EN BANC
[ G.R. No. 197930, April 17, 2018 ]EFRAIM C. GENUINO v. LEILA M. DE LIMA +
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. SEE, PETITIONERS, VS. HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V. PARAS III, IN HIS CAPACITY AS CHIEF STATE COUNSEL, CRISTINO L. NAGUIAT, JR. AND THE BUREAU OF IMMIGRATION, RESPONDENTS.
[G.R. No. 199034]
MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., AS COMMISSIONER OF THE BUREAU OF IMMIGRATION, RESPONDENTS.
[G.R. No. 199046]
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL, DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN HIS CAPACITY AS COMMISSIONER, BUREAU OF IMMIGRATION, RESPONDENTS.
D E C I S I O N
EFRAIM C. GENUINO v. LEILA M. DE LIMA +
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. SEE, PETITIONERS, VS. HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V. PARAS III, IN HIS CAPACITY AS CHIEF STATE COUNSEL, CRISTINO L. NAGUIAT, JR. AND THE BUREAU OF IMMIGRATION, RESPONDENTS.
[G.R. No. 199034]
MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., AS COMMISSIONER OF THE BUREAU OF IMMIGRATION, RESPONDENTS.
[G.R. No. 199046]
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL, DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN HIS CAPACITY AS COMMISSIONER, BUREAU OF IMMIGRATION, RESPONDENTS.
D E C I S I O N
REYES, JR., J:
These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold Departure Orders, Watchlist Orders and Allow Departure Orders" on the ground that it infringes on the constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41, thus:
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order[5] (HDO) No. 2011-64 dated July 22, 2011 issued against them.
Antecedent Facts
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules and regulations governing the issuance of HDOs. The said issuance was intended to restrain the indiscriminate issuance of HDOs which impinge on the people's right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules and regulations governing the issuance and implementation of watchlist orders. In particular, it provides for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases pending preliminary investigation or petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an ADO to a person subject of a WLO who intends to leave the country for some exceptional reasons.[6] Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the governing rule on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and regulations contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent election as Pampanga representative, criminal complaints were filed against her before the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for plunder;[7]
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus Election Code (OEC), violation of the Code of Conduct and Ethical Standards for Public Officials, and qualified theft;[8] and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of the Code of Conduct and Ethical Standards for Public Officials and qualified theft.[9]
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.[10] Thereafter, the BI issued WLO No. ASM-11-237,[11] implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.[12] WLO No. 2011-422, as amended, is valid for a period of 60 days, or until November 5, 2011, unless sooner terminated or otherwise extended. This was lifted in due course by De Lima, in an Order dated November 14, 2011, following the expiration of its validity.[13]
Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the OEC were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007 Election Fraud,[14] specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC and COMELEC Rules and Regulations;[15] and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et al., for electoral sabotage.[16]
Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26, 2011, unless sooner terminated or otherwise extended.[17]
In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may be able to seek medical attention from medical specialists abroad for her hypoparathyroidism and metabolic bone mineral disorder. She mentioned six different countries where she intends to undergo consultations and treatments: United States of America, Germany, Singapore, Italy, Spain and Austria.[18] She likewise undertook to return to the Philippines, once her treatment abroad is completed, and participate in the proceedings before the DOJ.[19] In support of her application for ADO, she submitted the following documents, viz.:
On November 8, 2011, before the resolution of her application for ADO, GMA filed the present Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs issued against her for allegedly being unconstitutional.[25]
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari, and Prohibition under the same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed as G.R. No. 199046.[26]
Also, on November 8, 2011, De Lima issued an Order,[27] denying GMA's application for an ADO, based on the following grounds:
On November 13, 2011, GMA filed a Supplemental Petition[31] which included a prayer to annul and set aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA filed her Comment/Opposition[32] to the respondents' Very Urgent Manifestation and Motion dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,[33] ordering the consolidation of G.R. Nos. 199034 and 199046, and requiring the respondents to file their comment thereto not later than November 18, 2011. The Court likewise resolved to issue a TRO in the consolidated petitions, enjoining the respondents from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following conditions, to wit:
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore. However, the BI officials at NAIA refused to process their travel documents which ultimately resulted to them not being able to join their flights.[40]
On November 17, 2011, GMA, through counsel, filed an Urgent Motion[41] for Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO issued by the Court was immediately executory and that openly defying the same is tantamount to gross disobedience and resistance to a lawful order of the Court.[42] Not long after, Miguel Arroyo followed through with an Urgent Manifestation,[43] adopting and repleading all the allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or to Lift TRO,[44] praying that the Court reconsider and set aside the TRO issued in the consolidated petitions until they are duly heard on the merits. In support thereof, they argue that the requisites for the issuance of a TRO and writ of preliminary injunction were not established by the petitioners. To begin with, the petitioners failed to present a clear and mistakable right which needs to be protected by the issuance of a TRO. While the petitioners anchor their right in esse on the right to travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute. One of the limitations on the right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-making powers of the DOJ in order to keep individuals under preliminary investigation within the jurisdiction of the Philippine criminal justice system. With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot claim that they have a clear and unmistakable right to leave the country as they are the very subject of the mentioned issuance.[45] Moreover, the issuance of a TRO will effectively render any judgment on the consolidated petitions moot and academic. No amount of judgment can recompense the irreparable injury that the state is bound to suffer if the petitioners are permitted to leave the Philippine jurisdiction.[46]
On November 18, 2011, the Court issued a Resolution,[47] requiring De Lima to show cause why she should not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO. She was likewise ordered to immediately comply with the TRO by allowing the petitioners to leave the country. At the same time, the Court denied the Consolidated Urgent Motion for Reconsideration and/or to Lift TRO dated November 16, 2011 filed by the Office of the Solicitor General.[48]
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-PSY-11-04432-CR[49] and raffled to Branch 112. A warrant of arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the respondents filed an Urgent Manifestation with Motion to Lift TRO.[50] They argue that the filing of the information for electoral sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this Court. They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the disposition of the case. The issue therefore on the validity of the assailed WLOs should properly be raised and threshed out before the RTC of Pasay City where the criminal case against GMA is pending, to the exclusion of all other courts.[51]
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated November 21, 2011,[52] lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22, 2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral arguments on December 1, 2011, the parties were required to submit their respective memoranda.[53]
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011[54] was issued against Genuinos, among others, after criminal complaints for Malversation, as defined under Article 217 of the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against them by the Philippine Amusement and Gaming Corporation (PAGCOR), through its Director, Eugene Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for the film "Baler." This was followed by the filing of another complaint for Plunder under R.A. No. 7080, Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as well as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was thereafter filed against Efraim and Erwin was filed before the Office of the Ombudsman for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds intended for the Philippine Sports Commission directly to the Philippine Amateur Swimming Association, Inc.[55] In a Letter[56] dated July 29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against them be lifted. This plea was however denied in a Letter[57] dated August 1, 2011 which prompted the institution of the present petition by the Genuinos. In a Resolution[58] dated April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties and their pleadings, sums up the issues for consideration as follows:
The Court may exercise its power of judicial review despite the filing of information for electoral sabotage against GMA. It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable controversy. They argue that the instant petitions had been rendered moot and academic by (1) the expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6, 2011;[59] (2) the filing of an information for electoral sabotage against GMA,[60] and; (3) the lifting of the WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent deletion of his name from the BI watchlist after the COMELEC en banc dismissed the case for electoral sabotage against him.[61]
The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which reads:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[62]
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[63]
Except for the first requisite, there is no question with respect to the existence of the three (3) other requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them by authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and academic since there is no longer any actual case or controversy to resolve following the subsequent filing of an information for election sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo and the deletion of his name from the BI watchlist after the dismissal of the complaint for electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief."[64] When the issues have been resolved or when the circumstances from which the legal controversy arose no longer exist, the case is rendered moot and academic. "A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value."[65]
The Court believes that the supervening events following the filing of the instant petitions, while may have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues raised by the petitioners. The Court, after assessing the necessity and the invaluable gain that the members of the bar, as well as the public may realize from the academic discussion of the constitutional issues raised in the petition, resolves to put to rest the lingering constitutional questions that abound the assailed issuance. This is not a novel occurrence as the Court, in a number of occasions, took up cases up to its conclusion notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections,[66] the Court so emphatically stated, thus:
There is also no question that the instant petitions involved a matter of public interest as the petitioners are not alone in this predicament and there can be several more in the future who may be similarly situated. It is not far fetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will recur considering the thousands of names listed in the watch list of the DOJ, who may brave to question the supposed illegality of the issuance. Thus, it is in the interest of the public, as well as for the education of the members of the bench and the bar, that this Court takes up the instant petitions and resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the nation; it is deemed written in every statute and contract.[70] If a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the compendium of the guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on government officials and instrumentalities. It is that lone unifying code, an inviolable authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of Rights contained in Article III. In particular, Section 1 thereof provides:
Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties. Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will. It is subject to the far more overriding demands and requirements of the greater number."[71]
It is therefore reasonable that in order to achieve communal peace and public welfare, calculated limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions, the Constitution itself has provided for exceptions and restrictions to balance the free exercise of rights with the equally important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,[72] it was defined as the inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. It is rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare.[73]
Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint the exception.[74] Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so that they may not unreasonably interfere with the free exercise of constitutional guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of law.[75] It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. Pertinently, Section 6, Article III of the Constitution provides:
It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be impaired only in the interest of national security, public safety or public health, as may be provided by law. In Silverio vs. Court of Appeals,[78] the Court elucidated, thus:
The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus:
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,[86] the Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and Employment, which temporarily suspended the deployment of domestic and household workers abroad. The measure was taken in response to escalating number of female workers abroad who were subjected to exploitative working conditions, with some even reported physical and personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to "afford protection to labor." Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator (OCA) vs. Wilma Salvacion P. Heusdens,[87] the Court enumerated the statutes which specifically provide for the impairment of the right to travel, viz.:
The issuance of DOJ Circular No. 41 has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them.[89]
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance apparently designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the agency's rule-making powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making powers, among others. It is the "power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of non-delegability and separability of powers."[90] In the exercise of this power, the rules and regulations that administrative agencies promulgate should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in conformity with, the standards prescribed by law. They must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to be valid.[91]
It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions.[92]
A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the substantive portions of the act. Such provisions are available for clarification of ambiguous substantive portions of the act, but may not be used to create ambiguity in other substantive provisions."[93]
In the same way, Section 3 does not authorize the DOJ to issue WLOs and HDOs to restrict the constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that will justify the impairment. The provision simply grants the DOJ the power to investigate the commission of crimes and prosecute offenders, which are basically the functions of the agency. However, it does not carry with it the power to indiscriminately devise all means it deems proper in performing its functions without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment or restriction in the exercise of a constitutional right must be clear, categorical and unambiguous. For the rule is that:
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASJS) et al. vs. Hon. Purisima et al.,[95] is illuminating:
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the existence of the enabling law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No. 41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is disastrous to democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,[98] the Court emphasized:
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former.[102] Thus, in Allado vs. Diokno,[103] the Court declared, viz.:
The predicament of the DOJ is understandable yet untenable for relying on grounds other what is permitted within the confines of its own power and the nature of preliminary investigation itself. The Court, in Paderanga vs. Drilon,[106] made a clarification on the nature of a preliminary investigation, thus:
The point is that in the conduct of a preliminary investigation, the presence of the accused is not necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive his presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall be bound by the determination of the prosecutor on the presence of probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41 on the ground that it is necessary to ensure presence and attendance in the preliminary investigation of the complaints. There is also no authority of law granting it the power to compel the attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have; it is a usurpation of function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ of empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the separation of powers between the three branches of the government and cannot be upheld. Even the Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not diminish, increase, or modify substantive rights.[109] This should have cautioned the DOJ, which is only one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel were found reasonable, i.e. New York v. O'Neill,[110] Kwong vs. Presidential Commission on Good Government[111] and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since the Court never ruled on the constitutionality of the authority of the PCGG to issue HDOs in the said case. On the contrary, there was an implied recognition of the validity of the PCGG's Rules and Regulations as the petitioners therein even referred to its provisions to challenge the PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of its effectivity. The petitioners never raised any issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but only questioned the agency's non-observance of the rules particularly on the lifting of HDOs. This is strikingly different from the instant case where the main issue is the constitutionality of the authority of the DOJ Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said case, the respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under which authority a judge of the Court of General Sessions, New York County requested the Circuit Court of Dade County, Florida, where he was at that time, that he be given into the custody of New York authorities and be transported to New York to testify in a grand jury proceeding. The US Supreme Court upheld the constitutionality of the law, ruling that every citizen, when properly summoned, has the obligation to give testimony and the same will not amount to violation of the freedom to travel but, at most, a mere temporary interference. The clear deviation of the instant case from New York is that in the latter case there is a law specifically enacted to require the attendance of the respondent to court proceedings to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation to give testimony, he is absolutely free to return in the state where he was found or to his state of residence, at the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an enabling law where it could have derived its authority to interfere with the exercise of the right to travel. Further, the respondent is subjected to continuing restraint in his right to travel as he is not allowed to go until he is given, if he will ever be given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular No. 41 under the guise of police power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains to the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare."[112] "It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."[113] Verily, the exercise of this power is primarily lodged with the legislature but may be wielded by the President and administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay, by virtue of a valid delegation of power.[114]
It bears noting, however, that police power may only be validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals.[115]
On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims to be exercising the same as the alter ego of the President, it must first establish the presence of a definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed to do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably necessary in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the Constitution.[116] It must never be utilized to espouse actions that violate the Constitution. Any act, however noble its intentions, is void if it violates the Constitution.[117] In the clear language of the Constitution, it is only in the interest of national security, public safety and public health that the right to travel may be impaired. None one of the mentioned circumstances was invoked by the DOJ as its premise for the promulgation of DOJ Circular No. 41.
DOJ Circular No. 41 transcends constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render it invalid. The apparent vagueness of the circular as to the distinction between a HDO and WLO is violative of the due process clause. An act that is vague "violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle."[118] Here, the distinction is significant as it will inform the respondents of the grounds, effects and the measures they may take to contest the issuance against them. Verily, there must be a standard by which a HDO or WLO may be issued, particularly against those whose cases are still under preliminary investigation, since at that stage there is yet no criminal information against them which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of the issuance, it was stated, thus:
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount to an infringement on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ, the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term "only." The reason lies in seeking equilibrium between the state's interest over the prosecution of the case considering the gravity of the offense involved and the individual's exercise of his right to travel. Thus, the circular permits the intrusion on the right to travel only when the criminal case filed against the individual is within the exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are punishable with imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain to less serious offenses which is not commensurate with the curtailment of a fundamental right. Much less is the reason to impose restraint on the right to travel of respondents of criminal cases still pending investigation since at that stage no information has yet been filed in court against them. It is for these reasons that Circular No. 39-97 mandated that FIDO may only be issued in criminal cases filed with the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary may issue HDO against the accused in criminal cases within the jurisdiction of the MTC[121] and against defendants, respondents and witnesses in labor or administrative cases,[122] no matter how unwilling they may be. He may also issue WLO against accused in criminal cases pending before the RTC,[123] therefore making himself in equal footing with the RTC, which is authorized by law to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO against respondents in criminal cases pending preliminary investigation, petition for review or motion for reconsideration before the DOJ.[124] More striking is the authority of the DOJ Secretary to issue a HDO or WLO motu proprio, even in the absence of the grounds stated in the issuance if he deems necessary in the interest of national security, public safety or public health.[125]
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it remains effective even after the lapse of its validity period as long as the DOJ Secretary does not approve the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint in his mobility as he awaits a favorable indorsement of the government agency that requested for the issuance of the HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit a person subject of HDO or WLO to travel through the issuance of an ADO upon showing of "exceptional reasons" to grant the same. The grant, however, is entirely dependent on the sole discretion of the DOJ Secretary based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can take the place of a law that authorizes the restraint in the right to travel only in the interest of national security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid—for an executive officer to impose restriction or exercise discretion that unreasonably impair an individual's right to travel- thus, the addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the Court underscored that this phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.[126] The qualifying phrase is not a mere innocuous appendage. It secures the individual the absolute and free exercise of his right to travel at all times unless the more paramount considerations of national security, public safety and public health call for a temporary interference, but always under the authority of a law.
The subject WLOs and the restraint on the right to travel.
In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings thereof. For better illustration, the said WLOs are hereby reproduced as follows:
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO cannot leave the country unless he obtains an ADO. The said section reads as follows:
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they are one and the same or, at the very least, complementary such that whatever is not covered in Section 1,[131] which pertains to the issuance of HDO, can conveniently fall under Section 2,[132] which calls for the issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national security, public safety or public health. With this all-encompassing provision, there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national security, public safety or public health.
The exceptions to the right to travel are limited to those stated in Section 6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the instances wherein the right to travel may be validly impaired.[133] It cites that this Court has its own administrative issuances restricting travel of its employees and that even lower courts may issue HDO even on grounds/outside of what is stated in the Constitution.[134]
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO against an accused in a criminal case so that he may be dealt with in accordance with law.[135] It does not require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power. In Defensor-Santiago vs. Vasquez,[136] the Court declared, thus:
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee's leave for purpose of foreign travel which is necessary for the orderly administration ofjustice. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is to govern or direct according to rule.[140] This regulation comes as a necessary consequence of the individual's employment in the judiciary, as part and parcel of his contract in joining the institution. For, if the members of the judiciary are at liberty to go on leave any time, the dispensation ofjustice will be seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the intricacies in the administration of justice. At any rate, the concerned employee is not prevented from pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be ready to suffer the consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the requirement for leave application of employees in the government service seeking to travel abroad. The Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment guidelines for all government employees, except those who are covered by special laws. The filing of application for leave is required for purposes of orderly personnel administration. In pursuing foreign travel plans, a government employee must secure an approved leave of absence from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26 dated July 31, 1986, provided the procedure in the disposition of requests of government officials and employees for authority to travel abroad. The provisions of this issuance were later clarified in the Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued, streamlining the procedure in the disposition of requests of government officials and employees for authority to travel abroad. Section 2 thereof states:
The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers expressly granted to it by law and may not extend the same on its own accord or by any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights are determined and all public authority administered."[142] Any law or issuance, therefore, must not contradict the language of the fundamental law of the land; otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on constitutionally-protected rights without the authority of a valid law. Even with the predicament of preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep constitutional boundaries and skirt the prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against the state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless innocent individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As emphatically pronounced in Secretary of National Defense vs. Manalo, et al.,[143] the constitution is an overarching sky that covers all in its protection. It affords protection to citizens without distinction. Even the most despicable person deserves the same respect in the enjoyment of his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact the necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling on constitutionally-protected rights. Without a valid legislation, the DOJ's actions will perpetually be met with legal hurdles to the detriment of the due administration of justice. The challenge therefore is for the legislature to address this problem in the form of a legislation that will identify permissible intrusions in the right to travel. Unless this is done, the government will continuously be confronted with questions on the legality of their actions to the detriment of the implementation of government processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the performance of its duties. This can be accomplished by expediency in the assessment of complaints filed before its office and in the prompt filing of information in court should there be an affirmative finding of probable cause so that it may legally request for the issuance of HDO and hold the accused for trial. Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient and effective performance of its prosecutorial duties.
The Court understands the dilemma of the government on the effect of the declaration of unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the country. While this is a legitimate concern, it bears stressing that the government is not completely powerless or incapable of preventing their departure or having them answer charges that may be subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in Section 4[144] thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of suspected traffickers or trafficked individuals. He also noted that the Commissioner of BI has the authority to issue a HDO against a foreigner subject of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary warrant of arrest offers a promising solution to this quandary. This, the Court can do in recognition of the fact that laws and rules of procedure should evolve as the present circumstances require.
Contempt charge against respondent De Lima
It is well to remember that on November 18, 2011, a Resolution[145] was issued requiring De Lima to show cause why she should not be disciplinarily dealt or be held in contempt for failure to comply with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full discussion that it rightfully deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the interest of fairness that there be a complete and exhaustive discussion on the matter since it entails the imposition of penalty that bears upon the fitness of the respondent as a member of the legal profession. The Court, therefore, finds it proper to deliberate and resolve the charge of contempt against De Lima in a separate proceeding that could accommodate a full opportunity for her to present her case and provide a better occasion for the Court to deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 28, 2011, which required respondent Leila De Lima to show cause why she should not be cited in contempt, as a separate petition.
SO ORDERED.
Sereno, C. J., on indefinite leave.
Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe, Jardeleza, Martires, Tijam, and Gesmundo, JJ., concur.
Carpio, J., See Concurring Opinion.
Velasco, Jr., J., See Separate Concurring Opinion.
Leonen, J., See Separate Opinion.
Caguioa, J., no part.
Sirs/Mesdames:
Please take notice that on April 17, 2018 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled cases, the original of which was received by this Office on May 9, 2018 at 2:50 p.m.
[1] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[2] Id. at 47-48.
[3] Id. at 49-58.
[4] Id. at 106-116.
[5] Rollo (G.R. No. 197930), pp. 30-35.
[6] Rollo (G.R. No. 199034), Volume III, pp. 901-902.
[7] Id. at 902.
[8] Id.
[9] Id. at 903.
[10] Id.
[11] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[12] Id. at 47-48.
[13] Rollo (G.R. No. 199034), Volume III, p. 904.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 905.
[18] Id. at 905-906.
[19] Id. at 1028.
[20] Rollo (G.R. No. 199034), Volume I, p. 76.
[21] Id. at 82-83.
[22] Id. at 86.
[23] Id. at 68-75.
[24] Rollo (G.R. No. 199034), Volume III, p. 908.
[25] Id. at 909.
[26] Id.
[27] Rollo (G.R. No. 199034), Volume I, pp. 122-132.
[28] Id. at 110, 112, 113-114, 116.
[29] Id. at 89-104; Rollo (G.R. No. 199046), pp. 59-70.
[30] Id. at 102-103; id. at 68.
[31] Rollo (G.R. No. 199034), Volume I, pp. 133-174.
[32] Id. at 189-206.
[33] Id. at 208-210.
[34] Id. at 208-209.
[35] Id. at 337-339; 344-345.
[36] Id. at 347.
[37] Id. at 348.
[38] Id. at 349-350.
[39] Id. at 342.
[40] Id. at 367.
[41] Id. at 364-375.
[42] Id. at 369.
[43] Id. at 382-384.
[44] Id. at 288-323.
[45] Id. at 311.
[46] Id. at 318-319.
[47] Id. at 394-398.
[48] Id. at 394-395.
[49] Rollo (G.R. No. 199034), Volume II, pp. 525-527.
[50] Id. at 518-524.
[51] Id. at 519-521.
[52] Rollo, (G.R. No. 199034), Volume III, pp. 1017-1018.
[53] Id. at 914.
[54] Rollo (G.R. No. 197930), pp. 30-35.
[55] Id. at 7-8.
[56] Id. at 36-42.
[57] Id. at 43-45.
[58] Id. at 417.
[59] Rollo (G.R. No. 199034), Volume III, p. 921.
[60] Id. at 923.
[61] Id.
[62] The 1987 CONSTITUTION, Article VIII, Sec. 1.
[63] Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management, 686 Phil. 357, 369 (2012).
[64] Prof. David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 753 (2006).
[65] Id.
[66] 228 Phil. 193, 211 (1986).
[67] Id. at 199.
[68] Supra note 64, at 809.
[69] Id. at 754.
[70] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, 661 Phil. 390, 403 (2011).
[71] Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 399 (1988).
[72] Supra.
[73] Id. at 399.
[74] Jesus P. Morfe v. Amelito R. Mutuc, 130 Phil. 415, 430 (1968).
[75] Kent v. Dulles, 357 U.S. 116.
[76] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 168.
[77] 39 Phil. 778, 812 (1919).
[78] 273 Phil. 128, 135 (1991).
[79] Id. at 133-134.
[80] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, pp. 367-368.
[81] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 172.
[82] Records of the Constitutional Commission, Volume I, p. 674.
[83] Id. at 715.
[84] Id. at 677.
[85] Id. at 764-765.
[86] Supra note 71, at 405.
[87] 678 Phil. 328 (2011).
[88] Id. at 339-340.
[89] Rollo (G.R. No. 199034), Volume III, p. 922.
[90] Holy Spirit Homeowners Association, Inc. v. Secretary Michael Defensor, 529 Phil. 573, 585 (2006).
[91] SMART Communications, Inc. v National Telecommunications Commission, 456 Phil. 145, 156 (2003).
[92] William C. Dagan v. Philippine Racing Commission, 598 Phil. 406, 417 (2009).
[93] 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, 971 N.E.2d 1195, 2012 Ill App. LEXIS 506, 361 Ill. Dec. 673, 2012 WL 2371249 (Ill. App. Ct. 2d Dist. 2012)
[94] SMART Communications, Inc. v. National Telecommunications Commission, supra note 91, at 156.
[95] 584 Phil. 246 (2008) [Carpio, J., Separate Concurring Opinion].
[96] Id. at 296-297.
[97] Manila Electric Company v. Spouses Edilo and Felicidad Chita, 637 Phil. 80, 98 (2010).
[98] 256 Phil. 777 (1989).
[99] Id. at 809.
[100] Rollo (G.R. No. 199034), Volume III, pp. 942.
[101] Id. at 939.
[102] Allado v. Diokno, 302 Phil. 213, 238 (1994).
[103] Supra.
[104] Id. at 238.
[105] Rollo (G.R. No. 199034), Volume III, p. 943.
[106] 273 Phil. 290 (1991).
[107] Id. at 299.
[108] Ocampo v. Judge Abando, et al., 726 Phil. 441, 459 (2014).
[109] 1987 CONSTITUTION, Article VIII, Section 5(5).
[110] 359 U.S. 1 (1959).
[111] 240 Phil. 219 (1987).
[112] Philippine Association of Service Exporters, Inc. v. Hon. Franklin M. Drilon, supra note 73, at 398.
[113] Id. at 399.
[114] Executive Secretary v. Southwing Heavy Industries, Inc., 518 Phil. 103, 117 (2006).
[115] Department of Education, Culture and Sports v. Roberto Rey Sandiego, 259 Phil. 1016, 1021 (1989).
[116] Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 557 Phil. 121, 140 (2007).
[117] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, supra note 70, at 406.
[118] James M. Imbong v. Hon. Paquito N. Ochoa, 732 Phil. 1, 108-109 (2014).
[119] Guidelines in the Issuance of Hold-Departure Orders.
[120] Miriam Defensor Santiago v. Conrado M. Vasquez, 291 Phil. 664, 680 (1993).
[121] Section 1(a). DOJ Circular No. 41.
[122] Section 1(b). DOJ Circular No. 41.
[123] Section 2(a). DOJ Circular No. 41.
[124] Section 2(b). DOJ Circular No. 41.
[125] Sections 1(c) and 2(c), DOJ Circular No. 41.
[126] Supra note 78, at 133-134 (1991).
[127] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[128] Id. at 47-48.
[129] Id. at 49-59.
[130] Rollo (G.R. No. 197930), pp. 30-35.
[131] Section 1. Hold Departure Order. - The Secretary of Justice may issue an HDO under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs).
If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information and
(b) a Certification from the Clerk of Court concerned that criminal case is still pending.
(b) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government.
The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.
(c) The Secretary of Justice may likewise issue an HDO against any person, either motu proprio, or upon the request by the Head of a Department of the Government; the head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.
[132] Section 2. Watchlist Order. - The Secretary of Justice may issue a WLO, under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal cases pending trial before the Regional Trial Court.
The application under oath of an interested party must be supported by (a) certified true copy of an Information filed with the court, (b) a certified true copy of the Prosecutor's Resolution; and (c) a Certification from the Clerk of Court concerned that criminal case is still pending.
(b) Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the Department of Justice or any of its provincial or city prosecution offices.
The application under oath of an interested party must be supported by (a) certified true copy of the complaint filed, and (b) a Certification from the appropriate prosecution office concerned that the case is pending preliminary investigation, petition for review, or motion for reconsideration, as the case may be.
(c) The Secretary of Justice may likewise issue a WLO against any person, either motu proprio, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health.
[133] Rollo (G.R. No. 199034), Volume III, p. 971.
[134] Id. at 975.
[135] Silverio v. Court of Appeals, supra note 78, at 133-134.
[136] Miriam Defensor Santiago v. Conrado M. Vasquez, supra note 120.
[137] Id. at 679.
[138] Leave Division-Office of Administrative Services-Office of the Court Administrator v. Wilma Sahacion Heusdens, supra note 87, at 341-342.
[139] Office of the Administrative Services-Office of the Court Administrator v. Judge Ignacio B. Macarine, 691 Phil. 217, 222 (2012).
[140] Id.
[141] Executive Order No. 6 dated March 12, 1986 as amended by Memorandum Order (MO) No. 26 dated July 31, 1986.
[142] Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 464 (2010).
[143] 589 Phil. 1, 10 (2008).
SEC. 4. Authority to Issue, Deny, Restrict, or Cancel. - Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport; Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines.
[145] Rollo (G.R. No. 199034), Volume I, pp. 394-397.
CARPIO, Acting C.J.:
I concur.
The constitutionality of the assailed administrative circular remains justiciable.
Preliminarily, the consolidated petitions continue to present a justiciable controversy. Neither the expiration of the watchlist orders issued by Leila M. De Lima (respondent) as former Secretary of Justice nor the filing of Information for electoral sabotage against petitioner Gloria Macapagal-Arroyo (GMA) rendered the cases moot.
A case becomes moot when it ceases to present a justiciable controversy such that its adjudication would not yield any practical value or use.[1] Where the petition is one for certiorari seeking the nullification of an administrative issuance for having been issued with grave abuse of discretion, obtaining the other reliefs prayed for in the course of the proceedings will not render the entire petition moot altogether. In COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on Elections (COMELEC),[2] the Court thus explained:
Here, the consolidated petitions for certiorari and prohibition assail the constitutionality of Department of Justice (DOJ) Circular No. 041-10,[8] on which respondent based her issuance of watchlist and hold-departure orders against petitioners. Notably, DOJ Circular No. 041-10 was not issued by respondent herself, but by Alberto C. Agra as then Acting Secretary of Justice during the Arroyo Administration. It became effective on 2 July 2010.[9] In fact, the assailed issuance remains in effect. To be sure, whether the watchlist and hold-departure orders issued by respondent against petitioners subsequently expired or were lifted is not determinative of the constitutionality of the circular. Hence, the Court is duty-bound to pass upon the constitutionality of DOJ Circular No. 041-10, being a justiciable issue rather than an exception to the doctrine of mootness.
DOJ Circular No. 041-10 is an invalid impairment of the right to travel, and therefore, unconstitutional.
Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10 violates the constitutional right to travel.
Section 6, Article III of the Constitution reads:
The necessity for a legislative enactment expressly providing for a valid impairment of the right to travel finds basis in no less than the fundamental law of the land. Under Section 1, Article VI of the Constitution, the legislative power is vested in Congress. Hence, only Congress, and no other entity or office, may wield the power to make, amend, or repeal laws.[12]
Accordingly, whenever confronted with provisions interspersed with phrases like "in accordance with law" or "as may be provided by law," the Court turns to acts of Congress for a holistic constitutional construction. To illustrate, in interpreting the clause "subject to such limitations as may be provided by law" in relation to the right to information, the Court held in Gonzales v. Narvasa[13] that it is Congress that will prescribe these reasonable conditions upon the access to information:
I disagree.
In the landmark case of Ople v. Torres,[20] an administrative order was promulgated restricting the right to privacy without a specific law authorizing the restriction. The Office of the President justified its legality by invoking the Revised Administrative Code of 1987. The Court rejected the argument and nullified the assailed issuance for being unconstitutional as the Revised Administrative Code of 1987 was too general a law to serve as basis for the curtailment of the right to privacy, thus:
For the same reason, in the Court's jurisprudence concerning the overseas travel of court personnel during their approved leaves of absence and with no pending criminal case before any court, I have consistently maintained that only a law, not administrative rules, can authorize the Court to impose administrative sanctions for the employee's failure to obtain a travel permit:
Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of persons under preliminary investigation? The answer depends on the nature of the crime for which the passport holders are being investigated on. If the crime affects national security and public safety, the cancellation squarely falls within the ambit of Section 4. Thus, passport holders facing preliminary investigation for the following crimes are subject to the DFA Secretary's power under Section 4:
Thus understood, the "public safety" ground under Section 4 of RA 8239 unquestionably includes violation of election-related offenses carrying the potential of disrupting the peace, such as electoral sabotage which involves massive tampering of votes (in excess of 10,000 votes). Not only does electoral sabotage desecrate electoral processes, but it also arouses heated passion among the citizenry, driving some to engage in mass actions and others to commit acts of violence. The cancellation of passports of individuals investigated for this crime undoubtedly serves the interest of public safety, much like individuals under investigation for robbery, kidnapping, and homicide, among others.[33]
As to whether respondent must be cited in contempt for allegedly defying the Temporary Restraining Order issued by the Court, I agree that it cannot be resolved simultaneously with these consolidated petitions. Until the contempt charge is threshed out in a separate and proper proceeding, I defer expressing my view on this issue.
Accordingly, I vote to GRANT the petitions and to declare DOJ Circular No. 041-10, and the assailed Watchlist Orders issued pursuant to the circular, UNCONSTITUTIONAL for being contrary to Section 6, Article III of the Constitution. As regards the contempt charge against respondent, I DEFER any opinion on this issue until it is raised in a separate and proper proceeding.
[1] Osmeña III v. Social Security System of the Philippines, 559 Phil. 723, 735 (2007), citing Governor Mandanas v. Honorable Romulo, 473 Phil. 806, 827-828 (2004); Olanolan v. COMELEC, 494 Phil. 749, 759 (2005); Paloma v. Court of Appeals, 461 Phil. 269, 276-277 (2003).
[2] 716 Phil. 19 (2013).
[3] Id. at 28-29.
[4] Castrodes v. Cubelo, 173 Phil. 86 (1978).
[5] Id. at 91.
[6] Cooperative Rural Bank of Davao City. Inc., v. Ferrer-Calleja, 248 Phil. 169 (1988).
[7] Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, 25 January 2016, 781 SCRA 607, 619.
[8] Otherwise known as Consolidated Rules and Regulations Governing the Issuances and Implementing of Hold Departure Orders, Watchlist Orders and Allow Departure Orders.
[9] DOJ Circular No. 041-10 was published in The Philippine Star on 17 June 2010. Under Art. 2 of the Civil Code, as interpreted by the Court in Tañada v. Tuvera, 230 Phil. 528, 533-534 (1986), DOJ Circular No. 041-10 shall take effect after 15 days from the date of its publication.
[10] Dr. Cruz v. Judge Iturralde, 450 Phil. 77, 86 (2003); Hold-Departure Order issued by Judge Occiano, 431 Phil. 408, 411-412 (2002); Silverio v. Court of Appeals, 273 Phil. 128, 134-135 (1991).
[11] See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, 678 Phil. 328, 355 (2011).
[12] See Belgica v. Ochoa, 721 Phil. 416, 546 (2013).
[13] 392 Phil. 518 (2000).
[14] Id. at 529-530.
[15] 554 Phil. 609 (2007).
[16] Id. at 625-626.
[17] 412 Phil. 308 (2001).
[18] Id. at 331-332.
[19] Consolidated Comment, p. 36.
[20] 354 Phil. 948 (1998).
[21] Id. at 966, 968-969.
[22] Office of the Solicitor General v. Court of Appeals, 735 Phil. 622, 630 (2014); Calingin v. Court of Appeals, 478 Phil. 231, 236-237 (2004); Government Service Insurance System v. Civil Service Commission, 307 Phil. 836, 846 (1994).
[23] See my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, supra note 11, at 354-356.
[24] "Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion."
[25] "Coercion of election officials and employees."
[26] "[Carrying of] deadly weapons in prohibited areas."
[27] "Carrying of firearms outside residence or place of business."
[28] "Wearing of uniforms and bearing arms."
[29] "Organization or maintenance of reaction forces, strike forces, or other similar forces."
[30] Batas Pambansa Blg. 881, as amended.
[31] Defining the offense of Electoral Sabotage.
[32] E.g., (1) Art. III, Sec. 3(1) ["The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law."]; Sec. 6 ["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."]; Sec. 15 ["The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it."]); and (2) Art. VII, Sec. 15 ["Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."]: Sec. 18, par. 2 ["In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. x x x. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it."] (Emphasis supplied)
[33] It is not farfetched to link election laws with public safety. The European Court of Human Rights considers the forced abolition of a political party espousing violent and extreme views as permissible in the interest of public safety, even though this impairs the party members' right to association. See Refah Partisi v. Turkey, 13 February 2003, Application Nos. 41340/98, 41342/98, 41343/98 and 41344/9837. (www.echr.coe.int/Documents/Reports_Recueil_2003-II.pdf, accessed on 18 January 2018)
VELASCO,JR., J.:
I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes, Jr.
That the right to travel and to freedom of movement are guaranteed protection by no less than the fundamental law of our land brooks no argument. While these rights are not absolute, the delimitation thereof must rest on specific circumstances that would warrant the intrusion of the State. As mandated by Section 6 of the Bill of Rights, any curtailment of the people's freedom of movement must indispensably be grounded on an intrinsically valid law, and only whenever necessary to protect national security, public safety, or public health, thus:
Jurisprudence dictates that the validity of an administrative issuance is hinged on compliance with the following requirements: 1) its promulgation is authorized by the legislature; 2) it is promulgated in accordance with the prescribed procedure; 3) it is within the scope of the authority given by the legislature; and 4) it is reasonable.[2] The DOJ, thus, exceeded its jurisdiction when it assumed to wield the power to issue hold departure orders (HDOs) and watchlist orders (WLOs), and allow department orders which unduly infringe on the people's right to travel absent any specific legislation expressly vesting it with authority to do so.
I, therefore, concur that DOJ Circular No. 41 is without basis in law and is, accordingly, unconstitutional.
With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a quandary and without prompt recourse for preventing persons strongly suspected of committing criminal activities from evading the reach of our justice system by fleeing to other countries.
Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996, which expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen, even those of persons under preliminary investigations, for crimes affecting national security and public safety. This course of action, while undoubtedly a legally viable solution to the DOJ's dilemma, would nevertheless require the conduct of a hearing, pursuant to Section 4[3] of the law. This would inevitably alert the said persons of interest of the cause and purpose of the cancellation of their passports that could, in turn, facilitate, rather than avert, their disappearance to avoid the processes of the court.
As an alternative solution, it is my humble submission that the above predicament can be effectively addressed through the ex-parte issuance of precautionary warrants of arrest (PWAs) and/or precautionary hold departure orders (PHDOs) prior to the filing of formal charges and information against suspected criminal personalities.
The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of the Constitution, to wit:
Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of arrest, akin to a search warrant, may be crafted by the Court. The application will be done ex-parte, by a public prosecutor upon the initiative of our law enforcement agencies, before an information is filed in court, and only in certain serious crimes and offenses. Before filing the application, the public prosecutor shall ensure that probable cause exists that the crime has been committed and that the person sought to be arrested committed it. The law enforcement agencies may also opt to ask for a PWA with PHDO or simply a PHDO.
The judge's determination of probable cause shall be done in accordance with the requirements in Section 2, Article III of the Constitution. He shall set a hearing on the application to personally examine under oath or affirmation, in form of searching questions and answers, the applicant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements. If satisfied of the existence of probable cause based on the application and its attachments, the testimonies of the witnesses, and other evidence presented during the hearing, the judge may issue the warrant and direct the Philippine National Police or the National Bureau of Investigation to effect the arrest.
The suggested revision in the Rules, to my mind, will help solve the problem caused by the declaration of nullity of the HDOs and WLOs issued by the DOJ. The law enforcement agencies can apply for a PWA or PHDO to prevent suspects from fleeing the country and to detain and arrest them at the airport. This may also solve the problem of extrajudicial killings as the law enforcement agency is now provided with an adequate remedy for the arrest of the criminals.
I vote to GRANT the petition.
[1] Page 22 of the Decision.
[2] Hon. Executive Secretary, et. al. v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, 482 SCRA 673, 686.
[3] SEC. 4. Authority to Issue, Deny, Restrict or Cancel. - Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to tlie Philippines. (Emphasis supplied)
[4] Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a)
LEONEN, J.:
I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional. The Department of Justice is neither authorized by law nor does it possess the inlierent power to issue hold departure orders, watchlist orders, and allow departure orders against persons under preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of persons to travel can only be impaired by a legislative enactment as it can likewise be burdened by other constitutional provisions.
The pertinent Constitutional provision on the right to travel is Article III, Section 6, which states:
In my view, the right to travel should not be given such a restrictive interpretation. In the broad sense, the right to travel refers to the "right to move from one place to another."[3] The delimitation set in Marcos effectively excludes instances that may involve a curtailment on the right to travel within the Philippines and the right to travel to the Philippines. This case presents us with an opportunity to revisit Marcos and abandon its narrow and restrictive interpretation. In this regard, the constitutional provision should be read to include travel within the Philippines and travel to and from the Philippines.
Undeniably, the right to travel is not absolute. Article III, Section 6 of the Constitution states that any curtailment must be based on "national security, public safety, or public health, as may be provided by law."
In interpreting this constitutional provision, the ponencia proposes that only a statute or a legislative enactment may impair the right to travel.
Respectfully, I disagree. In my view, the phrase "as may be provided by law" should not be literally interpreted to mean statutory law. Its usage should depend upon the context in which it is written. As used in the Constitution, the word "law" does not only refer to statutes but embraces the Constitution itself.
The Bill of Rights is replete with provisions that provide a similar phraseology. For instance, both the due process clause and the equal protection clause under Article III, Section 1 of the Constitution contain the word "law," thus:
In Ynot v. Intermediate Appellate Court,[4] the due process clause was deemed to have been violated by an executive order which directed the outright confiscation of carabaos transported from one province to another. In declaring the executive order unconstitutional, this Court held:
In Biraogo v. Truth Commission,[8] the creation of the Philippine Truth Commission by virtue of an executive order was deemed unconstitutional for violating the equal protection clause. The classification under the executive order, according to this Court, was unreasonable, thus:
For instance, the assailed department order in Philippine Association of Service Exporters, Inc. v. Drilon[10] was not founded upon national security, public safety, or public health but on the state's policy of affording protection to labor.[11] The department order was deemed a valid restriction on the right to travel.[12]
The term "law" in Article III, Section 6 can refer to the Constitution itself. This can be understood by examining this Court's power to regulate foreign travel of court personnel and the nature and functions of bail.
The power of this Court to regulate the foreign travel of court personnel does not emanate from statutory law, nor is it based on national security, public safety, or public health considerations. Rather, it is an inherent power flowing from Article III, Section 5(6) of the Constitution, which grants this Court the power of administrative supervision over all courts and court personnel.[13]
The nature and object of this Court's power to control the foreign travel of court personnel were further explained in Leave Division, Office of Administrative Services — Office of the Court Administrator v. Heusdens,[14] thus:
Similar to the power of this Court to control foreign travel of court personnel, the power to restrict the travel of persons admitted to bail is neither based on a legislative enactment nor founded upon national security, public safety, or public health considerations. The power of courts to restrict the travel of persons on bail is deemed a necessary consequence of the conditions imposed in a bail bond.[19] In Manotoc v. Court of Appeals[20] this Court explained:
Parenthetically, I agree that the right to travel is part and parcel of an individual's right to liberty, which cannot be impaired without due process of law.[28]
The ponencia mentions Rubi v. Provincial Board of Mindoro.[29] In my view, Rubi should always be cited with caution. In Rubi, the Mangyans of Mindoro were forcibly removed from their habitat and were compelled to settle in a reservation under pain of imprisonment for non-compliance.[30] Although the concepts of civil liberty and due process were extensively discussed in the case,[31] this Court nevertheless justified the government act on a perceived necessity to "begin the process of civilization" of the Mangyans who were considered to have a "low degree of intelligence" and as "a drag upon the progress of the State."[32]
[1] 258 Phil. 489 (1989) [Per J. Cortes, En Banc].
[2] Id. at 497-498.
[3] Mirasol v. Department of Public Works and Highways, 523 Phil. 713, 752 (2006) [Per J. Carpio, En Banc].
[4] 232 Phil. 615, 631 (1987) [Per J. Cruz, En Banc].
[5] Id. at 631.
[6] 347 Phil. 333 (1997) [Per J. Romero, En Banc].
[7] Id. at 344.
[8] 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[9] Id. at 461-462.
[10] 246 Phil. 393 (1988) [Per J. Sarmiento, En Banc].
[11] Id. at 404-405.
[12] Id.
[13] CONST., art. VIII, sec. 5(6) provides:
Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
[14] 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].
[15] Id. at 341-342.
[16] Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].
[17] OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders (1997):
In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated:
1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts;
2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal;
3. The Hold-Departure Order shall contain the following information:
a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined;
b. The complete title and the docket number of the case in which the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included.
4. Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four (24) hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal.
All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved.
[18] Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].
[19] Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].
[20] 226 Phil. 75 (1986) [Per J. Fernan, En Banc].
[21] Id. at 82-83.
[22] Silverio v. Court of Appeals, 273 Phil. 128, 134 (1991) [Per J. Melencio-Herrera, Second Division].
[23] 273 Phil. 128 (1991) [Per J. Melencio-Herrera, Second Division].
[24] Id. at 134.
[25] 291 Phil. 664 (1993) [Per J. Regalado, En Banc].
[26] Id. at 679-680.
[27] 1987 ADM. CODE, Title III, sec. 3(2).
[28] Ponencia, pp. 16-17.
[29] 39 Phil. 660 (1919) [Per J. Malcolm, En Banc].
[30] Id. at 666-669.
[31] Id. at 703-707.
[32] Id. at 718-720.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41, thus:
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of the Order[4] dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).
- Watchlist Order No. ASM-11-237 dated August 9, 2011;[1]
- Amended Watchlist Order No. 2011-422 dated September 6, 2011;[2] and
- Watchlist Order No. 2011-573 dated October 27, 2011.[3]
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order[5] (HDO) No. 2011-64 dated July 22, 2011 issued against them.
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules and regulations governing the issuance of HDOs. The said issuance was intended to restrain the indiscriminate issuance of HDOs which impinge on the people's right to travel.
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules and regulations governing the issuance and implementation of watchlist orders. In particular, it provides for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases pending preliminary investigation or petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an ADO to a person subject of a WLO who intends to leave the country for some exceptional reasons.[6] Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the governing rule on the issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and regulations contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent election as Pampanga representative, criminal complaints were filed against her before the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for plunder;[7]
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus Election Code (OEC), violation of the Code of Conduct and Ethical Standards for Public Officials, and qualified theft;[8] and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of the Code of Conduct and Ethical Standards for Public Officials and qualified theft.[9]
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.[10] Thereafter, the BI issued WLO No. ASM-11-237,[11] implementing De Lima's order.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.[12] WLO No. 2011-422, as amended, is valid for a period of 60 days, or until November 5, 2011, unless sooner terminated or otherwise extended. This was lifted in due course by De Lima, in an Order dated November 14, 2011, following the expiration of its validity.[13]
Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the OEC were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007 Election Fraud,[14] specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC and COMELEC Rules and Regulations;[15] and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et al., for electoral sabotage.[16]
Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26, 2011, unless sooner terminated or otherwise extended.[17]
In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may be able to seek medical attention from medical specialists abroad for her hypoparathyroidism and metabolic bone mineral disorder. She mentioned six different countries where she intends to undergo consultations and treatments: United States of America, Germany, Singapore, Italy, Spain and Austria.[18] She likewise undertook to return to the Philippines, once her treatment abroad is completed, and participate in the proceedings before the DOJ.[19] In support of her application for ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary of Foreign Affairs, of her Travel Authority;To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona (Dr. Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr. Ona, accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited GMA at her residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were GMA's attending doctors who explained her medical condition and the surgical operations conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having undergone a series of three major operations."[24]
2. First Endorsement dated October 19, 2011[20] of Artemio A. Adasa, OIC Secretary General of the House of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to include travel to Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011,[21] stating the purpose of travel to Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011,[22] signed by Dr. Roberto Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011,[23] signed by Dr. Mario Ver;
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of consultations with doctors in Singapore.
On November 8, 2011, before the resolution of her application for ADO, GMA filed the present Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs issued against her for allegedly being unconstitutional.[25]
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari, and Prohibition under the same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed as G.R. No. 199046.[26]
Also, on November 8, 2011, De Lima issued an Order,[27] denying GMA's application for an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of the applicant as stated in her affidavit, on the other hand, and the medical abstract of the physicians as well as her physician's statements to Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the other.On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a Very Urgent Manifestation and Motion[29] in G.R. Nos. 199034 and 199046, praying (1) that they be given a reasonable time to comment on the petitions and the applications for a TRO and/or writ of preliminary injunction before any action on the same is undertaken by the Court; (2) that the applications for TRO and/or writ of preliminary injunction be denied for lack of merit, and; (3) that the petitions be set for oral arguments after the filing of comments thereto.[30]
x x x x
Second, based on the medical condition of Secretary Ona, there appears to be no urgent and immediate medical emergency situation for Applicant to seek medical treatment abroad, x x x.
x x x x
Third, Applicant lists several countries as her destination, some of which were not for purposes of medical consultation, but for attending conferences, x x x.
x x x x
Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her medical treatment, this means that her return will always depend on said treatment, which, based on her presentation of her condition, could last indefinitely, x x x.
x x x x
Fifth, x x x x. Applicant has chosen for her destination five (5) countries, namely, Singapore, Germany, Austria, Spain and Italy, with which the Philippines has no existing extradition treaty, x x x.
x x x x
IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO) of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED.[28]
On November 13, 2011, GMA filed a Supplemental Petition[31] which included a prayer to annul and set aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA filed her Comment/Opposition[32] to the respondents' Very Urgent Manifestation and Motion dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,[33] ordering the consolidation of G.R. Nos. 199034 and 199046, and requiring the respondents to file their comment thereto not later than November 18, 2011. The Court likewise resolved to issue a TRO in the consolidated petitions, enjoining the respondents from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable to this Court within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will result in the automatic lifting of the temporary restraining order;On the very day of the issuance of the TRO, the petitioners tendered their compliance[35] with the conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the following: (1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required cash bond of Two Million Pesos (P2,000,000.00);[36] (2) certification from the Fiscal and Management and Budget Office of the Supreme Court, showing that the cash bond is already on file with the office;[37] (3) special powers of attorney executed by the petitioners, appointing their respective lawyers as their legal representatives;[38] and (4) an undertaking to report to the nearest consular office in the countries where they will travel.[39]
(ii) The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders and other legal processes on their behalf during their absence. The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all times;[34]
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore. However, the BI officials at NAIA refused to process their travel documents which ultimately resulted to them not being able to join their flights.[40]
On November 17, 2011, GMA, through counsel, filed an Urgent Motion[41] for Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO issued by the Court was immediately executory and that openly defying the same is tantamount to gross disobedience and resistance to a lawful order of the Court.[42] Not long after, Miguel Arroyo followed through with an Urgent Manifestation,[43] adopting and repleading all the allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or to Lift TRO,[44] praying that the Court reconsider and set aside the TRO issued in the consolidated petitions until they are duly heard on the merits. In support thereof, they argue that the requisites for the issuance of a TRO and writ of preliminary injunction were not established by the petitioners. To begin with, the petitioners failed to present a clear and mistakable right which needs to be protected by the issuance of a TRO. While the petitioners anchor their right in esse on the right to travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute. One of the limitations on the right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-making powers of the DOJ in order to keep individuals under preliminary investigation within the jurisdiction of the Philippine criminal justice system. With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot claim that they have a clear and unmistakable right to leave the country as they are the very subject of the mentioned issuance.[45] Moreover, the issuance of a TRO will effectively render any judgment on the consolidated petitions moot and academic. No amount of judgment can recompense the irreparable injury that the state is bound to suffer if the petitioners are permitted to leave the Philippine jurisdiction.[46]
On November 18, 2011, the Court issued a Resolution,[47] requiring De Lima to show cause why she should not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO. She was likewise ordered to immediately comply with the TRO by allowing the petitioners to leave the country. At the same time, the Court denied the Consolidated Urgent Motion for Reconsideration and/or to Lift TRO dated November 16, 2011 filed by the Office of the Solicitor General.[48]
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-PSY-11-04432-CR[49] and raffled to Branch 112. A warrant of arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the respondents filed an Urgent Manifestation with Motion to Lift TRO.[50] They argue that the filing of the information for electoral sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this Court. They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the disposition of the case. The issue therefore on the validity of the assailed WLOs should properly be raised and threshed out before the RTC of Pasay City where the criminal case against GMA is pending, to the exclusion of all other courts.[51]
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated November 21, 2011,[52] lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22, 2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral arguments on December 1, 2011, the parties were required to submit their respective memoranda.[53]
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011[54] was issued against Genuinos, among others, after criminal complaints for Malversation, as defined under Article 217 of the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against them by the Philippine Amusement and Gaming Corporation (PAGCOR), through its Director, Eugene Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for the film "Baler." This was followed by the filing of another complaint for Plunder under R.A. No. 7080, Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as well as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was thereafter filed against Efraim and Erwin was filed before the Office of the Ombudsman for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds intended for the Philippine Sports Commission directly to the Philippine Amateur Swimming Association, Inc.[55] In a Letter[56] dated July 29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against them be lifted. This plea was however denied in a Letter[57] dated August 1, 2011 which prompted the institution of the present petition by the Genuinos. In a Resolution[58] dated April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties and their pleadings, sums up the issues for consideration as follows:
I
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; andIII
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF COURT.
Ruling of the Court
The Court may exercise its power of judicial review despite the filing of information for electoral sabotage against GMA. It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable controversy. They argue that the instant petitions had been rendered moot and academic by (1) the expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6, 2011;[59] (2) the filing of an information for electoral sabotage against GMA,[60] and; (3) the lifting of the WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent deletion of his name from the BI watchlist after the COMELEC en banc dismissed the case for electoral sabotage against him.[61]
The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which reads:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[62]
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[63]
Except for the first requisite, there is no question with respect to the existence of the three (3) other requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them by authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and academic since there is no longer any actual case or controversy to resolve following the subsequent filing of an information for election sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo and the deletion of his name from the BI watchlist after the dismissal of the complaint for electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief."[64] When the issues have been resolved or when the circumstances from which the legal controversy arose no longer exist, the case is rendered moot and academic. "A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value."[65]
The Court believes that the supervening events following the filing of the instant petitions, while may have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues raised by the petitioners. The Court, after assessing the necessity and the invaluable gain that the members of the bar, as well as the public may realize from the academic discussion of the constitutional issues raised in the petition, resolves to put to rest the lingering constitutional questions that abound the assailed issuance. This is not a novel occurrence as the Court, in a number of occasions, took up cases up to its conclusion notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections,[66] the Court so emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.[67]In Prof. David vs. Pres. Macapagal-Arroyo,[68] the Court proceeded in ruling on the constitutionality of Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and General Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces of the Philippines and the Philippine National Police to carry all necessary actions to suppress acts of terrorism and lawless violence, notwithstanding the issuance of PP 1021 lifting both issuances. The Court articulated, thus:
The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.In the instant case, there are exceptional circumstances that warrant the Court's exercise of its power of judicial review. The petitioners impute the respondents of violating their constitutional right to travel through the enforcement of DOJ Circular No. 41. They claim that the issuance unnecessarily places a restraint on the right to travel even in the absence of the grounds provided in the Constitution.
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.[69] (Citations omitted and emphasis supplied)
There is also no question that the instant petitions involved a matter of public interest as the petitioners are not alone in this predicament and there can be several more in the future who may be similarly situated. It is not far fetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will recur considering the thousands of names listed in the watch list of the DOJ, who may brave to question the supposed illegality of the issuance. Thus, it is in the interest of the public, as well as for the education of the members of the bench and the bar, that this Court takes up the instant petitions and resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the nation; it is deemed written in every statute and contract.[70] If a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the compendium of the guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on government officials and instrumentalities. It is that lone unifying code, an inviolable authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of Rights contained in Article III. In particular, Section 1 thereof provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever he pleases, for each is given an equal right to enjoy his liberties, with no one superior over another. Hence, the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties. Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will. It is subject to the far more overriding demands and requirements of the greater number."[71]
It is therefore reasonable that in order to achieve communal peace and public welfare, calculated limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions, the Constitution itself has provided for exceptions and restrictions to balance the free exercise of rights with the equally important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,[72] it was defined as the inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. It is rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare.[73]
Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint the exception.[74] Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so that they may not unreasonably interfere with the free exercise of constitutional guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of law.[75] It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. Pertinently, Section 6, Article III of the Constitution provides:
Section 6. 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 maybe provided by law.Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he pleases and to travel wherever he wills.[76] Thus, in Zacarias Villavicencio vs. Justo Lucban,[77] the Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects. It was held that regardless of the mayor's laudable intentions, no person may compel another to change his residence without being expressly authorized by law or regulation.
It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be impaired only in the interest of national security, public safety or public health, as may be provided by law. In Silverio vs. Court of Appeals,[78] the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.[79] (Emphasis ours)Clearly, under the provision, there are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court[80] providing for the impairment. The requirement for a legislative enactment was purposely added to prevent inordinate restraints on the person's right to travel by administrative officials who may be tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should be construed against the government and in favor of the individual.[81]
The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on order of a court or without the order of a court, the impairment must be in accordance with the prescriptions of law; that is, it is not left to the discretion of any public officer.[82]It is well to remember that under the 1973 Constitution, the right to travel is compounded with the liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. (Emphasis ours)The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected to "hamletting" under the Marcos regime.[83] Realizing the loophole in the provision, the members of the Constitutional Commission agreed that a safeguard must be incorporated in the provision in order to avoid this unwanted consequence. Thus, the Commission meticulously framed the subject provision in such a manner that the right cannot be subjected to the whims of any administrative officer. In addressing the loophole, they found that requiring the authority of a law most viable in preventing unnecessary intrusion in the freedom of movement, viz.:
MR. NOLLEDO. x x x xDuring the discussions, however, the Commission realized the necessity of separating the concept of liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards were laid down which will protect the liberty of abode and the right to travel separately, viz.:
My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of abode shall not be impaired except upon lawful order of the court or - underscoring the word "or" - when necessary in the interest of national security, public safety or public health. So, in the first part, there is the word "court"; in the second part, it seems that the question rises as to who determines whether it is in the interest of national security, public safety, or public health. May it be determined merely by administrative authorities?
FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative authorities provided that they act, according to line 9, within the limits prescribed by law. For instance when this thing came up; what was in mind were passport officers. If they want to deny a passport on the first instance, do they have to go to court? The position is, they may deny a passport provided that the denial is based on the limits prescribed by law. The phrase "within the limits prescribed by law" is something which is added here. That did not exist in the old provision.[84]
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting" upon lawful order of the court. x x x.It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court and, on the one hand, the right to travel may only be impaired by a law that concerns national security, public safety or public health. Therefore, when the exigencies of times call for a limitation on the right to travel, the Congress must respond to the need by explicitly providing for the restriction in a law. This is in deference to the primacy of the right to travel, being a constitutionally-protected right and not simply a statutory right, that it can only be curtailed by a legislative enactment.
x x x x
MR. RODRIGO. Aside from that, this includes the right to travel?
FR. BERNAS. Yes.
MR. RODRIGO. And there are cases when passports may not be granted or passports already granted may be cancelled. If the amendment is approved, then passports may not be cancelled unless it is ordered by the court. Is that the intention? x x x x
FR. BERNAS. Yes
MR. RODRIGO. But another right is involved here and that is to travel.SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of abode and or changing the same from the right to travel, because they may necessitate different provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
x x x xRESUMPTION OF SESSION
x x x x
THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized
The session is resumed.
FR. BERNAS. The proposal is amended to read:
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 MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.[85]
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,[86] the Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and Employment, which temporarily suspended the deployment of domestic and household workers abroad. The measure was taken in response to escalating number of female workers abroad who were subjected to exploitative working conditions, with some even reported physical and personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to "afford protection to labor." Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator (OCA) vs. Wilma Salvacion P. Heusdens,[87] the Court enumerated the statutes which specifically provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right vis-a-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be resolved in favor of the free exercise of the right, absent any explicit provision of law to the contrary.
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions thereof, the [BI], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child."[88]
The issuance of DOJ Circular No. 41 has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them.[89]
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance apparently designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the agency's rule-making powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making powers, among others. It is the "power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of non-delegability and separability of powers."[90] In the exercise of this power, the rules and regulations that administrative agencies promulgate should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in conformity with, the standards prescribed by law. They must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to be valid.[91]
It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions.[92]
A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; implement the laws on the admission and stay of aliens, citizenship, land titling system, and settlement of land problems involving small landowners and member of indigenous cultural minorities; and provide free legal services to indigent members of the society.A plain reading of the foregoing provisions shows that they are mere general provisions designed to lay down the purposes of the enactment and the broad enumeration of the powers and functions of the DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the language of the provision itself does not lend to that stretched construction. To be specific, Section 1 is simply a declaration of policy, the essence of the law, which provides for the statement of the guiding principle, the purpose and the necessity for the enactment. The declaration of policy is most useful in statutory construction as an aid in the interpretation of the meaning of the substantive provisions of the law. It is preliminary to the substantive portions of the law and certainly not the part in which the more significant and particular mandates are contained. The suggestion of the former DOJ Secretary that the basis of the issuance of DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not only defeats logic but also the basic style of drafting a decent piece of legislation because it supposes that the authors of the law included the operative and substantive provisions in the declaration of policy when its objective is merely to introduce and highlight the purpose of the law.
x x x x
Section 3. Powers and Functions. - to accomplish its mandate, the Department shall have the following powers and functions:
corporations and their subsidiaries;
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the substantive portions of the act. Such provisions are available for clarification of ambiguous substantive portions of the act, but may not be used to create ambiguity in other substantive provisions."[93]
In the same way, Section 3 does not authorize the DOJ to issue WLOs and HDOs to restrict the constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that will justify the impairment. The provision simply grants the DOJ the power to investigate the commission of crimes and prosecute offenders, which are basically the functions of the agency. However, it does not carry with it the power to indiscriminately devise all means it deems proper in performing its functions without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment or restriction in the exercise of a constitutional right must be clear, categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by an administrative body, as well as with respect to what fields are subject to regulation by it. It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute.[94]The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides for the types of issuances that administrative agencies, in general, may issue. It does not speak of any authority or power but rather a mere clarification on the nature of the issuances that may be issued by a secretary or head of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances. - The administrative issuances of Secretaries and heads of bureaus, offices and agencies shall be in the form of circulars or orders.In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41. The memorandum particularly made reference to Subsections 3, 4 and 9 which state:
(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures promulgated pursuant to law, applicable to individuals and organizations outside the Government and designed to supplement provisions of the law or to provide means for carrying them out, including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning specific matters including assignments, detail and transfer of personnel, for observance or compliance by all concerned. (Emphasis Ours)
Section 7. Powers and Functions of the Secretary. - The Secretary shall:It is indisputable that the secretaries of government agencies have the power to promulgate rules and regulations that will aid in the performance of their functions. This is adjunct to the power of administrative agencies to execute laws and does not require the authority of a law. This is, however, different from the delegated legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASJS) et al. vs. Hon. Purisima et al.,[95] is illuminating:
The inherent power of the Executive to adopt rules and regulations to execute or implement the law is different from the delegated legislative power to prescribe rules. The inherent power of the Executive to adopt rules to execute the law does not require any legislative standards for its exercise while the delegated legislative power requires sufficient legislative standards for its exercise.The questioned circular does not come under the inherent power of the executive department to adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being confined to execution of laws. This is the import of the terms "when expressly provided by law" or "as may be provided by law" stated in Sections 7(4) and 7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined to filling in the gaps and the necessary details in carrying into effect the law as enacted.[97] Without a clear mandate of an existing law, an administrative issuance is ultra vires.
x x x x
Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive power depends on the nature of the rule-making power involved. If the rule-making power is inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the Executive is a delegated legislative power. In such event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the power.
If the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power, x x x. The rule is that the President can execute the law without any delegation of power from the legislature. Otherwise, the President becomes a mere figure-head and not the sole Executive of the Government.[96]
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the existence of the enabling law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No. 41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is disastrous to democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,[98] the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right.[99]The DOJ would however insist that the resulting infringement of liberty is merely incidental, together with the consequent inconvenience, hardship or loss to the person being subjected to the restriction and that the ultimate objective is to preserve the investigative powers of the DOJ and public order.[100] It posits that the issuance ensures the presence within the country of the respondents during the preliminary investigation.[101] Be that as it may, no objective will ever suffice to legitimize desecration of a fundamental right. To relegate the intrusion as negligible in view of the supposed gains is to undermine the inviolable nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former.[102] Thus, in Allado vs. Diokno,[103] the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution.[104]The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel, especially when the risk of flight is distinctly high will surely impede the efficient and effective operation of the justice system. The absence of the petitioners, it asseverates, would mean that the farthest criminal proceeding they could go would be the filing of the criminal information since they cannot be arraigned in absentia.[105]
The predicament of the DOJ is understandable yet untenable for relying on grounds other what is permitted within the confines of its own power and the nature of preliminary investigation itself. The Court, in Paderanga vs. Drilon,[106] made a clarification on the nature of a preliminary investigation, thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. x x x A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof.[107]It bears emphasizing that the conduct of a preliminary investigation is an implement of due process which essentially benefits the accused as it accords an opportunity for the presentation of his side with regard to the accusation.[108] The accused may, however, opt to waive his presence in the preliminary investigation. In any case, whether the accused responds to a subpoena, the investigating prosecutor shall resolve the complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the accused is not necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive his presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall be bound by the determination of the prosecutor on the presence of probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41 on the ground that it is necessary to ensure presence and attendance in the preliminary investigation of the complaints. There is also no authority of law granting it the power to compel the attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have; it is a usurpation of function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ of empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the separation of powers between the three branches of the government and cannot be upheld. Even the Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not diminish, increase, or modify substantive rights.[109] This should have cautioned the DOJ, which is only one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel were found reasonable, i.e. New York v. O'Neill,[110] Kwong vs. Presidential Commission on Good Government[111] and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since the Court never ruled on the constitutionality of the authority of the PCGG to issue HDOs in the said case. On the contrary, there was an implied recognition of the validity of the PCGG's Rules and Regulations as the petitioners therein even referred to its provisions to challenge the PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of its effectivity. The petitioners never raised any issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but only questioned the agency's non-observance of the rules particularly on the lifting of HDOs. This is strikingly different from the instant case where the main issue is the constitutionality of the authority of the DOJ Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said case, the respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under which authority a judge of the Court of General Sessions, New York County requested the Circuit Court of Dade County, Florida, where he was at that time, that he be given into the custody of New York authorities and be transported to New York to testify in a grand jury proceeding. The US Supreme Court upheld the constitutionality of the law, ruling that every citizen, when properly summoned, has the obligation to give testimony and the same will not amount to violation of the freedom to travel but, at most, a mere temporary interference. The clear deviation of the instant case from New York is that in the latter case there is a law specifically enacted to require the attendance of the respondent to court proceedings to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation to give testimony, he is absolutely free to return in the state where he was found or to his state of residence, at the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an enabling law where it could have derived its authority to interfere with the exercise of the right to travel. Further, the respondent is subjected to continuing restraint in his right to travel as he is not allowed to go until he is given, if he will ever be given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular No. 41 under the guise of police power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains to the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare."[112] "It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."[113] Verily, the exercise of this power is primarily lodged with the legislature but may be wielded by the President and administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay, by virtue of a valid delegation of power.[114]
It bears noting, however, that police power may only be validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals.[115]
On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims to be exercising the same as the alter ego of the President, it must first establish the presence of a definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed to do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably necessary in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the Constitution.[116] It must never be utilized to espouse actions that violate the Constitution. Any act, however noble its intentions, is void if it violates the Constitution.[117] In the clear language of the Constitution, it is only in the interest of national security, public safety and public health that the right to travel may be impaired. None one of the mentioned circumstances was invoked by the DOJ as its premise for the promulgation of DOJ Circular No. 41.
DOJ Circular No. 41 transcends constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render it invalid. The apparent vagueness of the circular as to the distinction between a HDO and WLO is violative of the due process clause. An act that is vague "violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle."[118] Here, the distinction is significant as it will inform the respondents of the grounds, effects and the measures they may take to contest the issuance against them. Verily, there must be a standard by which a HDO or WLO may be issued, particularly against those whose cases are still under preliminary investigation, since at that stage there is yet no criminal information against them which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court Administrator, clearly state that "[HDO] shall be issued only in criminal cases within the exclusive jurisdiction of the [RTCs]," said circulars are, however, silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices;Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the supposed inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which is SC Circular No. 39-97.[119] It is the DOJ's impression that with the silence of the circular with regard to the issuance of HDOs in cases falling within the jurisdiction of the MTC and those still pending investigation, it can take the initiative in filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake such action since the issuance of HDOs is an exercise of this Court's inherent power "to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused."[120] It is an exercise of judicial power which belongs to the Court alone, and which the DOJ, even as the principal law agency of the government, does not have the authority to wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount to an infringement on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ, the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term "only." The reason lies in seeking equilibrium between the state's interest over the prosecution of the case considering the gravity of the offense involved and the individual's exercise of his right to travel. Thus, the circular permits the intrusion on the right to travel only when the criminal case filed against the individual is within the exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are punishable with imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain to less serious offenses which is not commensurate with the curtailment of a fundamental right. Much less is the reason to impose restraint on the right to travel of respondents of criminal cases still pending investigation since at that stage no information has yet been filed in court against them. It is for these reasons that Circular No. 39-97 mandated that FIDO may only be issued in criminal cases filed with the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary may issue HDO against the accused in criminal cases within the jurisdiction of the MTC[121] and against defendants, respondents and witnesses in labor or administrative cases,[122] no matter how unwilling they may be. He may also issue WLO against accused in criminal cases pending before the RTC,[123] therefore making himself in equal footing with the RTC, which is authorized by law to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO against respondents in criminal cases pending preliminary investigation, petition for review or motion for reconsideration before the DOJ.[124] More striking is the authority of the DOJ Secretary to issue a HDO or WLO motu proprio, even in the absence of the grounds stated in the issuance if he deems necessary in the interest of national security, public safety or public health.[125]
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it remains effective even after the lapse of its validity period as long as the DOJ Secretary does not approve the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint in his mobility as he awaits a favorable indorsement of the government agency that requested for the issuance of the HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit a person subject of HDO or WLO to travel through the issuance of an ADO upon showing of "exceptional reasons" to grant the same. The grant, however, is entirely dependent on the sole discretion of the DOJ Secretary based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can take the place of a law that authorizes the restraint in the right to travel only in the interest of national security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid—for an executive officer to impose restriction or exercise discretion that unreasonably impair an individual's right to travel- thus, the addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the Court underscored that this phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.[126] The qualifying phrase is not a mere innocuous appendage. It secures the individual the absolute and free exercise of his right to travel at all times unless the more paramount considerations of national security, public safety and public health call for a temporary interference, but always under the authority of a law.
The subject WLOs and the restraint on the right to travel.
In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings thereof. For better illustration, the said WLOs are hereby reproduced as follows:
WLO No. ASM-11-237[127]On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently states:
(Watchlist)
In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- xORDER
On 09 August 2011, Hon. Leila M. Dc Lima, Secretary of the Department of Justice issued an order docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the Department of Justice in connection with the following cases:
Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated 25 May 2010, we order the inclusion of the name GLORIA M. MACAPAGAL-ARROYO in the Watchlist.
This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.
The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this Order.
Notify the Computer Section.
SO ORDERED.
09 August 2011 (Emphasis ours)__________________________________
Watchlist Order No. 2011-422[128]
In re: Issuance of Watchlist
Order against MA. GLORIA M. MACAPAGAL-ARROYOAMENDED ORDER
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in connection with the following cases:
Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 (Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders), the undersigned hereby motu proprio issues a Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.
Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance unless sooner terminated or extended.
SO ORDERED.
City of Manila, September 6, 2011. (Emphasis ours)__________________________________
Watchlist Order (WLO)
No. 2011-573[129]
IN RE: Issuance of WLO against BENJAMIN ABALOS. SR. et al.ORDER
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders), after careful evaluation, finds the Application for the Issuance of WLO against the following meritorious;
x x x x
12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
Quezon City
x x x x
1. MA. GLORIA M. MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives Quezon City
2. JOSE MIGUEL TUASON ARROYO
Address: L.T.A. Bldg. 118 Perea St. Makati City
x x x x
Accordingly, the Commissioner of Immigration, Manila, is hereby-ordered to INCLUDE in the Bureau of Immigration's Watchlist, the names of the above-named persons.
This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner terminated or otherwise extended.
SO ORDERED.
Hold Departure Order (HDO)On its face, the language of the foregoing issuances does not contain an explicit restraint on the right to travel. The issuances seemed to be a mere directive from to the BI officials to include the named individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a common reference to DOJ Circular No. 41, where the authority to issue the same apparently emanates, and from which the restriction on the right to travel can be traced. Section 5 thereof provides, thus:
No. 2011-64[130]
In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL.
x ------------------------------------- xORDER
After a careful evaluation of the application, including the documents attached thereto, for the issuance of Hold Departure Order (HDO) against the above-named persons filed pursuant to this Department's Circular (D.C.) No. 41 (Consolidated Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated May 25, 2010, we find the application meritorious.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.
Name: EFRAIM C. GENUINO Nationality: Filipino Last known address: No. 42 Lapu Lapu Street, Magallanes Village, Makati City Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt Practices Act, Plunder Details of the Case: Pending before the National Prosecution Service, Department of Justice (NPS Docket No. XV-INV-11F-00229 Pending before the Office of the Ombudsman (Case No. CPL-C-11-1297) Pending before the National Prosecution Service, Department of Justice (I.S. No. XVI-INV-11G-00248) Name: SHERYLL F. GENUINO-SEE Nationality: Filipino Last known address: No. 32-a Paseo Parkview, Makati City Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt Practices Act, Plunder Details of the Case: Pending before the National Prosecution Service, Department of Justice (I.S. No. XVI-INV-11G-00248) Name: ERWIN F. GENUINO Nationality: Filipino Last known address: No. 5 J.P. Rizal Extension, COMEMBO, Makati City Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt Practices Act, Plunder Details of the Case: Pending before the National Prosecution Service, Department of Justice (NTS Docket No. XV-INV-11F-00229 Pending before the National Prosecution Service, Department of Justice (I.S. No. XVI-INV-11G-00248)
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner terminated.
SO ORDERED. (Emphasis ours)
Section 5. HDO/WLO Lifting or Cancellation - In the lifting or cancellation of the HDO/WLO issued pursuant to this Circular, the following shall apply:That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from the court during the pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO cannot leave the country unless he obtains an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO) - Any person subject of HDO/WLO issued pursuant to this Circular who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO.By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only plausible conclusion that can be made is that its mere issuance operates as a restraint on the right to travel. To make it even more difficult, the individual will need to cite an exceptional reason to justify the granting of an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an undertaking to immediately report to the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they are one and the same or, at the very least, complementary such that whatever is not covered in Section 1,[131] which pertains to the issuance of HDO, can conveniently fall under Section 2,[132] which calls for the issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national security, public safety or public health. With this all-encompassing provision, there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national security, public safety or public health.
The exceptions to the right to travel are limited to those stated in Section 6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the instances wherein the right to travel may be validly impaired.[133] It cites that this Court has its own administrative issuances restricting travel of its employees and that even lower courts may issue HDO even on grounds/outside of what is stated in the Constitution.[134]
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO against an accused in a criminal case so that he may be dealt with in accordance with law.[135] It does not require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power. In Defensor-Santiago vs. Vasquez,[136] the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity and functions of the court, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.[137]The inherent powers of the courts are essential in upholding its integrity and largely beneficial in keeping the people's faith in the institution by ensuring that it has the power and the means to enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that the Supreme Court shall have administrative supervision over all courts and the personnel thereof. This provision empowers the Court to oversee all matters relating to the effective supervision and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).It is therefore by virtue of its administrative supervision over all courts and personnel that this Court came out with OCA Circular No. 49-2003, which provided for the guidelines that must be observed by employees of the judiciary seeking to travel abroad. Specifically, they are required to secure a leave of absence for the purpose of foreign travel from this Court through the Chief Justice and the Chairmen of the Divisions, or from the Office of the Court Administrator, as the case maybe. This is "to ensure management of court dockets and to avoid disruption in the administration of justice."[139]
Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to, and abide with, the law and the corresponding office rules and regulations. These rules and regulations, to which one submits himself or herself, have been issued to guide the government officers and employees in the efficient performance of their obligations. When one becomes a public servant, he or she assumes certain duties with their concomitant responsibilities and gives up some rights like the absolute right to travel so that public service would not be prejudiced.[138]
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee's leave for purpose of foreign travel which is necessary for the orderly administration ofjustice. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is to govern or direct according to rule.[140] This regulation comes as a necessary consequence of the individual's employment in the judiciary, as part and parcel of his contract in joining the institution. For, if the members of the judiciary are at liberty to go on leave any time, the dispensation ofjustice will be seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the intricacies in the administration of justice. At any rate, the concerned employee is not prevented from pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be ready to suffer the consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the requirement for leave application of employees in the government service seeking to travel abroad. The Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment guidelines for all government employees, except those who are covered by special laws. The filing of application for leave is required for purposes of orderly personnel administration. In pursuing foreign travel plans, a government employee must secure an approved leave of absence from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26 dated July 31, 1986, provided the procedure in the disposition of requests of government officials and employees for authority to travel abroad. The provisions of this issuance were later clarified in the Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued, streamlining the procedure in the disposition of requests of government officials and employees for authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees seeking authority to travel abroad shall henceforth seek approval from their respective heads of agencies, regardless of the length of their travel and the number of delegates concerned. For the purpose of this paragraph, heads of agencies refer to the Department Secretaries or their equivalents. (Emphasis ours)The regulation of the foreign travels of government employees was deemed necessary "to promote efficiency and economy in the government service."[141] The objective was clearly administrative efficiency so that government employees will continue to render public services unless they are given approval to take a leave of absence in which case they can freely exercise their right to travel. It should never be interpreted as an exception to the right to travel since the government employee during his approved leave of absence can travel wherever he wants, locally or abroad. This is no different from the leave application requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers expressly granted to it by law and may not extend the same on its own accord or by any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights are determined and all public authority administered."[142] Any law or issuance, therefore, must not contradict the language of the fundamental law of the land; otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on constitutionally-protected rights without the authority of a valid law. Even with the predicament of preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep constitutional boundaries and skirt the prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against the state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless innocent individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As emphatically pronounced in Secretary of National Defense vs. Manalo, et al.,[143] the constitution is an overarching sky that covers all in its protection. It affords protection to citizens without distinction. Even the most despicable person deserves the same respect in the enjoyment of his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact the necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling on constitutionally-protected rights. Without a valid legislation, the DOJ's actions will perpetually be met with legal hurdles to the detriment of the due administration of justice. The challenge therefore is for the legislature to address this problem in the form of a legislation that will identify permissible intrusions in the right to travel. Unless this is done, the government will continuously be confronted with questions on the legality of their actions to the detriment of the implementation of government processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the performance of its duties. This can be accomplished by expediency in the assessment of complaints filed before its office and in the prompt filing of information in court should there be an affirmative finding of probable cause so that it may legally request for the issuance of HDO and hold the accused for trial. Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient and effective performance of its prosecutorial duties.
The Court understands the dilemma of the government on the effect of the declaration of unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the country. While this is a legitimate concern, it bears stressing that the government is not completely powerless or incapable of preventing their departure or having them answer charges that may be subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in Section 4[144] thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of suspected traffickers or trafficked individuals. He also noted that the Commissioner of BI has the authority to issue a HDO against a foreigner subject of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary warrant of arrest offers a promising solution to this quandary. This, the Court can do in recognition of the fact that laws and rules of procedure should evolve as the present circumstances require.
Contempt charge against respondent De Lima
It is well to remember that on November 18, 2011, a Resolution[145] was issued requiring De Lima to show cause why she should not be disciplinarily dealt or be held in contempt for failure to comply with the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full discussion that it rightfully deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the interest of fairness that there be a complete and exhaustive discussion on the matter since it entails the imposition of penalty that bears upon the fitness of the respondent as a member of the legal profession. The Court, therefore, finds it proper to deliberate and resolve the charge of contempt against De Lima in a separate proceeding that could accommodate a full opportunity for her to present her case and provide a better occasion for the Court to deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby declared NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 28, 2011, which required respondent Leila De Lima to show cause why she should not be cited in contempt, as a separate petition.
SO ORDERED.
Sereno, C. J., on indefinite leave.
Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe, Jardeleza, Martires, Tijam, and Gesmundo, JJ., concur.
Carpio, J., See Concurring Opinion.
Velasco, Jr., J., See Separate Concurring Opinion.
Leonen, J., See Separate Opinion.
Caguioa, J., no part.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on April 17, 2018 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled cases, the original of which was received by this Office on May 9, 2018 at 2:50 p.m.
| | Very truly yours, |
(SGD) | |
EDGAR O. ARICHETA | |
Clerk of Court |
[1] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[2] Id. at 47-48.
[3] Id. at 49-58.
[4] Id. at 106-116.
[5] Rollo (G.R. No. 197930), pp. 30-35.
[6] Rollo (G.R. No. 199034), Volume III, pp. 901-902.
[7] Id. at 902.
[8] Id.
[9] Id. at 903.
[10] Id.
[11] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[12] Id. at 47-48.
[13] Rollo (G.R. No. 199034), Volume III, p. 904.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 905.
[18] Id. at 905-906.
[19] Id. at 1028.
[20] Rollo (G.R. No. 199034), Volume I, p. 76.
[21] Id. at 82-83.
[22] Id. at 86.
[23] Id. at 68-75.
[24] Rollo (G.R. No. 199034), Volume III, p. 908.
[25] Id. at 909.
[26] Id.
[27] Rollo (G.R. No. 199034), Volume I, pp. 122-132.
[28] Id. at 110, 112, 113-114, 116.
[29] Id. at 89-104; Rollo (G.R. No. 199046), pp. 59-70.
[30] Id. at 102-103; id. at 68.
[31] Rollo (G.R. No. 199034), Volume I, pp. 133-174.
[32] Id. at 189-206.
[33] Id. at 208-210.
[34] Id. at 208-209.
[35] Id. at 337-339; 344-345.
[36] Id. at 347.
[37] Id. at 348.
[38] Id. at 349-350.
[39] Id. at 342.
[40] Id. at 367.
[41] Id. at 364-375.
[42] Id. at 369.
[43] Id. at 382-384.
[44] Id. at 288-323.
[45] Id. at 311.
[46] Id. at 318-319.
[47] Id. at 394-398.
[48] Id. at 394-395.
[49] Rollo (G.R. No. 199034), Volume II, pp. 525-527.
[50] Id. at 518-524.
[51] Id. at 519-521.
[52] Rollo, (G.R. No. 199034), Volume III, pp. 1017-1018.
[53] Id. at 914.
[54] Rollo (G.R. No. 197930), pp. 30-35.
[55] Id. at 7-8.
[56] Id. at 36-42.
[57] Id. at 43-45.
[58] Id. at 417.
[59] Rollo (G.R. No. 199034), Volume III, p. 921.
[60] Id. at 923.
[61] Id.
[62] The 1987 CONSTITUTION, Article VIII, Sec. 1.
[63] Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and Management, 686 Phil. 357, 369 (2012).
[64] Prof. David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 753 (2006).
[65] Id.
[66] 228 Phil. 193, 211 (1986).
[67] Id. at 199.
[68] Supra note 64, at 809.
[69] Id. at 754.
[70] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, 661 Phil. 390, 403 (2011).
[71] Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 399 (1988).
[72] Supra.
[73] Id. at 399.
[74] Jesus P. Morfe v. Amelito R. Mutuc, 130 Phil. 415, 430 (1968).
[75] Kent v. Dulles, 357 U.S. 116.
[76] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 168.
[77] 39 Phil. 778, 812 (1919).
[78] 273 Phil. 128, 135 (1991).
[79] Id. at 133-134.
[80] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, pp. 367-368.
[81] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 172.
[82] Records of the Constitutional Commission, Volume I, p. 674.
[83] Id. at 715.
[84] Id. at 677.
[85] Id. at 764-765.
[86] Supra note 71, at 405.
[87] 678 Phil. 328 (2011).
[88] Id. at 339-340.
[89] Rollo (G.R. No. 199034), Volume III, p. 922.
[90] Holy Spirit Homeowners Association, Inc. v. Secretary Michael Defensor, 529 Phil. 573, 585 (2006).
[91] SMART Communications, Inc. v National Telecommunications Commission, 456 Phil. 145, 156 (2003).
[92] William C. Dagan v. Philippine Racing Commission, 598 Phil. 406, 417 (2009).
[93] 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, 971 N.E.2d 1195, 2012 Ill App. LEXIS 506, 361 Ill. Dec. 673, 2012 WL 2371249 (Ill. App. Ct. 2d Dist. 2012)
[94] SMART Communications, Inc. v. National Telecommunications Commission, supra note 91, at 156.
[95] 584 Phil. 246 (2008) [Carpio, J., Separate Concurring Opinion].
[96] Id. at 296-297.
[97] Manila Electric Company v. Spouses Edilo and Felicidad Chita, 637 Phil. 80, 98 (2010).
[98] 256 Phil. 777 (1989).
[99] Id. at 809.
[100] Rollo (G.R. No. 199034), Volume III, pp. 942.
[101] Id. at 939.
[102] Allado v. Diokno, 302 Phil. 213, 238 (1994).
[103] Supra.
[104] Id. at 238.
[105] Rollo (G.R. No. 199034), Volume III, p. 943.
[106] 273 Phil. 290 (1991).
[107] Id. at 299.
[108] Ocampo v. Judge Abando, et al., 726 Phil. 441, 459 (2014).
[109] 1987 CONSTITUTION, Article VIII, Section 5(5).
[110] 359 U.S. 1 (1959).
[111] 240 Phil. 219 (1987).
[112] Philippine Association of Service Exporters, Inc. v. Hon. Franklin M. Drilon, supra note 73, at 398.
[113] Id. at 399.
[114] Executive Secretary v. Southwing Heavy Industries, Inc., 518 Phil. 103, 117 (2006).
[115] Department of Education, Culture and Sports v. Roberto Rey Sandiego, 259 Phil. 1016, 1021 (1989).
[116] Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 557 Phil. 121, 140 (2007).
[117] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, supra note 70, at 406.
[118] James M. Imbong v. Hon. Paquito N. Ochoa, 732 Phil. 1, 108-109 (2014).
[119] Guidelines in the Issuance of Hold-Departure Orders.
[120] Miriam Defensor Santiago v. Conrado M. Vasquez, 291 Phil. 664, 680 (1993).
[121] Section 1(a). DOJ Circular No. 41.
[122] Section 1(b). DOJ Circular No. 41.
[123] Section 2(a). DOJ Circular No. 41.
[124] Section 2(b). DOJ Circular No. 41.
[125] Sections 1(c) and 2(c), DOJ Circular No. 41.
[126] Supra note 78, at 133-134 (1991).
[127] Rollo (G.R. No. 199034), Volume I, pp. 45-46.
[128] Id. at 47-48.
[129] Id. at 49-59.
[130] Rollo (G.R. No. 197930), pp. 30-35.
[131] Section 1. Hold Departure Order. - The Secretary of Justice may issue an HDO under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs).
If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information and
(b) a Certification from the Clerk of Court concerned that criminal case is still pending.
(b) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government.
The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.
(c) The Secretary of Justice may likewise issue an HDO against any person, either motu proprio, or upon the request by the Head of a Department of the Government; the head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.
[132] Section 2. Watchlist Order. - The Secretary of Justice may issue a WLO, under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal cases pending trial before the Regional Trial Court.
The application under oath of an interested party must be supported by (a) certified true copy of an Information filed with the court, (b) a certified true copy of the Prosecutor's Resolution; and (c) a Certification from the Clerk of Court concerned that criminal case is still pending.
(b) Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the Department of Justice or any of its provincial or city prosecution offices.
The application under oath of an interested party must be supported by (a) certified true copy of the complaint filed, and (b) a Certification from the appropriate prosecution office concerned that the case is pending preliminary investigation, petition for review, or motion for reconsideration, as the case may be.
(c) The Secretary of Justice may likewise issue a WLO against any person, either motu proprio, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health.
[133] Rollo (G.R. No. 199034), Volume III, p. 971.
[134] Id. at 975.
[135] Silverio v. Court of Appeals, supra note 78, at 133-134.
[136] Miriam Defensor Santiago v. Conrado M. Vasquez, supra note 120.
[137] Id. at 679.
[138] Leave Division-Office of Administrative Services-Office of the Court Administrator v. Wilma Sahacion Heusdens, supra note 87, at 341-342.
[139] Office of the Administrative Services-Office of the Court Administrator v. Judge Ignacio B. Macarine, 691 Phil. 217, 222 (2012).
[140] Id.
[141] Executive Order No. 6 dated March 12, 1986 as amended by Memorandum Order (MO) No. 26 dated July 31, 1986.
[142] Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 464 (2010).
[143] 589 Phil. 1, 10 (2008).
SEC. 4. Authority to Issue, Deny, Restrict, or Cancel. - Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport; Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines.
[145] Rollo (G.R. No. 199034), Volume I, pp. 394-397.
CONCURRING OPINION
CARPIO, Acting C.J.:
I concur.
The constitutionality of the assailed administrative circular remains justiciable.
Preliminarily, the consolidated petitions continue to present a justiciable controversy. Neither the expiration of the watchlist orders issued by Leila M. De Lima (respondent) as former Secretary of Justice nor the filing of Information for electoral sabotage against petitioner Gloria Macapagal-Arroyo (GMA) rendered the cases moot.
A case becomes moot when it ceases to present a justiciable controversy such that its adjudication would not yield any practical value or use.[1] Where the petition is one for certiorari seeking the nullification of an administrative issuance for having been issued with grave abuse of discretion, obtaining the other reliefs prayed for in the course of the proceedings will not render the entire petition moot altogether. In COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on Elections (COMELEC),[2] the Court thus explained:
A moot and academic case is one that ceases to present a justiciable controversy because of supervening events so that a declaration thereon would be of no practical use or value.Similarly, where an accused assails via certiorari the judgment of conviction rendered by the trial court, his subsequent release on parole will not render the petition academic.[4] Precisely, if the sentence imposed upon him is void for lack of jurisdiction, the accused should not have been paroled, but unconditionally released since his detention was illegal.[5] In the same vein, even when the certification election sought to be enjoined went on as scheduled, a petition for certiorari does not become moot considering that the petition raises jurisdictional errors that strike at the very heart of the validity of the certification election itself.[6] Indeed, an allegation of a jurisdictional error is a justiciable controversy that would prevent the mootness of a special civil action for certiorari.[7]
In the present case, while the COMELEC counted and tallied the votes in favor of COCOFED showing that it failed to obtain the required number of votes, participation in the 2013 elections was merely one of the reliefs COCOFED prayed for. The validity of the COMELEC's resolution, cancelling COCOFED's registration, remains a very live issue that is not dependent on the outcome of the elections.[3] (Citations omitted)
Here, the consolidated petitions for certiorari and prohibition assail the constitutionality of Department of Justice (DOJ) Circular No. 041-10,[8] on which respondent based her issuance of watchlist and hold-departure orders against petitioners. Notably, DOJ Circular No. 041-10 was not issued by respondent herself, but by Alberto C. Agra as then Acting Secretary of Justice during the Arroyo Administration. It became effective on 2 July 2010.[9] In fact, the assailed issuance remains in effect. To be sure, whether the watchlist and hold-departure orders issued by respondent against petitioners subsequently expired or were lifted is not determinative of the constitutionality of the circular. Hence, the Court is duty-bound to pass upon the constitutionality of DOJ Circular No. 041-10, being a justiciable issue rather than an exception to the doctrine of mootness.
DOJ Circular No. 041-10 is an invalid impairment of the right to travel, and therefore, unconstitutional.
Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10 violates the constitutional right to travel.
Section 6, Article III of the Constitution reads:
SEC. 6. 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. (Emphasis supplied)As above-quoted, the right to travel is not absolute. However, while it can be restricted, the only permissible grounds for restriction are national security, public safety, and public health, which grounds must at least be prescribed by an act of Congress. In only two .instances can the right to travel be validly impaired even without a statutory authorization. The first is when a court forbids the accused from leaving Philippine jurisdiction in connection with a pending criminal case.[10] The second is when Congress, pursuant to its power of legislative inquiry, issues a subpoena or arrest order against a person.[11]
The necessity for a legislative enactment expressly providing for a valid impairment of the right to travel finds basis in no less than the fundamental law of the land. Under Section 1, Article VI of the Constitution, the legislative power is vested in Congress. Hence, only Congress, and no other entity or office, may wield the power to make, amend, or repeal laws.[12]
Accordingly, whenever confronted with provisions interspersed with phrases like "in accordance with law" or "as may be provided by law," the Court turns to acts of Congress for a holistic constitutional construction. To illustrate, in interpreting the clause "subject to such limitations as may be provided by law" in relation to the right to information, the Court held in Gonzales v. Narvasa[13] that it is Congress that will prescribe these reasonable conditions upon the access to information:
The right to information is enshrined in Section 7 of the Bill of Rights which provides that —In Tondo Medical Center Employees Association v. Court of Appeals,[15] the Court made a jurisprudential survey on the interpretation of constitutional provisions that are not self-executory and held that it is Congress that will breathe life into these provisions:The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.Under both the 1973 and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, wherein the Court classified the right to information as a public right and "when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general 'public' which possesses the right." However, Congress may provide for reasonable conditions upon the access to information. Such limitations were embodied in Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," which took effect on March 25, 1989. This law provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality.[14] (Emphasis supplied; Citations omitted)
As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some provisions have already been categorically declared by this Court as non self-executing.In Ang Bagong Bayani-OFW Labor Party v. COMELEC,[17] the Court construed the constitutional provisions on the party-list system and held that the phrases "in accordance with law" and "as may be provided by law" authorized Congress "to sculpt in granite the lofty objective of the Constitution," to wit:
In Tañada v. Angara, the Court specifically set apart the sections found under Article II of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented:By its very title, Article II of the Constitution is a "declaration of principles and state policies." x x x These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws.In Basco v. Philippine Amusement and Gaining Corporation, this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance, the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights.
Some of the constitutional provisions invoked in the present case were taken from Article II of the Constitution — specifically, Sections 5, 9, 10, 11, 13, 15 and 18 — the provisions of which the Court categorically ruled to be non self-executing in the aforecited case of Tañada v. Angara.[16] (Emphasis supplied; citations omitted)
That political parties may participate in the party-list elections does not mean, however, that any political party — or any organization or group for that matter — may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows:Unable to cite any specific law on which DOJ Circular No. 041-10 is based, respondent invokes Executive Order No. 292, otherwise known as the Revised Administrative Code of 1987. In particular, respondent cites the DOJ's mandate to "investigate the commission of crimes" and "provide immigration x x x regulatory services," as well as the DOJ Secretary's rule-making power.[19]"(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.x x x x
(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector."
The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. x x x.[18] (Italicization in the original; boldfacing supplied)
I disagree.
In the landmark case of Ople v. Torres,[20] an administrative order was promulgated restricting the right to privacy without a specific law authorizing the restriction. The Office of the President justified its legality by invoking the Revised Administrative Code of 1987. The Court rejected the argument and nullified the assailed issuance for being unconstitutional as the Revised Administrative Code of 1987 was too general a law to serve as basis for the curtailment of the right to privacy, thus:
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy.Indeed, EO 292 is a law of general application.[22] Pushed to the hilt, the argument of respondent will grant carte blanche to the Executive in promulgating rules that curtail the enjoyment of constitutional rights even without the sanction of Congress. To repeat, the Executive is limited to executing the law. It cannot make, amend or repeal a law, much less a constitutional provision.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court.
x x x x
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is:"Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders."An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance" and "embodies changes in administrative structures and procedures designed to serve the people." The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government.[21] (Citations omitted)
For the same reason, in the Court's jurisprudence concerning the overseas travel of court personnel during their approved leaves of absence and with no pending criminal case before any court, I have consistently maintained that only a law, not administrative rules, can authorize the Court to impose administrative sanctions for the employee's failure to obtain a travel permit:
Although the constitutional right to travel is not absolute, it can only be restricted in the interest of national security, public safety, or public health, as may be provided by law. As held in Silverio v. Court of Appeals:While the Revised Administrative Code of 1987 cannot lend credence to a valid impairment of the right to travel, Republic Act No. (RA) 8239, otherwise known as the Philippine Passport Act of 1996, expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen. Section 4 of RA 8239 reads:Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text x x x. Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party x x x.The constitutional right to travel cannot be impaired without due process of law. Here, due process of law requires the existence of a law regulating travel abroad, in the interest of national security, public safety or public health. There is no such law applicable to the travel abroad of respondent. Neither the OCA nor the majority can point to the existence of such a law. In the absence of such a law, the denial of respondent's right to travel abroad is a gross violation of a fundamental constitutional right.
x x x x
Furthermore, respondent's travel abroad, during her approved leave, did not require approval from anyone because respondent, like any other citizen, enjoys the constitutional right to travel within the Philippines or abroad. Respondent's right to travel abroad, during her approved leave, cannot be impaired "except in the interest of national security, public safety, or public health, as may be provided by law." Not one of these grounds is present in this case.[23] (Citations omitted)
SEC. 4. Authority to Issue, Deny, Restrict or Cancel. — Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act.The identical language between the grounds to cancel passports under the above-quoted provision and the grounds to impair the right to travel under Section 6, Article III of the Constitution is not by accident cognizant of the fact that passport cancellations necessarily entail an impairment of the right. Congress intentionally copied the latter to obviate expanding the grounds for restricting the right to travel.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines.
Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of persons under preliminary investigation? The answer depends on the nature of the crime for which the passport holders are being investigated on. If the crime affects national security and public safety, the cancellation squarely falls within the ambit of Section 4. Thus, passport holders facing preliminary investigation for the following crimes are subject to the DFA Secretary's power under Section 4:
Indeed, the phrases "national security" and "public safety," which recur in the text of the Constitution as grounds for the exercise of powers or curtailment of rights,[32] are intentionally broad to allow interpretative flexibility, but circumscribed at the same time to prevent limitless application. At their core, these concepts embrace acts undermining the State's existence or public security. At their fringes, they cover acts disrupting individual or communal tranquility. Either way, violence or potential of violence features prominently.
Thus understood, the "public safety" ground under Section 4 of RA 8239 unquestionably includes violation of election-related offenses carrying the potential of disrupting the peace, such as electoral sabotage which involves massive tampering of votes (in excess of 10,000 votes). Not only does electoral sabotage desecrate electoral processes, but it also arouses heated passion among the citizenry, driving some to engage in mass actions and others to commit acts of violence. The cancellation of passports of individuals investigated for this crime undoubtedly serves the interest of public safety, much like individuals under investigation for robbery, kidnapping, and homicide, among others.[33]
As to whether respondent must be cited in contempt for allegedly defying the Temporary Restraining Order issued by the Court, I agree that it cannot be resolved simultaneously with these consolidated petitions. Until the contempt charge is threshed out in a separate and proper proceeding, I defer expressing my view on this issue.
Accordingly, I vote to GRANT the petitions and to declare DOJ Circular No. 041-10, and the assailed Watchlist Orders issued pursuant to the circular, UNCONSTITUTIONAL for being contrary to Section 6, Article III of the Constitution. As regards the contempt charge against respondent, I DEFER any opinion on this issue until it is raised in a separate and proper proceeding.
[1] Osmeña III v. Social Security System of the Philippines, 559 Phil. 723, 735 (2007), citing Governor Mandanas v. Honorable Romulo, 473 Phil. 806, 827-828 (2004); Olanolan v. COMELEC, 494 Phil. 749, 759 (2005); Paloma v. Court of Appeals, 461 Phil. 269, 276-277 (2003).
[2] 716 Phil. 19 (2013).
[3] Id. at 28-29.
[4] Castrodes v. Cubelo, 173 Phil. 86 (1978).
[5] Id. at 91.
[6] Cooperative Rural Bank of Davao City. Inc., v. Ferrer-Calleja, 248 Phil. 169 (1988).
[7] Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, 25 January 2016, 781 SCRA 607, 619.
[8] Otherwise known as Consolidated Rules and Regulations Governing the Issuances and Implementing of Hold Departure Orders, Watchlist Orders and Allow Departure Orders.
[9] DOJ Circular No. 041-10 was published in The Philippine Star on 17 June 2010. Under Art. 2 of the Civil Code, as interpreted by the Court in Tañada v. Tuvera, 230 Phil. 528, 533-534 (1986), DOJ Circular No. 041-10 shall take effect after 15 days from the date of its publication.
[10] Dr. Cruz v. Judge Iturralde, 450 Phil. 77, 86 (2003); Hold-Departure Order issued by Judge Occiano, 431 Phil. 408, 411-412 (2002); Silverio v. Court of Appeals, 273 Phil. 128, 134-135 (1991).
[11] See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, 678 Phil. 328, 355 (2011).
[12] See Belgica v. Ochoa, 721 Phil. 416, 546 (2013).
[13] 392 Phil. 518 (2000).
[14] Id. at 529-530.
[15] 554 Phil. 609 (2007).
[16] Id. at 625-626.
[17] 412 Phil. 308 (2001).
[18] Id. at 331-332.
[19] Consolidated Comment, p. 36.
[20] 354 Phil. 948 (1998).
[21] Id. at 966, 968-969.
[22] Office of the Solicitor General v. Court of Appeals, 735 Phil. 622, 630 (2014); Calingin v. Court of Appeals, 478 Phil. 231, 236-237 (2004); Government Service Insurance System v. Civil Service Commission, 307 Phil. 836, 846 (1994).
[23] See my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, supra note 11, at 354-356.
[24] "Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion."
[25] "Coercion of election officials and employees."
[26] "[Carrying of] deadly weapons in prohibited areas."
[27] "Carrying of firearms outside residence or place of business."
[28] "Wearing of uniforms and bearing arms."
[29] "Organization or maintenance of reaction forces, strike forces, or other similar forces."
[30] Batas Pambansa Blg. 881, as amended.
[31] Defining the offense of Electoral Sabotage.
[32] E.g., (1) Art. III, Sec. 3(1) ["The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law."]; Sec. 6 ["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."]; Sec. 15 ["The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it."]); and (2) Art. VII, Sec. 15 ["Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."]: Sec. 18, par. 2 ["In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. x x x. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it."] (Emphasis supplied)
[33] It is not farfetched to link election laws with public safety. The European Court of Human Rights considers the forced abolition of a political party espousing violent and extreme views as permissible in the interest of public safety, even though this impairs the party members' right to association. See Refah Partisi v. Turkey, 13 February 2003, Application Nos. 41340/98, 41342/98, 41343/98 and 41344/9837. (
SEPARATE CONCURRING OPINION
VELASCO,JR., J.:
I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes, Jr.
That the right to travel and to freedom of movement are guaranteed protection by no less than the fundamental law of our land brooks no argument. While these rights are not absolute, the delimitation thereof must rest on specific circumstances that would warrant the intrusion of the State. As mandated by Section 6 of the Bill of Rights, any curtailment of the people's freedom of movement must indispensably be grounded on an intrinsically valid law, and only whenever necessary to protect national security, public safety, or public health, thus:
SEC. 6. 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. (Emphasis and underscoring supplied)The Department of Justice (DOJ) Circular No. 41 cannot be the law pertained to in the provision. As pointed out in the ponencia, it is but an administrative issuance that requires an enabling law to be valid.[1]
Jurisprudence dictates that the validity of an administrative issuance is hinged on compliance with the following requirements: 1) its promulgation is authorized by the legislature; 2) it is promulgated in accordance with the prescribed procedure; 3) it is within the scope of the authority given by the legislature; and 4) it is reasonable.[2] The DOJ, thus, exceeded its jurisdiction when it assumed to wield the power to issue hold departure orders (HDOs) and watchlist orders (WLOs), and allow department orders which unduly infringe on the people's right to travel absent any specific legislation expressly vesting it with authority to do so.
I, therefore, concur that DOJ Circular No. 41 is without basis in law and is, accordingly, unconstitutional.
With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a quandary and without prompt recourse for preventing persons strongly suspected of committing criminal activities from evading the reach of our justice system by fleeing to other countries.
Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996, which expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen, even those of persons under preliminary investigations, for crimes affecting national security and public safety. This course of action, while undoubtedly a legally viable solution to the DOJ's dilemma, would nevertheless require the conduct of a hearing, pursuant to Section 4[3] of the law. This would inevitably alert the said persons of interest of the cause and purpose of the cancellation of their passports that could, in turn, facilitate, rather than avert, their disappearance to avoid the processes of the court.
As an alternative solution, it is my humble submission that the above predicament can be effectively addressed through the ex-parte issuance of precautionary warrants of arrest (PWAs) and/or precautionary hold departure orders (PHDOs) prior to the filing of formal charges and information against suspected criminal personalities.
The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of the Constitution, to wit:
Section 2. x x x no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied)It bears noting that the warrant clause permits the issuance of warrants, whether it be a search warrant or a warrant of arrest, even prior to the filing of a criminal complaint or information in court. This interpretation finds support in the crafting of the provisions in our Rules of Criminal Procedure that govern the issuance of search warrants. As stated in Sections 4 to 6[4] of Rule 126, a search warrant may be issued by the courts if, after personally examining the complainants/applicants and the witnesses produced, they are convinced that probable cause exists for the issuance thereof. The rules do not require that 1) a criminal action or even a complaint must have already been filed against an accused; and that 2) persons of interest are notified of such application before law enforcement may avail of this remedy. The application for and issuance of a search warrant are not conditioned on the existence of a criminal action or even a complaint before an investigating prosecutor against any person.
Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of arrest, akin to a search warrant, may be crafted by the Court. The application will be done ex-parte, by a public prosecutor upon the initiative of our law enforcement agencies, before an information is filed in court, and only in certain serious crimes and offenses. Before filing the application, the public prosecutor shall ensure that probable cause exists that the crime has been committed and that the person sought to be arrested committed it. The law enforcement agencies may also opt to ask for a PWA with PHDO or simply a PHDO.
The judge's determination of probable cause shall be done in accordance with the requirements in Section 2, Article III of the Constitution. He shall set a hearing on the application to personally examine under oath or affirmation, in form of searching questions and answers, the applicant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements. If satisfied of the existence of probable cause based on the application and its attachments, the testimonies of the witnesses, and other evidence presented during the hearing, the judge may issue the warrant and direct the Philippine National Police or the National Bureau of Investigation to effect the arrest.
The suggested revision in the Rules, to my mind, will help solve the problem caused by the declaration of nullity of the HDOs and WLOs issued by the DOJ. The law enforcement agencies can apply for a PWA or PHDO to prevent suspects from fleeing the country and to detain and arrest them at the airport. This may also solve the problem of extrajudicial killings as the law enforcement agency is now provided with an adequate remedy for the arrest of the criminals.
I vote to GRANT the petition.
[1] Page 22 of the Decision.
[2] Hon. Executive Secretary, et. al. v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, 482 SCRA 673, 686.
[3] SEC. 4. Authority to Issue, Deny, Restrict or Cancel. - Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to tlie Philippines. (Emphasis supplied)
[4] Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.
Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a)
SEPARATE OPINION
LEONEN, J.:
I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional. The Department of Justice is neither authorized by law nor does it possess the inlierent power to issue hold departure orders, watchlist orders, and allow departure orders against persons under preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of persons to travel can only be impaired by a legislative enactment as it can likewise be burdened by other constitutional provisions.
The pertinent Constitutional provision on the right to travel is Article III, Section 6, which states:
Section 6. 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 safely, or public health, as may be provided by law. (Emphasis supplied)The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,[1] an early case decided under the 1987 Constitution. It dealt specifically with the right of former President Marcos to return to the Philippines. In resolving the case, this Court distinguished between the right to return to one's country and the general right to travel. The right to return to one's country was treated separately and deemed excluded from the constitutionally protected right to travel.[2]
In my view, the right to travel should not be given such a restrictive interpretation. In the broad sense, the right to travel refers to the "right to move from one place to another."[3] The delimitation set in Marcos effectively excludes instances that may involve a curtailment on the right to travel within the Philippines and the right to travel to the Philippines. This case presents us with an opportunity to revisit Marcos and abandon its narrow and restrictive interpretation. In this regard, the constitutional provision should be read to include travel within the Philippines and travel to and from the Philippines.
Undeniably, the right to travel is not absolute. Article III, Section 6 of the Constitution states that any curtailment must be based on "national security, public safety, or public health, as may be provided by law."
In interpreting this constitutional provision, the ponencia proposes that only a statute or a legislative enactment may impair the right to travel.
Respectfully, I disagree. In my view, the phrase "as may be provided by law" should not be literally interpreted to mean statutory law. Its usage should depend upon the context in which it is written. As used in the Constitution, the word "law" does not only refer to statutes but embraces the Constitution itself.
The Bill of Rights is replete with provisions that provide a similar phraseology. For instance, both the due process clause and the equal protection clause under Article III, Section 1 of the Constitution contain the word "law," thus:
However, the application of the due process and the equal protection clauses has not been limited to statutory law. These two (2) principles have been tested even against executive issuances.Article III
BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. (Emphasis supplied)
In Ynot v. Intermediate Appellate Court,[4] the due process clause was deemed to have been violated by an executive order which directed the outright confiscation of carabaos transported from one province to another. In declaring the executive order unconstitutional, this Court held:
[T]he challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.[5]In the same manner, this Court in Corona v. United Harbor Pilots Association of the Philippines[6] invalidated an administrative order that restricted harbor pilots from exercising their profession. The administrative order, which required harbor pilots to undergo an annual performance evaluation as a condition for the continued exercise of their profession, was considered a "deprivation of property without due process of law."[7]
In Biraogo v. Truth Commission,[8] the creation of the Philippine Truth Commission by virtue of an executive order was deemed unconstitutional for violating the equal protection clause. The classification under the executive order, according to this Court, was unreasonable, thus:
Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption during the previous administration" only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are:In this regard, it is inaccurate to say that the right of persons to travel to and from the Philippines can only be impaired by statutory law. It is also inaccurate to say that the impairment should only be limited to national security, public safety, or public health considerations for it to be valid.WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all;In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.[9] (Citations omitted)
SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]
For instance, the assailed department order in Philippine Association of Service Exporters, Inc. v. Drilon[10] was not founded upon national security, public safety, or public health but on the state's policy of affording protection to labor.[11] The department order was deemed a valid restriction on the right to travel.[12]
The term "law" in Article III, Section 6 can refer to the Constitution itself. This can be understood by examining this Court's power to regulate foreign travel of court personnel and the nature and functions of bail.
The power of this Court to regulate the foreign travel of court personnel does not emanate from statutory law, nor is it based on national security, public safety, or public health considerations. Rather, it is an inherent power flowing from Article III, Section 5(6) of the Constitution, which grants this Court the power of administrative supervision over all courts and court personnel.[13]
The nature and object of this Court's power to control the foreign travel of court personnel were further explained in Leave Division, Office of Administrative Services — Office of the Court Administrator v. Heusdens,[14] thus:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that the "Supreme Court shall have administrative supervision over all courts and the personnel thereof." This provision empowers the Court to oversee all matters relating to the effective supervision and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).A person's right to bail before conviction is both guaranteed and limited under the Constitution. Article III, Section 13 states:
Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to, and abide with, the law and the corresponding office rules and regulations. These rules and regulations, to which one submits himself or herself, have been issued to guide the government officers and employees in the efficient performance of their obligations. When one becomes a public servant, he or she assumes certain duties with their concomitant responsibilities and gives up some rights like the absolute right to travel so that public service would not be prejudiced.
As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is necessary for the orderly administration of justice. If judges and court personnel can go on leave and travel abroad at will and without restrictions or regulations, there could be a disruption in the administration of justice. A situation where the employees go on mass leave and travel together, despite the fact that their invaluable services are urgently needed, could possibly arise. For said reason, members and employees of the Judiciary cannot just invoke and demand their right to travel.
To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the society as well. In a situation where there is a delay in the dispensation of justice, litigants can gel disappointed and disheartened. If their expectations are frustrated, they may take the law into their own hands which results in public disorder undermining public safety. In this limited sense, it can even be considered that the restriction or regulation of a court personnel's right to travel is a concern for public safety, one of the exceptions to the non-impairment of one's constitutional right to travel.[15] (Citations omitted, emphasis supplied)
Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.Courts have the jurisdiction to determine whether a person should be admitted to bail. This jurisdiction springs from the Constitution itself, which imposes limitations on the right to bail. However, the discretion of courts is not restricted to the question of whether bail should be granted to an accused as Courts have the inherent power "to prohibit a person admitted to bail from leaving the Philippines."[16] Regional Trial Courts, in particular, are empowered to issue hold departure orders in criminal cases falling within their exclusive jurisdiction.[17] Persons admitted to bail are required to seek permission before travelling abroad.[18]
Similar to the power of this Court to control foreign travel of court personnel, the power to restrict the travel of persons admitted to bail is neither based on a legislative enactment nor founded upon national security, public safety, or public health considerations. The power of courts to restrict the travel of persons on bail is deemed a necessary consequence of the conditions imposed in a bail bond.[19] In Manotoc v. Court of Appeals[20] this Court explained:
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance.Although Manotoc was decided under the 1973 Constitution, the nature and functions of bail remain essentially the same under the 1987 Constitution.[22] Hence, the principle laid down in Manotoc was reiterated in Silverio v. Court of Appeals[23] where this Court further explained that:
"Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him."
The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People v. Uy Tuising[:]". . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction."Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state."[21] (Citations omitted)
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer.Moreover, the power of courts to restrict the travel of persons out on bail is an incident of its power to grant or deny bail. As explained in Santiago v. Vasquez:[25]
. . . .
. . . Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law.[24] (Citation omitted)
Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity and functions of the courts, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.The Department of Justice is neither empowered by a specific law nor does it possess the inherent power to restrict the right to travel of persons under criminal investigation through the issuance of hold departure orders, watchlist orders, and allow departure orders. Its mandate under the Administrative Code of 1987 to "[investigate the commission of crimes [and] prosecute offenders"[27] cannot be interpreted so broadly as to include the power to curtail a person's right to travel. Furthermore, Department Order No. 41, series of 2010 cannot be likened to the power of the courts to restrict the travel of persons on bail as the latter presupposes that the accused was arrested by virtue of a valid warrant and placed under the court's jurisdiction. For these reasons, Department of Justice Circular No. 41, series of 2010, is unconstitutional.
Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction. Such being the case, with more reason may a party litigant be subjected to proper coercive measures where he disobeys a proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What ought to be done depends upon the particular circumstances.
Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public statement that she had every intention of leaving the country allegedly to pursue higher studies abroad. We uphold the course of action adopted by the Sandiganbayan in taking judicial notice of such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte the hold departure order, in justified consonance with our preceding disquisition. To reiterate, the hold departure order is but an exercise of respondent court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused.[26]
Parenthetically, I agree that the right to travel is part and parcel of an individual's right to liberty, which cannot be impaired without due process of law.[28]
The ponencia mentions Rubi v. Provincial Board of Mindoro.[29] In my view, Rubi should always be cited with caution. In Rubi, the Mangyans of Mindoro were forcibly removed from their habitat and were compelled to settle in a reservation under pain of imprisonment for non-compliance.[30] Although the concepts of civil liberty and due process were extensively discussed in the case,[31] this Court nevertheless justified the government act on a perceived necessity to "begin the process of civilization" of the Mangyans who were considered to have a "low degree of intelligence" and as "a drag upon the progress of the State."[32]
[1] 258 Phil. 489 (1989) [Per J. Cortes, En Banc].
[2] Id. at 497-498.
[3] Mirasol v. Department of Public Works and Highways, 523 Phil. 713, 752 (2006) [Per J. Carpio, En Banc].
[4] 232 Phil. 615, 631 (1987) [Per J. Cruz, En Banc].
[5] Id. at 631.
[6] 347 Phil. 333 (1997) [Per J. Romero, En Banc].
[7] Id. at 344.
[8] 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[9] Id. at 461-462.
[10] 246 Phil. 393 (1988) [Per J. Sarmiento, En Banc].
[11] Id. at 404-405.
[12] Id.
[13] CONST., art. VIII, sec. 5(6) provides:
Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
[14] 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].
[15] Id. at 341-342.
[16] Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].
[17] OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders (1997):
In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated:
1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts;
2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal;
3. The Hold-Departure Order shall contain the following information:
a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined;
b. The complete title and the docket number of the case in which the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included.
4. Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four (24) hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal.
All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved.
[18] Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].
[19] Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].
[20] 226 Phil. 75 (1986) [Per J. Fernan, En Banc].
[21] Id. at 82-83.
[22] Silverio v. Court of Appeals, 273 Phil. 128, 134 (1991) [Per J. Melencio-Herrera, Second Division].
[23] 273 Phil. 128 (1991) [Per J. Melencio-Herrera, Second Division].
[24] Id. at 134.
[25] 291 Phil. 664 (1993) [Per J. Regalado, En Banc].
[26] Id. at 679-680.
[27] 1987 ADM. CODE, Title III, sec. 3(2).
[28] Ponencia, pp. 16-17.
[29] 39 Phil. 660 (1919) [Per J. Malcolm, En Banc].
[30] Id. at 666-669.
[31] Id. at 703-707.
[32] Id. at 718-720.