G.R. No. 183591 (THE
PROVINCE OF NORTH COTABATO, etc., et al, versus THE GOVERNMENT OF THE
REPUBLIC OF THE
Promulgated:
October 14, 2008
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CONCURRING AND DISSENTING OPINION
BRION, J.:
The Petitions for Mandamus
I concur with the ponencia’s conclusion that the mandamus aspect of the present petitions has been rendered moot when the respondents provided this Court and the petitioners with the official copy of the final draft of the Memorandum of Agreement on Ancestral Domain (MOA-AD).[1]
The Petitions for Prohibition
I likewise concur with the implied conclusion that the “non-signing of the MOA-AD and the eventual dissolution of the Government of the Republic of the Philippines (GRP) panel mooted the prohibition aspect of the petitions,” but disagree that the exception to the “moot and academic” principle should apply. The ponencia alternatively claims that the petitions have not been mooted. I likewise dissent from this conclusion.
a. The Ponencia and the Moot and Academic Principle.
As basis for its conclusion, the ponencia cites David v. Macapagal-Arroyo[2] for its holding that “‘the moot and academic’ principle not being a magical formula that automatically dissuades courts in resolving a case, it [the Court] will decide cases, otherwise moot and academic, if it feels that (a) there is a grave violation of the Constitution;[3] (b) the situation is of exceptional character and paramount public interest is involved;[4] (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public;[5] and (d) the case is capable of repetition yet evading review.”[6]
In further support of its position on the mootness issue, the ponencia additionally cites the American ruling that “once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.”[7]
b. The Context of the “Moot and
Academic” Principle.
The cited David v. Macapagal-Arroyo defines a “moot and academic” case to be “one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.” It goes on to state that “generally, courts decline jurisdiction over such cases and dismiss it on the ground of mootness.”[8] This pronouncement traces its current roots from the express constitutional rule under the second paragraph of Section 1, Article VIII of the 1987 Constitution that “[j]udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable…” This rule, which can conveniently be called the traditional concept of judicial power, has been expanded under the 1987 Constitution to include the power “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”
Whether under the traditional or the expanded concept, judicial power must be based on an actual justiciable controversy at whose core is the existence of a case involving rights which are legally demandable and enforceable. Without this feature, courts have no jurisdiction to act. Even a petition for declaratory relief[9]– a petition outside the original jurisdiction of this Court to entertain – must involve an actual controversy that is ripe for adjudication.[10] In light of these requirements, any exception that this Court has recognized to the rule on mootness (as expressed, for example, in the cited David v. Macapagal-Arroyo) is justified only by the implied recognition that a continuing controversy exists.
Specifically involved in the exercise of judicial power in the present petitions is the Court’s power of judicial review, i.e., the power to declare the substance, application or operation of a treaty, international agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional.[11] A first requisite for judicial review is that there be an “actual case” calling for the exercise of judicial power. Fr. Joaquin Bernas, S.J., an eminent constitutional law expert, comments in this regard that –
This is a manifestation of the commitment to the
adversarial system. Hence, the Court has
no authority to pass upon issues of constitutionality through advisory opinions
and it has no authority to resolve hypothetical or feigned constitutional
problems or friendly suits collusively arranged between parties without real
adverse interests. Nor will the Court normally entertain a petition touching on an issue
that has become moot because then there would no longer be a ‘flesh and blood’
case for the Court to resolve.” [Citations deleted, emphasis supplied.][12]
Other
than the rule on actual case and standing (which aspect this separate opinion
does not cover), jurisprudence holds that this Court will not touch upon the
issue of constitutionality unless it is
unavoidable or is the very lis mota.[13] As will be discussed in refuting the ponencia’s
various positions, this rule finds special application in the present case in
light of the political sensitivity of the peace talks with the MILF and the
issues it has placed on the agenda, namely, peace and order in
My disagreement with the ponencia on the application of the exceptions to the mootness principle of David v. Macapagal-Arroyo is essentially based on how the mootness principle and its exceptions should be applied. While the mootness principle is “not a magical formula that automatically dissuades courts in resolving cases,” so also should the exceptions not be considered magical formulas that should apply when the Court is minded to conduct a review despite the mootness of a petition. In other words, where an issue is moot on its face, the application of any of the exceptions should be subjected to a strict test because it is a deviation from the general rule. The Court should carefully test the exceptions to be applied from the perspectives both of legality and practical effects, and show by these standards that the issue absolutely requires to be resolved.
I do not believe that the exceptions were
so tested and considered under the ponencia.
c. The Ponencia’s Positions Refuted
i.
Mootness
and this Court’s TRO
A
first point the ponencia stresses
with preeminence in its discussion of the mootness issue is the observation
that “the signing of the MOA-AD did not push through due to the court’s
issuance of a Temporary Restraining Order.”
The implication, it seems, is that the intervening events subsequent to
the filing of the petition and the issuance of the temporary restraining order
(TRO) – specifically, the
respondents’ commitment that the MOA-AD shall not be signed in its present form
or in any other form,[14]
and the President’s act of dissolving the GRP negotiating panel[15] –
had no effect on the petitions because the signing of the MOA-AD had by then
been stopped by our TRO. I find this a
disturbing implication as the petitions for prohibition presented live
controversies up to and beyond the issuance of this Court’s TRO; they were
rendered moot only by the above mentioned intervening events. By these
intervening and unequivocal acts, the respondents effectively acknowledged that
the MOA-AD should indeed not be signed as demanded by the petition. Thus, the TRO from this Court only
immediately ensured that the MOA-AD would not be signed until this Court had
spoken on the constitutional and statutory grounds cited by the petitions, but
it was the respondents’ acts that removed from controversy the issue of whether
the MOA-AD should be signed or not. In
simpler terms, after the respondents
declared that the MOA-AD would not be signed, there was nothing left to
prohibit and no rights on the part the petitioners continued to be at risk of
violation by the MOA-AD. Thus, further discussion of the
constitutionality of the MOA-AD now serves no useful purpose; as the discussion
below will show, there may even be a considerable downside for our national
interests if we inject another factor and another actor in the
ii.
Mootness
and Constitutional Implications
The ponencia posits as well that the MOA-AD has not been mooted because it has far-reaching constitutional implications and contains a commitment to amend and effect necessary changes to the existing legal framework. The same reason presented above suffices to defuse the ponencia’s fear about the adverse constitutional effects the MOA-AD may bring or might have brought: without a signed MOA-AD none of these feared constitutional consequences can arise.
From another perspective, what the ponencia appears to fear are the constitutional violations and adverse consequences of a signed and effective MOA-AD. These fears, however, are relegated to the realm of speculation with the cancellation of the signing of the MOA-AD and the commitment that it shall not be signed in its present or any other form. Coupled with the subsequent dissolution of the GRP negotiating panel, the government could not have communicated and conveyed any stronger message, short of totally scuttling the whole peace process, that it was not accepting the points covered by the aborted MOA-AD. Government motivation for disavowing the aborted agreement is patently evident from Executive Order No. 3 that outlines the government’s visions and intentions in the conduct of peace negotiations. That the GRP negotiating panel came up with a different result is a matter between the Executive and the negotiating panel and may be the immediate reason why the Executive’s response was to forthwith dissolve the negotiating panel.
iii.
GRP
Obligation to Discuss Ancestral Domain
A consistent concern that runs through the ponencia is that the Philippines is bound under the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF in June 2001 to have an agreement on the Bangsamoro ancestral domain. This concern led the ponencia to conclude that the government decision not to sign the MOA-AD will not render the present petitions moot. In other words, the MOA-AD will recur and hence should be reviewed now.
A
basic flaw in this conclusion is its unstated premise that the
On the aspect of ancestral domain, the Parties, in
order to address the humanitarian and economic needs of the Bangsamoro people
and preserve their social and cultural heritage and inherent rights over their
ancestral domain, agree that the same be
discussed further by the Parties in their next meeting.” [Emphasis supplied.]
Under these terms,
it is plain that the GRP’s commitment extends only to the discussion of the ancestral domain issue. The agreement to discuss, however, does not
bind the GRP to come to an agreement; the GRP is merely bound to try to reach an agreement or compromise. Implicit in this commitment is that the
With the present MOA-AD effectively scuttled, the parties are back to the above quoted agreement under which the GRP bound itself to discuss ancestral domain with the MILF as part of the overall peace process. If the ponencia’s fear relates to the substance of these future talks, these matters are not for this Court to rule upon as they belong to the realm of policy – a matter for other branches of government other than the Judiciary to determine. This Court can only speak with full force and authority on ripe, live, and actual controversies involving violations of constitutional or statutory rights.[17] As a rule, courts look back to past actions, using the Constitution, laws, rules and regulations as standards, to determine disputes and violations of constitutional, and statutory rights; the legislature and the executive, on the other hand, look forward to address present and future situations and developments, with their actions limited by existing constitutional, statutory and regulatory parameters that the courts are duty-bound to safeguard. Thus, if this Court can speak at all on the substance of future talks, this can only be by way of a reminder that the government’s positions can only be within constitutional and statutory parameters and subject to the strict observance of required constitutional and statutory procedures if future changes to the constitution and to current statutes are contemplated.
iv.
Mootness
and
In justifying the application of the exception on the basis of paramount public interest, the ponencia noted that the MOA-AD involved a significant part of the country’s territory and wide-ranging political modifications for affected local government units. It also claimed that the need for further legal enactments provides impetus for the Court to provide controlling principles to guide the bench, the bar, the public and the government and its negotiating entity.[18]
Unfortunately, the ponencia’s justifications on these points practically stopped at these statements. Suprisingly, it did not even have an analysis of what the paramount public interest is and what would best serve the common good under the failed signing of the MOA-AD. We note, as a matter of judicial experience, that almost all cases involving constitutional issues filed with this Court are claimed to be impressed with public interest. It is one thing, however, to make a claim and another thing to prove that indeed an interest is sufficiently public, ripe, and justiciable to claim the attention and action of this Court. It must be considered, too, that while issues affecting the national territory and sovereignty are sufficiently weighty to command immediate attention, answers and solutions to these types of problems are not all lodged in the Judiciary; more than not, these answers and solutions involve matters of policy that essentially rest with the two other branches of government under our constitutional system,[19] with the Judiciary being called upon only where disputes and grave abuse of discretion arise in the course applying the terms of the Constitution and in implementing our laws.[20] Where policy is involved, we are bound by our constitutional duties to leave the question for determination by those duly designated by the Constitution – the Executive, Congress, or the people in their sovereign capacity.
In
the present case, the peace and order problems of
My conclusion is in no small measure influenced by two basic considerations.
First, the failure to conclude the
MOA-AD as originally arranged by the parties has already resulted in bloodshed
in
Lest
we become confused in our own understanding of the issues, the problems
confronting us may involve the socio-economic and cultural plight of our Muslim
and our indigenous brothers, but at core, they are peace and order
problems. Though others may disagree, I
believe that socio-economic and cultural problems cannot fully be addressed
while peace and order are elusive. Nor
can we introduce purely pacific solutions to these problems simply because we
are threatened with violence as an alternative.
History teaches us that those who
choose peace and who are willing to sacrifice everything else for the sake of
peace ultimately pay a very high price; they also learn that there are times
when violence has to be embraced and frontally met as the price for a lasting
peace. This was the lesson of Munich in
1938 and one that we should not forget because we are still enjoying the peace
dividends the world earned when it stood up to Hitler.[23] In
Rather than complicate the issues further with judicial pronouncements that may have unforeseen or unforeseeable effects on the present fighting and on the solutions already being applied, this Court should exercise restraint as the fears immediately generated by a signed and concluded MOA-AD have been addressed and essentially laid to rest. Thus, rather than pro-actively act on areas that now are more executive than judicial, we should act with calibrated restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be equated to the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we have judicially addressed the concerns posed with positive effects and we shall not hesitate to judicially act in the future, as may be necessary, to ensure that the integrity of our constitutional and statutory rules and standards are not compromised. If we exercise restraint at all, it is because the best interests of the nation and our need to show national solidarity at this point so require, in order that the branch of government in the best position to act can proceed to act.
Second, what remains to be done is to
support the government as it pursues and nurses the peace process back to its
feet after the failed MOA-AD. This will
again entail negotiation, not along the
MOA-AD lines as this recourse has been tried and has failed, but along
other approaches that will fully respect our Constitution and existing laws, as
had been done in the 1996 MNLF agreement.
In this negotiation, the Executive should be given the widest latitude
in exploring options and initiatives in dealing with the MILF, the
v.
The
Need for Guidelines from this Court
The cases of David v. Macapagal-Arroyo, Sanlakas v. Executive Secretary, and Lacson v. Perez presented a novel issue that uncovered a gray area in our Constitution: in the absence of a specific constitutional provision, does the President have the power to declare a state of rebellion/national emergency? If the answer is in the affirmative, what are the consequences of this declaration?
David v. Macapagal-Arroyo answered these questions and went on to further clarify that a declaration of a state of national emergency did not necessarily authorize the President to exercise emergency powers such as the power to take over private enterprises under Section 17, Article XII of the Constitution. Prior to this case, the correlation between Section 17, Article XII and the emergency powers of the President under Section 23 (2), Article VI has never been considered.
In contrast, the present petitions and the intervening developments do not now present similar questions that necessitate clarification. Since the MOA-AD does not exist as a legal, effective, and enforceable instrument, it can neither be illegal nor unconstitutional. For this reason, I have not bothered to refute the statements and arguments about its unconstitutionality. I likewise see no reason to wade into the realm of international law regarding the concerns of some of my colleagues in this area of law.
Unless signed and duly executed, the MOA-AD can only serve as unilateral notes or a “wish list” as some have taken to calling it. If it will serve any purpose at all, it can at most serve as an indicator of how the internal processes involving the peace negotiations are managed at the Office of the President. But these are matters internal to that Office so that this Court cannot interfere, not even to make suggestions on how procedural mistakes made in arriving at the aborted MOA-AD should be corrected.
To be sure, for this Court to issue guidelines relating to
unapplied constitutional provisions would be a useless exercise worse than the
“defanging of paper tigers” that Mr. Justice Dante O. Tinga abhorred in David v. Macapagal-Arroyo.[24] In
terms of the results of this exercise, the words of former Chief Justice Artemio
Panganiban in Sanlakas v. Executive
Secretary are most apt – “nothing is gained by breathing life into a dead
issue.”[25]
vi.
The
“Capable of Repetition but
Evading Review” Exception
The
best example of the “capable of repetition yet evading review” exception to
mootness is in its application in Roe v.
Wade,[26]
the
In
the
The
earlier of these two cases – Sanlakas v.
Executive Secretary[27] –
involved the failed Oakwood mutiny of
The
second case (preeminently cited in the present ponencia) is David v.
Macapagal-Arroyo. The root of this
case was Proclamation No. 1017 and General Order No. 5 that the President
issued in response to the conspiracy among military officers, leftist
insurgents of the New People’s Army, and members of the political opposition to
oust or assassinate her on or about February 24, 2006. On
Despite the lack of extended explanation in David v. Macapagal-Arroyo, the Court’s actions in both cases are essentially correct because of the history of “emergencies” that had attended the administration of President Macapagal-Arroyo since she assumed office. Thus, by the time of David v. Macapagal-Arroyo, the Court’s basis and course of action in these types of cases had already been clearly laid.
This kind of history or track record is, unfortunately, not present in the petitions at bar and no effort was ever exerted by the ponencia to explain why the exception should apply. Effectively, the ponencia simply textually lifted the exception from past authorities and superimposed it on the present case without looking at the factual milieu and surrounding circumstances. Thus, it simply assumed that the Executive and the next negotiating panel, or any panel that may be convened later, will merely duplicate the work of the respondent peace panel.
This assumption is, in my view, purely hypothetical and has no basis in fact in the way David v. Macapagal-Arroyo had, or in the way the exception to mootness was justified in Roe v. Wade. As I have earlier discussed,[29] the ponencia’s conclusion made on the basis of the GRP-MILF Peace Agreement of June 2001 is mistaken for having been based on the wrong premises. Additionally, the pronouncements of the Executive on the conduct of the GRP negotiating panel and the parameters of its actions are completely contrary to what the ponencia assumed.
Executive Order No. 3 (entitled Defining Policy and Administrative Structure for Government’s Comprehensive Peace Efforts) sets out the government’s visions and the structure by which peace shall be pursued. Thus, its Section 2 states The Systematic Approach to peace; Section 3, The Three Principles of the Comprehensive Peace Process; Section 4, The Six Paths to Peace; and Section 5(c)the Government Peace Negotiating Panels.[30] The Memorandum of Instructions from the President dated March 2001 to the Government Negotiating Panel, states among others that:
1.
The
negotiations shall be conducted in accordance with the mandates of the Philippine
Constitution, the Rule of Law, and the principles of the sovereignty and
territorial integrity of the Republic of the
2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned.
x x x
4. The general
approach to the negotiations shall include the following:
a.
Seeking
a middle ground between the aspirations of the MILF and the political, social
and economic objectives of the Philippine Government;
b.
Coordinated Third Party Facilitation, where needed;
c. Consultations
with affected communities and sectors. [31]
Under these
clear terms showing the Executive’s vision on how the peace process and the negotiations
shall proceed, I believe that it is fallacious to assume that any renewed
negotiation with the MILF will entail a repetition of the discarded
MOA-AD. Understandably, it may be asked
why the MOA-AD turned out the way it did despite the negotiating panel’s clear
marching orders. The exact answer was
never clarified during the oral arguments and I can only speculate that at some
point, the negotiating panel lost its bearings and deviated from the clear
orders that are still in force up to the present time. As I mentioned earlier,[32]
this may be the reason why the negotiating panel was immediately
dissolved. What is important though, for
purposes of this case and of the peace and order situation in
The fact that an issue may arise in the future – a distinct possibility for the ponencia – unfortunately does not authorize this Court to render a purely advisory opinion, i.e., one where a determination by this Court will not have any effect in the “real world”. A court’s decision should not be any broader than is required by the precise facts. Anything remotely resembling an advisory opinion or a gratuitous judicial utterance respecting the meaning of the Constitution must altogether be avoided.[33] At best, the present petitions may be considered to be for declaratory relief, but that remedy regrettably is not within this Court’s original jurisdiction, as I have pointed out earlier.[34]
Finally, let me clarify that the likelihood that a matter will be repeated does not mean that there will be no meaningful opportunity for judicial review[35] so that an exception to mootness should be recognized. For a case to dodge dismissal for mootness under the “capable of repetition yet evading review” exception, two requisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.[36]
The time constraint that justified Roe v. Wade, to be sure, does not
inherently exist under the circumstances of the present petition so that
judicial review will be evaded in a future litigation. As this Court has shown in this case, we can
respond as fast as the circumstances require.
I see nothing that would bar us from making a concrete ruling in the
future should the exercise of our judicial power, particularly the exercise of
the power of judicial review, be justified.
vii.
The
Right to Information
The petitions for mandamus essentially involved the demand for a copy of the MOA-AD based on the petitioners’ right to information under Section 7, Article III of the 1987 Constitution. In light of the commonly-held view that the mandamus aspect of the petitions is now moot, focus now shifts to the right to consultation (an aspect of the constitutional right to information and as guaranteed under the Indigenous People’s Rights Act[37] and the Local Government Code)[38] that the petitioners now capitalize on to secure the declaration of the nullity of the MOA-AD.
I note in this regard though that it is not so much the lack of consultations that the petitioners are rallying against, but the possibility under the MOA-AD’s terms that they may be deprived of their lands and properties without due process of law (i.e., that the lumads’ ancestral domains will be included in and covered by the Bangsamoro Juridical Entity [BJE] without the benefit of prior consultations).[39] Thus, the equation they present to this Court is: lack of consultations = deprivation of property without due process of law.
The short and quick answer to this proprietary concern is that the petitioners’ claim is premature. With the MOA-AD unsigned, their fears need not materialize. But even with a signed MOA-AD, I do not believe that the immediate deprivation they fear and their due process concerns are valid based alone on the terms of this aborted agreement. Under these terms, the MOA-AD’s execution and signing are but parts of a series of acts and agreements; its signing was not be the final act that would render its provisions operative. The MOA-AD itself expressly provides that the mechanisms and modalities for its implementation will still have to be spelled out in a Comprehensive Compact and will require amendments to the existing legal framework. This amendatory process, under the Constitution, requires that both Congress and the people in their sovereign capacity be heard. Thus, the petitioners could still fully ventilate their views and be heard even if the MOA-AD had been signed.
It is in the above sense that I doubt if the ponencia’s cited case – Chavez v. PEA[40]– can serve as an effective authority for the ponencia’s thesis: that the process of negotiations as well as the terms of the MOA-AD should have been fully disclosed pursuant to the people’s right to information under Section 7, Article III and the government’s duty to disclose under Section 28, Article II of the Constitution. The Chavez case dealt with a commercial contract that was perfected upon its signing; disclosure of information pertaining to the negotiations was therefore necessary as an objection after the signing would have been too late. As outlined above, this feature of a commercial contract does not obtain in the MOA-AD because subsequent acts have to take place before the points it covers can take effect. But more than this, the contract involved in Chavez and the purely commercial and proprietary interests it represents cannot simply be compared with the MOA-AD and the concerns it touched upon – recognition of a new juridical entity heretofore unknown in Philippine law, its impact on national sovereignty, and its effects on national territory and resources. If only for these reasons, I have to reject the ponencia’s conclusions touching on the right to information and consultations.
My more basic disagreement with the ponencia’s treatment of the right to information and the duty of disclosure is its seeming readiness to treat these rights as stand-alone rights that are fully executory subject only to the safeguards that Congress may by law interpose.
In the first place, it was not clear at all from the ponencia’s cited constitutional deliberations that the framers intended the duty of disclosure to be immediately executory. The cited deliberation recites:
MR. DAVIDE: I would to get some clarifications on
this. Mr. Presiding Officer, did I get
the Gentleman correctly as having said that this is not a self-executory
provision? It would require a legislation by Congress to implement?
MR. OPLE: Yes. Originally, it was going to be
self-executing, but I accepted an amendment from Commissioner Regalado, so that
the safeguards on national interests are modified by the clause “as may be
provided by law.”
MR. DAVIDE: But as worded, does it not mean that this
will immediately take effect and Congress may provide for reasonable safeguards
on the sole ground of national interest?
MR. OPLE: Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy. [41]
In my reading, while Mr. Davide was sure of the thrust of his question, Mr. Ople was equivocal about his answer. In fact, what he actually said was that his original intention was for the provision to be self-executing, but Mr. Regalado introduced an amendment. His retort to Mr. Davide’s direct question was a cryptic one and far from the usual Ople reply – that the right should immediately influence the climate of public affairs, and that Congress can no longer revoke it.
Mr. Ople’s thinking may perhaps be better understood if the exchanges in another deliberation - on the issue of whether disclosure should extend to the negotiations leading to the consummation of a state transaction – is considered. The following exchanges took place:
MR. SUAREZ: And when we say ‘transactions’ which should be distinguished
from contracts, agreements, or treaties or whatever, does the Gentleman refer
to the steps leading to the consummation of the contract, or does he refer to
the contract itself?
MR. OPLE: The ‘transactions’ used here, I suppose is generic and
therefore, it can cover both steps leading to a contract and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ: This contemplates
inclusion of negotiations leading to the consummation of the transaction.
MR. OPLE: Yes, subject only
to reasonable safeguards on the national interest. [42]
Thus, even if Mr. Ople did indeed mean that the constitutional provisions on the right to information and the duty of disclosure may immediately be effective, these provisions have to recognize, other than those expressly provided by Congress, “reasonable safeguards on the national interest.” In constitutional law, this can only refer to safeguards inherent from the nature of the state transaction, the state interests involved, and the power that the state may bring to bear, specifically, its police power. Viewed in this light, the duty to disclose the various aspects of the MOA-AD should not be as simplistic as the ponencia claims it to be as this subject again opens up issues this Court has only began to deal with in the Neri petition[43] and the JPEPA controversy.[44] Of course, this is not the time nor the case for a full examination of the constitutional right to information and the government’s duty to disclose since the constitutionality of the MOA-AD is a dead issue.
As my last point on a dead issue, I
believe that the ponencia did not
distinguish in its discussion between the disclosure of information with
respect to the peace process in general
and the MOA-AD negotiation in particular. I do
not believe that these two matters can be interchanged and discussed from the
prisms of information and disclosure as if they were one and the same. The peace process as embodied in E.O. No. 3
relates to the wider government effort to secure peace in
Conclusion
The foregoing reasons negate the existence of grave abuse of discretion that justifies the grant of a writ of prohibition. I therefore vote to DISMISS the consolidated petitions.
[1] Respondents’ Compliance dated
[2] G.R. 171396,
[3] Citing Batangas
v. Romulo, 429 SCRA 736 (2004).
[4] Citing Lacson
v. Perez, 357 SCRA 756 (2001).
[5] Citing Province
of Batangas, supra note 3.
[6] Citing Albana
v. Comelec, 435 SCRA 98 (2004); Acop
v. Guingona, 383 SCRA 577 (2002); Sanlakas
v. Executive Secretary, 421 SCRA 656 (2004).
[7] Ponencia,
p. 32.
[8] Supra
note 2, p. 214
[9] The cause of action in the present petition
filed by the City of
[10] See: Delumen v. Republic, 94 Phil. 287
(1954); Allied Broadcasting Center, Inc.
v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782; Mangahas v. Hon. Judge Paredes, G.R. No.
157866¸ February 14, 2007, 515 SCRA 709.
[11] CONSTITUTION, Article VIII, Section 4(2).
[12]
The 1987 Constitution of the Republic of the
[13] Lis mota
means the cause of the suit or action, 4 Campb.; Moldex Realty, Inc. v.
HLURB, G.R. No. 149719,
[14] Respondents’ Compliance dated
[15] Respondents’ Manifestation dated
[16] Whose full title is “Agreement on Peace between the Government of the Republic of the
[17] See: Badoy
v. Ferrer, G.R. No. L-32546,
[18] Ponencia,
p. 33.
[19] See: La
Bugal-B’laan Tribal Association, Inc. v. Ramos, G.R. No. 127882,
[20] NHA v.
Reyes, G.R. No. L-49439,
[21] CONSTITUTION, Article VII, Sections 1 and 18.
[22] See: Fariñas
v. Executive Secretary, G.R. No. 147387,
[23] In
1938, Prime Minister Neville Chamberlain triumphantly returned to
[24] Supra, note 2, p. 282-283.
[25] G.R.
159085,
[26] 410
[27] Supra note 24, p. 665.
[28] Lacson v. Perez, G.R. No. 147780,
[29] See:
pp. 6 – 7 of this Concurring and Dissenting Opinion.
[30] Section 2. The
Systematic Approach to Peace. The government shall continue to pursue a comprehensive,
integrated and holistic approach to peace that is guided by the principles and
processes laid down in this Executive Order. These shall provide the framework
for the implementation, coordination, monitoring and integration of all government
peace initiatives, and guide its partnership with civil society in the pursuit
of a just and enduring peace.
Section 3. The
Three Principles of the Comprehensive Peace Process. The comprehensive peace
process shall continue to be governed by the following underlying principles:
a. A comprehensive peace process should be
community-based, reflecting the sentiments, values and principles important to
all Filipinos. Thus, it shall be defined not by the government alone, nor by
the different contending groups only, but by all Filipinos as one community.
b. A
comprehensive peace process aims to forge a new social compact for a just, equitable,
humane and pluralistic society. It seeks to establish a genuinely pluralistic
society, where all individuals and groups are free to engage in peaceful
competition for predominance of their political programs without fear, through
the exercise of rights and liberties guaranteed by the Constitution, and where
they may compete for political power through an electoral system that is free,
fair and honest.
c. A
comprehensive peace process seeks a principled and peaceful resolution to the
internal armed conflicts, with neither blame nor surrender, but with dignity for
all concerned.
Section
4. The Six Paths to Peace. The components of the comprehensive peace process
comprise the processes known as the “Paths to Peace”. These components processes
are interrelated and not mutually exclusive, and must therefore be pursued simultaneously
in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF
SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and social unrest. This
may require administrative action, new legislation, or even constitutional
amendments.
b. CONSENSUS-BUILDING
AND EMPOWERMENT FOR PEACE. This component includes continuing consultations on
both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people’s participation in the
peace process.
c. PEACEFUL,
NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves
the conduct of face-to-face negotiations to reach peaceful settlement with the
different rebel groups. It also involves the effective implementation of peace
agreements.
d. PROGRAMS FOR
RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND REHABILITATION. This component includes programs to address
the legal status and security of former rebels, as well as community-based
assistance programs to address the economic, social and psychological
rehabilitation needs of former rebels, demobilized combatants and civilian
victims of the internal armed conflicts.
e. ADDRESSING
CONCERNS ARISING FROM CONTINUING ARMED HOSTILITIES.
This component involves the strict implementation of laws and policy
guidelines, and the institution of programs to ensure the protection of
non-combatants and reduce the impact of the armed conflict on communities found
in conflict areas.
f. BUILDING AND
NURTURING A CLIMATE CONDUCIVE TO PEACE.
This component includes peace advocacy and peace education programs, and
the implementation of various confidence-building measures.
Section 5. Administrative
Structure. The Administrative Structure for carrying
out the comprehensive peace process shall be as follows:
C.
GOVERNMENT PEACE NEGOTIATING PANELS. There shall be established Government
Peace Negotiating Panels (GPNPs) for negotiations with different rebel groups,
to be composed of a Chairman and four (4) members who shall be appointed by the
President as her official emissaries to conduct negotiations, dialogues, and
face-to-face discussions with rebel groups.
They
shall report to the President, through the PAPP, on the conduct and progress of
their negotiations. The GPNPs shall each be provided technical support by a
Panel Secretariat under the direct control and supervision of the respective
Panel Chairman. They shall be authorized to hire consultants and to organize
their own Technical Committees to assist in the technical requirements for the negotiations.
Upon
conclusion of a final peace agreement with any of the rebel groups, the concerned
GPNP shall be dissolved. Its Panel Secretariat shall be retained in the Office
of the Presidential Adviser on the Peace Process (OPAPP) for the purpose of
providing support for the monitoring of the implementation of the peace agreement.
[31]
President Arroyo’s Memorandum of Instructions dated
[32] See p. 6 of this Concurring and Dissenting Opinion.
[33] Van
Alstyne, W., Judicial Activism and
Judicial Restraint. http://novelguide.com/a/discover/eamc_03/ eamc_03_01379.html,
last visited
[34] See p.
3 of this Concurring and Dissenting Opinion.
[35] State
of
[36] Hain v. Mullin, 327 F.3d 1177, 1180 (10th
Cir. 2003) citing United States v.
Seminole Nation, 327 F.3r 939 10th Cir. 2002.
[37] R.A. 8371.
[38] R.A. 7160.
[39] Petition filed by the Province of North
Cotabato in G.R. No. 186591, p. 24-25; Memorandum filed the
[40] G.R.
No. 133250,
[41] Cited at p. 40 of the Ponencia; Record of the
Constitutional Commission, Vol. V, pp. 28-29.
[42] Record of the Constitutional Commission, Vol. V, pp. 24 -25.
[43] Neri v. Senate Committee, G.R. No.
180643,
[44] Akbayan v. Aquino, G.R. No. 170516,