MANILA — Should the Philippine Supreme Court step in even where there is no actual case yet alleging a specific injury?

That’s the question posed by SC Associate Justice Marvic Leonen to petitioners during the start of the oral arguments on the 37 petitions filed against the Anti-Terrorism Act Tuesday.

An actual case or controversy is a requirement for the Supreme Court’s exercise of judicial review — a petitioner must allege an actual conflict of legal rights, not a hypothetical dispute.

All 37 petitions have so far lodged facial challenges against the anti-terrorism measure, which means, they are challenging the law solely based on the language of the law and not based on claimed violations upon its implementation.

This is generally allowed in freedom of expression of cases but should it be applied to the Anti-Terrorism Act where there are claims of other violations?

“Shouldn’t we wait for the actual case? Maybe the Aeta case is the actual case, maybe Rural Missionaries is the actual case, maybe GABRIELA is the actual case, maybe this DND Accord with the UP, I don’t know, might be the actual case. But we have to see how government reacts,” Leonen said while interpellating UP Constitutional Law professor Alfredo Molo III.

Molo serves as counsel for retired Senior Associate Justice Antonio Carpio, former Ombudsman Conchita Carpio Morales, and other legal luminaries from UP.

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Leonen was referring to several incidents cited by some of the 7 lawyers arguing for petitioners who were claiming credible threat of prosecution under the anti-terrorism measure.

The Aeta case Leonen referred to involves 2 Aetas who were arrested and charged with terrorism but who are now claiming they have been tortured and falsely accused of being members of the New People’s Army and of killing a soldier in an alleged encounter in a town in Zambales in August last year.

On Tuesday, they filed a petition-in-intervention with the Supreme Court seeking to join the case, just a few hours before the oral arguments started.

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It is not immediately clear if the magistrates were aware of the filing, which has yet to be admitted by the Court.

Leonen proceeded on the premise that the petitioners cited no actual case.

“And the only thing we see now is the Constitution, the law, and the implementing rules and regulation. Should the Court now weigh in when it has not been yet…Should we not wait until there is a clear case perhaps there can be a petition filed on those that are red-tagged?” he added.

Leonen was quizzing Molo on the propriety of bringing the petition against the Anti-Terrorism Act directly before the Supreme Court when the court cannot render advisory opinions, in the absence of facts.

“What are your facts? Do you have facts? What are the facts?” he asked, before citing a “genealogy” of cases where SC magistrates unanimously ruled that “it is not the mere passage of a law that entitles a person that will come up here to annul that law.”

Leonen acknowledged that one of the petitioners and also one of Molo’s clients — Carpio Morales — was actually the ponente of an October 5, 2010 ruling in Southern Hemisphere vs. Anti-Terrorism Council, which junked petitions questioning the Human Security Act of 2007, refusing to apply facial analysis because what the HSA supposedly regulated was conduct and speech was only incidental.

But the same case ruled that facial invalidation of a statute is allowed in free speech cases where an “overbroad law becomes unenforceable until a properly authorized court construes it more narrowly.”

The Carpio petition cited this case as one of its legal basis but Leonen said subsequent rulings have clarified the prevailing rule.

“Come to court only if you have the facts, if it is irrefutable. Come to court only if you have a freedom of expression case, when you want a facial challenge. But show to us, clearly and convincingly, that the political departments cannot interpret it any other way except to chill and violate the right to freedom of expression,” he said.

Leonen also warned against the dangers of the judiciary stepping in and substituting it political wisdom to those who crafted the law and advised the President.

“Yes we have fears of any law, yes we have fears of any government. It’s understandable. But to ask the Supreme Court to move in and use its powers, without that standard, would invite us to insert our political perspective into how a law should be,” he said.

“Although we understand the positions of many of the petitioners, we understand the fears. Personally, I truly understand the kinds of fears that you're undergoing having undergone those fears myself when I was a public interest lawyer. I understand that, but with the hat now of a 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,” he added.

The whole exchange between Leonen, who once taught constitutional law at the UP College of Law, and his former student, who is now also teaching the same subject in the same law school, led to a discussion on the role of the law and the judiciary.

“Every law is based on an intention. Every law is an imagined future. Every law provides for a normative statement that says this should be how it is…No language does not clearly capture everything. And whatever the intentions were in these provisions, isn’t it that the role of the Judiciary to give a chance to the political department to be able to address the harm that they wish to address before we come out immediately on a theoretical point to annul that provision?” Leonen asked.

“Your honor, my humble submission is that, deference, judicial restraint ends where the Bill of Rights begins,” Molo said in response.

Leonen advised his former student to research on the topic in the coming week. Oral arguments will resume next Tuesday.

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