Judging without deciding

Solicitor General Francis Jardeleza, the Harvard-educated and bar-topnotcher counsel of the Republic, argued in the Supreme Court that (1) the President “authorized the disbursements under the DAP (Disbursement Acceleration Program),” (2) the “disbursements [had] an appropriation cover,” and (3) “the government [had] sufficient savings to support these disbursements.”

Moot and academic. In short, he concluded, “there were actual savings which the President himself authorized to augment existing items in the GAA (General Appropriations Act).” Ergo, the DAP is constitutional.

Nonetheless, he added, “the circumstances that justified the creation of DAP no longer obtain… DAP … lapsed into complete disuse in 2013 and became functus officio… DAP … no longer exists, thereby mooting the present cases.” Should the Court adjudicate the cases by dismissing them without deciding the constitutional issues, because they have become moot and academic?

As a rule, Philippine (and US) courts decide issues “on their merit” only when they present an “actual case or controversy” that involves a “conflict of legal rights … susceptible of judicial resolution … not mooted by supervening events.” Unlike judiciaries in Europe, our judges are not authorized to render “advisory opinions… They do not adjudicate academic or hypothetical or anticipatory questions, no matter how intellectually challenging.”

Moreover, “courts will not pass upon a constitutional question unless it is the  lis  mota  of the case, or if the case can be disposed of on some other grounds,” like its having become moot and academic.

Capable of repetition. Jurisprudence, however, has carved clear exceptions to this general rule, the most cited being “when the case is capable of repetition yet evading review.”

A good example is David vs Arroyo (May 3, 2006, per Justice Angelina Sandoval Gutierrez). On Feb. 24, 2006, then President Gloria Macapagal-Arroyo issued Presidential Proclamation 1017 declaring a “state of national emergency” that resulted in, among others, the warrantless arrest of many, including columnist Randy David and Akbayan president Roland Llamas, as well as in the pillage of the Tribune and the Malaya.

A week later, on March 3, 2006, President Arroyo lifted PP 1017. Thus, the government asked the Court to dismiss the petitions assailing the constitutionality of PP 1017 on the ground that the lifting had mooted the constitutional issues.

The Court, voting 11-3 (with one on leave), refused, reasoning that while the lifting rendered the issues moot and academic, the President’s act is capable of repetition while evading judicial review by the expediency of its lifting. Constitutional rights have been violated and private parties suffered as a result.

The Gutierrez ponencia rhapsodized: “The Court has the duty to formulate guiding and controlling constitutional precepts, doctrines and rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police on the extent of the protection given by constitutional guarantees.”

At other times, the Court followed the general rule. In Lacson vs Perez (May 10, 2001, per Justice Jose A. R. Melo), President Arroyo, “faced by an angry and violent mob … assaulting and attempting to break into Malacañang” (in what some call “Edsa 3”), issued Proclamation 38 declaring a “state of rebellion…”

On May 6, 2001, she lifted the proclamation. Thus, the government asked the Court to dismiss all petitions brought by Panfilo Lacson et al., challenging the constitutionality of the presidential order.

Voting 7-4 (with four on leave), the Court threw out the petitions because the lifting rendered them moot and academic, saying that the petitioners, not having been arrested without warrant as they had feared, suffered no damage. Further, the mooting changed their nature to one for declaratory relief over which the Supreme Court had no original jurisdiction. Nevertheless, it “enjoined [the government] from arresting petitioners … without the required judicial warrants…”

Later on, in Sanlakas vs Executive Secretary (Feb. 4, 2004, per Justice Dante O. Tinga), President Arroyo issued Proclamation 427 on July 27, 2003, declaring (again) a “state of rebellion” after some 300 military personnel “stormed into the Oakwood Premier apartments in Makati City … bewailing corruption…” and “demanded, among other things, the resignation of the President…”

Though the proclamation was lifted on Aug. 1, 2003, thereby mooting the petitions, the Tinga ponencia tackled the constitutional issues head-on. It held that while the Constitution does not expressly grant the President the power to declare a state of rebellion, such prerogative “springs in the main from her powers as chief executive and … draws strength from her Commander-in-Chief powers.”

Three justices joined the ponencia unconditionally; one conditionally via a separate opinion; and three others only “in the result.” Three voted to dismiss the petitions on the sole ground of mootness while two dissented, saying the proclamation was void. One was on leave. One seat was vacant.

The foregoing shows that the Court tackled the “moot and academic” defense in varying ways depending on the peculiarities of each case. Readers may draw their own conclusions. As a retired jurist, I would not venture an opinion till after the DAP cases are heard in full. Note that the oral argument will continue on Feb. 18. Abangan!

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