Former Solicitor General Estelito Mendoza has asked the Supreme Court to dismiss the 29 petitions seeking to declare the Anti-Terrorism Act of 2020 as unconstitutional, claiming those lacked “actual controversy.”
“The petitions do not sufficiently allege, much less show, that the petitioners have committed any act in violation of the Anti-Terrorism Act, thereby creating an ‘actual controversy’ involving a legally demandable and enforceable right for the exercise of judicial power under… the Constitution,” Mendoza said.
He asked the 15-member bench to allow him to act as “amicus curiae” or “friend of the court” during the oral arguments and resolution of the petitions against the ACA or Republic Act 11479.
“This does not preclude the institution and consideration by the SC of an action questioning an act allegedly committed against the petitioners, in violation of the Anti-Terrorism Act on the ground that the act is in violation of the Constitution, or a provision thereof ‘as applied,’” Mendoza said.
Besides being a solicitor general during the administration of President Ferdinand Marcos, Mendoza also served as minister of Justice and governor of Pampanga.
As of Aug. 19, 29 petitions had been filed with the high court seeking to nullify the ATA, which became a law on July 3 and was implemented starting July 18.
The high court has required the respondents in the petitions, at least on 20 of them, to file their comments both on the main petitions and on the pleas for a temporary restraining order.
Solicitor General Jose Calida, acting as counsel for the respondents in the Executive department, has sought the dismissal of the first eight petitions. He has yet to file comments on the other petitions as required by the high court.
The high court has decided to conduct oral arguments on the petitions “on the third week of September at the earliest, and proper notices will be issued once the date is finalized.”
Under the Rules of Court, an “amicus curiae” may be invited by the court to appear and help in the disposition of the issues submitted to it.
Mendoza claimed that, “as a member of the Bar and a citizen of the Republic, it is my duty to assist in the resolution of the issues raised in the petitions” filed against the anti-terrorism law.
Of the 29 petitions, Mendoza cited two cases—those filed by former high court Senior Associate Justice Antonio T. Carpio and former Associate Justice and Ombudsman Conchita Carpio Morales, and by the faculty members of the University of the Philippines College of Law—“to be considered a microcosm of the numerous petitions… assailing the constitutionality of the ‘Anti-Terrorism Act’ and its various provisions.”
Among other things, the two petitions against the ATA claims that several provisions “violate the constitutional guarantees of due process and the right to association… due process, free speech… and grants law enforcers unbridled discretion to define criminal conduct.”
However, Mendoza said while the high court may dispense with the requirements under the Rules of Court, “on the ground that the law involved and its alleged violations are of critical public importance and interest and that therefore the court may assume jurisdiction notwithstanding… we submit, however, that the Court would be ill-advised to do so.”
He said the enactment of the ATA under Republic Act 11479 “is without or in excess of jurisdiction or with grave abuse of discretion.”
Mendoza said that, while the petitions alleged that Sections 3, 4, 5, 9, 10, 16, 17, 25, 26, 29 and 54 “are null and void for being ‘repugnant to the 1987 Philippine Constitution,’ the petitions do not allege the commission of any act described therein by any person represented by the petitioners.
“Indeed, generalization of positions or defenses such as what is now been mounted by the petitioners, particularly that the ‘Anti-Terrorism Act is void on its face’ without any evidence or even an allegation of the commission of any act, on its face does not comply with the requirements for the exercise of judicial power under Article VIII of the Constitution …” Mendoza said.
“Where what is involved is a penal law which may not exist without the commission of any act, and no act is alleged to have been committed, there can be no ‘ACTUAL CONTROVERSY involving rights which are legally demandable and enforceable;’ nor a determination of whether the enactment of the law or any power conferred therein amounts to a ‘grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government’ warranting the exercise of judicial power.”
Mendoza recalled that during Martial Law when he was solicitor general, “the arrest and detention of persons on orders of the President or his representatives was that their arrest and detention may not be inquired into by the court on the ground that such matters involve a political question.”
