G.R. No. 183591 – THE PROVINCE OF NORTH
COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, Petitioners, versus THE GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, et al., Respondents.
G.R. No. 183752 – CITY GOVERNMENT OF
ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga,
etc., et al., Petitioners, versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, et al.,
Respondents.
G.R. No. 183893 – THE CITY OF ILIGAN,
duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, Petitioner, versus THE
GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(GRP), represented by SEC. RODOLFO GARCIA, et al., Respondents.
G.R. No. 183951 – THE PROVINCIAL GOVERNMENT
OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his
capacity as Provincial Governor, et al., Petitioners, versus THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented
by HON. RODOLFO C. GARCIA, et al., Respondents.
G.R. No. 183962 – ERNESTO M. MACEDA, et
al., Petitioners, versus THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, et al.,
Respondents.
Promulgated:
October
14, 2008
x-----------------------------------------------------------------------------------------x
NACHURA, J.:
I
respectfully dissent from the ponencia
of Justice Carpio Morales, even as I agree with its holding that the MOA-AD is
not an international agreement or unilateral declaration binding on the
Statement of the Case
We
are confronted with various petitions assailing the constitutionality of the
Memorandum of Agreement on Ancestral Domain (MOA-AD) between the respondent
Government of the Republic of the Philippines Peace Panel (GRP),[1]
and the Moro Islamic Liberation Front (MILF),[2] to
wit:
1. a petition for Prohibition and Mandamus with prayer for the
issuance of a Writ of Preliminary Injunction and Temporary Restraining Order
(TRO) docketed as G.R. No. 183591, filed by the province of North Cotabato[3]
against respondents GRP, Gen. Hermogenes Esperon, Jr.,[4]
and Secretary Eduardo Ermita,[5]
enjoining this Court to: (a) compel respondents to disclose the contents of the
MOA-AD, (b) prohibit respondents from formally signing the MOA-AD, or, in the
alternative, (c) declare the initialed MOA-AD as unconstitutional;
2. a petition for Prohibition and Mandamus
with urgent prayer for the issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order docketed as G.R. No. 183752 filed by the City
Government of Zamboanga, et al.,[6]
against respondents (except Sec. Ermita), enjoining this Court to: (a) compel
respondents to disclose the contents of the MOA-AD, (b) prohibit respondents
from signing the MOA-AD, (c) exclude the City of Zamboanga from being part of
the Bangsamoro Juridical Entity (BJE), subject-matter of the MOA-AD, or, should
the MOA-AD be signed, (d) declare it as null and void.
3. a petition for Injunction and/or
Declaratory Relief with prayer for the issuance of a Writ of Preliminary
Injunction and/or Temporary Restraining Order docketed as G.R. No. 183893 filed
by the City of Iligan[7]
against respondents, enjoining this Court to: (a) enjoin respondents from
signing the MOA-AD, or, in the alternative, from implementing the same, and (b)
declare the MOA-AD as unconstitutional;
4. a
petition for Certiorari, Mandamus and
Prohibition with prayer for issuance of Writ of Injunction and/or Temporary
Restraining Order docketed as G.R. No. 183951 filed by provincial government of
Zamboanga Del Norte,[8]
Rep. Cecilia Jalosjos Carreon,[9]
Rep. Cesar G. Jalosjos,[10]
and Seth Frederick Jalosjos, Fernando R. Cabigon, Jr. Uldarico Mejorada II,
Edionar Zamoras, Edgar J. Baguio, Cedric Adriatico, Felixberto Bolando, Joseph
Brendo Ajero, Norbideiri Edding, Anecito Darunday, Angelica Carreon, and
Luzviminda Torrino[11]
against respondents (except Sec. Ermita), enjoining this Court to: (a) declare
the MOA-AD as null and void and without operative effect, and (b) restrain
respondents from executing the MOA-AD.
5. a
petition for Prohibition filed by Ernesto Maceda, Jejomar Binay, and Aquilino
L. Pimentel III against respondents (except Gen. Esperon and Sec. Ermita) and
the MILF Peace Negotiating Panel,[12]
enjoining this Court to: (a) prohibit and permanently enjoin respondents from
formally signing the MOA-AD or any other agreement derive therefrom or with
terms similar thereto as well as from executing any of its provisions, and (b)
nullify the MOA-AD for being contrary to the Constitution and the laws;
6. a petition-in-intervention for
Prohibition filed by Hon. Marino Ridao and Kisin Buxani, residents of Cotabato
City, lodged with the petitions of the Province of Cotabato and the City of
Zamboanga in G.R. Nos. 183591 and 183752, enjoining this Court to: (a) prohibit
respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void,
or, in the alternative, (c) exclude all the thirty-seven (37) barangays of Cotabato City from the
coverage of the BJE territory;
7. a petition-in-intervention for
Prohibition, Mandamus and Injunction filed by the
8. a petition-in-intervention for
Prohibition filed by the City Government of Isabela,
9. a petition-in-intervention for
Prohibition filed by the
10. a petition-in-intervention for Prohibition
filed by members of the bar Carlos Gomez, Gerardo Dilig, Nesario Awat, Joselito
Alisuag, and Richalez Jagmis, all from Puerto Princesa City, Palawan, enjoining
this Court to: (a) prohibit respondents from implementing the MOA-AD which they
had signed with the MILF Peace Negotiating Panel, in the alternative, (b)
declare the MOA-AD as null and void, and (c) exclude the Province of Palawan
and the Municipalities of Bataraza and Balabac from the BJE territory;
11. a petition-in-intervention for Prohibition
filed by Ruy Elias Lopez as a member of the Bagobo tribe of indigenous people
living in
12. a petition-in-intervention for Mandamus and Prohibition filed by
Senator Manuel Roxas, enjoining this Court to: (a) direct respondents to
publicly reveal or disclose the contents of the MOA-AD, including all documents
pertinent, related, attached thereto, and order respondents to furnish
petitioner-in-intervention Sen. Roxas with the draft and/or final, complete,
official, and initialed copies of said MOA-AD, and (b) command respondents from
acting on and signing and implementing the MOA-AD; and
13. a petition-in-intervention for Prohibition
filed by former Senator Franklin Drilon and Atty. Adel Tamano, enjoining this
Court to prohibit and permanently enjoin respondents from further signing,
executing, and entering into the MOA-AD or any other agreement with terms
similar to the MOA and/or from proceeding or implementing the MOA-AD.
These
cases have been consolidated and jointly heard on oral argument by the Court.
In
all, the main petitions and the petitions-in-intervention bewail the lack of
public consultation and invoke violation of the people’s right to information[16]
in the drafting of the MOA-AD. The numerous petitions pray for the following
reliefs:
1. To prevent the signing of, and, in the
alternative, implementation of the initialed, MOA-AD;
2. To be furnished copies of the MOA-AD
grounded on their right to information on matters of public concern;
3. To exclude certain cities and barangays from the BJE territory;
4. To declare the MOA-AD as unconstitutional
riddled as it is with constitutional infirmities; and
5. As regards Intervenor Lopez, to declare
the MOA-AD unenforceable against indigenous peoples.
The Facts
Before
anything else, however, the difficult facts leading to this cause celebre.
The
advent of the 1987 Constitution captured and reflected our nation’s quest for
true and lasting peace in Muslim Mindanao. The new constitution included
authority for the creation of an Autonomous Region of Muslim Mindanao (ARMM).[17]
This trailblazing legal framework was actually catalyzed, as early as 1976,
with the signing of the Tripoli Agreement in
On
Then,
on September 2, 1996, the almost elusive pursuit of peace appeared to be within
reach—the GRP and the MNLF entered into and signed a total and final peace
agreement implementing the 1976 Tripoli Agreement entitled “The Final Agreement
on the Implementation of the 1976 Tripoli Agreement between the Government of
the Republic of the Philippines and the Moro National Liberation Front.”
Consistent thereto, on
Peace was almost at hand, but not
quite. The MILF, a break-away faction of the MNLF, wanted a separate peace. It
rejected the final peace agreement between the GRP and the MNLF, and continued
their armed hostilities. Once again, in the quest for lasting peace, the GRP
initiated peace talks with the MILF. On
All these agreements,
notwithstanding, at the end of 1999 to 2000, the MILF fortified its stronghold
in forty-six (46) camps, attacked a number of municipalities in Central
Mindanao, and took control of the town hall of Kauswagan, Lanao Del Norte.
Government responded by twice declaring an “all-out war” against the MILF. On
On
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.
In
addition thereto, President Arroyo issued Memorandum of Instructions to the GRP
Peace Panel providing the General Guidelines on the Peace Talks with the MILF.
On
Subsequently, two (2) rounds of Formal
Peace Talks occurred in
Yet, incidences of violence and
violation of the cease-fire pact by the MILF continued to occur. On
Therefrom, the continuation of several
rounds of previously held exploratory talks was held on
The peace process finally culminated
in the drafting of the subject MOA-AD intended to be signed in
News report began to appear on the contents
of the MOA-AD and its scheduled signing on
Meanwhile, outbreak of violence
occurred in some of the herein petitioner local government units. Oral
arguments were held on August 15, 22, & 29, 2008. On
On
Petitioners and petitioners-in-intervention maintain that despite the
supervening events and foregoing declarations and acts of the Executive
Department, there remains a justiciable controversy, a conflict of legal rights
by the parties that ought to be adjudicated by this Court. They asseverate
that, supervening events notwithstanding, the cases at bench have not been
mooted, or, even if so, the issues they raised fall within the exceptions to
the moot and academic principle. Consequently, even with the dissolution of the
GRP Peace Panel and the positive and unequivocal declaration by the Executive
Department that the MOA-AD will not be signed in this form or in any other
form, the constitutionality of the MOA-AD may still be ruled upon.
At the other end of the spectrum, however, the OSG is adamant that this
contentious MOA-AD is, in fact, only a codification of “consensus points” and
does not, in any way, create rights and obligations that must be declared
infirm, and thus, is not ripe for adjudication by this Court. Furthermore, the
OSG insists that the petitions and petitions-in-intervention must be dismissed
on the ground of mootness, supervening events having rendered the assailed
MOA-AD inexistent and all the reliefs prayed for satisfied and fulfilled. In
addition, the OSG argues that a ruling by this Court on the constitutionality
of the MOA-AD violates the doctrine of separation of powers as the negotiation
of the MOA-AD is embraced in the President’s powers and in the nature of a
political question, outside the pale of judicial review.
The Issues
From the pleadings and as delineated on oral arguments, the issues
raised are both procedural and substantive, namely
1. Procedural
(i) Whether petitioners and
petitioners-in-intervention have locus standi;
(ii) Whether the petitions and
petitions-in-intervention continue to present a justiciable controversy still
ripe for adjudication; and
(iii) Whether the petitions and
petitions-in-intervention have become moot and academic.
2. Substantive
(i) Whether the MOA-AD is unconstitutional;
(ii) Whether
the GRP Peace Panel (respondents) committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it negotiated and initialed the MOA-AD.
I submit that because of supervening
events, the petitions and petitions-in-intervention are no longer ripe for
adjudication and that these cases have been rendered moot and academic.
Accordingly, the petitions should be dismissed.
I.
PROCEDURAL
i. Locus Standi
Our pronouncements in David v. Macapagal-Arroyo[18]
are instructive:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a public right in assailing an allegedly illegal official action,
does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a stranger, or in the category of a citizen, or taxpayer. In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a
citizen or taxpayer.
x x x x
However, to prevent
just about any person from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court
laid down the more stringent direct
injury test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court
ruled that for a private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that
action, and it is not sufficient that he has a general interest common to all
members of the public.
This Court adopted
the direct injury test in our
jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must
have a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine
was upheld in a litany of cases, such as, Custodio
v. President of the Senate, Manila
Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.
However, being a
mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949
Emergency Powers Cases, Araneta v.
Dinglasan, where the transcendental
importance of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court
resolved to pass upon the issues raised due to the far-reaching implications of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the
suit. Indeed, there is a chain of cases where this liberal policy has
been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity
of laws, regulations and rulings.
x x x x
By way of summary,
the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may
be accorded standing to sue, provided that the following requirements are met:
(1) the cases involve
constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a
showing that the issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that
the official action complained of infringes upon their prerogatives as
legislators.
The test we have laid down is whether the party has alleged
such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult questions.[19]
When an individual sues as a citizen, he must allege that he has been or is
about to be subjected to some burdens or penalties by reason of the statute or
act complained of.[20]
When the issue concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws.[21]
The petitioners and petitioners-in-intervention claim locus standi with their invocation of
the transcendental importance of the issues involved and their assertion of
public rights to information and to consultation.
Considering that the Court has discretion to relax this
procedural technicality, and given the liberal attitude it has adopted in a
number of earlier case, we acknowledge the legal standing of the petitioners
herein.
ii. Ripeness
for Adjudication
A mandatory requirement for the
Court’s exercise of the power of judicial review is the existence of an actual
case or controversy. An actual case or controversy is a conflict of legal
rights, an assertion of opposite legal claims which can be resolved on the
basis of existing law and jurisprudence.[22]
The controversy must be definite and concrete, bearing upon the legal relations
of parties who are pitted against each other due to their adverse legal
interests.[23]
But it is not enough that the
controversy exists at the outset. To qualify for adjudication, it is necessary
that the actual controversy be extant at all stages of review, not merely at
the time the complaint is filed.[24]
This is to say that the case is ripe for judicial determination.
In Guingona
v. Court of Appeals,[25]
we had occasion to declare:
Closely related to the
requirement of “actual case,” Bernas continues, is the second requirement that
the question is “ripe” for adjudication. A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual
challenging it. Thus, in PACU v.
Secretary of Education, the Court declined to pass judgment on the question
of the validity of Section 3 of Act No. 2706, which provided that a private
school may be opened to the public, it must first obtain a permit from the
secretary of education, because all the
petitioning schools had permits to
operate and were actually operating, and none of them claimed that the
secretary had threatened to revoke their permit.
In Tan v. Macapagal, the Court said that
Petitioner Gonzales “had the good sense to wait” until after the enactment of
the statute [Rep. Act No. 4913(1967)] requiring the submission to the
electorate of certain proposed amendments to the Constitution [Resolution Nos.
1 and 3 of Congress as a constituent body (1967)] before he could file his
suit. It was only when this condition was met that the matter became ripe for
adjudication; prior to that stage, the judiciary had to keep its hands off.
The doctrine of
separation of powers calls for each branch of government to be left alone to
discharge its duties as it sees fit. Being one such branch, the judiciary,
Justice Laurel asserted, “will neither direct nor restrain executive [or
legislative action] x x x.” The legislative and the executive branches are not
allowed to seek advice on what to do or not to do; thus, judicial inquiry has
to be postponed in the meantime. Before a court may enter the picture, a
prerequisite is that something has been accomplished or performed by either
branch. Then may it pass on the
validity of what has been done but, then again, only “when x x x properly
challenged in an appropriate legal proceeding.”
In the case at bench, there is no gainsaying that at the
time of the filing of the initial petitions up to the issuance by this Court of
the Temporary Restraining Order, there was an actual extant controversy. The
signing of the MOA-AD in
However, supervening events effectively eliminated the
conflict of rights and opposite legal claims. There is no longer an actual case
or controversy between the parties. The GRP Peace Panel, respondents in these
consolidated cases, has been disbanded by the President, along with the
resounding declaration that “the MOA-AD will not be signed in its present form,
or in any other form.” The Memorandum issued by Executive Secretary Ermita to
the Solicitor General is unequivocal: “No matter what the Supreme Court
ultimately decides, the government will not sign the MOA.”
The subsequent events were sufficient to alter the course
of these judicial proceedings. The President’s decision not to sign the MOA-AD
may even be interpreted as a rectification of flawed peace negotiations by the
panel. But to this Court, it is clearly a supervening event that affects the
ripeness of the case for adjudication. With an abandoned and unsigned MOA-AD
and a dissolved peace Panel, any purported controversy has virtually
disappeared. Judicial review cannot be exercised where the incipient actual
controversy does not remain extant until the termination of the case; this
Court cannot provide reliefs for controversies that are no longer there.
After the mandamus
aspect of the initial petitions had been satisfied, what remains are basically
the petitions for certiorari and
prohibition.[26] The
reliefs prayed for include the declaration of nullity of the MOA-AD and the
prohibition on the members of the Peace Panel from signing the MOA-AD.
These reliefs are unavailing, because the peace Panel has
been dissolved and, by the nature
of things, rendered permanently unable to sign
any agreement. On the other
hand, the MOA-AD sought to be nullified does not confer any rights nor imposes
any duties. It is, as of today, non-existent.
In Montesclaros v.
COMELEC,[27] we
held that a proposed bill is not subject to judicial review, because it is not
a law. A proposed bill creates no right and imposes no duty legally enforceable
by the Court. A proposed bill having no legal effect violates no constitutional
right or duty. The Court has no power to declare a proposed bill constitutional
or unconstitutional because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress. This ruling finds a parallel in
a proposed agreement to be entered into by the Executive Department which has
been aborted, unsigned, and “will not be signed in its present form or in any
other form.”
iii. Mootness
A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical value. Generally, courts
decline jurisdiction over such case, or dismiss it on ground of mootness.[28]
Thus, in Gonzales v.
Narvasa,[29] where the constitutionality of the
creation of the Preparatory Commission on Constitutional Reform (PCCR) was
questioned, the Court dismissed the petition because by then, the PCCR had
ceased to exist, having finished its work and having submitted its
recommendations to then President
Estrada. In Abbas
v. COMELEC,[30]
we
refused to rule on a
perceived potential conflict between provisions of the Muslim Code and those of
the national law.
However, it is axiomatic that courts will decide cases,
otherwise moot and academic, if: first,
there is a grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest involved; third,
when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar and the public; or fourth, when the case is capable of repetition yet evasive of
review.[31]
As to the first exception, there is no violation of the
Constitution that will justify judicial review despite mootness, because the
MOA-AD has not been signed – and will not be signed. The eminent Justice
Antonio T. Carpio, in his separate opinion, even as he expressed fears of
numerous “drastic changes” in the Constitution, acknowledges that these will
take place only IF the MOA-AD will be signed. The scholarly ponencia concludes
with the finding that the MOA-AD is unconstitutional, obviously referring to
its provisions. So does the separate opinion of Justice Ruben T. Reyes. But, to
repeat, the MOA-AD is, as of today, non-existent. Thus, as it is, these dreaded
constitutional infractions are, at best, anticipatory, hypothetical or
conjectural.
Neither will the second exception apply. The issue of
paramount public interest will arise only IF the MOA-AD is signed. With the
Peace Panel dissolved, and with the unequivocal pronouncement of the President
that the MOA-AD will not be signed, there is no occasion to speak of the
exceptional or extraordinary character of the controversy as would render the
case ripe for resolution and susceptible of judicial determination.
Given the events that led to the issuance by the Court of a
TRO in order to stop the signing of the MOA-AD in Malaysia on August 5, 2008,
it would appear that there is a need for the Court to formulate controlling
principles, precepts and rules to guide the bench, the bar and the public –
particularly a peace negotiating panel – in future peace talks. However, a
scrutiny of the factual antecedents of this case reveals that no such
imperative exists.
It is well to note that Executive Order No. 3, which
created the GRP Peace Panel, explicitly identifies the Constitution as the
basic legal framework for the peace negotiations. It states that the GRP Peace
Panel was created with the primary objective to attain “a just, comprehensive and enduring peace under a rule of law and in
accordance with constitutional processes,”[32]
with “a need to further enhance the
contribution of civil society to the comprehensive peace process by
institutionalizing the people’s participation.”[33]
The same Executive Order provides sufficient standards to guide the GRP Peace
Panel in the performance of its avowed work.
Then, there is the
If the respondents-members of the GRP Peace Panel, in the
conduct of the negotiation, breached these standards or failed to heed the
instructions, it was not for lack of guidelines. In any event, the GRP Peace
Panel is now disbanded, and the MOA-AD unsigned and “not to be signed.” There
is no necessity for this Court to issue its own guidelines as these would be,
in all probability, repetitive of the executive issuances.
The fourth exception, that the issue is “capable of repetition yet evasive of review,”
is likewise inapplicable in this case. In this connection, we recall Sanlakas v. Reyes,[34]
where the Court dismissed the petitions which assailed as unconstitutional
Proclamation No. 427, declaring a state of rebellion, and General Order No. 4,
after the President had issued Proclamation no. 435 declaring that the state of
rebellion had ceased to exist.
Apart from the brilliant ponencia of Justice Dante O.
Tinga, particularly illuminating is the separate opinion of Chief Justice
Artemio V. Panganiban when he wrote:
While the Petitions herein have previously embodied a live
case or controversy, they now have been rendered extinct by the lifting of the
questioned issuances. Thus, nothing is
gained by breathing life into a dead issue.
Moreover, without a justiciable controversy, the Petitions
have become pleas for declaratory relief, over which the Supreme Court has no original
jurisdiction. Be it remembered that they were filed directly with this
Court and thus invoked its original jurisdiction.
On the theory that the “state of rebellion” issue is
“capable of repetition yet evading review,” I respectfully submit that the
question may indeed still be resolved even after the lifting of the
Proclamation and Order, provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of their
issuance.
In the present case, petitioners have not shown that they
have been or continue to be directly and pecuniarily prejudiced or damaged by
the Proclamation and Order. Neither have
they shown that this Court has original jurisdiction over petitions for
declaratory relief. I would venture to say that, perhaps, if this controversy
had emanated from an appealed judgment from a lower tribunal, then this
Court may still pass upon the issue on the theory that it is “capable of
repetition yet evading review,” and the case would not be an original
action for declaratory relief.
In
short, the theory of “capable of repetition yet evading review” may be invoked
only when this Court has jurisdiction over the subject matter. It cannot be used in the present controversy
for declaratory relief, over which the Court has no original
jurisdiction.
Given
the similar factual milieu in the case at bench, I submit that judicial review
of the instant controversy cannot be justified on the principle that the issue
is “capable of repetition yet evasive of review.”
II. SUBSTANTIVE
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 Peace Panel until the challenged MOA-AD was crafted in its present
abandoned form.
The President
is the Chief Executive of the Republic and the Commander-in-Chief of the armed
forces of the
Section 1,
Article VII of the Philippine Constitution provides: “The executive power shall be vested in the President of the
Sec. 18. The President
shall be the Commander-in-Chief of all armed forces of the
In Sanlakas v. Reyes,[35]
we held that the above provision grants the President, as Commander-in-Chief, a
sequence of graduated powers, to wit: (1) the calling out power, (2) the power
to suspend the privilege of the writ of habeas
corpus, and (3) the power to declare martial law. Thus:
In the exercise of the
latter two powers, the Constitution requires the concurrence of two conditions,
namely, an actual invasion or rebellion, and that public safety requires the
exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, “[t]hese conditions
are not required in the exercise of the calling out power. The only criterion
is that ‘whenever it becomes necessary,’ the President may call the armed
forces ‘to prevent or suppress lawless violence, invasion or rebellion.’”
Implicit in these is the President’s power to maintain
peace and order. In fact, in the seminal case of Marcos v. Manglapus,[36]
we ruled:
[T]his case calls for the exercise of the
President’s powers as protector of the peace. The power of the President to
keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with
extraordinary powers in times of emergency, but is also tasked with attending
to the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be
said to exclude the President’s exercising as Commander-in-Chief powers short
of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law,
in order to keep the peace, and maintain public order and security.
Undoubtedly, then, the
President has power to negotiate peace with the MILF, and to determine in what
form and manner the peace process should be conducted.
In the exercise of this power, the President issued Executive
Order No. 3, where she mapped out the principles to be followed in the
comprehensive peace process: (a) community-based and defined by all Filipinos
as one community, (b) a new social compact establishing a genuinely pluralistic
society, and (c) a principled and peaceful resolution to the internal armed
conflicts.[37]
In Section 4 thereof, the president identified the 6 paths to peace, with
processes being interrelated and not mutually exclusive, and must be pursued
simultaneously in a coordinated and integrated fashion: (a) pursuit of social,
economic and political reforms, (b) consensus-building and empowerment for
peace, (c) peaceful, negotiated settlement with the different rebel groups, (d)
programs for the reconciliation, reintegration into mainstream society and
rehabilitation, (e) addressing concerns arising from continuing armed
hostilities, and (f) building and nurturing a climate conducive to peace.
Executive Order No. 3, together with the Memorandum of
Instructions of
Even as the petitioners and petitioners-in-intervention
roundly condemn the MOA-AD, as currently worded, to have violated
constitutional and statutory principles – and assail the GRP Peace Panel for
having acted with grave abuse of discretion because of its failure to abide by
its mandate – it is noteworthy they do not raise any question about the
validity of Executive Order No. 3 and the Instructions issued by the President.
Considering the events that have supervened since the
filing of the initial petition and the issuance by this Court of a TRO, it is
suggested that the angle of vision for the discussion of the substantive issues
in this case should be from the perspective of the relief/s that this Court can
grant the parties, taking into account their respective prayers. These are:
1. Mandamus.
a) Three petitions and two petitions-in-intervention
praying for a writ of mandamus, to compel the production of the official copy
of the MOA-AD, the petitioners invoking their right to information. These petitions
are now mooted, because the requested documents have already been produced.
b) Two respondents-intervenors who pray that the Executive Department be directed to sign the MOA-AD and to continue with the peace negotiations. With the definite pronouncement of the President that the MOA-AD will not be signed in its present form or in any other form, this prayer cannot be granted, because the Court cannot compel a party to enter into an agreement.
2. Declaratory Relief. – One petition for declaratory
relief which may not be granted because the Court has no original jurisdiction
over petitions for declaratory relief.[38]
3. Certiorari and Prohibition. One petition for certiorari and twelve petitions for prohibition, including the petitions-in-intervention, seek a declaration of nullity of the MOA-AD (for being unconstitutional), a writ of certiorari against the members of the GRP Peace Panel for having acted with grave abuse of discretion, and a writ of prohibition to prevent the signing of the MOA-AD.
There’s the rub. Because the MOA-AD will not be signed “in
its present form, or in any other form,” certiorari
will not lie. The Court cannot review an inexistent agreement, an unborn
contract that does not purport to create rights or impose duties that are
legally demandable. Neither will the remedy of prohibition lie against a GRP
Peace Panel that no longer exists. To do
so would be to flog a dead horse.
The ponencia would wish to get around this inescapable
truth by saying: “The MOA-AD not being a
document that can bind the
With due respect, I beg to disagree.
Grave abuse of discretion can characterize only consummated acts (or
omissions), not an “almost (but not quite) consummated act.”
Chief Justice Panganiban, in his
separate opinion in Sanlakas, writes:
“The first requirement, the existence of
a live case or controversy, means that the existing litigation is ripe for
resolution and susceptible of judicial determination, as opposed to one that is
conjectural or anticipatory, hypothetical or feigned.”
It is not the province of this Court
to assume facts that do not exist.
It is for the foregoing reasons that
I respectfully register my dissent. I vote to DENY the petitions.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
[1] Represented by Secretary Rodolfo Garcia, Atty. Leah Armamento, Atty. Sedfrey Candelaria, Ryan Mark Sullivan.
[2] Breakaway group of the Moro National Liberation Front.
[3] Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel
Piñol, for and in his own behalf.
[4] In his capacity as Presidential Adviser on the Peace Process.
[5] In his capacity as Executive Secretary.
[6] Represented by the City Mayor of
Zamboanga, Celso Lobregat. Other petitioners are Rep. Isabelle Climaco,
District 1 of Zamboanga City and Rep. Erico Basilio A. Fabian, District 2, City
of
[7] Represented by City Mayor Lawrence Lluch Cruz.
[8] Represented by Gov. Rolando E. Yebes and Vice-Governor Francis H. Olvis.
[9] 1st Congressional District.
[10] 3rd Congressional District.
[11] Members of the Sangguniang Panlalawigan of Zamboanga del Norte Province.
[12] Represented by its Chairman Mohagher Iqbal.
[13] Represented by Mayor Noel Deano.
[14] Represented by Mayor Cherrylyn Santos-Akbar.
[15] Represented by Gov. Suharto Mangudadatu.
[16] Article III, Section 7 of the Constitution:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records and to documents and papers pertaining to official acts, transactions, or decisions, as well as government research data used as basis for policy development shall be afforded the citizen, subject to such limitations as may be provided by law.
[17] Article X, Sections 15, 18 and 19 of the Constitution:
Sec. 15. There shall be created autonomous regions in
Muslim Mindanao and in the
Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of the government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic act shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.
Sec. 19. The first Congress elected under this
Constitution shall, within eighteen months from the time of organization of
both Houses, pass the organic acts for the autonomous regions in Muslim
Mindanao and the
[18] G.R. No. 171396,
[19]
[20] Francisco
v. House of Representatives, 460 Phil. 830, 896 (2003).
[21] Supra note 18.
[22] Guingona
v. Court of Appeals, G.R. No. 125532,
[23] John
Hay People’s Alternative Coalition v.
Lim, G.R. No. 119775,
[24] Davis
v. Federal Election Commission, 128
[25] Supra note 22.
[26] The records show pleadings filed by two Respondents-in-Intervention, namely: the Muslim Legal Assistance Foundation, inc. and the Consortium of Bangsamoro Civil Society, represented by its Chairman Guiamel M. Alim, and Bangsamoro Women Solidarity Forum, represented by its Chair Tarhata M. Maglangit. In their respective memorandum, these two intervenors uniformly pray for the lifting of the temporary restraining order issued by this Court, and to require the Executive Department to fulfill its obligation under the MOA-AD and continue with the peace talks with the MILF with the view of forging a Comprehensive Compact.
[27] G.R. No. 152295,
[28] David
v. Macapagal-Arroyo, supra note 18.
[29] G.R. No. 140635,
[30] G.R. No. 89651,
[31] David
v. Macapagal-Arroyo, supra note 18.
[32] 1st WHEREAS clause, E.O. No. 3.
[33] Last WHEREAS clause, E.O No. 3.
[34] G.R. No. 159085,
[35] Supra note 34.
[36] G.R. No. 88211,
[37] Section 3, E.O. No. 3.
[38] Panganiban, Separate Opinion, Sanlakas v. Reyes, supra note 34.