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The first day of the oral arguments on the anti-terror law in the Supreme Court on Tuesday, February 2, ended on a high note with a stirring interpellation of the usual dissenter, Associate Justice Marvic Leonen, questioning the ripeness of the 37 petitions challenging the law.

Leonen, the last to interpellate during Tuesday’s session, hammered on the fact that it may be too early for the Supreme Court to intervene given that petitioners have not suffered a direct injury yet. 

“Should we wait for an actual case? Maybe the Aetas is the actual case,” Leonen said, referring to the first known case under anti-terror law, where two Aetas were jailed and charged for terrorism after they allegedly shot a soldier in an exchange of gunfire in Zambales last August 2020.

The Aetas filed a petition for intervention on Tuesday to be able to join the petitions.

“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?” Leonen asked, during a 30-minute grilling of University of the Philippines (UP) constitutional law professor John Molo.

“My humble submission is that deference, judicial restraint, ends where the Bill of Rights begins,” Molo responded, invoking the power of the Supreme Court to do an expanded judicial review.

All 37 petitions allege, citing jurisprudence, that the anti-terror law’s threats to freedom of speech make it viable to a facial challenge. Facial challenge means a person is not required to have suffered from a direct injury before he or she can have the legal standing to challenge the law.

‘We understand the fear’

The petitions list a barrage of theoretical situations where any person expressing dissent can be prosecuted under the anti-terror law’s vague definition.

Leonen, who was Molo’s former law professor in UP, said that while he understands the theoretical “fear” of petitioners, “we cannot insert our political perspective into this law.”

“We understand the fears, personally, I truly understand the kind of fears that you’re undergoing, having undergone those fears myself when I was a public interest lawyer. But with the hat now of the 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,” Leonen said.

Leonen added: “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.”

Leonen recited a list of cases that were dismissed because the petitioners had no legal standing, or at least not yet, like the same-sex marriage case that was junked because petitioner Jesus Falcis did not actually want to marry yet. Leonen was the ponente in that decision.

Leonen said that for a facial challenge to be valid, petitioners must show that the implementors of the law have no other choice but to violate freedom of speech.

Molo, who is counsel to the petition filed by retired justices Antonio Carpio and Conchita Carpio Morales, found himself saying at one point, “With due respect to my former professor in Constitutional Law, I disagree.”

“I would disagree that facial challenges only follow that line. There are also facial challenges that have more recently been recognized,” Molo began to say, but Leonen cut him and pressed him to provide facts.

“The operative fact in a facial challenge is the passage of the law,” Molo argued.

“It cannot just be the law, there has to be facts that arise in order that we act on our power of judicial review,” Leonen countered.

The Supreme Court cut the oral arguments at 5:30 pm sharp, a departure from usual practice where the justices can go on well into the evening if they want to. The next session will be at 2 pm next Tuesday, February 9.

A recap of oral arguments can be read here. – Rappler.com