Opposition lawmakers on Sunday scoffed at veteran lawyer Estelito Mendoza for asking the Supreme Court to dismiss the petitions against the Anti-Terrorism Act of 2020 for lack of “actual controversy" and for also urging the High Court to allow him to participate as amicus curiae (friend of the court) to help resolve the 29 petitions against the ATA.
Albay 1st District Rep. Edcel Lagman said the petition filed by Mendoza asking the SC to allow him to be friend of the court in the anti-terrorism cases "does not befriend the High Court but demeans its jurisdiction.”
"An amicus curiae (friend of the court) must impartially advise the court on the issues pending adjudication, but never deceive the court by misleading arguments,” he said in a statement.
Lagman is one of the petitioners against Republic Act No. 11479 or the Anti-Terrorism Act (ATA), which was signed into law on July 3, and was implemented on July 18.
The human rights lawyer noted Mendoza served as solicitor-general and justice minister of late dictator Ferdinand Marcos during martial law "whose repressive policies are replicated in the ATA."
"It must be underscored that the prevailing jurisprudence, despite Mendoza’s contention, is that a facial challenge, based on the controverted bare provisions of the law, can be mounted against a statute which is discredited as unconstitutional because of its chilling effects deterring the exercise of the right to free speech and dissent,” Lagman said.
"Contrary to the misrepresentation of Mendoza, the principle of facial challenge does not require an “actual controversy” or the prior commission of overt acts prejudicial to the rights of petitioners and those whom they represent (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001 with the concurring opinion of Mr. Justice Vicente Mendoza; and Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014),” he explained.
Mendoza sought the dismissal of the petitions for lack of “actual controversy involving a legally demandable and enforceable right.”
"The ATA’s unconstitutionality is raised by the various petitions because it criminalizes under vague provisions the “threat”, “proposal” and “inciting” to commit terrorism which is a prior restraint on the freedom of expression as it forecloses the articulation of differing views because of fear of prosecution and subsequent punishment,” Lagman said.
"The tendency is to extend the justiciability of facial challenge to other fundamental constitutional freedoms which are likewise guaranteed like the freedom of speech under the Bill of Rights (Southern Hemisphere Engagement Network vs. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010),” he added.
Lagman reminded Mendoza that in the May 5, 2001 case of Social Weather Stations vs Commission on Elections (Comelec), the SC ruled that a law which is challenged for imposing a prior restraint on the freedom of expression is presumed unconstitutional and the government has the burden to prove otherwise.
"It was categorically held that: '… such a (contested) measure is vitiated by a weighty presumption of invalidity. Indeed, ‘any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity… The Government thus carries a heavy burden of showing justification for the enforcement of such restraint'.”
"Verily, the Anti-Terrorism Act of 2020 is presumed unconstitutional as it imposes a prior restraint on the exercise of free speech and the right to dissent, which unconstitutionality is patent in the provisions of the contested statute without the need of an actual controversy,” he said in closing.
Mendoza’s claim that the petitions filed against the ATA are procedurally premature because there is no actual case or controversy also did not sit well with Bayan Muna chairman Neri Colmenares and House Deputy Minority Leader and Bayan Muna partylist Rep. Carlos Isagani Zarate.
In a separate statement, Colmenares said Mendoza’s claim "is without legal and constitutional basis considering that Atty. Mendoza may be unaware of the latest jurisprudence recognizing facial challenge petitions against laws considered overbroad or vague and therefore violative of constitutional rights.
"We ask Atty. Mendoza to brush up on his review of jurisprudence and not rely on his becoming a friend of the court. Atty. Mendoza's latest position is strange, however, because Atty. Mendoza has himself previously filed facial challenge petitions in cases where it suited his interest,” he said.
He said while, Mendoza wants to be a friend to the court, he "was and is not a friend to human rights.”
He recalled that he, together with many other student activists, languished in prisons for years during martial law because Mendoza asserted that Marcos, who is not a judge or a court, has the power to issue warrants of arrest against us and detain us without charges.
"It is not surprising for Atty. Mendoza to insist that President Duterte and his Anti Terrorism Council have the power to conduct warrantless arrest without charges, similar to what Marcos imposed on critics, the opposition and the Filipino people during martial law,” said Colmenares, a human rights lawyer.
He said Mendoza should have filed an intervention petition in favor of President Duterte instead of an amicus pretending to be a friend of the court, since his position on human rights for many decades now has always been clear.
“I had hoped that the Solicitor General Mendoza I once saw asserting the legality of Marcos’ power to arrest and imprison us would change after so many years and that he would be remorseful for his contribution to our unjust incarceration. I guess I hoped wrong,” Colmenares said.
For his part, Zarate said, "Curiously, for a lawyer who claims to be a stickler for respect of procedural requirements such as justiciability, Atty. Mendoza has committed what we consider as gross violations of procedure when he wrote letters to the Supreme Court, instead of filing a pleading and furnishing a copy to his opposing counsel in the case of Flight Attendants and Stewards vs Philippine Airlines (PAL). This series of letters contained his opinion as counsel defending PAL against claims by PAL employees.”
The Makabayan lawmaker, who is among petitioners against ATA, also recalled that Mendoza even filed a petition on a case involving the appointment of the successor to then Chief Justice Reynato Puno, even before Puno retired.
"In that case, even Atty. Mendoza admitted that there was no actual controversy since the Chief Justice has not yet retired, and worse, the successor Chief Justice has not even been appointed because the Judicial Bar Council has not even submitted its list of aspirant justices to President Gloria Arroyo. Surely, this is a classic case of a petition that is premature considering that the issue concerns the “possible future” appointment to a post that is not even vacant,” Zarate said.
"Yet, Atty. Mendoza finds no problem in filing a premature petition then, while opposing petitions he claim to be premature now. Of course, Atty. Mendoza’s position then favored President Gloria Arroyo and his turn around now favors President Rodrigo Duterte, which means his legal positions do not mainly depend on statutory and constitutional grounds but on who he wants to favor in a case,” he stressed.