2022 PHILIPPINE ELECTIONS [OPINION] A president is not a king – Rappler

In 1787, the task to create the US Constitution fell on a group of individuals who cloistered themselves in a hall, sealed it, then came out with a document to bind the Union together. The problem was convincing a wary public to ratify a document forged by an elite group, when the very reason they left the “old world” was to get away from the rule of a king and his ministers.

Enter Alexander Hamilton, a politician, businessman, lawyer, and economist who also happened to be a brilliant writer. He co-wrote a series of essays titled the Federalist Papers to persuade the public to accept the Constitution.

Of the 85 essays, Federalist Essay No. 69. (or simply “Federalist 69”) is one of the most ingenious. With it, Hamilton sought to allay fears that a president would be another monarch, just with a different title. His pitch – ratify this Constitution because under it, a president will never be a king – was compelling. Some would call him a propagandist, but history shows that his ideas worked. In fact, until today the Federalist Papers are still used as an important reference in constitutional interpretation.

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This promise came to mind as news came of the effort to convince the current president to do 2 things: (1) run for vice president; and (2) choose his running mate. Setting aside the curious spectacle of a vice presidential candidate being the one to choose who will be the presidential candidate, does this align with the agreement that under a constitutional setup such as ours, the president is not a king?

The “bar answer” to this question appears easy. There is no outright prohibition for a sitting president to run as vice president. It is tempting to chant “dura lex sed lex” or some such. Unfortunately, this is not an ordinary law, contract, or deed of sale. “We must never forget that it is a Constitution we are expounding,” so said Chief Justice Marshal of the United States Supreme Court (referred to as the “Great Chief Justice”).

There are four tools of constitutional interpretation: text, intent, history, and jurisprudence (Supreme Court decisions). Here we have a case where the text is silent on a specific point (it would be a different matter if the text said otherwise, ie the president can run for vice president), but imposes clear objectives on other parts – which is to stop a president from running again/extending his term. In a matter like this, the three others tools of interpretation are particularly weighty.

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Chief Justice Marshall adds that in interpreting constitutions, we must have regard for its “great outlines” and “important objects.” So what is the “great outline” and “important object” relevant to the presidency under the 1987 Constitution? That he stays for one term, and no more. That after six years, he steps down and he relinquishes power. The 1987 Constitution came after 20 years of dictatorial rule. Its entirety is permeated with mechanisms to reign in future presidents and check executive overreach. The question of whether all these mechanisms can be subverted by the mere two-step scheme being propounded by the president’s supporters is not as simple as it initially seems. Balancing the demands of Structuralism in constitutional interpretation has always been a head-scratcher.

Are these mechanisms relevant if the president is running only for vice-president? One has to appreciate that the vice presidency is unique. The occupant’s sole purpose is to succeed or assume the presidency if it is vacated. It has no other function. That’s why a former president running for a local position or as a senator is a completely different matter. To run for VP and choose his running mate is to acquire an office whose sole purpose is to “succeed” into the presidency, thereby getting another term.

The functionalist reason for the restriction is also worth contemplating. A sitting president has the power to mobilize tremendous funds and resources. And while previous presidents have endorsed candidates before, none post-EDSA has used those resources in an election to give himself another term. Considering the growing intelligence funds and trillions in “pandemic/recovery” loans, it is a troubling thought. This is precisely why it is one of the Constitution’s “great objects” not to allow a sitting president to run again.

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The constitutional provision is silent? Guess what else isn’t found anywhere in the Constitution? The phrase “separation of powers,” as well as “checks and balances.” Unlike the “positivist” demands of civil liberties cases, questions of constitutional design often frustrate quick-fix, “dura lex sed lex” analysis.

Can one take a narrow reading and exploit it to undermine the intent of the Constitution? Of course. But, again, the real question is, should it be allowed in a case where a president’s supporters are seeking to extend his hold on power? In separation of powers, a reading that expands the power of one branch (ie president), always comes at the cost of weakening the other two branches. Think of the law of conservation of matter.

An interesting fact: the Constitution actually prohibits the establishment of royalty or nobility (Art. VI, Sec. 31). But when we are told that, “Only the president can curse,” or hear him say, “My police, my army,” or asked not to be “choosy” about vaccines, only to see him choose an unregistered brand for himself and his men, or commanded to “stay home” only to see him fly to Davao to celebrate his birthday  – one ends up asking whether we have one in the making. The guarantee Hamilton gave at the inception was that a president is not a king. We should resist the creation of one in all of its subtle forms. – Rappler.com

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John Molo is a commercial law litigator who enjoys reading and learning about the Constitution and its intersection with politics. He teaches Constitutional Law at UP Law-BGC, where he also chairs the Political Law Cluster of the Faculty. He is the president of the Harvard Law School Association of the Philippines, and a past chairman of the IBP Law Journal. He led the team that sued the Aquino administration and invalidated the PDAF.