How to delay the plunder trial and incite chaos, Erap style (Part IV)

"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 by a letter to the Court, dated January 20, 2001, 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 Jan. 20, 2001 to administer the oath of office to President Gloria Macapagal-Arroyo as President of the Philippines at noon of Jan. 20, 2001.

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

In a lecture I delivered in early February 2001, which was published in the February 2001 issue of Kilosbayan Magazine, I made the following comment, among other things:

"Undoubtedly, the proper party, with the legal standing to question in court the title of President Gloria Macapagal-Arroyo, is Joseph Ejercito Estrada. In my opinion, others may also question Gloria’s title but their standing to sue may be doubted and disputed.

"However, the facts and the applicable law are against former President Estrada. In the afternoon of Jan. 20, 2001 the former president made his irreversible choice by relinquishing the presidency of his own accord, obviously because of People Power II and the rapid erosion of whatever legal authority he had over his key military and civilian subordinates who had abandoned him the day before. He could have fought for his office and title up to the bitter end, as Salvador Allende did in Chile in 1973. But Estrada, who had said he would live and die in the Philippines come what may, did no. Erap Estrada was and is bound by that irretrievable choice – no subsequent change of mind can effectively alter it. In the field of international relations, Gloria Macapagal-Arroyo has been recognized as the President of the Republic by all, or nearly all, States and international entities maintaining diplomatic relations with the Philippines, including the United Nations."

A ridiculous play

"Presumably on the advice of his lawyers, Joseph Ejercito Estrada set an antedated letter to Senate President Pimentel on Monday, January 22,2001, which seeks to modify what he had done – that is, abandon his title and office voluntarily, while in the possession of his mental and physical faculties. Unlike Allende and others of his kind, Estrada did not fight for his office up to the bitter end. His antedated letter of January 20, 2001 states:

"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 Acting President."

"This is a ridiculous ploy. Whatever the formal cause for the termination of the presidency as set forth in the Constitution – whether permanent disability, removal from office or resignation – each of these terms is pregnant with ambiguity and can only be clarified by reference to concrete facts. We can argue from varying positions, but as pointed out by Justice Holmes, in factual contexts admittedly different from the reality of People Power II:

"A word (or a term such as "permanent disability", or "removal from office", or resignation") is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

"…the provisions of the Constitution are not mathematical formulas having their essence in their form. They are organic living institution … Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.

The impeachment case in the House undermines the finality of the decisions of the Supreme Court and hence violates the principle of separation of powers and the doctrine of res judicata.

"We must think things not words, or at least we must constantly translate our words into facts for which they stand, if we are to keep to the real and the true.

"The life of the law has not been logic; it has been experience. The felt necessities of the time… even the prejudices which judges share with their fellowmen have a good deal more to do than the syllogism in determining the rules by which men should be governed."

"The reality is that before he could be physically ousted from Malacañang, Estrada abandoned his office and title of his own will. Those who want to put the legal causes for termination of the presidency in the neat pigeonholes may maintain that Estrada was permanently disabled". Others may classify it as " removal from office" or "resignation". As always, law suffers from the "tyranny of labels". But all, except the pro-Estrada fanatics, will probably concur in the result. Estrada is out, for the good of the nation.

"The January 22, 2001 Resolution of the Supreme Court does not invoke any reason for the conclusion. Under the Constitution, "the facts and the law" must be expressed "clearly and distinctly" in a decision (Section 14, Article VIII). In most of Continental Europe, even a decision need not cite any reason. Perhaps the sound advice of the Earl of Mansfield to the English judges of his time may be exaggerated but apt: "Give your decisions, never your reasons; your decisions may be right, your reasons are sure to be wrong!"

"There can be no turning back for Erap Estrada. In a functioning democracy with all its faults, such as we have in the Philippines, we can never forget its central principle – "Sovereignty resides in the people and all government authority emanates from them. (Section 1, Article II)." In truth, Salus populi est suprema lex (The welfare of the people is the supreme law) is not just a maxim; it has become an important part of Philippine case law, as applied in several cases. It is now enshrined as a principle in Section 5, Article II of the 1987 Constitution:

"The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by the people of all the blessings of democracy."

Although Chief Justice Davide and Justice Panganiban inhibited themselves in the twin cases of Estrada v. Arroyo and Estrada v. Desierto, the 13 justices were one in the dispositive portion of the Decision – namely, that Gloria Macapagal-Arroyo is the de jure president and Estrada is not entitled to immunity form prosecution. Father Bernas in his May 25, 2003 column, titled "The Resurrected Strategy", says three justices (Puno, Vitug and Pardo) accepted some form of resignation; two justices (Mendoza and Bellosillo) saw permanent disability; three justices (Kapunan, Ynares-Santiago and Sandoval-Gutierrez) accepted the presidency of Mrs. Arroyo as an irreversible fact; (Melo, Quisumbing, Buena, de Leon and Gonzaga-Reyes) agreed with the final conclusion without expressing their reasons. In his opinion, it is not clear what doctrine was established by the decision on the manner of creating a permanent vacancy in the presidency. My own interpretation is that the last five agreed with Justice Reynato Puno’s ponencia in favor of resignation based on the "totality of acts" theory. The April 3, 2003 Resolution on the Motion for Reconsideration is a clear, comprehensive exposition of the resignation doctrine. (To be continued)