POSTSCRIPT / February 8, 2001 / Thursday


Philippine STAR Columnist

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What Erap filed was a ‘constructive resignation'

THE lawyers will have a field day before the Supreme Court arguing, pro or con, the finer legal points raised in connection with the short-lived presidency of Joseph Ejercito Estrada and the filing of criminal charges against him.

The issues can be summarized into two main questions:

  1. Is Erap Estrada still President and Gloria Macapagal Arroyo just an Acting President?
  2. If indeed Erap is still the President, or at least a president, is he immune from suit?

* * *

LET me contribute my two-bit opinion as a non-lawyer.

Erap’s argument is simple. He claimed he did not resign as President, but only went on leave. Despite his physical absence from Malacañang, he said, he is still the President, and therefore still enjoys presidential immunity from suit.

The lawyers of GMA shot back with a double-barreled No-no!: No, Erap Estrada is no longer president. No, he does not enjoy immunity.

* * *

ERAP claimed in his brief submitted to the Supreme Court that he has not resigned and, in fact, never even intended to resign.

But his own Executive Secretary Edgardo Angara said in his published diary that Erap’s panel was in serious negotiation with GMA’s team about the President’s possibly resigning.

“He will hand in his resignation, but to take effect five days later,” Angara said in his narration of what they were negotiating. Erap never thought of resignation?

“Pagod na pagod na ako,” Erap was complaining to Angara. “Ayoko na — masyado nang masakit.”

* * *

WITH agitated marchers closing in on the Palace, his armed forces and his police having abandoned him, his Cabinet men stampeding for the exits, with Senate and House leaders standing by GMA as she took her oath with several Supreme Court justices in attendance, and with foreign governments starting to recognize the legitimacy of GMA’s presidency, Erap never thought of resigning?

Like a cornered crook, he was pleading for a graceful escape and, if possible, lifetime immunity for him and his family. Yet not once did Erap think of resigning?

* * *

ERAP and his distraught family packed up and left Malacañang Jan. 20 after GMA — borne by People Power — took her oath as President at noon that Saturday before Chief Justice Hilario Davide Jr. and an exultant people cheering in the streets and in their homes and offices.

On his forced departure, a resigned Erap issued a valedictory statement that talked of leaving and healing:

“I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given me for service to our people….

He was not rallying his vaunted masa for resistance or a possible comeback. He addressed them thus: “I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity.”

As in chess when the King is trapped, Erap had no choice but to resign. He did.

* * *

BUT by force of habitual equivocation, Erap’s lawyers inserted a loophole. Despite their client’s being resigned to his fate, they made sure the word “resign” was not in his valedictory.

In truth and in fact, however, the acts and the words of Erap, especially as seen in their political context at that time, constituted Constructive Resignation.

No equivocation, no hair splitting, no legal gobbledygook can change that. A tired, defeated Erap made a formal public declaration tantamount to a Constructive Resignation.

* * *

ERAP’S twin letters sent several days later to the Senate President and the Speaker of the House of Representatives saying he was unable to discharge the powers and duties of his office and was temporarily turning over the presidency to the Vice President are clearly a sly after-thought.

Those belated letters, worded so as to hew to the intent of Section 11 of Article VII for a president going on leave and later returning to the presidency, cannot reverse and nullify his Constructive Resignation of Jan. 20, 2001.

It’s too late for Erap to now change his mind.

By operation of the Constitution, the Vice President has qualified and taken her oath as the President under Section 8 of Article VII, which says: “In case of death, permanent disability, removal from office, or resignation of the President, the Vice President shall become the President to serve the unexpired term.”

* * *

ERAP is now begging the Supreme Court to stop the Ombudsman from processing charges of plunder and other crimes against him on the ground that he is still President and cannot be sued like ordinary citizens.

We know the poor guy is harassed, but he cannot claim immunity. Since he has resigned and is no longer President, Erap cannot presume to enjoy presidential immunity. It’s that simple.

The rule is, and this applies to everybody, when a man commits a crime, he has to answer for it. What’s so special about this actor who tried his hand at being president (with disastrous effects) that he cannot be sued?

* * *

MANY of Erap’s problems were the result of bum legal advice. To make up, his lawyers should apprise him of the reality that under the Constitution there is no such thing as immunity from suit for the president.

A confused Erap must be laboring under the impression that he is still operating under the 1973 Constitution written by his departed friend Ferdinand Marcos.

Section 7 of Article VII (“7-7” provision) of the Marcos Constitution tailor-made for the dictator declared: “The President shall be immune from suit during his tenure.”

Marcos even had the temerity to expand this by decree to clothe his trusted subordinates who were acting under his direction with immunity until after the end of their tenure.

* * *

WILL somebody please rouse up Erap and tell him that Da Apo and that immunity bit went out with the trash of EDSA-I.

That infamous “7-7” relic of the Marcos charter was removed from the new Constitution precisely to help prevent a recurrence of the nightmare under a despot.

Erap is arguing that while immunity may not be in the current charter, its enjoyment in the past had enshrined it as a hallowed tradition to be availed of by a sitting president.

But precisely, Erap is no longer President, sitting or standing, who can invoke it.

* * *

GRANTING for the sake of argument that an incumbent president, by tradition, enjoys certain immunities, this cannot be absolute.

We can grant that a president may be allowed reasonable leeway in exercising presidential discretion and not be hampered by threats of lawsuit. A president may be granted certain guarantee that he would not be harassed by legal action for his official acts.

When the president, for instance, approves a major public works contract, or signs a treaty, he should be granted good faith and immunity from suit. Those are official acts.

But if, for instance, the Chief Executive rapes a member of the Palace household, he cannot claim immunity just because he is president. Raping housemaids is not part of his official duties.

* * *

OR if the president swindles a business associate, or accepts bribes and jueteng payola and hides the dirty millions in secret bank accounts using fictitious names, we submit that he cannot claim immunity – even if he is still sitting as president.

In the same way, plunder, graft and corruption, and bribery — for which information has been filed against Erap with the Ombudsman — cannot be covered by immunity even if Erap were still president.

The simple reason is that raping the economy and taking kickbacks and bribes are not among the official duties of the president.

The more basic reason, of course, is that the people ripped away the Marcosian concept of presidential immunity when they wrote and ratified a new Constitution in 1987.

Precisely, the Constitution talks solemnly of accountability and equality before the law.

* * *

IT might interest readers, including lawyers and sitting presidents, to know that the US Supreme Court holds the same view that presidential immunity is not absolute or all-encompassing.

In May 1997, the US federal high court ruled that a sitting president does not enjoy presidential immunity from suit over conduct not related to his official duties.

The ruling was handed down in a civil suit brought by Paula Corbin Jones against President Bill Clinton over you-know-what. Jones’ suit was based on misconduct allegedly committed by Clinton when he was still governor of Arkansas.

Since both of them are now plain citizens, maybe it won’t be difficult for Erap to phone Bill and ask for advice.

* * *

IS it government policy, incidentally, to gloss over violations of law just to facilitate the operation of multinational companies? This seems to be the case in the ongoing controversy involving Kimberly Clark Philippines Inc. (KCPI).

Kimberly has been accused of violating the Water Code (PD 1067) that reserves the exploitation of water resources to Filipinos. In a complaint before the National Water Resources Board, UP Likas, a pro-environment student organization, alleged that Kimberly was able to obtain water permits for the direct utilization of ground water despite the fact that the firm is 87-percent foreign owned.

The students are also complaining that Investment Ombudsman Florecita Flores has been interfering with the functions of the NWRB to favor Kimberly. The investments of the firm seem to color official attitude, they said.

* * *

(First published in the Philippine STAR of February 8, 2001)

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