THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS

SACDALAN and/or VICE-GOVERNOR EMMANUEL PI?OL, 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, 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
(OPAPEOPLE) or the so-called Office of the Presidential Adviser on the Peace
Process, Respondents. [ SEPARATE OPINION CHICO-NAZARIO, J. ]
2008-10-14 | G.R. No. 183591
SEPARATE OPINION
CHICO-NAZARIO, J.:
The piece of writing being assailed in these consolidated Petitions is a peace negotiation document,
namely the Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement of Peace of 2001 (MOA). The Solicitor General explained that this document, prepared by
the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro
Islamic Liberation Front (MILF) Peace Panel, was merely a codification of consensus points reached
between both parties and the aspirations of the MILF to have a Bangsamoro homeland.[1] Subsequently,
the Solicitor General moved for the dismissal of the consolidated cases at bar based on changed
circumstances as well as developments which have rendered them moot, particularly the Executive
Department's statement that it would no longer sign the questioned peace negotiation document.[2]
Nonetheless, several parties to the case, as well as other sectors, continue to push for what they call a
"complete determination" of the constitutional issues raised in the present Petitions.
I believe that in light of the pronouncement of the Executive Department to already abandon the MOA,
the issue of its constitutionality has obviously become moot.
The rule is settled that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the court unless there is compliance with the legal requisites for judicial
inquiry, namely: that the question must be raised by the proper party; that there must be an actual case
or controversy; that the question must be raised at the earliest possible opportunity; and, that the
decision on the constitutional or legal question must be necessary to the determination of the case itself.
But the most important are the first two requisites.[3]
For a court to exercise its power of adjudication, there must be an actual case or controversy - one which
involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution;
the case must not be moot or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice. A case becomes moot and academic when its purpose has become
stale.[4] An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become academic or dead or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again
between the parties. Simply stated, there is nothing for the court to resolve as the determination thereof
has been overtaken by subsequent events.[5]
Such is the case here.
The MOA has not even been signed, and will never be. Its provisions will not at all come into effect. The
MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of
paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any
right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on.
They no longer present an actual case or a justiciable controversy for resolution by this Court.
An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite

legal claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable
controversy is distinguished from a hypothetical or abstract difference or dispute, in that the former
involves a definite and concrete dispute touching on the legal relations of parties having adverse legal
interests. A justiciable controversy admits of specific relief through a decree that is conclusive in
character, whereas an opinion only advises what the law would be upon a hypothetical state of facts.[6]
For the Court to still rule upon the supposed unconstitutionality of the MOA will merely be an academic
exercise. It would, in effect, only be delivering an opinion or advice on what are now hypothetical or
abstract violations of constitutional rights.
In Abbas v. Commission on Elections,[7] the 1976 Tripoli Agreement and Republic Act No. 6734 (the
Organic Act for the Autonomous Region in Muslim Mindanao) were challenged for purported violations of
the provisions of the Constitution on freedom of religion. The Court held therein that it should not inquire
into the constitutionality of a peace agreement which was already consummated (the 1976 Tripoli
Agreement) and an Organic Act which was already passed into law (R.A. No. 6734) just because of
potential conflicts with the Constitution. Then, with more reason should this Court desist from ruling on
the constitutionality of the MOA which is unsigned, and now entirely abandoned, and as such, cannot
even have any potential conflict with the Constitution.
The Court should not feel constrained to rule on the Petitions at bar just because of the great public
interest these cases have generated. We are, after all, a court of law, and not of public opinion. The
power of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or
addressing public clamor. In acting on supposed abuses by other branches of government, the Court
must be careful that it is not committing abuse itself by ignoring the fundamental principles of
constitutional law.
The Executive Department has already manifested to this Court, through the Solicitor General, that it will
not sign the MOA in its present form or in any other form. It has declared the same intent to the public.
For this Court to insist that the issues raised in the instant Petitions cannot be moot for they are still
capable of repetition is to totally ignore the assurance given by the Executive Department that it will not
enter into any other form of the MOA in the future. The Court cannot doubt the sincerity of the Executive
Department on this matter. The Court must accord a co-equal branch of the government nothing less
than trust and the presumption of good faith.
Moreover, I deem it beyond the power of this Court to enjoin the Executive Department from entering
into agreements similar to the MOA in the future, as what petitioners and other opponents of the MOA
pray for. Such prayer once again requires this Court to make a definitive ruling on what are mere
hypothetical facts. A decree granting the same, without the Court having seen or considered the actual
agreement and its terms, would not only be premature, but also too general to make at this point. It will
perilously tie the hands of the Executive Department and limit its options in negotiating peace for
Mindanao.
Upon the Executive Department falls the indisputably difficult responsibility of diffusing the highly volatile
situation in Mindanao resulting from the continued clashes between the Philippine military and Muslim
rebel groups. In negotiating for peace, the Executive Department should be given enough leeway and
should not be prevented from offering solutions which may be beyond what the present Constitution
allows, as long as such solutions are agreed upon subject to the amendment of the Constitution by
completely legal means.
Peace negotiations are never simple. If neither party in such negotiations thinks outside the box, all they
would arrive at is a constant impasse. Thus, a counsel for one of the intervenors who assert the
unconstitutionality of the MOA[8] had no choice but to agree as follows:
ASSOCIATE JUSTICE QUISUMBING: Well, we realize the constitutional constraints of sovereignty,
integrity and the like, but isn't there a time that surely will come and the life of our people when they have
to transcend even these limitations?
DEAN AGABIN: Yes, we have seen it happen in several instances, Your Honor.
xxx
ASSOCIATE JUSTICE QUISUMBING: And in pursuit of that purpose, the Supreme Court cannot look

beyond the horizon and look for more satisfying result?

DEAN AGABIN: Well, if you mean by looking beyond the horizon, it would mean a violation of the
provisions of the Constitution, then it should not be, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: In some part, we have gone to Malaysia. We have gone to the
OIC, and we have even gone to Libya.
DEAN AGABIN: Yes, Your Honor. But in all these, we have always insisted on preserving the territorial
integrity of the country.
ASSOCIATE JUSTICE QUISUMBING: And this dicta or [dogma] is unassailable forever. There cannot
be an exception.
DEAN AGABIN: It is unassailable under the present Constitution, Your Honor.
ASSOCIATE JUSTICE QUISUMBING: But, at least, you can also agree that the Constitution ought to be
changed in order for a country to fulfill its internal obligation as a matter of necessity.
DEAN AGABIN: Yes, if the people so will it, your Honor.
ASSOCIATE JUSTICE QUISUMBING: You remember how the emperor of Japan lost his divinity? They
just changed their Constitution, isn't it?
DEAN AGABIN: Yes, it was enforced upon him by Mr. McArthur, and they have no choice.
ASSOCIATE JUSTICE QUISUMBING: Isn't that a very good example of thinking outside the box?
That one day even those who are underground may have to think. But frankly now Dean, before I
end, may I ask, is it possible to meld or modify our Constitutional Order in order to have some
room for the newly developing international notions on Associative Governance Regulation
Movement and Human Rights?
DEAN AGABIN: Yes. It is possible, Your Honor, with the consent of the people.
ASSOCIATE JUSTICE QUISUMBING: And, therefore, we vote it to a referendum or any consultation
beforehand?
DEAN AGABIN: If there is such a proposal for or amendment or revision of the Constitution, yes, Your
Honor.
ASSOCIATE JUSTICE QUISUMBING: So, either initiative or CHA-CHA or CON-AS?
DEAN AGABIN: Yes, Your Honor.[9]
It must be noted that the Constitution has been in force for three decades now, yet, peace in Mindanao
still remained to be elusive under its present terms. There is the possibility that the solution to the peace
problem in the Southern Philippines lies beyond the present Constitution. Exploring this possibility and
considering the necessary amendment of the Constitution are not per se unconstitutional. The
Constitution itself implicitly allows for its own amendment by describing, under Article XVII, the means
and requirements therefor. In Tan v. Macapagal,[10] where petitioners claim that the Constitutional
Convention was without power to consider, discuss, or adopt proposals which seek to revise the
Constitution through the adoption of a form of government other than the form outlined in the then
governing Constitution, the Court ruled that:
[A]s long as any proposed amendment is still unacted on by [the Convention], there is no room for the
interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification
may the appropriate case be instituted. Until then, the Courts are devoid of jurisdiction. x x x.
At this point, there is far from a concrete proposed amendment to the Constitution which the Court can
take cognizance of, much less render a pronouncement upon.
At most, the Court can only exhort the Executive Department to keep in mind that it must negotiate and
secure peace in Mindanao under terms which are most beneficial for the country as a whole, and not just
one group of Muslim insurgents. Transparency and consultation with all major players, which necessarily
include affected local government units and their constituents, are essential to arrive at a more viable
and acceptable peace plan. The nature and extent of any future written agreements should be clearly
established from the very beginning, and the terms thereof carefully drafted and clearly worded, to avoid
misunderstandings or misconstructions by the parties and the public. If a document is meant to be a list
of consensus points still subject to further negotiations, then it should just simply state so.

As a final note, I find it necessary to stress that the Court must not allow itself to be mired in
controversies affecting each step of the peace process in Mindanao. It is not within the province or even
the competence of the Judiciary to tell the Executive Department exactly what and what not, how and
how not, to negotiate for peace with insurgents. Given this kind of situation where war and peace hang in
the balance, where people's lives are at stake, and the Executive Department, under its residual powers,
is tasked to make political decisions in order to find solutions to the insurgency problem, the Court
should respect the political nature of the issues at bar and exercise judicial restraint until an actual
controversy is brought before it.
In view of the foregoing, I vote for the GRANT of the Motion to Dismiss filed by the Solicitor General and,
accordingly, for the DISMISSAL of the Petitions at bar for being MOOT and ACADEMIC.
MINITA V. CHICO-NAZARIO
Associate Justice
Footnotes
[1] Respondent's Manifestation and Motion, 19 August 2008.
[2] Id.
[3] Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993, 225 SCRA
568, 575.
[4] Id.
[5] Santiago v. Court of Appeals, G.R. No. 121908, 26 January 1998, 285 SCRA 16, 22.
[6] Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998).
[7] G.R. Nos. 89651 & 89965, 10 November 1989, 179 SCRA 287.
[8] Dean Pacifico Agabin is the counsel for Intervenor Manuel A. Roxas III.
[9] TSN, pp. 603-611.
[10] 150 Phil. 778, 785 (1972).