Monday, January 7, 2008

Presidential Re-election and the Framers' Intent

When Marcos won re-election in 1969, he notoriously made use of Guns, Goons and Gold, in a massive display of the Incumbent's Advantage. So the Framers of the 1987 Constitution, after deciding that four years was too short for a good President, decided that six years would not be too long for a bad one, and adopted a single six year term. A brouhaha has arisen because of Joseph "Erap" Estrada.

ather Joaquin Bernas, SJ, only assumed he had written the Last Word Saturday on whether Erap can run again for President, because his new PDI essay, Presidential Re-election gives the matter a whole new complexion with a discussion of the two fold intent of the Framers to abolish the incumbent's advantage and to limit Presidents to six years in such high office. That they utterly failed at both is none of Erap's fault!

BERNAS: "The debates on the proposal on the number of allowable terms for the President took place after the Commission had decided that the President’s term of office would be six years. As to the number of times a person may be President, the initial votes were as follows:

No immediate reelection: 32 votes.

Absolutely no reelection: 21 votes.

One immediate reelection: 1 vote.

On motion of Commissioner Ambrosio Padilla, a Senate veteran, who had voted for the approved proposition, the vote was reconsidered. Padilla gave his reasons for “perpetual” disqualification after a single term. He said: “I think the evil that we have been trying to prevent, and which I thought was already concurred in by the majority, if not practically by all, is that we do not want the President to control the nation and govern the people for more than six years, with the idea that he should never return to the presidency even if he allows another, probably of his own party, to run in the meantime because that will not cure the evil of reelection on the part of the President. In other words, Madam President, I want to eliminate that word ‘immediate.’”

Another Senate veteran, Commissioner Francisco “Soc” Rodrigo countered: “The philosophy behind disqualifying a President from immediate reelection is so he cannot use his power as President to help him in his reelection bid. But if it is not immediate reelection, if he is out of office for six years and he runs after six years not being President, he cannot use that power of the President to help him win his election bid.”

Even the incomparable Founding Father Bernas appears to miss the supreme irony in this matter. We now know that what the Framers wanted was to prevent a certain evil by strictly limiting every elected President to not more than six years in office, as Ambrosio Padilla eloquently argued for reconsideration and prevailed. But by framing the presidential term limit provision as a perpetual prohibition on RE-ELECTION, the Framers apparently failed to realize that they had left a giant loophole in the Constitution, because there is in fact another way to spend more than six years in office as President, WITHOUT being re-elected in the sense of being elected more than once to the Presidency. That loop hole is SUCCESSION via the Vice Presidency. That Gloria Macapagal Arroyo went through this loophole to legally and Constitutionally frustrate the intent of the Framers, only reveals the utter failure of the Framers to write a Constitution that would indeed fulfill their intentions! Ouch!

But Fr. Bernas' two essays are nonetheless invaluable. He proves conclusively that the INTENT of the Framers was to strictly limit occupancy of the Presidency by any one person to a single six year term. Even if their prohibition against any re-election turns out to have been ineffective at preventing someone controlling the Presidency for more than six years, it shows that what they were really attacking and preventing was the Incumbent's Advantage, as I claimed in my caveat to Bernas' Saturday piece, Can Erap Run Again?

We do not and cannot know the full answer to this as a POLITICAL QUESTION, but an important conclusion from Bernas' essay to day is this.
IF Erap were to run again, and served only till 2013 as he has bruited about, he would NOT frustrate either of the Framer's intentions: that no person occupy the Presidency for more than six years, nor would he have the Incumbent's Advantage! Ironically, what is now considered Constitutional--thanks to Davide!--is the career of Gloria Macapagal Arroyo--which DID violate both intents since she will serve for TEN years and had the Incumbent's Advantage in 2004!

My basic conclusion is this: Forbidding ANY RE-ELECTION is NOT ENOUGH to guarantee that no person will wield the powers of the Chief Executive for more than six years, nor does it preclude the use of Incumbent's Advantage by a sitting President!

In the meantime of course, I think that Erap is just DICKING with everybody. He has been made practically invincible and can do whatever pleases his mischievous lil heart.


Jego said...

That loop hole is SUCCESSION via the Vice Presidency.

Frankly I dont see the loophole in the Constitution. The Constitution, the spirit of it at least, prevents a PRESIDENT from being re-elected. That was what Gloria was in 2001. She wasnt VP. She was P.

However, in another one of those travesties, the court took a look at FPJ and invented some legal hocus-pocus to allow her to run. The same hocus-pocus that invented 'constructive resignation.'

DJB Rizalist said...

the intent, according to bernas, was to prevent any president from governing more than six years. Gloria will rule for 10 years.

the loophole is as big as a house!

the ban on re-election is ineffective at fulfilling that intent to limit the service to six years. It is effective against democtratically elected presidents, but not against democratically elected veeps who happen to succeed to the presidency.

it's a badly written constitution.

Eero said...

Communicating the Philippine water crisis

I am posting a communication briefing paper on how a senator can generate public support for the water crisis issue. Hope our presidentiables generate ideas from this.

Eero (

Mind Bullet Briefing Paper: Communicating the Philippine Water Crisis as a Defining National Issue for Candidates Running for the 2008 Presidential elections.

I. Rationale

Defining moments are very important in capturing the imagination, hearts , minds of the people to genuinely entrust leadership. Through conscious efforts and expected historical milestones, defining moments can be laid out as a story line leading to a positive perception or conclusion. Defining moments establish how the market (electorate) will perceive and decide what to do with the product (politician). Simply put, defining moments in history will determine the market positioning of candidates running for President in 2008.

All Philippine Presidents in contemporary Philippine history have been defined by the times they were situated in. President Ferdinand Marcos postured his New Society amidst widespread agrarian unrest, proliferation of private armies, the continued stranglehold on the economy of the feudal and industrial oligarchs, opposition to the Vietnam conflict, and the Cold War. President Corazon Aquino was swept into power as the anti-thesis of the Marcos authoritarian rule. President Fidel Ramos was a legitimate hero of the EDSA revolution. President Joseph Estrada became a iconoclast of the poor, on an off the screen, aside from being once a mayor, Senator, and Vice-President. President Gloria Macapagal Arroyo had EDSA dos as her conjuncture.

For the present batch of Presidentiables, each one will be consciously doing two strategic activities. One is to look presidentiable by taking on issues of national concern even if by way of sound bytes at the very least. The second activity is to be able to latch on an issue which would define character and relevance in history.

Similar patterns are being employed in the run up to the presidential elections in the United States. On a strategic note, Senator Barack Obama has owned the concept of “change” while outlining his political agenda. Senator Hillary Clinton positioned herself as the one with “White House experience to institute change”. However, both of them drum up their candidacies by creating the impression that America is at a historical cross roads of change and all the melodramatic packaging that goes with it.

It is the attempt of this briefing paper to provide a sample market positioning plan to communicate the historical relevance of a candidate through a defining issue. The core message is “meaningful leadership” and the issue is the Philippine water crisis. A marketing mix of community action, policy advocacy, public relations, direct to consumer communications, and engineered events are to be employed.

II. Review of Related Literature

1. The water crisis in the Philippines is directly connected to climate change. It is already a ticking time bomb. As far back as 1998, former President Fidel Ramos has said on many occasions that water will be a flashpoint for conflict. It is both a political and economic issue with catastrophic implications.

2. Alert International is an independent peace-building organization working in over 20 countries and territories around the world. It has included the Philippines in its list of 46 countries facing high risk of armed conflict as a knock on consequence of climate change. It has likewise included the Philippines as one of the countries with serious to extreme exposure to climate change.

3. Expert studies done by the Asian Development Bank (ADB) indicate a looming water crisis (, Dec. 2, 2007). Consider the following :

In its publication "Asian Water Development Outlook 2007, the ADB warned that water availability in the Philippines could be "unsatisfactory" in eight of its 19 major river basins and in most major cities before 2025.

The Philippines’ water resources are fast deteriorating with rapid urbanization, with only about 33 percent of river systems still suitable as a supply source and up to 58 percent of groundwater now contaminated, a new Asian Development Bank research shows.

The ability of groundwater—or water held underground or in pores and crevices in rocks—to meet future water demand has been projected to be limited, amounting to only 20 percent of the total water requirement in the country's nine main urban centers by 2025.

Depletion of groundwater resources has been an increasing problem in Metro Manila and Metro Cebu, the study pointed out.

"Water quality is poorest in urban areas, the main sources of pollution being untreated discharges of industrial and municipal wastewater," the ADB said.

Although groundwater resources are generally abundant and of adequate quality for domestic purposes, the study states that poor environmental management of extractive resource industries—such as uncontrolled forestry, mining and minerals extraction—has been leading to the pollution of downstream water courses and aquifers.

"The majority of solid waste disposal and landfill sites are poorly operated and maintained, permitting leachate to pollute some water resources," the study stated.

In Manila, for instance, the study noted that less than four percent of the population were connected to the sewer network, with many high-income households constructing their own facilities.

"Flush toilets connected to septic tanks are widely used, and often serve large housing developments. However, sludge treatment and disposal facilities are rare, resulting in indiscriminate disposal of untreated or poorly treated effluent into the Pasig River, one of the world’s most polluted rivers," the study pointed out.

Over-exploitation has been lowering water tables, leading to increasing intrusion of saline (salty solution), it noted.

"The rapid urbanization of the Philippines, with more than 2 million persons being added to the urban population annually, is having a major impact on water resources,“

16 rivers are now considered biologically dead during dry months;

48 percent of water pollutants arise from domestic waste, 37 percent from agricultural waste, and 15 percent from industrial waste;

Solid waste generation in Metro Manila, now estimated at 5,345 tons per day, is expected to double by 2010. But, only 65–75 percent of the waste generated is collected, with only 13 percent of that recycled, and the remainder just thrown anywhere, particularly into creeks, threatening health and increasing flooding;

Some 700 industrial establishments in the Philippines generate about 273,000 tons of hazardous waste annually, but at present there is no integrated treatment facility in the country to deal with it, although there are some 95 small to medium-scale hazardous waste treatment facilities;

Approximately 50,000 tons of hazardous waste are stored on or off-site due to lack of proper treatment and landfill facilities.

The priority sector constraints that the country must address include sector "under-funding" and slow promulgation of environmental legislation, such as the Water Resources Management Act and the creation of a National Environmental Management Authority, the ADB study said.

The study also lamented the insufficient enforcement of existing legislation, and the weak legal and regulatory framework for environmental impact assessments, monitoring and coordination. Data for planning and management are incomplete, according to the study.

Investments over the last two decades have been insufficient. At least P40 billion or at least one percent of GDP (gross domestic product) will be needed to meet development goals," the study said.

4. Political-Economic Analyst Peter Wallace wrote an article on the Water Crisis (Aug. 18, 2006). Specifically he mentioned that:

Based on a survey conducted by the National Statistics Office, only about 80 percent of Filipino households (eight out of 10 families) had access to a supply of clean water in 2002, virtually no improvement from 79 percent in 2000.

And many of those belonging to that 80 percent have to trek quite some way to get water they can drink.

This translates to 17 million Filipinos that use and drink water that could make them sick, and does make them sick.

About one million cases of water-borne illnesses such as diarrhea, cholera, typhoid and hepatitis are recorded every year.

In Metro Manila, two million people do not have access to water that is clean and affordable. The most unfortunate part of the story is that these two million are poor.

The World Health Organization cited that deaths due to gastrointestinal diseases in the country have increased from 502 per one million people to 5,151, or 10 times more because people do not have access to clean water.

And when the poor get sick, they have no money, and can’t afford to be treated. So many of these 5,151 people die unnecessarily.

According to Asian Development Bank estimates, the government would need P92 billion just to bring water to an additional 14.3 million Filipinos by 2015.

But the problem is not just in bringing clean water to everybody; it is ensuring that there is enough water for everybody for many years to come.

Levels in the country’s water sources are at their lowest in years.

Since 2002, the water level in Angat Dam, the source of about 76 percent of the water supply in Metro Manila, has fallen to critical levels.

Despite the high average rainfall, the Philippines will have, according to estimates by the United Nations, the second to the lowest per capita freshwater in Asia.

III. Campaign Objectives

To be able to establish a macro-economic and political reform initiative to address the water crisis. If possible a bill will be filed.

To develop a policy environment for the universal access to potable water among Filipinos

To effectively identify, track and address specific locations in the country where conflicts may arise because of disputes over water sources

To provide community based showcases of proper water management initiatives

IV. Campaign Directives

Trigger Activities (Jan. 28 2008 or the first day of congressional sessions)

1. Privilege Speech and proposed bill filed on the water crisis (legislative staff)

2. Publicity of the Privilege Speech (Publicity Staff, MRO, media group)

3. Publicity of popular stories about the water crisis

Example Story lines:

17 million Filipinos will not have safe drinking water for Christmas
189 municipalities still do not have potable drinking water?
RP considered potential high armed conflict area due to effects of climate change
Will the water crisis in Atlanta, Georgia happen to us?

Accelerator Activities (Feb. 1 to March 21, 2008)

1. A video-documentary on the water crisis by Sen. X

2. A national road show of the video in 80 provinces. This will be initially done in the central schools, state universities, and provincial capitols for a total of 240 venues.

3. Initial 10,000 advocacy kits including video, frequently Asked Questions, and Sample Resolutions given to the environmental committee chairpersons of provincial, municipal , and city councils

4. 1 million signatures supporting the water bill (Legislative staff, various cause oriented and civic groups)

5. Sense of Senate, House to support the bill (head count)

End Game Scenarios (March 22, 2008, World Water Day)

End game Minimum

1. Resolution of the League of Provinces (Legislative and political staff)

2. Resolution of League of Municipalities (Legislative and Political staff)

3. Resolution of League of Cities (Legislative and Political Staff)

4. Sense of the Senate and the House to support for bill (Preliminary head count-Legislative and Political staff converted into primary lobby group and supported by other advocacy groups).

5. Pilot projects on community based water management. At least 1 NCR, 1 Luzon, 1 Visayas, 1 Mindanao.

End Game Maximum

1. Privilege speech on World Water Day

2. 80 provincial resolutions supporting the advocacy (Legislative and political staff)

3. One million signatures supporting the water bill formally delivered to Senate (Legislative staff, various cause oriented and civic groups)

4. Sense of the Senate, House (preliminary head count)

5. President signs the bill as urgent

6. Pilot projects on community based water management. At least 1 NCR, 1 Luzon, 1 Visayas, 1 Mindanao.

7. Bill is passed on March 22, 2008, World Water Day (Best Case)

Jego said...

I concede the point, DJB. The constitution did indeed provide Gloria a loophole in Article VII Section 4 when it specified "...and has served as such for more than four years shall be qualified for election to the same office at any time." Gloria was qualified, not having spent more than 4 years as P.


DJB Rizalist said...

there is something worse, even bernas mentions the possibility of erap running for vice president and succeeding to the presidency if the president resigns. it's absurd but he could arrange that by running with say Jinggoy. Then he could even resign himself and give whoever he appoints as veep the presidency, like manny villar.

Joe Padre said...

In a nation with a population approaching 100 million, I believe it is safe to say that no one individual has a monopoly of the ability or leadership skills to serve as President of the Philippines. Hence, to eliminate any back door possibility that a former president would serve another non-consecutive term as president, the Constitution should be amended such that anyone who has served as President regardless of how long his term was, or whether his/her term expired or was terminated in any manner, shall be disqualified to run for any of the offices included in the line of presidential succession, period.

Jego said...

I would suggest a change that would allow a VP who assumed the presidency to run for president but not as an incumbent president. If this was followed in 2004, as the spirit of the law the framers wanted suggests, GMA would be running in 2010, having sat out the 2004 elections. But like I said, FPJ had everyone spooked so they (civil society) allowed GMA to run based on the loophole.

DJB Rizalist said...

JEGO, JOE, Seems to me that the originally approved proposal, before Ambrosio Padilla moved for reconsideration, would have worked well enough: no immediate re-election for any incumbent. That fulfills the intent to remove incumbent advantage from everyone, without depriving a deserving veep his or her turn at the top post, not just from a position of advantage.

Carlo said...

dean jorge,

i am a fan of your blog. regarding this issue, i think that one term is enough. six years is a long time for some president to effect reforms. reelection is not necessary, especially if erap is one of the choices. i don't like arroyo either.

nonetheless, let us all respect the wisdom of the framers, for their opinion is equal to the voice of the Filipino people.

dean, i hope you take time reading my blog about the two-party system. i would really like to have your opinion on this. the link is:

carlo masajo