EN BANC

[G.R. Nos. 146710-15.  March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. 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., respondent.

[G.R. No. 146738.  March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.

D E C I S I O N

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 (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 Governos, 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 exposé 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 P220 million in jueteng money from Governor Singson from November 1998 to August 2000.  He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur.  The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.[2]

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 Philippines 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 counsel 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 P500 million investment agreement with their bank on February 4, 2000.[15]

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 P3.3 billion in a secret bank account under the name “Jose Velarde.” The public and private prosecutors walked out in protest of the ruling.  In disgust, Senator Pimentel resigned as Senate President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis.  By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators.

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 masters 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 p.m., 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 General 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 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 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 maybe 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 Election 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 therefore 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 the 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 social 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 RA 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 the 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 GR 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 Case 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 GR 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 GR 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 GR Nos. 146710-15 and GR 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 of 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:

I

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada.  In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

I

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 on 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:

“x x x Prominent on the surface on any case held to involve a political question is found 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, or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretions; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question.  Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question’s presence.  The doctrine of which we treat is one of ‘political questions’, not of ‘political cases’.”

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, 1966.[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 III 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 11[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 Marbury 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.

II

Whether or not the petitioner resigned as President

We now slide to the second issue.  None of the parties considered this 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 legal 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 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 omissions 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 the Blue Ribbon investigation spiked the hate against him.  The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed.  In express speed, it gained 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 swelling 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 his 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 for 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 nor 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 that petitioner would allowed to go abroad with enough funds to support him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion for a 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 the 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 the 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.)

I just want to clear my name, then I will go.”[88]

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 as 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 the form and tenor provided for 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 the 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 a firm 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.

Agreement

The agreement starts:  1.  The President shall resign today, 20 January 2001, which resignation shall be 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 as approved by the national military and police authority – Vice President.

4.  The AFP and the Philippine National Police (‘PNP’) shall function under the Vice President as 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 that 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 calls 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 not 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 Demaree Ravel 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 needs 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 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 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 that 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 shirk 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 final 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 RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

“Sec. 12.  No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery.”

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.  RA 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 the 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 RA 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 RA 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 can not 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.

III

Whether or not the  petitioner is only temporarily unable to act as President.

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 aforestat