Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
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D I S S E N T I N G O P I N I O N
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 Philippines under international law.
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 Cotabato3 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 Iligan7 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 Torrino11 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 Municipality of Linamon,13 enjoining this Court to: (a) permanently restrain respondents from signing the MOA-AD, or (b) permanently restrain respondents from implementing the initialed MOA-AD, if and when the MILF insists on its enforcement, and (c) declare the MOA-AD as unconstitutional.
8. a petition-in-intervention for Prohibition filed by the City Government of Isabela, Basilan Province,14 enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, in the alternative, (b) declare the MOA-AD as null and void, and (c) exclude all the forty-five (45) barangays of the City of Isabela from the BJE territory;
9. a petition-in-intervention for Prohibition filed by the province of Sultan Kudarat,15 enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void, and (c) exclude the two hundred fourteen (214) barangays of Sultan Kudarat Province from the BJE territory;
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 Mindanao, enjoining this Court to: (a) permanently enjoin respondents from signing the MOA-AD, and, in the alternative, (b) declare the MOA-AD as unenforceable against other indigenous peoples;
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 information16 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 Libya between the GRP and the MNLF.
On August 1, 1989, Congress passed and approved Republic Act 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." Out of the thirteen (13) provinces and nine (9) cities subjected to a plebiscite conducted on November 19. 1989, only four (4) provinces voted for their inclusion in the ARMM, namely: Provinces of Maguindanao, Lanao Del Sur, Sulu and Tawi-Tawi.
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 March 31, 2001, Congress amended the first Organic Act (R.A. 6734) and enacted R.A. 9054 for the expansion of the ARMM. The plebiscite for the ratification of the amended Organic Act conducted on August 14, 2001 resulted in the addition of Basilan Province and Marawi City to the original four (4) provinces comprising the ARMM.
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 July 18, 1997, the Agreement on the General Cessation of Hostilities was signed between the GRP and the MILF Peace Panels. Next, on August 27, 1998, the General Framework of Agreement of Intent was signed by both parties at the Dawah Center, Crossing Simuay, Sultan Kudarat, Maguindanao.
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 April 30, 2000, the MILF unilaterally suspended the GRP-MILF Peace Talks and, likewise, declared an all-out war against the GRP and ordered an all-out offensive on Armed Forces of the Philippines (AFP) camps all over Mindanao. Various attempts at a peace settlement were unsuccessful.
On February 28, 2001, President Arroyo issued Executive Order No. 3 defining the policy and administrative structure for the government's comprehensive peace effort, in relevant part:
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 April 3, 2001, as a consequence of the signing of the Agreement on the General Framework for the Resumption of Peace Talks between the GRP and the MILF on March 24, 2001, in Kuala Lumpur, Malaysia, the MILF suspended all military actions in their areas of operation.
Subsequently, two (2) rounds of Formal Peace Talks occurred in June 20-22, 2001 and August 5-7, 2001, respectively, with the latter resulting in the signing of the Implementing Guidelines on the Security Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 and effectively placing the parties on a cease-fire status. This agreement contained three (3) strands, specifically: (1) the Security Aspect; (2) Humanitarian, Rehabilitation and Development Aspects; and (c) the Ancestral Domain Aspect. And as previously stated, R.A. 9054 amending the Organic Act was ratified with the inclusion of Basilan Province and Marawi City in the ARMM.
Yet, incidences of violence and violation of the cease-fire pact by the MILF continued to occur. On July 19, 2003, the GRP and the MILF once again agreed to a cessation of hostilities and resume peace talks. In connection therewith, on September 2, 2003, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel, i.e., Revised General Guidelines on the Peace Talks with the Moro Islamic Liberation Front.
Therefrom, the continuation of several rounds of previously held exploratory talks was held on June 20-21, 2005 at Kuala Lumpur, Malaysia and resulted in the forging of clear parameters and principles to be pursued on the Governance Strand (Aspect) of the Ancestral Domain. This was followed by another round of Exploratory Talks on September 15-16, 2005 also in Kuala Lumpur, Malaysia, where both panels adopted the points on the same strand/aspect of Ancestral Domain provided in the Peace Agreement of 2001 between the GRP and the MILF.
The peace process finally culminated in the drafting of the subject MOA-AD intended to be signed in Kuala Lumpur, Malaysia on August 5, 2008.
News report began to appear on the contents of the MOA-AD and its scheduled signing on August 5, 2008. Main petitioners, except petitioners in G.R. No. 183962, all scrambled to procure a copy of the draft of this MOA-AD. Inability to secure copies thereof and a categorical response from respondent GRP, prompted the filing of these petitions. On the eve of the scheduled signing, by Resolution dated August 4, 2008, we issued a Temporary Restraining Order commanding and directing respondents and their agents to cease and desist from formally signing the MOA-AD. We likewise required the Office of the Solicitor General (OSG) to submit to the Court and petitioners the official copy of the final draft of the MOA-AD. On August 8, 2008, the OSG filed its Compliance with our Resolution.
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 August 19, 2008, the OSG filed a Manifestation and Motion to Dismiss the petitions on the ground that the Executive Department has declared it will thoroughly review MOA-AD and pursue further negotiations addressing all objections hurled against said document. The OSG's motion was greatly opposed by the petitioners.
On August 28, 2008, the Executive Department pronounced that it would no longer sign the MOA-AD. On the last day of the oral arguments, Madame Solicitor General, on interpellation, declared that the Executive Department, specifically, respondent Sec. Ermita has declared that the MOA-AD "will not be signed in this form, or in any other form." Moreover, on September 3, 2008, President Arroyo dissolved the GRP Peace Panel. Finally, in compliance to the Court's directive upon termination of the oral arguments, the parties' submitted their respective Memoranda.
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-Arroyo18 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 Malaysia had been scheduled; several foreign dignitaries were invited to grace the ceremony. The timeliness of the exercise of power by the Court may have prevented a possible constitutional transgression. It was so timely an exercise of judicial review over an actual controversy by the Court such that it may have provided the impetus sufficient for the Executive Department to "review" its own acts, and to decided, subsequently, to abort the entire MOA-AD.
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 March 1, 2001 Memorandum of Instructions from the President, followed by the Memorandum of Instructions dated September 8, 2003. Common to the instructions is the provision that the negotiation shall be conducted "in accordance with the mandate of the Constitution, the Rule of Law, and the Principles of Sovereignty and Territorial Integrity of the Republic of the Philippines." These are adequate guidelines for the GRP Peace panel; it would be superfluous for the Court to issue guidelines which, presumably, will be similar to the ones already in existence, aside from possibly trenching on the constitutional principle of separation of powers.
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 Philippines.
Section 1, Article VII of the Philippine Constitution provides: "The executive power shall be vested in the President of the Philippines." Additionally, Section 18, Article VII, states:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
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 March 1, 2001 and the Memorandum of Instructions of September 8, 2003, constitutes the mandate of the GRP Peace panel. It was within the parameters of this mandate that the GRP Peace panel was to negotiate with the MILF and arrive at a Comprehensive Peace Agreement. It was pursuant to these strictures that the MOA-AD was crafted, initialed and scheduled for signing.
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 Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion."
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
Footnotes
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 Zamboanga.
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 Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty and territorial integrity of the Republic of the Philippines.
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 Cordilleras.
18 G.R. No. 171396, May 3, 2006, 489 SCRA 160.
19 Province of Batangas v. Romulo, G.R. No. 152772, May 27, 2004.
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, July 10, 1998.
23 John Hay People's Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003.
24 Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008), citing Arizonians for Official English v. Arizona, 117 S. Ct. 1055.
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, July 9, 2002.
28 David v. Macapagal-Arroyo, supra note 18.
29 G.R. No. 140635, August 14, 2000.
30 G.R. No. 89651, November 10, 1989, 179 SCRA 287.
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, February 3, 2004, 421 SCRA 656.
35 Supra note 34.
36 G.R. No. 88211, September 15, 1989, 177 SCRA 668.
37 Section 3, E.O. No. 3.
38 Panganiban, Separate Opinion, Sanlakas v. Reyes, supra note 34.
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