RAUL PANGALANGAN (recently Dean of the University of the Philippines Law School) examines some of the decisions penned by Panganiban in his PDI column today and seems to pronounce him an economic liberal and a social conservative. I disagree with this assessment, because like his predecessor I believe Panganiban is philosophically a JUDICIAL ACTIVIST and a RELIGIOUS ZEALOT. I made the latter point in a Monday Commentary for the PDI entitled "Panganiban's Monotheistic Philippine Republic."
But I think today, I shall let Justice Panganiban speak for himself too, by reprinting in full a speech he gave to the University of Santo Tomas Central Seminary in February, 2002 That speech became Chapter 11 of his most controversial book, REFORMING THE JUDICIARY (Supreme Court Press, Padre Faura, Manila, Dec. 2002). Justice Panganiban tells the story of EDSA 2 like it has never been told before...and describes his religious philosophy right at the very beginning...
SAVING THE CONSTITUTIONAL SYSTEMNewspapers such as the Philippine Daily Inquirer and a generation of writers that participated in or lived through those events that swept JOSEPH ESTRADA off the stage of history, like to describe the Edsa II "people power event" as a "civilian-military uprising that overthrew a corrupt and dishonest leader." It is ironic that the same people who have ceaselessly been mythologizing the 2001 events that led to the overthrow of the corrupt and dishonest President Joseph Estrada, cannot now for the life of them, understand why there was no people power event in 2005 to overthrow the corrupt and dishonest leader, President Gloria Macapagal Arroyo. Having bought into their own myth-making, they steadfastly refuse to see that it was not the magic of "people power" that overthrew Joseph Estrada at at all, but a swift and secret JUDICIAL ACT by the Supreme Court, accomplished in the space of one Saturday morning on 20 January 2001. That JUDICIAL ACT was a FINDING OF FACT by thirteen of the assembled Justices led by their Chief, Hilario G. Davide, Jr. that on that very morning, JOSEPH ESTRADA was PERMANENTLY INCAPACITATED and that therefore the PRESIDENCY WAS VACANT. That determination of a FACT, was surprisingly based on a FAX TRANSMISSION from then VICE-PRESIDENT GLORIA MACAPAGAL ARROYO claiming that PRESIDENT JOSEPH ESTRADA was at that moment PERMANENTLY INCAPACITATED. A clear and utter falsehood, though two historic decisions of the Davide Court state otherwise.
by Justice Artemio V. Panganiban
Address at University of Santo Tomas Central Seminary
UST Martyrs` Hall, February 19, 2002
BEFORE I discuss the topic for today's symposium, let me invite all of you to rise as I recite the "Centennial Prayer for the Courts."
"Almighty God, we stand in Your holy presence as our Supreme Judge. We humbly beseech You to bless and inspire us so that what we think say, and do will be in accordance with Your will. Enlighten our minds, strengthen our spirit, and fill our hearts with fraternal love, wisdom and understanding, so that we can be effective channels of truth, justice, and peace. In our proceedings today, guide us in the path of righteousness for the fulfillment of Your greater glory. Amen."
Thank you. Please take your seats. You may be interested to know that this prayer is recited at the beginning of each session of the Supreme Court. The justices take turns in leading the prayer. Moreover, the Court has authorized its recitation at the start of all proceedings in all courts in the country.
The ecumenical prayer was composed last year by the Executive committee for the Supreme Court Centenary Celebrations which I have the honor of chairing. Its wordings were finalized after patient and repeated consultations with major religious groups in the country. Catholic Protestant, Muslim, Born-again and others.
Separation of Church and State
Many people, including some men and women of the cloth, are surprised why the Supreme Court has an official prayer. They ask: is this not a violation of the separation of church and state? The answer is "no." Let me explain.
The Philippines is theist, not atheist, not even agnostic. In fact, it is monotheist; it worships one God. That is why our Constitution begins with this significant first phrase: "We, the sovereign Filipino people, imploring the aid of Almighty God x x x." You may want to know that both houses of Congress and the Cabinet also preface their sessions with prayers.
The most basic concept of separation of church and state merely requires the government to be neutral in the "competition," as it were, amongst different religious denominations. Hence, Congress cannot appropriate and the President cannot spend public funds to build a basilica for the exclusive use of the one religious group; neither can it promote the tenets or dogmas of another to the detriment of the rest; nor can it pay the salaries of priests or imams for performing strictly religious duties. Furthermore it cannot use religion as a prerequisite or condition for the exercise of any right or privilege. At bottom, while there is separation of church and state, there is no separation of the state from God.
The Supreme Court's Role in EDSA 2
In the letter of invitation sent to me by Rev. Fr. Honorato C. Castigador, OP, rector of the University of Sto. Tomas Central Seminary; and Seminarian Francis A. Tordilla, chairman of the UST Library-Academic Committee, I was asked to speak on the topic "Saving the Constitutional System." May I publicly thank them for congratulating me on my "active involvement and display of statesmanship during the crucial political events of the Republic." Ginawa ko lang po ang aking tungkulin bilang isang Pilipino."
According to Seminarian Carmelo Arada Jr. who called me up earlier, you would be interested to hear a discussion of the Supreme Court's role in the ascendancy of Mrs. Gloria Macapagal Arroyo to the Presidency. I think your invitation must have been inspired by the Philippine Daily Inquirer's recent naming of the Supreme Court as "Filipino of the Year 2001" for "saving the constitutional system from collapse."
While a poll survey shows that an overwhelming percentage of our people favor the Inquirer`s choice of the Supreme Court as the most newsworthy player in the national life last year. I am aware that the minority believes that the Court "in on the wrong side of history here x x x." [PDI Jan 13, 2002 page 1]. I will not comment on that any further and will indeed let history be the ultimate judge.
The Hour of Reckoning
Let me now briefly recall the events of January 16 - 20, 2001. As all of us know, EDSA 2 was sparked by the 11-10 vote of the Senate Impeachment Court, which had refused to open the so-called second envelope that was supposed to contain damning evidence linking then President Joseph excruciate Estrada to the multimillion "Jose blared" deposit in Equitable-PC Bank.
The massive, chanting, demanding throng at the EDSA Shrine shook the rafters of the government. In no time, Cabinet members and other high government officials resigned and joined the call for President Estrada`s resignation. Many religious leaders of all denominations as well as civic, business and professional groups and non-governmental organizations--the so-called "civil society"--repeatedly chorused "Erap, resign." Media--print-radio and TV--were united in asking him to step down.
On the afternoon of Friday, January 19, 2001, all the heads of the major commands of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) withdrew their support from President Estrada and pledged their allegiance to then Vice President Gloria Macapagal-Arroyo (GMA). From that point on, it became clear to me that President Estrada could not effectively govern the country, but that Vice President Arroyo could not legally lead it either. In other words, from that fateful afternoon, there was no effectively functioning government in the country.
I was aghast at the situation and could not rest during the evening of January 19. I must have fallen asleep about 1:00 a.m. Upon waking up at 4:00 a.m. on January 20, I immediately switched on our bedroom TV. An EDSA panel was being interviewed. The media host announced that Cardinal Sin, through Msgr. Socrates Villegas, was pleading with the EDSA rallyists not to march towards Mendiola, where the pro-Erap partisans were encamped. Fr. Robert Reyes, a panelist, unequivocally supported the Cardinal's call. But the leaders of the militant groups announced they were proceeding to Mendiola at 6:00 a.m., unless President Estrada resigned by then.
The Grim Scenario
I was worried that if the two groups clashed, there would be violence and bloodshed, especially if the EDSA militants made good their vow to storm the presidential residence. President Estrada could not stop them because the government machinery had broken down. The military and the police would not obey him. Neither could Mrs. Arroyo take over the reigns of government, as there was--at least, theoretically--a legally recognized President. If Mrs. Arroyo acted, she would be unconstitutionally usurping presidential prerogatives. Indeed, she would be installing a revolutionary government. ON the other hand, military adventures could mount a coup d'etat and rule by force. In either case, the Constitution would be obliterated and all constitutional offices including the Presidency and the Supreme Court would be abolished. Surely, the fragile economy would collapse and the nation thrown into civil strife.
I prayed and reflected upon this grim scenario. I concluded that the only way to avert violence, chaos and bloodshed, and to save our democratic system from collapse was to have Mrs. Arroyo sworn in as President. After prayer and reflection, I summoned the courage to call up Chief Justice Hilario G. Davide Jr. about 5:30 a.m. to explain to him my apprehensions. I proposed that, to save the Constitution, he should swear in GMA by 12:00 noon of that day.
The Chief Justice`s Response
In normal times, the Supreme Court and its members are passive government officials who act only when a proper petition or request is filed. I thought, however, that the scenario at that point was not normal. Far from it. In fact, the country was faced with an extraordinary situation that demanded an extraordinary solution. Only one state institution, the Supreme Court, had the credibility and the moral authority to avert a governmental catastrophe. And there was only one person who could steer the country from armed confrontation and upheaval: Chief Justice Davide. His outstanding performance as presiding officer of the impeachment court made him--per a scientific poll survey--the most trusted Filipino.
To my delight, Chief Justice Davide immediately agreed to my proposal. He asked me to announce over radio and television his intention to administer the presidential oath to the then Vice President.
When a justice heard the announcement, he telephoned the Court questioning the proposal. So, the Chief justice decided to call immediately all the members of the Court to an emergency session. After an animated discussion on the various constitutional aspects of the situation, all twelve justices present--three were out of town--eventually backed the announced swearing in, provided GMA submitted a formal written request for it. They even went to the EDSA Shrine to witness the oath-taking ceremony.
The Court's Decision
From this dramatic, extraordinary event of EDSA 2, the rest is now legal history. On January 22, 2001, Monday, the Supreme Court, by a unanimous vote of all its 15 members, passed a Resolution "to confirm the authority" of the Chief Justice to swear in GMA as "President of the Philippines."
On March 2, 2001, the Court promulgated its 13-0 Decision in Estrada v. Desierto [GR No. 146710-15] and Estrada vs Arroyo, [GR No. 146738] upholding the legitimacy of the Arroyo ascension to the presidency. Only thirteen voted inasmuch as Chief justice Davide and I inhibited ourselves from the case because of our active participation in the swearing -in ceremony. I was prepared to submit in writing my own opinion on these cases, but yielding to the request of Estrada, I instead recused myself voluntarily. At the proper time, however, I hope to be able to present my own view.
On April 3, 2001, the Court, by the same definitive vote of 13-0, denied with finality President Estrada`s Motion for Reconsideration. Thus, it put to rest the constitutionality of the Arroyo government.
Four Theories on the Arroyo Ascension
While the Court was unanimous in ruling that GMA was the legitimate, constitutional and permanent--not merely "acting"--President, and that Joseph Estrada was no longer Chief Executive, the justices were not united in their reasons for their common conclusion. To understand the ruling, it is important to bear in mind Article VII, Section 8 of the Constitution, which covers succession to the Presidency and which, in part, reads as follows:
Sec. 8. 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 x x x.
The various theories used by the justices to support the constitutional legitimacy of the Arroyo ascension to the Presidency can be summed up into four, as follows:
1. Resignation Theory
A majority of the members of the Court reasoned that Estrada had resigned and, thus, Vice President Arroyo was constitutionally empowered to take over. Although Estrada had not executed any written resignation, "the totality of prior, contemporaneous and posterior facts and circumstantial evidence" unmistakably showed that a resignation had in fact taken place. This view was held by six justices: Jose A. R. Melo, Reynato S. Puno, Leonardo A. Quisumbing, Minerva P. gonzaga-Reyes and Sabino R. de Leon. In addition, Justice Arturo B. Buena concurred "in the result" of Justice Puno's ponencia, but did not give any specific reason for legitimizing GMA's rise to the presidency.
2. Permanent Disability
Under this theory, Estrada was permanently disabled from discharging his duties and functions as Chief Executive; thus, GMA succeeded him legally. This view was shared by Justices Josue N. Bellosillo and Vicente V. Mendoza. Justice Bellosillo opined that the permanent disability "cannot realistically be given a restrictive and impractical interpretation as referring only to physical and mental incapacity, but must likewise cover other forms of incapacities of a permanent nature, e.g., functional incapacity." Justice Mendoza, on the other hand, clarified that what enabled GMA "to assume the presidency was the fact that there was a crisis, nay a vacuum, in the executive leadership which made the government rife for seizure by lawless elements."
Justice Jose C. Vitug held the opinion that President Estrada practically abandoned the presidency an act equivalent to resignation. He explained that abandonment "connotes the giving up of the office although not attended by the formalities normally observed in a resignation."
4. Reality theory
Four magistrates--Justices Santiago M. Kapunan, Bernardo P. Pardo, Consuelo Ynares-Santiago and Angelina Sandoval-Gutierrez--believed that Estrada had not resigned or voluntarily left his office. However, the stark reality was that Mrs. Arroyo had actually taken over the Presidency and was recognized in the constitutional incumbent by Congress, the international community and the Filipino people. In the words of Justice Gutierrez, "this Court has to declare as a fact what in fact exists. Respondent Gloria Macapagal Arroyo is the de jure President of the Republic of the Philippines."
In his Foreword to my latest book, A Centenary of Justice, Chief Justice Hilario G. Davide Jr. called this unanimous Decision of the Supreme Court "a watershed event of truly momentous proportions that would be cast in concrete at the portals of constitutionalism." He added that "his and my recusal has further served to strengthen the independence of the judiciary and the rule of law." Indeed, the Supreme Court descended from its lofty perch on Mt. Olympus to avert civil strife and to save our constitutional system from collapse."
Before I end this piece, let me articulate my faith that EDSA 2 was indeed a confluence of events planned in heaven. I do not have the time to relate all these events. Let me just say that frankly, I am still wondering up to now how I had summoned the courage to propose the oath-taking of Mrs. Arroyo even when she had not yet requested it, and even when President Estrada was still in Malacanang; and why Chief Justice Davide immediately agreed to it, even prior to consultation with the other justices.
The Chief Justice and I both knew that the Supreme Court was passive institution and that ordinarily, justices did not take active part in political events. The Court`s extraordinary action to resolve an extraordinary situation can only be explained as the work of the Holy Spirit on both of us and, in fact, on all the key players of EDSA 2. It was the same Spirit that animated us to do what we did, not because of conventional human wisdom, but because of faith instilled by the Lord.
Let me add that the Chief Justice and I have the same habit of reading Scriptures as the source of God's daily instructions on how we should do our work. In my case, I take my bearings from the daily Mass readings. But in the case of Chief Justice Davide, he cuts the Bible and reflects on the page that opens. On that fateful morning of January 20, he woke up at 3:30 a.m., prayed, cut his Bible and reflected. On that morning, the Holy Book oppened to Isaiah 62, which spoke of the "Restoration of Zion." As he prayed and meditated, he was struck by the unmistakable impression that he should act to restore Zion; that is to bring normalcy to the country. Hence, when I called him up at 5:30 a.m., he was spiritually and psychologically ready for my then"weird-sounding" proposal.
Finally, you may want to be reminded that the gospel reading for January 20, 2001 was taken from the third chapter of Mark Verses 20-21, in which our Lord was accused by his own relatives of being "out of his mind"; and, in Verse 22, by the scribes of being "possessed by Beelzebub, the prince of demos," because the crowds were so mesmerized by his teachings that they refused to eat. Indeed, in our community--whether it be of people who are supposed to love us like our relatives, or of those who hate us, like our never-satisfied critics--we could be misunderstood, even thought of as insane, when we espouse unorthodox ideas and actions. But we should always stand fast and take courage, especially when our eccentricity is born of faith that transcends human wisdom.
I will now end my introductory remarks and, as the organizers of the Symposium and I have agreed upon, I will spend the rest of the hour by answering your questions during the open forum.
Maraming salamat po.
Here is that very FAX, penned by no other than sitting Justice Antonio Carpio for then Vice President Gloria Macapagal Arroyo, which is timestamped as arriving in the Supreme Court at 11:26 A.M. on Saturday 20 January 2001 --
20 January 2001Davide and Panganiban persuaded the High Court to accept this invitation and less than an hour after the fax arrived they indeed swore in the Vice President, to the cheers of another successful PEOPLE POWER event. Here is how TIME MAGAZINE described the events. Of course, they were roundly criticized as "Ugly Americans" by the leftist press and people power ideologues, to this day!
THE HONORABLE SUPREME COURT
Supreme Court Building
Padre Faura Street, Ermita, Manila
Attention: Honorable Hilario G. Davide, Jr.
The undersigned respectfully informs the Honorable Court that Joseph Ejercito Estrada, is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his Cabinet members have resigned and the Armed Forces of the Philippines and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil Society has likewise refused to recognize him as President.
In view of this, I am assuming the position of President of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the Republic of the Philippines before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 2001, at 12:00 noon, at the EDSA Shrine, Quezon City, Metro Manila.
May I have the honor to invite all the members of the Honorable Court to attend the oath-taking.
VERY TRULY YOURS,
GLORIA MACAPAGAL ARROYO
Here is how I describe what the past and present Chief Justices did: JUSTICE HURRIED IS JUSTICE BURIED.
See also Philippine Commentary's post The Paradox of People Power, which deals with Edsa II but more importantly with Edsa I.
There will be light posting here during the holidays. But here is my Christmas Offering to Philippine Commentary Readers: WHAT WAS THE STAR OF BETHLEHEM?
(11:45) UPDATE: I don't understand why ABSCBN News asked KORINA SANCHEZ to do that interview of the Chief Justice. Her questions were about pointless generalities whose answers revealed nothing about Panganiban that hadn't already been in the sound bites advertising the interview. Who did she think she was interviewing -- Prince Charles? She was like a giggly high school reporter sent in to interview Tom Cruise about his thoughts on stardom. What a waste of a rare opportunity to fulfill the public's right to know--wasted on cream-puff journalism by a clueless "news superstar" who should maybe go into show-business reporting instead.
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