Co-written with Jayvy Gamboa.
The talks of President Duterte’s candidacy as vice president does not only draw attention to the possibility of a continued hold onto power, but also to the question of whether this is a symptom of a more fundamental problem in Philippine politics
On July 26, 2021, Monday, the country is set to hear Rodrigo Duterte’s last State of the Nation Address (SONA) as the sixteenth President of the Philippines. It is surreal that there is even a possibility that he would be invited to the SONA of the next President after the May 2022 National Elections, not only as immediate past president as protocol states, but as a newly elected vice president.
This scenario has never been seen or discussed (or at least publicly on this scale) in Philippine history. No incumbent President has ever run for the position of Vice President on the election immediately succeeding his or her term as President. The closest example is when former President Gloria Macapagal-Arroyo ran for Representative of Pampanga’s Second District immediately after her term, which the Supreme Court previously held as valid.
The talks of President Duterte’s candidacy as vice president does not only draw attention to the possibility of a continued hold onto power by Duterte and his allies, but also to the question of whether this is a symptom of a more fundamental problem in Philippine politics.’
From president to vice president
A few months earlier, PDP-Laban adopted a resolution calling for President Duterte, of which he is the party chairman, to run as vice president in 2022. While the idea was repeatedly floated prior to this move, it was arguably this resolution that started the snowball for a Vice President Rodrigo Duterte. This has been solidified by the remarks of the President himself. He is currently the frontrunner for vice president with 18% in the most recent poll.
Going to the legal question of the day, can an incumbent president run for the position of vice president? Applying the primary principle of constitutional construction verba legis, the text of the Constitution does not prohibit President Duterte from doing so. Section 4, Article VII of the 1987 Constitution states “[…] The President shall not be eligible for any 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.”
On the other hand, the conclusion would not be so straightforward if the principle of ratio legis est anima is applied, where a resort to the intent of the constitutional framers is made as a guide in interpretation. Some have argued, including one of the framers himself, Commissioner Christian Monsod, that the president cannot run for vice president as the safeguard against an extended and unhampered one-man rule is circumvented. This is resorted to, however, only when there exists an ambiguity in the meaning of the words in the Constitution. Is there sufficient ambiguity in Section 4 to apply the latter principle?
Further, this was the question (only involves a different position) in a prior case filed by then Akbayan Representative and now Senator Risa Hontiveros during the candidacy of Macapagal-Arroyo as Pampanga Representative in 2010. Knowing how the Supreme Court ruled in that case, the candidacy of President Duterte as Vice President may be permitted as well.
Why the vice presidency?
But why the vice presidency? Most Duterte allies cite “continuity” as the primary reason for pushing the unconventional move. People may ask, continuity of what precisely? For now, that is beside the point.
However, any student of law, politics, or history would readily inform us that the vice presidency per se is nowhere close to “continuity.” We do not need to look far. The struggles of Vice President Leni Robredo as unwanted and unsupported by the current President show that the spotlight of any vice president can be dimmed to a very bare minimum without the president’s nod. The reason for this is that the Constitution vests executive power to the president alone, not to the vice president or any other member of Cabinet.
If the vice presidency is devoid of executive power, then why would a sitting president, who already has seemingly imperial power, want to risk having no power at all as vice president should the next president come from the opposition?
There is really no better explanation for the want for vice presidency than recognizing such as a “stepping stone.” As often heard, the vice president is one breath away from the presidency. This is what critics are primarily guarding against. President Duterte becomes Vice President Duterte, and then finally becomes President Duterte once again.
Another and more pragmatic view – at least for allies who will benefit the most – would look at it in another way. Any Member of Congress, both the Senate and the House of Representatives, is one breath away from the vice presidency. Section 9, Article VII of the 1987 Constitution provides that when a vacancy in the Office of the Vice President occurs, “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.”
Looking at history, then-Senator Teofisto Guingona, Jr. stood to benefit from this provision when President Macapagal-Arroyo nominated him as her vice president in 2001 as a result of Estrada’s resignation.
Let us then look at the scenario for could-be Vice President Duterte. When there is any vacancy resulting from his death, permanent disability, removal from office, or resignation, the incumbent president may nominate any member of Congress, whether a senator or representative. However, such scenario depends on multiple conditions functioning flawlessly and falling perfectly in place. Nevertheless, as transactional as it may sound, the power of the Vice Presidency as a “stepping stone” still cannot be denied.
We momentarily set aside the debate on the legality or permissibility of this act, and we see that one truth is undeniable. It is that these matters – even just the thought of them – are backward shifts from political maturity. They are politically regressive.
For instance, the possible scenario of a president who transitions into a vice president is reminiscent of the Marcos regime (not exactly, because Marcos never relinquished the presidency) and the grip on power that characterized governance at that time. Further, the scenario also resembles a strongman move in other countries of shifting from president to prime minister, or its equivalent, and then back as president.
Another controversial statement of President Duterte is his motivation in a possible vice presidential run, which is to enjoy immunity from legal suits. This has been branded as “non-issue” by legal experts, and we affirm this.
According to past Supreme Court decisions, only the president enjoys such immunity; even this immunity has strict and well-defined requirements that must be met. The case of Estrada v. Desierto implies a close to none likelihood of expanding such immunity to include the vice president, even if such vice president is a former President himself. “There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. […] It ordained that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”
The fact that we are facing these issues is not a sign of a flourishing democracy, yet this is the state of our nation.
Let us wait and see unfold how, at the tail end of his incumbency, President Duterte tests the constitutional waters once again and whether it ends in his favor. – Rappler.com
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