Republic of the Philippines




October 14, 2008




The Petitions for Mandamus

I concur with the ponencia's conclusion that the mandamus aspect of the present petitions has been rendered moot when the respondents provided this Court and the petitioners with the official copy of the final draft of the Memorandum of Agreement on Ancestral Domain (MOA-AD).1

The Petitions for Prohibition

I likewise concur with the implied conclusion that the "non-signing of the MOA-AD and the eventual dissolution of the Government of the Republic of the Philippines (GRP) panel mooted the prohibition aspect of the petitions," but disagree that the exception to the "moot and academic" principle should apply. The ponencia alternatively claims that the petitions have not been mooted. I likewise dissent from this conclusion.

a. The Ponencia and the Moot and Academic Principle.

As basis for its conclusion, the ponencia cites David v. Macapagal-Arroyo2 for its holding that "‘the moot and academic' principle not being a magical formula that automatically dissuades courts in resolving a case, it [the Court] will decide cases, otherwise moot and academic, if it feels that (a) there is a grave violation of the Constitution;3 (b) the situation is of exceptional character and paramount public interest is involved;4 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public;5 and (d) the case is capable of repetition yet evading review."6

In further support of its position on the mootness issue, the ponencia additionally cites the American ruling that "once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation."7

b. The Context of the "Moot and Academic" Principle.

The cited David v. Macapagal-Arroyo defines a "moot and academic" case to be "one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value." It goes on to state that "generally, courts decline jurisdiction over such cases and dismiss it on the ground of mootness."8 This pronouncement traces its current roots from the express constitutional rule under the second paragraph of Section 1, Article VIII of the 1987 Constitution that "[j]udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable..." This rule, which can conveniently be called the traditional concept of judicial power, has been expanded under the 1987 Constitution to include the power "to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

Whether under the traditional or the expanded concept, judicial power must be based on an actual justiciable controversy at whose core is the existence of a case involving rights which are legally demandable and enforceable. Without this feature, courts have no jurisdiction to act. Even a petition for declaratory relief9- a petition outside the original jurisdiction of this Court to entertain - must involve an actual controversy that is ripe for adjudication.10 In light of these requirements, any exception that this Court has recognized to the rule on mootness (as expressed, for example, in the cited David v. Macapagal-Arroyo) is justified only by the implied recognition that a continuing controversy exists.

Specifically involved in the exercise of judicial power in the present petitions is the Court's power of judicial review, i.e., the power to declare the substance, application or operation of a treaty, international agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional.11 A first requisite for judicial review is that there be an "actual case" calling for the exercise of judicial power. Fr. Joaquin Bernas, S.J., an eminent constitutional law expert, comments in this regard that -

This is a manifestation of the commitment to the adversarial system. Hence, the Court has no authority to pass upon issues of constitutionality through advisory opinions and it has no authority to resolve hypothetical or feigned constitutional problems or friendly suits collusively arranged between parties without real adverse interests. Nor will the Court normally entertain a petition touching on an issue that has become moot because then there would no longer be a ‘flesh and blood' case for the Court to resolve." [Citations deleted, emphasis supplied.]12

Other than the rule on actual case and standing (which aspect this separate opinion does not cover), jurisprudence holds that this Court will not touch upon the issue of constitutionality unless it is unavoidable or is the very lis mota.13 As will be discussed in refuting the ponencia's various positions, this rule finds special application in the present case in light of the political sensitivity of the peace talks with the MILF and the issues it has placed on the agenda, namely, peace and order in Mindanao and the MILF's aspirations for freedom.

My disagreement with the ponencia on the application of the exceptions to the mootness principle of David v. Macapagal-Arroyo is essentially based on how the mootness principle and its exceptions should be applied. While the mootness principle is "not a magical formula that automatically dissuades courts in resolving cases," so also should the exceptions not be considered magical formulas that should apply when the Court is minded to conduct a review despite the mootness of a petition. In other words, where an issue is moot on its face, the application of any of the exceptions should be subjected to a strict test because it is a deviation from the general rule. The Court should carefully test the exceptions to be applied from the perspectives both of legality and practical effects, and show by these standards that the issue absolutely requires to be resolved.

I do not believe that the exceptions were so tested and considered under the ponencia.

c. The Ponencia's Positions Refuted

i. Mootness and this Court's TRO

A first point the ponencia stresses with preeminence in its discussion of the mootness issue is the observation that "the signing of the MOA-AD did not push through due to the court's issuance of a Temporary Restraining Order." The implication, it seems, is that the intervening events subsequent to the filing of the petition and the issuance of the temporary restraining order (TRO) - specifically, the respondents' commitment that the MOA-AD shall not be signed in its present form or in any other form,14 and the President's act of dissolving the GRP negotiating panel15 - had no effect on the petitions because the signing of the MOA-AD had by then been stopped by our TRO. I find this a disturbing implication as the petitions for prohibition presented live controversies up to and beyond the issuance of this Court's TRO; they were rendered moot only by the above mentioned intervening events. By these intervening and unequivocal acts, the respondents effectively acknowledged that the MOA-AD should indeed not be signed as demanded by the petition. Thus, the TRO from this Court only immediately ensured that the MOA-AD would not be signed until this Court had spoken on the constitutional and statutory grounds cited by the petitions, but it was the respondents' acts that removed from controversy the issue of whether the MOA-AD should be signed or not. In simpler terms, after the respondents declared that the MOA-AD would not be signed, there was nothing left to prohibit and no rights on the part the petitioners continued to be at risk of violation by the MOA-AD. Thus, further discussion of the constitutionality of the MOA-AD now serves no useful purpose; as the discussion below will show, there may even be a considerable downside for our national interests if we inject another factor and another actor in the Mindanao conflict by ruling on the unconstitutionality of the MOA-AD.

ii. Mootness and Constitutional Implications

The ponencia posits as well that the MOA-AD has not been mooted because it has far-reaching constitutional implications and contains a commitment to amend and effect necessary changes to the existing legal framework. The same reason presented above suffices to defuse the ponencia's fear about the adverse constitutional effects the MOA-AD may bring or might have brought: without a signed MOA-AD none of these feared constitutional consequences can arise.

From another perspective, what the ponencia appears to fear are the constitutional violations and adverse consequences of a signed and effective MOA-AD. These fears, however, are relegated to the realm of speculation with the cancellation of the signing of the MOA-AD and the commitment that it shall not be signed in its present or any other form. Coupled with the subsequent dissolution of the GRP negotiating panel, the government could not have communicated and conveyed any stronger message, short of totally scuttling the whole peace process, that it was not accepting the points covered by the aborted MOA-AD. Government motivation for disavowing the aborted agreement is patently evident from Executive Order No. 3 that outlines the government's visions and intentions in the conduct of peace negotiations. That the GRP negotiating panel came up with a different result is a matter between the Executive and the negotiating panel and may be the immediate reason why the Executive's response was to forthwith dissolve the negotiating panel.

iii. GRP Obligation to Discuss Ancestral Domain

A consistent concern that runs through the ponencia is that the Philippines is bound under the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF in June 2001 to have an agreement on the Bangsamoro ancestral domain. This concern led the ponencia to conclude that the government decision not to sign the MOA-AD will not render the present petitions moot. In other words, the MOA-AD will recur and hence should be reviewed now.

A basic flaw in this conclusion is its unstated premise that the Philippines is bound to come to an agreement on ancestral domain, thereby equating the commitment to discuss this issue with the obligation to have an agreement. To quote the ponencia's cited Tripoli Agreement of June 2001,16 the provision on Ancestral Domain Aspect reads:

On the aspect of ancestral domain, the Parties, in order to address the humanitarian and economic needs of the Bangsamoro people and preserve their social and cultural heritage and inherent rights over their ancestral domain, agree that the same be discussed further by the Parties in their next meeting." [Emphasis supplied.]

Under these terms, it is plain that the GRP's commitment extends only to the discussion of the ancestral domain issue. The agreement to discuss, however, does not bind the GRP to come to an agreement; the GRP is merely bound to try to reach an agreement or compromise. Implicit in this commitment is that the Philippines can always say "no" to unacceptable proposals or walk away from the discussion if it finds the proposed terms unacceptable. This option has not been removed from the Philippines under any of the duly signed agreements on the Mindanao peace process. I believe that this is the message that should come out in bold relief, not the ponencia's misreading of the June 2001 agreement.

With the present MOA-AD effectively scuttled, the parties are back to the above quoted agreement under which the GRP bound itself to discuss ancestral domain with the MILF as part of the overall peace process. If the ponencia's fear relates to the substance of these future talks, these matters are not for this Court to rule upon as they belong to the realm of policy - a matter for other branches of government other than the Judiciary to determine. This Court can only speak with full force and authority on ripe, live, and actual controversies involving violations of constitutional or statutory rights.17 As a rule, courts look back to past actions, using the Constitution, laws, rules and regulations as standards, to determine disputes and violations of constitutional, and statutory rights; the legislature and the executive, on the other hand, look forward to address present and future situations and developments, with their actions limited by existing constitutional, statutory and regulatory parameters that the courts are duty-bound to safeguard. Thus, if this Court can speak at all on the substance of future talks, this can only be by way of a reminder that the government's positions can only be within constitutional and statutory parameters and subject to the strict observance of required constitutional and statutory procedures if future changes to the constitution and to current statutes are contemplated.

iv. Mootness and Paramount Public Interest

In justifying the application of the exception on the basis of paramount public interest, the ponencia noted that the MOA-AD involved a significant part of the country's territory and wide-ranging political modifications for affected local government units. It also claimed that the need for further legal enactments provides impetus for the Court to provide controlling principles to guide the bench, the bar, the public and the government and its negotiating entity.18

Unfortunately, the ponencia's justifications on these points practically stopped at these statements. Suprisingly, it did not even have an analysis of what the paramount public interest is and what would best serve the common good under the failed signing of the MOA-AD. We note, as a matter of judicial experience, that almost all cases involving constitutional issues filed with this Court are claimed to be impressed with public interest. It is one thing, however, to make a claim and another thing to prove that indeed an interest is sufficiently public, ripe, and justiciable to claim the attention and action of this Court. It must be considered, too, that while issues affecting the national territory and sovereignty are sufficiently weighty to command immediate attention, answers and solutions to these types of problems are not all lodged in the Judiciary; more than not, these answers and solutions involve matters of policy that essentially rest with the two other branches of government under our constitutional system,19 with the Judiciary being called upon only where disputes and grave abuse of discretion arise in the course applying the terms of the Constitution and in implementing our laws.20 Where policy is involved, we are bound by our constitutional duties to leave the question for determination by those duly designated by the Constitution - the Executive, Congress, or the people in their sovereign capacity.

In the present case, the peace and order problems of Mindanao are essentially matters for the Executive to address,21 with possible participation from Congress and the sovereign people as higher levels of policy action arise. Its search for solutions, in the course of several presidencies, has led the Executive to the peace settlement process. As has been pointed out repetitively in the pleadings and the oral arguments, the latest move in the Executive's quest for peace - the MOA-AD - would have not been a good deal for the country if it had materialized. This Court, however, seasonably intervened and aborted the planned signing of the agreement. The Executive, for its part, found it wise and appropriate to fully heed the signals from our initial action and from the public outcry the MOA-AD generated; it backtracked at the earliest opportunity in a manner consistent with its efforts to avoid or minimize bloodshed while preserving the peace process. At the moment, the peace and order problem is still with the Executive where the matter should be; the initiative still lies with that branch of government. The Court's role, under the constitutional scheme that we are sworn to uphold, is to allow the initiative to be where the Constitution says it should be.22 We cannot and should not interfere unless our action is unavoidably necessary because the Executive is acting beyond what is allowable, or because it has failed to act in the way it should act, under the Constitution and our laws.

My conclusion is in no small measure influenced by two basic considerations.

First, the failure to conclude the MOA-AD as originally arranged by the parties has already resulted in bloodshed in Mindanao, with blood being spilled on all sides, third party civilians included. Some of the spilled blood was not in actual combat but in terror bombings that have been inflicted on the urban areas. To date, the bloodletting has showed no signs of abating.

Lest we become confused in our own understanding of the issues, the problems confronting us may involve the socio-economic and cultural plight of our Muslim and our indigenous brothers, but at core, they are peace and order problems. Though others may disagree, I believe that socio-economic and cultural problems cannot fully be addressed while peace and order are elusive. Nor can we introduce purely pacific solutions to these problems simply because we are threatened with violence as an alternative. History teaches us that those who choose peace and who are willing to sacrifice everything else for the sake of peace ultimately pay a very high price; they also learn that there are times when violence has to be embraced and frontally met as the price for a lasting peace. This was the lesson of Munich in 1938 and one that we should not forget because we are still enjoying the peace dividends the world earned when it stood up to Hitler.23 In Mindanao, at the very least, the various solutions to our multi-faceted problems should come in tandem with one another and never out of fear of threatened violence.

Rather than complicate the issues further with judicial pronouncements that may have unforeseen or unforeseeable effects on the present fighting and on the solutions already being applied, this Court should exercise restraint as the fears immediately generated by a signed and concluded MOA-AD have been addressed and essentially laid to rest. Thus, rather than pro-actively act on areas that now are more executive than judicial, we should act with calibrated restraint along the lines dictated by the constitutional delineation of powers. Doing so cannot be equated to the failure of this Court to act as its judicial duty requires; as I mentioned earlier, we have judicially addressed the concerns posed with positive effects and we shall not hesitate to judicially act in the future, as may be necessary, to ensure that the integrity of our constitutional and statutory rules and standards are not compromised. If we exercise restraint at all, it is because the best interests of the nation and our need to show national solidarity at this point so require, in order that the branch of government in the best position to act can proceed to act.

Second, what remains to be done is to support the government as it pursues and nurses the peace process back to its feet after the failed MOA-AD. This will again entail negotiation, not along the MOA-AD lines as this recourse has been tried and has failed, but along other approaches that will fully respect our Constitution and existing laws, as had been done in the 1996 MNLF agreement. In this negotiation, the Executive should be given the widest latitude in exploring options and initiatives in dealing with the MILF, the Mindanao peace and order problem, and the plight of our Muslim brothers in the long term. It should enjoy the full range of these options - from changes in our constitutional and statutory framework to full support in waging war, if and when necessary - subject only to the observance of constitutional and statutory limits. In a negotiation situation, the worse situation we can saddle the Executive with is to wittingly or unwittingly telegraph the Executive's moves and our own weaknesses to the MILF through our eagerness to forestall constitutional violations. We can effectively move as we have shown in this MOA-AD affair, but let this move be at the proper time and while we ourselves observe the limitations the Constitution commonly impose on all branches of government in delineating their respective roles.

v. The Need for Guidelines from this Court

The cases of David v. Macapagal-Arroyo, Sanlakas v. Executive Secretary, and Lacson v. Perez presented a novel issue that uncovered a gray area in our Constitution: in the absence of a specific constitutional provision, does the President have the power to declare a state of rebellion/national emergency? If the answer is in the affirmative, what are the consequences of this declaration?

David v. Macapagal-Arroyo answered these questions and went on to further clarify that a declaration of a state of national emergency did not necessarily authorize the President to exercise emergency powers such as the power to take over private enterprises under Section 17, Article XII of the Constitution. Prior to this case, the correlation between Section 17, Article XII and the emergency powers of the President under Section 23 (2), Article VI has never been considered.

In contrast, the present petitions and the intervening developments do not now present similar questions that necessitate clarification. Since the MOA-AD does not exist as a legal, effective, and enforceable instrument, it can neither be illegal nor unconstitutional. For this reason, I have not bothered to refute the statements and arguments about its unconstitutionality. I likewise see no reason to wade into the realm of international law regarding the concerns of some of my colleagues in this area of law.

Unless signed and duly executed, the MOA-AD can only serve as unilateral notes or a "wish list" as some have taken to calling it. If it will serve any purpose at all, it can at most serve as an indicator of how the internal processes involving the peace negotiations are managed at the Office of the President. But these are matters internal to that Office so that this Court cannot interfere, not even to make suggestions on how procedural mistakes made in arriving at the aborted MOA-AD should be corrected.

To be sure, for this Court to issue guidelines relating to unapplied constitutional provisions would be a useless exercise worse than the "defanging of paper tigers" that Mr. Justice Dante O. Tinga abhorred in David v. Macapagal-Arroyo.24 In terms of the results of this exercise, the words of former Chief Justice Artemio Panganiban in Sanlakas v. Executive Secretary are most apt - "nothing is gained by breathing life into a dead issue."25

vi. The "Capable of Repetition but
Evading Review" Exception

The best example of the "capable of repetition yet evading review" exception to mootness is in its application in Roe v. Wade,26 the U.S. case where the American Supreme Court categorically ruled on the legal limits of abortion. Given that a fetus has a gestation period of only nine months, the case could not have worked its way through the judicial channels all the way up to the US Supreme Court without the disputed pregnancy being ended by the baby's birth. Despite the birth and the patent mootness of the case, the U.S. Supreme Court opted to fully confront the abortion issue because it was a situation clearly capable of repetition but evading review - the issue would recur and would never stand effective review if the nine-month gestation period would be the Court's only window for action.

In the Philippines, we have applied the "capable of repetition but evading review" exception to at least two recent cases where the Executive similarly backtracked on the course of action it had initially taken.

The earlier of these two cases - Sanlakas v. Executive Secretary27 - involved the failed Oakwood mutiny of July 27, 2003. The President issued Proclamation No. 427 and General Order No. 4 declaring a "state of rebellion" and calling out the armed forces to suppress the rebellion. The President lifted the declaration on August 1, 2003 through Proclamation No. 435. Despite the lifting, the Court took cognizance of the petitions filed based on the experience of May 1, 2001 when a similar "state of rebellion" had been imposed and lifted and where the Court dismissed the petitions filed for their mootness.28 The Court used the "capable of repetition but evading review" exception "to prevent similar questions from re-emerging ... and to lay to rest the validity of the declaration of a state of rebellion in the exercise of the President's calling out power, the mootness of the petitions notwithstanding."

The second case (preeminently cited in the present ponencia) is David v. Macapagal-Arroyo. The root of this case was Proclamation No. 1017 and General Order No. 5 that the President issued in response to the conspiracy among military officers, leftist insurgents of the New People's Army, and members of the political opposition to oust or assassinate her on or about February 24, 2006. On March 3, 2006, exactly one week after the declaration of a state of emergency, the President lifted the declaration. In taking cognizance of the petitions, the Court justified its move by simply stating that "the respondents' contested actions are capable of repetition."

Despite the lack of extended explanation in David v. Macapagal-Arroyo, the Court's actions in both cases are essentially correct because of the history of "emergencies" that had attended the administration of President Macapagal-Arroyo since she assumed office. Thus, by the time of David v. Macapagal-Arroyo, the Court's basis and course of action in these types of cases had already been clearly laid.

This kind of history or track record is, unfortunately, not present in the petitions at bar and no effort was ever exerted by the ponencia to explain why the exception should apply. Effectively, the ponencia simply textually lifted the exception from past authorities and superimposed it on the present case without looking at the factual milieu and surrounding circumstances. Thus, it simply assumed that the Executive and the next negotiating panel, or any panel that may be convened later, will merely duplicate the work of the respondent peace panel.

This assumption is, in my view, purely hypothetical and has no basis in fact in the way David v. Macapagal-Arroyo had, or in the way the exception to mootness was justified in Roe v. Wade. As I have earlier discussed,29 the ponencia's conclusion made on the basis of the GRP-MILF Peace Agreement of June 2001 is mistaken for having been based on the wrong premises. Additionally, the pronouncements of the Executive on the conduct of the GRP negotiating panel and the parameters of its actions are completely contrary to what the ponencia assumed.

Executive Order No. 3 (entitled Defining Policy and Administrative Structure for Government's Comprehensive Peace Efforts) sets out the government's visions and the structure by which peace shall be pursued. Thus, its Section 2 states The Systematic Approach to peace; Section 3, The Three Principles of the Comprehensive Peace Process; Section 4, The Six Paths to Peace; and Section 5(c)the Government Peace Negotiating Panels.30 The Memorandum of Instructions from the President dated March 2001 to the Government Negotiating Panel, states among others that:

1. The negotiations shall be conducted in accordance with the mandates of the Philippine Constitution, the Rule of Law, and the principles of the sovereignty and territorial integrity of the Republic of the Philippines.

2. The negotiation process shall be pursued in line with the national Comprehensive Peace Process, and shall seek a principled and peaceful resolution of the armed conflict, with neither blame nor surrender, but with dignity for all concerned.

x x x

4. The general approach to the negotiations shall include the following:

a. Seeking a middle ground between the aspirations of the MILF and the political, social and economic objectives of the Philippine Government;

b. Coordinated Third Party Facilitation, where needed;

c. Consultations with affected communities and sectors. 31

Under these clear terms showing the Executive's vision on how the peace process and the negotiations shall proceed, I believe that it is fallacious to assume that any renewed negotiation with the MILF will entail a repetition of the discarded MOA-AD. Understandably, it may be asked why the MOA-AD turned out the way it did despite the negotiating panel's clear marching orders. The exact answer was never clarified during the oral arguments and I can only speculate that at some point, the negotiating panel lost its bearings and deviated from the clear orders that are still in force up to the present time. As I mentioned earlier,32 this may be the reason why the negotiating panel was immediately dissolved. What is important though, for purposes of this case and of the peace and order situation in Mindanao, is that the same marching orders from the Executive are in place so that there is no misunderstanding as to what that branch of government seeks to accomplish and how it intends this to be done.

The fact that an issue may arise in the future - a distinct possibility for the ponencia - unfortunately does not authorize this Court to render a purely advisory opinion, i.e., one where a determination by this Court will not have any effect in the "real world". A court's decision should not be any broader than is required by the precise facts. Anything remotely resembling an advisory opinion or a gratuitous judicial utterance respecting the meaning of the Constitution must altogether be avoided.33 At best, the present petitions may be considered to be for declaratory relief, but that remedy regrettably is not within this Court's original jurisdiction, as I have pointed out earlier.34

Finally, let me clarify that the likelihood that a matter will be repeated does not mean that there will be no meaningful opportunity for judicial review35 so that an exception to mootness should be recognized. For a case to dodge dismissal for mootness under the "capable of repetition yet evading review" exception, two requisites must be satisfied: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.36

The time constraint that justified Roe v. Wade, to be sure, does not inherently exist under the circumstances of the present petition so that judicial review will be evaded in a future litigation. As this Court has shown in this case, we can respond as fast as the circumstances require. I see nothing that would bar us from making a concrete ruling in the future should the exercise of our judicial power, particularly the exercise of the power of judicial review, be justified.

vii. The Right to Information

The petitions for mandamus essentially involved the demand for a copy of the MOA-AD based on the petitioners' right to information under Section 7, Article III of the 1987 Constitution. In light of the commonly-held view that the mandamus aspect of the petitions is now moot, focus now shifts to the right to consultation (an aspect of the constitutional right to information and as guaranteed under the Indigenous People's Rights Act37 and the Local Government Code)38 that the petitioners now capitalize on to secure the declaration of the nullity of the MOA-AD.

I note in this regard though that it is not so much the lack of consultations that the petitioners are rallying against, but the possibility under the MOA-AD's terms that they may be deprived of their lands and properties without due process of law (i.e., that the lumads' ancestral domains will be included in and covered by the Bangsamoro Juridical Entity [BJE] without the benefit of prior consultations).39 Thus, the equation they present to this Court is: lack of consultations = deprivation of property without due process of law.

The short and quick answer to this proprietary concern is that the petitioners' claim is premature. With the MOA-AD unsigned, their fears need not materialize. But even with a signed MOA-AD, I do not believe that the immediate deprivation they fear and their due process concerns are valid based alone on the terms of this aborted agreement. Under these terms, the MOA-AD's execution and signing are but parts of a series of acts and agreements; its signing was not be the final act that would render its provisions operative. The MOA-AD itself expressly provides that the mechanisms and modalities for its implementation will still have to be spelled out in a Comprehensive Compact and will require amendments to the existing legal framework. This amendatory process, under the Constitution, requires that both Congress and the people in their sovereign capacity be heard. Thus, the petitioners could still fully ventilate their views and be heard even if the MOA-AD had been signed.

It is in the above sense that I doubt if the ponencia's cited case - Chavez v. PEA40- can serve as an effective authority for the ponencia's thesis: that the process of negotiations as well as the terms of the MOA-AD should have been fully disclosed pursuant to the people's right to information under Section 7, Article III and the government's duty to disclose under Section 28, Article II of the Constitution. The Chavez case dealt with a commercial contract that was perfected upon its signing; disclosure of information pertaining to the negotiations was therefore necessary as an objection after the signing would have been too late. As outlined above, this feature of a commercial contract does not obtain in the MOA-AD because subsequent acts have to take place before the points it covers can take effect. But more than this, the contract involved in Chavez and the purely commercial and proprietary interests it represents cannot simply be compared with the MOA-AD and the concerns it touched upon - recognition of a new juridical entity heretofore unknown in Philippine law, its impact on national sovereignty, and its effects on national territory and resources. If only for these reasons, I have to reject the ponencia's conclusions touching on the right to information and consultations.

My more basic disagreement with the ponencia's treatment of the right to information and the duty of disclosure is its seeming readiness to treat these rights as stand-alone rights that are fully executory subject only to the safeguards that Congress may by law interpose.

In the first place, it was not clear at all from the ponencia's cited constitutional deliberations that the framers intended the duty of disclosure to be immediately executory. The cited deliberation recites:

MR. DAVIDE: I would to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executory provision? It would require a legislation by Congress to implement?

MR. OPLE: Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interests are modified by the clause "as may be provided by law."

MR. DAVIDE: But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground of national interest?

MR. OPLE: Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy. 41

In my reading, while Mr. Davide was sure of the thrust of his question, Mr. Ople was equivocal about his answer. In fact, what he actually said was that his original intention was for the provision to be self-executing, but Mr. Regalado introduced an amendment. His retort to Mr. Davide's direct question was a cryptic one and far from the usual Ople reply - that the right should immediately influence the climate of public affairs, and that Congress can no longer revoke it.

Mr. Ople's thinking may perhaps be better understood if the exchanges in another deliberation - on the issue of whether disclosure should extend to the negotiations leading to the consummation of a state transaction - is considered. The following exchanges took place:

MR. SUAREZ: And when we say ‘transactions' which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

MR. OPLE: The ‘transactions' used here, I suppose is generic and therefore, it can cover both steps leading to a contract and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ: This contemplates inclusion of negotiations leading to the consummation of the transaction.

MR. OPLE: Yes, subject only to reasonable safeguards on the national interest. 42

Thus, even if Mr. Ople did indeed mean that the constitutional provisions on the right to information and the duty of disclosure may immediately be effective, these provisions have to recognize, other than those expressly provided by Congress, "reasonable safeguards on the national interest." In constitutional law, this can only refer to safeguards inherent from the nature of the state transaction, the state interests involved, and the power that the state may bring to bear, specifically, its police power. Viewed in this light, the duty to disclose the various aspects of the MOA-AD should not be as simplistic as the ponencia claims it to be as this subject again opens up issues this Court has only began to deal with in the Neri petition43 and the JPEPA controversy.44 Of course, this is not the time nor the case for a full examination of the constitutional right to information and the government's duty to disclose since the constitutionality of the MOA-AD is a dead issue.

As my last point on a dead issue, I believe that the ponencia did not distinguish in its discussion between the disclosure of information with respect to the peace process in general and the MOA-AD negotiation in particular. I do not believe that these two matters can be interchanged and discussed from the prisms of information and disclosure as if they were one and the same. The peace process as embodied in E.O. No. 3 relates to the wider government effort to secure peace in Mindanao through various offices and initiatives under the Office of the President interacting with various public and private entities at different levels in Mindanao. The peace negotiation itself is only a part of the overall peace process with specifically named officials undertaking this activity. Thus, the consultations for this general peace process are necessarily wider than the consultations attendant to the negotiations proper that has been delegated to the GRP Negotiating Panel. The dynamics and depth of consultations and disclosure with respect to these processes should, of course, also be different considering their inherently varied natures. This confusion, I believe, renders the validity of the ponencia's discussions about the violation of the right to information and the government's duty of disclosure highly doubtful.


The foregoing reasons negate the existence of grave abuse of discretion that justifies the grant of a writ of prohibition. I therefore vote to DISMISS the consolidated petitions.


1 Respondents' Compliance dated August 7, 2008.

2 G.R. 171396, May 3, 2006, 489 SCRA 161.

3 Citing Batangas v. Romulo, 429 SCRA 736 (2004).

4 Citing Lacson v. Perez, 357 SCRA 756 (2001).

5 Citing Province of Batangas, supra note 3.

6 Citing Albana v. Comelec, 435 SCRA 98 (2004); Acop v. Guingona, 383 SCRA 577 (2002); Sanlakas v. Executive Secretary, 421 SCRA 656 (2004).

7 Ponencia, p. 32.

8 Supra note 2, p. 214

9 The cause of action in the present petition filed by the City of Iligan in G.R. No. 183893.

10 See: Delumen v. Republic, 94 Phil. 287 (1954); Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782; Mangahas v. Hon. Judge Paredes, G.R. No. 157866¸ February 14, 2007, 515 SCRA 709.

11 CONSTITUTION, Article VIII, Section 4(2).

12 The 1987 Constitution of the Republic of the Philippines, A Commentary (2003 ed.), p. 938.

13 Lis mota means the cause of the suit or action, 4 Campb.; Moldex Realty, Inc. v. HLURB, G.R. No. 149719, June 21, 200, 525 SCRA 198.

14 Respondents' Compliance dated September 1, 2008 citing the Executive Secretary's Memorandum dated August 28, 2008.

15 Respondents' Manifestation dated September 4, 2008 citing the Executive Secretary's Memorandum dated September 3, 2008.

16 Whose full title is "Agreement on Peace between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front."

17 See: Badoy v. Ferrer, G.R. No. L-32546, October 17, 1970, 35 SCRA 285; Kilosbayan v. Garcia, G.R. No. 113375, May 5, 1994, 232 SCRA 110.

18 Ponencia, p. 33.

19 See: La Bugal-B'laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, December 1, 2004, 445 SCRA 1; Abakada Guro Party List v. Ermita, G.R. No. 168056, September 1, 2005, 469 SCRA 1.

20 NHA v. Reyes, G.R. No. L-49439, June 29, 1983, 123 SCRA 245.

21 CONSTITUTION, Article VII, Sections 1 and 18.

22 See: Fariñas v. Executive Secretary, G.R. No. 147387, December 10, 2003, 417 SCRA 503.

23 In 1938, Prime Minister Neville Chamberlain triumphantly returned to London from a peace agreement with Adolf Hitler in Munich, Germany. The Prime Minister then triumphantly announced that that he has been assured "peace for our time." Hitler started the Second World War on September 1, 1939.

24 Supra, note 2, p. 282-283.

25 G.R. 159085, February 3, 2004, 421 SCRA 656, 682.

26 410 U.S. 113 (1973).

27 Supra note 24, p. 665.

28 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 757.

29 See: pp. 6 - 7 of this Concurring and Dissenting Opinion.

30 Section 2. The Systematic Approach to Peace. The government shall continue to pursue a comprehensive, integrated and holistic approach to peace that is guided by the principles and processes laid down in this Executive Order. These shall provide the framework for the implementation, coordination, monitoring and integration of all government peace initiatives, and guide its partnership with civil society in the pursuit of a just and enduring peace.

Section 3. The Three Principles of the Comprehensive Peace Process. The comprehensive peace process shall continue to be governed by the following underlying principles:

a. A comprehensive peace process should be community-based, reflecting the sentiments, values and principles important to all Filipinos. Thus, it shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community.

b. A comprehensive peace process aims to forge a new social compact for a just, equitable, humane and pluralistic society. It seeks to establish a genuinely pluralistic society, where all individuals and groups are free to engage in peaceful competition for predominance of their political programs without fear, through the exercise of rights and liberties guaranteed by the Constitution, and where they may compete for political power through an electoral system that is free, fair and honest.

c. A comprehensive peace process seeks a principled and peaceful resolution to the internal armed conflicts, with neither blame nor surrender, but with dignity for all concerned.

Section 4. The Six Paths to Peace. The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These components processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation, or even constitutional amendments.

b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. This component includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process.

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves the conduct of face-to-face negotiations to reach peaceful settlement with the different rebel groups. It also involves the effective implementation of peace agreements.

d. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND REHABILITATION. This component includes programs to address the legal status and security of former rebels, as well as community-based assistance programs to address the economic, social and psychological rehabilitation needs of former rebels, demobilized combatants and civilian victims of the internal armed conflicts.


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.


This component includes peace advocacy and peace education programs, and the implementation of various confidence-building measures.

Section 5. Administrative Structure. The Administrative Structure for carrying out the comprehensive peace process shall be as follows:

C. GOVERNMENT PEACE NEGOTIATING PANELS. There shall be established Government Peace Negotiating Panels (GPNPs) for negotiations with different rebel groups, to be composed of a Chairman and four (4) members who shall be appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups.

They shall report to the President, through the PAPP, on the conduct and progress of their negotiations. The GPNPs shall each be provided technical support by a Panel Secretariat under the direct control and supervision of the respective Panel Chairman. They shall be authorized to hire consultants and to organize their own Technical Committees to assist in the technical requirements for the negotiations.

Upon conclusion of a final peace agreement with any of the rebel groups, the concerned GPNP shall be dissolved. Its Panel Secretariat shall be retained in the Office of the Presidential Adviser on the Peace Process (OPAPP) for the purpose of providing support for the monitoring of the implementation of the peace agreement.

31 President Arroyo's Memorandum of Instructions dated March 1, 2001; Paragraph 1 above, was reiterated in the President's Memorandum of Instruction dated September 8, 2003.

32 See p. 6 of this Concurring and Dissenting Opinion.

33 Van Alstyne, W., Judicial Activism and Judicial Restraint. eamc_03_01379.html, last visited October 12, 2008.

34 See p. 3 of this Concurring and Dissenting Opinion.

35 State of North Dakota v. Hansen, 2006 ND 139.

36 Hain v. Mullin, 327 F.3d 1177, 1180 (10th Cir. 2003) citing United States v. Seminole Nation, 327 F.3r 939 10th Cir. 2002.

37 R.A. 8371.

38 R.A. 7160.

39 Petition filed by the Province of North Cotabato in G.R. No. 186591, p. 24-25; Memorandum filed the Province of North Cotabato, p. 71.

40 G.R. No. 133250, July 9, 2002, 384 SCRA 152.

41 Cited at p. 40 of the Ponencia; Record of the Constitutional Commission, Vol. V, pp. 28-29.

42 Record of the Constitutional Commission, Vol. V, pp. 24 -25.

43 Neri v. Senate Committee, G.R. No. 180643, March 25, 2008.

44 Akbayan v. Aquino, G.R. No. 170516, July 16, 2008.

The Lawphil Project - Arellano Law Foundation