Genuino v. De Lima (2018)*

Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.:

1. Background

• 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:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;

2. Amended Watchlist Order No. 2011-422 dated September 6, 2011; and

3. Watchlist Order No. 2011-573 dated October 27, 2011.

• 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 Order (HDO) No. 2011-64 dated July 22, 2011 issued against them.

• On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules and regulations governing the issuance of HDOs. The said issuance was intended to restrain the indiscriminate issuance of HDOs which impinge on the people’s right to travel.

• On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules and regulations governing the issuance and implementation of watchlist orders. In particular, it provides for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases pending preliminary investigation or petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an ADO to a person subject of a WLO who intends to leave the country for some exceptional reasons. 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…

• 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. Thereafter, the Bl issued WLO No. ASM-11-237, 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. 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.

• 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…

• 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.

• 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. She likewise undertook to return to the Philippines, once her treatment abroad is completed, and participate in the proceedings before the DOJ.

• 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.”

• 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.

• 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.

• Also, on November 8, 2011, De Lima issued an Order, denying GMA’s application for an ADO…

On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a Very Urgent Manifestation and Motion 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.

• On November 13, 2011, GMA filed a Supplemental Petition which included a prayer to annul and set aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA filed her Comment/Opposition 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, 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…

• On the very day of the issuance of the TRO, the petitioners tendered their compliance 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 (₱2,000,000.00); (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; (3) special powers of attorney executed by the petitioners, appointing their respective lawyers as their legal representatives; and (4) an undertaking to report to the nearest consular office in the countries where they will travel.

• 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.

• On November 17, 2011, GMA, through counsel, filed an Urgent Motion 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.” Not long after, Miguel Arroyo followed through with an Urgent Manifestation, 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, 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. 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.

• On November 18, 2011, the Court issued a Resolution, or 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.

• On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-PSY-11-04432-CR 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 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.

• 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, 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.

• Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011 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. In a Letter dated July 29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against them be lifted. This plea was however denied in a Letter dated August 1, 2011 which prompted the institution of the present petition by the Genuinos. In a Resolution dated April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034 and 199046.

2. SC Decision/Resolution

• 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. If a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect.

• The right to travel is part of the “liberty” of which a citizen cannot be deprived without due process of law. 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. Thus, in Zacarias Villavicencio vs. Justo Lucban, 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. (Emphasis ours)

• Clearly, under the provision, there are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court 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.

• 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.

• 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. 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.

• 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.

x x x x

MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. But another right is involved here and that is to travel?

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of abode and or changing the same from the right to travel, because they may necessitate different provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

x x x x

RESUMPTION OF SESSION

x x x x

THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas is recognized

FR. BERNAS. The proposal is amended to read: “The liberty of abode and of changing the same within the limits prescribed by law, shall not be impaired except upon lawful order of the court. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.

• 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, 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, 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.”

• In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right vis-à-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.

[The issuance of DOJ Circular No. 41 has no legal basis]

• Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them.

• 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 rulemaking 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.

• 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.

• 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. 

• 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.

• 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. 

• 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 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. 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. 

• 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 cannot issue DOJ Circular No. 41 under the guise of police power]

• 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. 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. 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.

[The subject WLOs and the restraint on the right to travel.]

• In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings thereof. 

• On its face, the language of the foregoing issuances does not contain an explicit restraint on the right to travel. The issuances seemed to be a mere directive from to the BI officials to include the named individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a common reference to DOJ Circular No. 41, where the authority to issue the same apparently emanates, and from which the restriction on the right to travel can be traced. Section 5 thereof provides, thus:

Section 5. HDO/WLO Lifting or Cancellation– In the lifting or cancellation of the HDO/WLO issued pursuant to this Circular, the following shall apply:

(a) The HDO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the HDO as provided for in the preceding section has already expired;

2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;

3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country:

(b) The WLO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the WLO as provided for in the preceding section has already expired;

2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; and

3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.

x x x x

• That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from the court during the pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the case in which he is involved has been terminated.

In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO cannot leave the country unless he obtains an ADO. The said section reads as follows:

Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to this Circular who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO.

The ADO may be issued upon submission of the following requirements:

(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an undertaking to immediately report to the DOJ upon return; and

(b) Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.

• 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, which pertains to the issuance of HDO, can conveniently fall under Section 2, 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. 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.

• The argument fails to persuade.

• It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO against an accused in a criminal case so that he may be dealt with in accordance with law. It does not require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power.

• 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.

• It is therefore by virtue of its administrative supervision over all courts and personnel that this Court came out with OCA Circular No. 492003, 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.”

• 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 of justice. To “restrict” is to restrain or prohibit a person from doing something; to “regulate” is to govern or direct according to rule. 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 of justice 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.

• The regulation of the foreign travels of government employees was deemed necessary “to promote efficiency and economy in the government service.” The objective was clearly administrative efficiency so that government employees will continue to render public services unless they are given approval to take a leave of absence in which case they can freely exercise their right to travel. It should never be interpreted as an exception to the right to travel since the government employee during his approved leave of absence can travel wherever he wants, locally or abroad. This is no different from the leave application requirements for employees in private companies.

• The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers expressly granted to it by law and may not extend the same on its own accord or by any skewed interpretation of its authority.

[The key is legislative enactment]

• The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the solution does not lie in taking constitutional shortcuts. Remember that the Constitution “is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights are determined and all public authority administered.” 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., “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 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.

• 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.

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* This is a landmark case.