POSTSCRIPT / May 25, 2003 / Sunday


Philippine STAR Columnist

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New Erap bid reopens SC decision on GMA

NO ERAP JOKE: The latest motion of former President Joseph “Erap” Estrada at the Sandiganbayan saying that the court has no jurisdiction over him (on plunder charges) because he is still the president is no laughing matter.

It resurrects the stubborn question of whether or not Estrada was legally forced out of office on Jan. 20, 2001. The Supreme Court ruling that then Vice President Gloria Macapagal Arroyo validly became the president upon Estrada’s resignation left many legal loose ends hanging.

The unusual motion, put together by lawyer Alan F. Paguia, in effect asks the Sandiganbayan to declare the Supreme Court in error. If the Sandigan, as many observers expect, rejects the Estrada motion, the petitioner is likely to go up on appeal to the high court itself.

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S.C. TO STAND FAST: It is improbable that the SC will rule against itself on a question it supposedly had put to rest already. The justices will be committing judicial suicide if they admit having erred grievously in upholding Arroyo’s presidency.

What happens if the Estrada motion is struck down without a convincing explanation from the high court?

The grapevine says that followers of the ousted President, detained for the past two years at the Veterans Memorial Medical Center in Quezon City, are likely to “react violently.”

A curt, perfunctory dismissal by the SC could provoke Estrada supporters, among the more than 10 million who voted for him in the 1998 presidential election, into destabilizing protest action.

To them and to some others still untainted by partisan bias, the Estrada petition is clear and convincing.

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COMPELLING LOGIC: As recapitulated by former Sen. Francisco S. Tatad in a small book he had published, the Paguia logic is clear and compelling:

  1. Under the Constitution, the President can be removed only in case of his death, permanent disability, removal from office (after conviction in an impeachment trial), or resignation.
  2. None of these eventualities had occurred. Estrada has not died, has not been permanently disabled, was not convicted during his impeachment trial, and neither did he resign.
  3. Therefore, Estrada is still the president, despite his illegal (because unconstitutional) ouster from office.

To say the least, the force of such legal logic is disturbing.

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EFFECTIVE RESIGNATION: A corollary of that conclusion is that since Estrada has not been legally removed and is therefore still the president, the Sandiganbayan or any court for that matter has no right to try him for plunder or any other crime.

An incumbent president can be tried only by the Senate in an impeachment trial, according to the Constitution.

A president can be tried in court only after he is convicted in an impeachment trial and removed from office. But Estrada’s impeachment trial just ground to a halt without any Senate ruling as to his guilt or innocence. Without conviction, a president stays.

But the Supreme Court had ruled previously that while Estrada did not write or submit a resignation, by his words and actions as seen in the context of contemporaneous events, he had in effect resigned.

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LEGAL COMPLICATIONS: The Constitution lays down a detailed procedure that the president must follow if he resigns or declares himself unable to perform his duties.

The procedure includes the president’s formally writing Congress about his resignation or inability. Estrada did not do that.

What Congress did later was to confirm the appointment of Sen. Teofisto Guingona as Vice President to fill the post left by then Vice President Arroyo in 2001 when she became president.

Guingona’s appointment to the vice presidency adds to the legal and political complications. To restore Estrada to the presidency as Paguia argues, a way must be found to push Arroyo back to the vice presidency and Guingona back to the Senate.

And what happens to the recognition already accorded Arroyo by foreign sovereigns, like US President George W. Bush for instance?

In the same way that recognition in the community of nations is an element of a state, recognition by major powers in the case of a head of government lends legitimacy to his/her claim to power. Mrs. Arroyo has that.

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PRIOR JUDGMENT: Lawyer Mel “Batas” Mauricio, who runs a popular legal assistance program on dzBB and RPN-9, pointed out that Estrada’s questioning the Sandiganbayan’s jurisdiction over his plunder case is “barred by a prior judgment.”

Mauricio stressed that the high court has already ruled that Estrada had vacated the presidency and that then Vice President Arroyo’s ascent as president was legal and valid.

“That ruling stands,” he said. “The Sandiganbayan cannot reverse that rule. There is no court in the Philippines that has the authority to reverse Supreme Court decisions, except the Supreme Court itself.”

He noted that the SC could not reverse itself in case Estrada runs to the high court, “because the tribunal is itself bound by its own judgments on any given issue.”

“Whether the ruling of the Supreme Court is in accord with the law or not is immaterial,” Mauricio said. “That ruling forms part of the law of the land.”

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MAYNILAD ISSUES: Rafael M. Alunan III, president of Maynilad Water, clarified some points in a previous column disclosing apparent plans to give the water concession to Ondeo, the French minority (40 percent) partner of Benpress in the firm.

A Makati law firm with Palace connections reportedly has been helping lay the basis for Ondeo’s control of Maynilad despite the aliens’ undermining the management of Filipino executives. But Alunan told us:

“First, I am sure that none of Maynilad’s executives are blaming Ondeo for its losses. “Second, Maynilad’s losses are foreign exchange-related mainly due to the $800-million inherited debt service of the MWSS that Maynilad has been trying to recover since the Asian financial crisis hit in 1997.

“Third, this burden and concession’s lack of viability are the basis for Maynilad’s move to terminate the concession, which is the subject of arbitration.

“Fourth, working out a compromise by the parties concerned should be welcomed, but should all else fail arbitration will have to reach its logical conclusion.”

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(First published in the Philippine STAR of May 25, 2003)

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