Thursday, February 26, 2009


The World Bank report on bid rigging and other corrupt practices in connection with the national road construction project did not reveal, but merely provided evidence of a long standing practice in infrastructure projects by the government. The interviews of the WB Integrity Vice President detailing the bid rigging and pay-off to the politicians, recently provided by Sen. Panfilo Lacson, is not something new to us.

It is a well-known fact that corrupt politicians, from the municipal to the national level, always have cuts (better known as "commissions") in various infrastructure projects being implemented by them. It all starts with the bidding process. Prospective bidders for a project, who usually know each other, will agree on the winner, with the losers receiving a pay-off. A variation of this is that the favored bidder - because it offered the most attractive commission to those implementing the project - will be tipped-off with the winning bid price. To the contractor this latter scheme is more favorable because it reduces the cost of bribery.

Still another methodology is for the bid administrators not to soil the bidding process, allowing it to go smoothly until the awarding. Feelers will be sent to the winning bidder-contractor to put up "facilitation fees" before the project is awarded. Of course, nobody among the bidders knows yet who won the bidding. This is to insure against the winner not giving in to the project administrators' demands; if the winner refuses, they could always approach the other bidders who may only be too happy to oblige.

Now that the favored contractor has been awarded the project, it's time to line the pockets of the public officials in charge of the project. In most cases, I would assume that the pay-off comes earlier since it is easier to have leverage pending award of the project.

The first scheme is what is known as the "everybody happy" system. Everybody - from the bid participants to the public officials in charge of the project - gets his cut. Investigators from the FBI anti-corruption task force and Ombudsman should take heed of this system as from here, they could extract evidence from unsatisfied participants; there could be instances when somebody complains for not getting paid well. So much for "everybody happy."

The contractors involved in these corrupt practices are as guilty as the scheming public officials. Their willingness to give commissions perpetuate these dirty practices. I have yet to see one brave soul from these contractors, despite the pervasiveness of the practice, come out and positively identify corrupt public officials. Obviously they want to protect the profitability of their industry. And how, one might ask, do they still profit from these tainted projects for having already shelled so much money for bribery? Just look at the quality or costs of our infrastructure projects: either we are cheated out of the quality of their materials or their prices are bloated.

These substandard infrastructures are yet again the source of corrupt money that will soon line the already deep pockets of contractors and crooked politicians. Is it still a wonder that the repairs of our roads and bridges never stop? So the cycle of corruption goes on.

The inconvenience and danger of this can readily be seen. Our already messed up traffic system gets further clogged, delaying movement of goods, supplies and people. The saddest part is lives are put in danger. When substandard buildings or bridges collapse people will get hurt or even die.

In the end, the WB report will probably remain only with what it is: a report. Corruption in the infrastructure area is so pervasive that I doubt it very much there would be many public officials who would be willing to pursue it. It is a very lucrative industry and one of the major sources of ROI, and at the same time capital, for those extravagant campaign spendings. Just do the math and see for yourselves how paltry the salaries of public officials are vis-a-vis the expenditures they incur to acquire and maintain power.

Wednesday, February 25, 2009


Twenty three years ago thousands of people from all walks of life massed at Epifanio Delos Santos Avenue (EDSA) to demand the ouster of former strongman Ferdinand E. Marcos. This climactic event in Philippine history, which came to be known as the bloodless People Power Revolution, toppled the Marcos regime - ending his decades-long totalitarian rule that was characterized by corruption, official abuses, human rights violation, suppression of free speech, and a tanking economy.

More than two decades have passed, but until now pundits are still debating about the significance and contribution of EDSA. Regardless of what people think about it, I think EDSA I was an important turning point in our history. It provided an opportunity to start with a clean slate after Marcos turned the country into tatters. But the leaders of the so-called "revolution," united only in ousting Marcos, were not prepared for this ultimate objective. Political aspirations and convenience dictated much of their actions.

What Cory Aquino should have done is to institute sweeping reforms. Reform is not even the right term; the more inclusive word "change," - that is, "revoultionary change" - is more like it. A thorough and exhaustive investigation should have been done to round up all those who were in cahoots with the dictator and place them behind bars, and not allow them to roam freely as a lot of them still do now; heck, we even allowed them to assume high positions in the government. We are too forgiving a country or, should I say, too indifferent for allowing such travesty to happen.

Those who assumed power after Marcos was ousted lost sight of the fact that a revolutionary government had just been installed. It was the right time to purge the evils of the previous regime in a top-to-bottom shakedown; the bloated bureaucracy should have been cut down, projects that do not work brought to a halt, questionable foreign loans (those that only benefited private interests) reviewed and renegotiated or perhaps repudiated, iniquitous laws repealed, and personalities who helped engineer and benefited from the suppressive regime brought to jail.

No other time could have been more appropriate, politically and legally. The newly-installed government was popularly backed by the people; the international community recognized its legitimacy; and the Supreme Court gave its imprimatur of legality. As history would have it, however, the sweeping or revolutionary changes that the people expected - after putting their own lives on the line in what could have been a completely refurbished government that puts country first before everything - were nowhere to be found. (Photo from Richard Deats homepage)

Monday, February 23, 2009


The promulgation of Nicolas v. Romulo on February 11, 2009 drew a maelstrom of anti-US sentiments not seen since the heyday of the U.S. military bases in our country. The Supreme Court in this case reiterated its affirmance of the validity of the Visiting Forces Agreement (VFA) in the earlier case of Bayan v. Zamora by saying that, contrary to the position of those opposing the VFA, the US recognizes the VFA as a valid and binding international obligation on its part which, therefore, complies with the requirement of Sec. 25, Art. XVIII of the Philippine Constitution. This provision requires agreements involving the presence of foreign bases, troops or facilities in the Philippines to be recognized as treaties by the foreign contracting state.

When the Constitution requires a foreign contracting state to recognize its agreements with the Philippine Government regarding the presence of foreign bases, troops or facilities in our country as treaties, what becomes determinative is the law of such foreign country. Did the US treat the VFA as a treaty under its laws? The US Constitution requires the concurrence of the US Senate for the validity of treaties entered into by the US Government. Although US officials recognize the VFA as a binding international obligation of the US, this did not make it a treaty. At best, it is merely an executive agreement. We can readily see here the unequal treatment accorded us by the US Government - or should we say the continuous kowtowing of our officials to our one-time colonial master; while we have given the VFA the more dignified status of a treaty by going through the motion of having it concurred by the Senate, the US merely gave it the status of an executive agreement which, under US laws, is inferior to federal laws. A treaty - side by side with federal laws - on the other hand, is next only to the US Constitution in importance in the hierarchy of laws.

In addition, the US Supreme Court ruled in the 2008 case of Medellin v. Texas that for treaties or international agreements to become binding domestic laws in the US, such treaties or agreements must be self-executing (meaning, by their terms they are immediately implementable) or the US Congress has enacted laws implementing them. The VFA is neither self-executing nor supported by an implementing legislation by the US Congress. This undercuts the argument that the VFA is recognized as a binding international committment in the US. The inequality of the situation is that while we made ourselves bound by the VFA, the US did not.

Friday, February 20, 2009


Lately, we have been hearing a lot of noise about the Visiting Forces Agreement (VFA) brought forth with the recent decision of the Supreme Court in the Suzette Nicolas rape case. For those of you who want to be in-the-know and weigh in on the issue, this is a brief summary.

In December 2006, US Marine Lance Corporal Daniel Smith was convicted by the Makati Regional Trial Court for raping a certain Suzette Nicolas while participating in joint military exercises with Philippine armed forces pursuant to the VFA between the United States and the Philippines concluded in 1998.

While detained at the Makati city jail he was transferred to the US Embassy in Manila by agreement between the Philippine Department of Foreign Affairs (DFA) and the US Ambassador to the Philippines known as Romulo-Kenney Agreement, purportedly in accordance with the VFA.

Suzette Nicolas and others, via petition to the Supreme Court, sought the transfer of Smith back to Philippine detention facilities on the ground that the VFA and the Romulo-Kenney Agreement were void for being contrary to the constitutional provision that requires agreements or treaties involving foreign troops presence in the Philippines to be recognized as treaties by countries to which such foreign troops belong. It was argued that, contrary to the constitutional requirement, the VFA was not recognized as a treaty by the United States. Some senators and cause-oriented groups decried the unequal treatment the United States has accorded us by not submitting the VFA for the concurrence of its Senate as provided in their Constitution concerning treaties, in the same manner that our own Senate had done so.

On February 11, 2009, the Supreme Court ruled that while the US did not submit the VFA for concurrence by its Senate, the VFA has been recognized by representatives of the United States as a binding international agreement regardless of how it is denominated, whether as a treaty or executive agreement. As such it does not ran afoul of our constitutional requirement. Besides, the Supreme Court found the VFA as an implementation of the 1951 RP-US Mutual Defense Treaty, and this treaty has been concurred in by the US Senate.

But our senators, chiefly Fancis “Kiko” Pangilinan and Joker Arroyo, are not satisfied and are moving for the abrogation of the VFA. What do you think?

Wednesday, February 18, 2009


As part of its declared intensified campaign to prevent Filipinos from becoming victims of illegal recruitment and human trafficking, the Bureau of Immigration (BI) has recently barred 133 Filipinos from leaving the country through the Diosdado Macapagal International Airport (DMIA) on suspicion that they are “tourist workers.”

“Tourist workers” is the term being used to describe Filipinos going to countries like Singapore, Malaysia and more recently to Dubai, using only tourist visas, but whose real purpose is to obtain employment.

While the avowed objective of the BI is laudable, the restriction of citizens’ mobility by preventing them from leaving the country may be constitutionally questionable as a violation of the right to travel.

Article 3, Section 6 of the Constitution provides as follows:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (italics supplied)

The above provision clearly recognizes the right of every citizen to travel or move from one place to another. And movement from one place to another includes travel within the Philippines and travel from the Philippines to other countries. In the 1989 case of Marcos v. Manglapuz – which involved the right of the Marcoses to bring the remains of deposed President Ferdinand Marcos to the Philippines – the Supreme Court ruled that the constitutional right to travel does not include returning to the Philippines from other countries.

Every person, therefore, has the right to leave the country freely. In totalitarian regimes, like in the former Soviet Union, East Germany or in present-day North Korea, there is no such right of mobility. Citizens of these countries could not freely move from one place to another, much less leave their countries, to prevent them from bonding together and form groups to overthrow the government. The intention is to stifle or suppress dissent.

The only limitations on the exercise of such right are (1) lawful court order or (2) law, in the interest of national security, public safety or public health. Thus, a court order can validly restrain an accused or convicted person from leaving the country by means of a hold departure order, or an administrative regulation from the Department of Labor can prevent the deployment abroad of domestic workers pursuant to the constitutional mandate to protect labor as held in Philippine Service Exporters, Inc. v. Drilon.

In the absence of a valid court order or law that authorizes the restriction on the right to travel, the BI’s program of preventing so-called “tourist workers” from leaving the country suffers serious doubts as to its validity or legality. Mere suspicion that these persons are not really going to the intended country of destination as tourists is not enough. There must be clear standards or guidelines provided by law to establish that these persons are indeed seeking employment abroad under the pretext of going on a tourist visit, otherwise the program will be prone to abuses and its reach would extend even to legitimate tourists who will clearly suffer great inconveniences.

Finally, it bears noting that our countrymen are going at great lengths to find decent employment that our government has miserably failed to provide. These 133 people who may have been unlawfully deprived of their constitutional right to travel probably invested their life’s savings, pawned their valuables, mortgaged their homes, or borrowed money they could ill-afford to pay just to realize the promise of better money abroad and free them from the clutches of poverty, only to be turned back by agents of a government that has proven inept at providing decent-paying jobs to its citizens.

At a time when the unemployment rate is 7.4%, we cannot blame our countrymen for taking the short cuts in finding livelihood for their families. Unless our government gets serious in the business of governance no amount of regulation or enforcement measures can prevent this continuously growing diaspora. If government cannot provide a better alternative, it is probably better off allowing these determined individuals to find their destinies abroad and instead put in place an effective mechanism to protect them against abuses and other wrongdoings.

Sunday, February 15, 2009


If there is anything that our government officials are good at, it is their uncanny ability to remain in power and enjoy the perks of their office while abdicating themselves of the responsibility to which they have been sworn into. This is the picture we have been getting lately from our congressional leaders and heads of prosecutorial agencies in the wake of the controversy on the blacklisting of local contractors by the World Bank (WB). Don't get me wrong, this is not the first time that our government officials have acted this way, but of late it has become increasingly clear how far they have gone in betraying the trust of their office.

First, congressmen have cleared the blacklisted contractors in haste by saying there is no evidence that would substantiate WB's allegations that these contractors have engaged in the nefarious enterprise of rigging the bidding for a national road project. In an article by the Philippine Center for Investigative Journalism (PCIJ), it revealed that most of the members of House of Representatives's Public Works Committee, that held hearings on this blacklisting issue, are engaged in the construction business themselves.

Wouldn't it be more appropriate for these congressmen to have left the exoneration of the contractors to our investigative agencies, like the Department of Justice or the Ombudsman? A congressional committee investigates not to determine guilt or innocence, but to determine the effectiveness of existing laws or how a particular issue could impact legislation.

Second, when it became the turn of senators to conduct hearings on the matter they turned the tables on WB by lambasting it for not sending any representative or additional information about allegations of involvement of top personalities like First Gentleman Mike Arroyo and even the president herself. The Ombudsman Merceditas Gutierrez - the government's top prosecutor tasked to investigate corruption in the government - even had the temerity to complain that the WB supplied her only with a short report about the bid rigging; that she did not receive the detailed and bulky report that Sen. Ping Lacson has.

Evidently our government officials have conveniently abdicated the functions of their office by refusing to act on a report by an international and independent body like the WB about corruption in the government. Let it be made clear that the WB does not have any political motive in implicating high government officials. It has nothing to gain by it, pecuniarily or politically.

By pointing to the WB's failure to cooperate in the investigation in not appearing before the Senate and not providing more detailed information, it seems it is now suddenly the responsibility of the WB to investigate and prosecute corrupt officials. More than any one else, it should be our government officials who must zealously pursue investigation of this bid rigging scandal and go to the doorsteps of the WB, if need be, to gather more information and not the other way around. We should be thankful rather than cynical of the WB report because it is to our best interest that we weed out corruption in the government, unless of course our government officials are engaged in a disturbing pattern of covering up official wrongdoing at the highest level, which is somehow not much of a surprise anymore with controversies after controversies about corruption at the highest level plaguing our government.

Monday, February 9, 2009


Not a few media organizations and practitioners have expressed opposition to the bill introduced by veteran street parliamentarian Sen. Aquilino Pimentel, Jr., which grants both persons and institutions the right to reply in print or broadcast media where they have been accused of a crime or criticized for lapse in behavior.

Otherwise known as “An Act Granting the Right of Reply and Providing Penalties for Violation Thereof,” Senate Bill No. 2150, which is currently pending consideration in the House of Representatives, requires media organizations under pain of sanctions to provide print space or broadcast time, free of charge, to the accused or criticized person in the same space or program where the accusation or criticism was made.

The flurry of oppositions and criticisms that the bill is receiving is not surprising, considering the serious implications it will have on the right to free speech and press freedom. And no matter how insistent Senator Pimentel is in defending his pet measure by claiming that it engenders rather than inhibits speech by allowing the objects of press accusations and criticisms the opportunity to counter the charges against them, the bill – no matter how well-intentioned by one who had undoubtedly vigorously fought an authoritarian regime notable for its suppression of free speech – presents clear restraints on press freedom that are hard to ignore.

The U.S. case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) is instructive in determining the constitutionality of the bill. This case was about a candidate for the Florida House of Representatives who was the subject of adverse editorials in the Miami Herald newspaper. When the newspaper refused to publish the candidate’s replies to the editorials he sued claiming a “right of reply” under a Florida statute. The Florida statute substantially provides that if any newspaper assails the personal character of any candidate, such newspaper shall upon request of the candidate immediately publish free of cost any reply he may make.

In ruling that the Florida statute violates the First Amendment’s guarantee of a free press, the U.S. Supreme Court held that government compulsion on a newspaper to publish that which reason tells it should not be published is unconstitutional. The statute was considered as a command by the State in the same sense as a statute or regulation forbidding the publication of specified matter. In other words, the U.S. Supreme Court was essentially saying that a law dictating the publication of certain matters is similar to one that prohibits their publication, which as a rule is clearly prohibited as unlawful restraint on free speech.

The U.S. Supreme Court also found the statute to exact penalties on newspapers by imposing additional printing, composing, and materials cost and by taking up space that would otherwise be devoted by newspapers to matters they prefer to print. And even if no such penalty attends the allowance of print space to persons claiming their right of reply, the U.S. Supreme Court reasoned that the statute intrudes into the function of editors in choosing what material goes into a newspaper, in deciding on the content and size of the newspaper and the treatment of public officials and issues.

The chilling effect of such regulation cannot also be taken for granted. As observed by the U.S. Supreme Court, “(f)aced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safest course is to avoid controversy . . . Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”

While this case is not binding on our courts, it is nevertheless persuasive. Historically and by practice, our own Supreme Court has on numerous occasions looked upon American jurisprudence in deciding constitutional issues, especially when it comes to free speech cases in view of the fact that Article 3, Section 4 of our Constitution – our constitutional guarantee on freedom of speech, of expression and of the press – is almost a verbatim copy of the free speech clause in the First Amendment to the U.S. Constitution.

Senate Bill No. 2150 clearly violates press freedom by forcing under penalty of law the printing or broadcasting of matters that editors or publishers of print and broadcast media may not agree with or prefer to publish. Requiring media outlets to publish or broadcast materials from persons claiming to have been aggrieved by their adverse writing or reporting is in effect meddling with the editorial discretion of said media; it would virtually make the government inject itself in newsrooms and participate in the essential task of editors in determining what to print or publish.

If this bill were to become law, one could only imagine the volume of requests coming from the government and public officials to be given print space in newspapers, airtime or spots on radios and televisions, to rebut every adverse reports against them – which are not few, I should add. In a very real sense, the print and broadcast media will be running short of print space and airtime just to accommodate, for free, these rebuttals, else they will be penalized with monetary fines ranging from P10,000 to P30,000 for every denied request.

To avoid such inconveniences and penalties, the print and broadcast media will limit themselves to printing and broadcasting non-controversial matters or issues that do not involve accusations of criminal activity or criticisms for “lapse in behavior,” as the bill words it. This will effectively chill the exercise of free speech and prevent what the U.S. Supreme Court said in the famous case of New York Times v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.”

Another questionable feature of the proposed law is its vagueness. Section 1 of the bill grants the right of reply to persons who have been criticized for lapse in behavior. What would constitute “lapse in behavior”? If I were to criticize Sen. Miriam Defensor-Santiago for laughing out too loud when giving media interviews or Jesus Dureza for praying for the extension of GMA’s term, would that be criticism for lapse in behavior?

A statute seeking to regulate speech that is vague offends not only the freedom of speech, but also the right to due process. People ought to know what is a prohibited activity in clear and precise language so that they will know what activity they will refrain from doing. A vague statute seeking to regulate speech acquires special significance because if people do not know what speech is prohibited they will refrain from speaking altogether for fear that they might violate the law.

While a responsible press is undoubtedly important and people should be given the opportunity to rebut unfair charges against them, these considerations cannot, however, trump the right to a free press and free speech in general. Needless to say, individuals aggrieved by false and defamatory reports are not without legal recourse. That our judicial institutions do not deliver in seeking redress cannot override our most fundamental liberty in a democratic and republican government. In such case, rather than making press freedom the casualty strengthening of the judicial system should be the target.

Monday, February 2, 2009


In an interesting article written by Dean Jorge Bacobo in his blog Philippine Commentary, he floated the idea of former president Joseph "Erap" Estrada, and other former presidents for that matter, being able to run for president again come May 2010.

Section 4, article 7 of the Philippine Constitution provides as follows:

"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."

According to Dean Jorge Bacobo, the provision against re-election of the president in the above section would seem to apply only to the incumbent president, otherwise the framers of the Constitution would not have used the word "re-election" and instead merely stated that the president shall not be qualified for election to the same office at any time, as the last sentence in the above section is phrased.

In other words, Erap - or even FVR and Cory Aquino - can run again as president this coming presidential election because he is not currently the president. Mr. Bacobo reasoned out that it only makes sense that the prohibition applies only to a sitting president, because as the incumbent the president has at his or her disposal immense powers and resources that might be used wrongly to perpetuate himself or herself in power like what Marcos did.

Apparently, this idea is taking form due to the growing clamor among Erap supporters that he run for the presidency again; supporters who feel that their idol was wrongly ousted from office by GMA in cahoots with the Supreme Court during Edsa Dos.

No less than Erap himself has made known his intention to run for the presidency again if, according to him, the opposition is unable to field a viable candidate in 2010, just a few weeks after he was pardoned by GMA for his plunder conviction, and under which pardon the condition that he does not run for any public office again was expressly provided.

However, it is my humble opinion that section 4 prohibits anyone who has been elected president from being elected to that same position again. The word "re-election," as used in section 4, should be interpreted to mean being elected to the same office again, whether immediately as in the case of an incumbent president or after intervening terms as in the case of former presidents.

This interpretation is justified by the use of the qualifying preposition "any" before the word "re-election." If indeed the word "re-election" refers only to the election again of an incumbent president the framers of the Constitution would not have bothered using the word "any."

Had the framers intended to make the prohibition apply only to a sitting president I would even venture to say that they would have used the phrase "immediate re-election," instead of "any re-election" to avoid any equivocation.

The fact that the last sentence of section 4 uses the phrase "election to the same office at any time," in prohibiting a person who has served as president for more than four years from being elected as president, cannot justify the restrictive interpretation of the word "re-election" in the second sentence by saying that the framers would have used the same phraseology if their intention is to prohibit former presidents as well from being elected again to the same position.

A reading of the last sentence of section 4 clearly shows that the prohibition applies only to anyone who became president not by election, but by virtue of the rule on succession as when the vice president becomes president in case the president dies, resigns, is removed from office or becomes permanently incapacitated. Clearly, the use of the word "re-election" in this case would be inappropriate as there would be no prior election to the same office to speak of.

Another point that Mr. Bacobo appears to be stressing in arguing that Erap can run again is the use of the definite article "the" before "president" as found in the second sentence of section 4, which suggets that the prohibition on re-election applies only to the incumbent president, since Erap is neither the president now nor in 2010. As previously discussed, the phrase "any re-election" in the same sentence sufficiently conveys the idea that the prohibition covers not only a sitting president but even former presidents, because if it refers only to the incumbent the phrase "any re-election" would not make sense since in that case only one type of re-election (that is, immediate re-election), and not any other type is applicable.

Now, as to the argument that the prohibition should only apply to the incumbent because the logical intention is to prevent the incumbent from abusing his or her powers in order to ensure re-election, suffice it to say that if that were the intention then why not impose the same prohibition on anyone who has assumed the presidency through succession and has served as such for four years or less? The last sentence of section 4 prohibits such person from being elected president only if he or she has served the office for more than four years.

If the purpose is to prevent an incumbent from committing abuses to perpetuate himself or herself in power, there is no reason why one who became president via the rule on succession and has served for only four years or less, like GMA, will not also commit abuses just to be elected president at the end of the term that he or she filled. Such person would still, for all intents and purposes, be the president and will have at his or her disposal the awesome powers of the presidency. I'm sure we all have heard of the fertilizer fund scam and the "Hello, Garci" tapes.

Interestingly, section 4 does not require that for the prohibition on re-election to apply an elected president must have finished his or her term of office. The law only requires that one must have been elected to the presidency to trigger the ban on re-election. Thus, the fact that Erap was not able to finish his term as president will not exempt him from the ban. It is a familiar principle in legal interpretation that where the law does not distinguish or qualify, no distinction or qualification should be made.

Now, is there a way that Erap can become president again? My answer is yes. Erap can become president again - repugnant as it may sound - by running as vice president in the coming elections. If he wins and the newly-elected president will step down from office voluntarily or otherwise, then Erap becomes president again. To be sure, it will not be the end of the story for legalists because they could still theoretically question the assumption to office by showing that the whole thing was a ploy to circumvent the constitutional prohibition. What cannot legally be done directly cannot be done indirectly.