Arroyo ally, justices argue on truth body

MANILA, Philippines—Likening the Aquino administration’ s Philippine Truth Commission to “an outlaw” that must be shot on sight, House Minority Leader Edcel Lagman Tuesday asked the Supreme Court
to strike down the executive order creating the agency for usurping the powers of Congress.

In oral arguments lasting three hours, Lagman told the court that President Benigno Aquino III’s Executive Order No. 1 empowering the commission to investigate alleged corruption during the previous Arroyo administration violated the principle of separation of powers by assuming functions that belonged to the legislature.

Associate Justice Maria Lourdes Sereno, Mr. Aquino’s first appointee to a court packed with justices appointed by former President Gloria Macapagal-Arroyo, challenged the arguments of Lagman, an Arroyo ally.

Sereno suggested a truth body might be needed in situations where erring officials might try to escape responsibility by hiding behind the law.

Sereno noted that during the Nuremberg war crimes trials after World War II, Nazi leaders tried to hide behind the law to protect themselves.

“Is it not true that ...when law is used to subvert the ends of truth and justice, then a higher law has to prevail?” she said.

Sereno also indicated that a truth commission might be necessary in view of “perception” that the current official graft-buster, Ombudsman Merceditas Gutierrez, might be beholden to Arroyo.

Lagman was also grilled by Chief Justice Renato Corona and other justices.

The oral arguments were spurred by a petition by Arroyo’s allies in the House of Representatives asking the tribunal to nullify the executive order as unconstitutional and “an enterprise in partisan hostility.”

Mr. Aquino signed the executive order on July 30, giving the commission powers to “investigate reports of graft and corruption of such a scale and magnitude that shock the moral and ethical sensibilities of the people.”

Its powers would allow it to look, among others, into Arroyo’s alleged rigging of the 2004 presidential election. Those in the private sector could also be criminally prosecuted for obstruction of justice.

Mr. Aquino gave the body until Dec. 31, 2012, to wrap up its work. The body will be headed by former Chief Justice Hilario Davide Jr.

An aberration

“The Office of the President arrogated the power of the Congress to create a public office when it issued Executive Order No. 1,” Lagman told the justices.

“If truth is to be achieved, justice served and corruption eradicated, then the ‘truth commission’ is an aberration. In the language of the honorable Supreme Court, it is like an outlaw which must be slain at sight,” he said.

Lagman also said the commission would duplicate the functions of the Office of the Ombudsman and the Department of Justice.

He added that the executive order violated the “equal protection clause” of the Constitution because it singled out officials of the Arroyo administration.

“Equal protection demands that all persons who belong to the same class of suspected or alleged perpetrators of graft and corruption must fall under the jurisdiction of the ‘truth commission’ without regard to personalities and regimes,” Lagman said.

Shadow of past regime

He declared: “Executive Order No. 1 wantonly violates the equal protection clause when it deliberately vested the ‘truth commission’ with jurisdiction and authority to solely target officials and employees of the Arroyo administration.”

Sereno said a truth commission might be needed if the previous administration remained influential with current officials in government
.

“Is it not a theory (in international legal circles) that when a past regime captures enough elements of the state to prevent the truth from being found out, then resort to truth commissions is considered as a legitimate means in allowing the public to redress for their quest of justice?” Sereno said.

“Assuming that the public is not convinced that the prosecutorial arm of the government ... in the form of the Ombudsman—in the present occupant of the Ombudsman office—is sufficiently independent ... then is it not correct that new democracies establish truth commissions?” she added.

Persistent justice

Lagman replied that there was a “presumption of regularity in the performance of official functions” by government agencies but Sereno persisted.

“In other words, what we have here, if we are not going to be blind to the opinion of people in the streets and in the newspapers ... is that there is a perception, wrongly or rightly, that the Arroyo government was able to effectively do a phenomenon of state capture,” Sereno said.

While insisting she did not necessarily share those views, Sereno said there were “many instances cited by many people” showing that the Arroyo administration had been able to elude accountability.

She said these included the existence of presidential immunity from suit, “the fact that the impeachment complaints all failed, the abortive investigations in the Senate and the fact that there are still high-level officials connected to her.”

Sereno said this included “the perception ... by some that she is subject to capture by the Arroyo administration.”

Lagman said he was not sure if that “perception” about the Ombudsman’s supposed partiality to the Arroyos was shared by a majority of the public.

“It could be propaganda. It could be media but definitely that perception cannot be the basis of a judicial action,” the lawmaker said.

Marcos decree

Corona focused on the truth body’s intention and asked if the people’s right to know should be upheld at all times. Lagman said such right should be channeled through existing agencies.

Corona asked if it would have been better if a bill were filed in Congress to strengthen the commission so that issues such as the exercise of quasi-judicial powers could be “cured.”

Associate Justice Conchita Carpio-Morales questioned Lagman’s contention that the creation of the commission violated the equal protection principle. She noted the executive order allowed for an investigation of abuses committed under other previous administrations.

Associate Justice Antonio Carpio, on the other hand, grilled Lagman on his claim that the executive order usurped Congress’ powers.

Carpio cited a Ferdinand Marcos decree empowering the President to create any office “anywhere in the national government.” He said the high court had already affirmed its legality.

The oral arguments will resume on Tuesday with the government presenting its case.

Philip Tubleza & Jerome Aning, Phil. Daily Inquirer