The issues can be summarized into two main questions:
1. Is Erap Estrada still President and Gloria Macapagal Arroyo just an Acting President?
2. If indeed Erap is still the President, or at least a president, is he immune from suit?
Erap’s argument is simple. He claimed he has not resigned as President, but only went on leave. Despite his physical absence from Malacañang, he said, he is still the President, and therefore still enjoys presidential immunity from suit.
The lawyers of GMA shot back with a double-barreled No-no!: No, Erap Estrada is no longer president. No, he does not enjoy immunity.
But his own Executive Secretary Edgardo Angara said in his published diary that Erap’s panel was in serious negotiation with GMA’s team about the President’s possibly resigning.
"He will hand in his resignation, but to take effect five days later," Angara said in his narration of what they were negotiating. Erap never thought of resignation?
"Pagod na pagod na ako," Erap was complaining to Angara. "Ayoko na masyado nang masakit."
Like a cornered crook, he was pleading for a graceful escape and, if possible, lifetime immunity for him and his family. Yet not once did Erap think of resigning?
On his forced departure, a resigned Erap issued a valedictory statement that talked of leaving and healing:
"I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given me for service to our people….
He was not rallying his vaunted masa for resistance or a possible comeback. He addressed them thus: "I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity."
As in chess when the King is trapped, Erap had no choice but to resign. He did.
In truth and in fact, however, the acts and the words of Erap, especially as seen in their political context at that time, constituted Constructive Resignation.
No equivocation, no hair splitting, no legal gobbledygook can change that. A tired, defeated Erap made a formal public declaration tantamount to a Constructive Resignation.
Those belated letters, worded so as to hew to the intent of Section 11 of Article VII for a president going on leave and later returning to the presidency, cannot reverse and nullify his Constructive Resignation of Jan. 20, 2001.
It’s too late for Erap to now change his mind.
By operation of the Constitution, the Vice President has qualified and taken her oath as the President under Section 8 of Article VII, which says: "In case of death, permanent disability, removal from office, or resignation of the President, the Vice President shall become the President to serve the unexpired term."
We know the poor guy is harassed, but he cannot claim immunity. Since he has resigned and is no longer President, Erap cannot presume to enjoy presidential immunity. It’s that simple.
The rule is, and this applies to everybody, when a man commits a crime, he has to answer for it. What’s so special about this actor who tried his hand at being president (with disastrous effects) that he cannot be sued?
A confused Erap must be laboring under the impression that he is still operating under the 1973 Constitution written by his departed friend Ferdinand Marcos.
Section 7 of Article VII ("7-7" provision) of the Marcos constitution tailor-made for the dictator declared: "The President shall be immune from suit during his tenure."
Marcos even had the temerity to expand this by decree to clothe his trusted subordinates who were acting under his direction with immunity until after the end of their tenure.
That infamous "7-7" relic of the Marcos charter was removed from the new Constitution precisely to help prevent a recurrence of the nightmare under a despot.
Erap is arguing that while immunity may not be in the current charter, its enjoyment in the past had enshrined it as a hallowed tradition to be availed of by a sitting president.
But precisely, Erap is no longer President, sitting or standing, who can invoke it.
We can grant that a president may be allowed reasonable leeway in exercising presidential discretion and not be hampered by threats of lawsuit. A president may be granted certain guarantees that he would not be harassed by legal action for his official acts.
When the president, for instance, approves a major public works contract, or signs a treaty, he should be granted good faith and immunity from suit. Those are official acts.
But if, for instance, the Chief Executive rapes a member of the Palace household, he cannot claim immunity just because he is president. Raping housemaids is not part of his official duties.
In the same way, plunder, graft and corruption, and bribery for which information has been filed against Erap with the Ombudsman cannot be covered by immunity even if Erap were still president.
The simple reason is that raping the economy and taking kickbacks and bribes are not among the official duties of the president.
The more basic reason, of course, is that the people ripped away the Marcosian concept of presidential immunity when they wrote and ratified a new Constitution in 1987.
Precisely, the Constitution talks solemnly of accountability and equality before the law.
In May 1997, the US federal high court ruled that a sitting president does not enjoy presidential immunity from suit over conduct not related to his official duties.
The ruling was handed down in a civil suit brought by Paula Corbin Jones against President Bill Clinton over you-know-what. Jones’ suit was based on misconduct allegedly committed by Clinton when he was still governor of Arkansas.
Since both of them are now plain citizens, maybe it won’t be difficult for Erap to phone Bill and ask for advice.
Kimberly has been accused of violating the Water Code (PD 1067) that reserves the exploitation of water resources to Filipinos. In a complaint before the National Water Resources Board, UP Likas, a pro-environment student organization, alleged that Kimberly was able to obtain water permits for the direct utilization of ground water despite the fact that the firm is 87-percent foreign owned.
The students are also complaining that Investment Ombudsman Florecita Flores has been interfering with the functions of the NWRB to favor Kimberly. The investments of the firm seem to color official attitude, they said.