04/02/2020
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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
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/47263
127/203
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