Puzzling Over Circular 41

PUZZLING OVER DOJ CIRCULARS
Joaquin G. Bernas, S.J.
In the controversy over the right of former President Arroyo to seek medical assistance abroad, DOJ Circular 41 has played a very central role. After some effort to understand it, I would conclude that Circular 41 is humorous were it not for the fact that it plays around with an important constitutional right.
DOJ Circular 41 begins with a “Whereas clause” saying that Supreme Court circulars “clearly state that ‘Hold Departure Order shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.’” But the “Whereas clause” immediately adds that the Supreme Court circulars are “silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices.”
In the face of this silence of the Supreme Court, the DOJ, (but some time before the current Secretary), decided to make up for the Court’s silence. The DOJ did so by an act of supreme creativity authorizing itself.
The first question, therefore, is whether the DOJ has the authority to fill out what it considers lacunae or deficiencies in Supreme Court circulars. The answer should be obvious.
Needless to say, jurisprudence has repeatedly said that the Supreme has authority to restrict the movement of those under custody of the law. One is under custody of the law when one has been arrested or has submitted to the authority of court. This is far from the situation of GMA. The DOJ is still trying to figure out whether or how to charge her in court.
We must therefore ask whence the DOJ got the power to restrict travel. The Constitution says that the right may be curtailed “in the interest of national security, public safety or public health, as may be provided by law.” A DOJ Circular is not law. Is there a law authorizing the DOJ?
Circular 41 answers that question by asserting, (and I quote), that “apart from the courts, the Secretary of Justice as head of the principal law agency of the government mandated to, inter alia, investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual's right to travel.” On this basis, Circular 41 concludes that therefore the DOJ has authority to issue restrictions on travel. Circular 41 does not consider this as sacrificing an individual’s right to travel,
In fact, however, this attempt to justify DOJ authority was not invented by Circular 41. It was copied from DOJ Circular 18. DOJ Circular 18 for its part cited Section 3[1], [2] & [6], Chapter I, Title III, Book IV, E.O. 292 as source of its authority. EO 292 is the Administrative Code promulgated when Cory Aquino still had legislative power. We must therefore look at these cited provisions of the Administrative Code. What do they say?
The cited Section 3 enumerates the powers and functions of the Secretary. Paragraph 6 of the Section authorizes the DOJ to “Provide immigration and naturalization regulatory services and implement the laws governing citizenship and the admission and stay of aliens.” Thus the DOJ has jurisdiction over the Immigration Bureau. But this is hardly applicable to the situation of GMA. She is not an alien immigrant but a native citizen of Pampanga.
Paragraphs 1 and 2 also authorize the DOJ to “(1) Act as principal law agency of the government and as legal counsel and representative thereof, whenever so required; and (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system.” The two paragraphs are a general grant of prosecutorial and investigatory powers. In other words, Circulars 18 and 41 are saying that, since the Secretary of Justice has prosecutorial authority, she can, in the exercise of that authority, limit the right of people to travel. Following this logic, this means that the Secretary of Justice can dispense with the limitations of the Bill of Rights in the name of administration of justice. The current Secretary heartily agrees; but that seems to me a very dangerous kangaroo leap.
What we see therefore is that, in the handling of the GMA case, there clearly has been no attempt whatsoever to link the restriction to “national security, pubic safety, or public health” as required by the Constitution. True, a health officer was brought into the picture, but more as exorcist and not about public health. It was all about the private health of GMA.
What is obvious is that there has been a deliberate effort to hide the constitutional issue in a smorgasbord of words. And to think that the President is even willing to throw in the people’s money for importing medical specialists just to keep GMA home!
We eagerly await how the Supreme Court will deal with this conundrum. I hope that action on the matter, whether a final decision or a TRO, will come from the entire tribunal and not only from one justice. Already some sectors are nervous about the fact that the case has fallen initially into the hands of a known friend and ally of the President.
14 November 2011