Wednesday, September 15, 2010

Mediating Luisita: An exercise in futility

Recent events have unravelled a clear pattern that the Philippine Supreme Court is caving in to the hidden but powerful hand of the current occupant in Malacanang.

Recall that last August 18, the Supreme Court convened to decide on the land reform issue at Hacienda Luisita. It was the first agrarian dispute to be heard by justices in open court and involved President Benigno Aquino III’s landlord clan. At issue before the court was the legality of the decision of the Department of Agrarian Reform and the Presidential Agrarian Reform Council (PARC) to revoke Hacienda Luisita’s Stock Distribution Option (SDO). To evade land distribution in 1989, Hacienda Luisita implemented the SDO as one of the non-land transfer schemes allowed in the Comprehensive Agrarian Reform Law. The management of Hacienda Luisita Incorporated (HLI) has filed for a temporary restraining order with the Supreme Court, which has been in effect for over four years now.

Since becoming President, Noynoy Aquino has maintained he would keep his “hands off” the Hacienda Luisita issue, despite being the current PARC chair and scion of the majority shareholders of Luisita. But this seems to be changing now as Supreme Court Chief Justice Renato Corona and the other associate justices formed a special committee to mediate between HLI and the Hacienda farmers regarding a recent compromise agreement based on the SDO. Corona was appointed Chief Justice by then President Gloria Arroyo just days before the end of her term, and was snubbed by the new President when he chose to swear his oath of office before another justice. The President and the Supreme Court Chief Justice look like they have buried the hatchet and are now moving towards rapprochement. And Hacienda Luisita appears to be at the core of this new friendly and cordial relationship.

One may ask however if the Supreme Court’s decision to order mediation was appropriate given that the conflict between HLI and the farmers had long been the subject of negotiations between the parties, referendums, and even a bloody and deadly farmers’ strike. Mediation usually works in conflict resolution only when the parties are willing to settle their disputes. The Hacienda Luisita land issue has reached an irreconcilable impasse in the conflict between HLI and the farmers. Its acrimonious history has been well defined by intransigence on both sides.

It is also very doubtful if R.A. 9285, the law that institutionalizes alternative dispute resolution in the Philippines, applies in this case, especially when the matter is now in the highest judicial court as a serious question of law. This is the first time that the Supreme Court has formed a mediation panel before issuing its decision.

Mediation or any other effective form of alternative dispute resolution often works wonders when the conflict is fresh and the parties are still willing to sit down and strike a happy compromise. The Supreme Court cannot be an effective gatekeeper for every dispute that enters its door by asking parties in a conflict to sit down again and try to resolve their dispute by themselves. This is better accomplished in the lower courts or even before a dispute becomes a legal proceeding. That is why it is called alternative dispute resolution: solving conflicts out of court and by the parties to a dispute themselves.

By all appearances, the Supreme Court decision to order another mediation of the Hacienda Luisita dispute is a cop-out. First, there is no legal foundation to accept the controversial compromise agreement between HLI and an alleged group of farmers because doing so will pre-empt or render moot any decision upholding the PARC’s earlier invalidation of the SDO. Second, the parties in the dispute before the high court are government lawyers arguing on behalf of PARC and the lawyers of HLI. The farmers who believed they have been defrauded of their rightful share of the Hacienda’s land are not represented, which is clearly a violation of equal protection under the law. Last, the Supreme Court’s recent pronouncement has only made it obvious that it was wilting under the pressure of the President, who still is one of the Hacienda’s major owners contrary to his pronouncement of non-interference.

At this stage of the dispute, the farmers have always maintained that the validity of the stock distribution option cannot be resolved by mediation or by any agreement of the parties. In asking the parties to go back to the negotiation table, the Supreme Court in effect is trying to evade the real issues and ignoring the decision of the PARC regarding the validity of the SDO.

What makes this mediation process suspect or if not an outright joke is the most recent recommendation of the mediation panel to hold another referendum among the farmer beneficiaries. The farm workers would be asked to choose between physical land distribution either to individuals or to a cooperative, on one hand, or remain under the stock distribution option, on the other.

The farmers want the Supreme Court to revoke the SDO and uphold the PARC’s earlier decision to invalidate it. For some twenty years, the SDO has been implemented at Hacienda Luisita but the Presidential Agrarian Reform Council has found that it has failed in its objective of improving the lives of farmers consistent with the government land’s reform program.

Under the 1989 HLI stock distribution option scheme, there is a policy of “no-work no-shares” – meaning, workers who co-own the hacienda do not earn shares if they do not work. According to PARC, this was contrary to law and public policy as the farm workers remain ordinary farmers while the land remains under the full ownership and control of HLI. It concluded that the farm workers’ economic conditions have become onerous, and their lives more miserable.

Another referendum would only be an opportunity for Hacienda Luisita to deceive the farm workers into accepting the SDO through bribes and threats. The management of the Hacienda had already done it recently through the so-called controversial compromise agreement as they have the money to buy out the hard-pressed farmers who have to suffer poverty and indignity for fighting for their rights to own the land they till.

If this were truly an attempt towards mediation, the farmers can refuse to go to another referendum. They can say enough is enough. What then would the Supreme Court do? It cannot force the farmers to accept the recommendation of the mediation panel, for that would violate the true purpose of mediation. Will it then revoke the SDO and uphold the PARC’s decision?

But the real and most important question the justices of the Supreme Court must face is whether they can afford to rebuff the new President. Hacienda Luisita should have been in the hands of the farmers since 1967. In 1985, a Manila trial court ordered the distribution of Hacienda Luisita to the farm workers, only to be reversed by the Court of Appeals when Cory Aquino became president.

The Supreme Court will surely find a way to moderate the conflict, but don’t bet on the highest court giving the farmers their rightful share of the land.

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