By Miriam Defensor-Santiago
(Editors' note: This forms part of the transcript of an interview with reporters on 2 August 2010.)
What should we do with the Truth Commission in the light of the criticisms that have been aired against it, particularly by members of my bloc in the Senate including myself?
The obvious answer is that the administration should 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 because as it stands now it is plainly unconstitutional, and the efforts to explain its constitutionality is very sophomoric--in other words, it is a bunch of amateurs trying to justify what they are doing.
The first basic principle is this: Government is divided into three separate branches, and each branch cannot delegate the powers given to it by the Constitution. So the function of the legislature is not only the right of the legislature, it is a duty of the legislature. We cannot allow legislative functions to be delegated to other officials without our consent. That is the principle known as the doctrine of nondelegation.
In 2001, the Supreme Court said, "the power to create an agency is peculiarly legislative in nature." That is part of the legislative function. The Constitution provides that legislative power is vested in the Congress. What is legislative power? The Constitution no longer defines what it is because everybody knows that legislative power is the power to make laws, and one of the laws that only Congress can do is to create an agency. That is a decided case of our Supreme Court. It was repeated in 2001 in the case of EIIB (Economic Intelligence and Investigation Bureau) v. Zamora where the SC said that no other entity in government can create an agency except the Congress. Remember the EEIB? It was the office that raised the issue of whether the Office of the President can simply create a new bureau and the SC said "No, wait for Congress to give you that power directly or indirectly."
Most recently, in the 2008 case of Abakada Partylist v. Secretary Cesar Purisima, the SC said, "You cannot delegate legislative power except when two instances are present.
Number one, the statute or the law must be complete." That means there must be a statute passed by Congress. The essential element of completion means there is a policy stated by Congress in that particular law.
Number two, there should be a sufficiency of standards, meaning to say that Congress in that enabling law should give the limitations or the guidelines so that the delegee or the person to whom the legislative power has been delegated will not run riot in exercising legislative powers.
But in any event, you will see from the jurisprudence of our SC, that one doctrine has remained the same for the years, and that is legislative function cannot be exercised unless it is duly delegated by Congress. Duly delegated means that Congress has passed a law that tells the executive or the judicial branch what is the policy of the law and what are the limitations and the restrictions.
In this case, Malacañang is disingenuous. It is claiming that its power is drawn from the Administrative Code of 1997 passed by President Corazon Aquino. What is that specific provision? The provision there that says "The President shall have power at any time to reorganize his office"? Is the President merely reorganizing his office when he creates the Truth Commission? Come on! You reorganize when something already existed and you change something in that existing office. Here, they are creating something out of nothing. They are not reorganizing, they are creating. They fall squarely under the statement of the SC: "The power to create an agency belongs exclusively to the Congress."
Kaya dapat naman sana meron tayong kaunting humility, na hindi tayo lalaban nang lalaban basta gusto natin. Huwag naman tayong basta magsabi na just because there is a power to reorganize in the Administrative Code, which is in effect a delegation of power to the President, na to reorganize an office is sufficient authority to assume or usurp legislative functions.
Let me say it candidly: EO No. 1 is a usurpation of legislative function, and we in the legislative branch are bound by duty to oppose that kind of usurpation, even if I have to go to the SC, even with my poor physical health, to fight for it. You have to have a law passed by Congress which gives you that power of legislative function either directly or indirectly.
So my challenge to the Palace is this: Show me where in the Constitution is there a general provision that gives the power to create an office to the executive branch of government. If you cannot show a constitutional provision, I shall be equally happy. Show me a law passed by Congress that gives you the power to create agencies without a specific statute passed by Congress to that effect. Kapag wala silang naipakita at ulit-ulitin lang nila, "But we have the power to reorganize," then they are less than being honest to the Filipino people.
If you read EO No. 1, you get the very definite impression that Malacañang is extremely disappointed with the Office of the Ombudsman. Kasi ang gustong mangyari ng Malacañang ay dapat gawain ng Ombudsman. Sa tingin ng presidente at mga assistant niya masyadong mabagal ang Ombudsman o kaya may partiality siya, o kaya incompetent siya, kaya gusto nila palitan siya. Hindi siya mapalitan dahil ayon sa Constitution, she stays there for seven years unless you impeach her.
So what they are doing is setting up a parallel organization to the Ombudsman. Can you do that? Can you take away a function from a constitutional body and give it to a separate body? Notice that in EO No.1, the Truth Commission is described as an independent body. Independent of whom? Independent of the executive branch just like the Ombudsman is an independent body in the Constitution because it is supposed to be, by its functions, under the executive, but the Constitution wants it independent of the executive. So Malacañang wants nothing less than independence for this body. It does not want the Ombudsman to improve the delivery of the basic social service of fighting graft and corruption; it wants to create its own creature.
But it's not allowed; you have to follow a certain procedure. You go to Congress and say, "Will you please give me broad powers to perform a legislative function?" The mere fact that it is fact-finding does not change anything. That's beside the question.
The first question in government is, "Is it Constitutional?" That is the prejudicial question. No questions of wisdom, patriotism, or exigency shall justify any law that does not conform to the Constitution. It is not the question of whether we want to give the administration a chance. We want to give it more than a chance. We want to cooperate with it. We want to give it full support so that all big crooks can be immediately sent to jail or shot on sight if possible.
But we have to do what the Constitution says. And I really, really resent it and am extremely disappointed to the point of ill health that people who are supposed to be running government can present such a weak reason to the Filipino people. Why do we have to go through the rigmarole of saying, "But there is an Administrative Code that gives the President the power to reorganize." Are we reorganizing really? How many agencies can you create in Malacañang simply from the power to reorganize? Payagan natin iyan, wala nang katapusan iyan.
This is very shallow legal preparation for a job that takes expertise. Why don't they ask, for example, retired Justice Isagani Cruz? He's an expert in constitutional law. Why don't they ask Florentino Feliciano, one of the world's acknowledged experts in law? Why don't they ask Merlin Magallona, former dean of the UP College of Law? Why give this basic assumption to someone who knows not his constitutional law? Why are we being besieged of these half-baked opinions of amateurs? Why am I wasting my life reading these sophomoric opinions?
If they insist, let's bring it to the Supreme Court. If nobody else wants to bring it, I'll ask for a blood transfusion or something so that I can file the petition to the SC. This is a gross violation of the Constitution. This is what happens when lay people start to make technical interpretations of the Constitution. There are rules for interpreting the Constitution.