How to delay the plunder trial and incite chaos, Erap style

Consider the latest sequence of events in the off-and-on plunder trial against Erap Estrada and his co-defendants:

1. On April 9, 2003, the Prosecution finished the presentation of its evidence in the plunder case against former President Joseph Estrada – it rested its case. Under the law, the accused Estrada should now present his evidence on the merits to prove his alleged innocence. The Sandiganbayan (Anti-Graft Court), with the conformity of veteran defense counsel de officio, scheduled the presentation of Estrada’s evidence on June 2, 2003.

2. But two weeks before June 2, that is, on May 19, 2003, Atty. Alan Paguia, a law lecturer at Ateneo Law School, filed his Appearance with the Sandiganbayan as the newly-appointed counsel for the accused, with an Omnibus Motion asking the Court to dismiss the plunder case and two other related cases on the ground that the Sandiganbayan has no jurisdiction over the subject matter in the said cases and over Estrada’s "official personality". He also alleged that the Supreme Court itself has no jurisdiction, because of the "patent partiality" of the Justices who went to EDSA Shrine for the oath-taking of Gloria Macapagal-Arroyo as president of the Philippines – in violation of the Code of Judicial Conduct. This patent partiality "deprived Estrada of his constitutional rights even before he could file the Estrada v. Arroyo petition (GR 146738, Feb. 6, 2001) before the Supreme Court" and has the effect of the High Court "being ousted of its jurisdiction" over the cases. In his Today column (May 25, 2003), Father Joaquin G. Bernas, the dean of Ateneo Law School and an authority on the 1987 Constitution, concedes that Atty. Paguia is a lecturer in Ateneo Law School, but his strategy "is certainly bold. Few lawyers would dare ask the Sandiganbayan to reverse an en banc decision of the Supreme Court: the one that said Estrada is no longer president."

3. The Oral Argument on the Omnibus Motion was held on May 23, 2003. Paguia argued but was put through the wringer by the justices. On questioning by Justices Sandoval and de Castro, he could not explain how the case could be reopened in light of the fact that Estrada himself, through his own lawyers (Attys. Agabin and Saguisag) filed the twin cases of Estrada vs. Desierto and Estrada vs. Arroyo on February 5-6, 2001, invoking and thereby admitting the jurisdiction of the Supreme Court. After losing the cases on March 2, 2001, Estrada filed a Motion for Reconsideration raising the same questions now being raised again and again by Paguia; the Motion for Reconsideration was denied with finality in a comprehensive Resolution unanimously issued by the Supreme Court on April 3, 2001. Atty. Paguia was asked – how can you new rekindle these cases and how can the Sandiganbayan dare reverse the final decision of the Supreme Court? Despite Paguia’s mumbo jumbo (see TSN pp. 21-27, hearing of May 23, 2003), the Sandiganbayan gave both parties time to file their respective memoranda, the hearing on June 2 was cancelled and by agreement of the parties, the plunder case was scheduled for the presentation of the evidence of accused Estrada on June 16, 2003 which was later changed to June 30.

4. Instead of presenting Estrada’s evidence in the Sandiganbayan on June 2, 2003, ex-Sen. Rene A.V. Saguisag, Estrada’s former lawyer, filed an Impeachment Petition on June 2, 2003 with the House of Representatives against Chief Justice Davide, Justices Panganiban, Reynato Puno, Josue Bellosillo, Jose Vitug, L. Quisumbing, Antonio Carpio, and Renato Corona, repeating the same arguments he (Sen. Saguisag) and Dean Agabin had ventilated in the 2001 twin cases of Estrada v. Desierto and Estrada v. Arroyo, mentioned earlier. Three Opposition congressmen (Reps. Ronando Zamora, Estrada’s former Executive Secretary, Iloilo Rep. Rolex Suplico and Maguindanao Rep. Digaden Dilangalen indorsed Estrada’s Impeachment complaint.

5. On June 4, 2003, former President Estrada declared: "I do not expect to get justice from the Supreme Court or from any court in this country… When I was forcibly and illegally removed as your President, I was not the only victim. They also stole it from you, the Filipino people who put me in office in a clean election. It is now up to you, the Filipino people, to be the judge and give me justice. True justice is all in your hands because power resides in you."

6. In pulling the rug from under the feet of his new lawyer, Atty. Paguia, the latter’s Omnibus Motion in the Sandiganbayan was exposed by his own client (Estrada) as a sham and his intended appeal to the Supreme Court, in case of denial by the latter, a big bluff.

As may be expected, Atty. Paguia’s Omnibus Motion, the Impeachment case of Estrada, and the latter’s appeal to the people were given widespread publicity and importance by the reporters and commentators in the broadcast and print media.

7. A number of senators, led by Senate President Drilon, sensing the real motivation of the deposed president, said Estrada’s strategy was merely part of a destabilization plot. Senator Pimentel was quoted as saying it "sounded like a political gimmick if there is really a call for people power. An outbreak of people power would cause further unrest." Since it was clear Estrada was thinking of another EDSA upheaval, Senator John Osmeña, who had received a P1 million balato from the mah-jong playing president and – after the expose of Chavit Singson – returned it, bluntly told Estrada – "Stop it. There is no need to call for people power."

Because Philippine constitutional law is patterned after American constitutional law, which is considered unique by lawyers in Continental Europe due to the power of the US Supreme Court to declare statutes enacted by Congress and acts of the Executive unconstitutional, it might be good to consider the thinking and attitude of American jurists on similar controversies.

In 1913, the highly-respected Justice of the US Supreme Court Oliver Wendell Holmes, complained:

"I get letters, not unanimous, intimating that we are corrupt. Well, gentlemen, I admit that it makes my heart ache. It is very painful, when one spends all the energies of one’s soul in trying to do good work, with no thought by that of solving a problem… to know that many see sinister motives and would be glad of evidence that one was consciously bad."

How about the probability that the Supreme Court might have committed errors in the past? In 1953, Justice Robert Jackson, in the case of Brown v. Allen, wrote something that has been cited by generations of justices and jurists: "We are not final because we are infallible but we are infallible only because we are final."

II: This essays discusses the belated attempt to revive the question of President Gloria Macapagal-Arroyo’s succession to the presidency, its prospects from the legal viewpoint, and its political purpose or purposes in the run-up to the 2004 elections.

After writing a book titled "Estrada v. Arroyo: Rule of Law or Rule of Force", Atty. Alan F. Paguio, a lecturer at the Ateneo Law School, filed on May 19, 2003 his pleading in three criminal cases, all entitled People v. Joseph Ejercito Estrada (for Plunder, Perjury, and Illegal Use of Alias) which have been pending over a year in the Sandiganbayan. The pleading is about Atty. Paguio’s appearance as counsel de parte of the accused, with a three-page Omnibus Motion seeking the dismissal of the three cases against the former president on the ground that the Sandiganbayan and the Supreme Court have no jurisdiction over the subject matter of said cases and over his official personality. Atty. Paguia’s two-page Argument in support of his Omnibus Motion is actually a compressed version of his book, written in legalistic, apparently logical but generally understandable language.

There is no debate about his opening sentence, except the tense – Estrada was (is) the duly elected president under the 1987 Constitution. Neither is there any question that the acts he allegedly committed occurred during his incumbency. Nor is there any dispute that under the Constitution, there are only four (4) grounds for GMA to succeed to the Estrada presidency – that is, his death, permanent disability, removal and resignation. Estrada is indisputably alive. As for permanent disability, Atty. Paguio’s argument is that "there was never any proof of compliance with the constitutional requirements, that is, the written declaration of permanent disability by President Estrada himself or by the majority of the members of his Cabinet. Therefore, the proclamation was unconstitutional and therefore void from the beginning." (Be it noted that in this apparently logical but tunnel-vision approach of Atty. Paguia, what has been deliberately omitted is the undeniable fact that as of Jan. 19, 2001, one day before GMA’s oath-taking before the Chief Justice, majority of his Cabinet members, the AFP and its major services and the PNP, as shown at the EDSA Shrine on nationwide TV, had already withdrawn their support from Estrada and shifted their support to GMA. For practical purposes, he could no longer function, his order/s as president could not be enforced. Estrada, the leader, was kaput). As for removal by impeachment, there is no question that Estrada was not convicted during the impeachment proceedings in the Senate. How about resignation– the fourth and last ground? Atty. Paguia argues that " the ruling of the Supreme Court in Estrada v. Arroyo was tainted with patent partiality violative of President Estrada’s constitutional right to due process of law. They participated by authorizing the proclamation of, and actually proclaiming, Vice President Arroyo as President of the Philippines… It is elementary (sic) in law that the deprivation of constitutional rights has the effect of that Court being ousted of its jurisdiction over the case. It necessarily follows that President Estrada remains the true President of the Republic of the Philippines over whom the present proceedings – not being for impeachment – are categorically proscribed by the 1987 Constitution." The signature of Joseph Ejercito Estrada, under the words, "Upon my instance and full authority," appears after the signature of his new counsel, Alan F. Paguia. (To be continued)