POSTSCRIPT / August 27, 2009 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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If SC disqualifies Erap, what happens?

WHAT IF?: Now suppose deep into the presidential campaign next year the Supreme Court disqualified former President Erap Estrada for being ineligible to run for reelection, what happens?

Of course he would move for reconsideration and keep arguing. This could prolong the suspense.

But what if the SC resolved the issue promptly and disqualified him before the May elections? Could his vice presidential running mate (say it is Sen. Chiz Escudero, for purposes of discussion) take the vacated presidential slot?

(Some quarters are saying that Estrada’s vice presidential teammate would be lucky, because if he were disqualified just as the tandem is gaining ground, his partner could move up and inch nearer the presidency.)

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NO SUBSTITUTION: Election lawyer Romy Macalintal doused cold water on that. He said that when Estrada is disqualified, it would be as if he did not file a certificate of candidacy at all.

Estrada would just disappear from the list, he said, leaving his party without a presidential candidate. By that time it would be too late to file a substitute certificate of candidacy for another party member.

If AttyMac is right, our hypothetical Escudero would not be allowed to take Estrada’s place. Their party would limp along without a presidential candidate — and that could be a major setback.

The case of then Sen. Gaudencio Antonino whose wife Magnolia substituted for him when he died a day before the 1967 senatorial election was different. The Antonino certificate of candidacy was valid, making substitution legally feasible.

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QUESTION OF WHEN: If Estrada’s disqualification comes after the elections, Escudero (assuming he wins as vice president) might just become the president — depending on the circumstances.

If Estrada was already proclaimed winner and sworn in before the Supreme Court resolved the issue, may habol pa ba? Some quarters are saying that in such a situation, the question would have been rendered moot and academic.

AttyMac said, however, that he expected a speedy court ruling. Even now, he noted, the SC justices must be already studying the matter so they would be ready when it comes before them.

If Estrada is subsequently unseated as president, Escudero (if he wins as vice president) becomes the president. He then nominates either a senator or a congressman to replace him with the majority approval of each chamber of the Congress.

But if Estrada is barred before Election Day, whoever is the presidential candidate who gets the most number of votes wins. Since the hypothetical Escudero is running for vice president, he will not be in contention for the presidency.

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AFTER THE FACT: Expect lawyers to jump in and widen the realm of legal possibility. In a post-proclamation tussle, the SC might be asked to pull the rug from under Estrada on the basis of a grave abuse of discretion on the part of Congress.

It is the Congress, with the Senate and the House of Representatives in joint session, that proclaims the winners in the national election for president and vice president.

The other side is: How could there be abuse if Congress proceeded to proclaim the winners before the Supreme Court could hand down a ruling or order a return to the status quo ante (the situation before the dispute)?

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DIRECT MEANING: Estrada and his lawyers are ready to argue that he should not be disqualified on the basis of Section 4, Article VII (The Executive Department) of the Constitution. The counter-arguments sound just as convincing.

Section 4, which talks of the President being elected and sworn into office for a six-year term, says in part: “The President shall not be eligible for any reelection.

I will get flak for this, but I dare say that to those who understand English, the direct denotative meaning of that sentence is clear. We do not have to complicate matters by looking for some hidden interpretation.

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WHAT’S BEING SAID: Note that the “The” before “President” in Section 4 is a definite article. The subject of that sentence is “the President.” Since Estrada is not “the President,” that simple sentence does not refer to him.

“The President” refers to the sitting President, who happens to be Gloria Arroyo. She is the one who is barred from running for reelection.

Estrada has been out of office since 2001. He is definitely not “the President.” He is not running for reelection. He is simply running again.

(Before the Text, Email and Bloggers Brigade of the politicians descend on me, let me clarify: I am not saying that I want Estrada to run, or to win, or that he would make a good president. I am just saying that he is not “the President” so the ban under Section 4 against “the President” does not apply to him.)

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FAILURE OF ELECTION: Don’t worry, there is one sure way of mooting the debate: Have Sen. Manny Villar (Nacionalista Party) swamp Estrada by at least two million votes in May next year.

With Villar dominating the surveys, he might just be able to do that. That is, provided he does not peak too fast and too early.

At the rate the game is progressing, the May elections could be a tossup between Villar and Estrada. The other candidates need not mope. The moment of truth is still 10 months away and that is a lot of time.

But keep in mind that although we have been promised an election, we have not been assured there would not be a Failure of Election.

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(First published in the Philippine STAR of August 27, 2009)

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