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Truth Commission: Dissenting Opinion of Justice Roberto Abad
« on: December 14, 2010, 08:22:36 AM »
The majority holds that petitioners have standing before the Court; that President P-Noy has the power to create the Truth Commission; that he has not usurped the powers of Congress to create public offices and appropriate funds for them; and, finally, that the Truth Commission can conduct investigation without supplanting the powers of the Ombudsman and the Department of Justice since the Commission has not been vested with quasi-judicial powers.  I fully conform to these rulings.
The majority holds, however, that Executive Order 1 violates the equal protection clause of the Constitution.  It is here that I register my dissent.
The 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 –
            xxx 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.
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.
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.
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.
                                                              Associate Justice

Romans 10:9-10
"If you declare with your mouth, Jesus is Lord, and believe in your heart that God raised him from the dead, you will be saved. For it is with your heart that you believe and are justified, and it is with your mouth that you profess your faith and are saved."

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