POSTSCRIPT / October 25, 2005 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Gloria need not resign; she can just go on leave

GRACEFUL EXIT?: If I were Gloria Arroyo, I would do an Erap Estrada — go on leave from the presidency and inflict Vice President Noli de Castro on the mob clamoring for my vacating the unsteady throne.

But I am not Gloria Arroyo, whose body language says — as of yesterday — that she intends to go down fighting.

Before he left Malacanang in 2001 and crossed the Pasig to another world, Erap Estrada wrote to the Speaker of the House of Representatives and the President of the Senate declaring that he was temporarily not able to perform the duties of the president.

In similarly worded letters typed on Malacanang stationery, Erap informed them — as dictated by Article VII of the Constitution — that he was in effect going on leave and that the Vice President (Gloria Arroyo) was to be the acting president in his absence.

I read those letters more than a year ago, when Erap showed them to me for whatever reason he had in mind.

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BIG GAMBLE: This is the “7-11” (Article VII, Section 11) provision in the Constitution. If “7-11” suggests that a president resorting to this exit stratagem is taking a big gamble, he/she really is.

Section 11 of Article VII (Executive Department) says:“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.”

Two paragraphs below, the same section continues:“Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office.”

Taking this route is a big gamble, indeed. What if the Acting President refuses to budge?

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ERAP COMEBACK: Note that the president is not required by the charter to justify or explain in convincing detail his declaration of “inability to discharge the powers and duties.” He could go on vacation simply because he is tired.

If sufficiently provoked, Erap might just write the followup letters and declare to both chambers that he was reassuming the powers and duties of the office.

But how would he enforce his return to the presidency? He would have to enter through the front gate with the whole world watching. You think Gloria would just watch amusedly from a window?

And then, since Erap’s six-year term (1998-2004) was supposed to have ended in 2004, what is he returning to? But you would be astounded by his lawyers’ answers to these questions, including a theory about the constitutional clock having stopped when Gloria “grabbed” the presidency from him.

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EXIT OPTIONS: If the staying power of Gloria starts sputtering under stress, this strong woman may just decide she has had enough and that it is time to look for a graceful exit rather than go down fighting.

Two exit options present themselves. Either she resigns following Section 8 that says “in case of death, permanent disability, removal from office, or resignation of the President xxx” or invokes Section 11 by taking the “7-11” route and going on leave.

If Section 8 is chosen, Vice President de Castro “shall become the President” for the unused portion of Arroyo’s term. Under Section 11, however, the Vice President merely becomes a temporary “Acting President.”

Giving up the presidency under Section 8 is irreversible. But Noli de Castro’s becoming Acting President under Section 11 is a temporary assignment that can be taken back if and when the president-on-leave decides to resume performing her duties.

If only for that distinction, President Arroyo may find it to her advantage to just go on leave. While on vacation, she will still be president and therefore immune from criminal prosecution. Resignation opens her to a plethora of legal actions.

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CONFLAGRATION: What started as a small Gloria-Resign brush fire appears to be growing into a forest conflagration.

It is now easier (because they are fewer) to count the leaders and organizations in the national capital still supporting President Gloria Arroyo than those suggesting or demanding that she makes the “supreme sacrifice.”

Judging from the lengthening list of those openly asking for her resignation or cutting short her term, Ms Arroyo appears to be getting isolated.

If we make a color-coded political map of where support for Ms Arroyo is coming from (“red” for non-support and “blue” for support), the map would be dominated by wide areas of red.

In this volatile situation, the scoreboard has to be updated daily. As of yesterday, the only remaining Arroyo supporters of consequence are the mayors and governors, the military and the police, and the Catholic Bishops Conference of the Philippines.

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CRISIS OPERATION: The mayors and governors are apparently still satisfied with their symbiotic relations with Malacanang. Whoever has been assigned to hold them on leash is still doing a good job. As of yesterday.

As for the police, the violence inflicted on them by protest marchers seems to have driven them closer to the President. Her rushing to the vicinity of the rally site to hand out medals to the injured policemen was a masterstroke.

The military, on the other hand, is still a question mark, because its loyalty to the Commander-in-Chief has not been tested the way the police have gone through the heat of street protests. Besides, the military is not monolithic.

President Arroyo and her husband may have the resources to wage a counter-campaign to recover lost ground, but there is no guarantee that their strategists and operatives know how to act in a crisis.

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NAPOCOR DILEMMA: It seems Congress is torn between privatizing the National Power Corp. to as much as 70 percent and continuing the subsidy of the graft-ridden power firm.

The Senate is studying amendments to the Electric Power Industry Reform Act (Epira). This law has hardly moved since its enactment four years ago, because of the failure of both Napocor and the Power Sector Assets and Liabilities Management Corp. (Psalm) to privatize the power plants.

While the Epira requires the privatization of Napocor and at least 70 percent of power generators under it, the Psalm has so far sold only 11 percent of the power generating assets.

As Napocor’s privatization hangs, the power firm continues to be subsidized by taxpayers. It accounts for a big chunk of the country’s public debt and gobbles up funds that should go to essential services.

The government recently absorbed P200 billion of Napocor’s almost P500-billion debt.

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PRIVATIZATION: During the Senate inquiry last week, Sen. Juan Ponce Enrile said he was amenable to reducing the privatization level to at least 50 percent. This provoked opposition from key industry players.

Ranulfo Ocampo, executive director of the Philippine Electric Plant Owners Association (Pepoa) objected, saying that even at 50 percent Napocor could still manipulate the cost of electricity. Industry players loathe seeing Napocor as a competitor.

He said: “The rationale for reducing the privatization of 70 percent of Napocor assets is to level the playing field, and so that no generator will be above the market cap of 30 percent of the installed capacity within a grid.”

Philreca representative Wendell Ballesteros and energy distributors from the Visayas supported Ocampo’s concern. They said that Napocor, owning only 30 percent of the power supply, must not manipulate the price.

Ballesteros said that in Western Visayas, Napocor is selling electricity at P3.26 per kwh despite the true cost of P4.58 per kwh.

Power distributors in the provinces said the disparity in the cost of electricity would discourage potential energy generators, because Napocor would compete with them by selling electricity at prices not reflective of the true cost.

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UNEVEN PRICING: Napocor is heavily subsidized, causing it to engage in predatory pricing.

The issue on whether to continue subsidy as against encouraging competition was raised by Sen. Serge Osmena who urged Psalm to fasttrack the sale of Napocor’s assets.

He said privatizing the generation assets to a level that encourages competition among private sector players would help in softening prices in the long term. A level playing field could help stabilize the business environment and attract investors.

Local distributors and industry players have complained of Napocor’s selling at lower rates to direct utilities or direct connected customers but selling electricity to other utilities at higher rates.

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(First published in the Philippine STAR of October 25, 2005)

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