Decide the MOA issues fully

MANILA, Philippines–Days after the Supreme Court issued a temporary restraining order stopping the signing of the memorandum of agreement on ancestral domain (MOA-AD), a prominent Cabinet member asked me what I thought of the tribunal’s action.

Gratitude to Court. I replied that President Macapagal-Arroyo should be grateful to the Court and the petitioners for saving her from embarrassment, and the country from civil strife, not to mention loss of face before the international community. I shall no longer detail the many detestable provisions of the MOA. They have been amply exposed, to the horror of the public, by the media reports on the Supreme Court hearings.

Suffice it to say that even Solicitor General Agnes Devanadera has disowned it, unabashedly saying, “no matter what the Supreme Court ultimately decides, the government will not sign the MOA in its present form or in any other form.” GMA affirmed this posture by dissolving the government’s peace panel to give way to her “new” policy of “disarmament, demobilization, and rehabilitation.”

Consequently, Devanadera asked for the dismissal of the petitions questioning the MOA. She argued that they have become moot since the MOA was legally dead. Hence, there was no more actual controversy to decide. With this legal maneuver, the administration hopes to avoid the ignominy of defeat at and chastisement by the Supreme Court.

As a rule, courts indeed do not decide hypothetical or academic questions that do not raise “actual controversies.” However, as exceptions to this rule, the Supreme Court has resolved public interest litigations that have technically been mooted by supervening events.

Exceptions to mootness rule. A recent exception is the landmark “David vs. Arroyo” decided on May 3, 2006. Recall that on Feb. 24, 2006, GMA issued Presidential Proclamation (PP) 1017 declaring a state of national emergency due to an alleged “conspiracy among some military officers, leftist insurgents – and members of the political opposition – to unseat or assassinate President Arroyo.”

One week later, after Randy David and others filed petitions challenging the proclamation, GMA issued a new edict lifting PP 1017 because “the state of national emergency has ceased to exist.” Due to this supervening event (the lifting of PP 1017), the solicitor general asked for the dismissal of the petitions since “there was no more actual case or controversy.”

However, the Court debunked the motion, saying that the “moot and academic principle is not a magical formula that can automatically dissuade the courts (from) resolving a case.” It then fearlessly declared unconstitutional major parts of PP 1017.

It also summarized the exceptions to the moot doctrine: “first, when there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when the constitutional issue raised requires (the) formulation of controlling principles to guide the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review.”

Another instance of a refusal to dismiss a mooted case is Javier vs. Comelec (Sept. 22, 1986). Here, Evelio Javier was brutally murdered before the Court could decide his petition challenging the decision of the Commission on Elections that proclaimed Arturo Pacificador as the alleged winner in the 1984 election for a seat in the Batasang Pambansa.

Said the tribunal, “(T)his Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic” due to Javier’s death. “(T)here are … times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged wrong, though gone, but also for the guidance of and as a restraint upon the future.”

Even the usually timid Marcos Supreme Court found the courage to chastise the government for filing baseless criminal charges against then opposition leader Jovito R. Salonga, even after the trial court preempted the high court by sneakily dismissing the charges on motion of then City Fiscal (now Presidential Legal Counsel) Sergio Apostol (Salonga vs. Pano, Feb. 18, 1985).

Most significant cases. After whetting the public appetite during three days of marathon hearings, the Supreme Court cannot starve the people by simply dismissing the MOA petitions on the puerile ground of mootness. Chief Justice Reynato S. Puno himself has said that these cases are the most significant during his watch. Thus, the Court should, as it has done in PP 1017, rule on the petitions fully.

True, a decision on the merits would expose lapses on the part of government and embarrass it. But the Court has no obligation to protect the administration. Its clear duty is to defend the Constitution, promote the rule of law and strike down gravely abusive actions. It should not let pass the recklessness, incompetence and opaqueness of our negotiators.

May our learned justices teach our government how to pursue peace with our Muslim brothers without risking the disenchantment of the vast majority of our people and subverting our greater national interest.

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Congratulations to Dr. Emmanuel L. Angeles and lawyer Jennifer J. Manalili who quietly took their oaths a few days ago as new Commission on Higher Education (CHEd) chair and Philippine Overseas Employment Administration (POEA) administrator respectively. More on them later.

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