POSTSCRIPT / June 10, 2003 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Compromise on Erap draws varied reactions

TIME FOR COMPROMISE: Varied reactions greeted our compromise proposal (Postscript, 08June03) seeking to resolve through quiet negotiations the impasse over the controversial replacement of President Joseph Estrada by Vice President Gloria Macapagal Arroyo on Jan. 20, 2001.

Seeing the country bleeding from the endless clashes of contending forces seeking to capture and consolidate the presidency, we thought that in the national interest a political compromise might be worth trying.

At least two problems stand in the way. One is the difficulty of having the Supreme Court admit an error, if any. Another is the stiffening of the position of the protagonists, who do not want to yield anything while demanding the complete capitulation of the other side.

The situation calls for compromise. Without political underpinnings, any court resolution handing total victory to either side will not settle anything with finality.

As we said last Sunday, such a decision will only feed animosities, continue to divide the nation, and drag down the presidency of whoever comes out the victor.

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FORMULA RESTATED: Roughly restated, our proposed compromise formula goes like this:

  • Acting on new pleadings, the Supreme Court will take back its acceptance of the theory that Mr. Estrada was permanently incapacitated on Jan. 20, 2001, and also revise its later ruling that he had resigned the presidency.
  • In exchange, Mr. Estrada will submit to Congress a formal letter saying he was going on leave starting Jan. 20, 2001, and temporarily turning over the presidency to his Vice President.
  • At a later date, when all the conditions pertaining to the compromise are met, Mr. Estrada will file a terminal letter of resignation to clear the way for the validation of the Arroyo presidency.
  • Mr. Estrada and Mrs. Arroyo can then issue their own patriotic statements and, if they want, exploit the moment to project themselves as having set aside partisan and personal interests for the sake of peace and unity, et cetera.
  • As for the Supreme Court, having humbled itself, the tribunal will be exalted for having risen above itself to correct an error that would have been perpetuated as part of the law of the land.

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WIN-WIN SCENARIO: It is too much to expect either Mr. Estrada or Mrs. Arroyo to clinch complete victory. Both sides will fight and fight fiercely when threatened, and the animosity is carried all the way down to their followers.

Although Mr. Estrada sounds convinced of his legal position, it will be difficult for him in a direct confrontation to force the Supreme Court to reverse itself and hand him the presidency.

On the other hand, if there was indeed a constitutional error in Mrs. Arroyo’s installation, her presidency will remain shaky as long as the contentious basic issues are not resolved also at the political level.

Neither side can win it all. Each side must concede a little and win a little elsewhere. Instead of dragging down the entire country with them, they should consider a win-win compromise.

In a negotiated compromise, Mr. Estrada will be able to establish his point — that he was neither permanently incapacitated nor resigned. In the same settlement, Mrs. Arroyo’s conceding a few legal points to him would win for her the validation of her presidency and a less turbulent regime.

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IMMUNITY FROM RENT?: There is an interesting case (Civil Case 03-275) before RTC branch #61 of Makati. The government of Belgium and its Ambassador Christiaan Tanghe are being sued by Grundy Holdings for non-payment of rent and enforcement of lease contract.

Standing for Grundy is Atom Henares, its president. The Belgian ambassador is represented by lawyer Rogelio Vinluan of the ACCRA law offices.

Vinluan claims that the government of Belgium and its ambassador cannot be sued because they enjoy diplomatic immunity. Henares counters that immunity has been impliedly waived when the Belgian government and its former ambassador entered into a private contract with the house owner.

Otherwise, Henares says, all the people who rent houses to embassies have no recourse in law when ambassadors decide to violate their contracts and refuse to pay their rent.

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SQUATTER ENVOY: The house being rented at 1262 Acacia Road, Dasmariñas Village, was built 20 years ago specifically to be occupied by the Belgian ambassador. Its contract of lease is renewed every two years, with the present contract still valid until December 2003.

This is interesting because the new ambassador, Tanghe, has been occupying the house for the last six months without paying rent, and refusing to do so because of diplomatic immunity. In effect he is a squatter in a house he occupies rent-free.

The ambassador’s “shameful and boorish action of violating its contract of lease with plaintiff,” Henares says, “is a clear breach of the principle of comity among nations.”

“Arrogant ambassadors of foreign countries should not be allowed to come to the Philippines, sign lease contracts for their dwellings owned by citizens of the Philippines,” he adds, “then claim diplomatic immunity should they be sued in Philippine courts to enforce said contracts to pay rent.”

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CONSENT NEEDED?: In principle, may an ambassador accredited to Manila commit, say, murder in this country and not be prosecuted without his consent? If the answer is no because he enjoys diplomatic immunity, why can’t he refuse to pay rent, squat illegally, and not be sued by the house owner?

Vinluan says that international law dictates that a diplomat cannot be prosecuted without his waiver or consent.

Henares counters that while an ambassador may commit murder and is not expected to give his consent or waiver to be prosecuted, when he signs a business contract with a private individual, he in effect waives his right to diplomatic immunity.

Otherwise, he adds, all renters and contractors dealing with them will have no legal recourse when diplomats refuse to comply with their obligations. Otherwise, all ambassadors may refuse to pay rent, and squat on property not their own, and be immune from suit.

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CRIMINAL vs CIVIL ACTION: If such ambassadors are nothing but squatters, no different from the miserable squatters who live in shanties beside the railroad tracks, maybe the government should relocate them to a mass housing project somewhere in the hinterlands of Cavite?

Seriously, we think that we have to distinguish between criminal and civil suits to get some sense.

It has been deemed wise and expeditious in the community of nations to accord diplomats, envoys and the like immunity from criminal action. This enables the ambassador, who is an alter ego of a sovereign, to move about expeditiously to attend to his important mission.

The diplomat’s person, as even his vehicle and residence, is clothed with extraterritorial rights — the accepted myth that he is an extension of the territory of the state he represents.

The only recourse is to declare a misbehaving diplomat persona non grata to force his departure. And he leaves intact, without being prosecuted.

But we submit that while an ambassador is immune from criminal charges, he is not immune from civil suits. There lies the distinction. Maybe the lawyers should look into this angle to nail down any ambassador using diplomatic immunity to escape certain legal obligations.

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(First published in the Philippine STAR of June 10, 2003)

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