LOUIS “BAROK” C. BIRAOGO VS. THE PHILIPPINE TRUTH COMMISSION OF 2010 NO. IT IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

 THE ARROYO
(G.R. NO. 192935, 07 DECEMBER 2010) 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
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. ADMINISTRATIONS SIMILARLY SITUATED CONSTITUTES ARBITRARINESS WHICH
DATUMANONG, AND REP. ORLANDO B. FUA, SR. VS.   EXECUTIVE SECRETARY THE EQUAL PROTECTION CLAUSE CANNOT SANCTION.
PAQUITO N. OCHOA, JR. AND DEPARTMENT OF BUDGET AND MANAGEMENT The ruling of the Court:
SECRETARY FLORENCIO B. ABAD (G.R. NO. 193036, 07                                              Applying these precepts to this case, Executive Order No. 1 should be struck down
THIS CASE IS ABOUT THE EQUAL PROTECTION CLAUSE ENSHRINED IN THE as violative of the equal protection clause.  The clear mandate of the envisioned
CONSTITUTION. truth commission is to investigate and find out the truth “concerning the reported
  cases of graft and corruption during the previous administration”[1][87]  only. The
READ THE FULL TEXT OF THE DECISION IN jabbulao.com under the category intent to single out the previous administration is plain, patent and manifest. 
RECENT SUPREME COURT DECISIONS. Mention of it has been made in at least three portions of the questioned executive
  order. Specifically, these are:
DOCTRINE:  WHEN A TRUTH COMMISSION IS CREATED TO INVESTIGATE WHEREAS, there is a need for a separate body dedicated solely to investigating and
ANOMALIES OF A SPECIFIC ADMINISTRATION IT IS VIOLATIVE OF THE EQUAL finding out the truth concerning the reported cases of graft and corruption during
PROTECTION CLAUSE. the previous administration, and which will recommend the prosecution of the
  offenders and secure justice for all;
DIGEST: SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE
  TRUTH COMMISSION, hereinafter referred to as the “COMMISSION,” which shall
FACTS: 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
EXECUTIVE ORDER NO. 1 WAS ISSUED BY PRESIDENT NOYNOY AQUINO TO and ethical sensibilities of the people, committed by public officers and employees,
INVESTIGATE REPORTED CASES OF GRAFT AND CORRUPTION OF THE PREVIOUS their co-principals, accomplices and accessories from the private sector, if any,
ADMINISTRATION. during the previous administration; and thereafter recommend the appropriate
  action or measure to be taken thereon to ensure that the full measure of justice
ISSUE: shall be served without fear or favor.
  SECTION 2. Powers and Functions. – The Commission, which shall have all the
IS THIS LEGAL? 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
RULING: 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. [Emphases supplied]
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
[2][88]
for a valid classification.”
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 lose its effectiveness.” [3]
[89]
 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.”[4][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).[5][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,[6][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.[7][93] Laws that do not conform to the Constitution should be stricken
down for being unconstitutional.[8][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,[9][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.[10][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.”[11][97]
The Court is not unaware that “mere underinclusiveness is not fatal to the validity
[12][98]
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
[13][99]
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
[14][100]
happens to be incomplete.  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.[15][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.”[16][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.” [17][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
[18][104]
graft and corruption committed during the previous administration.  
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 administrations, such mandate may be so extended
accordingly by way of a supplemental Executive 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.”[19][105]
The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,[20][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 OSG 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.”
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.”[21][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. [22][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.”[23][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.”[24][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.