PREJUDGMENT: When Chief Justice Hilario Davide Jr. and 12 other justices went to Edsa on Jan. 20, 2001, to install then Vice President Gloria Macapagal Arroyo as president, they effectively disqualified themselves from hearing his cases before the court.

That is according to former President Erap Estrada, now detained at the Veterans Memorial Medical Center in Quezon City on plunder charges. He says that Davide et al. have prejudged his legal actions, including his bid to regain the presidency.

He also says that he or somebody will file impeachment charges against the justices for culpable violation of the Constitution arising from their having declared him resigned from the presidency when in fact he did not.

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LACK OF JURISDICTION: That point is supposed to have been settled already, but it is likely to be reopened when the Sandiganbayan acts on Mr. Estrada’s motion to dismiss the plunder charges against him. He argues that he is still the president and that the court has no jurisdiction over him.

Under the Constitution, a sitting president can be tried only by the Senate in an impeachment proceedings. Reading the body language of Mr. Estrada, we sense that he is likely to ask for the inhibition or disqualification of several of the 15 justices of the high court when his plunder case is brought before them from the Sandiganbayan.

His new lawyer, Alan F. Paguia, explains that Davide and 12 other justices participated in a partisan activity when they went to Edsa for the oath-taking of Mrs. Arroyo. They went there after she wrote to inform them that Mr. Estrada had been “permanently incapacitated,” that she was to take over and asked the Chief Justice to administer the oath.

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RESIGNATION CITED: By doing so, Mr. Estrada says, the justices prejudged his situation. Now if the 13 justices were part of the installation of Mrs. Arroyo, how can they judge fairly his plea that she be removed and he installed back? Should not they be disqualified from hearing his case?

There is also the curious point that when Davide et al. installed Mrs. Arroyo, it was on the basis of her claim that Mr. Estrada had been “permanently incapacitated,” but when the question was raised later before the Supreme Court, the reason used by the tribunal for declaring a vacancy was not his supposed permanent incapacity but its presumption that he had resigned.

Permanent incapacity and resignation are two of the only four ways enumerated in the Constitution for the valid removal of a president. The other two ways are his death and his removal after conviction in an impeachment trial. Outside of these four routes, there is no constitutional way out for a president.

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RARE INSIGHT: It will help if we are able to follow the mental processes that preceded the decision of the justices who went to Edsa (garbed in formal judicial robes) to install Mrs. Arroyo as Mr. Estrada’s replacement.

The book “Reforming the Judiciary” of Justice Artemio V. Panganiban gives us that rare insight. Here’s how he recounted on pp 120-122 those historic moments:

“Also at that time, Macapagal-Arroyo had breakfast with Cardinal Sin and (former President) Cory Aquino at Villa San Miguel, the archbishop’s palace. According to a report by the Philippine Star (March 14, 2001), Sin and Aquino asked her about her plans. The Vice President said Estrada had asked her for five days. Aquino said, ‘Take my advice, I’ve been there. Don’t accept the five days.’

“Macapagal-Arroyo said there was an agreement between the two panels and she was ‘not used to breaking agreements.’ Cardinal Sin was even more emphatic than Aquino. According to Monsignor Villegas, in an article in the weekly magazine Newsbreak (Feb. 7-13, 2001), ‘Gloria was willing to wait for four or five days, because she didn’t like to pressure Erap to step down.’

“Pounding on the table, the cardinal said, ‘Gloria, you owe the presidency to the people. And it is the people who want a new president.’

“No resignation letter

“Then, Macapagal-Arroyo took a call from De Villa. He said the negotiations had broken down because Angara had reversed everything he had said the previous night and wanted her to write a letter praising Erap. She also received a call from (legal adviser Renato) Corona that the talks had bogged down because ‘there was no letter of resignation.’

“At that point, she decided to take her oath. “Panganiban said that Macapagal-Arroyo rang the court at around 10 a.m., saying the negotiations had ‘bogged down.’ Davide asked Panganiban to take the call. Macapagal-Arroyo said, ‘I would like to take you up on your offer to swear me in at noon.’ ‘I told her that we would need a letter from her requesting the Chief Justice to swear her in,’ said Panganiban.

“From Carpio, we learn that the Vice President asked him to write the letter. Carpio said the letter highlighted two themes: first, she was informing the Chief Justice that Estrada was incapacitated after the defection of the military and the national police, and therefore he was permanently disabled from serving out his unexpired term; and, second, she was requesting the Chief Justice to administer the oath. The letter did not request an opinion or to declare the presidency vacant.

“The two-paragraph letter was faxed to the court at 11:26 a.m. — 34 minutes before noon, the scheduled time for the oath taking. While waiting for the letter, the justices had a fierce debate over the constitutionality of installing her as a permanent president. Some justices questioned Davide’s offer to swear her in. Other justices ‘were alarmed.’ Panganiban told us they argued that there was no constitutional basis for swearing in Macapagal. Panganiban argued that the swearing in ‘is an act of the Chief Justice, not the court.’ He quoted Davide’s own reply: ‘Was it not better for the court to act?’ Many justices were inclined toward making her take the oath as ‘acting president.’

“Unanimous” decision

“But when the letter arrived, the justices ‘unanimously agreed’ to give Davide the authority to swear her in as president. Panganiban had underscored ‘Davide’s concern that allowing the anti-Estrada demonstrators to storm Malacanang could lead to bloodshed.’ This letter was not published until weeks after her induction, and this void generated speculations over whether there was a vacancy, or there was a resignation, or she took her oath as ‘acting president.’ The oath she read did not say ‘acting,’ clearing up earlier TV reports that Davide had said she would be sworn in as ‘acting President.’

“Ching Vargas, on the staff of the Vice President, was assigned by Corona to fetch the Supreme Court justices. She described the mood in the court as follows: the Chief Justice told her that all the justices were present, except two, who were out of town, ‘to show their support.’ They had been holding a session en banc since 8 a.m. The two absent justices sent their approval by fax.

“The justices were asking, ‘what’s keeping Attorney Carpio too long?’

“When the letter arrived, it was photocopied and distributed to the justices, but the copies were collected by Justice Panganiban after they had read it. One justice demurred, ‘permanent disability?’ and then said, ‘Okay na ito.’ The others said okay ‘in unison.’ Vargas asked if they were all going to Edsa. ‘Yes, they want to show their support,’ said the Chief Justice. She said the justices went to Edsa ‘of their own free will and I could see that they were not forced.’ Asked about the mood of the justices, she said, ‘I am very sure they were in the right frame of mind and they were not forced. The Chief Justice was a big factor. They really supported him and they wanted to show it.’”