CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people.  The EDSA Revolution of 2001 could have been one innocuous phenomenon buried in the pages of our history but for its critical dimensions.  Now, EDSA 2 would be far from being just another event in our annals.  To this day, it is asked - is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph Ejercito Estrada.  Mr. Estrada, herein petitioner, was elected to office by not less than 10 million Filipinos in the elections of May 1998, served for well over two years until 20 January 2001.  Formally impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery, Betrayal of Public Trust and Culpable Violation of the Constitution, he was tried by the Senate.  The Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada - if convicted, he would be removed from office and face prosecution with the regular courts or, if acquitted, he would remain in office.  An evidence, however, presented by the prosecution tagged as the "second envelope" would have it differently.  The denial by the impeachment court of the pleas to have the dreaded envelope opened promptly put the trial into a halt.  Within hours after the controversial Senate decision, an angered people trooped once again to the site of the previous uprising in 1986 that toppled the 20- year rule of former President Ferdinand E. Marcos- EDSA.  Arriving in trickles, the motley gathering swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly poised to storm Malacaņang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for him to resign.  At this time, Estrada was a picture of a man, elected into the Presidency, but beleaguered by solitude-empty of the support by the military and the police, abandoned by most of his cabinet members, and with hardly any firm succor from constituents.  And despite the alleged popularity that brought him to power, mass sentiments now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief Justice to administer her oath-taking.  In a letter, sent through "fax" at about half past eleven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term.  Almost all of his cabinet members have resigned and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada.  Civil Society has likewise refused to recognize him as President.

"In view of this, I am assuming the position of the President of the Republic of the Philippines.  Accordingly, I would like to take my oath as President of the Republic before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 200, 12:00 noon at Edsa Shrine, Quezon City, Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible catastrophic proportions, agreed to honor the request.  Theretofore, the Court, cognizant that it had to keep its doors open, had to help assure that the judicial process was seen to be functioning.  As the hours passed, however, the extremely volatile situation was getting more precarious by the minute, and the combustible ingredients were all but ready to ignite.  The country was faced with a phenomenon ---- the phenomenon of a people, who, in the exercise of a sovereignty perhaps too limitless to be explicitly contained and constrained by the limited words and phrases of the Constitution, directly sought to remove their president from office.  On that morning of the 20th of January, the high tribunal was confronted with a dilemma ----- should it choose a literal and narrow view of the constitution, invoke the rule of strict law, and exercise its characteristic reticence?  Or was it propitious for it to itself take a hand?  The first was fraught with danger and evidently too risky to accept.  The second could very well help avert imminent bloodshed.  Given the realities, the Court was left hardly with choice.  Paradoxically, the first option would almost certainly imperil the Constitution, the second could save it.  The confirmatory resolution was issued following the en banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal Arroyo to take her Oath of Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 20001, which request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the authority given by the twelve (12) members of the Court then present to the Chief justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon on January 20, 2201.

"This resolution is without prejudice to the disposition of any justiciable case which may be filed by a proper party."

At high noon on the 20th of January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th President of the Republic of the Philippines.  EDSA, once again, had its momentous role in yet another "bloodless revolution." The Court could not have remained placid amidst the worsening situation at the time.  It could not in conscience allow the high-strung emotions and passions for EDSA to reach the gates of Malacaņang.  The military and police defections created stigma that could not be left unguarded by a vacuum in the Presidency.  The danger was simply overwhelming.  The extra-ordinariness of the reality called for an extra-ordinary solution.  The Court has chosen to prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded.  The promise of healing the battered nation engulfed the spirit but it was not to last.  Questions were raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office.  Mr. Estrada would insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the Vice-President may assume the Presidency only in its explicitly prescribed instances; to wit, firstly, in case of death, permanent disability, removal from office, or resignation of the President,[1] secondly, when the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office,[2] and thirdly, when majority of all members of the Cabinet transmit to the President and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office,[3] the latter two grounds being culled as the "disability clauses."

Mr. Estrada belies that he cannot be considered to have relinquished his office for none of the above situations have occurred.  The conditions for constitutional succession have not been met.  He states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes his letters to both Chambers of the Congress consistent with Section 11 of Article VII of the 1987 Constitution.  The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office.  By operation of law and the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable and the petitioner's real motive in filing the case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up of the act of an officer by which he renounces his office indefinitely.  In order to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender this position accompanied by an act of relinquishment.  Resignation implies an expression of an incumbent in some form, express or implied, of the intention to surrender, renounce, relinquish the office.[4]

Mr. Estrada imports that he did not resign from the Presidency because the word "resignation" has not once been embodied in his letters or said in his statements.  I am unable to oblige.  The contemporary acts of Estrada during those four critical days of January are evident of his intention to relinquish his office.  Scarcity of words may not easily cloak reality and hide true intentions.  Crippled to discharge his duties, the embattled President acceded to have negotiations conducted for a smooth transition of power.  The belated proposals of the President to have the Impeachment Court allow the opening of the controversial envelope and to postpone his resignation until 24 January 2001 were both rejected.  On the morning of 20 January 2001, the President sent to Congress the following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office.  By operation of law and the Constitution, the Vice-President shall be the acting President."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the morning but the Senate President was said to have received a copy only on the evening of that day.  Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and inutility in office - not so much by the confluence of events that forced him to step down from the seat of power in a poignant and teary farewell as the recognition of the will of the governed to whom he owed allegiance.  In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice-President Gloria Macapagal Arroyo took her oath as President of the Republic of the Philippines.  While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacaņang 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 our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation,[5] and it connotes the giving up of the office although not attended by the formalities normally observed in resignation.  Abandonment may be effected by a positive act or can be the result of an omission, whether deliberate or not.[6]

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.  This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions those that are personal, either by physical or mental in nature,[7] and innate to the individual.  If it were otherwise, when then would the disability last?  Would it be when the confluent causes which have brought about that disability are completely set in reverse?  Surely, the idea fails to register well to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government.  A revolutionary government is one which has taken seat of power by force or in defiance of the legal processes.  Within the political context, a revolution is a complete overthrow of the established government.[8] In its delimited concept, it is characterized often,[9] albeit not always,[10] by violence as a means and specificable range of goals as ends.  In contrast, EDSA 2 did not envision radical changes.  The government structure has remained intact.  Succession to the Presidency has been by the duly-elected Vice-President of the Republic.  The military and the police, down the line, have felt to be so acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change.  Huntington sees revolution as being "a rapid, fundamental and violent domestic change in the dominant values and myths of society in its political institution, social structure, leadership, government activity and policies.[11] " The distinguished A.J. Milne makes a differentiation between constitutional political action and revolutionary political action.  A constitutional political action, according to him, is a political action within a legal framework and rests upon a moral commitment to uphold the authority of law.  A revolutionary political action, on the other hand, acknowledges no such moral commitment.  The latter is directed towards overthrowing the existing legal order and replacing it with something else.[12] And what, one might ask, is the "legal order" referred to?  It is an authoritative code of a polity comprising enacted rules, along with those in the Constitution[13] and concerns itself with structures rather than personalities in the establishment.  Accordingly, structure would refer to the different branches of the government and personalities would be the power-holders.  If determination would be made whether a specific legal order is intact or not, what can be vital is not the change in the personalities but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the rupture nor in the abrogation of the legal order.  The constitutionally-established government structures, embracing various offices under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other entities, including the Armed Forces of the Philippines and the Philippine National Police and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore the basic tenet of constitutionalism and to fictionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates.  Certainly, this fundamental statement is not without meaning.  Nourished by time, it grows and copes with the changing millieu.  The framers of the Constitution could not have anticipated all conditions that might arise in the aftermath of events.  A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions.[14] Behind its conciseness is its inclusiveness and its aperture overridingly lie, not fragmented bur integrated and encompassing, its spirit and its intent.  The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is.  Designed to be an enduring instrument, its interpretation is not to be confined to the conditions and outlook which prevail at the time of its adoption;[15] instead, it must be given flexibility to bring it in accord with the vicissitudes of changing and advancing affairs of men.[16] Technicalities and play of words cannot frustrate the inevitable because there is an immense difference between legalism and justice.  If only to secure our democracy and to keep the social order - technicalities must give way.  It has been said that the real essence of justice does not emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the ultimate development of social edifice.[17] Anything else defeats the spirit and intent of the Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told, the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the revolutionary government that we know.  The new government, now undoubtedly in effective control of the entire country, domestically and internationally recognized to be legitimate, acknowledging a previous pronouncement of the court,[18] is a de jure government both in fact and in law.  The basic structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been saved and preserved.  Inevitably, Mme. Gloria Macapagal-Arroyo is the President, not merely an Acting President, of the Republic of the Philippines.

A reminder of an elder to the youth.  After two non-violent civilian uprising within just a short span of years between them, it might be said that popular mass action is fast becoming an institutionalized enterprise.  Should the streets now be the venue for the exercise of popular democracy?  Where does one draw the line between the rule of law and the rule of the mob, or between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.  Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection on our part.  In this kind of arena, let us be assured that we are not overcome by senseless adventurism and opportunism.  The country must not grow oblivious to the innate perils of people power for no bond can be stretched far too much to its breaking point.  To abuse is to destroy that which we may hold dear.


[1] Section 8, Article VII, 1987 Constitution

[2] Section 11, 1st paragraph, Article VII, 1987 Constitution

[3] Ibid., 2nd paragraph

[4] Ortiz vs. Comelec, 162 SCRA 812

[5] Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998

[6] Cruz, Carlos L., The Law of Public Officers, p. 174, 1997 Edition

[7] "Mr. SUAREZ.  X X X

  "May we now go to Section 11, page 5.  This refers to the President's written declaration of inability to discharge the powers and duties of the Office of the President.  Can this written declaration to be done for and in behalf of the President if, for example, the President is in no position to sign his name, like he suffers an accident and both his arms get to be amputated?

  "Mr. REGALADO.  We have not had a situation like that even in the jurisdiction from which we borrowed this provision, but we feel that in the remote situation that the Commissioner has cited in that the President cannot make a written declaration, I suppose an alternative would be considered wherein he can so expressly manifest in an authentic manner what should be contained in a written declaration. x x x

  "Mr. SUAREZ.  x x x  I am thinking in terms of what happened to President Wilson.  Really, the physical disability of the gentleman was never made clear to the historians.  But suppose a situation will happen in our country where the President may suffer coma and gets to be unconscious, which is practically a total inability to discharge the powers and duties of his office, how can he submit a written declaration of inability to perform the duties and functions of his office?

"x x x    x x x     x x x

  "FR. BERNAS.  Precisely.  The second paragraph is to take care of the Wilson situation.

  "Mr. SUAREZ.  I see.

  "Mr. REGALADO.  The Wilson situation was in 1917.  Precisely, this twenty-fifth Amendment to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such situation.  Besides, it was not only the Wilson matter.  As I have already mentioned here, they have had situations in the United States, including those of President Garfield, President Wilson, President Roosevelt and President Eisenhower." (11 RECORDS, pp. 421-423)

[8] Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

[9] Ibid.

[10] Ibid.

[11] Zacorin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE QUARTERLY

[12] Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453, 463 (1973)

[13] Fernandez, LAW and POLITY: Towards a Systems Concept of Legal validity, 46 Philippine Law Journal, 390-391 (1971)

[14] 16 American Jurisprudence 2d.

[15] State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

[16] John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763.

[17] Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

[18] Lawyer's League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No. 73748, May 22, 1986.