MANILA – Veteran lawyer and former Solicitor General Estelito Mendoza has asked the Supreme Court to allow him to appear as amicus curiae or friend of the court in the petitions challenging the Anti-Terrorism Act.

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In a petition for leave filed Thursday, he invoked a provision in the Rules of Court which allows the tribunal to invite an “experienced an impartial attorney” to help in resolving issues submitted before it.

But as early as now, Mendoza has made known his position: he wants the petitions dismissed due to lack of jurisdiction, based on the petitions filed by lawyer Howard Calleja and former SC Senior Associate Justice Antonio Carpio.

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“The petitions do not sufficiently allege, much less show, that the petitioners have committed any act in violation of the ‘Anti-Terrorism Act’ thereby creating an ‘actual controversy’ involving a legally demandable and enforceable right for the exercise of judicial power under Section 1, second paragraph, of Article VIII of the Constitution,” he said.

AMICUS CURIAE

Although not invited by the Supreme Court, Mendoza cited his long experience as a member of the Bar in actual practice since 1953, a faculty member of the University of the Philippines College of Law from 1954 to 1974, and as Solicitor General during martial law from 1972 to 1986 where he defended the legality of the proclamations of the late dictator Ferdinand Marcos.

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His most relevant experience, he said, is representing at the time the Chief of Constabulary, then General Fidel Ramos, who would later be president, and Secretary of Defense Juan Ponce Enrile, who would later become Senate president, in more than 500 petitions for habeas corpus brought before the Supreme Court questioning the legality of the arrests and detention during martial rule.

MENDOZA: DISMISS PETITIONS

In his filing, Mendoza pointed out that the petition does not allege the commission of any act violating the anti-terrorism measure and urged the high court not to do away with the requirement that a petitioner must be an “aggrieved party” in any petition for certiorari filed before the Court.

A petition for certiorari questions the decision of a tribunal, board or officer exercising judicial or quasi-judicial functions who acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

Citing the petition filed by Carpio, former Ombudsman and SC Associate Justice Conchita Carpio-Morales and UP Law professors as a “microcosm” of all other petitions, Mendoza quoted portions where petitioners invoked a “facial invalidation” of the law, arguing that the law is unconstitutional as written.

He argued that a facial challenge to a penal statute is not available as a remedy in the Philippines nor in the United States to question constitutionality.

He also rejected the void for vagueness and overbreadth arguments used by petitioners, who claimed that the vagueness of the terms used and the broadness of their scope could cover activities legitimately protected under the Constitution.

Mendoza cited the ruling of the Supreme Court in Estrada vs. Sandiganbayan where the Supreme Court said the overbreadth and vagueness doctrines only apply to free speech cases, not to the Anti-Plunder law which former President Joseph Estrada was facing.

Estrada was convicted of plunder in 2007 and sentenced to reclusion perpetua for up to 40 years in prison but was pardoned by his successor, former President Gloria Macapagal-Arroyo.

“Where what is involved is a penal law which may not exist without commission of any act, and no act is alleged to have been committed, there can be no ‘actual controversy involving rights which are legally demandable and enforceable;’ nor a determination of whether the enactment of the law or any power conferred therein amounts to a ‘grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government’ warranting the exercise of judicial power,” Mendoza argued.

His view echoes the position taken by the Office of the Solicitor General (OSG) that there must be an actual case or controversy before the Supreme Court could exercise its judicial power.

The OSG, in its comment to the Anti-Terrorism Act petitions, also said a penal statute is not susceptible to a facial challenge, citing the same Estrada case, among others.

But in their petition, Carpio, Morales and UP Law professors invoked violations of the right to free speech and freedom of the press as among the arguments against the Anti-Terrorism law, arguing that a “credible threat of prosecution” warrants review, as a matter of duty, by the Supreme Court.

Mendoza has represented Estrada in his impeachment trial, Arroyo and Enrile in their separate plunder cases, and other high profile clients including Lucio Tan and Danding Cojuangco.

Among his most controversial cases is the reversal of the Supreme Court’s decision in the labor dispute between Philippine Airlines (PAL) and the Flight Attendants and Stewards Association of the Philippines (FASAP) over retrenchment of PAL’s cabin crew.

The SC initially ruled in favor of FASAP with finality in 2009 but reversed its decision and declared PAL’s retrenchment valid after Mendoza wrote letters to the Supreme Court.