What to Make of the Truth Commission Setback

The Supreme Court has declared Executive Order 1, creating a Truth Commission to investigate the corruption cases of the previous Arroyo administration, as unconstitutional citing the equal protection clause of the Constitution as basis. This is strike two for the administration of Pres. Benigno Aquino III. Earler, the Supreme Court issued a Status Quo Ante Order in the case of Bai Omera Dianalan-Lucman. Lucman was one of four Arroyo appointees who filed petitions before the Supreme Court (SC) questioning the constitutionality of Executive Order No. 2. The SC decision on Lucman’s case, in effect, pushed back Executive Order No. 2, which recalled, withdrew, or revoked the so-called midnight appointments of the previous Arroyo administration.

What caused these setbacks of the Aquino administration?

Justice Sec. Leila De Lima called the recent decision of the Supreme Court declaring as unconstitutional Executive Order 1 as politically motivated. Chief Justice Renato Corona vehemently denied this saying that “what is right is right, what is wrong is wrong.” Well, Chief Justice Corona seems to gloss over the fact that who defines what is right and what is wrong are humans, and in this case, the honorable justices of the Supreme Court. The justices of the Supreme Court may (or should) be honorable, but they are not infallible; nor are they immune from political influences. The influence of the fact that most current justices of the Supreme Court were appointed by former president Gloria Macapagal-Arroyo on the decisions they make concerning the former president could not be discounted, although there are exceptions. Former chief justice Reynato Puno has shown how a justice could be independent despite being appointed by Arroyo.

Added to this, the task of the Supreme Court is to “interpret” the Constitution and the country’s laws. And interpretations are subjective. Would the justices focus on the intent and spirit of the provision of the Constitution or the law or on how it was written? Which provision of the Constitution or which law would the justices cite and use as basis for determining the constitutionality or legality of an issue that was put before it? Undoubtedly, the position of each justice on an issue brought before the Supreme Court is guided by his or her political convictions, even Puno. The question therefore is, which side of the political fence do the convictions of majority of the justices lie? With the current composition of the Supreme Court and the decisions it has so far made, it is obvious that it is predominantly conservative. Even during the time of former chief justice Puno, there were several times when he was part of the dissenting minority. But his arguments, though representing the minority, was so eloquent that it could not be simply set aside. With Chief Justice Renato Corona at the helm, the people could expect an uphill battle in the defense of their rights.

However, regardless of the political flavor of the current Supreme Court, the Aquino administration is primarily responsible for its setbacks. At the minimum, the Aquino administration’s legal team is inept. I remember my lawyer cousin, who used to be vice-president and the only woman member of the senior management team of a GOCC, telling me how patently flawed was the manner by which Memorandum Circular 1, which later became Executive Order 2, was formulated. It was obvious, she said, that Aquino’s legal team did not do their homework.

What is worse is that, seemingly the Aquino administration lacks the political will to run after former president and currently Pampanga Rep. Gloria Macapagal-Arroyo. Pres. Benigno Aquino III has, since the start of his administration, been issuing strong statements. “There can be no reconciliation without justice,” he said during his inaugural address. He was quoted in news reports as saying that if the government does not run after those who committed crimes, then these crimes would be committed again and again. According to a news report of GMAnews.tv, when Aquino was asked recently if Arroyo was politically untouchable, he replied “…I will not let that happen. I do not give up if I know that I am right.”

Unfortunately, these strong statements are not matched by action. All the administration has done so far was to issue Executive Order 1 and wait for the Truth Commission to come with its findings on corruption issues that have been the subject of so many Senate investigations before and despite the evidences and statements of witnesses pointing to the culpability of the Arroyo family. Why did it not file cases against the Arroyo family immediately? The filing of cases would even put the Arroyo family and her allies at the defensive.

Also why did the Aquino administration not include human rights violations, specifically extrajudicial killings and enforced disappearances, in the cases to be investigated by the Truth Commission? Because extrajudicial killings and enforced disappearances are serious crimes against humanity, these make the creation of a Truth Commission more compelling and unassailable. It would be politically embarrassing for the Supreme Court to reject the creation of such a Truth Commission. There have also been enough precedents in the creation of such Truth Commissions abroad, such as in Argentina and Chile. In both countries, the last dictators who ruled before the transition to democracy were able to pass amnesty laws to shield themselves from criminal and civil suits. And yet, this did not prevent the creation of Truth Commissions and the prosecution of the dictators and the generals involved in human rights violations.

If the Aquino administration is really serious about holding the Arroyo family and their allies accountable for the crimes they committed against the Filipino people, it could not dilly-dally about it nor could it put a glove to the arm of justice. It must act decisively and with determination. Otherwise, the Filipino people could forget about achieving justice under the current administration