CHAN ROBLES AND ASSOCIATES LAW FIRM - Welcome to the Home of the Philippine On-Line Legal Resources
 
 
PHILIPPINE SUPREME COURT DECISIONS
ON-LINE
 
Sponsored by:  The ChanRobles LawNet




Search www.chanrobles.com

Google
 
Web www.chanrobles.com

.
 
THE CHAN ROBLES VIRTUAL LAW LIBRARY - QUICK GLANCE
 Philippines      |       Worldwide      |      The Business Page

 
 
Read full text of:
Sandiganbayan Decision Convicting Former President Joseph E. Estrada of the Crime of Plunder
Sandiganbayan Decision Acquitting  Former President Joseph E. Estrada of the Felony of Perjury
Supreme Court Decision on the Legitimacy of the Arroyo Administration



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
 
 
JOSEPH E. ESTRADA,
                       Petitioner,
G. R. Nos. 146710-15
March 2, 2001
                            -versus-
 

ANIANO DESIERTO, in his capacity as Ombudsman,

RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR.,
                                                                                                                  Respondents.
 x------------------------------------------------------------------------------------------------------------x
 
 JOSEPH E. ESTRADA,
                       Petitioner,
G. R. No. 146738
March 2, 2001
                            -versus-
 

GLORIA MACAPAGAL-ARROYO,

                                       Respondent.
 
D E C I S I O N
 
PUNO, J.:
 
    On the line in the cases at bar is the office of the President.  Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President.  The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties’ dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style.
 
    First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
 
    In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life’s adversity.  Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.
 
    From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity.  His sharp descent from power started on October 4, 2000.  Ilocos Sur Governor, Luis “Chavit” Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. [1]
 
    The expose immediately ignited reactions of rage.  The next day, October 5, 2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled “I Accuse.” He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000.  He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur.  The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation. [2]
 
    The House of Representatives did no less.  The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the exposé of Governor Singson.  On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner.
 
    Calls for the resignation of the petitioner filled the air.  On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern. [3]  Two days later or on October 13, the Catholic Bishops Conference of the Philippine joined the cry for the resignation of the petitioner. [4] Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the “supreme self-sacrifice” of resignation. [5]  Former President Fidel Ramos also joined the chorus.  Early on, or on October 12, respondent Arroyo resigned  as Secretary of the Department of Social Welfare and Services [6]  and later asked for petitioner’s resignation. [7]  However, petitioner strenuously held on to his office and refused to resign.
 
    The heat was on.  On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned.  They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. [8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.[9]  On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.[10]
 
    The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment [11] signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate.  This caused political convulsions in both houses of Congress.  Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella.[12] On November 20, the Senate formally opened the impeachment trial of the petitioner.  Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13]
 
    The political temperature rose despite the cold December.  On December 7, the impeachment trial started.[14]   The battle royale was fought by some of the marquee names in the legal profession.  Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura.  They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo.  Serving as defense counsels were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun.  The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating.  Its high and low points were the constant conversational piece of the chattering classes.  The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank.  She testified that she was one foot away from petitioner Estrada when he affixed the signature “Jose Velarde” on documents involving a P500 million investment agreement with their bank on February 4, 2000.[15]
 
    After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution.  On January 11, Atty. Edgardo Espiritu who served as petitioner’s Secretary of Finance took the witness stand.  He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.[16] Then came the fateful day of January 16, when by a vote of 11-10,[17]  the senator-judges ruled against the opening of the second envelop which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name “Jose Velarde.” The public and private prosecutors walked out in protest of the ruling.  In disgust, Senator Pimentel resigned as Senate President.[18]   The ruling made at 10:00 was met by a spontaneous outburst of anger that hit the streets of the metropolis.  By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators.
 
    On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation.  They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.[19]  Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors.  Chief Justice Davide granted the motion.[20]
 
    January 18 saw the high velocity intensification of the call for petitioner’s resignation.  A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people’s solidarity in demanding petitioner’s resignation.  Students and teachers walked out of their classes in Metro Manila to show their concordance.  Speakers in the continuing rallies at the EDSA Shrine, all matters of the physics of persuasion, attracted more and more people.[21]
 
    On January 19, the fall from power of the petitioner appeared inevitable.  At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected.  At 2:30., petitioner agreed to the holding of a snap election for President where he would not be a candidate.  It did not diffuse the growing crisis.  At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.[22]  In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that “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.”[23]  A little later, PNP Chief, Director Panfilo Lacson and the major service commanders gave a similar stunning announcement.[24]  Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.[25]  Rallies for the resignation of the petitioner exploded in various parts of the country.  To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelop.[26]  There was no turning back the tide.  The tide had become a tsunami.
 
    January 20, turned to be the day of surrender.  At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacañang’s Mabini Hall, Office of the Executive Secretary.  Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner.  Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.[27]  Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
 
    At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.[28]  At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.[29]  He issued the following press statement:[30]
    It also appears that on the same day, January 20, 2001, he signed the following letter:[31]
    A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.[32]  Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.[33]
 
    On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency.  On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit:
    Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.[34] Recognition of respondent Arroyo’s government by foreign governments swiftly followed. On January 23, in a reception or vin d’ honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.[35] US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.[36]
 
    On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.[37] 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.”[38] 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.”[39]
 
    On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few days later, she also signed into law the Political Advertising Ban and Fair Practices Act.[41]
 
    On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.[42] The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmeña voted “yes” with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo’s presidency before the Supreme Court.  Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved Senator Guingona’s nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice President two (2) days later.[46]
 
    On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.[47]  Senator Miriam Defensor-Santiago stated “for the record” that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that resolution left open the question of whether Estrada was still qualified to run for another elective post.[48]
 
    Meanwhile, in a survey conducted by Pulse Asia, President Arroyo’s public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49]  In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada.  The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao.  Her trust rating increased to 52%.  Her presidency is accepted by majorities in all classes:  58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the E’s or very poor class.[50]
 
    After his fall from the pedestal of power, the petitioner’s legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion.  These are:  (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 R.A. 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 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 G.R. 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 Cases 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 G.R. 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 G.R. 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 G.R. Nos. 146710-15 and G.R. No. 146738 and the filing of the respondents’ comments “on or before 8:00 a.m. of February 15.”
 
    On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused themselves on motion of petitioner’s counsel, former Senator Rene A. Saguisag.  They debunked the charge of counsel Saguisag that they have “compromised themselves by indicating that they have thrown their weight on one side” but nonetheless inhibited themselves.  Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies.
    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:
    The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision.  The bedrock issues for resolution of this Court are:
 
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.
 
    We shall discuss the issues in seriatim.
 
Whether or not the cases at bar involve a political question.
 
    Private respondents[54] raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the “legitimacy of the Arroyo administration.” They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket which the Court cannot enter.
 
    We reject private respondents’ submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests in the principle of separation of powers and on prudential considerations, continue to be refined in the mills constitutional law.[55] In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr[56]viz:
    In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.[57]
 
    Our leading case is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer “to 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.” To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.[59]  Heretofore, the judiciary has focused on the “thou shalt not’s” of the Constitution directed against the exercise of its jurisdiction.[60] With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.  Clearly, the new provision did not just grant the Court power of doing nothing.  In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket.  Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to “x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x.”
 
    Respondents rely on the case of’ Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question.  A more cerebral reading of the cited cases will show that they are inapplicable.  In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one.  No less than the Freedom Constitution[63] declared that the Aquino government was installed through a direct exercise of’ the power of the Filipino people “in defiance of the provisions of the 1973 Constitution, as amended.” It is familiar learning 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. In checkered contrast, the government of respondent Arroyo is not revolutionary in character.  The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.[64] In her oath, she categorically swore to preserve and defend the 1987 Constitution.  Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.
 
    In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear.  EDSA I involves the exercise of the people power of revolution which overthrew the whole government.  EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President.  EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review.  EDSA I presented political question; EDSA II involves legal questions.  A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate.
 
    Freedom of speech and the right of assembly are treasured by Filipinos.  Denial of these rights was one of the reasons of our 1898 revolution against Spain.  Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among “the reforms sine quibus non.”[65] The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of’ Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively.” These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines.  In the instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided “that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances.” The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, l966.[66]
    Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article Ill of the 1987 Constitution, viz: 
    The indispensability of’ the people’s freedom of speech and of assembly to democracy is now self-evident.  The reasons are well put by Emerson:  first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of’ maintaining the precarious balance between healthy cleavage and necessary consensus.”[69]  In this sense, freedom of speech and of assembly provides a framework in which the “conflict necessary to the progress of a society can take place without destroying the society.”[70] In Hague v. Committee for Industrial Organization,[71] this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that “the basis of the right of assembly is the substitution of 'the expression of opinion and belief’ by talk rather than force; and this means talk for all and by all.”[72] In the relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen.  For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers.
 
    Needless to state, the cases at bar pose legal and not political questions.
 
    The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,[74] and section 8[75] of Article VII, and the allocation of governmental powers under section II[76]of Article VII.  The issues likewise call for a ruling on the scope of presidential immunity from suit.  They also involve the correct calibration of the right of petitioner against prejudicial publicity.  As early as the 1803 case of Marybury v. Madison,[77] the doctrine has been laid down that “it is emphatically the province and duty of the judicial department to say what the law is . . .” Thus respondent’s invocation of the doctrine of political is but a foray in the dark.
 
II
 Whether or not the petitioner resigned as President

    We now slide to the second issue. None of the parties considered issue as posing a political question.  Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice.  Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as president.

    The issue brings under the microscope of the meaning of Section 8, Article VII of the Constitution which provides:

    The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Republic.  Resignation is not a high level abstraction.  It 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.[78] The validity of a resignation is not a governed by any formal requirement as to form.  It can be oral.  It can be written.  It can be express.  It can be implied.  As long as the resignation is clear, it must be given legal effect.
 
    In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo.  Consequently, whether or not petitioner resigned has to be determined from his acts and omission before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.
 
    Using this totality test, we hold that petitioner resigned as President.
 
    To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the exposé of Governor Singson. The Senate Blue Ribbon Committee investigated.  The more detailed revelations of petitioner’s alleged misgovernance in Blue Ribbon investigation spiked the hate against him.  The Articles of Impeachment filed in the House of Representatives which initially was given the signatures of 115 representatives or more than 1/3 of the House of Representatives.  Soon, petitioner’s powerful political allies began deserting him.  Respondent Arroyo quit as Secretary of Social Welfare.  Senate President Drilon and Former Speaker Villar defected with 47 representatives in tow.  Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry.
    As the political isolation of the petitioner worsened, the people’s call for his resignation intensified.  The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope.  It sent the people to paroxysms of outrage.  Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance.  Their number grew exponentially.  Rallies and demonstration quickly spread to the countryside like a brush fire.

    As events approached January 20, we can have an authoritative window on the state of mind of the petitioner.  The window is provided in the “Final Days of Joseph Ejercito Estrada,” the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79]  The Angara Diary reveals that in morning of January 19, petitioner’s loyal advisers were worried about the welling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it.  Their worry would worsen.  At 1:20 p.m., petitioner pulled Secretary Angara into a small office at the presidential residence and exclaimed: “Ed, seryoso na ito.  Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)”[80] An hour later or at 2:30, p.m. the petitioner decided to call a snap presidential election and stressed he would not be a candidate.  The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time.  At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP’s withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.  The seismic shift of support left petitioner weak as a president.  According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of “dignified exit or resignation.”[81]  Petitioner did not disagree but listened intently.[82]  The sky was falling fast on the petitioner.  At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit.  He gave the proposal a sweetener by saying the petitioner would be allowed to go abroad with enough funds to support him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion for graceful and dignified exit but said he would never leave the country.[84]  At 10:00 p.m., petitioner revealed to Secretary Angara, “Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace.”[85]  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 pressure continued piling up.  By 11:00 p.m., former President Ramos called up Secretary Angara and requested, “Ed, magtulungan tayo para magkaroon tayo ng (let’s cooperate to ensure a) peaceful and orderly transfer of power.”[86]There was no defiance to the request.  Secretary Angara readily agreed.  Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power.  The resignation of the petitioner was implied.  

    The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday.  The negotiation was limited to three (3) points: (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.[87]  Again, we note that the resignation of petitioner was not a disputed point.  The petitioner cannot feign ignorance of this fact.  According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and following entry in the Angara Diary shows the reaction of the petitioner, viz: 

    Again, this is high grade evidence that the petitioner has resigned.  The intent to resign is clear when he said “x x x Ayoko na masyado nang masakit.” “ Ayoko na” are words of resignation.
 
    The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:
    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 transition period.
 
    According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further refined.  It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition.  However, the signing by the party of the respondent Arroyo was aborted by her oath-taking.  The Angara Diary narrates the fateful events,viz:[90]
    It was curtain time for the petitioner.
 
    In sum, we hold that the resignation of the petitioner cannot be doubted.  It was confirmed by his leaving Malacañang.  In the press release containing his final statement, (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 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 shreik 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.  The press release was petitioner’s valedictory, his final act of farewell. His presidency is now in the past tense.
 
    It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.  Again, we refer to the said letter, viz:
    To say the least, the above letter is wrapped in mystery.[91]  The pleadings filed by the petitioner in the cases at bar did not discuss, nay, even intimate, the circumstances that led to its preparation.  Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument.  It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis.  To be sure, there was not the slightest hint of its existence when he issued his press release.  It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time being.  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’s resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his repudiation by the people.  There is another reason why this Court cannot give any legal significance to petitioner’s letter and this shall be discussed in issue number III of this Decision.
 
    After petitioner contended that as a matter of’ fact he did not resign, he also argues that he could not resign as a matter of law.  He relies on Section 12 of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
    A reading of the legislative history of R.A. No. 3019 will hardly provide any comfort to the petitioner.  R.A. No. 3019 originated from Senate Bill No. 293.  The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to Section 12 of the law as it now stands.  However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, “reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire.”[92]  During the period of amendments, the following provision was inserted as Section 15:
    The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President’s immunity should extend even after his tenure.
 
    Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter passed. Section 15 above became Section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President which was one of tine reasons for the veto of the original bill.  There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him.  Be that as it may, the intent of the law ought to be obvious.  It is to prevent the act of resignation or retirement from being used by a  public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his Prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code.  To be sure, no person can be compelled to render service for that would be a violation of his constitutional right.[94]  A public official has the right not to serve if he really wants to retire or resign.  Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him.  He cannot use his resignation or retirement to avoid prosecution.
 
    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 R.A. 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 R.A. 3019, bars him from resigning.  We hold otherwise.  The exact nature of an impeachment proceeding is debatable,   But even assuming arguendo that it is an administrative proceeding, it cannot be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely.  There was, in effect, no impeachment case pending against petitioner when he resigned.
 
III
 Whether or not the petitioner is only temporarily unable to act as President.

    We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave, As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Funtebella.

    Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge tine powers and duties of the presidency.  His significant submittal is that “Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in Section 11 of Article VII.”[95]  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: