The Truth about Truth Commissions

We all have been hearing all this clamor for a truth commission…

But what is this truth commission and what does it hope to accomplish?

The most famous world experience is South Africa’s Truth and Reconciliation Commission, established after their apartheid era.

According to documents readily available on the web, as history teaches us, South Africa was reeling from deeply cultural, societal, political and legal division during that time and their truth commission was established. Hence, the Truth and Reconcilation Commission was established under South Africa’s Promotion of National Unity and Reconciliation Act No. 34 of 1995.

Its truth commission laid down a process where an applicant “was released from all criminal and civil liability arising from the incident, an indemnification that also extended to all institutions or persons who incurred vicarious liability for the incident. Successful applicants serving prison sentences in respect of an incident were, therefore, entitled to immediate release and the expunging of any relevant criminal record,” in exchange for full disclosure of their actions /participation in the crimes they have committed during the repression era.

This is not that way I want our truth commission to go. I don’t want the people involved here, the President included, to go scott free. I don’t want this Truth Commission of ours to be merely fact finding. Sorry, HEADS MUST ROLL for this one.

I would prefer something like the Office of the Independent Counsel in the United States.

In 1978, Congress passed, and President Carter signed into law, the Ethics in Government Act. Title VI of this Act created the Independent Counsel, changing the way that high-ranking government officials were held responsible for their actions. If the Attorney General receives information indicating that a high-ranking official has committed a crime, thirty days are given to determine whether or not the information is both specific and reliable. If determined to be so, then a preliminary investigation begins, during which very limited powers are exercised. (The Attorney General cannot convene a grand jury, offer plea bargains, grant immunity, or subpoena witnesses.).

After ninety days, the Attorney General must decide whether or not further investigation is warranted, and if it is, must apply to a federal three-judge panel to appoint and determine the jurisdiction of an Independent Counsel. This three-judge panel is appointed every two years by the Chief Justice of the Supreme Court.

The Counsel’s jurisdiction is expandable and includes “the authority to investigate and prosecute Federal crimes, other than those classified as Class B or C misdemeanors or infractions, that may arise out of the investigation or prosecution of the matter with respect to which the Attorney General’s request was made, including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

The Independent Counsel has the full authority of a federal prosecutor and full access to Justice Department resources (including the use of the FBI, etc.). In addition, the prosecutor is expected to comply with Justice Department prosecutorial guidelines. Unless convicted in impeachment proceedings, the Independent Counsel can only be removed from office by the Attorney General, and “only for good cause, physical or mental disability . . . or any other condition that substantially impairs the performance of such independent counsel’s duties.”

Finally, the Independent Counsel law must be renewed by Congress every five years or it expires (although, if it is allowed to expire, any ongoing investigations are completed). (from The Independent Counsel After Nixon by Josh Chafetz in the The Yale Political Quarterly Volume 19, Number 3, April 1998, taken from this link)

I know the rationale behind Presidential immunity and the removal only by process of impeachment. This was instituted to prevent the President from devoting most of his time fending off made-up cases from opponents rathen than concentrating on running the country. Sadly, this political and legal immunity has been abused of late. The President must be more accountable now than ever.

Whatever it is, something must be done. It cannot go on like this.

There is a joke Justice Venicio Escolin, our teacher in Remedial Law, used to tell us.

“When you are strong in the law, weak on the facts, you pound on the law…
When you are strong on the facts and weak on the law, you pound of the facts…
When you are weak on both, you pound on the table!”

The Philippines is weak on both in this regard. Don’t let the Filipino people use you as the table…

My two cents…

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