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Estrada vs. Desierto

Case Ponente Decision Date

G.R. No. 146710-15 & 146738 PUNO, J Apr 3, 2001

In the case of Estrada v. Desierto, the court ruled that Joseph E. Estrada's
contentions were without merit, finding that he had resigned before
January 20, 2001, and that there was not enough evidence to prove
prejudicial publicity that would have affected his right to a fair trial.

EN BANC

G.R. Nos. 146710-15. April 3, 2001.

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as

Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG AND ERNESTO B. FRANCISCO, JR.,
respondents.

G.R. No. 146738. April 3, 2001.

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.

RESOLUTION

PUNO, J p:
 For resolution are petitioner's Motion for Reconsideration in G.R. Nos. 146710-15
and Omnibus Motion in G.R. No. 146738 of the Court's Decision of March 2, 2001.

In G.R. Nos. 146710-15, petitioner raises the following grounds:

"I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI,

SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE
THEREON.

II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING
WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION,
CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT
PROCEEDINGS.

III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE

IMMUNITY FROM SUIT.

IV. IT HELD THAT PETITIONER'S DUE PROCESS RIGHTS TO A FAIR TRIAL

HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.

V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE

COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT
OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED CAPACITY
OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION."

In G.R. No. 146738, petitioner raises and argues the following issues:

1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED

RESIGNED AS OF JANUARY 20, 2001;

2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE

OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE,
AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;

3. WHETHER RELIANCE ON NEWSPAPER ACCOUNTS IS VIOLATIVE OF THE

HEARSAY RULE;
 4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONER'S INABILITY
TO GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and

5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONER'S RIGHT

TO FAIR TRIAL.

We find the contentions of petitioner bereft of merit.

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he

assails the Decision for adverting to newspaper accounts of the events and
occurrences to reach the conclusion that he has resigned. In our Decision, we used the
totality test to arrive at the conclusion that petitioner has resigned. We referred to and
analyzed events that were prior, contemporaneous and posterior to the oath-taking of
respondent Arroyo as president. All these events are facts which are well-established
and cannot be refuted. Thus, we adverted to prior events that built up the irresistible
pressure for the petitioner to resign. These are: (1) the expos of Governor Luis "Chavit"
Singson on October 4, 2000; (2) the "I accuse" speech of then Senator Teofisto
Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona
by the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of
the Singson expos by the House Committee on Public Order and Security; (5) the move
to impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of
Archbishop Jaime Cardinal Sin demanding petitioner's resignation; (7) a similar
demand by the Catholic Bishops Conference; (8) the similar demands for petitioner's
resignation by former Presidents Corazon C. Aquino and Fidel V. Ramos; (9) the
resignation of respondent Arroyo as Secretary of the DSWD and her call for petitioner
to resign; (10) the resignation of the members of petitioner's Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and
Industry; (11) the defection of then Senate President Franklin Drilon and then Speaker
of the House of Representatives Manuel Villar and forty seven (47) representatives
from petitioner's Lapiang Masang Pilipino; (12) the transmission of the Articles of
Impeachment by Speaker Villar to the Senate; (13) the unseating of Senator Drilon as
Senate President and of Representative Villar as Speaker of the House; (14) the
impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo and
former Finance Secretary Edgardo Espiritu in the impeachment trial; (16) the 11-10
vote of the senator-judges denying the prosecutor's motion to open the 2nd envelope
which allegedly contained evidence showing that petitioner held a P3.3 billion deposit
in a secret bank account under the name "Jose Velarde"; (17) the prosecutors' walkout
and resignation; (18) the indefinite postponement of the impeachment proceedings to
give a chance to the House of Representatives to resolve the issue of resignation of
their prosecutors; (19) the rally in the EDSA Shrine and its intensification in various
parts of the country; (20) the withdrawal of support of then Secretary of National
Defense Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together
with the chiefs of all the armed services; (21) the same withdrawal of support made by
the then Director General of the PNP; General Panfilo Lacson, and the major service
commanders; (22) the stream of resignations by Cabinet secretaries, undersecretaries,
assistant secretaries and bureau chiefs; (23) petitioner's agreement to hold a snap
election and opening of the controversial second envelope. All these prior events are
facts which are within judicial notice by this Court. There was no need to cite their
news accounts. The reference by the Court to certain newspapers reporting them as
they happened does not make them inadmissible evidence for being hearsay. The
news account only buttressed these facts as facts. For all his loud protestations,
petitioner has not singled out any of these facts as false.

We now come to some events of January 20, 2001 contemporaneous to the oath
taking of respondent Arroyo. We used the Angara Diary to decipher the intent to resign
on the part of the petitioner. Let it be emphasized that it is not unusual for courts to
distill a person's subjective intent from the evidence before them. Everyday, courts
ascertain intent in criminal cases, in civil law cases involving last will and testaments,
in commercial cases involving contracts and in other similar cases. As will be
discussed below, the use of the Angara Diary is not prohibited by the hearsay rule.
Petitioner may disagree with some of the inferences arrived at by the Court from the
facts narrated in the Diary but that does not make the Diary inadmissible as evidence.

We did not stop with the contemporaneous events but proceeded to examine
some events posterior to the oath-taking of respondent Arroyo. Specifically, we
analyzed the all important press release of the petitioner containing his final
statement which was issued after the oath-taking of respondent Arroyo as president.
After analyzing its content, we ruled that petitioner's issuance of the press release and
his abandonment of Malaca ang Palace confirmed his resignation. 1 These are overt
acts which leave no doubt to the Court that the petitioner has resigned.

In light of this finding that petitioner has resigned before 12 o'clock noon of
January 20, 2001, the claim that the office of the President was not vacant when
respondent Arroyo took her oath of office at half past noon of the same day has no leg
to stand on.

We also reject the contention that petitioner's resignation was due to duress and
an involuntary resignation is no resignation at all.

". . . It has been said that, in determining whether a given resignation is

voluntarily tendered, the element of voluntariness is vitiated only when the
resignation is submitted under duress brought on by government action. The three-
part test for such duress has been stated as involving the following elements: (1)
whether one side involuntarily accepted the other's terms; (2) whether circumstances
permitted no other alternative; and (3) whether such circumstances were the result of
coercive acts of the opposite side. The view has also been expressed that a resignation
may be found involuntary if on the totality of the circumstances it appears that the
employer's conduct in requesting resignation effectively deprived the employer of free
choice in the matter. Factors to be considered, under this test, are: (1) whether the
employee was given some alternative to resignation; (2) whether the employee
understood the nature of the choice he or she was given; (3) whether the employee
was given a reasonable time in which to choose; and (4) whether he or she was
permitted to select the effective date of resignation. In applying this totality of the
circumstances test, the assessment whether real alternatives were offered must be
gauged by an objective standard rather than by the employee's purely subjective
evaluation; that the employee may perceive his or her only option to be resignation for
example, because of concerns about his or her reputation is irrelevant. Similarly, the
mere fact that the choice is between comparably unpleasant alternatives for example,
resignation or facing disciplinary charges does not of itself establish that a resignation
was induced by duress or coercion, and was therefore involuntary. This is so even
where the only alternative to resignation is facing possible termination for cause,
unless the employer actually lacked good cause to believe that grounds for termination
existed. In this regard it has also been said that a resignation resulting from a choice
between resigning or facing proceedings for dismissal is not tantamount to discharge
by coercion without procedural view if the employee is given sufficient time and
opportunity for deliberation of the choice posed. Furthermore, a resignation by an
officer charged with misconduct is not given under duress, though the appropriate
authority has already determined that the officer's alternative is termination, where
such authority has the legal authority to terminate the officer's employment under the
particular circumstances, since it is not duress to threaten to do what one has the legal
right to do, or to threaten to take any measure authorized by law and the
circumstances of the case." 2

In the cases at bar, petitioner had several options available to him other than
resignation. He proposed to the holding of snap elections. He transmitted to the
Congress a written declaration of temporary inability. He could not claim he was
forced to resign because immediately before he left Malaca ang, he asked Secretary
Angara: "Ed, aalis na ba ako?" which implies that he still has a choice of whether or not
to leave. cSIADa

To be sure, pressure was exerted for the petitioner to resign. But it is difficult to
believe that the pressure completely vitiated the voluntariness of the petitioner's
resignation. The Malaca ang ground was then fully protected by the Presidential
Security Guard armed with tanks and high-powered weapons. The then Chief of Staff,
General Angelo Reyes, and other military officers were in Malaca ang to assure that no
harm would befall the petitioner as he left the Palace. Indeed, no harm, not even a
scratch, was suffered by the petitioner, the members of his family and his Cabinet who
stuck it out with him in his last hours. Petitioner's entourage was even able to detour
safely to the Municipal Hall of San Juan and bade goodbye to his followers before
finally going to his residence in Polk Street, Greenhills. The only incident before the
petitioner left the Palace was the stone throwing between a small group of pro and anti
Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were
no tanks that rumbled through the Palace, no attack planes that flew over the
presidential residence, no shooting, no large scale violence, except verbal violence, to
justify the conclusion that petitioner was coerced to resign.

II
 Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by
this Court of the Angara Diary. It is urged that the use of the Angara Diary to
determine the state of mind of the petitioner on the issue of his resignation violates
the rule against the admission of hearsay evidence.

We are unpersuaded. To begin with, the Angara Diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner
cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign
surprise on its use. To be sure, the said Diary was frequently referred to by the parties
in their pleadings. 3 The three parts of the Diary published in the PDI from February 4-
6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third
parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of
private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even
cited in his Second Supplemental Reply Memorandum both the second part of the
diary, published on February 5, 2001, 4 and the third part, published on February 6,
2001. 5 It was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.

Even assuming arguendo that the Angara Diary was an out of court statement,
still its use is not covered by the hearsay rule. 6 Evidence is called hearsay when its
probative force depends, in whole or in part, on the competency and credibility of
some persons other than the witness by whom it is sought to produce it. 7 There are
three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2)
absence of demeanor evidence, and (3) absence of the oath. 8 Not all hearsay evidence,
however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence
has been admitted by courts due to their relevance, trustworthiness and necessity. 9
The emergence of these exceptions and their wide spread acceptance is well-
explained by Weinstein, Mansfield, Abrams and Berger as follows:

"...
 On the other hand, we all make decisions in our everyday lives on the basis of
other persons' accounts of what happened, and verdicts are usually sustained and
affirmed even if they are based on hearsay erroneously admitted, or admitted because
no objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985)
(hearsay evidence alone can support a verdict). Although volumes have been written
suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude categories
of highly probative statements from the definition of hearsay (sections 2 and 3, infra),
and to develop more class exceptions to the hearsay rule (sections 4-11, infra).
Furthermore, many states have added to their rules the residual, or catch-all,
exceptions first pioneered by the Federal Rules which authorize the admission of
hearsay that does not satisfy a class exception, provided it is adequately trustworthy
and probative (section 12, infra).

Moreover, some commentators believe that the hearsay rule should be

abolished altogether instead of being loosened. See, e.g., Note, The Theoretical
Foundation of the Hearsay Rules, 93 Harv. L. Rev. 1786, 1804-1805, 1815 (1980)
(footnotes omitted):

The Federal Rules of Evidence provide that 'although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.' Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely
a subdivision of this structure, and the Federal Rules do not conceive of hearsay in
that manner. Prejudice refers to the jury's use of evidence for inferences other than
those for which the evidence is legally relevant; by contrast, the rule against hearsay
questions the jury's ability to evaluate the strength of a legitimate inference to be
drawn from the evidence. For example, were a judge to exclude testimony because a
witness was particularly smooth or convincing, there would be no doubt as to the
usurpation of the jury's function. Thus, unlike prejudices recognized by the evidence
rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victim's final state, the exclusion of hearsay on the basis of
misperception strikes at the root of the jury's function by usurping its power to
process quite ordinary evidence, the type of information routinely encountered by
jurors in their everyday lives.
 ...

Since virtually all criteria seeking to distinguish between good and bad hearsay
are either incoherent, inconsistent, or indeterminate, the only alternative to a general
rule of admission would be an absolute rule of exclusion, which is surely inferior.
More important, the assumptions necessary to justify a rule against hearsay . . . seem
insupportable and, in any event, are inconsistent with accepted notions of the function
of the jury. Therefore, the hearsay rules should be abolished.

Some support for this view can be found in the limited empirical research now
available which is, however, derived from simulations that suggests that admitting
hearsay has little effect on trial outcomes because jurors discount the value of hearsay
evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings,
General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, &
Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park & Penrod, Jurors' Perceptions of Eyewitness and
Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A
Preliminary Empirical Inquiry Concerning the prohibition of Hearsay Evidence in
American Courts, 15 Law & Psychol. Rev. 65 (1991).

Others, even if they concede that restrictions on hearsay have some utility,
question whether the benefits outweigh the cost:

The cost of maintaining the rule is not just a function of its contribution to
justice. It also includes the time spent on litigating the rule. And of course this is not
just a cost voluntarily borne by the parties, for in our system virtually all the cost of the
court salaries, administrative costs, and capital costs are borne by the public. As
expensive as litigation is for the parties, it is supported by an enormous public
subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes
other costs as well. Enormous time is spent teaching and writing about the hearsay
rule, which are both costly enterprises. In some law schools, students spend over half
their time in evidence classes learning the intricacies of the hearsay rule, and . . .
enormous academic resources are expended on the rule.

Allen, Commentary on Professor Friendman's Article: The Evolution of the

Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 1992 (but would abolish
rule only in civil cases). See also Friedman, Toward a Partial Economic, Game
Theoretic Analysis of Hearsay, 76 Minn.L.Rev. 723 (1992)." 10

A complete analysis of any hearsay problem requires that we further determine

whether the hearsay evidence is one exempted from the rules of exclusion. A more
circumspect examination of our rules of exclusion will show that they do not cover
admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule
130 provides that "the act, declaration or omission of a party as to a relevant fact may
be given in evidence against him." 11 It has long been settled that these admissions are
admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of
Appeals cites the various authorities who explain why admissions are not covered by
the hearsay rule: 12

"Wigmore, after pointing out that the party's declaration has generally the
probative value of any other person's assertion, argued that it had a special value when
offered against the party. In that circumstance, the admission discredits the party's
statement with the present claim asserted in pleadings and testimony, much like a
witness impeached by contradictory statements. Moreover, he continued, admissions
pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be
excluded if there was no opportunity for the opponent to cross-examine because it is
the opponent's own declaration, and 'he does not need to cross-examine himself.'
Wigmore then added that the Hearsay Rules is satisfied since the party now as
opponent has the full opportunity to put himself on the stand and explain his former
assertion. (Wigmore on Evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154,
McCormick)

According to Morgan: 'The admissibility of an admission made by the party

himself rests not upon any notion that the circumstances in which it was made
furnish the trier means of evaluating it fairly, but upon the adversary theory of
litigation. A party can hardly object that he had no opportunity to cross-examine
himself or that he is unworthy of credence save when speaking under sanction of an
oath.'

A man's acts, conduct, and declaration, wherever made, if voluntary, are

admissible against him, for the reason that it is fair to presume that they correspond
with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583)."
The Angara Diary contains direct statements of petitioner which can be categorized as
admissions of a party: his proposal for a snap presidential election where he would not
be a candidate; his statement that he only wanted the five-day period promised by
Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the
second envelope would be opened by Monday and "Pagod na pagod na ako. Ayoko na,
masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
tired. I don't want any more of this it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue). I just want to clear my name, then I will go." We noted that
days before, petitioner has repeatedly declared that he would not resign despite the
growing clamor for his resignation. The reason for the meltdown is obvious his will
not to resign has wilted.

It is, however, argued that the Angara Diary is not the diary of the petitioner,
hence, non-binding on him. The argument overlooks the doctrine of adoptive
admission. An adoptive admission is a party's reaction to a statement or action by
another person when it is reasonable to treat the party's reaction as an admission of
something stated or implied by the other person. 13 Jones explains that the "basis for
admissibility of admissions made vicariously is that arising from the ratification or
adoption by the party of the statements which the other person had made." 14 To use
the blunt language of Mueller and Kirkpatrick, this process of attribution is not
mumbo jumbo but common sense." 15 In the Angara Diary, the options of the
petitioner started to dwindle when the armed forces withdrew its support from him as
President and commander-in-chief. Thus, Executive Secretary Angara had to ask
Senate President Pimentel to advise petitioner to consider the option of "dignified exit
or resignation." Petitioner did not object to the suggested option but simply said he
could never leave the country. Petitioner's silence on this and other related
suggestions can be taken as an admission by him. 16

Petitioner further contends that the use of the Angara Diary against him violated
the rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the
Rules of Court, viz: "The rights of a party cannot be prejudiced by an act, declaration,
or omission of another, except as hereinafter provided."

Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect to
admissions by a co-partner or agent.

Executive Secretary Angara as such was an alter ego of the petitioner. He was
the Little President. Indeed, he was authorized by the petitioner to act for him in the
critical hours and days before he abandoned Malaca ang Palace. Thus, according to the
Angara Diary, the petitioner told Secretary Angara: "Mula umpisa pa lang ng
kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin." (Since
the start of the campaign, Ed, you have been the only one I've listened to. And now at
the end, you still are.)" 17 This statement of full trust was made by the petitioner after
Secretary Angara briefed him about the progress of the first negotiation. True to this
trust, the petitioner had to ask Secretary Angara if he would already leave Malaca ang
after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary
quotes the petitioner as saying to Secretary Angara: "Ed, kailangan ko na bang umalis?
(Do I have to leave now?)" 18 Secretary Angara told him to go and he did. Petitioner
cannot deny that Secretary Angara headed his team of negotiators that met with the
team of the respondent Arroyo to discuss the peaceful and orderly transfer of power
after his relinquishment of the powers of the presidency. The Diary shows that
petitioner was always briefed by Secretary Angara on the progress of their
negotiations. Secretary Angara acted for and in behalf of the petitioner in the crucial
days before respondent Arroyo took her oath as President. Consequently, petitioner is
bound by the acts and declarations of Secretary Angara.

Under our rules of evidence, admissions of an agent (Secretary Angara) are

binding on the principal (petitioner). 19 Jones very well explains the reasons for the
rule, viz: "What is done, by agent, is done by the principal through him, as through a
mere instrument. So, whatever is said by an agent, either in making a contract for his
principal, or at the time and accompanying the performance of any act within the
scope of his authority, having relation to, and connected with, and in the course of the
particular contract or transaction in which he is then engaged, or in the language of
the old writers, dum fervet opus is, in legal effect, said by his principal and admissible
in evidence against such principal." 20

Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they
are true or not. They belong to two (2) classes: (1) those statements which are the very
facts in issue, and (2) those statements which are circumstantial evidence of the facts
in issue. The second class includes the following: 21

a. Statements of a person showing his state of mind, that is, his mental
condition, knowledge, belief, intention, ill will and other emotions;

b. Statements of a person which show his physical condition, as illness and the
like;

c. Statements of a person from which an inference may be made as to the state

of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the
latter;

d. Statements which may identify the date, place and person in question; and

e. Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by
the prohibition against hearsay evidence: 22

" 1088. Mental State or Condition Proof of Knowledge. There are a number of
common issues, forming a general class, in proof of which hearsay is so obviously
necessary that it is not customary to refer to its admissibility as by virtue of any
exception to the general exclusionary rule. Admissibility, in such cases, is as of course.
For example, where any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the particular person
is to be taken as conclusive of his state of mind, the only method of proof available is
testimony of others to the acts or statements of such person. Where his acts or
statements are against his interest, they are plainly admissible within the rules
hereinabove announced as to admissions against interest. And even where not against
interest, if they are so closely connected with the event or transaction in issue as to
constitute once of the very facts in controversy, they become admissible of necessity."

As aforediscussed, the Angara Diary contains statements of the petitioner which

reflect his state of mind and are circumstantial evidence of his intent to resign. It also
contains statements of Secretary Angara from which we can reasonably deduce
petitioner's intent to resign. They are admissible and they are not covered by the rule
on hearsay. This has long been a quiet area of our law on evidence and petitioner's
attempt to foment a belated tempest cannot receive our imprimatur.

Petitioner also contends that the rules on authentication of private writings and
best evidence were violated in our Decision, viz:

"The use of the Angara Diary palpably breached several hornbook rules of
evidence, such as the rule on authentication of private writings . . .

...

A. Rule on Proof of Private Writings Violated

The rule governing private documents as evidence was violated. The law
provides that before any private writing offered as authentic is received in evidence,
its due execution and authenticity must be proved either: a) by anyone who saw the
document executed or written, or b) by evidence of the genuineness of the signature
or handwriting of the maker.

...

B. Best Evidence Rule Infringed

Clearly, the newspaper reproduction is not the best evidence of the Angara
diary. It is secondary evidence, of dubious authenticity. It was however used by this
Honorable Court without proof of the unavailability of the original or duplicate original
of the diary. The "Best Evidence Rules" should have been applied since the contents of
the diary are the subject of inquiry.

The rule is that, except in four (4) specific instances, "when the subject of
inquiry is the contents of a document, no evidence shall be admissible other than the
original document itself." 23

Petitioner's contention is without merit. In regard to the Best Evidence rule, the
Rules of Court provides in sections 2 to 4 of Rule 130, as follows:

"SECTION 2. Documentary evidence. Documents as evidence consist of writings

or any material containing letters, words, numbers, figures or other modes of written
expressions offered as proof of their contents.

SECTION 3. Original document must be produced; exceptions. When the subject

of inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.

SECTION 4. Original of document. (a) The original of a document is one the

contents of which are the subject of inquiry.

(b) When a document is in two or more copies executed at or about the same
time, with identical contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries are likewise
equally regarded as originals."

It is true that the Court relied not upon the original but only a copy of the Angara
Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so,
the Court, did not, however, violate the best evidence rule. Wigmore, in his book on
evidence, states that:

"Production of the original may be dispensed with, in the trial court's discretion,
whenever in the case in hand the opponent does not bona fide dispute the contents of
the document and no other useful purpose will be served by requiring production. 24
 ...

"In several Canadian provinces, the principle of unavailability has been

abandoned, for certain documents in which ordinarily no real dispute arose. This
measure is a sensible and progressive one and deserved universal adoption (post, sec.
1233). Its essential feature is that a copy may be used unconditionally, if the opponent
has been given an opportunity to inspect it." (emphasis supplied)

Francisco's opinion is of the same tenor, viz:

"Generally speaking, an objection by the party against whom secondary

evidence is sought to be introduced is essential to bring the best evidence rule into
application; and frequently, where secondary evidence has been admitted, the rule of
exclusion might have successfully been invoked if proper and timely objection had
been taken. No general rule as to the form or mode of objecting to the admission of
secondary evidence is set forth. Suffice it to say here that the objection should be made
in proper season that is, whenever it appears that there is better evidence than that
which is offered and before the secondary evidence has been admitted. The objection
itself should be sufficiently definite to present a tangible question for the court's
consideration." 25

He adds:

"Secondary evidence of the content of the writing will be received in evidence if

no objection is made to its reception." 26

In regard to the authentication of private writings, the Rules of Court provides in

section 20 of Rule 132, viz:

"SECTION 20. Proof of private document. Before any private document offered
as authentic is received in evidence, its due execution and authenticity must be proved
either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

 Any other private document need only be identified as that which it is claimed
to be."

On the rule of authentication of private writings, Francisco states that:

"A proper foundation must be laid for the admission of documentary evidence;
that is, the identity and authenticity of the document must be reasonably established
as a pre-requisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R.
1263, and others) However, a party who does not deny the genuineness of a proffered
instrument may not object that it was not properly identified before it was admitted in
evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835)." 27

Petitioner cites the case of State Prosecutors v. Muro, 28 which frowned on

reliance by courts on newspaper accounts. In that case, Judge Muro was dismissed
from the service for relying on a newspaper account in dismissing eleven (11) cases
against Mrs. Imelda Romualdez Marcos. There is a significant difference, however,
between the Muro case and the cases at bar. In the Muro case, Judge Muro dismissed
the cases against Mrs. Marcos on the basis of a newspaper account without affording
the prosecution "the basic opportunity to be heard on the matter by way of a written
comment or on oral argument . . . (this is) not only a blatant denial of elementary due
process to the Government but is palpably indicative of bad faith and partiality." In the
instant cases, however, the petitioner had an opportunity to object to the admissibility
of the Angara Diary when he filed his Memorandum dated February 20, 2001, Reply
Memorandum dated February 22, 2001, Supplemental Memorandum dated February
23, 2001, and Second Supplemental Memorandum dated February 24, 2001. He was
therefore not denied due process. In the words of Wigmore, supra, petitioner had "
been given an opportunity to inspect" the Angara Diary but did not object to its
admissibility. It is already too late in the day to raise his objections in an Omnibus
Motion, after the Angara Diary has been used as evidence and a decision rendered
partly on the basis thereof.

III

Temporary Inability
 Petitioner argues that the Court misinterpreted the meaning of section 11, Article
VII, of the Constitution in that Congress can only decide the issue of inability when
there is a variance of opinion between a majority of the Cabinet and the President. The
situation presents itself when majority of the Cabinet determines that the President is
unable to govern; later, the President informs Congress that his inability has ceased
but is contradicted by a majority of the members of the Cabinet. It is also urged that
the President's judgment that he is unable to govern temporarily which is thereafter
communicated to the Speaker of the House and the President of the Senate is the
political question which this Court cannot review.

We cannot sustain the petitioner. Lest petitioner forgets, he himself made the
submission in G.R. No. 146738 that "Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of Article VII." 29 We sustained this
submission and held that by its many acts, Congress has already determined and
dismissed the claim of alleged temporary inability to govern proffered by petitioner. If
petitioner now feels aggrieved by the manner Congress exercised its power, it is
incumbent upon him to seek redress from Congress itself. The power is conceded by
the petitioner to be with Congress and its alleged erroneous exercise cannot be
corrected by this Court. The recognition of respondent Arroyo as our de jure president
made by Congress is unquestionably a political judgment. It is significant that House
Resolution No. 176 cited as the bases of its judgment such factors as the "people's loss
of confidence on the ability of former President Joseph Ejercito Estrada to effectively
govern" and the "members of the international community had extended their
recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic
of the Philippines" and it has a constitutional duty "of fealty to the supreme will of the
people . . .." This political judgment may be right or wrong but Congress is answerable
only to the people for its judgment. Its wisdom is fit to be debated before the tribunal
of the people and not before a court of justice. Needless to state, the doctrine of
separation of power constitutes an insuperable bar against this Court's interposition of
its power of judicial review to review the judgment of Congress rejecting petitioner's
claim that he is still the President, albeit on leave and that respondent Arroyo is
merely an acting President.
 Petitioner attempts to extricate himself from his submission that Congress has
the ultimate authority to determine his inability to govern, and whose determination is
a political question by now arguing that whether one is a de jure or de facto President
is a judicial question. Petitioner's change of theory, ill disguised as it is, does not at all
impress. The cases at bar do not present the general issue of whether the respondent
Arroyo is the de jure or a de facto President. Specific issues were raised to the Court
for resolution and we ruled on an issue by issue basis. On the issue of resignation
under section 8, Article VII of the Constitution, we held that the issue is legal and ruled
that petitioner has resigned from office before respondent Arroyo took her oath as
President. On the issue of inability to govern under section 11, Article VII of the
Constitution, we held that Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is
a political judgment which this Court cannot review. Petitioner cannot blur these
specific rulings by the generalization that whether one is a de jure or de facto
President is a judicial question.

Petitioner now appears to fault Congress for its various acts expressed thru
resolutions which brushed off his temporary inability to govern and President-on-
leave argument. He asserts that these acts of Congress should not be accorded any
legal significance because: (1) they are post facto and (2) a declaration of presidential
incapacity cannot be implied.

We disagree. There is nothing in section 11 of Article VII of the Constitution

which states that the declaration by Congress of the President's inability must always
be a priori or before the Vice-President assumes the presidency. In the cases at bar,
special consideration should be given to the fact that the events which led to the
resignation of the petitioner happened at express speed and culminated on a Saturday.
Congress was then not in session and had no reasonable opportunity to act a priori on
petitioner's letter claiming inability to govern. To be sure, however, the petitioner
cannot strictly maintain that the President of the Senate, the Honorable Aquilino
Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable
Arnulfo P. Fuentebella, recognized respondent Arroyo as the "constitutional successor
to the presidency" post facto. Petitioner himself states that his letter alleging his
inability to govern was "received by the Office of the Speaker on January 20, 2001 at
8:30 A.M. and the Office of the Senate at 9 P.M. of the same day." 30 Respondent took
her oath of office a few minutes past 12 o'clock in the afternoon of January 20. Before
the oath-taking, Senate President Pimentel, Jr. and Speaker Fuentebella had prepared
a Joint Statement which states: 31 EAaHTI

"Joint Statement of Support and Recognition from the Senate President and the
Speaker of the House of Representatives

We, the elected leaders of the Senate and the House of Representatives, are
called upon to address the constitutional crisis affecting the authority of the President
to effectively govern our distressed nation. We understand that the Supreme Court at
that time is issuing an en banc resolution recognizing this political reality. While we
may differ on the means to effect a change of leadership, we however, cannot be
indifferent and must act resolutely. Thus, in line with our sworn duty to represent our
people and in pursuit of our goals for peace and prosperity to all, we, the Senate
President and the Speaker of the House of Representatives, hereby declare our support
and recognition to the constitutional successor to the Presidency. We similarly call on
all sectors to close ranks despite our political differences. May God Bless our nation in
this period of new beginnings.

Mabuhay ang Pilipinas at ang mamamayang Pilipino.

(Sgd.) AQUILINO PIMENTEL, JR.

Senate President

(Sgd.) ARNULFO P. FUENTEBELLA

Speaker of the House of Representatives"

This a priori recognition by the President of the Senate and the Speaker of the House
of Representatives of respondent Arroyo as the "constitutional successor to the
presidency" was followed post facto by various resolutions of the Senate and the
House, in effect, confirming this recognition. Thus, Resolution No. 176 expressed ". . .
the support of the House of Representatives to the assumption into office by Vice-
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her administration as a
partner in the attainment of the nation's goal under the Constitution. 32 Resolution No.
82 of the Senate and Resolution No. 178 of the House of Representatives both
confirmed the nomination of then Senator Teofisto Guingona, Jr., as Vice-President. 33
It also passed Resolution No. 83 declaring the impeachment court functus officio. 34
Both Houses sent bills to respondent Arroyo to be signed by her into law as President
of the Philippines. 35 These acts of Congress, a priori and post facto, cannot be
dismissed as merely implied recognitions of respondent Arroyo, as the president of
the Republic. Petitioner's insistence that respondent Arroyo is just a de facto President
because said acts of Congress ". . . are mere circumstances of acquiescence calculated
to induce people to submit to respondent's exercise of the powers of the presidency"
36 is a guesswork far divorced from reality to deserve further discussion.

Similarly way off the mark is petitioner's point that "while the Constitution has
made Congress the national board of canvassers for presidential and vice-presidential
elections, this Honorable Court nonetheless remains the sole judge in presidential and
vice presidential contests. 37 He thus postulates that "such constitutional provision 38
is indicative of the desire of the sovereign people to keep out of the hands of Congress
questions as to the legality of a person's claim to the presidential office." 39 Suffice to
state that the inference is illogical. Indeed, there is no room to resort to inference. The
Constitution clearly sets out the structure on how vacancies and election contest in the
office of the President shall be decided. Thus, section 7 of Article VII covers the
instance when (a) the President-elect fails to qualify, (b) if a President shall not have
been chosen and (c) if at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled. Section 8 of Article VII
covers the situation of the death, permanent disability, removal from office or
resignation of the President. Section 11 of Article VII covers the case where the
President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and
duties of his office. In each case, the Constitution specifies the body that will resolve
the issues that may arise from the contingency. In case of election contest, section 4,
Article VII provides that the contests shall be resolved by this Court sitting en banc. In
case of resignation of the President, it is not disputed that this Court has jurisdiction to
decide the issue. In case of inability to govern, section 11 of Article VII gives the
Congress the power to adjudge the issue and petitioner himself submitted this thesis
which was shared by this Court. In light of these clear provisions of the Constitution, it
is inappropriate, to say the least, for petitioner to make inferences that simply distort
their meanings.
 IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the
Constitution which provides:

"(7) Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted should nevertheless be liable and subject to
prosecution, trial and punishment according to law."

Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision
will not yield this conclusion. The provision conveys two uncomplicated ideas: first, it
tells us that judgment in impeachment cases has a limited reach . . . i.e., it cannot
extend further than removal from office and disqualification to hold any office under
the Republic of the Philippines, and second, it tells us the consequence of the limited
reach of a judgment in impeachment proceedings considering its nature, i.e., that the
party convicted shall still be liable and subject to prosecution, trial and punishment
according to law. No amount of manipulation will justify petitioner's non sequitur
submission that the provision requires that his conviction in the impeachment
proceedings is a condition sine qua non to his prosecution, trial and punishment for
the offenses he is now facing before the respondent Ombudsman.

Petitioner contends that the private and public prosecutors' walk out from the
impeachment proceedings "should be considered failure to prosecute on the part of
the public and private prosecutors, and the termination of the case by the Senate is
equivalent to acquittal." 40 He explains "failure to prosecute" as the "failure of the
prosecution to prove the case, hence dismissal on such grounds is a dismissal on the
merits." 41 He then concludes that "dismissal of a case for failure to prosecute amounts
to an acquittal for purposes of applying the rule against double jeopardy." 42

Without ruling on the nature of impeachment proceedings, we reject

petitioner's submission.
 The records will show that the prosecutors walked out in the January 16, 2001
hearing of the impeachment cases when by a vote of 11-10, the Senator-judges refused
to open the second envelope allegedly containing the P3.3 billion deposit of the
petitioner in a secret bank account under the name "Jose Velarde". The next day,
January 17, the public prosecutors submitted a letter to the Speaker of the House
tendering their resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco immediately moved
for the indefinite suspension of the impeachment proceedings until the House of
Representatives shall have resolved the resignation of the public prosecutors. The
Roco motion was then granted by Chief Justice Davide, Jr. Before the House could
resolve the issue of resignation of its prosecutors or on January 20, 2001, petitioner
relinquished the presidency and respondent Arroyo took her oath as President of the
Republic. Thus, on February 7, 2001, the Senate passed Resolution No. 83 declaring
that the impeachment court is functus officio.

Prescinding from these facts, petitioner cannot invoke double jeopardy. Double
jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3)
after arraignment; (4) when a valid plea has been entered; and (5) when the defendant
was acquitted or convicted or the case was dismissed or otherwise terminated without
the express consent of the accused. 43 Assuming arguendo that the first four
requisites of double jeopardy were complied with, petitioner failed to satisfy the fifth
requisite for he was not acquitted nor was the impeachment proceeding dismissed
without his express consent. Petitioner's claim of double jeopardy cannot be
predicated on prior conviction for he was not convicted by the impeachment court. At
best, his claim of previous acquittal may be scrutinized in light of a violation of his
right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a
failure to prosecute, which is what happens when the accused is not given a speedy
trial, means failure of the prosecution to prove the case. Hence, dismissal on such
grounds is a dismissal on the merits. 44

This Court held in Esme a v. Pogoy 45 , viz:

"If the defendant wants to exercise his constitutional right to a speedy trial, he
should ask, not for the dismissal, but for the trial of the case. After the prosecution's
motion for postponement of the trial is denied and upon order of the court the fiscal
does not or cannot produce his evidence and, consequently fails to prove the
defendant's guilt, the court upon defendant's motion shall dismiss the case, such
dismissal amounting to an acquittal of the defendant."

In a more recent case, this Court held:

"It is true that in an unbroken line of cases, we have held that the dismissal of
cases on the ground of failure to prosecute is equivalent to an acquittal that would bar
further prosecution of the accused for the same offense. It must be stressed, however,
that these dismissals were predicated on the clear right of the accused to speedy trial.
These cases are not applicable to the petition at bench considering that the right of the
private respondents to speedy trial has not been violated by the State. For this reason,
private respondents cannot invoke their right against double jeopardy." 46

Petitioner did not move for the dismissal of the impeachment case against him.
Even assuming arguendo that there was a move for its dismissal, not every invocation
of an accused's right to speedy trial is meritorious. While the Court accords due
importance to an accused's right to a speedy trial and adheres to a policy of speedy
administration of justice, this right cannot be invoked loosely. Unjustified
postponements which prolong the trial for an unreasonable length of time are what
offend the right of the accused to speedy trial. 47 The following provisions of the
Revised Rules of Criminal Procedure are apropos:

"Rule 115, Section 1(h). Rights of accused at the trial. In all criminal prosecutions,
the accused shall be entitled to the following rights:

(h) To have speedy, impartial and public trial."

"Rule 119, Section 2. Continuous trial until terminated; postponements. Trial

once commenced shall continue from day to day as far as practicable until terminated.
It may be postponed for a reasonable length of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set
the case for continuous trial on a weekly or other short-term trial calendar at the
earliest possible time so as to ensure speedy trial. In no case shall the entire trial
period exceed one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court."
 Petitioner therefore failed to show that the postponement of the impeachment
proceedings was unjustified, much less that it was for an unreasonable length of time.
Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended
until the House of Representatives shall have resolved the issue on the resignation of
the public prosecutors. This was justified and understandable for an impeachment
proceeding without a panel of prosecutors is a mockery of the impeachment process.
However, three (3) days from the suspension or January 20, 2001, petitioner's
resignation supervened. With the sudden turn of events, the impeachment court
became functus officio and the proceedings were therefore terminated. By no stretch
of the imagination can the four-day period from the time the impeachment proceeding
was suspended to the day petitioner resigned, constitute an unreasonable period of
delay violative of the right of the accused to speedy trial.

Nor can the claim of double jeopardy be grounded on the dismissal or

termination of the case without the express consent of the accused. We reiterate that
the impeachment proceeding was closed only after the petitioner had resigned from
the presidency, thereby rendering the impeachment court functus officio. By resigning
from the presidency, petitioner more than consented to the termination of the
impeachment case against him, for he brought about the termination of the
impeachment proceedings. We have consistently ruled that when the dismissal or
termination of the case is made at the instance of the accused, there is no double
jeopardy. 48

Petitioner stubbornly clings to the contention that he is entitled to absolute

immunity from suit. His arguments are merely recycled and we need not prolong the
longevity of the debate on the subject. In our Decision, we exhaustively traced the
origin of executive immunity in our jurisdiction and its bends and turns up to the
present time. We held that given the intent of the 1987 Constitution to breathe life to
the policy that a public office is a public trust, the petitioner, as a non-sitting President,
cannot claim executive immunity for his alleged criminal acts committed while a
sitting President. Petitioner's rehashed arguments including their thinly disguised
new spins are based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term of office or
until June 30, 2004 disregards the reality that he has relinquished the presidency and
there is now a new de jure President.
 Petitioner goes a step further and avers that even a non-sitting President enjoys
immunity from suit during his term of office. He buttresses his position with the
deliberations of the Constitutional Commission, viz:

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft
proposal the immunity provision for the President. I agree with Commissioner
Nolledo that the Committee did very well in striking out this second sentence, at the
very least, of the original provision on immunity from suit under the 1973
Constitution. But would the Committee members not agree to a restoration of at least
the first sentence that the president shall be immune from suit during his tenure,
considering that if we do not provide him that kind of an immunity, he might be
spending all his time facing litigations, as the President-in-exile in Hawaii is now
facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present

jurisprudence that during his tenure he is immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification." 49

Petitioner, however, fails to distinguish between term and tenure. The term
means the time during which the officer may claim to hold the office as of right, and
fixes the interval after which the several incumbents shall succeed one another. The
tenure represents the term during which the incumbent actually holds office. The
tenure may be shorter than the term for reasons within or beyond the power of the
incumbent. 50 From the deliberations, the intent of the framers is clear that the
immunity of the president from suit is concurrent only with his tenure and not his
term.

Indeed, petitioner's stubborn stance cannot but bolster the belief that the cases
at bar were filed not really for petitioner to reclaim the presidency but just to take
advantage of the immunity attached to the presidency and thus, derail the
investigation of the criminal cases pending against him in the Office of the
Ombudsman.

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair
trial have been prejudiced by pre-trial publicity. In our Decision, we held that there is
not enough evidence to sustain petitioner's claim of prejudicial publicity.
Unconvinced, petitioner alleges that the vivid narration of events in our Decision itself
proves the pervasiveness of the prejudicial publicity. He then posits the thesis that
"doubtless, the national fixation with the probable guilt of petitioner fueled by the hate
campaign launched by some high circulation newspaper and by the bully pulpit of
priests and bishops left indelible impression on all sectors of the citizenry and all
regions, so harsh and so pervasive that the prosecution and the judiciary can no
longer assure petitioner a sporting chance." 51 To be sure, petitioner engages in
exaggeration when he alleges that "all sectors of the citizenry and all regions" have
been irrevocably influenced by this barrage of prejudicial publicity. This exaggeration
collides with petitioner's claim that he still enjoys the support of the majority of our
people, especially the masses.

Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the
transaction speaks for itself) to support his argument. Under the res ipsa loquitur rule
in its broad sense, the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question of fact for defendant to
meet with an explanation. 52 It is not a rule of substantive law but more a procedural
rule. Its mere invocation does not exempt the plaintiff with the requirement of proof to
prove negligence. It merely allows the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence and to thereby place on the defendant the
burden of going forward with the proof. 53

We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule
usually applied only in tort cases, to the cases at bar. Indeed, there is no court in the
whole world that has applied the res ipsa loquitur rule to resolve the issue of
prejudicial publicity. We again stress that the issue before us is whether the alleged
pervasive publicity of the cases against the petitioner has prejudiced the minds of the
members of the panel of investigators. We reiterate the test we laid down in People v.
Teehankee, 54 to resolve this issue, viz:

"We cannot sustain appellant's claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media gave the
case at bar pervasive publicity, just like all high profile and high stake criminal trials.
Then and now, we rule that the right of an accused to a fair trial is not incompatible to
a free press. To be sure, responsible reporting enhances an accused's right to a fair
trial for, as well pointed out, a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field . . .. The
press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial.
The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel
coverage does not by itself prove that the publicity so permeated the mind of the trial
judge and impaired his impartiality. For one, it is impossible to seal the minds of
members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they
happen straight to our breakfast tables and right to our bedrooms. These news form
part of our everyday menu of the facts and fictions of life. For another, our idea of a fair
and impartial judge is not that of a hermit who is out of touch with the world. We have
not installed the jury system whose members are overly protected from publicity test
they lost their impartiality . . .. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a litigation.
Their mere exposure to publications and publicity stunts does not per se fatally infect
their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. vs. Alejandro, et al., we rejected this standard of possibility
of prejudice and adopted the test of actual prejudice as we ruled that to warrant a
finding of prejudicial publicity, there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the barrage of publicity. In
the case at bar, the records do not show that the trial judge developed actual bias
against appellant as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of prejudicial publicity which is
incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden."

Petitioner keeps on pounding on the adverse publicity against him but fails to
prove how the impartiality of the panel of investigators from the Office of the
Ombudsman has been infected by it. As we held before and we hold it again, petitioner
has completely failed to adduce any proof of actual prejudice developed by the
members of the Panel of Investigators. This fact must be established by clear and
convincing evidence and cannot be left to loose surmises and conjectures. In fact,
petitioner did not even identify the members of the Panel of Investigators. We cannot
replace this test of actual prejudice with the rule of res ipsa loquitur as suggested by
the petitioner. The latter rule assumes that an injury (i.e., prejudicial publicity) has
been suffered and then shifts the burden to the panel of investigators to prove that the
impartiality of its members has been affected by said publicity. Such a rule will
overturn our case law that pervasive publicity is not per se prejudicial to the right of
an accused to fair trial. The cases are not wanting where an accused has been
acquitted despite pervasive publicity. 55 For this reason, we continue to hold that it is
not enough for petitioner to conjure possibility of prejudice but must prove actual
prejudice on the part of his investigators for the Court to sustain his plea. It is plain
that petitioner has failed to do so.

Petitioner again suggests that the Court should order a 2-month cooling off
period to allow passions to subside and hopefully the alleged prejudicial publicity
against him would die down. We regret not to acquiesce to the proposal. There is no
assurance that the so called 2-month cooling off period will achieve its purpose. The
investigation of the petitioner is a natural media event. It is the first time in our history
that a President will be investigated by the Office of the Ombudsman for alleged
commission of heinous crimes while a sitting President. His investigation will even be
monitored by the foreign press all over the world in view of its legal and historic
significance. In other words, petitioner cannot avoid the klieglight of publicity. But
what is important for the petitioner is that his constitutional rights are not violated in
the process of investigation. For this reason, we have warned the respondent
Ombudsman in our Decision to conduct petitioner's preliminary investigation in a
circus-free atmosphere. Petitioner is represented by brilliant legal minds who can
protect his rights as an accused.

VI

Recusation

Finally, petitioner prays that "the members of this Honorable Court who went to
EDSA put on record who they were and consider recusing or inhibiting themselves,
particularly those who had ex-parte contacts with those exerting pressure on this
Honorable Court, as mentioned in our Motion of March 9, 2001, given the need for the
cold neutrality of impartial judges." 56

We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to
attend her oath taking. As mere spectators of a historic even, said members of the
Court did not prejudge the legal basis of the claim of respondent Arroyo to the
presidency at the time she took her oath. Indeed, the Court in its en banc resolution on
January 22, 2001, the first working day after respondent Arroyo took her oath as
President, held in Administrative Matter No. 01-1-05 SC, to wit:
 "A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo
to Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo
to be sworn in as President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief
Justice on January 20, 2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that
may be filed by a proper party." DcaECT

The above resolution was unanimously passed by the 15 members of the Court. It
should be clear from the resolution that the Court did not treat the letter of respondent
Arroyo to be administered the oath by Chief Justice Davide, Jr. as a case but as an
administrative matter. If it were considered as a case, then petitioner has reason to
fear that the Court has predetermined the legitimacy of the claim of respondent
Arroyo to the presidency. To dispel the erroneous notion, the Court precisely treated
the letter as an administrative matter and emphasized that it was "without prejudice to
the disposition of any justiciable case that may be filed by a proper party." In further
clarification, the Court on February 20, 2001 issued another resolution to inform the
parties and the public that it ". . . did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution." Thus there is no reason for
petitioner to request for the said twelve (12) justices to recuse themselves. To be sure, a
motion to inhibit filed by a party after losing his case is suspect and is regarded with
general disfavor.

Moreover, to disqualify any of the members of the Court, particularly a majority

of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as
established by the fundamental law. Disqualification of a judge is a deprivation of his
judicial power. And if that judge is the one designated by the Constitution to exercise
the jurisdiction of his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the deprivation of the judicial
power of the court itself. It affects the very heart of judicial independence. 57 The
proposed mass disqualification, if sanctioned and ordered, would leave the Court no
alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices. 58

IN VIEW WHEREOF, petitioner's Motion for Reconsideration in G.R. Nos. 146710-

15 and his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit.

SO ORDERED.

Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr.,

JJ., concur.

Davide, Jr., C.J., no part for reason given in open forum and in the extended
explanation.

Vitug, J., please see separate concurring opinion.

Kapunan, J., I concur in the result but strongly reiterate my separate opinion in
the main case.

Mendoza, J., please see concurring opinion.

Panganiban, J., took no part; see my "Extended Explanation of Inhibition"

promulgated on March 8, 2001.

Ynares-Santiago, J., I concur in the result but maintain my separate opinion in

the main decision.

Sandoval-Gutierrez, J., I concur in the result subject to my separate opinion in

the main decision.

Separate Opinions

VITUG, J ., concurring:

By a vote of 13-0, the Supreme Court, in its decision promulgated on 02 March

2001, confirmed the legitimacy of the Arroyo government.
 The motion for reconsideration submitted by Mr. Joseph E. Estrada seeks to
have a more circumspect statement of the facts and conclusions given by the Court on
the ascendancy of Mme. Gloria Macapagal-Arroyo to the highest post of the land. It is
basically argued that minute details and hairline distinctions would show that the
departure from Malaca ang of the former President could not have possibly fallen
under any of the circumstances of vacancy enumerated in the Constitution so as to
legally allow the takeover of the office by the now incumbent. All the other material
allegations really wrangle on this point.

There, truly, might never be a definitive consensus, let alone unanimity, on the
fine and valid issues heretofore submitted by petitioner. To dissect the events into
miniscule parts for microscopic scrutiny, however, could in the end be just begging
the question. The varying versions of the events and their differing interpretations
notwithstanding, one circumstance still remained clear, and it was that a convergence
and confluence of events, sparked by a civilian dissent which set into motion a domino
effect on the government itself, plagued the presidency. The things that occurred were
no longer to be yet in dispute but were matters of fact. Contra factum non valet
argumentum.

At little past noon on 20 January 2001, then incumbent Vice-President Gloria

Macapagal-Arroyo would take her oath of office to become the 14th President of the
Republic of the Philippines. She would take over the reins of government for the
remaining tenure of her predecessor, President Joseph Ejercito Estrada, still then the
incumbent. Mr. Estrada had by then practically lost effective control of the
government. Within hours after a controversial Senate decision that ended abruptly
the impeachment proceedings against Mr. Estrada, an irate people came in force to the
site of the previous uprising in 1986 EDSA that toppled the 20-year rule of former
President Ferdinand E. Marcos and this time demanded the immediate ouster of Mr.
Estrada. Shortly thereafter, civic leaders and government personalities, including
most of the cabinet members, and still later the military establishment and the
national police, joined cause with the mass of people.

When the formal oath-taking finally came, Mme. Gloria Macapagal-Arroyo

officially assumed the Office of the President, and Mr. Estrada forthwith ceased to
govern. The alarming unrest and turmoil ended with the assumption of the new
leadership. The tenor of the oath actually taken by Mme. Macapagal-Arroyo and the
farewell message of Mr. Estrada to the nation upon his leaving the seat of power rested
the reality. Intentio mea imponet nomen operi meo.

The primordial question that emerged was no longer whether the transfer of
power had, in fact, occurred it did or whether it was ideal or bereft of equanimity but
whether the change was within Constitutional parameters the 1987 Constitution its
letter, intent and spirit or was revolutionary in character. To be sure, the debate will
persist on end. For, indeed, the events were such that it could have well been one or
the other. It was a critical close call. The indications would seem that much also
depended, by good margin, on how the powerholders would have wanted it to be at the
time. The circumstances that prevailed would have likely allowed them to declare a
revolutionary government, to dismantle the old, and to have a new one installed,
thereby effectively abrogating the Constitution until yet another if minded. Respondent
could have, so enjoying a show of overwhelming civilian and military support as she
did, forever silenced any legal challenge to her leadership by choosing a previously-
tested path trodden by then President Corazon C. Aquino fifteen years before declaring
a revolutionary government, doing away with the constitution and railroading all
extant democratic institutions and, once ensconced in power, rule by decree. The large
group of people, already then impatient after a four-day vigil at EDSA and later at
Mendiola, could have given in to the popular passions and impulses that prevailed,
stormed Malaca ang gates, bodily removed petitioner from office and, in his place,
sworn in respondent, or any other person or group not so dictated by the Charter as
the successor.

It was fortunate that the play of events had it otherwise, more likely by design
than not, and the Constitution was saved, personas transposed. The succession by
Mme. Macapagal-Arroyo resulted neither in the rupture nor in the abrogation of the
legal order. The ascension to power was by the duly-elected Vice-President of the
Republic. The Armed Forces of the Philippines and the Philippine National Police felt
that they were so acting only in obedience to their mandate as the protector of the
people. The constitutionally-established government structure, embracing various
offices under the executive branch, the judiciary, the legislature, the constitutional
commissions and still other entities, including the local governments, remained intact
and functioning. Immediate stability was achieved, violence was averted, and the
country was spared from possible catastrophe.

If, as Mr. Estrada would so have it, the takeover of the Presidency could not be
constitutionally justified, then, unavoidably, one would have to hold that the Arroyo
government, already and firmly in control then and now, would be nothing else but
revolutionary. And, if it were, the principal points brought up in the petitioners for and
in behalf of Mr. Estrada, predicated on constitutional grounds, would then be left bare
as there would, in the first place, be no Constitution to speak of. The invocation alone
of the jurisdiction of this Court would itself be without solid foundation absent its
charter.

To go back then to the basic question, in either way it is addressed, whether

affirmatively or negatively, the dismissal of the subject petitions, earlier decreed by the
Court, will have to be sustained.

But the EDSA II phenomenon must not end there. We might ask ourselves have
we, as a people, really shown to the world enough political maturity? Or have we now
found ourselves trapped and strangled in an epidemic of political instability? Or, is
perhaps our culture or psyche, as a nation, after all, incompatible with the kind of
democracy we have plucked from Western soil? EDSA II will be more than just an
exercise of people prerogative; it will also be a time for reflection and re-examination
of values and commitments. It is frightening to think that the sensitive cord of the
social fiber that binds us all as one people might so unwittingly be struck and severed.
Such a damage would be irreparable.

MENDOZA, J ., concurring:

For the reasons given in my concurring opinion in these cases, I am of the

opinion that, having lost the public trust and the support of his own cabinet, the
military and the national police, petitioner Joseph Ejercito Estrada became
permanently disabled from continuing as President of the Philippines and that
respondent Gloria Macapagal-Arroyo, being then the Vice-President, legally succeeded
to the presidency pursuant to Art. VII, 8 of the Constitution.
 My concern in this separate opinion is with petitioner's claim in G.R. Nos.
146710-15 that he must be deemed acquitted of the charges against him because the
Senate impeachment proceedings against him were terminated not at his instance,
and, consequently, he cannot be prosecuted again for the same offense(s) without
violating his right not to be placed in double jeopardy. CTHaSD

Petitioner cites Art. XI, 3(7) of the Constitution which provides that

Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject to prosecution, trial and
punishment according to law.

Petitioner argues that the purpose of the provision allowing subsequent prosecution
and trial of a party convicted in an impeachment trial is precisely to preclude a plea of
double jeopardy by the accused in the event he is convicted in the impeachment trial.

Petitioner's contention cannot be sustained. In the first place, the impeachment

proceedings against petitioner were terminated for being functus officio, since the
primary purpose of impeachment is the removal of the respondent therein from office
and his disqualification to hold any other office under the government.

In the second place, the proviso that an impeached and convicted public official
would "nevertheless" be subject to criminal prosecution serves to qualify the clause
that "judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines." In
other words, the public official convicted in an impeachment trial is nevertheless
subject to criminal prosecution because the penalty which can be meted out on him
cannot exceed removal from office and disqualification to hold office in the future.
Consequently, where as in this case, the impeachment proceedings did not result in
petitioner's conviction, there can be no objection to his subsequent trial and
conviction in a criminal case. The rule that an impeachable officer cannot be
criminally prosecuted for the same offenses which constitute grounds for
impeachment presupposes his continuance in office. 1 As Professor Tribe has written:
 . . . It should also be possible for an official to be acquitted by the Senate in an
impeachment trial but subsequently convicted of the same underlying acts in a federal
court. The Senate's acquittal, after all, could well represent a determination merely that
the charged offenses were not impeachable, or that the nation would be harmed more
than protected by pronouncing the official guilty. 2

Hence, the moment he is no longer in office because of his removal, resignation,

or permanent disability, there can be no bar to his criminal prosecution in the courts.

Indeed, tested by the ordinary rules of criminal procedure, since petitioner was
neither convicted nor acquitted in the impeachment proceedings, nor the case against
him dismissed without his consent, his prosecution in the Sandiganbayan for the
same offense for which he was impeached cannot be barred. 3

For these reasons, I concur in the denial of the motions for reconsideration filed
on behalf of petitioner in these cases.