My analysis
By Raïssa Robles
RaissaRobles.com
RaissaRobles.com
Have you ever set a mousetrap and then yowled in pain as you stepped on it because you forgot all about it?
Well, that’s what happened to former President Gloria Macapagal-Arroyo and her cohorts. And as a result, she may not be seeing the Swiss Alps this Christmas as she had hoped to.
Do you recall that during the twilight of her administration last year, Arroyo and her officials issued over a thousand midnight appointments that included a hairdresser, a gardener and the current Supreme Court Chief Justice?
And alongside those midnight appointments were hundreds, if not thousands, of midnight orders?
Well, one such midnight order has turned out to be a sort of legal mousetrap that has caught Arroyo, her husband Jose Miguel and over 30 others.
This is Department Circular No. 41 signed by Arroyo’s own Justice Secretary Alberto Agra on May 25, 2010 – at a time when the entire Arroyo camp should have been packing their bags in preparation for moving out of government by June 30.
DC 41 is Justice Secretary Leila de Lima’s legal basis for banning Arroyo et al from flying out of the country.
This seemingly innocuous circular was issued by Agra to “consolidate” regulations pertaining to the use of “hold departure orders”, “watch list orders” and “allow departure orders”.
But it did more than that. It noted that existing Supreme Court Circulars “clearly state that ‘Hold Departure Order shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.’ ”
Because of this, DC 41 said, these Supreme Court circulars left a gap because they were “silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices.”
It is the last clause, which I posted in red, which De Lima is using to bar the Arroyo couple from traveling – because they have five complaints filed against them “pending determination by government prosecution offices.”
De Lima cited the following Arroyo pending cases:
Source: From Justice Secretary Leila de Lima’s decision rejecting ex-President Gloria Macapagal-Arroyo’s request for travel
The short DC 41 circular states that the justice secretary
is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual’s right to travel;
The circular states that the justice secretary can bar anyone from traveling, not only “in the interest of national security, public safety or public health” but also if there is a request made be the following government officials:
- Head of a Department of the Government
- Head of a constitutional body or commission
- The Supreme Court Chief Justice
- The Senate President
- The House Speaker
Now here is where the situation becomes hilarious.
This Tuesday November 8, 2011, lawyer Estelito Mendoza filed an urgent petition with the Supreme Court on behalf of Arroyo to declare DC 41 unconstitutional and to void it.
Mendoza was quoted by reporters as saying that a person’s right to travel may only be “impaired” in the “interest of national security, public safety, or public health.”
Therefore, Mendoza said, it was wrong for De Lima to bar Arroyo “in aid of her prosecutorial authority.”
Mendoza’s petition asked the Supreme Court to strike down DC 41 because it violates the Bill of Rights in the Constitution.
By the way, shouldn’t this make us really wonder why Agra issued such a circular AFTER Benigno Aquino had emerged as the clear winner of the 2010 elections but before Congress had proclaimed him?
What was the intent of the Arroyo administration behind issuing DC 41?
It could not have been issued in order to prevent Senator Panfilo Lacson from fleeing because the latter had already slipped out to Hong Kong four months earlier.
You know, this circular really reminds me of what the late dictator Ferdinand Marcos used to do with his “Amendment No.6″.
Amendment No. 6 was an amendment Marcos inserted into the 1973 Constitution to give himself secret law-making powers.
Implications of a Supreme Court ruling on DC 41
It will now be a race between the Supreme Court and the justice department. If the Office of the Prosecutor under the justice department is able to file the cases against Arroyo in court, then an SC ruling on DC 41 could become moot and academic.
It will then be up to the court to decide whether or not to bar the Arroyo couple from leaving.
But if the Supreme Court goes ahead and rules that DC 41 is indeed unconstitutional, then it will have a different dilemma in its hands – that of convincing the public that it is not an Arroyo court even if most of its justices were appointed by her.
And should it allow Arroyo to go abroad and she fails to return, the Supreme Court would be totally blamed for it.
By the way, this is not the first time that a high government official has been caught in this manner. Ex-President Joseph Estrada was convicted for plunder in 2007 – a crime that he had voted to approve into law when he was still a senator.
I think this is what it means when someone says a person was “hung by his own petard.”
Still, I’d like to console Mrs Arroyo with the music below:
___________________________
Here’s the entire text of DC 41 :
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
DEPARTMENT OF JUSTICE
M a n i l a
KAGAWARAN NG KATARUNGAN
DEPARTMENT OF JUSTICE
M a n i l a
DEPARTMENT CIRCULAR NO. 41 JUNE 07, 2010
CONSOLIDATED RULES AND REGULATIONS GOVERNING THE ISSUANCES AND IMPLEMENTING OF HOLD DEPARTURE ORDERS, WATCHLIST ORDERS, AND ALLOW DEPARTURE ORDERS
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court Administrator, clearly state that “Hold Departure Order shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts,” 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;
WHEREAS, apart from the courts, the Secretary of Justice as head of the principal law agency of the government mandated to, inter alia, investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual’s right to travel;
WHEREAS, the Department of Justice, therefore, issued Circular No. 17 on March 19, 1998 and Circular No. 18 on April 23, 2007 to respectively govern the issuance and implementation of Hold Departure Orders (HDOs), Watchlist Orders (WLOs), and Allow Departure Orders (ADOs), among others;
WHEREAS, in view of the problems that cropped up both in the issuance and implementation of said Orders, there is a need to review, revise and consolidate the two department issuances to ensure their effective implementation.
NOW, THEREFORE, pursuant to the provisions of existing laws, the following consolidated rules are hereby adopted:
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.
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.
Section 3. Completeness of Information. – To ensure the proper identification of the subject of the HDO/WLO and to avoid inconvenience to any innocent party, all applications or requests, including the HDO/WLO to be issued, shall contain the following information of the subject:
a. Complete name, i.e. given name, middle name or initial and surname;
b. Alias/es, if any;
c. Date and place of birth;
d. Place of last residence;
e. Passport details, if available;
f. Recent photograph, if available;
g. Complete title and docket number of the case; and
h. Specific nature of the case.
Section 4. HDO/WLO Validity. – The validity period of any HDO/WLO issued pursuant to this Circular shall be reckoned from the date of its issuance. The HDO shall valid for five (5) years unless sooner terminated. On the other hand, the WLO shall be valid for sixty (60) days unless sooner terminated or extended, for a non-extendible period of not more than sixty (60) days.
Section 5. HDO/WLO Lifting or Cancellation. – In the lifting or cancellation of the HDO/WLO issued pursuant to this Circular, the following rules shall apply:
(a) The HDO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the HDO as provided for in the preceding section has already expired;
2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country;
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding section has already expired;
2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; and
3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.
(c) All applications for lifting/cancellation of HDOs/WLOs must be under oath and accompanied by certified true copies of the documentary evidence in support of the ground relied upon.
(d) Any HDO/WLO issued by the Secretary of Justice either motu proprio or upon request of government functionaries/offices mentioned in Sections 1 and 2, 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, may be lifted or recalled anytime if the application is favorably indorsed by the government functionaries/offices who requested the issuance of the aforesaid HDO/WLO.
Section 6. Implementation of HDO/WLO/ADO Issuance and Lifting/Cancellation. – All Orders issued pursuant to this Circular shall be immediately transmitted to the Commissioner of Immigration for implementation, copy furnished the person/s subject thereof, to give the latter adequate opportunity to content the Order or request consideration thereof.
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.
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 HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.
Section 8. Issuance of Clearance/Certification of Not the Same Person. – Any person who is prevented from leaving the country because his name appears to be the same as the one that appears in the HDO/WLO issued pursuant to this Circular may, upon application under oath, be issued a Certification to the effect that said person is not the same person whose name appears in the issued HDO/WLO.
The Certification may be issued upon submission of the following requirements:
a. Affidavit of Denial;
b. Photocopy of the page of the passport bearing the personal details;
c. Latest clearance from the National Bureau of Investigation (NBI); and
d. Clearance from the court or appropriate government agency, whenever applicable.
Section 9. Processing Fees. – Pursuant to the provisions of Republic Act No. 9279 and its Implementing Rules and Regulations, there shall be collected and paid to the Cashier’s Office of this Department the following fees to cover the administrative costs for services rendered by the Legal Staff, to wit:
Issuance/Lifting or Cancellation/Extension of HDO/WLO
- P2,500.00
- P2,500.00
Issuance of Allow Departure Order
- P2,500.00
- P2,500.00
Issuance of Clearance/Certification of Not the Same Person
- P500.00
- P500.00
Section 10. Repealing Clause. - All rules and regulations, particularly those contained in Circular No. 17 dated March 19, 1998 and Circular No. 18 dated April 23, 2007, as well as all instructions, issuances or orders or parts thereof inconsistent with the Rules provided herein, are hereby superseded and/or repealed accordingly.
Section 11. Effectivity. - These rules shall take effect immediately.
May 25, 2010.
ALBERTO C. AGRA
Acting Secretary
Acting Secretary
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