Pardon by Election



HE IS NOW tragically casting himself as a leper rejected by his erstwhile colleagues, persecuted while serving his countrymen in good faith, a sheep among wolves.

Shortly after Vice President Binay dramatically ended his career as a member of the Aquino Cabinet, it was announced that his satisfaction rating had risen 11 points, according to the latest survey. Well, well, whaddaya know. We can expect rosier stats for Binay in days to come, if he continues in “survival mode.” The guy will do pretty much anything to win the presidency in 2016.

As the barbershop pundits have it, that is the only way for him to escape conviction in the plunder cases arrayed against him. Call it “pardon by election,” if you like, but it’ll do the job.

It’s not quite the same as the condonation doctrine invoked by his son Junjun as a defense against the Ombudsman’s suspension order earlier this year. But it comes close. The Aguinaldo doctrine of condonation holds that a re-elected official cannot be held liable for administrative infractions he committed in his previous term on the premise that the voters, by re-electing him, have “condoned” his malfeasance.

The doctrine was famously challenged by Chief Justice Maria Lourdes Sereno during the oral arguments in April for virtually giving the public the power to pardon and for “wreaking havoc on our constitutional framework.” She and other justices felt that the doctrine was outdated and deserves review, but the High Court cannot motu proprio revisit this jurisprudence¬†and must wait until a relevant case is filed inviting its judicial attention. And so it remains.

Though not applicable to presidential candidates, the doctrine conceptually urges erring yet charismatic politicians to seek the “forgiveness” of an impressionable electorate by getting the majority vote. For the presidential aspirant, winning has the added attraction of vesting him or her with immunity from suit, the holy grail for most contenders. The gambit is especially effective in this country, where voters are highly susceptible to critical bouts of sympathy and amnesia.

Binay’s friend Erap serves as an exemplar.



Convicted of plunder in September 2007, Joseph Estrada was sentenced to reclusion perpetua with the accessory penalties of perpetual disqualification from public office and forfeiture of ill-gotten wealth. A mere 6 weeks thereafter, then President Gloria Macapagal-Arroyo issued an order of executive clemency in Erap’s favor, which stated:

“Whereas, this administration has the policy of releasing inmates who have reached the age of 70,

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

“Whereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

“In view hereof in pursuant (sic) of 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.”

In 2010, Erap launched a bid for the presidency in direct contravention of the terms of his pardon and the commitment he made in his appeal for clemency. His lawyer, Frank Chavez, argued that the pardon did not set a ban on his pursuit of public office but only cited as a prefatory statement Erap’s self-imposed inhibition, which he was reneging. The courts upheld Erap (and did so again when he ran for mayor of Manila in 2013).¬† If not for Noynoy, Erap might have become the 15th president of the country, duly forgiven and amply loved.



He now enjoys the continuing support and adulation of the masses of Manila, who well may re-elect him in 2016  Рand thereby condone any administrative lapses he may have committed in his first term, including his approval of the upper floors of the infamous Torre de Manila.

For that reason alone, someone ought to file a proper case before the Supreme Court questioning the Aguinaldo doctrine immediately, if that can be done at all. Usually, such a case can only be elevated to the High Tribunal on appeal. We can hope for a creative lawyer who might find a way to do that. There is no dearth of creative lawyers in this country.

Meanwhile, we must be vigilant lest next year’s elections become a national telenovela and the presidency be awarded to the best actor of 2016. Let the issues remain on center stage and let the candidates’ platforms be our focus. Let’s help each other remember that, especially those among us with soft hearts and short memories.

And let us hope the Ombudsman hurries up and files those cases well before campaign season starts.



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