Column: Lions of impeachment, tamed

Published on October 21, 2008

It was yet another disappointment to hear Sen. Joker Arroyo’s reaction, coursed through an overseas telephone call, to yet another pressing controversy: last Tuesday’s Supreme Court decision on the since-scuttled Memorandum of Agreement on Ancestral Domain (MOA-AD).

“For a decision with such far-reaching consequences, the high court was sharply divided, 8-7, and it could pose more problems in the future,” the human rights icon told the Inquirer. “A change of one vote would make the minority opinion the majority decision, and conversely, the minority decision would become a dissenting opinion.”

This view makes sense only if Arroyo had not read the 12 opinions on the case that cascaded out of the high court last week—and only if a “moot and academic” majority ruling would have necessarily declared the MOA-AD constitutional.

In fact, other eminent lawyers have noted that a substantial majority of justices actually found that certain provisions of the MOA-AD violated the Constitution. Late last week, in his Star column, lawyer Jose Sison counted at least 12 justices who considered the MOA-AD unconstitutional.

Last Sunday, ex-Chief Justice Artemio Panganiban wrote in his Inquirer column: “The bottom line in all negotiations and agreements is ‘strict adherence to the Constitution’ and the laws. So the Court firmly ruled, not by the narrow 8-7 vote reported by media but by a compelling majority of at least 12-3.”

And on Monday, constitutionalist Joaquin Bernas, SJ wrote, in his Inquirer column: “Going through [the opinions] one will find that there really is more unanimity than what the 8-7 count might indicate. There is a clear majority which would agree that there are provisions in the MOA-AD which depart from the present Constitution.”

Indeed, the Inquirer editorial of last Thursday, Oct. 16, pointed out that “the finding is actually stronger, more categorical, than it looks.” It quoted at some length from Justice Dante Tinga (a rare enough occurrence in these pages), who warned his colleagues about “the danger that if the petitions were dismissed for mootness without additional comment, it will be advocated by persons so interested as to make the argument that the intrinsic validity of the MOA-AD provisions has been tacitly affirmed by the Court.” To forestall just such an effrontery, Tinga offered a categorical comment of his own: “It takes no inquiry at great depth to be enlightened that the MOA-AD is incongruous with the Philippine Constitution.” And that’s from a justice who voted in the minority!

Arroyo’s instinctive reaction to the news, therefore, probably tells us more about him and where he stands now than about the Court’s ruling.

* * *

Does it matter what a former prosecutor in the Joseph Estrada impeachment case thinks? I’m afraid so. The Estrada impeachment was the formative political crisis of the last decade; besides being an addictive civics lesson for TV-watching Filipinos, it essentially defined the shape of political discourse since 2000. (To use Jose de Venecia’s controlling metaphor, it explains the political poison in the air.) The spectacular failure of the peace talks with the Moro Islamic Liberation Front threatens to become another turning-point crisis, one that will determine the course of politics for perhaps another decade.

* * *

Justice Antonio Eduardo Nachura was another outstanding member of the House mission that prosecuted the Estrada impeachment in the Senate. His dissenting opinion on the MOA-AD case, however, tells us he is more at ease now with the prospect (or the reality) of an aggressive Executive than he was during the impeachment.

A non-lawyer, I actually found his marshalling of the facts and the applicable laws compelling reading—until he reached the last several pages of his dissent, when he set forth his substantive (as against procedural) reasoning.

As far as I can tell, however, there was none. He merely listed the various bases of the President’s power “to negotiate peace with the MILF [Moro Islamic Liberation Front], and to determine in what form and manner the peace process should be conducted.”

He began the second and much shorter part of his opinion by identifying the legal crux of the matter. “I respectfully submit that the Court should view this case from the perspective of executive power, and how it was actually exercised in the formulation of the GRP [Government of the Republic of the Philippines] Peace Panel until the challenged MOA-AD was crafted in its present abandoned form.”

His “angle of vision” (the evocative phrase is his) is essentially the same as that of the majority opinion, by Justice Conchita Carpio Morales, which began in similar fashion. “Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process.”

But Nachura’s “perspective” consists of nothing but an enumeration of the sources of the President’s power: constitutional provisions, judicial elaborations, then finally Executive Order 3 and related instructions to the government peace panel.

Apparently, for the soft-spoken thinker who impressed the public with his professorial manner during a bitter partisan political crisis, to enumerate is to defend. His disposition of the substantive issues can be summed up neatly, simply: presumption of regularity.

In other words: What this President does, goes.

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