Moot but not academic

“Moot and academic” is a favorite phrase among law students. It describes a situation where a pending case in court loses its “justiciability” because it no longer presents a real problem as between the parties. Pursuant to the definition of judicial power in the Constitution, courts step in only if there is an “actual controversy involving rights which are legally demandable and enforceable.” With the lifting of Proclamation 1959, query as to whether the petitions questioning the validity of martial law in Maguindanao have become moot and academic?

Logically, the answer is yes because martial rule no longer exists. The problem has become hypothetical rather than real. However, this principle has not prevented the Supreme Court in the past from ruling on cases otherwise moot when the issue presented a “matter of transcendental significance” or is capable of being repeated again in the future. Moreover, our post-Edsa I Courts have not been shy in using their new oversight power pursuant to the 1987 Constitution “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government” to strike down acts of the Executive and Legislative branches.

On point is the 2006 case of David v. Arroyo where Presidential Proclamation 1017 declaring a “state of national emergency” was questioned before the High Tribunal. While in deliberations, the proclamation was recalled, yet this did not stop the Court from declaring it unconstitutional, reasoning “there is no guarantee that PP 1017 or one similar to it, will not be issued again.”

Indeed, the Court will miss a unique pedagogical opportunity if it does not rule on these cases “on the merits.” There remain a lot of loose ends insofar as its actual scope and effects. As queried in last week’s column, does a state of martial law authorize our law enforcement officers to conduct warrantless arrests and searches? And while PP 1959 has been recalled, PP 1946 which placed the provinces of Maguindanao, Sultan Kudarat and Cotabato City under a “state of emergency” is still in effect. What are the practical differences among a state of emergency, a state of rebellion and martial law? What can the authorities do and not do under each?

If the Supreme Court takes up the challenge (and I am willing to wager my four centavos they will) to decide on the merits of the petitions, they will be treading on virgin ground. Some form of judicial legislation may be unavoidable but that may be better than continuing to keep the nation in the dark. At some point, however, Congress should take it upon itself to pass legislation that would codify the scope and effects of martial law.

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Blessing in disguise: The recent decision of the COMELEC to disqualify Nicanor Perlas, Danny Lim and Danton Remoto may turn out to be a blessing in disguise for these candidates. With the decision, they were able (and will have the opportunity) to obtain valuable air time and grab a few front page spots. To be fair, COMELEC has a valid police power objective in weeding out “nuisance” candidates and trimming the length of the ballot to help ensure orderly elections. And while a citizen has a Constitutional right to vote, he does not have a Constitutional right to be voted for.

But COMELEC has to formulate clear guidelines on how it determines who can run. If then Captain Antonio Trillanes was allowed to run in 2007 (and win with more than 11 million votes), why should General Lim not be given a shot (no pun intended) at a Senate seat? The COMELEC standard of “being able to wage a nationwide campaign” is nebulous and imprecise. Perhaps COMELEC can explore the possibility of “penalizing “ instead of outrightly preventing potential candidates from running. For example, can it require candidates to post a bond which can be drawn by COMELEC in case a candidate does not reach a certain number of votes? Of course, the potential blessing for Perlas, Lim and Remoto will only be realized if they are able to overturn the COMELEC decision.

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I told you so!: The recent Supreme Court decision penned by Justice Conchita Carpio Morales directing the COMELEC to “proceed with dispatch in reopening the registration of voters and holding the same until January 9, 2010” came as a surprise to many, including the COMELEC. But not to this column. In its November 7 piece entitled “Failure of registration”, it opined that “protecting and ensuring a Filipino’s right to vote cannot be overemphasized as leadership in our democratic system is not bestowed by Divine mandate but by the Vox populi.” It then encouraged the COMELEC to extend voter registration, seek the assistance of media to publicize the event and invite NGOs like the PPCRV to help in the registration. Just like the relief efforts for the typhoon victims, I am certain that many organizations in the private sector would be more than willing to assist in this noble undertaking.

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One centavo this week goes to this column’s previously tenant, Fr. James Reuter, S.J., who was recently conferred the Serviam (Latin for “I will serve”) Award, the highest honor bestowed by the Philippine Catholic Church. In presenting the award, Manila Archbishop Gaudencio Cardinal Rosales cited Reuter for his work with the “church, communities, schools and young people in the Philippines and across Asia using broadcasting, theater and his writings.” Presentation of the awards coincided with the third anniversary of TV Maria, a television network of the CBCP, which Reuter founded and guided in its early years. Even if he is confined indoors, the 93-year old prelate continues to inspire with his words of wisdom. When asked what the secret to a beautiful life is, Reuter encourages each one of us to “Love what he have to do and always love the people that we work with.” A fitting thought as I wish each of you a Christmas filled with joy.

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“What can I give Him, poor as I am?

If I were a shepherd, I would bring a lamb;

If I were a wise man, I would do my part;

Yet what I can I give Him: give my heart.” — Christina Rossetti

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