FOUNDING FATHER Joaquin Bernas, S.J. last month referred to the GRP MILF Memorandum of Agreement on Ancestral Domain (MOA-AD) as a “mere piece of paper.” Of course that was AFTER the MOA itself had been TRO’d by the Supreme Court and Fr. Bernas found himself in an embarrassing positiion since he was one of the “Constitutional Experts” that the Palace had gotten to place his Imprimatur and Nihil Obstat upon that MOA, before it was to be signed in Putrajaya, Malaysia with the international community looking on. His reputation and credibility are certainly in tatters now that that self-same Supreme Court has declared his “mere piece of paper” unconstitutional.
The President even claimed never to have seen the MOA in its final form, a dodge the good Father Bernas could unfortunately not claim.
But I find it disconcerting that out of what appears to be personal hubris and false pride, the good Father Bernas is now carping and meowing at the decision, trying desperately to make the case that it IS moot and academic (which would have been the greatest of face-saving outcome for him and President Gloria Macapagal Arroyo). I hope Bernas will rediscover humility and self-respect in this matter (very few really care that he was wrong, even if he’s gotta be feeling self-conscious as Dean of the Ateneo de Manila Law School — for being so obviously wrong and even a little flippant at that.) Let me say this in clearly and concisely: the issues raised by the MOA-AD are NOT moot and academic because the Mindanao peace process is not mood and academic.
[On a personal note, Rizalist has split from Philippine American Commentary and has started his own blog to concentrate on religious, cultural and literary issues. Please visit The Rizalist Press!
So, it bears repeating WHY the Supreme Court thinks the matter is NOT moot and academic, and upon which it discourses at length to make the following main salient points: (1) The issue is imbued with paramount public interest; (2) As an integral part of the broader Mindanao Peace Process, the MOA-AD is part of a continuing activity and could easily be resurrected in a different form with the same defects ("capable of repetition but evading judicial review") ; and (3) the Supreme Court must therefore hand down guidelines and principles for the proper conduct of the the peace process itself--under the Constitution. The crucial national and public interest involved -- which Fr. Bernas tries mightily to obscure in his Inquirer column today -- are presented by the Supreme Court in the section titled PETITIONS NOT MOOTED.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court’s issuance of a Temporary Restraining Order.
Contrary too to respondents’ position, the MOA-AD cannot be considered a mere “list of consensus points,” especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these “consensus points,” foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD,[102] the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country’s territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.[103] where the Court did not “pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole.”
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two parties—the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy.The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that “no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD],” mootness will not set in in light of the terms of the Tripoli Agreement 2001.Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government “is committed to securing an agreement that is both constitutional and equitable because that is the only way that long-lasting peace can be assured,” it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court’s attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of “capable of repetition yet evading review” can override mootness, “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.” They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases.[106] There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents’ actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.
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