After the Supreme Court ruled against the disqualification of former president Joseph “Erap” Estrada as mayor of Manila, some accused it of upholding technicality over justice. This is a familiar criticism, yet the case turns solely on a one-page document.
The ruling was announced three weeks ago, along with others on the Disbursement Acceleration Program and the bishop of Bacolod’s “Team Patay” tarpaulins. Unfortunately, the high court released the actual decisions weeks later. This hamstrings public debate because the news cycle has moved on before the full details may be discussed.
In 2007, Erap was convicted of plunder and thus perpetually disqualified from public office. The next month, then President Gloria Macapagal-Arroyo pardoned him. He ran for president in 2010, placing second, then successfully ran for mayor of Manila in 2013. His victory was challenged because the pardon did not specifically remove his disqualification from public office.
The Risos-Vidal case hinges simply on how an ordinary person would read Erap’s one-page pardon. Its three-sentence body reads: “I hereby grant executive clemency…. He is hereby restored to his civil and political rights. The forfeitures imposed by the Sandiganbayan remain in force and in full … except for the bank account(s) he owned before his tenure as President.”
If the pardon were shorn of political overtones, one would readily read it as restoring Erap’s right to seek public office, the companion political right of the right to vote. The pardon did not highlight any restriction in his political rights, and the right to seek public office is arguably the most relevant one to be restored. Instead, the pardon highlighted that it did not reverse the forfeitures enumerated in his conviction, those of the “Boracay Mansion” and the “Jose Velarde” and Erap Muslim Youth Foundation accounts. (Note that Erap’s candidacy for president is more complicated than his candidacy for mayor as it involves constitutional prohibitions on a president’s reelection.)
Pundits highlight Justice Marvic Leonen’s dissent, joined by Chief Justice Maria Lourdes Sereno and Senior Associate Justice Antonio Carpio in a rare pairing of the three most vocal justices. Leonen posits that Congress may impose procedural restrictions on pardons, and the Revised Penal Code passed in 1930 requires that a pardon be explicit when restoring the right to seek public office.
There are two basic problems with this argument. First, a president’s power to pardon is traditionally unrestricted. The nationally elected president is entrusted with the final option to temper the administration of justice and check Congress and the courts. For example, in 1798, the US Congress passed the Sedition Act, which punished malicious writing against the president or Congress. Thomas Jefferson, the next president, pardoned everyone convicted under it, believing that it violated free speech. The Risos-Vidal majority stressed that it would be difficult to accept even procedural restrictions on this broad power.
Second and more simply, the argument strains ordinary language. The majority asked why Leonen would distinguish the phrase “restored to his full civil and political rights” from “restored to his civil and political rights.” Justice Arturo Brion’s opinion criticizes Leonen for “a very literal reading” and hinted that perhaps it is Leonen’s opinion, almost thrice the length of the main decision, that invokes technicality.
Leonen also raises this phrase in the pardon’s preamble: “WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office.” However, preambles or
so-called “whereas clauses” are intended to have no legal effect. They merely give introductory context to a reader, a godsend when dealing with complicated or multiple, interrelated legal documents. Binding language belongs in a document’s body, and to draft otherwise is a mark of astounding incompetence in a lawyer. We encounter this basic convention even in simple two-page affidavits. It is no obscure technicality that the majority ignored the pardon’s preamble; to do otherwise would universally change how we interpret even the simplest legal documents.
Leonen’s perspective is ultimately moral. His dissent ends: “The person convicted of plunder now walks free among us. … It is hope for those who occupy high government offices who
commit crimes as they await a next political term when the people’s vigilance would have waned.” My neighbor in these pages and a determined pragmatist, Peter Wallace, echoes: “The Supreme Court allowed adherence to strict interpretation of the words of the law to overrule good common sense and what is best for society.”
The high court is a court of law, not of “good common sense.” Faced with the narrow task of interpreting a one-page pardon, it has little room to consider “what is best for society.” Justice Oliver Wendell Holmes Jr. famously said that “hard cases make bad law,” and a court must often rule on law and let political and moral chips fall where they may. If a court reads the same words differently when intended for saint or sinner in the name of “what is best for society,” it undermines the equally important integrity and consistency of our legal system.
One must thus stress that Risos-Vidal’s reasoning is readily respectable. Indeed, why must the high court shoulder any alleged moral shortcoming instead of the president who granted the pardon in the first place? Or, since that president’s supposed intention was merely to pardon prisoners over 70, is this simply a case of imprecise legal draftsmanship that snowballed?
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