"One cannot do something indirectly what one is prohibited from doing directly."
During the last five years, the Filipino people have been given the impression that President Rodrigo Duterte has been feeling overburdened by the responsibilities of the Presidency and is looking forward to the day he leaves Malacanang.
Many people have been inclined to believe that Mr. Duterte is looking forward to June 30, 2022, when his term ends. However, a recent development has cast doubt on the veracity of Rodrigo Duterte’s professed eagerness to step down 13 months from now.
I refer to the move by some of President Duterte’s supporters, in Congress and within the PDP-Laban Party, to fill the Chief Executive as the PDP-Laban Party’s candidate for Vice-President in the May 2022 election, with either Davao City mayor Sara Duterte or Senator Christopher Go as the candidate for President. Someone who was dead-set on stepping down from the Presidency next year would have quickly shot down the PDP-Laban Party’s trial balloon. But Mr. Duterte has not done that so far; the Filipino people still have to see an if-nominated-I-will-not-accept statement from him.
The idea of a public official or a professional seeking to retain power and influence by accepting or aspiring for a lower position is objectionable, even unacceptable. This is particularly true where the office’s involved are the nation’s No. 1 and No. 2 offices, Rodrigo Duterte’s case is even more objectionable because of his recorded protestations of non-interest in prolonging his stay at the highest levels of government the Vice-President of the Philippines is, after all, only mere heartbeat away from becoming President.
But the idea of Mr. Duterte running for and possibly winning the vice presidency in 2022 is objectionable for a far stronger reason — a legal inhibition. I am very surprised, even shocked that this country’s legal experts – particularly experts on Constitutional law – haven’t already struck down the Rodrigo-Duterte-for-Vice-
The legal inhibition, which every second-year law student knows, is a person’s legal inability to perform indirectly an act that the Constitution and the law prohibit him from performing directly.
Believing that the longstanding with-no-reelection limit for the Presidency had proven to be detrimental to the nation’s growth and progress, the 1987 Constitution switched to a six-year term with no re-election. Faced with the ban on his making another run for the Presidency in 2022, Rodrigo Duterte’s supporters thought that, with a run for the vice presidency, they had found a way (1) to skirt the Constitutional prohibition and (2) to keep their man at the head of the line of succession to the presidency.
President Duterte’s supporters are bound to insist that his candidacy for the Vice-Presidency will encounter no Constitutional prohibition. They will insist that the Basic Law does not limit the Vice-President to one term. On that score they will be right; only the President is limited to one term in office.
A Rodrigo Duterte candidacy for the Vice-Presidency in 2022 will certainly be challenged as soon as he files his certificate of candidacy. The challenge will be based on more than every person’s need to observe both the spirit and the letter of law; it will be based on the Constitutional provision governing the termination of a presidency.
The Basic Law laid down four causes of the termination of a Presidency, viz., death, incapacity, impeachment and resignation. Death, incapacity, and impeachment are causes beyond the control of the incumbent President; resignation is a cause that is entirely within his control.
The legal experts’ challenge to a Rodrigo Duterte candidacy for the Vice-Presidency is bound to be based on the issue of a Presidential resignation. Suppose that next year’s PDP-Laban ticket wins and either Sara Dutterte or Christopher Go is elected President and Rodrigo Duterte is elected Vice-President. What is there that will stop Mayor Duterte or Senator Go from resigning the Presidency after a brief occupancy of that office? Absolutely nothing. The Constitution says nothing about the resignation of a President – when it may be done, the circumstances under which it may be done justifiably, the attendant am administrative requirements, etc. Theoretically, whoever is elected President in 2022 can resign that office at any time during the Presidential term – even after a few months after taking office and not offer almost any reason for doing so, including “health reasons” or “personal reasons.” Thus, either Mayor Duterte or Senator Go, if victorious in next year’s election, could hand the presidency back to President Duterte through a resignation.
To repeat, there is Constitutional impediment to Rodrigo Duterte’s running for the Vice-Presidency in the coming election but at the practical level, that may not come to pass. Already many sectors of Philippine society, outraged at the very idea of having VIce-Presidential candidate Rodrigo Duterte on the ballot, are preparing to challenge that candidacy in the courts, probably all the way up to the Supreme Court.
The basis for the challenge? The legal precept that a person cannot do indirectly – in this case, getting back into the Presidency through the back door – what the Constitution and the law prohibit him from doing directly.