How do you solve a problem like Estrada?

MANILA, Philippines—Joseph “Erap” Estrada announced his presidential bid at a huge rally in teeming Tondo, Manila last Oct. 21. Carrying the banner of “Tapat sa Mahirap, Samahang Tunay,” the former president also proclaimed his teammate, Makati’s unsinkable Mayor Jojo Binay, and his senatorial slate led by Senate President Juan Ponce Enrile.

No legal significance. Despite the genuine “Erap! Erap! Erap!” chants and the vintage political swagger, the muscle flexing evoked no legal effects. But once he formally files his certificate of candidacy (COC) in the Commission on Elections, his political adversaries will feast on him. He will probably file his COC on Nov. 30, the Comelec-decreed deadline. A filing on an earlier date would subject him to the ban on premature campaigning, per Penera vs Comelec (Sept. 11, 2009).

The expected petitions against his eligibility will likely allege that (1) President Gloria Macapagal-Arroyo’s pardon for his conviction for plunder did not include his disqualification to hold any public office, and (2) the Constitution bans all former presidents from occupying again the presidency.

On the first point, I opined in my Nov. 18, 2007 column that the presidential clemency extended to Erap was absolute and unconditional; it erased both the principal penalty of imprisonment and the accessory penalty of electoral disqualification. A condition retaining an accessory imposes a burden; hence, it should have been couched in clear language. However, the pardon did not contain any clear burdens. Quite the contrary, it expressly “restored his civil and political rights.”

Reelection ban. The second point is more contentious. The Constitution says, “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.”

Many legal scholars say that the plain words “any reelection” should be understood plainly: elected presidents can never ever run again for the same post. They also stress that the framers of the Constitution clearly voted for a perpetual reelection ban for all those who had been elected as president like Fidel Ramos, Ms Arroyo and Estrada.

Au contraire, other scholars contend that the word “the” before the word “President” obviously alludes only to the incumbent. They also point to the second sentence that impliedly allows those who have “succeeded” as president for less than four years to run again for the same post. Since Erap has served less than four years; ergo, he could run again. They cite the legal principle that the interpretation of the people who adopted the Constitution prevails over those who framed it. Since Erap’s eligibility would be debated during the election season, the people’s vote should ultimately prevail.

They also rely on Chief Justice Reynato S. Puno’s separate opinion junking the petition to disqualify then presidential bet Fernando Poe (Tecson vs Comelec, March 3, 2004): “…the better policy approach is to let the people decide who will be the next president. For on political questions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people.”

Should Erap be overwhelmingly elected, will the present Court dare reject him and disregard the sovereign will of the people?

More problems for the Comelec. But before the Supreme Court can make a final judgment on his eligibility, Estrada must pass more Comelec hurdles. To repeat, once he files his COC, he will surely face eligibility suits, which would initially be heard by a division of the Comelec. The division’s decision (whichever way it goes) could be elevated to the Comelec En Banc. Finally, the Banc’s judgment could be raised to the Supreme Court.

Meantime, Estrada’s COC would spawn administrative problems. The first of these is whether the Comelec should print Estrada’s name on the automated ballots while his eligibility case is pending. The printing deadline is Jan. 9. The eligibility suit will probably last beyond that deadline. Note that under the automated system, voters do not write the names of the candidates on the ballots; they merely shade the ovals opposite the candidates’ printed names. If his name is not printed, he could not be voted regardless of the verdict on his case.

If Erap were finally declared ineligible, would the machines still count his votes? What would happen if he gets the highest number of votes among the presidential bets? Can he still be substituted after he is judicially declared ineligible?

On the other hand, if Erap withdraws his candidacy before his eligibility is decided, can Binay—his teammate—substitute for him? Due to lack of time, Binay’s name could no longer be printed on the space for presidential candidates. Will the votes cast for Binay for vice president be counted for his presidential bid? Will the ovals shaded for Erap be counted in favor of Binay? Suppose his substitute bears his surname, like Sen. Jinggoy Estrada, will Erap’s votes be counted in favor of Jinggoy?

To the Comelec: How do you solve a problem like Estrada? To continue the enigma of the “Sound of Music,” how do you hold a moonbeam in your hands? I trust that the Comelec will post its answers to these questions (raised by readers) on the ehope2010.ph website, which Commissioner Rene V. Sarmiento said, will open on Oct. 28.

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