 1 enumerates the objectives of the creation of the Truth
Commission, thus:
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
employees, who are servants of the people, must at all times be accountable to the latter,
serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and
justice, and lead modest lives;
xxx xxx xxx
WHEREAS, there is an urgent call for the determination of the truth regarding certain
reports of large scale graft and corruption in the government and to put a closure to them by
the filing of the appropriate cases against those involved, if warranted, and to deter others from
committing the evil, restore the people's faith and confidence in the Government and in their public
servants;
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during the
previous administration, and which will recommend the prosecution of the offenders and
secure justice for all; TaDAIS
reorganize the Office of the President.

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find
the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
xxx xxx xxx
A comparison between the aforequoted objectives of the Office of the Ombudsman and the Truth
Commission quickly reveals that the Truth Commission is superfluous, because it replicates or imitates
the work of the Office of the Ombudsman. The result is that the Truth Commission can even usurp the
functions, duties, and responsibilities of the Office of the Ombudsman. That usurpation is not a desirable
result, considering that the public faith and trust in the Office of the Ombudsman, as a constitutionally-
created office imbued with specific powers and duties to investigate and prosecute graft and corruption,
may be eroded.
ACCORDINGLY, I vote to grant the petitions.
PEREZ, J.:
Executive Order No. 1 of President Benigno S. Aquino III Creating the Philippine Truth
Commission of 2010 violates Article XI, Section 5 and Section 7 together with Section 13 (1) and (7) and
related provisions in Paragraphs (2), (3), (4), (5) and (6) of the same Section 7, all of the Philippine
Constitution.
Particularized, the presidential issuance offends against the independence of the Office of the
Ombudsman; defies the protection against legislation of the mandates of the Ombudsman; and defiles
the bestowal of these mandates by their reappointment to the lesser body. The presidential creation, if
unchecked, would, under the layer of good intentions, sully the integrity of the organic act which, for law
to rule, can be touched by no one except the sovereign people and only by the way and manner they
have ordained. This is a democratic original. The sovereign people can, of course, choose to cut the
essential ties, scatter the existing entirety and slay the standing system. That did not happen. The
sovereign elected to stay put; to stay in the present ordinance. Everyone must honor the election. And
there can be no permissible disregard, even in part, of the free and deliberate choice.
The proposition is truly significant in this study of the questioned executive order. The country has
had a historic revolution that gave the people the chance to right the wrong that shoved the nation on
the verge. A new charter was written. But the topic of Executive Order No. 1, accountability of public
officers, was rewritten and as the same constitutional heading. The injunction that public office is a
public trust, including its meaning and import, was copied from the otherwise discarded document. And
having adopted the objective of the old, the new law assumed likewise the means for the end which are
the anti-graft institutions of 1973, to wit, the special graft court named Sandiganbayan and the
Ombudsman, the corruption investigator and prosecutor then known as the Tanodbayan both of which
were, in the 1973 Charter, ordered created by legislation.
The transplant of idea and mechanism, the adoption of the ends and the assumption of the means
of 1973 leads to the definite conclusion that the present Constitution is an affirmance that, driven by the
breadth of corruption in public office needing enduring solutions, there must be no less than a
constitutionally secured institution with impregnable authority to combat corruption. This is the
Ombudsman. DaHISE
Uy vs. Sandiganbayan, [1] chronicled the origins of the Ombudsman. It was there recounted that:
In the advent of the 1973 Constitution, the members of the Constitutional Convention saw the
need to constitutionalize the office of the Ombudsman, to give it political independence and adequate
powers to enforce its recommendations. The 1973 Constitution mandated the legislature to create an
office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving
complaints and making recommendations, but shall also include the filing and prosecution of
criminal, civil or administrative case before the appropriate body in case of failure of justice. Section
6, Article XIII of the 1973 Constitution read:
Section 6. The Batasang Pambansa shall create an office of the Ombudsman, to

be known as Tanodbayan, which shall receive and investigate complaints relative to public
office, including those in government-owned or controlled corporations, make appropriate
recommendations, and in case of failure of justice as defined by law, file and prosecute the
corresponding criminal, civil or administrative case before the proper court of body.
Uy went on to enumerate the implementing presidential decrees, issued as legislation, namely

Presidential Decree No. 1487 creating the Office of the Ombudsman known as the Tanodbayan;
Presidential Decree No. 1607 broadening the authority of the Tanodbayan to investigate administrative
acts of administrative agencies; Presidential Decree 1630 reorganizing the Office of the Tanodbayan
and vesting the powers of the Special Prosecutor in the Tanodbayan himself.
The events at and following the ratification of the 1987 Constitution, as likewise historified in Uy,
must be made part of this writer's position:
With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created.
The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed
in any form or manner against public officials or employees of the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations, and to
notify the complainants of the action taken and the result thereof. He possesses the following
powers, functions and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient;
2. Direct, upon complaint or at its own instance, any public official or employee of
the Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite any
act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the
performance of duties.
3. Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such
limitations as may be provided by law, to furnish it with copies of documents relating to
contracts or transactions entered into by his office involving the disbursements or use of public
funds or properties, and report any irregularity to the Commission on Audit for appropriate
action.
5. Request any government agency for assistance and information necessary in

the discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.
6. Publicize matters covered by its investigation when circumstances so warrant

and with due prudence. ASaTHc
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and

corruption in the Government and make recommendations for their elimination and the
observance of high standards of ethics and efficiency.
8. Promulgate its rules or procedure and exercise such other powers or perform
such functions or duties as may be provided by law.
As a new Office of the Ombudsman was established, the then existing Tanodbayan became
the Office of the Special Prosecutor which continued to function and exercise its powers as provided
by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.
The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor
were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed
on July 24, 1987.
In September 1989, Congress passed RA 6770 providing for the functional and structural
organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770
gave the present Ombudsman not only the duty to receive and relay the people's grievances, but
also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative
offenses committed by government officers and employees as embodied in Sections 15 and 11 of the
law. [2]
Clear then from the chronicle, that, as it was at the time of its constitutionalization in 1973, the
power of the Ombudsman "shall not be limited to receiving complaints and making recommendations,
but shall also include the filing and prosecution of criminal . . . cases before the appropriate body . . . ."
More importantly, the grant of political independence to the Ombudsman which was the spirit behind the
1973 provisions was specifically stated in the 1987 Constitution. Thus:
Section 5. There is hereby created the independent Office of the Ombudsman, composed
of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each
for Luzon, Visayas and Mindanao. A separate Deputy for the Military establishment may likewise be
appointed. (Underscoring supplied.)
Of direct relevance and application to the case at bar is the reason behind the constitutionalization
of the Ombudsman. Again, we refer to Uy [3] citing Cortez, Redress of Grievance and the Philippine
Ombudsman (Tanodbayan):
In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to

serve as the people's medium for airing grievances and seeking redress against abuses and
misconduct in the government. These offices were conceived with the view of raising the standard in
public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio
Quirino created the Integrity Board charged with receiving complaints against public officials for acts
of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of
these complaints. The Integrity Board was succeeded by several other agencies which performed
basically the same functions of complaints-handling and investigation. These were the Presidential
Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee
on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft
Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and
Government Operations and the Office of the Citizens counselor, both under President Ferdinand
Marcos. It was observed, however, that these agencies failed to realize their objective for they did not
enjoy the political independence necessary for the effective performance of their function as
government critic. Furthermore, their powers extended to no more than fact-finding and
recommending.
The lack of political independence of these presidential commissions, to which was attributed their
failure to realize their objectives, was clarified during the deliberations of the Constitutional Commission
on what is now Article XI of the Constitution with, as already observed, the same heading used in 1973,
"Accountability of Public Officials." The Commissioners also alluded to the unsuccessful presidential
attempts.
In his sponsorship speech, Commissioner Colayco, Vice-Chairman of the Committee on
Accountability of Public Officers, articulated:
In 1950, for instance, President Quirino created the Integrity Board in an attempt to formalize
the procedure for executive direction and control of the bureaucracy. This Board lasted for six
months. When President Magsaysay took over the reins of government in 1953, he created the
Presidential Complaints and Action Committee. The primary purpose of this Committee was to
expedite action on complaints received by the Office of the President against the manner in which
the officials of the executive departments and offices were performing the duties entrusted to them by
law, or against their acts, conduct or behavior. . . . . But again politics came in — this office did not
last long. Two months after President Magsaysay's death, the office was abolished.
Next, President Garcia created his own Presidential Committee on Administration,

Performance and Efficiency [PCAPE]. Again this office did not last long and was replaced by the
Presidential Agency on Reforms and Government Operations or PARGO under the regime of
President Marcos. [4] IaECcH
As Commissioner Colayco pointed out in the continuation of his sponsorship speech: although
these programs were "good per se," the succeeding Presidents discarded them — as the incoming
Presidents generally tend to abandon the policies and programs of their predecessors — a political
barrier to the eventual success of these bodies. He concluded by saying that "[t]he intention, therefore,
of our proposal is to constitutionalize the office so that it cannot be touched by the Presidents as they
come and go."
It may thus be said that the 1987 Constitution completed the Ombudsman's constitutionalization
which was started in 1973. The past Constitution mandated the creation by the legislature, the National
Security Assembly, later the Batasang Pambansa, of an office of the Ombudsman, which mandate,
incidentally, was given also for the creation of a special court, the Sandiganbayan. The present
Constitution, while allowing the continuation of the Sandiganbayan and leaving its functions and
jurisdiction to provisions "by law," itself created "the independent Office of the Ombudsman" and itself
determined its powers, functions and duties. The independence of the Ombudsman is further
underscored by the constitutional orders that the Ombudsman and his Deputies shall be appointed by
the President from a list prepared by the Judicial and Bar Council which appointments shall require no
confirmation; that the Ombudsman and his Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not
be decreased during their term of office; that the Office of the Ombudsman shall enjoy fiscal autonomy
and its approved annual appropriations shall be automatically and regularly released; and that the
Ombudsman may only be removed from office by impeachment. [5]
It is with the ground and setting just described that Executive Order No. 1 created the Philippine
Truth Commission. Naturally, the Order had to state that the Philippine Truth Commission was created
by the President of the Republic of the Philippines further describing the act as the exercise of his
"continuing authority to reorganize the Office of the President." The Order specified that the budget of
the Commission shall be provided by the Office of the President and even its furniture and equipment
will come from the Office of the President. More significantly, a basic premise of the creation is the
President's battlecry during his campaign for the Presidency in the last elections "kung walang corrupt,
walang mahirap," which is considered a "solemn pledge that if elected, he would end corruption and the
evil it breeds." So much so that the issuance states that "a comprehensive final report shall be published
upon directive of the President" upon whose directive likewise, interim reports may issue from time to
time.
The Philippine Truth Commission anchored itself on the already constitutionalized principle that
public office is a public trust. It adopted the already defined goal to circle and contain corruption, an
enemy of the good state already identified way back in 1973. What Executive Order No. 1 did was to
shorten the sight and set it from the incumbent's standpoint. Therefrom, it fixed its target at "reported
cases of graft and corruption involving third level public officers and higher, their co-principals,
accomplice and accessories from the private sector" and further pinpointed the subjects as "third level
public officers during the previous administration." For this commission, the Philippine Truth Commission
was presidentially empowered as an "investigative body" for a thorough fact finding investigation,
thereafter to:
prosecutional authorities, by means of a special or interim report and recommendation, all evidence
on corruption of public officers and employees and their private sector co-principals, accomplice or
laws.
Having thus taken account of the foregoing, this writer takes the following position: STHDAc
1. In light of the constitutionally declared and amply underscored independence of the Office
of the Ombudsman, which declaration is winnowed wisdom from the experienced inherent defects of
presidential creations, so real and true that the Ombudsman's constitutionalization was adopted to
completion even if from the charter of an overthrown regime, Executive Order No. 1 cannot pass the
present constitutional test. Executive Order No. 1 is unconstitutional precisely because it was issued by
the President. As articulated by Commissioner Colayco of the Commission that resurrected the
Ombudsman, "our proposal is to constitutionalize the office so that it cannot be touched by the
Presidents as they come and go." And as this Court stated, repeating the observation regarding the
erstwhile presidential anti-graft commissions, such commissions failed to realize their objective because
they did not enjoy the political independence necessary for the effective performance of a government
critic.
Relevant too are the words of Commissioner Regalado:
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger.
That is not necessarily so. If he is toothless, then let us give him a little more teeth by making him
independent of the Office of the President because it is now a constitutional creation, so that the
insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so
forth, will not deprive him of the opportunity to render service to Juan dela Cruz. [6]
Verily, the Philippine Truth Commission is a defiance of the constitutional wisdom that established the
politically independent Ombudsman for one of its reasons for being is the very campaign battlecry of the
President "kung walang corrupt, walang mahirap." Not that there is anything wrong with the political
slogan. What is wrong is the pursuit of the pledge outside the limits of the Constitution. What is wrong is
the creation by the President himself of an Ombudsman-like body while there stands established an
Ombudsman, constitutionally created especially because of unsuccessful presidential antecedents, and
thus made independent from presidential prerogative.
2. A simple comparison will show that likeness of the Philippine Truth Commission with the
Ombudsman. No such likeness is permitted by the Constitution.
It can easily be seen that the powers of the Truth Commission to: 1) identify and determine the
reported cases of graft and corruption which it will investigate; and 2) collect, receive, review and
evaluate evidence related to or regarding the cases of large scale corruption which it has chosen to
investigate, [7] are the same as the power of the Ombudsman to investigate any illegal, unjust, improper,
or inefficient act or omission of any public official, employee, office or agency. [8]
The authority of the Truth Commission to require any agency, official or employee of the Executive
Branch to produce documents, books, records and other papers [9] mirrors the authority of the
Ombudsman to direct concerned government officials to furnish it with copies of documents relating to
contracts or transactions entered into by the latter's office involving the disbursement or use of public
funds or properties. [10]
Likewise, the right to obtain information and documents from the Senate, the House of
Representatives and the courts, [11] granted by Executive Order No. 1 to the Truth Commission, is
analogous to the license of the Ombudsman to request any government agency for assistance and
information and to examine pertinent records and documents. [12]
And, the powers of the Truth Commission to invite or subpoena witnesses, take their testimonies,
administer oaths [13] and impose administrative disciplinary action for refusal to obey subpoena, take
oath or give testimony [14] are parallel to the powers to administer oaths, issue subpoena, take
testimony and punish for contempt or subject to administrative disciplinary action any officer or
employee who delays or refuses to comply with a referral or directive granted by Republic Act (RA) 6770
[15] to the Ombudsman.
If Executive Order No. 1 is allowed, there will be a violation of Section 7 of Article XI, the essence
of which is that the function and powers (enumerated in Section 13 of Article XI) conferred on the
Ombudsman created under the 1987 Constitution cannot be removed or transferred by law. Section 7
states:
Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special
Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided
by law, except those conferred on the Office of the Ombudsman created under this Constitution.
There is a self-evident reason for the shield against legislation provided by Section 7 in protection
of the functions conferred on the Office of the Ombudsman in Section 13. The Ombudsman is a
constitutional office; its enumerated functions are constitutional powers.
So zealously guarded are the constitutional functions of the Ombudsman that the prohibited
assignment of the conferred powers was mentioned in Section 7 in relation to the authority of the
Tanodbayan which, while renamed as Office of the Special Prosecutor, remained constitutionally
recognized and allowed to "continue to function and exercise its powers as now or hereafter may be
provided by law." CcEHaI
The position of the Office of the Special Prosecutor, as a continuing office with powers "as may be
provided by law" vis-à-vis the Ombudsman created by the 1987 Constitution would be unraveled by
subsequent law and jurisprudence. Most apt is Zaldivar vs. Sandiganbayan, [16] which said:
Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent
Tanodbayan) is charged with the duty to:
Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
The Constitution likewise provides that:
The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It
shall continue to function and exercise its powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman created under this Constitution.
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent
Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain
powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct
preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except
upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that
time, he has been divested of such authority.
Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate
of the Tanodbayan (Ombudsman) and can investigate and prosecute cases only upon the latter's
authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only
conduct the same if instructed to do so by the Ombudsman. Even his original power to issue
subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the
Ombudsman, who may, however, retain it in the Special Prosecutor in connection with the cases he
is ordered to investigate. (Underscoring supplied.)
The ruling was clear: the duty to investigate contained in Section 13 (1) having been conferred on
the Office of the Ombudsman, left the then Tanodbayan without authority to conduct preliminary
investigation except upon orders of the Ombudsman. The message was definite. The conferment of
plenary power upon the Ombudsman to investigate "any act or omission of any public official . . . when
such act or omission appears to be illegal, unjust, improper or inefficient" cannot, after 1987 and while
the present Constitution remains, be shared even by the body previously constitutionalized as vested
with such authority, even if there is such assignment "by law."
Indeed, the subsequent law obeyed Section 7 as correctly read in Zaldivar. Thus, in Republic Act
No. 6770, an Act Providing for the Functional and Structural Organization of the Office of the
Ombudsman and for Other Purposes, it was made clear in Section 11 (3) second sentence that "the
Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and
shall be under the supervision and control of the Ombudsman."
Constitutional history, specific constitutional provisions, jurisprudence and current statute combine
to say that after the ratification of the Constitution in 1987, no body can be given "by law" any of the
powers, functions and duties already conferred on the Ombudsman by Section 13, Article XI of the
Constitution. As already shown, the Truth Commission insofar as concerns the mentioned third level
officers or higher of the previous administration appropriates, not just one but virtually, all of the powers
constitutionally enumerated for the Ombudsman. The violation of Section 7 in relation to Section 13 of
Article XI of the Constitution is evident.
3. No comfort is given to the respondents by the fact that, as mentioned in Honasan II vs.
Panel of Investigating Prosecutors of the Department of Justice, [17] there are "jurisprudential
declarations" that the Ombudsman and the Department of Justice (DOJ) have concurrent jurisdiction.
Concurrence of jurisdiction does not allow concurrent exercise of such jurisdiction. Such is so that the
Ombudsman Act specifically states in Section 15 that the Ombudsman has primary jurisdiction over
cases cognizable by the Sandiganbayan — precisely the kind of cases covered by the Philippine Truth
Commission — and proceeds to define "primary jurisdiction" by again, specifically, stating that the
Ombudsman "may take over, at any stage, from any investigation of such cases." This primary
jurisdiction was the premise when a majority of the Court in Honasan discussed the relevance of OMB-
DOJ Joint Circular No. 95-001 (which provides that the preliminary investigation and prosecution of
offenses committed by public officers in relation to office filed with the Office of the Prosecutor shall be
"under the control and supervision of the Office of the Ombudsman") in relation to Sections 2 and 4,
Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, which concerns the
review of the resolution of the investigating prosecutor in such cases. Honasan would conclude that the
authority of the DOJ prosecutors to conduct preliminary investigation of offenses within the original
jurisdiction of the Sandiganbayan is subject to the qualification: DTaAHS
. . . that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor
shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his
deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without prior written
authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the
Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman, or
his deputy. [18] (Underscoring in the original)
Three separate opinions, two of which were dissents were submitted in Honasan. Justice Vitug
said that the investigating fiscal must be particularly deputized by the Ombudsman and the investigation
must be conducted under the supervision and control of the Ombudsman; [19] Justice Ynares-Santiago
discussed at length the concept of primary jurisdiction and took the position that: [20]
Where the concurrent authority is vested in both the Department of Justice and the Office of
the Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of
Justice from exercising its investigative authority if the case will likely be cognizable by the
Sandiganbayan. In such cases, the Office of the Ombudsman should be the proper agency to
conduct the preliminary investigation over such an offense, it being vested with the specialized
competence and undoubted probity to conduct the investigation.
Justice Sandoval-Gutierrez was more straightforward: [21]
While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code
and special laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or
statute vests jurisdiction over the investigation and prosecution of certain crimes in an office, the DOJ
has no jurisdiction over those crimes. In election offenses, the Constitution vests the power to
investigate and prosecute in the Commission on Elections. In crimes committed by public officers in
relation to their office, the Ombudsman is given by both the Constitution and the statute the same
power of investigation and prosecution. These powers may not be exercised by the DOJ. . . .
At the very least, therefore, the prosecutor, in Sandiganbayan cases must, after investigation
transmit the records and their resolution to the Ombudsman whose prior written authority is needed
before the prosecutor can dismiss a complaint or file an information in which latter instance, a
deputization of the fiscal is additionally needed. Even as this writer submits that the position of the
minority in Honasan hews far better to the Constitution since, as already observed, the Ombudsman's
authority excludes even the Tanodbayan which used to be the constitutionally recognized holder of the
power, the further submission is that the majority ruling to the effect that the Ombudsman is the
supervisor of the prosecutor who investigates graft in high places, nonetheless illegalizes the Philippine
Truth Commission.
Respondent's main reliance is that —
Unlike that of the OMB or DOJ which conducts formal investigation as a result of criminal
complaints filed before them, or upon reports, the Truth Commission conducts fact-finding
investigation preliminary to the filing of a complaint that could lead to a criminal investigation. [22]
If the Philippine Truth Commission would, indeed, conduct only fact-finding investigations
preliminary to a criminal investigation, then the foregoing discussion would truly be irrelevant. The fact,
however, is that the Philippine Truth Commission is, to use the Solicitor General's phrase a "criminal
investigator" or one who conducts a preliminary investigation for the prosecution of a criminal case.
Detailing the powers and functions of the Philippine Truth Commission, Section 2 of Executive
Order No. 1 says that the Commission shall identify and determine the reported cases of such graft and
corruption which it will investigate (Section 2 [a]) and collect, receive, review and evaluate evidence
related to or regarding the cases of large scale corruption which it has chosen to investigate (Sec. 2 [b]).
As aforenoted, the Philippine Truth Commission's power to investigate graft and corruption is no
different from the constitutional power of the Ombudsman to investigate any act of any public official
when such act appears to be illegal, unjust, improper, or inefficient. The Philippine Truth Commission
cannot avoid the comparison by differentiating "formal investigation" or "criminal investigation" which it
says is conducted by the Ombudsman or the DOJ, from the "fact-finding investigation" of the Philippine
Truth Commission. Let us go back to Zaldivar. There it was as much as stated that the power to
investigate mentioned in Section 13 (1) of the 1987 Constitution is the authority to conduct preliminary
investigation which authority was removed from the Tandobayan called Special Prosecutor when it was
given to the Ombudsman. This equivalence was affirmed in Acop vs. Office of the Ombudsman, [23]
where it was stated: cHSTEA
In view of the foregoing, it is evident that the petitioners have not borne out any distinction
between "the duty to investigate" and "the power to conduct preliminary investigations;" neither have
the petitioners established that the latter remains with the Tanodbayan, now the Special Prosecutor.
Thus, this Court can only reject the petitioners' first proposition.
Such established definition of "investigation" of graft and corruption cases, especially for the
purpose of determining the authority of one body in relation to another, which is exactly one of the
issues in this case, must be read into Executive Order No. 1. No source citation is needed for the
generally accepted rule that the words used in a legal document, indeed one which is intended to be a
law, has the meaning that is established at the time of the law's promulgation. "Investigation" in Section
1 (a) of Executive Order No. 1 is the same as preliminary investigation and its conduct by the Truth
Commission cannot be independent of the Ombudsman. The Truth Commission cannot exist outside the
Ombudsman. Executive Order No. 1 so places the Truth Commission and, is, therefore unconstitutional.
Indeed, Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth
Commission with is the authority of preliminary investigation. Section 2 (g) of the executive order states:
Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional
authorities, by means of a special or interim report and recommendation, all evidence on corruption
of public officers and employees and their private sector co-principals, accomplice or accessories, if
any, when in the course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws. (Underscoring
supplied.)
Investigation to find reasonable ground to believe "that they are liable for graft and corruption
under applicable laws" is preliminary investigation as defined in Rule 112, Section 1 of the Rules of
Criminal Procedure, which states:
Section 1. Preliminary investigation defined; when required. — Preliminary investigation is

an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be
held for trial.
Moreover, as clearly stated in Section 2 (g) of Executive Order No. 1, the Philippine Truth
Commission will be more powerful than the DOJ prosecutors who are required, after their investigation,
to transmit the records and their resolution for appropriate action by the Ombudsman or his deputy,
which action is taken only after a review by the Ombudsman. Section 4 of Rule 112 states that:
xxx xxx xxx
No complaint or information may be filed or dismissed by an investigating prosecutor without

the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe
or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties. The same Rule shall
apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
In other words, under existing Rule which follows the statutorily defined primary jurisdiction of the
Ombudsman in obeisance to the constitutional conferment of authority, the Ombudsman reviews and
may reverse or modify the resolution of the investigating prosecutor. In the case of the Philippine Truth
Commission, the Ombudsman not only shares its constitutional power but, over and above this, it is
divested of any and all investigatory power because the Philippine Truth Commission's finding of
"reasonable ground" is final and unreviewable and is turned over to the Ombudsman solely for
"expeditious prosecution."
4. There is an attempt by the Solicitor General to read around the explicitness of Section 2 (g)
of Executive Order No. 1. Thus, skirting the words "for expeditious prosecution" and their obvious
meanings as just discussed, the respondents argue that: aHIEcS
The Truth Commission will submit its recommendation to, among others, the OMB and to the
"appropriate prosecutorial authorities" which then shall exercise their constitutional and statutory
powers and jurisdiction to evaluate the recommendation or endorsements of the Truth Commission.
While findings of the Truth Commission are recommendatory, the facts gathered by the Commission
will decisively aid prosecutorial bodies in supporting possible indictments for violations of anti-graft
laws. Moreover, the policy recommendations to address corruption in government will be invaluable
to the Executive's goal to realize its anti-corruption policies. [24]
xxx xxx xxx
The Reports of the Truth Commission will serve as bases for possible prosecutions and as
sources of policy options . . . .
Fact gathering as basis for preliminary investigation and not as preliminary investigation itself and
basis for prosecution, is, seemingly, the function respondents want to attribute to the Philippine Truth
Commission to escape the obvious unconstitutional conferment of Ombudsman power. That is no route
out of the bind. Fact gathering, fact finding, indeed truth finding is, as much as investigation as
preliminary investigation, also constitutionally conferred on the Ombudsman. Section 12 of Article XI
states:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken
and the result thereof.
The Ombudsman on its own investigates any act or omission of any public official when such act
or omission appears to be illegal (Section 13(1), Article XI of the Constitution). The power is broad
enough, if not specially intended, to cover fact-finding of the tenor that was given to the Philippine Truth
Commission by Executive Order No. 1 which is:
large scale corruption which it has chosen to investigate . . . .
And, the objective of the Philippine Truth Commission pointed to by the Solicitor General which is
to make findings for "policy recommendations to address corruption in government" and to serve as
"sources of policy options" is exactly the function described for and ascribed to the Ombudsman in
Section 13 (7), Art. XI of the Constitution:
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption
in the Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
Moreover, as at the outset already pointed out, the power of the Philippine Truth Commission to
obtain information and documents from the Congress and the Judiciary [Section 2 (c) and (d) of
Executive Order No. 1] is a reproduction of the Ombudsman powers provided for in Section 13 (4) and
(5), Article XI of the Constitution.
Virtually, another Ombudsman is created by Executive Order No. 1. That cannot be permitted as
long as the 1987 Constitution remains as the fundamental law.
5. To excuse the existence of the presidentially created, manned, funded and equipped Truth
Commission side-by-side with the Constitutionally created and empowered Ombudsman, the Solicitor
General provides the very argument against the proposition. In page 75 of his memorandum, the
Solicitor General says that:
The concerned agencies need not wait until the completion of the investigation of the Truth
Commission before they can proceed with their own investigative and prosecutorial functions.
Moreover, the Truth Commission will, from time to time, publish special interim reports and
recommendations, over and above the comprehensive final report. If any, the preliminary reports may
aid the concerned agencies in their investigations and eventually, in the filing of a complaint or
information. (Underscoring supplied)
Apparently, the statement proceeds from the position that "the power of the OMB to investigate
offenses involving public officers or employees is not exclusive but is concurrent with other similarly
authorized agencies of the government." [25] Without cutting off from the discussions that the
concurrence of jurisdiction of the Ombudsman with any other body should be read to mean that at the
very least any finding by any other body is reviewable by the Ombudsman and that in full obedience to
the Constitution, graft cases against high officials should be investigated alone by or under the aegis of
the Ombudsman, it need only be repeated that concurrence of jurisdiction does not allow concurrent
exercise of jurisdiction. This is the reason why we have the rule that excludes any other concurrently
authorized body from the body first exercising jurisdiction. This is the reason why forum shopping is
malpractice of law.
The truth is, in the intensely political if not partisan matter of "reports of graft and corruption . . .
committed by public officers . . ., if any, during the previous administration," there can only be one
finding of truth. Any addition to that one finding would result in din and confusion, a babel not needed by
a nation trying to be one. And this is why all that fall under the topic accountability of public officers have
been particularized and gathered under one authority — The Ombudsman. This was done by the
Constitution. It cannot be undone as the nation now stands and remains.
WHEREFORE, I vote for the grant of the petition and the declaration of Executive Order No. 1 as
unconstitutional. aETAHD
CARPIO, J., dissenting:
The two petitions before this Court seek to declare void Executive Order No. 1, Creating the
Philippine Truth Commission of 2010 (EO 1), for being unconstitutional.
In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a Filipino citizen and as a taxpayer,
filed a petition under Rule 65 for prohibition and injunction. Biraogo prays for the issuance of a writ of
preliminary injunction and temporary restraining order to declare EO 1 unconstitutional, and to direct the
Philippine Truth Commission (Truth Commission) to desist from proceeding under the authority of EO 1.
In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong,
and Orlando B. Fua, Sr. (Lagman, et al.), as Members of the House of Representatives, filed a petition
under Rule 65 for certiorari and prohibition. Petitioners Lagman, et al. pray for the issuance of a
temporary restraining order or writ of preliminary injunction to declare void EO 1 for being
unconstitutional.
The Powers of the President
Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail the creation of the Truth
Commission. They claim that President Benigno S. Aquino III (President Aquino) has no power to create
the Commission. Petitioners' objections are mere sound bites, devoid of sound legal reasoning.
On 30 July 2010, President Aquino issued EO 1 pursuant to Section 31, Chapter 10, Title III, Book
III of Executive Order No. 292 (EO 292). [1] Section 31 reads: IcSEAH
and efficiency, shall have continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another;
Agencies; and
agencies. (Emphasis supplied)
The law expressly grants the President the "continuing authority to reorganize the
administrative structure of the Office of the President," which necessarily includes the power to
create offices within the Office of the President Proper. The power of the President to reorganize the
Office of the President Proper cannot be disputed as this power is expressly granted to the President by
law. Pursuant to this power to reorganize, all Presidents under the 1987 Constitution have created,
abolished or merged offices or units within the Office of the President Proper, EO 1 being the most
recent instance. This Court explained the rationale behind the President's continuing authority to
reorganize the Office of the President Proper in this way:
. . . The law grants the President this power in recognition of the recurring need of every
President to reorganize his office "to achieve simplicity, economy and efficiency." The Office of the
President is the nerve center of the Executive Branch. To remain effective and efficient, the Office
of the President must be capable of being shaped and reshaped by the President in the
manner he deems fit to carry out his directives and policies. After all, the Office of the
President is the command post of the President. This is the rationale behind the President's
continuing authority to reorganize the administrative structure of the Office of the President. [2]
(Emphasis supplied)
The Power to Execute

Faithfully the Laws
Section 1, Article VI of the 1987 Constitution states that "[t]he executive power is vested in the
President of the Philippines." Section 17, Article VII of the 1987 Constitution states that "[t]he
President shall have control of all the executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed." [3] Before he enters office, the President takes the following oath
prescribed in Section 5, Article VII of the 1987 Constitution: "I do solemnly swear that I will faithfully and
conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help
me God." [4]
Executive power is vested exclusively in the President. Neither the Judiciary nor the Legislature
can execute the law. As the Executive, the President is mandated not only to execute the law, but also
to execute faithfully the law. STADIH
To execute faithfully the law, the President must first know the facts that justify or require the
execution of the law. To know the facts, the President may have to conduct fact-finding investigations.
Otherwise, without knowing the facts, the President may be blindly or negligently, and not
faithfully and intelligently, executing the law.
Due to time and physical constraints, the President cannot obviously conduct by himself the fact-
finding investigations. The President will have to delegate the fact-finding function to one or more
subordinates. Thus, the President may appoint a single fact-finding investigator, or a collegial body or
committee. In recognizing that the President has the power to appoint an investigator to inquire into
facts, this Court held:
Moreover, petitioner cannot claim that his investigation as acting general manager is for the
purpose of removing him as such for having already been relieved, the obvious purpose of the
investigation is merely to gather facts that may aid the President in finding out why the NARIC failed
to attain its objectives, particularly in the stabilization of the prices of rice and corn. His investigation
is, therefore, not punitive, but merely an inquiry into matters which the President is entitled to
know so that he can be properly guided in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this sense, the President may authorize
the appointment of an investigator of petitioner Rodriguez in his capacity as acting general
manager even if under the law the authority to appoint him and discipline him belongs to the
NARIC Board of Directors. The petition for prohibition, therefore, has no merit. [5] (Boldfacing and
italicization supplied)
The Power to Find Facts

The power to find facts, or to conduct fact-finding investigations, is necessary and proper, and
thus inherent in the President's power to execute faithfully the law. Indeed, the power to find facts is
inherent not only in Executive power, but also in Legislative as well as Judicial power. The Legislature
cannot sensibly enact a law without knowing the factual milieu upon which the law is to operate.
Likewise, the courts cannot render justice without knowing the facts of the case if the issue is not purely
legal. Petitioner Lagman admitted this during the oral arguments:
. . . The power to fact-find is inherent in the legislature, correct? I mean, before you can pass a
law, you must determine the facts. So, it's essential that you have to determine the facts to
pass a law, and therefore, the power to fact-find is inherent in legislative power, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
And it is also inherent in judicial power, we must know the facts to render a decision, correct?
CONGRESSMAN LAGMAN:
Yes, Your Honor.
And it is also inherent in executive power that [the] President has to know the facts so that he
can faithfully execute the laws, correct?
CONGRESSMAN LAGMAN: cEDIAa
Yes, Your Honor, in that context (interrupted).
So (interrupted)
CONGRESSMAN LAGMAN:
Your Honor, in that context, the legislature has the inherent power to make factual inquiries in
aid of legislation. In the case of the Supreme Court and the other courts, the power to inquire
into facts [is] in aid of adjudication. And in the case of the Office of the President, or the
President himself [has the power] to inquire into the facts in order to execute the laws. [6]
Being an inherent power, there is no need to confer explicitly on the President, in the Constitution
or in the statutes, the power to find facts. Evangelista v. Jarencio [7] underscored the importance of the
power to find facts or to investigate:
It has been essayed that the lifeblood of the administrative process is the flow of fact[s], the
gathering, the organization and the analysis of evidence. Investigations are useful for all
administrative functions, not only for rule making, adjudication, and licensing, but also for
prosecuting, for supervising and directing, for determining general policy, for recommending
legislation, and for purposes no more specific than illuminating obscure areas to find out
what if anything should be done. An administrative agency may be authorized to make
investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings
whose sole purpose is to obtain information upon which future action of a legislative or judicial nature
may be taken and may require the attendance of witnesses in proceedings of a purely investigatory
nature. It may conduct general inquiries into evils calling for correction, and to report findings to
appropriate bodies and make recommendations for actions. (Emphasis supplied)
The Power to Create

A Public Office
The creation of a public office must be distinguished from the creation of an ad hoc fact-finding
public body.
The power to create a public office is undeniably a legislative power. There are two ways by which
a public office is created: (1) by law, or (2) by delegation of law, as found in the President's authority to
reorganize his Office. The President as the Executive does not inherently possess the power to
reorganize the Executive branch. However, the Legislature has delegated to the President the power to
create public offices within the Office of the President Proper, as provided in Section 31 (1), Chapter 10,
Title III, Book III of EO 292.
Thus, the President can create the Truth Commission as a public office in his Office pursuant to
his power to reorganize the Office of the President Proper. [8] In such a case, the President is exercising
his delegated power to create a public office within the Office of the President Proper. There is no
dispute that the President possesses this delegated power.
In the alternative, the President can also create the Truth Commission as an ad hoc body to
conduct a fact-finding investigation pursuant to the President's inherent power to find facts as basis to
execute faithfully the law. The creation of such ad hoc fact-finding body is indisputably necessary and
proper for the President to execute faithfully the law. In such a case, members of the Truth Commission
may be appointed as Special Assistants or Advisers of the President, [9] and then assigned to conduct a
fact-finding investigation. The President can appoint as many Special Assistants or Advisers as he may
need. [10] There is no public office created and members of the Truth Commission are incumbents
already holding public office in government. These incumbents are given an assignment by the
President to be members of the Truth Commission. Thus, the Truth Commission is merely an ad hoc
body assigned to conduct a fact-finding investigation.
The creation of ad hoc fact-finding bodies is a routine occurrence in the Executive and even in the
Judicial branches of government. Whenever there is a complaint against a government official or
employee, the Department Secretary, head of agency or head of a local government unit usually creates
a fact-finding body whose members are incumbent officials in the same department, agency or local
government unit. [11] This is also true in the Judiciary, where this Court routinely appoints a fact-finding
investigator, drawn from incumbent Judges or Justices (or even retired Judges or Justices who are
appointed consultants in the Office of the Court Administrator), to investigate complaints against
incumbent officials or employees in the Judiciary. CcSTHI
The creation of such ad hoc investigating bodies, as well as the appointment of ad hoc
investigators, does not result in the creation of a public office. In creating ad hoc investigatory bodies or
appointing ad hoc investigators, executive and judicial officials do not create public offices but merely
exercise a power inherent in their primary constitutional or statutory functions, which may be to execute
the law, to exercise disciplinary authority, or both. These fact-finding bodies and investigators are not
permanent bodies or functionaries, unlike public offices or their occupants. There is no separate
compensation, other than per diems or allowances, for those designated as members of ad hoc
investigating bodies or as ad hoc investigators.
Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the President's power to
reorganize his Office or create the Truth Commission. PD 1416, as amended, delegates to the President
"continuing authority to reorganize the National Government," [12] which means the Executive,
Legislative and Judicial branches of government, in addition to the independent constitutional bodies.
Such delegation can exist only in a dictatorial regime, not under a democratic government founded on
the separation of powers. The other powers granted to the President under PD 1416, as amended, like
the power to transfer appropriations without conditions and the power to standardize salaries, are also
contrary to the provisions of the 1987 Constitution. [13] PD 1416, which was promulgated during the
Martial Law regime to facilitate the transition from the presidential to a parliamentary form of government
under the 1973 Constitution, [14] is now functus officio and deemed repealed upon the ratification of the
1987 Constitution.
The President's power to create ad hoc fact-finding bodies does not emanate from the President's
power of control over the Executive branch. The President's power of control is the power to reverse,
revise or modify the decisions of subordinate executive officials, or substitute his own decision for that of
his subordinate, or even make the decision himself without waiting for the action of his subordinate. [15]
This power of control does not involve the power to create a public office. Neither does the President's
power to find facts or his broader power to execute the laws give the President the power to create a
public office. The President can exercise the power to find facts or to execute the laws without creating a
public office.
Objections to EO 1
There is No Usurpation of Congress'
Power to Appropriate Funds
Petitioners Lagman, et al. argue that EO 1 usurps the exclusive power of Congress to appropriate
funds because it gives the President the power to appropriate funds for the operations of the Truth
Commission. Petitioners Lagman, et al. add that no particular source of funding is identified and that the
amount of funds to be used is not specified.
Congress is exclusively vested with the "power of the purse," recognized in the constitutional
provision that "no money shall be paid out of the Treasury except in pursuance of an appropriation made
by law." [16] The specific purpose of an appropriation law is to authorize the release of unappropriated
public funds from the National Treasury. [17]
Section 11 of EO 1 merely states that "the Office of the President shall provide the necessary
funds for the Commission to ensure that it can exercise its powers, execute its functions, and perform its
duties and responsibilities as effectively, efficiently, and expeditiously as possible." Section 11 does not
direct the National Treasurer to release unappropriated funds in the National Treasury to finance the
operations of the Truth Commission. Section 11 does not also say that the President is appropriating, or
is empowered to appropriate, funds from the unappropriated funds in the National Treasury. Clearly,
there is absolutely no language in EO 1 appropriating, or empowering the President to appropriate,
unappropriated funds in the National Treasury.
Section 11 of EO 1 merely states that the Office of the President shall fund the operations of the
Truth Commission. Under EO 1, the funds to be spent for the operations of the Truth Commission have
already been appropriated by Congress to the Office of the President under the current General
Appropriations Act. The budget for the Office of the President under the annual General Appropriations
Act always contains a Contingent Fund [18] that can fund the operations of ad hoc investigating bodies
like the Truth Commission. In this case, there is no appropriation but merely a disbursement by the
President of funds that Congress had already appropriated for the Office of the President.
The Truth Commission is Not
a Quasi-Judicial Body
While petitioners Lagman, et al. insist that the Truth Commission is a quasi-judicial body, they
admit that there is no specific provision in EO 1 that states that the Truth Commission has quasi-judicial
powers. [19]

Okay. Now. Let's tackle that issue. Where in the Executive Order is it stated that [the Truth
Commission] has a quasi-judicial power? Show me the provision.
CONGRESSMAN LAGMAN:
There is no exact provision.
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 never intended to be, a quasi-
judicial body. The power of the President to create offices within the Office of the President Proper is a
power to create only executive or administrative offices, not quasi-judicial offices or bodies. Undeniably,
a quasi-judicial office or body can only be created by the Legislature. The Truth Commission, as created
under EO 1, is not a quasi-judicial body and is not vested with any quasi-judicial power or function.
The exercise of quasi-judicial functions involves the determination, with respect to the matter in
controversy, of what the law is, what the legal rights and obligations of the contending parties are, and
based thereon and the facts obtaining, the adjudication of the respective rights and obligations of
the parties. [20] The tribunal, board or officer exercising quasi-judicial functions must be clothed with the
power to pass judgment on the controversy. [21] In short, quasi-judicial power is the power of an
administrative body to adjudicate the rights and obligations of parties under its jurisdiction in a
manner that is final and binding, unless there is a proper appeal. In the recent case of Bedol v.
Commission on Elections, [22] this Court declared: ScTaEA
Quasi-judicial or administrative adjudicatory power on the other hand is the power of

the administrative agency to adjudicate the rights of persons before it. It is the power to hear
and determine questions of fact to which the legislative policy is to apply and to decide in accordance
with the standards laid down by the law itself in enforcing and administering the same law. The
administrative body exercises its quasi-judicial power when it performs in a judicial manner an act
which is essentially of an executive or administrative nature, where the power to act in such manner
is incidental to or reasonably necessary for the performance of the executive or administrative duty
entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are
required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and exercise of discretion in a judicial
nature. [23] (Emphasis supplied)
Under EO 1, the Truth Commission primarily investigates reports of graft and corruption and
recommends the appropriate actions to be taken. Thus, Section 2 of EO 1 states that the Truth
Commission is "primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption and thereafter submit its findings and recommendations to the
President, Congress and the Ombudsman." The President, Congress and the Ombudsman are not
bound by the findings and recommendations of the Truth Commission. Neither are the parties subject of
the fact-finding investigation bound by the findings and recommendations of the Truth Commission.
Clearly, the function of the Truth Commission is merely investigative and recommendatory in
nature. The Truth Commission has no power to adjudicate the rights and obligations of the persons who
come before it. Nothing whatsoever in EO 1 gives the Truth Commission quasi-judicial power,
expressly or impliedly. In short, the Truth Commission is not a quasi-judicial body because it does not
exercise the quasi-judicial power to bind parties before it with its actions or decisions.
The creation of the Truth Commission has three distinct purposes since it is tasked to submit its
findings to the President, Congress and the Ombudsman. The Truth Commission will submit its findings
to the President so that the President can faithfully execute the law. For example, the Truth Commission
may recommend to the President that Department Secretaries should personally approve
disbursements of funds in certain contracts or projects above a certain amount and not delegate such
function to their Undersecretaries. [24] The Truth Commission will also submit its findings to Congress for
the possible enactment by Congress of remedial legislation. For example, Congress may pass a law
penalizing Department Secretaries who delegate to their Undersecretaries the approval of disbursement
of funds contrary to the directive of the President. Lastly, the Truth Commission will submit its findings to
the Ombudsman for possible further investigation of those who may have violated the law. The
Ombudsman may either conduct a further investigation or simply ignore the findings of the Truth
Commission. Incidentally, the Ombudsman has publicly stated that she supports the creation of the
Truth Commission and that she will cooperate with its investigation. [25]
That EO 1 declares that the Truth Commission "will act as an independent collegial body" cannot
invalidate EO 1. This provision merely means that the President will not dictate on the members of the
Truth Commission on what their findings and recommendations should be. The Truth Commission is
free to come out with its own findings and recommendations, free from any interference or pressure
from the President. Of course, as EO 1 expressly provides, the President, Congress and the
Ombudsman are not bound by such findings and recommendations.
There Is No Usurpation of the
Powers of the Ombudsman
Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive jurisdiction to
investigate graft and corruption cases, the Truth Commission encroaches on this exclusive power of the
Ombudsman.
There are three types of fact-finding investigations in the Executive branch. First, there is the
purely fact-finding investigation the purpose of which is to establish the facts as basis for future
executive action, excluding the determination of administrative culpability or the determination of
probable cause. Second, there is the administrative investigation to determine administrative
culpabilities of public officials and employees. Third, there is the preliminary investigation whose sole
purpose is to determine probable cause as to the existence and perpetrator of a crime. These three
types of fact-finding investigations are separate and distinct investigations.
A purely fact-finding investigation under the Office of the President is the first type of fact-finding
investigation. Such fact-finding investigation has three distinct objectives. The first is to improve
administrative procedures and efficiency, institute administrative measures to prevent corruption, and
recommend policy options — all with the objective of enabling the President to execute faithfully the law.
The second is to recommend to Congress possible legislation in response to new conditions brought to
light in the fact-finding investigation. The third is to recommend to the head of office the filing of a formal
administrative charge, or the filing of a criminal complaint before the prosecutor.
Under the third objective, the fact-finding investigation is merely a gathering and evaluation of
facts to determine whether there is sufficient basis to proceed with a formal administrative charge, or the
filing of a criminal complaint before the prosecutor who will conduct a preliminary investigation. This
purely fact-finding investigation does not determine administrative culpability or the existence of
probable cause. The fact-finding investigation comes before an administrative investigation or
preliminary investigation, where administrative culpability or probable cause, respectively, is determined.
On the other hand, an administrative investigation follows, and takes up, the recommendation of a
purely fact-finding investigation to charge formally a public official or employee for possible misconduct
in office. Similarly, a preliminary investigation is an inquiry to determine whether there is sufficient
ground to believe that a crime has been committed and that the respondent is probably guilty of such
crime, and should be held for trial. [26] A preliminary investigation's sole purpose is to determine whether
there is probable cause to charge a person for a crime. TCDHIc
Section 15 of Republic Act No. 6770 [27] provides:
SEC. 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the
following powers, functions and duties: . . .
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the investigation of such cases; . . . (Emphasis
supplied)
The Ombudsman has "primary jurisdiction over cases cognizable by the Sandiganbayan."
The cases cognizable by the Sandiganbayan are criminal cases as well as quasi-criminal cases like the
forfeiture of unexplained wealth. [28] "[I]n the exercise of this primary jurisdiction" over cases cognizable
by the Sandiganbayan, the Ombudsman "may take over . . . the investigation of such cases" from any
investigatory agency of the Government. The cases covered by the "primary jurisdiction" of the
Ombudsman are criminal or quasi-criminal cases but not administrative cases. Administrative
cases, such as administrative disciplinary cases, are not cognizable by the Sandiganbayan. With more
reason, purely fact-finding investigations conducted by the Executive branch are not cognizable by the
Sandiganbayan.
Purely fact-finding investigations to improve administrative procedures and efficiency, to institute
administrative measures to prevent corruption, to provide the President with policy options, to
recommend to Congress remedial legislation, and even to determine whether there is basis to file a
formal administrative charge against a government official or employee, do not fall under the "primary
jurisdiction" of the Ombudsman. These fact-finding investigations do not involve criminal or quasi-
criminal cases cognizable by the Sandiganbayan.
If the Ombudsman has the power to take-over purely fact-finding investigations from the President
or his subordinates, then the President will become inutile. The President will be wholly dependent on
the Ombudsman, waiting for the Ombudsman to establish the facts before the President can act to
execute faithfully the law. The Constitution does not vest such power in the Ombudsman. No statute
grants the Ombudsman such power, and if there were, such law would be unconstitutional for usurping
the power of the President to find facts necessary and proper to his faithful execution of the law.
Besides, if the Ombudsman has the exclusive power to conduct fact-finding investigations, then
even the Judiciary and the Legislature cannot perform their fundamental functions without the action or
approval of the Ombudsman. While the Constitution grants the Office of the Ombudsman the power to "
[i]nvestigate on its own . . . any act or omission of any public official, employee, office or agency," [29]
such power is not exclusive. To hold that such investigatory power is exclusive to the Ombudsman is to
make the Executive, Legislative and Judiciary wholly dependent on the Ombudsman for the
performance of their Executive, Legislative and Judicial functions.
Even in investigations involving criminal and quasi-criminal cases cognizable by the
Sandiganbayan, the Ombudsman does not have exclusive jurisdiction to conduct preliminary
[30]
investigations. In Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,
this Court held:
In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section
4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive
jurisdiction to investigate offenses committed by public officers or employees. The authority of
the Ombudsman to investigate offenses involving public officers or employees is concurrent with
other government investigating agencies such as provincial, city and state prosecutors. However, the
Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan,
may take over, at any stage, from any investigating agency of the government, the investigation of
such cases. [31] (Emphasis supplied)
To repeat, Honasan II categorically ruled that "the Constitution, Section 15 of the Ombudsman Act
of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman
exclusive jurisdiction to investigate offenses committed by public officials and employees."
The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary investigation
to determine if there is probable cause to charge a public officer or employee with an offense, not to the
conduct of a purely administrative fact-finding investigation that does not involve the determination of
probable cause. [32] The Truth Commission is a purely fact-finding body that does not determine the
existence of probable cause. There is no accused or even a suspect before the Truth Commission,
which merely conducts a general inquiry on reported cases of graft and corruption. No one will even be
under custodial investigation before the Truth Commission. [33] Thus, the claim that the Truth
Commission is usurping the investigatory power of the Ombudsman, or of any other government official,
has no basis whatsoever.
In criminal fact-finding investigations, the law expressly vests in the Philippine National Police
(PNP) and the National Bureau of Investigation (NBI) investigatory powers. Section 24 of Republic Act
No. 6975 [34] provides:
Section 24. Powers and Functions. — The PNP shall have the following powers and
duties:
(a) . . .
xxx xxx xxx
(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders
to justice, and assist in their prosecution;
xxx xxx xxx (Emphasis supplied)
Section 1 of Republic Act No. 157 also provides:
Section 1. There is hereby created a Bureau of Investigation under the Department of

Justice which shall have the following functions:
(a) To undertake investigation of crimes and other offenses against the laws of the
Philippines, upon its own initiative and as public interest may require; DCAHcT
The PNP and the NBI are under the control of the President. Indisputably, the President can at
any time direct the PNP and NBI, whether singly, jointly or in coordination with other government bodies,
to investigate possible violations of penal laws, whether committed by public officials or private
individuals. To say that the Ombudsman has the exclusive power to conduct fact-finding investigations
of crimes involving public officials and employees is to immobilize our law-enforcement agencies and
allow graft and corruption to run riot. The fact-finding arm of the Department of Justice (DOJ) to
investigate crimes, whether committed by public or private parties, is the NBI. [35] The DOJ Proper does
not conduct fact-finding investigations of crimes, but only preliminary investigations.
The Truth Commission
Has Subpoena Powers
Section 2 of EO 1 provides that the Truth Commission shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of EO 292, which reads:
Sec. 37. Powers Incidental to Taking of Testimony. — When authority to take testimony or
receive evidence is conferred upon any administrative officer or any non-judicial person, committee,
or other body, such authority shall include the power to administer oaths, summon witnesses,
and require the production of documents by a subpoena duces tecum. (Emphasis supplied)
Section 2 (e) of EO 1 confers on the Truth Commission the power to "[i]nvite or subpoena
witnesses and take their testimonies and for that purpose, administer oaths or affirmation as the case
may be." Thus, the Truth Commission, a body authorized to take testimony, can administer oaths and
issue subpoena and subpoena duces tecum pursuant to Section 37, Chapter 9, Book I of EO 292. In
fact, this power to administer oaths and to issue subpoena andsubpoena duces tecum is a power of
every administrative fact-finding investigative body created in the Executive, Legislative or Judicial
branch. Section 37, Chapter 9, Book I of EO 292 grants such power to every fact-finding body so
created.
The Truth Commission
Has No Contempt Powers
Section 9 of EO 1 provides:
Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to administrative
There is no provision in EO 1 that gives the Truth Commission the power to cite persons for
contempt. As explained by Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to obey
the subpoena, take oath or give testimony is a public officer, he can be charged with "defiance of a
lawful order," [36] which should mean insubordination [37] if his superior had ordered him to obey the
subpoena of the Truth Commission. If the person is not a public officer or employee, he can only be
dealt with in accordance with law, which should mean that the Truth Commission could file a petition
[38] [39]
with the proper court to cite such private person in contempt pursuant to Sections 1 and 9 of
Rule 21 of the Rules of Court.
However, the mere fact that the Truth Commission, by itself, has no coercive power to compel any
one, whether a government employee or a private individual, to testify before the Commission does not
invalidate the creation by the President, or by the Judiciary or Legislature, of a purely administrative fact-
finding investigative body. There are witnesses who may voluntarily testify, and bring relevant
documents, before such fact-finding body. The fact-finding body may even rely only on official records of
the government. To require every administrative fact-finding body to have coercive or contempt powers
is to invalidate all administrative fact-finding bodies created by the Executive, Legislative and Judicial
branches of government.
The Name "Truth Commission"
Cannot Invalidate EO 1
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 is no law or rule prescribing how permanent government commissions, offices, or entities
should be named. [40] There is also no law or rule prohibiting the use of the words "Truth
Commission" as the name of a fact-finding body. Most fact-finding bodies are named, either officially
or unofficially, after the chairperson of such body, which by itself, will not give any clue as to the nature,
powers or functions of the body. Thus, the name Feliciano Commission or Melo Commission, by itself,
does not indicate what the commission is all about. Naming the present fact-finding body as the "Truth
Commission" is more descriptive than naming it the Davide Commission after the name of its
chairperson.
The name of a government commission, office or entity does not determine its nature, powers or
functions. The specific provisions of the charter creating the commission, office or entity determine its
nature, powers or functions. The name of the commission, office or entity is not important and may even
be misleading. For example, the term Ombudsman connotes a male official but no one in his right mind
will argue that a female cannot be an Ombudsman. In fact, the present Ombudsman is not a man but a
woman. In the private sector, the name of a corporation may not even indicate what the corporation is all
about. Thus, Apple Corporation is not in the business of selling apples or even oranges. An individual
may be named Honesto but he may be anything but honest. All this tells us that in determining the
nature, powers or functions of a commission, office or entity, courts should not be fixated by its
name but should examine what it is tasked or empowered to do. EHaCID
In any event, there is nothing inherently wrong in the words "Truth Commission" as the name of a
fact-finding body. The primary purpose of every fact-finding body is to establish the facts. The facts lead
to, or even constitute, the truth. In essence, to establish the facts is to establish the truth. Thus, the
name "Truth Commission" is as appropriate as the name "Fact-Finding Commission." If the name of the
commission created in EO 1 is changed to "Fact-Finding Commission," the nature, powers and functions
of the commission will remain exactly the same. This simply shows that the name of the commission
created under EO 1 is not important, and any esoteric discourse on the ramifications of the name "Truth
Commission" is merely an academic exercise. Of course, the name "Truth Commission" is more
appealing than the worn-out name "Fact-Finding Commission." Courts, however, cannot invalidate a law
or executive issuance just because its draftsman has a flair for catchy words and a disdain for trite ones.
Under the law, a fact-finding commission by any other name is a fact-finding commission. [41]
The Public Will Not Be Deceived that
Findings of Truth Commission Are Final
The fear that the public will automatically perceive the findings of the Truth Commission as the
"truth," and any subsequent contrary findings by the Ombudsman or Sandiganbayan as the "untruth," is
misplaced. First, EO 1 is unequivocally clear that the findings of the Truth Commission are neither final
nor binding on the Ombudsman, more so on the Sandiganbayan which is not even mentioned in EO 1.
No one reading EO 1 can possibly be deceived or misled that the Ombudsman or the Sandiganbayan
are bound by the findings of the Truth Commission.
Second, even if the Truth Commission is renamed the "Fact-Finding Commission," the same
argument can also be raised — that the public may automatically perceive the findings of the Fact-
Finding Commission as the unquestionable "facts," and any subsequent contrary findings by the
Ombudsman or Sandiganbayan as "non-factual." This argument is bereft of merit because the public
can easily read and understand what EO 1 expressly says — that the findings of the Truth Commission
are not final or binding but merely recommendatory.
Third, the Filipino people are familiar with the Agrava Board, [42] a fact-finding body that
investigated the assassination of former Senator Benigno S. Aquino, Jr. The people know that the
findings of the Agrava Board were not binding on the then Tanodbayan or the Sandiganbayan. The
Agrava Board recommended for prosecution 26 named individuals [43] but the Tanodbayan charged 40
named individuals [44] before the Sandiganbayan. On the other hand, the Sandiganbayan convicted only
16 of those charged by the Tanodbayan and acquitted 20 of the accused. [45]
Fourth, as most Filipinos know, many persons who undergo preliminary investigation and are
charged for commission of crimes are eventually acquitted by the trial courts, and even by the appellate
courts. In short, the fear that the public will be misled that the findings of the Truth Commission is the
unerring gospel truth is more imagined than real.
EO 1 Does Not Violate
The Equal Protection Clause
Petitioners Lagman, et al. argue that EO 1 violates the equal protection clause because the
investigation of the Truth Commission is limited to alleged acts of graft and corruption during the Arroyo
administration.
A reading of Section 17 of EO 1 readily shows that the Truth Commission's investigation is not
limited to the Arroyo administration. Section 17 of EO 1 provides:
Section 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1 hereof
to include the investigation of cases and instances of graft and corruption during the prior
administrations, such mandate may be extended accordingly by way of a supplemental
Executive Order. (Emphasis supplied)
The President can expand the mandate of the Truth Commission to investigate alleged graft and
corruption cases of other past administrations even as its primary task is to investigate the Arroyo
administration. EO 1 does not confine the mandate of the Truth Commission solely to alleged acts of
graft and corruption during the Arroyo Administration.
Section 17 of EO 1 is the same as Section 2 (b) of Executive Order No. 1 dated 28 February 1986
issued by President Corazon Aquino creating the Presidential Commission on Good Government
(PCGG Charter). Section 2 (b) of the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates . . . .
(b) The investigation of such cases of graft and corruption as the President may
assign to the Commission from time to time.
Thus, under Section 2 (b) of the PCGG Charter, the President can expand the investigation of the
PCGG even as its primary task is to recover the ill-gotten wealth of the Marcoses and their
cronies. Both EO 1 and the PCGG Charter have the same provisions on the scope of their
investigations. Both the Truth Commission and the PCGG are primarily tasked to conduct specific
investigations, with their mandates subject to expansion by the President from time to time. This Court
has consistently upheld the constitutionality of the PCGG Charter. [46] CITcSH
Like Section 2 (b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the investigation of
acts of graft and corruption that may have taken place during the Arroyo administration. If time allows,
the President may extend the mandate of the Truth Commission to investigate other administrations
prior to the Arroyo administration. The prioritization of such work or assignment does not violate
the equal protection clause because the prioritization is based on reasonable grounds.
First, the prescriptive period for the most serious acts of graft and corruption under the Revised
Penal Code is 20 years, [47] 15 years for offenses punishable under the Anti-Graft and Corrupt Practices
Act, [48] and 12 years for offenses punishable under special penal laws that do not expressly provide for
prescriptive periods. [49] Any investigation will have to focus on alleged acts of graft and corruption
within the last 20 years, almost half of which or 9 years is under the Arroyo administration.
While it is true that the prescriptive period is counted from the time of discovery of the offense, the
"reported cases" [50] of "large scale corruption" [51] involving "third level public officers and higher," [52]
which the Truth Commission will investigate, have already been widely reported in media, and many of
these reported cases have even been investigated by the House of Representatives or the Senate.
Thus, the prescriptive periods of these "reported cases" of "large scale corruption" may have already
began to run since these anomalies are publicly known and may be deemed already discovered. [53]
These prescriptive periods refer to the criminal acts of public officials under penal laws, and not to the
recovery of ill-gotten wealth which under the Constitution is imprescriptible. [54]
Second, the Marcos, Ramos and Estrada administrations were already investigated by their
successor administrations. This alone is incontrovertible proof that the Arroyo administration is
not being singled out for investigation or prosecution.
Third, all the past Presidents, with the exception of Presidents Ramos, Estrada and Arroyo, are
already dead. The possible witnesses to alleged acts of graft and corruption during the Presidencies of
the deceased presidents may also be dead or unavailable. In fact, the only living President whose
administration has not been investigated by its successor administration is President Arroyo.
Fourth, the more recent the alleged acts of graft and corruption, the more readily available will be
the witnesses, and the more easily the witnesses can recall with accuracy the relevant events. Inaction
over time means the loss not only of witnesses but also of material documents, not to mention the loss
of public interest.
Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating other
past administrations. [55] There is also the constraint on the enormous resources needed to investigate
other past administrations. Just identifying the transactions, locating relevant documents, and looking for
witnesses would require a whole bureaucracy.
These are not only reasonable but also compelling grounds for the Truth Commission to
prioritize the investigation of the Arroyo administration. To prioritize based on reasonable and
even compelling grounds is not to discriminate, but to act sensibly and responsibly.
In any event, there is no violation of the equal protection clause just because the authorities focus
their investigation or prosecution on one particular alleged law-breaker, for surely a person accused of
robbery cannot raise as a defense that other robbers like him all over the country are not being
prosecuted. [56] By the very nature of an investigation or prosecution, there must be a focus on
particular act or acts of a person or a group of persons.
Indeed, almost every fact-finding body focuses its investigation on a specific subject matter —
whether it be a specific act, incident, event, situation, condition, person or group of persons. This
specific focus results from the nature of a fact-finding investigation, which is a necessary and proper
response to a specific compelling act, incident, event, situation, or condition involving a person or group
of persons. Thus, the fact-finding commissions created under the previous Arroyo administration had
specific focus: the Feliciano Commission focused on the Oakwood mutiny, the Melo Commission
focused on extra-judicial killings, and the Zeñarosa Commission focused on private armies. SaIHDA
Significantly, the PCGG Charter even specifies the persons to be investigated for the recovery of
ill-gotten wealth. Thus, Section 2 (a) of the PCGG Charter provides:
Section 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his immediate family, relatives, subordinates and close associates, whether located
in the Philippines or abroad, including the takeover or sequestration of all business enterprises and
entities owned or controlled by them, during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers, authority, influence,
connections or relationship.
(b) . . . . (Emphasis supplied)
The PCGG Charter has survived all constitutional attacks before this Court, including the claim that its
Section 2 (a) violates the equal protection clause. In Virata v. Sandiganbayan, [57] this Court
categorically ruled that the PCGG Charter "does not violate the equal protection clause and is not a
bill of attainder or an ex post facto law." [58]
This specific focus of fact-finding investigations is also true in the United States. Thus, the Roberts
Commission [59] focused on the Pearl Harbor attack, the Warren Commission [60] focused on the
assassination of President John F. Kennedy, and the 9/11 Commission [61] focused on the 11
September 2001 terrorist attacks on the United States. These fact-finding commissions were created
with specific focus to assist the U.S. President and Congress in crafting executive and legislative
responses to specific acts or events of grave national importance. Clearly, fact-finding investigations by
their very nature must have a specific focus.
Graft and corruption cases before the Arroyo administration have already been investigated by the
previous administrations. President Corazon Aquino created the Presidential Commission on Good
Government to recover the ill-gotten wealth of the Marcoses and their cronies. [62] President Joseph
Estrada created the Saguisag Commission to investigate the Philippine Centennial projects of President
Fidel Ramos. [63] The glaring acts of corruption during the Estrada administration have already been
investigated resulting in the conviction of President Estrada for plunder. Thus, it stands to reason that
the Truth Commission should give priority to the alleged acts of graft and corruption during the Arroyo
administration.
The majority opinion claims that EO 1 violates the equal protection clause because the Arroyo
administration belongs to a class of past administrations and the other past administrations are not
included in the investigation of the Truth Commission. Thus, the majority opinion states:
In this regard, it must be borne in mind that the Arroyo administration is but just a member
of a class, that is, a class of past administrations. It is not a class of its own. Not to include
past administrations similarly situated constitutes arbitrariness which the equal protection
clause cannot sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
xxx xxx xxx
. . . The PTC [Philippine Truth Commission], to be true to its mandate of searching the
truth, must not exclude the other past administrations. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable prioritization is permitted, it
should not be arbitrary lest it be struck down for being unconstitutional.
xxx xxx xxx
. . . To exclude the earlier administrations in the guise of "substantial distinctions"

would only confirm the petitioners' lament that the subject executive order is only an
"adventure in partisan hostility." . . . .
xxx xxx xxx
To reiterate, in order for a classification to meet the requirements of constitutionality, it

must include or embrace all persons who naturally belong to the class. "Such a classification
must not be based on existing circumstances only, or so constituted as to preclude additions to the
number included within a class, but must be of such a nature as to embrace all those who may
hereafter be in similar circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and which are indistinguishable
from those of the members of the class must be brought under the influence of the law and treated
by it in the same way as are the members of the class." (Emphasis supplied) DTAcIa
The majority opinion goes on to suggest that EO 1 could be amended "to include the earlier past
administrations" to allow it "to pass the test of reasonableness and not be an affront to the
Constitution."
The majority opinion's reasoning is specious, illogical, impractical, impossible to comply, and
contrary to the Constitution and well-settled jurisprudence. To require that "earlier past
administrations" must also be included in the investigation of the Truth Commission, with the Truth
Commission expressly empowered "to investigate all past administrations," before there can be a
valid investigation of the Arroyo administration under the equal protection clause, is to prevent
absolutely the investigation of the Arroyo administration under any circumstance.
While the majority opinion admits that there can be "reasonable prioritization" of past
administrations to be investigated, it not only fails to explain how such reasonable prioritization can be
made, it also proceeds to strike down EO 1 for prioritizing the Arroyo administration in the investigation
of the Truth Commission. And while admitting that there can be a valid classification based on
substantial distinctions, the majority opinion inexplicably makes any substantial distinction immaterial by
stating that "[t]o exclude the earlier administrations in the guise of "substantial distinctions"
would only confirm the petitioners' lament that the subject executive order is only an 'adventure
in partisan hostility.'"
The "earlier past administrations" prior to the Arroyo administration cover the Presidencies of
Emilio Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Ramon
Magsaysay, Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Fidel Ramos,
and Joseph Estrada, a period spanning 102 years or more than a century. All these administrations,
plus the 9-year Arroyo administration, already constitute the universe of all past administrations,
covering a total period of 111 years. All these "earlier past administrations" cannot constitute just one
class of administrations because if they were to constitute just one class, then there would be no other
class of administrations. It is like saying that since all citizens are human beings, then all citizens belong
to just one class and you cannot classify them as disabled, impoverished, marginalized, illiterate,
peasants, farmers, minors, adults or seniors.
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 and corruption. There are prescriptive
periods to prosecute crimes. There are administrations that have already been investigated by their
successor administrations. There are also administrations that have been subjected to several
Congressional investigations for alleged large-scale anomalies. There are past Presidents, and the
officials in their administrations, who are all dead. There are past Presidents who are dead but some of
the officials 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" — because they are not all
similarly situated. AECIaD
On the other hand, just because the Presidents and officials of "earlier past administrations" are
now all dead, or the prescriptive periods under the penal laws have all prescribed, does not mean that
there can no longer be any investigation of these officials. The State's right to recover the ill-gotten
wealth of these officials is imprescriptible. [64] Section 15, Article XI of the 1987 Constitution provides:
Section 15. The right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, laches or estoppel. (Emphasis supplied)
Legally and morally, any ill-gotten wealth since the Presidency of Gen. Emilio Aguinaldo can still
be recovered by the State. Thus, if the Truth Commission is required to investigate "earlier past
administrations" that could still be legally investigated, the Truth Commission may have to start
with the Presidency of Gen. Emilio Aguinaldo.
A fact-finding investigation of "earlier past administrations," spanning 111 years punctuated by
two world wars, a war for independence, and several rebellions — would obviously be an impossible
task to undertake for 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 Arroyo
administration, is utterly bereft of any reasonable basis other than to prevent absolutely the investigation
of the Arroyo administration. No nation on this planet has even attempted to assign to one ad-hoc fact-
finding body the investigation of all its senior public officials in the past 100 years.
The majority opinion's overriding thesis — that "earlier past administrations" belong to only one
class and they must all be included in the investigation of the Truth Commission, with the Truth
Commission expressly empowered "to investigate all past administrations" — is even the wrong
assertion of discrimination that is violative of the equal protection clause. The logical and correct
assertion of a violation of the equal protection clause is that the Arroyo administration is being
investigated for possible acts of graft and corruption while other past administrations similarly
situated were not.
Thus, in the leading case of United States v. Armstrong, [65] decided in 1996, the U.S. Supreme
Court ruled that "to establish a discrimination effect in a race case, the claimant must show that similarly
situated individuals of a different race were not prosecuted." [66] Applied to the present petitions,
petitioners must establish that similarly situated officials of other past administrations were not
investigated. However, the incontrovertible and glaring fact is that the Marcoses and their cronies were
investigated and prosecuted by the PCGG, President Fidel Ramos and his officials in the Centennial
projects were investigated by the Saguisag Commission, and President Joseph Estrada was
investigated, prosecuted and convicted of plunder under the Arroyo administration. Indisputably, the
Arroyo administration is not being singled out for investigation or prosecution because other
past administrations and their officials were also investigated or prosecuted.
In United States v. Armstrong, the U.S. Supreme Court further stated that "[a] selective-
prosecution claim asks a court to exercise judicial power over a "special province" of the Executive," [67]
citing Hecker v. Chaney [68] which held that a decision whether or not to indict "has long been
regarded as the special province of the Executive Branch, inasmuch it is the Executive who is
charged by the Constitution to 'take Care that the Laws be faithfully executed.'" [69] These U.S.
cases already involved the prosecution of cases before the grand jury or the courts, well past the
administrative fact-finding investigative phase.
In the present case, no one has been charged before the prosecutor or the courts. What
petitioners want this Court to do is invalidate a mere administrative fact-finding investigation by the
Executive branch, an investigative phase prior to preliminary investigation. Clearly, if courts cannot
exercise the Executive's "special province" to decide whether or not to indict, which is the equivalent of
determination of probable cause, with greater reason courts cannot exercise the Executive's "special
province" to decide what or what not to investigate for administrative fact-finding purposes.
For this Court to exercise this "special province" of the President is to encroach on the exclusive
domain of the Executive to execute the law in blatant violation of the finely crafted constitutional
separation of power. Any unwarranted intrusion by this Court into the exclusive domain of the Executive
or Legislative branch disrupts the separation of power among the three co-equal branches and
ultimately invites re-balancing measures from the Executive or Legislative branch.
A claim of selective prosecution that violates the equal protection clause can be raised
only by the party adversely affected by the discriminatory act. In Nunez v. Sandiganbayan, [70] this
Court declared:
'. . . Those adversely affected may under the circumstances invoke the equal protection
clause only if they can show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason.' . . . . (Emphasis supplied) EHaASD
Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under
EO 1. Even in the absence of such a claim by the proper party, the majority opinion strikes down EO 1
as discriminatory and thus violative of the equal protection clause. This is a gratuitous act to those who
are not before this Court, a discriminatory exception to the rule that only those "adversely affected" by
an alleged selective prosecution can invoke the equal protection clause. Ironically, such
discriminatory exception is a violation of the equal protection clause. In short, the ruling of the
majority is in itself a violation of the equal protection clause, the very constitutional guarantee that it
seeks to enforce.
The majority opinion's requirement that "earlier past administrations" in the last 111 years
should be included in the investigation of the Truth Commission to comply with the equal protection
clause is a recipe for all criminals to escape prosecution. This requirement is like saying that before a
person can be charged with estafa, the prosecution must also charge all persons who in the past may
have committed estafa in the country. Since it is impossible for the prosecution to charge all those who
in the past may have committed estafa in the country, then it becomes impossible to prosecute anyone
for estafa.
This Court has categorically rejected this specious reasoning and false invocation of the equal
protection clause in People v. dela Piedra, [71] where the Court emphatically ruled:
The prosecution of one guilty person while others equally guilty are not prosecuted,
however, is not, by itself, a denial of the equal protection of the laws. . . .
. . . The mere allegation that appellant, a Cebuana, was charged with the commission of a
crime, while a Zamboangueña, the guilty party in appellant's eyes, was not, is insufficient to support
a conclusion that the prosecution officers denied appellant equal protection of the laws.
There is also common sense practicality in sustaining appellant's prosecution.
While all persons accused of crime are to be treated on a basis of equality before the law, it
does not follow that they are to be protected in the commission of crime. It would be
unconscionable, for instance, to excuse a defendant guilty of murder because others have
murdered with impunity. The remedy for unequal enforcement of the law in such instances
does not lie in the exoneration of the guilty at the expense of society . . . . Protection of the law
will be extended to all persons equally in the pursuit of their lawful occupations, but no person has
the right to demand protection of the law in the commission of a crime. (People v. Montgomery, 117
P.2d 437 [1941])
Likewise,
[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be
converted into a defense for others charged with crime, the result would be that the trial of the district
attorney for nonfeasance would become an issue in the trial of many persons charged with heinous
crimes and the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794
[1958]). [72] (Emphasis supplied)
The Court has reiterated this "common sense" ruling in People v. Dumlao [73] and in Santos v. People,
[74]
for to hold otherwise is utter nonsense as it means effectively granting immunity to all criminals.
Indeed, it is a basic statutory principle that non-observance of a law by disuse is not a ground to
escape prosecution for violation of a law. Article 7 of Civil Code expressly provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
A person investigated or prosecuted for a possible crime cannot raise the defense that he is being
singled out because others who may have committed the same crime are not being investigated or
prosecuted. Such person cannot even raise the defense that after several decades he is the first
and only one being investigated or prosecuted for a specific crime. The law expressly states that
disuse of a law, or custom or practice allowing violation of a law, will never justify the violation of the law
or its non-observance. ACcTDS
A fact-finding investigation in the Executive or Judicial branch, even if limited to specific

government officials — whether incumbent, resigned or retired — does not violate the equal protection
clause. If an anomaly is reported in a government transaction and a fact-finding investigation is
conducted, the investigation by necessity must focus on the public officials involved in the transaction. It
is ridiculous for anyone to ask this Court to stop the investigation of such public officials on the ground
that past public officials of the same rank, who may have been involved in similar anomalous
transactions in the past, are not being investigated by the same fact-finding body. To uphold such a
laughable claim is to grant immunity to all criminals, throwing out of the window the constitutional
principle that "[p]ublic office is a public trust" [75] and that "[p]ublic officials and employees must at all
times be accountable to the people." [76]
When the Constitution states that public officials are "at all times" accountable to the people, it
means at any time public officials can be held to account by the people. Nonsensical claims, like the
selective prosecution invoked in People v. dela Piedra, are unavailing. Impossible conditions, like
requiring the investigation of "earlier past administrations," are disallowed. All these flimsy and dilatory
excuses violate the clear command of the Constitution that public officials are accountable to the people
"at all times."
The majority opinion will also mean that the PCGG Charter — which tasked the PCGG to recover
the ill-gotten wealth of the Marcoses and their cronies — violates the equal protection clause because
the PCGG Charter specifically mentions the Marcoses and their cronies. The majority opinion reverses
several decisions [77] of this Court upholding the constitutionality of the PCGG Charter, endangering
over two decades of hard work in recovering ill-gotten wealth.
Ominously, the majority opinion provides from hereon every administration a cloak of immunity
against any investigation by its successor administration. This will institutionalize impunity in
transgressing anti-corruption and other penal laws. Sadly, the majority opinion makes it impossible to
bring good governance to our government.
The Truth Commission is only a fact-finding body to provide the President with facts so that he
can understand what happened in certain government transactions during the previous
administration. There is no preliminary investigation yet and the Truth Commission will never conduct
one. No one is even being charged before the prosecutor or the Ombudsman. This Court has
consistently refused to interfere in the determination by the prosecutor of the existence of probable
cause in a preliminary investigation. [78] With more reason should this Court refuse to interfere in the
purely fact-finding work of the Truth Commission, which will not even determine whether there is
probable cause to charge any person of a crime.
Before the President executes the law, he has the right, and even the duty, to know the facts to
assure himself and the public that he is correctly executing the law. This Court has no power to
prevent the President from knowing the facts to understand certain government transactions in
the Executive branch, transactions that may need to be reviewed, revived, corrected, terminated
or completed. If this Court can do so, then it can also prevent the House of Representatives or the
Senate from conducting an investigation, in aid of legislation, on the financial transactions of the Arroyo
administration, on the ground of violation of the equal protection clause. Unless, of course, the House or
the Senate attempts to do the impossible — conduct an investigation on the financial transactions of
"earlier past administrations" since the Presidency of General Emilio Aguinaldo. Indeed, under the
majority opinion, neither the House nor the Senate can conduct any investigation on any administration,
past or present, if "earlier past administrations" are not included in the legislative investigation. DHTECc
In short, the majority opinion's requirements that EO 1 should also include "earlier past
administrations," with the Truth Commission empowered "to investigate all past administrations," to
comply with the equal protection clause, is a requirement that is not only illogical and impossible to
comply, it also allows the impunity to commit graft and corruption and other crimes under our penal laws.
The majority opinion completely ignores the constitutional principle that public office is a public trust and
that public officials are at all times accountable to the people.
A Final Word
The incumbent President was overwhelmingly elected by the Filipino people in the 10 May 2010
elections based on his announced program of eliminating graft and corruption in government. As the
Solicitor General explains it, the incumbent President has pledged to the electorate that the elimination
of graft and corruption will start with the investigation and prosecution of those who may have committed
large-scale corruption in the previous administration. [79] During the election campaign, the incumbent
President identified graft and corruption as the major cause of poverty in the country as depicted in his
campaign theme "kung walang corrupt, walang mahirap." It was largely on this campaign pledge to
eliminate graft and corruption in government that the electorate overwhelmingly voted for the incumbent
President. The Filipino people do not want to remain forever at the bottom third of 178 countries ranked
in terms of governments free from the scourge of corruption. [80]
Neither the Constitution nor any existing law prevents the incumbent President from
redeeming his campaign pledge to the Filipino people. In fact, the incumbent President's campaign
pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II of the
Constitution, that:
Section 27. The State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption. (Emphasis supplied)
The incumbent President's campaign pledge also reiterates the constitutional principle that "[p]ublic
office is a public trust" [81] and that "[p]ublic officers and employees must at all times be accountable to
the people." [82]
This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the
Filipino people to start the difficult task of putting an end to graft and corruption in government, denies
the President his basic constitutional power to determine the facts in his faithful execution of the law,
and suppresses whatever truth may come out in the purely fact-finding investigation of the Truth
Commission. This Court, in invoking the equal protection clause to strike down a purely fact-finding
investigation, grants immunity to those who violate anti-corruption laws and other penal laws, renders
meaningless the constitutional principle that public office is a public trust, and makes public officials
unaccountable to the people at any time.
Ironically, this Court, and even subordinates of the President in the Executive branch, routinely
create all year round fact-finding bodies to investigate all kinds of complaints against officials and
employees in the Judiciary or the Executive branch, as the case may be. The previous President
created through executive issuances three purely fact-finding commissions similar to the Truth
Commission. Yet the incumbent President, the only official mandated by the Constitution to execute
faithfully the law, is now denied by this Court the power to create the purely fact-finding Truth
Commission.
History will record the ruling today of the Court's majority as a severe case of judicial overreach
that made the incumbent President a diminished Executive in an affront to a co-equal branch of
government, crippled our already challenged justice system, and crushed the hopes of the long suffering
Filipino people for an end to graft and corruption in government.
Accordingly, I vote to DISMISS the petitions. SDTIaE
CARPIO MORALES, J., dissenting:
Assailed for being unconstitutional in the present consolidated cases is Executive Order (EO) No.
1 of July 30, 2010 that created the Philippine Truth Commission of 2010 (Truth Commission).
In issue is whether EO No. 1 violates the Constitution in three ways, viz., (i) for usurping the
power of Congress to create public office and appropriate public funds, (ii) for intruding into the
independence of the Office of the Ombudsman, and (iii) for infringing on the equal protection clause with
its limited scope of investigation.
The ponencia submits the following findings and conclusions which have been synthesized:
1. The Truth Commission is an ad hoc body formed under the Office of the President. It has all
the powers of an investigative body under the Administrative Code. [1] It is a fact-finding body, and not a
quasi-judicial body;
2. The President has the power to create a new office like the Truth Commission. The power
inheres in his powers as Chief Executive and springs from the constitutional duty to faithfully execute the
laws. [2] Otherwise stated, the President has the power to conduct investigations to aid him in ensuring
that laws are faithfully executed. It does not emanate from the President's power of control under the
Constitution, [3] nor by virtue of the power to reorganize under the Administrative Code [4] which pertains
to certain modifications of existing offices, nor by authority of a stale law [5] governing reorganization of
the national government;
3. There is no transgression of the legislative power to appropriate public funds since what is
involved is only an allotment or allocation of existing funds that have already been appropriated and
which shall equally be subject to auditing rules; AaDSEC
4. The Truth Commission does not duplicate, supersede or erode the powers and functions of
the Office of the Ombudsman and the Department of Justice, since its investigative function
complements the two offices' investigative power which is not exclusive. This investigative function is not
akin to the conduct of preliminary investigation of certain cases, over which the Ombudsman exercises
primary jurisdiction; and
5. [6]
EO No. 1 violates the equal protection clause enshrined in the Constitution, for it
singles out the previous administration as the sole subject of investigation.
Sustaining only the fifth ground — that the EO violates the equal protection clause, the ponencia
disposes:
WHEREFORE, the petition is (sic) GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are enjoined from implementing (sic) and operating the
Truth Commission. [7] (underscoring supplied)
I submit that the petitions should be DISMISSED.

It bears noting at the outset that none of the petitioners properly raises the issue of equal
protection of the laws.
Petitioners in G.R. No. 193036, with legal standing as legislators, cannot properly assert
the equal protection claim of the previous administration. While legislators have locus standi in
certain cases, their legal standing as such is recognized only insofar as the assailed issuance affects
their functions as legislators. In the absence of a claim that the issuance in question violated the rights
of petitioner-legislators or impermissibly intruded into the domain of the Legislature, they have no legal
standing to institute the present action in their capacity as members of Congress. [8]
No doubt, legislators are allowed to sue to question the validity of any official action upon a claim
of usurpation of legislative power. [9] That is why, not every time that a Senator or a Representative
invokes the power of judicial review, the Court automatically clothes them with locus standi. [10] The
Court examines first, as the ponencia did, if the petitioner raises an issue pertaining to an injury to
Congress as an institution or a derivative injury to members thereof, [11] before proceeding to resolve
that particular issue.
The peculiarity of the locus standi of legislators necessarily confines the adjudication of their
petition only on matters that tend to impair the exercise of their official functions. In one case, the Court
ruled:
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of human
rights, and as citizens of the country. They have not shown, however, that they have sustained or will
sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate.
Their contention that they will be deprived of their remedies for the protection and enforcement of
their rights does not persuade. The Rome Statute is intended to complement national criminal laws
and courts. Sufficient remedies are available under our national laws to protect our citizens against
human rights violations and petitioners can always seek redress for any abuse in our domestic
courts. ACIDSc
As regards Senator Pimentel, it has been held that 'to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to participate in the
exercise of the powers of that institution. Thus, legislators have the standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold
its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The
petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it
to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal
standing to assert such authority of the Senate. [12] (emphasis and underscoring supplied)
Breach of the equal protection clause, as presently raised by petitioner-legislators on behalf of the
Executive Department of the immediate past administration, has nothing to do with the impairment of the
powers of Congress. Thus, with respect to the issue in Pimentel, Jr. v. Exec. Secretary Ermita [13] that
did not involve any impairment of the prerogatives of Congress, some Senators who merely invoked
their status as legislators were not granted standing.
Moreover, petitioner-legislators cannot take the cudgels for the previous administration/s, unless
they admit that they are maintaining a confidential relation with it/them or acting as advocates of the
rights of a non-party who seeks access to their market or function. [14]
The petitioner in G.R. No. 192935, Louis Biraogo, does not raise the issue of equal
protection. His Memorandum mentions nothing about equal protection clause. [15] While the ponencia
"finds reason in Biraogo'sassertion that the petition covers matters of transcendental importance," [16]
not even his successful invocation of transcendental importance can push the Court into resolving an
issue which he never raised in his petition.
On the foregoing score alone, the ponencia should not have dealt with the issue of equal
protection. [17]
Such barriers notwithstanding, the claim of breach of the equal protection clause fails to hurdle
the higher barrier of merit.
EQUAL PROTECTION OF THE LAWS
The ponencia holds that the previous administration has been denied equal protection of the laws.
To it, "[t]o restrict the scope of the commission's investigation to said particular administration constitutes
arbitrariness which the equal protection clause cannot sanction." [18]
I find nothing arbitrary or unreasonable in the Truth Commission'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 substantial distinctions; (2) It
is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class. [19] ETDHSa
The classification rests on

substantial distinction
Reasonableness should consider the nature of the truth commission which, as found by the
ponencia, emanates from the power of the President to conduct investigations to aid him in ensuring the
faithful execution of laws. The ponencia explains that the Executive Department is given much leeway in
ensuring that our laws are faithfully executed. It adds:
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to
allow an inquiry into matters which the President is entitled to know so that he can be properly
advised and guided in the performance of his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies
created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission, and the Zenarosa Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as non-existent just because the direction
of the political winds ha[s] changed. [20] (underscoring supplied)
This Court could not, in any way, determine or dictate what information the President
would be needing in fulfilling the duty to ensure the faithful execution of laws on public
accountability. This sweeping directive of the ponencia to include all past administrations in the probe
tramples upon the prerogative of a co-equal branch of government.
The group or class, from which to elicit the needed information, rests on substantial distinction
that sets the class apart.
Proximity and magnitude of incidents
Fairly recent events like the exigencies of transition and the reported large-scale corruption
explain the determined need to focus on no other period but the tenure of the previous administration.
The proximity and magnitude of particular contemporary events like the Oakwood mutiny and
Maguindanao massacre similarly justified the defined scope of the Feliciano Commission and the
Zenarosa Commission, respectively. As applied to the two commissions whose objective the ponencia
itself recognizes, the same test of reasonableness rejects the absurd proposition to widen their
respective scopes to include all incidents of rebellion/mutiny and election-related violence since the First
Republic. Certainly, it is far removed not just from the present time but also from logic and experience.
This explained need for specific information removes the arbitrariness from recognizing the
previous administration as a distinct class of its own.
Without a complete and definitive report
The ponencia brushes aside the proffered reasons for limiting the investigation to the previous
administration since "earlier administrations have also been blemished by similar widespread reports of
impropriety." [21] HEITAD
The ponencia employs the premise that previous administrations have all been blemished by
reports of improprieties similar [22] to those of the previous administration. Whether reports of such
nature exist is not borne by the pleadings submitted by petitioners who allege unequal protection.
Without any factual basis, the statement is inconclusive and, at best, arguable.
Assuming arguendo that comparable reports of large-scale graft and corruption existed during
administrations previous to the last, petitioners do not allege that information regarding these reported
activities is not yet available in the Executive Department. On the contrary, respondents disclose that the
Presidential Commission on Good Government and the Saguisag Commission have already probed into
certain anomalous transactions that occurred during the Marcos and Ramos administrations,
respectively. During past administrations, parallel functions had been discharged by the Integrity Board,
Presidential Complaints and Action Commission (PCAC), Presidential Committee on Administrative
Performance Efficiency (PCAPE), and Presidential Anti-Graft Committee (PAGCOM, later replaced by
the Presidential Committee on Administering Performance Efficiency), that were created by former
Presidents Quirino, Magsaysay, Garcia and Macapagal, respectively. [23] Not to mention the plunder
committed during the Estrada administration, the facts of which — already judicially ascertained, at that
— are contained in public records.
The Executive Department's determination of the futility or redundancy of investigating other
administrations should be accorded respect. Respondents having manifested that pertinent and credible
data are already in their hands or in the archives, petitioners' idea of an all-encompassing de novo
inquiry becomes tenuous as it goes beyond what the Executive Department needs.
The exclusion of other past administrations from the scope of investigation by the Truth
Commission is justified by the substantial distinction that complete and definitive reports covering their
respective periods have already been rendered. The same is not true with the immediate past
administration. There is thus no undue favor or unwarranted partiality. To include everybody all over
again is to insist on a useless act.
The distinction is not discriminatory
I find it contradictory for the ponencia to state, on the one hand, that the Truth Commission would
be labeled as a "vehicle for vindictiveness and selective retribution" [24] and declare, on the other, that
"its power to investigate is limited to obtaining facts . . . and its findings "would at best be
recommendatory in nature[,] [a]nd . . . [the concerned agencies] have a wide degree of latitude to decide
whether or not to reject the recommendation." [25]
After precisely explaining that "fact-finding is not adjudication," [26] the ponencia relates it to
retribution which it depicts, in the context of truth commissions, as a "retributory body set up to try and
punish those responsible for the crimes." [27] The ponencia jumps into conclusion but lands nowhere for
it has no ground on which to stand.
Further, the Court should not concern itself with the nebulous concept of "partisan hostility," a
relatively redundant term that eludes exact definition in a political world of turncoatism. Had the assailed
issuance provided exemption to former members of the previous administration who have joined the
prevailing political party, I would not hesitate to declare EO No. 1 void. CDcaSA
Far from being discriminatory, E.O. No. 1 permits the probing of current administration officials
who may have had a hand in the reported graft and corruption committed during the previous
administration, regardless of party affiliation. The classification notably rests not on personalities but on
period, as shown by the repeated use of the phrase "during the previous administration." [28]
The ponencia treats adventures in "partisan hostility" as a form of undue discrimination. Without
defining what it is, the ponencia gives life to a political creature and transforms it into a legal animal. By
giving legal significance to a mere say-so of "partisan hostility," it becomes unimaginable how the Court
will refuse to apply this novel doctrine in the countless concerns of the inherently political branches of
government under an invocation of equal protection. And to think, the present matter only involves the
gathering of information.
To knowingly classify per se is not synonymous to intentional discrimination, which brings me to
the next point that the classification is germane to the purpose of the law.
The classification is germane

to the purpose of the law
I entertain no doubt that respondents consciously and deliberately decided to focus on the corrupt
activities reportedly committed during the previous administration. For respondents to admit that the
selection was inadvertent is worse. The ponencia, however, is quick to ascribe intentional discrimination
from the mere fact that the classification was intentional.
Good faith is presumed. I find it incomprehensible how the ponencia overturns that presumption.
Citing an array of foreign jurisprudence, the ponencia, in fact, recognizes that mere under-inclusiveness
or incompleteness is not fatal to the validity of a law under the equal protection clause. Thus the
ponencia pontificates:
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law
under the equal protection clause." "Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach." It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational predicate simply because it
happens to be incomplete. In several instances, the underinclusiveness was not considered valid
reason to strike down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process. "With regard to equal protection claims,
a legislature does not run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might conceivably have been
attacked."
In Executive Order No. 1, however, there is no clear indicia of inadvertence. That the previous
administration was picked out was deliberate and intentional as can be gathered from the fact that it
was stressed three times in the assailed executive order. "The equal protection clause is voided by
purposeful and intentional discrimination." [29] (emphasis and underscoring supplied) SaCIAE
According to the ponencia itself, the E.O.'s failure to include all evils within its reach, even by
design, is not vulnerable to an equal protection challenge. How the ponencia arrives at a contrary
conclusion puzzles.
[30]
Within our own jurisprudential shores, the Court expounded in Quinto v. Comelec on those
classifications which, albeit not all-inclusive, remain germane to the purpose of the law.
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an
injustice, the Legislature need not address every manifestation of the evil at once; it may proceed
"one step at a time." In addressing a societal concern, it must invariably draw lines and make
choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as
"the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative
judgment. We may not strike down a law merely because the legislative aim would have been more
fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by
itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no
constitutional requirement that regulation must reach each and every class to which it might be
applied; that the Legislature must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the
law creates a classification that is "palpably arbitrary or capricious." He must refute all possible
rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons
for the enactment, such that the constitutionality of the law must be sustained even if the
reasonableness of the classification is "fairly debatable." In the case at bar, the petitioners failed —
and in fact did not even attempt — to discharge this heavy burden. Our assailed Decision was
likewise silent as a sphinx on this point even while we submitted the following thesis:
. . . [I]t is not sufficient grounds for invalidation that we may find that the statute's
distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy
standpoint; rather, we must find that there is no reasonably rational reason for the differing
treatment. (underscoring supplied)
The "one step at a time" approach is thus not unconstitutional. E.O. No. 1 is not the first, but the
latest, step in a series of initiatives undertaken by Presidents, as earlier illustrated. Neither will it be the
last step. E.O. No. 1 contains a special provision [31] concerning the expansion of mandate. There being
no constitutional violation in a step-by-step approach, the present and future administrations may
release supplementary or comparable issuances.
The wisdom behind the issuance of the E.O. No. 1 is "outside the rubric of judicial scrutiny." [32]
Analogous to Quinto's instructions, this Court cannot and should not arrogate unto itself the power to
ascertain and impose on the President the best or complete way of obtaining information to eradicate
corruption. Policy choices on the practicality or desirability of data-gathering that is responsive to the
needs of the Executive Department in discharging the duty to faithfully execute the laws are best left to
the sound discretion of the President.
Most enlightening as to how the classification is germane to the purpose of the law is knowing first
what is the purpose of the law.
According to the ponencia, the objective of E.O. No. 1 is the "stamping out [of] acts of graft and
corruption." [33] aDcETC
I differ.
The purpose of E.O. No. 1 is the gathering of needed information to aid the President in the
implementation of public accountability laws. Briefly stated, E.O. No. 1 aims to provide data for the
President.
The ponencia, in fact, has earlier explained: "It should be stressed that the purpose of allowing ad
hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know
so that he can be properly advised and guided in the performance of his duties relative to the execution
and enforcement of the laws of the land." [34]
The long-term goal of the present administration must not be confused with what E.O. No. 1
intends to achieve within its short life. The opening clauses and provisions of E.O No. 1 are replete with
phrases like "an urgent call for the determination of the truth," "dedicated solely to investigating and
finding out the truth," and "primarily seek and find the truth."
The purpose of E.O. No. 1 is to produce a report which, insofar as the Truth Commission is
concerned, is the end in itself. Thepurpose of the report is another matter which is already outside the
control of E.O. No. 1.
Once the report containing the needed information is completed, the Truth Commission is
dissolved functus 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 and corruption. The
report would still be passed upon by government agencies. Insofar as the Executive Department is
concerned, the report assimilates into a broader database that advises and guides the President in law
enforcement.
To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to the
fallacious and artificial conclusion that respondents are stamping out corrupt acts of the previous
administration only, as if E.O. No. 1 represents the entire anti-corruption efforts of the Executive
Department.
To state that the purpose of E.O. No. 1 is to eradicate graft and corruption begs the question.
What is there to eradicate in the first place, if claims of graft and corruption are yet to be verified by the
Truth Commission? Precisely, by issuing E.O. No. 1, respondents saw the need to verify raw data before
initiating the law enforcement mechanism, if warranted.
The classification is not limited
to existing conditions only
The Truth Commission is an ad hoc body formed under the Office of the President. The nature of
an ad hoc body is that it is limited in scope. Ad hoc means for the particular end or case at hand without
[35]
consideration of wider application. An ad hoc body is inherently temporary. E.O. No. 1 provides that
the Truth Commission "shall accomplish its mission on or before December 31, 2012." [36]
That the classification should not be limited to existing conditions only, as applied in the present
case, does not mean the inclusion of future administrations. Laws that are limited in duration (e.g.,
general appropriations act) do not circumvent the guarantee of equal protection by not embracing all
that may, in the years to come, be in similar conditions even beyond the effectivity of the law. CASaEc
The requirement not to limit the classification to existing conditions goes into the operational
details of the law. The law cannot, in fine print, enumerate extant items that exclusively compose the
classification, thereby excluding soon-to-exist ones that may also fall under the classification.
In the present case, the circumstance of available reports of large-scale anomalies that fall under
the classification (i.e., committed during the previous administration) makes one an "existing condition."
Those not yet reported or unearthed but likewise fall under the same class must not be excluded from
the application of the law. There is no such exclusionary clause in E.O. No. 1.
The ratiocination on this third requisite so as to include previous administrations already goes into
the "classifications," not the "conditions." The ponencia rewrites the rule leading to the absurd
requirement that the classification should not be limited to the existing "classification" only.
The classification applies equally

to all members of the same class
Petitioners concede, by their failure to allege otherwise, that the classification applies equally to all
members within the same class (i.e., all reports of large-scale graft and corruption during the previous
administration). By this implied admission, this fourth requirement meets no objection.
Petitioners' only insistent contention, as sustained by the ponencia, is that all prior administrations
belong to the same class, citing that equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. [37]
Petitioners do not espouse the view that no one should be investigated. What they advocate is
that all administrations should be investigated or, more accurately, all reports of large-scale graft and
corruption during the tenure of past administrations should be subjected to investigation.
Discrimination presupposes prejudice. I find none.
First, no one complains of injury or prejudice. Petitioners do not seek the lifting of their own
obligations or the granting of their own rights that E.O. No. 1 imposes or disallows. As earlier
expounded, petitioner-legislators cannot plausibly invoke the equal protection claims of other persons,
while petitioner Biraogo did not invoke it at all.
Second, petitioners do not allege that previous administrations, other than the immediate past
administration, have been denied the right to appear before or be examined by the Truth Commission.
Neither do petitioners identify the specific fact-finding obligations exclusively imposed upon the
immediate past administration by the Truth Commission whose primary duty is merely to "investigate
reports of graft and corruption and to recommend the appropriate action." [38] cSaCDT
Third, assuming that there already exists an imposition of obligation from the mere
recommendation for prosecution (as one of the possible appropriate measures) by the Truth
Commission, the act of not recommending the prosecution of all those who could be probably guilty of
graft and corruption is not violative of the equal protection clause. Even in the succeeding stage of
preliminary investigation, which is already "out of the Truth Commission's sphere of functions," [39]
jurisprudence instructs that the right to equal protection of the laws "may not be perversely used to
justify desistance by the authorities from prosecution of a criminal case, just because not all of those
who are probably guilty thereof were charged." [40]
Verily, where there is claim of breach of the due process and equal protection clauses,
considering that they are not fixed rules but rather broad standards, there is a need for proof of such
persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of
validity must prevail. [41]
Finally, even assuming arguendo that all prior administrations should be included within the scope
of investigation of the Truth Commission, E.O. No 1 is saved by a separability clause, [42] considering
that the remaining portions can stand independently of the assailed portions and constitute a complete,
intelligible and valid law which carries out the intent of the law. [43] There is thus no basis for denying the
other provisions of their continued force and enjoining the operation of the Truth Commission.
I, therefore, submit that there exists a "reasonable foundation or rational basis" [44] for
defining the subject of the special fact-finding investigation by the Truth Commission.
For the foregoing reasons, I vote to DISMISS the petitions.
SERENO, J., dissenting:
Sir, I say that justice is truth in action.
Benjamin Disraeli, in a speech delivered before the British House of Commons, February 11, 1851
The majority Decision defeats the constitutional mandate on public accountability; it effectively
tolerates impunity for graft and corruption. Its invocation of the constitutional clause on equal protection
of the laws is an unwarranted misuse of the same and is a disservice to those classes of people for
whom the constitutional guarantee was created as a succor. The majority Decision accomplished this by
completely disregarding "reasonableness" and all its jurisprudential history as constitutional justification
for classification and by replacing the analytical test of reasonableness with mere recitations of general
case doctrines to arrive at its forced conclusion. By denying the right of the President to classify persons
in Executive Order No. (EO) 1 even if the classification is founded on reason, the Decision has
impermissibly infringed on the constitutional powers of the President. It wafts the smell of hope onto the
air towards those who seek the affirmance of EO 1 by saying: TCHcAE
. . . [T]his is not a death knell for a truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an affront to the
Constitution . . . [1]
but the scent of hope, as will be demonstrated, is that which emanates from a red herring. Since
Ferdinand Marcos's presidency, no Court has stifled the powers of the Philippine presidency as has this
Court through the majority Decision.
The Concurring Opinion of Justice Arturo Brion reveals one undercurrent beneath the majority's
logically indefensible conclusion that flows thusly: (1) the Filipino people cannot be trusted to recognize
truth from untruth; (2) because the people cannot make the distinction, there exists a large possibility
that the people would accept as truth the Philippine Truth Commission (PTC) version of the story on
reports of graft and corruption under the administration of President Gloria Macapagal-Arroyo even if it
turns out to be untruth; (3) this potential public belief in the untruth also enables the credulous public's
inordinate pressure on the Ombudsman and the courts to concur in the untruth; (4) because of the
possibility of this inordinate pressure being brought to bear, the probability that the Ombudsman and the
courts would give in to such pressure exists; (5) thus the formula emerges — the public clamor
supportive of the untruth plus the Ombudsman and the courts possibly giving way to this clamor equals
violation of the due process rights of former President Arroyo and her officials; in turn, this sum equals
striking down the Philippine Truth Commission for being unconstitutional.
The separate opinions of Chief Justice Renato Corona and Justices Teresita de Castro, Lucas
Bersamin, and Jose Perez hold an extreme view on EO 1, opposing well-established jurisprudence
which categorically pronounce that the investigatory powers of the Ombudsman may be concurrently
exercised with other legally authorized bodies. Chief Justice Corona and Justices de Castro, Diosdado
Peralta, and Bersamin even go further in saying that it would take congressional action, by means of
legislation, to create a truth commission with the same mandate as that in EO 1; and even if Congress
itself were to create such commission, it would still be struck down for violating the equal protection right
of former President Arroyo.
Justice Antonio Carpio opines that the effect of the majority Decision is the absolute prevention of
the investigation of the Arroyo administration. [2] I agree with his assessment, especially considering the
further views on the matter expressed separately by Chief Justice Corona and Justices de Castro, Brion,
Peralta, Bersamin, and Perez. In my view, the Decision and the separate concurring opinions manifest
the "backlash effect" wherein movements to achieve social justice and a more equitable distribution of
powers are met with opposition from the dominant group. When the people start demanding
accountability, in response to which truth commissions and other fact-finding bodies are established,
those from the previously ruling elite, who retain some hold on power, lash back at the effort by crying
"persecution," "violation of due process" and "violation of the equal protection guarantee." Some of the
petitioners, according to Justice Conchita Carpio Morales, are in essence acting for and in behalf of
former President Arroyo and her officials, otherwise they would not be invoking the "equal protection
clause," a defense that is inherently personal to President Arroyo and her officials. These petitioners are
wielding the backlash whip through the Petitions. In bending over backwards to accommodate the
Petitions, especially on equal protection claims which Petitioners could not properly raise, this Court is
wittingly or unwittingly compromising important constitutional principles and rendering the path to a
genuinely strong democratic Philippines more difficult. With all due respect, the Decision in effect
conveys the immoral lesson that what is all-important is to capture and retain political power at all costs
and misuse the legal infrastructure, including the Bill of Rights and the power of appointment, to create a
shield of immunity from prosecution of misdeeds. ITHADC
Findings and Dispositive Conclusion of the Majority

The dispositive conclusion of the majority Decision contradicts its own understanding of both the
Constitution and the legal implication of recent political events. It finds that: (1) the Filipino people
convinced in the sincerity and ability of Benigno Simeon Aquino III to carry out the noble objective of
stamping out graft and corruption, "catapulted the good senator to the Presidency"; [3] (2) to transform
his campaign slogan into reality, "President Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed during the administration of his predecessor";
[4] (3) the Philippine Truth Commission (PTC) is an ad hoc committee that flows from the President's
constitutional duty to ensure that the laws are faithfully executed, and thus it can conduct investigations
under the authority of the President to determine whether the laws were faithfully executed in the past
and to recommend measures for the future to ensure that the laws will be faithfully executed; [5] (4) the
[6]
PTC is constitutional as to its manner of creation and the scope of its powers; (5) that it is similar to
valid investigative bodies like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zeñarosa Commission. [7] Nevertheless, the majority Decision concluded that the
PTC should be struck down as unconstitutional for violating the equal protection clause for the reason
that the PTC's clear mandate is to "investigate and find out the truth concerning the reported cases of
graft and corruption during the previous administration only." [8]
There is a disjoint between the premises and the conclusion of the Decision caused by its discard
of the elementary rules of logic and legal precedents. It suffers from internal contradiction, engages in
semantic smoke-and-mirrors and blatantly disregards what must be done in evaluating equal protection
claims, i.e., a judge must ask whether there was indeed a classification; the purpose of the law or
executive action; whether that purpose achieves a legitimate state objective; the reason for the
classification; and the relationship between the means and the end. Within those layers of analysis, the
judge must compare the claimed reason for classification with cases of like or unlike reasoning. He
knows the real world, he looks at its limitations, he applies his common sense, and the judge knows in
his judicial heart whether the claimed reason makes sense or not. And because he is a practical man,
who believes as Justice Oliver Wendell Holmes did that the life of the law is in experience, he knows
false from genuine claims of unconstitutional discrimination. DEIHAa
With all due respect, it is bad enough that the Decision upsets the long line of precedents on
equal protection and displays self-contradiction. But the most unacceptable effect of the majority
Decision is that a court of unelected people — which recognizes that the President "need(s) to create a
special body to investigate reports of graft and corruption allegedly committed during the previous
administration" to "transform his campaign promise" "to stamp out graft and corruption" [9] — proposes
to supplant the will of the more than 15 million voters who voted for President Aquino and the more than
80% of Filipinos who now trust him, by imposing unreasonable restrictions on and impossible,
unknowable standards for presidential action. The Decision thereby prevents the fulfillment of the
political contract that exists between the Philippine President and the Filipino people. In so doing, the
Court has arrogated unto itself a power never imagined for it since the days of Marbury v. Madison [10]
when the doctrine of judicial review was first laid down by the U.S. Supreme Court. The majority does
not only violate the separation of powers doctrine by its gratuitous intrusion into the powers of the
President — which violation the Decision seeks to deny. Nay, the majority created a situation far worse
— the usurpation by the judiciary of the sovereign power of the people to determine the priorities of
Government.
The Majority Decision's Expansive Views of the Powers of the Presidency and the Mandate of the
Aquino Government
The majority Decision starts with an expansive view of the powers of the Philippine presidency
and what this presidency is supposed to accomplish for the Filipino people:
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft
and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people
convinced in his sincerity and in his ability to carry out this noble objective catapulted the good
senator to the Presidency. [11] SEDaAH
Here we have the majority affirming that there exists a political contract between the incumbent
President and the Filipino people — that he must stamp out graft and corruption. It must be remembered
that the presidency does not exist for its own sake; it is but the instrument of the will of the people, and
this relationship is embodied in a political contract between the President and the people. This political
contract creates many of the same kinds of legal and constitutional imperatives under the social contract
theory as organic charters do. It also undergirds the moral legitimacy of political administrations. This
political contract between President Aquino and the Filipino people is a potent force that must be viewed
with the same seriousness as the 1987 Constitution, whose authority is only maintained by the
continuing assent thereto of the same Filipino people.
Then the Decision proceeds to affirm the power of the President to conduct investigations as a
necessary offshoot of his express constitutional duty to ensure that the laws are faithfully executed. [12]
It then proceeds to explain that fact-finding powers must necessarily carry the power to create ad hoc
committees to undertake fact-finding. And because the PTC is only an ad hoc committee that is to be
funded from the approved budget of the Office of the President, the Executive Order that created it is not
a usurpation of any legislative power.
The Decision upholds in extensive affirmatory language what, since the creation of the Republic,
has been understood about the powers of the Presidency and the need for the effective exercise of the
investigatory powers of that office to serve state objectives. Unfortunately, it then breaks its own chain of
thought and shrinks the vista from its grand view of representative government to a view that is myopic
and logically infirm.
The Majority Decision's Turn-Around to Unconstitutionally Restrict the Powers of the Aquino
Presidency, its Unpredictable Standard for "Reasonable Prioritization," and the Resulting
Imposition of an Impossible Condition on Aquino's Campaign Promise, as Well as Its Internal
Contradiction
Having strongly expounded on the need of President Aquino to fulfill his political contract with the
Filipino people to address graft and corruption, and his constitutional duty to ensure that the laws are
faithfully executed, the Court suddenly finds itself impermissibly restricting this power when the object of
the exercise of the Presidential powers of investigation under EO 1 focused on the reported misdeeds of
the Arroyo administration. From full support of the incumbent President and his constitutional powers,
the majority Decision reverses its track to unconstitutionally restrict his powers by effectively denying
him the right to choose the priority — in this case the Arroyo administration — in his graft-busting
campaign.
The reasoning of the Decision proceeds thus: (a) all past administrations are a class and to
exclude other past administrations is on its face unlawful discrimination; (b) the reasons given by the
Solicitor General for the limited scope of the intended investigation — administrative overburden if other
past administrations are included, difficulty in unearthing evidence on old administrations, duplication of
investigations already made — are either specious, irrelevant to the legitimate and noble objective of the
PTC to stamp out corruption, or beside the point and thus do not justify the discrimination; (c) to be
constitutional, the PTC must, "at least, have authority to investigate all past administrations" [13] and
"must not exclude the other past administrations"; [14] (d) "[p]erhaps a revision of the executive issuance
so as to include the earlier past administrations would allow it to pass the test of reasonableness and
not be an affront to the Constitution"; [15] and (e) "reasonable prioritization is permitted," but "it should
not be arbitrary lest it be struck down as unconstitutional." [16]
The Decision is telling the President to proceed with his program of anti-corruption on the
condition that, when constituting a fact-finding commission, he must include "all past administrations"
without exception, save he cannot be expected to investigate dead presidents [17] or those whose
crimes have prescribed. He may prioritize, but he must make sure such prioritization is not arbitrary.
In talking about an acceptable formulation for a fact-finding commission, it is as if the Decision is
talking past EO 1. The President has already made his fact-finding prioritization in EO 1, and his
prioritization is not arbitrary. The government has already explained why investigation of the Arroyo
administration is its priority — (a) the audit of an immediate past administration is usually where audits
begin; (b) the evidence of graft and corruption is more likely to still be intact; (c) the most immediate
deleterious effects of the reported graft and corruption of the immediate past administration will need to
be faced by the present administration; (d) the resources required for investigation of the immediate past
administration alone will take up all the resources of the PTC; and (e) other past administrations have
already been investigated and one past president has already been jailed. But this Court is saying that
all the above are not indicators of rational prioritization. Then, what is? This Court seems to have set an
inordinately high standard for reasonableness that is impossible to satisfy, primarily because it is
unknowable and unpredictable. The only conclusion is that there is no other standard out there
acceptable to the majority, and there never will be. [18] Even the majority Decision gives no clue, and
perhaps the majority has no clue on what those reasonable standards are. As Justice Florentino
Feliciano said in his concurrence in Tañada v. Tuvera: [19] SHADEC
. . . The enforcement of prescriptions which are both unknown to and unknowable by those
subjected to the statute, has been throughout history a common tool of tyrannical governments. Such
application and enforcement constitutes at bottom a negation of the fundamental principle of legality
in the relations between a government and its people.
This is the red herring — for the majority Decision to speak as if there were a way to "tweak" EO 1
so that it becomes acceptable to the majority when in reality there is no way that can be done without
loss of dignity to the incumbent presidency. The tweaked EO, according to the Decision, must include all
past administrations in its coverage, and can identify its priority; but a reading of the Decision already
indicates that the moment the prioritization hints at focusing on the Arroyo administration, then the
majority is ready to once again strike it down. Such proposition is to require the Aquino administration to
engage in hypocrisy — to fact-find on "the elephant in the room" without talking about that elephant in
particular because the majority finds that to talk about that particular elephant without talking about all
other elephants is to deprive that particular elephant of its equal protection right. This Court has imposed
an unbearable and undignified yoke on the presidency. It is to require the Aquino Presidency to pretend
that addressing the reported graft and corruption of the Arroyo administration was never a major
campaign promise of this Presidency to the people.
It is incumbent upon any administration to conduct an internal audit of its organization — in this
case, the executive department. This is standard practice in the private sector; it should likewise be
standard practice for the public sector if the mandate of public accountability is to be fulfilled. No
President should be prevented from creating administrative structures to exact accountability; from
conducting internal audits and creating controls for executive operations; and from introducing
governance reforms. For the Court to do so would be to counter progress and to deny the executive
department the use of best practices that are par for the course in modern democracies.
The Decision contradicts itself by concluding that the graft and corruption fact-finding mandate of
the PTC is confined only to those incidents in the Arroyo administration. In the same breath, it
acknowledges that the express language of EO 1 indicates that the President can expand the focus of
the PTC at any time by including other past misdeeds of other administrations. In other words, the clear
and unmistakable language of EO 1 precludes any conclusion that the PTC's investigation of graft and
corruption is confined only to the administration of President Arroyo. EO 1 should be read as
empowering the PTC to conduct its fact-finding on the Arroyo administration, and that this fact-finding
may expand to include other past administrations on the instruction of President Aquino. DTAHSI
The use of the word "only" in the majority Decision [20] is unwarranted, as it indicates exclusivity of
the PTC's focus on the Arroyo administration — an exclusivity that is incompatible with the unequivocally
non-exclusive language of Sec. 17 of EO 1. [21] The litmus test that should have been applied by this
Court is whether or not EO 1 is unconstitutional for prioritizing fact-finding on the reported graft and
corruption of the Arroyo administration without foreclosing, but not guaranteeing, future investigation into
other administrations.
Unwarranted Creation of "Class of All Political Administrations" as the Object of Constitutional
Review by This Court
At the outset, it must be emphasized that EO 1 did not, for purposes of application of the laws on
graft and corruption, create two classes — that of President Arroyo and that of other past
administrations. Rather, it prioritized fact-finding on the administration of President Arroyo while saying
that the President could later expand the coverage of EO 1 to bring other past administrations under the
same scrutiny. Prioritization per se is not classification. Else, as all human activities require prioritization,
everyone in a priority list for regulation or investigation can make out a case that there is prima facie
classification, and that the prioritization is not supported by a reasonable objective. All acts of
government would have to come to a halt and all public offices would need to justify every plan of action
as to reasonableness of phases and prioritization. The step-by-step approach of legislative and
regulatory remedies — recognized as valid in Quinto v. COMELEC [22] and in the case law [23] cited by
the Decision — in essence says that prioritization is not classification, much less invalid classification.
The majority looks at the issue of equal protection by lumping into a single class all past
administrations, [24] i.e., those of former Presidents Aguinaldo, Quezon, Osmeña, Laurel, Roxas,
Quirino, Magsaysay, Garcia, Macapagal, Marcos, Aquino, Ramos, Estrada and Arroyo. Justice Carpio
makes the case that recovery of ill-gotten wealth is imprescriptible. Then conceivably under the
formulation of the majority, all past administrations are required to be investigated. In fact, even with the
exceptions introduced by the Decision, its conclusory parts emphasize the need to include all past
administrations in the coverage of EO 1. It then pronounces that any difference in treatment between
members of this class is unequal protection, such that to treat the Arroyo administration differently from
the administration of President Aguinaldo is unconstitutional. After all, says the majority Decision,
corruption was reported in other past administrations as well. SEIacA
The lumping together of all Philippine political administrations spanning 111 years, for purposes of
testing valid legislation, regulation, or even fact-finding is unwarranted. There is inherent illogic in the
premise of the Decision that administrations from the time of Aguinaldo to Arroyo belong to one class.
[25]
Assuming arguendo that all the political administrations can be categorized as one class, the test
of reasonableness has been more than met by EO 1, as extensively discussed by Justices Carpio,
Carpio Morales, Antonio Eduardo Nachura, and Roberto Abad. Let me just add to their voices by looking
at the constitutional problem before this Court from other angles.
The Majority Decision Indirectly Admits that the "Reasonableness Test" Has Been Satisfied in
the Same Breath that it Requires the Public to Live with an Unreal World View
To quote from the majority Decision's discussion of the claim of violation of the equal protection
clause:
Although the purpose of the Truth Commission falls within the investigative powers of
the President . . .
xxx xxx xxx
. . . It must not leave out or "underinclude" those that should otherwise fall into a certain
classification.
xxx xxx xxx
As elucidated in Victoriano v. Elizalde Rope Workers' Union and reiterated in a long line of
cases,
The guaranty of equal protection of the laws is not 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 the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by statute. Equality of operation of statutes does not mean
indiscriminate operation on circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in other departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of classification is that of
inequality. All that is required of a valid classification is that it be reasonable, which means that
classification should be based on substantial distinctions which make for real differences, that
it must be germane to the purpose of the law; that it must apply equally to each member of the
class. The Court has held that the standard is satisfied if the classification is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
Applying these precepts to this case, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of the envisioned truth commission is to
investigate and find out the truth "concerning the reported cases of graft and corruption during the
previous administration" only. The intent to single out the previous administration is plain, patent and
manifest . . .
Though the OSG enumerates several differences between the Arroyo administration and other
past administrations, these distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only.
. . . The OSG ventures to opine that "to include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose its effectiveness." The reason given is
specious. It is without doubt irrelevant to a legitimate and noble objective of the PTC to stamp out or
"end corruption and the evil it breeds."
The probability that there would be difficulty in unearthing evidence or that the earlier
reports involving the earlier administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already prescribed can no longer be the
subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations
of previous administrations, given the body's limited time and resources. "The Law does not require
the impossible" (Lex non cognit ad impossibilia).
Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a century's worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administration. The PTC must, at least, have
the authority to investigate all past administrations. While reasonable prioritization is permitted, it
should not be arbitrary lest it be struck down for being unconstitutional. . . .
It could be argued that considering that the PTC is an ad hoc body, its scope is limited.
The Court, however, is of the considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the law should not in any way be
circumvented. The Constitution is the fundamental and paramount law of the nation to which all
other laws must conform and in accordance with which all private rights determined and all public
authority administered. Laws that do not conform to the Constitution should be stricken down for
being unconstitutional. While the thrust of the PTC is specific, that is, for investigation of acts of graft
and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of "substantial distinctions" only an
"adventure in partisan hostility." . . .
To reiterate, in order for a classification to meet the requirements of constitutionality, it must

include or embrace all persons who naturally belong to the class. "Such a classification must not be
based on existing circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such nature as to embrace all those who may thereafter be in
similar circumstances and conditions. Furthermore, all who are in situations and circumstances which
are relative to the discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and treated by it in the same
way as members of the class."
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law
under the equal protection clause" . . . In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the "step by step" process.
"With regard to equal protection claims, a legislature does not run the risk of losing the entire
remedial scheme simply because it fails, through inadvertence or otherwise, to cover every
evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That the previous administration
was picked out was deliberate and intentional as can be gleaned from the fact that it was
underscored at least three times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal protection clause is violated by purposeful
and intentional discrimination."
. . . Although Section 17 allows the President the discretion to expand the scope of the
investigations of the Truth Commission so as to include the acts of graft and corruption, it does not
guarantee that they would be covered in the future. Such expanded mandate of the commission will
still depend on the whim and caprice of the President. If he would decide not to include them, the
section would then be meaningless. This will only fortify the fears of the petitioners that the Executive
Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the Arroyo
administration." [26] (Emphasis and underscoring supplied)
In an earlier portion, I discussed the findings of the majority Decision regarding the mandate of
President Aquino from the electorate and the vast expanse of his powers to investigate and ensure the
faithful execution of the laws. The majority concedes the reasonableness of the purpose of EO 1, but, as
shown in the above excerpts, it contests the manner by which President Aquino proposes to achieve his
purpose. The very discussion above, however, demonstrates the self-contradiction and unreality of the
majority Decision's worldview.
First, the Decision concedes that classification per se is not forbidden in the process of legislation
or regulation. Indeed, cases identified by the Decision, when examined, pronounce that the legislature
and the regulators must necessarily pick and choose in the process of their work.
Second, in legislation or regulation, a step-by-step process resulting in a classification of those
that are immediately included therein versus those that have yet to be included in the future is
constitutional.
Third, the Decision also concedes that the under-inclusiveness of remedial measures is not
unconstitutional, especially when the purpose can be attained through inclusive future legislation or
regulation. I note of course, that the Decision states in an earlier part that "under-inclusiveness" makes
for invalid classification. It is important to note the observation of Justice Carpio that the creation of the
Presidential Commission on Good Government (PCGG) has consistently been upheld by the Court
despite constitutional challenges on equal protection grounds. The PCGG's charter has the same "future
inclusion" clause as Section 17 of EO 1; yet, the majority Decision ignores jurisprudence on the PCGG.
Fourth, the Decision, through a quoted case, [27] observes that valid under-inclusiveness can be
the result of either inadvertence or deliberateness.
Regardless of the foregoing findings and discussions, which in effect support its validity, EO 1 is
struck down by the Decision. The majority creates an argument for the invalidity of EO 1 by quoting only
from general principles of case law and ignoring specific applications of the constitutional tests for valid
classification. Instead of drawing from real-world experiences of classification decided in the past by the
Court, the Decision relies on general doctrinal statements normally found in cases, but divorces these
doctrinal statements from their specific contextual setting and thereby imposes unrealistic standards for
presidential action.
The law has always been that a class can be validly distinguished from others if there is a
reasonable basis for the distinction. The reasonableness of the classification in EO 1 was amply
demonstrated by the Solicitor General, but the majority simply responds dismissively that the distinctions
are superficial, specious and irrelevant, without clearly explaining why they are so. Contrary to the
conclusion of the majority, jurisprudence bear out the substantial and reasonable nature of the
distinction.
With respect to the first reason for the classification claimed by the Solicitor General — that other
past administrations have already been investigated and, hence, there is constitutional basis not to
include them in the immediate focus of the investigation — the case of Luna v. Sarmiento [28] supports
the conclusion that the distinction is constitutional.
Commonwealth Act No. (CA) 703, which was sustained by Luna v. Sarmiento, created two sets of
situations — one in which persons were delinquent in their tax payments for half of the year 1941 and
the entirety of the years 1942-45 (during the Japanese occupation), and another in which persons had
paid their taxes for the said periods. Only the first set of persons was benefited by the tax amnesty
provision of CA 703. The law was silent on the treatment of the tax payments made by compliant
taxpayers during that period. A claim of unequal protection was raised. The Court said:
Does this provision cover taxes paid before its enactment, as the plaintiff maintains and the
court below held, or does it refer, as the City Treasurer believes, only to taxes which were still
unpaid?
There is no ambiguity in the language of the law. It says "taxes and penalties due and
payable," the literal meaning of which is taxes owed or owing. (See Webster's New International
Dictionary.) Note that the provision speaks of penalties, and note that penalties accrue only when
taxes are not paid on time. The word "remit" underlined by the appellant does not help its theory, for
to remit is to desist or refrain from exacting, inflicting, or enforcing something as well as to restore
what has already been taken. (Webster's New International Dictionary)
We do not see that literal interpretation of Commonwealth Act No. 703 runs counter and does
violence to its spirit and intention, nor do we think that such interpretation would be
"constitutionally bad" in that "it would unduly discriminate against taxpayers who had paid in
favor of delinquent taxpayers." The remission of taxes due and payable to the exclusion of taxes
already collected does not constitute unfair discrimination. Each set of taxes is a class by itself, and
the law would be open to attack as class legislation only if all taxpayers belonging to one class were
not treated alike. They are not. [29]
In other words, within the class of taxpayers obligated to pay taxes in the period from the second
half of 1941 to the end of 1945 are two subclasses — those who did not pay their taxes and those who
did. By the same kind of reasoning, within the class of political administrations, if past administrations
have already been the subject of a fact-finding commission, while one particular administration has not
been so, that alone is a good basis for making a distinction between them and an administration that
has not yet been investigated. There is a constitutionally valid basis, therefore, to distinguish between
the Marcos, Ramos, and Estrada administrations — which have already been the subject of fact-finding
commissions — and the Arroyo administration.
With respect to the second reason for the classification — that it would be unduly oppressive and
burdensome to require the PTC to investigate all administrations — case law holds that administrative
constraints are a valid basis for classification.
In British American Tobacco v. Camacho, [30] the Court declared the legislative classification
freeze on the four-tiered system of cigarette taxes as a valid and reasonable classification arising from
practicality and expediency. [31] Thus, freezing the tax classification of cigarettes based on their 1996
or 2003 net retail prices was found to be the most efficient way to respond to Congress' legitimate
concern with simplifying tax collections from cigarette products. In a similar vein, the President believed
that the most efficient and effective way of jump-starting his administration's fight against corruption was
to focus on one freezable time frame — the latest past administration. The legitimate and valid
administrative concern is obviously the limited resources and time available to the PTC to make a
comprehensive yet valuable fact-finding report with recommendations to address the problem of graft
and corruption in a timely and responsive manner within a period of two years. Hence, there can be no
violation of equal protection based on the fact that the PTC's investigation is limited to the investigation
of what can be feasibly investigated, a classification based on the Executive's practical administrative
constraints.
With respect to the third reason for the classification made by EO 1, one that lumps together the
various temporal reasons, the Solicitor General describes it thus:
. . . The segregation of the preceding administration as the object of fact-finding is warranted

by the reality that unlike with administration long gone, the current administration will most likely bear
the immediate consequence of the policies of the previous administration.
. . . The classification of the previous administration as a separate class for investigation lies in
the reality that the evidence of possible criminal activity, the evidence that could lead to recovery of
public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws
are faithfully executed, are more easily established in the regime that immediately precede the
current administration.
The temporal dimension of every legal argument is supremely important, imposed by the
inevitable fact that this world and its inhabitants are creatures of space and time. Every public official,
therefore, must accomplish his duties within the constraints of space and time. To ignore the limitation of
time by assuming that a public official has all the time in the world to accomplish an investigative goal,
and to force the subject of the universe of his scrutiny to comprise all past administrations, is the height
of legal unreasonableness. In other words, according to the majority Decision, within the limited term of
President Aquino, and within the more severely limited life span of an ad hoc fact-finding committee,
President Aquino must launch his pursuit to eradicate graft and corruption by fact-finding into all past
administrations spanning multitudes of decades. Truth commissions, of which the PTC according to
Chief Justice Corona is one, are all highly limited in investigations, statement taking, and transcribing
information. [32] In order to be swift and independent, truth commissions operate within strict time
[33]
constraints. They are also restricted in the subject matter they can review. This is the real world of
truth commissions, not that imagined by the majority.
The Majority Decision Grievously Omitted the Analytical Process Required of this Court in Equal
Protection Claims
A judicial analysis must not stop at reciting legal doctrines which are its mere beginning points,
but, especially in equal protection claims, it must move forward to examine the facts and the context of
the controversy. Had the majority taken pains to examine its own cited cases, it would have discovered
that the cases, far from condemning EO 1, would actually support the constitutionality of the latter.
The majority Decision and the separate opinion of Chief Justice Corona rely greatly on Victoriano
v. Elizalde Rope Workers Union [34] for their main doctrinal authority. The Court in that case held that the
questioned classification was constitutional, and it went through a step-by-step analysis to arrive at this
conclusion. To clarify the kind of analytical process that must go into an examination of the equal
protection claim, let us quote from the case in extenso:
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious
sects which ban their members from joining labor unions, in violation of Article III, Section 1(7) of the
1935 Constitution; and while said Act unduly protects certain religious sects, it leaves no rights or
protection to labor organizations.
. . . that said Act does not violate the constitutional provision of equal protection, for the
classification of workers under the Act depending on their religious tenets is based on substantial
distinction, is germane to the purpose of the law, and applies to all the members of a given class . . .
. . . All presumptions are indulged in favor of constitutionality; one who attacks a

statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt, that
a law may work hardship does not render it unconstitutional; that if any reasonable basis may
be conceived which supports the statute, it will be upheld, and the challenger must negate all
possible bases; that the courts are not concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted.
. . . In Aglipay v. Ruiz, this Court had occasion to state that the government should not be
precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect . . .
The primary effects of the exemption from closed shop agreements in favor of members of
religious sects that prohibit their members from affiliating with a labor organization, is the protection
of said employees against the aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain
extent economic insecurity due to unemployment, which is a serious menace to the health, morals,
and welfare of the people of the State, the Act also promotes the well-being of society. It is our
view that the exemption from the effects of closed shop agreement does not directly advance,
or diminish, the interests of any particular religion. Although the exemption may benefit those
who are members of religious sects that prohibit their members from joining labor unions, the
benefit upon the religious sects is merely incidental and indirect. The "establishment clause" (of
religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or
harmonize with the tents of some or all religions. The free exercise clause of the Constitution has
been interpreted to require that religious exercise be preferentially aided.
The guaranty of equal protection of the laws is not 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 the constitutional prohibition against inequality, that every man, woman and
child should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that
things which are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory within which it is
to operate.
required of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences; that it must be
germane to the purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. Neither is it necessary that the classification be made with mathematical nicety. Hence
legislative classification may in many cases properly rest on narrow distinctions, for the
equal protection guaranty does not preclude the legislature from recognizing degrees of evil
or harm, and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act
classifies employees and workers, as to the effect and coverage of union shop security
agreements, into those who by reason of their religious beliefs and convictions cannot sign
up with a labor union, and those whose religion does not prohibit membership in labor
unions. The classification rests on real or substantial, not merely imaginary or whimsical,
distinctions . . .
. . . The classification, introduced by Republic Act No. 3350, therefore, rests on substantial
distinctions. cEAIHa
The classification introduced by said Act is also germane to its purpose. The purpose
of the law is precisely to avoid those who cannot, because of their religious belief, join labor
unions, from being deprived of their right to work and from being dismissed from their work
because of union shop security agreements.
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing
at the time of its enactment. The law does not provide that it is to be effective for a certain
period of time only. It is intended to apply for all times as long as the conditions to which the law is
applicable exist. As long as there are closed shop agreements between an employer and a labor
union, and there are employees who are prohibited by their religion from affiliating with labor unions,
their exemption from the coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is evident
from its provision. The fact that the law grants a privilege to members of said religious sects
cannot by itself render the Act unconstitutional, for as We have adverted to, the Act only
restores to them their freedom of association which closed shop agreements have taken
away, and puts them in the same plane as the other workers who are not prohibited by their
religion from joining labor unions. The circumstance, that the other employees, because they
are differently situated, are not granted the same privilege, does not render the law
unconstitutional, for every classification allowed by the Constitution by its nature involves
inequality.
The mere fact that the legislative classification may result in actual inequality is not
violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered
invalid. A classification otherwise reasonable does not offend the constitution simply
because in practice it results in some inequality. Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object is for the benefit of the public
and the means by which the benefit is to be obtained are of public character, the law will be
upheld even though incidental advantage may occur to individuals beyond those enjoyed by
the general public. [35]
The above analysis is the kind of processed reasoning to which EO 1 should be subjected. The
majority Decision falls short of satisfying this process.
On the first test. Is the classification reasonable, based on substantial distinctions that make for
real difference? The government has already given several reasons why the distinction between the
administration of President Arroyo is different from other past administrations. The distinction does not
lie in any claim that corruption is the sole hallmark of the Arroyo administration — far from it. The
distinction lies in reason — administrative constraints, availability of evidence, immediate past acts, non-
prescription of causes of actions — all of which are not whimsical, contrived, superficial or irrelevant. It
must also be emphasized that the Court, as quoted above, recognizes that in many cases, the
classification lies in narrow distinctions. We have already discussed how in Luna v. Sarmiento the
Court recognized subclasses within a class and upheld the narrow distinction made by Congress
between these subclasses. So if past administrations have already been the subject of a fact-finding
commission, while one particular administration has not been so subjected, that alone is a good basis
for making a distinction between them and an administration that has not yet been investigated. It must
be emphasized that the Victoriano case, which the majority heavily relied on, reiterated that as long as
there is a public benefit to be obtained in a government action, incidental advantage (and conversely,
disadvantage) to a group is not sufficient to upset the presumption of constitutionality of a government
action. DSEaHT
On the second test. The classification is germane to the purpose of the law — to get a headstart
on the campaign against graft and corruption. If the investigation into the root of corruption is to gain
traction, it must start somewhere, and the best place to start is to examine the immediate past
administration, not distant past administrations.
On the third test. Of course this is not relevant in this case, for the law being examined in
Victoriano was one that granted prospective rights, and not one that involves fact-finding into past acts
as with EO 1.
On the last test. This asks whether the law applies equally to all members of the segregated
class. It must be emphasized that in the Victoriano case, this last test was applied not to all the workers
in the bargaining unit, but it was applied to the subclass of workers whose religions prohibit them from
joining labor unions. In application to this case, the question should then have been, not whether there is
equality of treatment between all political administrations under EO 1, but whether within the subclass of
third level public officials of the Arroyo administration — that is, the subject of EO 1 — there is unequal
treatment. Obviously, the answer is no. The majority applied the last test backwards by asking whether
there is equality of treatment among all political administrations and concluding that there was no
equality of treatment, even before it could answer the first test of whether the classification between the
Arroyo administration and other past administrations was reasonable.
It must be emphasized that the Victoriano case on which the majority heavily relies states in
several parts that classification must necessarily result in inequality of treatment and that such inequality
does not give rise to a constitutional problem. It is the lack of reason that gives rise to a constitutional
issue, not the inequality per se. To quote again:
The mere fact that the legislative classification may result in actual inequality is not violative of
the right to equal protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered invalid. A classification
otherwise reasonable does not offend the constitution simply because in practice it results in some
inequality. Anent this matter, it has been said that whenever it is apparent from the scope of the law
that its object is for the benefit of the public and the means by which the benefit is to be obtained are
of public character, the law will be upheld even though incidental advantage may occur to individuals
beyond those enjoyed by the general public. [36]
Selective Investigation, Enforcement and Prosecution

Fact-finding or investigation can only begin by identifying the phenomenon, event or matter that is
to be investigated. Then it can only proceed if the fact-finder, or the authority under whom he works,
identifies or selects the persons to be investigated.
The validity of the Feliciano Commission created by Administrative Order No. (AO) 78 of former
President Arroyo is affirmed by the majority Decision. AO 78 zeroed in on the investigation of "the
rebellion of misguided military officers last July (2003)," in order "to investigate the roots of the rebellion
and the provocations that inspired it," and concludes that "this rebellion is deplorable." AO 78 labeled the
officers involved in the July 2003 Oakwood rebellion as "misguided" and cast their actions as "rebellion"
and "deplorable." President Arroyo selected a class — the officers involved in the July 2003 "rebellion"
— in contradistinction to all other all military officers who had ever rebelled against the Republic since its
founding. The acts were stigmatized as acts of "rebellion," a crime punishable by law. The majority does
not condemn this classification made in AO 78 by President Arroyo which uses condemnatory language
on the class of people targeted. In contrast, the language of EO 1 of President Aquino is mild, willing to
grant the administration of President Arroyo the benefit of the doubt by using adjectives to denote the
tentativeness of the observations on corruption such as "alleged" and "reported" instead of treating
them as actuality. AO 78 is affirmed while EO 1 is struck down; no explanation for the differing treatment
is made by the majority Decision. This difference in treatment is disturbing considering the long history
of the treatment by courts of the defense of selective investigation and prosecution.
In fulfilling its duty to execute the laws and bring violators thereof to justice, the Executive is
presumed to undertake criminal prosecution "in good faith and in a nondiscriminatory fashion." [37]
The government has broad discretion over decisions to initiate criminal prosecutions [38] and
whom to prosecute. [39] Indeed, the fact that the general evil will only be partially corrected may serve to
[40]
justify the limited application of criminal law without violating the equal protection clause. Mere laxity
in the enforcement of laws by public officials is not a denial of equal protection. [41] SEIaHT
Although such discretion is broad, it is not without limit. [42] In order to constitute denial of equal
protection, selective enforcement must be deliberately based on unjustifiable or arbitrary classification;
the mere failure to prosecute all offenders is no ground for the claim of a denial of equal protection. [43]
To support a claim of selective prosecution, a defendant must establish a violation of equal protection
and show that the prosecution (1) had a discriminatory effect and (2) was motivated by a
[44]
discriminatory purpose. First, he must show that "he has been singled out for prosecution while
other similarly situated generally have not been proceeded against for the type of conduct forming the
basis of the charge against him." [45] Second, he must prove that his selection for prosecution was
invidious or in bad faith and was "based on impermissible considerations such as race, religion, or
the desire to prevent the exercise of constitutional rights." [46] In American constitutional history, it
is the traditionally oppressed — racial or religious minorities and the politically disenfranchised — who
have succeeded in making a case of unequal protection when their prejudiced status is shown to be the
principal invidious or bad faith consideration for the selective prosecution.
The standard for demonstrating selective prosecution therefore is demanding: a "presumption of
regularity supports prosecutorial decisions and in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official functions." [47]
In People v. Dela Piedra, [48] the Philippine Supreme Court, adhering to the precedents set in
American jurisprudence, likewise denied the equal protection argument of an illegal recruiter, who
claimed that others who had likewise performed acts of recruitment remained scot-free:
The prosecution of one guilty person while others equally guilty are not prosecuted,
however, is not, by itself, a denial of the equal protection of the laws. Where the official action
purports to be in conformity to the statutory classification, an erroneous or mistaken performance of
the statutory duty, although a violation of the statute, is not without more a denial of the equal
protection of the laws. The unlawful administration by officers of a statute fair on its face,
resulting in its unequal application to those who are entitled to be treated alike, is not a denial
of equal protection unless there is shown to be present in it an element of intentional or
purposeful discrimination. This may appear on the face of the action taken with respect to a
particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory
design over another not to be inferred from the action itself. But a discriminatory purpose is not
presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed to
show that, in charging appellant in court, that there was a "clear and intentional discrimination" on the
part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's sound assessment whether
the evidence before it can justify a reasonable belief that a person has committed an offense. The
presumption is that the prosecuting officers regularly performed their duties, and this
presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed,
appellant has not presented any evidence to overcome this presumption. The mere allegation that
appellant, a Cebuana, was charged with the commission of a crime, while a Zamboangueña, the
guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution
officers denied appellant equal protection of the laws. (Emphasis supplied)
In the instant case, the fact that other administrations are not the subject of the PTC's
investigative aim is not a case of selective prosecution that violates equal protection. The Executive is
given broad discretion to initiate criminal prosecution and enjoys clear presumption of regularity and
good faith in the performance thereof. For petitioners to overcome that presumption, they must carry the
burden of showing that the PTC is a preliminary step to selective prosecution, and that it is laden with a
discriminatory effect and a discriminatory purpose. However, petitioner has sorely failed in discharging
that burden.
The presumption of good faith must be observed, especially when the action taken is pursuant to
a constitutionally enshrined state policy such as the taking of positive and effective measures against
graft and corruption. [49] For this purpose, the President created the PTC. If a law neither burdens a
fundamental right nor targets a suspect class, the Court must uphold the classification, as long as it
bears a rational relationship to some legitimate government end. [50]
The same presumption of good faith and latitude in the selection of what a truth commission must
fact-find must be given to the President. Too wide a mandate would no doubt drown the commission in a
sea of history, in the process potentially impeding the more forward-looking aspects of its work. [51] To
require the PTC to look into all acts of large-scale corruption in all prior administrations would be to
make truth-telling overly comprehensive, resulting in a superficial fact-finding investigation of a multitude
of allegations without depth and insightful analysis. The Philippines' past experience with ad hoc
investigating commissions has been characterized by a focus on the truth regarding a key period or
event in our collective history and by a reasonable time frame for achieving their purpose, i.e., the
assassination of Ninoy Aquino, [52] the 1989 coup d'état, [53] the 2003 Oakwood mutiny, [54] the extra-
judicial killings of media and activists, [55] and private armed groups. [56] EScaIT
Here, petitioners who are not even the injured parties are invoking the equal protection clause.
Their standing to raise this issue is seriously contested in the Dissent of Justice Carpio Morales. They
do not claim in any manner that they are the subject of EO 1. Courts have warned that the right of equal
protection of the law "may not be perversely invoked" to justify desistance by the authorities from the
prosecution of a criminal case, just because not all of those who are probably guilty thereof were
charged. [57] This characterization would apply especially if the ones who invoke the equal protection
clause are those who are not injured by the contested executive action.
EO 1 activities are at most initiatory investigations. There is no preliminary investigation — much
less prosecution — to be conducted under the auspices of EO 1. The PTC is tasked to "collect, receive,
review and evaluate evidence related to or regarding the cases of large scale corruption," [58] tasks that
constitutes nothing more than a general inquiry into such reported cases in the previous administration.
Similar to an initiatory police investigation, the PTC is tasked with general fact-finding to uncover the
truth of the events pertaining to an alleged unsolved crime. To strike down the PTC's mandate to
investigate the previous administration simply because other administrations are not immediately
included is tantamount to saying that a police investigation of a recent murder case is violative of equal
protection because there are other prior yet equally heinous murders that remain uninvestigated and
unsolved by the police.
What renders the plaint regarding an alleged violation of the equal protection clause ridiculous is
that it is being raised at the inception stage for the determination of possible criminal liability, where
threat to liberty is most absent. In contrast, with respect to petitions to stop later and more freedom-
threatening stages in the determination of criminal liability such as in formal criminal investigations and
prosecutions, Philippine courts instinctively reject the defense of a suspect or accused that the
investigation is illegitimate because others who may have also violated the relevant rule, are not being
investigated. [59] In Gallardo v. People, [60] the Supreme Court held that there was no violation of the
equal protection clause when the Ombudsman recommended the filing of an information against a
public officer, even if it had previously dismissed sixteen (16) other cases of similar factual
circumstances:
The contention that petitioners' right to equal protection of the law has been transgressed is
equally untenable. The equal protection clause requires that the law operates uniformly on all
persons under similar circumstances or that all persons are treated in the same manner, the
conditions not being different, both in privileges conferred and the liabilities imposed. It allows
reasonable classification. If the classification is characterized by real and substantial differences, one
class may be treated differently from another. Simply because the respondent Ombudsman
dismissed some cases allegedly similar to the case at bar is not sufficient to impute
arbitrariness or caprice on his part, absent a clear showing that he gravely abused his
discretion in pursuing the instant case. The Ombudsman dismissed those cases because he
believed there were no sufficient grounds for the accused therein to undergo trial. On the
other hand, he recommended the filing of appropriate information against petitioners because
there are ample grounds to hold them for trial. He was only exercising his power and discharging
his duty based upon the constitutional mandate of his office. Stated otherwise, the circumstances
obtaining in the numerous cases previously dismissed by the Ombudsman are entirely divergent
from those here existing. (Emphasis supplied)
Even on the assumption that the recommendation of the PTC is that acts of graft and corruption
were indeed committed by the Arroyo administration, there is still a long way to go before the
recommendation would ripen to criminal prosecution, much less conviction. The Ombudsman must
accept the referral and conduct its own preliminary investigation. It must find probable cause, then file
the appropriate information. The Court must then preside over a criminal trial at which the findings of the
PTC have no conclusive effect on the Court's ultimate judgment, in the same way they treated the
findings of the Davide Commission in Kapunan v. Court of Appeals: [61]
We do not wish to denigrate from the wisdom of the Davide Commission. However, its
findings cannot be deemed as conclusive and binding on this Court, or any court for that
matter. Nothing in R.A. No. 6832 mandates that the findings of fact or evaluations of the
Davide Commission acquire binding effect or otherwise countermand the determinative
functions of the judiciary. The proper role of the findings of fact of the Davide Commission in
relation to the judicial system is highlighted by Section 1 (c) of R.A. No. 6832, which requires the
Commission to '[t]urn over to the appropriate prosecutorial authorities all evidence involving any
person when in the course of its investigation, the Commission finds that there is reasonable ground
to believe that he appears to be liable for any criminal offense in connection with said coup d'état.' aAEIHC
Whatever factual findings or evidence unearthed by the Davide Commission that could
form the basis for prosecutorial action still need be evaluated by the appropriate
prosecutorial authorities to serve as the nucleus of either a criminal complaint or exculpation
therefrom. If a criminal complaint is indeed filed, the same findings or evidence are still subject to
the normal review and evaluation processes undertaken by the judge, to be assessed in accordance
with our procedural law. (Emphasis and underscoring supplied)
Who Fears the Truth?

Truth commissions operate on the premise that the truth — if faced squarely, documented
thoroughly, and acknowledged officially — will reduce the likelihood that a repetition of government
abuses will recur in the future. [62] Official acknowledgment of the truth is extremely powerful in the
healing process, especially in an atmosphere previously dominated by official denial. [63] Aside from
their cathartic value, truth commissions like the PTC can be useful in uncovering the causes and
patterns that led to such corruption, if it indeed existed, so that it may be prevented in the future. The
absence of any form of accountability for public officials' past misconduct of a grave nature and massive
scale will promote a culture of impunity. If the present administration does not demonstrate that it can
hold accountable persons who committed acts of corruption, such inability may be interpreted as a
"license to engage in further acts of corruption" [64] and embolden public officials to steal from the
government coffers more often and in greater quantity.
The Concurring Opinion of my esteemed colleague Justice Brion speaks to the fear that the PTC
would be a mind-conditioning commission such that if the Ombudsman, the Sandiganbayan or the
Supreme Court itself were to reject the PTC's findings, they would incur the ire of the people. The
potential imminence of public wrath would thus serve as a deterrent to rejection (and an incentive to
acceptance) of the findings of the PTC. He regards the release of the conclusions of the PTC as a
"priming" mechanism upon the public, the Ombudsman and the Court to concur with the PTC's way of
thinking. He objects to the PTC's appropriation of the word "truth" and assumes that all conclusions
contrary to the PTC's would be more likely labeled as "untruth." According to the Concurring Opinion,
because President Aquino is highly trusted by Filipinos, then repeated "truth" from him or his
government would be believed, wholesale and with finality, by a credulous people. This would thus, the
Concurring Opinion states, bring undue pressure to bear on the Ombudsman, the Sandiganbayan, and
the Supreme Court: in the event of any of these bodies "go[ing] against the Commission's report," the
consequent public perception that said body sided with an "untruth" would compromise "the authority,
independence, and even the integrity of these constitutional bodies . . . to the prejudice of the justice
system." [65] Justice Brion theorizes that, in the light of the potential of the Commission's influence to
"prime the public" and "go beyond the level of priming" in a way that "can affect the public environment
as well as the thinking of both the decision makers in the criminal justice system and the public in
general," the PTC's primary role is "negated in actual application by the title Truth Commission and its
[66]
truth-telling function." According to the Concurring Opinion, this renders the Commission an
"unreasonable means to a reasonable objective." [67] I believe these arguments betray a very poor view
of the Filipino people and that this view lies at the root of his "due process" problem.
Woven as binding threads throughout the Concurring Opinion are a denial of an imbalance of
power and an unwillingness to see it shift in favor of a weaker group seeking redress for the perpetration
of injustice against its members. It is an oft-observed phenomenon that when there are attempts to
address past abuses committed by a powerful group, and when steps are taken to rectify the systemic
inequalities, members of the powerful group decry the threats represented by these efforts to rebalance
the scales. In this manner cries and accusations of reverse "discrimination" and "persecution" are raised
by persons who have to answer to the demands of those seeking the righting of past wrongs. This
reaction may be viewed as part of a larger pattern of backlash, meant to both "lash back" against those
perceived to be behind the threat to the security of power and to return the system to the state it
occupied before attempts to seek redress were made. [68] In the United States, this pattern is evident in
various bills, policies and initiatives — from the campaign rhetoric of a presidential contender,
immigration bills, and laws on language to university admissions policies — that aim to challenge and
minimize any gains made by disadvantaged and subordinated groups over the past years. [69]
To be sure, the differences both in history and circumstance, between the backlash experienced
by various disprivileged groups in the U.S. and the situation at hand, are not insignificant. However, the
parallels that can be drawn are striking and unsettling. In our present context, it is the Filipino people —
a great majority of whom have been disprivileged by institutions that heavily favor the ruling elite — that
have suffered the damaging consequences of graft and corruption. It is the Filipino people who have
been wronged by past abuses and systematic inequality; and it is they who now desire justice in truth. In
the Philippine context, the pre-redress state was that of an imbalance so great it allowed the immunity of
past high officials (the privileged class) from public accountability; members from such group will try to
return to that state by seeking to continue eluding accountability.
By ignoring the Filipino public's experience as a witness to the frustration of attempts to hold the
past administration accountable for its reported misdeeds, and framing it instead as a group that stands
ready to convict past officials at the bar of public opinion, the Concurring Opinion turns social reality on
its head. It minimizes the status of the Filipino people as a group wronged by the imbalance of power
and the betrayal of public trust. It ignores the need of this group to see these rectified. It ascribes an
excess of strength to public opinion and grounds its logic on fear of the public acting as an angry mob. It
does not attribute the proper importance to the active, participatory role the Filipino people desire to take
in the process of dealing with the possible misdeeds of the past. AcICTS
Implicit in Justice Brion's Concurring Opinion are the roles the public is expected to take: that of
passive observer, receiver of information and susceptible to the branding of "truth" and its repetition; [70]
and that of a source of pressure. In the latter role, the Concurring Opinion envisions the Filipino people,
having adjudged guilt according to what it was told by the PTC and the media, wielding the threat of
public disapproval against the Ombudsman and the judiciary so as to shift the burden to these bodies to
demonstrate proof and the basis for their actions if they were to disagree with the findings of the PTC.
[71]
This is gross speculation. It does not follow that repetition of information guarantees the
acceptance of its veracity; to make that logical leap in this instance is to insinuate that repetition would
rob the Filipino people of the capacity to make distinctions between what to accept and what to reject.
Neither does it follow that the Ombudsman and the judiciary must inevitably accede to public clamor, or
that the entry of public opinion into the discussion would cause a "qualitative change in the criminal
justice system" and weaken "reliance on the law, the rules and jurisprudence." [72]
The public does not need sheltering from the "potentially prejudicial effects of truth-telling." Nor is
the public to be viewed as unwitting victims to "a noisy minority [who] can change the course of a case
simply because of their noise and the media attention they get." [73] The Filipino people have a genuine
stake in the addressing of abuses possibly committed by the past administration and are entitled to
information on the same.
Striking down efforts to give the public information regarding the misdeeds of powerful officials
sends a signal of the continuing dominance of "might makes right" and the futility of attempting to hold
public officials accountable for their actions. Conversely, by carrying out investigations of the past
actions of public officials, and by holding up its results to public scrutiny and criticism, the government
reinforces respect for the rule of law and educate the people on the nature and extent of past
wrongdoing. [74] Moreover, the characterization of public discussion — the "second forum" — as an
inappropriate venue for the release of the PTC's findings devalues the utility and meaning that truth
possesses for the aggrieved group, and denigrates the need for the construction and repair of the
group's collective memory. Indeed, the Concurring Opinion implies that the PTC's influence on public
perceptions — and consequently the shaping of the collective memory of Filipinos — will only instigate
more injustice.
To the contrary, the need to shape collective memory as a way for the public to confront injustice
and move towards a more just society should not be diminished or denied. The Concurring Opinion
disregards the significance to justice of what is seen and remembered and eliminates the vital role of the
people themselves in "constructing collective memories of injustice as a basis for redress." [75] This
disregard need not prevail. There is much value to be found in memory, as Hom and Yamamoto
recounted:
For many of the 10,000 Philippine citizens tortured and murdered for their political opposition
to the former Ferdinand Marcos regime, reshaping memory became both a means to challenge
injustice and a psychological end in itself. Consider the anguish of the family of Archimedes Trajano,
a college student who posed a mildly critical question to Marcos's daughter at a forum and was
whisked away, tortured for days, and thrown off a building. For his family, and thousands of others,
there existed the need to create a new memory beyond the excruciating story of personal loss and
suffering — a memory that included a sense of social justice and government accountability. To write
this new memory collectively, many families, lawyers, bureaucrats risked much in the Philippines to
aid the thirteen-year human rights multidistrict class action litigation in the United States. [76]
While it is true that public opinion will be influenced by the information that the public can access,
it would be specious to claim that the possible turning of the tide of public opinion against those subject
to investigation is tantamount to a conviction before the court of the Filipino people. To declare the
Filipino public undeserving of the truth on the grounds of its supposed lack of capacity to deal with the
truth and its alleged susceptibility to the "priming" effect of the PTC's findings, while ignoring the public's
need to know the truth and to seek redress for wrongs, is to deny the public the means to move towards
social justice.
In Razon v. Tagitis, [77] the Court, speaking through no less than Justice Brion himself, affirmed
the grant of the Writ of Amparo petitioned by the wife of Engineer Morced Tagitis, and touched on the
"the right of relatives of the disappeared persons and of the society as a whole to know the truth
on the fate and whereabouts of the disappeared and on the progress and results of the
investigation," as expressed in the United Nations Declaration on the Protection of All Persons from
Enforced Disappearance. It would be inconsistent for this Court not to afford the same level of openness
and accountability in enforced disappearances of individuals to allegations of criminal acts of massive
corruption committed against the entire Philippine nation, under the fundamental premise of Razon v.
[78]
Tagitis that the Filipino have the right to know and can handle the truth. The public's right to know
and the concomitant public policy of full public disclosure [79] support the fact-finding mandate of the
PTC to uncover the truth of these allegations and reports in the Arroyo administration. [80] Justice
Brion's Concurring Opinion does not lay down enough legal basis for his argument that the PTC has to
be struck down due to the possibility of bias to be created in the public mind through public reports of
the PTC and the inordinate pressure this bias will bring on the Ombudsman and the judiciary. The
Philippine judiciary has had more than a century's worth of experience dealing with judicial cases and
criminal investigations under the harsh light of public scrutiny, yet not one case or investigation has been
stopped on the simple basis of the public forming a strong opinion on them and voicing this opinion in a
loud manner. [81] A judge is expected to act impartially and independently, under any set of
circumstances, with or without the public as witness. This is the role of a judge and if the neutrality
required of a judge is not maintained, the fault lies not in the creation of a fact-finding commission that
started the search for truth, but in the judge's character. To this end, the statement of the Court in People
v. Sesbreño [82] on undue publicity and its effect on the right of the accused is worth recalling: EaTCSA
. . . Besides, a thorough review of the records yields no sufficient basis to show that pervasive
publicity unduly influenced the court's judgment. Before we could conclude that appellant was
prejudiced by hostile media, he must first show substantial proof, not merely cast suspicions. There
must be a showing that adverse publicity indeed influenced the court's decision, as held in Webb v.
De Leon, 247 SCRA 653 (1995) and People v. Teehankee, 249 SCRA 54 (1995).
"[T]o warrant a finding of prejudicial publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity."
"Pervasive publicity is not per se prejudicial to the right of an accused to fair

trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and impaired
his impartiality. For one, it is impossible to seal the minds of the members of the bench from
pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. . . . Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties to a

litigation. Their mere exposure to publications and publicity stunts does not per se
infect their impartiality.
"At best appellant can only conjure possibility of prejudice on the part of the trial judge
due to the barrage of publicity that characterized the investigation and trial of the case. In
Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage of publicity. In the case at bar, the records do not
show that the trial judge developed actual bias against appellant as a consequence of the
extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of
the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial
publicity which is incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden. (Italics in the
original)"
Absent a persuasive showing by the appellant that publicity prejudicial to his case was
responsible for his conviction by the trial judge, we cannot accept his bare claim that his conviction
ought to be reversed on that ground.
Justice Cardozo, the Judge and Society

In his Concurring Opinion, Justice Brion quotes Justice Benjamin Cardozo of the United States
Supreme Court in the context of "what the repeated" "truth from a generally trusted government can
achieve" and "the effect of outside influence on judging." The Concurring Opinion uses quotations from
Justice Cardozo's book, The Nature of the Judicial Process, to drive home its points on how "the
Commission's influence can go beyond the level of priming and can affect the public environment as
well as the thinking of both the decision makers in the criminal justice system and the public in general"
and on the "potential prejudicial effects of truth-telling." [83]
The source of the quotations featured in Justice Brion's Concurring Opinion is entitled "Adherence
to Precedent. The Subconscious Element in the Judicial Process. Conclusion," fourth in a series of
lectures delivered by Justice Cardozo at Yale University and subsequently published as a book. In the
lecture, Justice Cardozo spoke about the gaps left by absence of precedents in systems of law, the
development of principles to address these gaps, and adherence to the rule of precedent. With regard to
the latter he expressed his belief that "when a rule, after it has been duly tested by experience, has been
found to be inconsistent with the sense of justice or with the social welfare, there should be less
hesitation in frank avowal and full abandonment." [84] Building on this principle, he discussed the rule of
precedent in application, and from there went on to survey judicial methods, comparing "static" with
"dynamic" precedents, narrating his personal struggles first to find certainty, then to reconcile himself
with uncertainty.
Throughout all this, one forms the image of a man fully aware of the doubts and tensions that
beset a judge, keenly cognizant of the limitations of his position and the temporal nature of even those
principles of whose development he earlier spoke: "I have grown to see that the process in its highest
reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part
of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served
their day expire, and new principles are born." [85] HEScID
Justice Cardozo was also conscious of the close intertwining between a judge's philosophy and
the judicial process, in his analysis of Roosevelt's statement on the philosophy of judges, the timeliness
of their philosophy, and the impact of the same on the decisions of the courts. [86] It is due to the limits of
human nature, Justice Cardozo conceded, that the ideal of "eternal verities" is beyond the reach of a
judge; thus it is impossible to completely eliminate the "personal measure of the [judicial] interpreter." Of
such personal measures and the signs of the times he wrote: "My duty as judge may be to objectify
in law, not my own aspirations and convictions and philosophies, but the aspirations and
convictions and philosophies of the men and women of my time. Hardly shall I do this well if my
own sympathies and beliefs and passionate devotions are with a time that is past." [87]
It is clear that Justice Cardozo did not expect a judge to cut himself completely off from the
pressures, forces, and beliefs of his society — far from it. "We may figure the task of the judge, if we
please, as the task of a translator, the reading of signs and symbols given from without," [88] he
went on to say. Indeed, the first lines of the paragraph quoted in Justice Brion's Concurring Opinion [89]
state: "I have no quarrel, therefore, with the doctrine that judges ought to be in sympathy with the
spirit of their times." [90] Justice Cardozo did not regard the influence of "the truth without us" on the
shaping of individual beliefs as harmful in and of itself, nor did he say that judges must be completely
free of outside influences. He spoke of the effect the thinking of the group could play in the thinking of
the individual, and how these factors and influences, as part of human nature, might play out in the
judicial process, without considering such effect as a problem. He wrote, following his quoting of James
Harvey Robinson, that "[t]he training of the judge, if coupled with what is styled the judicial temperament,
will help in some degree to emancipate him from the suggestive power of individual dislikes and
prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never will
these loyalties be utterly extinguished while human nature is what it is." [91]
Accepting fully the flaws inherent in human nature and the "eccentricities of judges," optimistic in
the belief that "because [the flaws] are not only there but visible, we have faith that they will be
corrected," [92] Justice Cardozo concluded with words on the temporal nature of the work of a judge:
"The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it
endures. What is erroneous is pretty sure to perish." It was in this sense — the building of new
structures upon good foundations, the rejection of errors as they are determined by the years — that
Justice Cardozo wrote the lines that constitute the second excerpt quoted in Justice Brion's Concurring
Opinion. Preceding Justice Cardozo's quoting of Henderson, he wrote: "Little by little the old doctrine is
undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally
we discover that the contour of the landscape has been changed, that the old maps must be cast aside,
and the ground charted anew." [93] It was change — in the spirit of the times, in the principles
underpinning the judicial process, in the personal and very human beliefs of individual judges — that
Justice Cardozo spoke of in this passage. It does not speak of damage wrought by societal
influence, nor of destructive or prejudicial effects due to shifts in public opinion and belief, but
rather of how law develops and changes. Indeed, Justice Cardozo ends on a note rich with hope in
change:
Ever in the making, as law develops through the centuries, is this new faith which silently and
steadily effaces our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch
about the enduring consequences of our errors. They may work a little confusion for a time. In the
end, they will be modified or corrected or their teachings ignored. The future takes care of such
things. In the endless process of testing and retesting, there is a constant rejection of the dross, and
a constant retention of whatever is pure and sound and fine. [94]
Truly, the role of the judge is to do his utmost to exercise his independence, even against
overwhelming pressure, to uphold the rule of law. But simply because the possibility exists that the
judiciary may go along with a public that is hungry for the truth does not mean we do not allow the truth
to be found out. As we can see from a reading of Justice Cardozo's lecture, we need not fear societal
influences and forces. The "truth without us" does not negate the validity of "the truth within."
Appropriateness of Establishing a "Truth" Commission
In his Concurring Opinion, Justice Brion raises the points that: (1) the term "truth commission" is
usually reserved for a body "investigating the human rights violations that attended past violence and
repression, and in some instances for a body working for reconciliation in society," and (2) reconciliation
is not present as one of the goals of the PTC. [95] These two points, according to the Concurring
Opinion, further distance the PTC from other truth commissions; the latter point in particular thereby
"remov[es] a justification for any massive information campaign aimed at healing divisions that may exist
in the nation." [96]
To arrive at this conclusion is to place unwarranted restrictions on the definitions and functions of
bodies bearing the name of "truth commission." While many truth commissions have indeed been
established in the wake of a violent conflict leading to a transition between two regimes, this does not
preclude that truth commissions in some countries may be used for circumstances that do not duplicate
the violence of the conflict or the character of the regime transition in other countries. The needs of
various countries differ and consequently determine a great deal of variation in the fundamental goals,
purposes, and characteristics of the bodies they establish, to deal with the abuses of previous
administrations. [97] David Crocker puts forth the view that even nations other than new democracies
may see the need for ways to "reckon with past wrongs," and classifies these other nations into three
broad categories: (1) post-conflict societies aspiring to transition to democracy, but occupied with
pressing security issues; (2) authoritarian and conflict-ridden societies; (3) mature democracies that are
reckoning with abuses their own governments may have committed in the past. [98] The Philippine
context does not, therefore, close off the avenue of a truth commission as a permissible means to
address past abuses. Likewise, a definition that expects reconciliation as a requisite goal for the PTC
[99] is an unduly narrow definition. HSCATc
Another argument raised in Justice Brion's Concurring Opinion refers to the EO 1's creation of the
PTC as a "shortcut to the emergence of truth" [100] — one which should not be taken as it "bypass[es]
processes established by the Constitution and the laws." Because it deems "the international
experiences that give rise to the title Truth Commission" as not applying to the present Philippine
situation and claims there is no need for "quick transitional justice," the Concurring Opinion reasons that
"there is no need to resort to . . . institutions and mechanisms outside of those already in place." [101] In
other words, only the Ombudsman and the judiciary have the rightful duopoly on truth-finding and truth-
telling in graft and corruption cases.
Yet the justifications for the use of truth commissions are not confined only to certain post-conflict
scenarios or the absence of functioning judicial systems. Even in some contexts where there is a judicial
system already in place, a truth commission may be used by the government as a redress mechanism.
[102] There are numerous reasons prosecution and other means usually undertaken within the judicial
system may not be viable. There may be too many incidents to prosecute; due to the atmosphere of
secrecy in which abuses took place, evidence may be insufficient for a criminal conviction. [103] Current
political policies, as well as concerns about vengeance and the resulting societal tensions, may also
make prosecution difficult or impossible. [104] The element of time may also be a significant factor. [105]
In addition, some of the aims of truth commissions may be outside the purview of courts, as in the case
of giving an account of events that transpired: "A court is not supposed to give an account about the
circumstances of the historic, economic, and political reasons for a crime, nor about the involvement of
different groups in the society or political influence from the outside which may have encouraged the
perpetrators . . . Giving an account, providing explanations, and offering recommendations for a better
future are exactly the purposes of a truth commission." [106] Means of redress attempted within the
confines of the judicial system may also not be viable precisely because of elements influencing the
system itself. Officials allied with the previous regime may also still retain power, and through various
means hinder proceedings undertaken within the judicial system.
This last point regarding situations wherein the former regime still possesses a certain degree of
influence over the system is especially salient in the light of state capture. According to the World Bank,
state capture may be treated as akin in essence to regulatory capture as it is used in economics
literature: state regulatory agencies are considered "captured" when they "regulate businesses in
accordance with the private interests of the regulated as opposed to the public interest for which they
were established." State capture, then, encompasses the state's "capture" as evinced in the "formation
of laws, rules, and decrees by a wider range of state institutions, including the executive, ministries and
state agencies, legislature, and the judiciary." [107] State capture alters the "rules of the game" in favor of
those who have captured the state. While state capture encompasses a variety of situations, its
fundamental characteristic is that it is channeled through illicit, informal, and non-transparent means of
providing private gains to public officials as incentives for these very officials to influence the formation
of laws and prejudice the rules to these captors' narrow advantage. [108] If public officials are perceived
to have been captured, the credibility of official processes — such as rendering decrees, forming laws,
and shaping policies — will suffer. It is not difficult to see how state capture may render traditional
means such as prosecution completely ineffective against those who may have captured the state.
To that end, S. Sandile Ngcobo writes:
. . . many transitional governments do not represent a complete break with the past. In
some cases, members of the police and security forces that were responsible for heinous acts under
the old regime remain in influential positions. Their numbers and their continued control of deadly
weapons provide them with the capability to undermine the peaceful transition. Their continued
influence may threaten the new democratic order, making prosecutions both undesirable and
impractical. Given these realities, the emerging democracy may be compelled to look for alternative
approaches. At this point, a truth commission may become an attractive option. [109] (Emphasis
supplied.)
It is true that in the Philippine context we may not be speaking of a past regime's continuing
control of guns and armed men; but power, in any form, is power. In any event, the appropriateness of
naming the PTC as a "truth commission" is not a legal argument for its invalidation, as Justice Brion
himself conceded.
Unlawful Discrimination is not an Argument of the Powerful; the Phenomenon of State Capture
Unlawful discrimination, as shown in American cases on equal protection claims in criminal
investigation and prosecution, is not inherently an argument of the powerful, but that of the traditionally
oppressed. This is because the politically powerful, as in the past administration, still contain all the
advantages that such past formal political power begot. It is the height of incongruity that an
administration that held power for nine years, successfully evaded all congressional investigations, and
effectively invoked all legal defenses from investigation for all those nine years will be extended the
same immunity that the former presidential office gave it. The Philippines will be the laughing stock of
the world, incapable of correcting any error, unable to erase the perception by many that it is a country
where the law only serves the ends of the powerful.
If evidence will later turn out, congruent to the theory of some quarters as intimated by the
Solicitor General during the oral arguments, that the reason that former President Arroyo and her closest
relatives and officials have not been prosecuted by the present Ombudsman is because the
Ombudsman is not independent but is acting out of loyalty for her appointment to the position, then such
evidence reinforces the immoral political lesson that the misuse of the law and the power of appointment
can be purposively committed to create a strong shield of immunity from accountability. With or without
such evidence, however, and especially because the belief in the non-independence of the Ombudsman
is openly expressed by people, the only way for this Court to not abet such a plan if such a plan indeed
existed on the part of Arroyo administration, is to allow the people to exact accountability upon those
from whom accountability is due. It must let the President fulfill his promise to the people, and if the
President believes that the best way for him is to start from fact-finding into the past administration, then
he must be allowed to do so without unconstitutional judicial restraint. EaSCAH
The "Least Dangerous" Branch

The majority took pains to reiterate the honorable role of the Court in exercising the constitutional
and awesome power of judicial review, amidst the recent string of rebukes against the initiatives of the
legislature and elected executives — democratically elected representatives of the people.
In the seminal book "The Least Dangerous Branch: The Supreme Court at the Bar of Politics,"
Alexander M. Bickel expounded on the "counter-majoritarian difficulty" [110] of judicial review exercised
by an unelected court to declare null and void an act of the legislature or an elected executive in this
wise:
The root difficulty is that judicial review is a counter-majoritarian force in our system. . . . when
the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it
thwarts the will of representatives of the actual people of the here and now; it exercises control, not in
behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually
happens. It is an altogether different kettle of fish, and it is the reason the charge can be made that
judicial review is undemocratic. [111]
Bickel's "counter-majoritarian difficulty" is met by the argument that the Court's duty is to uphold
the Constitution, that in determining the "boundaries of the great departments of government" is not to
assert superiority over them but merely to assert its solemn and sacred obligation to determine
conflicting claims of authority under the Constitution. [112]
If the Court is to avoid illegitimacy in its actions as suggested by Professor Bickel, then it must
ensure that its discharge of the duty to prevent abuse of the President's executive power does not
translate to striking down as invalid even a legitimate exercise thereof, especially when the exercise is in
keeping with the will of the people. [113] Invalidating the PTC is an unconstitutional denial of the
legitimate exercise of executive power and a stinging reproach against the people's sovereign right.
Sadly, there is a wide fissure between the public's hunger for governance justice through the successful
delivery by President Aquino of his promise to get behind the stories on corruption of the former
administration, and the Court's confirmation of an alleged violation of former President Arroyo's equal
protection right. To emphasize, it is not even former President Arroyo who is officially raising this matter
before the Court.
Rather than exercise judicial restraint, the majority has pushed the boundaries of judicial activism
bordering on what former Chief Justice Puno once described as an imperial judiciary:
"[T]he Court should strive to work out a constitutional equilibrium where each branch of
government cannot dominate each other, an equilibrium where each branch in the exercise of its
distinct power should be left alone yet bereft of a license to abuse. It is our hands that will cobble the
components of this delicate constitutional equilibrium. In the discharge of this duty, Justice
Frankfurter requires judges to exhibit that 'rare disinterestedness of mind and purpose, a freedom
from intellectual and social parochialism.' The call for that quality of "rare disinterestedness" should
counsel us to resist the temptation of unduly inflating judicial power and deflating the executive and
legislative powers. The 1987 Constitution expanded the parameters of judicial power, but that
by no means is a justification for the errant thought that the Constitution created an imperial
judiciary. An imperial judiciary composed of the unelected, whose sole constituency is the
blindfolded lady without the right to vote, is counter-majoritarian, hence, inherently inimical to the
central ideal of democracy. We cannot pretend to be an imperial judiciary for in a government whose
cornerstone rests on the doctrine of separation of powers, we cannot be the repository of all
remedies." [114] (Emphasis supplied)
When forgotten, history does have a tendency to repeat itself. [115] Unless an official and
comprehensive narrative of findings of fact on large-scale corruption that reportedly occurred during the
previous administration is made public, the country may find the same alleged patterns of corruption
repeating themselves. Worse, public officials subject of the investigation — and who may actually be
guilty — with continued possession or access to power may spin these events and cause a revision of
our history to make those allegations of wrongdoing appear nothing more than unsubstantiated rumors
whispered in secret and perpetuated by bitter opponents. The PTC is a step towards national healing
over a sordid past. The Court must allow the nation to move forward and the people's faith in a just and
accountable government to be restored. ESIcaC
NACHURA, J., concurring and dissenting:
Before us are two (2) consolidated petitions:

1. G.R. No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo (Biraogo), in
his capacity as a citizen and taxpayer, assailing Executive Order (E.O.) No. 1, entitled "Creating the
Philippine Truth Commission of 2010" for violating Section 1, Article VI of the 1987 Constitution; and
2. G.R. No. 193036 is a petition for certiorari and prohibition filed by petitioners Edcel C.
Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr., in their capacity as
members of the House of Representatives, similarly bewailing the unconstitutionality of E.O. No. 1.
First, the all too familiar facts leading to this cause celebre.
On May 10, 2010, Benigno Simeon C. Aquino III was elected President of the Philippines. Oft
repeated during his campaign for the presidency was the uncompromising slogan, "Kung walang
corrupt, walang mahirap."
Barely a month after his assumption to office, and intended as fulfillment of his campaign promise,
President Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:

CREATING THE PHILIPPINE
TRUTH COMMISSION OF 2010
employees, who are servants of the people, must at all times be accountable to the latter, serve them
modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and
notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic,
and social life of a nation; in a very special way it inflicts untold misfortune and misery on the poor,
the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined
the people's trust and confidence in the Government and its institutions; HAICcD
WHEREAS, the President's battlecry during his campaign for the Presidency in the last
would end corruption and the evil it breeds;
out the truth concerning the reported cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and secure justice for all;
reorganize the Office of the President.
SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE

TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by
the public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
thereafter submit its finding and recommendation to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
or employee of the Executive Branch, including government-owned or controlled corporation, to

c) Upon proper request and representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by committees thereof
relating to matters or subjects being investigated by the Commission; EDaHAT
d) Upon proper request and representation, obtain information from the courts, including
the Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state witness
under the Revised Rules of Court of the Philippines be admitted for that purpose;
laws;
h) Call upon any government investigative or prosecutorial agency such as the

Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission,
for such assistance and cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource person, professional and other personnel
determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to

effectively and efficiently carry out the objectives of this Executive Order and to ensure the orderly
conduct of its investigations, proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection
with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. — The Commission shall be assisted by such

assistants and personnel as may be necessary to enable it to perform its functions, and shall
formulate and establish its organization structure and staffing pattern composed of such
administrative and technical personnel as it may deem necessary to efficiently and effectively carry
out its functions and duties prescribed herein, subject to the approval of the Department of Budget
and Management. The officials of the Commission shall in particular include, but not limited to, the
following:
a. General Counsel
b. Deputy General Counsel
c. Special Counsel
d. Clerk of the Commission
SECTION 4. Detail of Employees. — The President, upon recommendation of the

Commission, shall detail such public officers or personnel from other department or agencies which
may be required by the Commission. The detailed officers and personnel may be paid honoraria
and/or allowances as may be authorized by law, subject to pertinent accounting and auditing rules
and procedures.
SECTION 5. Engagement of Experts. — The Truth Commission shall have the power to
engage the services of experts as consultants or advisers as it may deem necessary to accomplish
its mission.
SECTION 6. Conduct of Proceedings. — The proceedings of the Commission shall be in

accordance with the rules promulgated by the Commission. Hearings or proceedings of the
Commission shall be open to the public. However, the Commission, motu propio, or upon the request
of the person testifying, hold an executive or closed-door hearing where matters of national security
or public safety are involved or when the personal safety of the witness warrants the holding of such
executive or closed-door hearing. The Commission shall provide the rules for such hearing. CDEaAI
SECTION 7. Right to Counsel of Witnesses/Resources Persons. — Any person called to

testify before the Commission shall have the right to counsel at any stage of the proceedings.
SECTION 8. Protection of Witnesses/Resource Persons. — The Commission shall always

seek to assure the safety of the persons called to testify and, if necessary make arrangements to
secure the assistance and cooperation of the Philippine National Police and other appropriate
government agencies.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. — Any

government official or personnel who, without lawful excuse, fails to appear upon subpoena issued
by the Commission or who, appearing before the Commission refuses to take oath or affirmation,
give testimony or produce documents for inspection, when required, shall be subject to administrative
SECTION 10. Duty to Extend Assistance to the Commission. — The departments,

bureaus, offices, agencies or instrumentalities of the Government, including government-owned and
controlled corporations, are hereby directed to extend such assistance and cooperation as the
Commission may need in the exercise of its powers, execution of its functions and discharge of its
duties and responsibilities with the end in vies of accomplishing its mandate. Refusal to extend such
assistance or cooperation for no valid or justifiable reason or adequate cause shall constitute a
ground for disciplinary action against the refusing official or personnel.
SECTION 11. Budget for the Commission. — The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its functions,
and perform its duties and responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. — The Commission may avail itself of such office space which may
be available in government buildings accessible to the public space after coordination with the
department or agencies in control of said building or, if not available, lease such space as it may
require from private owners.
SECTION 13. Furniture/Equipment. — The Commission shall also be entitled to use such
equipment or furniture from the Office of the President which are available. In the absence thereof, it
may request for the purchase of such furniture or equipment by the Office of the President.
SECTION. 14. Term of the Commission. — The Commission shall accomplish its mission
on or before December 31, 2012.
SECTION 15. Publication of Final Report. — On or before December 31, 2012, the
Commission shall render a comprehensive final report which shall be published upon the directive of
the president. Prior thereto, also upon directive of the President, the Commission may publish such
special interim reports it may issue from time to time.
SECTION 16. Transfer of Records and Facilities of the Commission. — Upon the
completion of its work, the records of the Commission as well as its equipment, furniture and other
properties it may have acquired shall be returned to the Office of the President.
Order.
SECTION 18. Separability Clause. — If any provision of this Order is declared

unconstitutional, the same shall not affect the validity and effectivity of the other provisions hereof.
Section 19. Effectivity. — This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President: cEAaIS
(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary
Without delay, petitioners Biraogo and Congressmen Lagman, Albano, Datumanong, and Fua
filed their respective petitions decrying the constitutionality of the Truth Commission, primarily, for being
a usurpation by the President of the legislative power to create a public office.
In compliance with our Resolution, the Office of the Solicitor General (OSG) filed its Consolidated
Comment to the petitions. Motu proprio, the Court heard oral arguments on September 7 and 28, 2010,
where we required the parties, thereafter, to file their respective memoranda.
In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1 violates Section 1,
Article VI of the 1987 Constitution because it creates a public office which only Congress is empowered
to do. Additionally, "considering certain admissions made by the OSG during the oral arguments," the
petitioner questions the alleged intrusion of E.O. No. 1 into the independence of the Office of the
Ombudsman mandated in, and protected under, Section 5, Article XI of the 1987 Constitution.
Holding parallel views on the invalidity of the E.O., petitioner Members of the House of
Representatives raise the following issues:
I.
EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF
THE CONGRESS (1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2)
TO APPROPRIATE PUBLIC FUNDS.
II.
EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987
CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH
COMMISSION TO OFFICIALS AND EMPLOYEES OF THE "PREVIOUS ADMINISTRATION" (THE
ADMINISTRATION OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO).
III.
EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS OF

THE OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND
SUPPLEMENTED BY REPUBLIC ACT NO. 6770 OR THE "OMBUDSMAN ACT OF 1989."
Expectedly, in its Memorandum, the OSG traverses the contention of petitioners and upholds the
constitutionality of E.O. No. 1 on the strength of the following arguments:
I.
PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH THE
ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING TO
ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.
II.
EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO. 1 DOES
NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE AND TO
APPROPRIATE FUNDS FOR ITS OPERATIONS.
III.
THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR NATION-
BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND CONSEQUENCES
OF CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS FOR THEIR REDRESS AND
FUTURE PREVENTION. ALTHOUGH ITS INVESTIGATION MAY CONTRIBUTE TO SUBSEQUENT

PROSECUTORIAL EFFORTS, THE COMMISSION WILL NOT ENCROACH BUT COMPLEMENT
THE POWERS OF THE OMBUDSMAN AND THE DOJ IN INVESTIGATING CORRUPTION. IcHSCT
IV.
EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE THE
EQUAL PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE AND LAUDABLE
PURPOSES.
In resolving these issues, the ponencia, penned by the learned Justice Jose Catral Mendoza,
concludes that:
1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because
of the transcendental importance of the issues involved, while petitioner Members of the House of
Representatives have standing to question the validity of any official action which allegedly infringes on
their prerogatives as legislators;
2. The creation of the Truth Commission by E.O. No. 1 is not a valid exercise of the
President's power to reorganize under the Administrative Code of 1987;
3. However, the President's power to create the herein assailed Truth Commission is justified
under Section 17, [1] Article VII of the Constitution, albeit what may be created is merely an ad hoc
Commission;
4. The Truth Commission does not supplant the Ombudsman or the Department of Justice
(DOJ) nor erode their respective powers; and
5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection
clause enshrined in Section 1, Article III of the Constitution.
I agree with the ponencia that, given our liberal approach in David v. Arroyo [2] and subsequent
cases, petitioners have locus standi to raise the question of constitutionality of the Truth Commission's
creation. I also concur with Justice Mendoza's conclusion that the Truth Commission will not supplant
the Office of the Ombudsman or the DOJ, nor impermissibly encroach upon the latter's exercise of
constitutional and statutory powers.
I agree with the ponencia that the President of the Philippines can create an ad hoc investigative
body. But more than that, I believe that, necessarily implied from his power of control over all executive
departments and his constitutional duty to faithfully execute the laws, as well as his statutory authority
under the Administrative Code of 1987, the President may create a public office.
However, I find myself unable to concur with Justice Mendoza's considered opinion that E.O. No.
1 breaches the constitutional guarantee of equal protection of the laws.
Let me elucidate.
The Truth Commission is a Public Office
The first of two core questions that confront the Court in this controversy is whether the President
of the Philippines can create a public office. A corollary, as a consequence of statements made by the
Solicitor General during the oral argument, is whether the Truth Commission is a public office.
A public office is defined as the right, authority, or duty, created and conferred by law, by which for
a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some sovereign power of government to be exercised by him for the benefit of the public.
[3] Public offices are created either by the Constitution, by valid statutory enactments, or by authority of
law. A person who holds a public office is a public officer.
Given the powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that the
Truth Commission is a public office, and the Chairman and the Commissioners appointed thereto, public
officers.
As will be discussed hereunder, it is my respectful submission that the President of the Philippines
has ample legal authority to create a public office, in this case, the Truth Commission. This authority
flows from the President's constitutional power of control in conjunction with his constitutional duty to
ensure that laws be faithfully executed, coupled with provisions of a valid statutory enactment, E.O. No.
292, otherwise known as the Administrative Code of 1987. DCcHAa
E.O. No. 1 and the Executive Power

Central to the resolution of these consolidated petitions is an understanding of the "lines of
demarcation" of the powers of government, i.e., the doctrine of separation of powers. The landmark
case of Government of the Philippine Islands v. Springer [4] has mapped out this legal doctrine:
The Government of the Philippines Islands is an agency of the Congress of the United States.
The powers which the Congress, the principal, has seen fit to entrust to the Philippine Government,
the agent, are distributed among three coordinate departments, the executive, the legislative, and the
judicial. It is true that the Organic Act contains no general distributing clause. But the principle is
clearly deducible from the grant of powers. It is expressly incorporated in our Administrative Code. It
has time and again been approvingly enforced by this court.
No department of the government of the Philippine Islands may legally exercise any of the
powers conferred by the Organic Law upon any of the others. Again it is true that the Organic Law
contains no such explicit prohibitions. But it is fairly implied by the division of the government into
three departments. The effect is the same whether the prohibition is expressed or not. It has
repeatedly been announced by this court that each of the branches of the Government is in the main
independent of the others. The doctrine is too firmly imbedded in Philippine institutions to be
debatable.
It is beyond the power of any branch of the Government of the Philippine islands to exercise
its functions in any other way than that prescribed by the Organic Law or by local laws which conform
to the Organic Law. The Governor-General must find his powers and duties in the fundamental law.
An Act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this
court and other courts is derived from the constitutional provisions.
xxx xxx xxx

The Organic Act vests "the supreme executive power" in the Governor-General of the
Philippine Islands. In addition to specified functions, he is given "general supervisions and control of
all the departments and bureaus of the government of the Philippine Islands as far is not inconsistent
with the provisions of this Act." He is also made "responsible for the faithful execution of the laws of
the Philippine islands and of the United States operative within the Philippine Islands." The authority
of the Governor-General is made secure by the important proviso "that all executive functions of
Government must be directly under the governor-General or within one of the executive departments
under the supervision and control of the governor-general." By the Administrative Code, "the
governor-general, as Chief executive of the islands, is charged with the executive control of the
Philippine Government, to be exercised in person or through the Secretaries of Departments, or
other proper agency, according to law."
These "lines of demarcation" have been consistently recognized and upheld in all subsequent Organic
Acts applied to the Philippines, including the present fundamental law, the 1987 Constitution.
Section 1, Article VII of the 1987 Constitution [5] vests executive power in the President of the
Philippines. On the nature of the executive power, Justice Isagani A. Cruz writes:
Executive power is briefly described as the power to enforce and administer the laws, but it is
actually more than this. In the exercise of this power, the President of the Philippines assumes a
plenitude of authority, and the corresponding awesome responsibility, that makes him, indeed, the
most influential person in the land. [6]
In National Electrification Administration v. Court of Appeals, [7] this Court said that, as the administrative
head of the government, the President is vested with the power to execute, administer and carry out
laws into practical operation. Impressed upon us, then, is the fact that executive power is the power of
carrying out the laws into practical operation and enforcing their due observance.
Relevant to this disquisition are two specific powers that flow from this "plenitude of authority."
Both are found in Section 17, Article VII of the Constitution. [8] They are commonly referred to as the
power of control and the take care clause. EIDaAH
Section 17 is a self-executing provision. The President's power of control is derived directly from
the Constitution and not from any implementing legislation. [9] On the other hand, the power to take care
that the laws be faithfully executed makes the President a dominant figure in the administration of the
government. The law he is supposed to enforce includes the Constitution itself, statutes, judicial
decisions, administrative rules and regulations and municipal ordinances, as well as the treaties entered
into by our government. [10] At almost every cusp of executive power is the President's power of control
and his constitutional obligation to ensure the faithful execution of the laws.
Demonstrating the mirabile dictu of presidential power and obligation, we declared in Ople v.
Torres: [11]
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace and public
order. Thus, he is granted administrative power over bureaus and offices under his control to enable
him to discharge his duties effectively.
Mondano v. Silvosa, [12] defines the power of control as "the power of an officer to alter, modify, or
set aside what a subordinate officer had done in the performance of his duties, and to substitute the
judgment of the former for that of the latter." It includes the authority to order the doing of an act by a
subordinate, or to undo such act or to assume a power directly vested in him by law. [13]
In this regard, Araneta v. Gatmaitan [14] is instructive:
If under the law the Secretary of Agriculture and Natural Resources has authority to regulate
or ban fishing by trawl, then the President of the Philippines may exercise the same power and
authority because of the following: (a) The President shall have control of all the executive
departments, bureaus or offices pursuant to Section 10(1), Article VII, of the Constitution; (b)
Executive Orders may be issued by the President under Section 63 of the Revised Administrative
Code: governing the general performance of duties by public employees or disposing of issues of
general concern;" and (c) Under Section 74 of the Revised Administrative Code, "All executive
functions of the Government of the Republic of the Philippines shall be directly under the Executive
Department, subject to the supervision and control of the President of the Philippines in matters of
general policy."
Our ruling in City of Iligan v. Director of Lands [15] echoes the same principle in this wise:
Since it is the Director of Lands who has direct executive control among others in the lease,
sale or any form of concession or disposition of the land of the public domain subject to the
immediate control of the Secretary of Agriculture and Natural Resources, and considering that under
the Constitution the President of the Philippines has control over all executive departments, bureaus
and offices, etc., the President of the Philippines has therefore the same authority to dispose of the
portions of the public domain as his subordinates, the Director of Lands, and his alter-ego the
Secretary of Agriculture and Natural Resources.
From these cited decisions, it is abundantly clear that the overarching framework in the
President's power of control enables him to assume directly the powers of any executive department,
bureau or office. Otherwise stated, whatever powers conferred by law upon subordinate officials within
his control are powers also vested in the President of the Philippines. In contemplation of law, he may
directly 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 executive department. Thus, he could,
for example, take upon himself the investigatory functions of the Department of Justice, and personally
conduct an investigation. If he decides to do so, he would be at liberty to delegate a portion of this
investigatory function to a public officer, or a panel of public officers, within his Office and under his
control. There is no principle of law that proscribes his doing so. In this context, the President may,
therefore, create an agency within his Office to exercise the functions, or part of the functions, that he
has assumed for himself. Even the ponencia admits that this can be done. ASHICc
When this power of control is juxtaposed with the constitutional duty to ensure that laws be
faithfully executed, it is obvious that, for the effective exercise of the take care clause, it may become
necessary for the President to create an office, agency or commission, and charge it with the authority
and the power that he has chosen to assume for himself. It will not simply be an exercise of the power of
control, but also a measure intended to ensure that laws are faithfully executed.
To reiterate, the take care clause is the constitutional mandate for the President to ensure that
laws be faithfully executed. Dean Vicente G. Sinco observed that the President's constitutional
obligation of ensuring the faithful execution of the laws "is a fundamental function of the executive head
[involving] a two-fold task, [i.e.,] the enforcement of laws by him and the enforcement of laws by other
officers under his direction." [16]
As adverted to above, the laws that the President is mandated to execute include the Constitution,
statutes, judicial decisions, administrative rules and regulations and municipal ordinances. Among the
constitutional provisions that the President is obliged to enforce are the following General Principles and
State Policies of the 1987 Philippine Constitution:
Section 4, Article II: The prime duty of government is to serve and protect the people . . .
Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and
property, and promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Section 9, Article II: The State shall promote a just and dynamic social order that will ensure
the prosperity and independence of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising standard of living, and an
improved quality of life for all.
Section 13, Article II: The State values the dignity of every human person and guarantees full
respect for human rights.
Section 27, Article II: The State shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and corruption.
Section 28, Article II: Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public interest.
Closer to home, as head of the biggest bureaucracy in the country, the President must also see to the
faithful execution of Section 1, Article XI of the Constitution, which reads: "Public office is a public trust.
Public officers and employees must at all times be accountable to the people; serve them with utmost
responsibility, integrity, loyalty and efficiency; act with patriotism and justice; and lead modest lives."
These are constitutional provisions the enforcement of which is inextricably linked to the spirit and
objective of E.O. No. 1.
Although only Section 1, Article XI, is cited in the Whereas clauses of E.O. No. 1, the President is
obliged to execute the other constitutional principles as well. Absent any law that provides a specific
manner in which these constitutional provisions are to be enforced, or prohibits any particular mode of
enforcement, the President could invoke the doctrine of necessary implication, i.e., that the express
grant of the power in Section 17, Article VII, for the President to faithfully execute the laws, carries with it
the grant of all other powers necessary, proper, or incidental to the effective and efficient exercise of the
expressly granted power. [17] Thus, if a Truth Commission is deemed the necessary vehicle for the
faithful execution of the constitutional mandate on public accountability, then the power to create the
same would necessarily be implied, and reasonably derived, from the basic power granted in the
Constitution. Accordingly, the take care clause, in harmony with the President's power of control, along
with the pertinent provisions of the Administrative Code of 1987, would justify the issuance of E.O. No. 1
and the creation of the Truth Commission. ICTaEH
Further to this discussion, it is cogent to examine the administrative framework of Executive

Power, as outlined in the Administrative Code.
Quite logically, the power of control and the take care clause precede all others in the
enumeration of the Powers of the President. Section 1, Book III, Title I simply restates the constitutional
provision, to wit:
SECTION 1. Power of Control. — The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
Next in the enumeration is the ordinance power of the President which defines executive orders, thus:
SEC. 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.
At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of the President, which
include the residual power, viz.:
SEC. 19. Powers Under the Constitution. — The President shall exercise such other
powers as are provided for in the Constitution.
SEC. 20. Residual Powers. — Unless Congress provides otherwise, the president shall
exercise such other powers and functions vested in the President which are provided for under the
laws and which are not specifically enumerated above, or which are not delegated by the President
in accordance with law.
In addition, pursuant to the organizational structure of the Executive Department, [18] one of the
powers granted to the President is his continuing authority to reorganize his Office: [19]
SEC. 31. Continuing Authority of the President to Reorganize his Office. — The President,
efficiency, shall have continuing authority to reorganize the administrative structure of the Office of
the President. For this purpose, he may take any of the following actions:
the immediate Offices, the Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing, consolidating or merging units thereof or
Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
agency as well as transfer agencies to the Office of the President from other
departments or agencies.
Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The
Executive Branch) that "[t]he Executive Branch shall have such Departments as are necessary for the
functional distribution of the work of the President and for the performance of their functions." Hence, the
primary articulated policy in the Executive Branch is the organization and maintenance of the
Departments to insure their capacity to plan and implement programs in accordance with established
national policies. [20]
With these Administrative Code provisions in mind, we note the triptych function of the Truth
Commission, namely: (1) gather facts; (2) investigate; and (3) recommend, as set forth in Section 1 of
E.O. No. 1:

TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall [1] primarily
seek and find the truth on, and toward this end, [2] investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by the public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter [3] recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor. (emphasis and numbering supplied) AcEIHC
It is plain to see that the Truth Commission's fact-finding and investigation into "reports of large scale
corruption by the previous administration" involve policy-making on issues of fundamental concern to the
President, primarily, corruption and its linkage to the country's social and economic development.
On this point, I differ from the ponencia, as it reads the President's power to reorganize in a
different light, viz.:
The question, therefore, before the Court is this: Does the creation of the Truth Commission
fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised
Administrative Code? Section 31 contemplates "reorganization" as limited by the following functional
and structural lines: (1) restructuring the internal organization of the Office of the President Proper by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;
(2) transferring any function under the Office of the President to any other Department/Agency or
vice versa; or (3) transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel,

consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These
point to situations where a body or an office is already existent by a modification or alteration thereof
has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer is in the negative.
xxx xxx xxx
. . . [T]he creation of the Truth Commission is not justified by the president's power of control.
Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former with that of the
latter. Clearly, the power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid delegation from
Congress, or his inherent duty to faithfully execute the laws.
I am constrained to disagree because, contrary to the ponencia's holding, the President's power to
reorganize is not limited by the enumeration in Section 31 of the Administrative Code.
As previously discussed, the President's power of control, in conjunction with his constitutional
obligation to faithfully execute the laws, allows his direct assumption of the powers and functions of
executive departments, bureaus and offices. [21] To repeat, the overarching framework in the President's
power of control enables him to assume directly the functions of an executive department. On the macro
level, the President exercises his power of control by directly assuming all the functions of executive
departments, bureaus or offices. On the micro level, the President may directly assume certain or
specific, not all, functions of a Department. In the milieu under which the Truth Commission is supposed
to operate, pursuant to E.O. No. 1, only the investigatory function of the DOJ for certain crimes is
directly assumed by the President, then delegated to the Truth Commission. After all, it is axiomatic that
the grant of broad powers includes the grant of a lesser power; in this case, to be exercised — and
delegated — at the President's option.
My conclusion that the transfer of functions of a Department to the Office of the President falls
within the President's power of reorganization is reinforced by jurisprudence.
In Larin v. Executive Secretary, [22] the Court sustained the President's power to reorganize under
Section 20, Book III of E.O. 292, in relation to PD No. 1416, as amended by PD No. 1772:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:
"Sec. 20. Residual Powers. — Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President which are provided for under the
laws and which are not specifically enumerated above or which are not delegated by the President in
accordance with law.
This provision speaks of such other powers vested in the president under the law. What law
then gives him the power to reorganize? It is Presidential decree No. 1772 which amended
Presidential Decree no. 1416. These decrees expressly grant the President of the Philippines the
continuing authority to reorganize the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities and to standardize salaries and materials. The validity of these two
decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive
orders, proclamations, letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked." So far, there is yet not law
amending or repealing said decrees. HSIaAT
Subsequently, Buklod ng Kawaning EIIB v. Zamora, [23] affirmed the holding in Larin and explicitly
recognized the President's authority to transfer functions of other Departments or Agencies to the Office
of the President, consistent with his powers of reorganization, to wit:
But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
sources of the power — that which constitutes an express grant of power. Under Section 31, Book III
of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President,
efficiency, shall have the continuing authority to reorganize the administrative structure of the Office
of the president." For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that reorganization
"involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions." It takes place when there is an alteration of the existing
structure of government or units therein, including the lines of control, authority and responsibility
between them. . . . (emphasis supplied)
Then, and quite significantly, in Bagaoisan v. National Tobacco Administration, [24] this Court
clarified the nature of the grant to the President of the power to reorganize the administrative structure of
the Office of the President, thus:
In the recent case of Rosa Ligaya C. Domingo, et al. v. Hon. Ronaldo d. Zamora, in his
capacity as the Executive Secretary, et al., this Court has had occasion to also delve on the
President's power to reorganize the Office of the President under Section 31 (2) and (3) of Executive
Order No. 292 and the power to reorganize the Office of the President Proper. The Court has there
observed:
". . . . Under Section 31(1) of E.O. 292, the President can reorganize the Office of the
President Proper by abolishing, consolidating or merging units, or by transferring functions from one
unit to another. In contrast, under Section 31(2) and (3) of EO 292, the President's power to
reorganize offices outside the Office of the President Proper but still within the Office of the President
is limited to merely transferring functions or agencies from the Office of the President to Departments
or Agencies, and vice versa."
The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative
code of 1987), above-referred to, reads thusly:
Sec. 31. Continuing Authority of the President to Reorganize his Office. — The
President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of the following
actions:
the immediate Offices, the Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing, consolidating or merging units thereof or
Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
agency as well as transfer agencies to the Office of the President from other
departments or agencies. IaDTES
The first sentence of the law is an express grant to the President of a continuing authority to
reorganize the administrative structure of the Office of the President. The succeeding numbered
paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant
to the President of the power to reorganize but are to be viewed in consonance therewith.
Section 31(1) of Executive order No. 292 specifically refers to the President's power to restructure
the internal organization of the Office of the President Proper, by abolishing, consolidating or merging
units hereof or transferring functions from unit to another, while Section 31(2) and (3) concern
executive offices outside the Office of the President Proper allowing the President to transfer
any function under the Office of the President to any other Department or Agency and vice
versa, and the transfer of any agency under the Office of the President to any other
department or agency and vice versa. (Emphasis supplied)
Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as
amended by P.D. No. 1772, the abstraction of the Truth Commission, as fortified by the President's
power to reorganize found in paragraph 2, Section 31 of the Administrative Code, is demonstrably
permitted.
That the Truth Commission is a derivative of the reorganization of the Office of the President
should brook no dissent. The President is not precluded from transferring and re-aligning the fact-finding
functions of the different Departments regarding certain and specific issues, because ultimately, the
President's authority to reorganize is derived from the power-and-duty nexus fleshed out in the two
powers granted to him in Section 17, Article VII of the Constitution. [25]
I earnestly believe that, even with this Court's expanded power of judicial review, we still cannot
refashion, and dictate on, the policy determination made by the President concerning what function, of
whichever Department, regarding specific issues, he may choose to directly assume and take
cognizance of. To do so would exceed the boundaries of judicial authority and encroach on an executive
prerogative. It would violate the principle of separation of powers, the constitutional guarantee that no
branch of government should arrogate unto itself those functions and powers vested by the Constitution
in the other branches. [26]
In fine, it is my submission that the Truth Commission is a public office validly created by the
President of the Philippines under authority of law, as an adjunct of the Office of the President — to
which the President has validly delegated the fact-finding and investigatory powers [of the Department
of Justice] which he had chosen to personally assume. Further, it is the product of the President's
exercise of the power to reorganize the Office of the President granted under the Administrative Code.
This conclusion inevitably brings to the threshold of our discussion the matter of the
"independence" of the Truth Commission, subject of an amusing exchange we had with the Solicitor
General during the oral argument, and to which the erudite Justice Arturo D. Brion devoted several
pages in his Separate Concurring Opinion. The word "independent," as used in E.O. No. 1, cannot be
understood to mean total separateness or full autonomy from the Office of the President. Being a
creation of the President of the Philippines, it cannot be totally dissociated from its creator. By the nature
of its creation, the Truth Commission is intimately linked to the Office of the President, and the Executive
Order, as it were, is the umbilical cord that binds the Truth Commission to the Office of the President.
The word "independent," used to describe the Commission, should be interpreted as an
expression of the intent of the President: that the Truth Commission shall be accorded the fullest
measure of freedom and objectivity in the pursuit of its mandate, unbound and uninhibited in the
performance of its duties by interference or undue pressure coming from the President. Our exchange
during the oral argument ended on this note: that while the Truth Commission is, technically, subject to
the power of control of the President, the latter has manifested his intention, as indicated in the
Executive Order, not to exercise the power over the acts of the Commission.
E.O. No. 1 and the Equal Protection Clause
Enshrined in Section 1, Article III of the Philippine Constitution is the assurance that all persons
shall enjoy the equal protection of the laws, expressed as follows: EDISTc
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws. (emphasis supplied)
The equality guaranteed under this clause is equality under the same conditions and among
persons similarly situated; it is equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be accomplished. [27] When things
or persons are different in fact or circumstances, they may be treated in law differently. On this score,
this Court has previously intoned that:
required of a valid classification should be based on substantial distinctions which make for real
differences; that it must be germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class. This Court has held that
the standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary. [28]
Thus, when a statute or executive action is challenged on the ground that it violates the equal protection
clause, the standards of judicial review are clear and unequivocal:
It is an established principle in constitutional law that the guaranty of the equal protection of
the laws is not violated by a legislation based on a reasonable classification. Classification, to be
valid, must: (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be
limited to existing conditions only; and (4) apply equally to all members of the same class. [29]
Further, in a more recent decision, we also declared:
In consonance thereto, we have held that "in our jurisdiction, the standard and analysis of
equal protection challenges in the main have followed the 'rational basis' test, coupled with a
deferential attitude to legislative classifications and a reluctance to invalidate a law unless
there is a showing of a clear and unequivocal breach of the Constitution." . . . .
Under this test, a legislative classification, to survive an equal protection challenge, must be
shown to rationally further a legitimate state interest. The classifications must be reasonable and rest
upon some ground of difference having a fair and substantial relation to the object of the legislation.
Since every law has in its favor the presumption of constitutionality, the burden of proof is on the one
attacking the constitutionality of the law to prove beyond reasonable doubt that the legislative
classification is without rational basis. The presumption of constitutionality can be overcome only by
the most explicit demonstration that a classification is a hostile and oppressive discrimination against
particular persons and classes, and that there is no conceivable basis which might support it. [30]
The "rational basis" test is one of three "levels of scrutiny" analyses developed by courts in
reviewing challenges of unconstitutionality against statutes and executive action. Carl Cheng, in his
dissertation, "Important Right and the Private Attorney General Doctrine," [31] enlightens us, thus:
[I]n the area of equal protection analysis, the judiciary has developed a 'level of scrutiny'
analysis for resolving the tensions inherent in judicial review. When engaging in this analysis, a court
subjects the legislative or executive action to one of three levels of scrutiny, depending on the class
of persons and the rights affected by the action. The three levels are rational basis scrutiny,
intermediate scrutiny, and strict scrutiny. If a particular legislative or executive act does not
survive the appropriate level of scrutiny, the act is held to be unconstitutional. If it does survive, it is
deemed constitutional. The three tensions discussed above and, in turn, the three judicial responses
to each, run parallel to these three levels of scrutiny. In response to each tension, the court applies a
specific level of scrutiny. AEIHCS
He goes on to explain these "levels of scrutiny", as follows:
The first level of scrutiny, rational basis scrutiny, requires only that the purpose of the
legislative or executive act not be invidious or arbitrary, and that the act's classification be reasonably
related to the purpose. Rational basis scrutiny is applied to legislative or executive acts that have the
general nature of economic or social welfare legislation. While purporting to set limits, rational basis
scrutiny in practice results in complete judicial deference to the legislature or executive. Thus, a
legislative or executive act which is subject to rational basis scrutiny is for all practical purposes
assured of being upheld as constitutional.
The second level of scrutiny, intermediate scrutiny, requires that the purpose of the legislative
or executive act be an important governmental interest and that the act's classification be
significantly related to the purpose. Intermediate scrutiny has been applied to classifications based
on gender and illegitimacy. The rationale for this higher level of scrutiny is that gender and
illegitimacy classifications historically have resulted from invidious discrimination. However,
compared to strict scrutiny, intermediate scrutiny's presumption of invidious discrimination is more
readily rebutted, since benign motives are more likely to underlie classifications triggering
intermediate scrutiny.
The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the legislative or
executive act's purpose be a compelling state interest and that the act's classification be narrowly
tailored to the purpose. Strict scrutiny is triggered in two situations: (1) where the act infringes on a
fundamental right; and (2) where the act's classification is based on race or national origin. While
strict scrutiny purports to be only a very close judicial examination of legislative or executive acts, for
all practical purposes, an act subject to strict scrutiny is assured of being held unconstitutional.
(Citations omitted.)
It is noteworthy that, in a host of cases, this Court has recognized the applicability of the foregoing tests.
Among them are City of Manila v. Laguio, Jr., [32] Central Bank Employees Association v. Bangko
Sentral ng Pilipinas, [33] and British American Tobacco v. Camacho, et al., [34] in all of which the Court
applied the minimum level of scrutiny, or the rational basis test.
It is important to remember that when this Court resolves an equal protection challenge against a
legislative or executive act, "[w]e do not inquire whether the [challenged act] is wise or desirable . . . .
Misguided laws may nevertheless be constitutional. Our task is merely to determine whether there is
'some rationality in the nature of the class singled out.'" [35]
Laws classify in order to achieve objectives, but the classification may not perfectly achieve the
objective. [36] Thus, in Michael M. v. Supreme Court of Sonoma County, [37] the U.S. Supreme Court
said that the relevant inquiry is not whether the statute is drawn as precisely as it might have been, but
whether the line chosen [by the legislature] is within constitutional limitations. The equal protection
clause does not require the legislature to enact a statute so broad that it may well be incapable of
enforcement. [38]
It is equally significant to bear in mind that when a governmental act draws up a classification, it
actually creates two classes: one consists of the people in the "statutory class" and the other consists
precisely of those people necessary to achieve the objective of the governmental action (the "objective
class").[39] ] It could happen that —
The "statutory class" may include "more" than is necessary in the classification to achieve the
objective. If so, the law is "over-inclusive." The classification may also include "less" than is
necessary to achieve the objective. If so, the statute is "under-inclusive." DEScaT
A curfew law, requiring all persons under age eighteen to be off the streets between the hours
of midnight and 6 a.m., presumably has as its objective the prevention of street crime by minors; this
is "over-inclusive" since the class of criminal minors (the objective class) is completely included in the
class of people under age eighteen (the statutory class), but many people under age eighteen are
not part of the class of criminal minors.
A city ordinance that bans streetcar vendors in a heavily visited "tourist quarter" of the city in
order to alleviate sidewalk and street congestion is "under-inclusive". All streetcar vendors (the
statutory class) contribute toward sidewalk and street congestion, but the class of people causing
sidewalk and street congestion (the objective class) surely includes many others as well.
It is rare if not virtually impossible for a statutory class and an objective class to coincide
perfectly. [40]
And, as the ponencia itself admits, "under-inclusion" or "over-inclusion, per se, is not enough reason to
invalidate a law for violation of the equal protection clause, precisely because perfection in classification
is not required. [41]
Thus, in the determination of whether the classification is invidious or arbitrary, its relation to the
purpose must be examined. Under the rational basis test, the presence of any plausible legitimate
objective for the classification, where the classification serves to accomplish that objective to any
degree, no matter how tiny, would validate the classification. To be invalidated on constitutional grounds,
the test requires that the classification must have one of the following traits: (1) it has absolutely no
conceivable legitimate purpose; or (2) it is so unconnected to any conceivable objective, that it is
absurd, utterly arbitrary, whimsical, or even perverse. [42]
Given the foregoing discussion on this constitutional guarantee of equal protection, we now
confront the question: Does the mandate of Executive Order No. 1, for the Truth Commission to
investigate "graft and corruption during the previous administration," violate the equal protection clause?
I answer in the negative.
First, because Executive Order No. 1 passes the rational basis test.
To repeat, the first level of scrutiny known as the rational basis test, requires only that the purpose
of the legislative or executive act not be invidious or arbitrary, and that the act's classification be
reasonably related to the purpose. The classification must be shown to rationally further a legitimate
state interest. [43] In its recent equal protection jurisprudence, the Court has focused primarily upon (1)
the "rationality" of the government's distinction, and (2) the "purpose" of that distinction.
To the point, we look at the definition of an executive order and the articulated purpose of E.O.
No. 1.
An executive order is an act of the President providing for rules in implementation or execution of
constitutional or statutory powers. [44] From this definition, it can easily be gleaned that E.O. No. 1 is
intended to implement a number of constitutional provisions, among others, Article XI, Section 1. In fact,
E.O. No. 1 is prefaced with the principle that "public office is a public trust" and "public officers and
employees, who are servants of the people, must at all time be accountable to the latter, serve them
modest lives."
What likewise comes to mind, albeit not articulated therein, is Article II, Section 27, of the 1987
Constitution, which declares that "[t]he State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and corruption." In addition, the immediately
following section provides: "[s]ubject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest." [45] There is
also Article XI, Section 1, which sets the standard of conduct of public officers, mandating that "[p]ublic
officers and employees must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."
There is, therefore, no gainsaying that the enforcement of these provisions, i.e., the fight against
corruption, is a compelling state interest. IcaHCS
Not only does the Constitution oblige the President to ensure that all laws be faithfully executed,
[46] but he has also taken an oath to preserve and defend the Constitution. [47] In this regard, the
President's current approach to restore public accountability in government service may be said to
involve a process, starting with the creation of the Truth Commission.
It is also no secret that various commissions had been established by previous Presidents, each
specifically tasked to investigate certain reports and issues in furtherance of state interest. Among the
latest of such commissions is the Zeñarosa Commission, empowered to investigate the existence of
private armies, as well as the Maguindanao Massacre. [48]
Under E.O. No. 1, the President initially classified the investigation of reports of graft and
corruption during the previous administration because of his avowed purpose to maintain the public trust
that is characteristic of a public office. The first recital (paragraph) of E.O. No. 1 does not depart
therefrom. The succeeding recitals (paragraphs) enumerate the causality of maintaining public office as
a public trust with corruption as "among the most despicable acts of defiance of this principle and
notorious violation of this mandate." Moreover, the President views corruption as "an evil and scourge
which seriously affects the political, economic, and social life of a nation." Thus, the incumbent President
has determined that the first phase of his fight against graft and corruption is to have reports thereof
during the previous administration investigated. There is then a palpable relation between the supposed
classification and the articulated purpose of the challenged executive order.
The initial categorization of the issues and reports which are to be the subject of the Truth
Commission's investigation is the President's call. Pursuing a system of priorities does not translate to
suspect classification resulting in violation of the equal protection guarantee. In his assignment of
priorities to address various government concerns, the President, as the Chief Executive, may initially
limit the focus of his inquiry and investigate issues and reports one at a time. As such, there is actually
no differential treatment that can be equated to an invalid classification.
E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because there is a claimed
inequality on its face or in the manner it is to be applied. On its face, there is actually no class created.
The ponencia harps on three provisions in the executive order directing the conduct of an investigation
into cases of large scale graft and corruption "during the previous administration." On that basis, the
ponencia concludes that there is invidious discrimination, because the executive order is focused only
on the immediate past administration.
I disagree. While the phrase "previous administration" alludes to persons, which may, indeed, be a
class within the equal protection paradigm, it is important to note that the entire phrase is "during the
previous administration," which connotes a time frame that limits the scope of the Commission's inquiry.
The phrase does not really create a separate class; it merely lays down the pertinent period of inquiry.
The limited period of inquiry, ostensibly (but only initially) excluding administrations prior to the
immediate past administration, is not, per se, an intentional and invidious discrimination anathema to a
valid classification. Even granting that the phrase creates a class, E.O. No. 1 has not, as yet, been given
any room for application, since barely a few days from its issuance, it was subjected to a constitutional
challenge. We cannot allow the furor generated by this controversy over the creation of the Truth
Commission to be an excuse to apply the strict scrutiny test, there being no basis for a facial challenge,
nor for an "as-applied" challenge.
To reiterate for emphasis, the determination of the perceived instances of graft and corruption that
ought to claim priority of investigation is addressed to the executive, as it involves a policy decision. This
determination must not to be overthrown simply because there are other instances of graft and
corruption which the Truth Commission should also investigate. [49] In any event, Section 17 of E.O. No.
1 responds to this objection, when it provides: SICaDA
Order.
It may also be pointed out that E.O. No. 1 does not confer a right nor deprive anyone of the
exercise of his right. There is no right conferred nor liability imposed that would constitute a burden on
fundamental rights so as to justify the application of the strict scrutiny test. A fact-finding investigation of
certain acts of public officers committed during a specific period hardly merits this Court's distraction
from its regular functions. If we must exercise the power of judicial review, then we should use the
minimum level of scrutiny, the rational basis test.
On more than one occasion, this Court denied equal protection challenges to statutes without
evidence of a clear and intentional discrimination. [50] The pervasive theme in these rulings is a claim of
discriminatory prosecution, not simply a claim of discriminatory investigation. In People v. Piedra, [51] we
explained:
The prosecution of one guilty person while others equally guilty are not prosecuted, however,
is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty,
although a violation of the statute, is not without more a denial of the equal protection of the laws.
The unlawful administration by officers of a statute fair on its face, resulting in its unequal application
to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful discrimination. This may appear on the face
of the action taken with respect to a particular class or person, or it may only be shown by extrinsic
evidence showing a discriminatory design over another not to be inferred from the action itself. But a
discriminatory purpose is not presumed, there must be a showing of "clear and intentional
discrimination." Appellant has failed to show that, in charging appellant in court, that there was a
"clear and intentional discrimination" on the part of the prosecuting officials.
The discretion of who to prosecute depends on the prosecution's sound assessment whether
the evidence before it can justify a reasonable belief that a person has committed an offense. The
presumption is that the prosecuting officers regularly performed their duties, and this
presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed,
appellant has not presented any evidence to overcome this presumption. The mere allegation that
appellant, a Cebuana, was charged with the commission of a crime, while a Zamboangueña, the
guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution
officers denied appellant equal protection of the laws. There is also common sense practicality in
sustaining appellant's prosecution.
While all persons accused of crime are to be treated on a basis of equality before the law, it
does not follow that they are to be protected in the commission of crime. It would be unconscionable,
for instance, to excuse a defendant guilty of murder because others have murdered with impunity.
The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of
the guilty at the expense of society . . . . Protection of the law will be extended to all persons equally
in the pursuit of their lawful occupations, but no person has the right to demand protection of the law
in the commission of a crime.
Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should
be converted into a defense for others charged with crime, the result would be that the trial of the
district attorney for nonfeasance would become an issue in the trial of many persons charged with
heinous crimes and the enforcement of law would suffer a complete breakdown. (emphasis
supplied.)
Evidently, the abstraction of the President's power to directly prosecute crimes, hand in hand with
his duty to faithfully execute the laws, carries with it the lesser power of investigation. To what extent,
then, should this Court exercise its review powers over an act of the President directing the conduct of a
fact-finding investigation that has not even commenced? These are clearly issues of wisdom and policy.
Beyond what is presented before this Court, on its face, the rest remains within the realm of speculation.
It bears stressing that by tradition, any administration's blueprint for governance covers a wide
range of priorities. Contrary to the ponencia's conclusion, such a roadmap for governance obviously
entails a "step by step" process in the President's system of priorities. TAHIED
Viewed in this context, the fact that the "previous administration" was mentioned thrice in E.O. No.
1, as pointed out by the ponencia, is not "purposeful and intentional discrimination" which violates the
equal protection clause. Such a circumstance does not demonstrate a "history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to command extraordinary
protection from the majoritarian political process." [52] It simply has to be taken in the light of the
President's discretion to determine his government's priorities.
It, therefore, remains unclear how the equal protection clause is violated merely because the E.O.
does not specify that reports of large scale graft and corruption in other prior administrations should
likewise be investigated. Notably, the investigation of these reports will not automatically lead to
prosecution, as E.O No. 1 only authorizes the investigation of certain reports with an accompanying
recommended action.
The following provisions of the executive order are too clear to brook objection:
1. 5th Whereas Clause
2. Section 1

TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by
the public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
3. Section 2
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
thereafter submit its finding and recommendation to the President, Congress and the Ombudsman.
Second, petitioners do not even attempt to overthrow the presumption of constitutionality of

executive acts. They simply hurl pastiche arguments hoping that at least one will stick.
In any imputed violations of the equal protection clause, the standard of judicial review is always
prefaced by a presumption of constitutionality:
As this Court enters upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is
the time-honored principle that statute is presumed to be valid. This presumption is rooted in the
doctrine of separation of powers which enjoins upon the three coordinate departments of the
Government a becoming courtesy for each other's acts. Hence, to doubt is to sustain. The theory is
that before the act was done or the law was enacted, earnest studies were made by Congress, or the
President, or both, to insure that the Constitution would not be breached. This Court, however, may
declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and
unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words,
before a statute or a portion thereof may be declared unconstitutional, it must be shown that the
statute or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to
leave no doubt or hesitation in the mind of the Court. [53]
Clearly, the acts of the President, in the exercise of his or her power, is preliminarily presumed
constitutional such that the party challenging the constitutionality thereof (the executive act) on equal
protection grounds bears the heavy burden of showing that the official act is arbitrary and capricious. [54]
Indeed, laws or executive orders, must comply with the basic requirements of the Constitution,
and as challenged herein, the equal protection of the laws. Nonetheless, only in clear cases of invalid
classification violative of the equal protection clause will this Court strike down such laws or official
actions.
Third, petitioner Members of the House of Representatives are not proper parties to challenge the
constitutionality of E.O. No. 1 on equal protection grounds. Petitioner Members of the House of
Representatives cannot take up the lance for the previous administration. Under all three levels of
scrutiny earlier discussed, they are precluded from raising the equal protection of the laws challenge.
The perceptive notation by my esteemed colleague, Justice Carpio Morales, in her dissent, comes to life
when she observes that petitioner Members of the House of Representatives cannot vicariously invoke
violation of equal protection of the laws. Even assuming E.O. No. 1 does draw a classification, much
less an unreasonable one, petitioner Members of the House of Representatives, as well as petitioner
Biraogo, are not covered by the supposed arbitrary and unreasonable classification. cdasia
If we applied both intermediate and strict scrutiny, the nakedness of petitioners' arguments are
revealed because they do not claim violation of any of their fundamental rights, nor do they cry
discrimination based on race, gender and illegitimacy. Petitioners' equal protection clause challenge
likewise dissolves when calibrated against the purpose of E.O. No. 1 and its supposed classification of
the administration which the Truth Commission is tasked to investigate. Nowhere in the pleadings of
petitioners and their claim of violation of separation of powers and usurpation of legislative power by the
executive is it established how such violation or usurpation translates to violation by E.O. No. 1 of the
equal protection of the laws. Thus, no reason exists for the majority to sustain the challenge of equal
protection if none of the petitioners belong to the class, claimed by the majority to be, discriminated
against.
Finally, I wish to address the proposition contained in Justice Brion's concurrence — the creation
of the Truth Commission has a reasonable objective, albeit accomplished through unreasonable means.
According to him, E.O. No. 1 is objectionable on due process grounds as well. He propounds that the
"truth-telling" function of the Truth Commission violates due process because it primes the public to
accept the findings of the Commission as actual and gospel truth.
Considering all the foregoing discussion, I must, regrettably, disagree with the suggestion.
Peculiar to our nation is a verbose Constitution. Herein enshrined are motherhood statements —
exhortations for public officers to follow. A quick perusal of E.O. No. 1 bears out a similar intonation.
Although the Solicitor General may have made certain declarations, read as admissions by the other
Members of this Court, these cannot bind the Supreme Court in interpreting the constitutional grant of
executive power. The matter is simply a failure of articulation which cannot be used to diminish the
power of the executive. On the whole, the erroneous declarations of the Solicitor General, preempting
and interpreting the President's exercise of executive power beyond the articulated purpose of E.O. No.
1, is not equivalent to the wrongful exercise by the President of executive power.
Let me then close this dissertation with Marcos v. Manglapus [55] which trailblazed and redefined
the extent of judicial review on the powers of the co-equal branches of government, in particular,
executive power:
Under the Constitution, judicial power includes the duty to "determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the party of any
branch or instrumentality of the Government." . . .
The present Constitution limits resort to the political question doctrine and broadens the scope
of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to
the political departments to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination which is exclusively for the President, for Congress or for the people
themselves through a plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a
dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberation of the Constitutional Commission cited by petitioners show that
the framers intended to widen the scope of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political questions are involved, the Constitution
limits the determination to whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would
appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there has been a grave
abuse of discretion on the part of any branch or instrumentality of the government, incorporates in
the fundamental law the ruling in Lansang v. Garcia that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of
separation of powers underlying our system of government, the Executive is supreme within
his own sphere. However, the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege, but only if and when he acts
within the sphere allotted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. ADHCSE
In the exercise of such authority, the function of the Court is merely to check — not to
supplant — the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act.
It is for the foregoing reasons that I vote to DISMISS the petitions.
LEONARDO-DE CASTRO, J., concurring:
I concur in the result of the ponencia of Justice Jose Catral Mendoza and join the separate
opinions of my colleagues, Chief Justice Renato C. Corona, Justice Arturo D. Brion and Justice Jose
Portugal Perez. I vote to declare Executive Order No. 1 (EO No. 1) unconstitutional, as a well-
intentioned, but ill-devised, presidential issuance that transgresses the boundaries of executive power
and responsibility set by the Constitution and our laws. CSHDTE
While I agree with the majority consensus that equal protection is an issue that must be resolved
in these consolidated petitions, the weightier legal obstacles to the creation of the Philippine Truth
Commission (the Commission) by executive order deserve greater attention in this discussion.
If the Commission created by EO No. 1 were a living person, it would be suffering from the most
acute identity crisis. Is it an independent body? Is it a mere ad hoc fact-finding body under the control of
the President? And in either case, what legal repercussion does its creation have on our constitutionally
and statutorily developed system for investigating and prosecuting graft and corruption cases?
Indeed, from the answers to these questions, it becomes evident that those who have designed
this constitutional anomaly designated as a "truth commission" have painted themselves into a legal
corner with no escape.
If the Commission is an office independent of the President, then its creation by executive fiat is
unconstitutional.
The concept of a "truth commission" in other jurisdictions has a primordial characteristic —
independence. As a body created to investigate and report on the "truth" of historical events (ordinarily
involving State violations of human rights en masse) in a country in transition from an authoritarian
regime to a democratic one or from a conflict situation to one of peace, the freedom of the members of
the truth commission from any form of influence is paramount to ensure the credibility of any findings it
may make.
Thus, "truth commissions" have been described in this wise: cIaCTS
Truth commissions are non-judicial, independent panels of inquiry typically set up to

establish the facts and context of serious violations of human rights or of international humanitarian
law in a country's past. Commissions' members are usually empowered to conduct research, support
victims, and propose policy recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional
reforms. Most commissions focus on victims' needs as a path toward reconciliation and reducing
conflict about what occurred in the past. [1] (Emphases supplied.)
Notably, the Office of the United Nations High Commissioner for Human Rights likewise lists
operational independence as one of the core principles in the establishment of a truth commission:
The legitimacy and public confidence that are essential for a successful truth commission
process depend on the commission's ability to carry out its work without political interference.
Once established, the commission should operate free of direct influence or control by the
Government, including in its research and investigations, budgetary decision-making, and in
its report and recommendations. Where financial oversight is needed, operational independence
should be preserved. Political authorities should give clear signals that the commission will be
operating independently. [2] (Emphases supplied.) AcISTE
With due respect, I disagree with Justice Antonio T. Carpio's opinion that the naming of the body
created by EO No. 1 as the "Philippine Truth Commission" was a mere attempt to be novel, to depart
from the tired and repetitious scheme of naming a commission after its appointed head/leader or of
calling it a "fact-finding" body. Obviously, the title given to the Commission is meant to convey the
message that it is independent of the Office of the President.
Those who dissent from the majority position gloss over the fact that EO No. 1 itself expressly
states that the Commission's members shall "act as an independent collegial body." [3] During oral
arguments, the Solicitor General confirmed that what EO No. 1 intended is for the Commission to be an
independent body over which the President has no power of control. [4] The Solicitor General further
claimed that one of the functions of the Commission is "truth-telling." Verily, the creation of the Philippine
Truth Commission and its naming as such were done as a deliberate reference to the tradition of
independent truth commissions as they are conceived in international law, albeit adapted to a particular
factual situation in this jurisdiction.
If this Philippine Truth Commission is an office independent of the President and not subject to the
latter's control and supervision, then the creation of the Commission must be done by legislative action
and not by executive order. It is undisputed that under our constitutional framework only Congress has
the power to create public offices and grant to them such functions and powers as may be necessary to
fulfill their purpose. Even in the international sphere, the creation of the more familiar truth commissions
has been done by an act of legislature. [5]
Neither can the creation of the Commission be justified as an exercise of the delegated legislative
authority of the President to reorganize his office and the executive department under Section 31,
Chapter 10, Title III, Book III of the Administrative Code of 1987. The acts of reorganization authorized
under said provision are limited to the following: cCTaSH
SEC. 31. Continuing Authority of the President to Reorganize his Office. — The President,
efficiency, shall have continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the following actions:
Common Support System, by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another;
Agencies; and
agency as well as transfer agencies to the Office of the President from other Departments or
Agencies. (Emphases supplied.)
There is nothing in EO No. 1 that indicates that the Commission is a part of the executive
department or of the Office of the President Proper. Indeed, it is Justice Carpio who suggests that the
President may appoint the commissioners of the Philippine Truth Commission as presidential special
assistants or advisers in order that the Commission be subsumed in the Office of the President Proper
and to clearly place EO No. 1 within the ambit of Section 31. To my mind, the fact that the
commissioners are proposed to be appointed as presidential advisers is an indication that the Philippine
Truth Commission was initially planned to be independent of the President and the subsequent
appointment of the commissioners as presidential advisers will be merely curative of the patent defect in
the creation of the Commission by an Executive Order, as an independent body. HEIcDT
I agree with Justice Brion that what EO No. 1 sought to accomplish was not a mere reorganization
under the delegated legislative authority of the President. The creation of the Philippine Truth
Commission did not involve any restructuring of the Office of the President Proper nor the transfer of
any function or office from the Office of the President to the various executive departments and vice-
versa. The Commission is an entirely new specie of public office which, as discussed in the concurring
opinions, is not exercising inherently executive powers or functions but infringing on functions reserved
by the Constitution and our laws to other offices.
If the Commission is under the control and supervision of the President, and not an independent
body, the danger that the Commission may be used for partisan political ends is real and not
imagined.
For the sake of argument, let us accept for the moment the propositions of our dissenting
colleagues that:
(a) The Commission is not a separate public office independent of the President;
(b) The Commission is an executive body (or a part of the Office of the President Proper)
that may be created by the President through an executive order under Section 31;
and
(c) The Commission is merely an ad hoc fact-finding body intended to apprise the
President of facts that will aid him in the fulfillment of his duty to ensure the faithful
execution of the laws.
If the foregoing statements are true, then what EO No. 1 created is a body under the control and
supervision of the President. In fact, if the commissioners are to be considered special advisers to the
President, the Commission would be a body that serves at the pleasure of the President. Proponents
who support the creation of the Commission in the manner provided for under EO No. 1 should drop all
arguments regarding the purported independence and objectivity of the proceedings before it. acCETD
Indeed, EO No. 1 itself is replete with provisions that indicate that the existence and operations of
the Commission will be dependent on the Office of the President. Its budget shall be provided by the
Office of the President [6] and therefore it has no fiscal autonomy. The reports of the Commission shall
be published upon the directive of the President. [7] Further, if we follow the legal premises of our
dissenting colleagues to their logical conclusion, then the Commission as a body created by executive
order may likewise be abolished (if it is part of the Presidential Special Assistants/Advisers System of
the Office of the President Proper) or restructured by executive order. EO No. 1 may be amended,
modified, and repealed all by executive order. More importantly, if the Commission is subject to the
power of control of the President, he may reverse, revise or modify the actions of the Commission or
even substitute his own decision for that of the Commission.
Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically
"neutral" so as to assure a completely impartial conduct of its purported fact-finding mandate. I further
concur with Chief Justice Corona that attempts to "sugar coat" the Philippine Truth Commission's
functions as "harmless" deserve no credence.
The purported functions to be served by the Commission, as the concurring opinions vividly
illustrate, will subvert the functions of the Ombudsman and the constitutional and statutory
developed criminal justice system.
First, it is apparent on the face of EO No. 1 that in general "it is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption [of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people], involving third level
public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration." [8] I agree with the Chief Justice's proposition that there is no
law authorizing the President to create a body to investigate persons outside the executive department
in relation to graft and corruption cases, concurrently with the Office of the Ombudsman which has such
express legal authority. Indeed, even in jurisprudence, the instances when the power of the President to
investigate and create ad hoc committees for that purpose were upheld have been usually related to his
power of control and discipline over his subordinates or his power of supervision over local government
units. HSaCcE
In Ganzon v. Kayanan, [9] a case involving the investigation of a mayor, we held that the power of
the President to remove any official in the government service under the Revised Administrative Code
and his constitutional power of supervision over local governments were the bases for the power of the
President to order an investigation of any action or the conduct of any person in the government service,
and to designate the official committee, or person by whom such investigation shall be conducted.
In Larin v. Executive Secretary, [10] where the petitioner subject of the investigation was an
Assistant Commissioner in the Bureau of Internal Revenue, we held that:
Being a presidential appointee, he comes under the direct disciplining authority of the
President. This is in line with the well settled principle that the "power to remove is inherent in the
power to appoint" conferred to the President by Section 16, Article VII of the Constitution. Thus, it is
ineluctably clear that Memorandum Order No. 164, which created a committee to investigate
the administrative charge against petitioner, was issued pursuant to the power of removal of
the President. . . . . [11] (Emphases supplied.)
In a similar vein, it was ruled in Joson v. Executive Secretary, [12] that:
The power of the President over administrative disciplinary cases against elective local
officials is derived from his power of general supervision over local governments. Section 4, Article X
of the 1987 Constitution provides:
Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. Provinces with respect to component cities and municipalities, and cities
and municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions." cITAaD
The power of supervision means "overseeing or the authority of an officer to see that
the subordinate officers perform their duties". If the subordinate officers fail or neglect to fulfill
their duties, the official may take such action or step as prescribed by law to make them perform their
duties. The President's power of general supervision means no more than the power of
ensuring that laws are faithfully executed, or that subordinate officers act within the law.
Supervision is not incompatible with discipline. And the power to discipline and ensure that the
laws be faithfully executed must be construed to authorize the President to order an
investigation of the act or conduct of local officials when in his opinion the good of the public
service so requires. [13] (Emphases ours.)
Still on the same point, Department of Health v. Camposano [14] likewise discussed that:
The Chief Executive's power to create the Ad Hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to
which respondents belong, the President has the obligation to ensure that all executive officials
and employees faithfully comply with the law. With AO 298 as mandate, the legality of the
investigation is sustained. Such validity is not affected by the fact that the investigating team and the
PCAGC had the same composition, or that the former used the offices and facilities of the latter in
conducting the inquiry. [15] (Emphases supplied.) DAaEIc
Second, the functions of the Commission, although ostensibly only recommendatory, are basically
prosecutorial in nature and not confined to objective fact finding. EO No. 1 empowers the Commission
to, among others:
SECTION 2. ....
xxx xxx xxx
(b) Collect, receive, review and evaluate evidence related to or regarding the cases of
or employee of the Executive Branch, including government-owned or controlled corporations, to
xxx xxx xxx
(g) Turn over from time to time, for expeditious prosecution to the appropriate
laws. (Emphasis ours.)
I agree with Justice Perez that the aforementioned functions run counter to the very purpose for
the creation of the Office of the Ombudsman, to constitutionalize a politically independent office
responsible for public accountability as a response to the negative experience with presidential
commissions. His discussion on the constitutional history of the Office of the Ombudsman and the
jurisprudential bases for its primary jurisdiction over cases cognizable by the Sandiganbayan (i.e.,
specific offenses, including graft and corruption, committed by public officials as provided for in
Presidential Decree No. 1606, as amended) is apropos indeed.
I likewise find compelling Justice Brion's presentation regarding the Commission's "truth-telling"
function's potential implications on due process rights and the right to a fair trial and the likelihood of
duplication of, or interference with, the investigatory or adjudicatory functions of the Ombudsman and
the courts. I need not repeat Justice Brion's comprehensive and lucid discussion here. However, I do
find it fitting to echo here former Chief Justice Claudio Teehankee, Sr.'s dissenting opinion in Evangelista
v. Jarencio, [16] the oft-cited authority for the President's power to investigate, where he stated that: cESDCa
The thrust of all this is that the State with its overwhelming and vast powers and resources
can and must ferret out and investigate wrongdoing, graft and corruption and at the same
time respect the constitutional guarantees of the individual's right to privacy, silence and due
process and against self-incrimination and unreasonable search and seizure. . . . . [17]
(Emphases ours.)
The constitutional mandate for public accountability and the present administration's noble
purpose to curb graft and corruption simply cannot justify trivializing individual rights equally protected
under the Constitution. This Court cannot place its stamp of approval on executive action that is
constitutionally abhorrent even if for a laudable objective, and even if done by a President who has the
support of popular opinion on his side. For the decisions of the Court to have value as precedent, we
cannot decide cases on the basis of personalities nor on something as fickle and fleeting as public
sentiment. It is worth repeating that our duty as a Court is to uphold the rule of law and not the rule of
men.
Concluding Statement
Section 1, Article VIII of the 1987 Constitution provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.
Undeniably, from the foregoing, judicial review is not only a power but a constitutional duty of the
courts. The framers of our Constitution found an imperative need to provide for an expanded scope of
review in favor of the "non-political" courts as a vital check against possible abuses by the political
branches of government. For this reason, I cannot subscribe to Justice Maria Lourdes Sereno's view
that the Court's exercise of its review power in this instance is tantamount to supplanting the will of the
electorate. A philosophical view that the exercise of such power by the Judiciary may from a certain
perspective be "undemocratic" is not legal authority for this Court to abdicate its role and duty under the
Constitution. It also ignores the fact that it is the people by the ratification of the Constitution who has
given this power and duty of review to the Judiciary.
The insinuations that the members of the majority are impelled by improper motives, being
countermajoritarian and allowing graft and corruption to proliferate with impunity are utterly baseless.
Not only are these sort of ad hominem attacks and populist appeals to emotion fallacious, they are
essentially non-legal arguments that have no place in a debate regarding constitutionality. At the end of
the day, Justices of this Court must vote according to their conscience and their honest belief of what
the law is in a particular case. That is what gives us courage to stand by our actions even in the face of
the harshest criticism. Those who read our opinions, if they are truly discerning, will be able to determine
if we voted on points of law and if any one of us was merely pandering to the appointing power.
Needless to say, this Court will fully support the present administration's initiatives on
transparency and accountability if implemented within the bounds of the Constitution and the laws that
the President professes he wishes to faithfully execute. Unfortunately, in this instance, EO No. 1 fails
this ultimate legal litmus test. HDICSa
PERALTA, J., concurring:
On July 30, 2010, President Benigno Simeon C. Aquino III issued Executive Order (E.O.) No. 1
creating the Philippine Truth Commission of 2010 (Truth Commission), which is "primarily tasked to
conduct a thorough fact-finding investigation of reported cases of graft and corruption . . . involving third
level public officers and higher, their co-principals, accomplices and accessories from the private sector,
if any, during the previous administration and thereafter submit its findings and recommendations to the
President, Congress and the Ombudsman."
Petitioners filed their respective petitions questioning the constitutionality of E.O. No. 1. In G.R.
No. 193036, petitioners, as members of the House of Representatives, have legal standing to impugn
the validity of E.O. No. 1, since they claim that E.O. No. 1 infringes upon their prerogatives as
legislators. [1] In G.R. No. 192935, petitioner, who filed his petition as a taxpayer, may also be accorded
standing to sue, considering that the issues raised are of transcendental importance to the public. [2]
The people await the outcome of the President's effort to implement his pledge to find out the truth and
provide closure to the reported cases of graft and corruption during the previous administration. The
constitutional issues raised by petitioners seek the determination of whether or not the creation of the
Truth Commission is a valid exercise by the President of his executive power.
Petitioners contend that E.O. No. 1 is unconstitutional, because only Congress may create a
public office, pursuant to Section 1, Article VI of the Constitution. [3]
Respondents, through the Office of the Solicitor General (OSG), counter that the issuance of E.O.
No. 1 is mainly supported by Section 17, Article VII of the Constitution, [4] Section 31, Title III, Book III of
E.O. No. 292, and Presidential Decree (P.D.) No. 1416, as amended by P.D. No. 1772.
Quoted in E.O. No. 1 as the legal basis for its creation is Section 31, Title III, Book III of E.O. No.
292, otherwise known as the Revised Administrative Code of 1987, which provides:
SEC. 31. Continuing Authority of the President to Reorganize his Office. — The
of the President. For this purpose, he may take any of the following actions:
Common Staff Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; aCHDAE
(2) Transfer any function under the Office of the President to any other Department
or Agency as well as transfer functions to the Office of the President from other Departments
and Agencies; and
(3) Transfer any agency under the Office of the President to any other department
or agency as well as transfer agencies to the Office of the President from other departments
and agencies.
In Bagaoisan v. National Tobacco Administration, [5] the Court held that the first sentence of
the law is an express grant to the President of a continuing authority to reorganize the administrative
structure of the Office of the President. Section 31 (1) of Executive Order No. 292 specifically refers to
the President's power to restructure the internal organization of the Office of the President Proper, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another. [6]
Section 31 (2) and (3) concern executive offices outside the Office of the President Proper allowing the
President to transfer any function under the Office of the President to any other department or agency
and vice-versa, and the transfer of any agency under the Office of the President to any other department
or agency and vice-versa. [7]
Thus, the reorganization in Section 31 involves abolishing, consolidating or merging units in the
Office of the President Proper or transferring functions from one unit to another in the Office of the
President Proper, and the transfer of any function or any agency under the Office of the President to any
other department or agency and vice-versa. Nowhere is it stated that the President can create an office
like the Truth Commission, which does not result from any reorganization under Section 31. Hence, the
said section cannot be used to justify the creation of the Truth Commission.
Moreover, in its Comment, the OSG stated that one of the bases for the creation of E.O. No. 1 is
P.D. No. 1416, as amended by P.D. No. 1772, which amendment was enacted by President Ferdinand
E. Marcos on January 15, 1981.
P.D. No. 1416, as amended, is inapplicable as basis in the creation of the Truth Commission,
since it was intended by President Ferdinand E. Marcos to promote efficiency and flexibility in the
organization of the national government to strengthen the government bureaucracy when the
government was in the transition from presidential to the parliamentary form of government. This is
evident in the preamble of P.D. No. 1416, [8] which states:
WHEREAS, the transition toward the parliamentary form of government will necessitate
flexibility in the organization of the national government; . . . [9]
The OSG admitted during the oral argument [10] that the 1987 Constitution ended the power of
the President to reorganize the national government. It is noted that President Ferdinand E. Marcos
exercised legislative power concurrently with the interim Batasang Pambansa (1976) and, subsequently,
with the regular Batasang Pambansa (1984). [11] After the February 1986 revolution, President Corazon
C. Aquino assumed revolutionary legislative power, and issued Proclamation No. 3, the Provisional
Freedom Constitution. Section 3, Article I of Proclamation No. 3 abolished the Batasang Pambansa,
while Section 1, Article II of the said Proclamation vested legislative power in the President until a
legislature would be elected and convened under a new Constitution. Thus, Section 6, Article XVIII
(Transitory Provisions) of the 1987 Constitution provides that "[t]he incumbent President (President
Corazon Aquino) shall continue to exercise legislative powers until the first Congress is convened." [12]
In view of the foregoing, the decision in Larin v. Executive Secretary [13] insofar as P.D. No.
1416, as amended by P.D. No. 1772, is cited as a law granting the President the power to reorganize,
needs to be re-examined. DCATHS
Assuming that P.D. No. 1416, as amended, is still a valid law, it cannot be the basis of the creation
of the Truth Commission, because all the cases, from Larin v. Executive Secretary; [14] Buklod ng
Kawaning EIIB v. Zamora; [15] Secretary of the Department of Transportation and
Communications v. Mabalot; [16] Bagaoisan v. National Tobacco Administration; [17] Department
of Environment and Natural Resources v. DENR Region 12 Employees; [18] Tondo Medical Center
Employees Association v. Court of Appeals; [19] Malaria Employees and Workers Association of
the Philippines, Inc. (MEWAP) v. Romulo [20] to Banda v. Ermita, [21] which cited P.D. No. 1416, as
amended, as a basis to reorganize, involved reorganization or streamlining of an agency of the
Executive Department. However, the Truth Commission was not created for streamlining purposes.
The purpose of reorganization under P.D. No. 1416, as amended by P.D. No. 1772, is to "promote
simplicity, economy and efficiency in the government to enable it to pursue programs consistent with
national goals for accelerated social and economic development, and to improve upon the services of
the government in the transaction of the public business."
The creation of the Truth Commission, however, is not to promote simplicity, economy and
efficiency in the government. The Truth Commission is primarily tasked to conduct fact-finding
investigation of reported cases of graft and corruption involving third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if any, during the previous
administration of President Gloria Macapagal-Arroyo, which separate investigative body, as stated in the
preamble, "will recommend the prosecution of the offenders and secure justice for all." It is, in part, the
implementation of the pledge of President Benigno Aquino, Jr. during the last election that if elected, he
would end corruption and the evil it breeds.
In its Memorandum, the OSG justifies the power of the President to create the Truth Commission
based on his authority to create ad hoc fact-finding committees or offices within the Office of the
President, which authority is described as an adjunct of his plenary executive power under Section 1
and his power of control under Section 17, both of Article VII of the Constitution. [22] It cited the case of
Department of Health v. Camposano, [23] which held:
inquiry.
To clarify, the power of control is "the power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to substitute the judgment of
the former for that of the latter;" [24] hence, it cannot be the basis of creating the Truth Commission.
The ponencia justifies the creation of the Truth Commission based on the President's duty to
ensure that the laws be faithfully executed under Section 17, Article VII of the Constitution, thus:
Sec. 17. The President shall have control of all executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. [25]
According to the ponencia, to ascertain if laws are faithfully executed, the President has the power
to create ad hoc investigating committees, which power has been upheld in Department of Health v.
Camposano. [26] In the said case, some concerned employees of the Department of Health (DOH)-
National Capital Region (NCR) filed a complaint before the DOH Resident against certain officers of the
DOH arising from alleged anomalous purchase of medicines. The Resident Ombudsman submitted an
investigation report to the Secretary of Health recommending the filing of a formal administrative charge
of Dishonesty and Grave Misconduct against the respondents. Subsequently, the Secretary of Health
filed a formal charge against the respondents for Grave Misconduct, Dishonesty, and Violation of
Republic Act No. 3019. Thereafter, the Executive Secretary issued Administrative Order No. 298,
creating an ad hoc committee to investigate the administrative case filed against the DOH-NCR
employees. The said Administrative Order was indorsed to the Presidential Commission Against Graft
and Corruption (PCAGC), which found the respondents guilty as charged and recommended their
dismissal from the government. However, the Court overturned the dismissal of respondents by the
Secretary of DOH, because respondents were denied due process, but it declared valid the creation of
the ad hoc committee, thus: ACETID
. . . The investigation was authorized under Administrative Order No. 298 dated October 25,
1996, which had created an Ad Hoc Committee to look into the administrative charges filed against
Director Rosalinda U. Majarais, Priscilla G. Camposano, Horacio D. Cabrera, Imelda Q. Agustin and
Enrique L. Perez.
The Investigating Committee was composed of all the members of the PCAGC: Chairman
Eufemio C. Domingo, Commissioner Dario C. Rama and Commissioner Jaime L. Guerrero. The
Committee was directed by AO 298 to "follow the procedure prescribed under Section 38 to 40 of the
Civil Service Law (PD 807), as amended." It was tasked to "forward to the Disciplining Authority the
entire records of the case, together with its findings and recommendations, as well as the draft
decision for the approval of the President."
inquiry. [27]
The ponencia stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow
inquiry into matters which the President is entitled to know so that he can be properly advised and
guided in the performance of his duties relative to the execution and enforcement of the laws of the land.
The ponencia stated that this was also the objective of investigative bodies created in the past like the
PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. Hence, the ponencia held that the President's power to create investigative bodies cannot
be denied.
Albeit the President has the power to create ad hoc committees to investigate or inquire into
matters for the guidance of the President to ensure that the laws be faithfully executed, I am of the view
that the Truth Commission was not created in the nature of the aforementioned 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 investigating bodies in Department of Health v. Camposano
and Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, [28] the members of
an ad hoc investigative body are heads and representatives of existing government offices, depending
on the nature of the subject matter of the investigation. The ad hoc investigating body's functions are
primarily fact-finding/investigative and recommendatory in nature. [29]
In this case, the members of the Truth Commission are not officials from existing government
offices. Moreover, the Truth Commission has been granted powers of an independent office as follows:
1. Engage or contract the services of resource persons, professionals and other

personnel determined by it as necessary to carry out its mandate; [30]
2. Promulgate its rules and regulations or rules of procedure it deems necessary to

effectively and efficiently carry out the objectives of this Executive Order and to ensure
the orderly conduct of its investigations, proceedings and hearings, including the
presentation of evidence. [31]
3. The Truth Commission shall have the power to engage the services of experts as
consultants or advisers as it may deem necessary to accomplish its mission. [32]
In addition, the Truth Commission has coercive powers such as the power to subpoena
witnesses. [33] Any government official or personnel who, without lawful excuse, fails to appear upon
subpoena issued by the Commission or who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when required, shall be subject to
administrative disciplinary action. [34] Any private person who does the same may be dealt with in
accordance with law. [35] Apparently, the grant of such powers to the Truth Commission is no longer part
of the executive power of the President, as it is part of law-making, which legislative power is vested in
[36]
Congress. There are only two instances in the Constitution wherein Congress may delegate its law-
making authority to the President: [37] SHADEC
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.
Article VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall
evolve a progressive system of taxation.
(2) The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts within the framework
of the national development program of the government. [38]
Although the President may create investigating bodies to help him in his duty to ensure that the
laws are faithfully executed, he cannot be allowed to encroach on or usurp the law-making power of the
Legislature in the creation of such investigative bodies.
Moreover, the Truth Commission's function is questioned on the ground that it duplicates, if not
supersedes, the function of the Office of the Ombudsman. The OSG avers that the Ombudsman's power
to investigate is not exclusive, but is shared with other similarly authorized agencies, citing
Ombudsman v. Galicia. [39]
Based on Section 2 of E.O. No. 1, the powers and functions of the Truth Commission do not
supplant the powers and functions of the Ombudsman. [40] Nevertheless, what is the use of the Truth
Commission if its power is merely recommendatory? Any finding of graft and corruption by the Truth
Commission is still subject to evaluation by the Office of the Ombudsman, as it is only the Office of the
Ombudsman that is empowered to conduct preliminary investigation, determine the existence of
probable cause and prosecute the case. Hence, the creation of the Truth Commission will merely be a
waste of money, since it duplicates the function of the Office of the Ombudsman to investigate reported
cases of graft and corruption.
Further, E.O. No. 1 violates that equal protection clause enshrined in the Constitution. The
guarantee of equal protection of the laws means that no person or class of persons shall be denied the
same protection of laws which is enjoyed by other persons or other classes in like circumstances. [41]
In this case, investigation by the Truth Commission covers only third level public officers and
higher, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration of former President Gloria Macapagal-Arroyo. [42]
The OSG, however, counters in its Memorandum that the equal protection clause of the
Constitution is not violated, because although E.O. No. 1 names the previous administration as the initial
subject of the investigation of cases of graft and corruption, it is not confined to the said administration,
since E.O. No. 1 clearly speaks of the President's power to expand its coverage to prior administrations
as follows:
SECTION 17. Special Provision Concerning Mandate. — If and when in the judgment
of the President there is a need to expand the mandate of the Commission as defined in Section 1

Order. [43]
As provided above, the mandate of the Truth Commission may be expanded to include the
investigation of cases of graft and corruption during prior administrations, but it is subject to the
"judgment" or discretion of the President and it may be so extended by way of a supplemental Executive
Order. In the absence of the exercise of judgment by the President that the Truth Commission shall also
conduct investigation of reported cases of graft and corruption during prior administrations, and in the
absence of the issuance of a supplemental executive order to that effect, E.O. No. 1 covers only third
level public officers and higher, their co-principals, accomplices and accessories from the private sector,
if any, during the previous administration of former President Gloria Macapagal-Arroyo. This is admitted
by the OSG in its Memorandum [44] as it explains that "to include the past administrations, at this point,
may unnecessarily overburden the Commission and lead it to lose its effectiveness." The OSG's position
shows more consideration for the burden that the investigation may cause to the Commission, while
losing sight of the equal protection clause of the Constitution.
The OSG further states that even if the Truth Commission would solely concern itself with graft
and corruption, if there be any, of the previous administration, there is still no violation of the equal
protection clause. It submits that the segregation of the transactions of public officers during the
previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the E.O. seeks to correct. The distinctions cited are:
1) E.O No. 1 was issued in view of widespread reports of large scale graft and corruption
in the previous administration which have eroded public confidence in public
institutions.
2) The segregation of the preceding administration as the object of fact-finding

investigations is warranted by the reality that the current administration will most likely
bear the immediate consequences of the policies of the previous administration, unlike
those of the administrations long gone.
3) The classification of the previous administration as a separate class for investigation

lies in the reality that the evidence of possible criminal activity, the evidence that could
lead to recovery of public monies illegally dissipated, the policy lessons to be learned
to ensure that anti-corruption laws are faithfully executed, are more easily established
in the regime that immediately precedes the current administration.
4) Many administrations subject the transactions of their predecessors to investigations to

provide closure to issues that are pivotal to national life or even as a routine measure
of due diligence and good housekeeping by a nascent administration.
Indeed, the equal protection clause of the Constitution allows classification. [45] If the classification
is reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause. [46] To be valid, it must conform to the following requirements: (1) It must be based on
substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to
existing conditions only; and (4) it must apply equally to all members of the class. [47] CDTSEI
Peralta v. Commission on Elections [48] held:
The equal protection clause does not forbid all legal classifications. What [it] proscribes is a
classification which is arbitrary and unreasonable. It is not violated by a reasonable classification
based upon substantial distinctions, where the classification is germane to the purpose of the law
and applies equally to all those belonging to the same class. The equal protection clause is not
infringed by legislation which applies only to those persons falling within a specified class, if it applies
alike to all persons within such class, and reasonable grounds exist for making a distinction between
those who fall within the class and those who do not. There is, of course, no concise or easy answer
as to what an arbitrary classification is. No definite rule has been or can be laid down on the basis of
which such question may be resolved. The determination must be made in accordance with the facts
presented by the particular case. The general rule, which is well-settled by the authorities, is that a
classification, to be valid, must rest upon material differences between the persons, activities or
things included and those excluded. There must, in other words, be a basis for distinction.
Furthermore, such classification must be germane and pertinent to the purpose of the law. And,
finally, the basis of classification must, in general, be so drawn that those who stand in substantially
the same position with respect to the law are treated alike.
The distinctions cited by the OSG are not substantial to separate the previous administration as a
distinct class from prior administrations as subject matter for investigation for the purpose of ending graft
and corruption. As stated by the ponencia, the reports of widespread corruption in the previous
administration cannot be taken as a substantial distinction, since similar reports have been made in
earlier administrations.
Moreover, a valid classification must rest upon material differences between the persons, or
activities or thing included and excluded. [49] Reasonable grounds must exist for making a distinction
between those who fall within the class and those who do not. [50] There is no substantial distinction
cited between public officers who may be involved in reported cases of graft and corruption during the
previous administration and public officers who may be involved in reported cases of graft and
corruption during prior administrations in relation to the purpose of ending graft and corruption. To limit
the investigation to public officers of the previous administration is violative of the equal protection
clause.
I vote, therefore, to GRANT the petitions as Executive Order No. 1 is unconstitutional since it
violates the equal protection clause of the Constitution and encroaches on the law-making power of
Congress under Section 1, Article VI of the Constitution.
ABAD, J., dissenting:
Brief Background
As the opinion written for the majority by Justice Jose Catral Mendoza says, President Benigno
Simeon Aquino III (President P-Noy to distinguish him from former President Corazon C. Aquino)
campaigned on a platform of "kung walang corrupt, walang mahirap." On being elected President, he
issued Executive Order 1, [1] creating the Philippine Truth Commission of 2010 that he tasked with the
investigation of reported corruption during the previous administration. The Truth Commission is to
submit its findings and recommendations to the President, the Congress, and the Ombudsman.
Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A.
Datumanong, and Rep. Orlando B. Fua, Sr. have come to this Court to challenge the Constitutionality of
Executive Order 1.
The Issues Presented
The parties present four issues:
1. Whether or not petitioners have legal standing to challenge the constitutionality of

Executive Order 1;
2. Whether or not Executive Order 1 usurps the authority of Congress to create and
appropriate funds for public offices, agencies, and commissions;
3. Whether or not Executive Order 1 supplants the powers of the Ombudsman and the
DOJ; and
4. Whether or not Executive Order 1 violates the equal protection clause in that it singles
out the previous administration for investigation.
Discussion
The majority holds that petitioners have standing before the Court; that President P-Noy has the
power to create the Truth Commission; that he has not usurped the powers of Congress to create public
offices and appropriate funds for them; and, finally, that the Truth Commission can conduct investigation
without supplanting the powers of the Ombudsman and the Department of Justice since the
Commission has not been vested with quasi-judicial powers. I fully conform to these rulings. cDSAEI
The majority holds, however, that Executive Order 1 violates the equal protection clause of the
Constitution. It is here that I register my dissent.
The 1987 Constitution provides in section 1 of Article III (The Bill of Rights) as follows:
Section 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.
The idea behind the "equal protection clause" is that public authorities should treat all persons or
things equally in terms of rights granted to and responsibilities imposed on them. As an element of due
process, the equal protection clause bars arbitrary discrimination in favor of or against a class whether
in what the law provides and how it is enforced.
Take the comic example of a law that requires married women to wear their wedding rings at all
times to warn other men not to entice women to violate their marriage vows. Such law would be unfair
and discriminatory since married men, who are not covered by it, are exposed to similar enticements
from women other than their wives.
But it would be just as unfair and discriminatory if people who hardly share anything in common
are grouped together and treated similarly. [2] The equal protection clause is not violated by a law that
applies only to persons falling within a specified class, if such law applies equally to all persons within
such class, and reasonable grounds exist for making a distinction between those who fall within it and
those who do not. [3]
For example, restaurant cooks and waiters cannot complain of discrimination against an
ordinance that requires them but not other workers to undergo periodic medical check-ups. Such check-
ups are important for food-handlers in the interest of public health but not for ordinary office clerks. Also,
a law that grants a 60-day paid leave to pregnant workers but not to other workers, male or female, is
not discriminatory since female workers who just had their babies need more time to care for the latter
and make adjustments for going back to work.
Here, the issue I address is whether or not President P-Noy's decision to focus the Truth
Commission's investigation solely on the reported corruption during the previous administration,
implicitly excluding the corruption during the administrations before it, violates the equal protection
clause. Since absolute equality in treating matters is not required, the ultimate issue in this case is
whether or not the President has reasonable grounds for making a distinction between corruptions
committed in the recent past and those committed in the remote past. As a rule, his grounds for making
a distinction would be deemed reasonable if they are germane or relevant to the purpose for which he
created the Truth Commission. [4]
And what is the President's purpose in creating the Truth Commission? This can be inferred from
section 1 of Executive Order 1 which states that the Commission's primary function is to — IEHTaA
. . . seek and find the truth on, and toward this end, investigate reports of graft and
corruption of such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officials and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration, and thereafter recommend the appropriate action to be taken thereon to
ensure that the full measure of justice shall be served without fear or favor.
Evidently, the objective the President sets for the Truth Commission is the uncovering of the
"truth" regarding reported corruption in the previous administration "to ensure that the full measure of
justice [evidently upon those responsible for it] is served without fear or favor." Ultimately, the purpose of
the creation of the Truth Commission is to ensure that the corrupt officials of the previous administration
are exposed and brought to justice.
The majority holds that picking on the "previous administration" and not the others before it makes
the Commission's investigation an "adventure in partisan hostility." To be fair, said the majority, the
search for truth must include corrupt acts not only during the previous administration but also during the
administrations before it where the "same magnitude of controversies and anomalies" has been
reported.
The majority points out that corruption in the previous administration and corruption in the
administrations before it have no substantial difference. And what difference they have, the majority
adds, is not relevant to the purpose of Executive Order 1, which is to uncover corrupt acts and
recommend their punishment. Superficial difference like the difference in time in this case does not
make for a valid classification.
But time differentiation should not be so easily dismissed as superficial. The world in which people
live has two great dimensions: the dimension of space and the dimension of time. Nobody can say that
the difference in time between two acts or events makes for a superficial difference. Such difference is
the substance of human existence. As the Bible says:
There is an appointed time for everything,
and a time for every affair under the heavens.
A time to be born, and a time to die;
a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.
(Ecclesiastes 3:1-8, New American Bible)
Recognizing the irreversibility of time is indispensable to every sound decision that people make
in their lives everyday, like not combing the hair that is no longer there. In time, parents let their married
children leave to make their own homes. Also, when a loved one passes away, he who is left must know
that he cannot bring back the time that is gone. He is wise to move on with his life after some period of
mourning. To deny the truth that the difference in time makes for substantial difference in human lives is
to deny the idea of transition from growth to decay, from life to death, and from relevant to irrelevant. EcATDH
Here the past presidential administrations the country has gone through in modern history cover a
period of 75 years, going back from when President Gloria Macapagal Arroyo ended her term in 2010 to
the time President Manuel L. Quezon began his term in 1935. The period could even go back 111 years
if the administration of President Emilio Aguinaldo from 1989 to 1901 is included. But, so as not to
complicate matters, the latter's administration might just as well be excluded from this discussion.
It should be remembered that the right of the State to recover properties unlawfully acquired by
public officials does not prescribe. [5] So, if the majority's advice were to be literally adopted, the Truth
Commission's investigation to be fair to all should go back 75 years to include the administrations of
former Presidents Arroyo, Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino,
Roxas, Osmena, Laurel, and Quezon.
As it happens, President P-Noy limited the Truth Commission's investigation to the 9 years of the
previous administration. He did not include the 66 years of the 12 other administrations before it. The
question, as already stated, is whether the distinction between the recent past and the remote past
makes for a substantial difference that is relevant to the purpose of Executive Order 1.
That the distinction makes for a substantial difference is the first point in this dissent.
1. The Right to Equal Protection
Feasibility of success. Time erodes the evidence of the past. The likelihood of finding evidence
needed for conviction diminishes with the march of time. Witnesses, like everyone else, have short
memories. And they become scarce, working overseas, migrating, changing addresses, or just passing
away. Official or private documents needed as evidence are easily overwhelmed by the demand to file
and keep even more documents generated by new activities and transactions. Thus, old documents are
stored away in basements, garages, or corridors, and eventually lost track of, misplaced, or simply
destroyed, whether intentionally or not. In a government that is notorious for throwing away or
mishandling old records, searching for a piece of document after ten years would be uncertain, tedious,
long, and costly.
When the government of President Marcos fell in 1986, the new government acted swiftly to
sequester suspected wealth, impound documents believed to constitute evidence of wrong-doing, and
interview witnesses who could help prosecute the Marcoses and their cronies. One would think that
these actions will ensure successful prosecution of those who committed graft and corruption in that era.
Yet, after just a decade, the prosecution has been mostly unable to find the right documents or call the
right witnesses. Today, after 24 years, the full force of government has failed to produce even one
conviction. aAcDSC
Clearly, it would be a waste of effort and time to scour all of 66 years of the administrations before
the last, looking for evidence that would produce conviction. Time has blurred the chance of success.
Limiting the Truth Commission's investigation to the 9 years of the previous administration gives it the
best chance of yielding the required proof needed for successful action against the offenders.
Historically, there have been no known or outstanding inquiries done by the Executive Department
into corrupt acts of the past that went beyond the term of the immediately preceding administration. It
makes sense for President P-Noy to limit the investigation to what is practical and attainable, namely,
the 9 years of the previous administration. He strikes at what is here and near. Perchance, he can get a
conviction. Investigating corruption in the past 75 years rather than in the nearest 9 years, under a
nebulous claim of evenhandedness, is the key to failing altogether. It has been held that if the law
presumably hits the evil where it is felt, it is not to be overthrown because there are other instances to
which it might have been applied. [6]
Neutralization of Presidential bias. The Court can take judicial notice of the fact that President
P-noy openly attacked the previous administration for its alleged corruption in the course of his election
campaign. In a sense, he has developed a bias against it. Consequently, his creation of the Truth
Commission, consisting of a former Chief Justice, two former Associate Justices of the Supreme Court,
and two law professors serves to neutralize such bias and ensure fairness. The President did not have
to include the 66 years of earlier administrations for investigation since he did not specifically target
them in his election campaign.
At any rate, it does not mean that when the President created the Truth Commission, he shut the
door to the investigation of corruption committed during the 66 years before the previous one. All
existing government agencies that are charged with unearthing crimes committed by public officials are
not precluded from following up leads and uncovering corruptions committed during the earlier years.
Those corrupt officials of the remote past have not gained immunity by reason of Executive Order 1.
Matching task to size. The Truth Commission is a collegial body of just five members with no
budget or permanent staffs of its own. It simply would not have the time and resources for examining
hundreds if not thousands of anomalous government contracts that may have been entered into in the
past 75 years up to the time of President Quezon. You cannot order five men to pull a train that a
thousand men cannot move.
Good housekeeping. Directing the investigation of reported corrupt acts committed during the
previous administration is, as the Solicitor General pointed out, consistent with good housekeeping. For
example, a new treasurer would be prudent to ensure that the former treasurer he succeeds has
balanced his accounts and submitted himself to a closing audit even after the new treasurer has taken
over. This prevents the latter having to unfairly assume the liabilities of his predecessor for shortages in
the cash box. Of course, the new treasurer is not required to look farther into the accounts of the earlier
treasurers. aHSAIT
In like manner, it is reasonable for President P-Noy to cause the investigation of the anomalies
reportedly committed during the previous administration to which he succeeded. He has to locate
government funds that have not been accounted for. He has to stanch the bleeding that the government
could be suffering even now by reason of anomalous contracts that are still on-going. Such is a part of
good housekeeping. It does not violate the equal protection clause by its non-inclusion of the earlier
administrations in its review. The latter's dealings is remotely relevant to good housekeeping that is
intended to manage a smooth transition from one administration to the next.
2. The President's Judgment

as against the Court's
That is the first point. The second point is that the Court needs to stand within the limits of its
power to review the actions of a co-equal branch, like those of the President, within the sphere of its
constitutional authority. Since, as the majority concedes, the creation of the Truth Commission is within
the constitutional powers of President P-Noy to undertake, then to him, not to the Court, belongs the
discretion to define the limits of the investigation as he deems fit. The Court cannot pit its judgment
against the judgment of the President in such matter.
And when can the Supreme Court interfere with the exercise of that discretion? The answer is, as
provided in Section 1, Article VIII of the 1987 Constitution, only when the President gravely abuses his
exercise of such discretion. This means that, in restricting the Truth Commission's investigation only to
corruptions committed during the previous administration, he acted capriciously and whimsically or in
an arbitrary or despotic manner. [7]
To act capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing one
moment and crying the next without apparent reason. Does this characterize the President's action in
this case, considering that he merely acted to set a feasible target, neutralize political bias, assign the
Commission a task suitable to its limited capacity, and observe correct housekeeping procedures? Did
he act arbitrarily in the manner of little children changing the rules of the game in the middle of the play
or despotically in the manner of a dictator? Unless he did, the Court must rein in its horses. It cannot
itself exceed the limits of its power of review under the Constitution.
Besides, the Court is not better placed than the President to make the decision he made. Unlike
the President, the Court does not have the full resources of the government available to it. It does not
have all the information and data it would need for deciding what objective is fair and viable for a five-
member body like the Truth Commission. Only when the President's actions are plainly irrational and
arbitrary even to the man on the street can the Court step in from Mount Olympus and stop such
actions.
Notably, none of those who have been reported as involved in corruption in the previous
administration have come forward to complain that the creation of the Truth Commission has violated
their rights to equal protection. If they committed no wrong, and I believe many would fall in this
category, they would probably have an interest in pushing for the convening of the Commission. On the
other hand, if they believe that the investigation unfairly threatens their liberties, they can, if
subpoenaed, to testify invoke their right to silence. As stated in the majority opinion, the findings of the
Commission would not bind them. Such findings would not diminish their right to defend themselves at
the appropriate time and forum.
For the above reasons, I join the main dissent of Justice Antonio T. Carpio.
Footnotes
1. Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
2. Bernas, The 1987 Constitution of the Republic of the Philippines; A Commentary, 1996 ed., p. xxxiv, citing
Miller, Lectures on the Constitution of the United States 64 (1893); 1 Schwartz, The Powers of Government
1 (1963).
3. Cruz, Philippine Political law, 2002 ed. p. 12.
4. Id.
5. Resolution dated August 24, 2010 consolidating G.R. No. 192935 with G.R. No. 193036, rollo, pp. 87-88.
6. Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.
7. Biraogo Petition, p. 5, rollo, p. 7.
8. Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12, 2002, citing F.R. Mechem, A Treatise On the
Law of Public Offices and Officers.
9. International Center for Transitional Justice, <http://www.ictj.org/en/tj/138.html> visited November 20, 2010.
10. Freeman, The Truth Commission and Procedural Fairness, 2006 Ed., p. 12, citing Hayner,
UnspeakableTruths: Facing the Challenge of Truth Commissions.
11. International Center for Transitional Justice, supra note 9.
12. Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
13. Lagman Petition, pp. 50-52, rollo, pp. 58-60.
14. Rollo, pp. 111-216.
15. Otherwise known as the Administrative Code of 1987.
16. Granting Continuing Authority to the President of the Philippines to Reorganize the National Government.
17. Otherwise known as the General Appropriations Act of 2010.
18. OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v. Sandiganbayan, G.R. Nos. 105965-70,
March 20, 2001, 354 SCRA 651, 660-661.
19. Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35; and Francisco v.
House of Representatives, 460 Phil. 830, 842 (2003).
20. OSG Memorandum, p. 29, rollo, p. 348.
21. G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
22. Supra note 19, citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623,
631-632.
24. G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
25. Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, G.R.
No. 157870, November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of the Department of Energy, 346
Phil. 321 (1997); De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
26. G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
27. 84 Phil. 368, 373 (1949).
28. "(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the
government; and, (3) the lack of any other party with a more direct and specific interest in the questions
being raised."
29. G.R. No. 174697, July 8, 2010.
30. Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
31. Biraogo Memorandum, p. 7, rollo, p. 69.
32. Id. at 6, rollo, p. 68.
33. Id. at 9, rollo, p. 71.
34. Id. at 10, rollo, p. 72.
35. Id. at 10-11, rollo, pp. 72-73.
36. Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp. 270-271.
38. Id. at 33, rollo, p. 352.
39. OSG Consolidated Comment, p. 24, rollo, p. 144.
40. OSG Memorandum, pp. 38-39, rollo, pp. 357-358.
41. Citing Department of Health v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 450.
42. Citing Evangelista v. Jarencio, No. L-27274, November 27, 1975, 68 SCRA 99, 104.
43. Citing Rodriguez v. Santos Diaz, No. L-19553, February 29, 1964, 10 SCRA 441, 445.
44. G.R. No. 166620, April 20, 2010.
45. Consolidated Comment, p. 45, rollo, p. 165.

46. G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also cited in Banda, supra.
47. The Veterans Federation of the Philippines v. Reyes, G.R. No. 155027, February 28, 2006, 483 SCRA
526, 564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143 (1955).
49. G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
50. TSN, September 28, 2010, pp. 205-207.
51. OSG Memorandum, p. 37, rollo, p.356.
52. G.R. 88211, September 15, 1989, 177 SCRA 688.
53. Id. at 691.
54. 496 Phil. 886, 896-897 (2005).
55. Consolidated Comment, p. 48; rollo, p. 168.
56. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
57. Ople v. Torres, 354 Phil. 948, 967 (1998).
58. Smart Communications, Inc. et al. v. National Telecommunications Commission, 456 Phil. 145, 156 (2003).
59. G.R. No. 96681, December 2, 1991, 204 SCRA 483.
60. Id. at 492.
61. TSN, September 28, 2010, pp. 39-44; and OSG Memorandum, p. 67, rollo, p. 339.
62. OSG Consolidated Comment, p. 55, rollo, p. 175.
63. Id. at 56, rollo, p. 176.
64. Id.
66. Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
67. Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp. 347-348.
68. Lagman Petition, p. 31, rollo, p. 39.
69. Id. at 28-29, rollo, pp. 36-37.
70. Id. at 29, rollo, p. 37.
71. OSG Memorandum, p. 88; rollo, p. 407.
72. OSG Consolidated Comment. p. 68, rollo, p. 188.
73. OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
74. The Philippine Judges Association v. Hon. Pardo, G.R. No. 105371, November 11, 1993, 227 SCRA 703,
711.
75. Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, No. L-59431, July 25,
1984, 130 SCRA 654; Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform,
G.R. No. 78742 [n], July 14, 1989, 175 SCRA 343, 375.
76. Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am. Jur, 2d, Vol. 16 (b), p. 302.
77. Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
78. Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
79. See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur. 2d, Vol. 16 (b), pp. 316-317.
80. See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d, Vol. 16 (b), p. 316.
81. Beltran v. Secretary of Health, 512 Phil. 560, 583 (2005).
82. Cruz, Constitutional Law, 2003 ed., p. 128.
83. McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
84. Cruz, Constitutional Law, 2003 ed., pp. 135-136.
85. No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
86. Basa v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas (FOITAF), No. L-
27113, November 19, 1974, 61 SCRA 93, 110-111; Anuncension v. National Labor Union, No. L-26097,
November 29, 1977, 80 SCRA 350, 372-373; Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646, November
10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec, No. L-52245, January 22, 1980, 95 SCRA 392, 404;
Ceniza v. Comelec, No. L-52304, January 28, 1980, 95 SCRA 763, 772-773; Himagan v. People, G.R. No.
113811, October 7, 1994, 237 SCRA 538; The Conference of Maritime Manning Agencies, Inc. v. POEA,
G.R. No. 114714, April 21, 1995, 243 SCRA 666, 677; JMM Promotion and Management, Inc. v. Court of
Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319, 331-332; and Tiu v. Court of Appeals, G.R. No.
127410, January 20, 1999, 301 SCRA 278, 288-289. See also Ichong v. Hernandez, No. L-7995, 101 Phil.
1155 (1957); Vera v. Cuevas, Nos. L-33693-94, May 31, 1979, 90 SCRA 379, 388; and Tolentino v.
Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873, and
115931, August 25, 1994, 235 SCRA 630, 684.
87. 7th Whereas clause, Executive Order No. 1.
88. Cruz, Constitutional Law, 2003 ed., p. 128.
89. OSG, Memorandum, p. 89, rollo, p. 408.
90. 6th Whereas clause, Executive Order No. 1.

91. Lee, Handbook of Legal Maxims, 2002 Ed., p.
92. 118 US 357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=118&invol=35 <accessed on

December 4, 2010>.
93. Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 SCRA 614, pp. 631-632; Manila Prince
Hotel vs. GSIS, 335 Phil. 82, 101 (1997).
94. Id. at 632.
95. 756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No. HCR 90-42; also
http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19910130_0000002.NIN.htm/qx <accessed
December 5, 2010>
96. McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16 (b), p. 367.
97. Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d, Vol. 16 (b), pp. 367-368.
98. Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16 (b), p. 371.
99. Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16 (b), p. 370.
100. Clements v. Fashing, 457 US 957.
101. See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state legislature may, consistently with the Equal
Protection Clause, address a problem one step at a time, or even select one phase of one field and apply a
remedy there, neglecting the others. [Jeffeson v. Hackney, 406 US 535].
102. McDonald v. Board of Election Com'rs of Chicago, 394 US 802 cited in Am. Jur. 2d, Footnote No. 9.
103. Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
104. OSG Consolidated Comment, p. 66, rollo, p.186.
105. Lagman Memorandum, p. 30; rollo, p. 118.
106. G.R. No. 86926, October 15, 1991; 202 SCRA 680.
107. Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
108. Cruz, Philippine Political Law, 2002 ed., pp. 12-13.
109. Id.
110. Republic v. Southside Homeowners Association, G.R. No. 156951, September 22, 2006.
CORONA, C.J.:
1. PROMOTION AND PROTECTION OF HUMAN RIGHTS (Study on the Right to the Truth): Report of the
Office of the United Nations High Commissioner for Human Rights, United Nations Economic and Social
Council (E/CN.4/2006/91), 8 February 2006.
2. See Yasmin Naqvi, The Right to the Truth in International Law: Fact or Fiction?, International Review of the
Red Cross (2006), 88:862:254-268.
3. Ibid., 268.
4. Ibid., 245.
5. But see Eric Brahm, What is a Truth Commission and Why Does it Matter?, Peace and Conflict Review
(Spring 2009), 3:2:1-14, which proposes that "Mark Freeman's (2006) typology of human rights
investigations as the definition offering the most analytical clarity and the strongest potential to move the
field forward." Freeman [Truth Commissions and Procedural Fairness (2006), New York: Cambridge
University Press; E.H.R.L.R., 2008, 2, 294-297] defines a truth commission as an "ad hoc, autonomous,
and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of
(1) investigating and reporting on the principal causes and consequences of broad and relatively recent
patterns of severe violence or repression that occurred in the state during determinate periods of abusive
rule or conflict, and (2) making recommendations for their redress and future prevention."
6. Priscilla B. Hayner, Fifteen Truth Commissions — 1974 to 1994: A Comparative Study, Human Rights
Quarterly (Nov. 1994), 16:4:600.
7. Ibid., 604.
8. http://www.amnesty.org/en/library/asset/POL30/009/2007/en/7988f852-d38a-11dd-a329-2f46302a8cc6/
pol300092007en.html, viewed on 9 November 2010.
9. Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic
Crimes?, The International Journal of Transitional Justice, Vol. 2, 2008, 322.
10. Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No.
75885, May 27, 1987, 150 SCRA 181, 202.
11. Promulgated on February 28, 1986, creating the Presidential Commission on Good Government.
12. Promulgated on March 25, 1986, promulgating the Provisional Constitution (also known as the Freedom
Constitution). Article II, Section 1 thereof stated that the President shall continue to exercise legislative
power until a legislature is elected and convened under a new constitution . . . .
13. Angara v. Electoral Commission, 68 Phil. 139, 156 (1936).
14. Secretary of Justice v. Lantion, G.R. No. 139465, 17 October 2000.
15. Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 29 August 2007.
16. Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) citing AM JUR 2d on Public Officers and
Employees.
17. Banda v. Ermita, G.R. No. 166620, April 20, 2010.
18. Ibid.
19. Buklod ng Kawaniang EIIB v. Sec. Zamora, 413 Phil. 281, 295.
20. Office of the Ombudsman v. Samaniego, G.R. No. 175573, 11 September 2008.
21. Chamber of Real Estate and Builders' Associations, Inc. v. Executive Secretary Alberto Romulo (G.R. No.
160756, 2010).
22. Quinto v. Comelec (G.R. No. 189698, 2009).
23. Abakada Guro v. Hon. Cesar V. Purisima (G.R. No. 166715, 2008)
24. 59 SCRA 54, 1974.
25. League of Cities of the Philippines v. COMELEC (G.R. No. 176951; G.R. No. 177499; 2008; G.R. No.
178056, 2008).
26. Par. 69, Lagman, et al.'s Petition.
28. OSG Memorandum, pp. 88-90.
30. Section 2. . . . b) Collect, receive, review and evaluate evidence related to or regarding the cases of large
scale corruption which it has chosen to investigate, and to this end require any agency, official or employee
of the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers . . . .
31. Section 2. . . . g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals, accomplices or accessories, if any,
when in the course of its investigation the Commission finds that there is reasonable ground to believe that
they are liable for graft and corruption under pertinent applicable laws . . . .
32. Id.
33. Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
34. 568 SCRA 327 (2008).
35. Joson v. Executive Secretary, et al., G.R. No. 131255, May 20, 1998; Villaluz v. Zaldivar, et al. (En Banc),
G.R. No. L-22754, December 31, 1965.
36. Rufino v. Endriga, G.R. No. 139554, July 21, 2006.
37. Ang-Angco v. Hon. Natalio Castillo, et al., G.R. No. L-17169, November 30, 1963.
38. Article XI states:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx xxx xxx

(8) . . . exercise such other powers or perform such functions or duties as may be provided by law.
39. G.R. No. 168670, April 13, 2007, 521 SCRA 155.
40. See also Emin v. De Leon (G.R. No. 139794, February 27, 2002, 378 SCRA 143) on the concurrent
authority of the Civil Service Commission and the DEPED Investigating Committee under RA 4670. See
further Puse v. Santos-Puse (G.R. No. 183678, March 15, 2010) where the Court held that the concurrent
jurisdiction of the DEPED and CSC to cause preliminary investigation is also shared by the Board of
Professional Teachers under RA 7836 or Philippine Teachers Professionalization Act of 1994.
41. G.R. No. 177580, October 17, 2008.
42. See Ombudsman v. Rolson Rodriguez, G.R. No. 172700, July 23, 2010 citing Laxina, Sr. v. Ombudsman,
G.R. No. 153155, 30 September 2005, 471 SCRA 542.
43. Sevilla Decin v. SPO1 Melzasar Tayco, et al., G.R. No. 149991, February 14, 2007; Honasan II v. The
Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004.
44. G.R. No. 157684, April 27, 2005.
45. See Review Center Association of the Philippines v. Executive Secretary Eduardo Ermita, et al., G.R. No.
180046, April 2, 2009; Bermudez v. Executive Secretary, G.R. No. 131429, August 4, 1999.
46. KMU v. Director General, et al., G.R. No. 167798, April 19, 2006.
47. G.R. No. 96681, 2 December 1991, 204 SCRA 483.
48. Id., pp. 495-496.
49. Dole Philippines Inc. v. Esteva, G.R. No. 161115, 30 November 2006, 509 SCRA 332, 369-370.
50. Manotoc v. Court of Appeals, G.R. No. 130974, 16 August 2006.
51. Philippine Long Distance Telephone Co. Inc. v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No.
162783, 14 July 2005.
52. Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, 2 October 2, 1990.
This is an En Banc case that had been reiterated in two other En Banc cases, namely, Olivas v. Office of the
Ombudsman (G.R. No. 102420, 20 December 1994) and Uy v. Office of the Ombudsman (G.R. Nos.
156399-400, 27 June 2008, 556 SCRA 73). Thus it cannot be said to have been overturned by Balangauan
v. Court of Appeals, Special Nineteenth Division, Cebu City (G.R. No. 174350, 13 August 2008, 562 SCRA
184) a decision of the Court through the Third Division wherein the Court declared: "It must be remembered
that a preliminary investigation is not a quasi-judicial proceeding. . . . (p. 203)"
53. Meralco v. Energy Regulatory Board, G.R. No. 145399, 17 March 2006.
BRION, J.:
1. CONSTITUTION, Article III, Section 1 and 14, which states:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused:
Provided, that he has been duly notified and his failure to appear is unjustifiable.
2. Executive Order No. 1, "Creating the Philippine Truth Commission of 2010," Section 1.
3. TSN, September 28, 2010, pp. 23, 39-40, 52, 60, 73-75, 123-126.
4. Id. at 182.
5. Id. at 58-60.
6. EO 1, Section 1, par. 2.
7. Id., Section 2, paragraphs. H and I; Sections 3, 4 and 5.
8. Id., Sections 12, 13.
9. Id., Section 11.
10. Id., Section 2 (b).
11. Id., Sections 2 (c), (d), (e), (f), (g), (h), (i) and 6.
12. Id., Section 6.
13. Id., Section 2.
14. Id., Section 15.
15. Id., Section 7.
16. Id., Section 8.
17. Resolution 001, "Rules of Procedure of the Philippine Truth Commission," September 20, 2010.
18. Rules, Rule 4, Section 1(b).
19. Id., Rule 4, Section 1(b), paragraph 2.
20. Rules, Rule 4, Section 2.
21. EO 1, Section 8.
22. Rules, Rule 5.

23. Petitioner Lagman's Petition for Certiorari, rollo, pp. 34-43; Respondents' Memorandum, id. at 322-323.
24. See Mark Freeman, Truth Commissions and Procedural Fairness (2006).
25. Freeman, supra note 24 at 12-13 citing Priscilla Hayner, Unspeakable Truths: Facing the Challenge of
Truth Commissions (2nd ed., 2004), p. 14.
26. Freeman, supra note 24 at 14 [Freeman points out that Hayner omitted the element in the definition that
"truth commissions focus on severe acts of violence or repression." He stated further that "[s]uch acts may
take many forms, ranging from arbitrary detention to torture to enforced disappearance to summary
execution."
27. Theresa Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little? Too
Late? 15 ARIZ. J. INT'L & COMP. L. 833, 843-844 (1998). See also Priscilla Hayner, Fifteen Truth
Commissions 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597, 600, 607 (1994).
28. An attempt has been made during the oral arguments to characterize massive graft and corruption as a
violation of human rights, but this characterization does not appear to be based on the settled definition of
human rights (TSN, Sept. 7, 2010, p. 83-84).
29. See Villanueva v. CA, G.R. No. 110921, January 28, 1998, 285 SCRA 180; Fabia v. IAC, G.R. No. L-66101
November 21, 1984, 133 SCRA 364; Lacoste v. Hernandez, G.R. No. L-63796-97, May 21, 1984, 129
SCRA 373; Lu v. Yorkshire Insurance, 43 Phil. 633 (1922); People v. Macasinag, G.R. No. L-18779, August
18, 1922, 43 Phil. 674 (1922); Correa v. Mateo, 55 Phil. 79 (1930); People v. Macasinag, 43 Phil. 674
(1922).
30. See Joaquin G. Bernas, S.J. The 1987 Constitution of the Republic of the Philippines: A Commentary
(2009 ed.), p. 118.
31. See Id. at 119, citing U.S. v. Toribio, 15 Phil. 85 (1910), which quoted Lawton v. Steel:
[T]he State may interfere wherever the public interests demand it, and in this particular a large discretion is
necessarily vested in the legislature to determine, not only what the interests of the public require, but what
measures are necessary for the protection of such interests. (Barbier vs. Connolly, 113 U.S. 27; Kidd vs.
Pearson, 128 U.S. 1.) To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a particular class,
require such interference; and, second, that the means are reasonably necessary for the accomplishment of
the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of
protecting the public interests, arbitrarily interfere with private business, or impose unusual and
unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper
exercise of its police powers is not final or conclusive, but is subject to the supervision of the court.
32. Republic Act No. 6770, Section 15, par. 1, November 17, 1989, "An Act Providing For the Functional and
Structural Organization of the Office of the Ombudsman, and For Other Purposes," See also Ombudsman v.
Enoc, G.R. Nos. 145957-68, January 25, 2002, 374 SCRA 691. See also Ombudsman v. Breva, G.R. No.
145938, February 10, 2006, 482 SCRA 182.
33. Presidential Decree No. 1606, December 10, 1978, "Revising Presidential Decree No. 1486, Creating a
Special Court to be known as Sandiganbayan and for other purposes," as amended by Republic Act No.
8249, February 5, 1997, "An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending For The
Purpose Presidential Decree No. 1606, As Amended, Providing Funds Therefor, And For Other Purposes."
See also PCGG v. Hon. Emmanuel G. Peña, etc., et al., G.R. No. L-77663, April 12, 1988, 159 SCRA 556.
34. Id. at 561-562, citing Presidential Decree No. 1606, Section 7, which provides that "decisions and final
orders [of the Sandiganbayan] shall be subject of review on certiorari by the Supreme Court in accordance
with Rule 45 of the Rules of Court."
35. TSN, September 28, 2010, pp. 58-60, 147.
36. The Dissent of J. Sereno itself echoes and reechoes with the truth-telling intent of the Truth Commission
and even speaks of "the need to shape collective memory as a way for the public to confront injustice and
move towards a more just society" (p. 27, dissent). It proceeds to claim that this Separate Opinion
"eliminates the vital role of the Filipino people in constructing collective memories of injustices as basis for
redress." J. Sereno's Dissenting Opinion, pp. 27-28.
37. TSN, September 28, 2010, pp. 146-147.
38. See e.g., Bilbija, et al., eds., The Art of Truth Telling About Authoritarian Rule (2005), p. 14.
39. CONSTITUTION, Article XI, Sections 12 and 13.
40. Supra note 35.
41. See Freeman, supra note 24, pp. 88-155.
42. See Freeman, id. at 88.
43. CONSTITUTION, Article III, Section 14 (2), supra note 1.
44. CONSTITUTION, Article III, Section 17.
46. TSN, September 28, 2010, pp. 149-151.
47. The Commission is bound to furnish the Ombudsman a copy of its partial and final reports for the
Ombudsman's consideration and action, under Sec. 2 of the EO.
49. See generally Malcolm Gladwell, Blink (2005); see also, Cardozo, The Nature of the Judicial Process, pp.
167-180, and as quoted elsewhere in this Separate Opinion, infra note 55.
50. J. Carpio's Dissenting Opinion, pp. 19-211.
51. J. Sereno's Dissenting Opinion, pp. 25- 29.
52. TSN, September 28, 2010, p. 59.
53. See Gladwell, supra note 49, pp. 49-73.
54. Born May 24, 1870, New York; died July 9, 1938, Port Chester, NY. US Supreme Court — 1932-1938. He
was also a Judge of NY Court of Appeals from 1914 to 1932, and was its Chief Judge in the last 6 years of
his term with the Court of Appeals. See http://www.courts.state.ny.us/history/cardozo.htm [last visited
December 2, 2010].
55. Benjamin N. Cardozo, The Nature of the Judicial Process, (1921).
56. Id. at 175-176.
57. According to a recent SWS Survey conducted from October 20-29, 2010
http://www.mb.com.ph/articles/287833/80-filipinos-still-trust-aquino-despite-ratings-dip [last visited
November 17, 2010].
58. Supra note 55, pp. 178-179, citing Foreign Corporations in American Constitutional Law, p. 164 cf. Powell
"The Changing Law of Foreign Corporations," 33 Pol. Science Quarterly, p. 569.
59. Rules, Rule 4, Section 2.
60. CONSTITUTION, Article VIII, Section 2. See also Bernas, supra note 30, p. 959.
61. Id., Article VIII, Section 7 (2).
62. People v. Maceren, G.R. No. L-32166 October 18, 1977, 79 SCRA 450, 461 citing 1 Am. Jur. 2nd, sec.
127, p. 938; Texas Co. v. Montgomery, 73 F. Supp. 527: It has been held that "to declare what shall
constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it may
not be delegated to any other body or agency."
63. CONSTITUTION, Article VIII, Section 5.
64. CONSTITUTION, Article VIII, Section 8.
65. REVISED ADMINISTRATIVE CODE, Book II, Chapter II, Section 22.
66. Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April
13, 2004, 427 SCRA 46. See also Ombudsman v. Enoc, supra note 32.
67. See Batas Pambansa Blg. 129, "An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and For
Other Purposes."
68. Republic Act No. 8249, supra note 33, Section 4.
69. CONSTITUTION, Article VIII, Section 5 (5).
70. Id., Article VIII, Section 5 (6).
71. Id., Article VIII, Section 6.
72. REVISED ADMINISTRATIVE CODE, Chapter I, Title III, Book IV. See also Honasan II v. Panel of
Investigators, supra note 66.
73. Ibid. See Section 15, par. 1, Republic Act No. 6770.
74. For officials in Salary Grade 27 and beyond.
76. Id., Article III, Section 4.
77. Honasan II v. Panel of Investigators, supra note 66.
78. See Honasan II v. Panel of Investigators, supra note 66. See also RULES OF COURT, Rule 112, Sections
2 and 4.
79. REVISED ADMINISTRATIVE CODE, Chapter 9 (D), Title II, Book III.
80. BLACK'S LAW DICTIONARY (5th ed., 1979), p. 330.
81. Buklod ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718,
726, citing Isagani Cruz, The Law on Public Officers (1999 ed.), p. 4.
83. EO 1, Sections 3 and 5.
85. TSN, September 28, 2010, p. 166.
86. See http://www.gmanews.tv/story/201465/full-text-iirc-report-on-august-23-2010-rizal-park-hostage-taking-

incident, [last visited November 17, 2010].
87. See Jonathan Horowitz, Racial (Re) Construction: The Case of the South African Truth and Reconciliation
Commission, 17 NAT'L BLACK L.J. 67 (2003); Evelyn Bradley, In Search for Justice — A Truth and
Reconciliation Commission for Rwanda, 7 J. INT'L L. & PRAC. 129 (1998).
88. See Catherine O'Rourke, The Shifting Signifier of "Community in Transitional Justice: A Feminist Analysis¸
23 WIS. J.L. GENDER & SOC'Y 269 (2008) citing Transitional Justice and Rule of Law Interest Group,
American Society of International Law, Statement of Purpose, http://www.asil.org/interest-groups-view.cfm?
groupid=32.
89. Isagani Cruz, Philippine Political Law (1998 ed.) p. 79. See also Bernas, supra note 30, pp. 676-677,
stating: "Thus, any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress."
90. Ibid. See also Canonizado v. Aguirre, G.R. No. 133132, January 25, 2000, 323 SCRA 312; Buklod ng
Kawaning EIIB v. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.
91. Bernas, supra note 30, p. 678.
92. EO 1, 8th and last Whereas Clause.
93. Buklod ng Kawaning EIIB v. Hon. Executive Secretary, supra note 81.
94. Solicitor General's Memorandum, rollo, p. 332.

95. Id. at 324.
96. G.R. No. 112745, October 16, 1997, 280 SCRA 713.
97. Solicitor General's Consolidated Comment, rollo, pp. 148-149.
98. Aquino v. COMELEC, No. L-40004, January 31, 1975, 62 SCRA 275.
99. Gonzales v. PAGCOR, G.R. No. 144891, May 27, 2004, 429 SCRA 533,545.
100. G.R. No. 166620, April 20, 2010.
101. Supra note 96.
102. Supra note 81.
103. G.R. No. 167324, July 17, 2007, 527 SCRA 746.
104. J. Carpio's Separate Concurring Opinion. Supra note 100.
105. Solicitor General's Consolidated Comment, rollo, p. 160.
106. Id. at 41.
107. 135 U.S. 1, 59 (1890).
109. TSN, September 28, 2010, pp. 209-214.
110. Part of the argument the Solicitor General relied upon was Department of Health v. Campasano, (G.R.
No. 157684. April 27, 2005, 457 SCRA 438) Solicitor General's Consolidated Comment, rollo, pp. 145-146.
Reliance on this case, however, is misplaced. In Campasano, the Court upheld the power of the President
to create an ad hoc investigating committee in the Department of Health on the basis of the President's
constitutional power of control over the Executive Department as well as his obligation under the faithful
execution clause to ensure that all executive officials and employees faithfully comply with the law. The
Court's ruling in Campasano is not determinative of the present case as the Truth Commission is claimed
to be a body entirely distinct and independent from the Office of the President. This conclusion is
bolstered by the Solicitor General's own admission during oral arguments that the Truth Commission,
particularly the Commissioners are not under the power of control by the President. In fact, the Solicitor
General went as far as to admit that the President has in fact relinquished the power of control over the
Commission to underscore its independence.
111. TSN, September 28, 2010, p. 214.
112. CONSTITUTION, Article VII, Section 1: 'The Executive Power shall be vested in the President of the
Philippines." See Bernas, supra note 30, p. 820: "With the 1987 Constitution, the constitutional system
returns to the presidential model of the 1935 Constitution: executive power is vested in the President."
Father Bernas further states: "In vesting executive power in one person rather than in a plural executive, the
evident intention was to invest the power holder with energy."
113. CONSTITUTION, Article VI, Section 1: "The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum." See Vera v. Avelino, 77 Phil. 192, 212 (1946):
"any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress . . ."
cited in Bernas, supra note 30, pp. 676-677.
114. Even in the case of the NLRC, however, presidential control cannot be avoided as the NLRC is part of the
Executive branch and the President, through his Secretary of Labor, sets the policies on labor and
employment (expressed through rules and regulations and interpretation) that, consistent with the existing
laws and jurisprudence, must be followed.
115. Republic Act 6832, otherwise known as "An Act Creating a Commission to Conduct a Thorough Fact-
Finding Investigation of the Failed Coup D'État of December 1989, Recommend Measures to Prevent the
Occurrence of Similar Attempts at a Violent Seizure of Power, and for Other Purposes." Its Section 1
provides:
Section 1. Creation, Objectives and Powers. — There is hereby created an independent Commission
which shall investigate all the facts and circumstances of the failed coup d'état of December 1989, and
recommend measures to prevent similar attempts at a violent seizure of power. [Emphasis supplied]
116. See 6th Whereas Clause, EO 1.
118. See e.g., Allenet de Ribemont v. France, February 10, 1995, 15175/89 [1995] ECHR 5, where the
European Court of Human Rights held that the right to presumption of innocence may be "infringed not only
by a judge or court but also by other public authorities." The ECHR likewise held:
The presumption of innocence enshrined in paragraph 2 of Article 6 (art. 6-2) is one of the elements of the
fair criminal trial that is required by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer v.
Belgium judgment, of 27 February 1980, Series A no. 35, p. 30, para. 56, and the Minelli judgment
previously cited, p. 15, para. 27). It will be violated if a judicial decision concerning a person charged with a
criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It
suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the
court regards the accused as guilty (see the Minelli judgment previously cited, p. 18, para. 37).
[emphasis supplied]
119. 68 Phil. 12 (1939).
120. Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December
15, 2004, 446 SCRA 299, 370.
121. See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, id., where the Court
expanded the concept of suspect classification; See also Serrano v. Gallant Maritime Services, Inc., infra
where the Court applied the strict scrutiny test.
122. G.R. No. 167614, March 24 2009, 582 SCRA 254, 277-278.
123. Supra note 30, pp. 139-140.
124. J. Carpio-Morales' Dissenting Opinion. Supra note 120, p. 485.
125. See Item I (c) of this Concurring Opinion, p. 8.
127. Supra note 120, pp. 495-496.
128. Id. at 387, 390.
129. Supra note 120, p. 296.
130. Id. at 278 citing Grutter v. Bollinger, 539 US 306 (2003); Bernal v. Fainter, 467 US 216 (1984).
131. EO 1, 5th Whereas Clause.
132. EO 1, 6th Whereas Clause.
133. Carbonaro v. Reeher, 392 F. Supp. 753 (E.D. Pa. 1975).
134. See then Associate Justice Reynato S. Puno's Concurring and Dissenting Opinion in Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. No. 160261, November
10, 2003, 415 SCRA 44, 211, where former Chief Justice Puno spoke of an "imperial judiciary," viz.:
The 1987 Constitution expanded the parameters of judicial power, but that by no means is a justification for
the errant thought that the Constitution created an imperial judiciary. An imperial judiciary composed of the
unelected, whose sole constituency is the blindfolded lady without the right to vote, is counter-majoritarian,
hence, inherently inimical to the central ideal of democracy. We cannot pretend to be an imperial judiciary
for in a government whose cornerstone rests on the doctrine of separation of powers, we cannot be the
repository of all remedies.
135. Ibid.
BERSAMIN, J.:
1. Philippine Constitution Association v. Hon. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888,
August 19, 1994, 235 SCRA 506.
2. G.R. Nos. 191002, 191032, 191057, 191149, 191342 and 191420, and A.M. No. 10-2-5-SC, March 17,
2010.
3. Secretary of the Department of Transportation and Communications v. Malabot, G.R. No. 138200, February
27, 2002, 378 SCRA 128.
4. Mondano v. Silvosa, 97 Phil. 143.
5. Record of the Deliberation of the 1986 Constitutional Commission, R.C.C. No. 40, Saturday, July 26, 1986,
pp. 265.
6. Id., at 265-266.
7. Id., at 267.
PEREZ, J.:
1. G.R. Nos. 105965-70, 354 SCRA 651, 661.
2. Id. at 664-665.
3. Id. at 660-661.
4. Records of the Constitutional Commission Vol. II, 26 July 1986, p. 267.
5. Sec. 9, Sec. 10, Sec. 14 and Sec. 2 of Article XI, 1987 Constitution.
6. Records of the Constitutional Commission, Vol. II, 26 July 1986, p. 296.
7. Section 2 (a) and (b), respectively, E.O. No. 1, dated 30 July 2010.
8. Article XI, Section 13 (1), 1987 Constitution.
9. Section 2 (b), E.O. No. 1, supra note 7.
10. Article XI, Section 13 (4), 1987 Constitution.
11. Section 2 (c) and (d), E.O. No. 1, supra.
12. Article XI, Section 13(5), 1987 Constitution.
13. Section 2 (e), E.O. No. 1, supra.
14. Id., Section 9.
15. The Ombudsman Act of 1989, Section 15 (8) and (9) and Section 26 (4).
16. G.R. Nos. L-79660-707, 27 April 1988, 160 SCRA 843, 846-847.
17. G.R. No. 159747, 13 April 2004, 427 SCRA 46.
18. Id. at 74.
19. Id. at 77-78.
20. Id. at 86.
21. Id. at 92.
22. Memorandum for Respondent, p. 79.
23. G.R. No. 120422, 248 SCRA 566, 579.
24. Memorandum for Respondents, pp. 73-74.
25. Memorandum for Respondents, p. 82.
CARPIO, J., dissenting:
1. Also known as the Administrative Code of 1987. One of EO 1's WHEREAS clauses reads: "WHEREAS,
Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office
of the President."
2. Domingo v. Zamora, 445 Phil. 7, 13 (2003).
3. Emphasis supplied.
4. Emphasis supplied. President Aquino took his oath in Filipino.
5. Rodriguez, et al. v. Santos Diaz, et al., 119 Phil. 723, 727-728 (1964).
6. TSN, 7 September 2010, pp. 56-57.
7. No. L-29274, 27 November 1975, 68 SCRA 99, 104.
8. Section 31, Chapter 10, Title III, Book III of EO 292, quoted on page 2.
9. Section 22, Chapter 8, Title II, Book III of EO 292 reads:
Section 22. Office of the President Proper. (1) The Office of the President Proper shall consist of the Private
Office, the Executive Office, the Common Staff Support System, and the Presidential Special
Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy Executive Secretaries and
Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the offices or units under the general categories of
development and management, general government administration and internal administration; and
(4) The Presidential Special Assistants/Advisers System includes such special assistants or
advisers as may be needed by the President." (Emphasis supplied)
10. Section 22 (4), Id.
11. Section 47 (2), Chapter 6, Book V of EO 292 provides:
Section 47. Disciplinary Jurisdiction. —
xxx xxx xxx
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall
have jurisdiction to investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction. . . . . (Emphasis supplied)
12. Paragraph 1 of PD 1416, as amended, provides:
1. The President of the Philippines shall have continuing authority to reorganize the National
Government. In exercising this authority, the President shall be guided by generally acceptable principles
of good government and responsive national development, including but not limited to the following
guidelines for a more efficient, effective, economical and development-oriented governmental framework:
(a) More effective planning, implementation, and review functions;
(b) Greater decentralization and responsiveness in the decision-making process;
(c) Further minimization, if not elimination, of duplication or overlapping of purposes, functions, activities,
and programs;
(d) Further development of as standardized as possible ministerial, sub-ministerial and corporate

organizational structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and administrative relationship among government entities.
For purposes of this Decree, the coverage of the continuing authority of the President to reorganize shall be
interpreted to encompass all agencies, entities, instrumentalities, and units of the National Government,
including all government-owned or controlled corporations, as well as the entire range of the powers,
functions, authorities, administrative relationships, and related aspects pertaining to these agencies,
entities, instrumentalities, and units.
2. For this purpose, the President may, at his discretion, take the following actions:
(a) Group, coordinate, consolidate or integrate departments, bureaus, offices, agencies, instrumentalities
and functions of the government;
(b) Abolish departments, offices, agencies or functions which may not be necessary, or create those which
are necessary, for the efficient conduct of government functions services and activities;
(c) Transfer functions, appropriations, equipment, properties, records and personnel from one
department, bureau, office, agency or instrumentality to another;
(d) Create, classify, combine, split, and abolish positions;
(e) Standardize salaries, materials and equipment;
(f) Create, abolish, group, consolidate, merge, or integrate entities, agencies, instrumentalities, and units of
the National Government, as well as expand, amend, change, or otherwise modify their powers, functions
and authorities, including, with respect to government-owned or controlled corporations, their corporate life,
capitalization, and other relevant aspects of their charters; and
(g) Take such other related actions as may be necessary to carry out the purposes and objectives of this
Decree. (Emphasis supplied)
13. Paragraph 1 (c) and (e), PD 1416, as amended.
14. The clause states: "WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government."
15. Aurillo v. Rabi, 441 Phil. 117 (2002); Drilon v. Lim, G.R. No. 112497, 4 August 1994, 235 SCRA 135;
Mondano v. Silvosa, etc. et al., 97 Phil. 143 (1955).
16. Section 29 (1), Article VI, 1987 Constitution.
17. Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742,
14 July 1989, 175 SCRA 343.
18. See Special Provision No. 2, General Appropriations Act of 2010 or Republic Act No. 9970.
19. TSN, 7 September 2010, p. 61.
20. Doran v. Executive Judge Luczon, Jr., G.R. No. 151344, 26 September 2006, 503 SCRA 106.
21. Id.
22. G.R. No. 179830, 3 December 2009, 606 SCRA 554, citing Dole Philippines Inc. v. Esteva, G.R. No.
161115, 30 November 2006, 509 SCRA 332.
23. Id. at 570-571.
24. Section 65, Chapter 13, Book IV of EO 292 merely provides:
Section 65. Approval of other types of Government Contracts. — All other types of government contracts
which are not within the coverage of this Chapter shall, in the absence of a special provision, be executed
with the approval of the Secretary or by the head of the bureau or office having control of the appropriation
against which the contract would create a charge. Such contracts shall be processed and approved in
accordance with existing laws, rules and regulations.
25. http://www.mb.com.ph/node/270641/ombud, accessed on 19 November 2010.
26. Section 1, Rule 112, Rules of Court.
27. "An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for
Other Purposes." Also known as "The Ombudsman Act of 1989."
28. Republic Act No. 8249, entitled "An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending
for the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefore, and for Other
Purposes." Approved on 5 February 1997.
29. Section 13 (1), Article XI, Constitution.
30. G.R. No. 159747, 13 April 2004, 427 SCRA 46.
31. Id. at 70.
32. Id.
33. People vs. Morial, 415 Phil. 310 (2001).
34. An Act Establishing The Philippine National Police Under A Reorganized Department of the Interior and
Local Government And For Other Purposes. Also known as the Philippine National Police Law or the
Department of the Interior and Local Government Act of 1990.
35. Section 3, Chapter I, Title III, Book IV of EO 292 provides:
Section 3. Powers and Functions. — To accomplish its mandate, the Department (DOJ) shall have the
following powers and functions:
(1) . . .
(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction
system;
xxx xxx xxx
36. TSN, 28 September 2010, pp. 41-42.
37. Section 46 (25), Chapter 7, Book V, EO 292.
38. Section 1, Rule 21 of the Rules of Court provides:
SEC. 1. Subpoena and Subpoena duces tecum. — Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It may also require him to bring with him any
books, documents, or other things under his control, in which case it is called a subpoena duces tecum.
(Emphasis supplied)
39. Section 9, Rule 21 of the Rules of Court provides:
SEC. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued
by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule. (Emphasis supplied)
40. In sharp contrast, Section 26 (1), Article VI of the Constitution provides: "Every bill passed by the Congress
shall embrace only one subject which shall be expressed in the title thereof." Thus, the title of a bill must
express the subject of the bill.
41. With apologies to William Shakespeare. These are the lines in Romeo and Juliet: "What's in a name? That
which we call a rose by any other name would smell as sweet."
42. Created by Presidential Decree No. 1886 dated 14 October 1983.
43. The Majority Opinion of the Agrava Board recommended for prosecution 26 named individuals, including
Gen. Fabian Ver. The Minority Opinion of Chairperson Corazon Agrava recommended for prosecution only
7 named individuals, excluding Gen. Ver.
44. Excluding those charged as "John Does."
45. One of the accused died during the trial and three remained at large.
46. Virata v. Sandiganbayan, G.R. No. 86926, 15 October 1991, 202 SCRA 680; PCGG v. Peña, 293 Phil. 93
(1988); and Baseco v. PCGG, 234 Phil. 180 (1987).
47. Article 90, in relation to Articles 211-A and 217, of the Revised Penal Code.
48. Section 11, RA No. 3019.
49. Section 1, Act No. 3326.
50. Section 2, EO 1.
51. Section 2 (b), EO 1.
52. Id.
53. See People v. Duque, G.R. No. 100285, 13 August 1992, 212 SCRA 607.
54. Section 15, Article XI, Constitution.
55. Section 14 of EO 1 provides that "the Commission shall accomplish its mission on or before December 31,
2012."
56. In People v. dela Piedra, 403 Phil. 31, 54 (2001), the Court stated, "The prosecution of one guilty person
while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of
the laws."
57. G.R. No. 86926, 15 October 1991, 202 SCRA 680.
58. Id. at 698. (Emphasis supplied)
59. Created by President Franklin Roosevelt.
60. Created by President Lyndon Johnson.
61. Created through law by the U.S. Congress.
62. Executive Order No. 1, dated 28 February 1986.
63. Administrative Order No. 53 — Creating an Ad-hoc and Independent Citizens' Committee to Investigate All
the Facts and Circumstances Surrounding Philippine Centennial Projects, Including its Component
Activities, dated 24 February 1999.
64. Even prior to the 1987 Constitution, public officials could not acquire ownership of their ill-gotten wealth by
prescription. Section 11 of Republic Act No. 1379, or the Law on Forfeiture of Ill-Gotten Wealth enacted on
18 June 1956, provides:
Section 11. Laws on prescription. — The laws concerning acquisitive prescription and limitation of actions
cannot be invoked by, nor shall they benefit the respondent, in respect of any property unlawfully acquired
by him.
Under Article 1133 of the New Civil Code, "[m]ovables possessed through a crime can never be acquired
through prescription by the offender." And under Article 1956 of the Spanish Civil Code of 1889, "ownership
of personal property stolen or taken by robbery cannot be acquired by prescription by the thief or robber, or
his accomplices, or accessories, unless the crime or misdemeanor or the penalty therefor and the action to
enforce the civil liability arising from the crime or misdemeanor are barred by prescription."
65. 517 U.S. 456, decided 13 May 1996. The U.S. Supreme Court reiterated this ruling in United States v.
Bass, 536 U.S. 862 (2002), a per curiam decision.
66. 517 U.S. 456, 465.
67. Id. at 464.
68. 470 U.S. 821 (1985).
69. Id. at 832.
70. 197 Phil. 407, 423 (1982). This ruling was reiterated in City of Manila v. Laguio, 495 Phil. 289 (2005); Mejia
v. Pamaran, 243 Phil. 600 (1998); Bautista v. Juinio, 212 Phil. 307 (1984); and Calubaquib v.
Sandiganbayan, 202 Phil. 817 (1982).
71. 403 Phil. 31 (2001).
72. Id. at 54-56.
73. G.R. No. 168918, 2 March 2009, 580 SCRA 409.
74. G.R. No. 173176, 26 August 2008, 563 SCRA 341.
76. Id.
77. Supra, note 46.
78. See Spouses Aduan v. Levi Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; UCPB v. Looyuko,
G.R. No. 156337, 28 September 2007, 534 SCRA 322; First Women's Credit Corporation v. Perez, G.R. No.
169026, 15 June 2006, 490 SCRA 774; and Dupasquier v. Court of Appeals, 403 Phil. 10 (2001).
79. Memorandum for Respondents, p. 91.
80. The 2010 Transparency International Corruption Index ranks the Philippines at 134 out of 178 countries.
See http:/www.transparency.org/policy_research/surveys_indices/cpi/2010/results, accessed on 13
November 2010.
82. Id.
CARPIO MORALES, J., dissenting:
1. EXECUTIVE ORDER No. 292 (July 25, 1987), Book I, Chapter 9, Sec. 37.
2. CONSTITUTION, Art. VII, Secs. 1 & 7 (2nd sentence), respectively.
3. Id., Sec. 7 (1st sentence).
4. EXECUTIVE ORDER No. 292 (July 25, 1987), Book III, Title III, Chapter 10, Sec. 31.
5. PRESIDENTIAL DECREE No. 1416 (June 9, 1975), as amended by PRESIDENTIAL DECREE No. 1772
(January 15, 1982).
6. CONSTITUTION, Art. III, Sec. 1.
7. Ponencia, p. 41.
8. Vide Bagatsing v. Committee on Privatization, PNCC, 316 Phil. 414 (1995).
9. Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007, 531 SCRA
583.
10. Vide e.g., Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552,
October 5, 2010, where the Court found that Sen. Ma. Ana Consuelo Madrigal had no legal standing.
11. Ponencia, pp. 13-14, citing Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19,
1994, 235 SCRA 506.
12. Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622, 631-632.
13. 509 Phil. 567 (2005).
14. Vide White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 431-
432, which reads:
American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut, the United States Supreme Court
held that physicians had standing to challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available to their patients. The Court held that:
The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those
rights are considered in a suit involving those who have this kind of confidential relation to them.
An even more analogous example may be found in Craig v. Boren, wherein the United States Supreme
Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male
customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to
females under the age of 18. The United States High Court explained that the vendors had standing "by
acting as advocates of the rights of third parties who seek access to their market or function."
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the
rights of the latter, the overbreadth doctrine comes into play. . . . (emphasis and underscoring supplied)
15. Consequently, A.M. No. 99-2-04-SC (effective March 15, 1999) directs: "No new issues may be raised by a
party in the Memorandum. Issues raised in previous pleadings but not included in the Memorandum shall be
deemed waived or abandoned. Being a summation of the parties' previous pleadings, the Memoranda alone
may be considered by the Court in deciding or resolving the petition."
16. Ponencia, p. 16.
17. It can be argued that the danger of otherwise resolving one issue not raised by the proper party, which
issue is personal to him, is the effect of foreclosing certain defenses known only to him. If the issue
concerning the "injured non-party" is defeated, it then becomes the "law of the case" (vide Banco de Oro-
EPCI, Inc. v. Tansipek, G.R. No. 181235, July 22, 2009, 593 SCRA 456 on "law of the case"). The injured
party can no longer resurrect the issue in a later case, even if he can present arguments more illuminating
than that of the current "uninjured" petitioner.
19. Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010.
20. Ponencia, pp. 24-25.
21. Id. at 37.
22. ". . . reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people . . .;" vide EXECUTIVE ORDER No. 1 (July 30, 2010), Sec. 1.
23. Respondents' Memorandum, Annex 1, citing EXECUTIVE ORDER No. 318 (May 25, 1950) and
EXECUTIVE ORDER No. 1 (December 30, 1953); vide EXECUTIVE ORDER No. 306 (July 15, 1958),
EXECUTIVE ORDER No. 378 (February 18, 1960) later repealed by EXECUTIVE ORDER No. 457
(December 29, 1961).
25. Id. at 29.
26. Id. at 27, vide id. at 7.
27. Id. at 8.
28. EXECUTIVE ORDER No. 1 (July 30, 2010), Secs. 1-2 & 7th whereas clause.
30. G.R. No. 189698, February 22, 2010.
31. EXECUTIVE ORDER No. 1 (July 30, 2010), Sec. 17. Special Provision Concerning Mandate. — If and
when in the judgment of the President there is a need to expand the mandate of the Commission as defined
in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive
Order.
32. Quinto v. Commission on Elections, supra.
34. Id. at 24.
35. <http://www.merriam-webster.com/dictionary/ad+hoc> [visited: November 10, 2010].
36. EXECUTIVE ORDER No. 1 (July 30, 2010), Sec. 14.
38. Id. at 26.
39. Id. at 29.
40. Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July 30, 2008, 560 SCRA 518, 539.
41. British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511, 570.
42. EXECUTIVE ORDER No. 1 (July 30, 2010), Sec. 18. Separability Clause. — If any provision of this Order
is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions
hereof.
43. Vide Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 298-299;
Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, 482 SCRA
673.
44. Ambros v. Commission on Audit (COA), G.R. No. 159700, June 30, 2005, 462 SCRA 572, 597.
SERENO, J., dissenting:
1. Decision, at p. 43.
2. This is discussed in the part of this Opinion on "The Majority Decision's Turn-Around."
3. Decision at p. 3.
4. Id.
5. Id. at p. 24.
6. Id. at p. 23.
7. Id. at p. 25.
9. Id. at 3.
10. 5 U.S. 137 (1803).
13. The majority Decision clarifies that investigation of deceased presidents, cases which have already
prescribed and simultaneous investigations of previous administration are not expected of the PTC.
(Decision at p. 37)
16. Id. at pp. 37-38.
17. I submit that the majority Decision must have intended to refer to all officials of past presidents, and not
only to the Presidents themselves.
18. Unless the Court is impliedly saying that the reported crimes that are the earliest in point of time are the
ones that must be prioritized, i.e., reported crimes committed during the administrations of Presidents
Corazon Aquino and Fidel Ramos. But to impose this standard is the height of legal unreasonableness and
the worst form of judicial overreach.
19. G.R. No. L-63915, 29 December 1986, 146 SCRA 446.
21. SECTION 17. Special Provision Concerning Mandate. — If and when in the judgment of the President
there is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such mandate
may be so extended accordingly by way of a supplemental Executive Order.
22. G.R. No. 189698, 22 February 2010.
23. Nixon v. Administrator of General Services, 433 US 425 cited in Am. Jur. 2d, Vol. 16(b), p. 371; Hunter v.
Flowers, 43 So. 2d 435 cited in Am. Jur. 2d, Vol. 16(b), p. 370; Clements v. Fashing, 457 U.S. 957.
25. Despite the attempt of the majority Decision to make it appear that it is not unreasonable in requiring an
all-comprehensive coverage when it says that it does not require the impossible, the fact that it keeps on
insisting that all past administrations must be included in the coverage of EO 1 give basis for the opinion
that the Decision indeed requires coverage spanning at least 6 decades, and even perhaps, a century. See
Dissent of J. Carpio.
26. Decision, at pp. 29-40.
27. Decision at p. 39, citing McDonald v. Board of Election Com'rs of Chicago, 394 US 802 cited in AM. Jur 2d,
note 9.
28. G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
29. G.R. No. L-3538, 28 May 1952, 91 Phil. 371.
30. G.R. No. 163583, 20 August 2008, 562 SCRA 511.
31. "All in all, the classification freeze provision addressed Congress's administrative concerns in the
simplification of tax administration of sin products, elimination of potential areas for abuse and corruption in
tax collection, buoyant and stable revenue generation, and ease of projection of revenues. Consequently,
there can be no denial of the equal protection of the laws since the rational-basis test is amply satisfied."
(British American Tobacco v. Camacho, id.)
32. Matiangai Sirleaf, Regional Approach to Transitional Justice? Examining the Special Court for Sierra
Leone and the Truth & Reconciliation Commission for Liberia, 21 Fla. J. Int'l L. 209, 213 (2009), citing E.
Gyimah-Boadi, Executive Director, CDD-Ghana, Paper Presentation at the British Hall Council:
Reconciliation: Comparative Perspectives, 7 (June 13, 2005).
33. Kristin Bohl, Breaking the Rules of Transitional Justice, 24 Wis. Int'l L. J. 557, 473 (2006).
34. G.R. L-25246, 12 September 1974, 59 SCRA 54.
37. United States v. Haggerty, 528 F.Supp. 1268, 1291 (D.Colo.1981).
38. United States v. Armstrong, 517 US 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996).
39. United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982).
40. McLaughlin v. State of Fla., 85 S.Ct. 283 (1964).
41. Application of Finn, 356 P.2D 685 (1960).
42. United States v. Wayte, 470 US 598, 608 (1995).
43. Bell v. State, 369 So.2d 932 (1979).
44. United States v. Armstrong, supra, 517 U.S. 456, 465 (1996).
45. United States v. Furman, 31 F.33 1034, 1038 (10th Cir. 1994), quoting United States v. Salazar, 720 F.2d
1482, 1487 (10th Cir. 1983).
46. United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983).
47. United States v. Hunter, 13 F.Supp.2D 586, 10 June 1998.
48. G.R. No. 121777, 24 January 2001, 350 SCRA 163.
49. CONSTITUTION, Article II, Section 27.
50. Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, 08 April 2010.
51. Ariel Meyerstein, Transitional Justice and Post Conflict Israel/Palestine: Assessing the Applicability of the
Truth Commission Paradigm, 38 Case W. Res. J. Int'l. L. 281, 330 (2006-2007).
52. Agrava Commission, Presidential Decree No. 1886 (14 October 1983).
53. Davide Commission, Administrative Order No. 146 (06 December 1989) and Republic Act No. 6832 (05
January 1990).
54. Feliciano Commission, Administrative Order No. 78 (30 July 2003).
55. Melo Commission, Administrative Order No. 173 (23 March 2007).
56. Zeñarosa Commission, Administrative Order No. 275 (09 December 2009).
57. Reyes v. Pearlbank Security, Inc., G.R. No. 171435, 30 July 2008, 560 SCRA 518.
58. Executive Order No. 1, Section 2 (b).
59. "The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by
itself, a denial of the equal protection of the laws." (People v. Dumlao, G.R. No. 168918, 02 March 2009,
580 SCRA 409).
60. G.R. No. 142030, 21 April 2005, 456 SCRA 494.
61. G.R. Nos. 148213-17, 13 March 2009, 581 SCRA 42.
62. Rose Weston, Facing the Past, Facing the Future: Applying the Truth Commission Model to the Historic
Treatment of Native Americans in the United States, 18 Ariz. J. Int'l & Comp. L. 1017, 1018-1019 (2001).
63. Jocelyn E. Getgen, Untold Truths: The Exclusion of Enforced Sterilizations From the Peruvian Truth
Commission's Final Report, 29 B.C. THIRD WORLD L.J. 1, 34 (2009).
64. James Thuo Gathii, Defining the Relationship of Human Rights to Corruption, 31 U. PA. J. INT'L L. 125,
170 (2009).
65. Concurring Opinion of Justice Brion, p. 16
66. Id.
67. Id. at p. 22.
68. Keith Aoki, The Scholarship of Reconstruction and the Politics of Backlash, 81 IOWA L. REV p. 1468, July
1996.
69. Id.
70. Justice Brion's Concurring Opinion, pp. 13, 17-18.
71. Id. at p. 15.
72. Id. at p. 27.
73. Brion, supra at p. 27.
74. Stephen Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth
Commissions, LAW & CONTEMP. PROBS., Vol. 59, No. 4, p. 88 (1997).
75. Sharon K. Hom and Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA LAW
REVIEW 1747 (2000), p. 1764.
76. Hom and Yamamoto, supra at p. 1759.
77. G.R. No. 182498, 03 December 2009, 606 SCRA 598.
78. The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law. (CONSTITUTION, Article III, Section 7)
79. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. (CONSTITUTION, Article II, Section 28)
80. "The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.
"The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the
State to be accountable by following such policy. These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times accountable to the people." (Province of North
Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951 &
183962, 14 October 2008, 568 SCRA 402; emphasis supplied)
81. In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by
partisan interests, public opinion or fear of criticism. (Barillo v. Lantion, G.R. No. 159117 & A.M. No. MTJ-10-
1752, 10 March 2010).
82. People v. Sebreño, G.R. No. 121764, 09 September 1999, 314 SCRA 87.
83. Justice Brion's Concurring Opinion, at pp. 18-19.
84. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 150 (1921).
85. Cardozo, supra at pp. 166-167.
86. Roosevelt as cited in Cardozo, id. at p. 171.
87. Id. at pp. 172-173.
88. Cardozo, supra at p. 174.
89. Concurring Opinion of Justice Brion, p. 18.
91. Id. at p. 176.
92. Id. at p. 177.
94. Id. at p. 179.
95. Justice Brion's Concurring Opinion, pp. 5-6.
96. Id. at p. 6.
97. Juan E. Mendéz, Accountability for Past Abuses, 19 HUM. RTS. Q2, 255-282 (1997); Charles O. Lerche
III, Truth Commissions and National Reconciliation: Some Reflections on Theory and Practice
<http://www.gmu.edu/academic/pcs/LERCHE71PCS.html> (accessed 7 November 2010).
98. David Crocker, Reckoning with Past Wrongs: A Normative Framework, 13 ETHICS & INTERNATIONAL
AFFAIRS, 43-64 (1999).
99. Brion, supra at p. 6.
100. Id. at p. 20.
101. Id. at p. 33.
102. Angelika Schlunck, Truth and Reconciliation Commissions, 4 ILSA J. INT'L & COMP. L, 415, 2.
103. S. Sandile Ngcobo, Truth, Justice, and Amnesty in South Africa: Sins from the Past and Lessons for the
Future, 8 IUS GENTIUM, 6-7.
104. Landsman, supra note 72.
105. Neil J. Kritz, Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations
of Human Rights, 59 LAW & CONTEMP. PROBS. 4, 127-152.
106. Schlunck, supra at pp. 419-420.
107. World Bank, Anticorruption in Transition: A Contribution to the Policy Debate (2000)
<http://info.worldbank.org/etools/docs/library/17506/contribution.pdf> (accessed on 7 November 2010).
108. World Bank, supra at pp. 1-2.
109. Ngcobo, supra note 103 at p. 7.
110. "The question at the heart of the anomaly is why a democracy — a political system based on
representation and accountability — should entrust the final, or near final, making of such highly significant
decisions to judges — unelected, independent and insulated from the direct impact of public opinion."
(Stephen G. Breyer, Judicial Review: A Practising Judge's Perspective, 19 Oxford Journal of Legal Studies
153 [1999], cited in VICENTE V. MENDOZA, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS, 261
[2004].
111. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR
OF POLITICS, 16-17 (1962).
112. Decision, at p. 42.
113. Akbayan Citizens Action Party (AKBAYAN) v. Aquino, G.R. No. 170516, 16 July 2008, 558 SCRA 468.
114. Puno, Concurring and Dissenting Opinion in Francisco v. House of Representatives, G.R. No. 160261, 10
November 2003, 415 SCRA 44, 211.
115. Getgen, supra note 63, at p. 33.
NACHURA, J., concurring and dissenting:
1. SEC. 17. The President shall have control of all the executive departments, bureau and offices. He shall
ensure that the laws be faithfully executed.
2. G.R. No. 171396, May 3, 2006, 489 SCRA 160.
3. Fernandez v. Sto. Tomas, 312 Phil. 235, 247 (1995).
4. 50 Phil. 259 (1927).
5. Section 1. The executive power shall be vested in the President of the Philippines.
6. Cruz, Philippine Political Law (2005 ed.), p. 182.
7. G.R. No. 143481, February 15, 2002.
8. Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
9. Cruz, Philippine Political Law (2005 ed.), p. 213.
10. Id. at 216.
11. 354 Phil. 948 (1998).
12. 97 Phil. 143 (1955).
13. Cruz, Philippine Political Law (2005 ed.), pp. 211-212.
14. 101 Phil. 328 (1957).
15. G.R. No. L-30852, February 26, 1988, 158 SCRA 158.
16. Sinco, Philippine Political Law (10th ed.), p. 260.
17. See Marcos v. Manglapus, G.R. No. 88211, September 15, 1989, 178 SCRA 760.
18. See Chapter 8, Title II, Book III of the Administrative Code.
19. Section 31, Chapter 10, Title III, Book III of the Administrative Code.
20. Section 2, Chapter 1, Book IV of the 1987 Administrative Code.
21. Ople v. Torres, 354 Phil. 949 (1998).
23. G.R. Nos. 142801-142802, July 10, 2001, 360 SCRA 718.
24. G.R. No. 152845, August 5, 2003, 408 SCRA 337.
25. Sinco, Philippine Political Law, p. 261,
26. See Tañada v. Angara, 338 Phil. 546 (1997), where the Court did not "review the wisdom of the President
and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a
policy espoused by the said international body." The issue passed upon by the Court was limited to
determining whether there had been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the Senate in ratifying the WTO Agreement and its three annexes.
27. British American Tobacco v. Camacho, G.R. No. 163583, August 20, 2008, 562 SCRA 511.
28. Victoriano v. Elizalde Rope Workers' Union, 158 Phil. 60 (1974).
29. Coconut Oil Refiners Association v. Torres, 503 Phil. 42, 53-54 (2005).
30. British American Tobacco, v. Camacho, et al., supra note 27.
31. California Law Review 1929, December 1985.
32. G.R. No. 118127, April 12, 2005, 455 SCRA 308.
33. 487 Phil. 531 (2004).
34. Supra note 27.
35. Prince Eric Fuller v. State of Oregon, 417 U.S., 40, 94 S. Ct. 2116, 40 L. Ed. 2d 577.
36. Calvin Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
37. 450 U.S. 464, 101 S. Ct. 1200, U.S. Cal., 1981, March 23, 1981.
38. Id.
39. Massey, Roadmap of Constitutional Law, Aspen Law & Business, 1997, p. 301.
40. Id. at 302-302.
41. Id. at 303.
42. Id.
43. Id. at 299.
44. Section 2, Book III, Title I, Administrative Code.
45. CONSTITUTION, Section 28, Article II.
46. CONSTITUTION, Section 17, Article VII.
47. CONSTITUTION, Section, 5, Article VII.
48. See Annex "A" of the Respondent's Memorandum.
49. See: Miller v. Wilson, 236 U.S. 373, 384, 35 S. Ct. 342, 59 L. Ed. 628 (1915).
50. See People v. Dumlao, G.R. No. 168198, March 2, 2009, 580 SCRA 409 citing Santos v. People and
People v. Dela Piedra.
51. G.R. No. 121777, January 24, 2001, 350 SCRA 163.
52. State v. Hatori, 92 Hawaii 217, 225 [1999] citing State v. Sturch, 82 Hawaii 269, 276 [1996].
53. Coconut Oil Refiners Association, Inc., et al. v. Hon. Ruben Torres, et al., 503 Phil. 42, 53-54 (2005).
54. People v. Dela Piedra, 403 Phil. 31 (2001).
55. G.R. No. 88211, September 15, 1989, 177 SCRA 668, 695-697.
LEONARDO-DE CASTRO, J., concurring:
1. From the website of the International Center for Transitional Justice, http://ictj.org/en/tj/138.html, accessed
on December 6, 2010.
2. Rule-of-Law Tools for Post-Conflict States: Truth Commissions, Office of the United Nations High
Commissioner for Human Rights, United Nations, New York and Geneva (2006) at p. 6.
3. Section 1, EO No. 1.
4. TSN, September 28, 2010, pp. 209-215, cited in the Separate Opinion of Justice Brion.
5. To cite a few examples: The South African "Truth and Reconciliation Commission" was established under
the Promotion of National Unity and Reconciliation Act 34 of 1995 passed by that country's parliament. The
"National Unity and Reconciliation Commission" in Rwanda was officially set up in 1999 by an act of the
Transitional National Assembly.
6. Section 11 of EO No. 1.
7. Section 15 of EO No. 1.
8. Section 2, EO No. 1 with phrase in brackets supplied from Section 1.
9. 104 Phil. 483 (1958).
10. 345 Phil. 962 (1997).
11. Id. at 974.
12. 352 Phil. 888 (1998).
13. Id. at 913-914.

14. 496 Phil. 886 (2005).
15. Id. at 896-897.
16. 160-A Phil. 753 (1975).
17. Id. at 776.
PERALTA, J., concurring:
1. See David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
2. Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.
3. Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.
4. Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure
that the laws be faithfully executed.
5. G.R. No. 152845, August 5, 2003, 408 SCRA 337.
6. Id. (Emphasis supplied.)
7. Id. (Emphasis supplied.)
8. Enacted on June 9, 1978.
10. Conducted on September 28, 2010.
11. Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, First
edition, pp. 70-73, citing Legaspi v. Minister of Finance, 115 SCRA 418. (1982).
12. Id. at 73.
14. Id.
15. G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718.
16. G.R. No. 138200, February 27, 2002, 378 SCRA 128.
17. Supra note 5.
18. G.R. No. 149724, August 19, 2003, 409 SCRA 359.
19. G.R. No. 167324, July 17, 2007, 527 SCRA 746.
20. G.R. No. 160093, July 31, 2007, 528 SCRA 673.
21. G.R. No. 166620, April 20, 2010.
22. OSG Memorandum, p. 43.
23. 496 Phil. 886, 896-897 (2005).
24. Secretary of the Department of Transportation and Communications v. Mabalot, supra note 16.
26. Supra note 23.
27. Department of Health v. Camposano, supra note 23.
28. G.R. No. 145184, March 14, 2008, 548 SCRA 295. In this case, President Fidel V. Ramos issued on
October 8, 1992, Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans (Committee), which reads:
WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that "Subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions
involving public interest";
WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that "The right of the state to recover
properties unlawfully acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches or estoppel";
WHEREAS, there have been allegations of loans, guarantees, or other forms of financial accommodation
granted, directly or indirectly, by government owned and controlled bank or financial institutions, at the
behest, command or urging by previous government officials to the disadvantage and detriment of the
Philippine government and the Filipino people;
ACCORDINGLY, an "Ad-Hoc FACT FINDING COMMITTEE ON BEHEST LOANS" is hereby created to be

composed of the following:
Chairman of the Presidential

Commission on Good Government - Chairman
The Solicitor General - Vice-Chairman
Representative from the

Office of the Executive Secretary - Member

Department of Finance - Member

Department of Justice - Member

Development Bank of the Philippines - Member

Philippine National Bank - Member

Asset Privatization Trust - Member
Government Corporate Counsel - Member

Philippine Export and Foreign
Loan Guarantee Corporation - Member
The Ad Hoc Committee shall perform the following functions:
1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and
stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who
influenced the grant thereof;
2. Identify the borrowers who were granted "friendly waivers", as well as the government officials who
granted these waivers; determine the validity of these waivers;
3. Determine the courses of action that the government should take to recover those loans, and to
recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof.
The Committee is hereby empowered to call upon any department, bureau, office, agency, instrumentality
or corporation of the government, or any officer or employee thereof, for such assistance as it may need in
the discharge of its function.
29. See Footnote 28.
30. E.O. No. 1, Section 2 (i).
31. E.O. No. 1, Section 2 (j).
32. E.O. No. 1, Section 5.
33. E.O. No. 1, Section 2 (e).
34. E.O. No. 1. Section 9.
35. Id.
36. The Constitution, Article VI, Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.
37. Joaquin G. Bernas, S.J., The Constitution of the Republic of the Philippines, A Commentary, Vol. II, supra
note 11, at 70, 140-141, 161.
40. Republic Act No. 6770, Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall
have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the
investigation of such cases . . . .
41. City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308.
42. E.O. No. 1, Section 2. Powers and functions. — The Commission, 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 a thorough fact-finding investigation of reported cases of graft and corruption referred to
in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration . . . . (Emphasis
supplied.)
44. Memorandum, p. 89.
45. Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15,
2004, 446 SCRA 299, citing Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54. (1974).
46. City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348.
47. Id. at 348-349
48. No. L-47771, March 11, 1978, 82 SCRA 30.
49. Peralta v. Commission on Elections, supra.
50. Id.
ABAD, J., dissenting:
1. Dated July 30, 2010.
2. Rene B. Gorospe, I Constitutional Law (2004 Edition) 210.
3. 2 Cooley, Constitutional Limitations, 824-825.
4. People v. Cayat, 68 Phil. 12 (1939), citing leading American cases.
5. 1987 CONSTITUTION OF THE PHILIPPINES, Article 11, Section 15.
6. Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
7. Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411, 416.
n Note from the Publisher: Written as "G.R. No. 7842" in the official document.

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10/20/24, 9:06 PM G.R. Nos. 192935 & 193036 | Biraogo v.

Philippine Truth Commission of 2010

[G.R. No. 192935. December 7, 2010.]

LOUIS "BAROK" C. BIRAOGO, petitioner, vs. THE PHILIPPINE TRUTH COMMISSION OF

[G.R. No. 193036. December 7, 2010.]

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.

— Justice Jose P. Laurel [1]

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

h) Call upon any government investigative or prosecutorial agency such as the

j) Promulgate its rules and regulations or rules of procedure it deems necessary to

SECTION 3. Stafﬁng Requirements. — . . . .

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

SECTION 5. Engagement of Experts. — . . .

SECTION 6. Conduct of Proceedings. — . . . .

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

SECTION 8. Protection of Witnesses/Resource Persons. — . . . .

SECTION 10. Duty to Extend Assistance to the Commission. — . . . . .

SECTION 12. Ofﬁce. — . . . .

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

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

SECTION 16. Transfer of Records and Facilities of the Commission. — . . . .

SECTION 18. Separability Clause. — If any provision of this Order is declared

(SGD.) BENIGNO S. AQUINO III

(SGD.) PAQUITO N. OCHOA, JR.

Nature of the Truth Commission

The Thrusts of the Petitions

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

ASSOCIATE JUSTICE CARPIO:

SOLICITOR GENERAL CADIZ:

Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

SOLICITOR GENERAL CADIZ:

Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO:

SOLICITOR GENERAL CADIZ:

Yes, Your Honor. [50]

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

Second. The segregation of the preceding administration as the object of fact-ﬁnding is

Fourth. Many administrations subject the transactions of their predecessors to investigations

Concept of the Equal Protection Clause

The classiﬁcation must not be based on existing circumstances only, or so constituted as to

SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

OF TRUTH AND TRUTH COMMISSIONS

POWER TO CREATE PUBLIC OFFICES: INHERENTLY LEGISLATIVE

THE TRUTH COMMISSION IN THE LIGHT OF

(1) it be based on substantial distinctions;

(2) it must be germane to the purpose of the law;

(3) it must not be limited to present conditions; and

(4) it must apply equally to all members of the same class.

Section 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

Notwithstanding Section 17, which provides:

I rule in favor of petitioners.

xxx xxx xxx

xxx xxx xxx

Section 1. Creating of a Commission. — There is hereby created the PHILIPPINE TRUTH