Much has been said about the Truth Commission. While it is true that this body promised by President Noynoy Aquino as a means of ferreting out the truth on the many scandals of Gloria Macapagal Arroyo is in reality a toothless tiger, a superfluity, and will be the source of disappointment for many, it is still an exercise that must be resorted to if the Arroyos are to be held responsible for their many crimes.
The pitfalls of the commission are many. For instance, as a creation of the Executive, it cannot exercise powers beyond gathering facts. It cannot have the powers to issue summons, nor will it have the power to cite individuals in contempt. In other words, absent legislative imprimatur, it can only count on the willingness of crucial witnesses to testify and their voluntary submission of evidence.
To be sure, P-Noy’s Truth Commission is not the first in Philippine history. An earlier one was the Agrava Commission. It was formed to conduct factual investigation on who killed Ninoy Aquino. The appointed Chair of the Aquino Truth Commission was also legal counsel of the Agrava Commission. To highlight the weakness of fact-finding commissions, thirty years after the Agrava Commission was formed, we still do not know with certainty who killed Ninoy Aquino.
The Truth Commission is also being compared to the Presidential Commission on Good Government. The comparison at least is that both bodies seek to ascertain the sins of the previous dispensation. But that is the beginning and end of the comparison. For unlike the Truth Commission, the PCGG was a legislative creation, created pursuant to EO 1 issued by then President Corazon Aquino when she was exercising extraordinary powers that were both executive and legislative in nature. The PCGG could hence issue summons, order the production of evidence issue writs of sequestrations, and cause the filing of cases in court. The difference lies, in other words, with the fact that the law gave the PCGG extraordinary powers whereas the Truth Commission, being a mere creation of the Executive, cannot exercise powers not delegated to it by Congress, the latter in the exercise of its policy making mandate.
Can it compel, for instance, Romulo Neri to answer the three questions which would implicate Gloria Macapagal Arroyo in the NBN-ZTE scam but which were declared by the Supreme Court to be covered by executive privilege? Certainly not. If Congress, despite its plenary powers to conduct investigation in aid of legislation, was restrained by the Supreme Court, there is more reason that a mere fact finding commission would not succeed in this regard. Likewise, Cito Lorenzo, even if he wanted to turn state witness, could not count on the Commission to grant him testimonial immunity. It behooves both rhyme and reason why he would then incriminate himself voluntarily without being admitted first as a state witness.
Likewise, it is unlikely that the intelligence community, despite the chain of command, would voluntarily surrender information on the “Hello Garci” scandal. And of course, the Department of Foreign Affairs, still under Secretary Alberto Romulo, would not want to reopen the Northrail controversy as he would almost certainly argue that to do so would harm bilateral ties with China.
So is the Truth Commission completely irrelevant?
Not necessarily. In transitional societies like South Africa where convictions for the gravest human rights violation has become impossible because of the passage of time and the dearth of witnesses, truth commissions have at least accorded these societies an opportunity to heal. While justice was not completely served in the absence of criminals actually being meted sentences for crimes that they committed, the truth would at least give the victims an opportunity to move on. There is solace in knowing, for instance, that a loved one who has disappeared has conclusively been found to have been killed. These kinds of confirmations at least accorded mothers to grieve, rather than hope that their loved ones could still be alive.
The Truth Commission to be established by P-Noy should not, however, follow the pattern of the South African model. In truth and in fact, the Commission should meanwhile perform the fact-finding function that the Ombudsman has opted not to perform. With Merceditas Gutierrez appointed precisely to protect the Arroyos, the intention should be not to accord the latter impunity, but to engage in fact finding while there is paralysis, nay dereliction of duty, in the Office of the Ombudsman.
The Truth Commission should thus be supported precisely because the evidence against the Arroyos should be gathered and preserved while the merciless Mercy is still in office. It should never be considered as a substitute for the vast powers granted by the Constitution to the Ombudsman. It is, hence, a stop-gap measure intended to send the message that at no time should the Arroyos think that they can get away with their crimes.
Since the Truth commission appears to be a necessary toothless tiger, how then should the Commission proceed with its mandate?
To begin with, in the absence of legislative imprimatur, it must conduct its investigations utilizing existing executive offices with the powers that it will require. Here, it is indispensable that the Department of Justice formally conduct preliminary investigations on the many crimes of the Arroyos. In this manner, it can utilize its power to resort to compulsory processes, which the Commission does not have on its own. Furthermore, the Commission should also have the Solicitor-General on board. This is because existing laws on unexplained wealth grants the Solicitor-General the power to file forfeiture cases against proceeds of the crime of plunder and other violations of the Anti-Graft and Corrupt Practices Act. Likewise, the Commission should have the full support of the Anti-Money Laundering Council, if we are to freeze and still recover the ill-gotten wealth of the Arroyos and their cohorts.