Thursday, July 4, 2013

I bet SC will disqualify Erap and install Lim


I bet SC will disqualify
Erap and install Lim



By BERTENI “TOTO” CATALUÑA CAUSING


Knowing that the Supreme Court is peopled by arguably the best legal minds of the Philippines that its members cannot be swayed by any opinion expressed in the exercise of the freedom of expression, I bravely bet my last penny that the highest court will eventually decide to disqualify Joseph Ejercito popularly known as “Erap Estrada” and install Alfredo S. Lim a.k.a. “Dirty Harry” as the legal winner in the May 13, 2013 mayoral race in Manila.

         This is just a masturbation of the mind and I do not intend to hurt the feelings of Erap and pro-Erap or make happy Lim and pro-Lim.

         The proposition why Erap ran for mayor is that his pardon given by the previous national administrator-in-fact Gloria Macapagal-Arroyo already erased the crime of plunder for which he was convicted.

        To my mind, the pardon given to Erap is conditional and is not absolute that erased all criminal records and removed all punishments that prohibited him from running for an elective post or from getting appointed to any other government position.


THERE IS NO PARDON TO SPEAK OF YET
DUE TO NON-COMPLIANCE OF CONDITIONS


            The conditions written on the pardon given by Gloria to Erap were premised on Erap’s commitment he will no longer seek any elective office.

            On that premise as one of the bases, Gloria scribbled a pardon and offered it to Erap while he was in prison.

           In addition, Gloria wrote other conditions for the pardon to be effective: that the forfeitures imposed by the Sandiganbayan will remain to be complied with.

            To understand my points, let the pardon be quoted, as follows:
           “WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

           “IN VIEW THEREOF and pursuant to 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.

            “The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.”



The forfeitures as imposed by the Sandiganbayan are as follows:

“The period within which accused Former President Joseph Ejercito Estrada has been under detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners. Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the following:

            “(1) The total amount of Five Hundred Forty Two Million Seven Hundred Ninety One Thousand Pesos (P545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

           “(2) The amount of One Hundred Eighty Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, deposited in the Jose Velarde account.

            “(3) The real property consisting of a house and lot dubbed as ‘Boracay Mansion’ located at #100 11th Street, New Manila, Quezon City.”

           Note that of the P545,291,000.00 forfeiture, Erap has not paid it in full.  The failure to comply with this order therefore is a fact that proves that Erap has not fully complied with this condition of the pardon.

           Now, my conclusion is that Erap is disqualified to run for any office because the pardon has not yet ripened into a pardon due to his failure to comply with the condition to surrender to the government P545,291,000.00; to date he has not paid this yet.

           Let it be pointed out that pardon is a contract between the President and the pardonee.

           For it to become a consummated contract, the pardonee must express agreement to the pardon being offered.  And if he agreed, he must comply with the conditions stated in the pardon being offered.

          Yes, Erap violated the first condition: for him not to run for elective office. However, this does not automatically disqualify him from running for mayor as will be explained below.

           It is undisputed that Erap accepted the conditional pardon offered by Gloria.  So that it is also undisputed that Erap must comply with the conditions.

           The “whereas” clause that states that Erap publicly declared he was no longer seeking any elective office was the reason why Gloria signed the pardon.  This is therefore no doubt a condition of the pardon.

           To be clear, let it be refreshed in the mind that in the first sentence of the pardon, it is stated there that Erap publicly declared he was no longer seeking any elective position and that Gloria wrote the phrase “IN VIEW THEREOF” she granted the pardon.

           To repeat: This is therefore a condition that the pardon was issued, that he will never run for any elective office. Ergo, that is a continuing condition that never dies unless it is violated or unless Erap goes to the grave.

           And because Erap ran for president in 2010, the pardon was deemed breached, giving the President the right to withdraw the pardon anytime.  To date, however, despite the breach the pardon has not been taken back.  So that it means that unless the President acts, the silence of Malacañang can be deemed as consent on the part of the President to make that clause ineffective.  Hence, it is correct to say that this violation can never be a cause to disqualify Erap from running for mayor of Manila.

          But look at the condition of forfeiture of P545,291,000.00.  This is undisputedly not complied with.  I therefore bet that non-payment of this constitutes a legal postulate that there is no pardon yet to speak of.  Pardon can only complete if this is paid in full.  And in completing this payment, the burden lies on Erap.

          It is just like a contract to buy a car where the buyer agreed to pay in 10 equal installments.  If the buyer has not fully paid the installments, there is no sale.

         Similarly to pardon, for purposes of emphasis, if all conditions are not complied with, there is no pardon to speak of as yet.

         And if there is no pardon, then Erap cannot as yet run for any elective office.


WHY MAYOR LIM WILL BE
INSTALLED AS MAYOR?


         Granting that my proposition is sound that I believe so it is, the disqualification of Erap means that at the time he filed his certificate of candidacy for mayor of Manila his candidacy was null and void as of that time.

         The doctrine is that no right can be gotten from any void transaction.

         And if the candidacy of Erap is null and void, then all votes that were given him are also void votes that have no legal effect.  In layman’s term these votes are stray votes and can never be considered as votes: it is good as no votes were cast for Erap.

         So that if this is the case, the only legal votes are those voted for all other candidates.

         And to know who won the 2013 elections, the highest among the valid votes is the winner of the contest for mayor.

         And there is no dispute that Alfredo S. Lim is the highest after all votes for Erap are taken out of the equation, then Lim must be proclaimed the winner of the 2013 election for Manila mayor.

          This proposition is supported by the LATEST DECISION of the Supreme Court that declared that the rightful winner shall be the second placer after the null and void votes are removed.

          This latest case reversed the 101-year-old doctrine that the vice-mayor should be declared as the mayor in case the winning mayoral bet proclaimed as the winner was subsequently declared as disqualified from running.

         This case is entitled “Casan Macode Maquiling vs Comelec and Rommel Arnado y Cagoco, Linog G. Balua,” GR No. 195649, promulgated on April 16, 2013.  A motion for reconsideration was filed but it was rejected by the Supreme Court. Hence, this decision has become final and executory.

          Ten members of the Supreme Court voted for this new doctrine while the five others dissented.  It was Chief Justice Maria Lourdes P.A. Sereno who wrote the decision of the case.

          I also learned that the Supreme Court required Lim to intervene in the present disqualification case filed by a lawyer against Erap.

         Wanna bet?

         He he he…This is just a fun for the intellect.


NO VOX POPULI VOX DEI APPLICATION


          It has been argued by several camps that the doctrine of “The Voice of the People is the Voice of God” will reign to favor Erap.

         I beg your pardon that this doctrine does not apply.

         Why?

         The Constitution is a voice of the people because it was ratified by the people in the entire country in 1987.

         Now, the voice of the people of the entire country must be followed by the voice of the people of Manila only.

        So that it is a non sequitor for them to insist that the voice of the people of Manila must be followed against the voice of the people of the country.

        My other argument is that there is no voice to speak of from the voice of null and void.


READ THE DECISION OF THE SUPREME COURT IN MAQUILING VS COMELEC AT THIS LINK:


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