S1E3 – Studying all the Queen’s Gambit Moves for Sara

There’s so much talk about Sara Duterte becoming president if Bongbong Marcos is disqualified.

There’s even a conspiracy theory that this is the reason why the COMELEC is delaying the decision in the disqualification cases still pending.

Accordingly, if they would just allow Marcos to win, they can just disqualify him when he is already sitting in Malacañang to pave the way for Sara to succeed him.

Annoyingly, when the topic is this controversial, lawyers have no advantage. Everybody becomes a legal expert. You might as well argue with yourself because you are NOT convincing anybody.

That’s why my own attitude about this is, “I don’t care what you want to believe. This is what the Constitution says.” If you insist on being stupid, be my guest.

For the Sara conspiracists, the fatal impediment—and this could very likely be insurmountable—is that Leni Robredo wins. Worse (for Sara) Kiko Pangilinan also wins, totally removing her from the line of succession.

So for fun and argument’s sake, let’s suppose the Leni-Kiko tandem tanked. Sara Duterte won as Vice-president. What would be the different gambits on the chessboard?

First, Marcos must win on May 9, 2022 (to become President-ELECT) then he must stay alive and healthy until noon on June 30, 2022 when he actually BECOMES the Seventeenth Philippine president.

After that, Marcos must CEASE to be the president for any of these four reasons ONLY: (1) he died, (2) he became permanently disabled, (3) he was lawfully removed from office, or (4) he resigned.

With the President permanently gone, vice-president Sara Duterte will succeed as the President and serve the unexpired term of Marcos. (Art VII, Sec. 8, 1987 Constitution)

Or, also, if Marcos becomes president-ELECT (not disqualified) but he dies or becomes permanently disabled before the start of his term, Sara also becomes the President (not just acting president) and serves the full term of the president, AS IF she was elected president (Sec. 7, par. 4)

If Marcos is disqualified BEFORE May 9, 2022, then he is not a candidate anymore and all votes for him will not be counted. Then whoever wins among the remaining candidates becomes the president-ELECT. But if Kiko lost, Sara stays in the succession line.

That’s keeping it clean and simple. Now let’s go to the grey areas.

If Marcos is disqualified AFTER May 9, 2022, he would have still been a candidate on election day and so his votes would still have been counted.

Let’s say he won.

Would the Supreme Court packed with Duterte appointees apply the disqualification retroactively? Or would they say the election results make post-election disqualification moot and academic?

Let’s indulge the conspiracy theorists who say that this is the “Duterte Plan B”:

The Supreme Court applies the disqualification retroactively (to favor Sara), then Bongbong Marcos would be considered as if he had not been a candidate, even if he garnered the highest number of votes.

However, the second placer does NOT become the president. The second placer did not win. That candidate was beaten by a disqualified candidate. But one thing is undisputable: the electorate did NOT want the Second Placer to be the president.

So at noon on June 30, 2022, there would be no president-ELECT to assume the office of the Presidency.

There would, indeed, be a vacancy in the office of the President. But the reason for the vacancy is NOT because the president died, was permanently disabled, was removed from office or resigned. There is no unexpired term to speak of because no person began serving that term.

In this scenario, Sara does NOT succeed as President—as there was no president to succeed. Instead, she becomes ACTING PRESIDENT (Sec. 7, pars. 2 and 3).

In other words, if the plan is to replace Bongbong, you have to let him BECOME president first which, obviously, cannot happen if you disqualify him. So “Plan B” sucks, if you were vice-president Sara. Under that sinister plan, she can only be the bridesmaid but not the bride. In short, disqualifying Bongbong Marcos will NOT make Sara automatic president.

Unless she gathers the intestinal fortitude to apply what I call the “Benguet Lesson.”

Eric Yap is not the congressman of Benguet, he is only the caretaker. But who cares? He served practically the whole term of the late Nestor Fongwan, Sr. and is now easing into the regular office. Or, more like, the office grew on him. He will probably serve 9 more years—three full terms of his own, since the present term he is serving is not his own. He is now an iBenguet, according to many iBenguets. Why not–he “loves Benguet” and was willing to tough it out in the last 3 years just being a pretender to the title. At the bottomline, what matters is the totality of time that you get to enjoy the office, regardless of the description of the title.

Sara can adopt the same attitude.

So what if she is called only an “Acting President”—just a caretaker of the Presidency. For all intents and purposes, she would still be the highest official of the land. Unless Congress knocks her off, but would Congress do that? Let’s see…

To me, the most problematic of the grey areas is the conflict between Sec. 8 par. 2 and Section 10.

To keep it simple, Section 10 commands Congress to call for special elections for president AND vice-president. But why include the vice-president? That office is not vacant!

Sara, in our scenario, is STILL the vice-president, but filling the capacity of an ACTING President. Therefore, Congress must only be concerned with abbreviating the term of the acting president, because there is only one vacancy—that one in the office of the President. As soon as a new president is elected, Sara slides back down to vice-president.

Section 8 par. 2 contemplates a SECOND acting President and defines the “unlimited limitation” of its tenure. If the acting President (Sara, in our scenario) herself dies, is permanently disabled or resigns, then Congress must pass TWO LAWS: one designating a SECOND acting president, and another one calling for that special elections described in Section 10—because now you would really have TWO vacancies already. Both president and vice-president (the FIRST acting president) are permanently gone, making Section 10 applicable.

But wait. Read Section 8, par. 2 AGAIN: “The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President.”

What if Acting President Sara does NOT die, does NOT become permanently disabled or does NOT resign, is there a requirement for Congress to do anything about cutting short her term as “acting president?”

None.

You never get to apply Section 10—because it does not provide for a special election for president ONLY.

Section 10 contemplates the situation described in Section 7 par 5 where BOTH president and vice-president failed to qualify, died or became permanently disabled. BOTH OF THEM. Go ahead, read it yourself.

In short, so long as there is no elected President and Sara is “Acting President”, there would only be ONE vacancy and no occasion to apply Section 10. You can then spin Article VII, sections 7, 8, 9 and 10 to interpret these in support of keeping Sara as “caretaker” of the Presidency for six years.

A colleague was aghast when I told him this. He said, “you have too rich an imagination, Atty. DIzon. Only a hairsplitting fool would look at it that way.”

My answer was, “You are right. But be, realistic. If I—who is supporting and campaigning for Leni Robredo—can bring myself to read the law passively and, against my own predisposition, see things in a way favorable to Sara Duterte, do you REALLY think SHE will NOT?”

Of course her whole household will. I think she and her father would be happy enough with her being the Eric Yap of Malacañang. Forget official titles, just bag the office.

But that’s the only the easy part: saying it.

The hard part would be beating Leni. In fact, this is the “Queen’s Gambit DECLINED” part. She avoided a direct challenge to Leni, preferring to pick apart Kiko whom she must consider a more beatable player. Based on the gambit decline, then you know she will NOT work to disqualify Marcos either–she needs him to beat Leni first–knock on wood. If Leni lands SECOND, only then would it make any sense to disqualify him.

What about having to work around the thorny bushes in Congress to do an Eric Yap later? How “do-able” is that? Why, it’s BEEN DONE before!*

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