Legitimacy of Arroyo accession under a cloud

CANBERRA—In his column on Jan. 24, former chief justice Artemio Panganiban reopened the contentious issue on the constitutionality of the accession of then Vice President Gloria Macapagal-Arroyo to the presidency following the collapse of the administration of President Joseph Estrada on Jan. 20, 2001.

Arroyo was sworn in by then Chief Justice Hilario Davide Jr., who was accompanied by 11 associate justices, in an unprecedented intervention by the Supreme Court that marked the turbulent transfer of power during Edsa 2. On his way from the Supreme Court to the Edsa Shrine, site of the 1986 People Power Revolution, Davide startled the public demanding the ouster of Estrada when he told the news media that he was going to Edsa “to induct the Vice President as acting president.” In the actual oath-taking, both Davide, who had presided over the aborted impeachment trial of Estrada, and Arroyo orally omitted the word “acting”—an omission that plunged Philippine democracy into its most serious constitutional crisis since Edsa 1.

Panganiban was one of the closest associates of David in the high court’s activist decision to administer the oath to Arroyo. In his column, Panganiban wrote with melodramatic heroic flair; he had described in a speech that “the Court descended from its lofty perch on Mt. Olympus to avert a civil strife and to save our constitutional system from collapse.” He stopped short of calling the high court’s intervention a soft coup to avert a military coup that was actually brewing at the time, amid plots of generals in the Armed Forces’ chain of high command, led by then Chief of Staff Angelo Reyes, to withdraw support from their embattled commander in chief, who was engulfed in an impeachment trial over corruption charges.

In his column, Panganiban claimed that the high court faced a crucial dilemma in deciding to intervene. He wrote: “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.”

In reality, on the basis of Panganiban’s insider revelations, the Supreme Court was actually gripped in crisis, more critically than the constitutional system. According to his revelations, on Jan. 22, or two days after the justices trooped to Edsa to induct Arroyo, a long and heated debate broke out over the decision to orally omit the word “acting” in the oath. A number of the justices, particularly the three who were out of town on Jan. 20 but who gave their consent by telephone, were “livid,” according to Panganiban. The 15 justices finally agreed unanimously to confirm the authority given by the 12 members to Davide on Jan. 20, to administer the presidential oath of office to Arroyo “without prejudice to the disposition of any justiciable case which may be filed by a proper party.”

The “justiciable case” arose when Estrada filed suit to stop then Ombudsman Aniano Desierto from criminally indicting him, claiming that as 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.”

Panganiban wrote that in a ground-breaking ponencia written by Justice (later Chief Justice) Reynaldo S. Puno, it was pointed out that “resignation can be oral or written, express or implied,” and 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.”

The decision traced the facts showing “an authoritative window to his mind”—the diary of Executive Secretary Edgardo Angara (in his last two weeks in Malacañang). The diary, which was published exclusively by the Inquirer, indicated that Estrada 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.’”

Panganiban acknowledged that he proposed the administration of the oath to Arroyo in the early hours of Jan. 20, and “joined the consensus that Arroyo should be inducted as acting president.” He added: “But, having inhibited in Desierto vs Estrada, I did not and could not have espoused ‘constructive resignation.’”

“This theory is not necessarily bad,” he wrote, and said what he resented was that it was being “ascribed falsely” to him, and he was being attacked for it.

What Panganiban is really up to, it is hard to figure out. His rather active role in pushing Davide to bring the high court to administer the oath of office to Arroyo at Edsa is well documented by a number of sources. Is he trying to present himself with clean hands in the accession of Arroyo, whose legitimacy is under a cloud up to now?