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Presidential discretion, and respecting the wisdom of Congress, again took front and center during the Supreme Court oral arguments on the contentious anti-terror law on Tuesday, February 2.
The three justices who interpellated – Senior Associate Justice Estela Perlas-Bernabe, and Associate Justices Marvic Leonen and Rosmari Carandang – asked variations of this question: Can and should President Rodrigo Duterte and Congress be left to their own discretion?
"It sounds to me a question of political question.... That does not apply here," said University of the Philippines (UP) Law Professor John Molo in response to Bernabe, referring to the doctrine of political question.
In cases of political question, the judiciary resists reviewing the actions of its co-equal branches, although this doctrine is constantly blamed for validating Ferdinand Marcos' Martial Law.
Citing the landmark United States case Baker vs Carr, Molo said that the political question doctrine is only valid if there is no judicial standard that can guide the Supreme Court.
"We have judicial standards, your honor. They are the Bill of Rights, and the entire body of jurisprudence enacting the Bill of Rights, they are judicial and they have already been discovered over decades," Molo said.
Molo added that in Baker vs Carr, the political question doctrine is valid if the Constitution has already assigned the issue at hand to another branch of government. For example, in the 1987 Philippine Constitution, impeachment is out of the judiciary's scope because it has been assigned to Congress.
"That does not apply here especially with Section 29, the textual commitment is to the judges, to the judiciary, warrants must be determined by the judge, so the reverse actually applies," Molo said.
He was referring to the contentious provision that gives the Anti-Terrorism Council under the Executive the power to order arrests and detentions when the Constitution reserves that power for the courts.
The Supreme Court has handed major wins to the Duterte government during his presidency, mostly by upholding presidential discretion. This was the same reasoning behind the 4th Mindanao martial law case won by the Duterte government, penned by Carandang, who is the member-in-charge of the anti-terror law case.
In her interpellation, Bernabe asked opposition congressman Edcel Lagman if there is case law that presumes legislation to be constitutional, again pursuing the point that the executive and legislative branches have to be left alone.
In the 2003 case Fariñas vs Executive Secretary, the Supreme Court upheld an election law provision that requires appointive officials to resign if they will run for public office. In that case, the Supreme Court reiterated that "every statute is presumed valid" and that Congress is presumed to have "intended to enact a valid, sensible and just law."
Lagman recognized the jurisprudence, but argued that the anti-terror law cannot be presumed to be in harmony with the Constitution if its provisions directly violate the Constitution.
The Albay congressman again highlighted Section 29, or the power of the anti-terror council – which is made up of Cabinet secretaries – to issue arrest and detention orders.
"Any warrant issued by the executive agency cannot be inconsistent with the Constitution, because the validity of the warrant of arrest should apply to 3 basic conditions: 1) it should be issued by the judge, 2) upon probable cause, and  personally determined by the judge. Section 29 of the anti-terror act has no saving grace whatsoever because it directly violates the Constitution," Lagman said.
In his opening statement, Lagman said that the executive's arrest and detention powers under the anti-terror law took away civil liberties that have been guaranteed to Filipinos since the 1899 Malolos Constitution.
"In stark contrast with the Anti-Terrorism Act (ATA), the Malolos Constitution, the first Constitution of the Philippines and the first Republican Charter in all of Asia, mandated that 'All persons detained shall be discharged or delivered to the judicial authority within 24 hours following the act of detention.' (Article 8). That was 122 years ago. Now, the ATA has ominously retrogressed to Draconian times," said Lagman.
Reiterating that point, Molo said: "This law turns judges into rubbers stamps because of the phraseology of the law. Therefore it is diminishing the judiciary."
Oral arguments will resume next Tuesday, February 9, at 2 pm.
Here are stories from Day 1 of the oral arguments: