Commission on Election of the Philippines Gave Way to Political Strategy
Former detainee, Joseph Estrada, a case of disqualification for him to run for public office still undecided by the Supreme Court (Photo from Internet)
Logic of Comelec Second Division on disqualification case of Estrada: carriage is ahead of the horse. In Pilipino: "nauna ang kalesa sa kabayo."
Commission on Election passed on its duty to the voters
Grand political strategy
A political strategy unfolded in the Philippines some months before the 2010 presidential election.
The aim was simple enough: get the presidential candidate of the incumbent administration elected as president of the Philippines.
The incumbent president was Gloria Macapagal-Arroyo. The anointed presidential candidate was the incumbent secretary of the Department of National Defense, Gilberto Teodoro.
Part of the strategy to capture the presidency was to split the opposition vote. The general electorate could be simply divided into the administration vote and opposition vote consisting of voters against the present administration. This simple arithmetic is possible because there is only one position on the block: president.
So, even if there were several candidates, say, eleven, only one could win as president.
Another part of the strategy is an estimate of administration votes and opposition votes. One estimate could be equality. Another factor could be that the administration had an advantage for many reasons. One reason was that the administration was well-organized and had a good financial support. Another was that the administration had its political leaders in every province and town in place. Still another, it had only one candidate.
At the time of filing candidacy for president the following filed their candidacy: Benigno Simeon C. Aquino III, Manuel Villar, Joseph Estrada, Richard Gordon, Jamby Madrigal, Perfecto de los Reyes, Nicanor Perlas, and Gilberto Teodoro.
There you are, seven candidates would chop away their share from the opposition vote.It is very highly likely that no one could garner enough votes to win as president. Therefore, the lone candidate of the administration, Teodoro, would win.
One may get a lesson from a history of Philppine politics. In 1990, the presidency was contested by Fidel V. Ramos, Jovito Salonga, Salvador Laurel, Mirriam Defensor-Santiago, Ramon Mitra, Jr., and Imelda Romualdez-Marcos. Mitra was the administration candidate. The opposition vote was split among five candidates.
However, Ramos was endorsed by Pres. Cory Aquino; he garnered only 21% of votes. The main reason for her to endorse Ramos could be that then Gen. Ramos, as chief of staff of the Armed Forces, saved the administration of Pres. Cory from seven attempted coups by Gregorio Honasan.
[It goes without saying that the candidate who got the highest number of votes cast is the winner. However, Ms. Defensor-Santiago believed that she was cheated in some areas and a recount would give her more votes than Mr. Ramos obtained. She filed a protest and for a recount with the election tribunal. The recount in districts she specified was completed when the term of President Ramos had already ended. Results of the recount showed votes cast for Ms. Defensor-Santiago was less than 21% of votes cast, or less than the votes for President Ramos.]
Estrada was voted president of the Philippines in 1998. Three years into his administration he was suspected of corruption and blamed for the deterioration of the economy. He was also accused of being the godfather of “hueteng” a numbers game similar to lottery. Nothing wrong with being a godfather in a baptismal of a child but “hueteng” is illegal in the Philippines.
Whereupon, Estrada was impeached by the House of Representatives of the Philippine Congress then tried by the Philippine Senate. During the trial evidences were presented, among them were envelops containing some hitherto unknown documents. Eleven of the 21 senator judges blocked the opening of the second such envelop, meaning the vote was 11-10 in favor of not opening the envelop. This empasse brought the trial into stalemate.
In the evening following the second envelop empasse civilian forces against Estrada gathered at EDSA, scene of the People Power that ousted the dictator Ferdinand Marcos. Towards morning they marched to Malacañang Palace, residence and office of the President. They demanded the resignation of Estrada. During the virtual siege on Malacañang, the Chief of Staff of the Philippine army and other high military officials announced their withdrawal of support from the president. Also, the secretary of the Department of National Defense turned his back on the president. Estrada left Malacañang. Being vice-president, Gloria Macapagal-Arroyo was sworn in as the new president.
An aborted impeachment trial failed to remove him as president but a coup finally made him “leave” (Estrada's own term) office. He was not immune to criminal charges. He was charged of plunder before the Sandiganbayan, a special court. He was convicted of plunder in 2007. He was sentenced to imprisonment for life.
Now the first move of the political strategy unfolded. President Gloria Macapagal-Arroyo pardoned Estrada.
In his application for pardon Estrada gave a commitment that he would not seek public office. He was released on October 26, 2007.
Was the pardon legal?
If Estrada were impeached then pronounced guilty by the Senate it would be illegal to pardon him. He was convicted of plunder by a special court, so his pardon was legal.
However, a pardon cannot remove from the recipient the taint on his person. Luis Singson, former governor of Ilocos Sur and whistle blower of the "hueteng" payola said he thought catching the perpetrators of corruption in government, the biggest fish at that, would serve society. His taking the risk and efforts had been wasted, he said in a television interview.
Former president Fidel V. Ramos, a high official in the political party allied to Gloria's party, said the pardon of Estrada is a big mistake.
In the case of USA former president Richard Nixon, his pardon was legal because he was not impeached. Nixon resigned before an impeachment proceeding could commence.
"The pardoning power is one of the most formidable that a president has at his disposal. In one act, a president can dismiss the federal penalty to all actions against a person, save impeachment" (Bibowen. Pardon me. The Presidential Pardon Then and Now. Hubpages.com. Sept. 30,2012)..
Qualified or not?
Estrada filed his candidacy for president on the pretext that the opposition failed to unite behind one opposition candidate. A case was filed with the Commission on Election (Comelec) asking for a ruling whether Estrada was qualified to run for the presidency or not. Gloria's camp did not lift a finger. Comelec is a quasi-judicial body.
The camp of Gloria Macapagal-Arroyo was confident that Comelec would decide in their favor, albeit Estrada's because Gloria had packed the Comelec with her appointees.
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The Philippine Daily Inquirer (PDI) commented on the ruling, to wit:
"admittedly, erap estrada’s conviction in his plunder case has nothing to do with the ruling of the COMELEC to allow estrada to run again for president, but it is to us a very big sticking point.
"the COMELEC in its decision only considered the constitutional prohibition on former presidents running for a 2nd term in office.
"The Comelec’s second division ruled that Estrada was not covered by the constitutional provision barring an incumbent president from reelection because he was not a sitting president seeking a second term" (comelec rules convicted criminal erap estrada can run for president. PDI. January 21, 2010).
The Second Division of Comelec issued a resolution, saying in part:
"Citing the Comelec's mandate to hold free elections, the commissioners said they would not bar the people from deciding on Estrada's political fate on May 10.
"It is the Filipino people who would act as the final arbiter on whether they would have Estrada sit again as president," said the division's ruling.
"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 the court the right to elect in behalf of the people," it added. End of entries
In other words, the voters will decide whether he is allowed to run for the presidency or not. If anyone voted for Estrada, whether he won the presidency or not, he is qualified to run for the presidency. It was a case of putting the carriage ahead of the horse.
There are two salient points on the position of the Comelec . One: it will not make a ruling. Two: the voters will decide. In other words the Comelec is abstaining from making a decision. That is, the voters will be the judges.
That is a dereliction of duty on the part of the Comelec. It satisfies several things. For one: it will not be exposed to criticisms should it decide that Estrada is qualified to run for the presidency.
“Fr. Joaquin Bernas and Christian Monsod, members of the constitutional commission that drafted the 1987 Constitution, have stated that the constitution clearly prohibits any elected president from seeking a second term at any point in time” (Internet. Sept. 28,2012).
Article VII Section 4 of the Constitution states: "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."
Gloria's official lawyers said this constitutional provision did not apply to Estrada because he was not the incumbent president. The ordinary people had no recourse but to rely on the Supreme Court. However, no case could be filed with the Supreme Court until the Comelec had decided on the qualification issue of Estrada.
That was on the matter of the constitutional provision. There was also, on the part of Estrada, the matter of having been convicted of a high crime.
A pardon can only dismiss the penalty on an action. In Estrada's case, the penalty of lifetime imprisonment was dismissed by the pardon granted by Pres. Gloria Macapagal-Arroyo. The pardon says in part: "He (Estrada) is now restored to his civil and political rights."
Let's digress some more. Congress passes a bill that becomes law when signed by the president or when two-thirds of Congress passed it again once it had been vetoed by the president. The Judiciary makes common law when it gives a decision or ruling derived from law.
[Constitution is crafted by a constitutional convention and ratified by the people to become the highest law of the country. Statute is law made by Congress, signed by the President or turned into law over the veto of the President; common law is ruling or decision of court of justice derived from the Constitution or statute. The Supreme Court and other courts do not make law in the same way that Congress does.]
An act of the president that is similar to a statute is Executive Order. The Court of Justice can make a ruling on an Executive Order (EO). An EO is powerful it can create a national agency. The Department of Science and Technology, a cabinet entity was created by an executive order. EO can set fines that are implemented by national and local agencies, police and military. The pardon of Estrada is in the nature of Executive Order.
During the term of President Fidel V. Ramos, Philippine Congress passed a law that high crimes are punishable by death. Macapagal-Arroyo suspended the implementation of this law when she became president. That death penalty law could have covered Estrada.
I was one of a triumvirate that revised the constitution of a cooperative where I was a member. We proposed a provision that a member who had been convicted in an administrative case or a criminal case is disqualified to run for any position. This draft proposal was carried in our referendum.
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The Comelec confusion shows in the the following statement:
"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 the court the right to elect in behalf of the people," it added.
The Comelec justices of the Second Division remembered that they had been appointed to their positions. They remembered that they were not voted by the people into their positions. However, the constitution vests on them the right and authority to make decisions on political matters and election is a political matter. Making a decision on the disqualification case is not the same as voting in behalf of the people.
If the logic of the above quoted statement of Comelec Second Division were upheld, the Supreme Court justices cannot make a decision on any political matter (elections) because they are not elected by the people. This is true for all Filipino justices for that matter.
Such an error in logic in court resolutions or decisions should be enough ground to impeach justices who commit it.
A justice of the court is already elitist, at least in the Philippines. In USA, a district attorney is voted upon by the constituency. A US district attorney is less elitist, it is one person (or few persons in case of jury) making decisions for several constituents. Elitism is granted a Filipino judge in the lower courts or justices in the case of higher courts on the presumption that justices are masters of unassailable logic. An erroneous logic as basis of conviction or dereliction of duty or acquittal is unallowable.
The vote count after the election gave results as follows: Benigno Simeon C. Aquino III came out first; Joseph Estrada landed second (behind Aquino by 10 million votes); Manuel Villar emerged third; Gilberto Teodoro took fourth place. Such results thrashed the grand political strategy.
An estimate that the administration vote and the opposition vote were equal was proven wrong. Election returns showed that the opposition vote was much larger than the administration vote. Estrada split the opposition vote alright. However, he even got more votes than Teodoro did; worse, three opposition candidates nosed out the administration's candidate. So, Aquino III is now president of the Philippines.
With regard to the question as to whether Estrada was qualified to run or not, the voters decided post mortem that he was not qualified. The correct sequence should be as follows: The Comelec makes a ruling as to whether or not Estrada was qualified to file his candidacy for president. The Comelec decision must be promulgated at least 15 days before election day.
What happened was as follows: The Comelec did not make a decision. It said that the voters themselves will give the decision. That itself is not a decision that belongs in common law.
That a vote cast for Estrada is a verdict that he is qualified to file a candidacy is political expediency, part of political strategy. (Theoretically, one vote cast for Estrada was enough).
To let the voters decide on the draft proposal of "Estrada is qualified to file candidacy" may be considered as a veiled referendum. Suppose that the number of votes required for it to be carried (approved) were majority of votes cast. In that case, the draft proposal lost because Estrada did not get the majority of votes.
One line of logic can be applied on the Estrada draft proposal. This applies on the creation of a new district, like a district in Camarines Sur province being poised by the Senate. This issue cannot be decided by the Philippine congress and the recourse is to have it voted upon by the voters in Camarines Sur. That is, if the majority voted for the creation of a new district, then Camarines Sur will be split into two districts. Now, the Estrada draft proposal did not get a majority of the votes. Therefore, Estrada was not qualified to file a candidacy.
This fact of the Comelec abstaining from making a decision on whether Estrada was qualified to file a candidacy or not shows a hole in the constitution of the Philippines. There is a need to specify the kind of cases that the Comelec cannot abstain from making a decision. And a statute (law enacted by congress) and a common law (promulgated by courts) with the logic of horse-behind-the-carriage is unconstitutional, like de facto law or bill of attainder.
The position of the Comelec to make the voters decide on the legality of the candidacy of a pardoned citizen makes a precedent for a veiled referendum.
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Joseph Estrada ran for mayor of Manila and won in 2010 election. A case is now pending in the Supreme Court on whether he is qualified to run for public office or not having been convicted of a high crime, plunder. On top of that he was pardoned. Pardon absolved him of criminal liability but it does not absolve him of moral responsibility. A legal document dismisses the penalty of a convicted person and announces that he/she is innocent. However, in reality s/he committed a crime that the people should not forget. Acceptance of a pardon is admission of the commitment of a crime. The pardon is not a guarantee that s/he will not commit another crime or snafu. ("Snafu was originally a World War II-era military acronym standing for "situation normal: all f...d up." These days, a snafu is any mistake or problem. The original, military meaning of snafu is obscene" Internet. Jan. 3,2015).
In the American Civil War, the Confederate State of American (CSA) was granted an amnesty in 1865 by the United States of American after the defeat of CSA. Amnesty and pardon have the same effect, amnesty is applied on a group of persons. Gen. Robert Lee, former commander of the CSA army, availed of the amnesty. However, Jefferson Davis, former CSA president, did not avail of amnesty. He wanted the case of treason against him to be tried in court that never occurred. The point is that Davis did not admit to the crime of treason. In 1978, Pres. Jimmy Carter pardoned Davis who could not object because he was already dead.