NEWS ANALYSIS

Disempowering The People

Legal arguments by ousted President Joseph Estrada and President Gloria Macapagal-Arroyo threaten to trivialize People Power. A third argument tries to assert the primacy of the people. At stake is whether or not Estrada will end up behind bars.

By SANDRA NICOLAS

People Power deserves to be recognized as the direct and legitimate exercise by the people of their sovereign democratic right to choose their leaders. Yet the legal arguments put before the Supreme Court by the two contending parties — ousted President Joseph Estrada and President Gloria Macapagal-Arroyo — threaten to trivialize this. A third line of legal reasoning tries to assert the primacy of the people.

Estrada’s lawyer, Rene Saguisag, argues that the constitutional conditions for Arroyo’s ascension to the presidency were not met. Thus, according to him, Estrada did not resign. He never signed any resignation letter and left Malacañang only to avoid a bloody confrontation with the tens of thousands of demonstrators who marched to the Palace on January  20.

Neither did his Cabinet or Congress decide that Estrada was no longer capable of functioning as president. Among the Cabinet members, Saguisag says in a reply memorandum to the Supreme Court, only Defense Secretary Orlando Mercado, Education Secretary Andrew Gonzalez, Tourism Secretary Gemma Cruz-Araneta and Interior and Local Government secretary Alfredo Lim resigned. (Though news reports noted 11 resignations by 10 p.m. of Jan. 19.)  

The Lower House only went as far as passing the Articles of Impeachment and the Senate had only convened as an impeachment court.

While Arroyo took her oath as President, the argument goes, she is only President in an acting capacity while Estrada is on leave.  

The New President  

On the contrary, say Justice Secretary Hernando Perez and Ombudsman Aniano Desierto, the constitutional conditions justifying Arroyo’s assumption of the presidency were met.

The withdrawal of support by the civilian bureaucracy and the military and police during People Power 2 were tantamount to permanent disability in  the presidency. The constitutional clause regarding “disability” of the incumbent, they argue, covers not only physical and mental but also political disability.

Thus, in Arroyo’s January 20 letter to the Supreme Court, Estrada was said to be “permanently incapable of performing the duties of his office, resulting in his permanent disability to govern and serve his unexpired term.” This was because “Almost all of his Cabinet members have resigned, and the AFP and PNP have withdrawn their support. Civil society has likewise refused to recognize him as president.”

Estrada’s leaving Malacañang was in recognition of this and was effectively resignation.

Arroyo took her oath as Estrada’s constitutional successor. That act, hence, made her the country’s legitimate president.

Where Does People Power Fit In?

Starkly absent from the meat of either argument is People Power. This makes Estrada and Arroyo strange bedfellows in making light of People Power as an expression of the people’s sovereign will.

Estrada and his lawyers are, of course, dismissive of People Power in their reasoning. In a contribution to the February 19 issue of Time magazine, Estrada (or his ghost writer) said “mob rule catapulted Vice President Gloria Macapagal-Arroyo to the presidency.”  

Saguisag, in his petition for Estrada submitted to the Supreme Court, asserts that “the ballot box is still the best determinant of the will of the people… ‘Direct democracy’ as happened last month is not the best and certainly not the constitutional way of dismissing or picking a President.” In his reply memorandum he also asserts that People Power cannot erase “voters’ power.” 

Yet for Arroyo’s camp to do likewise and either downplay or make only token mention of People Power is less forgivable. The crux of their argument seems less that the people chose to reject Estrada than that key Cabinet members and players in the military and police withdrew their support from him.

Rather than directly invoking that the people exercised their right to remove Estrada from power, Arroyo and her lawyers choose to work through an expanded definition of "permanent disability," which has little precedent in either Philippine jurisprudence or in the US body of law from which much of it is derived from.  

This not only dulls the potency of such a direct and popular expression of the people’s sovereignty as People Power but also places the actions of civilian bureaucrats and military and police personnel at par with it -- where, rather, these state institutions themselves depend for their support and mandate on the people.  

Beyond The Supreme Court

Next month, the Supreme Court will be ruling on the consolidated case filed by Estrada questioning the legality of Arroyo’s presidency.

But Romeo Capulong, counsel for the 82 people’s organizations that filed the impeachment complaint against Estrada and one of the private prosecutors during the trial, argues that the ouster of Estrada is not a justiciable issue, meaning that not even the Supreme Court has jurisdiction over the matter.

In a memorandum submitted to the Supreme Court on Feb. 20, Capulong asserts that People Power was “a genuine exercise of direct and popular sovereignty derived from the people’s residual powers and based on the maxim salu populi est suprema lex.” Contrary to Estrada’s reasoning, his ouster was thus in line with democratic principles.

But the human-rights lawyer goes further and argues that “‘People Power,’ being the direct action of the sovereign people, is not a justiciable issue, may not be passed upon by the Supreme Court, and the consequences of which may not be reversed by it.” The reason being that the judicial power of the courts, according to Article VIII, Section 1 of the 1987 Constitution, only covers “any branch or instrumentality of the Government.”

Whereas the People Power uprising, Capulong maintains, “is the direct act of the people themselves, the source of all governmental powers.” That is, the people are neither a branch nor instrumentality of the government. As with all libertarian constitutions, Article II, Section 1 professes, “Sovereignty resides in the people and all government authority emanates from them.”

He argues that the sequence of events during the sustained campaign to oust Estrada since at least August 1999 affirms the primacy of the people’s actions. “The unequivocal voluntary reactions of the different institutions of the state... to the concerted and sustained mass actions of the people unmistakably confirm that the removal of President Estrada was the command of the sovereign people.”

Thus, the legitimacy or otherwise of the presidency of Arroyo is no longer an issue. Much less is it an issue to be decided by the Supreme Court.

Caught In A Dilemma

Unfortunately it seems that this reasoning sits well with Arroyo and her lawyers only when “People Power” is used against Estrada. That it can be raised as a democratic right that can be invoked by the people against any government, including hers, seems to be a different matter. Here lies her dilemma.

It is perhaps understandable that Arroyo needs to insist that her assumption of the presidency was strictly within the bounds of the 1987 Constitution. For otherwise, as Cory Aquino had done in 1986, a “revolutionary government” would have had to be declared with a new Constitution and where virtually all positions in the government would be considered vacant.

In which case Arroyo, although the constitutional successor under the 1987 Constitution, would not automatically become president in lieu of Estrada. The new government would have to be reconstituted from the President down, under the auspices of a body that more accurately reflects the people’s will, such as through a Council of National Unity composed of the forces that brought down Estrada.

By maintaining that Arroyo’s presidency is strictly constitutional, the various bodies and instruments of the state, including the Supreme Court, remain more or less intact. Arroyo herself is assured of the presidency.

Constitutional Means Exhausted

Here perhaps is the root of the current administration’s hesitation to give thoroughgoing recognition of the significance of People Power. This is further affirmed by the undue focus given on the role of individuals within the anti-Estrada united front — such as in the giving of awards to individuals who are “people’s heroes” or “freedom’s heroes” — to the detriment of a meaningful recognition of the broad mass of people who were the true driving force.

Yet it seems self-evident that People Power 2, especially the outpouring from January 16 to 20, came about because of the people’s outrage at the exhaustion of all constitutional means to remove Estrada from power. Nothing less than the democratic action of the people created the vacancy in the presidency.

The conventional wisdom is that Estrada is after political leverage against Arroyo --  and immunity from plunder and corruption charges -- more than an actual return to power. The irony is that it is the administration’s interpretation of events that precisely gives Estrada the opening to invoke legal gobbledygook to protect his interests.

Another irony is that Nobel Laureates Foundation chairman Pierre Marchand, a foreigner, was perhaps closer to the truth than either Arroyo or Estrada when he said at last Sunday's People Power celebrations, that the country’s experience was “able to prove that a human being is above all systems and laws.” 

Especially, may we point out, when the current system and laws are manipulated to the self-interest of a few against the interests of the many. #