A non-productive detour

Lawyer Alan F. Paguia argues that the justices of the Supreme Court made a mistake on January 20, 2003 when they permitted Vice President Gloria Macapagal-Arroyo to succeed to the presidency. There was no vacancy in the presidency, he insists, because the incumbent president, Joseph Ejercito Estrada, never resigned.   The Supreme Court abused its authority. Joseph Estrada remains the president of the Philippines, Paguia maintains, and, as such, he cannot be sued.

Offered this compelling script, Erap has hired Paguia as his lawyer. Instead of presenting evidence to refute the plunder charges at the Sandiganbayan, Estrada is questioning the jurisdiction of the court over him.  “I’m still president of the republic,” he told the court at his last appearance, parroting the line of immunity from suit.

I don’t think it takes a lawyer to know what is going to happen next. The Sandiganbayan will throw out Estrada’s petition and will assert its jurisdiction.  It will rule that Estrada can be prosecuted like anyone else because he is no longer president.  It will remind the petitioner that the Supreme Court in previous petitions filed by Estrada himself has repeatedly affirmed the legality of Macapagal-Arroyo’s succession to the presidency.

Paguia will, of course, question the Sandiganbayan’s views.  But to which higher court will he then appeal the ruling?  The Supreme Court will simply tell him, perhaps patiently or with some annoyance, that the issue he is bringing before the court has been previously resolved.  The SC will say again and again that, in its judgment, Estrada resigned.  The Supreme Court might remind him also that even if his client were still president, he could still be charged because “the unlawful acts of public officials are not acts of the State, and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.” Paguia’s path is obviously a dead-end for his client.  It may buy the former president a little time, but this won’t be enough to derail the proceedings at the Sandiganbayan till the election of a new president in 2004.  Estrada has no choice but to defend himself; it is his turn to refute the evidence.  For this he would need skillful and experienced lawyers, not political scriptwriters with large imaginations.

The only face-saving way out of this cul de sac is to file an impeachment complaint against the justices of the Supreme Court who, Paguia says, abused their authority and violated the law when they appeared at the Edsa Shrine to witness the oath taking of Gloria Macapagal-Arroyo.  At the very least, he argues, these justices should have inhibited themselves from hearing and ruling on the petitions which they, by their past actions, had already prejudged.  In fact, to preserve the integrity of the proceedings, rather than as an admission of partiality, Chief Justice Davide and Associate Justice Artemio Panganiban did inhibit themselves from the case.

By our system of laws, all impeachment cases must originate from the House of Representatives.  How Congress will treat such a complaint is an open question.  Perhaps only a few of the present members of the house will remember that then Speaker Emmanuel Fuentebella was also present at the Edsa Shrine swearing-in, and that three days after the event, the house passed Resolutions 175 and 176 supporting the new president’s assumption to office.  Those among the incumbent members of the lower house who openly took sides in these and subsequent events should, as a matter of propriety, also recuse themselves if an impeachment complaint against the SC justices were filed.  The same imperative, of course, also applies to the present senate.  Certainly, it will be argued that impeachment is both a political and a judicial exercise, and that therefore neutrality is not demanded of the members of Congress.

Here, I guess, lies precisely the crux of this unfolding script.  As a young nation we have indeed been struggling to establish a rule of law in our land.  A society’s constitution is the foundation of such a rule of law.  And yet our recent past is littered with numerous extraconstitutional events either instigated by our elected presidents or triggered by the spontaneous movement of our people.  Does this mean we are fated to be governed by unstable and illegal regimes?  I don’t think so.

These events belong to the realm of the political.  Though falling short of what is regarded as revolutionary, they do supersede the strictly legal.  This would not be so jarring if we thought of law as frozen politics. Marcos’s martial law regime, even though it tried to project itself as a constitutional authoritarianism, was of this nature.  So was the government of President Aquino, under its so-called “Freedom Constitution.”  Edsa II, though far less radical in its intent and effects than martial law or Edsa I, also belongs to this class of political events.  All such upheavals produce their own specific ways of legalizing the governments to which they give rise.

The question of a regime’s legality only persists when its political base has been considerably eroded.  Then its enemies start to sharpen their knives and test their strength.  The Arroyo government may not be as popular as it was in 2001, but I do not see it not finishing its term.  The present political alignments are simply not conducive to another constitutional crisis.  It will be better for Erap to hire the best lawyers and face his cases at the Sandiganbayan, while he mobilizes what remains of his constituency to support a friendly candidate for the 2004 presidential elections.


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