Monday, 9 July 2007

Fleshing out the possibilities...

There has been much talk about the public's reaction to the upcoming decision of the Sandiganbayan on the Erap plunder case. However, opinions have crystallized on the possible reactions on basically whether it would be acquittal or conviction. However, there are varying degrees under each possibility which can possibly impact on the reaction of the public and various interest groups.
Let's take a second look on what are the possible decisions of the Sandiganbayan.
Let's start with the more problematic Not Guilty scenario. Under our criminal justice system, an accused will not be found guilty under the following:
  1. He did not commit the crime he is accused of
  2. The prosecution was not able to discharge the burden of proving the guilt of the accused beyond reasonable doubt

Some observers, apparently laboring under the assumption that the Sandiganbayan cannot reach a decision independent of personal and political considerations, argue that acquittal is the remotest possibility not because of the evidence presented but because they fear that acquittal would require the reinstatement of Erap to the presidency. Not only are they proceeding from a wrong and borderline malicious assumption, they are basing their fears on a wrong reading of the law, as Atty Marichu Lambino points out in mlq3's blog.

The acquittal of Erap has no legal implication as to the loss of the presidency. There should be no quibbling as to the finality of the Supreme Court's decision in Estrada vs Desierto, at least if we are to continue claiming that we are a "government of laws and not of men." Even if it can be argued that the Supreme Court's decision was wrong and be subsequently overturned, Estrada supporters cannot find comfort in that because the decision is already an operative fact and we don't have anything that would justify “a principle of absolute retroactive invalidity.”

What then is the basis of this fear? Another outburst of "people power", a redux of "The Empire Strikes Back" or "The Return of the Jedi" depending on where you are sitting on the current political spectrum (a more substantial discussion of the Philippines in the light of Star Wars parallelisms would probably be discussed in another post).

There are various factors to consider whether this scenario will unravel or not. Suffice to say that taking into consideration the current disposition, it remains a long, long, long shot. The best recourse for the country, if GMA cannot be legally kicked out of office, i.e. impeachment, is to sit out the next three years. Ironically, it is the same thing that we should have done in 2001. Years from now, historians would probably say that our curse was "people power". Marx did say that history repeats itself, first as a tragedy, the second as a farce.

On the other hand, Erap may be found Guilty under the following circumstances:

  1. He has committed the crime charged in the information which is Plunder
  2. The prosecution failed to prove plunder but nonetheless proved that Erap is guilty of a lesser crime necessarily included in plunder (violations of the anti-graft and corrupt practices law)

One thing needed to be pointed out is the lack of finality of the Sandiganbayan's decision in case the verdict it comes out with is one that would convict Erap. Erap has the option of appealing the decision to the Supreme Court. If that happens, what can be seen is just a prolongation of the status quo. Unless, of course, the administration would insist on throwing Erap to Bilibid. However, it would not be politically astute as it would definitely rile up Erap's more rabid supporters. The administration has successfully justified Erap's incarceration in Tanay when he should have languished in a city jail somewhere during the trial. It wouldn't be difficult to justify his continued incarceration in Tanay while he appeals his conviction.

An ideal set-up for final and executory conviction of Erap is that it be done after the term of this administration. By then, he'd be over 70 and presidential clemency would be easier to swallow.

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