Should Erap run?

I am writing this column from the perspective of a teacher of Constitutional Law and an amateur historian.

At the outset, let it be said that I view President Erap in a positive light, as even if he did not know me personally, he appointed me as a member of the Presidential Commission on Constitutional Reforms in 1999. Moreover, his reputation as a kind and generous soul precedes him. And yet, I considered it to be my civic duty to give my four centavos on whether President Erap should run again for the Presidency.

I have studied the arguments regarding his ability to run. He needs to go thru two legal hoops to do so.

The first hoop involves the alleged violation of the pardon extended to him by President GMA when he was convicted by the Sandiganbayan for plunder in September 2007. The legal issue is whether the pardon extended to him was conditional or absolute. Malacañang claims that it was conditional as one of the “Whereas Clauses” of the pardon stipulated that “he (i.e., President Erap) has publicly committed to no longer seek any elective position or office.” On the other hand, President Erap argues that it was absolute because the body of the pardon contained an express provision reinstating all of his civil and political rights.

Basic is the legal principle that the nature of the pardon given is highly dependent on the authority which granted the pardon. If such authority deems the pardon as conditional, then the courts usually deem it so. Moreover, conceding that the drafting was faulty, it is quite apparent from the “Whereas Clause” quoted above that the intent was to grant the pardon subject to a condition. I am certain that President’s Erap’s filing of his certificate of candidacy will trigger a mad rush to the courthouse with SCRA regulars Oliver Lozano and Ernesto Francisco leading the dash.

The second legal hoop is found in the second sentence of Article VII, Section 4 of the Constitution which states that “The President shall not be eligible for any re-election.” Lawyers for President Erap argue that the article “The” before the term “President” suggests that the reference is only to the incumbent as opposed to former Presidents. Moreover, they use the next sentence in that section which states that “No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at anytime” to mean that since President Erap did not serve for more than four years as President, then he is not barred from running again.

On the other hand, the legal naysayers point out that the key term in the sentence quoted above is not the word “the” but the phrase “any re-election.” They argue that all Presidents who have been elected regardless of how long they stayed in office are perpetually barred from running again for the same position. Similarly they believe that the reference to the next sentence is misplaced as that only pertains to those who have succeeded to the Presidency (as in the case of then Vice President Arroyo).

We were taught in law school that in case of doubt in the meaning of legal words and phrases, we should consult the intent of the framers of the law. In this instance, resort would be to the deliberations of the 1987 Constitutional Commission. The intent of the latter is quite clear – that the prohibition on re-election applied to ALL our Presidents.

Erap’s lawyers try to counter this by arguing that what is controlling is not the intent of the authors but the intent of the people which ratified the document. But how do we determine the latter? This would be a case of “your guess being as good as mine.” And we all know that an overwhelming majority of those who ratified the 1987 Constitution really did not know what they were voting for. Amidst this legal backdrop, it would be easy for the Supreme Court to adopt the more prudent interpretation of prohibiting him from running.

This brings me back to the title of this column. The legal debate may be able to answer the question whether President Erap CAN run but it does not answer the more important issue whether he SHOULD run in the first place.

And this is where my amateur historian’s hat comes into play. For President Erap to pursue his candidacy until the end would be truly ironic. He would be doing precisely what he strongly castigated Senator Ping Lacson for in 2004 – splitting the opposition vote.

Not only will he be running under a cloud of legal uncertainty, his political message also seems to be off synch. For just like the 2008 US presidential elections, it would seem that the overriding theme of our upcoming 2010 elections is the desire for change. It would be difficult for President Erap to portray himself to be that agent of change.

As a film aficionado, President Erap knows that the sequel is never as good as the original. My four centavos is for President Erap to assume a king maker role and to just use his still formidable clout to help elect a transformational leader. This act of self sacrifice may yet be the source of real vindication and turn out to be his best political performance ever.

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This week’s four centavos go to the memory of former Chief Justice and Senate President Marcelo Briones Fernan whose 82nd birthday we commemorate today. I join Tita Elo and the rest of the Fernan family in remembering and celebrating his extraordinary life of achievement and service.

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“We make a living by what we get,

we make a life by what we give.” — Winston Churchill

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