Friday, January 22, 2010

Comelec's Flawed Reasoning

By Jun Bautista

In a 26-page decision, the Commission on Elections’ (Comelec) Second Division junked the disqualification case filed against Erap Estrada by ruling that the constitutional prohibition on reelection to the presidency found in Article VII, Section 4 applies only to the incumbent president.

According to Commissioner Nicodemo Ferrer, who penned the decision, “respondent Joseph 'Erap' Estrada no longer holds a public office; more importantly, he is no longer the president and wields none of the vast powers of this position. He poses no danger to anyone. Because of this prevailing status, a simple application of the rule will lead any reasonable and logical person to conclude that the prohibition against the reelection of 'The President' does not apply to Joseph Estrada.”

The constitutional provision in question is 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.”

While it is true that Estrada is no longer president and the phrase “the president” on the second sentence of section 4 seems not applicable to him, the decision conveniently disregarded the adjective “any” before the word reelection on the same sentence. Any reelection clearly means election again either immediately after the expiration of one’s term or after an interval.

If it were the intention of the framers of the Constitution that the prohibition applies only to the sitting president, then the phrase “any reelection” would not have been used for in that case the adjective “any” would be useless. In contrast, the use of the definite article “the” before “president” presents no anomaly or tension with the interpretation of an absolute ban on reelection. The second sentence of section 4 would simply mean that once someone is elected as president an ineligibility to run for president again attaches during his or her incumbency and in the future, that is when he or she is no longer president. According to former Comelec Chairman and Constitutional Commissioner Christian Monsod, a person elected as president only gets one shot at the presidency.

In defending his bid for reelection, Estrada insists that it is the third sentence of section 4 that applies to him, rather than the second sentence. Recall that the third sentence disqualifies any one who has succeeded as president and has served as such for more than four years from being elected as president at any time. Estrada claims that he served the presidency for less than four years and, therefore, not ineligible to be elected as president. The third sentence, however, applies only to one who became president not by election but by the operation of the rule on presidential succession for two reasons, viz: first, the provision speaks of one who has “succeeded” as president; second, in prohibiting such person from becoming president again, it uses the phrase “shall [not] be qualified for election” instead of “shall [not] be qualified for reelection” simply because not having assumed the presidency via election, it would not be correct to use the word “reelection.”

The second division further justified the decision to allow Estrada to run for president by saying that “in the end, it is the Filipino people who would act as the final arbiter on whether they would have Estrada sit again as president. It is the electorate’s choice of who their president should be. The better policy approach is to let the people decide who will be the next president.”

This reasoning disregards the fact that the Constitution is an embodiment of the people’s will. While the people did not directly draft the Constitution it is the people that ultimately gave it life and binding force when they ratified it in a plebiscite. Thus, when the Constitution imposes disabilities on certain persons from becoming public officials, it is simply expressing the people’s will on who they want to run for public office. So what will is Ferrer talking about?

Besides, following Ferrer’s reasoning, if indeed it is a better policy approach to let the people decide who will be the next president then why not apply the same reasoning to other candidates that they have unilaterally disqualified for being nuisance candidates? It should be noted that these candidates meet the minimum qualifications, and do not suffer any disability, under the Constitution. To say that a person should be allowed to continue his or her candidacy and let he people decide is like saying never mind if that person is disqualified, just let the people decide if they want to elect him or her to public office.

Such a flawed and dangerous proposition, not to mention double standard as far as other candidates are concerned, disregards the basic principles of republicanism where the people’s will is expressed not only at the polls, but equally important in the institutions of democracy it created.


baycas2 said...

My old comment in another blog post updated:

Some interpreters like to understand the meaning of the Constitution to suit their needs and fancy. Some would like to make a statement ambiguous or controversial.

The keyword is “ANY.” As in,

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

So, an elected president (regardless if incumbent or not) is banned for re-election forever. Even a successor to the presidency is banned for life to become president again if he/she remained in office as president “for more than four years:”

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.

Anyway, the interpreters who made the Constitutional provision equivocal would be the ones to benefit from the ambiguity. And, voila, the Comelec 2nd Division yesterday submitted themselves to such flawed interpretation Erap’s lawyers had argued.

However, statutory construction (in interpreting laws) will dictate that proceedings during the framing of the law must be considered for the unequivocal understanding of such law in question.

It may be said that Erap is banned for re-election for life. The trouble is he maintained before that he didn’t resign and only the SC then made his “constructive” resignation because of his “abandonment” of the throne. Thus, Erap wasn’t able to finish his term by virtue of SC’s (The Davide Court) decision in March 2001. He wasn’t able to make it past four years even (just to somehow equate it with the length of time a presidential successor will be banned for election to the same office).

In crafting the second sentence in Art. VII, Sec. 4, the framers’ intent is mainly to avoid a future president-for-life and they are certainly referring to an elected president who has completed his tenure of office (basically the Davide amendment as presented in the link above).

The framers didn’t discuss whether an elected president who wasn’t able to complete his tenure of 6-year-term of office must be banned for re-election or not. The Constitution therefore is silent on this matter and Fr. Bernas thinks it is an actual exception to the total ban for presidential re-election. By this reason, is Erap really banned for re-election?

Jun Bautista said...


With due respect, Fr. Bernas did not say that an unfinished tenure is an exception to the total ban on reelection - at least as far as the link you've given is concerned. He was merely posing the question of whether this was an exception that was considered vis-a-vis the total ban. He himself said that there was no such exception discussed. At any rate, in view of the lacuna, we can safely go by the rule of statutory construction that no distinction should be made where the law itself does not distinguish.

baycas2 said...

If it is a well-known maxim (“that where the law does not distinguish, no distinction should be made”) then why did Fr. Bernas even pose the question?

Well…I just hope the SC will decide on this in due time…because what I really want is that the total ban be finally be implemented.

GabbyD said...

its unambiguous. its a permanent ban. this loose reasoning by comelec is weird.

Jesusa Bernardo said...

Those dying to see Erap banned keep citing the views of consistently anti-Erap Joaquin Bernas. What about the intent of other Com-Com members?

From a news article:

"Contrary to what my professor, Father Joaquin Bernas had said, the minutes of the Con ¨C com states that the commissioners have voted only against an immediate re-election," Salcedo, also a student of the Ateneo School of Law, said...

Bishop Teodoro Bacani, one of the commissioners said that an absolute ban would be unfair to a possibly good president who would be subjected to an absolute bar...

"The right to stand for an office is inherent in the right to be voted upon ....And I think we are in danger of curtailing the right of suffrage when we put into the Constitution these numerous prohibitions," Ople was supposed to have declared during the Con ¨C com deliberations.

Jesusa Bernardo said...

What is perhaps clear is that the Charter was not so specific in that reelection provision because nobody anticipated a coup on a sitting, genuinely elected president (and to happen before the 4-years minimum).

Thus, the most ideal forum to settle the issue is before the electorate, from where all power supposedly should emanate.

"Vox populi, vox dei"! This was used in Edsa 2, but Edsa 3 was dismissed as a rebellion of the "Great unwashed."

Time for you guys to show you really understand and value the ultimate essence of democracy. Let the people decide.

(For Noynoy fans out there, there should not much to worry about because he's way up in the surveys, rights?)

GabbyD said...


really? "any reelection" is unambiguous?

paano? i'm confused. this is supposed to be easy. the word `any' has an accepted meaning right?

Jesusa Bernardo said...


I really think you should quote within the context, esp. since that very short quote of yours seem negated by other parts of the provision.

That ban provision has been discussed numerous times in this column and elsewhere. You just have to review archived Phil. Commentary and other articles.

I'm not going to say "assuming the provision is clear" because it is not. What I ask you is why don't you let the genuinely elected Erap--who was deposed by a mob and blessed by a seemingly opportunistically/genetically engineered legal justification they call "constructive resignation" (what is that?)--seek the presidency anew?

The millions deprived by EDSA 2 of the genuine president deserve to speak their voices as to whom they really want for a leader. I mean, you believe in the democratic dictum that 'sovereign power rests with the people,' right?

To resolve the issue, just let the people decide.

I rest my case.

Noynoy Aquino said...

Still the Supreme Court is the sole judge for this issue. Hope our magistrates will act on this soon and eventually follow the right interpretation of the Constitution that applies to this one.

GabbyD said...

whats the context? why is it wrong? what am i missing?

i'm really confused here. "any reelection" is plain wording. its torturing text to see any kind of prevarication here.

i'll guess i'll look for a discussion in the archives. but if u could write a 1 sentence summary, that would be great.

Joselito Basilio said...


Comelec's reasoning no matter how flawed to you may be sustained by the SC. Right or wrong, SC's ruling becomes the law of the land.
How sad!

baycas2 said...

Curt Siodmak said “A man of conviction is often more to be desired than a man of experience.”

Among the top three, we could gather from the early campaign their personalities as regards corruption:

We know who is a man of conviction,
We know who is a man of experience, and
We know who is a man of experience PLUS conviction!

Jun Bautista said...

Baycas2's link in his first comment about the con-com proceedings when it was deliberating on Sec. 4 is informative on the intent of the framers. From there, assuming Fr. Bernas's narrative is accurate, one could see that the intent is total or permanent ban.

While I admit I am not a fan of Erap, I am not dying to see Erap get disqualified per se. I am merely expressing my humble opinion as to what Sec. 4 means, regardless of who the affected person is. It could be Noynoy, Villar or any other person, for all I care, but my firm view is that the Constitution prohibits immediate and subsequent reelection of any person once elected as president.

Yes indeed Joselito, the SC has the last say, but it does not mean it is always right. As the saying goes, "finality is not synonymous with infallibility."


Speaking of nuissance candidates and if you come down hard on it, Erap is about as nuissance as a couple of the major candidates.

baycas2 said...

Ferrer’s flawed reasoning will only lift the total ban on presidential reelection. Replace Erap with congresswoman gloria, by 2016 (if in case we’re not yet Parliamentary):

gloria is not banned for presidential RE-ELECTION because she is not the incumbent.

gloria is not banned for presidential ELECTION because, as presidential successor in 2001, she only completed less than four years of the 6-year-term.


What better way to sum up Ferrer’s decision than to rally the crowd?

Let the people decide who will be the next president.


…thereby making a bad precedent that will only be utilized by a bad president!

Look at how gloria’s lawyer Macalintal welcomed the decision…a far cry from his opposition last October! Cover all bases, so they say…

Jesusa Bernardo said...

“Let the people decide who will be the next president.”


…thereby making a bad precedent that will only be utilized by a bad president!

Wow. So don't let the people decide? That "bad precedent" can also be used by a good president, you don't realize that?

Do you realize that ban was conceived so as not to prevent another Marcos who was reelected in 1960 and then declared Martial Law to make himself President for life?

The ban was designed to prevent the incumbent's use of resources to perpetuate himself/herself in power.

Jesusa Bernardo said...

Erap was deposed unconstitutionally, after only serving for 2 1/2 years. Why deprive the people of the right to choose their president?

Blame the obtaining constitutional problems on the mob of Edsa 2 and the hilarious Davide. And don't sacrifice the right of the people to choose their president for your conception of "bad precedent."

Jesusa Bernardo said...

@ Jun,

I wasn't really referring to you. I've read and heard so many utilize Bernas' arguments. I just don't understand why someone so biased against Erap still sound 'authoritative' on the issue.

He was in Edsa 2, a sidekick or whatever of Cardinal Sin and has consistently held views inimical to Erap's influence. Isn't it rather unethical what he keeps on mouthing against the former president?

Jesusa Bernardo said...

Correction, Marcos was reelected in 1969.

At any rate, don't blame the problem of a possible Gloria comeback on Erap or make the people suffer for it.

Blame it on the conspirators of Edsa 2, along with their gullible mob. In fact, blame all the evil wrought on the country by Gloria on them.

They who have no respect for the rule of majority are at it again. Tama na. Let the people decide. Why be afraid of the people's vote?

Jesusa Bernardo said...

I wonder who that "man of conviction" is.

Villar stands accused of having committed an “unethical conduct as a senator of the Republic and has, by committing such violations, damaged the integrity of the Senate as an institution.”

"Aquino is also being dogged by charges of the Aquino-Cojuangco family of having profited from an overpriced(SCTX), an overpriced payment for the right of way in Hacienda Luisita by government, along with having a private road leading to the Hacienda paid for by the government...."

baycas2 said...


Fr. Bernas floated the idea that Erap's situation could be an exception to the rule on total ban for presidential reelection. The framers didn't discuss the possibility of a president not able to complete his 6-year-term tenure...can he/she be allowed to run again? If it's an actual exception (see above comments of mine and Jun's) then by all means Erap can run and then "let the people decide."

Let's wait and see the SC final decision on the matter of Erap's disqualification...if and when it is elevated to the highest court (and I sure hope it would be elevated).

Until then...we should calm ourselves for now...for Ferrer's decision stands...

domingoarong said...


I totally agree. It’s the ineligibility of an “elected president” in Line 2 that fits Estrada’s case and NOT Line 3, since Line 3 applies only to a “successor president”--the person who becomes President following a mid-term vacancy, as follows:

Line 2 (Elected President): “The President shall not be eligible for any re-election.”
Line 3 (Successor President): “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.”

Actually, Lines 2 and 3 are patterned after the Twenty-Second Amendment to the U.S. Constitution, ratified in 1951:

“[Line 2 equivalent] “No person shall be elected to the office of the President more than twice, and [Line 3 equivalent] no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once ...”

Note that the phrase in Line 3--“No person who has succeeded as President and has served as such for more than four years”--is basically the same as the second sentence of the U.S. version--“no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President.”

And the obvious reason for inserting Line 3 (and the second sentence of the U.S. version) is that the person who succeeds to serve the unexpired term sits UNELECTED in virtue of the constitutional rule on succession.

As regards the KEYWORD “any” in Line 2, several dictionary entries define “any” to mean “one, some, every, or all without specification.” And, for that matter, the noun “re-election” connotes “election again,” “election a second time or repeated election.”

In this light, the words “for any re-election” were no doubt intended to convey a “CONTINUING INELIGIBILITY” “for any re-election” that attaches in perpetuity at the moment of incumbency upon the person “proclaimed elected” by Congress to become “The President.”

In other words: “No President shall serve for more than one term.”

The “continuing ineligibility” "for any re-election” necessarily applies to an "elected President" who, for whatever reason--constitutional, voluntary or “constructive” (as in Estrada’s case)--is unable to serve the full six-year term; otherwise, it would be easy for the incumbent to circumvent this prohibition and hence qualify to run in succeeding elections, by simply resigning from office one or two months, or even a day, before the full term for which the incumbent was elected to serve ends.

In other words, what matters is NOT the length of time served; rather, what is controlling is the circumstance that a "person" has been “elected by direct vote of the people” and "proclaimed elected" by Congress to begin serving as "The President," even for just one day in office.

In short, the absolute ineligibility “for any re-election” attaches to the person from the moment of incumbency.

As regards the “flawed” COMELEC decision to allow the democratic concept of “the will of the majority”--or “Vox Populi Vox Dei”--to prevail over a constitutional command, COMELEC should take careful note that the fifth paragraph in Sec. 4 provides--on the contrary--that it is the PLURALITY (with NO provision for a run-off election whatsoever), and NOT the democratic MAJORITY, of total valid votes cast that decides who is to assume the office of President--

“The person having the highest number of votes shall be proclaimed elected [by Congress] …”

Thus, Ramos in 1992 was “proclaimed elected” with only 23.58% of total valid votes cast; Estrada in 1998 with 39.86%; and Arroyo in 2004 with 39.99%.

These are percentages that certainly do not reflect COMELEC’s ideal of the “will of the majority”--at least 50% plus one of total valid votes cast.

baycas2 said...


It’s obvious that the only pertinent constitutional provision as regards Erap’s disqualification is:

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

The provision of the law does not make any distinction as to whether the President is the incumbent or not. Following a well-settled principle in statutory construction (you have courteously taught me), we must not distinguish where the law does not distinguish (1). In addition, where the law is free from ambiguity as to whether a President completed his tenure or not, the court may not introduce exceptions or conditions where none is provided from considerations of convenience, public welfare, or for any laudable purpose (2); nor may it engraft into the law qualifications not contemplated (3).*

Inasmuch as there is already justiciable controversy (unlike the HR-1109-ConAss fiasco) here, I really look forward to the SC’s take on the matter.

Kudos to you (and to domingoarong as well) for another informative blogging session!

(1) Robles vs. Zambales Chromite Mining Co., et al., 104 Phil. 688, 690 (1958).

(2) University of the Phil. Board of Regents vs. Auditor General, 30 SCRA 5 (1969).

(3) Ramos vs. Court of Appeals, 108 SCRA 728 (1981).

*The whole paragraph is lifted from here. I just modified some of sentences to fit in our discussion.

Joselito Basilio said...

Article VII, Sec. 4 of the 1987 Constitution provides :

“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 reelection. 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”.

The operative words in the afore-quoted provision are ‘elected’ and ‘any reelection’.

The President in the second sentence refers to the ‘elected’ President in the first sentence. Erap was elected president in 1998.

The term ‘any reelection’ refers to further election of an elected president, occurring immediately after the term or tenure of such elected president, or at any point in time in future. Erap is seeking a second election as president.

Therefore, Erap (an elected President) is not eligible for any reelection.

However, I want him to run again due to following reasons.

1. To enrich our jurisprudence on this constitutional issue.
2. To return the monies he plundered to the poor via vote buying.

Jun Bautista said...

I have not taught you baycas2, I was merely echoing legal principles that I thought were applicable. Thank you too for your informative inputs, as well as to the rest, for a very healthy, enlightening and civil discussion! In the end, we must all accept - but without surrendering our ideals and convictions - what the Supreme Court will rule.

hardcopy said...

the comelec played safe here. they are well aware that the supreme court would have to decide on their resolution anyway. so instead of denying the petition altogether, they are putting the heat on the supreme court instead.