Column: The basic English of Erap’s reelection

Published on September 22, 2009.

As some readers know, Koko Pimentel is a childhood friend. It isn’t mere friendship that leads me to believe Migz Zubiri stole his seat in the Senate, however; the masses of evidence, and history, are on his side. When he is declared the first winner of a Senate election protest in 57 years, after the great Claro M. Recto, I believe the country’s democratic project will receive a necessary, and generous, infusion of hope.

But Koko and I do not always see eye to eye. Koko thinks pardoned plunderer Joseph Estrada can run for president again; I don’t. Recently, in a lively series of posts to an e-mail group we both belong to, he conducted an intriguing experiment. What does the “basic English” of the Constitution say about the possibility of Estrada’s reelection, he asked the group. The main provision from Section 4 of Article VII is by now familiar: “The President shall not be eligible for any reelection.” But he asked the group to consider the entirety of Article VII as well.

He got some arresting answers.

If I understand him correctly, he thinks that, from the basic English of the Constitution, the field of argument lies where the definition of “President” and “reelection” can be found. In his view, the “President” can refer only to the incumbent, and “reelection” can mean only the condition where the incumbent runs again, immediately after his first term, for the same office. This would mean, fundamentally, that Estrada can run again, because he is no longer an incumbent.

I do not agree; I cannot agree. Again just limiting the field of argument to what he calls the basic English of the Constitution, I find that in fact the key element in the controversial provision is not the definition of “President” or of “reelection” but the use of the qualifier “any.”

“The President shall not be eligible for any reelection.”

If the framers wanted to prevent the incumbent president from running again, they could have said, “The President shall not be eligible for reelection.” Perfectly reasonable phrasing (although I see now that the same ambiguity in the definition of “President” and “reelection” is still there, like a wasp’s bite that, days later, refuses to lose its sting).

But the fact that they decided to use the qualifier “any” means that the words of the provision clearly, transparently, unambiguously, carry out the absolute ban that was the (admittedly belated) intent of the Constitutional Commission.

Anyone elected president cannot run for election again —- whether immediately after his term, or after an interval. Why? Because, the basic English of the provision tells us, he is not eligible for “any reelection.” That means any kind of reelection, at any time.

I believe that, if faced with the same experiment, most Filipino voters, whatever the original hypothesis they begin with, will reach the same conclusion.

* * *

Koko has elsewhere introduced a novel idea, based on a close reading of the provisions of Article VII: that a president is not fully a president until after four years in office. This, if my reading is correct, is the true foundation of his argument that Estrada is qualified for reelection; Estrada was ousted a mere two and a half years into his term.

The four-year principle is based on the sentence that immediately follows the “any reelection” provision. “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.”

This principle, as I understand it, was meant to limit an accidental successor to 10 years at the most —- but without penalizing him (whether the successor is the Vice President or the Senate President or the Speaker of the House) for the misfortune (whether death, incapacitation, resignation, or a crisis of conscience leading to the abandonment of office) that overtook his predecessor. (I wish to be clear that, at this point, my understanding is based not only on the “basic English” of the text but on a professional political observer’s intuition: the text is a declaration of advantage for the successor, whom the framers do not wish to hold responsible for the accidents of history.)

To contend that any president is not yet fully a president before the four-year mark, however, is a bold but dangerous idea. It introduces tentativeness and ambiguity in the Constitution where they don’t exist.

I am reminded of the argument of another friend, Estrada spokeswoman Margaux Salcedo, as serialized in colleague Neal Cruz’s column. She holds, if I read her correctly, that ambiguity exists about where the framers actually stood on the principle of an absolute ban on reelection, simply because the Commission held two rounds of voting on the issue! This is dangerously disingenuous, because the second round of voting, in which the principle of an absolute ban passed by a squeaker, was intended, precisely, as a reconsideration of the first vote. She introduces tentativeness and ambiguity in the very framing of the Constitution where they don’t exist.

* * *

The law is altogether another matter, of course, and it does not depend on “basic English” alone. Paradoxically, the legal argument for reelection may be Estrada’s strongest suit. In political terms, it is becoming clear that a second Estrada run will benefit the Arroyo administration, not the opposition or the forces of reform. And in terms of character, he has already been proven to suffer from moral failure —- not in terms of the private virtues like marital fidelity (I do not wish to beat that extinct horse) but of the public ones, such as (to borrow MacArthur’s West Point formula) duty, honor, country. That disqualifies him, forever, from doing a MacArthur himself, and staging a return.

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