Saturday, November 19, 2011

Unfinished Legal Business

Joaquin G. Bernas, S.J.
As of this writing former President Arroyo is under police guard in St Luke’s Medical Center in Taguig City. The obvious effect of such situation is that her movements are limited. She will not be able to board a plane to Singapore; that is, assuming that the everything the prosecution has done is valid. Clearly, under our legal system, the movements of a person charged with a criminal offense may be limited by a court.
But that does not settle everything. There are questions whose answers transcend the individual welfare of former President Arroyo.
The first glaring question is whether an executive officer, no matter how highly placed, may defy the clear order of no less than the Supreme Court. This is now scheduled for deliberation by the Supreme Court. The Court will have to decide whether indeed there was defiance by the Secretary of Justice and what to do with the defiant. In the past those proved to have defied the order of a court, even of a lower court, have peen penalized for contempt. Will this happen here?
In the order of things, the principle is clear enough. In our tripartite system the functions are distributed. The legislature enacts the law, the executive implements it, the judiciary passes judgment on the validity of the law and acts of the executive.
The judiciary of course is not perfect or omniscient. It can and has made mistakes. But mistaken or not, the court must be obeyed. But the judiciary has no guns to implement its orders. Thus, if every person is free to obey only what he or she considers a correct decision or order of the court, we can have chaos. We had the beginnings of that at the airport last Tuesday.
The validity of the position taken by the executive officer depends both on the facts of the situation and on whether the executive has the power to do what he or she is doing. A public officer has only so much power as is given to him or her explicitly or implicitly by the Constitution.
In the current controversy what is involved is a person’s right to travel within or without the country. The right, of course, is not absolute. It can be limited. The Constitution says that the right to travel may not be impaired “except in the interest of national security, public safety, or public health, as may be provided by law.”
It is noteworthy that the phrase “as may be provided by law” was not in the less libertarian 1973 Constitution. This fact was noticed during the deliberations of the 1986 Constitutional Commission. The phrase was added as a limitation on the discretion of executive officers.
In the current controversy, the validity of DOJ Circular 41 on the basis of which the DOJ has acted is in issue. The DOJ Circular recognizes that earlier circulars of the Supreme Court did not recognize the power of the executive officers conducting investigation to limit the movement of people. Because of this, DOJ Circular 41 decided to empower the DOJ.
Was this an act of self-empowerment? Did this act of the DOJ satisfy the requirement of the phrase “as may be provided by law”? This is an important question which needs to be decided by the Supreme Court.
It may be argued that this question is no longer ripe for decision because the DOJ action on the basis of Circular 41 has been mooted by the warrant of arrest issued by a Pasay court. True, normally moot questions are not taken up by the Court. However, in more than one instance the Court has decided to take up a question that has become moot on the argument that the question dealt with a very important issue capable of repetition.
Definitely, this is a very important issue. As jurisprudence has said, “"Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly.” And the issue is likely to come up again and again. As dissenting opinions in the GMA TRO case already noted, there are now restrictions which are imposed even in the absence of a law. There is need for clarification on the subject.
Finally, now that a warrant of arrest against GMA has been issued, is the possibility for her to travel definitively closed? I shall not enter into the issue of whether the Pasay city court has jurisdiction over the case. I have heard it argued that, since GMA is a public officer [Don’t forget that she is a member of Congress] and the offenses for which she is accused were allegedly committed when she was President, the case should go to the Sandiganbayan. As I said, I am not prepared to navigate in that sea because the statutory law on the jurisdiction of the Sandiganbayan is perhaps the most frequently amended law.
But assume that the warrant of arrest is valid. Assume further that she is charged with a non-bailable offense. Does that close all possibility of foreign travel? We know that denial of bail is not automatic. The prosecution still has to prove in a proper hearing that the evidence of guilt is strong. That has not yet been done.
Assume next that the evidence of guilt has been shown to be strong and that therefore bail is not available as a matter of right. At the risk of sounding like the Old Testament patriarch bargaining with God about sparing the city of Sodom from fire and brimstone, may a judge still grant bail and even give to an accused permission to travel? On the basis of recent Supreme Court decisions as late as 2007, that is not outside the realm of possibility. But considering the temper of the times, that may be outside the realm of Sodomic bargaining probability!
21 November 2011

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