Can an ex-President be re-elected as Vice President?

According to Al Jazeera, President Rodrigo Duterte has agreed to be the ruling party's candidate for Vice President of the Philippines in the 2022 elections. Al Jazeera said this was confirmed by the PDP-Laban.[1] Critics of the Duterte administration says this is not allowed by the 1987 Constitution of the Philippines which says: "The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time."[2]The debate centers on the phrase "not eligible for any re-election." The first view says that the President may run for Vice President even after finishing his or her term because "re-election" means "election in the same office for the second or so time." The second view is that "any re-election" refers to "election in any office." In short, the first view considers the ban as referring only to the Office of the Presidency while the second view considers the ban as an absolute one.

Before we discuss the justifications given to each of the two views mentioned above, it must be emphasized that there is debate that any person who has finished his term as President cannot be President again. Bernas agrees with this (also known as the absolutist's view) and he defines "re-election" as vying for office a second time around, whether immediately after one’s term of office or at any period thereafter.[3][4]

For those who espouse the first view, the argument is that a ban on the re-election of the President to an office other than that of the Office of the Presidency would deprive the Filipino of the right to elect a leader and to express their satisfaction with his or her term of administration. In other words, if the people are satisfied with what was accomplished during the six-year term of the President, they should not be deprived of the opportunity to elect one who has satisfactorily served as President to another, lower position.

Another argument for the first view is the plain meaning rule. When a law is clear and free from ambiguity, there can be no attempt at interpretation and the plain language of the law must be applied. As mentioned above, "re-election" means vying for office a second time around.

Those who subscribe to the second view, however, say that the language of Constitution is clear: "not be eligible for any re-election." The word "any," its ordinary and plain use, means "whichever," i.e. used to express a lack of restriction in selecting one of a specified class.[5] According to them, the fact that the phrase "any re-election" does not appear elsewhere in the Constitution speaks volumes about the magnitude and strict nature of the restriction required by the fundamental law. For example, for the Vice President, the "shall serve" phrase was used instead of "re-election," thus:

"No Vice-President shall serve for more than two successive terms."[6]

Other examples of such "shall serve phrases" used in the Constitution are, among many others:

1. No Senator shall serve for more than two consecutive terms;[7] and
2. No Member of the House of Representatives shall serve for more than three consecutive terms.[8]

Another argument for the second view is that the intent of the framers is to limit a person's term as President to one and only one. If a former President is allowed to run for the Vice Presidency, the rules on succession would be circumvented when the President resigns, dies or becomes permanently disable.

Although there is no Supreme Court decision yet to settle this issue, the weight of authority in Political Law is that a former President can run for Vice President. At the bottom, the answer depends on whether the eye is on the text of the law or the spirit of the law. Do we interpret the law by the letter that killeth or by the spirit that giveth life?

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[1] Al Jazeera, 2021. Rodrigo Duterte to run as Philippines’s vice president in 2022. https://ift.tt/2WmDd8T.

[2] Section 4, Article VII, 1987 Constitution.

[3] Joaquin G. Bernas, S.J., The last word: Estrada cannot run for president, PHIL. DAILY INQUIRER, Jan. 4, 2008, cited in Margaux Marie V. Salcedo, 53 ATENEO L.J. 204 (2008).

[4] It must be noted that an opposite view exists, i.e., the term "re-election" only applies to an incumbent President. This opposite view says that an incumbent President cannot is disqualified from filing his certificate of candidacy for another position (e.g. Mayor, senator, etc.).

[5] https://ift.tt/39BNyAu.

[6] Supra note 2.

[7] Section 4, Article VI, 1987 Constitution.

[8] Section 7, Article VI, 1987 Constitution.