LIKE a pesky fly, Joseph Ejercito Estrada refuses to leave. Better cover the ointment!

As we pointed out last Sunday, Mr. Estrada has not resigned. He refuses to resign. As he tells it, he just moved from Malacañang to Polk Street in Greenhills, San Juan.

Pursuing his dangerous theory that he is still legally the (or at least a) President, Mr. Estrada wrote the Senate yesterday that he was temporarily transferring his duties to the Vice President (Gloria Macapagal Arroyo) under Section 11 of Article VII of the Constitution.

What? GMA is just being asked by Erap to mind the store while the latter goes on vacation? As we said, this is a dangerous theory!

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SECTION 11 of Article VII was one of the options suggested by Cory Aquino months ago for Mr. Estrada to take in case he wanted to leave the presidency. She called it the “7-11” option (eliciting laughter) to make it easier for Mr. Estrada to remember it.

It seems Mr. Estrada remembered the “7-11” option all right.

That section says in part: “Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

“xxx Thereafter, when the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall assume the powers and duties of his office…xxx”

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THE same section says that a majority of the Cabinet could go over the head of the President and send a similar written declaration to the Senate President and the Speaker that the President is unable to discharge the powers and duties of his office.

If the President contradicts this declaration of a majority of the Cabinet, Congress could still recognize the Acting President by a two-thirds vote of both chambers voting separately.

If the two-thirds vote is not attained, the President will continue being president notwithstanding the adverse certification of the Cabinet.

This is, indeed, a dangerous theory.

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ONCE the scenario based on Section 11 is recognized, as we said last Sunday, we end up actually having two presidents — one (Estrada) who is President-on-leave, and another (Arroyo) who is just Acting President.

Interesting implications follow, some of which are:

1. President-on-leave Estrada may return from vacation anytime and reclaim the presidency through the same route, that is by sending a written declaration to both chambers of Congress that he is again able to discharge his powers and duties.
2. Since Mr. Estrada is still the President, although on leave, the impeachment trial pending in the Senate may continue. Depending on how the hearing turns out, his acquittal is still a possibility in view of the superior number of pro-Estrada senators.
3. While the impeachment trial is ongoing, criminal charges that his detractors may want to file against him may have to wait.

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THIS unusual maneuver of Mr. Estrada need not mean that his ultimate objective is to regain the presidency.

Given reality, his getting back to Malacañang is a very remote possibility. And it gets even more remote with each passing day, considering that the GMA forces are not asleep.

We expect Mr. Estrada to write the Speaker a letter similar to that sent to Senate President Nene Pimentel.

The more likely thrust of Mr. Estrada’s “7-11” moves is to protect himself from the avalanche of charges that could bury him once he is no longer technically the president. He obviously wants to remain president, even just on paper.

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LAWYER Edwin Lacierda explains: “His insistence is not for the reason that he wants to re-govern but rather, by maintaining and insisting that he is president, he can still continue to claim immunity from suit, whether civil or criminal.

“For that reason, anybody who will file charges against Mr. Estrada would have to contend with the fact that Mr. President is going to raise this issue eventually with the Supreme Court. The tribunal, I am sure, will come out with an extensive discussion on constitutional precepts and principles and their action last Jan. 20.

“Until such time, Mr. Estrada will maintain that no suit can prosper against him. And that’s the reason why he has the temerity to remain in the Philippines. But history has shown that this man, when confronted, has the inclination to give in. He will not remain long in the Philippines.”

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GOING back to basics, how is the President legally removed? Aside from the expiration of his term, the Constitution speaks of his possible death, permanent disability, removal from office, and resignation.

The Charter does not mention People Power as a mode of removal.

How was Joseph Ejercito Estrada removed, if in fact he has been removed by law? If it was via People Power, was that legal?

If he has not been legally removed, is there a vacancy? If there is no vacancy, how could GMA have filled the post?

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IF the installation of GMA is legally flawed, is Chief Justice Hilario Davide Jr. party to an unconstitutional act? Is this a culpable violation of the charter that could be the basis for impeaching Davide?

When Davide swore in GMA, was he aware that Mr. Estrada had not resigned? Or was he misled or misinformed into thinking that the President had submitted his written resignation?

These are interesting questions that must be answered if we are to live peacefully with ourselves, if we are to move forward to heal and rebuild under GMA.

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BEFORE Davide swore in GMA, the Supreme Court reportedly handed down a unanimous decision recognizing the legality of her ascension to the presidency.

When it rendered that decision, was the high court acting on a petition? Who filed it and who were the parties? Was there ever a hearing?

The court has been reported as having invoked the dictum “Salus populi est suprema lex” (The welfare of the people is the supreme law). Was the court ruling on a legal point or was it straying into political waters beyond its judicial boundaries?

And who determines the “salus populi”? Is it primarily the Supreme Court?

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CONTROL of both Houses, among other conditions, is crucial for the return of a President who has gone on leave on the basis of Section 11 invoked by Mr. Estrada.

When the President decides he wants to go back to his post, nothing can legally stop him except the objection of a majority of his Cabinet backed up by a two-thirds vote of Congress.

Where the Cabinet does not object, his return is easier. Assuming a majority of the Cabinet files an opposition to his return, a two-thirds vote of Congress is still necessary to validate the Cabinet objection.

If the two obstacles are absent, a President-on-leave can cut short his vacation and go back to work anytime.

Of course, street protest rallies, military intervention and such extraneous and extra-legal forces are not factored into the equation. We’re just talking of the “7-11” option.

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THE developing situation is one that conceivably would end up before the Supreme Court.

There in the tribunal, the legal theory of Mr. Estrada is expected to die. The court’s verdict is almost a foregone conclusion since Chief Justice Davide and the rest of the justices must support GMA if they have to be consistent and credible.

They also have to save their collective necks.

Somebody should file a case with the Supreme Court to hasten the resolution of the legal questions raised. That would help speed up the healing and the rebuilding being pursued by the GMA administration.

The earlier this is put behind us, the better for all of us.

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AS we operate in a milieu heavy with intrigue, we cannot drop this discussion without clarifying again that we do not mean to question the legitimacy of the new GMA presidency. In fact, we wish our cabalen success.

This is just part of our contribution to the national dialogue that we must go through as we look inward and forward.

We must have a firm legal basis for something as important as the assumption of the presidency — unless we are willing to admit having junked the Constitution and shifted to a revolutionary government reminiscent of Cory Aquino in 1986.