04/02/2020
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Requirements of Ripeness and
Mootness are not bars to review
In contending that this Court should refrain from resolving the merits of the petitions
at bar, two principal defenses were deployed by the Solicitor General: the issues
raised for resolution are not ripe for adjudication and regardless of their ripeness,
are moot.
With due respect, the defenses cannot be sustained. To contend that an issue is not
ripe for adjudication is to invoke prematurity;[19] that the issue has not reached a
state where judicial intervention is necessary, hence, there is in reality no actual
controversy. On the other hand, to urge that an issue has become moot concedes
that judicial intervention was once proper but subsequent developments make
further judicial action unnecessary. Together, mootness and ripeness act as a twopronged pincer, squeezing the resolution of controversies within a narrow
timeframe.[20]
First, the issues at bar are ripe for resolution. In Ohio Forestry Ass'n Inc. v.
Sierra Club,[21] the following factors were identified as indicative of the ripeness of
a controversy:
1. Whether delayed review would cause hardship to the plaintiffs;
2. Whether judicial intervention would inappropriately interfere with further
administrative action;
3. Whether the Court would benefit from further factual development of the
issues presented;
Underlying the use of the foregoing factors is first, the setting of a threshold for
review and second, judicial application of the threshold to the facts extant in a
controversy. I respectfully submit that where a controversy concerns
fundamental constitutional questions, the threshold must be adjusted to allow
judicial scrutiny, in order that the issues may
be resolved at the earliest stage before anything irreversible is undertaken
under cover of an unconstitutional act. Schwartz cites one vital consideration
in determining ripeness, viz:
In dealing with ripeness, one must distinguish between statutes and other
acts that are self-executing and those that are not. If a statute is
self executing, it is ripe for challenge as soon as it is enacted. For
such a statute to be subject to judicial review, it is not necessary that it
be applied by an administrator, a prosecutor, or some other enforcement
officer in a concrete case.[22]
Although Schwartz employs the term "statute," he qualifies that the principle
enunciated applies to other governmental acts as well.[23]
Prescinding from these parameters, it is evident that the Court is confronted
with a MOA-AD that is heavily laden with self-executing components. Far
from the representation of the Solicitor General, the MOA-AD is not a mere
collection of consensus points,[24] still bereft of any legal consequence. The
commitments made by the government panel under the MOA-AD can be divided into
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