G.R. No. 197930 - Separate Opinion




G.R. No. 197930, April 17, 2018, ♦ Decision, Reyes, [J] ♦ Concurring Opinion, Carpio, [J] ♦ Separate Concurring Opinion, Velasco, [J] ♦ Separate Opinion, Leonen, [J] CONCURRING OPINION CARPIO, Acting C.J.: x - - - - - - - - - - - - - - - - - - - - - - - x I concur. The constitutionality of the assailed administrative circular remains justiciable. Preliminarily, the consolidated petitions continue to present a justiciable controversy. Neither the expiration of the watchlist orders issued by Leila M. De Lima (respondent) as former Secretary of Justice nor the filing of Information for electoral sabotage against petitioner Gloria Macapagal-Arroyo (GMA) rendered the cases moot. A case becomes moot when it ceases to present a justiciable controversy such that its adjudication would not yield any practical value or use.1 Where the petition is one for certiorari seeking the nullification of an administrative issuance for having been issued with grave abuse of discretion, obtaining the other reliefs prayed for in the course of the proceedings will not render the entire petition moot altogether. In COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on Elections (COMELEC),2 the Court thus explained: A moot and academic case is one that ceases to present a justiciable controversy because of supervening events so that a declaration thereon would be of no practical use or value. In the present case, while the COMELEC counted and tallied the votes in favor of COCOFED showing that it failed to obtain the required number of votes, participation in the 2013 elections was merely one of the reliefs COCOFED prayed for. The validity of the COMELEC's resolution, cancelling COCOFED's registration, remains a very live issue that is not dependent on the outcome of the elections.3 (Citations omitted) Similarly, where an accused assails via certiorari the judgment of conviction rendered by the trial court, his subsequent release on parole will not render the petition academic.4 Precisely, if the sentence imposed upon him is void for lack of jurisdiction, the accused should not have been paroled, but unconditionally released since his detention was illegal.5 In the same vein, even when the certification election sought to be enjoined went on as scheduled, a petition for certiorari does not become moot considering that the petition raises jurisdictional errors that strike at the very heart of the validity of the certification election itself.6 Indeed, an allegation of a jurisdictional error is a justiciable controversy that would prevent the mootness of a special civil action for certiorari.7 Here, the consolidated petitions for certiorari and prohibition assail the constitutionality of Department of Justice (DOJ) Circular No. 041-10,8 on which respondent based her issuance of watchlist and hold-departure orders against petitioners. Notably, DOJ Circular No. 041-10 was not issued by respondent herself, but by Alberto C. Agra as then Acting Secretary of Justice during the Arroyo Administration. It became effective on 2 July 2010.9 In fact, the assailed issuance remains in effect. To be sure, whether the watchlist and hold-departure orders issued by respondent against petitioners subsequently expired or were lifted is not determinative of the constitutionality of the circular. Hence, the Court is duty-bound to pass upon · the constitutionality of DOJ Circular No. 041-10, being a justiciable issue rather than an exception to the doctrine of mootness. DOJ Circular No. 041-10 is an invalid impairment of the right to travel, and therefore, unconstitutional. Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10 violates the constitutional right to travel. Section 6, Article III of the Constitution reads: SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied) As above-quoted, the right to travel is not absolute. However, while it can be restricted, the only permissible grounds for restriction are national security, public safety, and public health, which grounds must at least be prescribed by an act of Congress. In only two instances can the right to travel be validly impaired even without a statutory authorization. The first is when a court forbids the accused from leaving Philippine jurisdiction in connection with a pending criminal case.10 The second is when Congress, pursuant to its power of legislative inquiry, issues a subpoena or arrest order against a person.11 The necessity for a legislative enactment expressly providing for a valid impairment of the right to travel finds basis in no less than the fundamental law of the land. Under Section 1, Article VI of the Constitution, the legislative power is vested in Congress. Hence, only Congress, and no other entity or office, may wield the power to make, amend, or repeal laws. 12 Accordingly, whenever confronted with provisions interspersed with phrases like "in accordance with law" or "as may be provided by law," the Court turns to acts of Congress for a holistic constitutional construction. To illustrate, in interpreting the clause "subject to such limitations as may be provided by law" in relation to the right to information, the Court held in Gonzales v. Narvasa13 that it is Congress that will prescribe these reasonable conditions upon the access to information: The right to information is enshrined in Section 7 of the Bill of Rights which provides that – The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Under both the 1973 and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, wherein the Court classified the right to information as a public right and when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public' which possesses the right." However, Congress may provide for reasonable conditions upon the access to information. Such limitations were embodied in Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," which took effect on March 25, 1989. This law provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality.14 (Emphasis supplied; Citations omitted) In Tondo Medical Center Employees Association v. Court of Appeals, 15 the Court made a jurisprudential survey on the interpretation of constitutional provisions that are not self-executory and held that it is Congress that will breathe life into these provisions: As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some provisions have already been categorically declared by this Court as non self-executing. . In Tañada v. Angara, the Court specifically set apart the sections found under Article Il of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented: By its very title, Article II of the Constitution is a "declaration of principles and state policies." x x x These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. In Basco v. Philippine Amusement and Gaming Corporation, this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance, the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights. Some of the constitutional provisions invoked in the present case were taken from Article II of the Constitution --- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 --- the provisions of which the Court categorically ruled to be non self-executing in the aforecited case of Tañada v. Angara.16 (Emphasis supplied; citations omitted) In Ang Bagong Bayani-OFW Labor Party v. COMELEC,17 the Court construed the constitutional provisions on the party-list system and held that the phrases "in accordance with law" and "as may be provided by law" authorized Congress "to sculpt in granite the lofty objective of the Constitution," to wit: That political parties may participate in the party-list elections does not mean, however, that any political party — or any organization or group for that matter — may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows: "(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." x x x x The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like "in accordance with law" or "as may be provided by law"; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. X X X.18 (Italicization in the original; boldfacing supplied) Unable to cite any specific law on which DOJ Circular No. 041-10 is based, respondent invokes Executive Order No. 292, otherwise known as the Revised Administrative Code of 1987. In particular, respondent cites the DOJ's mandate to "investigate the commission of crimes" and "provide immigration x x x regulatory services," as well as the DOJ Secretary's rulemaking power. 19 I disagree. In the landmark case of Ople v. Torres 20 an administrative order was promulgated restricting the right to privacy without a specific law authorizing the restriction. The Office of the President justified its legality by invoking the Revised Administrative Code of 1987. The Court rejected the argument and nullified the assailed issuance for being unconstitutional as the Revised Administrative Code of 1987 was too general a law to serve as basis for the curtailment of the right to privacy, thus: We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court. x x x x Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. An administrative order is: "Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders." An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural, functional and procedural principles of governance" and "embodies changes in administrative structures and procedures designed to serve the people." The Code is divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government.21 (Citations omitted) Indeed, EO 292 is a law of general application.22 Pushed to the hilt, the argument of respondent will grant carte blanche to the Executive in promulgating rules that curtail the enjoyment of constitutional rights even without the sanction of Congress. To repeat, the Executive is limited to executing the law. It cannot make, amend or repeal a law, much less a constitutional provision. For the same reason, in the Court's jurisprudence concerning the overseas travel of court personnel during their approved leaves of absence and with no pending criminal case before any court, I have consistently maintained that only a law, not administrative rules, can authorize the Court to impose administrative sanctions for the employee's failure to obtain a travel permit: Although the constitutional right to travel is not absolute, it can only be restricted in the interest of national security, public safety, or public health, as may be provided by law. As held in Silverio v. Court of Appeals: Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text x x x. Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party X X X. The constitutional right to travel cannot be impaired without due process of law. Here, due process of law requires the existence of a law regulating travel abroad, in the interest of national security, public safety or public health. There is no such law applicable to the travel abroad of respondent. Neither the OCA nor the majority can point to the existence of such a law. In the absence of such a law, the denial of respondent's right to travel abroad is a gross violation of a fundamental constitutional right. x x x x Furthermore, respondent's travel abroad, during her approved leave, did not require approval from anyone because respondent, like any other citizen, enjoys the constitutional right to travel within the Philippines or abroad. Respondent's right to travel abroad, during her approved leave, cannot be impaired "except in the interest of national security, public safety, or public health, as may be provided by law." Not one of these grounds is present in this case.23 (Citations omitted) While the Revised Administrative Code of 1987 cannot lend credence to a valid impairment of the right to travel, Republic Act No. (RA) 8239, otherwise known as the Philippine Passport Act of 1996, expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen. Section 4 of RA 8239 reads: SEC. 4. Authority to Issue, Deny, Restrict or Cancel. – Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act. Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act. In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines. The identical language between the grounds to cancel passports under the above-quoted provision and the grounds to impair the right to travel under Section 6, Article III of the Constitution is not by accident cognizant of the fact that passport cancellations necessarily entail an impairment of the right. Congress intentionally copied the latter to obviate expanding the grounds for restricting the right to travel. Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of persons under preliminary investigation? The answer depends on the nature of the crime for which the passport holders are being investigated on. If the crime affects national security and public safety, the cancellation squarely falls within the ambit of Section 4. Thus, passport holders facing preliminary investigation for the following crimes are subject to the DFA Secretary's power under Section 4: (1) Title One, (Crimes Against National Security and the Law of Nations), Title Three (Crimes Against Public Order), Title Eight (Crimes Against Persons), Title Nine (Crimes Against Liberty), Title Ten (Crimes Against Property) and Title Eleven (Crimes Against Chastity), Book II of the Revised Penal Code; (2) Section 261 (Prohibited Acts), paragraphs (e),24 (f),25 (p),26 (9),27 (s),28 and (u)29 of the Omnibus Election Code;30 and (3) Other related election laws such as Section 27(b) of RA 7874, as amended by RA 9369.31 Indeed, the phrases "national security" and "public safety," which recur in the text of the Constitution as grounds for the exercise of powers or curtailment of rights,32 are intentionally broad to allow interpretative flexibility, but circumscribed at the same time to prevent limitless application. At their core, these concepts embrace acts undermining the State's existence or public security. At their fringes, they cover acts disrupting individual or communal tranquility. Either way, violence or potential of violence features prominently. Thus understood, the "public safety" ground under Section 4 of . RA 8239 unquestionably includes violation of election-related offenses carrying the potential of disrupting the peace, such as electoral sabotage which involves massive tampering of votes (in excess of 10,000 votes). Not only does electoral sabotage desecrate electoral processes, but it also arouses heated passion among the citizenry, driving some to engage in mass actions and others to commit acts of violence. The cancellation of passports of individuals investigated for this crime undoubtedly serves the interest of public safety, much like individuals under investigation for robbery, kidnapping, and homicide, among others. 33 As to whether respondent must be cited in contempt for allegedly defying the Temporary Restraining Order issued by the Court, I agree that it cannot be resolved simultaneously with these consolidated petitions. Until the contempt charge is threshed out in a separate and proper proceeding, I defer expressing my view on this issue. Accordingly, I vote to GRANT the petitions and to declare DOJ. Circular No. 041-10, and the assailed Watchlist Orders issued pursuant to the circular, UNCONSTITUTIONAL for being contrary to Section 6, Article III of the Constitution. As regards the contempt charge against respondent, I DEFER any opinion on this issue until it is raised in a separate and proper proceeding. Footnotes 1 Osmeña III v. Social Security System of the Philippines, 559 Phil. 723, 735 (2007), citing Governor Mandanas v. Honoruble Romulo, 473 Phil. 806, 827-828 (2004); Olanolan v. COMELEC, 494 Phil. 749, 759 (2005); Paloma v. Court of Appeals, 461 Phil. 269, 276-277 (2003). 2 716 Phil. 19 (2013). 3 Id. at 28-29. 4 Castrodes v. Cubelo, 173 Phil. 86 (1978). 5 Id. at 91. 6 Cooperative Rural Bank of Davao Cin: Inc. v. Ferrer-Calleja, 248 Phil. 169 (1988). 7 Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, 25 January 2016, 781 SCRA 607, 619. 8 Otherwise known as Consolidated Rules and Regulations Governing the Issuances and Implementing of Hold Departure Orders, Watchlist Orders and Allow Departure Orders. 9 DOJ Circular No. 041-10 was published in The Philippine Star on 17 June 2010. Under Art. 2 of the Civil Code, as interpreted by the Court in Tañada v. Tuvera, 230 Phil. 528, 533-534 (1986), DOJ Circular No. 041-10 shall take effect after 15 days from the date of its publication. 10 Dr. Cruz v Judge Iturralde, 450 Phil. 77, 86 (2003); Hold-Departure Order issued by Judge Occiano, 431 Phil. 408, 411-412 (2002); Silverio v. Court of Appeals, 273 Phil. 128, 134-135 (1991). 11 See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, 678 Phil. 328, 355 (2011). 12 See Belgica v. Ochoa, 721 Phil. 416, 546 (2013). 13 392 Phil. 518 (2000). 14 Id. at 529-530. 15 554 Phil. 609 (2007). 16 Id. at 625-626. 17 412 Phil. 308 (2001). 18 Id. at 331-332. 19 Consolidated Comment, p. 36. 20 354 Phil. 948 (1998). 21 Id. at 966, 968-969. 22 Office of the Solicitor General of Court of Appeals, 735 Phil. 622, 630 (2014); Calingin v. Court of Appeals, 478 Phil. 231, 236-237 (2004); Government Service Insurance System v: Civil Service Commission, 307 Phil. 836, 846 (1994). 23 See my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens, supra note 11, at 354-356. 24 "Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion." 25 "Coercion of election officials and employees." 26 "[Carrying of] deadly weapons in prohibited areas." 27 "Carrying of firearms outside residence or place of business." 28 "Wearing of uniforms and bearing arms." 29 "Organization or maintenance of reaction forces, strike forces, or other similar forces." 30 Batas Pambansa Blg. 881, as amended. 31 Defining the offense of Electoral Sabotage. 32 E.g., (1) Art. III, Sec. 3(1) ["The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law."); Sec. 6 [The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law."); Sec. 15 [The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it."D; and (2) Art. VII, Sec. 15 ["Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."]; Sec. 18, par. 2 ["In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. X X X. Upon. the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it."] (Emphasis supplied) It is not farfetched to link election laws with public safety. The European Court of Human Rights considers the forced abolition of a political party espousing violent and extreme views as permissible in the interest of public safety, even though this impairs the party members' right to association. See Refah Partisi v. Turkey, 13 February 2003, Application Nos. 41340/98, 41342/98, 41343/98 and 41344/9837. (www.echr.coe.int/Documents/Reports Recueil 2003-11.pdf, accessed on 18 January 2018) The Lawphil Project - Arellano Law Foundation SEPARATE CONCURRING OPINION VELASCO, JR., J.: x - - - - - - - - - - - - - - - - - - - - - - - x I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes, Jr. That the right to travel and to freedom of movement are guaranteed protection by no less than the fundamental law of our land brooks no argument. While these rights are not absolute, the delimitation thereof must rest on specific circumstances that would warrant the intrusion of the State. As mandated by Section 6 of the Bill of Rights, any curtailment of the people's freedom of movement must indispensably be grounded on an intrinsically valid law, and only whenever necessary to protect national security, public safety, or public health, thus: SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis and underscoring supplied) The Department of Justice (DOJ) Circular No. 41 cannot be the law pertained to in the provision.1awp++i1 As pointed out in the ponencia, it is but an administrative issuance that requires an enabling law to be valid.1 Jurisprudence dictates that the validity of an administrative issuance is hinged on compliance with the following requirements: 1) its promulgation is authorized by the legislature; 2) it is promulgated in accordance with the prescribed procedure; 3) it is within the scope of the authority given by the legislature; and 4) it is reasonable.2 The DOJ, thus, exceeded its jurisdiction when it assumed to wield the power to issue hold departure orders (HDOs) and watchlist orders (WLOs), and allow department orders which unduly infringe on the people's right to travel absent any specific legislation expressly vesting it with authority to do so. I, therefore, concur that DOJ Circular No. 41 is without basis in law and is, accordingly, unconstitutional. With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a quandary and without prompt recourse for preventing persons strongly suspected of committing criminal activities from evading the reach of our justice system by fleeing to other countries. Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996, which expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen, even those of persons under preliminary investigations, for crimes affecting national security and public safety. This course of action, while undoubtedly a legally viable solution to the DOJ's dilemma, would nevertheless require the conduct of a hearing, pursuant to Section 43 of the law. This would inevitably alert the said persons of interest of the cause and purpose of the cancellation of their passports that could, in turn, facilitate, rather than avert, their disappearance to avoid the processes of the court. As an alternative solution, it is my humble submission that the above predicament can be effectively addressed through the ex-parte issuance of precautionary warrants of arrest (PWA) and/or precautionary hold departure orders (PHDOs) prior to the filing of formal charges and information against suspected criminal personalities. The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of the Constitution, to wit: Section 2. x x x no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) It bears noting that the warrant clause permits the issuance of warrants, whether it be a search warrant or a warrant of arrest, even prior to the filing of a criminal complaint or information in court. This interpretation finds support in the crafting of the provisions in our Rules of Criminal Procedure that govern the issuance of search warrants. As stated in Sections 4 to 64 of Rule 126, a search warrant may be issued by the courts if, after personally examining the complainants/applicants and the witnesses produced, they are convinced that probable cause exists for the issuance thereof. The rules do not require that 1) a criminal action or even a complaint must have already been filed against an accused; and that 2) persons of interest are notified of such application before law enforcement may avail of this remedy. The application for and issuance of a search warrant are not conditioned on the existence of a criminal action or even a complaint before an investigating prosecutor against any person. Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of arrest, akin to a search warrant, may be crafted by the Court. The application will be done ex-parte, by a public prosecutor upon the initiative of our law enforcement agencies, before an information is filed in court, and only in certain serious crimes and offenses. Before filing the application, the public prosecutor shall ensure that probable cause exists that the crime has been committed and that the person sought to be arrested committed it. The law enforcement agencies may also opt to ask for a PWA with PHDO or simply a PHDO. The judge's determination of probable cause shall be done in accordance with the requirements in Section 2, Article III of the Constitution. He shall set a hearing on the application to personally examine under oath or affirmation, in form of searching questions and answers, the applicant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements. If satisfied of the existence of probable cause based on the application and its attachments, the testimonies of the witnesses, and other evidence presented during the hearing, the judge may issue the warrant and direct the Philippine National Police or the National Bureau of Investigation to effect the arrest. The suggested revision in the Rules, to my mind, will help solve the problem caused by the declaration of nullity of the HDOs and WLOs issued by the DOJ. The law enforcement agencies can apply for a PWA or PHDO to prevent suspects from fleeing the country and to detain and arrest them at the airport. This may also solve the problem of extrajudicial killings as the law enforcement agency is now provided with an adequate remedy for the arrest of the criminals. I vote to GRANT the petition. PRESBITERO J. VELASCO, JR Associate Justice Footnotes 1 Page 22 of the Decision. 2 Hon. Executive Secretary, et. al. v. Southwing Heavy Industries, Inc., G.R. No. 164171, February 20, 2006, 482 SCRA 673, 686. 3 SEC. 4. Authority to Issue, Deny, Restrict or Cancel. - Upon the application of any qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports in accordance with this Act. Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the provisions of this Act. In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines. (Emphasis supplied) 4 Section 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Section 5. Examination of complainant, record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a) Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a) The Lawphil Project - Arellano Law Foundation SEPARATE OPINION LEONEN, J.: x - - - - - - - - - - - - - - - - - - - - - - - x I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional. The Department of Justice is neither authorized by law nor does it possess the inherent power to issue hold departure orders, watchlist orders, and allow departure orders against persons under preliminary investigation. However, I have reservations regarding the proposed doctrine that the right of persons to travel can only be impaired by a legislative enactment as it can likewise be burdened by other constitutional provisions. The pertinent Constitutional provision on the right to travel is Article III, Section 6, which states: Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied) The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,1 an early case decided under the 1987 Constitution. It dealt specifically with the right of former President Marcos to return to the Philippines. In resolving the case, this Court distinguished between the right to return to one's country and the general right to travel. The right to return to one's country was treated separately and deemed excluded from the constitutionally protected right to travel.2 In my view, the right to travel should not be given such a restrictive interpretation. In the broad sense, the right to travel refers to the "right to move from one place to another."3 The delimitation set in Marcos effectively excludes instances that may involve a curtailment on the right to travel within the Philippines and the right to travel to the Philippines. This case presents us with an opportunity to revisit Marcos and abandon its narrow and restrictive interpretation. In this regard, the constitutional provision should be read to include travel within the Philippines and travel to and from the Philippines. Undeniably, the right to travel is not absolute. Article III, Section 6 of the Constitution states that any curtailment must be based on "national security, public safety, or public health, as may be provided by law." In interpreting this constitutional provision, the ponencia proposes that only a statute or a legislative enactment may impair the right to travel.1âwphi1 Respectfully, I disagree. In my view, the phrase "as may be provided by law" should not be literally interpreted to mean statutory law. Its usage should depend upon the context in which it is written. As used in the Constitution, the word "law" does not only refer to statutes but embraces the Constitution itself. The Bill of Rights is replete with provisions that provide a similar phraseology. For instance, both the due process clause and the equal protection clause under Article III, Section 1 of the Constitution contain the word "law," thus: Article III BILL OF RIGHTS Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. (Emphasis supplied) However, the application of the due process and the equal protection clauses has not been limited to statutory law. These two (2) principles have been tested even against executive issuances. In Ynot v. Intermediate Appellate Court,4 the due process clause was deemed to have been violated by an executive order which directed the outright confiscation of carabaos transported from one province to another. In declaring the executive order unconstitutional, this Court held: [T]he challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.5 In the same manner, this Court in Corona v. United Harbor Pilots Association of the Philippines6 invalidated an administrative order that restricted harbor pilots from exercising their profession. The administrative order, which required harbor pilots to undergo an annual performance evaluation as a condition for the continued exercise of their profession, was considered a "deprivation of property without due process of law."7 In Biraogo v. Truth Commission,8 the creation of the Philippine Truth Commission by virtue of an executive order was deemed unconstitutional for violating the equal protection clause. The classification under the executive order, according to this Court, was unreasonable, thus: Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption during the previous administration" only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are: WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration, and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. SECTION 2. Powers and Functions. - The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied] In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.9 (Citations omitted) In this regard, it is inaccurate to say that the right of persons to travel to and from the Philippines can only be impaired by statutory law. It is also inaccurate to say that the impairment should only be limited to national security, public safety, or public health considerations for it to be valid. For instance, the assailed department order in Philippine Association of Service Exporters, Inc. v. Drilon10 was not founded upon national security, public safety, or public health but on the state's policy of affording protection to labor.11 The department order was deemed a valid restriction on the right to travel.12 The term "law" in Article III, Section 6 can refer to the Constitution itself. This can be understood by examining this Court's power to regulate foreign travel of court personnel and the nature and functions of bail. The power of this Court to regulate the foreign travel of court personnel does not emanate from statutory law, nor is it based on national security, public safety, or public health considerations. Rather, it is an inherent power flowing from Article III, Section 5(6) of the Constitution, which grants this Court the power of administrative supervision over all courts and court personnel. 13 The nature and object of this Court's power to control the foreign travel of court personnel were further explained in Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens,14 thus: With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that the "Supreme Court shall have administrative supervision over all courts and the personnel thereof." This provision empowers the Court to oversee all matters relating to the effective supervision and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B). Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to, and abide with, the law and the corresponding office rules and regulations. These rules and regulations, to which one submits himself or herself, have been issued to guide the government officers and employees in the efficient performance of their obligations. When one becomes a public servant, he or she assumes certain duties with their concomitant responsibilities and gives up some rights like the absolute right to travel so that public service would not be prejudiced. As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is necessary for the orderly administration of justice. If judges and court personnel can go on leave and travel abroad at will and without restrictions or regulations, there could be a disruption in the administration of justice. A situation where the employees go on mass leave and travel together, despite the fact that their invaluable services are urgently needed, could possibly arise. For said reason, members and employees of the Judiciary cannot just invoke and demand their right to travel. To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the society as well. In a situation where there is a delay in the dispensation of justice, litigants can get disappointed and disheartened. If their expectations are frustrated, they may take the law into their own hands which results in public disorder undermining public safely. In this limited sense, it can even be considered that the restriction or regulation of a court personnel's right to travel is a concern for public safety, one of the exceptions to the non-impairment of one's constitutional right to travel.15 (Citations omitted, emphasis supplied) A person's right to bail before conviction is both guaranteed and limited under the Constitution. Article III, Section 13 states: Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Courts have the jurisdiction to determine whether a person should be admitted to bail. This jurisdiction springs from the Constitution itself, which imposes limitations on the right to bail. However, the discretion of courts is not restricted to the question of whether bail should be granted to an accused as Courts have the inherent power to prohibit a person admitted to bail from leaving the Philippines."16 Regional Trial Courts, in particular, are empowered to issue hold departure orders in criminal cases falling within their exclusive jurisdiction.17 Persons admitted to bail are required to seek permission before travelling abroad. 18 Similar to the power of this Court to control foreign travel of court personnel, the power to restrict the travel of persons admitted to bail is neither based on a legislative enactment nor founded upon national security, public safety, or public health considerations. The power of courts to restrict the travel of persons on bail is deemed a necessary consequence of the conditions imposed in a bail bond.19 In Manotoc v. Court of Appeals20 this Court explained: Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. "Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him." The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People v. Uy Tuising[:] ". . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction." Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. "The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state."21 (Citations omitted) Although Manotoc was decided under the 1973 Constitution, the nature and functions of bail remain essentially the same under the 1987 Constitution.22 Hence, the principle laid down in Manotoc was reiterated in Silverio v. Court of Appeals23 where this Court further explained that: Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer. …. . . . Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law.24 (Citation omitted) Moreover, the power of courts to restrict the travel of persons out on bail is an incident of its power to grant or deny bail. As explained in Santiago v. Vasquez:25 Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity and functions of the courts, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance. Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction. Such being the case, with more reason may a party litigant be subjected to proper coercive measures where he disobeys a proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What ought to be done depends upon the particular circumstances. Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a public statement that she had every intention of leaving the country allegedly to pursue higher studies abroad. We uphold the course of action adopted by the Sandiganbayan in taking judicial notice of such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte the hold departure order, in justified consonance with our preceding disquisition. To reiterate, the hold departure order is but an exercise of respondent court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused.26 The Department of Justice is neither empowered by a specific law nor does it possess the inherent power to restrict the right to travel of persons under criminal investigation through the issuance of hold departure orders, watchlist orders, and allow departure orders. Its mandate under the Administrative Code of 1987 to "[i]nvestigate the commission of crimes [and] prosecute offenders"27 cannot be interpreted so broadly as to include the power to curtail a person's right to travel. Furthermore, Department Order No. 41, series of 2010 cannot be likened to the power of the courts to restrict the travel of persons on bail as the latter presupposes that the accused was arrested by virtue of a valid warrant and placed under the court's jurisdiction. For these reasons, Department of Justice Circular No. 41, series of 2010, is unconstitutional. Parenthetically, I agree that the right to travel is part and parcel of an individual's right to liberty, which cannot be impaired without due process of law.28 The ponencia mentions Rubi v. Provincial Board of Mindoro.29 In my view, Rubi should always be cited with caution. In Rubi, the Mangyans of Mindoro were forcibly removed from their habitat and were compelled to settle in a reservation under pain of imprisonment for non-compliance.30 Although the concepts of civil liberty and due process were extensively discussed in the case,31 this Court nevertheless justified the government act on a perceived necessity to "begin the process of civilization" of the Mangyans who were considered to have a "low degree of intelligence" and as "a drag upon the progress of the State." 32 MARVIC M.V.F. LEONEN Associate Justice Footnotes 1 258 Phil. 489 (1989) [Per J. Cortes, En Banc). 2 Id. at 497-498. 3 Mirasol v. Department of Public Works and Highways, 523 Phil. 713, 752 (2006) [Per J. Carpio, En Banc]. 4 232 Phil. 615, 631 (1987) [Per J. Cruz, En Banc). 5 Id. at 631. 6 347 Phil. 333 (1997) [Per J. Romero, En Banc). 7 Id. at 344. 8 651 Phil. 374 (2010) [Per J. Mendoza, En Banc). 9 Id. at 461-462. 10 246 Phil. 393 (1988) [Per J. Sarmiento, En Banc). 11 Id. at 404-405. 12 Id. 13 CONST., art. VIII, sec. 5(6) provides: Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. 14 678 Phil. 328 (2011) [Per J. Mendoza, En Banc]. 15 Id. at 341-342. 16 Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc] 17 OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders (1997): In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated: 1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts; 2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal; 3. The Hold-Departure Order shall contain the following information: a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined; b. The complete title and the docket number of the case in which the Hold-Departure Order was issued; c. The specific nature of the case; and d. The date of the Hold-Departure Order. If available a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included. 4. Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four (24) hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal. All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved. 18 Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, 678 Phil. 328 (2011) [Per J. Mendoza, En Banc]. 19 Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc). 20 226 Phil. 75 (1986) [Per J. Fernan, En Banc]. 21 ld. at 82-83. 22 Silverio v. Court of Appeals, 273 Phil. 128, 134 (1991) [Per J. Melencio-Herrera, Second Division). 23 273 Phil. 128 (1991) [Per J. Melencio-Herrera, Second Division). 24 Id. at 134. 25 291 Phil. 664 (1993) [Per J. Regalado, En Banc). 26 Id. at 679-680. 27 1987 ADM. CODE, Title III, sec. 3(2). 28 Ponencia, pp. 16-17. 29 39 Phil. 660 (1919) [Per J. Malcolm, En Banc). 30 Id. at 666-669. 31 Id. at 703-707. 32 Id. at 718-720. The Lawphil Project - Arellano Law Foundation