Can Erap Run Again?

This is both a LEGAL and a POLITICAL question. But the answer is very different depending on which you think it is and how you understand the event pictured nearby!

Now it turns out that Fr. Joaquin Bernas had not yet given the Last Word on this issue last week, for today he gives more juicy details of the Concom deliberations upon the issue of Presidential term limits in Presidential Re-election.


At the center of the legal question is the concept of TERM LIMITS in the constitution placed on ALL government officials in one form or another to prevent dynasticism and the essential unfairness of the "Incumbent's Advantage". Presidential term limits in the the 1987 Constitution are found in:

Article VII Executive Department Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter.

The President shall not be eligible for any re-election.

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.

I like analysing Constitutional provisions and issues using the tools of English Grammar and Composition. So let us break down the last two statements above as follows:

SUBJECT	VERB	OBJECT
The President	shall not be eligible for	any re-election
No person who has succeeded as President and has served as such for more than four years [OR: Any person who has succeeded as President and has served as such for NOT more than four years]	shall be qualified for	election to the same office at any time

We can make the following categorical statements:

The incumbent President of the Philippines CANNOT run for immediate re-election to the same office UNLESS he or she first succeeded to the Presidency from a lower office such as Vice President, Senate President, or House Speaker.

Conversely, the incumbent President of the Philippines CAN run for immediate re-election IF he or she became the President by succession and not by direct vote of the people.

THE RIGHT TO SERVE THE PEOPLE Why should this be so? Why should a person who merely succeeds to the Presidency and serves less than two thirds of the full six year term be generously accorded by the Constitution with the right and privilege to run immediately for "election to the same office" with the incumbent's advantage, or at any time in the future? Perhaps it is because the Constitution values the privilege of being directly voted by the people to serve as President of the Philippines so highly, that no one should be deprived of it by the actions or circumstances that engulf another. For example, suppose an incumbent President were to RESIGN from office just a few days before the end of his or her six year term. The Vice President would validly succeed to the Presidency, but without the above provision, the new President would serve just those few days and then be ineligible to run for election to the same office of the Presidency, effectively deprived of his or her own full turn at the Helm.

The Constitution clearly distinguishes between "ANY RE-ELECTION" and "ELECTION TO THE SAME OFFICE AT ANY TIME" yet it is a seemingly illogical distinction because the 1987 ALLOWS INCUMBENT ADVANTAGE anyway! It has been asserted that these 1987 provisions were framed in such a way as to prevent an incumbent President from using the powers of his or her office to win immediate re-election. However, that is clearly not the case, since any President who succeeded to that office for less than four years, may indeed run for immediate re-election, as Gloria Macapagal Arroyo did in 2004. If the intent of the framers was to deny the so-called Incumbent's Advantage in re-election contests, they miserably failed by leaving a loophole at least big enough for GMA to have gotten through it and is already on her second, full term as President after a highly controversial 2004 election contest.

The Last Word? From it's title, I was prepared to believe that Founding Father Joaquin Bernas, S.J. would make an air tight case against the legal possibility of Joseph "Erap" Estrada becoming President of the Philippines again under the 1987 Constitution. Instead, we find another instance in which that badly written document with its pathetic ambiguities must be interpreted for us by the good Fr. Bernas by resorting to the proceedings of the 1986 Constitutional Commission (which often decided weighty matters by a single vote, such as the fact that we now have a presidential form of government and not a parliamentary one!)

Bernas: "The delegates to the 1986 Constitutional Commission did debate on how often a person may be president. Records show that the original draft which came from the committee proposed that "He shall be disqualified from immediate reelection." During the deliberatons on this draft, three alternatives vied for approval: no immediate reelection, absolutely no second election whatsoever, one immediate reelection. The "absolutists" won the vote and the final text came to read as it does now: "The President shall not be eligible for any reelection." The word "any" reflects the sentiment of the "absolutists."

Clearly, the framers of the 1987 Constitution were not unanimous in their view of this question, being divided into at least three camps: those who would forbid only immediate re-election; those who would allow only one re-election; and the "absolutists" who turn out to be not so absolute about limiting a person to a maximum of six years at the helm.

How can Fr. Bernas claim that the provision means "absolutely no second election whatsoever"?

LOOKIT: The Founding Fathers (including Bernas) contemplated the possibility of a Vice President succeeding to the Presidency and then being elected immediately to the same office, a happenstance that has already transpired with Gloria Macapagal Arroyo! Indeed, if Gloria had kept her Rizal Day 2002 promise not to run in the 2004 elections, she would still have been eligible to run for election to the same office of President at any time during her natural life. ERGO, there is no ABSOLUTE PROHIBITION in the 1987 Constitution against a former President running for election to the same office of President, since a real and legal counter-example has already occurred in the case of GMA.

Are the following statements TRUE or FALSE under the 1987 Constitution?

NO INCUMBENT PRESIDENT SHALL BE ELIGIBLE FOR ANY ELECTION TO THE OFFICE OF THE PRESIDENCY.

NO FORMER PRESIDENT SHALL BE ELIGIBLE FOR ELECTION TO THE PRESIDENCY.

Both statements are FALSE. Gloria Macapagal Arroyo was the incumbent president in 2004 when she ran for and won election to the presidency (how she did it is a different matter altogether not our subject today). Moreover, if she had not run in 2004 as she once vowed, she would still be eligible for election to the Presidency in 2010 or beyond since she would've served only Erap's unexpired term.

In this logical deconstruction, there is one utterly depressing and inexorable conclusion. The 1987 Constitution is not framed to exclude the Incumbent's Advantage since there is a giant loophole in it that allowed a Vice President who merely succeeded to the Presidency of Erap, to take compleat Incumbent's Advantage of her position in 2004 in order to win election to the same office as President!

The 1987 Constitution effectively discriminates against Presidents who are democratically elected into office by forbidding their re-election immediate or otherwise. Yet, it allows "any person" who merely succeeds to the Presidency to be eligible for election to the same office of the Presidency immediately or otherwise!

The distinction between "re-election" and "election to the same office" is really a hollow one with respect to the enjoyment of the Incumbent's Advantage, the removal of which would seem to be the main motivating factor for moving to a single six year term without any immediate re-election.

As Bernas tells it, we see that "no immediate re-election" for the president was the original position of the drafters, being a compromise between the "absolutists" and those who would allow a single re-election. "No immediate re-election" certainly satisfies the need to suppress the Incumbent's Advantage.

IF there are unresolvable ambiguities present in the Constitution, we must be prepared to settle them as POLITICAL QUESTIONS, rather than give in to the tendency of some folks to turn the Constitution into a Bible, to be interpreted and redacted with good intentions the way Davide did [sic!]. But as against such Constitutional carpentry, I much prefer to regard the Constitution as a Social and Political Contract, which ought to be the best evidence of what the Parties are agreeing to do, which is to set up and maintain a democratic system of government for a free and open society that is based on preternatural moral principles of Justice as fairness and Liberty as equality.

Mayors, governors and Congressmen are limited to three consecutive terms of three years each and must stand for election to win each term. Senators and the Vice President may serve up to two consecutive terms of six years each with a single re-election in between allowed. All of these officials get their quotas and limits reset after a hiatus out of office (during which many of them field wives or other placeholders until they can run again).

The President is not eligible for any re-election and serves a single six year term. Could it possibly be that the President is unique among all government officials in being limited to a single term in a given position for life? Why can't a past, non-incumbent president like Cory, FVR or Erap run for President again when there would be no question of an Incumbent's Advantage?

The overthrow of Joseph Estrada in 2001 is usually described by the politically correct as a "military backed popular revolt" even as the Supreme Court ruled in March 2001 that the regime change that occurred on 20 January 2001 was "Constitutional throughout."

But today, in The Last Word on Erap's running again for the Presidency, Founding Father Joaquin Bernas, SJ, says:

Fr. Bernas: "President Joseph Estrada succeeded Ramos in 1992 through an overwhelming popular vote. His tenure was cut short by a Supreme Court decision, although the justices themselves could not find a common supporting reason for concluding that his departure from Malacañang was final and irrevocable."

When a Constitutional Officer, like the President, the Chief Justice or a Comelec Commissioner is impeached by the House, tried AND convicted by the Senate Impeachment Court, there are only two legal penalties that result, namely: (1) immediate removal from public office; and (2) perpetual disqualification from holding public office.

Note that such a verdict and sentence of conviction in a Senate impeachment trial is FINAL and EXECUTORY. It cannot be appealed to the Supreme Court, which has NO jurisdiction whatsoever to consider, affirm or reverse it. Not even Executive Clemency can affect the outcome and punishment in any case of impeachment.

For me, the most profound Constitutional lesson to be learned from Edsa Dos and the case of Joseph Estrada has to do with the principle of the Separation of Powers in the matter of Public Accountability of Constitutional Officers who may only be removed by the process of impeachment.

It is a widely ignored FACT that the process of removing high government officials by the judicial mechanics of impeachment is the sole and exclusive power of the political branch of the Government, namely the House and Senate of the Congress of the Philippines.

ONLY the Congress has NO impeachable officers under the Constitution's Article IX on Accountability of Public Officers.

ALL impeachable officers belong to the the Executive Dept. (President and Vice President); the Judiciary (15 Justices of the Supreme court); or the Constitutional Commissions (Comelec 7, Audit 3, Civil Service 3).

The overthrow of Joseph Estrada in 2001 is the reason, I think, that he is still around. A grave form of injustice was done by one institution, the Supreme Court against another, the Senate, in not upholding the clear SEPARATION OF POWERS in a case of impeachment involving the Presidency. For me, the entire utility of the quantity called Joseph Estrada, is the possible correction of that grave injustice.

The Legal Eagles can say what they want, but the question CAN ERAP RUN AGAIN? is quintessentially a POLITICAL question. All the fancy argumentation and reasoning in the above post can be answered by a single four letter word that the electorate could write into the ballots of 2010 if necessary: ERAP!

In that case, not even Joaquin Bernas or Hilario Davide can command the Spring to rise above the Source! It's the lesson they and the other Edsa Dos Die Hards refuse to learn.