ARROYOS ASK SC TO JUNK DOJ'S WATCH LIST ORDER / ON THE ROAD TO DICTATORSHIP
[PHOTO - DE LIMA]
MANILA, NOVEMBER 10, 2011 (TRIBUNE) By Benjamin B. Pulta and Charlie V. Manalo - Former President now Pampanga Rep. Gloria Arroyo and her spouse, Jose Miguel "Mike" Arroyo, prior to Justice Secretary Leila de Lima's press conference where she denied the plea of Mrs. Arroyo to leave for abroad in search of medical treatment for her illness, yesterday filed separate petitions before the Supreme Court (SC) to issue writs of certiorari and prohibition to annul and set aside the Watch List Order (WLO) issued against them by Department of Justice (DoJ) Secretary.
In their separate Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court, with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, the Arroyo couple, through their counsels, stated that De Lima had violated their inherent right to travel as enshrined in the 1987 Constitution by issuing
a series of WLOs under their names, adding that with De Lima's continued refusal to grant them an Allow Departure Order (ADO), they had lost all remedy in the ordinary course of law to protect themselves from the assailed WLOs issued by De Lima except through their petition before the SC.
The Arroyos invoked their constitutional right to travel in their petitions. In her 41-page suit, the former chief executive asked the high tribunal, to declare as unconstitutional Department Circular No. 41 which gives the DoJ the power to issue watchlist orders (WLOs) and hold departure order (HDOs).
Mrs. Arroyo is being represented by former solicitor general Estelito Mendoza.
Mike Arroyo, through his lawyer, Ferdinand Topacio, argued that "to be placed in a watchlist order is an impairment of one's "right to travel".
"Inclusion in a watchlist order means that the traveler must first seek the prior permission of the Secretary of Justice before one can exercise his constitutional right to travel or that his travel must be delayed involuntarily. The mere imposition of this requirement upon a hapless citizen, such as Petitioner, constitutes a degrading impairment of one's constitutional right to travel. This prior requirement or forceful delay before Petitioner can travel outside the Philippines, is a clear impairment of his right to travel and which is expressly prohibited by Article III, Section 6 of the 1987 Constitution.
"Indeed, to be given the right to travel but with the requirement that he must first seek the permission of a stranger or to first await the passage of time in order to exercise it is like "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will."
The Arroyos also questioned the DoJ's position to use the criminal complaint by Sen. Aquilino "Koko" Pimentel against as basis for his inclusion in the watchlist.
"In addition to the clear absence of factual basis, the allegations in Senator Pimentel's complaint before the joint DoJ-Comelec committee is clearly hearsay. What then would be the factual basis for a Watchlist Order? Can a rumor be the basis of a Watchlist Order? Senator Pimentel III, in contrast to the DoJ Fact-Finding committee, did not conduct any fact-finding." Arroyo added in his petition.
The high tribunal is currently on a break and will resume session on Monday next week.
Mrs. Arroyo argued that the DoJ order violated Sections 1 and 6, Article III of the Constitution which explicitly provides that the right to travelof a person shall not be impaired except 'in the interest of national security, public safety, or public health, as may provided by law."
"No law has been enacted to implement the aforementioned constitutional provision. Department Circular No. 41 issued by the Department of Justice, which is not a "law" enacted by Congress, restricts the right to travel, is, on its face, void for being in violation of Sections 1 and 6, Article III of the Constitution," Arroyo argued.
The former leader stressed that the WLOs were issued by De Lima "not in the interest of 'national security, public safety, or public health' but in aid of her prosecutorial authority," which does not include the impairment of the right to travel because of the pendency of the criminal complaints for preliminary investigation.
"The respondent DoJ Secretary, not only has violated the right of petitioner GMA to travel, she has further ignored that in all criminal prosecutions 'the accused shall be presumed innocent until the contrary is proved.' She has disregarded that even after an information is filed, the right to travel of the accused may be impaired or limited only by the court having jurisdiction over the person of the accused — not by the Secretary of Justice or any of her prosecutorial surrogates," she alleged.
Mrs. Arroyo said De Lima's refusal to immediately allow her to leave the country despite submission of all requirements, if not restrained by the court, could "aggravate her hypoparathyroidism and metabolic bone disorder and give rise to the danger that the said conditions afflicting petitioner may become permanent and incurable."
She told the SC that her ailment is rare and becomes permanent unless cured in about three months' time.
"The matter is of extreme urgency and petitioner (Arroyo) will suffer grave injustice and irreparable injury if the enforcement and implementation of DoJ Department Circular No. 41 and the three assailed Orders issued by the respondent DoJ Secretary against her pursuant to the said Department Circular are not restrained," she stressed.
To demonstrate her medical condition, she submitted to the high court copies of the photographs showing the halo vest placed on her to stabilize her cervical spine.
Arroyo also pointed out that the right to travel has been recognized under Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which was signed by the Philippine government and should be respected by De Lima who ironically was chairman of the Commission on Human Rights.
Mrs. Arroyo said she has already complied with all the requirements asked of her by De Lima for an ADO as provided for in Section 7 of DoJ Department Circular No. 41, which states that "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."
"The ADO may be issued upon submission of the following requirements: (a) Affidavit stating clearly the purpose, inclusive period of the intended 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 HOO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.
GMA claimed she had filed with De Lima a letter-application under oath, requesting, for the same humanitarian considerations extended to the late Sen. Benigno Aquino, Jr. and to former President Joseph Ejercito Estrada, who were then facing various criminal cases, that she be allowed to seek medical treatment abroad by specialists who treat hypoparathyroidism and metabolic bone mineral disorder which threaten her normal active life.
She stressed that even Health Secretary Enrique Ona, who visited her on the evening of Oct. 28, together with former DoH Secretary Francisco Duque, did not dispute the statements of GMA's doctors, particularly their advice that she seek medical examination and treatment abroad.
"In fact, DoH Secretary Ona opined that petitioner GMA deserves to get proper and suitable medical treatment abroad by specialists of her choice. Based on DoH Secretary Ona's statements, petitioner GMA was comforted that he would favorably recommend her immediate departure for medical treatment abroad," the petition stated.
She also undertook under oath before De Lima that once her treatment abroad has been completed, she would forthwith return to the Philippines and participate in the proceedings before the DoJ to present her defense in the cases filed against her.
Despite her submission of all required documents, Mrs. Arroyo said that De Lima imposed additional requirements not stated in any law which, according to her counsel, caused GMA serious anxiety, stress and further physical suffering.
GMA's counsels argue that even if she is being linked to alleged anomalies including allegations of electoral fraud, for which she his et to be formally charged in court, she should be allowed to travel and seek foreign treatment as her right to travel is protected in Sections 1 and 6 of the Bill of Rights of the 1987 Constitution which states that "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," and , that "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."
Incidentally, the "right to travel" is only explicitly guaranteed under the 1987 Constitution which was ratified and adopted during the term of Aquino's mother, the late Cory Aquino. Both the 1935 and 1973 Constitutions do not have a similar provision.
"Forbidding GMA from leaving the country may be inflicting on her punishment far worst than the imprisonment contemplated — without trial or a final judgment of conviction," the counsels claim.
For his part, the former First Gentleman delved on the issue of persecution as he cited Aquino's pronouncements wherein he declared that by November, tyhe Aquino administration will be filing one case after the other against the Arroyos which was attested by his spokesman Edwin Lacierda when he said that "those orders have already been given, the statement has been made, and as public officials, we intend to follow and comply with the orders of the President."
Mr. Arroyo added that the WLO "contains patent absurdities such as requiring prior permission before Petitioner could travel outside the country."
"Interestingly, it may be queried, from whom should Petitioner seek prior permission? Should Petitioner seek permission from the Secretary of Justice? But the Department of Justice has not found any probable cause for which to charge herein Petitioner. As of the filing of this Petition, the Preliminary Investigation has not yet even terminated. And clearly, Petitioner does not have any pending criminal case," he stated in his separate petition.
"More absurdly, should Petitioner seek permission from Senator Pimentel III whose complaint is based on double hearsay?" FG added referring to the case filed by the senator.
"The constitutional question that gave rise to these issue will continue to spawn the same controversy in the future, unless the threshold constitutional question is resolved," FG said.
"This Court may, in the exercise of its sound discretion, brush aside procedural barriers and take cognizance of constitutional issues due to their paramount importance. It is the Court's duty to apply the 1987 Constitution in accordance with what it says and not in accordance with how the Legislature or the Executive would want it interpreted. This court has the final word on what the law means. The Court must assure respect for the constitutional limitations embodied in the 1987 Constitution."
TRIBUNE EDITORIAL
On the road to dictatorship EDITORIAL
[TRIBUNE EDITORIAL CARICATURE: GMA LOOKING UP AT A HUNG NOOSE]
Vindictive Noynoy and his power-hungry Justice secretary must be stopped by the high court from usurping the court's power to issue a hold departure order (HDO) disguised as a watch list order (WLO) that can only be lifted with an allow departure order (ADO) and by the Department of Justice (DoJ) chief.
That judicial power usurped by the executive departure on the basis of a DoJ ruling must be immediately be struck down by the high court as unconstitutional for the simple reason that other powers not within the realm of the executive power can also be usurped, which is a great danger posed on the citizenry's other constitutionally-guaranteed rights that can moreover lead to a dictatorial regime.
If the Justice chief uses a mere department ruling that she and her office have ruled upon to constrict the constitutional rights of citizens, what then is to stop a Justice chief, on orders of the Chief Executive, stemming from vindictiveness, from coming up with a ruling that grants herself the power to issue search and seizure orders, apart from invading one's privacy, all of which belong to the province of the judiciary?
It will be recalled that during the Marcos martial law years, it was the Chief Executive that ordered the arrests of whoever he wanted arrested and whose properties were also seized just on the basis on his executive orders, which were the law under a dictatorial regime.
But Marcos' rule was a dictatorship. The Philippines today is supposed to be a democracy — or pretending to be one — where the three government departments rule co-equally within their areas of responsibility,
Yet there went Noynoy and his Justice secretary, who is his alter-ego, usurping the power of the courts to issue HDOs that can only do so when cases are already in court and only if that individual, or individuals, are not covered by the constitutionally mandated reasons to ban such persons from leaving the country.
And all the Justice secretary says, by way of dismissing this violation of the Constitution's Bill of Rights is that the DoJ ruling has the presumption of regularity and that by virtue of such a DoJ ruling, she is empowered to issue her version of the HDO.
If Leila de Lima and her principal, Noynoy, are not stopped from usurping the powers of the judiciary, as Noynoy and his Budget secretary have already usurped the powers of Congress over the purse, more abuses and violations of the Constitution as well as more usurpations of powers will be committed by them, which would naturally lead to a dictatorial rule, having usurped the other department's powers — including Malacañang's attempt to usurp the mandated financial autonomy of the judiciary, as well as making Congress report its expenses to the executive, which would be yet another usurpation of the financial autonomy of supposedly independent constitutional offices.
Today, it is Gloria Arroyo's health and fate that Noynoy and De Lima maliciously and whimsically play with and without any constitutional basis. Tomorrow, it could well be other political foes of Noynoy, whether in the Congress, the judiciary or the media.
After all, it is the easiest thing for the vindictive Noynoy to make the lives and health of his foes miserable. All he has to do is to get his Justice Secretary to form a panel to investigate his foes, after which, she quickly issues a WLO barring these foes from leaving the country — even if they have not been charged in court and even when a preliminary probe has not been finalized.
Noynoy does not even have to wait for a search order from the courts as his justice aide can simply make a ruling stating that the DoJ is empowered to issue a search order disguising it with some other name.
As for illegal wiretaps, these too, can be ordered done by Noynoy's justice chief, and easily. All she has to do is to issue a DoJ ruling saying that it is legal for the executive to order phone and internet conversations to be tapped. Through a mere DoJ ruling, Noynoy is given that power that is being usurped and before everyone knows it, we would have a full blown dictator in Malacañang, with our liberties in chains.
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Chief News Editor: Sol Jose Vanzi
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