By Rey Panaligan
The Supreme Court (SC) on Tuesday affirmed its decision which declared unconstitutional the Department of Justice (DOJ) circular that was used by then justice secretary, now detained Sen. Leila de Lima, in stopping the 2011 travel abroad of former President Gloria Macapagal Arroyo, now a member of Congress for Pampanga, and her husband, Miguel Arroyo.
With the ruling, the SC denied the motion for reconsideration filed by De Lima and the other respondents in three consolidated cases that challenged the constitutionality of DOJ Department Circular No. 41.
In its unanimous full court decision handed down in Baguio City last April, the SC declared “DOJ Department Circular No. 41 unconstitutional for being violative of the right to travel under Article III, Section 6 of the 1987 Constitution.”
The SC ruled that “as a consequence, all issuances released pursuant to said DOJ Department Circular are null and void.”
The decision, written by Justice Andres Reyes Jr., granted the petitions of the Arroyos and Ephraim Genuino, former chair of the Philippine Amusement and Gaming Corporation, and his two children.
DOJ Circular No. 41 was issued on May 25, 2010, by then-Acting DOJ Secretary Alberto C. Agra to govern the issuance and implementation of hold departure orders (HDOs), watch list orders (WLOs), and allow departure orders (ADOs).
The circular repealed previous rules and regulations contained in DOJ Circular Nos. 17 and 18 that were inconsistent with Circular No. 41. It authorizes the DOJ secretary to issue WLO or HDO to persons suspected of committing criminal offenses.
Article III, Section 6 of the Constitution provides: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
It was on the basis of DOJ Circular No. 41 that De Lima issued three WLOs against the Arroyos and HDOs against the Genuinos.
The Arroyos challenged the WLOs that were issued by the DOJ in connection with the preliminary investigation of the charges of election fraud based on a report of another joint DOJ-Commission on Elections fact-finding team.
Mrs. Arroyo’s request for an ADO had been denied by then DOJ Secretary De Lima. The denial prompted the Arroyos to elevate the issue before the SC for the issuance of a TRO.
In their petition, the Arroyos pleaded the SC to resolve, once and for all, the constitutionality of the WLOs issued by the DOJ.
Mrs. Arroyo said she would suffer irreparable injury if the implementation of the WLO issued against her is not nullified immediately.
“The inability of petitioner GMA to leave for abroad to alleviate, or, at least, prevent the aggravation of her hypoparathyroidism and metabolic bone disorder has given rise to the danger that the said conditions afflicting petitioner GMA may become permanent and incurable,” Mrs. Arroyo said in a petition filed by former Justice Minister and Solicitor General Estelito P. Mendoza.
“Having been immobilized by a debilitating condition for the last few months, and having been subject to long operations and their complications, she seeks other experts’ perspective and to receive optimum care to ensure that she will not be disabled for the rest of her life and that her recovery will no longer be impeded by complications, which she has unfortunately experienced for the last few months,” the petition also stated.
The Arroyos also pointed out that the issuance of WLOs against them constitutes a violation of their freedom of movement and their right to travel.
On Nov. 15, 2011, the SC issued a temporary restraining order that allowed Mrs. Arroyo to go abroad for medical treatment.
The TRO shelved, in the meantime, the WLOs issued by the DOJ against the Arroyos and others facing preliminary investigation on alleged poll fraud in the 2004 and 2007 elections in Mindanao.
Despite the TRO, however, De Lima still stopped Mrs. Arroyo from leaving the country for medical treatment.
A complaint had been filed against De Lima before the SC for her refusal to obey the High Court’s TRO.
The complaint alleged that De Lima displayed her open defiance of the
Court’s order when on November 15, 2011 despite the immediate and
widespread publication of the issuance of the TRO via print and broadcast media.
Despite the insistence of De Lima that the issuance of WLOs and HDOs against individuals facing criminal investigation was an “inherent power” of the government as embodied in Executive Order No. 292, the Administrative Code of 1987, the SC ruled in favor of declaring DOJ Circular No. 41 unconstitutional.
De Lima is now detained at the custodial center of the Philippine National Police in Quezon City on drugs charges filed against her by the DOJ. The SC had earlier affirmed the validity of her arrest and detention based on the criminal charges.