Genuino v. de Lima (April 17, 2018)
Genuino v. de Lima (April 17, 2018)
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. SEE, Petitioners, v. 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.
DECISION
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:
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of the Order4 dated
November 8, 2011, denying her application for an Allow-Departure Order (ADO).
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 Order5 (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.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary of Foreign Affairs,
of her Travel Authority;
2. First Endorsement dated October 19, 201120 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);
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of consultations with
doctors in Singapore.
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
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.
xxxx
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.
xxxx
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.
xxxx
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.
xxxx
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.
xxxx
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 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
Motion29 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
On November 13, 2011, GMA filed a Supplemental Petition31 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/Opposition32 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;
(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
On the very day of the issuance of the TRO, the petitioners tendered their compliance35 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
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 Motion41 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-CR49 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, 201154 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 Letter56 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 Letter57 dated August 1, 2011 which
prompted the institution of the present petition by the Genuinos. In a Resolution58 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
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and
III
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.
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)
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.
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.
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 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 Court80 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 x
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
During 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.:
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.
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MR. RODRIGO. Aside from that, this includes the right to travel?
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?
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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.
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RESUMPTION OF SESSION
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THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized
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
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.
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:
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
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.
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.
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Section 3. Powers and Functions. - to accomplish its mandate, the Department shall have the following powers and
functions:
(1) Act as principal law agency of the government and as legal counsel and representative thereof, whenever so
required;
(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction
system;
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(6) Provide immigration and naturalization regulatory services and implement the laws governing citizenship and
the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including government-owned and
controlled
corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis supplied)
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.
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.
(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)
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:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:
(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the promulgation
of which is expressly vested by law in the President relative to matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to the approved programs of
governments;
(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans,
programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of the offices under the
Secretary and for proper execution of the laws relative thereto. These issuances shall not prescribe
penalties for their violation, except when expressly authorized by law;
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(9) Perform such other functions as may be provided by law. (Emphasis Ours)
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.
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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
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.
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,110Kwong vs. Presidential Commission on Good Government111 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.
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 MTC121 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.
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-11-237127
(Watchlist)
In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- x
ORDER
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.
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.
SO ORDERED.
AMENDED 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.
__________________________________
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;
xxxx
12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
Quezon City
x x x x
Ground for WLO Pendency of the case, entitled "DOJ-COMELEC Fact Finding Committee v. Benjamin Abalos Sr.,
Issuance: el al." for Electoral Sabotage/Omnibus Election Code docketed as DOJ-COMELEC Case No.
001-2011
x x x x
Ground for WLO Pendency of the case, entitled "Aquilino Pimentel III v. Gloria Macapagal-Arroyo, et Al." for
Issuance: Electoral Sabotage docketed as DOJ-COMELEC Case No. 002-2011.
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.
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently states:
Hold Departure Order (HDO)
No. 2011-64130
ORDER
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.
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner 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.
(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.
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 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
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).
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
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
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 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 4144 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.
It is well to remember that on November 18, 2011, a Resolution145 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.