SEPARATE OPINION
PARDO, J.:
I concur in the
result. In the above cases, the Court
decided to dismiss the petitions.
Consequently, the court effectively declared that on January 20, 2001,
petitioner had resigned the office of the president.[1] Thus, then Vice President Gloria
Macapagal-Arroyo succeeded to the presidency in a manner prescribed in the
Constitution.[2] She is a de jure president.[3] I only wish to add that petitioner was
“constrained to resign” the office. It
has been held that “resignation is defined as the act of giving up or the act
of an officer by which he declines his office and renounces the further right
to use it. To constitute a complete and
operative act of resignation, the officer or employee must show a clear
intention to relinquish or surrender his position accompanied by the act of
relinquishment.”[4] Petitioner’s act of “resignation”, however,
was done in light of the reality that he could no longer exercise the powers
and duties of the presidency[5] and left “the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our
nation.”[6]
Hence, the succession to
the presidency of then Vice President Gloria Macapagal-Arroyo on January 20,
2001, was in accordance with the Constitutional prescription.[7] She was the Vice-President of the
Philippines elected in the May 11, 1998 elections, proclaimed by Congress on
the basis of the certificates of canvass duly certified by the Board of
Canvassers of each province, city and district showing that she garnered 12,667,252
million votes.[8]
On another tack, I
reserved my vote on the question of petitioner’s claim of immunity from suit.
In G.R. Nos. 146710-15,
the petition was to enjoin respondent Ombudsman from conducting the preliminary
investigation of six (6) criminal complaints filed with his office against
petitioner. In fact, however, the cases
were still at preliminary investigation stage.
To be sure, the Court
likewise decided to dismiss the petition.
It is settled jurisprudence that prohibition or injunction, preliminary
or final, generally will not lie to restrain or enjoin a criminal prosecution,
with well-defined exceptions, such as a sham preliminary investigation hastily
conducted.[9] This Court consistently has refrained from
interfering with the exercise of the powers of the Ombudsman and respects the
independence inherent in the Ombudsman who, beholden to no one, acts as the
champion of the people and the preserver of the integrity of the public
service.[10]
The Court ruled that
“there is not enough evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof.”[11] Let me, however, emphasize the warning given
so beautifully written by the ponente in his epilogue, thus:
“A word of caution to the “hooting throng.” The cases against the petitioner will now
acquire a different dimension and then move to a new stage - - - the Office of
the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the
right of an accused to a fair investigation and trial which has been
categroized as the “most fundamental of all freedoms.” To be sure, the duty of a prosecutor is more
to do justice and less to prosecute.
His is the obligation to insure that the preliminary investigation of
the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls
“the impatient vehemence of the majority.”
Rights in a democracy are not decided by the mob whose judgment is
dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the
dogmatism of the majority is not and should never be the definition of the rule
of law. If democracy has proved to the
best form of government, it is because it has respected the right of the
minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may
be, is the key to man’s progress from the cave to civilization. Let us not throw away that key just to
pander to some people’s prejudice.”[12]
Finally, I must expressly
state that the Court’s ruling dismissing the petitions shall not be construed
as foreclosing the issue of immunity and other presidential prerogatives as may
be raised at the proper time, in a proper justiciable controversy. In short, petitioner still “has the remedy”
of assailing any adverse rulings of the Ombudsman “before the proper court”
with the facts and the evidence adduced before it.
I also join Justice
Vicente V. Mendoza in his separate concurring opinion.
[1] Ponencia,
pp. 29-32.
[2] Article
VII, Section 8, 1987 Constitution.
[3] 14th President of the Republic.
[4] Ortiz
v. Commission on Elections, 162 SCRA 812, 819 [1988].
[5] Statement
from President Joseph Ejercito Estrada, ponencia, p. 10.
[6] Ibid.
[7] Supra,
Note 2.
[8] Per
Resolution of both Houses No. 1, adopted on May 29, 1998.
[9] Brocka
v. Enrile, 192 SCRA 183, 188-190 [1990]; Paderanga v. Drilon, 196
SCRA 86, 90 [1991];
[10] Espinosa
v. Ombudsman, G.R. No. 135775, October 19, 2000.
[11] Ponencia,
pp. 63-64.
[12] Ponencia,
pp. 65-66.