MANILA, Philippines — Citing the Anti-Terrorism Act’s effects on freedom of expression, petitioners mounted a facial challenge against the law, with the first legal challenge against lodged less than 24 hours since the Palace’s announcement of its signing.
During the first day of oral arguments on the anti-terrorism law, Associate Justice Marvic Leonen however questioned whether they were right to knock on the gates of the high court immediately when they have yet to suffer a direct injury under the assailed law.
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“There is this case about the Aetas… Isn’t that the actual case?” Leonen asked University of the Philippines Constitutional law professor John Molo, one of the seven lawyers of the petitioners' legal team.
FOLLOW: LIVE: Oral arguments on petitions vs the anti-terrorism law
The justice was referring to the case of Aeta farmers Japer Gurung and Junior Ramos who are currently detained for violation of the anti-terrorism law. They were arrested on Aug. 21, 2020.
The two, represented by the National Union of Peoples’ Lawyers, had asked the SC to allow them to join the petitions only on Tuesday morning, hours before the oral arguments. The SC has also yet to rule on their plea.
“The Aetas were charged with provisions of terrorism, provisions that are found under RA 111479 isn't that the actual case? Isn't that the perfect case that will delimit the actual challenge to clear provisions in the challenge to clear provisions in the constitution based upon clear facts,” Leonen said.
READ: Two Aeta farmers, 'first casualties' of anti-terrorism law, seek to join legal fight in SC
The justice pressed: “Isn’t it the role of the Judiciary to give a chance to the political department to be able to address the harm they wish to address before we come out immediately on a theoretical point to annul that provision?”
But Molo asserted: “Your honor, my humble submission is that deference, judicial restraint, ends where the Bill of Rights begins.”
Legal standing
Even with more than 30 other legal challenges were later filed, Solicitor General Jose Calida, in his submissions to the SC defending the law, said all petitioners’ invocation of imminent danger without direct injury and personal stake does not justify their lack of legal standing.
Calida, in his supplemental comment, also said failure to comply with the doctrine of hierarchy of courts may cause the dismissal of the petition.
The petitioners had brought to the SC the rampant red-tagging in the country where activists and critics have been labelled as communists or terrorists, as well as history of prejudice Moros and indigenous peoples suffered that they said, put them at risk of possible abuse of the law.
Leonen said many SC justices, including him, understand the fear of the petitioners, noting that he too experienced them when he was a public interest lawyer.
“But with the hat now of a justice of this court, and with this judiciary, I think it is correct for us to assume that we should be careful not to become a political department. Is that not correct,” he asked Molo, who answered in the affirmative.
Leonen recalled the March 2019 case of Gios Samar where the SC has stressed the hierarchy of courts, which guides litigants as to the proper venue of appeals and/or the appropriate forum for the issuance of extraordinary writs.” He also mentioned the petition filed by lawyer Jesus Falcis on same-sex marriage where the SC, with Leonen as ponente, junked the plea as it presented “no case.”
The justice went on: “Should we not wait until there is a clear case perhaps there can be a petition filed on those that are red-tagged? And perhaps the facts should be very clear, go to a regional trial court first so that the regional trial court can weigh in by doing counsel? Can regional trial courts declare unconstitutionality of provision?”
But Molo asserted that the SC can step in their case. “Your honor there is already a clear conflict. There are two dimensions in this case, the civil liberties dimension which can be met by a facial challenge even within the parameters of Gios Samar and Southern Hemisphere.”
He added: “The operative fact in a facial challenge is the passage of the law,"
Leonen’s interpellation may continue next week, as the SC is set to resume the oral arguments on February 9.