Bringing the stalemate to an end

It is important to understand exactly what the recent Supreme Court decision on the Neri v Senate is all about.  The 9-6 ruling nullifies the Senate’s arrest and detention order against Romulo Neri for his failure to heed a Senate summons and answer further questions on the nature of President Arroyo’s involvement in the NBN-ZTE issue. It does not stop the Senate from calling him again to answer questions outside of the three previous ones in which he had specifically invoked executive privilege.  The ruling leaves open the possibility that Neri might invoke the same privilege all over again with respect to some future questions.  If the stalemate is not resolved between the two political branches, then everyone may have to troop back to the Court again.

That need not be the case however.  A Presidency and a Senate at odds with one another will have to find ways of doing their respective work, with or without the cooperation of the other.  They can engage in eternal combat, or they can search for ways of accommodating each other.  In the end, it is the voting public that will decide which one among them reasonably exercised the power entrusted to it and which one brazenly abused it.  Law remains a “causa passiva,” says the scholar Niklas Luhmann.  A court can only take on an issue that is submitted to it.

The terrain defined by the Supreme Court clearly does not exhaust the broad spaces of political engagement. A Senate that strongly feels constrained in its work by executive recalcitrance can show its dismay by blocking all appointments requiring congressional confirmation.  It can ignore priority bills submitted to it by the executive.  It can refuse to pass the budget.  It can obstruct the dayto-day work of the departments by endless investigations.  And so on. Some of these are familiar to us precisely because in the last six years under Ms Arroyo, relations between the executive and Congress (the Senate in particular) have been far from ideal.

One need not be an expert on governance to know that this protracted stalemate can only injure the national interest in the long run.  It was perhaps this awareness that led the present Supreme Court under Chief Justice Reynato Puno to propose a provisional compromise between the Senate and Malacanang pending the Court’s resolution of the Neri case.  The corrosive effects of the stalemate could spill over to the other branches and agencies of government.  One can appreciate why Chief Justice Puno was keen to shield the high court from the perils of political partisanship.

I am not sure how the public nation-wide has received the Supreme Court ruling on the Neri case.  The calls and text messages of ordinary citizens that I have heard on radio in the past few days have been quite alarming.  They are filled with disgust, cynicism, and contempt.  They had looked up to the highest magistrates of the land for a Solomonic and high-minded resolution of the stalemate.  Yet the voting pattern of the justices in this case has only seemed to confirm their expectations about the political allegiances of the high court’s members.

What is the Senate to do under the circumstances? The Senate can resume its hearings and continue to gather information that may be useful not only to the crafting of new laws but also to the preparation of a new impeachment complaint against Ms Arroyo.  The SC anticipates that the issue may eventually take this route, and so it has admonished the senators against prejudging a case in which they will eventually be the jury.

Or, the Senate can conclude the hearings and cause the filing of criminal complaints against certain individuals, including high government officials.  There is an implied promise in the SC’s decision that the evidentiary requirements of criminal proceedings may be allowed to override executive privilege, and thus bring out information that is being blocked in the current Senate hearings.

The chances that any of these two options may prosper depend, of course, on the independence of the House of Representatives where the impeachment case will have to originate, and of the Ombudsman and the courts which will have to investigate and try the criminal cases.  The public perception of the credibility of these institutions, at the moment, is understandably low.  That is precisely why the public has turned to the Senate hearings for information that they did not think the Dept. of Justice, or the Ombudsman, or the lower courts cared to unearth.

It is therefore unlikely that the stalemate will have an easy resolution via existing judicial processes. And so the issue is unavoidably repoliticized.  In this arena, the options are varied.

In normal times, the logical destination of such a stalemate would be an election.  The electorate can punish the administration by voting against anybody endorsed by Ms Arroyo and her party.  Or voters can punish the opposition senators who have made it difficult for the Arroyo regime to govern.  But our circumstances are far from normal.

That is why the question that bugs us is whether we can wait until 2010 to resolve the impasse, and watch helplessly while the regime pushes the limits of presidential power and destroys every standing institution, or we must do something now to bring the stalemate to an end.  God help us either way.


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