Estrada vs.

Desierto (Resolution on MR) (2001)

G.R. Nos. 146710-15 | 2001-04-03

Subject:
Resignation was voluntary; Test of voluntariness of resignation; The use of the Angara Diary does not violate the
rule against the admission of hearsay evidence; Exclusion from hearsay rule: Admissions of a party are admissible even if
they are hearsay; Doctrine of adoptive admission; Res inter alios acta rule does not cover admissions made by an agent;
The ban on hearsay evidence does not cover independently relevant statements; Use of a newspaper copy of the Angara
Diary did not violate the best evidence rule; Objection to admissibility of evidence must be made at the earliest
opportunity, otherwise, deemed waived; Section 11 of Article VII of the Constitution; Congress recognition of Arroyo as
de jure president is a political judgment; Prior conviction in the impeachment proceedings is not a prerequisite to a
criminal prosecution; No double jeopardy; Petitioner, as a non-sitting President, cannot claim executive immunity for his
alleged criminal acts committed while a sitting President; No evidence of prejudicial publicity; Rule on res ipsa loquitur
not applicable; No ground to inhibit the twelve members of the Court

Facts:
In the present motion for reconsideration, the petitioner Joseph Ejercito Estrada questions the Decision of March
2, 2001 wherein the Supreme Court found that petitioner has effectively resigned before 12 o'clock noon of January 20,
2001. Hence, the claim that the office of the President was not vacant when respondent Gloria Macapagal- Arroyo took
her oath of office at half past noon of the same day has no leg to stand on.

Petitioner raises the following arguments:

(a) petitioner's resignation was due to duress and an involuntary resignation is no resignation at all.
(b) 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.
(c) the use of the Angara diary against petitioner violated the rule on res inter alios acta
(d) the rules on authentication of private writings and best evidence were violated
(e) the determination by congress on whether the President is incapable of performing his functions, as provided under
section 11 of Article VII, 1987 Constitution, is a matter that can be reviewed by the courts.
(f) he must be first convicted in the impeachment proceedings before he could be criminally prosecuted.
(g) even a non-sitting President enjoys immunity from suit during his term of office.
(h) his due process rights to a fair trial have been prejudiced by pre-trial publicity.

Held:

I. Voluntariness of resignation

Resignation was voluntary

1.  In the 2001 Decision, the Court used the totality test to arrive at the conclusion that petitioner has resigned. The Court
referred to and analyzed events that were prior, contemporaneous and posterior to the oath-taking of respondent Arroyo as
president.

2. As to the prior events relied on by the Court, these 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.

3. With respect to the events of January 20, 2001 contemporaneous to the oath taking of Arroyo, the Court used the
Angara Diary to decipher the intent to resign on the part of the petitioner. 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.

4. The Court proceeded to examine some posterior events, specifically, the 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

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ruled that petitioner's issuance of the press release and his abandonemnt of Malacañang Palace confirmed his resignation.
These are overt acts which leave no doubt to the Court that the petitioner has resigned.

5. 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 Malacañang, he asked Secretary Angara: "Ed, aalis na ba ako?" which implies that he
still had a choice of whether or not to leave. 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 then Chief of Staff,
General Angelo Reyes, and other military officers were in Malacañang 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.

Test of voluntariness of resignation

6.  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.

7.  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.

8. 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 employee 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.

9. 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. Futhermore, 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.

II. Evidentiary issues

The use of the Angara Diary does not violate the rule against the admission of hearsay evidence

10. 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. Petitioner had all the opportunity to contest
the use of the Diary but unfortunately failed to do so.

11.  Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered by the
hearsay rule. 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. There are three reasons for
excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the

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oath. Not at 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.

Exclusion from hearsay rule: Admissions of a party are admissible even if they are hearsay

12.  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." It has long been settled that these admissions are admissible even
if they are hearsay.

13.  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 Rule 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)

14.  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)

15.  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 just want to clear my name, then I will go." We noted that days before, petitioner had 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.

Doctrine of adoptive admission

16.  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. 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.”

17.  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.

Res inter alios acta rule does not cover admissions made by an agent

18.  The rule on res inter alios acta 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."

19.  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.

20.  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 Malacañang 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." 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 Malacañang 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?)" Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara headed his team

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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.

21.  Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal
(petitioner). 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."

The ban on hearsay evidence does not cover independently relevant statements.

22.  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,

(2) those statements which are circumstantial evidence of the facts in issue.

23.  The second class includes the following:

a. Statement 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.

24.  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.

Use of a newspaper copy of the Angara Diary did not violate the best evidence rule

25.  It is true that the Court relied not upon the original but only 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.

26.  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. (Wigmore on evidence)

27.  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. Secondary evidence of the
content of the writing will be received in evidence if no objection is made to its reception.

Objection to admissibility of evidence must be made at the earliest opportunity, otherwise, deemed waived

28.  In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule 132, viz:

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"Sec. 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.

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

30.  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.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.”

31.  There is a significant difference 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
several Memorandums. 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

Section 11 of Article VII of the Constitution

32.  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. By its many acts, Congress has already
determined and dismissed the claim of alleged temporary inability to govern proffered by petitioner.

33.  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.” Respondent took her
oath of office a few minutes past 12 o'clock in the afternoon of January 20.

Congress recognition of Arroyo as de jure president is a political judgment

34.  The recognition of Arroyo as our de jure president made by Congress is unquestionably a political judgment. 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".
This political judgment may be right or wrong but Congress is answerable only to the people for its judgment. Needles to
state, the doctrine of separation of power constitutes an inseparable 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.

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IV. Impeachment and Absolute Immunity

Prior conviction in the impeachment proceedings is not a prerequisite to a criminal prosecution

35. Section 3 (7) of Article XI of the Constitution 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."

36.  A plain reading of the provision conveys two uncomplicated ideas: (1) 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 (2), 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.

No double jeopardy

37.  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. Before the House could resolve the issue of resignation of its prosecutors, 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.

38.  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.

39.  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.

40.  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.

41.  Petitioner did not move for the dismissal of the impeachment case against him. Even assuming that there was a move
for its dismissal, not every invocation of an accused's right to speedy trial is meritorious. Unjustified postponements
which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy
trial. Petitioner failed to show that the postponement of the impeachment proceedings was unjustified, much less that it
was for an unreasonable length of time. The impeachment proceeding was suspended until the House of Representatives
shall have resolved the issue on the resignation of the public prosecutors. 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.

42.  Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case without the express
consent of the accused. The impeachment proceeding was closed only after the petitioner had resigned from the

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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.

Petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a
sitting President

43.  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. 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.

44.  Petitioner 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. From the deliberations of the Constitutional Commission, 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.

V . Prejudicial Publicity on the Ombudsman

No evidence of prejudicial publicity

45.  In the 2001 Decision, the Court held that there is not enough evidence to sustain petitioner's claim of prejudicial
publicity. 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.

46.  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. 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 lest 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.

47.  In Martelino 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. 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.

Rule on res ipsa loquitur not applicable

48.  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. 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.

49.  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.

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50.  We cannot replace this test of actual prejudice with the rule of res ipsa loquitur. 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.

VI. Recusation

No ground to inhibit the twelve members of the Court

51.  There is no ground to inhibit the twelve (12) members of the Court who merely accepted the invitation of respondent
Arroyo to attend her oath taking. As mere spectators of a historic event, 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.

52.  The Supreme Court issued an en banc resolution, Administrative Matter No. 01-1-05 SC. 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." Thus, there is no reason for petitioner to
request for the said twelve (12) justices to recuse themselves.

53.  Disqualification of a judge is a deprivation of his judicial power. 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. 

People vs. Panfilo Lacson (Resolution) (2003)

G.R. No. 149453 | 2003-10-07

Subject: SC Circular No. 99-8-09 is applicable only to motions for reconsideration in cases assigned to the SC Divisions;
Justices, even though not yet members of the court during the inception of the proceedings, are not prohibited from
participating in the deliberation of the case since they may resort to the record of the proceedings; Motion for
disqualification must be denied when filed only after the justice has already given an opinion on the merits of the case;
Motion to set the case for oral arguments is denied; Time-bar for revival of provisionally dismissed cases under Section 8,
Rule 117 of the Revised Rules of Criminal Procedure is applied Prospectively; Constitutional grant of power to
promulgate rules carries with it the power to determine whether to give the said rules prospective or retroactive effect; A
statute must be read according to its spirit or intent; The two-year bar in the new rule should not be reckoned from the
March 29, 1999 dismissal but from December 1, 2000 when the new rule took effect; No violation of due process; Judicial
admission binds the client even if made by his counsel; Lacson is bound by the judicial admissions he made in the lower
court; Absent the express consent of the accused to the provisional dismissal, Section 8, Rule 117 cannot be invoked to

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bar a revival thereof

Facts:

Background Facts

Lacson and his co-accused were charged with multiple murder for the shooting and killing of eleven male persons alleged
to members of the Kuratong Baleleng Gang. Criminal Cases Nos. Q-99-81679 to Q-99-81689 were filed against Lacson
and his co-accused before RTC Quezon City Branch 81, presided by Judge Agnir, Jr.

Lacson filed a motion for judicial determination of probable cause and for examination of witnesses. The court
provisionally dismissed the Criminal Cases on March 29, 1999.

In the meantime, the Revised Rules of Criminal Procedure (RRCP) took effect on December 1, 2000. Under Section 8,
Rule 117 of the RRCP, there is a time bar for revival of cases which have been provisionally dismissed with the consent
of the accused. In Lacson's case, the applicable period is two years.

New criminal informations were filed with the RTC on June 6, 2001 against Lacson and his co-accused which sought to
revive the earlier criminal cases provisionally dismissed. Lacson asserts that the revival is time-barred for being filed
beyond the 2 year period from provisional dismissal.

Background of the present Resolution

On May 24, 2002, the respondent Panfilo Lacson filed an urgent motion for the recusation of Justices Corona and Austria-
Martinez for the reason that they were appointed to the Supreme Court (SC) after the February 19, 2002 oral arguments
and did not participate in the integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit
themselves and decided to participate in the deliberation on the petition.

On March 18, 2003, Lacson filed a motion with the SC for the recusation of Justice Callejo, Sr. on account of his
voluntary inhibition when the case was pending before the Court of Appeals. The SC denied the Motion (March 25, 2003
Resolution).

Lacson thereafter filed his motion for reconsideration of the April 1, 2003 Resolution of the SC in which he prayed for the
inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of the
Court who had actually participated in the deliberation and the rendition of its May 28, 2002 Resolution.

Lacson likewise sought the inhibition of Justices Carpio Morales and Azcuna, again for the reason that they were
appointed to the SC after the oral arguments on February 19, 2002 and after the case had already been submitted for
decision.

On April 29, 2003, the SC issued a Resolution denying the aforesaid motions of the respondent Lacson. The SC ruled that
A.M. No. 99-8-09-SC is applicable only to cases assigned to the divisions of the Court.

Hence, Lacson filed the following motions before the Supreme Court: (a) Omnibus Motion (b) Motion for
Reconsideration (c) Supplement to Motion for Reconsideration (d) Motion To Set for Oral Arguments.

Issues:

(1) Whether or not Circular A.M. No. 99-8-09 may be applied to MRs filed before the SC En Banc

(2) Whether or not the new members of the SC should inhibit themselves from participating in the deliberation of the MR
since they were not present during the oral arguments

(3) Whether or not Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied
retroactively

(4) Whether or not judicial admissions made in the Court of Appeals may be used in the resolution of the case before the
Supreme Court

Held:

SC Circular No. 99-8-09 is applicable only to motions for reconsideration in cases assigned to the SC Divisions

1.  Supreme Court Circular No. 99-8-09 is applicable only to motions for reconsideration in cases assigned to the
Divisions of the Supreme Court. For cases assigned to the Supreme Court En Banc, the policy has always been and still

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is, if the ponente is no longer with the Court, his replacement will act upon the motion for reconsideration of a party and
participate in the deliberations thereof. This is the reason why Justice Callejo, Sr. who had replaced retired Justice De
Leon, prepared the draft of the April 1, 2003 Resolution of the Court.

Justices, even though not yet members of the court during the inception of the proceedings, are not prohibited from
participating in the deliberation of the case since they may resort to the record of the proceedings

2.  The Court ruled that there was no need for its newest members to inhibit themselves from participating in the
deliberation of the respondent's Motion for Reconsideration.

3.  Although Justices Carpio-Morales, Callejo, Sr., and Azcuna were not yet members of the Supreme Court during the
February 18, 2002 oral arguments, nonetheless they were not disqualified to participate in the deliberations on the
petitioner's motion for reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for
reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for
reconsideration of the respondent. When the Court deliberated on petitioners' motion for reconsideration, Justices
Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court.

4.  It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 oral arguments of the parties
are parts of the records of this case. Said transcripts are available to the parties or to any member of the Court. Likewise,
Attys. Rene Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent on February 18, 2002 but
by reading the said transcripts and the records of this case they are informed of what transpired during the hearing and oral
arguments of the parties.

Motion for disqualification must be denied when filed only after the justice has already given an opinion on the merits of
the case

5.  Besides, the respondent sought the inhibition of Justices Carpio Morales and Azcuna only after they had already
concurred in the Court's Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be denied
when filed after a member of the Court has already given an opinion on the merits of the case, the rationale being that a
litigant cannot be permitted to speculate upon the action of the Court, only to raise an objection of this sort after a decision
has been rendered.

Motion to set the case for oral arguments is denied

6.  The parties have already extensively discussed the issues involved in the case. The respondent's motion for
reconsideration consists of no less than a hundred pages, excluding the supplement to his motion for reconsideration and
his reply to the petitioners' comment on his motion. There is no longer a need to set the instant case for oral arguments.
 
Time-bar for revival of provisionally dismissed cases under Section 8, Rule 117 of the Revised Rules of Criminal
Procedure is applied Prospectively

7.  Lacson argues that Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied
retroactively on the basis of its being favorable to the accused. He asserts that case law on the retroactive application of
penal laws should likewise apply to criminal procedure, it being a branch of criminal law. Section 8 should have
retroactive application, since prospective application thereof would in effect give the petitioners (DOJ, PNP, etc) more
than two years from March 29, 1999 within which to revive the criminal cases, thus violating Lacson/s right to due
process and equal protection of the law. According to Lacson, the petitioners filed the Informations with the RTC in
Criminal Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a speedy trial, and that
such filing was designed to derail his bid for the Senate.

8.  Section 8 has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with
the express consent of the accused and with a priori notice to the offended party. The Court is not mandated to apply
Section 8 retroactively simply because it is favorable to the accused. It must be noted that the time-bar under the new rule
for the benefit of the State and the accused, not for the accused only. In fixing the time-bar, the Court balanced the societal
interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the
State and the accused.

Constitutional grant of power to promulgate rules carries with it the power to determine whether to give the said rules
prospective or retroactive effect
 
9.  The Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule
prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the
Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its
own background or precedent, and its own impact on the administration of justice, and the way in which these factors
combine must inevitably vary with the dictate involved.

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10.  The Court approved Section 8 pursuant to its rule-making power under Article VIII, Section 5, paragraph 5 of the
Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to
give the said rules prospective or retroactive effect. Moreover, under Rule 144 of the Rules of Court, the Court may not
apply the rules to actions pending before it if in its opinion their application would not be feasible or would work
injustice, in which event, the former procedure shall apply.

A statute must be read according to its spirit or intent

11.  The absence of a provision in Section 8 giving it prospective application only does not proscribe the prospective
application thereof; nor does it imply that the Court intended the new rule to be given retroactive and prospective effect. If
the statutory purpose is clear, the provisions of the law should be construed as is conducive to fairness and justice, and in
harmony with the general spirit and policy of the rule. It should be construed so as not to defeat but to carry out such end
or purpose. A statute derives its vitality from the purpose for which it is approved. To construe it in a manner that
disregards or defeats such purpose is to nullify or destroy the law. The spirit rather than the letter of the statute determines
its construction; hence, a statute must be read according to its spirit or intent. While we may not read into the law a
purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer
not to the "letter that killeth" but to the "spirit that vivifieth, to give effect to the lawmaker's will." (see Cometa vs. Court
of Appeals)

12.  When the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if
the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the
State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the
accused.

13.  Judge Agnir, Jr. provisionally dismissed the Criminal Cases on March 29, 1999. The new rule took effect on
December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three
months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period
fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years
from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the
intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and avoid absurd, unreasonable,
oppressive, injurious, and wrongful results in the administration of justice. A retroactive application of the time-bar will
result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs.

The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal but from December 1, 2000
when the new rule took effect

14.  The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the two-year period
because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the
time-bar. It cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it
was negligent for not reviving them within the two-year period under the new rule.

15.  Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at
the time of their passage. In that sense and to that extent, procedural laws are retroactive. The Criminal Cases had long
been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the
(new) Informations on June 6, 2001, the Criminal Cases had long since been terminated. The two-year bar in the new rule
should not be reckoned from the March 29, 1999 dismissal of the Criminal Cases but from December 1, 2000 when the
new rule took effect. While it is true that the Court applied Section 8 of Rule 110 of the RRCP retroactively, it did so only
to cases still pending with this Court and not to cases already terminated with finality .

No violation of due process

16.  After the requisite preliminary investigation conducted by the petitioners in accordance with existing rules, eleven
Informations were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent cannot
argue that his right to due process and to a speedy disposition of the cases as enshrined in the Constitution had been
violated.

17.  The respondent's contention that the prospective application of the new rule would deny him due process and would
violate the equal protection of laws is barren of merit. It proceeds from an erroneous assumption that the new rule was
approved by the Court solely for his benefit, in derogation of the right of the State to due process. The new rule was
approved by the Court to enhance the right of due process of both the State and the accused. The State is entitled to due
process in criminal cases as much as the accused.

18.  Due process has never been and perhaps can never be precisely defined. It is not a technical conception with a fixed
content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a

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requisite whose meaning can be as opaque as its importance is lofty. In determining what fundamental fairness consists of
in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well
as the interests of the government must be assessed. In this case, in holding that the new rule has prospective and not
retroactive application, the Court took into consideration not only the interests of the respondent but all other accused,
whatever their station in life may be. The interest of the State in the speedy, impartial and inexpensive disposition of
criminal cases was likewise considered.

Judicial admission binds the client even if made by his counsel

19.  Section 4, Rule 129 of the Revised Rules of Court reads:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the
same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable
mistake or that no such admission was made.

20.  A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial
proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or
a party's attorney during such judicial proceedings, including admissions in pleadings made by a party. It may occur at
any point during the litigation process. An admission in open court is a judicial admission. A judicial admission binds the
client even if made by his counsel.

21.  When the respondent (through his counsel Atty. Fortun) admitted that he did not move for the dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not
give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential
requisites of Section 8, Rule 117 was absent.
 
Lacson is bound by the judicial admissions he made in the lower court

22.  Lacson argues that the issue involved in the Court of Appeals is entirely different from the issue involved in the
present recourse; hence, any admissions he made in the court below (CA) are not judicial admissions in this case. He
asserts that the issue involved in the CA was whether or not he was placed in double jeopardy when he was charged with
murder in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-
99-81689; whereas the issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was
barred by Section 8, Rule 117 of the RRCP.

23.  The respondent's contention that his admissions made in his pleadings and during the hearing in the CA cannot be
used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne
in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended,
from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the
appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later
passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so
hold him in the proceedings before this Court.

Absent the express consent of the accused to the provisional dismissal, Section 8, Rule 117 cannot be invoked to bar a
revival thereof

24.  While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent
the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a
revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the
accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of
the case. Even a cursory reading of the respondent's motion for a judicial determination of probable cause will show that it
contained no allegation that there was no probable cause for the issuance of a warrant for the respondent's arrest as a
prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was
probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the
said warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition states facts which will
authorize the court to grant such relief. A court cannot set itself in motion, nor has it power to decide questions except as
presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and
void. 

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