Friday, September 21, 2007

A Just and Fair Resolution of the Case of Joseph Estrada

A complex moral dilemma clearly faces the country as a result of the plunder conviction of Joseph Estrada and the evident plan of the Palace to get him to accept a PARDON of some kind. Now whether you are pro- or anti-Erap or neither, let me for the sake of the argument layout this moral dilemma.

A moral dilemma means it is not clear to moral and reasonable human beings what the right thing to do is in a given situation.

That situation, if I may summarize the matter in a few quick steps is:

(1) The democratically elected President Joseph Estrada was removed from Office in 2001, more than three years short of his Constitutionally mandated six year term.

(2) Joseph Estrada was charged with and convicted of plunder in 2007, six years later.

If Erap accepts his conviction and does NOT appeal his plunder conviction in the Supreme Court, the President can grant him pardon. If Erap appeals his case, and maintains his innocence, the President can NOT grant him pardon, absolute or otherwise.

The dilemma lies on the Chief Executive, in whom alone resides the power of executive clemency for convictions that are deemed final and executory, a matter to be declared by the Supreme Court. (That is why the earliest Erap could be pardoned is Christmas, according to Ronnie Puno).

If Erap does not appeal, should the President pardon him for committing plunder?

Frankly I think it would be morally bankrupt of her to do so, for what kind of example and precedent would that set? Who's next? The Marcoses? The Abu Sayyaf beheaders? Jose Maria Sison? Benjamin Abalos, Mike Arroyo, herself? It would establish a new tradition for getting away with plunder and its hairier siblings, in which every President gets to break the law and steal the citizens blind, knowing full well that pardon awaits, from his or her successor.

Although I don't believe it some people are floating the idea that Erap is open to the idea of an "absolute and unconditional pardon". [Update: Here is Atty. Rufus Rodriguez's denial they are negotiating for a pardon. ]

This would erase not only the sentence of reclusion perpetua (20-40 years in jail, no "life imprisonment as such under Philippine law). It would also restore to Erap the civil and political rights stripped by conviction, such as the right to run for public office. Erap has expressed complete disinterest in returning to politics, professing a desire to do Museum Work for the rest of his natural life. But that could change and it could become a testable political question whether or not he could run for President in 2010. He doesn't have to since he has the professed support of most of the 2010 front runners like Manny Villar (who headed the Genuine Opposition last May) and Mar Roxas (I don't know why.)

I think a swift pardon is an immoral, unjust and unfair resolution to the dilemma because it mocks the sentence of punishment deemed appropriate to the crime of plunder by the Sandiganbayan, reducing it in effect to time served in Tanay.

Moreover it does not resolve the real moral dilemma at hand. For surely, the most important issue is not whether Erap has suffered enough or has been punished enough, but whether our system of justice has worked justly, fairly and morally in his case. In deciding what to do now, our greater interest cannot possibly be in Erap per se, but in the welfare, peace of mind and lawful order of our society.

For it must not be forgotten that there were TWO steps that set up this dilemma: (1) as president, he was removed from Office and (2) as ordinary citizen, he was criminally charged and convicted of plunder.

I frankly don't think there was anything "wrong" with the procedures of the Sandiganbayan in Step 2, but there was something stupendously wrong with the first step: how he was removed.

I believe he was removed illegally and unconstitutionally, others think otherwise.

But it is precisely this DISAGREEMENT that must be settled with definiteness and finality in a full blown appeal to the Supreme Court, because IF President Joseph Estrada was removed illegally and unconstitutionally then he should be acquitted by the Supreme Court of plunder on the grounds that the Sandiganbayan never acquired legal jurisdiction over him.

If the Supreme Court however insists that its Chief Justice's acts on 20 January 2001 were indeed justified and legal, and if they uphold the Court's decision in Estrada vs. Arroyo in March 2001, then they MUST convict Erap with finality of the charge of plunder.

Therefore, I think that the just and fair resolution of the moral dilemma presented can only be accomplished in the Supreme Court in the context of an Erap appeal.

A pardon would be morally ultra vires until after such a determination by the present Supreme Court of its honest judgment of what a past Supreme Court had done.

In so much as the case of Joseph Estrada involved a titanic and destructive clash not only between individuals and social classes, but also of the three main institutions of government, the Presidency, the House and Senate and the Supreme Court, it's resolution is as much about them as it is about him.

RELATED: Our Bantay Salakay Supreme Court and Separation of Powers

Senate President Manny Villar praises Filipino maturity for generally accepting the verdict, but expresses the opinion that Erap is not guilty of plunder.
Senator Mar Roxas has filed a resolution urging the President to pardon Erap on humanitarian grounds "at the appropriate time" and "in order to finally and sincerely put a just closure to national divisiveness".

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