“HOW DO YOU SOLVE A PROBLEM LIKE

ERAP?”:

Legal Issues on the Presidential Bid of Joseph E. Estrada

On
2010 Presidential Election

A Legal Research
Presented to
Palawan State University
School of Law

In Partial Fulfillment
Of the Requirements for the Subject
Introduction to Law and Legal Research

Submitted To:
Atty. Ma. Eliza M. Vergara-Ustares

Submitted by:
Arquero, Aleen Jay B.
Severino, Emilia Concepcion D.
Wu, Nicole Francine P.
 First Year Law Students – Section A
30 October 2009

I. Introduction

Quoting from the musical Sound of

Music, the question “How do you solve
a problem like Erap?”, stumbled upon
the legal arena when JOSEPH “ERAP
ESTRADA announce his presidential
bid at a huge rally in teeming Tondo,
Manila , last October 21, 2009.
Carrying the banner of “Tapat sa
Mahirap, Samahang Tunay,” the former president also proclaimed his teammate,
Makati’s unsinkable Mayor Jojo Binay, and his senatorial slate led by Senate President
Juan Ponce Enrile. The pardoned plunderer, made this announcement amidst a great
crisis, in the middle of a calamitous month, during a continuing emergency that has
traumatized millions of Filipino families. Why should the people vote for him again?
Because he said, “This is the last performance of my life and I will not fail you”.

After such announcement, legal scholars, from retired justices to known legal
practitioner, and even laymen alike have given their two cents’ worth on the legal issues
surrounding Estrada’s quest for the presidency.

For this reason, Our Group, as First Year law students of the PSU-Law School,
find it fitting to likewise render not just our personal opinion on the matter, but apply the
law, legal principles and jurisprudences we have learned and acquired in our six-months
stay in law school. We will answer all the issues and controversies that arose when he,
Erap, announced his candidacy for presidency, to the best of our knowledge and ability
without regard to any of our political belief and persuasion.

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 In the end, the answers to the question of “how do you solve a problem like
Erap” will stay not only in our legal jurisprudence but it will forever remain in our
history, political or otherwise.

II. PERTINENT PROVISIONS

Of the

1987 Philippine Constitution

The following are the provisions of the 1987 Philippine Constitution that are
relevant to our Legal Research:

ARTICLE VII

EXECUTIVE DEPARTMENT

Section 1. The executive power shall be vested in the President of the Philippines.

Section 2. No person may be elected President unless he is a natural-born citizen of

the Philippines, a registered voter, able to read and write, at least forty years
of age on the day of the election, and a resident of the Philippines for at
least ten years immediately preceding such election.

Section 3. There shall be a Vice-President who shall have the same qualifications and
term of office and be elected with, and in the same manner, as the
President. He may be removed from office in the same manner as the
President.

The Vice-President may be appointed as a Member of the Cabinet. Such

appointment requires no confirmation.

Section 4. The President and the Vice-President shall be elected by direct vote of the
people for a term of six years which shall begin at noon on the thirtieth day
of June next following the day of the election and shall end at noon of the
same date, six years thereafter. The President shall not be eligible for any

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re-election. 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 any time.

No Vice-President shall serve for more than two successive terms.

Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the full
term for which he was elected.

Unless otherwise provided by law, the regular election for President and
Vice-President shall be held on the second Monday of May.

The returns of every election for President and Vice-President, duly

certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the Senate shall, not
later than thirty days after the day of the election, open all the certificates in
the presence of the Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the authenticity and due
execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected,
but in case two or more shall have an equal and highest number of votes,
one of them shall forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the
certificates.

The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.

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Section 5. Before they enter on the execution of their office, the President, the Vice-
President, or the Acting President shall take the following oath or
affirmation:

"I do solemnly swear [or affirm] that I will faithfully and conscientiously
fulfill my duties as President [or Vice-President or Acting President] of the
Philippines, preserve and defend its Constitution, execute its laws, do
justice to every man, and consecrate myself to the service of the Nation. So
help me God." [In case of affirmation, last sentence will be omitted].

Section 6. The President shall have an official residence. The salaries of the President
and Vice-President shall be determined by law and shall not be decreased
during their tenure. No increase in said compensation shall take effect until
after the expiration of the term of the incumbent during which such increase
was approved. They shall not receive during their tenure any other
emolument from the Government or any other source.

Section 7. The President-elect and the Vice President-elect shall assume office at the
beginning of their terms.

If the President-elect fails to qualify, the Vice President-elect shall act as

President until the President-elect shall have qualified.

If a President shall not have been chosen, the Vice President-elect shall act
as President until a President shall have been chosen and qualified.

If at the beginning of the term of the President, the President-elect shall

have died or shall have become permanently disabled, the Vice President-
elect shall become President.

Where no President and Vice-President shall have been chosen or shall

have qualified, or where both shall have died or become permanently
disabled, the President of the Senate or, in case of his inability, the Speaker

5
 of the House of Representatives, shall act as President until a President or a
Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the manner in which one who is to
act as President shall be selected until a President or a Vice-President shall
have qualified, in case of death, permanent disability, or inability of the
officials mentioned in the next preceding paragraph.

Section 8. In case of death, permanent disability, removal from office, or resignation

of the President, the Vice-President shall become the President to serve the
unexpired term. In case of death, permanent disability, removal from office,
or resignation of both the President and Vice-President, the President of the
Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice-
President shall have been elected and qualified.

The Congress shall, by law, provide who shall serve as President in case of
death, permanent disability, or resignation of the Acting President. He shall
serve until the President or the Vice-President shall have been elected and
qualified, and be subject to the same restrictions of powers and
disqualifications as the Acting President.

Section 9. Whenever there is a vacancy in the Office of the Vice-President during the
term for which he was elected, the President shall nominate a Vice-
President from among the Members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority
vote of all the Members of both Houses of the Congress, voting separately.

Section 10. The Congress shall, at ten o'clock in the morning of the third day after the
vacancy in the offices of the President and Vice-President occurs, convene
in accordance with its rules without need of a call and within seven days,
enact a law calling for a special election to elect a President and a Vice-
President to be held not earlier than forty-five days nor later than sixty days

6
 from the time of such call. The bill calling such special election shall be
deemed certified under paragraph 2, Section 26, Article V1 of this
Constitution and shall become law upon its approval on third reading by the
Congress. Appropriations for the special election shall be charged against
any current appropriations and shall be exempt from the requirements of
paragraph 4, Section 25, Article V1 of this Constitution. The convening of
the Congress cannot be suspended nor the special election postponed. No
special election shall be called if the vacancy occurs within eighteen
months before the date of the next presidential election.

Section 11. 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.

Whenever a majority of all the Members of the Cabinet transmit to the

President of the Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers
and duties of his office, the Vice-President shall immediately assume the
powers and duties of the office as Acting President.

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.
Meanwhile, should a majority of all the Members of the Cabinet transmit
within five days to the President of the Senate and to the Speaker of the
House of Representatives, their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall
decide the issue. For that purpose, the Congress shall convene, if it is not in
session, within forty-eight hours, in accordance with its rules and without
need of call.

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 If the Congress, within ten days after receipt of the last written declaration,
or, if not in session, within twelve days after it is required to assemble,
determines by a two-thirds vote of both Houses, voting separately, that the
President is unable to discharge the powers and duties of his office, the
Vice-President shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office.

Section 12. In case of serious illness of the President, the public shall be informed of
the state of his health. The members of the Cabinet in charge of national
security and foreign relations and the Chief of Staff of the Armed Forces of
the Philippines, shall not be denied access to the President during such
illness.

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 III. Events and Circumstances

After Estrada declared his presidential bid, constitutional

experts and legal experts continue the debate on the
legitimacy of his impending candidacy. GMANews.TV file
photo

A day after former President Joseph Ejercito

Estrada announced that he is taking another
shot at the presidency, another round of debate
on the legitimacy of his plan has erupted among
constitutional experts and legal luminaries. How often one become president of the
Philippines? Can Estrada – 13th President, impeached in Congress, ousted through a
popular uprising, convicted of plunder and granted pardon by his successor – run for the
position again?

Before these questions can be answered, let us first take a view of the panorama
of events that precipitated in the last eleven years, from the time Mr. Estrada was elected
for the highest position of the land to the time he publicly declared his intent to run for
the same position in 2010 Presidential Elections.

On May 11, 1998, Joseph Ejercito Estrada was elected as President of the
Republic of the Philippine and Gloria Macapagal- Arroyo was voted for as Vice-
President. They both have a six-year term beginning on June 30 of the same year. After
two years, President Estrada’s power started to decline because of the exposé of his long
time friend, Ilocos Sur Governor Luis ‘Chavit’ Singson, regarding the large sums of
money that he and his family were receiving as jueteng lords.

This exposé raised a lot of ire reactions from different sectors of the government
and the society. Upon the explosion of this topic, Senator Teofisto Guingona Jr., then the
Senate Minority Leader, delivered a very heated privilege speech he delivered on October
5, 2000, entitled “I Accused”. In his speech, he accused former President Estrada of

9
receiving a total of P220 million of jueteng money from Governor Singson from
November 1998 to August 2000. He also mentioned that former President Estrada
received P70 million on excise tax from cigarettes that was for the province of Ilocos Sur.
These issues called the attention of Senator Franklin Drilon, the Senate President at that
time and asked Senator Aquilino Pimentel, head of the Senate Blue Ribbon Committee
and Senator Renato Cayetano, head of the Senate Committee on Justice for a joint
investigation. On the other hand, the House of Representatives did the same thing. The
House Committee on Public Order and Security, then headed by Representative Roilo
Golez, decided to investigate the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded
the move to impeach the President.

The issue also ignited the religious groups to call for his resignation. In a pastoral
statement released by Archbishop Jaime Cardinal Sin on October 11, 2000, he called for
the resignation of President Estrada for the reason that he failed to govern the country in
moral and upright way. Several days later, Former Presidents Corazon C. Aquino and
Fidel V. Ramos asked him to step down and to look at his resignation as a supreme
sacrifice. But President Estrada clung to his position and refused to resign.

On November 13, House Speaker Villar transmitted the Articles of Impeachment

signed by 115 representatives, or more than 1/3 of all the members of the House of
Representatives to the Senate. On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges
with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.

December 7, 2000, is the day that made its mark in history. The impeachment
trial started and it was a royal rumble of the biggest names in the legal profession. On the
prosecution side, they were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were supported by an array of private prosecutors led by now

10
Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo.
Making the defense were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and
his brother, Atty. Raymund Fortun.

The battle royale started and it was shown on a day-to-day basis on the television.
The statement of Clarissa Ocampo, senior Vice President of Equitable- PCI Bank, made a
momentous testimony that shook the hearings. She testified that she was one foot away
from petitioner Estrada when he affixed the signature "Jose Velarde" on documents
involving a P500 million investment agreement with their bank on February 4, 2000.

The impeachment trial was cut short because of the Christmas season. When it
was resumed on January 2, 2001, more explosive issues were uncovered by the
prosecution. Atty. Edgardo Espiritu who served as Estrada's Secretary of Finance took
the witness stand. He alleged that the Estrada jointly owned BW Resources Corporation
with Mr. Dante Tan who was facing charges of insider trading. January 16, the day that
could have turned the tables upside down, when by a vote of 11-10 the senator-judges
ruled against the opening of the second envelope which allegedly contained evidence
showing that President Estrada held P3.3 billion in a secret bank account under the name
"Jose Velarde. " The public and private prosecutors walked out in protest of the ruling.
Senator Pimentel resigned as the Senate President because of the unfaithful event. The
ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets
of the metropolis. By midnight, thousands had assembled at the EDSA Shrine.

Senator Raul Roco motioned that the impeachment trials be postponed

indefinitely because the public prosecutors collectively resigned. Chief Justice Davide
granted the motion for the indefinite postponement of the impeachment trials. On January
18, the height of the call for his resignation was at its peak. A 10-kilometer line of people
holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in

11
demanding petitioner's resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance.

The fall from power of President appeared inescapable. On January 19, 2001, the
Chief of Staff of the Armed Forces of the Philippines had absconded. Also in the same
day, President Estrada agreed to hold a snap election for President provided that he would
not be a candidate, however this did not put out the flames of anger of his defectors and
of the people. Secretary of National Defense Orlando Mercado and General Reyes,
together with the chiefs of all the armed services went to the EDSA Shrine. In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the
130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government." PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar surprising announcement. His
Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs withdrew
their support to the government and resigned from their posts. To somewhat tame the tide
of rage, he ordered his lawyers to agree to the opening of the controversial second
envelope. Unfortunately, this was not enough to put out the flame that has now became a
quick-spreading wild fire.

January 20, 2001, turned out the day of the downfall of the President. At 12:20
a.m., the first round of negotiations for the peaceful and orderly transfer of power started
at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo
Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito
Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance
Alberto Romulo and now Secretary of Justice Hernando Perez. Outside the palace, there
was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted
in stone-throwing and caused minor injuries. The negotiations consumed all morning
until the news broke out that Chief Justice Davide would administer the oath to

12
respondent Arroyo at high noon at the EDSA Shrine. Chief Justice Davide administered
the oath to respondent Arroyo as President of the Philippines at 12 noon. At 2:30 p.m.,
the President and his family hurriedly left Malacañang Palace. He issued the following
press statement after.

"20 January 2001

STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo

took her oath as President of the Republic of the Philippines. While along
with many other legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of our people with
gratitude for the opportunities given to me for service to our people. I will
not shirk from any future challenges that may come ahead in the same
service of our country.

I call on all my supporters and followers to join me in to promotion of a

constructive national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"

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 September 12, 2007, he was sentenced to life imprisonment for plunder. Then in
October 25, 2007, President Arroyo, who succeeded Estrada, granted him executive
clemency, which also restored his political and civil rights. Since then, Estrada has
reiterated his eligibility to run for re-election, saying he is not covered by the election-ban
under the Constitution. (Source: Estrada v. Arroyo, G.R. No. 146738, March 2, 2001)

On October 21, 2009, at the Plaza Hernandez in Tondo, Manila, before some
10,000 supporters, he formally declared his intention to contest the presidency anew.
Why should people vote for him again? Because he said, “This is the last performance
of my life and I will not fail you”.

IV. Legal Issues

There are two (2) main legal issues that arose and should be resolved when
Former President Joseph Ejertcito Estrada declared his intention to join the race for
presidential elections in 2010. They are as follows:

Issue No. 1: Conditional Pardon vs. Absolute Pardon

Issue No. 2: Eligibility for Re-Election

We would answer these issues from the perspective view of First Year Law
Students and as amateurs in the legal arena.

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 Issue No. 1: Conditional Pardon vs. Absolute Pardon

The first bone of contention against the eligibility of Joseph “Erap” Estrada to run
for president on the 2010 National Elections is whether or not President Gloria M.
Arroyo’s pardon for his conviction for plunder did not include his disqualification
to hold any public office.

Let us start first with a little background. Estrada was elected president in 1998,
but two years later, he was plunged into a corruption scandal, involving pay-offs from
proceeds of illegal jueteng. The scandal triggered his impeachment October 2000. By
January 2001, Estrada was removed from office by People Power sparked by the
suppression by the Senate, acting as the impeachment tribunal, of evidence on Estrada’s
bank transactions.

The Filipinos were astonished by the swift of Estrada’s fall. Evidence produced
at the impeachment trial served as the basis of criminal prosecution which led to his
conviction on the charges of plunder in 2007 and imprisonment. The following is the
dispositive portion of the decision of the Sandiganbayan Special Division1:

“In sum, the Court finds that prosecution has proven beyond reasonable
doubt the commission by the principal accused former President Joseph
Ejercito Estrada of the crime of plunder xxx

WHEREFORE, in view of all the foregoing, judgment is hereby rendered

in Criminal Case No. 26558 finding the accused, Former President
Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime
of PLUNDER defined in and penalized by Republic Act No. 7080, as
amended. xxx

The penalty imposable for the crime of plunder under Republic Act No.
7080, as amended by Republic Act No. 7659, is Reclusion Perpetua to
Death. There being no aggravating or mitigating circumstances, however,
the lesser penalty shall be applied in accordance with Article 63 of the
Revised Penal Code. Accordingly, accused Former President Joseph
Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion

1
People vs. Joseph Ejercito Estrada, et. al, Criminal Case No. 26558, For Plunder, 12 September 2007,
Sandiganbayan Special Division; Villaruz, Jr. and Peralta, JJ.

15
 Perpetua and the accessory penalties of civil interdiction during the
period of sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito

Estrada has been under detention shall be credited to him in full as long
as he agrees voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners. Moreover, in accordance with Section
2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the
Court hereby declares the forfeiture in favor of the government of the
following:

(1) The total amount of Five Hundred Forty Two Million Seven Hundred
Ninety One Thousand Pesos (P545,291,000.00), with interest and income
earned, inclusive of the amount of Two Hundred Million Pesos
(P200,000,000.00), deposited in the name and account of the Erap
Muslim Youth Foundation.

(2) The amount of One Hundred Eighty Nine Million Pesos

(P189,000,000.00), inclusive of interests and income earned, deposited in
the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as “Boracay
Mansion” located at #100 11th Street, New Manila, Quezon City.

SO ORDERED.” (Italics and underscoring ours).

Former President Estrada holds

back his tears as he waves to
journalists after his conviction by
the Sandiganbayan in 2007.
GMANews.TV file photo

However, just a month and a

half later, on October 25
2007, he was quickly
pardoned by President Gloria
Macapagal-Arroyo. The full
text of the Order of Executive
Clemency of President GMA was announced on a nationwide television by the former
Executive Secretary Ignacio “Toting” Bunye, which reads as follows:

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 “Whereas, this Administration has a policy of releasing inmates who have
reached the age of seventy (70),

“Whereas, Joseph Ejercito Estrada has been under detention for six and a
half years,

“Whereas, Joseph Ejercito Estrada has publicly committed to no longer

seek any elective position or office,

“In view hereof and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to Joseph Ejercito
Estrada, convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. He is hereby restored to his civil and
political rights. (Underscoring ours)

“The forfeitures imposed by the Sandiganbayan remain in force and in

full, including all writs and processes issued by the Sandiganbayan in
pursuance hereof, except for the bank account(s) he owned before his
tenure as President.

Signed:

President Gloria M. Arroyo

25 of October 2007”

The camp of the Former President has alleged that the executive clemency
granted to him by PGMA is an absolute pardon and not a conditional one, thus restoring
all his civil and political rights. They anchored their arguments that he is eligible to run
for presidency on paragraph 4 of the above order which states: “He is hereby restored of
his civil and political rights.” In an interview he granted after his declaration on October
21, 2009 of his intention to run for 2010 presidential elections, he said that he could seek
the presidency again since his political rights were restored through the executive
clemency. “If I can vote, it means I can be voted upon,” Erap said.2

Upon the other hand, Malacañang, through Executive Secretary Eduardo Ermita
pointed out that PGMA’s pardon of Estrada in 2007, after he was convicted of plunder,
contains a pre-condition that bars the former leader from running again in 2010. Their

2
www.3.sunstar.com.ph/network/estrada-declares-bid-amid-legal-questions
Interview and report was made by Jill Beltran, Sunstar

17
contention was based on the “Whereas” clause of the executive clemency which stipulate
that “he (i.e., President Erap) has publicly committed to no longer seek any elective
position or office.”

Several legal luminaries, including Former Justice Artemio Panganiban, have

given their opinions on the matter at hand. The former justice opined that the presidential
clemency extended to Erap was absolute and unconditional; it erased both the principal
penalty of imprisonment and the accessory penalty of electoral disqualification. A
condition retaining an accessory imposes a burden; hence it should have been couched in
a clear language. However, the pardon did not contain any clear burdens. Quite the
contrary, it expressly “restored his civil and political rights.3

A contradicting opinion was given by Dean Andy Bautista4. He said 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 that 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”, supra, that the intent was to grant the pardon
subject to a condition.

Before We (the Group) give our stand on the first issue herein presented, it is
deemed appropriate that we discuss first the pertinent constitutional provisions that grant
the President power of executive clemencies and the limitations of such powers. What is
a pardon, its nature and effects or consequences if extended to a person accused of a
crime.

The Constitutional Provisions

3
Philippine Daily Inquirer, Sunday, 25 October 2009, Opinion Column, “With due Respect, by Artemio V.
Panganiban.
4
The Philippine Star, Saturday, 24 October 2009, Opinion Column, My Four Centavos, “Should Erap
Run?”

18
Article VII, Section 195
“Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.

It shall also have the power to grant amnesty with the concurrence of the
majority of all the Member of the Congress”.

Article IX(C), Section 56

“No pardon, amnesty, parole, or suspension of sentence for violation of

election laws, rules, and regulations shall be granted by the President
without the favourable recommendation by the Commission (on
Elections.)” (Italics ours)

Executive clemency is granted for the purpose of relieving the harshness of the
law or correction of mistakes in the administration of justice. For example, a person
already serving sentence by virtue of final judgment may be extended a pardon if it is
subsequently discovered that he is innocent.

The exercise of pardoning power is discretionary on the President and may not be
controlled by the legislature or reversed by the courts, save only when it contravenes the
limitations discussed below. Thus, it is competent for the Congress to condition a grant
of a pardon by the President upon a previous clearance or approval by a board of pardons.
Neither it would be justified for the judiciary to order the grant of pardon in favour, say,
of reformed criminal.7

What are the limitations of the pardoning power of the President?8

5
The 1987 Constitution
6
Ibid.
7
Cruz, Philippine Political Law, 2002, p. 229-230
8
Ibid, p. 230-231

19
 The following are the constitutional limitations on the pardoning power of the
President:
(1) Pardon cannot be granted in cases of impeachment. Strictly, an impeachment
proceeding is not a judicial, much less a criminal, prosecution and therefore does not
essentially come under the pardoning power. However, the party convicted in an
impeachment proceeding is subject to prosecution, trial and punishment in an ordinary
criminal action and in this case can be extended a pardon.

(2) No pardon can be granted for the violation of any election law, rule or
regulation without the favourable recommendation of the Commission on Elections
(supra). But it is to be noted in this connection that not every offense committed on
election day is to be considered an election offense. Hence, several persons convicted of
having committed on that day the crime of illegal possession of firearms as punished
under the Revised Administrative Code could be validly pardoned without necessity of a
favourable recommendation from the Commission on Elections.

(3) Pardon can be granted only after conviction by final judgment.

What is a pardon?

As provided in Article VII, Section 19 of the 1987 Constitution the pardoning

power of the President includes reprieves, commutations, and pardon, except in cases of
impeachment.

A pardon is an act of grace which exempts the individual on whom it is bestowed

from punishment which the law inflicts for the crime he has committed9. It is a
permanent cancellation of sentence. (Black Law Dictionary). It is an act of grace
proceeding from the power entrusted with the execution of the laws, which exempts the

9
Ibid, p. 230.

20
individual on whom it is bestowed, from the punishment the law inflicts for the crime he
has committed. It is a remission of guilt, a forgiveness of the offense.10

Kinds of Pardon11

Pardon may be classified into absolute or conditional and plenary or partial. An

absolute pardon is one extended without any strings attached, so to speak, whereas a
conditional pardon is one under which the convict is required to comply with certain
requirements. A plenary pardon extinguishes all the penalties imposed upon the offender,
including accessory disabilities, whereas a partial pardon does not.

Where the pardon is conditional, the offender has the right to reject it since he
may feel that the condition imposed is more onerous that the penalty sought to be
remitted. But in the case of an absolute pardon, the pardonee has no option at all and
must accept it whether he likes it or not. In this sense, an absolute pardon is similar to
commutation, which is also not subject to acceptance by the offender.

Effects of Pardon

The legal effect of a pardon is to restore not only the offender’s liberty but also
his civil and political rights. An absolute pardon not only blots out the crime committed
but removes all disabilities resulting from the conviction; and that when granted after the
term of imprisonment has expired, absolute pardon removes all that is left of the
consequences of conviction.12 While in the case of Cristobal v. Labrado,13 the pardon
granted to the private respondent is a conditional one, in a sense “that his full civil and
political rights were restored, except that with respect to the right to hold public office or
employment, he will be appointed for appointments only to positions which are clerical
or manual in nature and involving no money or property responsibility,”

10
People vs. Vera, 65 Phil. 56 (1937)
11
Cruz, Philippine Political Law, 2002, p. 232
12
Pelobello vs. Palatino, 72 Phil 441
13
71 Phil 34 (1940)

21
Our Stand:

Going back to the issue of whether or not the executive clemency extended to
Erap by PGMA is an absolute or a conditional pardon.

We agree with the opinion of Dean Andy Baustista in which he wrote in his
column that the pardon extended to Erap is a conditional pardon (supra). From the
“Whereas Clause” of the Order of PGMA of Executive Clemency, that he himself
(Joseph Ejercito Estrada) has given the condition for an executive clemency be extended
to him by the President, that is, “he has publicly committed to no longer seek any elective
position or office”. Although from the same order, it is expressly stated that “he will be
restored of his civil and political rights,” it does not connote that he can run for the
position of the president or any public office for that matter. It may only mean that he is
allowed to exercise all his civil and political rights, such as the right to exercise suffrage
or the right to vote, but it does not include the right to hold any public position or office.
Therefore, it can be said that prohibition to run for “any elective position” is an exception
to the restoration of his civil and political rights.

A pardon is an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though official
act of the official magistrate, delivered to the individual for whose benefit it is intended,
and not communicated officially to the Court.14 It is an act of pure generosity of the
executive and it is his to give or to withdraw before it is completed. 15 From the wordings
of the Order of Executive Clemency it can be said that the President has acted out of
generosity from the first paragraph of the same, it states that it is the policy of the present
Administration of releasing inmates who have reached the age of seventy (70).

Furthermore, from the announcement made by the then Secretary Ignacio

“Toting” Bunye on national television, the order of executive clemency will become
14
United States vs. Wilson, 7 Pet. 150 (1833); Bernas. The 1987 Constitution, A Commentary, 2003, p. 894
15
De Leon vs. Director of Prisons, 31 Phil. 60, 63 (1915); Ibid

22
effective upon Mr. Estrada’s acceptance of the same. It is apparent that the pardon
extended to the latter is a conditional pardon. (Italics and emphasis ours).

The case of Unites States v. Wilson (ibid.) has influenced the Philippine
jurisprudence from its earliest days. Chief Justice Marshall said:

“A pardon is a deed, to the validity of which delivery is essential, and

delivery is not complete without acceptance. It may be rejected by the
person to whom it is tendered; and if it be rejected, we have discovered no
power in a court to force it on him”.

By categorizing pardon as a deed, Marshall equated it with a private instrument

between two individuals. Hence, according to him, to its validity “delivery is essential,
and delivery is not complete without acceptance.” The reason for requiring acceptance,
according Justice McKenna, is that the “grace of pardon may be only a pretense…
involving consequences of even greater disgrace than those from which it purports to
relieve”.16

While Marshall’s discussion did not distinguish between the two types of pardon,
early Philippine jurisprudence did not seem to understand the need for acceptance as
applicable to absolute pardon. As the Supreme Court said in Cabantag v. Wolfe, 17 “a
conditional pardon has no force until accepted by the condemned. The reason is obvious.
The condition may be less acceptable to him than the original punishment, and may in
fact be more onerous. He has the right to choose whether to accept or to reject it on the
terms tendered. In this respect if differs from a commutation, which is a mere reduction
of penalty, or from a pardon which is a total remission”. In the case of an absolute
pardon, the pardonee has no option at all and must accept it whether he likes it or not. In
this sense, an absolute pardon is similar to commutation, which is also not subject to
acceptance by the offender.18
16
Burdick v. United States, 236 U.S. 79, 90 (1915).
17
6 Phil. 273, 278 (1906)
18
Cruz, Philippine Political Law, 2002, p. 232

23
 In the final analysis, the pardon extended to Erap by PGMA is a conditional
pardon, for the reason that if the intent of the latter is to give the former an absolute
pardon, the condition of acceptance for the executive clemency to become effective
should not have been stipulated in the dispositive portion of the Order of Executive
Clemency. 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
to be conditional, then the courts usually deems it so. Because, as stated hereinabove, a
pardon is an act of grace, which the Constitution has bestowed upon the Chief Executive,
and only he, upon his discretion, to give or to withdraw before it is completed, and no
legal power can compel him to give it or to withdraw it, as the case may be.

Issue No. 2: Eligibility for Re-Election

The heart of the contention in this legal issue is the concept of “Term Limits” in
the 1987 Constitution which placed “all” government officials in one form or another to
prevent the dynamism and the essential unfairness of the “Incumbent’s Advantage.”
Presidential term limits in the 1987 Constitution are found in Article VII, Section 4,
which states:

“The President and the Vice-President shall be elected by direct

votes of the people for a term of six years which shall begin at noon on the
thirtieth day of June next following the day of the election and shall end at
noon of the same date six years thereafter. The President shall not be
eligible of any reelection. 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 any time”. (Italics and underscoring supplied).

Is the former President Joseph “Erap” Estrada, eligible for another election for the
same office? This is both a legal and a political question.

24
 The 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 used the next sentence in the of said constitutional provision
which states: “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 any time”,
(supra), to mean that since President Erap did not serve more than four years as
President, he is not barred from running again.

On the other hand, the legal naysayers and those who oppose the eligibility of
Erap to run for president, 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 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).

It seems that the center of the controversy surrounding the circumstances of the
declaration of Erap to claim the presidency again, as he calls it “the last performance of
my life”, is the second sentence of Article VII, Section 4 of the Constitution, which
states: “The President shall not be eligible for any reelection”. The problem to be
resolved in this issue is the proper interpretation of said constitutional provision. Such is
the case, it is deemed apposite that the rules on constitutional construction may be
applied.

Let us discuss first and foremost what rules on statutory construction which can
be applied in construing the constitutional provisions. It should, however, be noted that
the office of statutory construction is only when there is ambiguity as to the meaning of a
statute or in this case the Constitution. It is well-settled rule that when the law speaks in
a clear and categorical language, interpretation is not necessary. In such case, the duty of
the court is to apply the law, not to interpret. But in case of doubt as to the meaning of

25
legal words and phrases, the controlling factor in determining their meaning is the intent
of the framers of the law.

Principles of the Interpretation or Construction of the Constitution

The fundamental purpose of construing the constitutional provision is to ascertain

and give effect to the intern of the framers and of the people who adopted or approved it
or its amendment.

In Francisco vs. House of Representatives,19 the Supreme Court made reference

to the use of well-settled principles of the constitutional construction, namely:

First: Verba Legis

Whenever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms employed. As the Constitution is not
primarily a lawyer’s document, it being essential for the rule of law to obtain that it
should ever be present in the people’s consciousness, its language as much as possible
should be understood in the sense they have a use in common.

Second: Ratio Legis Et Anima

Where there is doubt, the words of the Constitution should be interpreted in
accordance with the intent of the framers. Thus, in Civil Liberties Union vs. Executive
Secretary,20 it was held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished and evils sought to be prevented or remedied. A
doubtful provision shall be examined in the light of the history of the times and the
conditions and circumstances under which the Constitution was framed.

Third: Ut Magis Valeat Quam Pereat

The Constitution has to be interpreted as a whole. In Civil Liberties Union (ibid),
it was declared that sections bearing on a particular subject should be considered and

19
G.R. No. 160261, November 10, 2003; Nachura, Outline Reviewer in Political Law, 2009 Ed.
20
194 SCRA 317

26
interpreted together as to effectuate the whole purpose of the Constitution and one section
is not to be allowed to defeat another, if by any reasonable construction, the two can be
made to stand together.

Fourth: Resort to Extraneous Aids

If, however, the plain meaning of the word is not found to be clear, resort to other
aids is available. Again in Civil Liberties Union, supra.., it was held that while it is
permissible to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless to vary the terms of
the Constitution when the meaning is clear. We think it safer to construe the Constitution
from what “appears upon its face”. The proper interpretation, therefore, depends more on
how it was understood by the people adopting it than in the framers’ understanding
thereof.

Another well-settled rule on statutory construction which can be used in

determining the true meaning of a constitutional provision is based on the maxim “Ubi
lex non distinguit, nec nos distinguere, debemus”, where the law does not distinguish, the
courts should not distinguish. The rule requires that a general term or phrase should not
be reduced into parts and one part distinguished from the other so as to justify its
exclusion from the operation of the law. In other words, there should be no distinction in
the application of a statute where none is indicated.21

Our Stand:

We agree with the arguments of those who oppose the eligibility of Erap Estrada
to run again as president in the next presidential elections. In other words, Erap falls
within the purview of the constitutional prohibition against reelection of the president.

21
Agpalo, Statutory Construction, 5th Ed., 2003, p. 197-198

27
 The second sentence of Article VII, Section 4 which states that, “The President
shall not be eligible for any reelection”, is very clear in its language and should not be
given any other meaning or interpretation. Using the well-settled rule on statutory
construction “verba legis non recedendum”22, the phrase “any reelection” should be
understood plainly: elected presidents can never run again for the same post. It must also
be stressed that the framers of the Constitution clearly voted for a perpetual reelection
ban for all those who had been elected as president like Fidel Ramos, Ms. Arroyo and
Estrada.

Another point of contention that the supporters and legal advisers of Erap argue,
is that the phrase “The President” obviously alludes only to the incumbent or the “sitting-
president” as opposed to former presidents. We find this assertion untenable. It is a well-
settled rule of statutory construction that where the law does not distinguish, the courts
should not distinguish. Ubi lex non distinguit, nec nos dintinguere debemus. The rule,
founded on logic, is corollary of the principle that general words and phrases in a statute
should ordinarily be accorded their natural and general significance. Likewise, this rule
is based on the principle that where the law does not make any exception, courts may not
except something therefrom, unless there is a compelling reason apparent in the law to
justify it. In other words, a general term or phrase in a statute should not be reduced into
parts and one part distinguished from the other so as to justify its exclusion from the
operation of the law. Such is the case, the phrase “The President” in the second sentence
of Article VII, Section 4 of the Constitution, does not in anyway distinguish whether it
refers to the incumbent president or to past presidents. Thus, it could only be interpreted
as referring to “all” presidents, past or present. To construe it otherwise, would mean
that not only Estrada be eligible to run for president again, but also Fidel Ramos and
others who will become president later on – after they are no longer in office. It advances
the view that the prohibition on election to the presidency is not absolute. Therefore, it is
plain and simple, that Erap is not exempted from the operation of the aforementioned
constitutional provision. It means that the perpetual ban for reelection for presidency is

22
“From the words of a statute there should be no departure”.

28
applicable to him. Borrowing the words of Atty. Romulo Macalintal, a noted election
lawyer, “The Constitution is clear. Kailangan pa bang i-memorize ‘yan!”.23

Finally, the question of whether or not the sentence “The President shall not be
eligible for any reelection”, is a prohibition against Erap to run again for presidency in
the 2010 Elections, can be determined from the intent of the framers of the 1987
Constitution. Ratio legis et anima. Where there is doubt, the words of the Constitution
should be interpreted in accordance with the intent of the framers. Thus, in Civil
Liberties Union vs. Executive Secretary,24 it was held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished and evils sought to
be prevented or remedied. A doubtful provision shall be examined in the light of the
history of the times and the conditions and circumstances under which the Constitution
was framed. The founding fathers of the 1987 Constitution saw it fit that the
constitutional provisions on Executive Department be given its much needed changes in
order to put a rein on presidential ambitions and tenure because of the abuse of power we
have witnessed during the incumbency of President Marcos, who apparently planned to
stay in office for life. In the presentation of the Committee Report No. 26, Commissioner
Lorenzo Sumulong, Chairman of the Committee on the Executive, gave a brief
statement, to quote:

“The Committee on the Executive has the honor to submit, for

consideration and approval, Proposed Resolution No. 517, proposing to
incorporate in the new Constitution an Article on the Executive. This
Article on the Executive is based mainly on the many resolutions referred
to our Committee for study and report. The members of the Committee
have studied and discussed these resolutions which dealt with concrete
instances of misuse and abuse of executive power during the Marcos
regime especially after the declaration of martial law. The members of
the Committee made an intensive and exhaustive study on the

23
http://www.philippinestoday.net
24
194 SCRA 317

29
 constitutional proposals contained in those resolutions intended to
prevent a repetition of the misuse and abuse of executive power. At the
same time, the members of the Committee were always on guard and
careful in their intense desire to undo and correct the misdeeds and
mistakes of the Marcos regime, because we might impose safeguards and
restrictions which may be unreasonable and unduly harsh and which
might emasculate our future presidents in the exercise of executive
power.”25 (Italics and underscoring ours).

From this statement, it can be inferred that the intention of the framers of the 1987
Constitution is to prevent the repetition of the misuse and abuse of the executive powers
granted to the deposed President Ferdinand Marcos. The reason for fixing a six-year
term for the president, that it is long enough for a good President to implement his
programs and, rather optimistically, that with the constraints built around the presidency,
a bad one would not succeed in accomplishing his evil designs.26

Considering all the foregoing premises, the Former President Joseph “Erap”
Estarada, is forever barred in running for any reelection for the same position pursuant to
Article VII, Section 4 of the 1987 Constitution. It is the intention of the framers of the
Constitution to put a perpetual bar to the reelection of any president because of the
tyranny, abuse of powers, and suffering that the Filipino people have experienced during
the 20 years that the Marcoses have stayed in power. Such abuse is now lingering in the
air with the way the present administration is conducting its business. In allowing the
former president to give a shot in reclaiming the highest position in our country, it would
serve as a precedent to those who have the ambition of staying in power for the rest of
their lives.

The Final Battleground: The Supreme Court

25
Bernas, The Intent of the 1986 Constitution Writers, 1995 Ed., p. 410-411
26
Bernas. The 1987 Constitution, A Commentary, 2003, p. 811

30
 The question of whether or not the President can run for another term after
another person shall have served in his former office has yet to be settled by the Supreme.
For the meantime, Joseph Estrada’s announcement last October 21, 2009 does not make
him an official candidate yet. Only when he files his certificate of candidacy between
November 20 and 30, 2009 would his presidential bid be formalized. Despite what could
seemingly be a roller-coaster arguments, it is highly likely that those questioning the
legitimacy of Estrada’s bid would elevate the matter to the Supreme Court. According to
Christian Monsod, former member of the 1986 Constitutional Commission, he is
confident that the high tribunal will put its foot down on Estrada’s ambitions. “The
Supreme Court will read the constitutional provision and read the proceedings of the
Constitutional Commission. They can only come to one conclusion that he (Estrada)
cannot run for any re-election”, he said.27

It is clear that the Supreme Court will have to decide on the legality of Estrada’s
bid for re-election; a suit before the high court is the only option. For the tribunal to take
its time until after the elections is, of course, itself already a decision, but we are
confident that, just as the high court acted on the citizenship case filed against
presidential candidate Fernando Poe Jr. in 2004 with a real sense of urgency and great
dispatch, the Supreme Court too will attend to the inevitable legal challenge with all
deliberate haste. In the end, it is the Highest Tribunal of the Philippines that would judge
if Erap’s bid to reclaim the Highest Seat of the Land would be the “last performance of
his life”.

Until then, we will have to suffer from Estrada’s insulting double-talk.

V. Bibliography

A. Constitution and Statutes

1. The 1987 Constitution of the Republic of the Philippines
27
GMA News.TV

31
B. Legal Books
1. Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the
Philippines: 2003 Edition, Rex Bookstore, Inc.

2. Bernas, Joaquin G., S.J., The Intent of the 1986 Constitution Writers: 1995
Edition, Rex Bookstore, Inc.

3. Cruz, Isagani A., Philippine Political Law: 2002 Edition, Central Lawbook
Publishing Co., Inc.

4. Nachura, Antonio Eduardo B., Outline/Reviewer in Political Law: 2009

Edition, VJ Graphic Arts, Inc.

C. Newspapers and Publications

1. Philippine Daily Inquirer, Sunday, October 25, 2009: Opinion: With Due
Respect, by Artemio V. Panganiban

2. The Philippine Star, Saturday, October 24, 2009: Opinion: My Four

Centavos, by Dean Andy Bautista

D. Websites
1. www.philippinestoday.net
2. www3.sunstar.com.ph
3. GMANews.TV
4. www.lawphil.net
5. www.chanrobles.conm

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