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.
The petition filed by former Solicitor General Estelito Mendoza for him to be allowed as amicus curiaeby the Supreme Court in the anti-terrorism cases does not “befriend” the High Court but demeans its jurisdiction even as he seeks the dismissal of the 29 pending petitions challenging the constitutionality of the “Anti-Terrorism Act of 2020” (ATA).
Mendoza rose to prominence as the Solicitor General and Minister of Justice of the 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.
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).
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.
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).
Mendoza forgets that in the case of Social Weather Stations vs. COMELEC (G.R. No. 147571, May 5, 2001), the Supreme Court 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.
EDCEL C. LAGMAN