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Cotabato v GRP - Tinga Opinion

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  Province of Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP)   G.R. No. 183591. Oct. 14, 2008. Separate Opinion. Tinga,  J.   Ziel Cabreros   Law 121 –  Consti Law 1   Group B5      MOOT AND ACADEMIC. As a matter of law, the petitions were mooted by the unequivocal decision of the PH Gov ’ t, through President [Arroyo], not to sign the challenged Memorandum of Agreement on Ancestral Domain (MOA-AD)   o   Correct course of action for the Court is to dismiss the petitions o   NO MORE ACTUAL CONTROVERSY. The writ of prohibition under Rule 65 sought by the petitioners has already materialized with the Philippine government’s voluntary yet unequivocal desistance from signing the MOA -AD, thereby depriving the Court of a live case or controversy to exercise jurisdiction upon o   A usual exception to the moot and academic principle is where the case is capable of repetition yet evading review o   Assuming that the act can be repeated at all, it cannot be repeated with any ease, there being too many cooks stirring the broth. And further assuming that the two sides are able to negotiate a new MOA-AD, it is highly improbable that it would contain exactly the same provisions or legal framework as the discarded MOA-AD    BUT: Tinga said it is “ impolitic to simply vote for the dismissal the cases at bar without further discourse in view of their uniqueness in two aspects. ”   o   MILF is at the center of and is a party to the MOA-AD was not impleaded before MOA-AD was forsaken o   “ And while the unimpleaded party [the MILF] is neither a state nor an international legal person, the cases are laden with international law underpinnings or analogies which it may capitalize on to stir adverse epiphenomenal consequences . ”      Tinga observed that there may be a “tenuous linkage” between  reported claims of MILF that the MOA-AD is already effective and the fact that the MOA-AD, though unsigned, bears the initials of the parties involved (members of GRP, the MILF negotiating panel, and the peace negotiator of the Malaysian government); thus, though mooted by President Arroyo ’s desistance from signing the challenged MOA-AD, the present petitions merit an extended discussion o   The MILF is not a party to these petitions, and thus its position that the MOA-AD was in fact already signed through the initials has not been formally presented for the Court for adjudication    o   The unqualified dismissal of the petitions for mootness will not preclude the MILF from presenting the claim that the MOA-AD has indeed already been signed and is therefore binding on the Philippine government . These concerns would especially be critical if either argument is later presented before an international tribunal, that would look to the present ruling of this Court as the main authority on the status of the MOA-AD under Philippine internal law o   Should this matter ever be referred to an international tribunal for adjudication, it is highly probable that a ruling based on mootness alone without more would be taken as an indicative endorsement of the validity of the MOA under Philippine law.  That misimpression should be rectified for purposes that transcend the ordinary adjudicative exercise    OTHER ISSUES/HELD/RATIO o   Is the MILF correct when it asserted that the MOA-AD may already be considered as binding on the Philippine government? NO, it was not yet signed.    the affixation of signatures to the MOA-AD was a distinct procedure from the affixation of initials to the pages of the document. Only initialing was done as witnessed by Malaysia ’s Razak      it is unequivocal from the document that the MOA-AD was to take effect upon the affixation of signatures on 5 August 2008 in Kuala Lumpur, Malaysia, and not through the preliminary initialing of the document on 27 July 2008 o   Could the PH be considered as being bound by the MOA under international law? NO, initialing has no binding effect.    Justice Morales (the author of the majority opinion) has exhaustively and correctly debunked the proposition that the MOA-AD can be deemed a binding agreement under international law, or that it evinces a unilateral declaration of the Philippine government to the international community that it will grant to the Bangsamoro people all the concessions stated in the MOA-AD    The fact that the MOA-AD reflects an initialing process which is independent of the affixation of signatures, which was to be accomplished on a specific date which was days after the MOA-AD was initialed, plainly indicates that the parties did not intend to legally bind the parties to the MOA through initialing. There is no cause under international law to assume that the MOA-AD, because it had been initialed, was already signed by the Philippine Government or the MILF even o   Assuming the initialing has a binding effect, will the MOA-AD be held not unconstitutional? NO, it violates the PH Constitution.       For the BJE to gain legal recognition under the Constitution, it must be identifiable as one of the recognized political subdivisions ordained in the Constitution. That is not the case. In fact, it is apparent that the BJE would have far superior powers than any of the political subdivisions under the Constitution, including the autonomous regional government for Muslim Mindanao    MOA-AD intends to empower the BJE to create a broader-based judicial system with jurisdiction over matters such as criminal law or even political law.    MOA-AD would empower the BJE to build, develop and maintain its own civil service. o   Constitution mandates the CSC to administer the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government    The BJE is likewise authorized to establish its own electoral institutions. o   Under the Constitution, it is the COMELEC which has the exclusive power to enforce and administer election laws.    BJE is vested with jurisdiction, power and authority over land use, development, utilization, disposition and exploitation of natural resources within that territory. To that end, the BJE is empowered “to revoke or grant forest concessions, timber license, contracts or agreements in the utilization and exploitation of natural resources. ” o   These powers, which are unavailable to any of the political subdivisions, are reserved under the Constitution to the Republic as the owner of all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources.    MOA- AD even assures that “the Central Government shall take necessary steps to ensure the Bangsamoro juridical entity’s participation in international meetings and event s. o   These terms effectively denote a concession on the part of the Republic of the Philippines of a segregate legal personality to the BJE before international fora    GRP member Atty. Sedfrey Candelaria ’ s admission during the oral arguments that the implementation of the MOA-AD would require amendments to the Constitution effectively concedes that the MOA-AD is inconsistent with  the Constitution, and thus cannot acquire valid status under Philippine law    Nothing wrong with the notion on the part of the GRP that the price for peace in Mindanao is the amendment of the Constitution, but any binding commitment to amend the charter must be intensely scrutinized    Charter change can only come from the political institutions and the sovereign people who are empowered by the charter to amend the Constitution    POWER TO AMEND THE CONSTITUTION VESTED IN CONGRESS. The President nor any other member or office of the executive branch does not have the power to effect changes to the Constitution even if he wanted to in the paramount interest of the country and of the people.   o   Any commitment to any entity on the part of the President or his political appointees to amend the Constitution is inherently ultra vires , because the Executive Branch does not have the innate power to effectuate such changes on its own. Neither does the President have the power to bind to positive action those whom the Constitution entrusts the power to amend the charter, namely; the Congress, the delegates to a constitutional convention, and the electorate o   Since constitutional amendments are involved, the ability of the executive branch to undertake any legally binding commitment to amend the Constitution can only be recognized, if at all, with the prior appropriate authorization of Congress, acting with the specified majorities provided in Section 1(1), Article XVII of the Constitution
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