Pardon the politics

The pardon that Joseph Estrada received from then President Gloria Macapagal-Arroyo was so deliberately vague that the Supreme Court would have been hard-pressed to rule otherwise. But why would a sitting president who wields the absolute power of mercy over a jailed convict even negotiate the terms of her forgiveness? Because by then, her legitimacy had so suffered from scandal after scandal, from the Garci tapes to the ZTE deal, that by the time Estrada was convicted, she must have hoped that by letting him go free, she would receive the blessings of St. Francis’ prayer: “It is in pardoning that we are pardoned.”

Recall that in 2001, soon after Estrada was ousted from the presidency through People Power protests, he was charged with plunder at the Sandiganbayan. In 2007, he was found guilty and sentenced to a prison term with the additional penalty of “perpetual disqualification from public office.” A month later, he applied for “full, free and unconditional pardon” from Arroyo, and within days he got it. The other day, the Supreme Court held that that pardon was “absolute, thereby restoring [Estrada’s] qualifications to stand as candidate in the last mayoralty elections.”

Judge for yourself: “Whereas, Joseph Ejercito Estrada has been under detention for six and a half years; whereas, [he] has publicly committed to no longer seek any elective position or office … 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.”

This was carefully crafted to tiptoe around the issue of whether Estrada can seek public office again—that is to say, whether the punishment of perpetual disqualification remained despite the pardon. After all, that is what the Revised Penal Code says: “A pardon does not work the restoration of the right to hold public office … unless such rights be expressly restored by the terms of the pardon.”

But on the other hand, Arroyo did give an unconditional pardon, no ifs or buts about it (“I hereby grant executive clemency…”). Under the Revised Penal Code, the effect of that pardon is the “total extinction of criminal liability.” In addition to that, she stated expressly that Estrada was thus “restored to his civil and political rights.” Since his right to run for public office was the only such right that he lost by virtue of his conviction, that was as express a restoration of right as one can find in the terms of a pardon. That presumably was the reading of 13 justices as against the three dissenting members of the high court.

Neither does the phrase that Estrada “ha[d] publicly committed to no longer seek any elective position or office” make the pardon any less “unconditional.” Those words appear in a preambular paragraph and are not part of the operative clause of the pardon. Moreover, the disavowal of public office was not a promise made by Estrada to Arroyo, but was a mere recitation of newspaper information that cannot detract from the categorical language of the operative clause.

Which makes us wonder. At that stage, Estrada had already been convicted. Though he had announced that he would appeal the verdict, Arroyo’s pardon was his quickest and most realistic way out of prison. He was at her mercy. Then why did she have to resort to legal sleight of hand, as if to say he is pardoned and his political rights are restored, but hey, don’t worry, he’s not planning to run for office anyway?

Moreover, remember that Estrada’s 2013 run for Manila mayor was not his first time to test the nature of the pardon. He actually ran for president in 2010, and was the runner-up to the winner, Benigno S. Aquino III. Even then, he already faced this eligibility issue on his “perpetual disqualification,” but there was yet another legal obstacle: the “no reelection” rule (“The President shall not be eligible for any reelection”). Yet no court dared stop him in 2010—even the Supreme Court wouldn’t stop him then—and he garnered almost 10 million votes (26 percent of the total) as against 15 million votes (42 percent) for Mr. Aquino.

Ten million Filipino wanted him to become president in 2010. Despite a plunder conviction. Despite a constitutional disqualification against reelection. Despite a deliberately malleable pardon. And now he is the mayor of Manila.

Indeed, Estrada tests the limits of Philippine democracy, and it is hard to guess how long it will take for the Filipino voter to vote wisely, or, until then, whether our courts will have the gumption to defy the political winds.