Marcos v. Manglapus FACTS: February 1986, Ferdinand E.

Marcos was deposed from the presidency via the non-violent people power revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary government. Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family. Petitioners assert that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Furthermore, they contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits prescribed by law. Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect. The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed. The Universal Declaration of Human Rights provides: Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides: Article liberty of movement and freedom to choose his 12 residence.

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to

2)

Everyone

shall

be

free

to

leave

any

country,

including

his

own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4) No one shall be arbitrarily deprived of the right to enter his own country. ISSUES: Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines. Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcoses to the Philippines poses a serious threat to national interest and welfare and decided to bar their return. HELD: SC well-considered opinion that the President has a residual power which justifies her act of banning the return of the Marcoses and she did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines. It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to ones country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter ones country as separate and distinct rights. The Declaration speaks of the right to freedom of movement and residence within the borders of each state [Art. 13(l)] separately from the right to leave any country, including his own, and to return to his country. [Art. 13(2).] On the other hand, the Covenant guarantees the right to liberty of movement and freedom to choose his residence [Art. 12(l)] and the right to be free to leave any country, including his own. [Art. 12(2)] which rights may be restricted by such laws as are necessary to protect national security, public order, public health or morals or enter qqqs own country of which one cannot be arbitrarily deprived. [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to ones country in the same context as those pertaining to the liberty of abode and the right to travel. The right to return to ones country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our wellconsidered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different

protection under the International Covenant of Civil and Political Rights, i.e., against being arbitrarily deprived thereof [Art. 12 (4).] Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of executive power. Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the Presidents residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. The Constitution declares among the guiding principles that [t]he prime duty of the Government is to serve and protect the people and that [t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. [Art. II, Secs. 4 and 5.] More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the Presidents exercising as Commander-inChief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.

The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the fruition of the peoples sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility. We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice --In Re Bermudez Facts: This is a petition for declaratory relief filed by the petitioner Bermudez seeking for the clarification of Sec. 5, Art. 18 of the proposed 1986 Constitution, as quoted: Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. Petitioner sought the aid of the Court to determine as to whom between the incumbent Pres. Aquino and VP Laurel and elected Pres. Marcos and VP Tolentino the said provision refers to. Issue: Whether the Court should entertain the petition for declaratory relief? Held: It is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. (Note: ROC provides that the jurisdiction for petitions for declaratory relief is with the RTC ) More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent

Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. It being a matter of public record and common public knowledge that the

Constitutional Commission refers therein to incumbent President Corazon C. Aquino and VicePresident Salvador H. Laurel, and to no other persons, and provides for the extension of their term to noon of June 30, 1992 for purposes of synchronization of election --Soliven v. Makasiar FACTS: This case is a PETITION for certiorari and prohibition to review the decision of the Regional Trial Court of Manila ISSUES: 1. Whether or not the petitioners were denied due process when information for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently by the President 2. Whether or not the constitutional rights of Beltran (petitioner) were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable clause 3. Whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through filing of a complaint-affidavit DECISION: Finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions. The Order to maintain the status quo contained in the Resolution of the Court en banc is LIFTED. RATIO: Background of the first issue MARCH 30, 1988: Secretary of Justice denied petitioners motion for reconsideration APRIL 7, 1988: A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice MAY 2, 1988: On appeal, the President, through Executive Secretary, affirmed the resolution of the Secretary of Justice MAY 16, 1988: Motion for reconsideration was denied by the Executive Secretary Petitioner Beltran alleges that he has been denied due process of law. -This is negated by the fact that instead of submitting his counter-affidavits, he filed a Motion to Declare Proceedings Closed, in effect, waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded. Second issue This calls for an interpretation of the constitutional provision on the issuance of warrants of arrest: Art. III, Sec.2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Petitioner Beltran is convinced that the Constitution requires the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of warrants of arrests. -However, what the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In doing so, the judge is not required to personally examine the complainant and his witness. Following the established doctrine of procedure, the judge shall: (1) Personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause (and on the basis, thereof, issue a warrant of arrest); or (2) If on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the evidence of probable cause. Third issue Petitioner Beltran contends that proceedings ensue by virtue of the Presidents filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial courts jurisdiction. This would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. -This privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the Presidents behalf. -The choice of whether to exercise the privilege or to waive is solely the Presidents prerogative. It is a decision that cannot be assumed and imposed by any other person (And there is nothing in our laws that would prevent the President from waiving the privilege). Additional Issue: Beltran contends that he could not be held liable for libel because of the privileged character of the publication. He also says that to allow the libel case to proceed would produce a chilling effect on press freedom. -Court reiterates that it is not a trier of facts And Court finds no basis at this stage to rule on the chilling effect point. --Clinton v Jones Brief Fact Summary. The Respondent, Paula Jones Corbin (Respondent), filed a complaint containing four counts against the Petitioner, President Clinton (Petitioner), alleging the Petitioner made unwanted sexual advances towards her when he was the Governor of Arkansas. Synopsis of Rule of Law. The United States Constitution (Constitution) does not automatically grant the President of the United States immunity from civil lawsuits based upon his private conduct unrelated to his official duties as President. Facts. The Respondent filed a complaint against the Petitioner alleging that the Petitioner made unwanted sexual advances towards her when he was the Governor of Arkansas. The Petitioner filed motions asking the district court to dismiss the case on grounds of presidential immunity and to prohibit the Respondent from re-filing the suit until after the end of his presidency. The district court rejected the presidential immunity argument, but held that no trial would take place until the Petitioner was no longer president. Both parties appealed to the United States Supreme Court (Supreme Court), which granted certiorari. Issue. Whether the President can be involved in a lawsuit during his presidency for actions that occurred before the tenure of his presidency and that were not related to official duties of the presidency?

Held. Affirmed. The President of the United States can be involved in a lawsuit during his tenure for actions not related to his official duties as President. It was an abuse of discretion of the District Court to order a stay of this lawsuit until after the Presidents tenure. The District Courts decision to order a stay was premature and a lengthy and categorical stay takes no account whatsoever of the Respondents interest in bringing the suit to trial. Concurrence. It is important to recognize that civil lawsuits could significantly interfere with the public duties of an official. The concurring judge believed that ordinary case-management principles were likely to prove insufficient to deal with private civil lawsuits, unless supplemented with a constitutionally based requirement that district courts schedule proceedings so as to avoid significant interference with the Presidents ongoing discharge of his official responsibilities. Discussion. A sitting President of The United States does not have immunity from civil lawsuits based on the Presidents private actions unrelated to his public actions as President. The doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of government. --Neri v. Blue Ribbon Committee April 21, 2007 DOTC entered into a contract with ZTE for the supply of equipment and services for the NBN Project amounting to P16 Billion. The project was to be financed by the Peoples Republic of China Petitioner was summoned by respondents to appear and testify in the investigation on the NBN Project on a number of dates, however, he attended only on the Sept. 26 hearing. Sept. 18, 2007 businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the Project initially approved as a Build-Operate-Transfer project, but on March 29, 2007, NEDA acquiesced to convert it into a government-to-government project to be financed through a loan from the Chinese government. Sept. 26, 2007 petitioner testified before respondent Committees for 11 hours. He disclosed that COMELEC Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the project, and he informed President Arroyo about the bribery attempt. When probed further on what they discussed, petitioner refused to answer 3 questions, invoking executive privilege: - WON President Arroyo followed up the NBN Project - WON she directed him to prioritize it - WON she directed him to approve Respondents issued a Subpoena Ad Testificandum, requiring petitioner to appear and testify on Nov. 20, 2007. However, a Letter (Nov. 15, 2007) by Executive Secretary Ermita requested respondents to dispense with petitioners testimony on the ground of executive privilege that covers above questions, maintaining that the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process and for the protection of the public interest disclosure of information might impair our diplomatic and economic relations with China. Nov. 22, 2007 respondents issued the Show Cause Letter requiring him to explain why he should not be cited in contempt.

On Nov. 29, petitioner replied that it was not his intention to ignore the hearing and he thought the only remaining questions were those he claimed to be covered by executive privilege. He further requested to be furnished in advance as to what else he needs to clarify. In a letter by his counsel, it was stated that it was upon the order of the President that he did not appear, and that the conversation with the president dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal. Jan. 30, 2008 respondents found petitioners explanations unsatisfactory, and without responding to his reply, issued the Order citing him in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until he gives his testimony. The parties were directed to manifest to the Court if they were amenable to the Courts proposal of allowing petitioner to immediately resume his testimony before the respondents to answer other questions without prejudice to the decisions on the merits of this petition Senate disagreed. OSG Motion for Leave to Intervene: - Communications between petitioner and President are covered by the executive privilege. - Petitioner was not summoned by respondent in accordance with the power to inquiries in aid of legislation as laid down in Sec. 21, Art. 6, Constitution and Senate v. Ermita March 6, 2008 President Arroyo issued Memorandum Ciruclar No. 151, revoking EO 464 and Memorandum Circular N. 108, advising officials and employees to abide by the Consitution, existing laws and jurisprudence (Senate v. Ermita) when they are invited to legislative inquiries in aid of legislation. *Sec. 21, Art. 6 of Constitution Legislative powers of Congress relates to the power to conduct inquiries in aid of legislation aim is to elicit information that may be used for legislation can compel the appearance of executive officials *Sec. 22, Art. 6 of Constitution Oversight powers of Congress relates to the power to conduct a question hour to obtain information in pursuit of Congress oversight function cannot compel the appearance of executive officials *Principle of Separation of Powers - executive branch cannot frustrate power of Congress to legislate by refusing to comply with its demands of information - power of judicial review is available right of Congress to conduct inquiries in aid of legislation is susceptible to abuse subject to certiorari (Sec. 1, Art. 8, Constitution) Issues and Ratio: 1. WON the communications elicited by the 3 questions are covered by Executive Privilege. (YES. 2 reasons) *Power of Congress to conduct inquiries in aid of legislation broad legislative cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change compulsory process to enforce it limitations validity: done in accordance with the Senate or House duly published rules of procedure and the rights of persons appearing/affected be respected. Such power extends to executive officials and exemption can only be through a valid claim of executive privilege. a. There is a recognized claim of executive privilege despite revocation of EO 464. Concept of executive privilege has constitutional underpinnings.

US v. Nixon public interest: preserve confidentiality of conversations that take place in the Presidents performance of his official duties (presidential communications privilege) Presidents generalized interest in confidentiality provide him and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions. In Re: Sealed Case 2 kinds of executive privilege: (1) Presidential communications privilege communications, documents or other materials that reflect presidential decision-making and deliberations which President believes should remain confidential decision making of the President (separation of powers) (2) Deliberative process privilege advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated decision-making of the Executive Officials (common law privilege). The officials covered by the former are those functions that form the core of presidential authority that are quintessential and non-delegable Presidential power (commander in chief power, appointment/removal power, power to grant pardons/reprieves, etc) Courts ruled that Executive has a right to withhold documents that might reveal military/state secrets, identity of government informers, information related to pending information and foreign relations. Chavez v. PCGG secrets regarding military, diplomatic and other security matters. Chavez v. PEA Presidential conversations, correspondences in closed-door Cabinet meetings SC: Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the 3 questions fall under the conversation and correspondence between the President and public officials necessary in her executive and policy decision-making process disclosure might impair diplomatic & economic relations with Peoples Republic of China (Presidential Communications Privilege and Executive Privilege on matters relating to Diplomacy or Foreign Relations) - communications relate to a quintessential and non-delegable power (enter into an executive agreement w/ other countries w/o concurrence w/ Legislature) - communications are received by a close advisor of the President (operational proximity test petitioner is a member of the cabinet) - no adequate showing of a compelling need that would justify the limitation of the privilege. No categorical explanation from respondents to show a compelling need for the answers to the questions, and veer more towards exercise of legislative oversight function (Sec. 22, Art. 6) Respondents: a claim of executive privilege does not guard against a possible disclosure of a crime/wrongdoing (US v Nixon specific need for evidence in pending criminal trial outweighs Presidents interest in confidentiality) SC: information in this case is elicited not in a criminal proceeding but a legislative inquiry. The validity of exectuve privilege depends not only on the ground invoked but also on the procedural setting/context which the claim is made. Respondent: the grant of executive privilege violates constitutional provisions on the right of the people to information on matters of public concern (Sec. 7, Art. 3, Constitution) SC: Petitioner made himself available to them during the Sept. 26 hearing, questioned for 11 hours, and expressly manifested willingness to answer more questions except the 3 covered by executive privilege. Peoples right to information is limited by law (RA 6713, Sec. 7; RPC, Art. 229; RA 3019, Sec. 3(k); and Rules of Court, Rule 130, Sec. 24 (e)). The information in this case is classified as confidential wherein there is public interest in its confidentiality. Not every legislative inquiry is an exercise of peoples right to information. b. The claim of executive privilege is properly invoked. The letter (Nov. 17, 2007) of Executive Secretary Ermita satisfies the requirement for a formal claim of executive privilege (a precise and certain reason for preserving confidentiality). It serves as the formal claim of privilege: this Office is constrained to invoke the settled doctrine of executive privilege (Secretary v. Ermita), and the Office of the President has advised Sec. Neri accordingly The information if disclosed might impair diplomatic and economic relations with Peoples Republic of China. The grounds were specific enough so as not to leave respondent in

the dark on how the requested information could be classified as privileged. Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of information which the privilege sought to protect respect to a co-equal department. 2. WON respondent Committees committed grave abuse of discretion in issuing the Contempt Order. YES. 5 reasons: - There was a legitimate claim of executive privilege therefore the Order suffers from constitutional infirmity - Committees did not comply with the requirement (Senate v. Ermita) that the invitations should contain the possible needed statute which prompted the inquiry, the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. Compliance is imperative, both under Sec. 21 and 22 of Art. 6 of Constitution, to ensure rights of persons appearing and affected by the inquiry are respected. - It is revealed in the transcript that the proceeding on Jan. 30, 2008 had only a minority of the members of the Senate Blue Ribbon Committee present during the deliberation (7 only). Sec. 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that a vote of majority of its members may punish any witness for contempt. Members who did not actually participate in the deliberation were made to sign the contempt Order, and its validity is doubted. Sen. Pimentel insisted that the quorum of the committee was only 2 and that the will of the lead committee prevails over all the other. - The Court finds merit in the argument of the OSG that respondent violated Sec. 21, Art. 6 of the Constitution requiring that the inquiry be in accordance with the duly published rules of procedure, which the respondents failed to meet therefore its hearings were procedurally infirm. - Respondents issuance of the contempt Order were arbitrary and precipitate because it did not pass upon the claim of executive privilege and inform the petitioner of their ruling, curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order. Petitioner was not an unwilling witness and manifested his willingness to testify. Respondents denied him due process of law. Court was also accused of attempting to abandon its constitutional duty when it required parties to consider a proposal that would lead to a possible compromise it was only to test a tool that other jurisdictions find to be effective in settling similar cases to avoid a piecemeal consideration of the questions for review. Much of this spirit of compromise is reflected in the generality of language foundi n the Constitution (US v. American Tel. & Tel Co.). Judgment: Petition Granted. Contempt Order Nullified. Dissent: Puno, J. - The principle of separation of powers is not absolute a hermetic sealing off of the 3 branches of government from one another would preclude the establishment of a nation capable of governing itself effectively. - System of checks and balances the power of congressional oversight to enhance its understanding of and influence over implementation of legislation it has enacted review/investigation of executive branch action by legislatures corollary power of investigation. Standard justification: presumed need for new/remedial legislation (investigations in aid of legislation) - Legislative power of investigation includes power of contempt or process to enforce (Arnault v. Nazareno) incidental to/implied in legislative function cannot legislate wisely/effectively in the absence of information respecting the conditions which the legislation is intended to affect/change

- 2 requirements for the valid exercise of power of investigation and contempt of witness for contumacy: existence of a legislative purpose (in aid of legislation) and pertinency of the question propounded. - Validity of the claim of executive privilege depends on the ground invoked to justify it and the context in which it is made. - Presidential communications are presumptively privileged. To overcome the presumption, there must be sufficient showing/demonstration of specific need for the withheld information. 2 standards: evidentiary and constitutional. - Function Impairment Test the Court weighs how the disclosure of the withheld information would impair the Presidents ability to perform his constitutional duties more than nondisclosure would impair other branchs ability to perform its constitutional functions. - The SC cannot assess the validity of the claim of the Executive Secretary because paucity of explanation on on how diplomatic secrets will be exposed at the expense of our national interest if petitioner answers disputed questions. SC cannot determine whether there is reasonable danger if petitioner answers Court cannot engage in guesswork. - It is self-evident that the assailed questions are pertinent to the subject matter of legislative investigation and have direct relation to the subject and pending Senate bills. - Petitioner: respondents were seeking to establish the culpability of the President or the anomalies in the NBN-ZTE Contract. SC: motive of the Senate Committees in conducting their investigation is beyond the purview of the Courts power of judicial review questions are pertinent and there is no effective substitute for the information sought. - Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid for failure to be republished not a continuing body membership changes every 3 years (election) Senators have traditionally considered the Senate as a continuing body despite the change of part of its membership after an election does not cease its labor, Committees continue their work. By tradition, custom and practice, the Senate does not republish its rules especially when the same has not undergone any material change. Existing rules which have already undergone publication should be deemed adopted and continued regardless of election of new members. Internal rules respect for co-equal branch. - Respondent Senate Committees have good reasons in citing Neri for contempt for failing to appear on Nov. 20 hearing. There is no basis for petitioner and Executive Secretary to assume that petitioners further testimony will be limited only ton the 3 disputed questions. [SEE ORIG COPY, 1ST PAR. OF HIS DISSENT ON PUNOS NORTH STAR] - The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. Its doctrinal recognition in the Philippines finds its origin in the US political and legal system and literature. At the outset, it is worth noting that the provisions of the US Consti say little about government secrecy or public access. In contrast, the 1987 Consti is replete with provisions on government transparency, accountability and disclosure of info. This is a reaction to our years under martial rule when the workings of government were veiled in secrecy. - The boundaries established by the Consti delineating the powers of the 3 branches must be fashioned according to common sense and the necessities of governmental coordination. This Constitutional design requires an internal balancing mechanism by which government powers cannot be abused. We married all these

ideas in Angara v. Electoral Commission (1936). - There are 2 requirements for the valid exercise of the legislative power of investigation and contempt of witness for contumacy: 1st, the existence of a legislative purpose, i.e., the inquiry must be in aid of legislation, and 2nd, the pertinency of the question propounded. There is legislative purpose when the subject matter of the inquiry is one over which the legislature can legislate, such as the appropriation of public funds; and the creation, regulation and abolition of government agencies and positions. It is presumed that the facts are sought by inquiry, because the legislative body cannot legislate wisely or effectively in the absence of info respecting the conditions which the legislation is intended to affect or change. The Court (in Arnault v Nazareno) noted that the investigation gave rise to several bills recommended by the Special Committee and approved by the Senate. So under the first requirement, the dual requirements of authority are that the power exercised by the committee must be both within the authority delegated to it and within the competence of Congress to confer upon the committee. The test of pertinency is whether a question itself is in the ultimate area of investigation; a question is pertinent also if it is a usual and necessary stone in the arch of a bridge over which an investigation must go. In determining pertinency, the court looks to the history of the inquiry as disclosed by the record. Arnault states the rule on pertinency, viz: Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his Constitutional right against selfincrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Consti, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject matter of the inquiry or investigation. So a witness may not be coerced to answer a question that

obviously has no relation to the subject of the inquiry. But from this it does not follow that every question that may be propounded to a witness be material to any proposed or possible legislation. In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is, that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the info to be gathered as a result of the investigation, and not by a fraction of such info elicited from a single question. - The US (and Phil.) Consti does not directly mention executive privilege, but commentators theorized that the privilege of confidentiality is Constitutionally based, as it relates to the Presidents effective discharge of executive powers. The Founders of the American nation acknowledged an implied Constitutional prerogative of Presidential secrecy, a power they believed was at times necessary and proper. [PUNO WILL THEN DISCUSS HISTORY AND SCOPE & CONTEXT OF EXEC. PRIVILEGE IN THE US-PLS. SEE ORIG] - Adjudication on executive privilege in the Philippines is still in its infancy stage, with the Court having had only a few occasions to resolve cases that directly deal with the privilege: Almonte v Vasquez (1995) No military or diplomatic secrets would be disclosed by the production of records pertaining to the personnel of the Economic Intelligence and Investigation Bureau. Nor was there any law making personnel records of the EIIB classified. Thus, the Court concluded that the Ombudsmans need for the documents outweighed the claim of confidentiality of petitioners. Chavez v PCGG (1998) It was incumbent upon PCGG and its officers, as well as other govt representatives, to disclose sufficient public info on any proposed settlement they had decided to take up with the ostensible owners and holders of ill-gotten wealth. Such info, however, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the exploratory stage. At the same time, the

Court noted the need to observe the same restrictions on disclosure of info in general, such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified info. Again, the subject info did not fall under Presidential communications. Senate v Ermita (2006) Court again alluded to US v Nixon and also recognized that Presidential communications fall under the mantle of protection of executive privilege in the setting of a legislative inquiry. But since the issue for resolution was the Constitutionality of EO 464 and not whether an actual Presidential communication was covered by the privilege, the Court did not have occasion to rule on the same. [Start of US v Nixon discussion] - US v Nixon came about because of a breakin at the Democratic Natl Committee (DNC) headquarters in Watergate Hotel. In the early morning of June 17, 1972, about 4 months before the US Presidential election, police discovered 5 men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These men were operating as part of a larger intelligence gathering plan of the Committee to Re-elect the President, Pres Nixons campaign organization for the 1972 election. Their mission was to fix a defective bugging device which had been placed a month before on the telephone of the DNC chairperson. Their orders came from the higher officials of the CRP. A subpoena duces tecum was issued requiring Nixon to produce for the grand jury certain tape recordings and documents enumerated in an attached schedule. President Nixon partially complied with the subpoena, but otherwise declined to follow its directives. In a letter to the Court that issued the subpoena, the President advised that the tape recordings sought would not be provided, as he asserted that the President is not subject to the compulsory process of the courts. The Court ordered the President or any appropriate subordinate official to show cause why the documents and objects described should not be produced as evidence before the grand jury. The Court ruled that it had jurisdiction to decide the issue of privilege, and it had authority to enforce the subpoena duces tecum by way of an order requiring production for inspection in camera. Nixon appealed = Nixon v Sirica. Issue is WON the President may, in his sole discretion, withhold from a grand jury evidence in his

possession that is relevant to the grand jury's investigations. Court overruled the Presidents invocation of executive privilege covering Presidential communications and upheld the order of the District Court. Grand jury investigation = US v Mitchell (Former Atty. General and head of CRP) The Special Prosecutor filed a motion for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings of President Nixon. The President, claiming executive privilege, moved to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements for a subpoena had been satisfied. The Court then issued an order for an in camera examination of the subpoenaed material. The Special Prosecutor filed in the US Supreme Court a petition for certiorari which upheld the order in US v. Nixon. - For the first time in 1974, the US Supreme Court recognized the Presidential communications privilege and the qualified presumption in its favor in US v. Nixon. The decision cited 2 reasons for the privilege and the qualified presumption: 1) the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making and 2) it is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Consti. In support of the first reason, the Nixon Court held that a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. It pointed to 2 bases of this need for confidentiality. 1st is common sense and experience. The importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process. The 2nd is the supremacy of each branch in its own sphere of duties under the Consti and the privileges flowing from these duties.

As for the second reason, while the Consti diffuses power to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. - The scope of Presidential communications privilege covers communications in the performance of the Presidents responsibilities of his office and made in the process of shaping policies and making decisions. - There is a qualified presumption in favor of Presidential privacy. To overcome this, there must be sufficient showing of specific need for the withheld info on the branch of government seeking its disclosure. 2 standards must be met to show the specific need: evidentiary and constitutional. US v Nixon -relevance, admissibility and specificity. In re Sealed Case -there must also be a showing that evidence is not available with due diligence elsewhere or that the evidence is particularly and apparently useful. The claim of executive privilege must then be balanced with the specific need for disclosure of the communications on the part of the other branch of government. In the function impairment test, the Court weighs how the disclosure of the withheld info would impair the Presidents ability to perform his constitutional duties more than nondisclosure would impair the other branchs ability to perform its constitutional functions. - In excising materials that are not relevant or not admissible or covered by executive privilege because of their nature as military or diplomatic secrets, the High Court emphasized the heavy responsibility of the D.C. District Court to ensure that these excised parts of the Presidential communications would be accorded that high degree of respect due the President, considering the singularly unique role under of a Presidents communications and activities, related to the performance of duties. A President's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual. It was necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. Thus, the High Court sternly ordered that until released by the judge to the Special

Prosecutor, no in camera material be revealed to anyone, and that the excised material be restored to its privileged status and returned under seal to its lawful custodian. [end of US v Nixon discussion] - Senate v. Ermita: only the President or the Executive Secretary, by order of the President, can invoke executive privilege. Thus, petitioner, himself or through his counsel, cannot expand the grounds invoked by the President through Sec Ermita. In his letter, Sec Ermita invoked only the Presidential communication privilege and, suggested a claim of diplomatic secrets privilege. But even assuming arguendo that petitioner Neri can properly invoke the privilege covering national security and military affairs, still, the records will show that he failed to provide the Court knowledge of the circumstances with which the Court can determine whether there is reasonable danger that his answers to the 3 disputed questions would indeed divulge secrets that would compromise our national security. - The Presidential communications privilege attaches to the office of the President; it is used after careful consideration in order to uphold public interest in the confidentiality and effectiveness of Presidential decision-making to benefit the Office of the President. It is not to be used to personally benefit the person occupying the office. - The function impairment test begins with recognition that Presidential communications are presumptively privileged. Senate Committees argument that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained. - Given the qualified presumption in favor of the confidentiality of Presidential communications, the Court should proceed to determine the strength of this presumption as it varies in light of various factors. The more concentrated power is in the President, the greater the need for confidentiality and the stronger the presumption. Other factors to be considered in determining the strength of the presumption of confidentiality of Presidential communications pertain to the nature of the disclosure sought, namely: (1) time of disclosure, whether contemporaneous disclosure or open deliberation, which has a greater chilling effect on rendering candid opinions, as opposed to subsequent disclosure; (2) level of detail, whether full texts or whole

conversations or summaries; (3) audience, whether the general public or a select few; (4) certainty of disclosure, whether the info is made public as a matter of course or upon request ; (5) frequency of disclosure; and (6) form of disclosure, whether live testimony or recorded conversation or affidavit. The type of info should also be considered, whether involving military, diplomatic or national security secrets. - It is self-evident that the 3 assailed questions are pertinent to the subject matter of the legislative investigation being undertaken by the respondent Committees. More than the Arnault standards, the questions to petitioner have direct relation not only to the subject of the inquiry, but also to the pending bills thereat. There is also no effective substitute for the info sought. The 3 questions demand info on how the President herself weighed options and the factors she considered in concluding the NBNZTE Contract. - On one end of the balancing scale is the Presidents generalized claim of confidentiality of her communications, and petitioners failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. Presidential communications enjoy a presumptive privilege but this is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the info sought from petitioner Neri but this is diminished by the nature of the info sought, which is narrow, limited as it is to the 3 questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation. On the other end of the balancing scale is the respondent Committees specific and demonstrated need for the Presidential communications in reply to the 3 questions. These questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the info coming from a reply to these questions. In the absence of the info they seek, the Senate Committees function of intelligently enacting laws to remedy what is called dysfunctional procurement system of the government and

to possibly include executive agreements for Senate concurrence to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the 3 questions. - As to respondent Committees contention that executive privilege cannot be used to hide a wrongdoing: It is after the privilege has been pierced by a demonstrated need that one can discover WON the privilege was used to shield a wrongdoing. We should not put the cart before the horse. [VALIDITY OF CONTEMPT AND ARREST ORDER] - The legislative purpose of the Senate inquiry and pertinence of the questions propounded has sufficiently been shown. It is worth noting that the letter of Sec Ermita merely requested that petitioners testimony on Nov 20, 2007 on the NBN Contract be dispensed with, as he had exhaustively testified on the subject matter of the inquiry. Executive privilege was invoked only with respect to the 3 questions Neri refused to answer in his testimony before respondent Committees on Sep 26, 2007. But there is no basis for either petitioner or the Exec Sec to assume that petitioners further testimony will be limited to the 3 questions. Needless to state, respondent Committees have good reasons in citing Neri for contempt for failing to appear in the Nov 20 hearing. - Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides, viz: Sec. 18. Contempt. - The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. Contempt of the Committee shall be deemed contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt. Even assuming arguendo that ex-officio members are counted in the determination of a

majority vote, the majority requirement for each of the respondent Senate Committees was still satisfied, as all the ex-officio members signed the Order of arrest. The substantive and procedural requirements for issuing an Order of arrest having been met, the respondent Committees did not abuse their discretion in issuing the Jan 30, 2008 Order of arrest of petitioner. --Akbayan v. Aquino FACTS: Petition for mandamus and prohibition was filed by the petitioners, as congresspersons, citizens and taxpayers, requesting respondents to submit to them the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA). Petitioner emphasize that the refusal of the government to disclose the said agreement violates there right to information on matters of public concern and of public interest. That the nondisclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political and economic decision making. Respondent herein invoke executive privilege. They relied on the ground that the matter sought involves a diplomatic negotiation then in progress, thus constituting an exception to the right to information and the policy of full disclosure of matters that are of public concern like the JPEPA. That diplomatic negotiation are covered by the doctrine of executive privilege. Issue: Whether or not the petition has been entirely rendered moot and academic because of the subsequent event that occurred? Whether the information sought by the petitioners are of public concern and are still covered by the doctrine of executive privilege? Held: On the first issue, the Supreme Court ruled that t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties, public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the full text thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations. Moving on to the second issue, The Supreme Court Ruled that Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. The court adopted also the doctrine in PMPF v. Manglapus, Wherein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations

of the RP-US Military Bases Agreement. The Court denied the petition, stressing that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. --Estrada v. Desierto Facts: 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. On 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 persons subjective intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills 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. Issue: Whether petitioner can invoke res ipso loquitur rule to resolve the issue of prejudicial publicity? Held: 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 plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. 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. 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, to resolve this issue, viz: The court cannot sustain appellants 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 accuseds 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. --Estrada v. Arroyo FACTS: This involves petitions of Joseph Ejercito Estrada challenging the respondent Gloria MacapagalArroyo as the de jure 14th President of the Republic. A short outline of events that precipitated the case at bar thus follows: 1. Petitioner won in the May 1998 national elections as president, the respondent as vicepresident. 1. On October 4, 2000, Ilocos Sur Governor Chavit Singson accused the petitioner and his family of receiving millions of pesos from jueteng lords. Such expose ignited several reactions of rage. 1. There became a built up of a call for petitioner to resign from office and his officials one by one resigned withdrawing their support. 1. In November 20 Impeachment Trial of the petitioner was opened, in December 7 Impeachment Trial began. 1. January 19 people lined up in EDSA showing a greater call for the resignation of the president. 2. January 20 was the day of petitioner's surrender. At 12:00 noon Chief Justice Hilario Davide administered oath to respondent Arroyo as President of the Philippines. At 2:30 pm petitioner left Malacanang and issued a press statement and a letter transmitting the executive power upon him, the president to the vice president becoming the acting president 1. The Monday after the oath, Arroyo discharged powers of the President. 1. Criminal cases have been filed against the petitioner after he stepped down into presidency. ISSUES: There are several important issues sprouting in this case. 1. WON the cases at bar present a justiciable controversy / political question specifically in regard the legitimacy of the Arroyo administration 1. WON Estrada merely resigned as President 1. WON Estrada is only temporarily unable to act as President 1. WON Estrada enjoys immunity from suit 1. WON the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity HELD: The petitions of Joseph Ejercito Estrada challenging the respondent Gloria MacapagalArroyo as the de jure 14th President of the Republic are DISMISSED.

1. The question on the legitimacy of the Arroyo administration is subject to judicial review. It is a legal question, which is justiciable. At first, it can be said that acquisition of the presidential seat of respondent Arroyo would be similar to that of former President Corazon Aquino as they were placed into position by means of the call of the people in a revolutionary mass demonstration known as EDSA I for Aquino, and EDSA II for Arroyo. It has been stressed by private respondents that Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. Consequently, the grounds of the case show that such is a political question. SC read the case Lawyers League vs Pres. Aquino, which decided that the legitimacy of Aquino administration in question was a political question. The Freedom Constitution declared that Aquino's government was a result a successful peaceful revolution by the sovereign Filipino people, hence a political question. In contrast, Arroyo's government was not revolutionary in character. Arroyo swore under the 1987 Constitution. There is a legal distinction between EDSA People Power I and EDSA People Power II. EDSA I involves the exercise of the people power of revolution which overthrew the whole government; it presented then a political question. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President, presenting a legal and justiciable question. 1. It was held that Estrada has resigned as President. The issue was whether the petitioner resigned as President or should he be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Public in view of Art. VII Sec. 8 of 1987 Constitution. It was said that there must be intent to resign and the intent must be coupled by acts of relinquishment. There is no formal requirement as to form of a valid resignation. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using the TOTALITY TEST, Estrada was held to have resigned as President. Intent to Resign. There was public pressure for petitioner to resign. In the diary of Executive Secretary Eduardo Angara called "Final Days of Joseph Ejercito Estrada," an authoritative window to the state of mind of the petitioner was provided. On January 20, 2:30 pm he proposed for a snap election for president in May, emphasizing that he would not be a candidate. This is an indication that he intended to give up the presidency even at that time. As his support from his officials were withdrawn, he was even advised to have a "dignified exit or resignation." Estrada did not object to this suggestion but stated that he would never leave the country. At 10:00 p.m. he said to Angara "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace." This was proof petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the fiveday grace period he could stay in the palace. Estrada became concerned with peaceful and

orderly transfer of power when he told Angara ""Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power." The resignation of the petitioner was implied. Acts of Relinquishment. In the press release containing his final statement before he and his family left Malacanang, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the past tense. 1. The law which concerned this issue was Article VII Sec.11 which provides in part: "Whenever 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, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President." "If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office" The operative facts concerning this issue are: *Petitioner, on January 20, 2001, sent letter claiming inability to the Senate President and Speaker of the House; *Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; *Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175; followed by House Resolution No. 176 a resolution expressing 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, adopted January 24, 2001. Clearly, from the given facts, both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of temporary inability. The Court has no jurisdiction to review the temporary inability and to revise thereafter the decision of both houses of Congress recognizing Arroyo as President because this question involves the Legislature's discretionary authority.

1.

It was held the Estrada is not immune for liability. His claim that he must the

impeachment proceeding must first be decided before civil or criminal prosecution begin is untenable for he has been considered resigned from office. Hence the impeachment tribunal and proceeding has ceased. Hence, as a non-sitting President, he can be tried for civil and criminal charges filed against him. Petitioner contended that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He stated that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. It was held that there was not enough evidence to warrant the Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. The evidence given by petitioner that Ombudsman has been biased by the pervasive prejudicial publicity against him was insubstantial.