Republic of the Philippines JOSEPH
E. ESTRADA,
Petitioner,
G.
R. Nos. 146710-15
March
2, 2001
-versus-
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT
FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS
FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR.,
Respondents.
x------------------------------------------------------------------------------------------------------------x
JOSEPH E. ESTRADA, Petitioner,
G.
R. No. 146738
March
2, 2001
-versus-
GLORIA MACAPAGAL-ARROYO,
Respondent.
PUNO,
J.:
On the line in the cases at bar is the office of the President.
Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President.
The
warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties’ dispute. While the
significant
issues are many, the jugular issue involves the relationship between
the
ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the
crisis
in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected
President while respondent Gloria Macapagal-Arroyo was elected
Vice-President.
Some ten (10) million Filipinos voted for the petitioner believing he
would
rescue them from life’s adversity. Both petitioner and the
respondent
were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a
plethora
of problems that slowly but surely eroded his popularity. His
sharp
descent from power started on October 4, 2000. Ilocos Sur
Governor,
Luis “Chavit” Singson, a longtime friend of the petitioner,
went
on air and accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.[1]
The expose immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled “I Accuse.” He accused the petitioner of receiving some The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the exposé of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On
October
11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf
of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner
to step down from the presidency as he had lost the moral authority to
govern.
[3]
Two days later or on October
13,
the Catholic Bishops Conference of the Philippine joined the cry for
the
resignation of the petitioner.[4]
Four days later, or on October 17, former
President Corazon
C. Aquino also demanded that the petitioner take the “supreme
self-sacrifice”
of resignation.
[5]
Former President Fidel Ramos
also
joined the chorus. Early on, or on October 12, respondent Arroyo
resigned as Secretary of the Department of Social Welfare and
Services[6]
and later asked for petitioner’s resignation.
[7]
However, petitioner strenuously held on to his office and refused to
resign.
The heat was on. On November 1, four (4) senior economic
advisers,
members of the Council of Senior Economic Advisers, resigned.
They
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata,
former Senator Vicente Paterno and Washington Sycip.
[8]
On November 2, Secretary Mar Roxas II also resigned from the Department
of Trade and Industry.
[9]
On November 3, Senate President Franklin Drilon, and House Speaker
Manuel
Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.
[10]
The month of November ended with a big bang. In a tumultuous session on
November 13, House Speaker Villar transmitted the Articles of
Impeachment
[11]
signed by 115 representatives, or more than 1/3 of all the members of
the
House of Representatives to the Senate. This caused political
convulsions
in both houses of Congress. Senator Drilon was replaced by
Senator
Pimentel as Senate President. Speaker Villar was unseated by
Representative
Fuentabella.
[12]
On November 20, the Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as judges
with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.
[13]
The political temperature rose despite the cold December. On
December
7, the impeachment trial started.
[14]
The battle royale was fought by
some
of the marquee names in the legal profession. Standing as
prosecutors
were then House Minority Floor Leader Feliciano Belmonte and
Representatives
Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales,
Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel
Martinez
and Antonio Nachura. They were assisted by a battery of private
prosecutors
led by now Secretary of Justice Hernando Perez and now Solicitor
General
Simeon Marcelo. Serving as defense counsels were former Chief
Justice
Andres Narvasa, former Solicitor General and Secretary of Justice
Estelito
P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy
Speaker
of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty.
Raymund
Fortun. The day to day trial was covered by live TV and during
its
course enjoyed the highest viewing rating. Its high and low
points
were the constant conversational piece of the chattering classes.
The dramatic point of the December hearings was the testimony of
Clarissa
Ocampo, senior vice president of Equitable-PCI Bank. She
testified
that she was one foot away from petitioner Estrada when he affixed the
signature “Jose Velarde” on documents involving a
After the testimony of Ocampo, the impeachment trial was adjourned in
the
spirit of Christmas. When it resumed on January 2, 2001, more
bombshells
were exploded by the prosecution. On January 11, Atty. Edgardo
Espiritu
who served as petitioner’s Secretary of Finance took the witness
stand.
He alleged that the petitioner jointly owned BW Resources Corporation
with
Mr. Dante Tan who was facing charges of insider trading.
[16]
Then came the fateful day of
January
16, when by a vote of 11-10,
[17]
the senator-judges ruled against the opening of the second envelop
which
allegedly contained evidence showing that petitioner held
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella
tendering their collective resignation. They also filed their
Manifestation
of Withdrawal of Appearance with the impeachment tribunal.
[19]
Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have
resolved
the issue of resignation of the public prosecutors. Chief Justice
Davide granted the motion.
[20]
January 18 saw the high velocity intensification of the call for
petitioner’s
resignation. A 10-kilometer line of people holding lighted
candles
formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the people’s solidarity in
demanding petitioner’s resignation. Students and teachers walked
out of their classes in Metro Manila to show their concordance.
Speakers
in the continuing rallies at the EDSA Shrine, all matters of the
physics
of persuasion, attracted more and more people.
[21]
On January 19, the fall from power of the petitioner appeared
inevitable.
At 1:20 p.m., the petitioner informed Executive Secretary Edgardo
Angara
that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines,
had defected. At 2:30., petitioner agreed to the holding of a
snap
election for President where he would not be a candidate. It did
not diffuse the growing crisis. At 3:00 p.m., Secretary of
National
Defense Orlando Mercado and General Reyes, together with the chiefs of
all the armed services went to the EDSA Shrine.
[22]
In the presence of former Presidents Aquino and Ramos and hundreds of
thousands
of cheering demonstrators, General Reyes declared that “on behalf of
your Armed Forces, the 130,000 strong members of the Armed Forces, we
wish
to announce that we are withdrawing our support to this government.”
[23]
A little later, PNP Chief, Director Panfilo Lacson and the major
service
commanders gave a similar stunning announcement.
[24]
Some Cabinet secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.
[25]
Rallies for the resignation of the petitioner exploded in various parts
of the country. To stem the tide of rage, petitioner announced he
was ordering his lawyers to agree to the opening of the highly
controversial
second envelop.
[26]
There was no turning back the tide. The tide had become a tsunami.
January 20, turned to be the day of surrender. At 12:20 a.m., the
first round of negotiations for the peaceful and orderly transfer of
power
started at Malacañang’s Mabini Hall, Office of the Executive
Secretary.
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and
Atty. Macel Fernandez, head of the Presidential Management Staff,
negotiated
for the petitioner. Respondent Arroyo was represented by now
Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and
now Secretary of Justice Hernando Perez.
[27]
Outside the palace, there was a brief encounter at Mendiola between pro
and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news
broke
out that Chief Justice Davide would administer the oath to respondent
Arroyo
at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent
Arroyo as President of the Philippines.
[28]
At 2:30 p.m., petitioner and his family hurriedly left
Malacañang
Palace.
[29]
He issued the following press statement:
[30]
“20
January 2001
"STATEMENT
FROM PRESIDENT JOSEPH EJERCITO ESTRADA
"At
twelve o’ clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While
along
with many other legal minds of our country, I have strong and serious
doubts
about the legality and constitutionality of her proclamation as
President,
I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.
"It
is for this reason that I now leave Malacañang Palace, the seat
of the presidency of this country, for the sake of peace and in order
to
begin the healing process of our nation, I leave the Palace of our
people
with gratitude for the opportunities given to me for service to our
people.
I will not shrink from any future challenges that may come ahead in the
same service of our country.
"I
call on all my supporters and followers to join me in the promotion of
a constructive national spirit of reconciliation and solidarity.
"May
the Almighty bless our country and beloved people.
"MABUHAY!
"(Sgd.)
JOSEPH EJERCITO ESTRADA”
It also appears that on the same day, January 20, 2001, he signed the
following
letter:
[31]
“Sir:
"By
virtue of the provisions of Section 11, Article VII of the
Constitution,
I am hereby transmitting this declaration that I am unable to exercise
the powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be the Acting President.
"(Sgd.)
JOSEPH EJERCITO ESTRADA”
A copy of the letter was sent to former Speaker Fuentebella at 8:30
a.m.,
on January 20.
[32]
Another copy was transmitted to
Senate President Pimentel on the same day although it was received only
at 9:00 p.m.
[33]
On January 22, the Monday after taking her oath, respondent Arroyo
immediately
discharged the powers and duties of the Presidency. On the same
day,
this Court issued the following Resolution in Administrative Matter No.
01-1-05-SC, to wit:
“A.M.
No. 01-1-05-SC – In re: Request of Vice President Gloria
Macapagal-Arroyo
to Take her Oath of Office as President of the Republic of the
Philippines
before the Chief Justice. – Acting on the urgent request of
Vice-President
Gloria Macapagal-Arroyo to be sworn in as President of the Republic of
the Philippines, addressed to the Chief Justice and confirmed by a
letter
to the Court, dated January 20, 2001, which request was treated as an
administrative
matter, the Court Resolved unanimously to confirm the authority given
by
the twelve (12) members of the Court then present to the Chief Justice
on January 20, 2001 to administer the oath of office to Vice President
Gloria Macapagal-Arroyo as President of the Philippines, at noon of
January
20, 2001.
"This
resolution is without prejudice to the disposition of any justiciable
case
that ma be filed by a proper party.”
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors
and special envoys.
[34]
Recognition of respondent Arroyo’s government by foreign governments
swiftly
followed. On January 23, in a reception or vin d’ honneur at
Malacañang,
led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more
than a hundred foreign diplomats recognized the government of
respondent
Arroyo.
[35]
US President George W. Bush gave the respondent a telephone call from
the
White House conveying US recognition of her government.
[36]
On January 24, Representative Feliciano Belmonte was elected new
Speaker
of the House of Representatives.
[37]
The House then passed Resolution No. 175 “expressing the full
support
of the House of Representatives to the administration of Her Excellency
Gloria Macapagal-Arroyo, President of the Philippines.”
[38]
It also approved Resolution No. 176 “expressing the support of the
House
of Representatives to the assumption into office by Vice President
Gloria
Macapagal-Arroyo as President of the Republic of the Philippines,
extending
its congratulations and expressing its support for her administration
as
a partner in the attainment of the nation’s goals under the
Constitution.”
[39]
On January 26, the respondent signed into law the Solid Waste
Management
Act.
[40]
A few days later, she also signed into law the Political
Advertising Ban and Fair Practices Act.
[41]
On February 6, respondent Arroyo nominated Senator Teofisto Guingona,
Jr.,
as her Vice President.
[42]
The next day, February 7, the Senate adopted Resolution No. 82
confirming
the nomination of Senator Guingona, Jr.
[43]
Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John
Osmeña
voted “yes” with reservations, citing as reason therefor the
pending
challenge on the legitimacy of respondent Arroyo’s presidency before
the
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers
were
absent.
[44]
The House of Representatives also approved Senator Guingona’s
nomination
in Resolution No. 178.
[45]
Senator Guingona took his oath as Vice President two (2) days later.
[46]
On February 7, the Senate passed Resolution No. 83 declaring that the
impeachment
court is functus officio and has been terminated.
[47]
Senator Miriam Defensor-Santiago stated “for the record” that
she
voted against the closure of the impeachment court on the grounds that
the Senate had failed to decide on the impeachment case and that
resolution
left open the question of whether Estrada was still qualified to run
for
another elective post.
[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo’s
public
acceptance rating jacked up from 16% on January 20, 2001 to 38% on
January
26, 2001.
[49]
In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001,
results showed that 61% of the Filipinos nationwide accepted President
Arroyo as replacement of petitioner Estrada. The survey also
revealed
that President Arroyo is accepted by 60% in Metro Manila, by also 60%
in
the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao.
Her trust rating increased to 52%. Her presidency is accepted by
majorities in all classes: 58% in
the
ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the
E’s or very poor class.
[50]
After his fall from the pedestal of power, the petitioner’s legal
problems
appeared in clusters. Several cases previously filed against him in the
Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000
for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed
by the Volunteers Against Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct,
violation of the Code of Conduct for Government Employees, etc.; (3)
OMB
Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc.
on November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo
Capulong, et al., on November 28, 2000 for malversation of public
funds,
illegal use of public funds and property, plunder, etc., (5) OMB Case
No.
0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and
R.A.
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr.
on December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the
respondent
Ombudsman to investigate the charges against petitioner. It is chaired
by Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On
January
22, the panel issued an Order directing the petitioner to file his
counter-affidavit
and the affidavits of his witnesses as well as other supporting
documents
in answer to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5,
petitioner
filed with this Court G.R. No. 146710-15, a petition for prohibition
with
a prayer for a writ of preliminary injunction. It sought to
enjoin
the respondent Ombudsman from “conducting any further proceedings
in
Cases Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other
criminal complaint that may be filed in his office, until after the
term
of petitioner as President is over and only if legally warranted.” Thru
another counsel, petitioner, on February 6, filed G.R. No. 146738 for
Quo
Warranto. He prayed for judgment “confirming petitioner to be
the lawful and incumbent President of the Republic of the Philippines
temporarily
unable to discharge the duties of his office, and declaring respondent
to have taken her oath as and to be holding the Office of the
President,
only in an acting capacity pursuant to the provisions of the
Constitution.”
Acting on G.R. Nos. 146710-15, the Court, on the same day, February 6,
required the respondents “ to comment thereon within a
non-extendible
period expiring on 12 February 2001.” On February 13, the Court
ordered
the consolidation of G.R. Nos. 146710-15 and G.R. No. 146738 and the
filing
of the respondents’ comments “on or before 8:00 a.m. of February
15.”
On February 15, the consolidated cases were orally argued in a
four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.,
[51]
and Associate Justice Artemio Panganiban
[52]
recused themselves on motion of
petitioner’s counsel, former Senator Rene A. Saguisag. They
debunked
the charge of counsel Saguisag that they have “compromised
themselves
by indicating that they have thrown their weight on one side” but
nonetheless
inhibited themselves. Thereafter, the parties were given the
short
period of five (5) days to file their memoranda and two (2) days to
submit
their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for
copies
of resolution and press statement for “Gag Order” on respondent
Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
“(1)
to inform the parties that the Court did not issue a resolution on
January
20, 2001 declaring the office of the President vacant and that neither
did the Chief Justice issue a press statement justifying the alleged
resolution;
"(2)
to order the parties and especially their counsel who are officers of
the
Court under pain being cited for contempt to refrain from making any
comment
or discussing in public the merits of the cases at bar while they are
still
pending decision by the Court, and
"(3)
to issue a 30-day status quo order effective immediately enjoining the
respondent Ombudsman from resolving or deciding the criminal cases
pending
investigation in his office against petitioner Joseph E. Estrada and
subject
of the cases at bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against petitioner Joseph
E.
Estrada seven (7) days after the hearing held on February 15, 2001,
which
action will make the cases at bar moot and academic.”
[53]
The parties filed their replies on February 24. On this date, the cases
at bar were deemed submitted for decision. The bedrock issues for
resolution of this Court are:
We shall discuss the issues in seriatim.
Whether
or not the cases at bar involve a political question.
Private respondents
[54]
raise the threshold issue that the cases at bar pose a political
question,
and hence, are beyond the jurisdiction of this Court to decide. They
contend
that shorn of its embroideries, the cases at bar assail the
“legitimacy
of the Arroyo administration.” They stress that respondent Arroyo
ascended
the presidency through people power; that she has already taken her
oath
as the 14th President of the Republic; that she has exercised the
powers
of the presidency and that she has been recognized by foreign
governments.
They submit that these realities on ground constitute the political
thicket
which the Court cannot enter.
We reject private respondents’ submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its
exact
latitude still splits the best of legal minds. Developed by the courts
in the 20th century, the political question doctrine which rests in the
principle of separation of powers and on prudential considerations,
continue
to be refined in the mills constitutional law.
[55]
In the United States, the most
authoritative guidelines to determine whether a question is political
were
spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr
[56]
viz:
In the Philippine setting, this Court has been continuously confronted
with cases calling for a firmer delineation of the inner and outer
perimeters
of a political question.
[57]
Our leading case is Tanada v. Cuenco,
[58]
where this Court, through former Chief Justice Roberto Concepcion, held
that political questions refer “to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity,
or in regard to which full discretionary authority has been delegated
to
the legislative or executive branch of the government. It is concerned
with issues dependent upon the wisdom, not legality of a particular
measure.”
To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial
review
of this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine
whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
government.
[59]
Heretofore, the judiciary has focused on the “thou shalt not’s”
of the Constitution
directed against the exercise of its jurisdiction.
[60]
With the new provision, however, courts are given a greater
prerogative
to determine what it can do to prevent grave abuse of discretion
amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality
of government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this
intent
are other provisions of the 1987
Constitution trimming the so called political thicket.
Prominent
of these provisions is section 18 of Article VII which empowers this
Court
in limpid language to “x x x review, in an appropriate proceeding
filed
by any citizen, the sufficiency of the factual basis of the
proclamation
of martial law or the suspension of the privilege of the writ (of
habeas
corpus) or the extension thereof x x x.”
Respondents rely on the case of’ Lawyers League for a Better
Philippines
and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.
[61]
and related cases
[62]
to support their thesis that since the cases at bar involve the
legitimacy
of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show
that
they are inapplicable. In the cited cases, we held that the
government
of former President Aquino was the result of a successful revolution by
the sovereign people, albeit a peaceful one. No less than the
Freedom
Constitution
[63]
declared that the Aquino government was installed through a direct
exercise
of’ the power of the Filipino people “in defiance of the provisions
of the 1973 Constitution, as amended.” It is familiar learning that
the legitimacy of a government sired by a successful revolution by
people
power is beyond judicial scrutiny for that government automatically
orbits
out of the constitutional loop. In checkered contrast, the government
of
respondent Arroyo is not revolutionary in character. The oath
that
she took at the EDSA Shrine is the oath under the 1987
Constitution.
[64]
In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is
discharging
the powers of the presidency under the authority of the 1987
Constitution.
In fine, the legal distinction between EDSA People Power I and EDSA
People
Power II is clear. EDSA I involves the exercise of the people
power
of revolution which overthrew the whole government. EDSA II is an
exercise of people power of freedom of speech and freedom of assembly
to
petition the government for redress of grievances which only affected
the
office of the President. EDSA I is extra constitutional and the
legitimacy
of the new government that resulted from it cannot be the subject of
judicial
review, but EDSA II is intra constitutional and the resignation of the
sitting President that it caused and the succession of the Vice
President
as President are subject to judicial review. EDSA I presented
political
question; EDSA II involves legal questions. A brief discourse on
freedom of speech and of the freedom of assembly to petition the
government
for redress of grievance which are the cutting edge of EDSA People
Power
II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos.
Denial of these rights was one of the reasons of our 1898 revolution
against
Spain. Our national hero, Jose P. Rizal, raised the
clarion
call for the recognition of freedom of the press of the Filipinos and
included
it as among “the reforms sine quibus non.”
[65]
The Malolos
Constitution, which is the work of the revolutionary Congress in
1898,
provided in its Bill of’ Rights that Filipinos shall not be deprived
(1)
of the right to freely express his ideas or opinions, orally or in
writing,
through the use of the press or other similar means; (2) of the right
of
association for purposes of human life and which are not contrary to
public
means; and (3) of the right to send petitions to the authorities,
individually
or collectively.” These fundamental rights were preserved when the
United
States acquired jurisdiction over the Philippines. In the
instruction
to the Second Philippine Commission of April 7, 1900 issued by
President
McKinley, it is specifically provided “that no law shall be passed
abridging
the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of
grievances.”
The guaranty was carried over in the Philippine Bill, the Act of
Congress
of July 1, 1902 and the Jones Law, the Act of Congress of August 29,
l966.
[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,
[67]
and the 1973
[68]
Constitution. These rights are now safely ensconced in section 4,
Article
Ill of the 1987
Constitution,
viz:
“Sec.
4. No law shall be passed abridging the freedom of’ speech, of
expression,
or of the press, or the right of’ the people peaceably to assemble and
petition the government for redress of grievances.”
The indispensability of’ the people’s freedom of speech and of assembly
to democracy is now self-evident. The reasons are well put by
Emerson:
first, freedom of expression is essential as a means of assuring
individual
fulfillment; second, it is an essential process for advancing knowledge
and discovering truth; third, it is essential to provide for
participation
in decision-making by all members of society; and fourth, it is a
method
of achieving a more adaptable and hence, a more stable community of’
maintaining
the precarious balance between healthy cleavage and necessary
consensus.”
[69]
In this sense, freedom of
speech
and of assembly provides a framework in which the “conflict
necessary
to the progress of a society can take place without destroying the
society.”
[70]
In Hague v. Committee for Industrial Organization,
[71]
this function of free speech and assembly was echoed in the amicus
curiae
brief filed by the Bill of Rights Committee of the American Bar
Association
which emphasized that “the basis of the right of assembly is the
substitution
of 'the expression of opinion and belief’ by talk rather than force;
and
this means talk for all and by all.”
[72]
In the relatively recent case of Subayco v. Sandiganbayan,
[73]
this Court similarly stressed that it should be clear even to
those
with intellectual deficits that when the sovereign people assemble to
petition
for redress of grievances, all should listen. For in a democracy,
it is the people who count; those who are deaf to their grievances are
ciphers.
Needless to state, the cases at bar pose legal and not political
questions.
The principal issues for resolution require the proper interpretation
of
certain provisions in the 1987
Constitution, notably section 1 of Article II,
[74]
and section 8
[75]
of Article VII, and the
allocation
of governmental powers under section II
[76]
of
Article VII. The issues likewise call for a ruling on the scope
of
presidential immunity from suit. They also involve the correct
calibration
of the right of petitioner against prejudicial publicity. As
early
as the 1803 case of Marybury v. Madison,
[77]
the doctrine has been laid down
that “it is emphatically the province and duty of the judicial
department
to say what the law is.” Thus respondent’s invocation of the
doctrine
of political is but a foray in the dark.
We now slide to the second issue. None of the parties considered issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as president. The issue brings under the microscope of the meaning of Section 8, Article VII of the Constitution which provides:
“Sec.
8. In case of death, permanent disability, removal from office or
resignation
of the President, the Vice President shall become the President to
serve
the unexpired term. In case of death, permanent disability, removal
from
office, or resignation of both the President and Vice President, the
President
of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then acts as President until President or Vice
President
shall have been elected and qualified.
x
x x.”
The issue then is whether the petitioner resigned as President or
should
be considered resigned as of January 20, 2001 when respondent took her
oath as the 14th President of the Republic. Resignation is not a
high level abstraction. It is a factual question and its elements
are beyond quibble: there must be an intent to resign and the
intent
must be coupled by acts of relinquishment.
[78]
The validity of a resignation
is
not a governed by any formal requirement as to form. It can be
oral.
It can be written. It can be express. It can be
implied.
As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any
formal letter of resignation before he evacuated Malacañang
Palace
in the afternoon of January 20, 2001 after the oath-taking of
respondent
Arroyo. Consequently, whether or not petitioner resigned has to
be
determined from his acts and omission before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior
facts
and circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the
petitioner,
it is important to follow the succession of events after the
exposé
of Governor Singson. The Senate Blue Ribbon Committee
investigated.
The more detailed revelations of petitioner’s alleged misgovernance in
Blue Ribbon investigation spiked the hate against him. The
Articles
of Impeachment filed in the House of Representatives which initially
was
given the signatures of 115 representatives or more than 1/3 of the
House
of Representatives. Soon, petitioner’s powerful political allies
began deserting him. Respondent Arroyo quit as Secretary of
Social
Welfare. Senate President Drilon and Former Speaker Villar
defected
with 47 representatives in tow. Then, his respected senior
economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people’s
call
for his resignation intensified. The call reached a new crescendo
when the eleven (11) members of the impeachment tribunal refused to
open
the second envelope. It sent the people to paroxysms of
outrage.
Before the night of January 16 was over, the EDSA Shrine was swarming
with
people crying for redress of their grievance. Their number grew
exponentially.
Rallies and demonstration quickly spread to the countryside like a
brush
fire.
As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the “Final Days of Joseph Ejercito Estrada,” the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer. [79] The Angara Diary reveals that in morning of January 19, petitioner’s loyal advisers were worried about the welling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into a small office at the presidential residence and exclaimed: “Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)” [80] An hour later or at 2:30, p.m. the petitioner decided to call a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP’s withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of “dignified exit or resignation.” [81] Petitioner did not disagree but listened intently. [82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying the petitioner would be allowed to go abroad with enough funds to support him and his family. [83] Significantly, the petitioner expressed no objection to the suggestion for graceful and dignified exit but said he would never leave the country. [84] At 10:00 p.m., petitioner revealed to Secretary Angara, “Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace.” [85] This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, “Ed, magtulungan tayo para magkaroon tayo ng (let’s cooperate to ensure a) peaceful and orderly transfer of power.” [86] There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner’s resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. [87] Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and following entry in the Angara Diary shows the reaction of the petitioner, viz:
“x
x x
"I
explain what happened during the first round of negotiations. The
President
immediately stresses that he just wants a five-day period promised by
Reyes,
as well as to open the second envelope to clear his name.
"If
the envelope is opened, on Monday, he says, he will leave by Monday.
"The
President says. “Pagod na pagod na ako. Ayoko na masyado
nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don’t want any more of this – it’s too painful. I’m
tired of the red tape, the bureaucracy, the intrigue.)
Again, this is high grade evidence that the petitioner has
resigned.
The intent to resign is clear when he said “x x x Ayoko na masyado
nang
masakit.” “ Ayoko na” are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:
“Opposition’s
deal
7:30
a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal’s spokesperson)
Rene Corona. For this round, I am accompanied by Dondon Bagatsing
and Macel.
Rene
pulls out a document titled “Negotiating Points.” It reads:
‘1.
The President shall sign a resignation document within the day, 20
January
2001, that will be effective on Wednesday, 24 January 2001, on which
day
the Vice President will assume the Presidency of the Republic of the
Philippines.
2.
Beginning today, 20 January 2001, the transition process for the
assumption
of the new administration shall commence, and persons designated by the
Vice president to various positions and offices of the government shall
start their orientation activities in coordination with the incumbent
officials
concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police effective immediately. 4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of the president and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President.’ Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: ‘1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. 2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guaranteed freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (‘AFP’) through the Chief of Staff, as approved by the national military and police authorities – Vice President (Macapagal). 3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will authorize the opening of the second envelope in the impeachment trial s proof that the subject savings account does not belong to President Estrada. 4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the “Transition Period”), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (‘PNP’) shall function under Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in form and tenor provided in ‘Annex A’ heretofore attached to this agreement.’” [89]
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of
negotiation,
the resignation of the petitioner was again treated as a given
fact.
The only unsettled points at that time were the measures to be
undertaken
by the parties during and after transition period.
According to Secretary Angara, the draft agreement which was premised
on
the resignation of the petitioner was further refined. It was
then
signed by their side and he was ready to fax it to General Reyes and
Senator
Pimentel to await the signature of the United Opposition.
However,
the signing by the party of the respondent Arroyo was aborted by her
oath-taking.
The Angara Diary narrates the fateful events,viz:
[90]
“x
x x
"11:00
a.m. – Between General Reyes and myself, there is affirm agreement on
the
five points to effect a peaceful transition. I can hear the
general
clearing all these points with a group he is with. I hear voices in the
background.
"The agreement starts: 1. The President shall resign today 20 January 2001, which resignation shall effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines "x x x The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. 3. The Armed Forces of the Philippines through its Chief of Staff Shall guarantee the safety and security of the President and his families throughout their natural lifetimes ad approved by the national military and police authority – Vice President. 4. The AFP and the Philippine National Police (‘PNP’) shall function under the Vice Presidents national military and police authorities. 5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof tat the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex ‘B’ heretofore attached to this agreement. x x x 11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United Opposition. And then it happens. General Reyes call me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. ‘Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldn’t you wait? What about the agreement)?’ I asked. Reyes answered: ‘Wala na, sir (It’s over, sir).’ I asked him: ‘Di yung transition period, moot and academic na?’ And General Reyes answer: ‘Oo nga, i-delete na natin, sir (Yes, we’re deleting that part).’ Contrary to subsequent reports, I do nor react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and General Reyes. I direct Demar to rush the original document to General Reyes for the signatures of the other side, as it is important that the provision on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The president is too stunned for words. Final meal 12 noon – Gloria takes her oath as President of the Republic of the Philippines. 12:20 p.m. – The PSG distributes firearms to some people inside the compound. The President is having his final meal at the Presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. – The President’s personal staff is rushing to pack as many of the Estrada family’s personal possessions as they can. During lunch, Ronie Puno mentions that the President need to release a final statement before leaving Malacañang. The statement reads: ‘at twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as president, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin with the healing process of our nation. I have the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shrik from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!’”
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be
doubted.
It was confirmed by his leaving Malacañang. In the press
release
containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with the reservation
about its legality; (2) he emphasized he was leaving the Palace, the
seat
of the presidency, for the sake of peace and in order to begin the
healing
process of our nation. He did not say he was leaving the Palace
due
to any kind of inability and he was going to re-assume the presidency
as
soon as the disability disappears; (3) he expressed his gratitude to
the
people for the opportunity to serve them. Without doubt, he was
referring
to the past opportunity given him to serve the people as President; (4)
he assured that he will not shreik from any future challenge that may
come
ahead in the same service of our country. Petitioner’s reference
is to a future challenge after occupying the office of’ the president
which
he has given up; and (5) he called on his supporters to join him in the
promotion of a constructive national spirit of reconciliation and
solidarity.
Certainly, the national spirit of reconciliation and solidarity could
not
be attained if he did not give up the presidency. The press
release
was petitioner’s valedictory, his final act of farewell. His presidency
is now in the past tense.
It is, however, urged that the petitioner did not resign but only took
a temporary leave of absence due to his inability to govern. In support
of this thesis, the letter dated January 20, 2001 of the petitioner
sent
to Senate President Pimentel and Speaker Fuentebella is cited.
Again,
we refer to the said letter, viz:
“Sir
By
virtue of the provisions of Section II, Article VII of the Constitution,
I am hereby transmitting this declaration that I am unable to exercise
the powers and duties of my office. By operation of law and the Constitution,
the Vice President shall be the Acting President.
(Sgd.)
Joseph Ejercito Estrada”
To say the least, the above letter is wrapped in mystery.
[91]
The pleadings filed by the
petitioner
in the cases at bar did not discuss, nay, even intimate, the
circumstances
that led to its preparation. Neither did the counsel of the
petitioner
reveal to the Court these circumstances during the oral argument.
It strikes the Court as strange that the letter, despite its legal
value,
was never referred to by the petitioner during the week-long
crisis.
To be sure, there was not the slightest hint of its existence when he
issued
his press release. It was all too easy for him to tell the
Filipino
people in his press release that he was temporarily unable to govern
and
that he was leaving the reins of government to respondent Arroyo for
the
time being. Under any circumstance, however, the mysterious
letter
cannot negate the resignation of the petitioner. If it was
prepared
before the press release of the petitioner clearly showing his
resignation
from the presidency, then the resignation must prevail as a later
act.
If, however, it was prepared after the press release, still, it
commands
scant legal significance. Petitioner’s resignation from the
presidency
cannot be the subject of a changing caprice nor of a whimsical will
especially
if the resignation is the result of his repudiation by the
people.
There is another reason why this Court cannot give any legal
significance
to petitioner’s letter and this shall be discussed in issue number III
of this Decision.
After petitioner contended that as a matter of’ fact he did not resign,
he also argues that he could not resign as a matter of law. He
relies
on Section 12 of R.A.
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz:
A reading of the legislative history of R.A.
No. 3019 will hardly provide any comfort to the petitioner. R.A.
No. 3019 originated from Senate Bill No. 293. The original
draft
of the bill, when it was submitted to the Senate, did not contain a
provision
similar to Section 12 of the law as it now stands. However, in
his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, “reserved
to propose during the period of amendments the inclusion of a provision
to the effect that no public official who is under prosecution for any
act of graft or corruption, or is under administrative investigation,
shall
be allowed to voluntarily resign or retire.”
[92]
During the period of amendments, the following provision was
inserted
as Section 15:
“Sec.
15. Termination of office. - No public official shall be allowed to
resign
or retire pending an investigation, criminal or administrative, or
pending
a prosecution against him, for any offense under the Act or under the
provisions
of the Revised
Penal Code on bribery.
The
separation or cessation of a public official from office shall not be a
bar to his prosecution under this Act for an offense committed during
his
incumbency.”
[93]
The bill was vetoed by then President Carlos P. Garcia who questioned
the
legality of the second paragraph of the provision and insisted that the
President’s immunity should extend even after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No.
293, was thereafter passed. Section 15 above became Section 13 under
the
new bill, but the deliberations on this particular provision mainly
focused
on the immunity of the President which was one of tine reasons for the
veto of the original bill. There was hardly any debate on the
prohibition
against the resignation or retirement of a public official with pending
criminal and administrative cases against him. Be that as it may,
the intent of the law ought to be obvious. It is to prevent the
act
of resignation or retirement from being used by a public official
as a protective shield to stop the investigation of a pending criminal
or administrative case against him and to prevent his Prosecution under
the Anti-Graft
Law or prosecution for bribery under the Revised
Penal Code. To be sure, no person can be compelled to render
service for that would be a violation of his constitutional right.
[94]
A public official has the right not to serve if he really wants
to
retire or resign. Nevertheless, if at the time he resigns or
retires,
a public official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause the
dismissal
of the criminal or administrative proceedings against him. He
cannot
use his resignation or retirement to avoid prosecution.
There is another reason why petitioner’s contention should be rejected.
In the cases at bar, the records show that when petitioner resigned on
January 20, 2001, the cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758.
While these cases have been filed, the respondent Ombudsman refrained
from
conducting the preliminary investigation of the petitioner for the
reason
that as the sitting President then, petitioner was immune from
suit.
Technically, the said cases cannot be considered as pending for the
Ombudsman
lacked jurisdiction to act on them, Section 12 of R.A.
No. 3019 cannot therefore be invoked by the petitioner for it
contemplates
of cases whose investigation or prosecution do not suffer from any
insuperable
legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an
administrative
investigation that, under Section 12 of R.A.
3019, bars him from resigning. We hold otherwise. The
exact
nature of an impeachment proceeding is debatable, But even
assuming arguendo that it is an administrative proceeding, it
cannot
be considered pending at the time petitioner resigned because the
process
already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors
walked out, the public prosecutors filed their Manifestation of
Withdrawal
of Appearance, and the proceedings were postponed indefinitely.
There
was, in effect, no impeachment case pending against petitioner when he
resigned.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave, As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Funtebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge tine powers and duties of the presidency. His significant submittal is that “Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in Section 11 of Article VII.” [95] This contention is the centerpiece of petitioner’s stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides:
“SEC.
11. Whenever the President transmit to the President of the
Senate
and the Speaker of the House of Representatives his written declaration
that he is tillable to discharge the powers and duties of his office,
and
until he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as Acting
President.
Whenever
a majority of all the Members of the Cabinet transmit to the President
of the Senate and to the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the
powers
and duties of his office, the Vice-President shall immediately assume
the
powers and duties of the office as Acting President.
Thereafter,
when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no
inability exists, he shall reassume the powers and duties of his
office.
Meanwhile, should a majority of all the Members of the Cabinet transmit
within five days to the President of the Senate and to the Speaker of
the
House of Representatives their written declaration that the President
is
unable to discharge the powers and duties of his office, the Congress
shall
decide the issue. For that purpose, the Congress shall convene,
if
it is not in session, within forty-eight hours, in accordance with its
rules and without need of call.
If
the Congress, within ten days after receipt of the last written
declaration,
or, if not in session within twelve days after it is required to
assemble,
determines by a two-thirds vote of both Houses, voting separately, that
the President is unable to discharge the powers and duties of his
office,
the Vice-President shall act as President; otherwise, the President
shall
continue exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1)
Petitioner, on January 20, 2001, sent the above letter claiming
inability
to the Senate President amid Speaker of the House;
(2)
Unaware of the letter, respondent Arroyo took her oath of office as
President
on January 20, 2001 at about 12:30 p.m.;
(3)
Despite receipt of the letter, the I-louse of’ Representative passed on
January 24, 2001 House Resolution No. l75
[96]
On the same date the House of the Representatives passed House
Resolution
No. l76
[97]
which states:
“RESOLUTION
EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ASSUMPTION
INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT
OFTHE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND
EXPRESSING
ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF
THE
NATION’S GOALS UNDER THE CONSTITUTION.
WHEREAS,
as a consequence of the people’s loss of confidence on the ability of
former
President Joseph Ejercito Estrada to effectively govern, the Armed
Forces
of the Philippines, the Philippine National Police and majority of his
cabinet had withdrawn support from him;
WHEREAS,
upon authority of an en banc resolution of the Supreme Court,
Vice
President Gloria Macapagal-Arroyo was sworn in as President of the
Philippines
on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS,
immediately thereafter, members of the international community had
extended
then recognition to her Excellency, Gloria Macapagal-Arroyo as
President
of the Republic of the Philippines;
WHEREAS,
Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy
of national healing and reconciliation with justice for the purpose of
national unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing governnment and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and Political wounds, and to be an instrument of national reconciliation and solidarity as itis a direct representative of the various segments of the whole nation; WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest denmiiding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation’s goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR.
Speaker
This
Resolution was adopted by the House ofRepresentatives on
January
24, 2001.
(Sgd.)
ROBERTO P. NAZARENO
Secretary
General”
On
February 7, 2001 , the House of the Representatives passed House
Resolution
No. 178
[98]
which states:
“RESOLUTION
CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO’S NOMINATION OF SENATOR
TEOFISTO
T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS,
there is a vacancy in the Office of the Vice President due to the
assumption
to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS,
pursuant to Section 9, Article VII of the Constitution,
the President in the event of such vacancy shall nominate a Vice
President
from among the members of the Senate and the House of Representatives
who
shall assume office upon confirmation by a majority vote of all members
of both Houses voting Separately;
WHEREAS,
Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona Jr., to the position of Vice
President
of the Republic of the Philippines;
WHEREAS,
Senator Teofisto T. Guingona Jr., is a public servant endowed with
integrity,
competence and courage; who has served the Filipino people with
dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr.as the Vice President of the Republic of the Philippines. Adopted, (Sgd) FELICIANO BELMONTE JR.
Speaker
This
Resolution was adopted by the House of Representatives on February 7,
2001.
(Sgd.)
ROBERTO P. NAZARENO
Secretary
General”
(4) Also, despite receipt of petitioner’s letter claiming
inability,
some twelve (12) members of the Senate signed the following:
WHEREAS, the recent transition in government offers the nation anopportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolute cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome the nation’s challenges.” [99] On February 7, the Senate also passed Senate Resolution No. 82 [100] which states: “RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO’S NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is it vacancy in the Office of the VicePresident due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Phillippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence, and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q.PIMENTEL JR.
President
of the Senate
This
Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary
of the Senate”
On the same date, February 7, the Senate likewise passed Senate
Resolution
No. 83
[101]
which
states:
“RESOLUTION
RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved,
as it is hereby resolved. That the Senate recognize that the
Impeachment
Court is functus officio and has been terminated.
Resolved,
further, That the Journals of the Impeachment Court of Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered
approved.
Resolved,
further, Thatthe records of the Impeachment Court including
the
‘second envelope’ be transferred to the Archives of the Senate for
proper
safekeeping and preservation in accordance with the Rules of the
Senate.
Disposition and retrieval thereof shall be made only upon written
approval
of the Senate President.
Resolved,
finally. That all parties concerned be furnished copies of this
Resolution.
Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR.
President
of theSenate
This
Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary
of the Senate”
(5) On February 8, the Senate also passed Resolution No. 84
“certifying
to the existence of a vacancy in the Senate and calling on the COMELEC
to fill up such vacancy through election to be held simultaneously with
the regular election on May 14, 2001 and the senatorial candidate
garnering
the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.”
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet,
without any recognition from any sector of government, and without any
support from the Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his inability
to
govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses
of Congress have recognized respondent Arroyo as the President.
Implicitly
clear in that recognition is the premise that the inability of
petitioner
Estrada is no longer temporary. Congress has clearly rejected
petitioner’s
claim of inability.
The question is whether this Court has jurisdiction to review the claim
of temporary inability of petitioner Estrada and thereafter revise the
decision of both Houses of Congress recognizing respondent Arroyo as
President
of the Philippines. Following Tañada v. Cuenco,
[102]
we hold that this Court cannot
eexercise its judicial power for this is an issue “in regard to which full
discretionary authority has been delegated to the Legislative x x
x
branch of the government.” Or to use the language in Baker vs. Carr
[103]
there is a “textually
demonstrable
constitutional commitment of the issue to a coordinate political
department
or a lack of judicially discoverable and manageable standards for
resolving
it.” Clearly, the Court cannot pass upon petitioner’s claim of
inability
to discharge the powers and duties of the presidency. The
question
is political in nature and addressed solely to Congress by
constitutional
fiat. It is a political issue which cannot be decided by this
Court
without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign,
still,
he cannot successfully claim that he is a President on leave on the
ground
that he is merely unable to govern temporarily. That claim has been
laid
to rest by Congress and the decision that respondent Arroyo is the de
jure President made by a co-equal branch of government cannot be
reviewed
by this Court.
Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachement proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner’s contentions, a revisit of our legal history on executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield, [104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
“The
principle of nonliability, as herein enunciated, does not mean that the
judiciary has no authority to touch the acts of the Governor-General;
that
he may, under cover of his office, do what he will, unimpeded and
unrestrained.
Such a construction would mean that tyranny, under the guise of the
execution
of the law, could walk defiantly abroad, destroying rights of person
and
of property, wholly free from interference of courts or
legislatures.
This does not mean, either, that a person injured by the executive
authority
by an act unjustifiable under the law has no remedy, but must submit in
silence. On the contrary, it means, simply, that the
Governor-General,
like the judges of the courts and the members of the Legislature, may
not
be personally mulcted in civil damages for the consequences of an act
executed
in the performance of his official duties. The judiciary has full
power to, and will, when the matter is properly presented to it and the
occasion justly warrants it, declare an act of the Governor-General
illegal
and void and place as nearly as possible in status quo any person who
has
been deprived his liberty or his property by such act. This
remedy
is assured to every person, however humble or of whatever country, when
his personal or property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can
not
do is mulct the Governor-General personally in damages which result
from
the performance of his official duty, any more that it can a member of
the Philippine Commission or the Philippine Assembly. Public
policy
forbids it.
"Neither
does this principle of nonliability mean that the chief executive may
not
be personally sued at all in relation to acts which he claims to
perform
as such official. On the contrary, it clearly appears from the
discussion
heretofore had, particularly that portion which touched the liability
of
judges and drew an analogy between such liability and that of the
Governor-General,
that the latter is liable when he acts in the case so plainly outside
of
his power and authority that he can not be said to have exercise
discretion
in determining whether or not he had the right to act. What is
held
here is that he will be protected from personal liability for damages
not
only when he acts within his authority, but also when he is without
authority,
provided he actually used discretion and judgment, that is, the
judicial
faculty, in determining whether he had authority to act or not.
In
other words, he is entitled to protection in determining the question
of
his authority. If he decide wrongly, he is still protected
provided
the question of his authority was one over which two men, reasonably
qualified
for that position, might honestly differ; but he is not protected if
the
lack of authority to act is so plain that two such men could not
honestly
differ over its determination. In such case, he acts, not as
Governor-General
but as a private individual, and, as such, must answer for the
consequences
of his act.”
Mr. Justice Johnson underscored the consequences if the Chief Executive
was not granted immunity from suit, viz: “x x x. Action upon
important
matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of
one of the highest officials of the State and for the office he
occupies;
a tendency to unrest and disorder; resulting in a way, in a distrust as
to the integrity of government itself.”
[105]
Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated:
“The
President shall be immune from suit during his tenure.
Thereafter,
no suit whatsoever shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
"The
immunities herein provided shall apply to the incumbent President
referred
to in Article XVII of this Constitution.”
In his second Vicente G. Sinco Professional Chair Lecture entitled, “Presidential
Immunity And All The King’s Men: The Law Of Privilege As A
Defense
To Actions For Damages,”
[106]
petitioner’s learned counsel, former Dean of the UP College of Law,
Atty.
Pacifico Agabin, brightlined the modifications effected by this
constitutional
amendment on the existing law on executive privilege. To quote
his
disquisition:
“In
the Philippines, though, we sought to do the Americans one better by
enlarging
and fortifying the absolute immunity concept. First, we extended
it to shield the President not only from civil claims but also from
criminal
cases and other claims. Second, we enlarged its scope so that it
would cover even acts of the President outside the scope of official
duties.
And third, we broadened its coverage so as to include not only the
President
but also other persons, be they government officials or private
individuals,
who acted upon orders of the President. It can be said that at
that
point most of us were suffering from AIDS (or absolute immunity defense
syndrome).”
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian
concept of executive immunity in the 1973
Constitution. The move was led by then Member of Parliament, now
Secretary
of Finance, Alberto Romulo, who argued that the after incumbency
immunity
granted to President Marcos violated the principle that a public office
is a public trust. He denounced the immunity as a return to the
anachronism
“the king can do no wrong.”
[107]
The effort failed.
The 1973
Constitution ceased to exist when President Marcos was ousted from
office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive
immunity provision of the 1973
Constitution. The following explanation was given by delegate
J. Bernas, viz:
[108]
“Mr.
Suarez. Thank you.
The
last question is with reference to the committee’s omitting in the
draft
proposal the immunity provision for the President. I agree with
Commissioner
Nolledo that the Committee did very well in striking out this second
sentence,
at the very least, of the original provision on immunity from suit
under
the 1973 Constitution. But would the Committee members not agree
to a restoration of at least the first sentence that the President
shall
be immune from suit during his tenure, considering that if we do not
provide
him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing
litigations
almost daily?
Fr.
Bernas. The reason for the omission is that we consider it
understood
in present jurisprudence that during his tenure he is immune from suit.
Mr.
Suarez. So there is no need to express it here.
Fr.
Bernas. There is no need. It was that way before. The
only innovation made by the 1973 Constitution was to make that explicit
and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I thank the Commissioner for the clarification.”
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for
the reason that he must first be convicted in the impeachment
proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout
of the prosecutors and by the events that led to his loss of the
presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
“Recognizing that the Impeachment Court is Functus Officio.”
[109]
Since the Impeachment Court is now functus officio, it is
untenable
for petitioner to demand that he should first be impeached and then
convicted
before he can be prosecuted. The plea, if granted, would put a
perpetual
bar against his prosecution. Such a submission has nothing to
commend
itself for it will place him in a better situation than a non-sitting
President
who has not been subjected to impeachment proceedings and yet can be
the
object of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment
proceedings
have become moot due to the resignation of the President, the proper
criminal
and civil cases may already be filed against him, viz:
[110]
“x
x x
"Mr.
Aquino. On another point, if an impeachment proceeding has been
filed
against the President, for example, and the President resigns before
judgment
of conviction has been rendered by the impeachment court or by the
body,
how does it affect the impeachment proceeding? Will it be necessarily
dropped?
"Mr.
Romulo. If we decide the purpose of impeachment to remove one
from
office, then his resignation would render the case moot and
academic.
However, as the provision says, the criminal and civil aspects of it
may
continue in the ordinary courts.”
This is in accord with our ruling in In re: Saturnino Bermudez
[111]
that “incumbent Presidents are immune from suit or from being
brought
to court during the period of their incumbency and tenure” but not
beyond. Considering the peculiar circumstance that the impeachment
process
against the petitioner has been aborted and thereafter he lost the
presidency,
petitioner Estrada cannot demand as a condition sine qua non to
his criminal prosecution before the Ombudsman that he be convicted in
the
impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan
[112]
and related cases
[113]
are inapropos for they have a
different
factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. [114]
Indeed, a critical reading of current literature on executive immunity
will reveal a judicial disinclination to expand the privilege
especially
when it impedes the search for truth or impairs the vindication of a
right.
In the 1974 case of US v. Nixon,
[115]
US President Richard Nixon, a sitting President, was subpoenaed to
produce
certain recordings and documents relating to his conversations with
aids
and advisers. Seven advisers of President Nixon’s associates were
facing charges of conspiracy to obstruct justice and other offenses
which
were committed in a burglary of the Democratic National Headquarters in
Washington’s Watergate Hotel during the 1972 presidential
campaign.
President Nixon himself was named an unindicted co-conspirator.
President
Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first
be impeached and removed from office before he could be made amenable
to
judicial proceedings. The claim was rejected by the US
Supreme
Court. It concluded that “when the ground for asserting
privilege
as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair
administration
of criminal justice.” In the 1982 case of Nixon v. Fitzgerald,
[116]
the US Supreme Court further held that the immunity of the President
from
civil damages covers only “official acts.” Recently, the Us
Supreme
Court had the occasion to reiterate this doctrine in the case of
Clinton
v. Jones
[117]
where it held that the US President’s immunity from suits for money
damages
arising out of their official acts is inapplicable to unofficial
conduct.
There are more reasons not to be sympathetic to appeals to stretch the
scope of executive immunity in our jurisdiction. One of the great
themes of the 1987
Constitution is that a public office is a public trust.
[118]
It declared as a state policy that “(t)he State shall maintain
honesty
and integrity in the public service and take positive and effective
measures
against graft and corruption."
[119]
It ordained that “(p)ublic officers and employees must at all times
be accountable to the people, serve them with utmost responsibility,
integrity,
loyalty, and efficiency, act with patriotism and justice, and lead
modest
lives.”
[120]
It set the rule that “(t)he right of the State to recover
properties
unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription,
laches
or estoppel.”
[121]
It maintained the Sandiganbayan as an anti-graft court.
[122]
It created the office of the Ombudsman and endowed it with enormous
powers,
among which is to "(i)nvestigate on its own, or on complaint by any
person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust,
improper,
or inefficient.”
[123]
The Office of the Ombudsman was also given fiscal autonomy.
[124]
These constitutional policies will be devalued if we sustain
petitioner’s
claim that a non-sitting president enjoys immunity from suit for
criminal
acts committed during his incumbency.
Petitioner also contends that the respondent Ombudsman should be
stopped
from conducting the investigation of the cases filed against him due to
the barrage of prejudicial publicity on his guilt. He submits
that
the respondent Ombudsman has developed bias and is all set to file the
criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. [125] The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. [126] The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been
raised
in this Court to stop the trials or annul convictions in high profile
criminal
cases.
[127]
In People vs. Teehankee, Jr.,
[128]
later reiterated in the case of Larranaga vs. Court of Appeals, et al.,
[129]
we laid down the doctrine that:
“We
cannot sustain appellant’s claim that he was denied the right to
impartial
trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we now
rule that the right of an accused to a fair trial is not incompatible
toa
free press. To be sure, responsible reporting enhances an
accused’s
right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the handmaiden of effective judicial
administration,
especially in the criminal field x x x. The press does not simply
publish information about trials but guards against the miscarriage of
justice by subjecting the police, prosecutors, and judicial processes
to
extensive public scrutiny and criticism.
Pervasive
publicity is not per se prejudicial to the right of an accused to fair
trial. The mere fact that the trial of appellant was given a
day-to-day,
gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his
impartiality.
For one, it is impossible to seal the minds of members of the bench
from
pre-trial and other off-court publicity of sensational criminal cases.
The state of the art of our communication system brings news as they
happen
straight to our breakfast tables and right to our bedrooms. These
news from part of our everyday menu of the facts and fictions of
life.
For another, our idea of a fair and impartial judge is not that of a
hermit
who is out of touch with the world. We have not installed the jury
system
whose members are overly protected from publicity lest they lose their
impartiality. x x x Our judges are learned in the law and
trained
to disregard off-court evidence and on-camera performances of parties
to
a litigation. Their mere exposure to publications and publicity
stunts
does not per se fatally infect their impartiality.
At
best, appellant can only conjure possibility of prejudice on the part
of
the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro,
et al., we rejected this standard of possibility of prejudice and
adopted
the test of actual prejudice as we ruled that to warrant a finding of
prejudicial
publicity, there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of
publicity.
In the case at bar, the records do not show that the trial judge
developed
actual bias against appellant as a consequence of the extensive media
coverage
of the pre-trial and trial of his case. The totality of circumstances
of
the case does not prove that the trial judge acquired a fixed opinion
as
a result of prejudicial publicity which is incapable if change even by
evidence presented during the trial. Appellant has the burden to prove
this actual bias and he has not discharged the burden.”
We expounded further on this doctrine in the subsequent case of Webb
vs.
Hon. Raul de Leon, etc.
[130]
and its companion cases. viz.:
“Again,
petitioners raise the effect of prejudicial publicity on their right to
due process while undergoing preliminary investigation. We find no
procedural
impediment to its early invocation considering the substantial risk to
their liberty while undergoing a preliminary investigation.
"x
x x
"The
democratic settings, media coverage of trials of sensational cases
cannot
be avoided and oftentimes, its excessiveness has been aggravated by
kinetic
developments in the telecommunications industry. For sure, few cases
can
match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts
and
fiction about the case continues unabated even today.
Commentators
still bombard the public with views not too many of which are sober and
sublime. Indeed, even the principal actors in the case – the NBI,
the respondents, their lawyers and their sympathizers – have
participated
in this media blitz. The possibility of media abuses and their
threat
to a fair trial notwithstanding, criminal trials cannot be completely
closed
to the press and public. Inn the seminal case of Richmond
Newspapers,
Inc. v. Virginia, it was wisely held:
‘x
x x
(a)
The historical evidence of the evolution of the criminal trial in
Anglo-American
justice demonstrates conclusively that the time this Nation’s organic
laws
were adopted, criminal trials both here and in England had long been
presumptively
open, thus giving assurance that the proceedings were conducted fairly
to all concerned and discouraging perjury, the misconduct of
participants,
or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was
recognized:
when a shocking crime occurs, a community reaction of outrage and
public
protest often follows, and thereafter the open processes of justice
serve
an important prophylactic purpose, providing an outlet for community
concern,
hostility, and emotion. To work effectively, it is important that
society’s criminal process ‘satisfy the appearance of justice,’ Offutt
v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best
be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today
as
in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation’s
system
of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L
Ed 2d 989, 80 S Ct 1038.
(b)
The freedoms of speech, press, and assembly, expressly guaranteed by
the
First Amendment, share a common core purpose of assuring freedom of
communication
on matters relating to the functioning of government. In guaranteeing
freedoms
such as those of speech and press, the First Amendment can be read as
protecting
the right of everyone to attend trials so as give meaning to those
explicit
guarantees; the First Amendment right to receive information and ideas
means, in the context of trials, that the guarantees of speech and
press,
standing alone, prohibit government from summarily closing courtroom
doors
which had long been open to the public at the time the First Amendment
was adopted. Moreover, the right of assembly is also relevant, having
been
regarded not only as an independent right but also as a catalyst to
augment
the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a
public
place where the people generally – and representatives of the media –
have
a right to be present, and where their presence historically has been
thought
to enhance the integrity and quality of what takes place.
(c)
Even though the Constitution contains no provision which by its terms
guarantees
to the public the right to attend criminal trials, various fundamental
rights, not expressly guaranteed, have been recognized as indispensable
to the enjoyment of enumerated rights. The right to attend criminal
trial
is implicit in the guarantees of the First Amendment: without the
freedom
to attend such trials, which people have exercised for centuries,
important
aspects of freedom of speech and of the press could be eviscerated.’
Be that as it may, we recognize that pervasive and prejudicial
publicity
under certain circumstances can deprive an accused of his due process
right
to fair trial. Thus, in Martelino, et al. vs. Alejandro, etal., we held that to warrant a finding of prejudicial
publicity
there must be allegation and proof that the judges have been unduly
influenced,
not simply that they might be, by the barrage of publicity. In the case
at bar, we find nothing in the records that will prove that the tone
and
content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners
cannot just rely on the subliminal effects of publicity on the sense of
fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJPanel is composed of an Assistant
Chief
State Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether
they
can easily be blinded by the klieg lights of publicity. Indeed,
their
26-page Resolution carries no indubitable indicia of bias for
it
does not appear that they considered any extra-record evidence except
evidence
properly adduced by the parties. The length of time the investigation
was
conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their
fairness.
At no instance, we note, did petitioners seek the disqualification of
any
member of the DOJ Panel on the ground of bias resulting from their
bombardment
of prejudicial publicity.”
(emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to
warrant this Court to enjoin the preliminary investigation of the
petitioner
by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof.
[131]
He needs to show more weighty social science evidence to successfully
prove
the impaired capacity of a judge to render a bias-free decision. Well
to
note, the cases against the petitioner are still undergoing preliminary
investigation by a special panel of prosecutors in the office of the
respondent
Ombudsman. No allegation whatsoever has been made by the petitioner
that
the minds of the members of this special panel have already been
infected
by bias because of the pervasive prejudicial publicity against
him.
Indeed, the special panel has yet to come out with its findings and the
Court cannot second guess whether its recommendation will be
unfavorable
to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman
himself with bias. To quote petitioner’s submission, the respondent
Ombudsman
“has been influenced by the barrage of slanted news reports, and he
has buckled to the threats and pressures directed at him by the mobs.”
[132]
News reports have also been quoted to establish that the
respondent
Ombudsman has already prejudged the cases of the petitioner
[133]
and it is postulated that the prosecutors investigating the petitioner
will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is
insubstantial.
The accuracy of the news reports referred to by the petitioner cannot
be
the subject of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official
duty to which he is entitled. Nor can we adopt the theory of derivative
prejudice of petitioner, i.e., that the prejudice of respondent
Ombudsman flows to his subordinates. In truth, our Revised
Rules of Criminal Procedure, give investigating prosecutors the
independence
to make their own findings and recommendations albeit they are
reviewable
by their superiors.
[134]
They can be reversed but they cannot be compelled to change their
recommendations nor can they be compelled to prosecute cases which they
believe deserve dismissal. in other words, investigating prosecutors
should
not be treated like unthinking slot machines. Moreover, if the
respondent
Ombudsman resolves to file the cases against the petitioner and the
latter
believes that the finding of probable cause against him is the result
of
bias, he still has the remedy of assailing it before the proper court.
A word of caution to the “hooting throng.” The cases against the petitioner will now acquire a different dimension and then move to a new stage - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the “most fundamental of all freedoms.” [135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls “the impatient vehemence of the majority.” Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man’s progress from the cave to civilization. Let us not throw away that key just to pander to some people’s prejudice. IN VIEW WHEREOF, the petitions ofJoseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure14th President of the Republic are DISMISSED. SO ORDERED. Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr., JJ., concur Davide, Jr., C.J., and Panganiban, J., no part Vitug, and Mendoza, JJ., see concurring opinion. Kapunan, Ynares-Santiago, and Sandoval-Gutierrez, JJ., concur in the result and reserve the right to write a separate opinion. Pardo, and Buena, JJ., in the result.
This
nation has a great and rich history authored by its people.
The EDSA Revolution of 2001 could have been one innocuous phenomenon
buried
in the pages of our history but for its critical dimensions. Now, EDSA
2 would be far from being just another event in our annals. To
this
day, it is asked - is Mr. Joseph Ejercito Estrada still the President
of
the Republic of the Philippines?
To
retort, one is to trace the events that led to the denouement of the
incumbency
of Mr. Joseph Ejercito Estrada. Mr. Estrada, herein petitioner,
was
elected to office by not less than 10 million Filipinos in the
elections
of May 1998, served for well over two years until 20 January
2001.
Formally impeached by the Lower House of Representatives for cases of
Graft
and Corruption, Bribery, Betrayal of Public Trust and Culpable
Violation
of the Constitution,
he was tried by the Senate. The Impeachment Tribunal was tasked
to
decide on the fate of Mr. Estrada - if convicted, he would be removed
from
office and face prosecution with the regular courts or, it acquitted,
he
would remain in office. An evidence, however, presented by the
prosecution
tagged as the "second envelope" would have it
differently.
The denial by the impeachment court of the pleas to have the dreaded
envelope
opened promptly put the trial into a halt. Within hours after the
controversial Senate decision, an angered people trooped once again to
the site of the previous uprising in 1986 that toppled the 20-year rule
of former President Ferdinand E. Marcos- EDSA. Arriving in
trickles,
the motley gathering swelled to an estimated million on the fourth day,
with several hundreds more nearing Mendiola reportedly poised to storm
Malacañang.
In
the morning of 20 January 2001, the people waited for Erap to step down
and to heed the call for him to resign. At this time, Estrada was
a picture to man, elected into the Presidency, but beleaguered by
solitude-empty
of the support by the military and the police, abandoned by most of his
cabinet members, and with hardly any firm succor from
constituents.
And despite the alleged popularity that brought him to power, mass
sentiments
now appeared to be for his immediate ouster.
With
this capsule, the constitutional successor of Estrada in the person of
Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue
and
requested the Chief Justice to administer her oath-taking. In a
letter,
sent through "fax" at about half past eleven o'clock in the
morning
of 20 January 2001, read:
"The
undersigned respectfully informs this Honorable Court that Joseph
Ejercito
Estrada is permanently incapable of performing the duties of his office
resulting in his permanent disability to govern and serve his unexpired
term. Almost all of his cabinet members have resigned and the
Philippine
National Police have withdrawn their support for Joseph Ejercito
Estrada.
Civil Society has likewise refused to recognize him as President.
"In
view of this, I am assuming the position of the President of the
Republic
of the Philippines. Accordingly, I would like to take my oath as
President of the Republic before the Honorable Chief Justice Hilario G.
Davide, Jr., today, 20 January 200, 12:00 noon as Edsa Shrine, Quezon
City,
Metro Manila.
"May
I have the honor to invite the members of the Honorable Court to attend
the oath-taking."
The
tribunal, aware of the grave national crisis which had the marks of yet
intensifying into possible catastrophic proportions, agreed to honor
the
request. Theretofore, the Court, cognizant that it had to keep its
doors
open, had to help assure that the judicial process was seen to be
functioning.
As the hours passed, however, the extremely volatile situation was
getting
more precarious by the minute, and the combustible ingredients were all
but ready to ignite. The country was faced with a phenomenon -
the
phenomenon of a people, who, in the exercise of a sovereignty perhaps
too
limitless to be explicitly contained and constrained by the limited
words
and phrases of the Constitution,
directly sought to remove their president from office. On that
morning
of the 20th of January, the high tribunal was confronted with a dilemma
- should it choose a literal and narrow view of the Constitution,
invoke the rule of strict law, and exercise its characteristic
reticence?
Or was it propitious for it to itself take a hand? The first was
fraught with danger and evidently too risky to accept. The second
could very well help avert imminent bloodshed. Given the
realities,
the Court was left hardly with choice. Paradoxically, the first
option
would almost certainly imperil the Constitution,
the second could save it. The confirmatory resolution was issued
following
the en banc session of the Court on 22 January 2001; it read:
"A.M.
No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal
Arroyo
to take her Oath of Office as President of the Philippines before the
Chief
Justice- Acting on the urgent request of Vice President Gloria
Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines,
addressed
to the Chief Justice and confirmed letter to the Court, dated January
20,
2001, which request was treated as an administrative matter, the Court
resolved unanimously to CONFIRM the authority given by the twelve (12)
members of the Court then present to the Chief justice on January 20,
2001
to administer the oath of office to Vice President Gloria
Macapagal-Arroyo
as President of the Philippines, at noon on January 20, 2201.
"This
resolution is without prejudice to the disposition of any justiciable
case
which may be filed by a proper party."
At
high noon on the 20th of January 2001, Gloria Macapagal-Arroyo was
sworn
in as the 14th President of the Republic of the Philippines.
EDSA,
once again, had its momentous role in yet another "bloodless
revolution."
The Court could not have remained placid amidst the worsening situation
at the time. It could not in conscience allow the high-strung
emotions
and passions for EDSA to reach the gates of Malacañang.
The
military and police defections created stigma that could not be left
unguarded
by a vacuum in the Presidency. The danger was simply
overwhelming.
The extraordinariness of the reality called for an extraordinary
solution.
The Court has chosen to prevent rather than cure an enigma incapable of
being recoiled. The alarming social unrest ceased as the
emergence
of a new leadership so unfolded. The promise of healing the
battered
nation engulfed the spirit but it was not to last. Questions were
raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to
office.
Mr. Estrada would insist that he was still President and that Mme.
Macapagal-Arroyo
took over only in an acting capacity.
So
it is argued, Mr. Estrada remains to be the President because under the
1987
Constitution,
the Vice-President may assume the Presidency only in its explicitly
prescribed
instances; to wit, firstly, in case of death, permanent disability,
removal
from office, or resignation of the President,
[1]
secondly, when the President transmits to the President of the Senate
and
the Speaker of the House of Representatives his written declaration
that
he is unable to discharge the power and duties of his office,
[2]
and thirdly, when majority of all members of the Cabinet transmit to
the
President and to the Speaker of the house of Representatives their
written
declaration that the President is unable to discharge the powers and
duties
of this office,
[3]
the latter two grounds being culled as the "disability clauses."
Mr.
Estrada belies that he cannot be considered to have relinquished his
office
for none of the above situations have occurred. The conditions for
constitutional
succession have not been met. He states that he has merely been "temporarily
incapacitated" to discharge his duties, and he invokes his letters
to both Chambers of the Congress consistent with Section 11 of Article
VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the
two houses read:
"By
virtue of the provisions of Section 11, Article VII of the Constitution,
I am hereby transmitting this declaration that I am unable to exercise
the powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be acting President."
Truly,
the grounds raised in the petition are as dubitable and the
petitioner's
real motive in filing the case.
The
pressing issue must now catapult to its end.
Resignation
is an act of giving up of the act of an officer by which he renounces
his
office indefinitely. In order to constitute a complete and
operative
act of resignation, the officer or employee must show a clear intention
to relinquish or surrender this position accompanied by an act of
relinquishment.
Resignation implies an expression of an incumbent in some form, express
or implied, of the intention to surrender, renounce, or relinquish the
office.
[4]
Mr.
Estrada imports that he did not resign from the Presidency because the
word "resignation" has not once been embodied in his letters. I
am unable to oblige. The contemporary acts of Estrada during
those
four critical days of January are evident of his intention to
relinquish
his office. Scarcity of words may not easily cloak reality and
hide
true intentions. Crippled to discharge his duties, the embattled
President acceded to have negotiations conducted for a smooth
transition
of power. The belated proposals of the President to have the
Impeachment
Court allow the opening of the controversial envelope and to postpone
his
resignation until 24 January 2001 were both rejected. On the
morning
of 20 January 2001, the President sent Congress the following letter -
"By
virtue of the provisions of Section II, Article VII, of the Constitution,
I am hereby transmitting this declaration that I am unable to exercise
the powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be acting President."
Receipt
of the letter by the Speaker of the lower house was placed at around
eight
o'clock in the morning but the Senate President was said to have
received
a copy only on the evening of that day. Nor this Court turn a
blind
eye to the paralyzing events which left petitioner to helplessness and
inutility in office - not so much by the confluence of events that
forced
him to step down from the seat of power in a poignant and teary
farewell
as the recognition of the will of the governed to whom he owed
allegiance.
In his "valedictory message," he wrote:
"At
twelve o'clock noon today, Vice-President Gloria Macapagal Arroyo took
her oath as President of the Republic of the Philippines. While
along
with many other legal minds of our country, I have strong and serious
doubts
about the legality and constitutionality of her proclamation as
President,
I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.
"It
is for this reason that I now leave Malacañang Palace, the seat
of the presidency of this country, for the sake of peace and in order
to
begin the healing process of our nation. I leave the palace of
our
people with gratitude for the opportunities given to me for services to
our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
"I
call on all my supporters and followers to join me in the promotion of
a constructive national spirit of reconciliation and solidarity.
"May
the Almighty bless our country and our beloved people.
"MABUHAY!"
Abandonment
of office is a species of resignation,
[5]
and it connotes the giving up of the office although not attended by
the
formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether
deliberate or not.
[6]
Mr.
Joseph Estrada invokes "temporary incapacity" under Section 11,
Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity
contemplated
clearly envisions those that are personal, either by physical or mental
in nature,
[7]
and innate to the individual. If it were otherwise, when then
would
the disability last? Would it be when the confluent causes
which have brought about that disability are completely set in reverse?
Surely, the idea fails to register well to the simple mind.
Neither
can it be implied that the takeover has installed a revolutionary
government.
A revolutionary government is one which has taken seat of power by
force
or in defiance of the legal process. Within the political
context,
a revolution is a complete overthrow of the established government.
[8]
In its delimited concept, it is characterized often,
[9]
albeit not always,
[10]
by violence as a means and specificable range of goals as ends. In
contrast,
EDSA 2 did not envision radical changes. The government structure has
remained
intact. Succession to the Presidency has been by the duly-elected
Vice-President of the Republic. The military and the police, down the
line,
have felt to be so acting in obedience to their mandate as the
protector
of the people.
Any
revolution, whether it is violent or not, involves a radical change.
Huntington
sees revolution as being "a rapid, fundamental and violent domestic
change in the dominant values and myths of soceity in its political
institution,
social structure, leadership, government activity and policies."
[11]
The distinguished A.J. Milne makes a differentiation between constitutional
political action and revolutionary political action.
A
constitutional political action, according to him, is a political
action
within a legal framework and rests upon a moral commitment to uphold
the
authority of law. A revolutionary political action, on the other
hand, acknowledges no such moral commitment. The latter is
directed
towards overthrowing the existing legal order and replacing it with
something
else.
[12]
And what, one might ask, is the "legal order" referred to?
It is an authoritative code of a polity comprising enacted rules, along
with those in the Constitution
[13]
and concerns itself with structures rather than personalities in the
establishment.
Accordingly, structure would refer to the different branches of the
government
and personalities would be the power-holders. If determination
would
be made whether a specific legal order is intact or not, what can be
vital
is not the change in the personalities but a change in the structure.
The
ascension of Mme. Macapagal-Arroyo to the presidency has resulted
neither
in the rupture nor in the abrogation of the legal order. The
constitutionally-established
government structures, embracing various offices under the executive
branch,
of the judiciary, of the legislature, of the constitutional commissions
and still other entities, including the Armed Forces of the Philippines
and the Philippine National Police and local governments as well, have
all remained intact and functioning.
An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore the basic tenet of the constitutionalism and to fictionalize the clearly preponderant facts. More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. [14] Behind its conciseness is its inclusiveness and its aperture overridingly lie, not fragmented bur integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not to be confined to the conditions and outlook which prevail at the time of its adoption; [15] instead, it must be given flexibility to bring it in accord with the vicissitudes of changing and advancing affairs of men. [16] Technicalities and play of words cannot frustrate the inevitable because there is an immense difference between legalism and justice. If only to secure our democracy and to keep the social order - technicalities must give way. It has been said that the real essence of justice does not emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the ultimate development of social edifice. [17] Anything else defeats the spirit and intent of the Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity. All told, the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the revolutionary government that we know. The new government, now undoubtedly in effective control of the entire country, domestically and internationally recognized to be legitimate, acknowledging a previous pronouncement of the court, [18] is a de jure government both in fact and in law. The basic structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been saved and preserved. Inevitably, Mme. Gloria Macapagal-Arroyo is the President, not merely an Acting President, of the Republic of the Philippines.
A
reminder of an elder to the youth. After two non-violent
civilian
uprisings within just a short span of years between them, it might be
said
that popular mass action is fast becoming an institutionalized
enterprise.
Should the streets now be the venue for the exercise of popular
democracy?
Where does one draw the line between the rule of law and the rule of
the
mob, or between "People Power" and "Anarchy?" If,
as
the sole justification for its being, the basis of the Arroyo
presidency
lies alone on those who were as EDSA, then it does rest on loose and
shifting
sands and might tragically open a Pandora's box more potent than the
malaise
it seeks to address. Conventional wisdom dictates the
indispensable
need for great sobriety and extreme circumspection on our part.
In
this kind of arena, let us be assured that we are not overcome by
senseless
adventurism and opportunism. The country must not grow oblivious
to the innate perils of people power for no bond can be stretched far
too
much to its breaking point. To abuse is to destroy that which we
may hold dear.
In
issue in these cases is the legitimacy of the presidency of respondent
Gloria Macapagal-Arroyo. In G.R. No. 146738, the petition for quo
warranto seeks a declaration that petitioner Joseph Ejercito Estrada is
the lawful president of the Philippines and the respondent Gloria
Macapagal-Arroyo
is merely acting President on account of the former's temporary
disability.
On the other hand, if G.R. Nos. 146710-15, the petition seeks to
prohibit
respondent Ombudsman Aniano Desierto from investigating charges of
plunder,
bribery, malversation of public funds, and graft and corruption against
petitioner Estrada on the theory that, being still President, he is
immune
from suit.
In
both cases, a preliminary question is raised by respondents whether the
legitimacy of Gloria Macapagal-Arroyo's presidency is a justiciable
controversy.
Respondent Gloria Macapagal-Arroyo contends that the matter is not
justiciable
because of "the virtual impossibility of undoing what has been
done,
namely, the transfer of constitutional power to Gloria Macapagal-Arroyo
as a result of a events starting from the expose of Ilocos Sur Governor
Luis 'Chavit' Singson in October 2000."
[1]
In support of this contention, respondent cites the following
statements
of this Court concerning the Aquino Government which it is alleged
applies
to her administration:
The legitimacy of the Aquino government is not a justiciable
matter.
It belongs to the realm of politics where only the people of the
Philippines
are the judge. And the people have made the judgment; they have
accepted
the government of President Corazon C. Aquino which is in effective
control
of the entire country so that it is not merely a de facto
government
but is in fact and law a de jure government. Moreover,
the
community of nations has recognized the legitimacy of the present
government.
All the eleven members of this Court, as reorganized, have sworn to
uphold
the fundamental law of the Republic under her government.
[2]
From
the natural law point of view, the right to revolution has been defined
as "an inherent right of a people to cast out their rulers, change
their
policy or effect radical reforms in their system of government or
institutions
by force or a general uprising when the legal and constitutional
methods
of making such change have proved inadequate or are so obstructed as to
be unavailable." It has been said that "the locus of positive
law-making
power lies with the people of the state" and from there is derived
"the right of the people to abolish, to reform and to alter any
existing
form of government without regard to the existing constitution."
[3]
But
the Aquino government was a revolutionary government which was
established
following the overthrow of the 1973
Constitution. The legitimacy of a revolutionary government cannot
be
the subject of judicial review. If a court decides the question
at
all, it must necessarily affirm the existence and authority of such
government
under which it is exercising judicial power.
[4]
As Melville Weston long ago put it, "the men who were judges under
the
old regime and the men who are called to be judges under the new have
each
to decide as individuals what they are to do; and it may be that they
choose
at grave peril with the factional outcome still uncertain."
[5]
This is what the Court did in Javellana v. Executive Secretary
[6]
when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of
the new government. As the Court said in Occena vs. COMELEC
[7]
and Mitra vs. COMELEC,
[8]
"[P]etitioners have come to the wrong forum. We sit as a
Court
duty-bound to uphold and apply that Constitution.
It is much too late in the day to deny the force and applicability of
the
1973
Constitution."
In
contrast, these cases do not involve the legitimacy of a government.
They
only involve the legitimacy of the presidency of respondent Gloria
Macapagal-Arroyo,
and the claim of respondents in precisely that Macapagal-Arroyo's
ascension
to the presidency was in accordance with the Constitution.
[9]
Indeed,
if the government of respondent Gloria Macapagal-Arroyo is a
revolutionary
one, all talk about the fact that it was brought about by succession
due
to resignation or permanent disability of petitioner Joseph Ejercito
Estrada
is useless. All that respondents have to show is that in the
contest
for power Macapagal-Arroyo's government is the successful one and is
now
accepted by the people and recognized by the community of nations.
But
that is not the case here. There was no revolution such as that
which
took place in February 1986. There was no overthrow of the
existing
legal order and its replacement by a new one, no nullification of the Constitution.
What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco. [10] In that case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session and, followed by six senators, walked out of the session hall. The remaining senators then declared the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting president. The question was whether respondent Cuenco had been validly elected acting president of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital. Although in the beginning, this Court refused to take cognizance of a petition for quo warranto brought to determine the rightful president of the Senate, among other things, in view of the political nature of the controversy, involving as it did an internal affair of a co-equal branch of the government, in the end this Court decided to intervene because of the national crisis which developed as a result of the unresolved question of presidency of the Senate. The situation justifying judicial intervention was described, thus: "We can take judicial notice that legislative work has been at a standstill; the normal and ordinary functioning of the Senate has been hampered by the non-attendance to sessions of about one-half of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere scraps of papers, notwithstanding the fact that the persons to be arrested are prominent persons with well-known addresses and residences and have been in daily contact with news reporters and photographers. Farce and mockery have been interspersed with actions and movements provoking conflicts which invite bloodshed.
"Indeed
there is no denying that the situation, as obtaining in the upper
chamber
of Congress, is highly explosive. It had echoed in the House of
Representatives.
It has already involved the President of the Philippines. The
situation
has created a veritable national crisis, and it is apparent that
solution
cannot be expected from any quarter other than this Supreme Court, upon
which the hopes of the people for an effective settlement are pinned."
[11]
In
voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his
Court has no other alternative but to meet the challenge of the
situation
which demands the utmost of judicial temper and judicial
statesmanship.
As herein before stated, the present crisis in the Senate is one that
imperatively
calls for the intervention of this Court."
[12]
Questions raised concerning respondent Gloria Macapagal-Arroyo's
presidency
similarly justify, in my view, judicial intervention in these cases.
Nor
our power to fashion appropriate remedies in these cases in doubt.
Respondents
contend that there is nothing else that can be done about the
assumption
into office of respondent Gloria Macapagal-Arroyo. What has been
done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.
Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the tube. Literally, it can be put back by opening the bottom of the tube - that is how toothpaste is put in tubes and manufactured in the first place. Metaphorically, the toothpaste can also be put back. In G.R. No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of law. In election cases, people accept the decisions of courts even if they be against the results as proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as far as the political question argument of respondents is anchored on the difficulty or impossibility of devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the Macapagal-Arroyo administration. This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the Presidency was in accordance with the Constitution. Art. VII, Section 8 provides in pertinent parts:
"In
case of death, permanent disability, removal from office, or
resignation
of the President, the Vice-President shall become the President to
serve
the unexpired term. In case of death, permanent disability,
removal
from office, or resignation of both the President and Vice-President,
the
President of the Senate or, in case of his Inability, the Speaker of
the
House of Representatives, shall then act as President until the
President
or Vice-President shall have been elected and qualified."
The
events that led to the departure of petitioner Joseph E. Estrada from
office
are well known and need not be recounted in great detail here.
They
began in October 2000 when allegations of wrongdoings involving
bribe-taking,
illegal gambling (jueteng), and other forms of corruption were
made
against petitioner before the Blue Ribbon Committee of the
Senate.
On November 13, 2000, petitioner was impeached by the House of
Representatives
and, on December 7, impeachment proceedings were begun in the Senate
during
which more serious allegations of graft and corruption against
petitioner
were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic
to petitioner, succeeded in suppressing damaging evidence against
petitioner.
As a result, the impeachment trial was thrown into an uproar as the
entire
prosecution panel walked out and Senate President Aquilino Pimentel
resigned
casting his vote against petitioner.
The
events, as seen through the eyes of foreign correspondents, are vividly
recounted in the following excerpts from the Far Eastern Economic
Review
and Time Magazine quoted in the Memorandum of petitioner in
G.R. Nos. 146710-15, thus:
11.
The decision immediately sent hundreds of Filipinos out into the
streets,
triggering rallies that swelled into a massive four-day
demonstration.
But while anger was apparent among the middle classes, Estrada, a
master
of the common touch, still retained largely passive support among the
poorest
Filipinos. Citing that mandate and exploiting the letter of the
Constitution,
which stipulates that a written resignation be presented, he refused to
step down even after all of the armed forces, the police and most of
his
cabinet withdrew their support for him. [Far Eastern Economic
Review, “More Power to The Powerful”, id, at p. 18].
12.
When and entire night passed without Estrada’s resignation, tens of
thousands
of frustrated protesters marched on Malacañang to demand that
the
president leave office. An air force fighter jet and four
military
helicopters buzzed the palace to remind the president that had lost the
reins of power. [Far Eastern Economic Review, supra, ibid].
13.
While the television cameras were focused on the rallies – and the
commentators
became lost in reveries about People Power revisited –
behind-the-scenes
negotiations had been going on non-stop between military factions loyal
to Estrada and those who advocated a quick coup to depose the
President.
Chief of Staff Reyes and Defense Secretary Mercado had made their
fateful
call to Estrada after luncheon attended by all the top
commanders.
The officers agreed that renouncing Estrada was the best course, in
part
because some commanders were urging more drastic resolution. If
the
military did not come to a consensus, there loomed the possibility of
factional
fighting or, worse, civil war. [Time, “People Power Redux”,
id at p. 18]
14.
It finally took a controversial Supreme Court declaration that the
presidency
was effectively vacant to persuade Estrada to pack up and move out to
his
family home in Manila – still refusing to sign a letter of resignation
and insisting that he was the legal president [Far Eastern Economic
Review,
“More Power to the Powerful”, supra, ibid.].
Petitioner
then sent two letter, one to Senate President and the other to the
Speaker
of the House, indicating that he was unable to perform the duties of
his
Office.
[13]
To
recall these events is to note the moral framework in which
petitioner’s
fall from power took place. Petitioner’s counsel claimed
petitioner
was forced out of Malacañang Palace, seat of the Presidency,
because
petitioner was “threatened with mayhem."
[14]
What, the President of the Philippines, who under the Constitution is
the
commander-in-chief of all the armed forces, threatened with
mayhem?
This can only happen because he had lost his moral authority as the
elected
President.
Indeed,
the people power movement did not just happen at the call of some
ambitious
politicians, military men, businessmen and/or prelates. It came
about
because the people, rightly or wrongly, believed the allegations of
graft
and corruption made by Luis “Chavit” Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their
testimonies
during the impeachment trial were all televised and heard by millions
of
people throughout the length and breadth of this
archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as
most
of his cabinet members resigned, members of the Armed Forces of the
Philippines
and the Philippine National Police withdrew their support of the
President,
while civil society announced its loss of trust and confidence in
him.
Public office is a public trust. Petitioner lost the public’s
trust
and as a consequence remained President only in name. Having lost
the command of the armed forces and the national police, he found
himself
vulnerable to threats of mayhem.
This
is the confession of one who is beaten. After all, the permanent
disability referred to in the Constitution
can be physical, mental, or moral, rendering the President unable to
exercise
the powers and functions of his office. As his close adviser wrote in
his
diary of the final hours of petitioner’s presidency:
The
President says: “Pagod na pagod na ako. Ayoko na-masyado
nang masakit. Pagod na ako sa red tape, bureaucracy, intriga.
(I am very tired. I don’t want any more of this-it’s too
painful.
I’m tired of the red tape, the bureaucracy, the intrigue.)
[14]
Angara
himself shared this view of petitioner’s inability. He wrote in
his
diary:
“Let
us be realistic,” I counter. “The President does not have the
capability
to organize a counter-attack. He does not have the AFP or the
Philippine
National Police on his side. He is not only in a corner – he is
also
down.”
[15]
This
is the clearest proof that petitioner was totally and permanently
disabled
at least as of 11 P.M. of Friday, January 19, 2001. Hence the
negotiations
for the transfer of power to the respondent Vice-President Gloria
Macapagal-Arroyo.
It belies petitioner’s claim that he was not permanently disabled but
only
temporarily unable to discharge the powers and duties of his office and
therefore can only be temporarily replaced by respondent Gloria
Macapagal-Arroyo
under Art. VII, Section 1 of the Constitution
says that “sovereignty resides in the people and all government
authority
emanates from them,” it also says that “the Philippines is a
democratic
and republican state.” This means that ours is a representative
democracy
– as distinguished from a direct democracy – in which the sovereign
will
of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or
plebiscite.
Any exercise of the powers of sovereignty in any way is
unconstitutional.
Indeed,
the right to revolt cannot be recognized as a constitutional
principle.
A constitution to provide for the right of the people to revolt will
carry
with it the seeds of its own destruction. Rather, the right to
revolt
is affirmed as a natural right. Even then, it must be exercised
only
for weighty and serious reasons. As the Declaration of
Independence
of July 4, 1776 of the American Congress states:
We
hold these Truths to be self-evident, that all Men are created equal,
that
they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty, and the Pursuit of Happiness-That to
secure
these Rights, Governments are instituted among Men, deriving their just
Powers from the Consent of the Governed, that whenever any Form of
Government
becomes destructive of these Ends, it is the Right of the People to
alter
or to abolish it, and to institute new Government, laying its
Foundation
on such Principles, and organizing its Powers in such Form, as to them
shall seem most likely to effect their Safety and Happiness.
Prudence,
indeed, will dictate that Governments long established should not be
changed
for light and transient Causes; and accordingly all Experience hath
shewn,
that Mankind are more disposed to suffer, while Evils are sufferable,
than
to right themselves by abolishing the Forms to which they are
accustomed.
But when a long Train of Abuses and Usurpations, pursuing invariably
the
same Object, evinces a Design to reduce them under absolute Despotism,
it is their Right, it is their Duty, to throw off such Government, and
to provided new Guards for their future Security.
[16]
Here,
as I have already indicated, what took place at EDSA from January 16 to
20, 2001 was not a revolution but the peaceful expression of popular
will.
The operative fact which enabled Vice-President Gloria Macapagal-Arroyo
to assume the presidency was the fact that there was a crisis, nay a
vacuum,
in the executive leadership which made the government rife for seizure
by lawless elements. The presidency was up for grabs, and it was
imperative that the rule of succession in the Constitution
be enforced.
But
who is to declare the President’s permanent disability, petitioner
asks?
The answer was given by petitioner himself when he said that he was
already
tired and wanted no more of popular demonstrations and rallies against
him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo’s
advisers for a transition of powers from him to her; when petitioner’s
own Executive Secretary declared that petitioner was not only in a
corner
but was down.
Nor
is it correct for petitioners to say that the present situation is
similar
to our situation during the period (from 1941 to 1943) of our
occupation
by the Japanese, when we had two presidents, namely, Manuel L. Quezon
and
Jose P. Laurel. This is turning somersault with history.
The
Philippines had two presidents at that time for the simple reasons that
there were then two government – the de facto government
established
by Japan as belligerent occupant, of which Laurel was president, and
the
de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a
government
in enemy territory is a recognized principle of international law.
[17]
But today we have only one government, and it is the one set up in the
1987
Constitution.
Hence, there can only be one President.
Having
reached the conclusion that petitioner Joseph E. Estrada is no longer
President
of the Philippines, I find no need to discuss his claim of immunity
from
suit. I believe in the canon of adjudication that the Court
should
not formulate a rule of constitutional law broader than is required by
the precise facts to which it is applied.
The
only question left for resolution is whether there was massive
prejudicial
publicity attending the investigation by the Ombudsman of the criminal
charges against petitioner. The test in this jurisdiction is
whether
there has been “actual, not merely possible, prejudice”
[18]
caused to petitioner as a result of publicity. There has been no proof
of this, and so I think this claim should simply be dismissed.
For
the foregoing reasons, I vote to dismiss the petitions in these cases.
[2]
PDI, October 6, 2000, pp. A1 and A18.
[3]
Ibid., October 12, 2000, pp. A1 and
A17.
[4]
Ibid., October 14, 2000, p. A1.
[5]
Ibid., October 18, 2000, p. A1.
[6]
Ibid., October 13, 2000, pp. A1
and
A21.
[7]
Ibid., October 26, 2000, p. A1
[8]
Ibid., November 2, 2000, p. A1.
[9]
Ibid.,
November
3, 2000, p. A1.
[10]
Ibid.,
November
4, 2000, p. A1.
[11]
The complaint for impeachement was
based
on the following grounds: bribery, graft and corruption, betrayal
of public trust, and culpable violation of the Constitution.
[12]
Ibid.,
November 14, 2000, p. A1.
[13]
Ibid.,
November
21, 2000, p. A1.
[14]
Ibid.,
December 8, 2000, p. A1.
[15]
Ibid.,
December 23, 2000, pp. A1 and A19.
[16]
Ibid.,
January 12, 2001. P. A1.
[17]
Those who voted “yes” to open the
envelop
were” Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda,
Magsaysay,
Flavier, Biazon, Osmeña III. Those who voted “no” were Senators
Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng,
Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.
[18]
Philippine Star, January 17, 2001, p.
1.
[19]
Ibid.,
January 18, 2001, p. 4.
[20]
Ibid.,
p. 1.
[21]
Ibid.,
January 19, 2001, pp. 1 and 8.
[22]
“Erap’s Final Hours Told” by Edgardo
Angara,
(hereinafter referred to as “Angara’s Diary”) PDI, February 4, 2001, p.
A16.
[23]
Philippine Star, January 20, 2001, p.
4.
[24]
PDI, February 4, 2001, p. A16.
[25]
Philippine Star, January 20, 2001, pp.
1 and 11.
[26]
Ibid.,
January 20, 2001, p. 3.
[27]
PDI, February 5, 2001, pp. A1 and A6.
[28]
Philippine Star, January 21, 2001, p.
1.
[29]
PDI, February 6, 2001, p. A12.
[30]
Annex A, DOJ-OSG, Joint Comment; Rollo,
G.R. Nos. 146710-15, p. 288.
[31]
Annex A-1, Petition, G.R. Nos.
146710-15;
Rollo, p. 34.
[32]
Ibid.
[33]
Annex A, Petition, G.R. Nos. 146710-15
Rollo,
p. 33.
[34]
Philippine Star, January 21, 2001, p.
1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January
25, 2001, pp. A1 and A15.
[35]
Philippine Star, January 24, 2001, p.
1.
[36]
PDI, January 25, 2001, p. 1.
[37]
Ibid.,
p. 2.
[38]
Annex C, DOJ-OSG Joint Comment; Rollo,
GR Nos. 146710-15 p. 290.
[39]
Annex D, id; ibid., p. 292.
[40]
PDI, January 27, 2001, p. 1.
[41]
PDI, February 13, 2001, p. A
[42]
Philippine Star, February 13, 2001, p.
A2.
[43]
Annex E, id.: ibid., p. 295.
[44]
PDI, February 8, 2001, pp. A1 &
A19.
[45]
Annex F, id.; ibid., p. 297.
[46]
PDI, February 10, 2001, p. A2.
[47]
Annex G., id.; ibid., p. 299.
[48]
PDI, February 8, 2001, p. A19.
[49]
Philippine Star, February 3, 2001, p.
4.
[50]
“Acceptance of Gloria is Nationwide,”
Mahar Mangahas, Manila Standard, February 16, 2001, p. 14.
[51]
See: The Chief Justice’s Extended
Explanation
for His Voluntary Inhibition; Rollo, G.R. Nos. 146710-15, pp.
525-527.
[52]
See Letter of Inhibition of Associate
Justice Panganiban; Rollo, G.R. No. 146738, pp. 120-125.
[53]
Rollo
,
G.R. No. 146738, p. 134.
[54]
Leonard de Vera and Dennis Funa; see
their
Memorandum, pp. 16-27; Rollo, G.R. Nos. 146710-15, Vol. III,
pp.
809-820.
[55]
Gunther and Sullivan, Constitutional
Law,
13th ed., pp. 45-46.
[56]
369 US 186,82 S. Ct. 691, 7 L ed 2d
663,
686 (1962).
[57]
See e.g., Integrated Bar of the Philippines v. Hon.
Zamora,
et al., G.R. No. 141284, 15 August 2000; Miranda v. Aguirre,
314
SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998);
Tatad
v. Secretary of the Department of Energy, 281 SCRA 330 (1997);
Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC,
129
Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino
v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192
(1946); Alejandrino v. Quezon, 46 Phil 83 (1942
[58]
103 Phil 1051, 1068 (1957).
[59]
Section 1, Article VIII, 1987
Constitution.
[60]
Note that the early treatises on
Constitutional
Law are discourses on limitations of power typical of which is.
Cooley’s
Constitutional Limitations.
[61]
Joint Resolution, Lawyers League for a
Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C.
Aquino,
et al., GR No. 73748; People’s Crusade for Supremacy of the
Constitution,
etc. v. Mrs. Cory Aquino, et al., GR o. 73972; and Councilor
Clifton
U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22,
1986.
[62]
Letter of Associate Justice Reynato S.
Puno, 210 SCRA 597 [1992].
[63]
Proclamation No. 3.
[64]
It states:
I,
Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly
swear that I will faithfully and conscientiously fulfill my duties as
President
of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the
service of the nation.
So
help me God.
(Annex
I, Comment of the Ombudsman; Rollo, G.R. Nos. 146710-15 Vol.
II,
p. 332).
[65]
See “Filipinas Despues de Cien
Años”
(The Philippines a Century Hence), p. 62.
[66]
The guaranty was taken from Amendment
I of the US
Constitution which provides: “Congress shall make no law respecting
an establishment of religion or prohibiting the free exercise thereof
of
abridging the freedom of speech, or of the press; or the right of the
people
peaceably to assemble, and to petition the Government for a redress of
grievance.”
[67]
See Section 8, Article IV.
[68]
See Section 9, Article IV.
[69]
Emerson, The System of Freedom of
Expression,
1970 ed., p. 6, et al seq.
[70]
Ibid.,
See also concurring opinion of Justice Branders in Whitney v.
California
(74 US 357, 375-76) where he said”the greatest menace to freedom
is
an inert people.”
[71]
307 U.S. 496 (1939).71
[72]
Chafee, Jr., Free Speech in the United
States, 1946 ed., pp. 413-415, 421.72
[73]
260 SCRA 798 (1996).73
[74]
Section 1, Article II of the 1987
Constitution reads: “The Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority
emanates
from them.”
[75]
supra at 26.
[76]
supra at 41.
[77]
1 Cranch (5 US) 137, 2 L ed 60
(1803)
[78]
Gonzales
v.
Hernandez,
2 SCRA 228 (1961).
[79]
See
its February 4, 5, and 6 2001 issues
[80]
PDI,
February 4, 2001, p. A1
[81]
Ibid.
[82]
Ibid.
[83]
Ibid
[84]
Ibid
[85]
Ibid
[86]
PDI,
February 5, 2001, p. A1.
[87]
Ibid., p. A-1.
[88]
Ibid
[89]
PDI, February 5, 2001, p. A6.
[90]
PDI,
February 6, 2001, p. A1.
[91]
In
the Angara Diary which appeared in the PDI issue of February 5, 2001,
Secretary
Angara stated that the letter came from Asst. Secretary Boying Remulla;
that he and Political Adviser Banayo opposed it; and that PMS head
Macel
Fernandez believed that the petitioner would not sign the letter.
[92]
Congressional
Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.
[93]
Id., May 9, 1959, p. 1988.
[94]
Section
18 (2), Article III of the 1987
Constitution provides: “No involuntary servitude in any form shall
exist except as a punishment for a crime whereof the party shall have
been
duly convicted.”
[95]
Reply
Memorandum, p. 3;
Rollo, G.R. Nos. 146710-15, Vol. IV.
[96]
House
Resolution No. 175, 11th Congress, 3rd
Session
(2001), reads:
“RESOLUTION
EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ADMINISTRATION
OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES
WHEREAS,
on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn
in
as the 14th President of the Philippines;
WHEREAS,
her ascension to tine highest office of tine land under the dictum,
“the
voice of the people is the voice of God” establishes the basis of her
mandate
on integrity and morality in government;
WHEREAS,
the House of Representatives joins the church, youth, labor and
business
sectors in fully supporting the President’s strong determination to
succeed;
WHEREAS,
the House of representative is likewise one with the people in
supporting
President Gloria Macapagal-Arroyo’s call to start the healing and
cleansing
process for a divided nation in order to ‘build an edifice of peace,
progress
and economic stability’ for the country: Now, therefore, be it Resolved
by the House of Representatives, To express its full support to
the
administration of Her Excellency, Gloria Macapagal-Arroyo, 14th
President of the Philippines.
Adopted,
(Sgd.)
FELICIANO BELMONTE JR.
Speaker
This
Resolution was adopted by House of Representatives on January 24, 2001.
(Sgd.)
Roberto P. Nazareno
Secretary
General”
[97]
11th Congress, 3rd Session
(2001)
[98]
11th Congress, 3rdSession (2001).
[99]
Annex 2, Comment of Private
Respondents
De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231.
[100]
11th Congress, 3rd Session (2001).
[101]
11th Congress, 3rd Session (2001).
[102]
103 Phil 1051, 1067 (1957).
[103]
Baker vs. Carr, supra at 686
headnote
29.
[104]
16 Phil 534 (1910).
[105]
The logical basis for executive
immunity
from suit was originally founded upon the idea that the “
King can
do no wrong.” [R.J. Gray, Private Wrongs of Public Servants,
47 CAL. L. REV303 (1959)]. The concept thrived at the time of
absolute monarchies in medieval England when it was generally accepted
that the seat of sovereignty and governmental power resides in the
throne.
During that historical juncture, it was believed that allowing the King
to be sued in his court was a contradiction to the sovereignty of the
King.
With
the development of democratic thoughts and institutions, this kind of
rationalization
eventually lost its moral force. In the United States, for example, the
common law maxim regarding the King’s infallibility had limited
reception
among the framers of the Constitution. [J. Long, How to Sue the
President:
A Proposal for Legislation Establishing the Extent of Presidential
Immunity,
30 VAL. U.L. REV. 283 (1995)]. Still, the doctrine of presidential
immunity
found its way of surviving in modern political times, retaining both
its
relevance and vitality. The privilege, however, is now justified
for different reasons. First, the doctrine is rooted in the
constitutional
tradition of separation of powers and supported by history.
[Nixon
v. Fitzgerald, 451 U.S. 731 (1982)]. The separation of powers
principle
is viewed as demanding the executive’s independence from the judiciary,
so that the President should no be subject to the judiciary’s
whim.
Second, by reason of public convenience, the grant is to assure the
exercise
of presidential duties and functions free from any hindrance or
distraction,
considering that the Chief Executive is a job that, aside from
requiring
all of the office-holder’s time, also demands undivided
attention.
[Soliven v. Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time
and
substance of the chief executive will be spent on wrangling litigation,
disrespect upon his person will be generated, and distrust in the
government
will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)].
Third, on grounds of public policy, it was recognized that thegains
from
discouraging official excesses might be more than offset by the losses
from diminished zeal [Agabin, op. Cit., at 121.].
Without
immunity, the president would de disinclined to exercise
decision-making
functions in a manner that might detrimentally affect an individual or
group of individuals. [See H. Schnechter, Immunity of
Presidential
Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].
[106]
62 Phil. L.J. 113 (1987).
[107]
See
Bulletin Today, august 16, 1984, p. 1; December 18, 1984, p. 7.
[108]
Records of the Constitutional
Commission
of 1986, Vol. II, Records, p. 423, July 29, 1986.
[109]
Supra
at 47.
[110]
Records of Constitutional Commission,
Vol. II, July 28, 1986, p. 355.
[111]
145 SCRA 160 (1986).
[112]
128 SCRA 324 (1984).
[113]
In Re:
Raul
Gonzales, 160 SCRA 771 (1988); Cuneco v. Fernan, 158 29 (1988);
and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).
[114]
Wallace v. Board of Education,
280 Ala. 635, 197 So 2d 428 (1967).
[115]
418 US 683, 94 S. Ct. 3090, 41 L ed
1039
(1974).
[116]
457 US 731, 73 L ed. 349, 102 S Ct.
2690
(1982).
[117]
520 U.S. 681 (1997).
[118]
See
section 1, Art. XI of the 1987
Constitution.
[119]
See
section 27, Art. II of the 1987
Constitution.
[120]
See
section 1, Art. XI of the 1987
Constitution.
[121]
See
section 15, Art. XI of the 1987
Constitution.
[122]
See
section
4, Art. XI of the 1987
Constitution.
[123]
See
section
13 (1), Art. XI of the 1987
Constitution.
[124]
See
section 14, Art. XI of the 1987
Constitution.
[125]
See
Brandwood,
Notes: “You Say ‘Fair Trial’ and I say ‘Free Press:’ British and
American
Approaches to Protecting Defendant’s Rights in High Profile Trials,” NYU
Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000).
[126]
Id
,
p. 1417.
[127]
See
e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106
(1970);
People v. Teehankee, 249 SCRA 54 (1995).
[128]
249 SCRA 54 (1995).
[129]
287 SCRA 581 at pp. 596-597 (1988).
[130]
247 SCRA 652 (1995).
[131]
Extensive publicity did not result in
the conviction of well known personalities. E.g., OJ simpson,
John
Mitchell, William Kennedy Smith and Imelda Marcos.
[132]
Memorandum, p. 25; Rollo, G.R.
Nos. 146710-15, Vol. III, p. 647.
[133]
Memorandum, pp. 29-30; Rollo,
G.R.
Nos. 146710-15, Vol. III, pp. 572-573.
[134]
See
section
4, Rule 112.
[135]
Estes v. Texas, 381 U.S. 532,
540
(1965).
[1]
Section 8, Article VII, 1987
Constitution.
[2]
Section 11, 1st paragraph, Article VII, 1987
Constitution.
[3]
Ibid., 2nd paragraph
[4]
Ortiz vs. Comelec, 162 SCRA 812
[5]
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No.
11883,
16 January 1998
[6]
Cruz, Carlos L., The Law of Public Officers, p. 174, 1997
Edition
[7]
"Mr. SUAREZ. X X X
"May
we now go to Section 11, page 5. This refers to the President's written
declaration of inability to discharge the powers and duties for the
Office
of the President. Can this written declaration to be done for and in
behalf
of the President if, for example, the President is in no position to
sign
his name, like he suffers an accident and both his arms get to be
amputated?
"Mr.
REGALADO. We have not had a situation like that even in the
jurisdiction
from which we borrowed this provision, but we feel that in the remote
situation
that the Commissioner has cited in that the President cannot make a
written
declaration, I suppose an alternative would be considered wherein he
can
so expressly manifest in an authentic manner what should be contained
in
a written declaration. x x x
"Mr.
SUAREZ. x x x I am thinking in terms of what happened to
President
Wilson. Really, the physical disability of the gentleman was never made
clear to the historians. But suppose a situation will happen in our
country
where the President may suffer coma and gets to be unconscious, which
is
practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform
the duties and functions of his office?
"x
x x
"FR.
BERNAS. Precisely. The second paragraph is to take care of the Wilson
situation.
"Mr.
SUAREZ. I see.
"Mr.
REGALADO. The Wilson situation was in 1917. Precisely, this
twenty-fifth
Amendment to the American Constitution as adopted on February 10, 1967
prevent a recurrence of such situation. Besides, it was not only the
Wilson
matter. As I have already mentioned here, they have had situations in
the
United Stated, including those of President Garfield, President Wilson,
President Roosevelt and President Eisenhower." (11 Records, pp. 421-423)
[8]
Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086
[9]
Ibid.
[10]
Ibid.
[11]
[i] Zacorin, Theories of
Revolution
in Contemporary Historiography, 88 Political Science Quarterly.
[1]2
Milne, Philosophy and Political Action, The Case of Civil Rights, 21
Political
Studies, 453, 463 (1973)
[13]
Fernandez, Law and Polity: Towards a Systems Concept of Legal validity,
46 Philippine Law Journal, 390-391 (1971)
[14]
16 American Jurisprudence 2d.
[15]
State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252
[16]
John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich
209,
39 NW 2d 763.
[17]
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104
[18]
Lawyers' League for a Better Philippines vs. President Corazon
C.
Aquino, et al., G.R. No. 73748, May 22, 1986.
_____________________________ Endnotes - MENDOZA
[1]
Joint Memorandum of the Secretary of
Justice
and Solicitor General, p.15.
[2]
Lawyers' League for a Better
Philippines
v. President Corazon C. Aquino, G.R. No. 73746, May 22, 1986.
[3]
Letter of Associate Justice Reynato S.
Puno, 210 SCRA 589, 597 (1992).
[4]
Luther v. Borden, 7 How. 1 (1848).
[5]
Political Questions
,
38 Harvard Law Review, 296, 305 (1925).
[6]
50 SCRA 30 (1973).
[7]
104 SCRA 1 (1981).
[8]
104 SCRA 59 (1981).
[9]
Joint Memorandum of the Secretary of
Justice
and Solicitor General, p.2.
[10]
83 Phil. 17 (1949).
[11]
83 Phil. At 76 (Perfecto, J.,
concurring).
[12]
Id
At 25-26 (concurring and dissenting)
[13]
Memorandum for Petitioner, G.R. Nos.,
146710-15, pp. 5-6.
[14]
Petition, G.R. No. 146738, p. 13.
[15]
Edgardo Angara, Erap’s Final Hours
Told,
Philippine Daily Inquirier, p. A6, February 6, 2001.
[16]
Id
(emphasis added).
[17]
Emphasis added.
[18]
Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v.
Director
of Prisons, 75 Phil. 285 (1945); Laurel v. Misa, 77 Phil. 856
(1947).
[19]
See Martelino v. Alejandro, 32
SCRA 106 (1970).
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