Estopped from assailing validity of Arroyo’s EO 41

HE WHO comes to court must come with clean hands. The court should not come to the aid of a party whose own fault brought about the grievance he is complaining of.

Pursuant to this principle, former President Gloria Macapagal-Arroyo, under whose administration Executive Order 41 was issued by the Department of Justice, has no right to question the constitutionality of the order. Having vested the justice secretary with power to issue watch-list orders when she was the president, Arroyo is the last person entitled to claim that the EO is unconstitutional.

The principle is founded not only on equity. It is based on plain logic. The spectacle of the former wielder of the EO pleading that the EO is unconstitutional now that she is the one at the receiving end of the equation not only offends the most elementary sense of fairness. The effort to stage a somersault is simply insane. Arroyo, being the creator and former wielder of the EO, is bound by it and estopped from disputing its constitutionality.

This does not mean that Arroyo is now fair game. Even the most hated are entitled to the law’s protection. But certainly the reliefs available to Arroyo do not include declaring EO 41 unconstitutional. Her reliefs are limited to ensuring that EO 41 is being used against her in a manner that is not arbitrary, whimsical or capricious, i.e., without grave abuse of discretion.

The Supreme Court will not be evading any duty if it avoids the issue of the EO’s constitutionality in Arroyo’s petition. Constitutionality is always presumed, and there is a tenet, corollary to this presumption of constitutionality, that enjoins the courts to avoid the question of constitutionality if it is possible to dispose of a case based on some other issues or considerations. In Arroyo’s petition the presumption of constitutionality holds; the petitioner’s dirty hands bar her from controverting this presumption, and limits her to the protection against grave abuse of discretion and arbitrary exercise of state authority. When a real party in interest brings the issue of constitutionality in another controversy, that is the time the Court should examine the constitutionality of EO 41.

—RAMON CASANO,

lawyer, Biñan, Laguna