SC: 2011 DOJ Order Barring GMA from Leaving PH Unconstitutional

The Supreme Court (SC) declared unconstitutional the Department of Justice (DOJ) circular issued by then Justice Secretary and now detained Senator Leila de Lima to prevent former President and now Pampanga Rep. Gloria Macapagal-Arroyo from leaving the country in 2011 to seek medical treatment.

SC spokesman Theodore Te announced the decision during magistrates’ summer session in Baguio City on Tuesday.

Te said the high court justices unanimously voted in declaring the DOJ circular as unconstitutional for being violative of the right to travel under Article III, section 6 of the 1987 Constitution.

This means that all issuances released pursuant to the said DOJ circular are null and void.

“The Court, in interpreting Article III, section 6, determined that there was no legal basis for Department Circular No. 41 because of the absence of a law authorizing the Secretary of Justice to issue Hold Departure Orders (HDO), Watch List Orders (WLO), or Allow Departure Orders (ADO),” Te said.

It was on the basis of DOJ Circular No. 41 that De Lima issued three WLOs against the petitioners including the former president, former first gentleman Jose Miguel Arroyo and the HDOs against former Philippine Amusement and Gaming Corporation (Pagcor) Chairman Efraim Genuino and his two children, Erwin and Sheryl.

The petitioners pointed out that Section 6, Article III of the Constitution, explicitly states that the right to travel shall not be impaired except “in the interest of national security, public safety, or public health, as may be provided by law.”

However, the petitioners noted that none of the said limitations was cited by De Lima in turning down Mrs. Arroyo’s plea to be allowed to travel and seek medical treatment for her rare bone disease.

The petitioners added that De Lima violated the constitutional provision of separation of powers among the co-equal branches of the government and the principle of checks and balances when she refused to implement the SC’s temporary restraining order (TRO), which was supposed to be immediately executory.

The TRO ordered the DOJ to halt the implementation of its orders placing the Arroyo couple in the Bureau of Immigration’s watch list and denying their request for the issuance of an allow departure order (ADO) on the basis of DOJ Circular No. 41.

It can be recalled that in November 2011, airport immigration officials prevented the Arroyo couple and several aides from leaving the country upon the directive of De Lima despite that they were armed with a copy of the SC TRO.

Arroyo was supposed to seek medical treatment in Singapore, Spain and possibly in Germany for her hypoparathyroidism and metabolic bone disorder.

The travel ban imposed by De Lima also covers Mr. Arroyo’s co-respondents in the electoral sabotage case, namely former Commission on Elections Chairman Benjamin Abalos, former Comelec Commissioner Nicodemo Ferrer, former Justice Secretary Alberto Agra, former Presidential Adviser on Political Affairs Gabriel Claudio, Maguindanao official Nori Unas, Datu Andal Ampatuan Sr., and Lintang Bedol.

Aside from violating Article III, Section 6, the petitioners argued that the circular gives the justice secretary an “unbridled discretion” in issuing WLO and HDO.

The circular noted that the Supreme Court circular allowing the Regional Trial Courts to issue hold departure orders (HDO) is silent on cases falling below the jurisdiction of the RTC or those subject of investigation by the government prosecution offices.

“Apart from the courts, the Secretary of Justice as head of the principal law agency of the government mandated to, inter alia, investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual’s right to travel,” read the circular issued in 2010.

The high court conducted an oral argument on the case where De Lima insisted that the authority to issue hold-departure orders against individuals facing criminal investigation was an “inherent power” of the government as embodied in Executive Order No. 292, or the Administrative Code of 1987. (PNA)