Constitutionality of Edsa 1 and Edsa 2

This year will be marked by two milestones of our two people power revolutions: the 30th anniversary of Edsa 1 on Feb. 22-25 and the 15th anniversary of Edsa 2 on Jan. 16-20, which catapulted Corazon Cojuangco-Aquino and Gloria Macapagal-Arroyo, respectively, to the presidency.

Edsa 2. The Supreme Court characterized these historical events as “extra” and “intra” constitutional ways of upholding and protecting democracy, the Constitution, and the great libertarian and egalitarian principles overarching and underlying them.

Let me begin with Edsa 2, which was ignited 15 years ago on Jan. 16, 2001, by the walkout of 11 prosecutors from the Senate impeachment trial of President Joseph Ejercito Estrada and ended on Jan. 20, 2001, when he left his office and Vice President Arroyo ascended to the top post. Its constitutionality was upheld on March 2, 2001, by the unanimous 13-0 decision of the Supreme Court in Estrada vs Desierto.

As a participant in Edsa 2, I recorded the judicial events in my diary. Some parts (mainly the “spiritual”) of my narratives were highlighted in a speech I delivered on Feb. 19, 2002, at the University of Santo Tomas Central Seminary. The speech was published as Chapter 11 of my book, “Reforming the Judiciary.”

Printed by the Supreme Court, this tome was never sold in any bookstore or anywhere else; thus, contrary to some critics’ claims, it was never “withdrawn” from circulation. Copies are in archives, like the Court library.

Withdrawal of support. Recall that the prosecutors’ walkout was triggered by the refusal of the Senate, voting 11-10, to open the so-called second envelope that allegedly contained damning evidence showing that Estrada allegedly “held P3.3 billion in a secret bank account under the name ‘Jose Velarde.’” The Senate trial, at which Chief Justice Hilario G.

Davide Jr. presided, was covered live by TV-radio and “enjoyed the highest viewing rating.”

Estrada vs Desierto detailed the aftermath of the walkout thus: “In disgust, Senator [Aquilino] Pimentel [Jr.] resigned as Senate President. The (11-10) ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the Edsa Shrine and speeches full of sulphur were delivered against [Estrada] and the 11 senators.”

On Jan. 18, 2001, a “10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino monument on Ayala Avenue in Makati City to the Edsa Shrine to symbolize the people’s solidarity in demanding [Estrada’s] resignation. Students and teachers walked out of their classrooms in Metro Manila to show their concordance. Speakers in the continuing rallies at the Edsa Shrine, all masters of the physics of persuasion, attracted more and more people.”

On Jan. 19, the Armed Forces chief of staff, Gen. Angelo Reyes, defected and announced publicly, in the presence of the heads of all armed services, that the “130,000-strong members of the armed forces were withdrawing their support to the government.” A little later, Panfilo Lacson, the head of the Philippine National Police, made a similar announcement. Several Cabinet and sub-Cabinet officials followed suit.

After the Cabinet, the armed forces and the police withdrew their support from Estrada and pledged their allegiance to Arroyo, I knew that Estrada could no longer govern. Neither could Vice President Arroyo legally lead. Hence, there was no functioning government from that point.

Saving the Constitution. On Jan. 20, I woke up at around 4 a.m. On TV was a panel discussing the tense situation. The panel host grimly announced that Jaime Cardinal Sin, through Msgr. Socrates Villegas, was pleading with the demonstrators at the Edsa Shrine to refrain from marching to Malacañang and confronting a large pro-Estrada crowd massed there.

The demonstrators adamantly refused and said they would storm the presidential enclave by 6 a.m. and forcefully oust Estrada. I was aghast at the violence and bloodshed that would ensue. Images of past Mendiola “massacres” haunted me.

At around 5:30 a.m., I called up CJ Davide and explained that the imminent encounter in Malacañang would be bloody and chaotic. Estrada could no longer govern. Arroyo could take over only by declaring a revolutionary government which would obliterate the Constitution. The situation was ripe for a coup d’état.

To avoid a power vacuum and a coup, I asked him to swear in Arroyo by 12 noon. I opined that the demonstrators would probably refrain from marching to Malacañang upon learning that VP Arroyo would be installed as chief executive by noon. The extraordinary crisis needed an extraordinary solution.

Davide (and, later, my colleagues in the Court and media reporters) asked for a legal justification to swear in the Vice President when the incumbent President was still physically in his office. I replied that, while the text of the Constitution did not expressly cover the critical situation facing the nation, the CJ could lean on the grand maxim “Salus populi est suprema lex” (The welfare of the people is the supreme law) precisely to save our Constitution and our democratic system from destruction. To cut the long story short, Davide agreed and swore in Arroyo at 12:29 p.m. of that day.

Next Sunday, I will discuss how this milestone started by my proposal to Davide and approved by the justices to swear in an “acting president” metamorphosed into an oath for a “President” (without the word “acting”) and how, in turn, this metamorphosis was later unanimously judged constitutional by the Court, voting 13-0 (Davide and I inhibited).

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