[OPINION] Presidents and felons in a liberal democracy
On January 11, 2025, Donald Trump made history. With the Supreme Court declining to prevent his sentencing for a unanimous guilty verdict on 43 counts of falsifying business records, Trump established a dubious, double distinction: the first former American president convicted of a crime and the first felon to assume the US presidency. It is a record a distinguished cast of Philippine politicians have failed to match. So far.
No former Philippine president has yet achieved conviction and subsequently won the presidency again. Joseph Estrada came closest. Convicted of plunder in 2007, he failed to recapture the presidency in 2010 and had to settle for Manila mayorship in 2013. Marcos Jr. was a close runner-up. Despite a 1995 conviction for failure to file income tax returns as Ilocos Norte governor, he won the presidency in 2022, thus reaching one of Trump’s accomplishments.
In fairness, Trump had an easier path to his record. The US constitution does not bar convicted felons from running for elective federal offices, although some state-level laws impose this bar. The Philippine Constitution permanently disqualifies from public office criminals convicted of “moral turpitude.” The penal code imposes the same punishment for plunder and rebellion convictions. In theory more restrictive, Philippine laws provide for exemptions. Amnesty and an absolute pardon restores political rights. Moreover, disqualification takes effect only after final judgment. The convict has the right to appeal the case through the legal process that effectively suspends sanctions and may result in reversal of the preliminary decision.
Thus, although indicted in 2010 by the Sandiganbayan for moving some US$200 million in public funds into personal, conjugal Swiss bank accounts, Imelda Marcos was still able to mount a presidential bid in 2010. But she lost and she was only first lady. Sentenced in 2018 to a prison term of 42 to 77 years, her case is still undergoing appeal.
Former president Gloria Arroyo, also charged and detained for plunder, won acquittal based on “insufficient evidence” of guilt. Former vice president Jejomar Binay was under investigation for plunder at the time of the 2010 elections when he ran for president. Indicted by the Ombudsman’s office in 2017 for overpricing in the construction of the Makati Science High School, Binay just won the Sandiganbayan’s dismissal of the case on “insufficiency of evidence.” Arroyo and Binay are not likely to run for president again.
Due process is a cardinal element of a liberal, democratic order, and we should rejoice when the principle prevails and justice presumably triumphs. But Trump actually achieved a third distinction. Despite the judgment of a jury of his peers that he had committed serious crimes, he will not suffer any jail time or any significant material penalties that an ordinary citizen in the same situation must bear. Trumped by a legal mandate protecting the president from prosecution, the same protection the Philippine president enjoys, the court could only issue an unconditional discharge on the case.
The logic of shielding a sitting president from legal harassment that would hamper the performance of official duties makes eminent sense. But the charges against Trump involved crimes committed when he was a private citizen for acts unrelated to state matters. The court, in its judgment, stressed that the unconditional discharge, required by presidential immunity did not “reduce the seriousness of the crime or justify its commission in any way.”
While the case would not serve as a precedent that could be invoked by anyone charged with comparable crimes who was not headed for the White House, it does break a second, fundamental principle of liberal democracy: since “all men [and women] are created equal,” no individual, regardless of birth or office, is above the law and deserves favored rights in its enforcement.
Defense lawyers argued that the Trump conviction by a 12-person jury had been rendered moot by the majority vote of the citizens electing him president. The argument appeals to a third liberal democracy principle: equal rights of individuals to participate in political decisions.
Expert lawyers and philosophers will doubtless continue to ponder the meaning and implications of Trump’s rare, legal trifecta on the appropriate balance among the three principles of liberal democracy: the imperative of enforcing the rule of law, equal access to justice, and the primacy of individual rights. They will need a historically-grounded understanding of how these principles were developed, transformed and managed over time and with what consequences.
In practice, the obvious, immediate problem, especially in the Philippines, comes from the growing complexity of a legal process determined by a justice system burdened with precedents that have become irrelevant and challenged by new issues arising from geopolitical pressures, technology and social media. Reversing a conviction requires expert legal resources, extended time, and the financial resources to avail of them. These requirements raise doubts about the possibility of ensuring equal access to justice.
Especially, since powerful political connections are often also necessary, judicial decisions can be, paraphrasing Estrada, a “weather-weather” issue. Even Leila de Lima friends wonder if she could have won her case when she did, had not the political wind turned with the exit of the Duterte administration.
As in the case of Trump, wealthy and well-connected politicians can use all the legal tools to delay judgment and then demand the dismissal of the charges against them because the delays denied them due process. Juan Ponce Enrile had his pork barrel charges dismissed on these grounds and the issue of delays also factored in De Lima’s case.
A liberal democratic order is difficult to maintain and preserve. It requires a citizenry conscious of its duties and ready to perform them, but also one aware of its rights and prepared to defend them. But it is the system we have chosen, however imperfectly we have managed it. Are we willing to trade it for something else? – Rappler.com