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Mar 13

Moral Suasion

In Philippine Commentary 2004 FPJ vs GMA by Dean Jorge Bocobo, the ever-provocative Dean Jorge Bocobo writes,

Had the Supreme Court done its duty and faithfully carried out the detailed and specific instructions in the Constitution on presidential removal and succession, in particular, as regards removal and replacement by virtue of permanent disability, there would never have been a swearing of Gloria Macapagal Arroyo 34 minutes after receiving her facsimile.

(You may gasp at how awful such a suggestion might be. It would have meant possibly a violent march to Malacanang by the leftist hardliners at Edsa Dos, and days, perhaps weeks of rallies. But eventually, without the decisive swiftness of the swearing in the vice-president, these protests would have died down, then the Senate might have re-convened the impeachment trial, and in due course, because the “Craven Eleven” did have the numbers to acquit, Erap would have escaped conviction at the Senate. He would probably still be President today. Now either he would have mended his ways after the harrowing experience of the impeachment trial, or he would’ve taken the whole country down a really bad road. But in either case, the people might have been done with him by now, and in the May elections, GMA or Roco or someone else would surely be marching to triumphant victory in the coming elections.)

Which really makes you wonder if Cardinal Sin’s insistence on binding the rallies against Estrada to the Edsa Shrine, and pushing for the Vice-President to take her oath of office immediately, in order to pull out the rug from under those agitating to march on the Palace, was one of those historical crossroads that resulted in short term gains and long term problems.

The whole problem hinges on three difficulties:

1. those actually in the know, that is, the leading oppositionists negotiating and responding to Estrada’s camp at the time, were not necessarily after what those in the streets wanted.

2. What Estrada and friends intended and wanted in those days is not necessarily what they now say in retrospect they upheld and believe in.

3. The record of events for people who were there or who were observing things at the time, is unclear.

The fact is Estrada was prepared to relinquish the presidency not once, but twice. The first time after the first big rally at the Edsa Shrine; but by all accounts, he changed his mind after ten times the number of those at the Edsa rally showed up for the National Day of Prayer at the Luneta. I was in a little island off Guimaras at the time, and could only follow things by AM radio, but you could sense the sudden change in morale on the part of the administration after El Shaddai and the Iglesia summoned huge numbers to rally for Estrada at the Luneta.

The second instance was in the days after the vote by the Senators not to open the 2nd envelope. As I’ve said over and over, Estrada was alone. He couldn’t summon any supporters. No one wanted to lift a finger on his behalf. He pleaded for a snap election -but it was too late.

In the confusion, however, one thing aided him. His cabinet resigned, but they were loyal (and decent) enough not to sign a letter declaring the president incapacitated. They behaved more loyally, in this respect, than the leaders of the Armed Forces who, in the words of one observer, said they were going to take a leak and then scurried off to the Edsa Shrine to grab the limelight.

It is debatable if the rallies would have petered out, since they had as their backbone the organized Communists who ensured that there was always someone there, even when the disorganized members of Civil Society were absent and the spontaneous protesters would go home to rest. This was, however, the big fear, I would guess, of members of the Church and some politicians. The Communists were making up for their disastrous boycotting of the 1986 Snap Elections; who knows where their organization and newly-restored sense of power would lead them.

Estrada very clearly, was negotiating for a face-saving way out; in the late-night, early-morning negotiations in the Palace, he wanted 5 days to pack up and leave with dignity. Whether or not this was to buy time or not, was less important than the fear on the part of oppositionists who did fear it would give Enrile and company time to bring in troops from the provinces. The military didn’t want a civil war on its hands, the oppositionists perhaps feared that the rallyists would not be able to face up to guns, or worse, the Communists would sieze the opportunity to fight in the streets of the capital, after having tried to sieze the Palace.

At the time, information was that the Chief Justice did not want to swear in the Vice-President, or that if the Vice-President were to be sworn in, it would only be as acting president.

And I do share one skepticism with the (present) opposition, in that I do recall that when I was listening to the swearing in over the radio (I was in a sidestreet off Malacanang having witnessed the protesters break through the Mendiola barricade), the Vice President said she would preserve, protect, defend the Constitution, etc., as “acting president” or “act as president.” But what I and I think some other people heard, doesn’t seem to have been captured on film or video. Was I hallucinating?

It is a fact Estrada did not sign a letter of resignation, and by tradition and a common and sensible understanding of the law, you can only resign by signing a letter of resignation (you can say you will, but the letter must be signed as proof for posterity). This Estrada did not do, and there is logic to the conclusion that even if Estrada implied as much by issuing the statement he did, and by his physically abandoning the Palace, still, there is no substitute for a letter of a resignation.

When the Supreme Court was deliberating on the legitimacy of the Arroyo government, we had many discussions on the editorial line Today newspaper would take, and of course the editorial policy was guided by the publisher, Rep. Teodoro Locsin, Jr. He first of all said we should be careful about the emerging tendency of Civil Society, having tasted success, to ride roughshod over everything. And so we condemned the rallies at the Supreme Court (I got a taste of this when it leaked out I’d written one of the editorials condemning the rallies; an angry civil society leader berated me over the phone, which reassured me our editorial position was correct).

In retrospect our position was even more fundamentally sound because of the way Civil Society then went and condemned the proposed march on the Supreme Court by FPJ supporters -but what Civil Society does, the great unwashed cannot do? Isn’t this hypocrisy? Same hypocrisy as the bishops all upsets over Edsa Tres rallyists occupying the Edsa Shrine -but if it’s for free speech and public assembly, is it only for Church-approved free speech and public assembly?

Anyway, Rep. Locsin also put me on a crash course on constitutional law, etc., saying the burden was on the Supreme Court to come down with a decision for the ages; he pointed to the decision by the Indian Supreme Court which was so magisterial and learned, that Indira Gandhi, who had tried to establish a dictatorship, had no choice but relinquish power (she later made a comeback).

Rep. Locsin’s fury and contempt when the Supreme Court decision came out was palpable and I must say, even if I’m not a lawyer, it certainly was a disappointment. Even if I’m a journalist, I don’t want the law of the land and the legitimacy of my government determined by poking into the realm of psychology and what is published in the papers. But the decision was there, unsatisfactory as it was, but therein lies a problem, too. The Supreme Court did not do as well as it should, as it must, and we are paying for it.

At the time I felt the President should take her oath of office all over again, but apparently no one considered this an option, though it would have erased the doubt caused by the “acting president” suspicion and reinforced her legitimacy derived from the Supreme Court.

The question, I suppose, remains whether Estrada’s resignation, even if he’d signed it, would have been upheld considering he was possibly fearing for his life and his citizens had turned against him. The Supreme Court would have been petitioned and tempted to engage in shrink-like behavior. But the basis of contention would have been a concrete document; there was no such concrete document, although a reading of Estrada’s last statement which was flung to the media from between the rails of the gates I think, would suffice to conclude Estrada did relinquish office.

The other option of course was for the prosecution in the impeachment not to walk out; perhaps Estrada would have acquited. If he had, he would have been faced with renewed fury in the streets but one legal problem would have been resolved.

Having been at the march on the Palace, I beleive it would have been healthier for our country for a resolution to have taken in that manner. By this I mean either having Estrada have the blood of his countrymen shot at the gates of the Palace on his hands, or having him strung up on a lamp post, Mussolini style.

People Power is revolutionary power; its logical conclusion was not permitted, because the logical conclusion of Edsa Dos was one of two things: a concrete resignation by the sitting president, or the proclamation of a new government, not beholden to the existing constitution, and starting again from scratch.

In his wisdom, Cardinal Sin used his moral suasion to prevent either from happening.

1 comment

  1. Sassy Lawyer

    I think we can never interpret EDSA Dos or even EDSA in terms of strict legal requirements. They were political phenomena. They created de facto governments. True that the SC decisions that legitimized Gloria’s government were wanting in so many ways. But if we’re to be honest, so were the decisions and events that legitimated Cory Aquino’s government. What makes Cory more acceptable than Gloria?

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