SC must be apolitical on ATA issue, Leonen to petitioners

MANILA – Petitioners against the Anti-Terrorism Act (ATA) of 2020 have not yet established a clear case that would prompt the Supreme Court (SC) to strike down the controversial law, Associate Justice Marvic Leonen said on Tuesday.

“So, only in an actual case where it can be clear, there can be a clear and convincing demonstration that there is repugnancy with the specific text in the Constitution will there be an act of this Court,” Leonen said in interpellating lawyer Alfredo Molo III, one of the petitioners against the law, during the oral arguments on whether there is an actual case and controversy and sufficient facts that would warrant the Court’s action.

While saying he understands the position of many petitioners challenging the law, Leonen said the court should “be careful not to become a political department”.

“Not to substitute our political wisdom to the political wisdom of, let us say, those who have crafted this law, and those who have advised the President, including the National Security Adviser, and perhaps even to some key leaders of Congress,” he added.

Leonen added that the petitioners should have waited for their allegations to “ripen” into actual cases before filing a legal challenge before the courts.

When the magistrate asked Molo what facts can he present, the lawyer said “Congress, has in fact, passed a law that violates the Constitution”.

“We act as a third chamber of the legislature, over and above the approval power of the President when we act upon a law without the facts. Precisely, the judiciary was created to look at evidence that generates facts which may have been overlooked by the legislature and the President when they passed the law or to help clarify the text of the law,” Leonen said.

He added that in the absence of these facts, it is up to the President to pass implementing rules to guide the execution of a particular law.

“You want us to focus on the law and instead of giving liberality to the political departments to do what is right by the Constitution, you want us to give to exercise our power to jump the gun and simply say the law is unconstitutional, is not that correct?,” Leonen asked Molo.

He also urged Molo to only present irrefutable facts to the court.

“Come to court only if you have a freedom of expression case when you want a facial challenge. But show to us clearly and convincingly that the political departments cannot interpret it in any other way except to chill and to violate the right to freedom of expression,” he said.

Responding to Molo’s argument that the broad and vague definition of terrorism sends a chilling effect, Leonen cited the provisions of the 1939 Revised Penal Code on inciting to sedition which he described as “a bit broad” but it did not deter the public from staging the People Power Revolution in 1986 that led to the downfall of former president Ferdinand Marcos.

“Should there now be a sort of a limitation on what is meant by chill in terms of freedom expression?,” he said.

The magistrate added that the law is “even better” as it has provisions indicating acts that will not be considered as acts of terrorism.

“It carves out an exception and the carved out exception there is advocacy protests, dissent, stoppage of work, industrial or mass actions, etc, are not included in acts of terrorism. Isn’t this better?,” he asked Molo.

Molo disagreed saying the ATA is actually worse because now, “we have this definition of terrorism covering the exercise of civil and political rights”.

A total of 37 petitions were filed before the high court against the law seven months after it was enacted in July last year.

Likewise, present as an observer was National Security Adviser Hermogenes Esperon Jr. who told media men before the start of the proceedings that the cases are a good opportunity for the government to fully explain its position.

All lawyers for the petitioners and respondents were required to present a negative Covid-RT-PCR test result taken within 72 hours before the hearing day to be allowed to enter the SC premises in Manila.

Media men covering the event were also ordered to comply with the same requirements. Media personnel were required to stay at the viewing area at the lobby of the SC New Building.

Only eight lawyers, both from the petitioners and respondents were allowed to argue inside the session hall. They will be seated accordingly with social distancing requirements. Podiums with acrylic dividers were set up inside the session hall.

The rest of the lawyers from the respective parties were required to stay inside the three division conference rooms where television monitors were set up so they can monitor the proceedings.

The oral arguments are set to resume on February 9.