JANUARY- JUNE 2 00 3 VOL VII NO 1

SPECIAL ISSUE Transforming the Philippine Political Landscape

The Party-List Path to a Broadened Philippine Democracy

RAMON C CASIPLE Official Development Assistance to the Philippines: Can it be Reformed?

EDUARDO C TADEM Legitimizing the Illegitimate: Disregarding the Rule of Law in Estrada v. Desierto and Estrada v. Macapagal-Arroyo

SABRINA M QUERUBIN ANA RHIA T MUHI C HARISSE F GONZALES-0 LALlA

I , P-JJBLIC t'OLICY ......

EDITORIAL BOARD Francisco N emenzo Jr, Chairman; Emil Q Javier; Jose Abu eva; Edgardo J Angara; Emmanuel V Soriano; Onofre D Corpuz; Raul V Fabella; Maria Carmen C Jimenez; Jose Y Dalisay Jr

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Editor's Note

The Party-List Path to a Broadened Philippine Democracy Ramon C. Caszple 1

Official Development Assistance to the Philippines: can it be Reformed? Eduardo C. Tadem 23

Legitimizing the Illegitimate: Disregarding the Rule of Law in Estrada v. Desierto and Estrada v. Macapagai-Arroyo Sabrina M. Querubin} Ana Rhia T Muhi and Charisse F Gonzales-Olalia 63 EDITOR'S NOTE: Looking at the 'Reform Agenda,

This issue of Public Policy is concerned with three peculiar facets of political reform germane to the Philippine system. While not exhaustive, these political reform aspects can certainly constitute the key elements of an alternative "reform agenda" for the country. The first kind of reform has broadly to do with the issue of instituting electoral reforms. Mindful of the faults inherent in the country's electoral system and pro­ cesses, Ramon Casiple's "The Party-List Path to a Broadened Philippine Democ­ racy" examines a specific and crucial aspect of the country's electoral political troubles and the effort to address this. Casiple tries to look at the historical under­ pinnings that brought about the emergence of a more grassroots-oriented party-list electoral politics and how the country's traditional elitist democracy and experi­ ence under the Marcos dictatorship prompted the framers of the 1987 Constitu­ tion to include provisions mandating the election of party-list representatives in Congress. However, it was only in 1995 that Congress actually enacted the law that implements the party-list provisions of the 1987 Charter. Casiple's contribution discusses the significance not only of the provisions of the Party List Law of 1995, otherwise known as Republic Act (RA) 7941, but also the dynamics of the implementation of this enabling measure in the 1998 and 2001 elections. While the results may not be encouraging (there were only 14 party-list representatives in the 1998 elections, a number which was down to seven by 2001) and the obstacles confronting party-list electoral participants are certainly daunt­ ing, Casiple sees the "potential to build the political capabilities of grassroots­ based part~es [that] can pave the way to broaden and strengthen democracy in the country" in the future (p. 17). The article looks at the need to reform the country's party-list system from two perspectives - as an alternative to the prevailing elitist democratic political system and as a means to strengthen the positions of those coming from the mar­ gins and the largely disenfranchised grassroots. Although he does so only at the end of the piece, Casiple raises the question of instituting a party-list system within a parliamentary political framework. Indeed, he argues that "a definitive gover- nance framework for the party-list system ... is not the presidential system" (p. 19) -an intriguing subject that invites critique and reexamination. The second type of political reform discussed in this issue concerns the country's economic development agenda-setting institutional mechanisms. Eduardo Tadem's "Official Development Assistance to the Philippines: Can it be Reformed?" ex­ plores the immediate issues attendant to the granting of such ODAs "in light of state policy pronouncements and announced shifts in donor policies" from 1986 onwards (p. 26). Tadem contends that current policies in the Philippines in regard to ODA generation and utilization point to "disturbing characteristics ... despite policy pronouncements ... on shifting towards more social and human develop­ ment-oriented activities" (p. 55). Indeed, he argues for the need for government to adopt "serious, meaningful and substantive mechanisms and structures for more participative and transparent ODA processes", (p. 57) globalization notwithstanding. This would certainly re­ quire a major overhauling of the country's development agenda setting institutions and process, particularly the National Economic and Development Authority (NEDA), a subject that very few national leaders since Marcos have had the cour­ age or wisdom to tinker with. The contribution by Sabrina Querubin, et al. entitled "Legitimizing the Ille­ gitimate: Disregarding the Rule of Law in Estrada v. Disierto and Estrada v. Macapagal-Arroyo" journeys into a third aspect of the political reform agenda by reviewing the Supreme Court in its decision to legally acknowledge the presidency of Gloria Macapagal Arroyo. Inasmuch as the contribution puts into questionable light the integrity of the High Court, it does underscore the need for the country to reform its judicial system. The Querubin, et al. contribution discusses the case of former President Joseph Estrada and his bid to regain the presidency of theRe­ public after the January 2001 uprising. Coming in the wake of the publicly perceived intransigence of the Senate impeachment trial of Estrada on charges of corruption and other violations of the Constitution, the so-called EDSA II that led to the ouster of another president from office is described in the article as being "barely bloodless and definitely not a revolution" (p. 66). Apart from indicating the propensity of the Supreme Court to disregard the rule of law in the cases cited, the authors contend that "perhaps the ultimate casualty ... is the judicial system's credibility and the confidence and assurance it once provided to the ordinary Filipino" (p. 111). Surprisingly, the article does not provide a way out of this politico-juridical problematic. It is hoped that with these contributions, new and contending insights will be gained on how the Philippine political landscape can be transformed, the extent of the transformation to be made, and in what direction.

The Party-List Path to a Broadened Philippine Democracy

RAMON C. CASIPLE

Introduction

The party-list system of congressional representation mandated by the 1987 Constitution and enabled by Republic Act (RA) 7941 also known as the Party-List Law, was implemented in the 1998 and 2001 elections. These exercises attracted 123 and 163 participating organizations, respectively. However, the 1998 elections only produced 14 party-list representatives from 13 organizations while the 2001 1 elections produced only seven representatives from five organizations. These re­ sults contrast starkly with the 52 seats available in these elections. Do the meager results mean the failure of the party-list system? What do these imply for the prospects to broaden people's participation in Philippine democracy? What are the possible solutions to make the party-list system a democratic suc­ cess? This paper explores the historical context of the Philippine party-list system. It attempts to delineate its weaknesses and strengths from this historical perspective and proposes measures for further developing its potentials for broadening democ- casiple racy in the Philippines. It proceeds in this analysis from an optimistic appreciation of the democratic space spawned by the events of EDSA 1986 and has since then survived the countless challenges of crisis situations, both economic and political, as well as the continuing pressures from the militarizing Right and the armed Left rebellions. The concept of a party-list system is usually associated with the establishment and functioning of a parliamentary system of government. This was in fact the prevailing assumption of the 1986 Constitutional Commission when it decided on inclusion of the party-list system in the 1987 Constitution. However, the proposal for a parliamentary system lost and the presidential system prevailed. It is interest­ ing to review how the party-list system was implemented under this circumstance. However, the more weighty evaluation remains in the area of the democratiza­ tion of Philippine politics, not only in terms of the rejection of the Marcos dictato­ rial institutions and structures, but of more contemporary relevance, in terms of dismantling the elite monopoly of political power and bringing into mainstream politics those political actors from the grassroots. In this sense, this paper will also seek to define the path to reforming the party­ list system in the country. It will also try to frame this reform agenda within the broader arena of the political struggle for democracy in the Philippines.

The Philippine Party-List System and the Political Mandate of EDSA 1986

The present party-list system in the Philippine legislature is without precedent in the country's history. The two-party system has traditionally limited elections to members of the dominant and the main opposition parties in a winner-take-all elec­ tion for national legislative seats (in the case of the Senate) and single-district rep­ resentative seats (in the case of the House of Representatives). In time, this winner-take-all approach to legislative elections came to mean the monopoly of legislative power in the hands of entrenched political lords who con­ veniently changed parties in a situation of similar political ideologies and party programs. The phenomenon of turncoatism thus emerged even prior to Martial Law. The electorate was not schooled in choosing candidates based on the merits of their platforms. Many voters tended to vote for their candidates based on the

2 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy latter's perceived popularity, the lure of financial rewards and pressure from ward 2 leaders, clan or local political lords. Elections thus degenerated into personal popu- larity contests and meaningless promises. This contributed to the concentration of power in an elite-which predictably made the electoral contest its own preserve-contested only by members of the opposition from their own ranks. Elections evolved into hotly-contested, expensive exercises with few newcomers from outside the elite circles. The newcomers them­ selves were frequently coopted into the elite and into playing the same game. This elitist democracy later evolved into the Marcos dictatorship. Marcos de­ clared Martial Law and stripped the elitist electoral contest of two essentially simi­ lar parties of its pretensions by instituting a one-man, one-party rule and crushing not only the mass-based opposition but also the other elite groups. For thirteen years, the Marcos dictatorship ruled almost unchallenged and brought the country to near rum. Ironically, the Marcos faction enabled grassroots-based groups to contend for power through the broad anti-dictatorship struggle. It did so by suppressing other factions of the elite and negating their political advantages in areas such as finance, education, old-boy networks and client-patron relationships. These groups were active both in the underground resistance and in the open legal struggle. They formed the democratic base of the post-Marcos regime. It was not a surprise then that the 1986 Constitutional Commission addressed the question of democracy no longer from the point of view of simply bringing back the old elitist pre-Matial Law electoral setup. It chose to recognize the broad demo­ cratic anti-dictatorship movement which encompassed not only the anti-Marcos 3 elite groups but also the grassroots-based anti-dictatorship forces. In the 1987 Constitution, major provisions were introduced to broaden the base of democracy and governance, including the strengthening of the human rights provisions, recognition of the role of non-governmental organizations (NGOs) in governance, the principle of recall, local government autonomy, local sectoral repre­ sentation, and of course, the introduction of the party-list system. This policy of encouraging direct people's participation in governance remains the one progressive achievement of the 1987 Constitution. However, it did not

VOLUME VII NUMBER 1 Oanuary- June 2003) 3 casiple complete the process of democratization in the country. The above changes remain subordinated to and limited by the same elitist politics of the pre-Martial Law period. The institutions of that period were revived, including the presidential sys­ tem, the two-tier congress and the old electoral rules. What exists now is essentially an uneasy marriage of new and old institutions of governance with clashing premises and intentions. It has resulted in tensions throughout the governance institutions, with the old elite divided between the urge to go back to the old ways and the recognition of the new reality of popular partici­ pation in governance. Secondarily, the post-Marcos democratic space has also sparked a debate within the national democratic forces between those who frantically hold on to the doctri­ naire vision of a unified state, and hence the imperative for maintaining the pro­ tracted armed class war, and those who stress the widening democratic space which already extends inside existing state institutions. The latter, based on their various appreciation and interpretation of this post-martiallaw reality, prepared for parlia­ mentary engagement and even participation in the electoral and parliamentary are­ nas. Social democrats were likewise divided between participating in government and maintaining their mass-based organizations. Various theories on the role of civil society in governance emerged and became new fodder for debate within the grassroots-based movements. The process by which the party-list law came into being reflected these ambiguities and conflicts. Clearly, the party-list provision of the 1987 Constitution is in recognition of the need to bring in the grassroots-based political forces into the legislature. Constitu­ tional Commissioner Wilfreda Villacorta termed it a "new chapter in our national 4 history by giving genuine power to our people in the legislature." Commissioner 5 Jaime Tadeo viewed it as "giving power to the marginalized sectors." On a more practical level, Commissioner Christian Monsod cited the objective to "give room for those who have a national constituency who may never be able to win a seat on 6 a legislative district level. " Though united in the objective of opening up the legislature to non-traditional political forces, these views were interpreted in diverging ways. Some delegates insist that the party-list system should guarantee representation of marginalized

4 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy sectors such as peasants, workers and the urban poor. Others, like Monsod, prefer to view the system as only opening up the legislature to those who will not ordi­ narily win in normal district elections and not necessarily coming from the marginalized sectors. In fact, it led to the unresolved debate on the question of sectoral representation in the party-list system. The Monsod position of "non­ sectoral" proportional representation won in the voting. The final provisions on the party-list system limited the number of seats to only twenty percent-hardly sufficient to have a decisive voice in Congress. In a compromise, the Constitutional Commission accepted the appointment or elec­ tion of sectoral representatives for three terms prior to the implementation of the party-list system but rejected the notion of "reserved seats" for marginalized sec­ tors. Lastly, it rejected the proposal for party-list representation in the Senate. In effect, the current party-list system represents an elite accommodation of the reality of grassroots-based politics that came out of the long anti-dictatorship struggle. It is an accommodation forced upon it by the circumstances of the down­ fall of the dictatorship through people power. At the same time, the establishment of the party-list system measures the ex­ tent of the political strength born out of grassroots-based politics. It is a system that provides the marginalized sectors a genuine doorway into the halls of power, albeit a small one. The EDSA mandate of a broadened, pluralist democracy remains at the heart of the proposals for reforming the party-list system. However, as a product of a political compromise, it suffers from the limitations that such a compromise brings with it.

RA 7941 and the Elite Reluctance to Recognize New Politics from the Grassroots

The constitutional compromise regarding the Philippine party-list system failed to prevent another round of acrimonious debate and struggle. This time, the arena was the passage of the enabling law, R.A. 7941 or the Party-List System Act. The Constitution provides that 20 percent of the seats in the House of Repre­ sentatives are to be given to party-list representatives. It also stipulates that an en-

VOLUME VII NUMBER 1 Ganuary- June 2003) 5 Casiple abling law has to be passed to implement this provision. In the interim, before the elections for party-list representatives, the president was authorized to appoint sectoral representatives in lieu of the elected party-list representatives. In effect, the Constitution follows the German federal parliamentary form wherein members of parliament are either single-district representatives or party­ list representatives. However, it departs from the German model, first, in that the form of government here is presidential; and second, by broadening the participa- 7 tion in the party-list elections to include sectoral organizations. RA 7941, the party-list law, and its implementing regulations try to achieve a balance between the conflicting interests perceived by the framers of the consti­ tution. It liberalized the definition of sectors to include multisectoral groups and even political parties-clearly a move that favors entrenched groups. However, RA 7941 also disqualified the five political parties with the largest votes in the May 1998 elections (i.e., Lakas-NUCD, the Liberal Party, Lakas ng Demokratikong Pilipino, the National People's Coalition and the Kilusang Bagong Lipunan, Un­ fortunately, this provision was easily circumvented by establishing thinly-disguised satellite parties or organizations. The party-list law sets two percent of the total votes cast for party list as the minimum threshold for a party-list group or organization to have a seat in Congress, with three seats as the maximum limit. This was supposed to permit the widest popular representation while at the same time to make sure that there is a credible constituency for each representative. Within these limits, an apportionment system is supposed to be followed that is based on a two-step formula. First, by giving seats to party-list groups corre­ sponding to their garnering of votes equivalent to two percent or its multiple. Sec­ ond, by ranking the percentage fraction left over and giving the remaining seats to party-list groups based on this ranking. RA 7941 and its implementing regulations again reflect the compromise atten­ dant to the party-list system. By allowing the big political parties or their surrogates to participate, the law buttresses the monopoly of power of the traditional elite. However, by opening up the process to other groups, particularly non-party and grassroots-based organizations, it allows the entry of grassroots representatives into the national legislature.

6 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

The Ugly Reality of the 1998 and 2001 Party-List Elections

On 8 February 1998, the campaign for the party-list elections began. Actually, the electoral campaign may be said to have started a long way back. This is because of an election law loophole that allows candidates to campaign before the start of the campaign period as long as they do not yet register as official candidates. The huge problem with the party-list campaign process was the failure of the Commission on Elections (COMELEC) to provide an adequate educational cam­ paign on the new law that is RA 7941. This led to massive confusion, not only among the voters, but also among the COMELEC staff and teacher-volunteers. NGO intervention in this regard, while somewhat adequate in those areas where they operate, did not really fill up the void. Media education helped but the time proved too short to make a widespread impact. Party list organizations had to do double-duty work -conducting the neces­ sary education on the party-list system while conducting their own campaigns. This alleviated the problem to a certain extent but the organizations were effective only in their highly-influenced bases where they were able to have extended discus­ sions with voters on the new system. Only about nine million voters (or around 32 percent) voted in the party-list elections, out of the more than 28 million voters who cast their votes. This trans­ lated into about 26 percent of the total registered voters. Considering the 80 per­ cent total voter turn-out, this was a low voting percentage for the party-list system, even considering its newness. Initial estimates by participating party-list groups had approximated at least 50 percent of total voters. During the elections, charges of meddling by the five banned parties, particu­ larly by the ruling Lakas party, were rife, including the "discovery" of a purported memorandum authorizing the establishment of 52 satellite parties by Lakas. What is true is that many party-list groups negotiated with established parties and local politicians in order to access their vote bases. The sheer number of participating parties and organizations reflected the vi­ brancy and openness of the whole exercise. Most of the 123 organizations that participated were new to the electoral arena, representing sectoral or minority inter" ests not normally seen in Congress.

VOLUME VII NUMBER 1 Ganuary- June 2003) 7 casiple

In fact, the problem of some blocks was their over-enthusiastic assessment of probable votes. This led them to split up their vote bases in support of several party­ list groups, leading to the failure of some to reach the two-percent cut-off. In the 8 end, only 13 parties and organizations managed to receive more than the two­ percent minimum threshold (about 180,000 votes) and only one party, the Asso­ ciation of the Philippine Electric Cooperatives (APEC), had more than four per­ cent. These party-list organizations got their seats by virtue of a COMELEC procla­ mation recognizing their votes as passing the two-percent threshold. The latter then determined the additional seats as multiples of two percent. Fractions were disre­ garded. These 13 parties and organizations, and their respective classifications, are the following: 1. Association of the Philippine Electric Cooperatives (APEC)- a multisectoral organization 2. Alyansang Bayanihan ng mga Magsasaka, Manggagawang-Bukid at Mangingisda (ABA)- for peasants; 3. National Federation of Small Coconut Farmers Organizations (SCFO)­ also for peasants; 4. Sectoral Party of the Veterans Federation of the Philippines (VFP)- for the veterans groups; 5. Cooperative NATCCO Network Party (COOP-NATTCO) -a multisectoral organization; 6. Adhikain at Kilusan ng Ordinaryong Tao para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO) -for the urban poor; 7. Progressive Movement for Devolution of Initiatives (PRO MDI)- a politi- cal party; 8. Partido ng Maralitang Lunsod (Alagad) -also for the urban poor; 9. Abanse! Pinay- for women; 10.Aksyon ng Bayan-Citizen's Action Party (Akbayan)- a political party; 11. SANLAKAS- a multisectoral organization; 12.Luzon Farmers Party (BUTIL)- for the peasant sector; and 13.Philippine Coconut Producers Federation (COCOFED)- also for the peas­ ant.

8 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

Of these, four are peasant organizations, two are urban poor organizations, one is a veteran's organization, one is a women's organization, three are multisectoral organizations and two are political parties. At face value, this result tended to show the weight of both a solid and widespread vote base and the usefulness of support from established parties. It also demonstrated the strength of the peasant vote, which not only carried the four sectoral groups but also underwrote the voting strength of many other winning organizations. A surprising result was the failure of the labor front to secure any seat at all, except in the case oflabor-based SANLAKAS. However, 14 seats are a far cry from the 52 seats allocated to party-list repre­ sentatives more or less reflecting the evenness of spread among the competing 123 parties. This was an embarrassing result-and reflected the failure of the COMELEC to trim down the number of participating party-list groups to a manageable level. The COMELEC compounded the problem by not filling up the vacant seats in failing to implement the percentage fraction rule. It instead disregarded the two­ percent minimum threshold and distributed the remaining slots to the next 38 par­ ties with less than two percent votes. Understandably, the elected party-list groups protested this change in the rules. Calling it illegal, they appealed to the Supreme Court (SC) to prevent the procla­ mation of the 38 party-list groups. The SC issued a restraining order on the COMELEC regarding the The 1998 party­ proclamation of the 38 groups. Later, it would de­ list election was a cide on all the controversies through a landmark SC 9 decision that revoked their proclamation. comedy of errors However, the SC added to the confusion by is­ and a riot of wild suing its own formula. The SC formula essentially imaginations. determines the seats of the second- and lower-ranked party-list groups based on the votes obtained by the first-ranked. The SC decision thus virtually ensured that only the first-ranked group can have the three maximum seats available. It also relegated the rest of the winning groups to lesser seats than the first-ranked. The 1998 party-list election was a comedy of errors, a gallery of self-interpreta­ tions and a riot of wild imaginations. Lost in the confusion was the original inten­ tion to open the door to marginalized and underrepresented sectors.

VOLUME VII NUMBER 1 Oanuary- June 2003) 9 casiple

The 2001 party-list elections reflected the problems of the 1998 elections. The COMELEC betrayed its sense of confusion right from the start when it approved a huge number of participants. It issued Omnibus Resolution No. 3785 en bane on 26 March 2001 approving the final list of party-list organizations for the 14 May 2001 elections. It also issued the Certified List of Political Parties/Sectoral Parties/ Organizations/Coalitions Participating in the Party-List System for the 14 May 2001 Elections on 28 March 2001. On 5 April2001, it issued the List of Political Parties/ Sectoral Organizations/Coalitions, Participating In the 14 May 2001 Elections With Their Respective Nominees. The Resolution approved a total of 163 party-list organizations while the Cer­ tified List had a total of 161. Only 154 organizations had their nominees listed by the COMELEC. Since it embodies the formal decision of the COMELEC, it is the Resolution that is observed with the 163 organizations distributed as follows:

sectoral Party-List organizations:

1. Labor 7 2. Peasant 6 3. Fisherfolk 2 4. Urban Poor 8 5. Indigenous Cultural Communities 4 6. Elderly 2 7. Handicapped 2 8. Women 2 9. Youth 5 10. Veterans 3 11. Overseas Workers 5 12. Professionals 13 13. Organizations/Coalitions: 78 14. Political Parties: 26

TOTAL 163

10 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

Of the 163 approved organizations, 104 belong to just two categories: sectoral organizations/coalitions and political parties. Fifty-nine belong to the twelve sec­ tors listed by the Constitution. If the 13 organizations listed in the professional sectors are not counted, only 46 organizations officially belong to tae 11 marginalized and underrepresented sectors or an average of 4.1 organizations per sector. Since these 11 sectors are considered "underrepresented and marginalized," one would have thought that they would be the big majority in the party-list ac­ creditation list. However, collectively, they constitute only a little over 28 percent of the total list. The professional sector made up 8 percent of the total list, larger than the 2.6 percent average for the other sectors. But, even with its inclusion, all the twelve sectors only constituted 36 percent of the total list. The sectoral organizations and coalitions, by comparison, had 78 in the list or 48 percent of the total number of party-list organizations. Political parties had 26 in the list or 16 percent of the total number. Of course, there were noteworthy organizations in these two categories that belonged to the underrepresented and marginal sectors listed in the Constitution. However, they were swamped by the overwhelming number of questionable, un­ worthy or false organizations that sneaked into the list of party-list organizations. This triggered several petitions to the Supreme Court to overturn the COMELEC approval. In a landmark decision, the former ordered the latter to reevaluate the qualifications of all the party-list organizations in accordance with the Supreme Court's interpretation of "marginalized and underrepresented sec­ 10 11 tors." At the end of the review, only 42 out of the 162 party-list groups were qualified by the COMELEC while 120 were disqualified. 12 Included in the 120 were seven party-list groups that won more than two percent of the total votes for party-list-and should have been proclaimed z/ they were not disqualified. On the other hand, included in the 42 who qualified were four party-list groups who would have to be proclaimed zf the votes for those dis­ 13 qualified were considered stray votes. Early in 2002, the Supreme Court lifted the disqualification against the Asso­ ciation of Philippine Electric Cooperatives (APEC) and the Citizens Battle Against

VOLUME VII NUMBER 1 (January- June 2003) 11 casiple

Corruption (CIBAC). On the other hand, the SC denied similar petitions by other party-list organizations. This brought the total of qualified party-list organizations to 44. The 2001 party-list elections brought into Congress five parties and seven rep­ resentatives.14 Bayan Muna with Saturnino Ocampo, Crispin Beltran and Liza Masa, Akbayan with Loretta Ann P Rosales, Butil with Benjamin Cruz, APEC with Ernesto Pablo, and CIBAC with Joel Villanueva were able to get their seats. At the time this paper was written, the petitions for setting aside the votes for disqualified parties as stray ballots are still pending. The Supreme Court, in its landmark 26 June 2001 decision, defined the quali­ fications for a party-list organization. In the process, it clarified the meaning of the term "marginalized and underrepresented." It is instrumental to list these eight Supreme Court guidelines which the COMELEC used in reviewing the qualifications of the 162 party-list participants in the 2001 election. These are as follows: 1. The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of R.A. 15 7941. 2. While major political parties are expressly allowed ... to participate, they must comply with the statutory policy of enabling "Filipino citizens belong­ ing to marginalized and underrepresented sectors ... to be elected to the House of Representatives." 3. [There] is the expressed constitutional provision that the religious sector may not be represented in the party-list system. 4. A party or an organization must not be disqualified under Section 6 ofR.A. 16 7941. 5. The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by the government. 6. The party must not only comply with the requirements of the law; its nomi­ nees must likewise do so. 7. Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees.

12 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

8. While lacking a well-defined political constituency, the nominee must like­ wise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

In strictly defining the qualifications of a party-list organization, the Supreme Court plugged a major loophole in the Party-List Law. This loophole in the qualifi­ cations was used by both the COMELEC in its previous rulings approving the huge number of petitions and by many politicians in their attempts to use the system to enter the House of Representatives. The Supreme Court decision on the qualifications of a party-list organization is an act of judicial activism that will be remembered for its crucial role in institu­ tionalizing the party-list system. It sets the system squarely within its proper politi­ cal framework of opening up the legislature to marginalized and underrepresented sectors of our political body. The 2001 party-list election is notable for a lot of things. One, it focuses atten­ tion on the sheer number of participants. The original number of submitted peti­ tions ran to over 200 where 163 were eventually approved by the COMELEC. Later, this was pruned to 44 by the electoral body after a review of the Supreme Court requalification decision. The huge quantity underlines the enthusiasm that the system has received from the electorate. Second, the election and its results stressed the urgent necessity to correct the various loopholes and restrictions in the Party-List Law that have severely restricted the filling up of available seats. A review of the two percent threshold and the three­ seat limit is in order. There should also be a viable method of determining the number of seats each winning party-list group can have. This should be legislated to correct both the 1998 COMELEC and the 2001 SC methods that have added more obstacles to filling up all the 20 percent allotted seats. Third, the election showed for the first time the reality of party-list organiza­ tions competing with and undermining each other, even to the extent of using the illegal methods of traditional politicians such as use of armed groups, vote-buying and black propaganda. There was also an overt attempt to use popular figures as nominees to win votes for the party, contrary to the whole spirit and rules of the

VOLUME VII NUMBER 1 0anuary- June 2003) 13 casiple

party-list system. Under the law, it is the party-not the nominee-who is elected and should be campaigned for. Fourth, proxies for unqualified groups such as the rebel movements, religious groups, crime syndicates, government bureaucracy, military and police and big busi­ ness proliferated in the 2001 election. It was a major problem that the Supreme Court decision on the qualifications of party-list groups partly solved. However, there is need for more vigilance since these attempts will continue in future party­ list elections. Fifth, the enthusiastic clamor to participate in the party-list elections reflects

the success it had had in the 11 •h Congress, particularly through the performance of Akbayan's representative, Congresswoman Etta Rosales. It was established in the 11th Congress that there is no significant distinction between the district congress- men and that of the party-list. Party-list representation is The party-list now an accepted feature of the House of Representa­ tives, albeit with a few restrictions. system is still in The 2001 election demonstrated the viability of the the final process party-list system. It is now an established and accepted of being born political institution, participated in by various political forces as an electoral arena. At the same time, it showed its possibly fatal weaknesses and crippling limitations. Its birth-pangs were particu­ larly painful. The party-list system is still in the final process of being born and is not yet completely out of the womb.

The Reform Agenda for the Party-List System

Reform of the party-list system can be viewed from two perspectives. One is the perspective of the system itself as it operates within the larger framework of the current elitist democratic politicaLsystem in the Philippines. The other is the per­ spective of the marginalized and disempowered people, particularly at the grassroots, as they struggle to liberate themselves from pervasive poverty and social inequi- . 17 ties. The first perspective sees the urgent necessity to enable the diffusion and as­ similation of social forces from below and which the political extremes harvest

14 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy towards a divisive and ultimately, confrontational politics. It tends to support the party-list system as part of efforts to consolidate and broaden the base of post­ Marcos democracy. Needless to say, it does not contemplate the wresting of politi­ cal dominance from the elite. Rather, it implies the popularization of elite rule­ trying to make it more palatable and acceptable to the masses. The second perspective sees the narrow-yet real-opportunity for grassroots empowerment and the political base for mainstreaming into national politics. The party-list system, from this vantage point, is a rehearsal, a vehicle or a waypoint towards the ultimate goal of national political ascendancy. Dr. MartinG. Rodriguez calls it "a door of participation and representation for the progressive elements of 18 Philippine society." It is not an end in itself, but a means to a more strategic end. Both these perspectives converge in their agreement on making the party-list system work. However, they diverge insofar as the matter of the realization of its potential is concerned. One sees it only as an accommodation while the other sees it as an entry to bigger things. The depth of the reforms to the party-list system depends largely on how far the second perspective is recognized and tolerated by the dominant elite. Such reforms have the objective of making practical and achievable the filling up of all party-list seats. In itself, this can go a long way in fulfilling the promise of the sys­ tem. Another objective is the tightening up of the criteria for participation in the party-list elections to effectively exclude elite-dominated parties and organizations. Within the purview of the second perspective, the following may be seen as necessary reforms to the present party-list system: First, the limit of three seats per winning party-list organization should be abol­ ished. As the case of Bayan Muna proved, a party-list organization is perfectly capable of winning more than the required percentage for three seats. The limit actually violates the right of suffrage of those whose votes were effectively excluded because these are excess votes. It also effectively subtracts seats from the total number of available seats since the excess votes form part of the calculation for these seats. Second, the minimum threshold of two percent should be changed to a more practical and proportional one. A minimum threshold is certainly necessary in or-

VOLUME VII NUMBER 1 Ganuary- June 2003) 15 casiple

der to prevent organizations without a credible constituency from gaining seats. However, the two-percent threshold is an arbitrary one, calculated directly from the existing 50 seats at the time of the enactment of RA 7941. The seats available at present are 52, owing to the emergence of new cities and legislative districts. Theo- 19 retically, if the two-percent rule is applied, two seats will not be filled up. 20 In reality, only a handful (for example, 13 in 1998 and 10 in 2001) are ex- pected to hurdle the stiff two percent threshold. The proposal being discussed in the House Committee on Suffrage and Electoral Reforms is one of a "moving" threshold that depends on the number of seats available. The proposal divides 100 percent of the party-list votes by the actual number of seats available. Applied to 21 the 2001 party-list election, the minimum threshold would then be 1.92 This would have enabled two more organizations to qualify for party-list seats. Third, the base for determining the seats should be changed to total votes cast for the winning party-list organizations rather than the total votes cast for the party-list elections. This is to ensure the widest distribution of the available seats. Fourth, the fractional remainder (after multiples of the minimum threshold have been deducted) should be counted. This needs to be reiterated and put in black and white in the law because of the refusal of both the COMELEC and Supreme Court to recognize this particular feature alluded to by RA 7941. Count­ ing the remainder will add more seats and address the question of unfairness in the area where the percentage vote of a party-list organization hovers just below a mul­ tiple of the minimum threshold. Applied to the 2001 party-list elections, the pre- 22 ceding amendments would have resulted in 12 party-list groups with all 53 seats taken and distributed among them. Fifth, the top three or five political parties in the preceding election for district representatives should be banned from the party-list election. This is actually an extension of the present provision in RA 7941 banning the major political parties from participating in the 1998 party-list elections. The purpose here is to give more room for weaker parties or organizations to garner seats in the House of Represen­ tatives, thereby enhancing the proportionality of representation. Sixth, stricter criteria for qualifying party-list organizations based on the Su­ preme Court decision on the matter should be included. This would weed out

16 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy frivolous organizations, dummies of major political parties or vested interest groups and mere vehicles for personal interests from the start. It would also cut down the number of contending organizations to a more manageable level. These reforms are currently being discussed at the committee level in the House of Representatives while the counterpart committee in the Senate still has to tackle them. Hopefully, these will address the objectives set forth above towards making the party-list a productive and credible feature of our legislature. The obstacles facing a fully-functioning party-list system seem insurmount­ able. However, as the preceding analysis of the 1998 and 2001 party-list elections showed, the party-list system in the Philippines is viable, has the potential to build the political capabilities of grassroots-based parties and can pave the way to broaden and strengthen democracy in the country. However, to do so, the party-list groups must be able to adjust to the realities and limits of the system, exploit all its poten­ tials and develop politically and organizationally. Reforms in the system are also called for, particularly in the areas of determining the seats and in qualifying partici­ pating organizations. A reformed party-list system can fully realize its potential as a training ground for mainstreaming grassroots-based parties. It is an irony of the Philippine party-list system that its success will have to be measured ultimately in its capability to give birth to and to nurture full-fledged political parties-parties that will no longer need the party-list system but rather can fully engage in all levels of electoral con­ test, and, by extension, in democratic governance.

The Party-List in a Philippine Parliamentary System?

23 Party-list systems exist in 59 percent of the "established democracies," more than any other electoral system. It is normally an inherent part .of a parliamentary sys­ tem wherein proportional representation is seen as a major characteristic of its practice of democracy. It is also increasingly popular for divided societies and post -conflict societies. As part of a constitutional package, the party-list system is normally favored-either as a principal electoral system or as an important adjunct to another electoral system.

VOLUME VII NUMBER 1 (January- June 2003) 17 casiple

International IDEA describes its advantages thus: "1) it delivers highly propor­ tional election results; 2) is relatively invulnerable to gerrymandering; and 3) is simpler than many alternative systems for both voters and electoral officials and 24 thus will be less open to suspicion." A parliamentary system for the Philippines would have to be argued from dif­ ferent perspectives altogether. However, such a system is almost certain to contain the party-list system if the objectives of the parliamentary system include the repre­ sentation of all sectors of society. In fact, the commissioners who framed the 1987 constitution included the party-list system as well as other features based on the premise of a Philippine parliamentary system. It is of historical record that the parliamentary system lost by only one vote. Reforms in the party-list system cannot but contemplate a possible constitu­ tional revision whereby the system is placed comfortably within the natural frame­ work of a Philippine parliamentary system. On a wider front therefore, the reform could start with the revision of the constitution. There should be a definitive governance framework for the party-list system and it is not the presidential system. The true flowering of the system depends on its becoming a major, if not the decisive, voice in law-making. This can only flour­ ish in a parliamentary system, where national policies are debated and party posi­ tions can be defined by the party and not by individual lawmakers. The parties would tend to negotiate with each other based on their platforms and principles, rather than be preempted by strong personalities. A party-based democracy-with live connections to their constituencies-will gradually take over from the person­ ality-based parties at present.

18 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

Notes

This was increased to nine representatives with two seats for the Association of the Philippine Electric Cooperatives (APEC), one more for Akbayan, and another for the Citizens, Battle Against Corruption (CIBAC), through a controversial COMELEC decision that considered the votes of the disqualified party-list groups stray votes. 2 The Institute for Political and Electoral Reform (IPER) came out in 1995 with the psychographic study of the behavior of the Filipino voter. This study revealed that glamour and popularity played a major, if not a decisive, role in their choice of a candidate. The study also came out with the finding that patronage politics still play a major, if secondary, role. The events of the 1998 and 2001 elections reflected these findings where many media personalities and candidates from traditional political families won. 3 These grassroots-based forces not only included the various national democratic groups identified with the Communist Party of the Philippines, but also the social democrats, liberal democrats, popular democrats and Moro rebels as well as sector-based groups. 4 Records of the Constitutional Commission, August 1, 1986, p.561. 5 Ibid, p. 561-562. 6 Ibid,July24, 1986,p.177. 7 This state of affairs stems directly from the Constitutional Commission's failure to synchronize earlier provisions decided on the premise of a multiparty parliamentary system. It later decided, by a majority of one vote , to have a presidential system. 8 Philippine Coconut Producers Federation (COCOFED) was proclaimed after the Lanao special elections which catapulted it into the winning circle. 9 Genuine Record (G.R.) 136781, authored by SC Justice Artemio Panganiban. 10 SC decision of June 26, 2001. This is in connection with the case filed by Ang Bagong Bayani­ OFW Labor Party. The Supreme Court directed the COMELEC to "immediately conduct evidentiary hearings on the qualifications of the party-list participants." The COMELEC issued Resolution no. 4495 in compliance and conducted hearings. The results were issued in three installments of "partial compliance reports" of July 27, 2001, August 22, 2001 and September 27, 2001. 11 This figure was from the actual list of party-list groups reviewed by the COMELEC. The inconsistency of the figures in various COMELEC documents on the 2001 party-list election adds to the over-all confusion. 12 These are the Mamamayan Ayaw sa Droga (MAD), Association of Philippine Cooperatives (APEC), Veterans Federation Party (VFP), Abag Promdi (PROMDI), Nationalist People's Coalition (NPC), Lakas-NUCD-UMDP and Citizens's Battle Against Corruption (CIBAC). 13 These are the Anak Mindanao (AMIN ), AZyansang Bayanihan ng mga Magsasaka, Manggagawang Bukid at Mangingisda (ABA), Partido ng Manggagawa (PM) and Sanlakas. 14 See footnote 1. 15 Worker, peasant, urban poor, fisherfolk, women, youth, indigenous cultural communities, elderly, handicapped, veterans, overseas workers and professionals.

VOLUME VII NUMBER 1 (January- June 2003) 19 casiple

16 Section 6 enumerates the ff. grounds for disqualification: ( 1) A religious sect or denomination, organization or association organized for religious purposes; (2) Advocates violence or unlawful means to seek its goal; (3) Foreign party or organization; (4) Receiving support from any foreign government, foreign political party, foundation, organization; (5) Violates or fails to comply with election laws, rules or regulations; (6) Declares untruthful statements in its petition; (7) Ceased to exist for one year; and (8) Fails to participate in the last 2 preceding elections or fails to obtain at least 2 per centum of the votes. 17 The author is not talking here of the perspective of the conservative elite whose spokepersons agitate from time to time for the abolition of the party-list system, either as a failed experiment, unnecessary political complication or as a dangerous option undermining the status quo. This perspective negates the need for reform and would rather throw out the baby with the bathwater. 18 Dr. Martin G. Rodriguez. Democracy Rising? The Trials and Triumphs of the 1998 Party-List Elections. 1998, p. 35. 19 52 seats multiplied by 2 percent will yield 104 percent-four percent over 100. 20 This was the number of those who actually hurdled the 2-percent minimum threshold before some were disqualified by the Supreme Court. 21 One hundred percent of total votes cast for party-list divided by 52 seats. 22 This assumes that the disqualified winning party-list organizations are still counted. This is to prevent the skewing of the results. 23 Defined by the International IDEA Handbook on Electoral System Design as "those states with a population of more than a quarter of a 1nillion which have held continuing free elections for over 20 years." 2 4 Peter Harris and Ben Reilly, eds. Democracy and Deep-Rooted Conflict: Options /or Negotiators. p. 196.

20 PUBLIC POLICY The Party-List Path to a Broadened Philippine Democracy

Bibliography

Casiple, Ramon C. 2001 Elections: The Continuing Travails ofthe Party-List System (May 9, 2002) . ------. A Political Assessment of The Party- List System (December 16, 1998). ------. Initial Analysis a/The 163 Party-List Organizations Approved By The Commission On Elections (April 27, 2001). Commission on Election. Certified List a/Political Parties/Sectoral Parties/Organizations/ Coalitions Participating in the Party-List System for the May 14, 2001 Elections (March 28, 2001) . ------. Final Compliance Report. (September 27, 2001). ------. List of Political Parties/Sectoral Organizations/Coalitions, Participating In the May 14, 2001 Elections With Their Respective Nominees. (April 5, 2001). ------. Partial Compliance Report. Q"uly 27, 2001). ------.Omnibus Resolution No. 3785. (March 26, 2001). ______.Resolution No. 3047-B. (June 26, 1998) . ------. Second Partial Compliance Report. (August 22, 2001). Congress of the Philippines. Republic Act No. 7941, An Act Providing the Election a/Party-List Representatives Through the Party-List System, and Appropriating Funds Therefore. (March 3,1995). Constitutional Commission of 1986. Records ofthe Constitutional Commission, No. 38, July 24, 1986 (Manila: National Printing Office, 1987) . ------. Records of the Constitutional Commission, No. 45, August 1, 1986 (Manila: National Printing Office, 1987). Harris, Peter and Reilly, Ben, eds. Democracy and Deep-Rooted Conflict: Options/or Negotiators (Ljubljana, Sweden: Korotan Lyubljana d.o.o., 1998). Institute for Political and Electoral Reform. A Proposal for A Simple Determination a/Qualified Party-List Representation (May 9, 2002). Institute for Political and Electoral Reform. Psychographic Study ofthe Voting Behavior ofthe Filipino Electorate (1995). (unpublished manuscript)

VOLUME VII NUMBER 1 Ganuary- June 2003) 21 casiple

Republic if the Philippines, The 1987 Constitution ofthe Philippines. Reynolds, Andrew and Reilly, Ben, eds. The International IDEA Handbook of Electoral System Design (Varberg, Sweden: Br'derna Carlssons BoktryckeriAB, 1997). Rodriguez, Agustin Martin G. and Djorina Velasco. Democracy Rising? The Trials and Triumphs ofthe 1998 Party-List Elections (Manila, Philippines: Inka Design Studio, 1998). Rodriguez, Agustin G. Martin. The Winding Road to Representation: The 2001 Party­ List Fiasco. (unpublished and undated manuscript) Supreme Court of the Philippines. Decz'sion on G.R. No. 136781 Supreme Court of the Philippines. Decision on G.R. No. 147589 and G.R. No. 147613. (June 26, 2001).

22 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed? 1

EDUARDO C. TADEM

The Philippines, like most developing countries, has long relied on Official Development Assistance (ODA) or "foreign aid" to finance economic growth. In the fifties' and early sixties', ODA was used primarily for post-war rehabilitation and institutional development, consisted mainly of grant assistance and was pro- 2 vided principally by the United States. ODA contributed 10 percent of foreign exchange and one percent of Gross National Product (GNP) during these two decades. The organization of the Consultative Group on the Philippines in 1971 dra­ matically increased the role of foreign aid and commitments during the period 1971-74 were "larger than the total committed during the preceding 20 years." By that time, it accounted for 14 percent of the country's foreign exchange require­ ments. The composition and source of aid also changed from grants to loans and from bilateral to multilateral. When Japan took over from the US as the country's primary source of bilateral ODA. ODA is an attractive source of development funds in that interest rates for loans are lower than commercial rates, have longer terms and extended grace peri- Tad em ods, and are usually intended for projects that would otherwise not attract private capital. The availability of grant assistance (which need not be repaid) also adds to ODA's attraction. The Zedillo Commission notes that despite the large sums of private capital available in the international market to fuel a country's investment needs, ODA 3 will continue to play an important role in four areas: 1. Helping in countries and sectors unattractive to private investment, 2. Humanitarian interventions, 3. Providing and maintaining supply of global public goods such as peace, health and environmental concerns, and 4. Responding to financial crises.

In this regard, the Commission urged industrial countries to implement "the target of providing ODA equal to 0.7 percent of their GNP" Two criteria are pro­ posed to guide ODA allotments: (1) a country's depth of poverty and (2) sound government policies that address poverty. This exploratory paper attempts to examine immediate issues in official devel­ opment assistance to the Philippines in the light of state policy pronouncements and announced shifts in donor policies. While the observed donor shifts refer spe­ cifically to Japanese ODA, given the dominant role played by Japan in both bilat­ eral and multilateral assistance and the positive impact that such. shifts could gen­ erally bring; they will be used as a yardstick to evaluate other donor countries as well. As a time frame, the study will look into ODA from 1986 onwards, or after the end of the Marcos regime. This study will not deal with the more substantial and long-range issues on ODA in general and on ODA in the Philippines in particular. These refer to, among others, 1. the development paradigm espoused by ODA donors and their favored re­ cipients, 2. the role of ODA with respect to investments, trade and strategic issues, 3. the role of ODA and foreign donors in the direction and thrust of national policies, and,

24 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

4. whether a country should even utilize external assistance in funding devel­ opment projects.

Definitions and Policies

ODA refers to the flows to the country bestowed in the form of loans (bilateral or multilateral), grants and technical assistance or cooperation with the aim of facilitat­ ing economic development in the recipient-country. By definition, ODA refers only to government to government transfers of funds. This could be bilateral or multilateral. ODA used to be known as "foreign aid." Sometimes it's called "development aid." Lately, some funds are being transferred to non-government organizations but the amounts involved are insignificant. Provisions found in the Official Development Assistance Act of 1996 define the Philippine government's official position on crucial ODA issues and concerns. Some of the more pertinent ones are: Section 2a .... [ODA is a loan or loan and grant which] ... must be administered with the objective of promoting sustainable social and economic development and welfare of the Philippines .... Section 4. The proceeds of ODA shall be used to achieve equitable growth and development in all provinces through priority projects for the improvement of economic and social service facilities taking into account such factors as land area, population, scarcity of resources, low literacy rate, infant mortality and poverty incidence in the area: Provided that rural infrastructure, countryside development and economic zones established under the PEZA law shall be given preference in the utilization of ODA funds. Section 4a and 4b. ODA shall not be availed of or utilized directly or indirectly for projects mandated primarily by law to. be served by the private sector and financing for private corporations with access to commercial credit. ... The NEDA shall ensure that the ODA obtained shall be for previously identified national projects which are urgent and necessary...

VOLUME VII NUMBER 1 Ganuary. June 2003) 25 Tad em

Section 11c. In the hiring of consultants, contractors, architects, engineers and other professionals necessary for a project's implementation, Filipinos shall be given preference. Section 11d. In the purchase of supplies and materials, preference shall be givt>fl to Filipino suppliers and manufacturers, so long as the same shall not adversely alter or affect the project, and such supplies and materials are to the standards specified by the consultants) contractors ... connected with the projects.

With regard to Japanese ODA, the following trends have been reported as early 4 as 1994: 1) Volume increases in US dollar terms may not continue into the 21st century, with ups and downs in Japan's ODA as percentage of GNP, 2) Continuing efforts for increasing the volume of grant assistance as percent­ age of total ODA, 3) Continued predominance of bilateral ODA, with a steady decline in bilat­ eral ODA going to developing Asiap and Pacific countries, 4) Gradual decline of bilateral ODA going to economic infrastructures, with a reverse trend for that going to social sectors and program assistance. 5) Growing importance of technical cooperation, and 6) Steady increase in assistance through Non-Government Organizations (NGOs). In 1994, the Japanese government adopted an ODA policy based on the "three types of balance:" (1) balance between physical infrastructure and economic infra­ structure; (2) balance "between material aid and human or institutional aid or the development of human resources;" and (3) balance between "large-scale projects 5 and small-scale (grassroots) projects" involving NGOs and other voluntary groups. Side by side with these considerations is a strong bias for recipient countries that promote market-oriented economic reforms and human rights. Japanese ODA is regarded as a foreign policy tool by Tokyo and is used in place of a buildup of military capability. The understanding is that 'Japan's national inter-

26 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed? ests will be served in the long-term and in a comprehensive sense to cover a variety of ' 6 perspectives including political, economic, social and cultural considerations." Given the length of time it has been around and the billions of dollars that it has foreign aid is expected committed and disbursed, foreign aid is ex­ to have exerted an pected to have exerted an extensive impact on extensive impact on a a developing country's economic and social development. Such an impact would not be developing country's confined to specific projects per se but on a economic and social broader range including the economic policies development. of the recipient-country.

Distribution of ODA In The Philippines, 1986-2000

Total ODA committed from 1986 to 2000 amounted to US$28.6 billion. Of this, 41 percent was contributed by multilateral institutions while bilateral contri­ butions shared 59 percent as shown in Table 1 below. Loans made up 94.6 percent of multilateral ODA and only 5.4 percent was in the form of grants. On the other hand, 78.4 percent of bilateral assistance was in the form of loans, with only 21.6 percent in grants. Of total ODA from 1987-2000, 85.42 percent was in the form of loans and only 14.6 percent was in grant form. Among the multilaterals, the World Bank is the largest provider with 52 per­ cent. Asian Development Bank (ADB) is next with 43 percent. Total World Bank (WB) and ADB exposure is 95 percent. Among bilateral donors, Japan leads with 75.6 percent of total ODA. The US is a far second with only 7.5 percent. An even more distant third is Germany with a mere 3.6 percent. Japan's share of total bilateral loans of 85.4 percent is greater than its share of total bilateral ODA. Its share of grant assistance on the other hand is only 41 percent. Of total Japanese assistance, 89 percent is in the form of loans and only 11 percent is in the form of grants and technical assistance. The reverse is true with the

VOLUME VII NUMBER 1 0anuary- June 2003) 27 Tad em

US on the other hand, with American assistance consisting of 86 percent grants and only 14 percent in loans. Japan has been the world's top ODA donor for ten consecutive years since 7 1991. The Philippines has been the third largest recipient country of Japanese ODA (after Indonesia and China) for the past ten years.

TABLE 1. TOTAL ODA COMMITTED TO THE PHILIPPINES, 1986-2000 (in US$Million, By Source)

SOURCE TOTAL LOANS GRANTS

Multilateral 1.ADB 5,167.13 5,092.65 74.48 2.1BRD/WB 6,162.70 6,131.60 31.10 3.EU 310.20 310.20 4. UN System 230.04 230.04 5. Others 24.60 24.60 Subtotal 11,894.47 11,248.85 645.82

Bilateral 1.Japan 12,649.36 11,206.24 1,443.32 2.US 1,255.94 173.30 1,082.64 3. Germany 605.74 392.24 168.71 4. France 499.35 489.73 9.62 5. Australia 457.34 171.43 285.91 6.Canada 297.20 15.40 281.86 7. Spain 237.96 219.43 18.53 8. UKIGB 168.81 194.21 29.40 9.1taly 117.10 75.00 42.15 10. Brunei 100.00 100.00 11. Others 348.30 89.23 167.90 Subtotal 16,737.10 13,126.21 3,530.04

TOTAL 28,631.57 24,375.06 4,175.86

Source for basic data: NEDA Public Investment Staff

Interestingly, there are discrepancies when comparing ODA data from the Phil­ ippines' National Economic Development Authority (NEDA) and Japan's Minis-

28 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed? try ofForeignMfairs (MFA). From 1987 to 1998, the MFA of]apan reported that 38 percent of Japanese ODA to the Philippines was in the form of grants and 62 8 percent was in the form of loans. The NEDA however reports a share of only 12.4 percent in grants and 87.6 percent in loans for the same period for Japanese ODA to the Philippines (see Table 2 below).

TABLE 2: JAPANESE ODACOMMITMENTS TO THE PHILIPPINES, 1987-1998 (in US$ million)

Year Total ODA loans Share(%) Grants Share(%)

1987 42.7 42.7 100.0 1988 1,052.3 842.2 80.03 210.2 19.97 1989 666.2 548.7 82.36 117.5 17.64 1990 904.5 818.8 90.53 85.7 9.47 1991 1,198.7 1,116.9 93.18 81.9 6.82 1992 297.2 200.0 67.30 97.2 32.79 1993 661.3 468.7 70.87 192.7 29.13 1994 1,271.9 1,128.1 88.69 143.8 11.31 1995 1,072.0 1,029.6 96.04 42.3 3.94 1996 540.4 437.0 80.87 103.4 19.13 1997 1,273.12 1,187.64 93.29 85.48 6.71 1998 1,106.01 1,054.27 95.32 51.74 4.68 Total 10,086.53 8,831.91 87.56 1,254.62 12.44

Source for basic data: NEDA Public Investment Staff

Time Trends in ODA to the Philippines

By reorganizing data from NEDA into two seven-yearperiods (1987-1993 and 1994-2000 as shown in Table 3 below), distinct patterns in ODA commitments to the Philippines can be seen. In absolute terms, ODA commitments to the Philip­ pines dropped from US$14.4 billion in the period 1987-1993 to only US$13.3 billion in the 1994-2000 period or a decline of 8.3 percent.

VOLUME VII NUMBER 1 (January- June 2003) 29 Tad em

From 1987 to 1993, of total ODA, the share of loans was 82.5 percent while that of grants was 17.53 percent. In the next seven-year period from 1994 to 2000 however, the share of loans rose to 88.6 percent while grants fell to 11.42 percent. Among the multilaterals, loans accounted for 96 percent of ODA to the coun­ try from 1987 to 1993 but decreased somewhat to 91.5 percent in the period 1994 to 2000. Assistance from the ADB consisted of 98.5 percent loans in both the two periods (1987-1993 and 1994-2000). As for the World Bank, it registered loan shares of 99.3 percent for 1987-1993 and 100 percent for 1994-2000. What accounts for the slightly decreased share of multilateral loans vis a vis grants was the 48 percent increase in grant contributions from the United Nation (UN) System and the European Union (EU) from US$214 million to US$317 million. Official Development Assistance (ODA) from the two are exclusively in the form of grants. Unfortunately, they account for only 3 percent of multilateral assistance. Total assistance from both the ADB and WB,decreased by 80 percent between the two periods from US$6.75 billion (1987 -1993) to US$3.75 billion (1994-2000). The WB decreased its assistance by 175 percent while ADB cut its aid by 26 per­ cent. For bilateral ODA, loans accounted for 68.4 percent in 1987-1993 but bal­ looned to 87.3 percent in the 1994-2000 period. Grant assistance fell from 31.6 percent to 12.7 percent between the two periods. While the biggest donor, Japan, increased its total ODA by 55.5 percent, this took place entirely in the arena of loans where the increase was 7 3 percent. Grants on the other hand decreased by 48 percent. The share of Japanese loans to total ODA thus increased from 82 percent in the 1987-1993 period to 93 percent in the 1994-2000 period. For the US, which ranks a poor second to Japan, total ODA fell by a substan­ tial381 percent between the two periods- from US$994 million to only US$206.45 million. In the latter period, Australia and Germany gave more ODA to the Philip­ pines than the US while France almost matched the American contribution. The US also increased the loan component of its ODA from 10.6 percent in 1987-1993 9 to 17 percent in 1994-2000.

30 PUBLIC POLICY official Development Assistance to the Philippines: can it be Reformed?

TABLE 3. TIME TRENDS IN ODA COMMITMENTS TO THE PHILIPPINES, 1987-2000 (In US$ million)

1987-1993 1994-2000

Source Total Loans Grants Total Loans Grants

Multilateral 1.ADB 2,704.28 2,664.30 39.8 2,143.53 2,111.35 32.80 2.WB 4,407.70 4,376.20 31.3 1,604.40 1,604.40 3.UN 81.50 81.5 140.82 140.82 4.EU 133.30 133.30 176.93 176.93 5. Others 24.60 24.60

Subtotal 7,325.90 7,040.70 285.70 4,089.56 3,740.35 349.21

Bilateral 1.Japan 4,822.90 3,995.30 827.90 7,500.64 6,941.69 558.95 2.US 993.80 106.00 887.80 206.45 35.00 171.45 3.Germany 211.60 125.00 86.80 390.11 312.27 77.85 4. France 295.80 287.20 8.80 203.29 202.53 00.76 5.Australia 106.10 106.10 347.24 171.43 175.81 6. Canada 132.90 141.70 125.02 15.40 109.62 7. Spain 67.10 59.00 8.10 170.80 160.40 10.43 8.UKIGB 72.90 43.50 29.40 95.91 16.25 9.1taly 105.60 75.00 37.00 5.20 5.20 10.Brunei 100.00 100.00 11.0thers 146.90 27.70 96.70 125.94 150.24 55.14

Subtotal 7,055.60 4,819.30 2,230.30 9,170.60 8,005.39 1,165.21

TOTAL 14,381.50 11,860.00 2,521.80 13,260.16 11,745.74 1,514.42

Source for basic data: NEDA Public Investment Staff

Sectoral Allocations

Between the two seven-year periods (1987-1993 and 1994-2000), even as to- tal ODA commitments fell, funds for infrastructure support increased by 35.6 per- cent and for agri-industrial development by 3.9 percent. However, funding support

VOLUME VII NUMBER 1 (January- June 2003) 31 Tadem for human development was reduced by 31.4 percent. These three sectors accounted 10 for 92 percent of ODA in the 1994-2000 period as shown in Table 4 below. The share of infrastructure support funds increased from 41.9 percent to 60.1 percent between the two periods. Agricultural and industrial development also in­ creased their share from 20.5 percent to 22.6 percent. Human development how­ ever saw its share fall from 12.3 percent to 9.9 percent.

TABLE 4. TRENDS IN SECTORAL ALLOCATION OF ODA, 1987-1993 and 1994-2000 (In US$million)

1987-1993 1994-2000

Sector Amount Percentage Amount Percentage

Infrastructure Support 5,914.12 41.91 8,017.34 60.10

Agri-lndustrial Dev. 2,897.53 20.53 3,009.11 22.56

Human Development 1,730.73 12.26 1,316.32 9.86

Development Admin. 590.40 4.18 467.81 3.50

Commodity Aid 702.80 4.98

Integrated Area Dev. 327.00 2.31 272.10 2.03

Disaster Mitigation 256.79 1.92

Others 1,949.60 13.81 0.80 0.00

TOTAL 14,111.86 100.00 13,341.04 100.00

Source for basic data: NEDA Public Investment Staff Note: For 1994-2000, commodity aid has probably been reclassified under agri-industrial development.

In terms of subsectors, transportation has the largest allocation with 26.5 per­ cent, followed by agriculture with 20.2 percent as shown in Table 5 below. Energy, power and electrification is third with 14.4 percent, fourth is water resources with 12.2 percent. Environment and natural resources is fifth with a 5.8 percent share. Notable laggards are agrarian reform ( 1.8 percent), science and technology (0.16 percent), cooperatives (0.0004 percent), housing, social welfare and commu­ 11 nity development (0.15 percent) and social infrastructure (0.0004 percent). The absence of allocations for housing in the official NEDA reports is surprising as the World Bank is known for providing support for the government's housing programs.

32 PUBLIC POLICY official Development Assistance to the Philippines: can it be Reformed?

1be figure for agrarian reform appears understated as the Department of Agrar­ ian Reform (DAR) reports total ODA of US$365.46 million as of December 31, 2000. In any case, ODA for agrarian reform is entirely in support services (for physical infrastructure and human development). During the tenure of then DAR Secretary Horacia R. Morales ( 1998-2001), government policy advisers lobbied informally with foreign donors such as the World Bank to support the land acquisition component of the program in order to speed up the land redistribution but the response was not • 12 encouragmg.

TABLE 5. DISAGGREGATED SECTORAL ODAALLOCATIONS, 1994-2000 (In US$ million)

Sector Amount %Share

1. Infrastructure Support 8,017.34 a. Transportation 3,530.70 26.46% b. Water Resources 1,634.49 12.25% c. Energy, Power, Electrification 1 ,919.81 14.39% d. Communications 135.48 1.01% e. Social Infrastructure 0.60 0.00%

2. Agri-lndustry 3,009.11 a. Agrarian Reform 240.80 1.80% b. Agriculture 2,694.25 20.20% c. Cooperatives 0.56 0.00% d. Environment & Natural Resources 776.66 5.82% e. Industry, Trade and Tourism 591.75 4.43% f. Science and Technology 20.90 0.16%

3. Human Development 1,316.32 a. Education and· Manpower Development 551.27 4.13% b. Housing c. Health, Nutrition and Family Planning 283.75 2.12% d. Social Welfare and Com. Development 20.53 0.15% e. Others (not disaggregated for 1994-96) 460.77 3.45%

4. Others 996.70 a. Development Administration 467.81 3.50% b. Disaster Mitigation 256.79 1.92% c. Integrated Area Development 272.10 2.03%

TOTAL 13,341.04 100.00%

Source for basic data: NEDA Public Investment Staff Note: disaggregated subsectoral figures for 1987-1991 were not available.

VOLUME VII NUMBER 1 (January- June 2003) 33 Tadem

PROBLEM ISSUES

ODA as External Debt

The share of the country's ODA's to its external debt stood at 47.7 percent as of 2000 as seen in Table 6. Though this represents a decline from the 1999 share of 51.1 percent, the average share of ODAover the thirteen-year period from 1988 to 2000 is a high 51 percent. The highest level was in 1994 at 60 percent and the lowest was in 1988 with 41.5 percent. The continued weakening of the Philippine peso is cause for worry as far as debt payments are concerned. It has been revealed that a depreciation by one peso of the Philippine currency against the US dollar results in an increase in interest 13 payments on the foreign debt by PhP1.15 billion annually . Last year's govern­ ment projections on interest payments of PhP48.92 billion were based on an ex­ change rate of PhP42 to the dollar. For 2001, assuming a 52:1 rate, the actual interest rate payments would reach PhP59.7 billion. Even at 50:1, interest pay­ ments would still cost PhP57 .4 billion.

TABLE 6. ODAAS SHARE OF EXTERNAL DEBT, 1988-2000 (in US$billion)

Year Amount %Share

1988 11.6 41.5 1989 12.3 44.5 1990 16.0 55.9 1991 16.1 53.6 1992 18.4 57.4 1993 16.6 46.6 1994 23.2 60.0 1995 20.4 51.8 1996 22.1 52.7 1997 21.9 48.3 1998 25.0 52.2 1999 26.7 51.1 2000 25.0 47.7

Source: Department of Finance

34 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

World Bank loans command an interest rate that hovers around 6.9 percent, a "pool-based variable rate" that is determined every six months. The maturity period is 20 years with a grace period of five years. Additional charges include a 0.75 percent commitment fee that is charged on the undrawn balance. The larger the undrawn balance, the larger the commitment fee. There is also a one-percent "front-end fee." For the US$217 million in total World Bank loans to the country in 1999 alone, the Philippine government incurred annual interest payments ofUS$15.1 million and a front-end fee of $2.17 million. For the year 2000, commitment charges for undis­ bursed WB loans of US$1.2 billion totaled US$9 million alone. Loans by the ADB accessed from the bank's Ordinary Capital Resources (OCR) are pegged at 6.7 percent for dollar loans and 5.5 percent for multi-currency loans (pool-based as in WB loans). Maturity and grace periods are the same as WB's. The 0.75 percent commitment fee is paid annually on the undisbursed portion of the loan based on a disbursement schedule ( 15 percent of Total Project Commit- ~ ~ ment for the1 .year, 45 percent for the 2 year, 85 percent for the 3 year, 100 percent for the 4th year). For the year 2000, commitment fees for undisbursed ADB loans of US$544 million amounted to US$4 million. Japanese bilateral loans coursed through the Japan Bank for International Co­ operation (JBIC), formerly the Overseas Economic Cooperation Fund (OECF), have interest rates of 2.3 percent, a maturity period of 30 years and a grace period of 10 years. The Obuchi/Special Yen Loan has a one percent interest rate and the same maturity and grace periods. German loans are pegged at only 0.75 percent interest, Italy charges one per­ cent, France, one percent for soft loans and Austria 4-5 percent. There is a so-called OECD consensus rate that is followed in the case of loans from the UK, Spain, Canada and Korea. On the other hand, Belgium, Finland and Norway do not charge interest.

Tied and untied Aid

The issue of conditionalities attached to ODA has been raised often by its critics. Many of the benefits accruing to the lenders are derived from the conditions

VOLUME VII NUMBER 1 Qanuary ·June 2003) 35 Tad em attached to or arising from the use of ODA funds. Tied loans require the receiving country to acquire most, if not all, the technical assistance, equipment or supplies from the donor country. Many years ago, a NEDA Deputy Director General re­ vealed that Japan earned from 75 cents to 95 cents for every dollar of aid it gives in the form of goods and services purchased from the donor country by the recipient country in relation to aid projects. This is particularly true for grant assistance that sees Japanese firms actively lobbying for and being fa- Japan earned vored for the conduct of feasibility studies, consultancies from 75 cents to and engineering projects. A 1986 study showed that 90 percent of Japanese commodity loans was used to pur- 14 95 cents for chase Japanese goods. every dollar of Tying loans and grants has dire consequences for the aid it gives sustainability of projects. Equipment maintenance is es­ pecially difficult and human resource training is some­ times lacking. It is reported that "prices of tied goods were over 20 percent higher than the lowest available international prices and reduced aid value by an average 15 of 10-15 percent. " Tied aid therefore remains "a major obstacle to the redirection of ODA resources to meet the real needs of developing countries." In the case of untied ODA, biases for donor-countries remain in areas such as the hiring of consultants from the donor-country or the use of donor-country stan­ dards in the acquisition of equipment and other project requirements. This takes place for instance whenJ apanese consultants are hired by Japanese donor agencies, e.g., JICA, and they in turn "specify the use ofJ apanese goods and equipment or recommend Japanese industrial standards." Large private business interests in donor countries, especially transnational corporations (TNCs), accrue much profit in their involvement in ODA-financed projects in underdeveloped countries. Big business is closely linked to ODA projects. From 1966 to 1999,ADB awarded US$20.1 billion in contracts to companies from donor countries for projects in various ADB-member countries. United States (US) and Japanese private companies "have between them won ADB contracts worth 16 more than allADB lending to the thirteen least developed countries in the region." This takes place despite an established system of internationally competitive bid-

36 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

ding. For those corporations involved in large-scale infrastructure projects, the tech­ nologies they use are either "politically unacceptable or no longer commercially . ,17 viable in d eve 1ope d countnes. Untying aid is supposedly a global trend. This is not the case with Japan whose decade-long economic downturn forces government to exert extra efforts in assisting its crisis-stricken business community. There is also an admission that "ODA cannot be implemented without the active participation of the Japanese business sector" as a 1999 government medium-term policy on ODA declared "the intention to consider increased opportunities for Japanese business to par­ 18 ticipate in ODA." Despite a claim by the Japanese Ministry of Foreign Mfairs 19 that 98 percent of Japanese ODA has been untied, observers expect Japan "to continue providing significant ODA assistance on a 'tied' basis ... as a time-tested approach in building domestic business and helping win support from Japanese . . 1 ,20 mu1 tmatlona s. In any case, whether tied or untied, contracts for construction activities and equipment purchase as well as for consultancy services somehow end up in the hands of donor country corporations and nationals. Loans by the ADB were offi­ cially untied, yet from 1995 to 1999 throughout the Asian region, ten Japanese firms won construction contracts amounting to US$416.3 million as part of the 21 bank's loan proceeds. The list of corporations reads like a "who's who" inJ apa­ nese big business- Mitsui, Mitsubishi, Marubeni, Sumitomo, Nissho-Iwai, Asahi Glass and Kumagai Gumi, among others. The contracted amounts range from a low of US$12 million to a high of US$168 million per firm.

Geographic Distribution

Temario Rivera observes that ((in the Philippines... the regional distribution ofOECF yen loans shows a highly disproportionate allocation on the basis ofmajor island groupings and regions on the basis ofpoverty incidence. Data up to 1995 show that the poorest island groupings and regions also received the least loan assistance from the OECF'J2

VOLUME VII NUMBER 1 (January- June 2003) 37 Tad em

Half of all loans went to the Luzon island-group with the Visayas getting 20 percent and Mindanao "where three of the poorest regions are situated and a popu­ lation almost equal to the Visayas, a measly 5 percent" In terms of administrative regions, the area with the lowest poverty incidence, Metro Manila, got the highest share with 15 percent of all Japanese loans. In second place was Central Visayas ( 11 percent) which hosts the nation's second largest metropolitan area, Cebu. Rivera (2000) further notes that "the region with the highest poverty incidence, Bicol, received only 5 percent of total yen allocations" while "another 5 percent of total yen loans went to the next three poorest regions, Central Mindanao, the Cordillera Autonomous Region and Northern Mindanao." The above situation violates the provisions of the ODA Act of 1996 which, as cited earlier, mandates the use of ODA for the equal development and growth of all provinces and with attention to areas that are resource poor and are characterized by low levels of human development and high poverty incidence.

Low Loan Availment Rates

Availment rates characterize the absorptive capacity of the government with regard to contracted ODA funds. Technically, it is defined as the cumulative actual disbursements as a percentage of scheduled disbursements. For CY 2000, NEDA reported an undrawn amount of US$8.4 billion, or 63 percent of the total ODA 23 commitments of US$13.3 billion. (See Table 7) This was an increase over the 1999 total undrawn amount ofUS$7.7 billion and was accounted for by the signing of 15 new loans in 2000. By sector, the integrated area development component had the lowest availment rate of 15 percent followed by the human development component with 54 per­ cent. Next was infrastructure support with 57 percent availment rate followed by industry and services with 67 percent. The highest availment rate was credited to development administration with 100 percent followed by the agriculture, natural resources and agrarian reform component with 85 percent.

38 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

TABLE 7. PHILIPPINE ODALOAN DISBURSEMENTSANDAVAILMENTS (1988-2000)

Year Disbursements Availment Rates (In US$Million) (Percentage) 1988 852 79% 1989 978 82% 1990 1,386 84% 1991 1,033 77% 1992 1,660 79% 1993 1,747 81% 1994 1 '195 78% 1995 1,299 76% 1996 1,368 79% 1997 1,300 74% 1998 1,136 66% 1999 840 62% 2000 995 63%

Source: NEDA

Of the US$8.4 billion in undrawn funds, US$7.9 billion (or 95 percent) of these were accounted for by the World Bank, ADB andJBIC alone. UndrawnJBIC funds totaled US$4.92 billion (58.6 percent), World Bank- US$1.19 billion (14.2 percent) andADB- US$1.1 billion (13.3 percent). The Department of Education, Culture and Sports (DECS) nearly lost a PhP12 billion loan for public high schools from the World Bank and the JBIC for barely using the funds available to it. Under former Secretaries Ricardo Gloria and An­ drew Gonzalez, the DECS used only US$318,908 of the total over three years 24 while the government had to pay PhP70 million in commitment fees. Among the ODA sectors, education had an availment rate of only 43 percent. The World Bank-funded Urban Health and Nutrition Project of the Department of Health (DOH) had disbursed US$28.8 million of the US$47 .2 million ODA funds for a utilization rate of only 61 percent. Its original completion schedule of Decem­ ber 1999 was revised to December 2000 but was reported to be still uncompleted as of the new deadline.

VOLUME VII NUMBER 1 Ganuary- June 2003) 3') Tad em

The Philippine National Oil Company (PNOC)-JBIC Northern Negros Geo­ thermal Project's zero availment rate as shown in Table 8 below was attributed by NEDA to (among others) "failure to enter the portion of the geothermal service 25 contract area that is inside the Kanlaon Natural Park. " A local citizens movement calling itself "Save Mt. Kanlaon Now! Coalition" protested the law creating a 169- hectare buffer zone within the Park area where the PNOC planned to build roads 26 and dig wells because of the destruction to the forest area that would result. The coalition criticized then-Environment and Natural Resources Secretary Heherson Alvarez for supporting the buffer zone. The project's critics pointed out that the PNOC could very well dig its wells outside of the protected area. The Mount Kanlaon Park is "one of the few surviving national parks in the country and is home 27 to near extmct. f1 ora an d f auna. "

TABLE 8: ODA PROJECTS WITH LOWEST AVAILMENT RATES As of Dec. 31, 2000

Source/Project Net Commitment, Disbursement Undrawn Utilization US$m US$m balance Rate US$m %

World Bank 1. DPWH National Roads Proj 150.0 6.50 143.5 4.3 2. MWSS 2"d Manila Sewerage Proj 48.0 2.10 45.9 4.4 3. DECS 3rd Elem Sch Proj 93.3 10.20 83.1 10.9 4. SBMA Freeport Proj 60.0 5.10 54.9 8.5 5. DA Mindanao Rural Dev Proj 27.0 1.90 25.6 7.0 6. DOF Com-based Resource Man. 50.0 3.20 46.8 6.4

Japan Bank for lnt'l Coop (JBIC) 1. NPC Luzon Grid 132.5 5.46 127.04 4.0 2. DPWH I MM Flood Control 83.3 5.86 77.42 7.0 3. DECS 3rd Elem Sch Proj 98.4 10.61 87.81 11.0 4. PNOC Negros Geothermal 128.0 0.00 128.00 0.0

ADB 1. DILG/ Clark Area Mun. Project 24.3 0.10 24.10 0.4 2. NPC Power Trans Reinforcement 191.4 1.90 189.50 1.0 3. SBMAI Municipal Dev. Proj 19.4 0.20 19.20 1.0

Source of basic data: NEDA

40 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed? cost and Time overruns

In the year 2000, the Philippine government spent about PhP8 billion more than the estimated cost of projects implemented with funding from concessional loans or ODA money from multilateral institutions. In that year, ODA disburse­ ments reached US$995 million (about PhP49.75 billion). Fourteen projects ac- 2s counted for the overrun. Fifty-four ODA loans for 51 projects (27 percent of the portfolio) were on an extended implementation period as of December 2000 with an average delay of two years based on the original dates of closure. Most projects were designed for a ten-year implementation tenure although some projects extend beyond 10 years. These twin problems seem to be recurring over the years. During the first ODA Portfolio Review in 1993, implementation delays were reported for eight major infrastructure projects with a net commitment of P8.1 billion. Some of these projects were delayed for as long as four years due to unresolved right-of-way problems. Start-up problems ranging from 3 months to 3 years were also noted for 30 projects due to delays in the awarding of bids and contracts. Cost overruns were reported for 14 projects with increased costs ranging from 12 percent to 202 percent of the original estimates. According to the 1994 Review, the inability of government to fully support ODA projects in its regular budget caused a shortfall ofP57 billion or 44 percent of the required amount. These shortfalls caused delays in project implementation. In the 1995 Review, 49 projects were projected to suffer cost increases totaling P37 billion. These increases are usually funded by additional external funding from the same donors. In 1996, the cost overruns for 37 projects amounted to P36.2 billion. In 1997, cost overruns fell drastically to only P2.3 billion but affected 27 projects. However, 42 projects exceeded their implementation deadlines. In 1998, cost over­ runs for 22 projects totaled P16.82 billion while 20 loans suffered delays of from 3 months to 3 years.

VOLUME VII NUMBER 1 Qanuary- June 2003) 41 Tad em

Lack of counterpart Funding

Some ODA projects have difficulty getting off the ground due to the delays in the release of counterpart funds from the Philippine government. Some donors require counterpart funding that is greater than the ODA component. The DECS Third Elementary School Project was delayed due to the difficulty experienced by local government units (LGUs) in raising the 10 percent counter­ part fund for the school building component despite the reduction in the counter­ part requirement from the previous 25 percent. With half of the project time al­ ready passed, 90 percent of the funds remain unutilized. LGUs however are not alone in their inability to raise counterpart funds. In the 1999 General Appropriations Act, only P34 billion was allotted for ongoing foreign assisted projects, short of the P38 billion required. The Philippine government expects to limit its approval of foreign-assisted projects (PAPs) from the ADB following the regional bank's plan to require larger counterpart funding from the Philippines. The ADB wanted to make the govern­ ment shoulder 60 percent of its-funded projects effective in 2002 with the bank financing only 40 percent of projects through loans. The present sharing arrange­ ment is 50-50. The ADB Philippine Country Director Gunter Henker said that increasing the government's counterpart aims to ( 1) improve PAP implementation, and (2) pro­ vide more ODA to "poorer" countries like Vietnam, Laos and Cambodia. Econo­ mists however criticized the move, decrying its "poor timing" that "will hurt gov­ ernment projects which are already suffering implementation delays due to existing budgetary constraints." Less and less projects will be created in the pipeline. It was surmised that Mr. Hecker might have been unhappy with the poor loan disburse­ 29 ments which tied up large funds. The ADB had US$1.1 billion in unutilized ODA funds for the Philippines as of December 31, 2000 (see Table 8 above).

Debt Passing by Private sector Partners

NEDA envisioned a partnership between the government and the private sec­ 30 tor as a viable alternative for financing infrastructure projects financed by ODA.

42 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

This partnership is to be based on a market-based "user-pays" principle. The Build­ Operate-Transfer (BOT) scheme is one of the forms that this public sector-private sector partnership is to take. The partnership is really three-way if one counts the ODA donors themselves. The aim is to redistribute the risks, costs and revenues in relation to development projects. Financially viable components of a project can be funded by private or commercial funds while the non-financially viable compo­ nents will make use of ODA funds. The Philippine Economic body cites the fol­ lowing examples of ODA-assisted projects supporting BOT-financed projects: 1. Casecnan Multipurpose Project, US$128million, OECF 2. San Roque Multipurpose Project, US$400 million, Japan Exlm Bank 3. San Pascual Multipurpose Project, US$45 million, ADB 4. Power Transmission Lines, Ilijan Natural Gas Proj., US$129 million, OECF

The biggest project under the scheme however is the Metro Rail Transit (MRT) which began implementation during the Ramos administration by a consortium led 31 by Fil-Estate Corporation headed by Robert Sobrepena. The partnership behind these projects however requires what is known as "sov­ ereign guarantees," that is, the government promises to assume liabilities incurred by the private sector partners that the latter (for whatever reason) is unable to pay. These debts (whether settled or passed on to the state) thus become "contingent liabilities" of government and become part of the consolidated public sector defi- • 32 Cit. Total contingent liabilities of government stand at PhP62.58 billion in 60 power projects, 24 transport projects, 3 water projects and 11 other minor projects. Of the PhP217 billion in contingent liabilities for 2001, PhP12.03 billion (5 .5 percent) have become actual debts which the government has to pay. The biggest of these debt burdens passed on by the private sector to the gov­ ernment are the MRT project (P3.4 billion, P1.08 billion in interest payments alone), the San Roque Multipurpose Project (P2.95 billion in assumed debts) and the Casecnan Multipurpose Project (P1.69 billion in loans). As far as the MRT project was concerned, "government was forced to pay these debts because the returns the Metro Rail Transit was counting on to pay them did not materialize because of risks that the Ramos administration said would not happen."

VOLUME VII NUMBER 1 Qanuary- June 2003) 43 Tad em

The sovereign guarantees extended to the above ODA projects need to be ex­ amined within the context of the Foreign Borrowings Act of 1966 (Republic Act 4860) which was signed into law by then President Ferdinand Marcos on Septem­ ber 8, 1966. This law lays the legal basis for and the conditions under which sover­ eign guaranty for private sector obligations may be extended. Section 3 of the Act states that

The President of the Philippines is ... authorized in behalf of the Republic of the Philippines, to guarantee ... foreign loans extended directly to . . . corporations owned or controlled by the Government of the Philippines for industrial, agricultural and other development purposes or projects authorized by law (including) those incurred ... for the purpose of rei ending to the private sector (emphasis supplied).

The Act however stipulates that only Filipino-owned or controlled corpora­ tions and partnerships may avail of such foreign loans and the sovereign guarantee privilege attached to them. Section 5 requires the President to report to Congress "the amount of loans, credits and indebtedness contracted, as well as the guaran­ tees extended and the purposes and projects for which the loans, credits and in­ debtedness were incurred and the guarantees extended as well as such loans which may be reloaned to Filipino-owned or controlled corporations ... "

Program vs Project Loans

Another important issue is the ratio of project loans to program loans. As of December 2000, of the US$7 .16 billion total in net commitments ofJBIC, US$6.84 billion (95.5 percent) was in project loans. The World Bank project component was at 82.8 percent or US$2.14 billion out of a loan commitment of US$2.59 billion. The ADB's project loan component was 76.0 percent of total loans or US$2.2 bil­ lion out of US$ 2.9 billion. At the end of CY 2000, of the US$13.3 billion in active loans, US$11.8 billion (89.0 percent) was in project loans and only US$1.5 billion ( 11.1 percent) in program loans.

44 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

A program loan refers to "a coordinated set of aid-financed activities or 33 projects." They are also defined as "quick disbursing injections of untied credit that can be used for almost any type of import (or for the repayment of foreign 34 debts falling due" . A project loan on the other hand, "is a single activity to gener­ ate specific results. A project may be sector or area-specific such as a road project or a regional development scheme." Thus, program loans are thought "to increase the flexibility of recipient countries to use this for their priority activities in their devel­ 35 opment plans instead of piece-meal projects."

TABLE 9. PROPORTION OF PROGRAM LOANS TO PROJECT LOANS UNDER CURRENT ODA LOAN PORTFOLIO (In US$ million, as of Dec 31, 2000)

Source Total Project Loan %Share Program Loan %Share

JBIC 7,159.7 6,838.4 94.44 321.2 5.56 ADB 2,908.8 2,208.8 75.86 700.0 24.14 WB 2,588.2 2,142.6 82.62 445.6 17.38 Others 656.4 656.4 100.00 0.0 0.00

Total 13,313.1 11,846.3 88.98 1,466.8 11.12

Source of data: NEDA Public Investment Staff

Program loans however, as presently structured, are mainly associated with IMP-type structural adjustment programs (SAPs) or economic restructuring plans that commit a recipient government to enact projects that entail major policy shifts such as trade and investment liberalization, deregulation and privatization. The US$300 million World Bank program loan for banking system reform was condi­ tioned on the privatization of the Philippine National Bank, amendments to the charters of the Central Bank and the Philippine Deposit and Insurance Corpora­ tion, and improved macro-economic performance. As of December 2000, the Bank withheld release of the second and third tranches pending compliance by the gov­ ernment of the above conditions. A similar case is the Power Sector restructuring plan that was funded by a US$300 millionADB program loan and a US$400 million credit from the Miyazawa

VOLUME VII NUMBER 1 (January- June 2003) 45 Tad em

Fund. The loans were conditioned on the passage by Congress of a controversial and unpopular Omnibus Power Bill that privatized the National Power Corpora­ 36 tion and eventually transfer ownership of power generation to the private sector. An ADB loan that requires close monitoring by civil society groups is the US$175 million Grains Sector Development Program (approved in April2000) that is meant to restructure the grains sector to make it more "market-based, productive and internationally competitive." Not all program loans are of the above types however. The World Bank pro­ gram loan for "Environment and Natural Resources Sectoral Adjustment" resulted in the passage of the National Integrated Protected Areas (NIPAS) Act of 1992 which mandated the decentralization of the monitoring and enforcement of biodiversity conservation in designated protected areas throughout the country. This is done through an area-based and multi-stakeholder-constituted Protected Area Management Board (PAMB). Implementing mechanisms however leave much to be desired as the DENR continues to dominate the process. The NIPAS law also needs to be harmonized with other existing laws such as the Indigenous People's Rights Act (IPRA).

Foreign consultants

Back in 1989, the Senate Blue Ribbon Committee complained of "superfluous 37 and unnecessary fees" to foreign consultants by foreign-funded projects. The Committee decried the charging of foreign consultancy fees for services well within the expertise of Filipinos that was being imposed of the 59 consultants on all foreign assistance contracts, grants, aids in five government and loans. It was discovered then that of the agencies, only five 59 consultants in five government agencies were Filipinos. looked into, only five were Filipinos. While the highest paid Filipino consultant received $780 a month, the lowest paid consultant, a Japanese "motor vehicle inspector," got $3,000 a month. Several foreign consultants received monthly fees ranging from $5,000 to $16,700. And this was in 1989!

46 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

Several years later in the mid-1990s, the situation seemed to have worsened. In 11 government agencies, there were 68 Japanese consultants hired under grant 38 projects funded by the Japan International Cooperation Agency (JICA) . In the OECF -funded Calaca Phase II coal-fired power plant, $5.5 million of the project's $6.7 million for environmental management went to Japanese consultancy fees. How far things have changed since then in the consultancy game remains to be seen but provisions in recent legislation are important to note. Aside from Section llc of the ODAAct of 1996 (cited at the beginning of this paper), the Implement­ ing Rules and Regulations of the same law state in Section 6.2:

Filipino Preference/Association by Foreign Firms with Local Firms/ Practitioners. In order to develop/upgrade a pool of Filipino experts and managers, the role of technology transfer in the implementation of development projects shall be ensured. To effect technology transfer to local firms/individuals, foreign consulting and/or construction firms wishing to participate in development projects in the Philippines shall be required to associate themselves with local firms and/or shall be required to engage Filipinos in carrying out the projects which they have selected to undertake. Such preference shall not adversely affect the project and shall meet the minimum standards/specifications required thereof.

The above is echoed by the "Implementing Rules and Regulations on the Pro­ curement of Consulting Services for Government Projects," as approved by the NEDA Board on Sept. 1998 as follows:

2.5.2 In order to manifest trust and confidence in and promote the development of Filipino Consultancy, Filipino Consultants shall be hired whenever the services required for the project are within the expertise and capability of Filipino Consultants. However, in the event that the Filipino Consultants do not have the sufficient expertise and capability to render the services required under the project, Foreign Consultants may be hired, provided that in the interest of effecting technology

VOLUME VII NUMBER 1 Qanuary- June 2003) 47 Tad em

transfer, Foreign Consultants shall be required to associate themselves with Filipino Consultants.

An indicator of the state of the consultancy issue for the Asian region as a whole is that several Japanese firms ended up as major consultants for ADB projects 39 from 1995-1999. Twelve of these consultancy companies cornered lucrative con­ tracts totaling US$60 million. These included Japan Overseas Consultants (7 con­ tracts worth US$20 million), Nippon Koei (4 contracts worth US$13 million), Pacific Consultants (6 contracts worth US$10 million), and Padeco (12 contracts worth US$6 million).

Environmental and Social Issues

Some ODA-funded activities, particularly large infra­ Social unrest structure and energy projects, constitute hazards to the ecol­ sometimes ogy and biodiversity of the target area. Community and live­ accompanies lihood displacements also take place as a result of these ODA projects projects. Productive agricultural lands are further jeopar- dized in the process. Social unrest sometimes accompa­ nies ODA projects particularly if the local communities in affected areas resist their implementation. Some environmentally controversial projects are as follows: ( 1 )the OECF-funded 400-hectare Leyte Industrial Development Estate which housed a copper smelter plant, a fertilizer plant and a mining firm; (2)the Calabarzon Industrial Zone whose master plan was funded by aJICA grant; (3 )the MWSS Umiray River Diversion Project funded by ADB; ( 4 )the Pampanga Delta Development Project, again funded by the OECF; and (5)various infrastructure projects in Manila financed by OECF.

The US$92 millionADB-funded Umiray River Diversion Project tunneled through mountains to divert waters from the river to Metro Manila several hundred kilome­ ters away. One study reported that "apart from the environmental destruction caused

48 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

by the construction of the 'transbasin,' critics deplored the lack of transparency and consultations, particularly among indigenous water users who depended on the wa­ 40 ters of the Umiray River for their daily sustenance and livelihoods." The Calaca Coal-Fired Thermal Power Plant in Batangas province was the scene of a recent protest action by Green peace Philippines whose members planted 41 200 white crosses in a barren ash covered field of the NPC-operated plant. Greenpeace wanted to dramatize the extent of environmental damage caused by the dumping of mercury-laden ash on once productive open fields beside coastal fishing grounds. Ironically, the plant was the recipient of Japanese ODA funds for environmental protection purposes. The project was completed in December 2000 and NEDA claimed that the plant's pollution problems had been mitigated in terms of coal dust emissions, odor, sea water intrusion, particulate emissions and noise. In its Annual ODAPortfolio Review (1994), NEDA acknowledged that some ODA projects encountered difficulties in securing Environmental Compliance Cer­ tificates (ECCs) from the DENR. The issue of social unacceptability of projects was discussed. As a response, the Interagency ECC Committee drew up proposed revisions to "existing guidelines on social acceptability and environmental clear­ ance towards streamlining the tedious process of securing an ECC." In effect, gov­ ernment planners in 1994 intended to compromise environmental and social guide­ lines simply to fast track ODA project implementation. To the DENR's credit, its representatives at that time refused to endorse the proposed revisions.

Other Issues

Corruption. Shortly after the downfall of Marcos, thousands of pages of docu­ ments turned over to the Presidential Commission on Good Government (PCGG) by US Customs authorities revealed the extent of corruption that accompanied the 41 disbursement ofJ apanese ODA funds during the Marcos regime. The documents uncovered an intricate web of corruption involving the payment of huge sums to Marcos and his cronies in the form of rebates or commissions for the facilitation of the implementation of yen loan projects.

VOLUME VII NUMBER 1 0anuary- June 2003) 49 Tad em

These funds were "embezzled" from loan proceeds and may have constituted as much as 25 percent to 30 percent of loan contract amounts. The payments were made by Japanese companies that won contracts to implement the ODA projects. Since Japanese companies regard the payment of commissions, or rebates, as "nor­ mal procedure in ordinary commercial transactions" and are known worldwide for such practices, it stands to reason that such activities continue unabated till today. Impact on Macro Economic and Social Indicators. Citing an econometric study by Mapalad, Gwendolyn Tecson avers thatJ apanese ODA exerted a positive 42 impact on the Philippine economy. She cites the following percentages of actual values generated real income: 0.83 percent, employment: 0.36 percent, exports: 0.49 percent, and imports: 0.41 percent for the 1973-1995 period. To the layman however, such figures are hardly impressive, considering the tens of billions of dol­ lars funneled into the economy in the period covered by the above study. It might also be worthwhile to look into the net impact of ODA, given the social and envi­ ronmental costs as well as the drain on the Philippine treasury caused by interest payments, cost overruns, sovereign guarantees and commitment fees. As an example, a more wholistic and relevant study would look into how many livelihood opportunities were lost through the forced dislocation of communities to make way for an ODA project and compare this with the number of jobs suppos­ edly created. Similarly, the environmental damage and the loss of biodiversity that results from some large-scale ODA infrastructure projects could also be determined by such an alternative study. Tecson admits that when compared with other Southeast Asian countries, Mapalad's positive figures "paled in comparison" (see Table 10 below). Of the four Southeast Asian countries compared, Thailand seems to have benefited the most from ODA, followed by Indonesia. But even third placer Malaysia is way ahead of the Philippines. A question may be raised with respect to the ODA impact on im­ ports. It would seem that the higher figures in this category attributed to ODA could simply be the result of the tied aid (both loans and grants) which Japan is notorious for.

50 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

TABLE 10: COMPARISON OF THE IMPACT OF JAPAN'S ODA IN SELECTED SOUTHEAST ASIAN COUNTRIES (as percentage of actual values)

Country Real Income Employment Exports Imports

Indonesia* 3.3 1.6 2.9 5.0 Malaysia* 1.4 0.9 2.1 2.6 Thailand* 5.3 2.3 9.5 7.3 Philippines** 0.83 0.36 0.49 0.41

*1971-1991, *'1973-1995 Source: Mapa/ad as reproduced in Tecson (2001)

Other Implementation Problems. Based on the ninth Annual ODA Portfo­ lio Review by NEDA, almost all of the 45 priority projects listed suffered from one or the other of the following implementation problems: 1. procurement issues, 2. right of wav acquisition, 3. resettlement and squatter relocation, 4. land acquisition issues, 5. project design and preparedness, 6. financial and project management, 7. peace and order, 8. force lllilJcur, 9. change in project design, lO.delayed release of tranches, 11. slow disbursement of funds, 12. problems with the contractor, 13.lack of qualified beneficiaries, 14.delays or failures in bidding and awarding of contracts, 15 .large unliquidated advances, 16.competition with other ODA projects, and, 17. non-passage of legislation.

VOLUME VII NUMBER 1 l)anuary- June 2003) 51 Tad em

Recommendations

The current state of ODA to the Philippines points to disturbing characteris­ tics that deserve serious attention. In general, ODA has not changed significantly from the pattern established in earlier decades. This despite policy pronouncements (from both donors and recipient countries) on shifting towards more social and human development-oriented activities, on increasing overall ODA, on providing more grants and more program loans and improving implementation. In fact, there has been a marked reversal as far as these commitments are concerned. To summarize the major findings from the data gathered: 1. Total ODA commitments have declined within the last seven years. 2. Loans continue to dominate ODA with their share increasing over the years. 3. Grant assistance, on the other hand, has been declining. 4. Bilateral assistance has overtaken multilateral assistance. 5. Infrastructure support has increased its share of ODA. 6. The share of human development funds has decreased. 7. Geographically, ODA is biased towards the more affluent regions. 8. Project loans continue to be emphasized over program loans. 9. ODA projects continue to be tied to donor countries. lO.The government pays more for ODA costs and debt servicing due to: a. time and cost overruns, b. the "sovereign guaranty" for private loans, c. lack of counterpart funding, and d. low loan availment rates. 11. There are long-standing issues that have yet to be fully addressed such as foreign consultants, corruption and environmental and social issues.

The above concerns are by no means all inclusive. Due to time and resource constraints, this present study has not been able to look into other immediate is­ sues that also deserve attention but for which information has not been readily available. These are: (1) small-scale and medium-scale projects vs. mega projects, and (2) ODA support channeled to or directly granted to NGOs.

52 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

Given the problem areas examined in this study, the following recommenda­ tions are being offered: 1. In order to fulfill announced policy shifts that are generally positive, the grants and technical cooperation component of ODA should increase vis a vis the loan component. The trend towards increasing the loan component should be swiftly reversed. 2. More program loans should be given but without IMF-type conditionalities that only provide quick fix solutions. Recipient countries should be given more leeway in allocating program loans in the context of long-term and sustainable development goals. 3. The human development sectoral component, while having shown some improvement relative to the 1970s and 1980s, still has a long way to go. Worse, some backsliding has taken place. This is unfortunate, given the commitments stated in the ODAAct of 1996 and those made by the Phil­ ippine government along with other governments in the 1995 Copenhagen (WSSD) conference and in the 2000 Geneva WSSD+5 conference. 4. The geographical distribution of ODA should be redirected away from the more affluent areas towards the poorer regions of the Philippines. This is in line with the announced anti-poverty thrusts of both the Philippine govern­ ment and its major donors. 5. The issue of untying grants and loans has to be addressed decisively as it is a long-standing major irritant in donor-recipient relations. As one writer em­ phasized, "no aid should be extended for projects which will require con­ tinued and repeated servicing, or spare parts which can be obtained only ,44 f romab roa d . 6. Given the huge cost overruns and overextended time overruns of many projects, it is obvious that many of them are poorly conceived and care­ lessly planned. A reexamination is in order here with regard to viability and sustainability. 7. There should be more transparency and accountability in the whole ODA process from the initial conceptualization stage all the way to the imple­ mentation stage. Civil society groups and affected communities must be

VOLUME VII NUMBER 1 Ganuary- June 2003) 53 Tad em

represented in the study groups, feasibility studies, committees, working groups and decision-making bodies at all stages of the ODA process. Periodic and token consultations are not sufficient to fulfill the require­ ments of transparent governance and democratic participation. Serious, meaningful and substantive mechanisms and structures for more participa­ tive and transparent ODA processes should be put in place by the Philip­ pine government as well as by the donor community. 8. In connection with cases involving corruption in ODA use, a special investi­ gation committee must be constituted at the highest levels of government. A starting point here would be the practice by Japanese companies of pay­ ing "commissions" or "rebates." 9. The "sovereign guaranty' for private sector-led projects must be terminated particularly since the ODA Act of 1996 provides in Section 4 that "ODA shall not be availed of or utilized directly or indirectly for ... financing for private corporations with access to commercial credit." The ordinary Fili­ pino taxpayer should not be made to pay for the inefficiencies of and mis­ management by private corporations. 10.Environmentally harmful and socially disruptive effects often accompany large-scale and expensive projects. A shift must be made towards smaller scale and community-based projects that are more ecologically-friendly and participative. ll.The requirement on the preference for Filipino consultants in implement­ ing ODA projects must be strictly enforced. 12. The above recommendations call for a virtual reformatting of ODA that requires immediate measures from both donors and recipients. If they can be carried out properly, the final step would be to reverse the trend of de­ creasing ODA commitments to the Philippines. While ODA is being shifted to even less developed countries in Asia, the fact remains that the Philip­ pines remains an underperforming society in terms of economic and social development.

54 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

conclusions

In 1977, a US Senate staff report on the Philippines concluded harshly that "after 30 years and US$1.7 billion in U.S. economic assistance, concrete develop­ 45 ment advances are hard to identify." An agency-by-agency review ofUSAID pro­ grams conducted in 1979 "suggests that only about 22 percent has gone into projects directly benefiting the poor." In 1986, a group of faculty members from the UP School of Economics deter­ mined that "most of the projects that were financed by foreign loans were unpro­ ductive" in that many of them "were not well chosen or were probably chosen to 46 finance capital flight through the overpricing of projects." The economics profes­ sors also lamented that "many private sector projects relied on government finan­ cial institutions for foreign loans and guarantees." The group further pointed out that " ... many of the projects were overpriced, mismanaged, not viable to begin with, or made unviable by changes in the exchange rate and the international envi­ ronment ... " Twelve years later, a 1998 study lamented that "foreign assistance imposes a resource bias against redistributive policies" since the "criteria for providing foreign assistance are based mainly on projected project contributions to capital formation 47 and foreign exchange." Furthermore, "foreign assistance focuses on the economic sectors in fast-growing areas," thus exacerbating regional, geographical and sectoral imbalances. Given this, the impact of ODA on poverty alleviation and social and asset reforms will surely be negligible. The above critiques point to the urgent need for undertaking real, meaningful and long-lasting changes in the planning and implementation of official develop­ ment assistance programs and projects in the Philippines. Failing the realization of these changes, a serious reconsideration of the necessity and relevance of ODA to overall Philippine economic and human development will certainly be in order.

VOLUME VII NUMBER 1 Ganuary- June 2003) 55 Tadem

Notes

1 Revised version of a paper presented at the National Consultation on Financing for Development: Civil Society Agenda Building, sponsored by Social Watch Philippines, 13-15 August 2001, Quezon City, Philippines. In preparing this report, the research assistance of Lulu Melchor is gratefully acknowledged. 2 International Labor Office, Sharing in Development, 197 6. 3 The Zedillo Commission, June 22, 2001. Officially known as the "High Level Panel on Financing for Development," the Commission was organized by UN Secretary General Koffi Annan to make recommendations on financing development in poor countries. 4 Ryokichi Hirono, "Majorlssues in Japan's ODAin the 21st Century," 1994. 5 Mamoru Tsuda and Reylito Elbo, "Japan's Official Development Assistance: Issues and Challenges in Asia," 2001. 6 Ibid. Japan's post-World War II Constitution (imposed by Gen. Douglas MacArthur during the American Occupation period, 1945-1952) prohibits it from once again becoming a military power. 7 Ibid. This includes both bilateral ODA and contributions to multilateral institutions such as the Asian Development Bank and the World Bank. 8 Temario Rivera, "The Political Economy of Aid: Japanese ODA in the Philippines," 2000. Based on data provided by the Japan Ministry of Foreign Affairs in its annual ODA reports. Differences in Philippine and Japanese figur~s have been noted for years. A NEDA official says that Philippine data on ODA is "generally underestimated." 9 It is also noteworthy that countries that gave only grants in the first period such as Australia, Canada and Denmark now added loan components to their ODA to the Philippines. Australia, which is the fifth largest bilateral donor, had a zero percent loan component in 1987-1993 but in the 1994-2000 period, had nearly 50 percent of its ODA in loans. 10 Infrastructure support includes transportation, water resources, energy, power and electrification, communications and social infrastructure. Agriculture and industrial development includes agriculture, agrarian reform, cooperatives, environment and natural resources, industry, trade and tourism, science and technology. Human development includes education and manpower development, housing, health and nutrition, social welfare and community development. Development administration funds go for policy and institutional reforms and development, public and urban city administration, policy sector studies and formulation, national development plan formulation, sound governance. 11 There seems to be a misplacement of the category of "social infrastructure" which (insignificant though it may be) should probably be classified under "human development." 12 The reason given by donor agencies such as the World Bank is that this would not fall under the category of "public investment," could not be quantified following standard ODA monitoring and evaluation criteria and would distort la.nd markets. In a forum, a Belgian Embassy official also objected to handing out ODA funds to landlords who would not be expected to productively make use of them. 13 Philippine Daily Inquirer, July 16, 2001.

56 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

14 Masaki Yokoyama, "Marcos Yen for Corruption," 1986. 15 Victoria Viterbo-Quimbo, "Philippine-Japan Economic Cooperation in the 21st Century," 2001. 16 Violeta Perez-Corral, "ADB's Private Sector Development Strategy," 2001. Among the corporations that benefited from goods, related services and civil works (GRSCW) contracts of ADB-funded projects were Mitsui, Mitsubishi, Marubeni and Itochu for Japan; Westinghouse, AT&T, Cargill, Cooper Rolls and Raytheon for the US; SiemensAG, MAN B&W and UNICO for Germany; and for the UK, British Steel, Acme Maris, NVPAKG and Siemens PLC. 17 Ibid. This could refer to polluting technologies or those that have been phased out in the donor countries. 18 Tsuda and Elbo, 2001. The only sector that Japanese companies seem to be shying away from is the information technology field, given the current downturn in IT stocks and sales, and is therefore seen as a "fresh and risky investment." Outside of IT, "Japanese businesses play a proactive and major role in bringing ODA to the doorsteps of the recipient country." 19 Temario Rivera, 2000. This claim was made for the year 1996 and included in the 1999 ODA Annual Report published by the Japan Ministry of Foreign Affairs. 20 Tsuda and Elbo, 2001. 21 Tomoyo Saito and Kyoko Ishida, "ADB and Japan," April2001. Mitsui had a contract worth US$168 million; Mitsubishi, US$84 million; Mitsui, US$35 million, Marubeni, US$33 million and Sumitomo, US$15 million. 22 Temario Rivera, 2000. Exceptions were noted however during the Marcos regime when Imelda Marcos' home province, Leyte in the Visayas, "received a disproportionately large share, 16 percent of the total (excluding commodity loans). This was more than the project loans that went to the Metro Manila region proper which received only 9 percent of the total." Two other favored provinces during the Marcos administration were Cagayan (home province of then Defense Minister Juan Ponce Enrile, and llocos Norte (Marcos' own home province). "These three areas alone accounted for close to one-third (27 percent) of the total OECF-funded projects during the Marcos period." 23 National Economic Development Authority, "9th Annual ODA Portfolio Review," 2000. 24 Philippine Daily Inquirer, July 13,2001. 25 Philippine Daily Inquirer, Sept 3, 2001. Adding to the problem is that Mount Kanlaon is also an active volcano. 26 Ibid. 27 On September 6, 2001, the PNOC-Energy Development Corporation decided to withdraw its plan to conduct geothermal operations in the buffer zone of Mount Kanlaon "because of massive opposition to the project" (Philippine Daily Inquirer; September 7, 2001. A PNOC spokesman said that they "would only enter the buffer zone ... to plant at least one million trees a year." This cancellation would most likely result in the restructuring of the US$128 million JBIC loan. 2 8 Business World, July 6-7, 2001. This was gathered from the 9th Annual ODA Portfolio Review by the NEDA Project Monitoring Staff. 29 Business World, July 3, 2001. 30 DevMagazine,July-August 1998.

VOLUME VII NUMBER 1 (January- June 2003) 57 Tad em

31 Robert Sobrepena, a property magnate, was a close supporter of President Ramos which explains the granting of sovereign guaranty to his project. He however quickly shifted allegiance to Joseph Estrada when the latter won the Presidency in 1998. 32 Philippine Daily Inquirer,July 16,2001. 33 Frances Moore Lappe, Joseph Collins and David Kinley, Aid As Obstacle, 1980. 34 Cheryl Payer, The World Bank. A Critical Analysis, 1982. 35 Viterbo-Quimbo, 2001. There are difficulties however "in packaging a sufficient number of projects" under a program loan. 36 Perez-Corral, 2001. The New Miyazawa Fund, under which the Philippine Power Sector restructuring plan was funded, was set up in 1997 with total commitments of US$30 billion and was meant to "assist the stabilization of the financial sector and economic recovery of countries hardest hit by the Asian crisis" (Saito and Ishida, 2001). 3 7 Eduardo C. Tad em, "The US, Japan and Official Development Assistance to the Philippines," 1990. 38 Ibon Facts and Figures, "Maleficent Aid," February 1996. 39 Saito and Ishida, April2001. The ADB is regarded as a Japanese-dominated regional financial institution. Japan is the largest contributor to ADB funds including its ordinary capital resoources (OCR), the Asian Development Fund (ADF), the Japan Special Fund, the ADBI Fund, the Asian Currency Crisis Support Facility (ACC SF) and the Japan Poverty Reduction Fund (JPRF). Since the ADB' s founding, all of its seven Presidents have been Japanese nationals. 40 Perez-Corral, 2001. The Umiray River project was part of a US$426 million ADB project to "improve the water supply and distribution of Manila's Metropolitan Waterworks and Sewerage Services (MWSS). Coupled with advice from the World Bank's International Finance Corporation, this resulted in the privatization of Metro Manila's water services in 2000. 41 Philippine Daily Inquirer, September 3, 2001. 42 Mamoru Tsuda and Leo Deocadiz (eds.) RP-Japan Relations and ADB: In Search of a New Horizon, 1986 and Yokoyama, 1990. 4 3 Gwendolyn Tecson, "Japanese ODA for Human Development: Views from the Philippines," 2001. 44 CherylPayer, 1982. 4 5 Jim Morrel, 1987. The author spent several months in the Philippines in 1986 and traveled all over the country examining foreign aid projects at the ground level. 46 Florian Alburo, Romeo Bautista, Dante Canlas, Benjamin Diokno, Emmanuel de Dios, et al, May 1, 1986. Sixteen of the country's top economists took part in preparing this 2-volume report containing proposals on how the Philippine economy could recover from the depredations of the Marcos years. 4 7 Nepomuceno Malaluan, 1998.

58 PUBLIC POLICY Official Development Assistance to the Philippines: Can it be Reformed?

Bibliography

Alburo, Florian, Romeo Bautista, Dante Canlas, Benjamin Diokno, Emmanuel de Dios et al, "Economic Recovery and Long Run Growth: Agenda for Reforms," May 1, 1986. International Labour Office. Sharing in Development: a programme of employment, equity, and growth for the Philippines (Manila: NEDA and ILO) 1974. Hirono, Ryokichi. "Major Issues in Japan's ODAin the 21st Century," JIINUNAUSA Meeting, 7-9 October 1994. Lappe, Frances Moore, Joseph Collins and David Kinley, Aid As Obstacle: Twenty Questions About Our Foreign Aid and the Hungry (Institute for Food and Development Policy: San Francisco) 1980. Malaluan, NepomucenoA., "Public Investments in the Quest for Poverty's End." In Filomeno Sta Ana III (editor), The State and the Market: Essays on a Socially Oriented Philippine Economy (Quezon City: Action for Economic Reforms) 1998. Morrel, Jim, "Aid to the Philippines: who benefits?" in Daniel B. Schirmer and Stephen Rosskamm Shalom, The Philippines Reader: a history of colonialism, neocolonialism, dictatorship, and resistance (Boston: Southend Press) 1987. Payer, Cheryl, The World Bank: a critical analysis (Monthly Review Press: New York and London) 1982. Perez-Corral, Violeta, ''ADB's private sector development strategy: private sector as the engine of growth," April2001 (manuscript). Philippines, Republic of the. National Economic Development Authority, Annual ODA Portfolio Reviews, 1993, 1994, 1995, 1996, 1997, 1998, 1999 and 2000. Philippines, Republic of the. Republic Act 4860, "Foreign Borrowings Act of 1966," September 8, 1966. Philippines, Republic of the. Republic Act 8182, "Official Development Assistance Act of 1996", June 11, 1996. Philippines, Republic of the. "Implementing Rules and Regulations for Republic Act 8182," 23 July 1996.

VOLUME VII NUMBER 1 Oanuary- June 2003) 59 Tad em

Rivera, Temario C., "The Political Economy of Aid: Japanese ODA in the Philippines, 1971-1999 ,"paper presented at a symposium on "Japan-Philippines Relations" hosted by the Japan-Philippines Research Forum, 13-14 May 2000, Tokyo, Japan. Tadem, Eduardo C., 'Japan, the US, and Official Development Assistance to the Philippines," Kasarinlan (Philippine Quarterly of Third World Studies), Vol. 5, No. 4, 1990 and in Japan Asia Quarterly Review (Vol 21 Nos 2-3) 1989 as "Philippine Assistance Plan: A Mockery of Aid." Tecson, Gwendolyn R., 'Japanese 0 DA for Human Development: Views from the Philippines," Panorama (Vol3 No.2) 2001. Tomoyo Saito and Kyoko Ishida, ''ADB and Japan," Forum Briefer 01-07, April 2001. Tsuda, Mamoru and Reylito Elbo, 'Japan's Official Development Assistance: Issues and Challenges in Asia," Panorama (Vol3 No.2) 2001. Tsuda, Mamoru and Leo Deocadiz (eds.) RP-Japan Relations and ADB: In Search of a New Horizon (Manila: National Book Store) 1986. st Viterbo-Quimbo, Victoria T., "Philippine-} apan Economic Cooperation in the 21 Century," Paper presented at the PHILAJAMES Roundtable Discussion, September 1, 2001, Asian Center, University of the Philippines. The World Bank. The Philippines: priorities and prospects for development (Washington DC. World Bank) 1976. Yokoyama, Masaki "Marcos Yen for Corruption," Kasarinlan (Philippine Quarterly of Third World Studies), Vol. 5, No. 4, 1990. The Zedillo Commission, "Recommendations of the High-level Panel on Financing for Development", June 22, 2001.

Periodicals

''ADB funding limits forcing government to scrap some projects," Business World, 3 July 2001. "Debt squeeze a Ramos legacy," Philippine Daily Inquirer, 16 July 2001. "DENR slammed for backing Kanlaon geothermal plant," Philippine Daily Inquirer, 3 September 2001.

60 PUBLIC POLICY Official Development Assistance to the Philippines: can it be Reformed?

"For not using up loans, DECS nearly loses P21B," Philippine Daily Inquirer, 13 July 2001. 'Japanese ODA to the Philippines: Maleficent Aid," Ibon Facts and Figures, Vol. 19, No.3, 15 February 1996. "ODAin the 21st Century: A Three-Way Partnership," Devmagazine, Vol. 25, No.4, July-August 1998. "ODA-funded projects' cost overruns hit P8B," Business World, 6-7 July 2001. "PNOC backtracks on Kanlaon project," Philippine Daily Inquirer, 6 September 2001. "Toxic alarm up over coal power plant," Philippine Daily Inquirer, 3 September 2001. "Weak peso sends interest payments soaring by P11.5B," Philippines Daily Inquirer, 16 July 2001.

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I I Legitimizing the Illegitimate: Disregarding the Rule of Law in Estrada v. Desierto and Estrada v. Macapagai-Arrovo

SABRINA M. QUERUBIN ANA RHIA T. MUHI CHARISSE F. GONZALES-OLALlA

"Lust ofpower is the most flagrant of all passions. " . 1 - T:aCitus

They say history repeats itself. But it does so in ironic ways. In 1986, the world became witness to a bloodless revolution where outraged Filipinos took to the streets and faced the military might of an overstaying Presi­ 2 dent. The EDSA People Power Revolution became a part of Philippine history. In 2001, EDSA again became the site of mass protests, this time leading to the down­ fall of an elected President accused of corruption, ineptitude and immorality, barely

* The authors acknowledge the invaluable input and support of Sen. Juan Ponce Enrile, Dr. Miriam Defensor­ Santiago, Atty. Jesus Crispin Remulla, Mr. Horacia Paredes, Mr. Herman Tiu Laurel, Prof. Myrna Feliciano, Mr. Erickson Miranda and Mr. Nelvin Olalia in the completion of this paper. They would also like to thank Prof. Antonio M. Santos, Prof. Marvic M.V.F. Leon en and Ms. Evelyn I. Cuasto for their assistance in research. auerubin, Muhi & Olalia half way into his legal term. Like its predecessor, People Power II will also be forever a marker in Philippine history. However, unlike its predecessor, People Power 3 II was barely bloodless and definitely not a revolution. In 1986, Supreme Court Chief Justice Claudio Teehankee administered the oath as President to Corazon Cojuangco Aquino as revolutionary successor of Ferdinand Edralin Marcos. The oath taking was met with much celebration, as it symbolized hope and freedom from tyranny for many Filipinos. In 2001, Supreme Court ChiefJustice Hilario Davide,Jr. administered the oath as President to Gloria Macapagal-Arroyo as constitutional successor of Joseph Ejercito Estrada. There was celebration, but only a fleeting one, as cracks in the thought-to-be-perfect pic­ ture slowly developed and became manifest. This time, the presidential oath taking took on a character with much foreboding, clouded with doubt and tainted with 4 signs of deceit and betrayal. 5 The Supreme Court, in the consolidated cases of Estrada v. Desierto and Estrada 6 v. Macapagal-Arroyo, held that Estrada had resigned, based on "his acts and omis- sions before, during and after 20 January 2001, or by the totality of prior, contem­ poraneous and posterior facts and circumstantial evidence bearing a material rel­ 7 evance on the issue." By virtue of such resignation, the Court validated Arroyo's ascension to the presidency. However, instead of writing_/i'nzs to the controversy, the decisions in the above cases have raised more doubts, not only with respect to the constitutionality of Arroyo's assumption to the presidency and the real political score in the country, but more so with respect to the legality and soundness of the decision itself. The ultimate question remains: did Estrada really resign as President of the Republic? This paper will examine the reasoning of the Court in deciding the issue of President Estrada's resignation in light of the facts and circumstances surrounding the case and the prevailing Constitutional and statutory law and jurisprudence on the matter. Although the Court passed upon other issues, the issue of resignation was the very lzs mota of the controversy upon which the other issues depended. In upholding the contention that Estrada had resigned, it is argued that the Supreme Court violated fundamental Constitutional and due process tenets, in disregard of the rule of law, justice and fair play.

64 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

REVISITINC THE IMPEACHMENT TRIAL AND EDSA II

Estrada became President of the Philippines in 1998, garnering 10,722,295 8 votes. Estrada became President with the largest number of votes ever recorded in 9 Philippine history. Gloria Macapagal-Arroyo, on the other hand, was elected Vice- 10 President in the same election, receiving even more votes than Estrada. On 4 October 2000, Ilocos Sur Governor Luis "Chavit" Singson accused Presi­ 11 dent Estrada and his family of receiving millions of illegal jueteng money. The very next day, Senator Teofisto Guingona, Jr. delivered a privileged speech where he accused the President of pocketing cigarette excise taxes from Governor Singson, 12 which funds were intended for the tobacco farmers of Ilocos Sur. Vice-President Arroyo resigned as Secretary of the Department of Social Wel- 13 . • 14 fare and Development and subsequently called on President Estrada to resign. An Impeachment Complaint began circulating in the House of Representatives for 15 endorsement signatures. Before the end of October 2000, the President's resig­ 16 17 nation was already being demanded by the Catholic Church, former Presidents 18 19 20 civil society groups, political parties and private sector business clubs. Presi­ dent Estrada rejected the idea of resigning and called on his critics to unite with 21 him instead. By November, a number of his Cabinet members and advisers re­ 22 signed one by one. Political personalities withdrew from the "Lapian ng Masang Filipino" or LAMP, an alliance that included President Estrada's party "Partido ng 23 Masang Pilipino".

An Impeached President

On 13 November 2000, Estrada was impeached as House Speaker Manuel 24 Villar transmitted the Articles of Impeachment to the Senate. It was endorsed by 25 115 members of the House of Representatives. On 20 November 2000, the Senate convened as an Impeachment Court, with ChiefJustice Hilario Davide,Jr. 26 as Presiding Officer and the Senators as judges. The impeachment trial of Presi­ dent Joseph Estrada thus began. The entire trial was broadcasted nationwide live on television and radio .

VOLUME VII NUMBER 1 Oanuary- June 2003) 65 auerubin, Muhi & Olalia

The prosecution commenced presenting its case. Among its witnesses were Governor Singson and former Securities and Exchange Commission Chairperson Perfecto Yasay, Jr. But the prosecution's star witness was Clarissa Ocampo, Senior Vice-President of Equitable-PC! Bank, who testified that she personally witnessed Estrada affix his signature as 'Jose Velarde" on documents involving a PhP 500 27 million investment agreement with their bank sometime in February 2000. Presi- dent Estrada was being accused by the prosecution of maintaining a secret bank account in the name of 'Jose Velarde", an account which he allegedly failed to 28 disclose in his Statement of Assets and Liabilities. More calls for his immediate resignation mounted in light of Ocampo's testimony. Militant Anti-Estrada groups 29 marched to the Senate demanding a verdict of "guilty" from the senators.

An Aborted Trial

The evening of 16 January 2001 was perhaps the most crucial event that tran­ spired in the short-lived impeachment trial. The prosecution requested that a sec­ ond envelope of documents from Equitable-PCI Bank which were said to have contained damning evidence that would further link Estrada to the Jose Velarde 30 account, allegedly containing PhP 3.3 Billion be opened. The defense objected, contending that the contents of the envelope were neither relevant nor material to the case, as the prosecution's articles of impeachment and list of Estrada's alleged 31 undeclared assets did not include the Velarde account. Chief Justice Davide al­ 32 lowed the opening of the envelope. Eleven Senators vetoed the ruling of the Chief 33 Justice, while 10 voted in its favor. Senator Pimentel resigned as Senate Presi­ 34 dent after the voting. The private prosecutors walked out of the session hall after 35 the vote was read. Outraged by the results of the voting that transpired in the Senate, cellular phone text messages began transmitting around 11:00 p.m., coax­ ing people who received them to mass at EDSA to protest the non-opening of the 36 37 envelope. The gathering was dubbed "EDSA Dos" by the media. The next day, the Impeachment Court received a letter from the private pros­ ecutors, informing the Court of their withdrawal from the impeachment case. Senator

66 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

Raul Roco moved to adjourn the trial indefinitely until the House of Representa­ tives was able to select a new panel of prosecutors. The trial was adjourned indefi- 38 nitely over the plea of the defense to be heard.

The Military and Police Defect

Meanwhile, crowds poured steadily into the EDSA Shrine. Jaime Cardinal Sin 39 continued to call for the people to stay at EDSA "until evil is conquered by good. " 40 41 More resignations and defections from the executive branch followed. Both pri­ vate and public sector employees engaged in walkouts, boycotts and work stop­ pages.42 The ten senators who had voted for the opening of the second envelope 43 went to EDSA Shrine to join the crowd assembled there. In the afternoon of 19 January 2001, key military commanders and defense 44 officials withdrew support for Estrada and joined the Anti-Estrada forces in EDSA. Armed Forces of the Philippines (AFP) Chief of Staff Gen. Angelo Reyes said the President and his family should be allowed to exit with dignity and their safety 45 should be ensured. Defense Secretary Orlando Mercado also joined the EDSA 46 crowd. More cabinet secretaries, undersecretaries, assistant secretaries and bu­ 47 reau chiefs resigned. Philippine National Police (PNP) Chief Director General Panfilo Lacson and the commanders of the PNP made an announcement in Camp 48 Crame that the PNP was withdrawing its support for President Estrada. Later that evening, President Estrada issued two statements. In the first state­ ment, Estrada asked the defense panel of the impeachment trial to allow the open­ ing of the second envelope from Equitable-PCI Bank. He issued a second state­ ment calling for a snap election in May 2001, saying he would not run in the snap elections. The opposition rejected the election proposal and gave him a 20 January, 49 6 a.m. deadline to resign. Negotiations between Malacafiang and the EDSA op- . . d 50 posltlon commence . The opposition failed to obtain a letter of resignation from President Estrada. In the early hours of 20 January after the 6 a.m. deadline had lapsed, the negotia- . . d 51 tlons were termmate .

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The supreme court and Gloria Macapagai-Arroyo in EDSA

By 8:45 a.m. of 20 January, Arroyo was already waiting for her oath taking as President. She was quoted as saying that she wanted to make sure that President Estrada had already resigned before she took her oath as she did not want her 52 assumption to the Presidency to be unconstitutional. Militant student and civil society groups began mobilizing for a march toward Malacafiang Palace to force 53 Estrada to vacate the Palace. In Mendiola, the marchers had a brief encounter 54 with Pro-Estrada supporters that resulted in stone-throwing and minor injuries. The Anti-Estrada marchers had smashed the police barricades and succeeded in 55 penetrating an area just 200 meters from the Palace's Main Gate 7. The Presiden­ tial Security Group reinforced its positions in order to protect the President and his . 56 f ami1 y. Meanwhile, the Supreme Court (SC) decided to meet to deliberate on the legality of swearing in Arroyo as the new Chief Executive even as Estrada had yet to 57 step down. The high tribunal reached a quorum at 10 a.m. and arrived at a 58 consensus on the propriety of the oath taking. News broke out that Chief Justice Davide would be administering the oath to Arroyo at high noon on the same day at 59 the EDSA Shrine. SC Associate Justice Artemio Panganiban was quoted as say­ ing the scheduled oath taking was not only constitutional but also legal, based on the common law principle, sal us populi est suprema lex or "the welfare and the will of 60 the people is the supreme law." He had said that the administering of the oath to Arroyo was an "extreme measure", but it was necessary for the Chief Justice to 61 invoke this principle in order to prevent bloodshed and violence. Justice Panganiban, the official spokesperson fo Justice Davide, said the ChiefJustice was 62 appealing to Estrada to heed the call for peace and step down. At 12:00 noon, in the absence of a resignation letter from Estrada, Chief Jus­ 63 tice Hilario Davide,Jr. administered the oath as President to Arroyo. That afternoon, Estrada, accompanied by his family, left the Presidential Resi­ dence in Malacafiang via barge to the Presidential Security Group camp on the other side of the Pasig River. They then proceeded to their residence in Polk Street, 64 Greenhills in SanJuan.

68 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

Estrada's Two Letters

Before leaving the Palace, President Estrada had written the following press 65 statement:

(120 January 2001

STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, vl"ce-President Gloria Macapagal­ Arroyo took her oath as President of the Republic of the Philip­ pines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutional­ ity ofher proclamation as President, I do not wish to be a factor that will prevent the restoration ofunity and order in our civil society. It is for this reason that I now leave Malacaiiang Palace, the seat o/ the presidency of this country, for the sake of peace and in order to begin the healing process ofour nation, I leave the Palace of our people with gratitude for the opportunities given to me for ser­ vice to our people. I will not shirk /rom any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the pro­ motion of a constructive national spirit of reconciliation and soli­ darity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA"

66 On the same day he signed another letter:

{(Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am

VOLUME VII NUMBER 1 Qanuary- June 2003) 69 ouerubin, Muhi & Olalia

unable to exercise the powers and duties of my office. By operation of law and the Constitution) the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA))

A copy of the letter was sent to House of Representatives Speaker Manuel 67 Fuentebella III at 8:30 a.m., on 20 January. Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 68 p.m.

Administrative Matter No. 01-1-os-sc

On 22 January, Gloria Arroyo began discharging powers and duties as Presi­ dent. On the same day, the Supreme Court issued the following Resolution in 69 Administrative Matter (AM) No. 01-1-05-SC: '~.M. No. 0 1-1-05-SC -In re: Request of Vice-President Gloria Macapagal-Ar­ royo to Take her Oath ofOffice as President ofthe Republic ofthe Philippines before the Chief Justice- Acting on the urgent request of Vice-President Gloria Macapagal­ Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the Court resolved unani­ mously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice-President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party."

Arroyo's Letter-Request

It appears that Vice-President Arroyo had requested Chief Justice Davide to have the oath administered to her as President on 20 January 2001, at 12 noon. The 70 letter was received by facsimile at about half past eleven a.m. on the same day.

70 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

1 Although she had publicly denied that she ever made any request/ Associate Jus­ tice Artemio Panganiban, Jr. said that Arroyo had called him and said that she 72 would like to have the Court swear her in as President at 12:00 noon. Panganiban had told her that a letter from her requesting the ChiefJustice to swear her in was 73 needed. Twenty-six days after Arroyo's denial of the existence of the letter, the 74 letter sent to the Supreme Court was produced. It reads as follows:

"20 January 2001 THE HONORABLE SUPREME COURT Supreme Court Building Padre Faura St., Ermita, Manzla Attention: Hon. Hilario G. Davide, Jr. Chief Justice

Your Honors: The undersigned respectfully informs the Honorable Court that Joseph Ejercito Estrada is permanently incapable ofperforming the du­ ties ofhis offi'ce resulting in his permanent disability to govern and serve his unexpired term. Almost all of his Cabinet members have resigned and the Armed Forces of the Philippines and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as Prestdent. In view of this, I am assuming the position of President of the Republic ofthe Philippines. Accordingly, I would like to take my oath as President of the Republic of the Philippines before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 2001, at 12:00 noon, at the EDSA Shrine, Quezon City, Metro Manila. May I have the honor to invite all the members ofthe Honorable Court to attend the oath taking.

Very truly yours, (Sgd.) GLORIA MACAPAGAL-ARROYO"

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Arroyo is Acknowledged President

As President, Arroyo appointed members of her Cabinet as well as ambassadors 75 and special envoys. In a reception or vin d) honneur at Malacafiang led by the Dean of the Diplomatic Corps, more than a hundred foreign diplomats recognized the 76 government ofArroyo. US President George W Bush called Arroyo from the White 77 House congratulating her on her oath taking as President. Both Houses of Congress 78 likewise extended recognition to her presidency, with her nomination of Senator 79 Guingona as Vice-President being confirmed by both the Senate and the House of 80 Representatives. As President, Arroyo also signed into law various bills transmitted 81 to the Office of the President by Congress. On 7 February 2001, the Senate passed Resolution No. 83 declare the termination of the impeach- sz The rule of law ment court functus officio. Surveys conducted also pur- 83 maintains portedly showed Arroyo's wide acceptance as President. society's stability On 6 February 2001, Estrada filed a Petition for Quo by preventing Warranto against Arroyo and a Petition for Prohibition against OmbudsmanAniano Desierto. arbitrariness.

THE RULE OF LAW

In order to understand the basis of criticism of the Estrada decision, a brief discussion on the Rule of Law is necessary.

The Rule of Law

There is no specific definition of the "rule of law," in much the same way as there is no single meaning attributed to "law." The rule of law maintains society's stability by preventing arbitrariness. It is the rule of law which enables the state to exercise political control through principles of conduct. It consists of legal prin­ 84 ciples, standards and rules which are enforced by civil or criminal sanctions. Traditionally, the Rule of Law is defined as the principle

((that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal

72 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

manner before the ordinary courts of the land. In this sense the rule oflaw is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of . ,,85 constraznt.

Thus, rule of law may be understood as the absolute supremacy or predomi­ nance oflaw as against arbitrary powers. In this sense, arbitrariness, prerogative or even the exercise of wide discretionary powers on the part of the government is 86 excluded. No act shall be The supremacy of the constitution valid, however noble its intentions, Let justice be done though the heavens may 87 fall. The Rule of Law is primarily characterized by if it conflicts with the supremacy of the Constitution. According to the the Constitution. principle of constitutional supremacy, any act that violates the Constitution shall have no legal effect. Under the Rule of Law, there­ fore, every governmental act must follow the letter of the Constitution and any derogation therefrom is consequently unconstitutional and violative of the Rule of Law. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must 88 defer. No act shall be valid, however noble its intentions, if it conflicts with the 89 Constitution. Expediency must not be allowed to sap its strength nor greed for 90 power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in 91 the usurpation of the majesty of law by the pretenders to illegitimate power.

Democracy and sovereignty

"The Philippines is a democratic and republican state. Sovereignty resides in 92 the people and all government authority emanates from them. " A government republican in form is one where sovereignty resides in the people and where all

VOLUME VII NUMBER 1 (January- June 2003) 73 ouerubin, Muhi & Olalia

93 government authority emanates from the people. A democracy on the other hand, is a government where the sovereign power resides in and is exercised by the whole body of free citizens, as distinguished from monarchy, anarchy and oligarchy. In a democracy, every person is presumed equal before the law. This presumption is 94 concretized in the due process and equal protection clauses where each person is presumed to have the same rights and duties as the rest. In a democracy, the vote of one person for instance, carries the same weight and value as the vote of any other 95 person, regardless of the wealth, education or other personal circumstances of each. The rule of the people is equated with the rule of the majority because of the pre­ sumption of equality of persons, and the will of the majority of them shall be pre­ sumed the will of the people. Under the Rule of Law, the people rule, but they rule according to law. The Supreme Court underscored the importance of the rule of law in a democracy: ({It is said that in a democracy, the will of the people is the supreme law. Indeed, the people are sovereign, but the will ofthe people must be expressed in a manner as the law and the demands of a well-ordered society require. The rule oflaw must prevail even over the apparent will ofthe majority ofthe people, z/that will had not been expressed or obtained, in accordance with the law. Under the rule oflaw, public questions must be decided in accordance with the Constitution and the law. "96

It is thus unacceptable for the people to exercise their sovereignty in any man­ ner outside the parameters of the Constitution. Hence, the term "sovereignty re­ sides in the people," according to constitutionalist Joaquin Bernas, is principally expressed in the election process and in the referendum and plebiscite processet as provided by the Constitution.

DISSECTINC THE DECISION: UNRAVELINC THE SOPHISTRY

Under the 1987 Constitution, there are only four modes by which a vacancy in the Office of the President is created, namely, in case of death, permanent disabil­ 98 ity, removal from office or resignation. In the case of President Joseph Estrada, 99 the Supreme Court held that a vacancy occurred as a result of his resignation.

74 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

In the United States, resignation is defined as the formal renunciation or relin­ 100 quishment of a public office. Resignation involves a formal notification of relin­ 101 quishing an office or position. This definition has been adopted by our courts in 102 numerous cases. According to Philippine jurisprudence, to constitute a com­ plete and operative resignation of public office, there must be an intention to relin­ 103 quish a part of the term, accompanied by the act of relinquishment. Resignation implies an expression by the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish his right to the office and its accep­ 104 tance by competent and lawful authority. Except when the law provides other­ 105 wise, resignation may be effected by any method indicative of purpose. In gen­ 106 eral, it need not be in writing; it may be oral or implied by conduct. But in order 107 for a resignation to be valid and effective, it must be done voluntarily. When 108 procured by fraud or duress, the resignation may be repudiated. It is a rule in our jurisdiction that a strict interpretation should be observed in construing the resignation of Constitutional officials whose removal from office 109 entails an impeachment proceeding, such as the Office of the President.

THE TOTALITY TEST

The main question brought before the Supreme Court was whether or not Estrada had resigned. The answer to this question was determined by the Court from the President's "acts and omissions, before, during and after 20 January 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial 110 evidence bearing a material relevance to the issue." 111 The decision cited the case of Gonzales v. Hernandez, wherein it was held that in resignation, there must be intent to resign and the intent must be coupled by acts of relinquishment. However, nowhere in the Gonzales decision was there men­ tion of any doctrine of totality as a mode to determine the existence or non-exist­ 112 ence of a resignation by a public official. 113 In the absence of a resignation letter, the Court considered the different circumstances that transpired before, during and after Arroyo's oath taking at the EDSA Shrine. Taking cue from the very name of the test, one would reasonably

VOLUME VII NUMBER 1 (January- June 2003) 75 ouerubin, Muhi & Olalia expect the Court to have considered all or the entirety of the facts and circum­ stances materially relevant to the controversy. However, as will be established, the Court failed to properly consider facts and circumstances so materially relevant to the case that had it done so, the outcome would have been drastically different.

What the court considered

Relying heavily on a diary published in a newspaper, a press statement issued after the Arroyo oath taking took place and the events leading to the departure of the Estrada family from Malacafiang Palace after the said oath taking, the Court 114 concluded that a resignation had indeed taken place.

The Angara Diary, Rules on Evidence and Misappreciation of Facts

115 The Supreme Court cited the newspaper-published diary of Estrada's former Executive Secretary, now Senator, Edgardo Angara, as an "authoritative window on 116 the state of mind" of the President during the events that led to his fall from power. This statement alone has given rise to much criticism as to the Court's rea­ soning. According to Senator Francisco Tatad, for the Court to claim that the diary was an "authoritative window on the state of mind" of the President was to assume 117 a power not granted to it by law, by Providence or by its professional expertise. Psychology-especially one practiced at a distance-is not the Court's field of compe- us tence.

The Angara Diary is Hearsay

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 119 whom it is sought to produce it. It is a primordial rule that hearsay evidence is 120 inadmissible except when such evidence falls under certain exceptions. The ba­ sis for excluding hearsay evidence is the fact that it is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the 121 declarant is not present and available for cross-examination.

76 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

The Supreme Court has held in numerous cases that newspaper articles are 122 "hearsay evidence, twice removed" and have no probative or evidentiary value, 123 124 whether objected to or not, unless offered for a purpose other than proving 125 the truth of the matter asserted. It is quite evident that the diary of Senator Angara published in the Philippine Daily Inquirer is hearsay and therefore inadmissible as evidence. As mandated by a long line of stare decisis, the Court should not have given any evidentiary value to the 126 diary. In its 3 April200 1 Resolution, the Court contended that the diary was an exception to the hearsay rule for it contained direct statements of Estrada which 127 can be categorized as admissions of a party. The problem with the Court's rea­ soning is that the statements alluded to were contained, not in a sworn testimony of a witness, but in a journal reprinted in a newspaper article which remains to be 128 129 "h earsay evi·d ence, twice· remove d" , or m• t h.Is case, t h nee· remove d . s·mce t h e Court had decided to act as a trier of facts in Estrada's case, when as a rule it only 30 resolves questions oflaw and does not entertain questions of facts/ then it should have ensured that the evidence it was relying on was admissible. The least it could have done was to summon Angara to personally appear before the Court and, under oath, attest to the truth of the contents of his published diary so that Estrada and all the parties concerned would have the opportunity to test the veracity of the diary's contents. Fundamental rules of fairness demanded that minimum. The Court reasoned further that Estrada was estopped from questioning the admissibility of the diary, as he had not objected to its use in his pleadings and 131 during the oral arguments of then Secretary of Justice Hernando Perez. The Court seemed to have forgotten its recent 15 February 2000 ruling that newspaper articles amount to hearsay evidence and such evidence are not only inadmissible 132 but without any probative value at alt whether objected to or not. According to the Court's own ruling, it was not incumbent upon Estrada to object to its admissi­ bility. Moreover, Estrada had constantly questioned the use of the diary in his plead­ ings, citing jurisprudence ruling on the inadmissibility of newspaper articles for be­ 133 ing hearsay, so it is difficult to understand why he would be deemed as to have not objected to its use and admissibility.

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Misappreciation of Facts However, notwithstanding its hearsay character and consequent inadmissibil­ ity, for one reason or another, the Court decided to cite certain excerpts from the serialized diary to support its finding that there was resignation. The Court consid­ ered Estrada's call for a snap election for President in May 2001 where he would not be a candidate as an indicium that he had intended to give up the presidency 134 even at that time. Assuming the Court was correct in saying that there was intent on the part of the President to give up the presidency, it is clear that he did not intend to give up the presidency on 20 January 2001 when Arroyo was sworn in as President, but rather in May of 2001. 135 Estrada's non-objection to the suggestion of a graceful and dignified exit, and his statement to Secretary Angara that he had been guaranteed by Gen. Reyes 136 of five days to a week in Malacafi.ang, were regarded by the Court as "proof that 137 petitioner (Estrada) had reconciled himself to the reality that he had to resign." The Court said that at this point, Estrada was already concerned with the five-day 138 grace period he could stay in the Palace. On the contrary, there was no mention by Estrada that he was to resign in five days. Moreover, when the President said, ((Pagad na pagad na aka. Ayaka na, masyada nang masakit. Pagad na aka sa red tape, 139 bureaucracy, intriga. I just want to clear my name, then I will go," the Court states that this statement by the President was high-grade evzdence that he had re­ signed.140 Again, nowhere in this statement can it be inferred that Estrada would resign. He may have felt exhausted and exasperated about the situation but he never said he would resign. Why the Court would describe such a vague and equivocal statement, and from a newspaper source at that, as "high-grade evidence" of a resignation is beyond the authors.

The Res Inter Alios Acta Doctrine

When former President Ramos called Angara to discuss a peaceful and orderly •J41 transfer of power to which the latter had agreed, the Court said that at this point, 142 the resignation of Estrada was implied. The difficulty in accepting the assertion that there was an implied resignation at this point is the fact that it was not Estrada

78 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law who had agreed to a peaceful and orderly transfer of power - it was Angara who had agreed. According to the doctrine res inter alios acta alterz· nocere non debet, the rights of a party cannot be prejudiced by an act, declaration or omission of another, 143 except as provided for by the Rules of Court. The Court argues that Angara's act of agreeing to the suggestion of President Ramos was an exception to the res inter 144 alios acta rule, admission by a co-partner or agent under Rule 130, Section 29 of 145 the Rules of Court. The Court reasoned that Angara who was then Executive Secretary was an alterego of the President; he was the "Little President" and he was authorized to act for Estrada in the critical hours and days before he aban­ doned the Palace and thus, Angara's admissions during that time bound the Presi- 146 dent. The Court was rather hasty in concluding that Angara's declarations came within the purview of admission by agent. An essential requisite is missing - the Rules expressly state that such admissions may be given in evidence against the party after 147 such agency is proven by evidence other than the admission itself. It is thus necessary that the agency be proven by other evidence before the admissions of an agent can be held against the principal. In Estrada's case, no other evidence was relied upon by the Court in holding that the President was bound by Angara's declarations other than the newspaper-published Angara diary. A condition to the introduction of the declarations of one who is alleged to have been an agent is that the agency must be 148 proved aliunde and not by the declarations themselves. The declarations of the alleged agent are not competent to prove the existence of the relation of the princi­ pal and agent although they are accompanied by acts purporting to be acts of 149 agency. If the Court, in saying that Angara, who was the altere go of the President and was the Little President, was implying that his being Executive Secretary was proof of the existence of the agency, then such reasoning is troubling. It is in effect saying that an Executive Secretary has the power, as Executive Secretary, to resign the presidency in behalf of the President or to enter into negotiations to secure the resignation of the President. Though it is granted that the Executive Secretary may be considered an "agent" under the theory of qualified political agency, the powers exercisable by the Executive Secretary pertain to the executive power conferred in

VOLUME VII NUMBER 1 0anuary- June 2003) 79 auerubin, Muhi & Olalia the President by the Constitution and by law. Under this doctrine, as the President cannot be expected to exercise his control powers all at the same time and in per­ 150 son, he will have to delegate some of them to his Cabinet members. The powers exercisable by Cabinet members, including the Executive Secretary, do not include powers to be exercised in "cases where the Chief Executive is required by the Con­ stitution or the law to act in person or the exigencies of the situation demand that 151 he act personally." The act of resignation by a President is a personal act, in the same vein that the assumption to office by a President is a personal act. Thus, even if Angara was acting as an ordinary agent during the negotiations, he could not resign the President either directly or by declaration. Even if Angara was acting as an agent in the civil law sense, his act of agreeing to terms and conditions set by the opposition would not be binding upon Estrada. This is simply because the act of resignation is a purely personal act, and cannot be delegated or effected by a person in behalf of another. Angara had acted beyond the scope of his authority and his declarations did not bind his principal under the admission by agent exception. Moreover, even assuming that Angara had been acting as President Estrada's agent within the contemplation of the admission by agent exception, President Estrada would still not be bound by Angara's admissions on resignation, if indeed he had made such admissions. A cursory reading of the diary reveals that it con­ 152 tained express statements that there was no resignation at all. The proposed resignation of the President was not to take place unless some conditions were met. When General Reyes notified Angara that the Supreme Court had decided to administer the oath to Gloria Macapagal-Arroyo as President, the conditions pre­ 153 cedent for the proposed resignation never came to be and were never agreed upon. Angara had instructed Presidential Management Staff (PMS) Head Macel Fernandez to delete the provision on resignation in the agreement, as it was already 154 moot and academic. It was evident that no resignation took place. In fine, the Court, in using the Angara diary, violated not only rudimentary rules and principles on evidence, but grossly misinterpreted the contents of the diary itself.

80 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

The Estrada Press statement and the Departure from Ma/acanang

155 Although the Court did not treat the issued press statement as Estrada's 156 resignation letter, it held that it was proof of his resignation. The Court ruled that Estrada's press statement and his family's departure from the Palace on the after­ noon of 20 January 2001 confirmed his resignation from office and these were 157 overt acts which left no doubt that he had indeed resigned. This is yet another flawed conclusion by the Court. Assuming that these were indeed the overt acts of resignation, how was it possible for the Court to have granted ChiefJustice Davide the authority to administer the oath as president to then Vice-President Arroyo on the morning of 20 January 2001 if there was yet no confirmation that Estrada had resigned even overtly at that time? How was it possible for the Court to have known on the morning of 20 January 2001, when it had deliberated and decided to grant Arroyo's request, that Estrada would "resign" on the afternoon of that day? Remember that the oath taking resignation is a took place before these two acts occurred. factual question Moreover, the Court itself said that resignation is a and its elements factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be are beyond 158 coupled by acts of relinquishment. If we are to ac­ quibble cept the contention that Estrada had indeed exhibited intent to resign during the negotiations prior to 20 January 2001, and that the press statement and the departure from Malacafi.ang were the overt acts of resignation, then the act of resignation was not completed until the occurrence of the two overt acts mentioned. Apart from these two "overt acts", the Court never mentioned any other act of relinquishment. This necessarily means that Estrada had not resigned when Arroyo took the oath as President for the simple reason that at that moment, the overt acts referred to by the Court had not happened yet. If Estrada had not resigned, there would be no vacancy in the Office of the President. If there was no vacancy, then the Court did not have any basis in fact and in law to authorize the Chief Justice to administer the oath as President to Arroyo. And consequently, if there was no legal or factual basis for the Court to grant the authority to administer

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such oath, then the oath taking of Arroyo as President was unconstitutional and therefore a complete nullity. In his Omnibus Motion, Estrada asserted that it was fear of bloodshed and the 159 safety of his person and family that made him decide to leave the Palace. He also explained that the statement he had issued was a call for sobriety in the face of 160 clear and present danger from a threatening mob outside the Palace. It was not an act of relinquishing the presidency. The Court belittled Estrada's expressed fears, saying that the Malacafiang grounds were fully protected by the Presidential Secu­ 161 rity Group armed with tanks and high-powered weapons. The Court then cited the assurances of General Reyes that no harm would befall the President as he left the Palace and the fact that no actual physical harm was inflicted upon Estrada or 162 his family. Thus, the Court held, the voluntariness in President Estrada's resig­ 163 nation could not be said to have been vitiated by the pressure exerted upon him. President Estrada never said he had resigned. In fact, it is his principal conten­ tion that he never resigned. So the issue of vitiated voluntariness is irrelevant. But assuming arguendo, that Estrada had indeed resigned, the Court's conclusion that there was lack of sufficient duress to render the resignation voidable and revocable was erroneous. There was more than sufficient duress. Any reasonable man, if placed in the same situation as Estrada at that time, would feel not only tremendous pres­ sure but also fear of the clear and present danger of violence. Joseph Estrada was the elected President of the Philippines and his entire military and police force had just withdrawn support from him. They no longer recognized him as President of the Republic and, at any time, they could use all the force necessary to have him vacate the Palace so their newly recognized Commander-in-Chief could occupy it. President Estrada had no other protection apart from the Presidential Security Group (PSG) vis a vis the angry Anti-Estrada mob outside the Palace gates, the entire AFP and the PNP He only had 11 tanks and a handful of PSG members to protect him, as opposed to the entire arsenal of the military and police force. At that precise moment, emotions were still running high and had Estrada refused to vacate the Palace, violence would have definitely ensued, as the PSG would have been bound to defend Malacafiang. In addition, according to the same Angara diary upon which the Court had relied, by 11:00 a.m. of 20 January 2001,

82 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law the Palace received reports from radio commentators that security forces had al­ lowed Anti-Estrada rioters to proceed to Mendiola and the PSG reacted by arming 164 civilians inside the Palace. The Anti-Estrada marchers had smashed the police barricades and succeeded in penetrating an area just 200 meters from the Palace's 165 Main Gate 7. Four of the PSG's 11 tanks were sent out to meet any incoming 166 hostile force. From his residence, the President saw what was happening and 167 recalled the tanks in order to avoid any bloodshed. It can be seen that there was present a threat to the security of the President and an impending bloody and violent encounter between the PSG and the protesters, possibly even the AFP and PNP Thus, if by his act of leaving the Palace he was considered to have resigned, then such resignation could be repudiated on the basis of duress. General Reyes' assurance that no harm would befall the President is no justifi­ cation for the argument raised by the Court that there was lack of sufficient duress. Less than 24 hours before 19 January 2001 when General Reyes defected, Presi­ 168 dent Estrada was convinced of his loyalty. On a 17 January 2001 meeting, Gen­ 169 eral Reyes assured President Estrada that "everything was under control." On the morning of 19 January 2001, Defense Secretary Orlando Mercado even assured 170 Malacafiang that the military is "100 percent secure." But the swift events would later reveal that there was no such loyalty or control, nor was there any security in 171 the military. Reliance on Reyes' assurances did not mean that there was no threat. In fact, why would Reyes be giving such assurances when there was indeed no threat in the first place? Reyes' assurances indicated Estrada's anxiety regarding the whole situation. Furthermore, and more importantly, it would be foolish to believe or to expect that anyone would rely on the assurances of a person who had just betrayed his confidence and trust by treacherously stabbing him in the back. The fact that Estrada was not actually injured during his last hours in the Pal­ ace does not mean that there was no cause for worry of an attack. One does not need to see actual exchange of gunfire or blood being spilled in the streets to know that there was a clear and present danger of violence obtaining at that moment. President Estrada's explanation as to why he left the Palace is more credible than the interpretation of the Court.

VOLUME VII NUMBER 1 Oanuary- June 2003) 83 ouerubin, Muhi & Olalia

Furthermore, it is incorrect to equate the act ofleaving the Palace of Malacafiang as an overt act of resignation. When President Manuel Quezon left not only the Presidential Palace but also the Philippine Islands during the Japanese occupation, he was neither considered to have resigned nor abandoned the Office of the Presi­ 172 dent. Leaving the presidential residence given the conditions prevailing cannot be considered as leaving the presidency itself. One is never to be blamed for leaving 173 a house when an approaching fire threatens to raze it down. Why was it so difficult for the Court to accept Estrada's explanation that the press statement and his leaving the Palace were steps to avert bloodshed? This explanation is consistent with his claim that he never resigned. If the ChiefJustice 174 of the Court can invoke this reason for the rather hasty oath taking of Arroyo, then why can't the President of the Philippines, who was under threat of an immi­ nent attack?

What the court Did Not consider

The Court failed to consider Senator Angara's affidavit wherein he categori­ cally stated that in his diary, he never said nor intimated that President Estrada had resigned. Nor did the Court consider the two Estrada letters transmitted to the Senate President and the House of Representatives. Worse, the Court, using the political question doctrine, turned a blind eye to the patent unconstitutional acts of Congress in extending recognition to the presidency of Gloria Macapagal-Arroyo, at the same time citing these acts as proof that Estrada no longer had a claim to the presidency. It is also curious to note that the Court never answered Estrada's repeated allegations that Chief]ustice Hilario Davide,Jr. had made a categorical statement on the morning of 20 January 2001 that he was swearing in Arroyo not as President but as A ctzng. p res1'd ent. 175

The Angara Affidavit

Made an integral part of Estrada's Omnibus Motion, the Angara affidavit was 176 presented to the Court. Angara clarified in his affidavit that no resignation ever

84 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

177 took place. Estrada never resigned as no agreement on the conditions precedent to the proposed resignation was ever reached. The affidavit also dispels any as­ sumption that Angara had made a declaration in his diary that Estrada had re­ signed. his interesting to note that the Court never mentioned the affidavit of the author of the diary upon which the decision was based. If the Court had given much credence to an unsworn newspaper-published diary, then it should all the more have given weight and evidentiary value to the sworn statement of its author. But contrary to reasonable expectations, the Court treated the affidavit as though it did not exist.

Ignoring the Estrada Letter

Estrada alleges that he had never resigned as President but was temporarily unable to act as President. Pursuant to Section 11 of Article VII of the Constitu­ 79 tion/78 he wrote a lette/ declaring his temporary incapacity and sent identical copies to both chambers of Congress.

"Wrapped in Mystery"

180 The Court characterized the letter as "wrapped in mystery." The Court re­ fused to consider the letter because of the failure of Estrada to discuss the circum­ stances thatled to its preparation, and because there was not the slightest hint of its 181 existence when he issued his final press release. The Court further argued: "Un­ der any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner (Estrada) clearly showing his resignation from the presidency, then the resignation must pre­ vail as the later act. If, however, it was prepared after the press release, still it com­ mands scant legal significance. Petitioner's (Estrada's) resignation from the presi­ dency cannot be subject to a changing caprice nor of a whimsical will especially if 182 the resignation is the result of his repudiation by the people. " This pronouncement of the Court is disturbing to say the least. Why the differ­ ence in the treatment of the letter and the press statement? Why give more legal weight and significance to the press statement when the letter was an official act of

VOLUME VII NUMBER 1 0anuary- June 2003) 85 ouerubin, Muhi & Olalia the executive, a co-equal department of the judiciary? In the same manner that the press statement never mentioned the existence of the letter sent to Congress, it never mentioned any act of resignation. The letter, on the other hand, stated clearly and unequivocally the fact that the President was temporarily unable to act as Presi­ dent. The letter was transmitted to both Houses of Congress and was received by the Senate President and the Speaker of the House, in accordance with the Consti­ 183 tution. The Court refused to give the letters consideration, arguing that Estrada never hinted at the existence or on the preparation of these letters. Why did the Court refuse to accept the letter's existence when both the Speaker of the House 184 and the Senate President had acknowledged its receipt? By describing the letter as "wrapped in mystery", did the Court mean to say that it was non -existent or that its existence was doubtful? The letter does exist and the transmitted copies of it are now of public record in the custody of both Houses of Congress. Even assuming that Estrada had not mentioned its existence or its preparation, the letters are pub­ lic records. In fact, the transmitted letters are considered official acts of the execu­ tive department of the Philippines, which are subject to mandatory judicial no­ tice.185 Estrada was therefore not bound to prove the letter's existence to the Court. Was the Court of the impression that the letter was not an official act of the execu­ tive because, in accordance with its thesis, Estrada was no longer President as he had resigned? If we follow this reasoning and we assume that Estrada had indeed resigned, then the letter would still be an official act of the Executive because at the time he had transmitted it, he was still President. Recall that the Supreme Court itself held that the press statement, as proof of resignation, would prevail as a later act, and therefore, the letter being made prior to the press statement, it was an official act of the executive subject to mandatory judicial notice. Thus, the Court had no reason for not taking into consideration the letter, nor was the Court correct in implying that its existence should have been proven by Estrada, for under its own promulgated Rules, it was bound to take judicial notice of the letters without the need for introduction of evidence. The Court insisted that the letters deserve scant legal significance because Estrada had already resigned, whether it was prepared prior or posterior to the final press statement, arguing that the press statement would prevail over the letter since

86 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law it clearly showed his resignation and his resignation cannot be the subject of a chang­ ing caprice nor of a whimsical will especially if the resignation is the result of his 186 repudiation by the people. Contrary to the opinion of the Court, the press state­ ment was not evidence that "clearly showed" his resignation. It was not a resigna­ tion letter and the Court recognized this as a fact. Nowhere in the press statement was there any mention that Estrada had resigned. As discussed earlier, the state­ ment was not an overt act of resignation. Rather, it was a call for sobriety to pacify . 187 hig h emotions. Furthermore, it was inappropriate for the Court to insinuate that Estrada's res­ ignation, assuming that there was a resignation, was because of "his repudiation by the people." The term "people" is at best, ambiguous. Was the Court referring to the EDSAll crowd and theAnti-Estrada protesters as the "people" who had repu­ diated Estrada's presidency? Or was it referring to the 10.7 million Filipinos who elected Estrada in 1998? Was the Court implying that the "people" had already decided that Estrada must resign and therefore, he was deemed to have done so? It is hardly proper for the Court to invoke the repudiation by the "people" argument in such a contentious issue. The Court was in no position to determine for a fact that the "people" had already repudiated Estrada as President, in the same manner 188 that it was in no position to determine to the point of judicial certainty that the people had overwhelmingly ratified the 1973 Constitution in Javellana v. Executive 189 Secretary . If Estrada was repudiated by the "people" during EDSA II, then it can be said that this repudiation was in turn repudiated by those who were in EDSA 190 III. Just as EDSA II is a part of Philippine history, so is EDSA III, where more 191 people than those in EDSA II took to the streets, but this time to support Estrada and to call for Arroyo's stepping down from the presidency. If "the people" the Court referred to in the decision were acting as the sovereign, then there is no reason why those in EDSA III would not be considered as the sovereign. Mter all, what is sauce for the goose is sauce for the gander.

A Political Question?

Estrada contended that it was not the Vice-President but Congress which had the ultimate authority under the Constitution to determine whether or not he was

VOLUME VII NUMBER 1 (January- June 2003) 87 auerubin, Muhi & alalia unable to act as President pursuant to Article VII, Section 11 of the 1987 Constitu­ tion.192 The Court, in the guise of sustaining his contention, held that both Houses 193 of Congress had rejected his claim of inability. The ponencia cited that despite receipt of the letter, both Houses recognized Arroyo as President and had con- 194 firmed her nomination of Senator Guingona as Vice-President, and both Houses 195 started sending bills to be signed into law by Arroyo as President. Implicitly clear in that recognition was the premise that the inability of the Estrada was no 196 longer temporary. The Court further held that Estrada was bound by his own submission to the authority of Congress in determining his incapability of perform­ 197 ing his functions, and its alleged erroneous exercise cannot be corrected by the 198 Court under the political question doctrine. According to the Court, its "political judgment may be right or wrong but Congress is answerable only to the people for its judgment" and that the doctrine of separation of powers constitutes an insuper­ 199 able bar against its exercise of judicial review. The Court held that Estrada's claim of temporary inability had been laid to rest by Congress and the decision that Arroyo is the de jure President made by a co-equal branch of government cannot be . 200 reviewed. Needless to say, the Court's reasoning renders one speechless. Not only was it indicative of gross ignorance of the law, it revealed the lopsided treatment by the Court against Estrada and in favor of Arroyo. The Court itself stated, in resolving the issue of justiciability, that the ((cases at bar pose legal and not political questions)) and that "the principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably Section 1 of Article II and Section 8 of Article VII, and the allocation of governmental powers under Section 201 11 of Article VII. " However, when the Court passed upon the issue raised by President Estrada as to the improper application of Section 11, Article VII of the Constitution, the Court rebuffed him, invoking the separation of powers and politi­ cal question doctrines, saying that Congress' application of the said section was not a legal but rather a political question. It is understandable and excusable for the Court to sometimes contradict itself in deciding cases, but when it contradicts itself in the same case and in the same decision, especially on such a basic and

88 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law crucial Constitutional issue, it is difficult to believe that the Court is interested in upholding justice. Judicial power includes the duty of the courts of justice to settle actual contro­ versies involving rights which are legally demandable and enforceable, and to deter­ mine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the govern­ ment.202 Political questions are those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of 203 the government. However, all powers organized under the Constitution are in form delegated and hence limited, so that the Supreme Court is vested that author­ 204 ity to determine whether that power has been discharged within its limits. Since a constitutional grant of authority is not unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, it necessarily becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Const1tut10n . . Is . up h. e ld .205 When political questions are involved, the Constitution limits judicial review to the determination on whether or not there has been a grave ab~se of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is 206 being questioned. In the grant of judicial power, the Constitution imposes a duty upon the courts to make a determination whenever whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction is presented as an Issue.

Either Way, the Issue was Justiciable

Applying the foregoing discussion on the nature of judicial review, Congress' application or misapplication of Section 11, Article VII of the Constitution is not a political question. The issue involves the interpretation of the Constitution and the determination whether Congress had exercised its discretion of recognizing Arroyo

VOLUME VII NUMBER 1 0anuary- June 2003) 89 ouerubin, Muhi & Olalia as de jure President within the limits provided for by the Constitution. The Consti­ tution provides: SEC. 11. 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. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days 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 Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. 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 207 President shall continue exercising the powers and duties of his office. The Constitution provides the rules to be followed by both Congress and the Executive branch in cases where the President is temporarily

90 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

unable to discharge the functions of his office. Nowhere is it provided in Section 11 or any other provision of the Constitution that Congress has the power to determine whether or not the inability of the President is of a temporary character or a permanent one. Meanwhile, there is only one event when the Constitution allows Congress to make a determination as to whether or not the President is able to exercise the functions of his office. This is when the President transmits to the Senate President and Speaker of the House his written declaration that no inability exists, but a majority of the Cabinet transmits to the latter a written declaration to the contrary, then Congress shall decide the issue. The issue shall be decided by a vote of two-thirds of both Houses, voting separately. If the two-thirds vote is attained, then the Vice­ President shall act as President, otherwise, the President shall continue exercising the powers and duties of his office.

It is expressly clear that Congress, by a vote of two-thirds of each House, vot­ ing separately, can determine only whether or not the President's inability still sub­ sists. Such determination does not translate that the inability of the President has become permanent. This is why the Vice-President only acts as President when both Houses of Congress obtain such a two-thirds vote. To act as President is not equivalent to becoming President. The difference between acting as President and becoming President can be seen To act as f rom Ar tic. 1es 7 208 an d 8 209 o f t h e c onstttutton. . . President is Under Section 8, there are four instances when the not equivalent Vice-President assumes office as President, namely, in to becoming cases of death of the President; his permanent disability; 210 President. his removal from office; or his resignation. Death is self­ explanatory. Removal from office is by impeachment, the only mode of removal of 211 the President sanctioned by the Constitution. Permanent disability involves a physical or mental condition or illness which permanently incapacitates the Presi­ 212 dent from discharging his functions as President. Resignation involves a formal 213 notification of relinquishing office or position. The vacancy created in these situ- ations is a permanent vacancy.

VOLUME VII NUMBER 1 0anuary- June 2003) 91 ouerubin, Muhi & Olalia

On the other hand, there are two instances provided in Section 7 when a Vice­ President assumes office as Acting President. First, when a President-elect has been chosen but fails to qualify, the Vice-President-elect shall act as President until 214 the President shall have qualified. Second, when no President has yet been cho­ sen, the Vice-President shall act as President until a President shall have been cho­ 215 sen and qualified. The Vice-President assumes the presidency only in an acting capacity in these instances because the vacancies created are only of a temporary character. The third instance provided by the Constitution when the Vice-Presi­ dent assumes office as Acting President is the situation provided for in Section 11, dealing with the President's temporary inability. Thus, in case of temporary vacancy, the Vice-President does not become President. It is only in case of a permanent vacancy when the Vice-President assumes office as President, and not in a mere acting capacity. According to the Constitution, it is Congress which has the power to deter­ mine whether or not the President is ready or able to reassume the exercise of his powers as President. This determination is limited to the determination of tempo­ rary inability, and Congress cannot say that the President is unable to reassume because of permanent disability. The words of the Constitution are very clear. When the President transmits a written declaration of his temporary inability to discharge his functions, the Vice-President shall assume office only as Acting President. Con­ gress, with all its powers under the Constitution, cannot recognize the Vice-Presi­ dent as President unless a permanent vacancy has occurred. In Estrada's case, there was no such permanent vacancy as he has neither died, been removed by impeach­ ment, been permanently disabled nor has he resigned. Assuming, on the other hand, that the act of Congress constituted a political question, the same conclusion will be arrived at. Under the 1987 Constitution, the Court's judicial power now extends to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of 216 any branch or instrumentality of the government. Thus, even if the question were political in nature, it would still come within the courts' powers of review under the 217 expanded jurisdiction conferred by Article VIII. Section 1 of the Constitution.

92 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

Grave abuse of discretion is defined as the capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction and must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is 218 exercised in an arbitrary or despotic manner by reason of passion or hostility. Congress, as discussed above, did not follow the mandate of the Constitution in extending recognition to Arroyo. Rather, the steps it took clearly contravened Ar­ ticle VII, Section 11. It exercised a power not granted to it by the Constitution. The Constitution mandated that a two-thirds vote of each House is necessary for a 219 finding that the President is still unable to discharge his functions. But this find­ ing is limited to a determination of temporary inability and not permanent inability. The two-thirds vote requirement was also not met, as only twelve Senators signed 220 the resolution recognizing Arroyo as President. The resolutions confirming Guingona as Vice-President suffer from the same substantive infirmity, that is, under the Constitution, Congress has no power to determine the permanent disability of the President. Arroyo thus remained the Vice-President, as she could not have become the President pursuant to Article VII, Section 11. Under the said section of the Constitution, Congress can only recognize Arroyo as Acting President. Consequently, Congress gravely abused its discretion in extending such recognition to Arroyo as President and in confirming Guingona as Vice-President.

No Permanent Disability

Even if we assume that Congress was empowered by Article VII, Section 11 to determine the permanent disability of the President, its recognition of Arroyo as President was violative of the Constitution, both substantively and procedurally. As regards the procedural requirements of the Constitution, Congress can only make such a determination after the President transmits a written declaration that he is reassuming the exercise of his office as President and the majority of the Cabinet transmits a written declaration saying otherwise. It then has to obtain the two-thirds vote of both Houses, voting separately. In Estrada's case, he never trans-

VOLUME VII NUMBER 1 Qanuary- June 2003) 93 auerubin, Muhi & Olalia mitted a written declaration that he was reassuming the exercise of his functions. Nor had the majority of his Cabinet transmitted any written declaration to the contrary. The resignation of his Cabinet members, even if they had constituted the majority thereof, does not satisfy the Constitutional requirement for two important reasons. The first reason is that in resigning, there was no written declaration trans­ mitted to the Senate President and to the House Speaker. The second and more fundamental reason is the fact that when they resigned, they ceased to be a part of the Cabinet. Hence, even if they constituted a majority, and had transmitted a written declaration, such declaration would have no legal effect whatsoever be­ cause they were no longer Cabinet members. The resolutions recognizing Arroyo were likewise procedurally defective. They were not passed pursuant to the two­ thirds vote required of both Houses. Only twelve Senators signed the Senate Reso­ lution,221 when a two-thirds vote requires at least sixteen signatures. With respect to substance, Congress had cited that they were recognizing Ar­ royo as a consequence of the people's loss of confidence in the ability of Estrada to effectively govern as President, and the withdrawal of support from him by major­ ity of his cabinet, the Armed Forces of the Philippines and the Philippine National 222 Police. These circumstances cited by Congress are not those that render the President permanently disabled to discharge his functions. The term permanent disability refers to the President's physical and mental condition as can be gleaned 223 from the deliberations of the framers of the Constitution. If we were to accept the contention that the above-enumerated circumstances and the other circum­ stances relied upon by the Court were indicators of permanent disability, then we would be left with an inutile President. The powers conferred upon the Chief Ex­ ecutive by the Constitution would be meaningless, for his ability or capacity to exercise his functions would be subject to the whims and caprices of persons and 224 institutions that are supposedly under his control and supervision. He is the Com­ 225 mander-in-Chief of the AFP; it is not the other way around. He has control and supervision over all executive departments, including the Philippine National Po­ lice;226 they do not exercise any authority or control over him.227 If the Cabinet withdraws support from him, the President can appoint a new Cabinet. If the mili­ tary or police force withdraw support from him, he can choose new commanders

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228 and have those who withdrew support prosecuted criminally for rebellion or coup 229 d'etat, if the circumstances so warrant, or have them administratively disciplined or court-martialed for abandonment of duties, insubordination, sedition or mu­ tiny.230This is why it is more reasonable and sound to construe permanent disability as limited to the physical or mental condition of the President. Estrada was clearly in no condition to assume his duties as President. He experienced a psychologically traumatizing event in his life during the weeklong crisis that led to Arroyo's oath taking. He was within his rights to take a leave, so to speak, in order to collect himself. His experience did not leave him permanently disabled, physically or mentally, as evidenced by his filing of a petition to question Arroyo's assumption to office. We come now to the people's alleged loss of confidence in the President. Suffice it to say that this is, again, a very dangerous statement. Who are the "people" referred to here? The EDSA II crowd and all the Anti-Estrada groups, including civil society? Is Congress referring to the entire Filipino population? Is it referring to Filipinos who elected Estrada in 1998? Is it referring to those Filipinos who did not vote for Estrada but for some other candidate in 1998? This statement by Congress cannot be considered as grounds for declaring the permanent disability of the President, precisely because it is only through an election that "the people's" confidence in a person's ability to effectively govern is determined. Whether or not "the people" have lost confidence in an elected official is precisely a political ques­ tion that can only be answered through an election. It involves a question which, 231 under the Constitution, is to be decided by the people in their sovereign capacity. 232 In the absence of an election, therefore, neither Congress, the Commission on . 233 234 . Elections, nor the Supreme Court Is empowered to ascertain whether or not the people have lost confidence in any elective official.

Who Gave the First Recognition?

In fairness to both Houses of Congress, the resolutions recognizing Arroyo as President mentioned neither Estrada's permanent disability nor resignation as con­ 235 templated under the Constitution as a reason for the recognition. Rather, it cited

VOLUME VII NUMBER 1 Uanuary- June 2003) 95 auerubin, Muhi & Olalia the Court's en bane resolution which granted authority to Chief Justice Davide in 236 administering the oath to Arroyo as President. Hence, it appears that Congress did not really motu proprio recognize Arroyo as President. Rather, it relied on other circumstances, particularly the Supreme Court's acts, in conferring such recogni­ tion. It can be concluded that Congress recognized Arroyo as President because the Court had already recognized her as President on 20 January 2001. The recog­ nition extended by Congress, therefore, was a post facto recognition. The Court contended that there was a priori recognition followed by post /acto 237 acts of recognition. The Court cited a Joint Statement prepared by Senate Presi­ dent Pimentel and House Speaker Fuente bella before the oath taking as evidence 238 of Congress' a priori recognition. Assuming that this was indeed a priori recogni­ tion, it cannot be considered as an a priori recognition of Congress because it was a recognition extended only by two persons - the House Speaker and the Senate President. These two officials, although the elected leaders of both Chambers of Congress, do not comprise or make up the entire Congress, nor can their acts bind the entire legislature. In any event, the recognition extended, whether a priori or post facto or both, remain unconstitutional. No matter how many times and in how many ways such recognition be extended by the Senate President or by the Speaker of the House or by the entire Congress, such recognition will never be in accord with the Constitu­ tion because there was no permanent vacancy in the Office of the President and august bodies that they are, they have no power to determine whether or not the President is permanently disabled. That is the law. Was the Court trying to say that it had no hand in Congress' act of recognizing Arroyo as President when its act of swearing in Arroyo was a basis used by Congress in recognizing her as President? If so, it was certainly a poor attempt at denying involvement when it is clear from the text of the resolutions cited that it was party to the entire thing.

The Vice-President's unconstitutional Request

Neither does the Vice-President have any power to determine the permanent disability of the President under the Constitution. The only event when the Vice-

96 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

President can say that there exists some inability on the part of the President to discharge the functions of his office is when the Vice-President is a part of the majority of the Cabinet who will transmit a written declaration to that effect to the 239 House Speaker and Senate President. Still, this written declaration is limited to a temporary inability and the Vice-President will assume office only as Acting Presi­ dent.240This cannot be emphasized enough. Thus, Arroyo's letter dated 20 January 241 2001 and mentioned earlier informing the Court that Estrada was permanently disabled and requesting the Chief Justice to administer the oath to her as President does not only not have any basis under law, it is violative of the very text of the Constitution. The Court should not have granted such a patently unconstitutional and illegal request. The Court's looking the other way manifested its predisposition towards Arroyo's immediate assumption to the presidency.

Evading the "Acting" Issue

Before noon of 20 January 2001, Chief]ustice Hilario G. Davide,Jr. was caught on video, telling a reporter that he was on his way to EDSA to administer the oath 242 to the Vice-President asActzng President. However, when the decision was pro­ mulgated on 3 March 2001, Arroyo was no longer Acting President but President by virtue of Estrada's "resignation". Immediately after she took her oath, she deliv­ ered a speech wherein she said, "In all humility, I accept the privilege and responsi­ 243 bility to act as President of the Republic." But when this speech was printed, it 244 had been changed to "In all humility, I accept the presidency of the Republic." The Court never made any attempt to shed light on the obvious discrepancy between the statement of the Chief Justice and the decision rendered. It was an 245 allegation that the Court would certainly have had difficulty explaining. L1e: :::tate­ 246 ment of the Chief Justice is considered part of the res gestae and is consequently admissible evidence of the allegation that Arroyo was to be sworn in only as Acting President. Statements made instinctively at the time of a specific transaction or event, without the opportunity for formulation of statements favorable to one's own cause, are likely to cast important light upon the matter at issue and the law 247 creates a presumption of truthfulness on such statements. The Chief Justice made this statement before the issuance of the administrative resolution and before the

VOLUME VII NUMBER 1 (January- June 2003) 97 ouerubin, Muhi & Olalia decision on Estrada's case was rendered. It is a strong indication that the authority given by the Court to the ChiefJustice was to swear in Arroyo only as Acting Presi­ dent. But somewhere, sometime between the oath taking and the rendering of the decision, the Court had changed its mind and its theory as to the assumption of the Vice-President into the presidency. Contrary to the decision of the Court, it is evi­ dent that Estrada's supposed resignation was not the true reason why it considered administering the oath to Arroyo.

RESIGNATION OF THE PRESIDENT MUST BE IN WRITING

The Constitution requires that the resignation of the President must be made formally in writing. Law Professor Alan Paguia argues that it does not seem reason­ able to suppose that the Constitution would forego official formality with respect to a presidential resignation, since it involves the highest office in government and therefore, matters of national security may be compromised because of uncertainty 248 as to the validity or invalidity of any alleged resignation. Unless there is a written resignation, there would be reasonable doubt not only as to the existence of the act of resignation, which is a question of fact, but also as to its validity, which is a question. o f 1aw. 249 Although there is no express provision in the Constitution requiring that it be in written form, resorting to rules on constitutional and statutory construction would disclose that resignation must be in written form. Article VII, Section 11 of the Constitution requires a written declaration when the President suffers from tempo­ rary inability to govern as President. If the Constitution requires a written declara­ tion in the case of the President's temporary inability, where the President does not abdicate his position, then all the more should it be interpreted that the Constitu­ tion requires a written letter or declaration of resignation where the president per­ manently relinquishes his office. Furthermore, under the Constitution, resignation stands on equal footing with the other situations which create a permanent vacancy 250 in office, namely death, permanent disability and removal from office. Paguia maintains that it would be absurd to imagine that in case of death, no written proof of death, or in case of removal from office, no written decision of conviction by the

98 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law impeachment tribunal, or in the case of permanent disability, no written declaration 251 of such physical or mental disability would be required by the Constitution. So too, would it be absurd to assume that in case of resignation, no written form to 252 that effect would be required by the Constitution. According to Dr. Miriam Defensor Santiago, the Court should have looked at the existing practice in the United States which our Constitution and Presidential form of government was patterned after, on the issue of the formality requirement 253 in the President's resignation. Resignation is defined as the formal renunciation 254 or relinquishment of a public office. The word "formal" on the other hand is defined as that pertaining to or following established procedural rules, customs and 255 practices. Since there are no such established procedural rules, customs and prac­ tices in the Philippines, as this was the first time that a President was argued to have "resigned", it was incumbent upon the Court as a matter of prudence, to consult the procedure in the United States which had an established practice as to the resignation of both the President and Vice-President. The United States re­ quires a resignation to be in written form which must be transmitted to the proper authority. Vice-President Spiro Agnew had written a resignation letter, wherein he stated that it was in the best interest of the nation that he relinquish the vice presi­ dency.256 He had addressed and transmitted the letter to President Richard 257 Nixon. President Richard Nixon, on the other hand, wrote a much simpler letter 258 of resignation, containing only one sentence. It was addressed and transmitted 259 to the Secretary of State, Henry A. Kissinger.

THE JUDGMENT THAT CAME BEFORE THE PETITION

Even before Estrada had filed his Petition for Quo Warranto and Prohibition on 6 February 2001, judgment was already rendered. It was rendered on 20 January 2001 when the Supreme Court decided to administer the oath to Vice-President Macapagal-Arroyo as President of the Philippines. The written judgment was em­ bodied in A.M. No. 01-05-SC entitled In re: Request of Vice-President Gloria Macapagal-Arroyo to Take Her Oath of Office as President of the Republic of the

VOLUME VII NUMBER 1 Oanuary ·June 2003) 99 ouerubin, Muhi & Olalia

260 Philippines before the ChiefJustice. This resolution was released two days after 261 the oath taking at the EDSA Shrine. The Court reasoned out that there was no prejudgment of the case as it is clear from the resolution that the Court did not treat the letter of Arroyo as a case but as 262 an administrative matter. To dispel the erroneous notion that such resolution was a predetermination of Arroyo's legitimacy, the letter was treated as an adminis­ trative matter and emphasized that it was issued "without prejudice to the disposi- 263 tion of any justiciable case that may be filed by a proper party." The Court further said that it did not issue a resolution on 20 January 2001 declaring the Office of the . 264 Prestdent vacant. Such a justification is difficult to believe. Indeed, who would believe that the 65 swearing in of a President is a mere administrative matter/ It was improper for the Court to treat the matter of the presidency as a mere administrative matter. Contentious factual and constitutional issues were involved which entailed a full­ blown judicial proceeding. It involved a substantial right, the right to occupy the presidency, the highest office in the land. An issue concerning a substantive right cannot be dispensed with by a mere administrative resolution, without affording the holder or claimant of such a right any opportunity to be heard. Is it a part of the administrative powers of the Court to accede to a request of a Vice-President to be administered the oath as President, without any determina­ tion as to its legality or veracity, which request is based solely solely upon an allega­ tion that the incumbent President is permanently disabled? Does this mean that the Court would grant a request from anybody to be sworn in as President without any determination as to its propriety whatsoever because it is a mere administrative matter? The Court should have been more circumspect in administering the oath to Arroyo. It was incumbent upon the Court to determine whether or not Arroyo had a right, under the facts and under the Constitution, to occupy the presidency. While the Court may not have issued a resolution expressly declaring a va­ cancy in the Office of the President, its resolution granting Chief Justice Davide authority to administer the oath to Arroyo implies that the Court had determined that there was such a vacancy. Otherwise, why would it have the oath administered to

100 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law someone as President z/ it acknowledged that there was still a sitting President in Malacafiang? Since the resolution impliedly determined the existence of a vacancy in the presidency, Estrada was denied due process of law.

A Denial of Fundamental Due Process

The Constitution provides that no person shall be deprived of life, liberty or 266 property without due process of law. Due process mandates the minimum obser­ vance of the twin requirements of notice and hearing and neither of these elements 267 can be eliminated without running afoul of the Constitutional guaranty. While it may be true that public office is not a right to property as contemplated under the 268 due process clause of the Constitution, a holder of a constitutional office which provides special immunity as regards tenure is considered to have a vested right in 269 such office. Even assuming that the right to such an office is a mere privilege, the 270 incumbent's right to office is entitled to the protection of the law. He cannot be deprived of his right to office without hearing when the right to have it terminated 271 is limited to specified causes. The justice that procedural due process guarantees is one which hears before it 272 condemns, which proceeds upon inquiry and renders judgment only after trial. In issuing the administrative resolution, Estrada was neither given prior notice by the Court of its issuance of the resolution nor of Arroyo's request. Only Arroyo was 273 given a copy of the resolution. He was never given an opportunity to defend his 274 presidency. Estrada did not even rate the courtesy of being informed officially 275 about it. Again, the Court's failure to notify Estrada casts more doubt and suspi­ cion as to the legality of the oath taking on 20 January 2001. Although the resolution was issued "without prejudice to the disposition of a 276 justiciable case filed by a proper party," the Quo Warranto Petition filed by Estrada did not cure the lack of due process that occasioned the issuance of the resolution. In a denial of procedural due process, what the law prohibits is not the absence of a previous notice but the absolute absence thereof and lack of opportunity to be 277 heard. In Estrada's case, there was an absolute absence of prior notice as he was

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neither notified of Arroyo's request, of the Court's deliberations upon the matter nor of the decision to grant the request. There was also an absolute lack of opportunity to be heard. After receipt of Arroyo's letter, the Court deliberated among themselves and then decided to have 278 the Chief Justice administer the oath on Arroyo. Such a deliberation is not a hearing as mandated by the due process clause of the Constitution. In a hearing, a party is given the chance to adduce his evidence to support his side of the contro­ versy and that evidence should be taken into account in the adjudication of the 279 controversy. In the issuance of the resolution, only Arroyo's allegations as to the President's permanent disability were presented. Estrada, who was the one alleged to be permanently disabled, was not given any opportunity to be heard before the decision of the Court to accede to Arroyo's request was rendered. The Court's disclaimer cannot cure the patent lack of due process. A deprivation had already occurred before the "opportunity to be heard" was given. Estrada was already de­ prived of the presidency when the resolution was issued by the Court two days after . 280 t h e oath -ta k mg. The due process clause of the Constitution mandates that before a person is deprived of a right, due process must first be observed. The deprivation cannot take place before the observance of due process. Although administering an oath to a public officer or servant can be characterized as administrative, it no longer be­ comes a mere administrative act when the oath is administered to a person claim­ ing a right to an office while there is an incumbent occupant to the office. It becomes a deprivation of a right without due process of law. The undeniable fact is that the Court, before 12:00 noon of 20 January 2001, had already determined that Estrada no longer occupied the presidency. And con­ trary to the decision it rendered, the Court did not consider him resigned because his alleged overt and confirmatory acts of resignation happened hours after Chief Justice Davide administered the oath on Arroyo and weeks after the "authoritative 281 window to Estrada's mind" was reprinted in the Philippine Daily Inquirer. Or did the Court resort to soothsaying in determining before noon of 20 January 2001 that Estrada would issue his press statement, that he would leave Malacafiang, that Angara was keeping a diary and that he would have it published?

102 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

Perhaps it was foolish for Estrada to have filed the petition at all, considering that it was the Court itself, by going to EDSA and allowing ChiefJustice Davide to administer the oath to Arroyo, that effectively sealed his case and terminated his presidency. But he cannot be blamed for placing his faith and presuming good faith in the sense of justice and fair play of the Supreme Court, the protector of the highest law of the land. After all, we are expected to trust and always presume good faith in the judiciary. Otherwise, the credibility of the entire justice system will be destroyed.

THE CASUAL TIES AND CONSEQUENCES OF DISRECiARDINCi THE RULE OF LAW

Estrada's case presents a rather grim and saddening reality of the true state of the Rule of Law in the Philippines. We are left with a weak and subservient office of the President, an extremely politicized miEtary and a disenfranchised electorate.

A weakened President

The decision of the Court lowered the stringent standards and measures pro­ vided by the Constitution which are supposed to strengthen the Office of the Presi­ dent and to protect the President's tenure. For instance, the President's right to be removed only by impeachment is the Constitution's strongest guarantee of security 2~ . of tenure. The guarantee effectively blocks the use of other legal ways of oustmg 283 an officer. With respect to resignation, the Supreme Court held in Ortiz v. Com­ 84 mission on Election/ that a strict interpretation should be observed in construing the resignation of Constitutional officials whose removal from office entails an im­ peachment proceeding. This case involved a written courtesy resignation of a Com­ missioner of the COMELEC. The Court held that a "courtesy resignation" could not properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it mani­ 285 fests his submission to the will of the political authority and the appointing power. If the Supreme Court had strictly construed a "courtesy resignation", as in the above-cited case, where a letter of resignation was involved, then all the more should

VOLUME VII NUMBER I (January- June 2003) 103 auerubin, Muhi & Olalia it strictly construe a supposed "resignation" by the President of the Republic in the absence of a resignation letter. By considering Estrada resigned in view of the circumstances, which do not present any clear evidence of resignation, the Office of the President is now a weak­ ened institution. The President's tenure is effectively stripped of the Constitutional protection against his removal or "constructive resignation." Impeachment is no longer the only mode by which a President can be removed. "Resignation" pursu­ ant to the totality doctrine is now considered a mode of removal. Preoccupied with preserving his precarious tenure, the President will be forced to cater to the whims and wants of the world around him. It will be extremely difficult, if not impossible, for him to exercise his functions and perform his duties with political and legal independence for fear that he may dissatisfy some sectors of society be­ cause of his policies and actions. Instead of concentrating on his duties as Presi­ dent, he will be constrained to make political concessions to assure himself of secu­ rity of tenure, lest he become the victim of a military withdrawal of support or an EDSA uprising, factors which can now consider him legally "resigned" according to the Supreme Court.

An Unprofessional and Politicized Military

286 "The military is the protector of the people." This was a justification of former AFP Chief of Staff General Angelo Reyes when he withdrew the military's support from President Joseph Estrada on the afternoon of 19 January 2001. With the Court virtually stamping its imprimatur on the military's act of withdrawing support from the President, it will now be legal for the military to effect a change in the country's political leadership by declaring that it is the protector of the people. Article II, Section 3 of the Constitution provides, "Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the pro­ tector of the people and of the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory." The principle of civilian supremacy as provided by the first sentence of the section is institutionalized by Article VII, 287 Section 18, which makes the President, a civilian and precisely as civilian, Com-

104 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

288 mander-in-Chief of the armed forces. The military establishment is the strongest single institution in the country and could easily employ its physical force to wrest 289 power from the civilian authorities. It is important that the military be subordi­ nated to the President so he can keep it in check whenever it is tempted to impose 290 its will upon the government. By making the President the Commander-in-Chief of all the armed forces, the Constitution lessens the danger of a military take-over 291 of the government in violation of its republican nature. From the foregoing, it is clear that the military withdrawal from the duly con­ stituted civilian authority has no basis under the Constitution. The provision that the AFP is the protector of the people does not give the AFP the power to deter­ mine who the "people" are or whether or not the "people" have lost confidence in the duly constituted authority. An election is the proper mode provided by law to ascertain whether or not the "people" have lost confidence in an elective official. The AFP is bound to accept the results of an election as conclusive evidence of the "will of the people." It has no power to nullify an election or proclaim that it has determined the "will of the people," especially if its only means of ascertainment is by looking at a crowd massed up against a President. Likewise, the military is given no power by the Constitution to determine whether or not the President remains the duly constituted civilian authority. This power is granted to the other branches 292 of government. The military is bound to recognize and be subject to the author­ ity of the civilian President as mandated by the Constitution. For so long as the President remains President under the Constitution, it is unconstitutional for the AFP or PNP to withdraw support from his government. To hold otherwise will be to allow the military to assert its supremacy over the civilian authority, thus nullify­ ing the tenure of the President who can only be removed through impeachment based on specific grounds. If this is the case, we can no longer be called a republi­ can state, but a military state, where the military exercises the ultimate authority over civilians in political and governmental matters. The Court's decision in the Estrada case, with some of its members practically applauding the military's defec­ 293 tion, has opened the possibility to this dangerous situation. The Constitution further provides that the armed forces shall be insulated from partisan politics and shall not engage directly or indirectly in any partisan political

VOLUME VII NUMBER 1 Ganuary- June 2003) 105 auerubin, Muhi & Olalia

294 activity except to vote. The framers of the Constitution intended to insulate the 295 Armed Forces from partisan politics as political influence destroys its morale. The withdrawal by the military of its support from the President to join his political opponents in EDSA is exactly what the Constitution prohibits. President Estrada was in the middle of an impeachment trial which was a highly political exercise. The massing up by the Anti-Estrada crowd at the EDSA Shrine was a politically motivated event as well. The President never gave any unlawful order for the use of violence or force to disperse the crowd, nor was he found guilty of any Constitu­ tional breach by the impeachment court. The military therefore, was not justified under the facts and under the Constitution, to interfere or implicate itself in the situation. The withdrawal of the military, with its highest officials succumbing to 296 political pressure exerted by the opposition at that time, was the result of the destruction of the military's resolve and mo­ Politicking eroded the rale. Politicking by the Chief of Staff, the top military's sworn generals and service commanders had eroded the military's sworn commitment to protect the commitment to protect Constitution and obey the duly constituted au­ the Constitution thorities. The military refused to acknowledge and obey the duly the authority of the Constitutional Commander­ constituted authorities. in-Chief and by transferring its allegiance to the Vice-President, it proclaimed a new Com­ mander-in-Chief on the basis of its own judgment and assessment as to the sup­ posed "will of the people." The highest officials of the AFP knowingly participated in a patently partisan political activity and in doing so, violated the Constitution and subverted the supremacy of the civilian authority over the military. The Court, by using the fact of the military's withdrawal of support as a basis in rendering its decision, in effect recognized the active participation by the military in the partisan political events that led to Arroyo's oath taking as valid and legal. In effect, it im­ plied that it was perfectly valid and legal for the military to withdraw support from the duly elected President of the Republic to force him to resign. The decision encourages, to put it mildly, a politically active military which, to say the least, is violative of the Constitution.

106 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

A Nullified Electoral Mandate

An election is one of the three modes by which people are allowed to directly 297 exercise their sovereignty under the Constitution. It is through the ballot that the 298 will of the majority is expressed. In a democracy, leaders are chosen through the ballot and the law dictates that the candidate who receives the highest number of 299 votes shall be proclaimed elected. A President assumes office pursuant to an election. Under the Constitution, the will of the majority is not expressed through mass demonstrations or public uprisings. A President is not chosen or appointed through a People Power phenomenon. In a democracy, a President can only be removed pursuant to law. In our demo­ cratic system, the President can only be removed from office based on the grounds and modes provided by the Constitution. The only mode provided by the Consti­ tution for removing a President is through an impeachment proceeding. He cannot be removed through mass demonstrations or public uprisings. A President cannot be removed by a People Power phenomenon. People Power II was a perfectly valid exercise of the freedom of speech and 300 the right to peaceably assemble and petition government for redress of grievances. But it can never be proclaimed as "the will of the people." To declare it as "the will of the people" will be to subject the application of the Constitution to the whims of a vociferous mob. Elections will be nullified and rendered useless as a hooting throng can always gather and assemble and claim that they are the people and that they have decided that an elected official no longer has the people's confidence. If 301 this is the case, we might as well go parliamentary or revolutionary. The Court's pronouncement that Estrada's resignation was a result of "his re­ 302 pudiation by the people" necessarily means that the Court recognizes People Power II as "the will of the people". The Court has no power to determine to a judicial certainty that the gathering in EDSA in January 2001 was truly representa­ 303 tive of the sovereign people precisely because it is only through the modes of election, referendum and plebiscite as provided by the Constitution that the will of the people can be ascertained to a judicial certainty. The Court, even with all the powers granted to it by the Constitution, cannot declare the will of a crowd, a

VOLUME VII NUMBER 1 Ganuary- June 2003) 107 auerubin, Muhi & Olalia

04 multitude, an assembly or a mob/ as the will of the people. Even if the Court employs a mathematical or scientific formula for estimating or by manually count­ ing the number of people in the crowd by a show of hands, it cannot claim that the crowd is the majority. In the absence of an election, referendum or plebiscite, the Court has no means of determining the will of the people as contemplated in the Constitution. The rage and loud outcry of the EDSA II crowd should not have overwhelmed the Court for it to be constrained to overturn the mandate granted by 10.7 million Filipinos to Estrada when they elected him to the presidency. The decision validat­ ing EDSA II as the "will of the people" disenfranchised and nullified the votes of 10.7 million Filipinos who trusted that their choice would be respected by those whose choices were not elected. We must be reminded constantly that ours is a democracy where sovereignty 305 resides in the people whose sovereign will is expressed through the ballot. The sanctity of the people's will must be observed at all times if our nascent democracy 306 is to be preserved.

CONCLUSION: RULE OF LAW OR RULE OF ME~11?

The Rule of Law dictates that the Constitution must be kept supreme over 307 all. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, 308 must defer. No act shall be valid, however noble its intentions, if it conflicts 309 with the Constitution. Expediency must not be allowed to sap its strength nor 310 greed for power debase its rectitude. 311 312 The decisions in Estrada v. Macapagal-Arroyo and Estrada v. Desierto have shown the dispensability and insignificance of the Constitution and the concept of due process when political expediency and political stability are at stake. A Presi­ dent can now be considered "constructively resigned" based on the totality of cir­ cumstances. A newspaper reproduction of a diary is no longer considered hearsay and is now admissible as evidence. The Rules on Evidence can now be suspended totally against a party. Both Congress and the Vice-President can now declare the

108 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

President permanently disabled. A Vice-President can now be sworn in as Presi­ dent even while there is still an incumbent sitting President. Violations of the Con­ stitution are no longer considered justiciable issues or acts which amount to grave abuse of discretion. The military is now supreme over the civilian authority. Elec­ toral mandates can now be nullified by the gathering of a loud and angry crowd. When the Constitution is disregarded, respect for law and government disinte­ grates. A society where the Rule of Law is made dependent upon the exigencies of the circumstances and political climate can never attain true justice and equality. The Rule of Law is supposed to be a weapon against arbitrariness. However, in a society where the Constitution is pragmatically applied and made to adapt to per­ ceived political necessities, the law becomes a weapon for oppression and despo­ tism. The Rule of Law is rendered meaningless. With the decision of the Supreme Court in the Estrada cases, one cannot help but ask, "Are we still under the Rule of Law or are we now under the Rule of Men?" Perhaps the ultimate casualty when the rule of law is disregarded is the judicial system's credibility and the confidence and assurance it once provided to the ordi­ nary Filipino that under the law, he will be treated in the same manner and given the same rights and respect as anyone else, regardless of the wealth he possesses or the influence he commands in society. When we are under the Rule of Men, justice is denied to each and every one of us.

VOLUME VII NUMBER 1 Oanuary- June 2003) 109 ouerubin, Muhi & Olalia

Notes

1 CECILIOT.ARILLO,POWERGRAB1 (2001). 2 EDSA is an abbreviation for the Epifanio Delos Santos Avenue, a major thoroughfare that cuts across the cities of Caloocan, Quezon, Pasig, Mandaluyong, Makati and Pasay. 3 This paper will explain the circumstances which surrounded People Power II. 4 This paper will elucidate and examine the specific events that transpired during the oath-taking of Gloria Macapagal-Arroyo as the 14th President of the Philippines. 5 Genuine Resolution (G.R.) Nos. 146710-15,2 March 2001; 2 April2001 (Resolution). 6 G.R. No. 146738, 2 March 2001; 2 April2001 (Resolution). 7 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 8 ARILLO, supra note 1, at 2. 9 NATIONAL STATISTICAL COORDINATING BOARD, NSCB STATISTICS SERIES 2001-02, A STATISTICAL ANALYSIS OF THE COUNTRY'S ELECTORAL EXERCISES 7 (2001). 10 Id. 11 PHILIPPINE DAILY INQUIRER, 5 October 2000, pp. A1 and A17. 12 Id., 6 October 2000, pp. A1 and A18. 13 Id., 13 October 2000, pp. Al and A21. 14 Id., 26 October 2000, p. A1. 15 Id., 14 October 2000, p. Al. 16 Id., 12 October 2000, pp. A1 and A17. Jaime Cardinal Sin delivered a pastoral letter urging President Estrada to resign for having lost the "moral ascendancy to govern." 17 Id., 15 October 2000, p. A1. Former Presidents Aquino and Ramos personally called on President Estrada to resign. 18 Id., 28 October 2000, p. Al. Akbayan, Bayan, Sanlakas, Kompil II, PCA, to name a few. 19 Id., 29 October 2000, p. Al. Lakas-NUCD, Reporma, Promdi, to name a few. 20 Id., 30 October 2000, pp. A1 and A17. The Makati Business Club and other Chambers of Commerce in major cities, to cite a few. 21 Id. 22 Estrada on Trial: ChronologJ a/Events, To name a few, the Senior Economic Advisers composed of former Prime Minister Cesar Virata, former Senator Vicente Paterno, Washington Sycip and Jaime Augusto Zobel de Ayala resigned. They were followed by Trade and Industry Secretary Mar Roxas, Senior Economic Adviser Gabriel Singson arid Presidential Adviser for Political Affairs and Philippine Tourism Authority Head Lito Banayo. More Cabinet members and presidential advisers followed suit. 23 Id. In the Senate, Senate President Franklin Drilon, Nikki Coseteng and Rodolfo Biazon withdrew from LAMP In the House of Representatives, House Speaker Manuel Villar and 40 other members of the House withdrew from LAMP

110 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

24 The Articles accused President Estrada of bribery, graft and corruption, betrayal of public trust and culpable violation of the Constitution. 25 PHILIPPINE DAILY INQUIRER, 14 November 2000, p. A1 and A16. 26 Id., 21 November 2000, p. Al. 27 Id., 23 December 2000, pp. A1 and A19. 2 8 Although the account was not specifically mentioned in the Bill of Particulars submitted by the prosecution, Chief] ustice Davide allowed Ocampo to testify on the account, notwithstanding the objection of the defense. 29 Id. 30 PHILIPPINE STAR, 17January 2001, p. 1. 31 Id. 32 Id. 3 3 Id. The eleven senators who voted against the opening of the second envelope were Senators Coseteng, Enrile, Defensor-Santiago, Sotto, Honasan, John Osmeiia, Revilla, Jaworski, Tatad, Ople and Aquino-Oreta. The ten who voted in favor of opening it were Senators Legarda­ Leviste, Roco, Cayetano, Biazon, Pimentel, Drilon, Flavier, Sergio Osmeiia, Magsaysay and Guingona. 34 Id. However, Senator Pimentel never really physically resigned as Senate President as he continued to act as Senate President until after his announced resignation during the impeachment trial. 35 Id. 3 6 Estrada on Trial,· Chronology ofEvents, http://www.tag.org.ph/whatsnew /2000/impeachupd_chronology janO 1.htm. 3 7 Television Networks and Broadcasting Corporations G MA-7 and AB S-CBN began reporting on the gathering and naming it "EDSA Dos" or "People Power II" before midnight of January 16, 2001. 38 FRANCISCO S. TATAD, A NATION ON FIRE 488 (2002). 39 PHILIPPINE DAILY INQUIRER, 18January 2001, p. Al. 40 Id. National Economic and Development Authority (NEDA) Deputy Director General Ruperta Alonzo resigned from his post effective Monday, 22 January. 19 of the 25 commissioners of the Estrada-created EDSA People Power Commission resigned, among them Rep. Wigberto Taiiada, Msgr. Socrates Villegas, Pastor Saycon, Teodoro Benigno, Oscar Villadolid, Victoria Gachitorena, Jose Lina Jr., Lourdes Siytangco, Ramon del Rosario, Jose Alejandro, Teresita Baltazar, Antonio de los Reyes, Patricia Sison, Lito Lorenzana, Maria Montelibano, Christopher Carrion, Margarita J uico, Angelina Catajoy and Luz Emmanuel Soriano. 41 Estrada on Trial: Chronology a/Events, supra note 34. Cavite Governor Jose Mari Bautista also known as actor Ramon "Bong" Revilla, Jr. went to EDSA and joined in calling for President Estrada's resignation. He was a very close family friend of the Estradas, particularly of Estrada's son, Mayor Jinggoy Estrada. Popular actress Nora Aunor also went to EDSA and accused him of beating her when they were still romantically involved. 42 Id.

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43 PHILIPPINE DAILY INQUIRER, 20 January 2001, p. Al. 44 PHILIPPINE DAILY INQUIRER, 20 January 2001, p. Al. Included among those who defected were AFP Generals Calimlim, Delos Santos, Villanueva and Defensor, and PNP General Aglipay. 45 Id. 46 Id. Among those who resigned were Robert Aventajado, presidential assistant for flagship projects; DILG Secretary Alfredo Lim; National Security Adviser Alexander Aguirre; Department of Tourism Secretary Gemma Cruz-Araneta; and Education Secretary Andrew Gonzales. 47 Id. 48 Id. 49 Id. 50 Id. 51 PHILIPPINE STAR, 21 January 2001, p. 1. 52 People Power 2, http://www.iskandalo.com/012001/peoplepower2.html. 53 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. (Sandoval-Gutierrez, J., separate opinion). 54 Id., (Main Decision). 55 Anti-Estrada forces now 200 meters away from Palace, BUSINESS WORLD INTERNET EDITION, 20 January 2001, http://www.bworld.com.ph/oe1202001/bnews7.html 56 Supreme Court meets on legality of Arroyo's oath-taking,BUSINESS WORLD INTERNET EDITION, 20 January 2001, http://www.bworld.com.ph/oe1202001/bnews6.html. 57 Id. 58 Id. 59 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 60 Supreme Court meets on legality ofArroyo's oath-taking, supra note 36. 61 Id. 62 Id. 63 PHILIPPINE STAR, 21 January 2001, p. 1. 64 First Family leaves the Palace, BUSINESS WORLD INTERNET EDITION, 20 January 2001, http://www.bworld.com.ph/oe1202001/bnews10.html. 65 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 66 Id. 67 Id. 68 Id. 69 Id. 70 Id., Concurring opinion of Justice Vitug. 71 TATAD, supra note 38, at 519-520. On 20 January 2001, in an interview with ABS-CBN broadcaster Karina Sanchez conducted immediately after the oath-taking in the EDSA Shrine, Arroyo denied that she ever made any request. Arroyo also said that the Supreme Court acted

112 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

on its own volition in administering the oath to her as President. Part of the transcript interview went as such: SANCHEZ: .... I understand that you asked for an opinion from the Supreme Court. ARROYO: No, no, I didn't. SANCHEZ: Ah, you didn't. Because this was on radio today. ARROYO: No, no. I didn't ask for an opinion. This ... this was ... ahh ... coming from the Supreme Court of its own volition. SANCHEZ: Ah, so ... This has to be made clear, because on radio today somebody had been saying that there was an opinion sought ... ARROYO: No. SANCHEZ: .. .from your camp. ARROYO: No. SANCHEZ: No? That's not true? ARROYO: No. SANCHEZ: I see. So it was a surprise that the Supreme Court did this on its own volition? ARROYO: Yes, yes. SANCHEZ: I see. 72 PHILIPPINE DAILY INQUIRER, 8 February 2001, p.l. 73 Id. 74 TATAD,supra note 38, at 530. 75 PHILIPPINE STAR, 21 January 2001, p. 1; 23 January 2001; pp. 1 and 4; 24 January 2001, p. 3; PHILIPPINE DAILY INQUIRER, 25 January 2001, pp. A1 and A15. 76 PHILIPPINE STAR, 24 January 2001, p. 1. 77 PHILIPPINE DAILY INQUIRER, 25 January 2001, p. Al. 78 The House of Representatives passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines." It also approved Resolution No. 176 "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, extending its congratulations and expressing its support for her administration as a partner in the attainment of the natiun's ;;oals under the Constitution." 79 The Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona. Senators Miriam Defensor-Santiago, Juan Ponce Enrile and John Osmeiia voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. 80 Id. The House of Representatives also approved Senator Guingona's nomination as Vice­ President in Resolution No. 178. 81 Id. Among others, she had signed into law the Solid Waste Management Act and the Political Advertising Ban and Fair Practices Act. 82 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment

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case and that resolution left open the question of whether Estrada was still qualified to run for another elective post. 83 The Court cited a survey conducted by Pulse Asia where President Arroyo's public acceptance rating rose from 16% on January 20,2001 to 38% on January 26, 2001. In another survey cited by the Court, this time conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among theE's or very poor class. 84 MIRIAM DEFENSOR SANTIAGO, POLITICS AND GOVERNMENT 99 (1999). 85 CHAMBLISS and SEIDMAN, LAW, ORDERAND POWER 77 (1971). 86 Alberto T. Muyot,Amendment No.6 and the Ruleo/Law, 59 PHIL. L. J. 140 (1984). 8 7 Interview with Dr. Miriam Defensor Santiago, Office of Dr. Miriam Defensor Santiago, Quezon City, 18 February 2003. 88 ISAGANI CRUZ, CONSTITUTIONAL LAW 4 (2002). 89 Id. 90 Id. 91 Id., citingiSAGANICRUZ,PHILIPPINEPOLITICALLAWll (1987). 92 1987 CONSTITUTION, Article II, Section 1. 93 JOAQUIN G. BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 52 (1996). 94 1987 CONSTITUTION, Article III, Section 1. This section reads: Sec. 1. No person shall be deprived of life, liberty or property without due process oflaw nor shall any person be denied the equal protection of the laws. 9 5 Qualified of course by the age, citizenship, residency and other similar requirements which may be provided by a Constitution or Charter. In the case of the Philippines, these qualifications are provided under Article V, Section 1 of the 1987 Constitution. 96 Planas v. Commission on Elections, G.R. No. L-35925, 22 January 1973. 97 II RECORD OF THE CONSTITUTIONAL COMMISSION 316. 98 1987 CONSTITUTION, Art. VII, Sec. 8. 99 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 100 HECTORS. DE LEON and HECTOR M. DE LEON, JR., THE LAW ON PUBLIC OFFICERS AND ELECTION LAW 354 (2000) citing 63AAm. Jur. 2d 793. 101 BLACK'S LAW DICTIONARY 1311, (7th ed., 1999). 102 This definition has been used in both labor and public officer cases. To name a few: Malave Tours Corp. v. National Labor Relations Commission, G.R. No. 112909,24 November 1995; Triste,Jr., v. Macaraig,Jr., G.R. No. 84113, 12July 1989. 103 Gonzales v. Hernandez, G.R. No. L-15482, 30 May 1961, citing 43 Am.Jur. 22. 104 Id. citing Nome v. Rice, 3 Alaska 602. 105 DE LEON and DE LEON, JR. supra note 100, at 354-355.

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106 Id. at 355, citing 63AAm. Jur. 2d 795. 107 Ortizv. Commission on Elections, eta!., G.R. No. 78957, 28June 1988. 108 ANTONIO B. NACHURA, OUTLINE REVIEWER IN POLITICAL LAW 396 (2002). 109 Ortizv. Commission on Elections, supra note 107. The Supreme Court here held that a stringent interpretation of courtesy resignations must be observed, particularly in cases involving constitutional officials like the petitioner Ortiz whose removal from office entails an impeachment proceeding. The Court applied this rule in a case involving a courtesy resignation, where a resignation letter was written. 110 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 111 supra note 103. 112 Alan F. Paguia, Estrada vs. Arroyo: Rule ofLaw or Rule ofForce?, MALAYA, 20 November 2002, atp.7. 113 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. The Court itself stated as a fact that there was no resignation letter from Estrada. 114 Estrada v. Desierto, G.R. Nos. 146710-15, 3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738,3 April2001 (Resolution). In the 3 April 2001 Resolution, the Court enumerated prior events that built up the irresistible pressure for President Estrada to resign: 1) the expose of Gov. Luis Singson on 4 October 2000; 2) the "I Accuse" speech of then Senator Teofisto Guingona in the Senate; 3) the joint investigation of the speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; 4) the investigation of the Singson expose by the House Committee on Public Order and Security; 5) the move to impeach President Estrada in the House of Representatives; 6) the pastoral Letter of Archbishop Jaime Cardinal Sin demanding Estrada's resignation; 7) a similar demand by the CBCP; 8) similar demands for Estrada's resignation by former Presidents Aquino and Ram~s; 9) the resignation of then Vice-President Arroyo as DSWD Secretary; 10) the resignation of the members of the Presidential Council of Senior Economic Advisers and of DTI Secretary Mar Roxas; 11) the defections of then Senate President Franklin Drilon and House Speaker Manuel Villar and 47 representatives from the President's LAMP coalition; 12) the transmission of the Articles of Impeachment by Speaker Villar to the Senate; 13) the unseating of Senator Drilon as Senate President and of Representative Villar as Speaker of the House; 14) the impeachment trial; 15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; 16) the 11-10 vote of the senator-judges denying the prosecutor's motion to open the 2nd envelope which allegedly contained evidence showing that Estrada held a PhP 3.3 billion deposit in a secret bank account under the name "Jose Velarde"; 17) the prosecutors walk out and resignation; 18) the indefinite postponement of the impeachment proceedings to give a chance to the House of Representatives to resolve the issue of resignation of their prosecutors; 19) the rally in the EDSA Shrine and its intensification in various parts of the country; 20) the withdrawal of support of then DND Secretary Orlando Mercado and the chiefs of all the armed services; 21) the same withdrawal of support by then PNP Director General Panfilo Lacson and the major service commanders; 22) the stream of resignations by

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Cabinet members, undersecretaries, assistant secretaries and bureau chiefs; 23) President Estrada's agreement to hold a snap election and opening of the controversial second envelope. These events, the Court said, were also considered in concluding that Estrada had resigned. 115 Edgardo J. Angara, Erap's Final Hours Told, PHILIPPINE DAILY INQUIRER, 4, 5 and 6 February 2001. 116 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 117 TATAD, supra note 38, at 544. 118 Id. Senator Tatad quipped, "Is the Court now trying to tell the world that its members have been given the faculty to read authoritatively what lies in the recesses ofmen's minds? How much longer before they tell us they actually grow wings and fly at midnight?" 119 RICARDO}. FRANCISCO. EVIDENCE 244 (1996) citing31 C.].S. 919. 120 RULES OF COURT, Rule 130, Sees 37-47. Exceptions to the hearsay rule are as follows: 1) dying declaration; 2) declaration against interest; 3) act or declaration about pedigree; 4) family reputation or tradition regarding pedigree; 5) common reputation; 6) part of the res gestae; 7) entries in the course of business; 8) entries in official records; 9) commercial lists and the like; 10) learned treatises; and 11) testimony or deposition at a former proceeding. 121 FRANCISCO, supra note 119, at 245. 122 State Prosecutors v. Muro, A.M. No. RT}-92-876, 19 December 1994, citing 3 JONES, COMMENTARIES ON EVIDENCE (2nd ed.) at Sec. 1084a. 123 Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc., eta! v. Commissioner of Internal Revenue, G.R. No. L-81311, 30 June 1988. 124 State Prosecutors v. Muro, supra note 122. 125 Feria v. Court of Appeals, eta!, G.R. No. 122954, 15 February 2000. 126 Estrada v. Desierto, G.R. Nos. 146710-15,3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). 127 Id. The Court said the diary was an exception to the hearsay rule under Rule 130, Sec. 26 of the Rules of Court which provides "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him." 128 State Prosecutors v. Muro, supra note 122; Feria v. Court of Appeals, supra note 125. 129 It is thrice removed because, given that newspaper articles are already "twice removed", we add the fact that such a newspaper article was based on another document, the original copy of the diary. 130 Sobremontev. Enrile, eta!., G.R. No. L-60602, 30 September 1982. The Supreme Court held that it was not a trier of facts and it will not inquire into the veracity of allegations of maltreatment and violation of Constitutional rights; Lim v. Court of Appeals, G.R. No. L-41979, 29 February 1988. The Supreme Court held that is not a trier of facts and its appellate jurisdiction is confined to the review of questions of law, except where the findings of fact are not supported by the record or are so glaringly erroneous as to constitute a serious abuse of discretion. 131 Estrada v. Desierto, G.R. Nos. 146710-15, 3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). 13 2 Feria v. Court of Appeals, supra note 125.

116 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

133 Petitioner's Omnibus Motion, 17 March 2001; Petitioner's Second Motion for Reconsideration, 4 April 2001. 134 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001, citing the Angara diary. According to the diary, an hour after President Estrada knew of AFP Chief of Staff Gen. Reyes' withdrawal of support and exclaimed "Ed, seryoso na ito. Kumalas nasi Angelo." (Ed, this is serious, Angelo has defected), he had decided to call for a snap election. 13 5 Id., citing the Angara diary. At 9:30PM, Senator Pimentel repeated his earlier suggestion to the President of making a graceful and dignified exit. 136 Id. 137 Id. 138 Id. 139 Id. 140 Id. 141 Id., citing the Angara diary. 142 Id. 143 RULES OF COURT, Rule 130, Sec. 28. 144 Rule 130, Sec. 29 of the Rules of Court provides: Sec. 29 Admission by co-partner or agent-The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor or other person jointly interested with the party. 145 Estrada v. Desierto, G.R. Nos. 146710-15, 3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). 146 Id. 147 RULES OF COURT, Rule 130, Sec. 29. 148 FRANCISCO, supra note 119, at 194, citing 1 JONES, EVIDENCE 485-486 (4th ed.). 149 Id. 150 Carpiov. Executive Secretary, et al, G.R. No. 96409, 14 February 1992. 151 Villena v. Secretaryoflnterior, 67 Phil. 451, at 463 (1939). 152 Edgardo]. Angara, The Resignation that Never Was, PHILIPPINE DAILY INQUIRER, 6 February 2001, at p.Al. 153 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001, citing the Angara diary. 154 Id. 15 5 Statement from President Joseph Estrada dated January 20, 2001. The statement reads: STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice-President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

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It is for this reason that I now leave Malacafiang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation, I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA."

15 6 Id. The Court said: "In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated Malacafiang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo." 157 Estrada v. Desierto, G.R. Nos. 146710-15,3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). In the 2 March Decision, the Court ruled that, in Estrada's press statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the 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 of inability and 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. 158 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001, citing the Gonzales v. Hernandez, supra note 103. 159 Petitioner's Omnibus Motion, 17 March 2001. 160 Id. 161 Estrada v. Desierto, G.R. Nos. 146710-15,3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). 162 Id. 163 Id. 164 TATAD,supra note 38, at 513, citing the Angara diary. 165 supra note 55. 166 TATAD,supra note 164. 16 7 Id. Angara recalls the President as saying "I will not have the blood of our people on my hands." 168 TATAD, supra note 38, at 500.

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169 ARILLO, supra note 1, at 22. 170 Id., at 501. 171 On 19 January 2001, the military defected. AFP Chief of Staff Angelo Reyes, along with Secretary Mercado and other high-ranking AFP officials joined the Anti-Estrada crowd in the EDSA Shrine and announced their withdrawal of support. 172 Co Kim Cham v. Valdez Tan Keh, G.R. No. L-5, 17 September 1945. The Supreme Court had considered the government in exile of President Manuel L. Quezon to be the de jure government during the Japanese occupation. 173 Petitioner's Omnibus Motion, 17 March 2001. 1 7 4 supra note 61. 1 7 5 Petitioner's Petition for Quo Warranto, 6 February 2001; Petitioner's Memorandum, 20 February 2001; Petitioner's Omnibus Motion, 17 March 2001; Petitioner's 2nd Motion for Reconsideration, 4 April200 1. 17 6 Id. The affidavit reads:

Republic of the Philippines) Makati City) S.S.

AFFIDAVIT

I, EDGARDO J. ANGARA, Filipino, of legal age, married and with office address c/o ACCRA Law Office, 122 Gamboa St., Legaspi Village, Makati City, after being duly sworn in accordance with law, do hereby depose and state: 1. I took my oath as Executive Secretary on 6 January 2001. 2. In the performance of my duties, I was at Malacaiiang Palace with President Joseph Ejercito Estrada for the most part of January 19 to 20, 2001. 3. At 1:20 in the afternoon of 19 January 2001, President Estrada advised me that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines (AFP), had withdrawn support from President Estrada. Later in the afternoon, the Philippine National Police (PNP), likewise withdrew their support from President Estrada. 4. Around 11:00 in the evening of 19 January 2001, I received a call from Secretary Rena to de Villa asking that I meet him for a round of exploratory talks. 5. Through January 19 to 20,2001, I twice met with Secretary de Villa and his panel of negotiators to see if we could break the impasse in the best possible manner. I likewise made numerous phone calls to General Reyes and former Finance Secretary Jose T. Pardo who was also facilitating the negotiating process, in order to define the parameters of a negotiated peace. 6. By 11:00 on the morning of 20 January 2001, General Reyes and I had reached a consensus on five conditions precedent for a peaceful transition, namely: 6.1 Resignation by way of a resignation letter of the President dated 20 January, 2001, which resignation would take effect on 24 January 2001;

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6.2 A five-day transition process commencing 20 January 2001; 6.3 Guarantee of security of the President and his families; 6.4 Functioning of the AFP and PNP under the Vice-President; 6.5 Request by both parties for the impeachment court to open the second envelope.

7. At 11:20 in the morning of 20 January 2001, General Reyes informed me that Vice-President Gloria Macapagal Arroyo had already decided to take her oath as President before the Chief Justice Hilario Davide, Jr. at 12:00 noon of that day. 8. President Estrada did not, and has not, resigned from the presidency, in that: 8.1 The parties never reached an agreement on the five conditions precedent for a peaceful transition, much less were these five conditions precedent ever fulfilled or complied with; 8.2 No resignation letter was ever signed by President Estrada; and 8.3 Absent an agreement on the five conditions precedent to a peaceful transition, President Estrada had no intention whatsoever to relinquish the presidency.

9. On 21 January 2001, I learned that President Estrada had transmitted a letter to former Speaker Arnulfo Fuentebella invoking Section 11, Article VII of the Constitution which covers temporary incapacity of the President to discharge his functions. The letter to Speaker Fuentebella is marked as received by him personally on 20 January 2001 at 8:30 in the morning. An identical letter was received by Senate President Aquilino Pimentel, with marks indicating his office received the letter on 20 January 2001 at 9:00 in the evening. 10.From February 4 to 6, an account of my observations and impressions of the events in Malacafi.ang Palace on January 19 to 20,2001 was published in three parts by the Philippine Daily Inquirer. 11. I am executing this affidavit in view of the misinterpretations of the published account of my observations and impressions of the events of January 19 to 20, 2001. (Sgd.) Edgardo J. Angara Affiant

th SUBSCRIBED AND SWORN to before me this 19 day of March, 2001, affiant exhibiting to me his CTC No. 04181462 issued on February 28, 2001 at Makati City.

177 Id. Paragraph 8 of the Angara affidavit. 178 Article VII, Sec. 11 of the 1987 Constitution provides: SEC. 11. 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.

120 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

Whenever a majority of all the Members of the Cabinet transmits 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. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days 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 Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. 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.

179 The letter reads:

"20 January 2001 Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation oflaw and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA."

180 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001, citing the Angara diary, where Angara said that the letter came from Asst. Secretary Remulla; that he and Political Adviser Lito Banayo had opposed the letter and that PMS Head Mace! Fernandez believed President Estrada would not sign the letter. 181 Id. 182 Id. 183 1987 CONSTITUTION, Article VII, Sec. 11. 184 Speaker Fuentebella personally received the letter at 8:30A.M. on 20 January 2001, while Senate President Pimentel received it on 9:00PM. on the same day. 185 RULES OF COURT, Rule 129, Sec. 1. The Section provides: Section 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime

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courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time and the geographical divisions. 186 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 187 Petitioner's Omnibus Motion, 17 March 2001. 188 Separate opinion of Justice Ynares-Santiago, Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738,2 March 2001, citing the opinions of Messrs. Justice Makalintal and Castro in Javellana v. Executive Secretary, 50 SCRA 30 (1973). 189 50 SCRA30 (1973). 190 Sometimes referred to as the April200 1 EDSA gathering or the 1 May 2001 Siege by those who refuse to recognize that its participants, like those of EDSA I and II, were fighting for their own principles and causes. This was because most of the participants of EDSA III came from the marginalized sectors of society, composed of the poor and were not as wealthy as EDSA II participants, and according to some, were the "dumb masa", illiterate and "non-thinking", and therefore incapable of understanding social and political issues. 191 TATAD, supra note 38, at 554. 192 Estrada v. Desierto, G.R. Nos. 146710-15,2 March2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 193 Id. 194 The House of Representatives passed House Resolution 176 on 24 January 2001 which states: "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, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORTFORHERADMINISTRATIONASAPARTNERINTHEATTAINMENTOF THE NATION'S GOALS UNDER THE CONSTITUTION"; On 7 February 2001, the House of Representatives passed House Resolution 178 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA,JR. AS VICE-PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES"; On 7 February 2001, the Senate passed Senate Resolution 82 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL­ ARROYO'S NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE­ PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES". Senators Miriam Defensor­ Santiago, Juan Ponce Enrile and John Osmefla voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. 195 Among others, she had signed into law the Solid Waste Management Act and the Political Advertising Ban and Fair Practices Act. 196 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001.

122 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

197 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001; Estrada v. Desierto, G.R. Nos. 146710-15, 3 April 2001 (Resolution); Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April 2001 (Resolution). 198 Estrada v. Desierto, G.R. Nos. 146710-15,3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April2001 (Resolution). 199 Id. 200 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 201 Id. 202 1987 CONSTITUTION, Article VIII, Sec. 1. 203 Taiiada v. Cuenco, G.R. No. L-10520, 28 February 1965. 204 Sanidad v. Commission on Elections, G.R. No. L-44640, 12 October 1976. 205 Aquino v. Ponce Enrile, G.R. No. L-35546, 17 September 1974. 206 Marcos, eta!. v. Manglapus, eta!., G.R. No. 88211, 15 September 1989. 207 1987 CONSTITUTION, Article VII, Section 11. 208 1987 CONSTITUTION, Article VII, Section 7. The section provides: Section 7. The President-elect and the Vice-President-elect shall assume office at the beginning of their terms. If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified. If a President shall not have been chosen, the Vice-President-elect shall act as President until a President shall have been chosen and qualified. If at the beginning of the term of the President, the President-elect shall have died or have become permanently disabled, the Vice-President-elect shall become President. Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. The Congress shall provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability or inability of the officials mentioned in the next preceding paragraph.

209 1987 CONSTITUTION, Article VII, Section 8. This section provides: Section 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-

VOLUME VII NUMBER 1 Qanuary- June 2003) 123 auerubin, Muhi & alalia

President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. 210 1987 CONSTITUTION, Article VII, Section 8. 211 1987 CONSTITUTION, Article XI, Section 2. 212 ISAGANI CRUZ, PHILIPPINE POLITICAL LAW 191 (2002). Justice Cruz gives incurable insanity as an example of permanent disability. 213 BLACK'S LAW DICTIONARY 1311, (7th ed., 1999). 214 1987 CONSTITUTION, Article VII, Section 7. 215 1987 CONSTITUTION, Article VII, Section 7. 216 1987 CONSTITUTION, Article VIII, Section 1. 217 Daza v. Singson, G.R. No. 86344,21 December 1989. 218 Sinon v. Civil Service Commission, G.R. No. 101251,5 November 1992. 219 1987 CONSTITUTION, Article VII, Section 11. 220 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 221 Id. 222 Id. 223 Record of the Constitutional Commission of the 1987 Constitution, Vol. II, p. 446. MR. SUAREZ: Thank you, Madam President. In the proposed draft for Section 5 of the Honorable delos Reyes, he employed the phrase "becomes permanently disabled." I suppose this would refer to a physical disability, or does it also include mental disability? MR. DE LOS REYES: It includes all kinds of disabilities which will disable or incapacitate the President or Vice-President from performance of his duties. 224 Exception is taken of Article VII, Section 11 of the 1987 Constitution as this section deals with temporary disability. 225 1987 CONSTITUTION, Article VII, Section 18. 226 1987 CONSTITUTION, Article VII, Section 17. The Philippine National Police operates under the Department of Interior and Local Government. 227 Exception again is taken of the power of the majority of the Cabinet to declare the temporary inability of the President under Article VII, Section 11 of the 1987 Constitution. 228 REVISEDPENALCODE,Art.134. ART. 134. Rebellion or insurrection- How committed- The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. 229 REVISED PENAL CODE, Art. 134-A. ART. 134-A. Coup d'etat - How committed - The crime of coup d'etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against any duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any

124 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

person or persons, belonging to the military or police or holding any public office or employment with or without civilian support or participation for the purpose of seizing or diminishing state power. 23 0 See Commonwealth Act 408, known as the Articles of War. 231 Tanada v. Cuenco, supra note 201. 232 When resolving election-related cases, Congress acts through the House of Representatives Electoral Tribunal and the Senate Electoral Tribunal, pursuant to Art. VI, Sec. 17 of the 1987 Constitution. Congress also determines the authenticity and due execution of certificates of canvass relating to the election of the President and Vice-President, pursuant to Art. VII, Sec. 4 of the 1987 Constitution. 233 1987 CONSTITUTION, Article IX-C, Section 2. 234 The Supreme Court acts as the Presidential Electoral Tribunal, pursuant to Art. VII, Sec. 4 of the 1987 Constitution. 235 For instance, House Resolution No.l76, passed on 24 January 2001, states: "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, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORTFORHERADMINISTRATION ASAPARTNERINTHEATTAINMENTOF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence in the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en bane resolution of the Supreme Court, Vice-President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide,Jr.; WHEREAS, immediately thereafter, members of the international community had extended then recognition to her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation;

VOLUME VII NUMBER 1 (January- June 2003) 125 auerubin, Muhi & Olalia

WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice-President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE, JR. Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General."

236 Id. The second paragraph of the Resolution provides: "WHEREAS, upon authority of an en bane resolution of the Supreme Court, Vice-President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;" 23 7 The Joint Statement reads:

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

(Sgd) AQUILINO PIMENTEL, JR. Senate President

(Sgd) ARNULFO FUENTEBELLA Speaker of the House of Representatives"

126 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

238 Estrada v. Desierto, G.R. Nos. 146710-15, 3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738,3 April2001 (Resolution). 239 1987 CONSTITUTION, Article VII, Section 11. According to Article VII, Section 3, the President may appoint the Vice-President as a member of the Cabinet, without need of confirmation. 240 1987 CONSTITUTION, Article VII, Section 11. 241 The letter reads:

"20 January 2001 THE HONORABLE SUPREME COURT Supreme Court Building Padre Faura St., Ermita, Manila

Attention: Hon. Hilario G. Davide,Jr. Chief Justice

Your Honors: The undersigned respectfully informs the Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his Cabinet members have resigned and the Armed Forces of the Philippines and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as President. In view of this, I am assuming the position of President of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the Republic of the Philippines before the Honorable Chief Justice Hilario G. Davide,Jr., today, 20 January 2001, at 12:00 noon, at the EDSA Shrine, Quezon City, Metro Manila. May I have the honor to invite all the members of the Honorable Court to attend the oath­ taking? Very truly yours, (Sgd.) GLORIA MACAPAGAL-ARROYO."

242 Can be viewed in the documentary "AMA NG MASA'' featuring President Joseph Ejercito Estrada. The ChiefJ ustice's exact words were: ··we are now proceeding to EDSA to administer the oath on the Vice-President as Acting President." He particularly emphasized the word "acting." This particular statement was broadcasted during the morning of 20 January 200 l on the major television networks of the country. The authors recall witnessing this particular event on television during that day. 243 Id. 244 TATAD,supranote38,at519.

VOLUME VII NUMBER 1 Ganuary- June 2003) 127 auerubin, Muhi & alalia

245 Interview with Senator Juan Ponce Enrile, The Jeepney Restaurant, Hotel Inter-Continental Manila, Makati City, 17 February 2003. 246 RULES OF COURT, Rule 130, Section 42. This section provides: Sec. 42. Part ofthe res gestae. - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. 247 FRANCISCO, supra note 119, at 303-304, citing 20 Am.Jur. 556-557. 248 Paguia, supra note 112. 249 Id. 250 Id. 251 Id. 252 Id. 2 '3 Int-?rview with Dr. Miriam Defensor Santiago, supra note 87. 254 DE LEON and DE LEON,JR.,supra note 85, citing63AAm.Jur. 2d 793. 255 BLACK'S LAW DICTIONARY 662 (7th ed., 1999). 256 http://www.i-resign.com/uk/halloffame/viewHOF_24.asp. 257 Id. 25 8 http:/A ww.watergate.info/nixon/resignation -letter.shtml. The letter reads:

"Dear Mr. Secretary: I hereby resign the Office of the President of the United States. Sincerely, (Sgd.) RICHARD M. NLXON"

259 Id. 260 ·~.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice-Acting on the urgent request ofVice-President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve ( 12) members of the Court then present to the ChiefJustice on January 20, 2001 to administer the oath of office to Vice­ President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." 261 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001.

128 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

262 Estrada v. Desierto, G.R. Nos. 146710-15,3 April2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 3 April 2001 (Resolution). 263 Id. 264 Id. According to the Court, it issued a resolution on 20 February 2001, explaining that it never issued a resolution declaring the Presidency vacant on 20 January 2001 and that the Chief Justice never issued a press statement justifying the alleged resolution. 265 Interview with Senator Juan Ponce Emile, supra note 243. 266 1987 CONSTITUTION, Article III, Section 1. 267 Vinta Maritime Co., Inc. v. National Labor Relations Commission, 284 SCRA 656, cited in CRUZ, supra note 88, at 108-109. 268 DE LEON and DE LEON, Jr., supra note 100, at 3. 269 Id., citing National Land Titles and Deeds Registration Administration v. Civil Service Commission, 221 SCRA 145. 270 Id., at 4, citing 63AAm. Jur. 2d 672. 271 Id. 272 CRUZ, supra note 88, at 108. 273 Rene A V Saguisag, Is a Fair Trial/or President Estrada Possible?, 38 SAN BEDAL.]. 59 (2001). 274 Id. 275 Id. 276 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 277 Embatev. Penolio, G.R. No. L-4942, 23 September 1953; Sun Un Giokv. Matusa, et al., G.R. No. L-10304, 31 May 1957. 278 Supreme Court meets on legality ofArroyo's oath-taking, supra note 36. 279 Gonzales v. Commission on Elections, G.R. No. L-52789, 19 December 1980. 280 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 281 The Court's description of the Angara dairy. 282 BERNAS, supra note 93, at 990. 283 Id. 284 supra note 107. 285 Id. 286 1987 CONSTITUTION, Article II, Section 3. 287 1987 CONSTITUTION, Article VII, Section 18. The section provides: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special

VOLUME VII NUMBER 1 Qanuary- June 2003) 129 auerubin, Muhi & Olalia

session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in th~ same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise, he shall be released. 288 BERNAS, supra note 89, at 21. 289 CRUZ, supra note 210, at 218. 290 Id. 291 Id. 292 For instance, the role of Congress in an impeachment proceeding as provided by Article XI, Section 3. The House of Representatives transmits to the Senate the articles of impeachment and the latter acts as the impeachment court. Another example is when the Supreme Court acts as the Presidential Electoral Tribunal in election cases involving the presidency, as provided by Article VII, Section 4. 293 See concurring opinion of Justice Vitugin Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 294 1987 CONSTITUTION, Article XVI, Section 5 (3). 295 II RECORDS OF THE CONSTITUTIONAL COMMISSION 36. 296 Quijano De Manila, Atty. Miguel Arroyo. First Gent of State, PHILIPPINE GRAPHIC, 5 March 2001, at p. 12. Author NickJ oaquin interviewed Atty. Miguel Arroyo, President Gloria Macapagal-Arroyo's husband. Arroyo revealed that the opposition was constantly talking to the Generals during the crisis, convincing them to defect. Retired General Renata de Villa was focused on the Chief of Staff Angelo Reyes and the major service commanders. By 2:00PM. of 19 January 2001, the opposition knew that Reyes had been convinced to join. Reyes' only condition was: "Show us a million people in EDSA so it will be easier to bring in the service commanders." 297 Referendum and plebiscite are the two other modes. 298 Aquino v. Commission on Elections, G.R. No. 120265, 18 September 1995.

130 PUBLIC POLICY Legitimizing the Illegitimate: Disregarding the Rule of Law

299 In the case of the President, the provision is Article VII, Section 4 of the Constitution. The pertinent paragraph reads: "The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all Members of both Houses of Congress, voting separately." 300 1987 CONSTITUTION, Article III, Section 4. 3 0 1 Saguisag, supra note 27 3. 302 Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No. 146738, 2 March 2001. 303 Id., Separate opinion of Justice Ynares-Santiago. 304 Id. 305 Dissenting opinion of Justice Kapunan, Defensor Santiago v. Ramos, PE.T. Case No. 001, 13 February 1996. 306 Aquino v. Commission on Elections, G.R. No. 120265, 18 September 1995. 307 Unless abrogated by the sovereign people through amendment or revision of the Constitution. 308 CRUZ, supra note 88, at 4. 309 Id. 310 Id. 311 G.R. No. 146738, 2 March 2001; 3 April2001 (Resolution). 312 G.R. Nos. 146710-15, 2 March 2001; 3 April2001 (Resolution).

VOLUME VII NUMBER 1 Oanuary- June 2003) 131 auerubin, Muhi & Olalia

Bibliography

Arillo, Cecilia T. Power Grab!. Quezon City, Charles Morgan Printing & Equipment, Inc. [2000]. rd Bernas, Joaquin G. The 1987 Philippine Constitution) A Reviewer-Primer. 3 ed. Manila, Rex Book Store. [c1997]. Bernas, Joaquin G. The 1987 Constitution of the Republic of the Philippines: A Commentary. 1996 ed. Quezon City, Rex Printing Company, Inc. [c1996]. Cruz, IsaganiA., Constitutional Law. 2000 ed. Manila, Central Lawbook Publishing Co., Inc. [c2000]. Cruz, Isagani A. Philippine Political Law. Quezon City, Phoenix Press, Inc. [c2002]. De Leon, HectorS. and De Leon, Hector M. Jr. The Law on Public Officers and Election Law. 4th ed. Manila, Rex Book Store. [c2000]. rd Francisco, Ricardo J. Evidence: Rules of Court in the Philippines. 3 ed. Quezon City, Rex Printing Co., Inc. [c1996]. Harrison, Ross., Democracy. London, Routledge. [c1993]. N achura, Antonio B. Outline Reviewer in Polz:tical Law. Quezon City, Phoenix Press, Inc. [c2002]. Santiago, Miriam Defensor. Christianity versus Corruption. Manila, Worldview Publications. [c2001]. Tatad, Francisco S. A Nation on Fire. Manila, Icon Press, Inc. [c2002].

132 PUBLIC POLICY VOLUME VII NUMBER 1 (January- June 2003) 133 ABOUT THE AUTHORS

RAMON C. CASIPLE is currently the Executive Director of the Institute for Political and Electoral Reform (IPER). He is also the Chairperson of the Consortium on Electoral Reforms, the national coalition of civil society electoral reform stakeholders. He has been with the NGO community, particularly the human rights NGO community, for more than 15 years and has written numerous articles on various topics in the field of Human Rights, development, governance and electoral and constitutional reform.

ANA RHIA TAGORDA MUHI is a 2003 graduate of the UP College of Law. She acquired her Bachelor of Science degree in Psychology from UP in 1999. She is a member of the UP Women-in-Law, UP Charivari and was the former Presiding Officer of the UP Paralegal Volunteers Organization. Rhia plans to practice alternative lawyering.

CHARISSE FIGUEROA GONZALES-OLALlA also graduated from the UP College of Law in April2003. She earned her Bachelor of Science degree in Business Economics from the School of Economics of the University of the Philippines in 1998. She is a member of the UP Portia Sorority and the UP Paralegal Volunteers Organization. The education of the poor is one of her top priorities in life.

SABRINA MARIANO QUERUBIN graduated from the UP College of Law in April2003. She obtained her Bachelor of Arts degree in Political Science from the same university in 1998. She is a member of the UP Portia Sorority and the UP Paralegal Volunteers Organization. Family, friends, brilliant professors and her love for the law are some of Sabrina's sources of inspiration and strength.

EDUARDO C. TADEM is Associate Professor of Asian Studies at the University of the Philippines, Diliman, Quezon City. He is currently doing his doctoral studies at the Southeast Asian Studies Programme of the National University of Singapore.

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Check the appropriate box. o VOL 1 N01 -THE CRISIS OF SUCCESSION (PREMIER ISSUE) I 1997* • The Crisis of Succession I Amanda Doronila • Exchange Rate Policy: Recent Failures and Future Tasks I Emmanuel S de Dios, Benjamin EDiokno, Raul VFabella, Felipe MMedal/a, Solita CMonsod • The Military and Constitutional Change I Carolina GHernandez • Kidnapping, Citizenship and the Chinese I Caroline S Hau • Strategic Policy for Food Security I Walden Bello • Food Security and Rice I 0 D Corpuz • The Politics of Economic Liberalization I Paul 0 Hutchcraft o VOL2 NO 1- GLOBALIZATION IN TURMOIL I 1998 * • The Party's Over I Michael Vat1kiotis • Global Capital :The Philigpines in the Regional Currency Crisis I Gonzalo MJurado • Absorbing the Shock of epression I Vicente B Valdepefias Jr • Democracy, Markets and People in the Context of Globalization I Deepak Nayyar • Eastern Asia in the Next Decade I David Wurfel • The Cosmopolitica/~Today I Pheng Cheah • Clinton in Barong I Michael L Tan o VOL2 N02 - NATIONALISM: A HUNDRED YEARS (CENTENNIAL ISSUE) I 1998 * • The Left's Ventriloquist Act I Armando Malay Jr • Nationalism, Ethnioty and the Asia Pacific I Wang Gungwu • The Muslim-Filipino and the State I Patricio NAbinales • The Revolution Continues I SaturOcampo • Tracking the Nation I Jose Abueva • Directions for the Humanities I Elmer A Ordonez • Rizal and Kartini I Noel Teodoro o VOL2 N03 - POLITICAL CHANGE IN EAST ASIA I 1998 * • Filipino Elections and Illiberal Democracy I Belinda A Aquino • Take the Money and Run? Personality Politics in the Post-Marcos Era I John TS1del • The Asian Economic Crisis and Democracy I Harold Crouch • The Asian Values Debate: A Partisan Assessment I Carl H Lande • The Lava Brothers: Blood and Politics I Jose YOalisay Jr • Authoritarianism, Elections and Political Change in Malaysia I Edmund Terence Gomez & Jomo KS • Whose Business Is It Anyway? Free and Fair Elections in the Philippines I Eva-Lotta Hedman o VOL2 N04 - PEASANTS, PATRONS AND COOPERATIVES I 1998 * • Peasants, Patrons and Cooperatives I Teresa Encarnacion Tadem • History at the Service of the Nation-State I Gregory Bankoff • Nationalism and a Usable Past I Kathleen Weekly • Emancipation within Culture I Raul Pertierra • The Illusions of a Cinematic President I Patrick Flores • Women Warriors: Empowered Women in Southeast Asian Literature I Thelma Kintanar o VOL3 N01 - RIZAL IN THE 21ST CENTURY I 1999* • Rizal in the 21st Century: The Relevance of His Ideas and Texts I Cesar Adib Majul • Interpreting Masonry in the PhilipQines I Melinda Tria Kerkvliet • Women Reinventing Culture: Their Role as Cultural Patrons in Postwar Philippines IMina Races • Local Shakespeares, Shakespearean Locales I Judy Ce!ine !ck • The Fatherland, Nationalist Films and Modernity I Rolando Tolentino • Taxation by Regulation: Searching for a Post-Privatization Framework/ Nimai Mehta CJ VOL3 N02- SOME FICTIONS ABOUT THE LEFT I 1999* • Some Fictions About the Left I Jesus B Lava and Francisco A Lava Jr • Flor Contemplacion: AStudy in Non-Citizenship I Oaiva Stas!Uiis and Abigail B Bakan • Interstate Relations in the new Millennium I Carolina GHernandez • Resisting Land Conversion I OoracieZ Nantes • The Philippines: Forgiving or Forgetting? I John J Carol/ SJ o VOL3 N03 -JOSE ENCARNACION: A MEMORIAL I 1999* • Jose Encarnacion: A Memorial I Emmanuel S de Dios and Raul VFabella • Myths and Fallacies in Economic Policy Debates I Gerardo P Sicat • Corruption: A Framework I Emmanuel S de Dios • Where Are We in Tariff Reform? I Gwendolyn R Tecson • Making Sense of Seattle: Distributional Conflicts, Institutional Diversity and the End of the Cold War I Raul VFabella • Competition Promotion and the Prices of Drugs and Medicines I OrVIlle Jose CSolon and Eduardo PBanzon o VOL3 N04- CONTEMPORARY PHILIPPINE CULTURE I 1999* • Images of the Middle Class in Metro Manila I Maria Cynthia Rose Banzon Bautista • Dealing with the MILF and Abu Sayyaf: Who's Afraid of an Islamic State? I Nathan GtlbertQuimpo • The End of Bilingual Education in the Philippines? I TRuanni F Tupas • Regulating Cyberspace: Can It Be Done? I AmadoJr MMendoza o VOL4 N01 - 2000 • Colonial Name, Colonial Mentality and Ethnocentrism I Nathan Gilbert Quimpo • Revisiting the Maritime Territories and Jurisdictions of the Philippines I Jay LBatongbacal • Some Marine Transport Concerns I Glenn DAguilar o VOL4 N02 - 2000 • Water for the 21st Century: Vision to Action for Southeast Asia I Angel A Alejandrino, Leonardo Q Uongson, Mai Flor and Yolanda B Gomez • The Philippine Overseas Employment Program: Public Policy Management from Marcos to Ramos I Jorge VTigno • Stabilizing Rice Prices in the Philippines I Ramon L Cia rete • The State of Road Safety in the Philippines I Ricardo GSigua o VOL5 N01 - 2001 • Corruption in the Philippines: Framework and Context I Emmanuel S DeDios and Ricardo DFerrer • The Industrial Anatomy of Corruption: Government Procurement, Bidding and Award of Contracts I Amado MMendoza Jr • Tender Mercies: Contracts, Concessions and Privatization I Marie Antoinette GVirtucio and Melchor PLalunio • Corruption and Weak Markets: The BW Resources Stock Market Scam IClarence Pascual and Joseph Lim o VOL5 N02- 2001 • Integrating Gender Concerns in Anti-Poverty Strategies I Rosalinda Pineda-Ofreneo and Ma. Lourdes Acosta • The Impact of Structural Adjustment Programs (SAPs) on Health in the Philippines I Nymia Pimentel Simbulan • What Ails the Philippine Minerals Industry? I Vidor B Maglambayan • Challenges to Sustaining Primary Health Care in the Philippines I Victoria ABautista o VOL6 N01 - 2002 • Effective Screening for Diseases Among Apparently Healthy Filipinos: ANeed for Philippine Guidelines on Periodic Health Examinations (PHEX) I Dante D. Morales, Antonio Miguel L. Dans, Felix Eduardo R. Punzalan and Mario R. Festin • The Mandatory Death Penalty for Perpetrators of Incestuous Rape: The Point of View of Child-Survivors/ Bernadette J Madrid and Mariel!a Sugue-Castil!o • Assessment of the Effectiveness of Medical and Surgical Missions in the Philippines I Juan Pablo Nanagas, Oscar Picazo, Bienvenido Ala no and Emelina A/mario • An Assessment of the DOH Procurement System I Jaime Z. Galvez Tan, Eireen B. Vtlla, Pedrito B. de/a Cruz and Carlo Tapa ran

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The Party-List Path to a Broadened Philippine Democracy RAMON C CASIPLE The concept of a party-list system is usually associated with the establishment and functioning of a parliamentary system of government. This was in fact the prevailing assumption of the 1986 Constitutional Commission when it decided on inclusion of the party-list system in the 1987 Constitution. This paper explores the historical context of the Philippine party-list system. It attempts to delineate its weaknesses and strengths from this historical perspective and proposes measures for further developing its potentials for broadening democracy in the Philippines. It proceeds in this analysis from an optimistic appreciation of the democratic space spawned by the events of EDSA 1986 and has since then survived the countless challenges of crisis situations, both economic and political, as well as the continuing pressures from the militarizing Right and the armed Left rebellions. This paper will seek to define the path to reforming the party-list system in the country. It will also try to frame this reform agenda within the broader arena of the political struggle for democracy in the Philippines. '

Official Development Assistance to the Philippines: can it be Reformed? EDUARDO C TADEM This exploratory paper attempts to examine immediate issues in official development assistance to the Philippines in the light of state policy pronouncements and announced shifts in donor policies. While the observed donor shifts refer specifically to Japanese ODA, given the dominant role played by Japan in both bilateral and multilateral assistance and the positive impact that such shifts could generally bring, they will be used as a yardstick to evaluate other donor countries as well. As a time frame, the study will look into ODA from 1986 onwards, or after the end of the Marcos regime.

Legitimizing the Illegitimate: Disregarding the Rule of Law in Estrada v. Desierto and Estrada v. Macapagai-Arroyo SABRINA M QUERUBIN, ANA RHIA T MUHI and CHARISSE F GONZALES-OLALlA The Supreme Court, in the consolidated cases of Estra4a v. Desierto and Estrada v. Macapagal-Arroyo, held that Estrada had resigned, based on "his acts and omissions before, during and after 20 January 2001, or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue." By virtue of such resignation, the Court validated Arroyo's ascension to the presidency. This paper will examine the reasoning of the Court in deciding the issue of President Estrada's resignation in light of the facts and circumstances surrounding the case and the prevailing Constitutional and statutory law and jurisprudence on the matter. Although the Court passed upon other issues, the issue of resignation was the very lis mota of the controversy upon which the other issues depended. In upholding the contention that Estrada had resigned, it is argued that the Supreme Court violated fundamental Constitutional and due process tenets, in disregard .of the rule of law, justice and fair play.