Comelec's Flawed Reasoning

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.

When GMA Exercises Commander-in-Chief Powers

Once again talks of an impending martial law abound with the recent story in a major newspaper of a so-called "Oplan August Moon," which is allegedly a plan to extend the term of President Gloria Macapagal-Arroyo by declaring martial rule - to be accomplished by appointment to key military positions of generals loyal to GMA and creation of emergency scenarios reminiscent of the Marcos era. You may want to read Ding Gagelonia and Patricio Mangubat's interesting articles on this issue.

A review of the Constitution tells us that the president can exercise commander-in-chief powers under Art. VII, Sec. 18, which provides as follows:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. . .

The foregoing provision spells out three important powers that the president may exercise in times of national emergencies: (1) calling-out power (2) power to suspend the privilege of the writ of habeas corpus and (3) power to declare martial law.

The calling-out power refers to the power of the president to mobilize the armed forces - whose regular function is to protect the territorial integrity and security of the state against foreign aggressions - in preventing or suppressing lawless violence. In the words of David v. Gloria Macapagal-Arroyo (Prof. Randy David's first taste of eskrima with GMA), this involves ordinary police action. The Supreme Court also said in this case that the criterion by which the validity of the exercise of this power may be tested is the phrase "whenever it becomes necessary" in Section 18, meaning whenever the president determines there are existing conditions or situations - such as widespread violence, invasion or rebellion - that would necessitate the use of more force in restoring and maintaining peace and order in the country.

The power to suspend the privilege of the writ of habeas corpus (HC) and declare martial law are considered the more expansive exercise of the president's emergency powers. Martial law is distinguished from the president's exercise of his calling-out power in that in the former the country or a portion thereof is placed under military rule while in the latter the armed forces is only called upon to assist the police in maintaining peace and order. HC refers to the process by which a court compels the government to produce before it a person under the latter's custody or to justify the reason for such custody. The suspension of this privilege could lead to the detention of persons without charges.

It should be noted that although traditionally the suspension of the privilege of HC is equated with or follows the proclamation of martial law, the Constitution now makes it clear that martial law by itself does not suspend the privilege and there must be an order for such suspension.

If and when GMA declares martial law and/or suspends the privilege of the writ of HC she is required by the Constitution to submit a report to Congress within 48 hours from such declaration and/or suspension. Here again is where GMA can benefit immensely from her allies in Congress. Notice the following paragraph in Section 18:

The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Unlike the Cha-cha provision in Art. XVII, Sec. 1, there is no equivocation on the manner of voting. The Constitution explicitly allows (in fact it requires it) suspension of the bicameral process by requiring Congress to vote jointly in revoking, affirming or even extending martial law. Given the number of representatives, most of whom being administration allies, GMA can easily get congressional support. And if HR 1109 is any indication the votes alone of the loyal congressmen would suffice to meet the majority vote required.

If this happens the last constitutional resort to question the legality of martial law is the Supreme Court. Unlike in the pre-1987 Constitution era, there is no longer a debate as to whether the courts may look into the factual bases for the declaration of martial law. Where before the determination by the president of the necessity of martial law is binding and conclusive - a political question which the courts may not review - the Constitution now explicitly makes it a justiciable political question by stating in paragraph three of Section 18 that the Supreme Court may review ''the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof." In fact this provision confers a legal standing upon any citizen to bring the appropriate petition.

A word of caution however. David tells us that it will be the petitioner questioning the validity of martial law who must bear the burden of proving the insufficiency of the factual bases relied upon by the president in declaring martial law and/or suspending HC. The problem with this is that there is a strong likelihood that the Court will accord great weight to the executive department's finding of necessity (the Constitution says [1] there is an invasion and public safety requires it or [2] there is a rebellion and public safety requires it), either in subservience to GMA or what amounts to the same thing, in deference to another co-equal branch of government. As the Court ratiocinated in David in finding factual bases for GMA's Presidential Proclamation No. 1017 - declaring a state of emergency - "Owing to her [GMA] Office’s vast intelligence network, she is in the best position to determine the actual condition of the country."

I would like to believe GMA would be wise enough to cover her base if and when she invokes her commander-in-chief powers by seeing to it there would be sufficient basis for martial rule. In addition to this it would be safe to assume that she would also see to the appointment of sympathetic justices in the Supreme Court, where she is in the enviable position of filling almost half of the Court's membership as several of them retire before her term ends.

TO VOTE JOINTLY, OR SEPARATELY, THAT IS THE QUESTION

Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.