Sunday, November 18, 2018
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With Due Respect

SC: Arroyo takeover constitutional

In his homily last Sunday, our parish priest, Fr. Reu Galoy, said that in his 23 years of spiritual life, he was never satisfied with his assignments. But he obeyed anyway. It reminded me that, during high school, I wanted to be a chemical engineer, but my strong-willed father directed me to be a lawyer, and to change course if after two years of preparatory law I still wanted to be an engineer. Sadly, during my first year in prelaw, he passed away and I had to obey his last great wish.

Limited choices. Truly, our decisions in life, whether personal, business, judicial, or otherwise, are limited by the attendant facts, rules, goals, means and time.

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Given the choice (and the attendant circumstances) between actively defending the Constitution and the rule of law on the one hand, and passively allowing the fast-unfolding Edsa 2 events to deteriorate to chaos, or to a revolutionary government and dictatorship, or to a coup d’état on the other, the Supreme Court courageously chose the first option, to defend the Constitution and the rule of law.

As I have said in a speech, “The Court descended from its lofty perch on Mt. Olympus to avert a civil strife and to save our constitutional system from collapse.”

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Though incredulous upon first hearing my proposal to induct the then Vice President when the then President was still in office, my esteemed colleagues—after a careful weighing of the pros and cons (which I do not have the space to detail now)—agreed unanimously that the Court must act decisively under the given circumstances and authorized the then Chief Justice to induct the VP as “acting president.” An oath as such was prepared by Justice Bernardo P. Pardo.

This is why when “ambushed” by the media just before noon of Jan. 20, 2001, CJ Hilario G. Davide Jr., accompanied by 11 associate justices, said he was going to the Edsa shrine “to induct the vice president as acting president.”

Arroyo sworn in. At the Edsa Shrine, the mood was electric. The emcee, Vicky Garchitorena, announced the arrival of the justices one by one. As the CJ’s name was called, the huge crowd chanted repeatedly, “Da-vi-de, Da-vi-de, Da-vi-de,” in awe of his sterling performance in presiding over the Senate impeachment court.

Arroyo was sworn in at 12:29 p.m., on Saturday, Jan. 20. The Pardo-prepared oath was used but the word “acting” was orally omitted by both Davide and Arroyo.

At the usual breakfast held after the flag ceremony the following Monday, Jan. 22, some of the justices, especially the three who were out of town on that crucial Jan. 20 but who gave their telephoned consent to the “acting” oath, were livid. Davide was absent. He was guest speaker at an outside function.

Upon his arrival that noon, Davide acknowledged the consensus to swear in Arroyo as acting president. However, taking into account the confluence of events, he decided on the spot to omit reading the word “acting.” Ever a gentleman, he humbly took full responsibility for the omission.

A long and heated debate ensued. Finally, the 15 justices agreed “unanimously to CONFIRM the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President … without prejudice to the disposition of any justiciable case which may be filed by a proper party.”

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Totality test. The “justiciable case” arose when Joseph Estrada filed suit to stop Ombudsman Aniano Desierto from criminally indicting him, claiming that as the president on leave, he was immune from criminal prosecution, and that

Arroyo was only an acting president. The case revolved around this constitutional provision:

“In case of death, permanent disability, removal from office, or resignation of the President, the Vice President shall become the President to serve the unexpired term.”

The path-breaking ponencia, penned by Justice (later Chief Justice) Reynato S. Puno, explained that resignation can be oral or written, express or implied. It ruled that the “totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue” showed clearly that Estrada “resigned as President.”

It patiently traced the facts showing “an authoritative window to his mind”: his “political isolation,” the diary of Executive Secretary Edgardo Angara indicating he had “intended to give up the presidency,” the negotiations for his “graceful and dignified exit” and “peaceful transfer of power,” his acknowledgment of Arroyo’s oath taking as president, “his leaving Malacañang,” his expression of “gratitude to the people for the opportunity to serve them,” etc.

My limited space bars a full summary of this landmark decision but it can be googled. Those interested in the truth should read it carefully before criticizing it. Then, perhaps, those who peddle the blatant falsehood that I concocted the theory of “constructive resignation” to justify Estrada’s ouster could learn a lesson or two in the responsible use of free speech.

True, I proposed the oathtaking of Arroyo in the early hours of Jan. 20 and joined the consensus that Arroyo should be inducted as acting president. But, having inhibited in Desierto vs Estrada, I did not and could not have espoused “constructive resignation.” This theory is not necessarily bad. What is bad is to ascribe it falsely to me and then to attack me for it.

After I had retired as CJ and after Estrada had been pardoned and released from confinement, he sought me out and asked: “I appointed six justices, yet none of them voted for me. Why?” See my answer next Sunday.

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Comments to chiefjusticepanganiban@hotmail.com

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TAGS: Constitution, Gloria Macapagal Arroyo, hilario davide
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