Retired Supreme Court (SC) associate justice Francis Jardeleza’s formal advice to the Supreme Court on Monday, May 17, was to junk the 37 petitions challenging the constitutionality of the anti-terror law for lack of legal standing.
“I humbly submit that, following this Court’s ruling in Southern Hemisphere Network vs. the Anti-Terrorism Council, all 37 petitions should be dismissed,” Jardeleza said in his amicus brief delivered orally during the virtual oral arguments on Monday.
Jardeleza was referring to Southern Hemisphere, the 2010 case on similar petitions against the old law – Human Security Act – wherein the Supreme Court junked the cases, saying there was no actual charge nor credible threat of prosecution. The decision said the fears expressed then were merely speculative.
“None of the petitioners in these cases has claimed direct, personal, or constitutional injury, or has alleged actual prosecution under the anti- terror act as to be entitled to relief,” said Jardeleza.
The Supreme Court did not allow intervention in the case of Aetas Japer Gurung and Junior Ramos – both on trial for terrorism – precisely because there’s already an ongoing case at the lower court. (You can read more about scenarios of actual charges here.)
Jardeleza said that what’s allowed is a “pre-enforcement review,” but that “the same is allowed solely on grounds of vagueness.”
“Your Honors, unfortunately, none of petitioners have sought a pre-enforcement proceeding,” said Jardeleza.
Petitioners have maintained that the law’s threat to free speech, a fundamental freedom, allows a facial challenge or a challenge that can be made without being directly charged, prosecuted, or injured through other means using the law.
One of the petitioners, peace consultant Rey Claro Casambre, was recently designated a terrorist by the anti-terror council using this law. (READ: OSG admits: No definition in anti-terror law for ‘vague’ standards)
Jardeleza is one of the two amici curiae (Latin for friends of the court) or the Court’s chosen experts to help them decide on a case. A recently retired Aquino appointee, he found himself on the dissenting bloc a few times during his tenure. Jardeleza was initially in the majority that voted to uphold President Rodrigo Duterte’s martial law in Mindanao, but later, in the petitions against its last extension, Jardeleza joined the dissents, saying the decision to allow it was a “seeming abdication of the Court’s duty.”
Jardeleza joined the majority in the decision to oust former chief justice Maria Lourdes Sereno, his foe in the Supreme Court.
The choice of Jardeleza as amicus curiae was seen to be based on his being ponente of the 2019 case GIOS-Samar, which laid out the doctrine that the Supreme Court should strictly filter cases, so only those with clear legal standing ought to be considered.
GIOS-Samar has been widely discussed in the oral arguments.
In his brief, Jardeleza also cited the case.
“Petitioners cannot short-circuit this process by simply invoking the transcendental or paramount importance of their case. This is the Court’s clear ruling in GIOS-Samar v. DOTC,” said Jardeleza.
The former SC justice also acknowledged the petitioners’ comments that law enforcement should just improve their intelligence work.
“Well, maybe,” said Jardeleza, and proceeded to say, “In contrast, 2,977 people – 20 of them Filipinos – died in the 9/11 terror attacks. Was the failure to predict, or to interdict the 9/11 attacks, a case of lack of good police or good intelligence work?”
Jardeleza said given all the concerns, there is still “complete absence of facts on this case record.”
Not ‘at this time’
Jardeleza also said he acknowledges that the petitions’ points are “important” and that the anti-terror law “indeed implicates civil liberties dear to all of us.”
“There is, however, an absolute dearth of facts in the case record, as of the moment, to support a ruling against the ATA (anti-terror act), at this time,” he said.
Jardeleza echoed an earlier line during oral arguments about striking the balance between personal freedoms and national security.
“The information our soldiers received, while the most certain they’ve received about the target in a while, is admittedly awfully vague, and the time to carry out any action to catch him, using said information, severely limited,” said Jardeleza.
“Would counsels propose our soldiers wait to receive more complete information, but risk letting this valuable target escape to terrorize another day, or act as best they could, and try to catch him, based on the vital, albeit limited, information they already have?” Jardeleza asked.
Consistent with his frequent upholding of the hierarchy of courts doctrine, Jardeleza said lower court judges and Court of Appeals justices can “in their own right make constitutional law.”
“I think it is time we start hearing from them by giving them the first crack at cases such as these,” the former justice said.
What’s so wrong with the IRR?
Jardeleza also defended the Implementing Rules and Regulations (IRR), which had been slammed by petitioners as trying to have corrected a faulty law.
For one, the IRR added the process of delisting from the contentious power of designation. In oral arguments, government lawyers were quizzed if an IRR can add power not found in the law.
“Counsels for petitioners belittle the attempts of the Department of Justice (DOJ), headed by Secretary of Justice Menardo Guevarra, to ‘fill-in-the-details’ of the ATA through the issuance of implementing rules and regulations (IRR),” said Jardeleza.
“If the DOJ has provided for ‘narrowing definitions,’ as held in Holder, as to save a law from being declared unconstitutional, then, I ask, what is so wrong in allowing the DOJ to do its share in defining constitutional law?” the retired justice added.