Not Even The End Can Justify People Power As A Means

MANUEL L. QUEZON III undertakes a futile search in his PDI column today titled, "We saw the alternative" (which silently continues, "and we still don't like it!") as he considers the evolving tableu of the 2007 Midterm Elections. But as long Joseph Estrada and Gloria Macapagal Arroyo are still around, people who want to save Edsa-style People Power ideologically, are forced into a bad choice. They cannot at the same time get rid of its most brilliant practitioner and beneficiary, without potentially resurrecting someone they destabilized from Day One and helped to overthrow six years ago. The problem is that the defenders of Edsa Dos and "peaceful" People Power still defend the means used to end Erap as Constitutional, morally righteous or at worst, necessary to "prevent violence." The insistence that People Power is inherently peaceful, despite the devastation of the Constitution wrought by Edsa II and the contrary evidence of Edsa III, is the consequence of an obsession with the People Power notion itself, which required a judicial putsch in order to keep it from turning inexorably violent.

Of course, Joseph Estrada is still alive -- both physically and politically -- because what actually happened to him on Saturday, 20 Juanuary 2001, six years ago this weekend, also happened to the Philippine Constitution and to republican democracy itself -- they were overthrown at Edsa Dos by the Chief Justice himself, in the most simple, but lethal act of swearing in the Vice President without DUE PROCESS. It was a judicial putsch, plain and simple. Davide, our Judicial Emperor, has no clothes, and yet, has been appointed to be our permanent representative to the United Nations.

Before proceeding to Manolo's core concern for an alternative, let me correct his statement that there are only four ways under the 1987 Constitution for a Presidential succession to occur. There are in fact five and exactly five conditions in the 1987 Philippine Constitution, under any of which, the Presidency ends and the next one begins--

(1) The President dies.
(2) The President resigns.
(3) The President is impeached by the House of Representatives, convicted by the Senate.
(4) The President becomes permanently incapacitated.
(5) The President's term in office expires.

This list is complete and exhaustive and guarantees that the country is never without a Chief Executive. One of these conditions MUST exist, as specified explicitly by provisions of the Constitution, for a new President to assume office. Yet History will note that on Saturday, 20 January 2001, NONE of these five conditions applied to Joseph Estrada. Not one! None.

The passage of time only establishes the facts with greater clarity. That on that day, the Chief Justice of the Supreme Court, Hilario G. Davide, Jr., mysteriously and inexplicably appeared before a religious shrine in front of a shopping mall along Epifanio de los Santos Avenue (EDSA), and suddenly swore in the Vice President, Gloria Macapagal Arroyo, as the acting President, before "a Hooting Throng" that TIME Magazine called Mob Rule. Yet, at the moment Davide administered the oath to Gloria Macapagal Arroyo, shortly after noon on that day six years ago this Saturday, then President Joseph Estrada (1) had not died; (2) Erap had not resigned; (3) Erap had been impeached by the House but was never convicted as his Senate Trial was ongoing, though the Prosecution walkout had precipitated the massive demonstrations; (4) Erap may have been 'incapacitated' on that day out of personal vice and lifelong habit, but not in the manner specified by the Constitution; (5) Erap's six year term had over three years to go, and was allegedly completed by GMA in 2004, allowing her to run for her own six year term.

How did such a Presidential succession occur and yet be deemed "Constitutional throughout"? Well, there is that curious and curiouser innovation of a CONSTRUCTIVE RESIGNATION conjured up from newspaper articles and contructed from the hurriedly scribbled notes of a young Angara acolyte in the last breathless days of Erap in the Palace-by-the-Pasig, down which he was later forced to retreat, like a crocodile his carpers cried, to Greenhills and his present state of suspended incarceration. There is also that contribution of the Davide Court to the genre of Orwellian judicial euphemism--WITHDRAWAL OF SUPPORT--applied to the actions of then Armed Forces Chief of Staff Angelo T. Reyes, whose self-declared mutiny is really one for the books, and has become a spot ad and sound bite on ABSCBN News ANC, with Pia Hontiveros declaring that in the case of Edsa Dos, we should call a spade a spade.

Perhaps the most illuminating alternative way of looking at Edsa Dos is by concentrating on the acts of the Chief Justice Hilario Davide and Chief of Staff Angelo Reyes, and asking, did they do their duty? What, for example, was the AFPCOS doing at the big anti-Erap demonstration at the Edsa Shrine on Friday, 19 January 2001, along with all the major Service Commanders? Mutiny is what Gen. Reyes himself had gingerly called it. But the Supreme Court two months later called it "withdrawal of support". And on the very next day, Saturday, 20 January 2001, what was the Chief Justice's official or unofficial business in what was undeniably "a partisan political activity?" What case or cause brought him to Edsa? Whatever happened to the cold neutrality of an impartial Judge? Was Davide not at that moment still the Presiding Judge of a Senate Impeachment Trial of the President? What in the world was he doing at a swearing in??
What justiciable case or cause of action was before Davide as Chief Justice of the Supreme Court, that would cause him to appear there at that moment to create a Presidential Regime Change by the singular act of swearing in the Vice President? What Resolution or Decision or Order of the Supreme Court caused him to violate the plain, direct and incontrovertible provisions of the Constitution that govern Presidential successions? In other words, did the Chief Justice of the Supreme Court do what he was supposed to do? Why did he not reconvene the Senate Impeachment Trial of Joseph Estrada? How could the Supreme Court believe that Erap was permanently incapacitated but not undertake all the required verifications of the faxed-in claim of the Vice President, which had arrived at Davide's Padre Faura offices at 11:26 am of that very same Saturday? How could Davide and the Supreme Court Justices--convened in a "rump session" of the Supreme Court, for there was no properly processed case before them that day)--how could they have decided the Presidency in such an illegal and wrongful manner. Justice hurried was justice buried!

If one accepts the Supreme Court's decisions of two months later, in Estrada v. Arroyo, that Chief Justice Davide (who did not participate in that case) was not culpable of any crime, that he did everything the Constitution required during those events, along with AFP Chief of Staff Angelo Reyes, and Vice President Gloria Macapagal Arroyo, then one accepts the Fairy Tale of Edsa Dos that what happened was "Constitutional throughout." What a laugh! Even the freshmen law students have been scratching their heads for six years!

I have no doubt that it will be the ineluctable verdict of History that Edsa Dos was a major anomaly for Constitutional Democracy in the Philippines, whose final resolution is not even within sight. The problem is one, Joseph Estrada. His plunder case is in suspended animation because of the tacit agreement of both sides that in fact, his case cannot be tried by the Supreme Court. Indeed, I believe, along with lawyer Alan Paguia, that Erap has lost the presumption of innocence because he was denied DUE PROCESS at Edsa Dos, and has been prejudiced by the decisions in March and April 2001 which absolved all others involved, like Davide, Reyes and Macapagal Arroyo. In effect, a valid trial of Joseph Estrada cannot be held because he accuses the Davide Supreme Court itself of having overthrown him illegally, an accusation that only grows in credibility with the passage of time and clarity with which people now see those historic events. It is to the advantage of the Palace to maintain this status quo however, because it knows that the critical "Middle Forces" can always be relied upon to stay with her if the alternative is Joseph Estrada.

Previous posts on this topic include The Real Coup d'etat with links to many more.

Twink Macaraeg's ANC televised debate on People Power last Wednesday night featured the noteworthy arguments of Ms. Antoinette Quiogue about how People Power weakens Philippine democratic institutions. It encourages me that the long road to setting History right on People Power and Edsa Dos is worth traveling upon, no less for the scintillating intellectual company.