Column: Protect the high court

Published on September 2, 2008

Last week, Sen. Joker Arroyo raised an intriguing proposal: Perhaps the Supreme Court can suspend its hearings on the controversial Memorandum of Agreement  on the ancestral domain issue in Mindanao to “give the Executive the elbow room to prosecute the military campaign against the MILF renegades and make a thorough and unimpeded restudy of the MOA.”

Truth, it has too often been said, is war’s first casualty. One way to understand Arroyo’s proposal is to argue that ambiguity is a close second to truth. When government soldiers are dying on the front lines, government should offer its troops certainty, not debate.

“The environmental circumstances—a war going on and at the same time a Supreme Court hearing ongoing—is neither healthy nor conducive to the national interest,” Arroyo told the Philippine Daily Inquirer.

“It will … be disheartening for our troops to be fighting while we argue over the MOA that brought them into war.”

It is possible that, as early as Monday last week, Arroyo already knew that Malacañang had reached the point of no return and had decided to junk the MOA in whatever form, regardless of the Court’s decision. But it is also possible that he did not know it for a fact, and that he only meant to remove the element of uncertainty, the sense of ambiguity, from the field of battle.

Ironic, then, that the criticism leveled against Arroyo’s proposal, summed up in Amando Doronila’s incisive analysis of Aug. 27 , should also be driven by the same rage for certainty.

The substance of Doro’s argument, as I see it, does not rest on the argument from secrecy—that a suspension would provoke “a new explosion by repeating the secrecy that has angered the public.” (He means the fatal lack of transparency that characterized the preparation of the MOA.) Instead, it is based on an appeal to the high court’s power of clarification.

He writes: “The past two hearings at the Supreme Court clarified the constitutional issues raised by the petitions and highlighted the flaws of the MOA. The proposal follows the government’s decision not to sign the MOA in its present form and to review it in consultation with the affected communities. A definitive Supreme Court ruling on the MOA is absolutely necessary to provide guidelines for a review or renegotiation of the MOA—on what is constitutionally possible or not possible. It would remove the ambiguities.”

I find myself sympathetic to both positions (ambiguity, as you can see, has its uses). Arroyo’s notion that we should suspend the debate while our soldiers do battle reflects the rally-around-the-flag mentality that shapes public opinion in times of national crisis. At the same time, Doro’s appeal to the high court to remove the ambiguities in the MOA mirrors the public’s own felt need to resolve the growing confusion. We can all do with more certainty, in an uncertain time.

And yet I think there is something to be said for ambiguity.

Now that the oral arguments are done, and the justices have begun deliberating, we should reconsider the wisdom of placing the “least dangerous branch” of government, yet again, in a position fraught with danger.

Judging from the oral arguments, it is far from clear that a majority of the justices, let alone all of them, are ready to find the “initialed” memorandum of agreement unconstitutional. But declaring the MOA constitutional would not only complicate the already tortuous negotiations with the separatist Moro Islamic Liberation Front, especially in light of Malacañang’s belated change of policy; it would undermine the sacrifice of those soldiers enforcing the rule of law and those civilians caught in the renegade MILF offensive. Many will ask the sullen and inevitable question: What did they die for?

If only a majority of justices find the MOA constitutional, or they unanimously find that it violates the Constitution but offer different reasons for their vote (such as in the landmark case of Estrada vs Arroyo), the decision will prove problematic. Instead of a definitive ruling on constitutionality, the nation will have to contend with a multiplicity of views.

My point: For the ambiguities to be fully removed, the high court’s decision must be both unanimous and based on a common line of reasoning. Any other result would place the future of the peace process in Mindanao at the mercy of the ruthless law of unintended consequences.

If the justices’ decision is unanimous, then maybe the Court should issue a ruling. But if it isn’t, especially on the essential question of the MOA’s constitutionality, perhaps the Court can decline to rule on the case. With the Executive now fully committed to the new policy of disarmament and rehabilitation, and with the MOA effectively junked, the high court can use the moot-and-academic principle to preserve its prestige.

Unless its decision is unanimous and commonly arrived at, the Supreme Court will find itself in the damned-if-you-do, damned-if-you-don’t position of inadvertently creating policy on a highly political issue. But it is becoming clearer day by day that a consensus about the limits of negotiation with the MILF is emerging in the two political branches of government. The process is far from perfect, and the outcome is far from assured, but it is possible to hope that there will be no need for the high court to get involved.

Just as well. In a shooting war, the Supreme Court does not need to unsheathe the sword of definition.


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