The Emperor’s New Commission: Why EO 94 is Dead on Arrival

Filed and Fought: My Supreme Court Challenge to EO 94, Docketed as G.R. No. E-02446

By Louis “Barok” C. Biraogo — September 19, 2025

The Ghost of EO 1 Returns to Malacañang

When President Ferdinand Marcos Jr. signed Executive Order No. 94 (EO 94) creating the so-called Independent Commission for Infrastructure (ICI), he might as well have photocopied Executive Order No. 1 of his predecessor Benigno Aquino III—the infamous Truth Commission that the Supreme Court struck down in Biraogo v. Truth Commission.

The fatal defects are identical: a public office created by executive fiat, raiding of the Treasury without congressional appropriation, and usurpation of the constitutional functions of Congress, COA, and the Ombudsman.

Like its ill-fated predecessor, EO 94 is a house of cards waiting to collapse under the slightest constitutional breeze.

A Public Office Born of Thin Air

The President has no authority to create public offices. Article VI, Section 1 of the Constitution vests legislative power exclusively in Congress. As the Court ruled in Pelaez v. Auditor General, the creation of municipal corporations — and by extension, public offices — is primarily a legislative function.

Yet EO 94 creates the ICI, complete with a fixed composition, defined powers, and access to public funds. This is not an “ad hoc committee.” It is a government office masquerading as a commission.

Malacañang will no doubt invoke “reorganization powers” under the Administrative Code of 1987. But reorganization presupposes an existing statutory office. One cannot reorganize what does not exist. The ICI is a creature of presidential whim, not of law.

Raiding the Treasury Without Congress

The Constitution’s fiscal command is blunt: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law” (Art. VI, Sec. 29).

EO 94 itself admits no such appropriation exists. Instead, it orders the DBM Secretary to “identify funds.” This is fiscal alchemy—conjuring money without congressional authorization.

The Palace will point to the President’s power to augment funds from “savings” under Art. VI, Sec. 25(5). But augmentation requires a valid line-item appropriation in the GAA. The ICI has none. One cannot augment a void.

Trampling Congress, COA, and the Ombudsman

EO 94 shreds the doctrine of separation of powers by arrogating functions explicitly vested in other constitutional bodies:

Congress – inquiries in aid of legislation (Art. VI, Sec. 21)
Ombudsman – investigation of graft (Art. XI, Sec. 12)
COA – audit of public funds (Art. IX-D, Sec. 2)

In Funa v. Duque (2014), the Court invalidated the designation of the Secretary of Health as ex officio member of the Boards of GSIS, PhilHealth, ECC, and HDMF, holding that such arrangements compromised the independence of oversight institutions. The ruling stressed that blending management and regulatory roles violates constitutional design.

Similarly, in Araullo v. Aquino III (2015), the Court struck down the Disbursement Acceleration Program (DAP) for usurping Congress’s power of the purse and undermining checks and balances. The Court held that the doctrine of separation of powers cannot be eroded, even for reasons of expediency, and that noble purposes cannot justify unconstitutional methods.

If even in Araullo the Court voided fiscal shortcuts aimed at economic recovery, how much more should EO 94—a commission created from thin air, commanding statutory agencies, and stepping on Congress, COA, and the Ombudsman—be condemned?

Worse, EO 94 orders the NBI to assist the ICI. This subordinates a statutory agency to an EO-born phantom. That is legal heresy.

A Commission that Denies Due Process

As the Court explained in Ang Tibay v. CIR (1940), administrative due process requires notice, hearing, and findings based on substantial evidence. EO 94 provides none, yet its findings may trigger prosecutions. It is a kangaroo process disguised as governance.

The ICI: Theater, Not Reform

Even if EO 94 were constitutional (it is not), the ICI is doomed to fail. It duplicates existing watchdogs, guarantees turf wars, and wields no prosecutorial teeth. Like many commissions before it, it will end in glossy reports gathering dust.

Real reform requires strengthening existing institutions through legislation—not creating Potemkin commissions by EO.

The Constitutional Stakes: Republic or Presidential Monarchy?

Make no mistake: EO 94 is not about infrastructure. It is about whether the President can, by stroke of pen, create parallel commissions for anything—elections, banking, education—without Congress.

If the Court upholds EO 94, it blesses a de facto presidential monarchy where the Constitution is optional.

As the Supreme Court held in Biraogo v. Truth Commission, even the noblest ends cannot justify unconstitutional means.

Satirical Epilogue: The Independent Commission for Illusions

Perhaps EO 94 should have been more honestly named: the Independent Commission for Illusions (ICI). After all, it promises independence while being staffed by presidential appointees, pretends to create accountability while trampling the Constitution, and vows to fight corruption while being birthed in illegality.

Like the boy in Hans Christian Andersen’s tale, I say the obvious: the Emperor has no clothes, only commissions.

And so, on September 16, 2025, I went to the Supreme Court, filing a Petition for Certiorari (with prayer for injunctive reliefs), now docketed as G.R. No. E-02446.

Because in a Republic governed by law, illusions must give way to the Constitution.