JUDICIAL CRISIS: Watch the Supreme Court closely to see how it will solve a looming judicial crisis on the legitimacy issue over Gloria Macapagal Arroyo’s replacing Joseph Estrada as president on Jan. 20, 2001.

Probably only two of the 15 justices of the Supreme Court might be left to hear petitions of former President Estrada if the rule is followed on the inhibition or disqualification of justices who have shown bias on the issue of presidential succession.

This probability was raised by lawyer Rene A. V. Saguisag in a letter dated May 30, 2003, to Chief Justice Hilario Davide Jr. and the Associate Justices of the Supreme Court. He emailed us a copy yesterday.

To prove their having prejudged Estrada, Saguisag cited startling revelations in the book Reforming the Judiciary written by Justice Artemio V. Panganiban. (Reported previously in Postscript, May 29, 2003)

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ROW OVER VACANCY: The book records, among other things, how Davide and 12 justices were convinced to go to EDSA on Jan. 20, 2001, to swear in and participate in the oath-taking of then Vice President Arroyo.

Having accepted her conclusion that there was a vacancy in the presidency because of Mr. Estrada’s being “permanently incapacitated,” Davide et al. may have disqualified themselves from hearing any plea of Mr. Estrada on the question.

Apparently it did not occur to the justices at the time that the Constitution requires that permanent incapacity be so declared in writing by the President himself or a majority of his Cabinet in a formal communication to Congress. There was no such declaration before the oath-taking.

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CONSTRUCTIVE RESIGNATION: Sensing the emerging stalemate, as early as Feb. 8, 2001, we started to put forward vigorously a theory of “Constructive Resignation” in our Postscript.

We were pleasantly surprised much later to see the Supreme Court use the same Constructive Resignation line when it dismissed a plea of Mr. Estrada that he was still the president.

Apparently finding problematic the absence of a declaration of incapacity, the court junked its acceptance of the permanent incapacity theory suggested by Mrs. Arroyo. It went for Constructive Resignation, which meant that by his acts and statements at the time, Mr. Estrada was to be considered to have resigned in effect.

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DIVINE GUIDANCE: The Panganiban book also reports how the Chief Justice arrived at that decision that day (to support Mrs. Arroyo) by parting the Bible and taking guidance from the Isaiah 62 verse where his eyes fell.

Saguisag said this was a violation of the separation of Church and State. We doubt if the Church had anything to do with the Bible-reading, but still Davide’s use of the Holy Book to seek answers to legal questions may not be consistent with good judicial practice.

Saguisag quoted Panganiban narrating in his book on pp 132-133:

“Let me articulate my faith that EDSA II was indeed a confluence of events planned in heaven….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 other justices. Let me add that the Chief Justice and I have the same habit of reading the Scriptures as the source of God’s daily instructions on how we should do our work. I take my bearings from daily mass readings. But in the case of the Chief Justice, he cuts the Bible and reflects on the page that opens. On that fateful morning of January 20, he woke up as usual at 3:30 a.m., prayed, cut his Bible and reflected. On that morning, the Holy Book opened 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, he was spiritually and psychologically ready for my then ‘weird-sounding’ proposal.”

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ERAP MOVES: More excerpts from the Saguisag letter:

“Why then this letter? First, because the decision in the legitimacy cases laid down not just bad law, but dangerous law because of what we came to know recently. I decided to write this letter to the Court as the only Supreme Court in what may be argued as a de facto government. Appeal to the Court then, is not a matter of acceptance, but of necessity. Even under a de facto government, justice must be done. To allow injustice to prosper without protest, when the occasion to protest arises, is to compound the hardships and the sufferings of the people. The task of the lawyer is to uphold the rule of law, and when law has been deposed, to restore it. To do so, it is the lawyer’s duty to help the people regain respect for constitutionalism. One step in this direction is to make those who usurp the powers of government face the illegitimacy of their acts at every turn. Except for the gravest of reasons, it would be egregious to forego such an opportunity, one based on newly-discovered evidence the new book supplies in abundance.

“On May 18, 2003, I visited President Estrada on his invitation. I saw with him Professor Alan F. Paguia, who said he was filing a motion to dismiss the cases in the Sandiganbayan against the President for lack of jurisdiction by virtue of immunity, Atty. (Joselito) Mendoza’s point. I said maybe we ought to talk about it a bit — I thought I had been asked to brainstorm merely — because I had my own ideas coming from Reforming the Judiciary which neither had read. But, the duo made me understand the decision to go forward the next day had been made. Client’s call, as it were. Their move could not be stayed. And so it was that the motion to dismiss was filed on May 19, 2003, a decision I can only support. I commend Atty. Paguia for his bold, and in my view, correct gambit.

“However, utilizing Panganiban’s True Confessions would have considerably reinforced his argument and conceivably clinched the case for President Estrada. I write this letter in a bid to help hasten the resolution of a difficult problem.”

xxx

“I write this because of the seeming futility of asking the Court to acknowledge that it misspoke in 2001 but history should record that, as always, I tried to abide by the rule of law in agreeing to take on the legitimacy cases. A lawyer is a vindicator of the system. But, to begin with, how many Justices would be left to decide? Maybe only Justices Ma. Alicia M. Martinez-Austria and Adolf Azcuna? Justice Conchita Carpio-Morales is said to be related to Justice Carpio so she may have to recuse herself in a proper case, with all due respect.”

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DOUBLE HEARSAY: Director Conrad S. Tolentino of the SC information office wrote to clarify that the account we had quoted from Panganiban’s book was not the justice’s own recollection of events but was merely taken from a newspaper column.

Is he saying in effect that what the justice wrote was hearsay — in fact double hearsay because the columnist was also just passing on what was told him? We note that until this day, nobody in the high court has denied the veracity of the columnist’s narration.

Over lunch with media friends, we once suggested that maybe book writers should be asked to affirm under oath the content of their books to enhance their credibility and salability.

But seriously, we highly recommend the book Reforming the Judiciary.