WBench1

MENDOZA, J., Concurring:

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, in 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 the 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:

. . . [T]he 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 qua court, 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 respondent 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. Confessor) 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 coequal 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 paper, 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 is 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 manufacture 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, §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 after 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 an 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 letters, one to the 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.)[15]

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.”[16]

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, §11.

From this judgment that petitioner became permanently disabled becuase he had lost the public's trust, I except extravagant claims of the right of the people to change their government. While Art. II, §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 other 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.[17]

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.[18] 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”[19] 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.