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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:

    That is the law.  Now the operative facts:
    On the same date  the House of the Representatives passed House Resolution No. l76[97] which states:
On February 7, 2001 , the House of the Representatives passed House Resolution No. 178[98] which states:
    (4)  Also, despite receipt of petitioner’s letter claiming inability, some twelve (12) members of the Senate signed the following:
    On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101]which states:
    (5)  On February 8, the Senate also passed Resolution No. 84 “certifying to the existence of a vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.”
 
    (6)  Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.
 
    (7)  Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary.
 
    What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President.  Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability.
 
    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.  Following Tañada v. Cuenco,[102]  we hold that this Court cannot eexercise its judicial power for this is an issue “in regard to which full discretionary authority has been delegated to the Legislative x x x branch of the government.” Or to use the language in Baker vs. Carr[103]  there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it.” Clearly, the Court cannot pass upon petitioner’s claim of inability to discharge the powers and duties of the presidency.  The question is political in  nature and addressed solely to Congress by constitutional fiat.  It is a political issue which cannot be decided by this Court without transgressing the principle of separation of powers.
 
    In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court.
 
IV
 Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, 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 impeachement proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

    Before resolving petitioner’s contentions, a revisit of our legal history on executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law.  In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China.  In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

    Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz: “x x x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.”[105]
 
    Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.  Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born.  In 1981, it was amended and one of the amendments involved executive immunity.  Section 17, Article VII stated:
    In his second Vicente G. Sinco Professional Chair Lecture entitled, “Presidential Immunity And All The King’s Men:  The Law Of Privilege As A Defense To Actions For Damages,”[106] petitioner’s learned counsel, former Dean of the UP College of Law, Atty. Pacifico Agabin, brightlined the modifications effected by this constitutional amendment on the existing law on executive privilege.  To quote his disquisition:
    The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust.  He denounced the immunity as a return to the anachronism “the king can do no wrong.”[107] The effort failed.
 
    The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution.  The following explanation was given by delegate J. Bernas, viz:[108]
    We shall now rule on the contentions of petitioner in the light of this history.  We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings.  The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency.  Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 “Recognizing that the Impeachment Court is Functus Officio.”[109]  Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted.  The plea, if granted, would put a perpetual bar against his prosecution.  Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution.  To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:[110]
    This is in accord with our ruling in In re:  Saturnino Bermudez[111] that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure” but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings.  His reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases [113] are inapropos for they have a different factual milieu.
 
    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 alleged 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.  The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.[114]
 
    Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.  In the 1974 case of US v. Nixon,[115] US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers.  Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington’s Watergate Hotel during the 1972 presidential campaign.  President Nixon himself was named an unindicted co-conspirator.  President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings.   The claim was rejected by the US Supreme Court.  It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”  In the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President from civil damages covers only “official acts.” Recently, the Us Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US President’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
 
    There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction.  One of the great themes of the 1987 Constitution is that a public office is a public trust.[118] It declared as a state policy that “(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."[119] It ordained that “(p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”[120] It set the rule that “(t)he right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.”[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”[123] The Office of the Ombudsman was also given fiscal autonomy.[124] These constitutional policies will be devalued if we sustain petitioner’s claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency.
 
V
 Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity
 
    Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt.  He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to 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.[125] 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.[126] 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.  They have developed different strains of tests to resolve this issue,   i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc.
 
    This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee, Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down the doctrine that:
    We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.[130] and its companion cases.  viz.:
    Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity.  Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.” (emphasis supplied)
 
    Applying the above ruling, we hold 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.[131] He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him.  Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.
 
    The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner’s submission, the respondent Ombudsman “has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs.”[132] News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner[133] and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior.
 
    Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.[134] They can be reversed but they cannot be compelled to change their recommendations nor can they be compelled to prosecute cases which they believe deserve dismissal. in other words, 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.
 
VI.
 Epilogue

    A word of caution to the “hooting throng.” The cases against the petitioner will now acquire a different dimension and then move to a new stage - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the “most fundamental of all freedoms.”[135]  To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls “the impatient vehemence of the majority.” Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man’s progress from the cave to civilization. Let us not throw away that key just to pander to some people’s prejudice.

    IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

    SO ORDERED.

    Bellosillo, Melo, Quisumbing, Gonzaga-Reyes,  and  De Leon, Jr., JJ.,  concur .

    Davide, Jr., C.J.,  and  Panganiban, J.,  no part .

    Vitug, and Mendoza, JJ.,  see concurring opinion. 

    Kapunan, Ynares-Santiago,  and  Sandoval-Gutierrez, JJ.,  concur in the result and reserve the right to write a separate opinion. 

    Pardo,  and  Buena, JJ.,  in the result. 

 

 
 CONCURRING OPINION
 
 
VITUG, J:  
This nation has a great and rich history authored by its people.   The EDSA Revolution of 2001 could have been one innocuous phenomenon buried in the pages of our history but for its critical dimensions. Now, EDSA 2 would be far from being just another event in our annals.  To this day, it is asked - is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?
To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph Ejercito Estrada.  Mr. Estrada, herein petitioner, was elected to office by not less than 10 million Filipinos in the elections of May 1998, served for well over two years until 20 January 2001.  Formally impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery, Betrayal of Public Trust and Culpable Violation of the Constitution, he was tried by the Senate.  The Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada - if convicted, he would be removed from office and face prosecution with the regular courts or, it acquitted, he would remain in office.  An evidence, however, presented by the prosecution tagged as the "second envelope" would have it differently.  The denial by the impeachment court of the pleas to have the dreaded envelope opened promptly put the trial into a halt.  Within hours after the controversial Senate decision, an angered people trooped once again to the site of the previous uprising in 1986 that toppled the 20-year rule of former President Ferdinand E. Marcos- EDSA.  Arriving in trickles, the motley gathering swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly poised to storm Malacañang.
 
In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for him to resign.  At this time, Estrada was a picture to man, elected into the Presidency, but beleaguered by solitude-empty of the support by the military and the police, abandoned by most of his cabinet members, and with hardly any firm succor from constituents.  And despite the alleged popularity that brought him to power, mass sentiments now appeared to be for his immediate ouster.
 
With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief Justice to administer her oath-taking.  In a letter, sent through "fax" at about half past eleven o'clock in the morning of 20 January 2001, read:
The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible catastrophic proportions, agreed to honor the request. Theretofore, the Court, cognizant that it had to keep its doors open, had to help assure that the judicial process was seen to be functioning.  As the hours passed, however, the extremely volatile situation was getting more precarious by the minute, and the combustible ingredients were all but ready to ignite.  The country was faced with a phenomenon - the phenomenon of a people, who, in the exercise of a sovereignty perhaps too limitless to be explicitly contained and constrained by the limited words and phrases of the Constitution, directly sought to remove their president from office.  On that morning of the 20th of January, the high tribunal was confronted with a dilemma - should it choose a literal and narrow view of the Constitution, invoke the rule of strict law, and exercise its characteristic reticence?  Or was it propitious for it to itself take a hand?  The first was fraught with danger and evidently too risky to accept.  The second could very well help avert imminent bloodshed.  Given the realities, the Court was left hardly with choice.  Paradoxically, the first option would almost certainly imperil the Constitution, the second could save it. The confirmatory resolution was issued following the en banc session of the Court on 22 January 2001; it read:
At high noon on the 20th of January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th President of the Republic of the Philippines.  EDSA, once again, had its momentous role in yet another "bloodless revolution."  The Court could not have remained placid amidst the worsening situation at the time.  It could not in conscience allow the high-strung emotions and passions for EDSA to reach the gates of Malacañang.  The military and police defections created stigma that could not be left unguarded by a vacuum in the Presidency.  The danger was simply overwhelming.  The extraordinariness of the reality called for an extraordinary solution.  The Court has chosen to prevent rather than cure an enigma incapable of being recoiled.  The alarming social unrest ceased as the emergence of a new leadership so unfolded.  The promise of healing the battered nation engulfed the spirit but it was not to last.  Questions were raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.
So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the Vice-President may assume the Presidency only in its explicitly prescribed instances; to wit, firstly, in case of death, permanent disability, removal from office, or resignation of the President,[1] secondly, when the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the power and duties of his office,[2] and thirdly, when majority of all members of the Cabinet transmit to the President and to the Speaker of the house of Representatives their written declaration that the President is unable to discharge the powers and duties of this office,[3] the latter two grounds being culled as the "disability clauses."
 
Mr. Estrada belies that he cannot be considered to have relinquished his office for none of the above situations have occurred. The conditions for constitutional succession have not been met. He states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes his letters to both Chambers of the Congress consistent with Section 11 of Article VII of the 1987 Constitution.  The twin letters, dated 20 January 2001, to the two houses read:
Truly, the grounds raised in the petition are as dubitable and the petitioner's real motive in filing the case.
The pressing issue must now catapult to its end.
 
Resignation is an act of giving up of the act of an officer by which he renounces his office indefinitely.  In order to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender this position accompanied by an act of relinquishment. Resignation implies an expression of an incumbent in some form, express or implied, of the intention to surrender, renounce, or relinquish the office.[4]
 
Mr. Estrada imports that he did not resign from the Presidency because the word "resignation" has not once been embodied in his letters. I am unable to oblige.  The contemporary acts of Estrada during those four critical days of January are evident of his intention to relinquish his office.  Scarcity of words may not easily cloak reality and hide true intentions.  Crippled to discharge his duties, the embattled President acceded to have negotiations conducted for a smooth transition of power.  The belated proposals of the President to have the Impeachment Court allow the opening of the controversial envelope and to postpone his resignation until 24 January 2001 were both rejected.  On the morning of 20 January 2001, the President sent Congress the following letter -
Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the morning but the Senate President was said to have received a copy only on the evening of that day.  Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and inutility in office - not so much by the confluence of events that forced him to step down from the seat of power in a poignant and teary farewell as the recognition of the will of the governed to whom he owed allegiance.  In his "valedictory message," he wrote:
Abandonment of office is a species of resignation,[5] and it connotes the giving up of the office although not attended by the formalities normally observed in resignation.  Abandonment may be effected by a positive act or can be the result of an omission, whether deliberate or not.[6]
 
Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.  This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions those that are personal, either by physical or mental in nature,[7] and innate to the individual.  If it were otherwise, when then would the disability last?   Would it be when the confluent causes which have brought about that disability are completely set in reverse? Surely, the idea fails to register well to the simple mind.
 
Neither can it be implied that the takeover has installed a revolutionary government.  A revolutionary government is one which has taken seat of power by force or in defiance of the legal process.  Within the political context, a revolution is a complete overthrow of the established government.[8] In its delimited concept, it is characterized often,[9] albeit not always, [10] by violence as a means and specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The government structure has remained intact.  Succession to the Presidency has been by the duly-elected Vice-President of the Republic. The military and the police, down the line, have felt to be so acting in obedience to their mandate as the protector of the people.
 
Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as being "a rapid, fundamental and violent domestic change in the dominant values and myths of soceity in its political institution, social structure, leadership, government activity and policies."[11] The distinguished A.J. Milne makes a differentiation between constitutional political action and revolutionary political action.  A constitutional political action, according to him, is a political action within a legal framework and rests upon a moral commitment to uphold the authority of law.  A revolutionary political action, on the other hand, acknowledges no such moral commitment.  The latter is directed towards overthrowing the existing legal order and replacing it with something else.[12] And what, one might ask, is the "legal order" referred to?  It is an authoritative code of a polity comprising enacted rules, along with those in the Constitution[13] and concerns itself with structures rather than personalities in the establishment. Accordingly, structure would refer to the different branches of the government and personalities would be the power-holders.  If determination would be made whether a specific legal order is intact or not, what can be vital is not the change in the personalities but a change in the structure.
The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the rupture nor in the abrogation of the legal order.  The constitutionally-established government structures, embracing various offices under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other entities, including the Armed Forces of the Philippines and the Philippine National Police and local governments as well, have all remained intact and functioning.

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

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

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

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


 
 
MENDOZA, J., Concurring:
 
In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.  In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito Estrada is the lawful president of the Philippines and the respondent Gloria Macapagal-Arroyo is merely acting President on account of the former's temporary disability.  On the other hand, if G.R. Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from investigating charges of plunder, bribery, malversation of public funds, and graft and corruption against petitioner Estrada on the theory that, being still President, he is immune from suit.
 
In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria Macapagal-Arroyo's presidency is a justiciable controversy.  Respondent Gloria Macapagal-Arroyo contends that the matter is not justiciable because of "the virtual impossibility of undoing what has been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of a events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."[1] In support of this contention, respondent cites the following statements of this Court concerning the Aquino Government which it is alleged applies to her administration:
From the natural law point of view, the right to revolution has been defined as "an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable."  It has been said that "the locus of positive law-making power lies with the people of the state" and from there is derived "the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution."[3]
 
But the Aquino government was a revolutionary government which was established following the overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the subject of judicial review.  If a court decides the question at all, it must necessarily affirm the existence and authority of such government under which it is exercising judicial power.[4] As Melville Weston long ago put it, "the men who were judges under the old regime and the men who are called to be judges under the new have each to decide as individuals what they are to do; and it may be that they choose at grave peril with the factional outcome still uncertain."[5] This is what the Court did in Javellana v. Executive Secretary[6] when it held that the question of validity of the 1973 Constitution was political and affirmed that it was itself part of the new government.  As the Court said in Occena vs. COMELEC [7] and Mitra vs. COMELEC,[8] "[P]etitioners have come to the wrong forum.   We sit as a Court duty-bound to uphold and apply that Constitution.  It is much too late in the day to deny the force and applicability of the 1973 Constitution."
In contrast, these cases do not involve the legitimacy of a government. They only involve the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents in precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the Constitution.[9]
 
Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk about the fact that it was brought about by succession due to resignation or permanent disability of petitioner Joseph Ejercito Estrada is useless.  All that respondents have to show is that in the contest for power Macapagal-Arroyo's government is the successful one and is now accepted by the people and recognized by the community of nations.
But that is not the case here.  There was no revolution such as that which took place in February 1986.  There was no overthrow of the existing legal order and its replacement by a new one, no nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.[10] In that case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session and, followed by six senators, walked out of the session hall.  The remaining senators then declared the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting president.  The question was whether respondent Cuenco had been validly elected acting president of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning, this Court refused to take cognizance of a petition for quo warranto brought to determine the rightful president of the Senate, among other things, in view of the political nature of the controversy, involving as it did an internal affair of a co-equal branch of the government, in the end this Court decided to intervene because of the national crisis which developed as a result of the unresolved question of presidency of the Senate. The situation justifying judicial intervention was described, thus:

"We can take judicial notice that legislative work has been at a standstill; the normal and ordinary functioning of the Senate has been hampered by the non-attendance to sessions of about one-half of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere scraps of papers, notwithstanding the fact that the persons to be arrested are prominent persons with well-known addresses and residences and have been in daily contact with news reporters and photographers.  Farce and mockery have been interspersed with actions and movements provoking conflicts which invite bloodshed.

In voting to assume jurisdiction, Chief Justice Paras wrote:  "[T]his Court has no other alternative but to meet the challenge of the situation which demands the utmost of judicial temper and judicial statesmanship.  As herein before stated, the present crisis in the Senate is one that imperatively calls for the intervention of this Court."[12] Questions raised concerning respondent Gloria Macapagal-Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.
Nor our power to fashion appropriate remedies in these cases in doubt. Respondents contend that there is nothing else that can be done about the assumption into office of respondent Gloria Macapagal-Arroyo.  What has been done cannot be undone.  It is like toothpaste, we are told, which, once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable.  The toothpaste can be put back into the tube.  Literally, it can be put back by opening the bottom of the tube - that is how toothpaste is put in tubes and manufactured in the first place.  Metaphorically, the toothpaste can also be put back.  In G.R. No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these cases be in his favor.  Whether such writ will be obeyed will be a test of our commitment to the rule of law.  In election cases, people accept the decisions of courts even if they be against the results as proclaimed.  Recognition given by foreign governments to the presidency poses no problem.  So, as far as the political question argument of respondents is anchored on the difficulty or impossibility of devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the Presidency was in accordance with the Constitution.  Art. VII, Section 8 provides in pertinent parts:

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and need not be recounted in great detail here.  They began in October 2000 when allegations of wrongdoings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made against petitioner before the Blue Ribbon Committee of the Senate.  On November 13, 2000, petitioner was impeached by the House of Representatives and, on December 7, impeachment proceedings were begun in the Senate during which more serious allegations of graft and corruption against petitioner were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner.  As a result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out and Senate President Aquilino Pimentel resigned casting his vote against petitioner.
The events, as seen through the eyes of foreign correspondents, are vividly recounted in the following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the Memorandum of petitioner in G.R. Nos. 146710-15, thus:
To recall these events is to note the moral framework in which petitioner’s fall from power took place.  Petitioner’s counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency, because petitioner was “threatened with mayhem."[14] What, the President of the Philippines, who under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?  This can only happen because he had lost his moral authority as the elected President.
 
Indeed, the people power movement did not just happen at the call of some ambitious politicians, military men, businessmen and/or prelates.  It came about because the people, rightly or wrongly, believed the allegations of graft and corruption made by Luis “Chavit” Singson, Emma Lim, Edgardo Espiritu, and other witnesses against petitioner.  Their testimonies during the impeachment trial were all televised and heard by millions of people throughout the length and breadth of this archipelago.   As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members resigned, members of the Armed Forces of the Philippines and the Philippine National Police withdrew their support of the President, while civil society announced its loss of trust and confidence in him.  Public office is a public trust.  Petitioner lost the public’s trust and as a consequence remained President only in name.  Having lost the command of the armed forces and the national police, he found himself vulnerable to threats of mayhem.
 
This is the confession of one who is beaten.  After all, the permanent disability referred to in the Constitution can be physical, mental, or moral, rendering the President unable to exercise the powers and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner’s presidency:
This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M. of Friday, January 19, 2001.  Hence the negotiations for the transfer of power to the respondent Vice-President Gloria Macapagal-Arroyo.  It belies petitioner’s claim that he was not permanently disabled but only temporarily unable to discharge the powers and duties of his office and therefore can only be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, Section 1 of the Constitution says that “sovereignty resides in the people and all government authority emanates from them,” it also says that “the Philippines is a democratic and republican state.” This means that ours is a representative democracy – as distinguished from a direct democracy – in which the sovereign will of the people is expressed through the ballot, whether in an election, referendum, initiative, recall (in the case of local officials) or plebiscite.  Any exercise of the powers of sovereignty in any way is unconstitutional.
 
Indeed, the right to revolt cannot be recognized as a constitutional principle.  A constitution to provide for the right of the people to revolt will carry with it the seeds of its own destruction.  Rather, the right to revolt is affirmed as a natural right.  Even then, it must be exercised only for weighty and serious reasons.  As the Declaration of Independence of July 4, 1776 of the American Congress states:
Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a revolution but the peaceful expression of popular will.  The operative fact which enabled Vice-President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis, nay a vacuum, in the executive leadership which made the government rife for seizure by lawless elements.  The presidency was up for grabs, and it was imperative that the rule of succession in the Constitution be enforced.
 
But who is to declare the President’s permanent disability, petitioner asks?  The answer was given by petitioner himself when he said that he was already tired and wanted no more of popular demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria Macapagal-Arroyo’s advisers for a transition of powers from him to her; when petitioner’s own Executive Secretary declared that petitioner was not only in a corner but was down.
 
Nor is it correct for petitioners to say that the present situation is similar to our situation during the period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents, namely, Manuel L. Quezon and Jose P. Laurel.  This is turning somersault with history.  The Philippines had two presidents at that time for the simple reasons that there were then two government – the de facto government established by Japan as belligerent occupant, of which Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L. Quezon.  That a belligerent occupant has a right to establish a government in enemy territory is a recognized principle of international law.[17] But today we have only one government, and it is the one set up in the 1987 Constitution.   Hence, there can only be one President.
 
Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the Philippines, I find no need to discuss his claim of immunity from suit.  I believe in the canon of adjudication that the Court should not formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.
The only question left for resolution is whether there was massive prejudicial publicity attending the investigation by the Ombudsman of the criminal charges against petitioner.  The test in this jurisdiction is whether there has been “actual, not merely possible, prejudice”[18] caused to petitioner as a result of publicity. There has been no proof of this, and so I think this claim should simply be dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.
 

_____________________________
Endnotes
 
[1]  Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

[2]  PDI, October 6, 2000, pp. A1 and A18.
[3]  Ibid., October 12, 2000, pp. A1 and A17.
[4]  Ibid., October 14, 2000, p. A1.
[5]  Ibid., October 18, 2000, p. A1.
[6]  Ibid., October 13, 2000, pp. A1 and A21.
[7]  Ibid., October 26, 2000, p. A1
[8]  Ibid., November 2, 2000, p. A1.
[9]  Ibid., November 3, 2000, p. A1.
[10]  Ibid., November 4, 2000, p. A1.
[11] The complaint for impeachement was based on the following grounds:  bribery, graft and corruption, betrayal of public trust, and culpable violation of the Constitution.
[12] Ibid., November 14, 2000, p. A1.
[13] Ibid., November 21, 2000, p. A1.
[14] Ibid., December 8, 2000, p. A1.
[15] Ibid., December 23, 2000, pp. A1 and A19.
[16] Ibid., January 12, 2001. P. A1.
[17] Those who voted “yes” to open the envelop were” Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who voted “no” were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad.
[18] Philippine Star, January 17, 2001, p. 1.
[19] Ibid., January 18, 2001, p. 4.
[20] Ibid., p. 1.
[21]  Ibid., January 19, 2001, pp. 1 and 8.
[22] “Erap’s Final Hours Told” by Edgardo Angara, (hereinafter referred to as “Angara’s Diary”) PDI, February 4, 2001, p. A16.
[23] Philippine Star, January 20, 2001, p. 4.
[24] PDI, February 4, 2001, p. A16.
[25] Philippine Star, January 20, 2001, pp. 1 and 11.
[26] Ibid., January 20, 2001, p. 3.
[27] PDI, February 5, 2001, pp. A1 and A6.
[28] Philippine Star, January 21, 2001, p. 1.
[29] PDI, February 6, 2001, p. A12.
[30] Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.
[31] Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.
[32] Ibid.
[33] Annex A, Petition, G.R. Nos. 146710-15 Rollo, p. 33.
[34] Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January 25, 2001, pp. A1 and A15.
[35] Philippine Star, January 24, 2001, p. 1.
[36] PDI, January 25, 2001, p. 1.
[37] Ibid., p. 2.
[38] Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15 p. 290.
[39] Annex D, id; ibid., p. 292.
[40] PDI, January 27, 2001, p. 1.
[41]  PDI, February 13, 2001, p. A
[42] Philippine Star, February 13, 2001, p. A2.
[43] Annex E, id.: ibid., p. 295.
[44] PDI, February 8, 2001, pp. A1 & A19.
[45] Annex F, id.; ibid., p. 297.
[46] PDI, February 10, 2001, p. A2.
[47] Annex G., id.; ibid., p. 299.
[48] PDI, February 8, 2001, p. A19.
[49] Philippine Star, February 3, 2001, p. 4.
[50] “Acceptance of Gloria is Nationwide,” Mahar Mangahas, Manila Standard, February 16, 2001, p. 14.
[51] See: The Chief Justice’s Extended Explanation for His Voluntary Inhibition; Rollo, G.R. Nos. 146710-15, pp. 525-527.
[52] See Letter of Inhibition of Associate Justice Panganiban; Rollo, G.R. No. 146738, pp. 120-125.
[53] Rollo, G.R. No. 146738, p. 134.
[54] Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, G.R. Nos. 146710-15, Vol. III, pp. 809-820.
[55] Gunther and Sullivan, Constitutional Law, 13th ed., pp. 45-46.
[56] 369 US 186,82 S. Ct. 691, 7 L ed 2d 663, 686 (1962).
[57]  See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., G.R. No. 141284, 15 August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942
[58] 103 Phil 1051, 1068 (1957).
[59] Section 1, Article VIII, 1987 Constitution.
[60] Note that the early treatises on Constitutional Law are discourses on limitations of power typical of which is. Cooley’s Constitutional Limitations.
[61] Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C. Aquino, et al., GR No. 73748; People’s Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory Aquino, et al., GR o. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.
[62] Letter of Associate Justice Reynato S. Puno, 210 SCRA 597 [1992].
[63] Proclamation No. 3.
[64] It states:
I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the nation.
So help me God.
(Annex I, Comment of the Ombudsman; Rollo, G.R. Nos. 146710-15 Vol. II, p. 332).
[65] See “Filipinas Despues de Cien Años” (The Philippines a Century Hence), p. 62.
[66] The guaranty was taken from Amendment I of the US Constitution which provides: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof of abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.”
[67] See Section 8, Article IV.
[68] See Section 9, Article IV.
[69] Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et al seq.
[70] Ibid., See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76) where he said” ... the greatest menace to freedom is an inert people...”
[71] 307 U.S. 496 (1939).71
[72] Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.72
[73] 260 SCRA 798 (1996).73
[74]  Section 1, Article II of the 1987 Constitution reads: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”
[75] supra at 26.
[76] supra at 41.
[77] 1 Cranch (5 US) 137, 2 L ed 60 (1803)
[78] Gonzales v. Hernandez, 2 SCRA 228 (1961).
[79]See its February 4, 5, and 6 2001 issues
[80]PDI, February 4, 2001, p. A1
[81] Ibid.
[82] Ibid.
[83] Ibid
[84] Ibid
[85] Ibid
[86]PDI, February 5, 2001, p. A1.
[87] Ibid., p. A-1.
[88] Ibid
[89] PDI, February 5, 2001, p. A6.
[90]PDI, February 6, 2001, p. A1.
[91]In the Angara Diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would not sign the letter.
[92]Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.
[93] Id., May 9, 1959, p. 1988.
[94]Section 18 (2), Article III of the 1987 Constitution provides: “No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.”
[95]Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.
[96]House Resolution No. 175, 11th  Congress, 3rd Session (2001), reads:
“RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES
 
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th President of the Philippines;
 
WHEREAS, her ascension to tine highest office of tine land under the dictum, “the voice of the people is the voice of God” establishes the basis of her mandate on integrity and morality in government;
 
WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully supporting the President’s strong determination to succeed;
 
WHEREAS, the House of representative is likewise one with the people in supporting President Gloria Macapagal-Arroyo’s call to start the healing and cleansing process for a divided nation in order to ‘build an edifice of peace, progress and economic stability’ for the country: Now, therefore, be it Resolved by the House of Representatives, To express its full support to the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th  President of the Philippines.
Adopted,
 
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by House of Representatives on January 24, 2001.
(Sgd.) Roberto P. Nazareno
Secretary General”
[97] 11th Congress, 3rd Session (2001)
[98] 11th Congress, 3rdSession (2001).
[99]  Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231.
[100]  11th Congress, 3rd Session (2001).
[101]  11th Congress, 3rd Session (2001).
[102]  103 Phil 1051, 1067 (1957).
[103]  Baker vs. Carr, supra at 686 headnote 29.
[104]  16 Phil 534 (1910).
[105]  The logical basis for executive immunity from suit was originally founded upon the idea that the “King can do no wrong.” [R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303 (1959)].  The concept thrived at the time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and governmental power resides in the throne. During that historical juncture, it was believed that allowing the King to be sued in his court was a contradiction to the sovereignty of the King.
 
With the development of democratic thoughts and institutions, this kind of rationalization eventually lost its moral force. In the United States, for example, the common law maxim regarding the King’s infallibility had limited reception among the framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of Presidential Immunity, 30 VAL. U.L. REV. 283 (1995)]. Still, the doctrine of presidential immunity found its way of surviving in modern political times, retaining both its relevance and vitality.  The privilege, however, is now justified for different reasons.  First, the doctrine is rooted in the constitutional tradition of separation of powers and supported by history.  [Nixon v. Fitzgerald, 451 U.S. 731 (1982)].  The separation of powers principle is viewed as demanding the executive’s independence from the judiciary, so that the President should no be subject to the judiciary’s whim.  Second, by reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.  [Soliven v. Makasiar, 167 SCRA 393 (1988)].  Otherwise, the time and substance of the chief executive will be spent on wrangling litigation, disrespect upon his person will be generated, and distrust in the government will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)].  Third, on grounds of public policy, it was recognized that thegains from discouraging official excesses might be more than offset by the losses from diminished zeal [Agabin, op. Cit., at 121.].  Without immunity, the president would de disinclined to exercise decision-making functions in a manner that might detrimentally affect an individual or group of individuals.  [See H. Schnechter, Immunity of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].
[106]  62 Phil. L.J. 113 (1987).
[107]  See Bulletin Today, august 16, 1984, p. 1; December 18, 1984, p. 7.
[108]  Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.
[109]  Supra at 47.
[110]  Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.
[111]  145 SCRA 160 (1986).
[112]  128 SCRA 324 (1984).
[113]  In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuneco v. Fernan, 158 29 (1988); and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).
[114]  Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).
[115]  418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
[116]  457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).
[117]  520 U.S. 681 (1997).
[118]  See section 1, Art. XI of the 1987 Constitution.
[119]  See section 27, Art. II of the 1987 Constitution.
[120]  See section 1, Art. XI of the 1987 Constitution.
[121]  See section 15, Art. XI of the 1987 Constitution.
[122]  See section 4, Art. XI of the 1987 Constitution.
[123]  See section 13 (1), Art. XI of the 1987 Constitution.
[124]  See section 14, Art. XI of the 1987 Constitution.
[125]  See Brandwood, Notes: “You Say ‘Fair Trial’ and I say ‘Free Press:’ British and American Approaches to Protecting Defendant’s Rights in High Profile Trials,” NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000).
[126]  Id., p. 1417.
[127]  See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54 (1995).
[128]  249 SCRA 54 (1995).
[129]  287 SCRA 581 at pp. 596-597 (1988).
[130]  247 SCRA 652 (1995).
[131]  Extensive publicity did not result in the conviction of well known personalities. E.g., OJ simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.
[132]  Memorandum, p. 25; Rollo, G.R. Nos. 146710-15, Vol. III, p. 647.
[133]  Memorandum, pp. 29-30; Rollo, G.R. Nos. 146710-15, Vol. III, pp. 572-573.
[134]  See section 4, Rule 112.
[135]  Estes v. Texas, 381 U.S. 532, 540 (1965).
 


 _____________________________
Endnotes - VITUG
 

[1]   Section 8, Article VII, 1987 Constitution.
[2]   Section 11, 1st paragraph, Article VII, 1987 Constitution.
[3]   Ibid., 2nd paragraph
[4]   Ortiz vs. Comelec, 162 SCRA 812
[5]   Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998
[6]   Cruz, Carlos L., The Law of Public Officers, p. 174, 1997 Edition
[7]   "Mr. SUAREZ. X X X
 "May we now go to Section 11, page 5. This refers to the President's written declaration of inability to discharge the powers and duties for the Office of the President. Can this written declaration to be done for and in behalf of the President if, for example, the President is in no position to sign his name, like he suffers an accident and both his arms get to be amputated?
 
 "Mr. REGALADO. We have not had a situation like that even in the jurisdiction from which we borrowed this provision, but we feel that in the remote situation that the Commissioner has cited in that the President cannot make a written declaration, I suppose an alternative would be considered wherein he can so expressly manifest in an authentic manner what should be contained in a written declaration. x x x
 
 "Mr. SUAREZ.  x x x I am thinking in terms of what happened to President Wilson. Really, the physical disability of the gentleman was never made clear to the historians. But suppose a situation will happen in our country where the President may suffer coma and gets to be unconscious, which is practically a total inability to discharge the powers and duties of his office, how can he submit a written declaration of inability to perform the duties and functions of his office?
"x x x
 
 "FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.
 
 "Mr. SUAREZ. I see.
 
 "Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they have had situations in the United Stated, including those of President Garfield, President Wilson, President Roosevelt and President Eisenhower." (11 Records, pp. 421-423)
[8]   Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086
[9]   Ibid.
[10]  Ibid.
[11]  [i]   Zacorin, Theories of Revolution in Contemporary Historiography, 88 Political Science Quarterly.
[1]2   Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453, 463 (1973)
[13]   Fernandez, Law and Polity: Towards a Systems Concept of Legal validity, 46 Philippine Law Journal, 390-391 (1971)
[14]   16 American Jurisprudence 2d.
[15]   State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252
[16]   John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763.
[17]   Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104
[18]   Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No. 73748, May 22, 1986.
 
 

 
 _____________________________
Endnotes - MENDOZA
 
[1] Joint Memorandum of the Secretary of Justice and Solicitor General, p.15.
[2] Lawyers' League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22, 1986.
[3] Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).
[4] Luther v. Borden, 7 How. 1 (1848).
[5] Political Questions, 38 Harvard Law Review, 296, 305 (1925).
[6] 50 SCRA 30 (1973).
[7] 104 SCRA 1 (1981).
[8] 104 SCRA 59 (1981).
[9] Joint Memorandum of the Secretary of Justice and Solicitor General, p.2.
[10] 83 Phil. 17 (1949).
[11] 83 Phil. At 76 (Perfecto, J., concurring).
[12] Id. At 25-26 (concurring and dissenting)
[13] Memorandum for Petitioner, G.R. Nos., 146710-15, pp. 5-6.
[14] Petition, G.R. No. 146738, p. 13.
[15] Edgardo Angara, Erap’s Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001.
[16] Id. (emphasis added).
[17] Emphasis added.
[18]  Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945); Laurel v. Misa, 77 Phil. 856 (1947).
[19] See Martelino v. Alejandro, 32 SCRA 106 (1970).
 

 
 

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