Friday, October 23, 2009

Legal Issues on Erap's Candidacy

Even before former President Joseph Ejercito Estrada's Wednesday announcement to claim the presidency again, his eligibility for the office have long been the subject of much debate. Legal scholars and laymen alike have given their two cents' worth on the issue. Once again, we will revisit the legal issues surrounding Estrada's second quest for the presidency or, as he calls it, the "performance of his life."

Let us start with a little background. Estrada was elected president in 1998, but his tenure was cut short when on January 2001 he was ousted from office during the so-called EDSA II revolution where the Supreme Court, in an unprecedented manner, made then Vice President Gloria Macapagal-Arroyo the president by administering to her, through then Chief Justice Hilario Davide, the oath of office for the president. The Supreme Court later on legitimized GMA's assumption of office by ruling in Estrada v. Desierto that Estrada resigned the presidency under the artful doctrines of "totality test" and "constructive resignation." In 2004, after serving about three years as president, GMA run for and was elected as president.

The constitutional provision dealing with the election and term of office of the president is Article 7, Section 4, which is pertinent to the eligibility of Estrada to run. The provision reads as follows:

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.

Those who support the eligibility of Estrada raise the following positions: (1) The bar on second election to the presidency applies only to the incumbent president and (2) Estrada served as president for two and a half years only.

The first position argues that in prohibiting the election of a person to the presidency for the second time, the second sentence of Article 7, Section 4 refers only to the incumbent president as evidenced by the use of the definite article "the." Thus, in saying that "[t]he president" is not eligible for re-election the phrase simply means the sitting president, which at present is GMA. This position is further reinforced by the use of the word "re-election." The proponents claim that re-election refers to one who has been elected to an office and is seeking to be elected to the same office immediately upon the expiration of his or her term.

Since Estrada is not the incumbent president he is not covered by the prohibition on re-election to the presidency. As former Supreme Court justice and DOJ secretary Serafin Cuevas said, Estrada is not seeking re-election but a new election.

This interpretation would, of course, mean that not only will Estrada be eligible to run for president again, but also Fidel V. Ramos and others who will become president later on - after they are no longer in office. It advances the view that the prohibition on second election to the presidency is not absolute.

The opposing view, on the other hand, states that the use of the definite article "the," before the word president, and the word "re-election" in Section 4 are not conclusive grounds in saying that the prohibition on second election to the presidency applies only to the incumbent president. It is argued that the adjective "any" before the word re-election dispels this. Thus, when Section 4 states that the president shall not be eligible for any re-election, it means that the president cannot be elected president again either immediately upon the expiration of his or her term or on any presidential election thereafter.

If the intention were that the ban applies only to the election upon expiration of the holder's tenure of office, the adjective "any" would clearly be out of place and useless. But the insertion of this adjective suggests that the ban on re-election is not limited to the election to be held at the end of the incumbent president's term but on any other presidential election. The phraseology of Section 4 looks forward which thus makes the ban on second election to the presidency apply now and in the future to the sitting president.

The adjective "any" clearly modifies the word "re-election" by giving it a non-restrictive meaning. In addition the dictionary defines re-election as to elect again. Thus, one can be considered re-elected to the same office even after the interval of one or more terms.

Proponents of Estrada's re-election also explain that the rationale of Section 4 in prohibiting re-election is to prevent an incumbent president from using the power and influence of his or her office to ensure electoral victory. Obviously this rationale would have no application to one who is no longer president, which argues for the non-application of the prohibition to a former president like Estrada. The contrary view, however, is that if indeed this is the rationale, then why is the same not true in the case of one who succeeded as president and has served as such for four years or less. The third sentence of Section 4 states that such person will be eligible for election to the presidency. Such person will be enjoying the same power and influence as president - as in the case of GMA after succeeding to the presidency in 2001 - and yet the Constitution does not prohibit him or her from running in the next presidential election. The incumbent's advantage, therefore, is not a very strong argument.

As regards the second point of those favoring Estrada's candidacy, they argue that Estrada did not finish his term as president since he only served two and a half years. This is, however, a long shot. The ban on re-election under Section 4 does not require that the president must complete his or her term before the prohibition is triggered.

A variant of this position is that since on the third sentence of Section 4 it prohibits second election only when one who became president has served the presidency for more than four years, Estrada would be qualified to run since he only served two and a half years as president. But the contrary view holds that said provision of Section 4 applies only to one who became president by virtue of succession, such as when the vice president becomes president because the president dies, resigns or becomes permanently incapacitated.

This claim is supported by the phraseology of Section 4's third sentence when it says that no person who has succeeded as president and has served under that capacity for more than four years shall be qualified for election to the presidency at any time. The provision uses the word "succeeded as president" instead of "elected as president" or "became president," which means that it refers to the rule of succession. Also, this interpretation is supported by the use of the word "election" on the third sentence of Section 4, to wit:

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.

Obviously, one who became president by the rule of succession is not elected to the office he or she succeeded. In contrast, the second sentence uses the word "re-elected" because it speaks of one who has already been elected to the presidency.

There is view to the effect that if GMA was allowed to run for president in 2004, having served as president immediately prior thereto for less than four years, there is also no reason why Estrada cannot run for president, considering that he also served for less than four years. This proposition, however, ignores the fact that GMA only succeeded to the office of presidency in 2001 while Estrada was elected thereto in 1998.

One other legal obstacle being thrust into Estrada's candidacy is his conviction for plunder, which carried the accessory penalty of disqualification. It would appear, however, that the absolute nature of the pardon granted him by President Macapagal-Arroyo has eliminated this legal challenge.

18 comments:

Dean Jorge Bocobo said...

I like analyzing the provision rhetorically, ie, purely as a piece of English in the Constitution.

The issue revolves around the distinction between the term "ANY RE-ELECTION" and the term "ELECTION TO THE SAME OFFICE AT ANY TIME"--a distinction that is denied by some.

But a universally observable fact is that both terms appear in Section 4, respectively in the 2nd and 3rd sentences.

That means they cannot mean EXACTLY the same thing. As a matter of Constitutional construction, "ANY RE-ELECTION" cannot mean "ELECTION TO THE SAME OFFICE AT ANY TIME" -- else why does the Constitution use them in the same provision to refer to two different situations, one applied to those who SUCCEED to the Presidency and those who are ELECTED to that office?

Jun Bautista said...

Dean,

Indeed there is a distinction between the two phrases. The one on sentence two refers to a person who became president via election, hence the word re-election. The one on sentence three, on the other hand, refers to one who became president thru succession, hence the use of the word election. The Constitution did not say any person who has succeeded as president and served for more than four years cannot be re-elected as president, because that would be an oxymoron. Not having been elected in the first place, re-election does not apply to such person.

Jesusa Bernardo said...

You've pretty much explored every angle. Except that:

1. "succeeded" vs. "rule of succession"
You're presuming that the use of the word "succeeded" refers to the "rule of succession." The dictionary definition (Merriam-Webster's) of succeeded is "the act or process of one person's taking the place of another in the enjoyment of or liability for rights or duties or both."

We've already discussed this and you claim that Charter's section 4 "can be divided into 3 parts... " However, it's debatable whether to base the interpretation on something so commonly used or something more complex.

DJB's "ANY RE-ELECTION" and the term "ELECTION TO THE SAME OFFICE AT ANY TIME" point casts doubt on your legal dissection.

2. "GMA only succeeded to the office of presidency in 2001 while Estrada was elected thereto in 1998."

What is your point?
Estrada: June 1998-Jan 2001 = 2 1/2 yrs.
Arroyo: Jan. 2001 - May 2004 = 3 y. 4 m.

Arroyo even served longer than Erap, so that doesn't qualify him for GMA's privilege? For you to use the "election" vs. "succession" issue won't hold here unless Sec. 4 is clarified.

3. If you're correct re No. 1, then Gloria's a DANGEROUS PRECEDENT for Edsa 2 manner of succession & continued hold on power!

If the SC will rule that way, that means coup plotters can always hold Edsa 2's (w/ connivance of SC justices), get themselves "elected" via Garci and enjoy some 9 years of presidency!

Not just 9 years, but 9 straight years of presidency! That would be institutionalizing succession by coup, I mean coup disguised as "People Power" (Cory must be turning in her grave).

Succession by coup, election via Garci. Why not?

If, however, the SC rules to allow Erap to run, wouldn't that douse the fervor for succession by coup? Wouldn't that be a good thing for the nation?

Dean Jorge Bocobo said...

The bigger picture involves the concept of TERM LIMITS and how our Constitution regards it. All other officials, like Senators, Congressmen and LGU officers have term limits on their successive tenures in office, which they can skip for one term and run for again.

I think this is an important long term consideration that goes to the heart of Democracy. We do not want to deprive the people of giving to someone their vote forever.

To me it is clear that the intention of the provision is merely to weaken any Incumbent's Advantage.

Jesusa Bernardo said...

"To me it is clear that the intention of the provision is merely to weaken any Incumbent's Advantage.

Actually, that's so true. I wanted to add it earlier. I was in college when they were drafting the Charter in 1986 and news reports made it clear that the intent behind Sec. 4 was to avoid the incumbent's undue electoral advantage (as what happened in 1969). It's in the Con-Com minutes and the SC should well consider that.

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

I guess the constitutional commissioners did not anticipate the succession of power-grabbers.

manuelbuencamino said...

The irony is Erap if he gets a favorable ruling will open to a GMA comeback in 2016. We wouldn't have GMA if Erap didn't screw up the first time around. Now he's going to do it again. And he says he loves us.

Jun Bautista said...

Hi Jesusa,

You stated: "The dictionary definition (Merriam-Webster's) of succeeded is "the act or process of one person's taking the place of another in the enjoyment of or liability for rights or duties or both."

The above definition clearly shows that succeeded means one is substituted for another (taking the place of another). So a vice president who becomes president because the latter dies, is removed from office or becomes permanently incapacitated is clearly taking the place of that president. Such person (the vp) would be taking over the powers and enjoying the benefits that would otherwise be enjoyed by the dead, resigned, ousted or incapacitated president.

Admittedly, such definition could also mean one being elected to the office of the previous holder after the latter finishes his or her term. But as I have said in my post, the word "succeeded" on the third sentence of Section 4 should refer to the rule on succession, for otherwise, the word succeeded would not have been used and instead the words or phrases "became president," "elected president" or "served as president" would've been used.

Jun Bautista said...

I think we should read Section 4 for what it is: as a term limit or to limit to one term anyone who became president. Once one is elected president he/she no longer gets the chance to become president again, so that such person - HOPEFULLY - will concentrate his/her efforts in governing well and act or make decisions without any thought for political consequences on future election, either immediately upon expiration of his/her term or in some future elections.

Weakening of the incumbent's advantage may also be a consideration, but there is a disconnect with the third sentence if that were only the consideration. The third sentence makes clear that if one has served as president for four years or less, he/she is still qualified to run for president. The incumbent's advantage is not seen here as a deterrent, although as we all know such short span of time could still be used to the office holder's advantage, like what GMA did.

Now, if one succeeds as president and serves for more than 4 years, he/she becomes ineligible to run for president because such person is deemed to have substantially served the regular term of a president and would, therefore, be classed like that of one who has been elected as president.

Jun Bautista said...

Jesusa,

Regarding your number 2 comment, the point there is that GMA did not encounter a legal obstacle in her candidacy in 2004 because her first term was not the result of election, but of succession in keeping with the third sentence of section 4. Again, that provision says that no one who has succeeded as president and served for more than 4 years shall be qualified for election to the same office at any time. This prohibition did not apply to GMA because she only served for 3 years and 4 months, like what you said.

As regards Estrada, he became president in 1998 by virtue of election, and not succession, so that the third sentence of section 4 cannot apply to him.

As to your claim that such interpretation would be a convenient way for coup plotters to usher someone into the presidency and guarantee them a longer tenure in office, that was merely an unintended consequence. And no, no one is institutionalizing succession by coup here but we are simply determining the meaning of the law as it applies to Estrada. A similar situation could also arise if the president dies, resigns or becomes permanently incapacitated. Whoever will succeed that president could also serve the presidency for 9 years or even 10 years (assuming of course that person is elected president later on). Now are we institutionalizing the death of the president here? Of course not. Unintended consequence. The framers of the law cannot divine every possible adverse consequence in the application of the law.

Jesusa Bernardo said...

Hi Jun.

Re the meaning of "succeed," it's definitely not clear that the use is what you claim.

Pls., we always talk of presidents succeeding their predecessors whether by election or not. Marcos succeeded Macapagal, Aquino succeeded Marcos, Estrada succeeded Ramos, etc. Take the blogosphere, there are over 2000 results for "Carter succeeded Ford" and over 7000 results for "Obama succeeded Bush," etc.

Here are the two examples in the Web again-- a media outfit and an American university, Examiner and George Mason university both write: "Obama succeeded Bush...."

Jesusa Bernardo said...

It's speculation your explanation of the choice of the word "succeeded" in Sec. 4, 3rd sentence. Of course, we're all speculating here but as I've shown, "succeed" and its derivative is a broad word that is not generally used in the restrictive term you insist on.

"Rule of Succession" actually, or originally, applies, to monarchies--who the next King or Queen will be. The reason is because those societies have no other option but set up a governing rule, given that they do not have elections (kaya nga monarchies eh). In our case, we are supposed to be a democracy, just like US, etc., so leaders succeed by elections primarily although not exclusively.

Jesusa Bernardo said...

"Weakening of the incumbent's advantage may also be a consideration, but there is a disconnect."

That is the main consideration, the Con-Com framers having learned from the Marcos experience. I still remember that from 1986 and it's in the Con-Com minutes.

Why the wordings of the 2nd sentence (The President shall not be eligible for any re-election) is because the framers were not able to "divine every possible adverse consequence in the application of the law" as your wrote. They did not anticipate coup plotters Therefore, there's the need to let the Con-Com intent prevail in the interpretation of the Estrada or other future cases.

Jesusa Bernardo said...

"The irony is Erap if he gets a favorable ruling will open to a GMA comeback in 2016."

Trust me, MB, GMA won't be able to come back once she steps down in 2010. Question is, will she survive a year being out of power? I mean that literally.

Joselito Basilio said...

Atty. Jun,

If the intent of the framers was to restrict the ban only to an immediate election upon expiration of the incumbent's tenure or term of office, the framers could have simply worded the second paragraph of Section 4 as follows to make it in harmony with the intent of paragraph 1 of same section.

“No President and Vice-President shall serve for more than two consecutive terms”.

But as presently worded, such second paragraph states : “No Vice-President shall serve for more than two consecutive terms”.

This indicates that the rule on reelection ban for the President and Vice President are different, i.e., the Vice President is barred from seeking an immediate election whereas the President is ineligible for any reelection (immediate or otherwise).

My two cents.

Jun Bautista said...

Jesusa,

"It's speculation your explanation of the choice of the word "succeeded" in Sec. 4, 3rd sentence. . ."

Fr. Joaquin Bernas, a well-known authority in constitutional law and one of the framers of the Constitution, interprets the third sentence of section 4 as a situation where the vice president becomes president because of the latter's death, resignation, incapacity, removal from office, etc. In his book "The 1987 Philippine Constitution: A Reviewer-Primer," page 225, the following passage appears:

"Q. If a Vice-President succeeds to the presidency, may he run for President at the end of the term to which he succeeded as President?"
"A. 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."

Clearly, Fr. Bernas was quoting Art. VII, Section 4, sentence three of the Constitution. Take note, he uses the word "suceed" and "suceeded" in speaking about the VP becoming president.

Indeed, the word "succeed" or "succeeded" could also mean one assuming a particular office via election, but that is using the term loosely and not in the context of a legal concept. In legal parlance, which we will suppose that the Constitution uses - it being the supreme law of the land, no less - the word "succeed," as applied to public officials and their assumption to power, means ascent to a particular office not by means of election, but by the rule of succession. Stated otherwise, it means one assumes office by operation of law as the next-in-line because the original occupant of the office ceased being the holder thereof because of some reasons, chiefly - death, resignation, ouster or permanent incapacity. This process of assumption to office is called the "rule of succession." By way of example, the rule of succession applies to vice mayors, vice governors and - closer to our discussion - the vice president who become mayors, governors, or president, respectively, in the event the latter cease holding office other than through expiration of their terms.

Jun Bautista said...

Joselito,

You mean the vice president is barred from seeking a second reelection, because the law allows him one reelection immediately after his/her first term.

Joselito Basilio said...

Atty. Jun,

What I meant was second reelection, not immediate reelection. Mea culpa.

Jesusa Bernardo said...

Hi Jun,

The problem with your Fr. Bernas is that he is too much of an anti-Erap political animal to find reliable. He was an EDSA 2 conspirator, thinks Erap is ineligible to run, supposedly because of the pardon conditions (eh wala naman sa dispositive portion), and now claims the intent of the Con-Com was "absolute" ban on already-served presidents.

Of course, the book you cite predates the 2001 coup. But that's Bernas' book. Other Con-Com members like Guingona & Bacani think otherwise (of the presidential election issue).

Between Bernas and the apolitical (of Erap/Gloria) Con-Com minutes that recorded the original intent of other Commissioners, anyone fair enough will give more weight to the latter.