Given rising election fever, the imperative to confront the issue of former President Joseph Estrada cannot be more timely. The implications of Estrada’s recent survey rankings hinge on three words within the Constitution. That sides have been taken opposite the statutory verbiage attest to the urgency of settling between sovereign will and solid statutes.
More than simply the presidency itself, it is our democracy being wagered. That Estrada was the last president popularly elected through processes untainted by charges of cheating cannot be denied. Should there be a repeat reinforcement of popular will, the resurrection of trust in suffrage facilitates the restoration of democratic institutions waylaid under Gloria Arroyo.
Surveys depict Estrada a front-runner. If that reflects emergent reality then it reflects sovereign will. Against the Constitution it overwhelms the novel “constructive resignation” paradigm that entered jurisprudence and institutionalized invasive powers to peek into a president’s mind and infer sacrosanct intent.
Fortunately, should sovereign will challenge law, preambles arbitrate.
On Estrada’s eligibility to seek the presidency as a former president and private citizen to whom political rights were restored, the relevant constitutional provisions are Section 4 of Article VII.
To wit, “THE President shall not be eligible for ANY REELECTION. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at ANY time.” (Caps supplied)
The second sentence applies to Arroyo. It’s irrelevant. Unfortunately the three highlighted words can aggravate into an impasse.
In a legal opinion in conjunction with other arguments, Atty. Aquilino Pimentel III says the article “The” in the phrase “The President” can refer only to the “particular holder of that title”, the incumbent.
More than semantics, the article “The” identifies and specifies. Had “A President” been written, then the terms include former and incumbent executives. Within the same sentence with the adjective “any”, the latter, universally encompassing, ambiguity results between specificity and universality.
Some label this simplistic. However, in legal construction, where laws don’t specify, no specification applies. Inversely, Dean Jorge Bocobo wrote, “It does not say “A” President, or “Any President”, or “All Presidents”. It says THE President.” Nothing can be more specific.
Those arguing ineligibility say “any” encompasses all elections, immediately or after intervening terms. They similarly invoke legal construction where absent qualifications, none applies.
Combining “specificity” with the term “reelection” is the crux of the issue. Backstopped by Former Chief Justice Andres Narvasa, former SC Justice Serafin Cuevas, Ateneo Law Professor Alan Paguia, U.P. Professor Randolph David, Former Justice Minister Estelito Mendoza, Attorneys Jose and Jay Flaminiano and former Senator Rene Saguisag, Pimentel says the “incumbent’s advantage” underlies the “reelection” prohibition. Accordingly, the incumbent is pinpointed. Because of the specificity of “The President”, Pimentel’s argument turns formidable.
Former Constitutional Commissioner Rev. Joaquin Bernas, S.J. disputes Estrada’s eligibility. Others abdicate to judicial prerogatives.
Amid the discord, there is relief. Writing on constitutional limitations, Thomas McIntyre Cooley, the 25th Justice of the U.S. Supreme Court wrote, “The Constitution does not derive its force from the convention which framed it, but from the people who ratified it. The intent to be arrived at is that of the people.”
In Lambino et al, vs. COMELEC (G.R. 174153, October 25, 2006), “The intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed…”
“Where there is controversy in the interpretation of the Constitution, it is not only the intent of the framers that must be considered but the intention of the people who ratified it”.
In Tecson and Desiderio versus COMELEC (G.R.161434, March 3, 2004), concurring with ponente Justice Jose Vitug, Chief Justice Reynato Puno wrote, “…the better policy approach is to let the people decide who will be the next President. For on political questions, this Court may err, but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people”.
Further concurring, Justice Angelina Sandoval-Gutierrez likewise wrote, “This right to choose cannot be subtly interfered with through the elimination of the electoral choice… Disqualifying a candidate, particularly the popular one, on the basis of doubtful claims does not result to a genuine, free and fair election. It results to violence.”
Nothing is more eloquent. On political questions, the sovereign people cannot err.
Popularity: 2% [?]
If you put a convicted plunderer in office again. He will surely
plunder. This time more carefully. You hire a convicted thief
as your security guard in your house ? We are fools, indeed…
Dear Haydn,
Bantay Salakay Society tayo. There’s the MMDA that is a mulcting authority. There’s the armed forces and police, the largest criminal organization in the country. And there’s GMA. All paid with taxes and protected by the constitution.
And then there’s the provision in the pardon statutes that restores full political and civil rights that allows Estrada to attempt another try at the presidency.
Perhaps, the law should disallow absolute pardon for those who were convicted criminals from crimes committeed while in office. Had the pardon not been absolute and had the political rights not been restored then Estrada’s options would have been limited.
The largest stumbling block here is that it is criminals who write the laws regardless of the constitutions intent.
Bantay Salakay nga.
Regards,
Dean
No, the constitution is not the problem. It is US, voters, easily scammed by these people. Can we distinguish between a bad character and a good character
running for office ? We have not matured in our choices as a people.
@that and the fact that our election process leaves much to be desired…
I would contend that it was Dean Valdez who has given the best wisdom on the interpretation of ‘constructive resignation’, something that to him is nowhere found in the Constitution as well as on the matter of whether or not Erap can still run for the presidency.
His rather lesser counterpart, Atty. Makalintal failed to be more convincing that Dean Valdez – but that is understandable.
In the end, it is the work of legal scholarship to come up with the best interpretation taking into account all ‘schools of thought’ on the subject. Meantime, I do think that Atty. Makalintal’s rather ambiguous argumentation falls short of the mark.
I wonder then why Malacanang cannot seem to recruit the best legal minds there are.
Erap should still be prevented from making it back into Malacanang. No one convicted of a felony (even if later pardoned) should be eligible for Supreme Court Justice, Vice President, President, or Speaker of the House.
As GMA and others have said, the 1987 Constitution needs to be discarded and another one put in its place — the sooner, the better.
And this sentence
is just a prettier expression of this one:
I can imagine that the Constitution-writers did intend to allow a second 6-year term for a president, as long as the terms are not consecutive.
Dear Up n Grad and Primer,
I think that the constitutional framers did not foresee the constructive resignation scenario and thus were unable to plug the loophole. Although I really beleive that they did not intend to have a reelected president at ANY time whether consecutive or after an interval, because they failed to write this in, they left a hole enough for Estrada to try and squeeze through.
I agree with you that Dean Amado Valdez’s interpretation is one of the better arguments. Better than Makalintal’s. Against Valdez’s there is the argument by Alan Paguia (published in a book) which got him suspended indefinetly.
Both araguments argue a novelty. Constructive resignation is something new and unheard of. Same with the arguments that might allow Estrada a second chance.
This is why the Supreme Court this time around, must write clearly jurisprudence that will definitively state the constitution’s intent – that only one term, completed or not, is allowed. The legal precedence that I mentioned and quoted from Justice Puno et al were from the disqualification cases thrown against Fernando Poe and were based on citizenship issues. The SC can argue that they are neither appropriate jurisprudence nor do they apply to a president who had already served kahit bitin.
Regards,
Dean
Neal Cruz reports that the constitutional convention did decide by one vote this question of banning consecutive re-election versus “absolute re-election”. But the truth is not defined by what gets printed in the Inquirer, so the Supreme Court may need to step in should Erap decide to run.
http://opinion.inquirer.net/inquireropinion/columns/view/20090828-222349/Peoples-intent-is-correct-meaning-of-Charter
Dear Up n Grad,
Yes. Tama ka. That is precisely my point. The SC will have to step in. And the more “results” come out of surveys, whether credible or not, those will have an effect on the public’s acceptance of whatever the SC decides.
I don’t envy the SC as they will have to deal, not only with the constitutionality issues but also the political issues, openly or discreetly. These include the results of surveys.
If they factor in both the intent of the framers and the intent of the ratifiers, what would be the mechanism to measure both. One can always ask the surviving framers, but how do we measure the intent of the raifiers – an intent based on their understanding of what was presented for ratification?
The one vote margin you refer to is indicative of the “iffiness” of the issue. That kind of uncertainty is the kind that allows Estrada the bravado to attempt a second run at the presidency.
It is unfortunate that the incumbent is so despised that the question of reelecting Estrada is even on the table simply to forestall the forces that she might apply in 2010.
Regards,
Dean
That Estrada would be considered a viable candidate says that the hard working workers who support him are disenfranchised and wish to protest their abandonment in some way other than with kidnappings and blowing up buses.
Joe
did anybody notice some unseen “power has deleted my comments asking for the qualification of pagunuran and the author of this post (to judge the legal argument of valdez over that of makalintal). what is so wrong about inquiring whereof one speaks?
Dear Joe America,
It should not be a choice between Estrada and blowing up buses and kidnapping. But that it is for some, as you correctly pointed out, shows the desperation of many who do not see in Villar, Mar and the rest, a solution.
Dean
As in the words of a non-lawyer who attended NAZI lawyer dominated Wannsee Conference.
Ah.. lawyers….. They make a living on the meanings of words and kill in the end.
The lawyers then interpreted “resettlement” for “mass murder”. We cannot completely leave it to the Atornis the meaning of whether Erap can run again or not. We may have a Endlosung for the Philippines if we did so. This discussion should encompass the whole Pinoy body politic.
blackshama,
There are good lawyers and bad. I suppose if you are guilty of the crime for which you are being tried, you appreciate the skills of a “bad” lawyer, who sets aside morality for the effort to set you free. Especially if you can pay him enough to abandon his conscience and argue vigorously on your behalf.
Joe
the worst “lawyers” are those pretending to be one.
Dear Joe,
You are so right. There are lawyers, and there are smart-ass lawyers. And then there are ambulance chasers. The U.S. real estate sub-prime crisis must have spawned some of those.
In the Philippines, there are those who graduated from U.P. Law, and then there are the rest, many who can’t find a decent job in the country, not because there aren’t any but because they are not good enough.
There’s also, the “abogado de campanilla”- those that you refer to. Those are the types that give the profession a bad name.
Regards,
Dean
UP n, are you in favor of rigging the election (apology to cvj) to prevent Erap from making it into Malacanang again?
which is the greater good: the people elect or the elite select?
nope… elections have to run clean.
Ah. The next logical question then would be: Do you want Jamby to stop harassing Villar so Erap cannot catch up with him in the survey? Would that be a fair question to you, eh, UP n?
Jamby can harass Villar to her heart’s content. Anything that is legal, Jamby can do.
It is also perfectly legal for the business-, military- and opinion-leaders to impress upon Erap that his days in the sun with Malacanang as his stage has already passed him by.
A most excellent way to stop Erap is for the party-leaders to deny Erap a standard-bearer mantle.
Hehehe, UP n, you are wishing for the stars. The other wannabees are faltering in the surveys. Unless the clamor for Noynoy got so strong, or Villar pulls away in the surveys, then you guys will be having sleepless nights.
Hmm, the outside perspective would have the thought: “I thought you guys had him trumped out! Now you voted him back in? You can’t make up your minds…” :/
who ‘you guys’? you mean the cellphone partygoers in edsa 2 who thought a street concert is far more enjoyable than witnessing the closure of an impeachment process, no matter how politically skewed the outcome was seen to be?
To them outside, the Filipino population would more likely be seen as a whole than a bunch of squabbling tribes.
Dear Friends,
The following was received at our news desk from Dean Amado Valdez. I am posting it here without comment.
Regards,
Dean
Dean Amado Valdez of the UE College of Law affirmed yesterday that former President Joseph Estrada can run for President anew next year, explaining that the Constitutional prohibition against the President seeking reelection applies only to the incumbent who had completed at least four years in office.
Valdez said that this intent of the framers of the 1987 Constitution was very evident when the chair of the Constitutional Commission (ConCom), Justice Cecilia Munoz-Palma, made it known that the ConCom delegates were voting to bar the reelection of a President who had completed a six-year term.
Valdez pointed out that Estrada is not the incumbent, and that he only served for two and a half years as President following the seizure of power by the Arroyo administration in 2001.
He added that President Arroyo herself, after taking over the Estrada presidency, was able to run for reelection in 2004 because of the limitation that only those who had served for more than four years as President are barred from being reelected.
Further, Valdez said that Estrada cannot be considered to have resigned as President as the term used by the Supreme Court to describe his departure from office, “constructive resignation” does not exist and thus has no real legal meaning.
Valdez said that the SC was not even unanimous insofar as “constructive resignation” was concerned, and that it was apparently coined to recognize “a fact” – that Arroyo had already assumed power.
He added that resignation must be voluntary if it was to be taken as a relinquishment of the full term of office.
The position aired by Dean Valdez was congruent with earlier statements made by former Chief Justice Andres Narvasa, former UP College of Law Dean Pacifico Agabin and Senate President Juan Ponce Enrile that there is nothing in the law that would bar Estrada from seeking the presidency in 2010.
Agabin had said that the prohibition was against the incumbent to stop him or her from using the Office of the President to get reelected.
Enrile and another lawyer, Aquilino “Koko” Pimentel III pointed out that Estrada would be running as an ordinary citizen and not as the incumbent president.
Estrada had said that he would be forced to run for President if the opposition would fail to unify and field a common candidate in 2010.
He said he will run if only to prevent the reoccurence of 2004, during which the presidential-vice presidential tandem of the late Fernando Poe Jr. and Senator Loren Legarda was widely believed to have been cheated of victory.
just another “lawyer’s opinion” (whether or not he is a dean of a law school is irrelevant). now his job is to convince the supreme court to get “on board” to his way of thinking.