SEPARATE OPINION

KAPUNAN, J.:

The core issue presented to the Court is whether respondent Gloria Macapagal-Arroyo assumed the Presidency within the parameters of the Constitution.

The modes by which the Vice President succeeds the President are set forth in Article VII, Section 8 of the Constitution: (1) death, (2) permanent disability, (3) removal from office, and (4) resignation of the president.[1]

Petitioner did not die.  He did not suffer from permanent disability.  He was not removed from office because the impeachment proceedings against him were aborted through no fault of his.

Did petitioner resign as President?  The ponencia conceded that petitioner did not write any formal letter of resignation before he left Malacañan Palace in the afternoon of January 20, 2001, after the oath-taking of respondent Arroyo.  However, the ponencia held that petitioner resigned from the Presidency as “determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior contemporary and posterior facts and circumstances bearing a material relevance on the issue.”[2] Among the “facts and circumstances” pointed to were the so-called “people power” referring to the crowd that gathered at EDSA and Makati City, the withdrawal of support by the military and police forces from petitioner, the resignation of some officials of the government, the incidents revealed in the diary of Executive Secretary Edgardo Angara, serialized in the Philippine Daily Inquirer,[3] and the press statement issued by petitioner at 2:30 p.m. of January 20, 2001 before he and his family left Malacañan Palace.

None of the foregoing “facts and circusmtances” clearly and unmistakably indicate that petitioner resigned as President.

To constitute a complete operative resignation of a public official, there must be: (1) the intention to relinquish part of the term and (2) an act of relinquishment.[4] Intent connotes voluntariness and freedom of choice.  With the impassioned crowd marching towards Malacañan Palace and with the military and police no longer obeying petitioner, he was reduced to abject powerlessness.  In this sense, he was virtually forced out of the Presidency.  If intention to resign is a requirement sine qua non for a valid resignation, then forced resignation or involuntary resignation, or resignation under duress, is no resignation at all.

The use of “people power” and the withdrawal of military support mainly brought about petitioner’s ouster from power.  This completely negates any pretentions that he voluntarily stepped down from the presidency.  More importantly, people power is not one of the modes prescribed by the Constitution to create a vacancy in the office of the President.

The doctrine that sovereignty resides in the people is without doubt enshrined in our Constitution.  This does not mean, however, that all forms of direct action by the people in matters affecting government are sanctioned thereunder.  To begin with, the concept of “people power” is vague and ambiguous.  It is incapable of exact definition.  What number would suffice for a mass action by irate citizens to be considered as a valid exercise of “people power?” What factors should be considered to determine whether such mass action is representative of the sovereign will?  In what instances would “people power” be justified?  There are no judicial standards to address these questions.  To be sure, the people have the right to assemble and to petition the government for redress of their grievances.  But this right does not go to the extent of directly acting to remove the President from office by means outside the framework of the Constitution.

It must be underscored that the Constitution is “the written instrument agreed upon by the people . . . as the absolute rule of action and decision for all departments and officers of the government . . . and in opposition to which any act or rule of any department or officer of the government, or even of the people themselves, will be altogether void.”[5] In other words, the Constitution ensures the primacy of the Rule of Law in the governance of the affairs of the State.

The Constitution prescribes that the sovereign power of the people is to be expressed principally in the processes of election, referendum and plebiscite.[6] Thus specifically, the provisions in Article XVII of the Constitution on Amendments or Revisions have been described as the “constitution of sovereignty” because they define the constitutional meaning of “sovereignty of the people.”[7] As explained by Fr. Joaquin G. Bernas, a well-respected constitutionalist and member of the 1986 Constitutional Commission:

What is this “sovereign structure” on which the new would be built?  It is the amendatory and revision process originally sealed with the approval of the sovereign people.  The process prescribed in a constitution is called the “constitution of sovereignty,” distinguishing it from the “constitution of liberty” (the Bill of Rights).  The amendatory and revision provisions are called the “constitution of sovereignty” because it is through these provisions that the sovereign people have allowed the expression of their sovereign will through this constitution to be canalized.  And through this provision new changes are linked to the original expression of the will of the founders of the Constitution.

In other words, the amendatory provisions are called a “constitution of sovereignty” because they define the constitutional meaning of “sovereignty of the people.”  Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty.[8]

When the people overwhelmingly ratified the Constitution on February 2, 1987,[9] they committed themselves to abide by its provisions.  In effect, the Filipino people agreed to express their sovereignty within the parameters defined by the Constitution.  As an American professor on legal philosophy put it: “By ratifying the constitution that included an explicit amendment process, the sovereign people committed themselves to following the rule of law, even when they wished to make changes in the basic system of government.”[10] This is the essence of constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies, historically always turbulent, chaotic, and even despotic, might now become restrained, principled, thoughtful and just.  So we bound ourselves over to a law that we made and promised to keep.  And though a government of laws did not displace governance by men, it did mean that now men, democratic men, would try to live by their word.[11]

Adherence to the Constitution at all times is the cornerstone of a free and democratic society.  In Ex Parte Milligan,[12] it was succintly said:

The Constitution x x x is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.  No doctrine involving more  pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.[13]

Thus, when the people, acting in their sovereign capacity, desire to effect fundamental changes in government, such must be done through the legitimate modes which they previously agreed upon, meaning within the framework of the Constitution.  To sanction any deviation from the modes prescribed by the Constitution to remove the President from office, albeit seemingly the public clamor, is to court instability and anarchy.  In the words of Cooley:

x x x  Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty.  They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed or abolished by them.  But this control and direction must be exercised in the legitimate mode previously agreed upon.  The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution, or which, consistently with the Constitution, have been prescribed and pointed out for them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government.[14]

For the same reason, the withdrawal of support bythe military and police forces cannot legitimately set the stage for the removal of the head of state.  The fundamental law expressly mandates the supremacy of civilian authority over the military at all times,[15] and installs the President, the highest-ranking civilian government official, as commander-in-chief of the Armed Forces of the Philippines.[16] The designation by the Constitution of the armed forces as protector of the people and of the State requires it to staunchly uphold the rule of law.  Such role does not authorize the armed forces to determine, by itself, when it should cease to recognize the authority of the commander-in-chief simply because it believes that the latter no longer has the full support of the people.

Reliance on the Angara Diary to establish the “intent” or “state of mind” of petitioner is improper since the contents thereof have not been duly established as facts and are therefore hearsay.  In any case, the circumstances under which petitioner allegedly manifested his intention to resign were, at best, equivocal.

The “circumstances” mentioned in the diary refer to, among others, the incidents when petitioner allegedly expressed his worry about the swelling crowd at EDSA; when he proposed a snap election where he would not be a candidate; when he made no objection to the suggestion for a graceful and dignified exit, but would have a 5-day grace period to stay in the palace; when he entered into negotiations for a peaceful and orderly transfer of power and to guarantee the safety of petitioner and his family; and when he uttered the following: “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 want to clear my name, then I will go.”  The negotiations were, however, aborted, according to the Angara diary, by respondent Arroyo’s oath-taking.

The incidents described in the Angara diary tell a story of desperation, duress and helplessness surrounding petitioner, arguing eloquently against the idea of intent and voluntariness on his part to leave the Presidency.  In any event, since the conditions proposed for his resignation were not met, the act did not come to reality.

The hasty departure of petitioner from Malacañan Palace and the issuance of the subject press statement cannot likewise conclusively establish the “intent to relinquish” the Presidency.  Indeed, it can be argued just as persuasively that petitioner merely left the Palace to avert violence but that he did not intend to give up his office.  He said that he was leaving Malacañan, the seat of the presidency.  He did not say he was resigning.  Note that in his press statement, petitioner expressed “strong and serious doubts about the legality and constitutionality” of Ms. Arroyo’s  proclamation as President.  There are other factual considerations that negate petitioner’s “intent to relinquish” permanently, particularly, petitioner’s letters, both dated 20 January 2001, to the Senate President[17] and the Speaker of the House of Representatives[18] informing them that he was unable to exercise the powers and duties of his office and recognizing Ms. Arroyo as the Acting President.

There is no doubt that the crimes imputed to petitioner are egregiously wrongful.  But he was not afforded the opportunity to present his side either in the hearings before the Senate Blue Ribbon Committee or before the Impeachment Court.  What were extant were the massive and relentless mass actions protraying his “guilt,” whipping up passions into unimaginable frenzy.  The senators sitting as judges in the impeachment court were elected by the Filipino people because of the latter’s trust and confidence in them to discharge their constitutional duties.  They ought to have continued with the trial until its conclusion, in fidelity to the Constitutional processes, thus preserving the quietude, stability and order of society.

However, I share my colleagues’ opinion that respondent Arroyo is now the recognized legitimate President.  It is an irreversible fact.  She has taken her oath as President before the Chief Justice on 20 January 2001.  Since then Ms. Arroyo has continuously discharged the functions of the President.  Her assumption into power and subsequent exercise of the powers and performance of the duties attaching to the said position have been acquiesced in by the Legislative Branch of government.[19]

The Senate President and the Speaker of the House of Representatives executed a Joint Statement of Support and Recognition of respondent Arroyo as petitioner’s constitutional successor.[20] The Senate[21] and the House of Representatives[22] passed their respective Resolutions expressing support to the Arroyo administration.  Congress confirmed the nomination of Senator Teofisto Guingona, Jr. as the new Vice-President, thus acknowledging respondent Arroyo’s assumption to the presidency in a permanent capacity.[23] The Impeachment Court has resolved that its existence has ceased by becoming  functus officio in view of petitioner’s relinquishment of the presidency.[24]

As President, Ms. Arroyo has gained control over all the executive departments, bureaus and officers and is the acknowledged Commander-in-Chief of all the armed forces of the Philippines.[25] Her administration has, likewise, been recognized by numerous members of the international community of nations, including Japan, Australia, Canada, Spain, the united States, the ASEAN countries, as well as 90 major political parties in Europe, North America, Asia and Africa.[26] More importantly, a substantial number of Filipinos have already acquiesced in her leadership.[27] The Court can do no less.

I vote to DISMISS the petitions.


[1] Article VII, Section 8 of the Constitution states:

     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.

x x x

[2] Decision, p. 26.

[3] Erap’s Final Hours, Philippine Daily Inquirer, February 4-6, 2001.

[4] F. MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS, Sec. 411, pp. 262-263 (1890).

[5] T.M. COOLEY, III CONSTITUTIONAL LIMITATIONS (1868).  Also cited in BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:  A COMMENTARY (1996), pp. xxxiv-xxxv.

[6] II RECORD OF THE CONSTITUTIONAL COMMISSION 316.

FR. BERNAS.  While I agree with the lofty objectives of the amendment proposed, I am afraid that the effect of the proposed amendment is, in fact, to weaken the provisions on impeachment.  The amendment speaks of massive election frauds.  We have a very general principle in the Constitution which says that sovereignty resides in the people and all government authority emanates from them.  And the sovereignty of the people is principally expressed in the election process and in the referendum and plebiscite processes.  (Underscoring mine)

[7] See BERNAS, Note 5, at 1163.

[8] Id., at 1162-1163.

[9] De Leon vs. Esguerra, 153 SCRA 602 (1987).

[10] A. ALTMAN, ARGUING ABOUT LAW (2001), p. 94.

[11] Id. citing J. AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY (1984).

[12] 4 Wall. 2, 18 L.Ed. 281 [1866].

[13] Id., cited in the Dissenting opinion of Gutierrez, J. in Marcos vs. Manglapus, 177 SCRA 668, 702 (1989).

[14] T.M. COOLEY, II CONSTITUTIONAL LIMITATIONS, 8th ED. (1927), P. 1349.

[15] Article II. Section 3, CONSTITUTION.

[16] Article VII, Section 18, CONSTITUTION.

[17] Annex “A, Petition, G.R. Nos. 146710-15.

[18] Annex “A-1” to Petition, G.R. Nos. 146710-15.

[19] The Solicitor Gemneral and the Secretary of Justice point out that respondent Arroyo has signed the Solid Waste Management Bill into law and nominated then Senator Teofisto Guingona, Jr. as Vice-President, which nomination has been confirmed by both Houses of Congress.  The Legislature has likewise called on the COMELEC to call a special election simultaneously with the general elections in May to fill the vacancy left by Vice-President Guingona (Joint Comment of the Solicitor General and the Department of Justice, p. 22, Annexes “E” and “F”).

[20] Annex “1,” Memorandum of Respondents De Vera and Funa.

[21] Comment of Respondents De Vera and Funa, Annex “2.”

[22] House Resolution No. 176, 11th Congress, 3rd Session (2001).

[23] Senate Resolution No. 82, 11th Congress, 3rd Session (2001) and House Resolution No. 178, 11th Congress, 3rd Session (2001).

[24] Senate Resolution No. 83, 11th Congress, 3rd Session (2001).

[25] Memorandum of Respondent Ombudsman Aniano Desierto, pp. 12-13.

[26] Joint Comment of the Solicitor General and the Secretary of Justice, p. 7.

[27] The ABS-CBN/SWS Survey conducted from 2-7 February 2001 showed that 61% of Filipinos nationwide accepted the legitimacy of the Arroyo administration.