WHY ERAP CANNOT BE ELECTED AS PRESIDENT AGAIN

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.