”No, I look at the senators and I pray for the country.’ [Edward Everett Hale (1822 – 1909) U.S. author].
Congressman Edcel Lagman and his ilk of blabbering buffoons went straight to the Court house to challenge PNoy’s Adm. Order NO. 1 creating the Truth Commission. With the usual bravado that could be mistaken as an immaculate patriotic act, the group would see the unconstitutionality of the Order chiefly because it transgresses the principle of separation of powers between the Executive Department and Congress and for added reasons that: 1). the Commission was created on the inapplicable reorganization power of the President under the Administrative Code of 1987; 2). it was created to selectively harass GMA and her partisans therefore in violation of the “equal protection clause” and, 3). it has unconstitutionally granted the Commission a quasi-judicial function.
The challenge is of course full of polemics to be entertaining enough for a country whose people are reflexively riveted to something that is tawdry and vulgar. Ascribing vexatious motive behind its creation by selectively targeting GMA and her gangs of criminals seems to bring our consciousness to something that we are not as a people. Look at the Marcoses who were back in power after almost twenty years of plunder and abuse. Nothing could be more obnoxious than seeing past power holders being held to account for their misdeeds. This is our national trait as a people and therefore, PNoy must honor our grotesque addiction to this damage culture.
Yes, indeed, this is an equal protection challenge! You can put me behind bars if you can put the Marcoses behind bars, or Davide behind bars, all or nothing at all. But in criminal law, your defense cannot be grounded on the issue that others are guiltier than you are.
Let us leave for a while the legalese to legal scholars and view this Executive Order with identical historical background.
In 1963, President Lyndon Johnson created the Warren Commission to investigate the truth about the assassination of JFK, and Mr. Marcos created the Agrava Commision to investigate the assassination of Ninoy in 1983. Erap created the notorious super body, PAOCTF to run after syndicates and criminals and GMA herself put up her own Presidential Anti-Graft Commision to run after corrupt government officials. With regards to the Warren and Agrava Commissions, the function was specific, to find the real perpetrators. Why would the function of the Truth Commission, to find GMA’s gang of thieves, any different now?
But I can concede for the validity of the detractors’ claim that TC should not only look for GMA’s gangs of thieves but also of PNoy’s brigands. For one, TC should investigate Ex-CJ Hilario Davide, Jr. himself for his role behind the diversion of the judicial welfare funds and for his role in the judicial coup d’etat of Joseph Estrada in 2001. Our people have as much right to know the truth behind these two high-profile scandals.
Now let us engage lawmaker Lagman in his legal charade. Executive Order No. 1 premised its birth from Book III, Chapter III, Sec. 31 of the Adm. Code on reorganization, which is legally wrong according to the congressman, but the Order creating the investigative body, cited the correct provisions of Sec. 37, Chapter 9, Book 1 of the same code as the basis for its power. This section provides, to wit:
“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.
That the President can create a commission is also anchored on Sec. 3 of the same book and chapter which provides:
” Administrative Orders. – Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.”
The foregoing administrative code provisions are clear in their imports that the President can create commissions and empower these commissions with quasi-judicial power. And considering further the fact that presidential commissions were also created by Erap and GMA during their terms, one wonders why Lagman and his group would be selective in their indignation over PNoy’s commission.
Furthermore, Congressman Lagman’s concept of separation of powers is blurred by his overly partisan jargons. If he claims to be an unbiased patriot, then his grasp of the complexity of the principle of separation of powers eluded him and it is regrettable that he is a legislator of national renown presumed to be skilled at law-making.
In issuing EO No. 1, PNoy did not create a permanent structure of government with positions and salary complements which admittedly, only Congress can do. He simply convened a group of people to assist in him in the discharge of his publicly announced policy to run after past brigands under the umbrella of the Truth Commission with limited tenure of 2 years. Salary provisions are not part of the EO and if ever emoluments could be made to the commissioners and their staff, the funds can be taken from the discretionary funds of the Office of the President, of which the EO did not even care to mention. But the point is, why was the ERAP and GMA commissions legal and did not offend the principle of separation of powers and the constitution but it did in PNoy’s Truth Commission?
The other ingredient being peddled to the unwary public is the issue that TC’s function is a duplication of functions of Ombudsman, the DOJ and the NBI. Erap’s PAOCTF and GMA’s PAGC were also duplications of the functions of some of existing government bodies. In Erap’s PAOCTF, the investigative function of the Police and the NBI had been totally duplicated.
Nonetheless, the issue of duplication of function is not a legal issue which could be properly inquired into by the courts. It is a policy determination made by the executive department to run after past crooks because the regular governmental agencies that had been tasked to investigate these crooks had been stymied by the wealth and powers of their previous patrons.
Congressman Lagman and his group cannot ask the Court to supplant its decision over that of the executive and declares EO No. 1 unconstitutional on this basis, lest they run the risk of breaching the very wall between these two agencies of which they would want sacredly observed in the first place.
But oh, well, these are politicians whose honor is as vacuous as their heads.