G.R. No.

146710-15      March 2, 2001 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
JOSEPH E. ESTRADA, petitioner,
Masang Pilipino.10
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, The month of November ended with a big bang. In a tumultuous
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE session on November 13, House Speaker Villar transmitted the Articles
VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. of Impeachment11 signed by 115 representatives, or more than 1/3 of
FRANCISCO, JR., respondent. 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 Fuentebella.12 On November 20, the
Senate formally opened the impeachment trial of the petitioner.
G.R. No. 146738      March 2, 2001 Twenty-one (21) senators took their oath as judges with Supreme
Court Chief Justice Hilario G. Davide, Jr., presiding.13
JOSEPH E. ESTRADA, petitioner,
vs. The political temperature rose despite the cold December. On
GLORIA MACAPAGAL-ARROYO, respondent. December 7, the impeachment trial started.14 The battle royale was
fought by some of the marquee names in the legal profession.
PUNO, J.: Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
On the line in the cases at bar is the office of the President. Petitioner Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Joseph Ejercito Estrada alleges that he is the President on leave while Nachura. They were assisted by a battery of private prosecutors led by
respondent Gloria Macapagal-Arroyo claims she is the President. The now Secretary of Justice Hernando Perez and now Solicitor General
warring personalities are important enough but more transcendental Simeon Marcelo. Serving as defense counsel were former Chief Justice
are the constitutional issues embedded on the parties' dispute. While Andres Narvasa, former Solicitor General and Secretary of Justice
the significant issues are many, the jugular issue involves the Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano,
relationship between the ruler and the ruled in a democracy, Philippine former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun
style. and his brother, Atty. Raymund Fortun. The day to day trial was
covered by live TV and during its course enjoyed the highest viewing
First, we take a view of the panorama of events that precipitated the rating. Its high and low points were the constant conversational piece
crisis in the office of the President. 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
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was petitioner Estrada when he affixed the signature "Jose Velarde" on
elected President while respondent Gloria Macapagal-Arroyo was documents involving a P500 million investment agreement with their
elected Vice-President. Some ten (10) million Filipinos voted for the bank on February 4, 2000.15
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. 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.
From the beginning of his term, however, petitioner was plagued by a Edgardo Espiritu who served as petitioner's Secretary of Finance took
plethora of problems that slowly but surely eroded his popularity. His the witness stand. He alleged that the petitioner jointly owned BW
sharp descent from power started on October 4, 2000. Ilocos Sur Resources Corporation with Mr. Dante Tan who was facing charges of
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, insider trading.16 Then came the fateful day of January 16, when by a
went on air and accused the petitioner, his family and friends of vote of 11-1017 the senator-judges ruled against the opening of the
receiving millions of pesos from jueteng lords.1 second envelope which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name
The exposẻ immediately ignited reactions of rage. The next day, "Jose Velarde." The public and private prosecutors walked out in
October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate protest of the ruling. In disgust, Senator Pimentel resigned as Senate
Minority Leader, took the floor and delivered a fiery privilege speech President.18 The ruling made at 10:00 p.m. was met by a spontaneous
entitled "I Accuse." He accused the petitioner of receiving some P220 outburst of anger that hit the streets of the metropolis. By midnight,
million in jueteng money from Governor Singson from November 1998 thousands had assembled at the EDSA Shrine and speeches full of
to August 2000. He also charged that the petitioner took from sulphur were delivered against the petitioner and the eleven (11)
Governor Singson P70 million on excise tax on cigarettes intended for senators.
Ilocos Sur. The privilege speech was referred by then Senate President
Franklin Drilon, to the Blue Ribbon Committee (then headed by On January 17, the public prosecutors submitted a letter to Speaker
Senator Aquilino Pimentel) and the Committee on Justice (then headed Fuentebella tendering their collective resignation. They also filed their
by Senator Renato Cayetano) for joint investigation.2 Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19 Senator Raul Roco quickly moved for the indefinite
The House of Representatives did no less. The House Committee on postponement of the impeachment proceedings until the House of
Public Order and Security, then headed by Representative Roilo Golez, Representatives shall have resolved the issue of resignation of the
decided to investigate the exposẻ of Governor Singson. On the other public prosecutors. Chief Justice Davide granted the motion.20
hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner. January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding lighted
Calls for the resignation of the petitioner filled the air. On October 11, candles formed a human chain from the Ninoy Aquino Monument on
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
the Presbyteral Council of the Archdiocese of Manila, asking petitioner people's solidarity in demanding petitioner's resignation. Students and
to step down from the presidency as he had lost the moral authority to teachers walked out of their classes in Metro Manila to show their
govern.3 Two days later or on October 13, the Catholic Bishops concordance. Speakers in the continuing rallies at the EDSA Shrine, all
Conference of the Philippines joined the cry for the resignation of the masters of the physics of persuasion, attracted more and more
petitioner.4 Four days later, or on October 17, former President people.21
Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.5 Former President Fidel Ramos On January 19, the fall from power of the petitioner appeared
also joined the chorus. Early on, or on October 12, respondent Arroyo inevitable. At 1:20 p.m., the petitioner informed Executive Secretary
resigned as Secretary of the Department of Social Welfare and Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Services6 and later asked for petitioner's resignation.7 However, Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner
petitioner strenuously held on to his office and refused to resign. 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.,
The heat was on. On November 1, four (4) senior economic advisers, Secretary of National Defense Orlando Mercado and General Reyes,
members of the Council of Senior Economic Advisers, resigned. They together with the chiefs of all the armed services went to the EDSA
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Shrine.22 In the presence of former Presidents Aquino and Ramos and
Virata, former Senator Vicente Paterno and Washington Sycip.8 On hundreds of thousands of cheering demonstrators, General Reyes
November 2, Secretary Mar Roxas II also resigned from the declared that "on behalf of Your Armed Forces, the 130,000 strong
members of the Armed Forces, we wish to announce that we are On January 22, the Monday after taking her oath, respondent Arroyo
withdrawing our support to this government."23 A little later, PNP Chief, immediately discharged the powers the duties of the Presidency. On
Director General Panfilo Lacson and the major service commanders the same day, this Court issued the following Resolution in
gave a similar stunning announcement.24 Some Cabinet secretaries, Administrative Matter No. 01-1-05-SC, to wit:
undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.25 Rallies for the resignation of the petitioner
"A.M. No. 01-1-05-SC — In re: Request of Vice President
exploded in various parts of the country. To stem the tide of rage,
Gloria Macapagal-Arroyo to Take her Oath of Office as
petitioner announced he was ordering his lawyers to agree to the
President of the Republic of the Philippines before the Chief
opening of the highly controversial second envelope.26 There was no
Justice — Acting on the urgent request of Vice President
turning back the tide. The tide had become a tsunami.
Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice
January 20 turned to be the day of surrender. At 12:20 a.m., the first and confirmed by a letter to the Court, dated January 20,
round of negotiations for the peaceful and orderly transfer of power 2001, which request was treated as an administrative
started at Malacañang'' Mabini Hall, Office of the Executive Secretary. matter, the court Resolve unanimously to confirm the
Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon authority given by the twelve (12) members of the Court
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying then present to the Chief Justice on January 20, 2001 to
Remulla, and Atty. Macel Fernandez, head of the Presidential administer the oath of office of Vice President Gloria
Management Staff, negotiated for the petitioner. Respondent Arroyo Macapagal-Arroyo as President of the Philippines, at noon of
was represented by now Executive Secretary Renato de Villa, now January 20, 2001.
Secretary of Finance Alberto Romulo and now Secretary of Justice
Hernando Perez.27 Outside the palace, there was a brief encounter at
This resolution is without prejudice to the disposition of any
Mendiola between pro and anti-Estrada protesters which resulted in
justiciable case that may be filed by a proper party."
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 Respondent Arroyo appointed members of her Cabinet as well as
Shrine. 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
At about 12:00 noon, Chief Justice Davide administered the oath to
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
respondent Arroyo as President of the Philippines.28 At 2:30 p.m.,
foreign diplomats recognized the government of respondent
petitioner and his family hurriedly left Malacañang Palace.29 He issued
Arroyo.35 US President George W. Bush gave the respondent a
the following press statement:30
telephone call from the White House conveying US recognition of her
government.36
"20 January 2001
On January 24, Representative Feliciano Belmonte was elected new
STATEMENT FROM 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
PRESIDENT JOSEPH EJERCITO ESTRADA
Macapagal-Arroyo, President of the Philippines."38 It also approved
Resolution No. 176 "expressing the support of the House of
At twelve o'clock noon today, Vice President Gloria Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo took her oath as President of the Republic Macapagal-Arroyo as President of the Republic of the Philippines,
of the Philippines. While along with many other legal minds extending its congratulations and expressing its support for her
of our country, I have strong and serious doubts about the administration as a partner in the attainment of the nation's goals
legality and constitutionality of her proclamation as under the Constitution."39
President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the
It is for this reason that I now leave Malacañang Palace, the Political Advertising ban and Fair Election Practices Act.41
seat of the presidency of this country, for the sake of peace
and in order to begin the healing process of our nation. I
On February 6, respondent Arroyo nominated Senator Teofisto
leave the Palace of our people with gratitude for the
Guingona, Jr., as her Vice President.42 The next day, February 7, the
opportunities given to me for service to our people. I will not
Senate adopted Resolution No. 82 confirming the nomination of
shirk from any future challenges that may come ahead in the
Senator Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan
same service of our country.
Ponce Enrile, and John Osmena voted "yes" with reservations, citing as
reason therefor the pending challenge on the legitimacy of respondent
I call on all my supporters and followers to join me in to Arroyo's presidency before the Supreme Court. Senators Teresa
promotion of a constructive national spirit of reconciliation Aquino-Oreta and Robert Barbers were absent.44 The House of
and solidarity. Representatives also approved Senator Guingona's nomination in
Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
May the Almighty bless our country and beloved people. President two (2) days later.46

MABUHAY! 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"
(Sgd.) JOSEPH EJERCITO ESTRADA" that she voted against the closure of the impeachment court on the
grounds that the Senate had failed to decide on the impeachment case
It also appears that on the same day, January 20, 2001, he signed the and that the resolution left open the question of whether Estrada was
following letter:31 still qualified to run for another elective post.48

"Sir: 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-
By virtue of the provisions of Section 11, Article VII of the CBN/SWS from February 2-7, 2001, results showed that 61% of the
Constitution, I am hereby transmitting this declaration that I Filipinos nationwide accepted President Arroyo as replacement of
am unable to exercise the powers and duties of my office. petitioner Estrada. The survey also revealed that President Arroyo is
By operation of law and the Constitution, the Vice-President accepted by 60% in Metro Manila, by also 60% in the balance of
shall be the Acting President. Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social
(Sgd.) JOSEPH EJERCITO ESTRADA" classes: 58% in the ABC or middle-to-upper classes, 64% in the D or
mass class, and 54% among the E's or very poor class.50
A copy of the letter was sent to former Speaker Fuentebella at 8:30
a.m. on January 20.23 Another copy was transmitted to Senate After his fall from the pedestal of power, the petitioner's legal
President Pimentel on the same day although it was received only at problems appeared in clusters. Several cases previously filed against
9:00 p.m.33 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- I
1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption,
Whether the petitions present a justiciable controversy.
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 II
plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et Assuming that the petitions present a justiciable controversy,
al., on November 28, 2000 for malversation of public funds, illegal use whether petitioner Estrada is a President on leave while
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00- respondent Arroyo is an Acting President.
1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. III
Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.
Whether conviction in the impeachment proceedings is a
A special panel of investigators was forthwith created by the condition precedent for the criminal prosecution of petitioner
respondent Ombudsman to investigate the charges against the Estrada. In the negative and on the assumption that
petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. petitioner is still President, whether he is immune from
Gervasio with the following as members, viz: Director Andrew criminal prosecution.
Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order IV
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. Whether the prosecution of petitioner Estrada should be
enjoined on the ground of prejudicial publicity.

Thus, the stage for the cases at bar was set. On February 5, petitioner
filed with this Court GR No. 146710-15, a petition for prohibition with a We shall discuss the issues in seriatim.
prayer for a writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further proceedings in I
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until after the
term of petitioner as President is over and only if legally warranted." Whether or not the cases
Thru another counsel, petitioner, on February 6, filed GR No. 146738
for Quo Warranto. He prayed for judgment "confirming petitioner to be At bar involve a political question
the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring
Private respondents54 raise the threshold issue that the cases at bar
respondent to have taken her oath as and to be holding the Office of
pose a political question, and hence, are beyond the jurisdiction of this
the President, only in an acting capacity pursuant to the provisions of
Court to decide. They contend that shorn of its embroideries, the cases
the Constitution." Acting on GR Nos. 146710-15, the Court, on the
at bar assail the "legitimacy of the Arroyo administration." They stress
same day, February 6, required the respondents "to comment thereon
that respondent Arroyo ascended the presidency through people
within a non-extendible period expiring on 12 February 2001." On
power; that she has already taken her oath as the 14th President of the
February 13, the Court ordered the consolidation of GR Nos. 146710-
Republic; that she has exercised the powers of the presidency and that
15 and GR No. 146738 and the filing of the respondents' comments
she has been recognized by foreign governments. They submit that
"on or before 8:00 a.m. of February 15."
these realities on ground constitute the political thicket, which the
Court cannot enter.
On February 15, the consolidated cases were orally argued in a four-
hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and
We reject private respondents' submission. To be sure, courts here and
Associate Justice Artemio Panganiban52 recused themselves on motion
abroad, have tried to lift the shroud on political question but its exact
of petitioner's counsel, former Senator Rene A. Saguisag. They
latitude still splits the best of legal minds. Developed by the courts in
debunked the charge of counsel Saguisag that they have
the 20th century, the political question doctrine which rests on the
"compromised themselves by indicating that they have thrown their
principle of separation of powers and on prudential considerations,
weight on one side" but nonetheless inhibited themselves. Thereafter,
continue to be refined in the mills of constitutional law.55 In the United
the parties were given the short period of five (5) days to file their
States, the most authoritative guidelines to determine whether a
memoranda and two (2) days to submit their simultaneous replies.
question is political were spelled out by Mr. Justice Brennan in the
1962 case or Baker v. Carr,56 viz:
In a resolution dated February 20, acting on the urgent motion for
copies of resolution and press statement for "Gag Order" on
"x x x Prominent on the surface of any case held to involve a
respondent Ombudsman filed by counsel for petitioner in G.R. No.
political question is found a textually demonstrable
146738, the Court resolved:
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
"(1) to inform the parties that the Court did not issue a manageable standards for resolving it, or the impossibility of
resolution on January 20, 2001 declaring the office of the deciding without an initial policy determination of a kind
President vacant and that neither did the Chief Justice issue clearly for non-judicial discretion; or the impossibility of a
a press statement justifying the alleged resolution; court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
(2) to order the parties and especially their counsel who are government; or an unusual need for unquestioning
officers of the Court under pain of being cited for contempt adherence to a political decision already made; or the
to refrain from making any comment or discussing in public potentiality of embarrassment from multifarious
the merits of the cases at bar while they are still pending pronouncements by various departments on question. Unless
decision by the Court, and one of these formulations is inextricable from the case at
bar, there should be no dismissal for non justiciability on the
ground of a political question's presence. The doctrine of
(3) to issue a 30-day status quo order effective immediately which we treat is one of 'political questions', not of 'political
enjoining the respondent Ombudsman from resolving or cases'."
deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the
cases at bar, it appearing from news reports that the In the Philippine setting, this Court has been continuously confronted
respondent Ombudsman may immediately resolve the cases with cases calling for a firmer delineation of the inner and outer
against petitioner Joseph E. Estrada seven (7) days after the perimeters of a political question.57 Our leading case is Tanada v.
hearing held on February 15, 2001, which action will make Cuenco,58 where this Court, through former Chief Justice Roberto
the cases at bar moot and academic."53 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
The parties filed their replies on February 24. On this date, the cases authority has been delegated to the legislative or executive branch of
at bar were deemed submitted for decision. the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great degree,
The bedrock issues for resolution of this Court are: the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court "Sec. 4. No law shall be passed abridging the freedom of
not only to settle actual controversies involving rights which are legally speech, of expression, or of the press, or the right of the
demandable and enforceable but also to determine whether or people peaceably to assemble and petition the government
not there has been a grave abuse of discretion amounting to for redress of grievances."
lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has
The indispensability of the people's freedom of speech and of assembly
focused on the "thou shalt not's" of the Constitution directed against
to democracy is now self-evident. The reasons are well put by
the exercise of its jurisdiction.60 With the new provision, however,
Emerson: first, freedom of expression is essential as a means of
courts are given a greater prerogative to determine what it can do to
assuring individual fulfillment; second, it is an essential process for
prevent grave abuse of discretion amounting to lack or excess of
advancing knowledge and discovering truth; third, it is essential to
jurisdiction on the part of any branch or instrumentality of
provide for participation in decision-making by all members of society;
government. Clearly, the new provision did not just grant the
and fourth, it is a method of achieving a more adaptable and hence, a
Court power of doing nothing. In sync and symmetry with this
more stable community of maintaining the precarious balance between
intent are other provisions of the 1987 Constitution trimming the so
healthy cleavage and necessary consensus."69 In this sense,
called political thicket. Prominent of these provisions is section 18 of
freedom of speech and of assembly provides a framework in
Article VII which empowers this Court in limpid language to "x x x
which the "conflict necessary to the progress of a society can
review, in an appropriate proceeding filed by any citizen, the
take place without destroying the society." 70 In Hague v.
sufficiency of the factual basis of the proclamation of martial law or the
Committee for Industrial Organization, 71 this function of free
suspension of the privilege of the writ (of habeas corpus) or the
speech and assembly was echoed in the amicus curiae filed by the Bill
extension thereof x x x."
of Rights Committee of the American Bar Association which
emphasized that "the basis of the right of assembly is the substitution
Respondents rely on the case of Lawyers League for a Better of the expression of opinion and belief by talk rather than force;
Philippines and/or Oliver A. Lozano v. President Corazon C. and this means talk for all and by all."72 In the relatively recent case
Aquino, et al.61 and related cases62 to support their thesis that since of Subayco v. Sandiganbayan,73 this Court similar stressed that "…
the cases at bar involve the legitimacy of the government of it should be clear even to those with intellectual deficits that when the
respondent Arroyo, ergo, they present a political question. A more sovereign people assemble to petition for redress of grievances, all
cerebral reading of the cited cases will show that they are inapplicable. should listen. For in a democracy, it is the people who count;
In the cited cases, we held that the government of former President those who are deaf to their grievances are ciphers."
Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom
Needless to state, the cases at bar pose legal and not political
Constitution63 declared that the Aquino government was installed
questions. The principal issues for resolution require the proper
through a direct exercise of the power of the Filipino people "in
interpretation of certain provisions in the 1987 Constitution, notably
defiance of the provisions of the 1973 Constitution, as
section 1 of Article II,74 and section 875 of Article VII, and the allocation
amended." In is familiar learning that the legitimacy of a government
of governmental powers under section 1176 of Article VII. The issues
sired by a successful revolution by people power is beyond judicial
likewise call for a ruling on the scope of presidential immunity from
scrutiny for that government automatically orbits out of the
suit. They also involve the correct calibration of the right of petitioner
constitutional loop. In checkered contrast, the government of
against prejudicial publicity. As early as the 1803 case of Marbury v.
respondent Arroyo is not revolutionary in character. The oath
Madison,77 the doctrine has been laid down that "it is emphatically
that she took at the EDSA Shrine is the oath under the 1987
the province and duty of the judicial department to say what
Constitution.64 In her oath, she categorically swore to preserve
the law is . . ." Thus, respondent's in vocation of the doctrine of
and defend the 1987 Constitution. Indeed, she has stressed that
political question is but a foray in the dark.
she is discharging the powers of the presidency under the authority of
the 1987 Constitution.1âwphi1.nêt
II
In fine, the legal distinction between EDSA People Power I EDSA
People Power II is clear. EDSA I involves the exercise of the people Whether or not the petitioner
power of revolution which overthrew the whole government. Resigned as President
EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of We now slide to the second issue. None of the parties considered this
grievances which only affected the office of the President. issue as posing a political question. Indeed, it involves a legal question
EDSA I is extra constitutional and the legitimacy of the new whose factual ingredient is determinable from the records of the case
government that resulted from it cannot be the subject of judicial and by resort to judicial notice. Petitioner denies he resigned as
review, but EDSA II is intra constitutional and the resignation of President or that he suffers from a permanent disability. Hence, he
the sitting President that it caused and the succession of the Vice submits that the office of the President was not vacant when
President as President are subject to judicial review. EDSA I respondent Arroyo took her oath as President.
presented a 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 The issue brings under the microscope the meaning of section 8,
grievance which are the cutting edge of EDSA People Power II is Article VII of the Constitution which provides:
not inappropriate.
"Sec. 8. In case of death, permanent disability, removal from
Freedom of speech and the right of assembly are treasured by office or resignation of the President, the Vice President shall
Filipinos. Denial of these rights was one of the reasons of our 1898 become the President to serve the unexpired term. In case
revolution against Spain. Our national hero, Jose P. Rizal, raised the of death, permanent disability, removal from office, or
clarion call for the recognition of freedom of the press of the Filipinos resignation of both the President and Vice President, the
and included it as among "the reforms sine quibus President of the Senate or, in case of his inability, the
non."65 The Malolos Constitution, which is the work of the Speaker of the House of Representatives, shall then act as
revolutionary Congress in 1898, provided in its Bill of Rights that President until the President or Vice President shall have
Filipinos shall not be deprived (1) of the right to freely express his been elected and qualified.
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 x x x."
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 issue then is whether the petitioner resigned as President or
the United States acquired jurisdiction over the Philippines. In should be considered resigned as of January 20, 2001 when
the Instruction to the Second Philippine Commission of April 7, 1900 respondent took her oath as the 14th President of the Public.
issued by President McKinley, it is specifically provided "that no law Resignation is not a high level legal abstraction. It is a factual question
shall be passed abridging the freedom of speech or of the press or of and its elements are beyond quibble: there must be an intent to
the rights of the people to peaceably assemble and petition the resign and the intent must be coupled by acts of
Government for redress of grievances." The guaranty was carried over relinquishment.78 The validity of a resignation is not government by
in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones any formal requirement as to form. It can be oral. It can be written. It
Law, the Act of Congress of August 29, 1966.66 can be express. It can be implied. As long as the resignation is clear, it
must be given legal effect.

Thence on, the guaranty was set in stone in our 1935

Constitution,67 and the 197368 Constitution. These rights are now In the cases at bar, the facts show that petitioner did not write any
safely ensconced in section 4, Article III of the 1987 Constitution, viz: 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 act and omissions before, during and after ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
January 20, 2001 or by the totality of prior, contemporaneous he briefed the petitioner on the three points and the following entry in
and posterior facts and circumstantial evidence bearing a the Angara Diary shows the reaction of the petitioner, viz:
material relevance on the issue.
"x x x
Using this totality test, we hold that petitioner resigned as
President.
I explain what happened during the first round of
negotiations. The President immediately stresses that he
To appreciate the public pressure that led to the resignation of the just wants the five-day period promised by Reyes, as well
petitioner, it is important to follow the succession of events after the as to open the second envelope to clear his name.
exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
If the envelope is opened, on Monday, he says, he
misgovernance in the Blue Ribbon investigation spiked the hate against
will leave by Monday.
him. The Articles of Impeachment filed in the House of Representatives
which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 The President says. "Pagod na pagod na ako. Ayoko na
representatives or more than 1/3 of the House of Representatives. masyado nang masakit. Pagod na ako sa red tape,
Soon, petitioner's powerful political allies began deserting him. bureaucracy, intriga. (I am very tired. I don't want
Respondent Arroyo quit as Secretary of Social Welfare. Senate any more of this – it's too painful. I'm tired of the red
President Drilon and former Speaker Villar defected with 47 tape, the bureaucracy, the intrigue.)
representatives in tow. Then, his respected senior economic advisers
resigned together with his Secretary of Trade and Industry. I just want to clear my name, then I will go." 88

As the political isolation of the petitioner worsened, the people's call Again, this is high grade evidence that the petitioner has
for his resignation intensified. The call reached a new crescendo when resigned. The intent to resign is clear when he said "x x x Ayoko
the eleven (11) members of the impeachment tribunal refused to open na masyado nang masakit." "Ayoko na" are words of resignation.
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 The second round of negotiation resumed at 7:30 a.m. According
number grew exponentially. Rallies and demonstration quickly spread to the Angara Diary, the following happened:
to the countryside like a brush fire.
"Opposition's deal
As events approached January 20, we can have an authoritative
window on the state of mind of the petitioner. The window is 7:30 a.m. – Rene arrives with Bert Romulo and (Ms.
provided in the "Final Days of Joseph Ejercito Estrada," the diary of Macapagal's spokesperson) Rene Corona. For this round, I
Executive Secretary Angara serialized in the Philippine Daily am accompanied by Dondon Bagatsing and Macel.
Inquirer.79 The Angara Diary reveals that in the morning of January
19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to Rene pulls out a document titled "Negotiating Points." It
handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled reads:
Secretary Angara into his small office at the presidential residence and
exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this '1. The President shall sign a resignation document within
is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the the day, 20 January 2001, that will be effective on
petitioner decided to call for a snap presidential election and stressed Wednesday, 24 January 2001, on which day the Vice
he would not be a candidate. The proposal for a snap election President will assume the Presidency of the Republic of the
for president in May where he would not be a candidate is an Philippines.
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 2. Beginning to day, 20 January 2001, the transition process
petitioner and dramatically announced the AFP's withdrawal of support for the assumption of the new administration shall
from the petitioner and their pledge of support to respondent Arroyo. commence, and persons designated by the Vice President to
The seismic shift of support left petitioner weak as a president. various positions and offices of the government shall start
According to Secretary Angara, he asked Senator Pimentel to advise their orientation activities in coordination with the incumbent
petitioner to consider the option of "dignified exit or officials concerned.
resignation."81 Petitioner did not disagree but listened
intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., 3. The Armed Forces of the Philippines and the Philippine
Senator Pimentel repeated to the petitioner the urgency of making a National Police shall function under the Vice President as
graceful and dignified exit. He gave the proposal a sweetener by national military and police authority effective immediately.
saying that petitioner would be allowed to go abroad with enough
funds to support him and his family.83 Significantly, the petitioner
4. The Armed Forced of the Philippines, through its Chief of
expressed no objection to the suggestion for a graceful and
Staff, shall guarantee the security of the President and his
dignified exit but said he would never leave the country. 84 At
family as approved by the national military and police
10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
authority (Vice President).
(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 5. It is to be noted that the Senate will open the second
concerned with the five-day grace period he could stay in the envelope in connection with the alleged savings account of
palace. It was a matter of time. the President in the Equitable PCI Bank in accordance with
the rules of the Senate, pursuant to the request to the
Senate President.
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 Our deal
and orderly transfer of power."86 There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this We bring out, too, our discussion draft which reads:
stage, the problem was already about a peaceful and orderly
transfer of power. The resignation of the petitioner was
implied. The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful Saturday. '1. A transition will occur and take place on Wednesday, 24
The negotiation was limited to three (3) points: (1) the transition January 2001, at which time President Joseph Ejercito
period of five days after the petitioner's resignation; (2) the guarantee Estrada will turn over the presidency to Vice President Gloria
of the safety of the petitioner and his family, and (3) the agreement to Macapagal-Arroyo.
open the second envelope to vindicate the name of the
petitioner.87 Again, we note that the resignation of petitioner '2. In return, President Estrada and his families are
was not a disputed point. The petitioner cannot feign guaranteed security and safety of their person and property
 throughout their natural lifetimes. Likewise, President '4. The AFP and the Philippine National Police (PNP) shall
Estrada and his families are guarantee freedom from function under the Vice President as national military and
persecution or retaliation from government and the private police authorities.
sector throughout their natural lifetimes.
'5. Both parties request the impeachment court to open the
This commitment shall be guaranteed by the Armed Forces second envelope in the impeachment trial, the contents of
of the Philippines (AFP) through the Chief of Staff, as which shall be offered as proof that the subject savings
approved by the national military and police authorities – account does not belong to the President.
Vice President (Macapagal).
The Vice President shall issue a public statement in the form
'3. Both parties shall endeavor to ensure that the Senate and tenor provided for in Annex "B" heretofore attached to
sitting as an impeachment court will authorize the opening this agreement.
of the second envelope in the impeachment trial as proof
that the subject savings account does not belong to
11:20 a.m. – I am all set to fax General Reyes and Nene
President Estrada.
Pimentel our agreement, signed by our side and awaiting the
signature of the United opposition.
'4. During the five-day transition period between 20 January
2001 and 24 January 2001 (the 'Transition Period"), the
And then it happens. General Reyes calls me to say that the
incoming Cabinet members shall receive an appropriate
Supreme Court has decided that Gloria Macapagal-Arroyo is
briefing from the outgoing Cabinet officials as part of the
President and will be sworn in at 12 noon.
orientation program.

'Bakit hindi naman kayo nakahintay? Paano na ang

During the Transition Period, the AFP and the Philippine
agreement (why couldn't you wait? What about the
National Police (PNP) shall function Vice President
agreement)?'  I asked.
(Macapagal) as national military and police authorities.

Reyes answered: 'Wala na, sir (it's over, sir).'

Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as
affixed to this agreement and insure faithful implementation I ask him: Di yung  transition period, moot and academic
and observance thereof. na?'

Vice President Gloria Macapagal-Arroyo shall issue a public And General Reyes answers: ' Oo nga, I  delete na natin,  sir
statement in the form and tenor provided for in "Annex A" (yes, we're deleting the part).'
heretofore attached to this agreement."89
Contrary to subsequent reports, I do not react and say that
The second round of negotiation cements the reading that the there was a double cross.
petitioner has resigned. It will be noted that during this second round
of negotiation, the resignation of the petitioner was again treated as a But I immediately instruct Macel to delete the first provision
given fact. The only unsettled points at that time were the measures to on resignation since this matter is already moot and
be undertaken by the parties during and after the transition period. academic. Within moments, Macel erases the first provision
and faxes the documents, which have been signed by
According to Secretary Angara, the draft agreement, which was myself, Dondon and Macel, to Nene Pimentel and General
premised on the resignation of the petitioner was further refined. It Reyes.
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 I direct Demaree Ravel to rush the original document to
Opposition. However, the signing by the party of the respondent General Reyes for the signatures of the other side, as it is
Arroyo was aborted by her oath-taking. The Angara diary narrates the important that the provisions on security, at least, should be
fateful events, viz;90 respected.

"xxx I then advise the President that the Supreme Court has ruled
that Chief Justice Davide will administer the oath to Gloria at
11:00 a.m. – Between General Reyes and myself, there is a 12 noon.
firm agreement on the five points to effect a peaceful
transition. I can hear the general clearing all these points The President is too stunned for words:
with a group he is with. I hear voices in the background.

Final meal
Agreement.

12 noon – Gloria takes her oath as president of the Republic

The agreement starts: 1. The President shall resign today, of the Philippines.
20 January 2001, which resignation shall be effective on 24
January 2001, on which day the Vice President will assume
the presidency of the Republic of the Philippines. 12:20 p.m. – The PSG distributes firearms to some people
inside the compound.
xxx
The president is having his final meal at the presidential
Residence with the few friends and Cabinet members who
The rest of the agreement follows: have gathered.

2. The transition process for the assumption of the new By this time, demonstrators have already broken down the
administration shall commence on 20 January 2001, wherein first line of defense at Mendiola. Only the PSG is there to
persons designated by the Vice President to various protect the Palace, since the police and military have already
government positions shall start orientation activities with withdrawn their support for the President.
incumbent officials.

1 p.m. – The President's personal staff is rushing to pack as

'3. The Armed Forces of the Philippines through its Chief of many of the Estrada family's personal possessions as they
Staff, shall guarantee the safety and security of the can.
President and his families throughout their natural lifetimes
as approved by the national military and police authority –
Vice President. During lunch, Ronnie Puno mentions that the president
needs to release a final statement before leaving
Malacañang.
 The statement reads: At twelve o'clock noon today, Vice petitioner's letter and this shall be discussed in issue number III of this
President Gloria Macapagal-Arroyo took her oath as Decision.
President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and
After petitioner contended that as a matter of fact he did not resign,
serious doubts about the legality and constitutionality of her
he also argues that he could not resign as a matter of law. He relies on
proclamation as President, I do not wish to be a factor that
section 12 of RA No. 3019, otherwise known as the Anti-graft and
will prevent the restoration of unity and order in our civil
Corrupt Practices Act, which allegedly prohibits his resignation, viz:
society.

"Sec. 12. No public officer shall be allowed to resign or retire

It is for this reason that I now leave Malacañang Palace, the
pending an investigation, criminals or administrative, or
seat of the presidency of this country, for the sake of peace
pending a prosecution against him, for any offense under
and in order to begin the healing process of our nation. I
this Act or under the provisions of the Revised Penal Code
leave the Palace of our people with gratitude for the
on bribery."
opportunities given to me for service to our people. I will not
shirk from any future challenges that may come ahead in the
same service of our country. A reading of the legislative history of RA No. 3019 will hardly provide
any comfort to the petitioner. RA No. 3019 originated form Senate Bill
No. 293. The original draft of the bill, when it was submitted to the
I call on all my supporters and followers to join me in the
Senate, did not contain a provision similar to section 12 of the law as it
promotion of a constructive national spirit of reconciliation
now stands. However, in his sponsorship speech, Senator Arturo
and solidarity.
Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no
May the Almighty bless our country and our beloved people. 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
MABUHAY!"'
following provision was inserted as section 15:

It was curtain time for the petitioner.

"Sec. 15. Termination of office – No public official shall be
allowed to resign or retire pending an investigation, criminal
In sum, we hold that the resignation of the petitioner cannot be or administrative, or pending a prosecution against him, for
doubted. It was confirmed by his leaving Malacañang. In the press any offense under the Act or under the provisions of the
release containing his final statement, (1) he acknowledged the oath- Revised Penal Code on bribery.
taking of the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was leaving the
The separation or cessation of a public official form office
Palace, the seat of the presidency, for the sake of peace and in order
shall not be a bar to his prosecution under this Act for an
to begin the healing process of our nation. He did not say he was
offense committed during his incumbency."93
leaving the Palace due to any kind inability and that he was going to
re-assume the presidency as soon as the disability disappears: (3) he
expressed his gratitude to the people for the opportunity to serve The bill was vetoed by then President Carlos P. Garcia who questioned
them. Without doubt, he was referring to the past opportunity given the legality of the second paragraph of the provision and insisted that
him to serve the people as President (4) he assured that he will not the President's immunity should extend after his tenure.
shirk from any future challenge that may come ahead in the same
service of our country. Petitioner's reference is to a future challenge
Senate Bill No. 571, which was substantially similar Senate Bill No. 293,
after occupying the office of the president which he has given up; and
was thereafter passed. Section 15 above became section 13 under the
(5) he called on his supporters to join him in the promotion of a
new bill, but the deliberations on this particular provision mainly
constructive national spirit of reconciliation and solidarity. Certainly,
focused on the immunity of the President, which was one of the
the national spirit of reconciliation and solidarity could not be attained
reasons for the veto of the original bill. There was hardly any debate
if he did not give up the presidency. The press release was petitioner's
on the prohibition against the resignation or retirement of a public
valedictory, his final act of farewell. His presidency is now in the part
official with pending criminal and administrative cases against him. Be
tense.
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
It is, however, urged that the petitioner did not resign but only took a public official as a protective shield to stop the investigation of a
temporary leave dated January 20, 2001 of the petitioner sent to pending criminal or administrative case against him and to prevent his
Senate President Pimentel and Speaker Fuentebella is cited. Again, we prosecution under the Anti-Graft Law or prosecution for bribery under
refer to the said letter, viz: 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
"Sir.
retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or
By virtue of the provisions of Section II, Article VII of the prosecution, such resignation or retirement will not cause the dismissal
Constitution, I am hereby transmitting this declaration that I of the criminal or administrative proceedings against him. He cannot
am unable to exercise the powers and duties of my office. use his resignation or retirement to avoid prosecution.
By operation of law and the Constitution, the Vice President
shall be the Acting president.
There is another reason why petitioner's contention should be rejected.
In the cases at bar, the records show that when petitioner resigned on
(Sgd.) Joseph Ejercito Estrada" 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
To say the least, the above letter is wrapped in mystery.91 The 0-00-1758. While these cases have been filed, the respondent
pleadings filed by the petitioner in the cases at bar did not discuss, Ombudsman refrained from conducting the preliminary investigation of
may even intimate, the circumstances that led to its preparation. the petitioner for the reason that as the sitting President then,
Neither did the counsel of the petitioner reveal to the Court these petitioner was immune from suit. Technically, the said cases cannot be
circumstances during the oral argument. It strikes the Court as strange considered as pending for the Ombudsman lacked jurisdiction to act on
that the letter, despite its legal value, was never referred to by the them. Section 12 of RA No. 3019 cannot therefore be invoked by the
petitioner during the week-long crisis. To be sure, there was not the petitioner for it contemplates of cases whose investigation or
slightest hint of its existence when he issued his final press release. It prosecution do not suffer from any insuperable legal obstacle like the
was all too easy for him to tell the Filipino people in his press release immunity from suit of a sitting President.
that he was temporarily unable to govern and that he was leaving the
reins of government to respondent Arroyo for the time bearing. Under Petitioner contends that the impeachment proceeding is an
any circumstance, however, the mysterious letter cannot negate the administrative investigation that, under section 12 of RA 3019, bars
resignation of the petitioner. If it was prepared before the press him from resigning. We hold otherwise. The exact nature of an
release of the petitioner clearly as a later act. If, however, it was impeachment proceeding is debatable. But even
prepared after the press released, still, it commands scant legal assuming arguendo that it is an administrative proceeding, it can not
significance. Petitioner's resignation from the presidency cannot be the be considered pending at the time petitioner resigned because the
subject of a changing caprice nor of a whimsical will especially if the process already broke down when a majority of the senator-judges
resignation is the result of his reputation by the people. There is voted against the opening of the second envelope, the public and
another reason why this Court cannot given any legal significance to 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 EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
pending against petitioner when he resigned. SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN
THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
III

WHEREAS, as a consequence of the people's loss of

Whether or not the petitioner Is only temporarily unable to
confidence on the ability of former President Joseph Ejercito
Act as President.
Estrada to effectively govern, the Armed Forces of the
Philippines, the Philippine National Police and majority of his
We shall now tackle the contention of the petitioner that he is merely cabinet had withdrawn support from him;
temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave. As aforestated, the
WHEREAS, upon authority of an en banc resolution of the
inability claim is contained in the January 20, 2001 letter of petitioner
Supreme Court, Vice President Gloria Macapagal-Arroyo was
sent on the same day to Senate President Pimentel and Speaker
sworn in as President of the Philippines on 20 January 2001
Fuentebella.
before Chief Justice Hilario G. Davide, Jr.;

Petitioner postulates that respondent Arroyo as Vice President has no

WHEREAS, immediately thereafter, members of the
power to adjudge the inability of the petitioner to discharge the powers
international community had extended their recognition to
and duties of the presidency. His significant submittal is that "Congress
Her Excellency, Gloria Macapagal-Arroyo as President of the
has the ultimate authority under the Constitution to determine whether
Republic of the Philippines;
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 WHEREAS, Her Excellency, President Gloria Macapagal-
leave and respondent Arroyo is only an Acting President. Arroyo has espoused a policy of national healing and
reconciliation with justice for the purpose of national unity
and development;
An examination of section 11, Article VII is in order. It provides:

WHEREAS, it is axiomatic that the obligations of the

"SEC. 11. Whenever the President transmits to the President
government cannot be achieved if it is divided, thus by
of the Senate and the Speaker of the House of
reason of the constitutional duty of the House of
Representatives his written declaration that he is unable to
Representatives as an institution and that of the individual
discharge the powers and duties of his office, and until he
members thereof of fealty to the supreme will of the people,
transmits to them a written declaration to the contrary, such
the House of Representatives must ensure to the people a
powers and duties shall be discharged by the Vice-President
stable, continuing government and therefore must remove
as Acting President.
all obstacles to the attainment thereof;

Whenever a majority of all the Members of the Cabinet

WHEREAS, it is a concomitant duty of the House of
transmit to the President of the Senate and to the Speaker
Representatives to exert all efforts to unify the nation, to
of the House of Representatives their written declaration
eliminate fractious tension, to heal social and political
that the President is unable to discharge the powers and
wounds, and to be an instrument of national reconciliation
duties of his office, the Vice-President shall immediately
and solidarity as it is a direct representative of the various
assume the powers and duties of the office as Acting
segments of the whole nation;
President.

WHEREAS, without surrending its independence, it is vital for

Thereafter, when the President transmits to the President of
the attainment of all the foregoing, for the House of
the Senate and to the Speaker of the House of
Representatives to extend its support and collaboration to
Representatives his written declaration that no inability
the administration of Her Excellency, President Gloria
exists, he shall reassume the powers and duties of his office.
Macapagal-Arroyo, and to be a constructive partner in
Meanwhile, should a majority of all the Members of the
nation-building, the national interest demanding no less:
Cabinet transmit within five days to the President of the
Now, therefore, be it
Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to
discharge the powers and duties of his office, the Congress Resolved by the House of Representatives, To express its
shall decide the issue. For that purpose, the Congress shall support to the assumption into office by Vice President
convene, if it is not in session, within forty-eight hours, in Gloria Macapagal-Arroyo as President of the Republic of the
accordance with its rules and without need of call. Philippines, to extend its congratulations and to express its
support for her administration as a partner in the attainment
of the Nation's goals under the Constitution.
If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve days
after it is required to assemble, determines by a two-thirds Adopted,
vote of both Houses, voting separately, that the President is
unable to discharge the powers and duties of his office, the
(Sgd.) FELICIANO BELMONTE JR.
Vice-President shall act as President; otherwise, the
Speaker
President shall continue exercising the powers and duties of
his office."
This Resolution was adopted by the House of
Representatives on January 24, 2001.
That is the law. Now, the operative facts:

(Sgd.) ROBERTO P. NAZARENO

1. Petitioner, on January 20, 2001, sent the above
Secretary General"
letter claiming inability to the Senate President and
Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her On February 7, 2001, the House of the Representatives passed House
oath of office as President on January 20, 2001 at Resolution No. 17898 which states:
about 12:30 p.m.;
3. Despite receipt of the letter, the House of "RESOLUTION CONFIRMING PRESIDENT GLORIA
Representatives passed on January 24, 2001 MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
House Resolution No. 175;96 TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states: WHEREAS, there is a vacancy in the Office of the Vice
President due to the assumption to the Presidency of Vice
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE President Gloria Macapagal-Arroyo;
OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE
BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS WHEREAS, pursuant to Section 9, Article VII of the
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Constitution, the President in the event of such vacancy shall
nominate a Vice President from among the members of the WHEREAS, Her Excellency, President Gloria Macapagal-
Senate and the House of Representatives who shall assume Arroyo has nominated Senate Minority Leader Teofisto T.
office upon confirmation by a majority vote of all members Guingona, Jr. to the position of Vice President of the
of both Houses voting separately; Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal- WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
Arroyo has nominated Senate Minority Leader Teofisto T. endowed with integrity, competence and courage; who has
Guingona Jr., to the position of Vice President of the served the Filipino people with dedicated responsibility and
Republic of the Philippines; patriotism;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling
servant endowed with integrity, competence and courage; qualities of true statemanship, having served the
who has served the Filipino people with dedicated government in various capacities, among others, as Delegate
responsibility and patriotism; to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of
Justice, Senator of the land - which qualities merit his
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses
nomination to the position of Vice President of the Republic:
sterling qualities of true statesmanship, having served the
Now, therefore, be it
government in various capacities, among others, as Delegate
to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Resolved, as it is hereby resolved,  That the Senate confirm
Justice, Senator of the Philippines – qualities which merit his the nomination of Sen. Teofisto T. Guingona, Jr. as Vice
nomination to the position of Vice President of the Republic: President of the Republic of the Philippines.
Now, therefore, be it
Adopted,
Resolved as it is hereby resolved by the House of
Representatives, That the House of Representatives confirms
(Sgd.) AQUILINO Q. PIMENTEL JR.
the nomination of Senator Teofisto T. Guingona, Jr. as the
President of the Senate
Vice President of the Republic of the Philippines.

This Resolution was adopted by the Senate on February 7,

Adopted,
2001.

(Sgd.) FELICIANO BELMONTE JR.

(Sgd.) LUTGARDO B. BARBO
Speaker
Secretary of the Senate"

This Resolution was adopted by the House of

On the same date, February 7, the Senate likewise
Representatives on February 7, 2001.
passed Senate Resolution No. 83101 which states:

(Sgd.) ROBERTO P. NAZARENO

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT
Secretary General"
COURT IS FUNCTUS OFFICIO

(4) Also, despite receipt of petitioner's letter claiming

Resolved, as it is hereby resolved.  That the Senate recognize
inability, some twelve (12) members of the Senate signed
that the Impeachment Court is functus officio and has been
the following:
terminated.

"RESOLUTION
Resolved, further,  That the Journals of the Impeachment
Court on Monday, January 15, Tuesday, January 16 and
WHEREAS, the recent transition in government offers the Wednesday, January 17, 2001 be considered approved.
nation an opportunity for meaningful change and challenge;
Resolved, further,  That the records of the Impeachment
WHEREAS, to attain desired changes and overcome Court including the "second envelope" be transferred to the
awesome challenges the nation needs unity of purpose and Archives of the Senate for proper safekeeping and
resolve cohesive resolute (sic) will; preservation in accordance with the Rules of the Senate.
Disposition and retrieval thereof shall be made only upon
written approval of the Senate president.
WHEREAS, the Senate of the Philippines has been the forum
for vital legislative measures in unity despite diversities in
perspectives; Resolved, finally. That all parties concerned be furnished
copies of this Resolution.
WHEREFORE, we recognize and express support to the new
government of President Gloria Macapagal-Arroyo and Adopted,
resolve to discharge and overcome the nation's
challenges." 99
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
On February 7, the Senate also passed Senate Resolution
No. 82100 which states:
This Resolution was adopted by the Senate on February 7,
2001.
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T.
(Sgd.) LUTGARDO B. BARBO
GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF
Secretary of the Senate"
THE PHILIPPINES

(5) On February 8, the Senate also passed Resolution No.

WHEREAS, there is vacancy in the Office of the Vice
84 "certifying to the existence of vacancy in the Senate and calling on
President due to the assumption to the Presidency of Vice
the COMELEC to fill up such vacancy through election to be held
President Gloria Macapagal-Arroyo;
simultaneously with the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth (13th) highest number of
WHEREAS, pursuant to Section 9 Article VII of the votes shall serve only for the unexpired term of Senator Teofisto T.
Constitution, the President in the event of such vacancy shall Guingona, Jr.'
nominate a Vice President from among the members of the
Senate and the House of Representatives who shall assume
(6) Both houses of Congress started sending bills to be signed
office upon confirmation by a majority vote of all members
into law by respondent Arroyo as President.
of both Houses voting separately;
(7) Despite the lapse of time and still without any functioning Cabinet, Philippine Commission of the Philippine Assembly. Public
without any recognition from any sector of government, and without policy forbids it.
any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his
Neither does this principle of nonliability mean that the chief
inability to govern is only momentary.
executive may not be personally sued at all in relation to
acts which he claims to perform as such official. On the
What leaps to the eye from these irrefutable facts is that both contrary, it clearly appears from the discussion heretofore
houses of Congress have recognized respondent Arroyo as the had, particularly that portion which touched the liability of
President. Implicitly clear in that recognition is the premise judges and drew an analogy between such liability and that
that the inability of petitioner Estrada. Is no longer temporary. of the Governor-General, that the latter is liable when he
Congress has clearly rejected petitioner's claim of inability. acts in a case so plainly outside of his power and authority
that he can not be said to have exercised discretion in
determining whether or not he had the right to act. What is
The question is whether this Court has jurisdiction to review
held here is that he will be protected from personal liability
the claim of temporary inability of petitioner Estrada and
for damages not only when he acts within his authority, but
thereafter revise the decision of both Houses of
also when he is without authority, provided he actually used
Congress recognizing respondent Arroyo as president of the
discretion and judgement, that is, the judicial faculty, in
Philippines. Following Tañada v. Cuenco,102 we hold that this Court
determining whether he had authority to act or not. In other
cannot exercise its judicial power or this is an issue "in regard to which
words, in determining the question of his authority. If he
full discretionary authority has been delegated to the Legislative xxx
decide wrongly, he is still protected provided the question of
branch of the government." Or to use the language in Baker vs.
his authority was one over which two men, reasonably
Carr,103 there is a "textually demonstrable or a lack of judicially
qualified for that position, might honestly differ; but he s not
discoverable and manageable standards for resolving it." Clearly, the
protected if the lack of authority to act is so plain that two
Court cannot pass upon petitioner's claim of inability to discharge the
such men could not honestly differ over its determination. In
power and duties of the presidency. The question is political in
such case, be acts, not as Governor-General but as a private
nature and addressed solely to Congress by constitutional fiat.
individual, and as such must answer for the consequences of
It is a political issue, which cannot be decided by this Court without
his act."
transgressing the principle of separation of powers.

Mr. Justice Johnson underscored the consequences if the Chief

In fine, even if the petitioner can prove that he did not resign,
Executive was not granted immunity from suit, viz "xxx. Action upon
still, he cannot successfully claim that he is a President on
important matters of state delayed; the time and substance of the
leave on the ground that he is merely unable to govern
chief executive spent in wrangling litigation; disrespect engendered for
temporarily. That claim has been laid to rest by Congress and
the person of one of the highest officials of the state and for the office
the decision that respondent Arroyo is the de jure, president
he occupies; a tendency to unrest and disorder resulting in a way, in
made by a co-equal branch of government cannot be reviewed
distrust as to the integrity of government itself."105
by this Court.

Our 1935 Constitution took effect but it did not contain any specific
IV
provision on executive immunity. Then came the tumult of the martial
law years under the late President Ferdinand E. Marcos and the 1973
Whether or not the petitioner enjoys immunity from suit. Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII
Assuming he enjoys immunity, the extent of the immunity stated:

Petitioner Estrada makes two submissions: first, the cases filed "The President shall be immune from suit during his tenure.
against him before the respondent Ombudsman should be prohibited Thereafter, no suit whatsoever shall lie for official acts done
because he has not been convicted in the impeachment proceedings by him or by others pursuant to his specific orders during his
against him; and second, he enjoys immunity from all kinds of suit, tenure.
whether criminal or civil.
The immunities herein provided shall apply to the incumbent
Before resolving petitioner's contentions, a revisit of our legal history President referred to in Article XVII of this Constitution.
executive immunity will be most enlightening. The doctrine of
executive immunity in this jurisdiction emerged as a case law. In In his second Vicente G. Sinco professional Chair lecture entitled,
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and "Presidential Immunity and All The King's Men: The Law of Privilege As
Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner a Defense To Actions For Damages,"106 petitioner's learned counsel,
W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. former Dean of the UP College of Law, Atty. Pacificao Agabin,
Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret brightened the modifications effected by this constitutional amendment
Service of the City of Manila, respectively, for damages for allegedly on the existing law on executive privilege. To quote his disquisition:
conspiring to deport him to China. In granting a writ of prohibition, this
Court, speaking thru Mr. Justice Johnson, held:
"In the Philippines, though, we sought to do the Americans
one better by enlarging and fortifying the absolute immunity
" The principle of nonliability, as herein enunciated, does not concept. First, we extended it to shield the President not
mean that the judiciary has no authority to touch the acts of only form civil claims but also from criminal cases and other
the Governor-General; that he may, under cover of his claims. Second, we enlarged its scope so that it would cover
office, do what he will, unimpeded and unrestrained. Such a even acts of the President outside the scope of official
construction would mean that tyranny, under the guise of duties. And third, we broadened its coverage so as to include
the execution of the law, could walk defiantly abroad, not only the President but also other persons, be they
destroying rights of person and of property, wholly free from government officials or private individuals, who acted upon
interference of courts or legislatures. This does not mean, orders of the President. It can be said that at that point most
either that a person injured by the executive authority by an of us were suffering from AIDS (or absolute immunity
act unjustifiable under the law has n remedy, but must defense syndrome)."
submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the
The Opposition in the then Batasan Pambansa sought the repeal of
members of the Legislature, may not be personally mulcted
this Marcosian concept of executive immunity in the 1973 Constitution.
in civil damages for the consequences of an act executed in
The move was led by them Member of Parliament, now Secretary of
the performance of his official duties. The judiciary has full
Finance, Alberto Romulo, who argued that the after incumbency
power to, and will, when the mater is properly presented to
immunity granted to President Marcos violated the principle that a
it and the occasion justly warrants it, declare an act of the
public office is a public trust. He denounced the immunity as a return
Governor-General illegal and void and place as nearly as
to the anachronism "the king can do no wrong."107 The effort failed.
possible in status quo any person who has been deprived his
liberty or his property by such act. This remedy is assured to
every person, however humble or of whatever country, The 1973 Constitution ceased to exist when President Marcos was
when his personal or property rights have been invaded, ousted from office by the People Power revolution in 1986. When the
even by the highest authority of the state. The thing which 1987 Constitution was crafted, its framers did not reenact the
the judiciary can not do is mulct the Governor-General executive immunity provision of the 1973 Constitution. The following
personally in damages which result from the performance of explanation was given by delegate J. Bernas vis:108
his official duty, any more than it can a member of the
 "Mr. Suarez. Thank you. from liability for unlawful acts and conditions. 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
The last question is with reference to the Committee's
trespasser.114
omitting in the draft proposal the immunity provision for the
President. I agree with Commissioner Nolledo that the
Committee did very well in striking out second sentence, at Indeed, critical reading of current literature on executive immunity will
the very least, of the original provision on immunity from reveal a judicial disinclination to expand the privilege especially when it
suit under the 1973 Constitution. But would the Committee impedes the search for truth or impairs the vindication of a right. In
members not agree to a restoration of at least the first the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting
sentence that the President shall be immune from suit President, was subpoenaed to produce certain recordings and
during his tenure, considering that if we do not provide him documents relating to his conversations with aids and advisers. Seven
that kind of an immunity, he might be spending all his time advisers of President Nixon's associates were facing charges of
facing litigation's, as the President-in-exile in Hawaii is now conspiracy to obstruct Justice and other offenses, which were
facing litigation's almost daily? committed in a burglary of the Democratic National Headquarters in
Washington's Watergate Hotel during the 972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator.
Fr. Bernas. The reason for the omission is that we consider it
President Nixon moved to quash the subpoena on the ground, among
understood in present jurisprudence that during his tenure
others, that the President was not subject to judicial process and that
he is immune from suit.
he should first be impeached and removed from office before he could
be made amenable to judicial proceedings. The claim was rejected by
Mr. Suarez. So there is no need to express it here. the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a
Fr. Bernas. There is no need. It was that way before. The criminal trial is based only on the generalized interest in confidentiality,
only innovation made by the 1973 Constitution was to make it cannot prevail over the fundamental demands of due process of law
that explicit and to add other things. 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."
Mr. Suarez. On that understanding, I will not press for any Recently, the US Supreme Court had the occasion to reiterate this
more query, Madam President. doctrine in the case of Clinton v. Jones117 where it held that the US
President's immunity from suits for money damages arising out of their
I think the Commissioner for the clarifications." official acts is inapplicable to unofficial conduct.

We shall now rule on the contentions of petitioner in the light of this There are more reasons not to be sympathetic to appeals to stretch
history. We reject his argument that he cannot be prosecuted for the the scope of executive immunity in our jurisdiction. One of the great
reason that he must first be convicted in the impeachment themes of the 1987 Constitution is that a public office is a public
proceedings. The impeachment trial of petitioner Estrada was aborted trust.118 It declared as a state policy that "the State shall maintain
by the walkout of the prosecutors and by the events that led to his loss honesty and integrity in the public service and take positive and
of the presidency. Indeed, on February 7, 2001, the Senate passed effective measures against graft and corruptio."119 it ordained that
Senate Resolution No. 83 "Recognizing that the Impeachment Court is "public officers and employees must at all times be accountable to the
Functus Officio."109 Since, the Impeachment Court is now functus people, serve them with utmost responsibility, integrity, loyalty, and
officio, it is untenable for petitioner to demand that he should first be efficiency act with patriotism and justice, and lead modest lives."120 It
impeached and then convicted before he can be prosecuted. The plea set the rule that 'the right of the State to recover properties unlawfully
if granted, would put a perpetual bar against his prosecution. Such a acquired by public officials or employees, from them or from their
submission has nothing to commend itself for it will place him in a nominees or transferees, shall not be barred by prescription, latches or
better situation than a non-sitting President who has not been estoppel."121 It maintained the Sandiganbayan as an anti-graft
subjected to impeachment proceedings and yet can be the object of a court.122 It created the office of the Ombudsman and endowed it with
criminal prosecution. To be sure, the debates in the Constitutional enormous powers, among which is to "investigate on its own, or on
Commission make it clear that when impeachment proceedings have complaint by any person, any act or omission of any public official,
become moot due to the resignation of the President, the proper employee, office or agency, when such act or omission appears to be
criminal and civil cases may already be filed against him, viz:110 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
"xxx enjoys immunity from suit for criminal acts committed during his
incumbency.
Mr. Aquino. On another point, if an impeachment proceeding
has been filed against the President, for example, and the V
President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how
does it affect the impeachment proceeding? Will it be Whether or not the prosecution of petitioner
necessarily dropped?
Estrada should be enjoined due to prejudicial publicity
Mr. Romulo. If we decide the purpose of impeachment to
remove one from office, then his resignation would render Petitioner also contends that the respondent Ombudsman should be
the case moot and academic. However, as the provision stopped from conducting the investigation of the cases filed against
says, the criminal and civil aspects of it may continue in the him due to the barrage of prejudicial publicity on his guilt. He submits
ordinary courts." that the respondent Ombudsman has developed bias and is all set file
the criminal cases violation of his right to due process.
This is in accord with our ruling In Re: Saturnino Bermudez111 that
'incumbent Presidents are immune from suit or from being brought to There are two (2) principal legal and philosophical schools of thought
court during the period of their incumbency and tenure" but not on how to deal with the rain of unrestrained publicity during the
beyond. Considering the peculiar circumstance that the impeachment investigation and trial of high profile cases.125 The British approach the
process against the petitioner has been aborted and thereafter he lost problem with the presumption that publicity will prejudice a jury. Thus,
the presidency, petitioner Estrada cannot demand as a condition sine English courts readily stay and stop criminal trials when the right of an
qua non to his criminal prosecution before the Ombudsman that he be accused to fair trial suffers a threat.126 The American approach is
convicted in the impeachment proceedings. His reliance on the case of different. US courts assume a skeptical approach about the potential
Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for effect of pervasive publicity on the right of an accused to a fair trial.
they have a different factual milieu. They have developed different strains of tests to resolve this issue, i.e.,
substantial; probability of irreparable harm, strong likelihood, clear and
We now come to the scope of immunity that can be claimed by present danger, etc.
petitioner as a non-sitting President. The cases filed against petitioner
Estrada are criminal in character. They involve plunder, bribery and This is not the first time the issue of trial by publicity has been raised
graft and corruption. By no stretch of the imagination can these in this Court to stop the trials or annul convictions in high profile
crimes, especially plunder which carries the death penalty, be covered criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the
by the alleged mantle of immunity of a non-sitting president. Petitioner case of Larranaga vs. court of Appeals, et al.,129 we laid down the
cannot cite any decision of this Court licensing the President to commit doctrine that:
criminal acts and wrapping him with post-tenure immunity from
liability. It will be anomalous to hold that immunity is an inoculation
 "We cannot sustain appellant's claim that he was denied the demonstrates conclusively that at the time this
right to impartial trial due to prejudicial publicity. It is true Nation's organic laws were adopted, criminal trials
that the print and broadcast media gave the case at bar both here and in England had long been
pervasive publicity, just like all high profile and high stake presumptively open, thus giving assurance that
criminal trials. Then and now, we rule that the right of an the proceedings were conducted fairly to all
accused to a fair trial is not incompatible to a free press. To concerned and discouraging perjury, the
be sure, responsible reporting enhances accused's right to a misconduct of participants, or decisions based on
fair trial for, as well pointed out, a responsible press has secret bias or partiality. In addition, the significant
always been regarded as the criminal field xxx. The press community therapeutic value of public trials was
does not simply publish information about trials but guards recognized when a shocking crime occurs a
against the miscarriage of justice by subjecting the police, community reaction of outrage and public protest
prosecutors, and judicial processes to extensive public often follows, and thereafter the open processes
scrutiny and criticism. of justice serve an important prophylactic purpose,
providing an outlet for community concern,
hostility and emotion. To work effectively, it is
Pervasive publicity is not per se prejudicial to the right of an
important that society's criminal process satisfy
accused to fair trial. The mere fact that the trial of appellant
the appearance of justice,' Offutt v. United States,
was given a day-to-day, gavel-to-gavel coverage does not by
348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can
itself prove that the publicity so permeated the mind of the
best be provided by allowing people to observe
trial judge and impaired his impartiality. For one, it is
such process. From this unbroken, uncontradicted
impossible to seal the minds of members of the bench from
history, supported by reasons as valid today as in
pre-trial and other off-court publicity of sensational criminal
centuries past, it must be concluded that a
cases. The state of the art of our communication system
presumption of openness inheres in the very
brings news as they happen straight to our breakfast tables
nature of a criminal trial under this Nation's
and right to our bedrooms. These news form part of our
system of justice, Cf., e,g., Levine v. United
everyday menu of the facts and fictions of life. For another,
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
our idea of a fair and impartial judge is not that of a hermit
b. The freedoms of speech. Press and assembly,
who is out of touch with the world. We have not installed
expressly guaranteed by the First Amendment,
the jury system whose members are overly protected from
share a common core purpose of assuring
publicity lest they lose there impartially. xxx xxx xxx. Our
freedom of communication on matters relating to
judges are learned in the law and trained to disregard off-
the functioning of government. In guaranteeing
court evidence and on-camera performances of parties to
freedom such as those of speech and press, the
litigation. Their mere exposure to publications and publicity
First Amendment can be read as protecting the
stunts does not per se fatally infect their impartiality.
right of everyone to attend trials so as give
meaning to those explicit guarantees; the First
At best, appellant can only conjure possibility of prejudice on Amendment right to receive information and ideas
the part of the trial judge due to the barrage of publicity that means, in the context of trials, that the guarantees
characterized the investigation and trial of the case. In of speech and press, standing alone, prohibit
Martelino, et al. v. Alejandro, et al., we rejected this government from summarily closing courtroom
standard of possibility of prejudice and adopted the test of doors which had long been open to the public at
actual prejudice as we ruled that to warrant a finding of the time the First Amendment was adopted.
prejudicial publicity, there must be allegation and proof that Moreover, the right of assembly is also relevant,
the judges have been unduly influenced, not simply that having been regarded not only as an independent
they might be, by the barrage of publicity. In the case at a right but also as a catalyst to augment the free
bar, the records do not show that the trial judge developed exercise of the other First Amendment rights with
actual bias against appellants as a consequence of the which the draftsmen deliberately linked it. A trial
extensive media coverage of the pre-trial and trial of his courtroom is a public place where the people
case. The totality of circumstances of the case does not generally and representatives of the media have a
prove that the trial judge acquired a fixed opinion as a result right to be present, and where their presence
of prejudicial publicity, which is incapable of change even by historically has been thought to enhance the
evidence presented during the trial. Appellant has the integrity and quality of what takes place.
burden to prove this actual bias and he has not discharged c. Even though the Constitution contains no provision
the burden.' which be its terms guarantees to the public the
right to attend criminal trials, various fundamental
We expounded further on this doctrine in the subsequent case of rights, not expressly guaranteed, have been
Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz: recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal
trial is implicit in the guarantees of the First
"Again petitioners raise the effect of prejudicial publicity on Amendment: without the freedom to attend such
their right to due process while undergoing preliminary trials, which people have exercised for centuries,
investigation. We find no procedural impediment to its early important aspects of freedom of speech and of the
invocation considering the substantial risk to their liberty press be eviscerated.
while undergoing a preliminary investigation.
Be that as it may, we recognize that pervasive and
xxx prejudicial publicity under certain circumstances can deprive
an accused of his due process right to fair trial. Thus,
The democratic settings, media coverage of trials of in Martelino, et al. vs. Alejandro, et al., we held that to
sensational cases cannot be avoided and oftentimes, its warrant a finding of prejudicial publicity there must
excessiveness has been aggravated by kinetic developments be allegation and proof that the judges have been unduly
in the telecommunications industry. For sure, few cases can influenced, not simply that they might be, by the barrage of
match the high volume and high velocity of publicity that publicity. In the case at bar, we find nothing in the records
attended the preliminary investigation of the case at bar. that will prove that the tone and content of the publicity that
Our daily diet of facts and fiction about the case continues attended the investigation of petitioners fatally infected the
unabated even today. Commentators still bombard the public fairness and impartiality of the DOJ Panel. Petitioners cannot
with views not too many of which are sober and sublime. just rely on the subliminal effects of publicity on the sense of
Indeed, even the principal actors in the case – the NBI, the fairness of the DOJ Panel, for these are basically unbeknown
respondents, their lawyers and their sympathizers have and beyond knowing. To be sure, the DOJ Panel is
participated in this media blitz. The possibility of media composed of an Assistant Chief State Prosecutor and Senior
abuses and their threat to a fair trial notwithstanding, State Prosecutors. Their long experience in criminal
criminal trials cannot be completely closed to the press and investigation is a factor to consider in determining whether
public. In the seminal case of Richmond Newspapers, Inc. v. they can easily be blinded by the klieg lights of publicity.
Virginia, it was 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
xxx by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity
a. The historical evidence of the evolution of the with which they accommodated the discovery motions of
criminal trial in Anglo-American justice 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 petitioner133 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
investigation prosecutors the independence to make their own findings
and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled 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 findings 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.