Having Second Thoughts About The Second Edsa?

CONSIDER the moment in history frozen in the photograph nearby. It is the moment, shortly after high noon on Saturday, 20 January 2001, when then Chief Justice Hilario G. Davide, Jr. swore in then Vice President Gloria Macapagal Arroyo as President of the Philippines. It is a moment of regime change and presidential succession that has been unanimously blessed by the Supreme Court. Was it right? Was it wise? Was it Constitutional?

RAUL PANGALANGAN, formerly Dean of the University of the Philippines Law School, (by way of Harvard), has been considering this moment in history (the Edsa II People Power Event). In his PDI column piece today -- What the Court Really Said About Edsa II --

This week, I journey once more into legal history to prepare for the coming 20th anniversary of People Power. The first misconception is that the Supreme Court went gaga over Edsa 2. After all, didn't the justices swear in Gloria Macapagal-Arroyo on that historic Saturday noon in January 2001? Didn't they vote 13-0 to throw out former President Joseph Estrada's case questioning the validity of Ms Arroyo's oath-taking?

CONCURRING IN THE RESULT: Quoting from the separate opinions and caveats of the 13 Justices ruling in the relevant cases of Estrada vs. Arroyo ( March 2, 2001) and Estrada vs. Desierto (April 3, 2001) Dean Pangalangan paints a very plausible picture of a unanimous Court merely "concurring in the result" which was an irreversible fait accompli anyway if there ever was one. An impression Pangalangan leaves is that many of the Justices knew what they were doing was wrong but they did it anyway. By the way, the reason only 13 of 15 Justices adjudicated the Edsa-II cases is that Chief Justice Hilario Davide and Associate Justice Artemio Panganiban inhibited themselves from the case -- a fact of great significance.

HOW TO THINK OF EDSA For me, the key to understanding Edsa-II and its climactic moment, is to realize that the Supreme Court Chief Justice Hilario Davide was not acting in a merely ceremonial or administerial or impartial function, as in a normal oath taking after regular elections. In Edsa-II Davide was a main player, in fact, the very protagonist who made it happen, without whom it could NOT have happend. Chaotic circumstances following the abortion of Erap's impeachment trial, (including the Angelo Reyes Mutiny, the three days of continuous demonstrations at the Edsa Shrine, and the fear of violence and bloodshed) gave Davide the justification to short-circuit the verbose and specific provisions on presidential succession in the very 1987 Constitution that he helped to craft. Davide ACTED decisively to get the Court to declare the Presidency vacant and authorize him to swear in the Vice President. Yet as time passes, it only becomes crystal clear that the Presidency was NOT validly or constitutionally vacant in that moment before this photo was taken. The reasoning is straightforward and can't easily be refuted, even by lawyer friends who try. It goes like this:

There are exactly five ways that any Presidency can validly END under the 1987 Constitution:

(1) The President completes his or her six year term.
(2) The President dies.
(3) The President is impeached, convicted and barred from office.
(4) The President resigns.
(5) The President becomes permanently disabled.

NONE -- not any single one -- of the above five conditions applied to Joseph Estrada at the moment the photograph above was taken. Instead what really happend was the Supreme Court first "decided" it was (5) and swore in Mrs. Arroyo; then they decided it was actually (4) two months later! Yet Erap to this day, and probably to his last, denies he ever resigned!

History, thanks to Artemio Panganiban, records what actually happend:

On Saturday, 20 January 2001, a fax arrived at the Supreme Court Bldg in Manila at 11:26 am (official arrival timestamp), claiming that President Joseph Estrada was permanently disabled. It was signed by the Vice President. The Supreme Court met en banc to consider the fax. Within one hour, at around 12:30 pm that same day, Chief Justice Hilario Davide had sworn in the Vice President as President, to a cheering mob at the Edsa Shrine. (I was fifty feet away cheering too, oblivious of the history I am now relating.) On the Monday following, the Supreme Court confirmed in a resolution that it had declared the Presidency vacant the Saturday before by affirming the authority of the Chief Justice in administering the oath to GMA. On that Tuesday, Joseph Estrada, who was obviously not permanently disabled at all from the Saturday before, filed a case in the Supreme Court claiming he was still President. In Estrada vs. Arroyo (March, 2001) and Estrada vs. Desierto (April 2001), the Supreme Court did some really strange things: The Court revised the reason for declaring the Presidency vacant on 20 January 2001 from "permanent disability" -- which was patently untrue as to be absurd -- to "constructrive resignation." As time goes on the Court's actions become stranger still and more illogical. For in effect they had established two new principles of jurisprudence in the matter of Presidential successions:

(1) "Permanent disability" can be reversed by judicial edict, just as it can be established by the faxed-in claim of the Vice President, unverified, and blessed by the Court in less than one hour of deliberation. (Justice hurried is justice buried!)

and

(2) Voluntariness is evidently not essential to Presidential Resignation, it can be construed from the "totality of all prior, contemporaneous and posterior facts and evidence." (the risible concept of "constructive resignation.")

PEOPLE POWER AND THE JUDICIARY: Because of what happened at Edsa I in 1986, "People Power" is enshrined in the 1987 Constitution as a kind of metaphysical uber-principle. People Power was turned by its framers into a set of new entitlements or empowerments that today in 2006 bedevils the Republic. Chief among these, in my opinion, was the explicit grant of special power to the Judiciary to reverse grave abuses of discretion or jurisdiction on the part of the other branches of government. I think this "grave abuse" principle, a reaction to Marcos martial law, rhetorically discombobulated the Constitutional balance of powers and gave the Judiciary more of a "check" with which to act against the Executive and Legislative Branches. I claim that Edsa II was a display of this awesome new power as the Supreme Court literally overthrew the Chief Executive. Similarly, the series of Decisions with respect to the impeachment process, and the coming Decision, House vs. Garcillano, show that Judiciary can treat the Legislature as a plaything at its mercy.

CAN THE SUPREME COURT EVER BE WRONG? For most Filipinos, especially educated ones, this question is the same as, "Can the Catholic Church ever be wrong?" Some, mostly lawyers or those under their influence, will say NO because they say the Supreme Court is the FINAL arbiter of all Constitutional questions. On closer interrogation such people will admit that what they really mean is that once the Supreme Court has ruled on a case "with finality" that's more or less it and we should accept their Decisions as correct. What Raul Pangalangan was doing today was taking the Edsa-II decisions to their logical conclusions by applying them to the present case of Gloriagate and the Garci Tapes:

Should it happen that Ms Arroyo is ousted through another Edsa People Power uprising, she will be on the receiving end of these Supreme Court decisions. Vis-a-vis Edsa I, she will be in the shoes of Marcos, holding a Batasang Pambansa [National Assembly] proclamation of victory that only his partisans believed. Vis-a-vis Edsa II, she will be in the same boat as Estrada, her government paralyzed through "withdrawal of support" by various centers of power, including the military and civil society. Yet, if she is ousted via an outright coup without the moral cover of People Power, she will seize the constitutional upper hand. What a dreadful sight! One moment she is the tainted President who conspired with Garci to debase the Constitution, and the next she is the indignant guardian of the constitutional faith.

Here at Philippine Commentary we have no problems taking things a step further and calling a spade a spade:

The Supreme Court was just plain "wrong" in what it did! Hilario Davide was not acting as an "impartial judge" on that Saturday, sitting in the cold contemplation of the law and looking at the events from a distance. He was the most crucial participant in the "Edsa II People Power" event. In agreeing to the oath-taking, the other Justices were complicit in the most brazen act of judicial activism by the High Court ever. Without their partisan partiality, 2001 would have been more like 2005 than 1986. Not that I wasn't glad to be rid of Erap. It's just that two wrongs don't make a right, and when it is the Supreme Court that is wrong, there's usually hell for everybody else to pay. The Supreme Court, in effect, ruled on their own actions and decisions of 20 January 2001. As time goes by, those events get clearer and clearer, because the illogicality and errors of the Davide Court decisions have been injected into the jurisprudence of the Supreme court. The ouster of Erap could NOT have succeeded in such a swift and decisive manner without the direct partisanship and active collaboration of the Supreme Court with Vice President Arroyo, the mutineer Gen. Angelo Reyes, and the complete support of the Catholic Church. Oh and of course, the props, the hooting throng, us.

Can the Supreme Court ever be wrong? Such a metaphysical question is actually useless. We can argue it forever. But the real question is: "Are the Decisions of the Supreme Court final?" This is an easier question to answer; NO! Every decision stands only until the Supreme Court reverses or modifies it.

PEOPLE'S ATTITUDES towards the "Edsa II People Power Revolution" have certainly changed radically from even a year ago, because of what Gloriagate has revealed of the main beneficiary's true character. Because of the toxic political atmosphere, there was no official celebration during the January 20th anniversary two weeks ago. (The unofficial celebration was a desultory bonfire lit in an empty lot by some of Mike Defensor's household helpers.) Stunned into pretending January 20 meant nothing, were even those for whom People Power is an ideology that combines the peaceful ideals of Roman Catholic cardinals with the populist empowerment pretensions of Maoist militants. People Power has in fact been turned by the Organized Left into the ideology of the United Front with anyone who happens to be opposing the Government at the moment.

RELATED POSTS:
Ronald Reagan makes a cameo appearance at Edsa-I in this rather long post:

The Paradox of People Power

That famous facsimile sent to the Supreme Court by Gloria is in this post:

Remembering the EDSA II People Power Coup

The beginnings of Edsa II are remembered here:

EDSA II Retrospective: When Gloria Resigned

Civil Society may be no better than Evil Society in:

The Real Victory of Joseph Estrada

I was mean to the Chief Justice in:

Davide Retires: Good Riddance

and he deserved it. So did his associate in this remembrance of a head turning and tell-all speech:

Chief Justice Panganiban In His Own Words

General Angelo Reyes and his Mutiny during Edsa II are recalled here:

When Last the Military Withdrew Support

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