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G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - VELASCO, JR. - DISSENTING OPINION : THE PROVINCE OF COTOBATO v. THE GOV'T OF THE REPUBLIC OF THE PHILIPPINES, ET AL.

G.R. No. 183591 - G.R. NOS. 183591, 183572, 183893, 183951 and 183962 - VELASCO, JR. - DISSENTING OPINION : THE PROVINCE OF COTOBATO v. THE GOV'T OF THE REPUBLIC OF THE PHILIPPINES, ET AL.

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 183591 : October 14, 2008]

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, Respondent.

[G.R. NO. 183752 : October 14, 2008]

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, Respondent.

[G.R. NO. 183893 : October 14, 2008]

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, Petitioner, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. Respondent.

[G.R. NO. 183951 : October 14, 2008]

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace Process, Respondent.

[G.R. NO. 183962 : October 14, 2008]

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, Petitioners, v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, Respondents.

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, Petitioners-in-Intervention.

SEN. MANUEL A. ROXAS, Petitioners-in-Intervention.

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, Petitioners-in-Intervention,

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, Petitioners-in-Intervention.

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, Petitioner-in-Intervention.

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, Petitioner-in-Intervention.

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan, Petitioners-in-Intervention.

MARINO RIDAO and KISIN BUXANI, Petitioners-in-Intervention.

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), Respondent-in-Intervention.

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), Respondent-in-Intervention.

D I S S E N T I N G O P I N I O N

VELASCO, JR., J.:

It is a well-settled canon of adjudication that an issue assailing the constitutionality of a government act should be avoided whenever possible.1 Put a bit differently, courts will not touch the issue of constitutionality save when the decision upon the constitutional question is absolutely necessary to the final determination of the case, i.e., the constitutionality issue must be the very lis mota of the controversy.2 It is along the line set out above that I express my dissent and vote to dismiss the consolidated petitions and petitions-in-intervention principally seeking to nullify the Memorandum of Agreement on Ancestral Domain (MOA-AD) proposed to be entered into by and between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF).

Non-Joinder of MILF: Fatal

The Rules of Court requires all actions to be brought by or against the real party interest. The requirement becomes all the more necessary with respect to indispensable parties. For:

Indispensable parties are those with such interest in the controversy that a final decree would necessarily affect their rights so that courts cannot proceed without their presence. All of them must be included in a suit for an action to prosper or for a final determination to be had.3

As it were, the MILF was not impleaded in this case except in G.R. No. 183962. But it would appear that MILF, doubtless a real party in interest in this proceedings, was not served a copy of and asked to comment on the petition in G.R. No. 183962. Significantly, when queried during the oral arguments on the non-inclusion of the MILF, the petitioners feebly explained that first, they could not implead the MILF because they did not know where it could be served with summons; and second, they feared that impleading the MILF would be futile as the group does not acknowledge the Court's jurisdiction over it.

The importance of joining the MILF in this case cannot be over-emphasized. While the non-joinder of an indispensable party will generally not deprive the court of jurisdiction over the subject matter, the only prejudice to the winning party being the non-binding effect of the judgment on the unimpleaded party, the situation at bar is different. Here, the unimpleaded party is a party to the proposed MOA-AD no less and the prospective agreement sought to be annulled involves ONLY two parties--the impleaded respondent GRP and the MILF. The obvious result is that the Court would not be able to fully adjudicate and legally decide the case without the joinder of the MILF--the other indispensable party to the agreement. The reason is simple. The Court cannot nullify a prospective agreement which will affect and legally bind one party without making said decision binding on the other contracting party. Such exercise is not a valid, or at least an effective, exercise of judicial power for it will not peremptorily settle the controversy. It will not, in the normal course of things, write finis to a dispute.4 Such consequent legal aberration would be the natural result of the non-joinder of MILF. A court should always refrain from rendering a decision that will bring about absurdities or will infringe Section 1, Article 8 of the Constitution which circumscribes the exercise of judicial power.

Prematurity and Mootness

The MOA-AD is but a proposal on defined consensus points. The agreement has remained and will remain a mere proposal as the GRP has put off its signing permanently.5 The parties to the MOA do not have, in short, the equivalent of, or what passes as, a perfected and enforceable contract. As things stand, the line dividing the negotiation stage and the execution stage which would have otherwise conferred the character of obligatoriness on the agreement is yet to be crossed. In a very real sense, the MOA-AD is not a document, as the term is juridically understood, but literally a piece of paper which the parties cannot look up to as an independent source of obligation, the binding prestation to do or give and the corollary right to exact compliance. Yet, the petitioners would have the Court nullify and strike down as unconstitutional what, for all intents and purposes, is a non-existent agreement. Like a bill after it passes third reading or even awaiting the approval signature of the President, the unsigned draft MOA-AD cannot plausibly be the subject of judicial review, the exercise of which presupposes that there is before the court an actual case or, in fine, a justiciable controversy ripe for adjudication. A justiciable controversy involves a definite and concrete dispute touching on the legal relations of parties who are pitted against each other due to their demanding and conflicting legal interests.6 And a dispute is ripe for adjudication when the act being challenged has had direct adverse effect on the person challenging it and admits of specific relief through a decree that is conclusive in character. As aptly observed in Tan v. Macapagal,7 for a case to be considered ripe for adjudication, it is a prerequisite that something had been accomplished by either branch of government before a court may step in. In the concrete, the Court could have entered the picture if the MOA-AD were signed. For then, and only then, can we say there is a consummated executive act to speak of.

As opposed to justiciable controversy, academic issues or abstract or feigned problems only call for advices on what the law would be upon a hypothetical state of facts.8 Were the Court to continue entertain and resolve on the merits these consolidated petitions, the most that it can legally do is to render an advisory opinion,9 veritably binding no one,10 but virtually breaching the rule against advisory opinion set out, if not implied in Section 1, Article VIII charging "courts of justice [the duty] to settle actual controversies involving rights which are legally demandable and enforceable."

Prescinding from and anent the foregoing considerations, it can categorically be stated that what the petitions are pressing on the Court are moot and academic questions. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value.11 In such cases, there is no actual substantial relief to which the petitioner would be entitled to and which would be negated by the dismissal of the petition.12 To be sure, the mootness of a case would not, in all instances, prevent the Court from rendering a decision thereon.13 So it was that in a host of cases, we proceeded to render a decision on an issue otherwise moot and academic. Dela Camara v. Enage,14 Gonzales v. Marcos,15 Lacson v. Perez 16 Albania v. COMELEC,17 Acop v. Guingona II 18 and David v. Macapagal-Arroyo,19 among other cases, come to mind. David lists the exceptions to the rule on mootness, thus:

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. 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 is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

A perusal of the cases cited, however, readily reveals that the subject matters thereof involved jusiticiable controversies. In Dela Camara, for example, there was the challenged order approving an application for bail bond but at an excessive amount. The case was rendered moot by the issuance of a subsequent order reducing the amount. In Gonzales, the petition questioning the validity of the creation of the CCP Complex by then President Marcos via a executive order which was viewed as a usurpation of legislative power was mooted by the issuance of a presidential decree upon the declaration of martial law. In Lacson, assailed was the issuance of Proclamation No. 36 declaring a state rebellion; in Albania, the petition to nullify the decision of the COMELEC annulling the proclamation of petitioner as municipal mayor was rendered moot by the election and proclamation of a new set of municipal officers; in Acop, the petition to exclude two police officers from the Witness Protection Program was rendered moot by the fact that the coverage of the two officers under the program was terminated; and in David, the petition challenging the validity of Presidential Proclamation (PP) 1017 declaring a state of emergency was rendered moot by the issuance of PP 1021 declaring that the state of national emergency has ceased.

The element of justiciable controversy is palpably absent in the petitions at bar. For, as earlier explained, there is really no MOA-AD to speak of since its perfection or effectivity was aborted by supervening events, to wit: the TRO the Court issued enjoining the Kuala Lumpur signing of the MOA and the subsequent change of mind of the President not to sign and pursue the covenant. To repeat, there is, from the start, or from the moment the first petition was interposed, no actual justiciable controversy to be resolved or dismissed, the MOA-AD having been unsigned. Be that as it may, there can hardly be any constitutional issue based on actual facts to be resolved with finality, let alone a grave violation of the Constitution to be addressed. Surely the Court cannot reasonably formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar based on a non-existing ancestral domain agreement or by anticipating what the executive department will likely do or agree on in the future in the peace negotiating table.

Some of my esteemed colleagues in the majority have expressed deep concern with the ramifications of a signed MOA-AD. Needless to stress, their apprehension as to such ramifications is highly speculative. Thus, judicial inquiry, assuming for the nonce its propriety, has to come later, again assuming that the peace instrument is eventually executed and challenged. At its present unsigned shape, the MOA-AD can hardly be the subject of a judicial review.

The allegations of unconstitutionality are, for now, purely conjectural. The MOA-AD is only a part of a lengthy peace process that would eventually have culminated in the signing of a Comprehensive Compact. Per my count, the MOA-AD makes reference to a Comprehensive Compact a total of eight times. The last paragraph of the MOA-AD even acknowledges that, before its key provisions come into force, there would still be more consultations and deliberations needed by the parties, viz:

Matters concerning the details of the agreed consensus [point] on Governance not covered under this Agreement shall be deferred to, and discussed during, the negotiations of the Comprehensive Compact.

Separation of Powers to be Guarded

Over and above the foregoing considerations, however, is the matter of separation of powers which would likely be disturbed should the Court meander into alien territory of the executive and dictate how the final shape of the peace agreement with the MILF should look like. The system of separation of powers contemplates the division of the functions of government into its three (3) branches: the legislative which is empowered to make laws; the executive which is required to carry out the law; and the judiciary which is charged with interpreting the law.20 Consequent to the actual delineation of power, each branch of government is entitled to be left alone to discharge its duties as it sees fit.21 Being one such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil,22 "will neither direct nor restrain executive [or legislative action]." Expressed in another perspective, the system of separated powers is designed to restrain one branch from inappropriate interference in the business,23 or intruding upon the central prerogatives,24 of another branch; it is a blend of courtesy and caution, "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other."25 But this is what the petitioners basically seek: through the overruling writs of the Court, to enjoin the Philippine Peace Negotiating Panel, or its equivalent, and necessarily the President, from signing the proposed MOA-AD and from negotiating and executing in the future similar agreements. The sheer absurdity of the situation where the hands of executive officials, in their quest for a lasting and honorable peace, are sought to be tied lest they agree to something irreconcilable with the Constitution, should not be lost on the Court.

Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace, insuring domestic tranquility26 and the suppression of violence are the domain and responsibility of the executive.27 Now then, if it be important to restrict the great departments of government to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that one branch should be left completely independent of the others, independent not in the sense that the three shall not cooperate in the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by or subjected to the influence of either of the branches.28

Favorably accommodating the petitioners under the premises cannot but be viewed as a indirect attempt on the part of the Court to control and dictate on the peace prerogatives of the executive branch, and in the process unduly impairing that branch in the performance of its constitutional duties. It will distort the delicate balance of governance which the separation of powers seeks to safeguard.

One Last Word

The Executive Secretary has categorically declared that the government will not sign the MOA-AD,29 which, as couched, may indeed be constitutionally frail or legally infirm. But the more important point is that the challenged agreement is an unsigned document without effect and force whatsoever. It conveys no right to and imposes no correlative obligation on either negotiating party. As an unsigned writing, it cannot be declared unconstitutional, as some of my colleagues are wont to do.

Accordingly, I vote to DENY the petitions. The factual and legal situations call for this disposition.

Endnotes:


1 Angara v. Electoral Commission, 63 Phil. 139 (1936).

2 People v. Vera, 65 Phil. 50 (1937).

3 DBM v. Kolonwel Trading, G.R. NOS. 175608, 175616, June 8, 2007.

4 Valenzuela v. Court of Appeals, 363 SCRA 779; Metropolitan Bank and Trust Co., v. Alejo, 364 SCRA 812 (2001).

5 Per statement made by Solicitor General Agnes Devanadera during the Oral Arguments on August 28, 2008.

6 Guingona v. Court of Appeals, G.R. No. 125532. July 10, 1998, citing cases.

7 43 SCRA 77, cited in De Leon, Philippine Constitutional Law, Vol. II, 2004 ed., p. 434.

8 Guingona v. Court of Appeals, G.R. No. 125532. July 10, 1998, citing Cruz, Philippine Political Law, 1955 ed., pp. 241-42; John Hay People's Alterntive Coalition v. Lim, G.R. No. 119775, October 24, 2003.

9 Ticzon v. Video Post Manila, Inc. G.R. No. 136342. June 15, 2000, citing Bacolod-Murcia Planters' Association, Inc. v. Bacolod-Murcia Milling Co., Inc., 30 SCRA 67, 68-69, October 31, 1969.

10 See Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Ed.

11 Philippine Airlines v. Pascua, 409 SCRA 195.

12 Vda. De Davao v. Court of Appeals, 426 SCRA 91 (2004), citing cases.

13 Ticzon v. Video Post Manila, Inc., supra, citing ABS-CBN Broasting Corporation v. Comelec, GR No. 133486, January 28, 2000; Salonga v. Cruz-Pano, 134 SCRA 438, February 18, 1985.).

14 41 SCRA 1.

15 65 SCRA 624.

16 357 SCRA 756.

17 435 SCRA 98.

18 383 SCRA 577, citng Viola v. Alunan III, 276 SCRA 501.

19 G.R. NOS. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 3, 2006, 489 SCRA 160.

20 Black's Law Dictionary, 6th ed., p. 1305.

21 Tan v. Macapagal, 43 SCRA 677.

22 67 Phil. 62.

23 Younstown Sheet & Tube Co. v. Sawyer, 343 US 528, 635 (1952).

24 U.S. Munoz-Flores, 495 US 385.

25 Buckley v. Valeo, 424 US 1.

26 Marcos v. Manglapus, 177 SCRA 668.

27 Sec. 18, Art. VII of the Constitution charges the President, as Commnader in Chief of the Armed Forces of the Philippines, the duty of preventing or suppressing lawless violence, invasion or rebellion.

28 O'Donaghue v. US, 289 U.U. 516 (1933).

29 Compliance dated September 1, 2008 of respondents.

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