The Truth and Nothing But the Truth: Can The Philippines Handle It?
Can we handle the truth? It’s not a rhetorical question considering our penchant to steer away from the uncomfortable and the “nakakahiya”. The debate on whether Aquino should create one or not becomes moot and academic as P.Noy has already issued the EO creating the Truth Commission.
(Updated 8:15 p.m.) President Benigno Aquino III has finally signed his first executive order which created the Truth Commission that will investigate alleged corruption issues in the nine-year Arroyo administration.
“Today I signed Executive Order No. 1, establishing a commission to investigate allegations of anomalies during the last nine years. The process of bringing a necessary closure to the allegations of official wrongdoing and impunity has begun,” Aquino said in a statement read by his spokesman Edwin Lacierda in a press briefing in Malacañang.
The commission will “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 during the previous administration, EO No. 1 said.
The EO said its investigations will focus on cases that involve “public officers and employees, their co-principals, accomplices and accessories from the private sector, if any.”
The government officials that can be investigated are third-level public officers or higher.
While the focus of the Truth Commission is on cases involving the administration of former president Gloria Macapagal Arroyo, Aquino can extend the mandate of the newly-created body to include prior administrations through a supplemental executive order, according to Section 17 of the six-page EO.
The Commission, which will be chaired by retired Chief Justice Hilario Davide Jr., will have coercive powers. It can request and obtain information and documents from any agency under the executive branch; Congress; the courts including the Sandiganbayan and the Office of the Court Administrator; and government-owned and controlled corporations.
It can invite or subpoena witnesses and take their testimonies and administer oaths. Public officials who refuse to obey the subpoena, take oath, or give testimony without a lawful excuse, will be subjected to administrative disciplinary action, while any private person who does the same “may be dealt with in accordance with the law.”
Chief Presidential Legal Counsel Eduardo de Mesa, who said the Commission’s powers have solid basis in the Administrative Code, said the Palace is confident that the Supreme Court will uphold the legality and validity of the EO if it is questioned before the high court.
Despite its wide powers, however, the Commission has no prosecutorial function, and can only recommend actions to be taken. After its investigation, the Commission will submit its findings to the President, to Congress, and to the Office of the Ombudsman.
De Mesa said the government does not want to speculate on how the Office of the Ombudsman will handle the Commission’s findings amid allegations that Ombudsman Ma. Merceditas Gutierrez’s is personally close to the Arroyo family
“Regardless (of the Ombudsman’s image), the Truth Commission will do its work and make the appropriate recommendations,” he said in the same Palace briefing.
The Commission has until Dec. 31, 2012 to accomplish its mandate. Justice Secretary Leila de Lima, however, said the body can turn over to the proper agencies evidence or recommendations for cases that are “already ripe” for transmittal.
“We need not wait for the completion of the work of the Commission” before the government takes action on specific cases, de Lima said in the same press conference.
This is because the investigative body can, “from time to time for expeditious prosecution, turn over to the appropriate prosecutorial authorities… all evidence that it would have gathered in a particular case or cases,” de Lima said.
The evidence and initial findings could be sent by the Commission to prosecutors “by means of a special or interim report and recommendations,” she added.
De Lima admitted that the function of the Commission may overlap with the functions of some government agencies like the Justice department, but added that what makes it different is its special focus on bringing closure to corruption issues in the Arroyo administration.
“At first glance it seems to be a duplication of the DOJ and even of the Ombudsman, but no,” she explained, “because the reason why we have this particular mechanism is because the president really wants a more focused and a more expeditious disposition of these cases to really put a closure to these very important issues hounding our society.”
Other details to follow
The Commission will have four other officials: general counsel, deputy general counsel, special counsel, and clerk of the Commission. De Lima said a list containing eight to 10 names has been submitted to Aquino who will then choose from the list.
She refused to disclose the names on the list until Aquino has selected who will comprise the rest of the Truth Commission, saying only that three of these people have already signified their intention to join the fact-finding body.
The Commission is empowered to call on the Justice department or any of the agencies under it and the Presidential Anti-Graft Commission for assistance and cooperation. It can also engage the services of resource persons or personnel if necessary.
The funding for the Commission will be sourced from the Office of the President. The Commission will determine its budgetary requirements as well as its rules and procedures and what cases it will tackle, De Mesa said.
The Commission’s hearings will be open to the public but it can, upon its own initiative or upon the request of persons testifying, hold executive or closed-door hearings on matters where “national security or public safety” is involved or “when the personal safety of the witness” warrants it.— Jam Sisante/RSJ/LBG/JV, GMANews.TV
Like any other issue, there will always be another side. The challenge as always is which “side” takes ascendance. Senator Miriam Santiago represents “another side” – one that questions the existence of the Truth Commission itself. Sen Santiago is now mulling to take the matter to the Supreme Court.
Santiago mulls taking Truth Commission to SC
By Maila Ager
First Posted 17:29:00 08/02/2010
Filed Under: Politics, Government, Judiciary (system of justice)
MANILA, Philippines–Senator Miriam Defensor-Santiago is threatening to question before the Supreme Court the legality of Executive Order No. 1 that created the Truth Commission, calling it a “gross violation of the Constitution.”
“Let me say it candidly, Executive Order Number 1 is a usurpation of legislative function and we all in the legislative branch have a bound in duty to oppose that kind of usurpation. Even if I have to go to the Supreme Court, even with my poor physical health to fight for it,” the senator told a press conference on Monday.
“This is a gross violation of the Constitution. This is what happens when lay people start to take technical interpretations of the Constitution” she said.
Santiago said the President violated the doctrine of “non-delegation” which says that “Do not delegate what the Constitution has assigned to you” when he issued the EO instead of asking Congress to just pass a law on it.
“The administration could have the humility to ask Congress by means of a certification of urgent necessity. In other words, the President should certify as urgent a bill to create the Truth Commission,” she said.
“Because as it stands now, it’s plainly unconstitutional and the efforts to explain this constitutionality are very sophomoric. In other words, it’s a bunch of amateurs trying to justify what they are doing,” she added.
Santiago cited two Supreme Court rulings upholding the sole power of Congress to create agencies of government.
To spare the new administration from embarrassment, Santiago said the government should withdraw the EO, as she expressed readiness to lead the filing of a measure to create the fact-finding body.
“Why risk the embarrassment of being turned by the Supreme Court in the first EO? Why do that? I don’t understand. These crooks are here, they will be here until they croak,” she pointed out.
Besides, the senator said that the commission would only duplicate the works of the Office of the Ombudsman, which is tasked to investigate allegations of graft and corruption against government officials.
Santiago believes the President was just compelled to form the body because he was disappointed at the slow pace of cases in the Office of the Ombudsman.
But because Ombudsman Merceditas Gutierrez has a fixed term, the President could not compel her to step down from office.
Instead of forming the commission, Santiago said the administration should have just created a special prosecution that would specifically handle the graft and corruption allegations during the past administration.
I agree with Miriam’s position that the administration should have just created a special prosecution that would specifically handle the graft and corruption allegations during the past administration.
Based on the SC’s previous positions concerning controversial EOs – such as the one executive privilege, there is a high probability that parts of Aquno’s EO #1 will be declared unconstitutional – and some parts will be upheld. Both quarters will then declare respective victories.
The History of Truth Commissions
Truth commissions are a recent development and have gained wide support in South America, South Africa in response to a popular clamor for social justice and redress of human rights.
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The Aquino administration has successfully framed corruption as a human rights issue rather than an economic issue. After all, if it weren’t successful in doing so – Aquino will not be president today. The Truth Commission therefore is a logical next step to implementing this framework – that corruption causes poverty.
Will Venting and “Closure” About Corruption Work Amidst A Policy Environment that Restricts Growth and Increases Pressure to Be Corrupt?
One of the “powers” of the Truth Commission is that it provides a “theraputic platform” for all people who have been witness to the impunity of the previous administration and don’t want it to be repeated – and that’s a good thing. Is the truth commission the way? Aquino has chosen to roll the dice – and he is entitled to it. The bottom line after all is – RESULTS.
The experience in other countries which have used Truth Commissions admittedly show that the commissions did not have legal teeth but they had moral teeth as this allowed the airing out of dirty laundry, gain media attention, influence the national psyche by shaming the “guilty” parties. Being able to air out the violations to an official body, without fear of recrimination is already empowering for those who have not have had the chance to let their voices be heard. The exercise of denouncing the perpetrators is empowering to the “victims”.
Corruption as a Deprivation of Human Rights
I have to hand it to Aquino’s media handlers – how they were able to reframe the issue of corruption from one of economics to one of human rights. The Truth Commission will keep the people entertained in sessions of therapy for the next six years. They will feel empowered that they were able to denounce the impunity of the Arroyo administration. But after all this exercise – will their lives be any better, economically?
Certainly, Aquino’s efforts will have some catch – but am not sure what exactly it will catch. The crux of the matter is that poverty is a – it’s the economy STUPID!
Sure you can recover some revenue and generate some more through these anti-corruption measures.
But, the magnitude of revenue that can be generated by approaching the issue of corruption as one that results from restricting economic freedom is far greater.
Which means, if we are indeed out to address a perceived wrong – the deprivation of our human rights due to the economic deprivation brought by corruption – shouldn’t we then be addressing the bigger challenge that causes economic deprivation – the lack of economic freedom due to the protectionist clauses of the 1987 Aquino Constitution.
Shouldn’t we then create a separate truth commission that will study how protectionism impacted the Philippines? How the monopoly businesses inefficient business caused damage and lost opportunities to the Philippine economy? Or just get to the heart of it and amend the Philippine constitution.
Meanwhile let P. Noy continue fiddling while the Philippines burns – not everyone can handle the truth that the Aquino truth commission solution is just plain… fiddling.
1. http://www.truthcommission.org/factor.php?fid=0&lang=en, Accessed 8/3/2010
2. http://www.colorado.edu/conflict/peace/treatment/truth_com.htm, Accessed 8/3/2010
3. http://www.amnesty.org/en/international-justice/issues/truth-commissions, Accessed 8/3/2010
4. http://www.ictj.org/en/tj/138.html, Accessed 8/3/2010
5. http://www.hrcr.org/hottopics/mexico.html, Accessed 8/3/2010