Can an incumbent President run for Vice President?

Exordium

There are two (2) types of elections in the Philippines namely regular and special elections. A regular election is one participated in by those who possess the right of suffrage and not otherwise disqualified by law and who are registered voters.

Special elections, conversely, are those conducted where there has been a failure of election on the date of a regular election itself in a particular place. It can also refer to one held to fill up certain vacancies, as may be provided by law.

Under the Section 4, Article VII of the 1987 Philippine Constitution, the President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth (30^th) day of June next following day of the election and shall end at noon of the same date, six years thereafter. 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.

The current Philippine president Rodrigo Duterte, whose term will be ending in 2022, has expressed his intentions in running for office again on the upcoming elections, but not on the same position.

His current political party, PDP-Laban, has formally urged him to run for vice president. As it was previously stated, Philippine presidents cannot have more than one term on the same position, which poses an important political question: can they run for vice president upon stepping down?

The term reelection, in its plain meaning, signifies that a former officer is being elected again to the same office. What are the framers’ intents as regard reelection for these positions?

On the course of this paper, the following relevant questions will be given answers:

(1) can President Duterte legally run for Vice-President;

(2) what does it mean by “what cannot be done directly, cannot also be done indirectly?”;

(3) does the principle previously stated bar the president from running for vice-president;

(4) does the word “reelection” refer to the same office or is it time bound, meaning, should not be immediately succeeding; and

(5) does the word “any” [re-election] refer to any office, presidency and lower positions?

Pelagus | Principalis

Elections are integral to democratic governance. Through the mechanism of elections, politicians are held accountable for their actions, and are compelled to introduce policies that are reflective of and responsive to public opinion.¹

According to Andrew Heywood,² ideally, elections serve as a ‘major source of political recruitment, a means of making government, and of transferring government power, a guarantee of representation, and a major determinant of government policy’.

In the Philippines, it has been enshrined in the 1935, 1973 and 1987 constitutions the so-called plurality system. Under the 1987 constitution, all elective officials are chosen by direct vote of the people. However, what is confusing is the wording in the said constitution.

There are different interpretations by several legal experts on the meaning of the word “any” and “reelection” – some experts contest that the constitutional limitation only applies to an incumbent President.

Other opinions state that the prohibition applies to anyone who has served as president. Some assert that if a President was able to serve for less than four years, as in the case of the then President Estrada, he too can still qualify to run for president again.³

Joaquin Bernas, S.J.,⁴ one the experts in constitutional law, in an article featured in the Philippine Daily Inquirer, asserted that no President, whether incumbent or past, may run for the presidency a second time. He defined “re-election” as vying for office a second time around, whether immediately after one’s term of office or at any period thereafter.⁵

Christian Monsod⁶ agreed with Bernas’ assertions. He said that the constitutional provision applies to all living presidents. He further said that “The Constitution provides that any reelection is prohibited. Any reelection. It doesn’t have to be that he is seeking reelection to succeed himself (for him to be banned)”.⁷

Rufus Rodriguez,⁸ the Congressman for the second district of Cagayan de Oro, contradicted the assertions of Bernas and Monsod, saying that the ousted President may seek the same position again. He believes that the term “re-election” refers only to the incumbent President. He illustrated his contention with the mayorship of Lito Atienza, saying that if the same were to run again as the mayor of Manila, he will be seeking election and not reelection, because he is not an incumbent.⁹

It is apparent from these experts that they are trying to interpret the framers’ intention as regard what the constitutional provision is trying to convey. Where the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.

Can President Duterte legally run for Vice-President?

As previously mentioned in paper, there are different views as to what the framers’ intentions as regards reelection as stated in the 1987 Constitution.

For Dean Sta. Maria, President Duterte shall not be eligible to run for reelection for ‘any’ of the positions: either of the same office or the Office of the Vice President.

However, according to Prof. John Molo of the University of the Philippines, in his article Thought Leaders Piece in Rappler, he stated that there is no outright prohibition for a sitting president to run as vice president. He further said that ‘by limiting a president’s rule to just one term, the Constitution “is permeated with mechanisms to rein in future presidents and check overreach”’.

Moreover, the Constitution was crafted to protect the country from another dictatorship. Monsod added that the plan of President Duterte of running for the position of vice president “is an ingenious and insidious move to circumvent the Constitutional provision on reelection”.¹⁰

Simply put, Duterte is trying to bend what the constitution has provided as regards the prohibition on reelection for the presidential and vice-presidential positions.

What cannot be done directly, cannot be done indirectly

This doctrine is translated from the Latin maxim quando aliquid prohibetur ex directo, prohibetur et per obliquum which is usually used under the rules on Statutory Construction.

In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,¹¹ the Court held that, “No one is allowed to do indirectly what he is prohibited to do directly.” This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one.

By applying this principle, the fate of the Impugned Legislation is decided.¹²

An example of the application of this doctrine is laid down in Tawang Multi-Purpose Cooperative (TMPC) vs. La Trinidad Water District¹³as regards grant of franchise, certificate, or authorization for the operation of public utility “exclusive in character”.

The Court ruled in citing Section 11, Article XII of the 1987 Constitution which states “No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. (Emphasis supplied)”.¹⁴

The Court further ruled that the President, Congress, and the Court cannot create directly franchises that are exclusive in character.

“Indeed, the President, Congress, and the Court cannot create directly franchises that are exclusive in character. What the President, Congress and the Court cannot legally do directly they cannot do indirectly.¹⁴

“Thus, the President, Congress and the Court cannot create indirectly franchises that are exclusive in character by allowing the Board of Directors (BOD) of a water district and the Local Water Utilities Administration (LWUA) to create franchises that are exclusive in character. xxx”¹⁴

What cannot be legally done directly cannot be done indirectly. This rule is basic and, to a reasonable mind, does not need explanation. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.¹⁴

Does the Principle previously stated bar the President from running for Vice-President?

If acts that cannot be legally done directly can be done indirectly, all laws would be illusory. However, the principle stated does not automatically bar the president form running for vice-president.

There is still a confusion lying on the interpretation of the constitutional provision on prohibition of reelection of presidents and vice-presidents. The same is also true as regards statutory construction.

Such principle cannot be simply applied since, as a general rule in statutory construction, when the law is clear, there is nothing for the courts to do but to apply it.

That’s where the problem lies since there is a confusion on the interpretation of the framers’ intentions on this provision.

As much as this rule is basic and, to a reasonable mind, does not need explanation, it cannot be ordinarily applied to constitutional provisions that poses a great political question.

Does the word “Reelection” refer to the same office or is it time bound, meaning not immediately be succeeding?

Bernas, in defining the term “re-election” as vying for office a second time around, referred to the same office. As regards the time bound, he stated that such is applied whether immediately after one’s term of office or at any period thereafter.

In his article in the Philippine Daily Inquirer, he focused on the statutory construction of the term re-election, “Unfortunately, the ordinary meaning of “reelection” can be either election immediately after a term or election even when there are interruptions.

Legislators are aware of the possible ambiguity of the word “reelection” and so when they mean election immediately after a term, they deliberately add the adjective “immediate.” You will see this adjective in the case of the law on reelection of senators, representatives and local elective officials.”

Commissioner Francsico Rodrigo, during the 1986 Constitutional Convention, proposed for a six-year term for the presidential and vice-presidential elections, which led to the question of whether or not the Constitution should allow the president with a six-year term the privilege of being elected again, or the privilege of being elected indefinitely.¹⁵

The explanations of the sponsors show that the proposition of Commissioner Rodrigo, who sponsored the scheme for a presidential term of six years, only contemplated a ban for an “immediate re-election,” that is, the President would be barred from participating only in the elections immediately following his term as President but not from elections following that.¹⁶

Put to a vote, it surfaced that the sentiment of the entire body of Commissioners was not in favor of an absolute ban, preferring only a bar on an immediate re-election.¹⁶

Does the word “Any” [Re-election] refer to any office, presidency, and lower positions?

According to Dean Mel Sta. Maria of the Far Eastern University law, he interpreted that the term “any” should refer to both reelection as president and vice president, since the two positions were mentioned in the preceding sentences.

Simply stated, the President himself is not eligible to run for reelection for ‘any’ of the positions either of the same office or the Office of the Vice President.

This view is in contrast with Justice Secretary Menardo Guevarra. Guevarra stated that Section 4 of the 1987 Constitution does not prohibit the President in running for any other positions than the presidency in any subsequent elections.

In addition, the Secretary added that the framers of the Constitution must have expressly provided that the president shall not be eligible for any reelection to run for vice president at any subsequent national elections.

This contention was immediately struck down by UP Professor John Molo, saying that whilst Section 4 is silent on the matters of reelection and electoral positions, the same also did not expressly provided the words “separation of powers” and “checks and balances”, yet these are two fundamental principles in Philippine law.

As much as the question of electoral position on reelections is concerned, this is still a political (and possibly a justiciable) question which is left to be answered by the framers and can be a gap that needs to be addressed if ever there will be amendments on the current constitution.

Final Thoughts

Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. Any theory espousing a construction contrary to such intent and language deserves scant consideration.¹⁷

In times of confusion or controversy, constitutions are to be construed in the light of their purpose and should be given a practical interpretation so that the plainly manifested purpose of those who created them may be carried out.¹⁸

It is just proper at this point to revisit Article VII, Section 4 of the 1987 Constitution, particularly the portion which states: “The President shall not be eligible for any reelection. 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.”¹⁹

Two lines spark controversy: In the first line, does the word “President” refer to the incumbent President or any President? And does the word “reelection” contemplate the immediately following election or every reelection thereafter?

From the second line, does it contemplate only persons who have succeeded as President — those who were not elected to the presidency? Or does it contemplate anyone who has served as president, whether elected or otherwise?

Taken as a whole, can a President who has served his term run again for the position of President after resting from politics in the term succeeding his?

“Although it is a universally recognized and incontrovertibly established rule of construction that it is presumed that words appearing in a constitution have been used according to their plain, natural, and usual signification and import, and not in a sense unreasonably restricted or enlarged,²⁰ the differing interpretations of various Philippine legal luminaries show that there are conflicting opinions as to the plain meaning of the subject section, creating the need to look into the intent of the framers of the Constitution.”²¹

“Nevertheless, even the framers subjected such section to massive debate, with conflicting opinions. When the commissioners voted, the scenario for a presidential term of six years barring only an immediate re-election was the overall sentiment until Commissioner Padilla called for another voting calling for an “absolute ban” on re-election.”¹⁶

“While this proposition for an “absolute ban” was adopted later in the day, it was met with vehement and eloquently presented objections.”¹⁶

“Therefore, we must apply the learning that opinions in a constitutional convention, especially if inconclusive of an issue, are of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the people) since the constitution derives its force as a fundamental law, not from the action of the convention but from the powers (of the people) who have ratified it and adopted it.”¹⁶

The proper interpretation of a constitution depends more on how it was understood by the people adopting it than the framers’ understanding thereof.

1. Julio Teehankee, Electoral Politics in the Philippines, 2007[↩]
2. Andrew Heywood, Key Concepts in Politics 2002[↩]
3. Margaux Marie V. Salcedo, The Parameters of Power: An Analysis of the Constitutional Ban Against Re-Election of Presidents[↩]
4. Joaquin G. Bernas, S.J., is a leading constitutionalist, Dean Emeritus of the Ateneo de Manila University School of Law, and was an opinion writer of the Philippine Daily Inquirer[↩]
5. Joaquin G. Bernas, S.J., The last word: Estrada cannot run for president, Philippine Daily Inquirer, Jan. 4, 2008.[↩]
6. Christian Monsod was Chairman of the Commission on Elections and also a member of the 1986 Constitutional Commission.[↩]
7. Norman Bordadora, Estrada can’t run, says a writer of 1987 Charter, Philippine Daily Inquirer, Jan. 4, 2008.[↩]
8. Rufus Rodriguez is a member of the House of Representatives for the second district of Cagayan de Oro.[↩]
9. Jose Rodel Clapano, Erap can run? Binay ready for 2010; Noli open as opposition’s bet, Philippine Star, Jan. 7, 2008.[↩]
10. Lian Buan, Can Duterte run for VP? What the constitution says. Rappler, June 7, 2021.[↩]
11. G.R. No. 148208, December 15, 2004[↩]
12. Amita Gehlot, Doctrine of Colorable Legislation and the Constitution of India[↩]
13. G.R. No. 166471, March 22, 2011[↩]
14. Ibid.[↩][↩][↩][↩]
15. The Parameters of Power: An Analysis of the Constitutional Ban Against the Re-Election of Presidents, Margaux V. Salcedo, p. 222 [↩]
16. Ibid.[↩][↩][↩][↩][↩]
17. Lambino vs Commission on Elections, 505 SCRA 160, G.R. No. 174153, October 25, 2006[↩]
18. 16 AM. JUR. 2d Constitutional Law § 65 [1969][↩]
19. Article VII, Section 4, Philippine Constitution [1987][↩]
20. 16 AM. JUR. 2d Constitutional Law § 75 [1969][↩]
21. Supra., Parameters of Powers, p. 238[↩]