G.R. Nos. 146710-15, March 2, 2001

JOSEPH E. ESTRADA, petitioner VS. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES et.al, respondents

G.R. No. 146738, March 2, 2001

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

FACTS:

The case basically revolves around the series of events that happened prior and subsequent to the event we know as EDSA II. During the 1998 elections, Joseph E. Estrada and Gloria Macapagal Arroyo were elected as president and vice-president respectively. The downfall of the Estrada administration began when For. Gov. Luis Chavit Singson went to the media and released his exposé that petitioner was part of the Jueteng scandal as having received large sums of money. After this expose, a lot of different groups and many personalities had asked for the resignation of the petitioner. Some of which are the Catholic Bishops Conference of the Philippines (CBCP), Sen. Nene Pimentel, Archbishop of Manila, Jaime Cardinal Sin, For. Pres. Fidel Ramos, and For. Pres. Corazon Aquino who asked petitioner to make the “supreme self-sacrifice”. Respondent also resigned as Secretary of the Department of Social Welfare and Services and also asked petitioner for his resignation. 4 senior economic advisers of the petitioner resigned and then Speaker Manny Villar, together with 47 representatives, defected from Lapian ng Masang Pilipino.

By November, an impeachment case was to be held as Speaker Manny Villar had transmitted the Articles of Impeachment to the senate. On November 20, the 21 senators took oath as judges to the impeachment trial with SC CJ Hilario Davide, Jr., presiding. The impeachment trial was one for the ages. It was a battle royal of well known lawyers. But then came the fateful day, when by the vote of 11-10, the judges came to a decision to not open the second envelop allegedly containing evidence showing that the petitioner had a secret bank account under the name “Jose Velarde” containing P3.3 billion. The not opening of the 2^nd envelop resulted to the people going to the streets and the public prosecutors withdrawing from the trial. On January 19, AFP Chief of Staff Angelo Reyes marched to EDSA shrine and declared “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.” PNP Chief, Director General Panfilo Lacson together with some Cabinet members made the same announcement.

June 20 was the day of surrender. At around 12:20 AM, negotiations started for the peaceful transition of power. But at around 12 noon, respondent took oath as the 14^th president of the Philippines. At 2:30 PM, petitioner and his family left Malacanang. He issued the following Press Statement:

“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:

“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”

On January 22, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC. The said resolution confirmed the authority given by the 12 SC justices to the CJ during the oath taking that happened on January 20. Soon, other countries accepted the respondent as the new president of the Philippines. 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.” 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.”

On February 6, respondent recommended Teofisto Guingona to be the vice president. On February 7, the Senate adopted Resolution 82 which confirmed the nomination of Senator Guingona. On the same day, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. Several cases were filed against the petitioner which are as follows: (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.”

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.”

ISSUES:

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.

DECISION:

I No. The case is legal not political.

II No. He is not a president on leave.

III No. The impeachment proceedings was already aborted. As a non-sitting president, he is not entitled to immunity from criminal prosecution

IV There is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.

RATIO/REASON:

1. I. Whether or not the case involves a political question

Respondents contend that the cases at bar pose a political question. Gloria Macapagal Arroyo became a President through the People power revolution. Her legitimacy as president was also accepted by other nations. Thus, they conclude that the following shall serve as political thicket which the Court cannot enter.

The Court rules otherwise. A political question has been defined by our Court as “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.”

Respondents allege that the legality of the Arroyo administration should be treated similarly with the Aquino administration. Respondents propose that the situation of the Arroyo and Aquino administrations are similar. However, the Court finds otherwise. The Court has made substantial distinctions which are the following:

It is a well settled rule 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. But this would not apply as the Court finds substantial difference between the 2 EDSA Revolutions. It would show that there are differences between the 2 governments set up by EDSA I and II. This was further explained by the Court by comparing the 2 EDSA Revolutions.

In this issue, the Court holds that the issue is legal and not political.

1. II. Whether or not petitioner resigned as President

Resignation 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. There is no required form of resignation. It can be expressed, implied, oral or written. It is true that respondent never wrote a letter of resignation before he left Malacanang on June 20, 2001. In this issue, the Court would use the totality test or the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this test, the Court rules that the petitioner had resigned. The Court knows the amount of stress that the petitioner had suffered. With just a blink of an eye, he lost the support of the legislative when then Manny Villar and other Representatives had defected. AFP Chief of Staff General Angelo Reyes had already gone to EDSA.  PNP Chief Director General Panfilo Lacson and other cabinet secretaries had withdrawn as well. By looking into the Angara diaries, it was pointed out that the petitioner had suggested a snap election at May on which he would not be a candidate. Proposing a snap election in which he is not a candidate means that he had intent to resign. When the proposal for a dignified exit or resignation was proposed, petitioner did not disagree but listened closely. 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 negotiations that had happened were about a peaceful transfer of power. It was already implied that petitioner would resign. The negotiations concentrated on the following: (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. Also taken from the Angara diaries, 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.” The quoted statement of the petitioner was a clear evidence that he has resigned.

The second round of negotiations were about the consolidating of the clauses which were proposed by both sides. 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.

When everything was already signed by the side of the petitioner and ready to be faxed by Angara, the negotiator for the respondent, Angelo Reyes, called to Angara saying that the SC would allow respondent to have her oath taking. Before petitioner left Malacanang, he made a last statement.

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!’”

By making such statement, petitioner impliedly affirms the following: (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.

Petitioner however argues that he only took a temporary leave of absence. This is evidenced by a letter which reads as follows:

“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”

The Court was surprised that the petitioner did not use this letter during the week long crisis. It would be very easy for him to say before he left Malacanang that he was temporarily unable to govern, thus, he is leaving Malacanang. 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 also argues that he could not resign. His legal basis is RA 3019 which states:

“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.”

During the amendments, another section was inserted which states that:

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.”

The original senate bill was rejected because of the 2^nd paragraph of section 15. Nonetheless, another similar bill was passed. Section 15 then became section 13. 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.  The Court holds otherwise. The impeachment proceeding may be arguable. However, even if the impeachment proceeding is administrative, it cannot be considered pending because the process had already broke down. There was also a withdrawal by the prosecutors to partake in the impeachment case. In fact, the proceeding was postponed indefinitely. In fact, there was no impeachment case pending when he resigned.

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

This issue arose from the January 20 letter which was addressed to then Speaker Fuentebella and then Senate President Pimentel. Petitioner’s contention is that he is a president on leave and that the respondent is an acting president. This contention is the centerpiece of petitioner’s stance that he is a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order.  It provides:

“SEC. 11.  Whenever the President transmit 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, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate 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, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office.  Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate 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, the Congress shall decide the issue.  For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office."

After studying in-depth the series of events that happened after petitioner left Malacanang, it is very clear that the inability of the petitioner as president is not temporary. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as President of the Philippines. The Court says that they cannot, for such is an example of a political question, in which the matter has solely been left to the legislative,

1. IV. Whether or not the petitioner enjoys immunity from suit. If yes, what is the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. The “immunity” the petitioner points to is the principle of non-liability.

The principle of non-liability simply states that a chief executive may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. He is liable when he acts in a case so plainly outside of his power and authority that he cannot be said to have exercise discretion in determining whether or not he had the right to act.  What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not.  In other words, he is entitled to protection in determining the question of his authority.  If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination.

The Court rejects the petitioner’s argument that before he could be prosecuted, he should be first convicted of impeachment proceedings. The impeachment proceeding was already aborted because of the walking out of the prosecutors. This was then formalized by a Senate resolution (Resolution #83) which declared the proceeding functus officio. According to the debates in the Constitutional Convention, when an impeachment proceeding have become moot due to the resignation of the President, proper civil and criminal cases may be filed against him.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.  The cases filed against petitioner Estrada are criminal in character.  They involve plunder, bribery and graft and corruption.  By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle of immunity of a non-sitting president.  Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability.   It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. As for civil immunity, it means immunity from civil damages only covers “official acts”.

1. V. Whether of not the prosecution of petitioner Estrada should be enjoined to prejudicial publicity

Petitioner contends that the respondent Ombudsman should be stopped from conducting an investigation of the cases filed against him for he has already developed a bias against the petitioner. He submits that it is a violation of due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice a jury.  Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. The American approach is different.  US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. During cases like such, the test of actual prejudice shall be applied. The test shows that there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. The Court rules 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.

According to the records, it was the petitioner who assailed the biasness of the Ombudsman. The petitioner alleges that there were news reports which said that the Ombudsman had already prejudged the cases against him. The Court rules that the evidence presented is insufficient. The Court also cannot adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. Investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court.