Due process is fine, but will he get away? - GOTCHA by Jarius Bondoc

It’s a classic case of the pursued running for dear life faster than the pursuer, of the hunted plotting better when cornered to elude the hunter.

Nine plunder cases are dogging Joseph Estrada, for which he can’t post bail and faces possible death. His options are shrinking. He’d like to flee the borders, but police and military intelligence have him under tight watch. So he has his favorite son whipping up publicity stunts about Malacanang officials supposedly offering him self-exile. His successor talked about five groups of generals who had confided to her their plots to oust him last year. So he had his lawyer yakking about an unconstitutional coup d’etat. He knows that his former military chief holds fond memories of him. So he wangled three platoons of security men on government payroll, even if other past Presidents have less than five men each. Militant youths and lawyers are closely watching how state prosecutors handle his cases, so he’s trying to win sympathy by crying about a lynch mob. His lawyers are masters in invoking due process, and in fact got the Supreme Court to gag prosecutors from talking about the cases. That cleared the field for him to tell anybody who’d care to listen that his cronies-turned-state witnesses are lying just to save themselves.

Some of his tricks are working, most are not. But Estrada has pinned his defense on two strategies: his claim to still be President so he can enjoy immunity from suit, and his campaign for 13 senatorial candidates so he can move about to foment a class war. He has the upperhand so far.

The game is such that Estrada must never say die, or else he dies. The Supreme Court already ruled 13-0, with two justices inhibiting, that Gloria M. Arroyo’s rise to the Presidency on Jan. 20 was constitutional. Not one to surrender that easy, Estrada sought a reconsideration, arguing that he never resigned as President. For good measure, he wants ten other justices to inhibit themselves too, since they were there with the first two at EDSA Shrine when GMA took her oath of office. Like a sore loser at poker crying misdeal and asking for a new deck of cards, Estrada says 12 justices of the Court of Appeals should sit unprecedented as the Supreme Court en banc to rule with finality. One can only wonder what procedural mistake he’ll invoke next if the ruling doesn’t suit him.

That original Supreme Court ruling had four of the 13 justices saying Estrada enjoys immunity nonetheless. Pouncing on this, Estrada also asks the Supreme Court, either as is or replaced by appellate justices, to revote for immunity by a majority. But he no longer is arguing for it on supposed constitutional grounds, for nowhere in the Charter is immunity granted to the President, or anybody for that matter. Too, in US jurisprudence which is part of RP’s own, the federal Supreme Court had ruled that Richard Nixon may be sued for perjury even while in office. This, coupled with looming impeachment for obstructing justice, pressured Nixon to resign. So Estrada is arguing for immunity by invoking another constitutional provision, that which forbids double jeopardy, or trying a person more than once for the same offense. He says the Senate already had tried and, by not finishing the impeachment proceedings, acquitted him of plunder and other high crimes. So no court may touch him now. It’s all hogwash, of course. For, an impeachment trial is a political process to determine if a President must be deposed, not a criminal process to determine if he must go to prison. The same provision on impeachment in fact states that a President may be criminally charged in court for the same crimes after his Senate trial.

As part of due process, the justices granted Estrada his mandatory day in court – actually a mandatory yet undetermined number of days out of the clutches of the court. Until they render final judgment, the Ombudsman may not touch him. And so Estrada is free to barnstorm and rouse his masses for a class war against Rich People’s Power, à la Juan Peron, perhaps.

But if Peron had real crowds of peasants and workers rooting for his return, Estrada only has his usual bused-in cheerers. Four days after GMA was jeered by a family in Manila’s Smokey Mountain squatter resettlement, Estrada sought to steal the show and prove his unwavering popularity. Six hundred "urban poor" met him there, shouting, "Erap pa rin." To which he replied that the elite of Makati’s gated subdivisions and boardrooms had deprived them of their President. Estrada made a hoopla out of it on TV. Unknown to many, except for Smokey Mountain community leaders and social workers, most of the cheerers came from elsewhere hours before to stick senatorial campaign posters of Estrada’s wife Loi Ejercito on the tenement walls. Then, they took lunch at the many corner stalls to announce the afternoon arrival of their beloved leader. They also coached children on greeting Estrada with the cheer they saw on TV from his remnant supporters on his last day in Malacañang.

A report by CyberDyaryo quotes community worker Merla Revilleza as saying that some Smokey Mountain residents are, indeed, pro-Estrada. But not all, not majority. GMA just happened to knock on the door of a pro-Estrada family, and was thus sent away. Others jeered her, too, but only on the chance that she’d visit their home, too, so they could pour their hearts out and ask for help. When Estrada came four days later, he had showbiz sets and production ready.

The idea is to project Estrada as still popular so that his candidates, especially wife Loi, would be sure winners. But few are jumping onto the bandwagon. Estrada is said to enjoy a consistent 18-percent support of the electorate. It showed when he ran for senator in ’87 and for Vice President in ’92. Political analysts say the 30-percent plurality he notched in the 1998 presidential election was a combination of his 18 percent and GMA’s own consistent 8-12 percent. (In that election, most voters went for a mixed Estrada-GMA party choice.) The 18 percent is more than enough to land a senatorial candidate in the winning circle of 13. But it seems Estrada can’t lend his popularity to Loi; she’s stuck in the 17th to 19th slots in all the surveys. Yet that may not be stategically salient to Estrada. More pressing for him is to stay out of jail.

And so he goes on a legal offensive. Questioning the Ombudsman’s jurisdiction over him, Estrada nonetheless replied to one of its nine cases of plunder. He said he couldn’t have coerced his childhood friend ex-SSS chief Chuckie Arellano and his one-time campaigner ex-GSIS head Federico Pascual into buying shares of Belle Corp. The investment departments of the two mutual funds had approved the buy-in. He denied taking a P190-million commission from cash-starved Belle for it, too, claiming that crony Willy Ocier was lying. He belied crony Mark Jimenez’s sworn statement that he borrowed P126 million against the forthcoming kickback. But Estrada couldn’t explain why both checks landed in an Equitable-PCIBank account under the name of Jose Velarde. That is the same account whose papers, according to bank executive Clarissa Ocampo in testimony before the Senate, Estrada signed just a foot away from her.

Prosecutors believe that Estrada’s are open and shut cases. All they need to do is clap him in jail with no bail, as the law on plunder prescribes, for trial to proceed posthaste. Problem is, Estrada is invoking all the tricks available under due process to delay justice - no different from how his lawyers used legal maneuvers to first delay his impeachment, then the presentation of prosecution witnesses in his Senate trial, and finally to quash evidence of the Velarde account. That last straw sparked People Power-II. It’s unlikely that people will come out in droves anew to decry the way Estrada’s lawyers are laying more and more traps to delay the pursuit of justice. More likely, communist New People’s Army rebels will find it their patriotic duty to exact their brand of justice.

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