Political Tidbits is the prestigious column of Belinda Olivares-Cunanan that ran for 25 continuous years in the op-ed page of the Philippine Daily Inquirer, the newspaper that she helped put up with its multi-awarded founder, the legendary Eugenia Duran-Apostol, in December 1985, just two months before the EDSA Revolution.

Sunday, December 4, 2011

De Lima grilled by SC justices in what must be regarded as one of the most unforgettable SC sessions in recent memory

This blogger has been an avid spectator at Supreme Court hearings for some time now, and surely last Thursday, Dec. 1’s session on oral arguments on DOJ Circular No. 41 has to be one of its most memorable, considering the pronouncements and actuations let loose that afternoon. For the sake of legions of lawyers and law students who weren’t around, allow me to capture some of its highlights for posterity (!).

SC Justice Roberto Abad
For more than three hours, ​DOJ Secretary Leila De Lima was intensely grilled by four SC justices on the watch-list order (WLO) that she issued against former President Macapagal Arroyo. From their line of questioning one could gauge their trend of thought and perhaps their vote on this issue. It seemed clear to them that the feisty DOJ Secretary had overstepped her bounds and that, as Justice Roberto Abad put it, the wide latitude of discretion of the DOJ Chief with regard to curtailing a citizen's right to travel gives rise to "grave abuse" and is “dangerous.”

SC Justice Jose Portugal Perez

The four justices, namely, Justices Teresita J. Leonardo-De Castro, Roberto Abad, Presbitero Velasco and Jose Portugal Perez, gave the impression that Circular No. 41, from which the WLO flowed, has no legal leg to stand on. Ironically enough, though, two previous DOJ circulars, No. 17, enacted in March 1998, the tail-end of the Ramos era, and No.18, enacted in April 2007, in the GMA era, were fused into the now infamous No. 41 on June 20, 2010, just days before GMA stepped down from office. In a previous hearing this fact was played up by the Solicitor-General, forcing GMA’s lawyer, Atty. Anacleto Diaz, to admit that “something wrong in the past remains wrong in the present and should remain so in the future.”
But it was left to De Lima to push Circular No. 41 to UNPRECEDENTED limits in defying the SC’s TRO to  prevent the departure of GMA for abroad;  now that the issue of its constitutionality has been challenged before the SC by Arroyo’s lawyers, the magistrates have this rare chance to take a good hard look at this DOJ document---and either dump it into the nearest wastebasket, or correct its infirmities.   


De Lima insisted that her WLO against GMA last Nov. 15 was fully justified in the interest of “higher considerations,” given the possibility of her flight or evasion from prosecution, and the principle of “former head of state immunity” recognized abroad. She also said she resorted to WLO as she did not want to be blamed if it turned out that GMA became an actual flight risk, to which Justice De Castro riposted that in that case it would be the SC that would be blamed and not the DOJ, as the Court issued the TRO. Justice Jose Perez was also moved at that point to ask, “Would the Republic of the Philippines be rendered so utterly helpless in case she doesn’t return?” De Lima mumbled about fugitives who had successfully fled such as Dewey Dee. Someone in the audience whispered, “and Panfilo Lacson for a year.”

De Castro, who was Presiding Justice of the Sandiganbayan before her appointment to the SC in December 2007, asked De Lima whether there is a law that expressly confers upon the DOJ Secretary the right to impair private rights, such as the right to travel. The lady justice stressed that authority delegated to the executive always has to flow from a law; but WHERE IS THAT LAW that provides the guidelines on WLO, “so you will not go beyond it?”
 Other magistrates pursued this query too, using “standard” or “parameter” instead of “law.”  De Lima admitted plainly that THERE IS NO SUCH LAW, and  that her issuance of the WLO is part of the “inherent police powers” exercised by the executive, as found in EO 292, the revised Administrative Code. She stressed that these powers operate parallel to the Bill of Rights and in fact,  she said, there could be instances when “the Bill of Rights must defer to higher rights.” (At this point I heard audible gasps of incredulity from lawyers near me).  Justice Perez snorted, “That is your interpretation.” Quite a lot of gumption, this dame, I must say.
De Lima insisted that the DOJ’s move against Arroyo has to be a “balancing” of conflicting interests: between her right to seek medical treatment which, the DOJ Chief asserted, had not been fully justified by the accused, vs. the State’s duty to begin preliminary investigation and move the electoral sabotage case against her. In fact, said De Lima, the “best course of action” is to let the wheels of justice turn and for GMA later to get treatment, citing President Aquino’s offer to bring in a foreign doctor.

SC Justice
Teresita J. Leonardo-De Castro
 But De Castro was unconvinced, insisting that police power is essentially legislative in nature  and so far the DOJ has not shown that legal delegation from Congress. She also stressed that the Sandiganbayan allowed former President Estrada to seek medical treatment in Hongkong, despite the fact that his condition was not life-threatening and he was facing a plunder trial; whereas, in the case of PGMA no case had been filed against her when the DOJ issued that WLO. Pushing her argument further, De Castro queried about the difference between WLO and the Hold Departure Order (HDO). 

De Lima stressed that other than time applicability (60 days renewable for another 60 days for WLO and five years for HDO) enforcement is virtually the same. She admitted that the DOJ Secretary could put anyone on the WLO on a mere complaint and preliminary investigation.
At this juncture De Castro shot her by now memorable line: “What you are saying is that you are more powerful than the court, because the judge can only put an accused on the HDO if a case has been filed and probable cause established; whereas the DOJ Secretary can hold a person on a mere complaint.”

In an interesting sidelight, De Castro, asked De Lima for a copy of the document referred to in the dissenting opinion of Justice Ma. Lourdes Sereno, pertaining to the list of WLOs and HDOs issued from 1991 to 2010 that were purged by the DOJ and Immigration, and which was not part of the records. De Castro wondered why this document was still referred to in the dissent---a clear allusion to the fact that Sereno, President Noynoy’s first SC appointee who has consistently voted against GMA, obviously had her own sources within the DOJ. Another sign of the intramurals within the Court.

​It was De Castro who first raised the subject of the TRO that De Lima had defied, but Justice Roberto Abad, a veteran litigation lawyer prior to his SC appointment, also directed to the latter another memorable line. He noted that in criminal proceedings, the constitutional presumption of innocence is recognized in the preliminary investigation stage, to which De Lima answered in the affirmative. He then asked pointedly if under the circumstances, she has considered or treated GMA as “presumed innocent.” De Lima was stumped and did not answer categorically, merely stating  that “there is such presumption under the Constitution.”

​Abad lectured De Lima that prosecutors are not neutral unlike a judge, because the prosecutor’s mindset is always to investigate and prosecute offenders whereas a judge hears both sides before making a ruling. De Lima said that prosecutors are neutral because in preliminary investigation the prosecutor may either dismiss the case if there is no probable cause or file an information in case of probable cause. Abad cautioned De Lima that such answer is DANGEROUS particularly in the case of GMA, because WLO was issued BEFORE probable cause was established that she's guilty of electoral sabotage.


SC Justice
Presbitero Abad
 ​Justice Presbitero Velasco, a very forceful interrogator, pointedly asked De Lima why she did not comply with the SC’s TRO . She admitted that she ordered the Bureau of Immigration to enforce the WLO despite the TRO and coordinated with DOTC to order Civil Aviation people to prohibit all planes from allowing PGMA to board. She said that she was of the opinion that the TRO was not yet effective because the DOJ intended to file a motion for reconsideration and it had not yet received an official copy of the TRO (so it’s the SC that should wait for this MR?!!).  Responding to De Lima’s statement that the WLO flows from the inherent police powers given to the DOJ by Circular 41, Justice Velasco noted that the latter does not specifically define WLO and yet its effect is the same as HDO, making this circular vague AND DANGEROUS. Amen to that.  

For comments/reactions, please email: