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SC: De Lima’s arrest legal

High Tribunal declares unconstitutional DOJ circular used to stop travel of GMA in 2011

Updated

By Rey Panaligan

The Supreme Court (SC) on Tuesday affirmed its October,2017, decision that declared legal the arrest and detention of Sen. Leila de Lima on the illegal drugs trading charges filed against her by the Department of Justice (DOJ).

Senator Leila De Lima (Jansen Romero / MANILA BULLETIN FILE PHOTO)

Senator Leila De Lima
(MB File Photo / Jansen Romero | Manila Bulletin)

In a full court resolution, the SC denied De Lima’s motion for reconsideration filed in November, 2017.

A copy of the resolution was not immediately available. But sources said De Lima’s motion was denied on the same vote by the SC justices who dismissed her petition.

In her petition, De Lima wanted the SC to nullify the arrest order issued against her by the Muntinlupa City Regional Trial Court (RTC), to order her release from detention, and to stop further proceedings on the illegal drug trading charges filed against her.

De Lima was arrested and detained in February last year on the basis of an order issued by RTC Judge Juanita Guerrero. Since then, she has been detained at the Philippine National Police (PNP) Custodial Center in Camp Crame, Quezon City.

The decision dismissing De Lima’s petition was written by Justice Presbitero J. Velasco Jr. and concurred in by Justices Teresita J. Lenardo de Castro, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. del Castillo, Samuel R. Martires, Noel G. Tijam, Andres B. Reyes Jr., and Alexander G. Gesmundo.

Chief Justice Maria Lourdes P. A. Sereno (now on indefinite leave) and Senior Justice Antonio T. Carpio (now acting Chief Justice), and Justices Estela M. Perlas Bernabe, Marvic Mario Victor F. Leonen, Francis H. Jardeleza, and Alfredo Benjamin S. Caguioa dissented.

Since Sereno is on indefinite leave, she did not participate in the resolution of De Lima’s motion for reconsideration.

In its decision, the SC ruled that the RTC has exclusive jurisdiction over the drug charges against De Lima even if her position has a salary grade higher than 27 which is covered by the jurisdiction of the Sandiganbayan.

“The exclusive original jurisdiction of the RTC over violations of RA 9165 is not transferred to the Sandiganbayan whenever the accused occupies a position classified as Grade 27 or higher, regardless of whether the violation is alleged to have been committed in relation to the office being occupied. The Sandiganbayan’s jurisdiction is limited to violations of the anti-graft laws and do not extend to violations of the drugs law,” the SC said.

It ruled that Judge Guerrero did not commit grave abuse of discretion in ordering the arrest of De Lima and finding probable cause in the charges against her.

“The Court noted that respondent judge considered all the evidence presented at the preliminary investigation and not simply the report and the supporting evidence the prosecution proposed to present at the trial, which was based on the evidence presented during the preliminary investigation,” the SC stressed.

At the same time, the SC said De Lima’s petition was premature as it violated the rule on hierarchy of courts and the prohibition against forum shopping.

In her petition, De Lima pleaded the SC to issue a status quo ante order (SQAO) that would lift immediately the arrest order issued by RTC Judge Juanita Guerrero who found probable cause on her criminal liability.

She also pleaded for the issuance of a temporary restraining order (TRO) that would stop the criminal proceedings before the trial court. But her pleas were not granted by the SC which conducted oral arguments on the petition.

Her co accused, Rafael Marcos Z. Ragos – former officer-in-charge of the Bureau of Corrections (BuCor) and the National Bureau of Investigation (NBI) – has surrendered and has been committed for detention by the trial court at the NBI in Manila.

Another co-accused, De Lima’s former driver and former alleged boyfriend Ronnie Palisoc Dayan had been arrested and is detained at the Muntinlupa City jail.

In Criminal Case No. 17-165 raffled to the sala of Judge Guerrero of Branch 204, De Lima, Ragos, and Dayan were charged with “illegal drug trading in violation of the Comprehensive Dangerous Drugs Act of 2002, Section 5 (sale), in relation to Section 3 (jj) (trading), Section 25 (b), and Section 28, Republic Act No. 9165.”

De Lima has two other criminal cases pending with two other branches of the Muntinlupa RTC. These cases for illegal drug trading and criminal liability of government officials and employees under RA 9165 are pending with Judge Amelia FabrosCorpuz of Branch 205 and Judge Patria Manalastas De Leon of Branch 206.

DOJ Circular No. 41 unconstitutional

In another decision handed down on Tuesday, the SC declared unconstitutional Department of Justice (DOJ) Circular No. 41 that was used by De Lima, then Justice secretary, in stopping the foreign travel of former President and now Pampanga Rep. Gloria Macapagal Arroyo and her husband, Miguel Arroyo in 2011.

In a unanimous full court decision issued in Baguio City, the SC declared “DOJ Department Circular No. 41 UNCONSTITUTIONAL for being violative of the right to travel under Article III, Section 6 of the 1987 Constitution.”

The SC ruled that “as a consequence, all issuances released pursuant to said DOJ Department Circular are null and void.”

The decision, written by Justice Andres Reyes Jr., granted the petitions of the Arroyos and Ephraim Genuino, former chair of the Philippine Amusement and Gaming Corporation, and several other persons.

DOJ Circular No. 41 was issued on May 25, 2010 by then acting DOJ Secretary Alberto C. Agra to govern the issuance and implementation of hold-departure orders (HDOs), watch list orders (WLOs), and allow-departure orders (ADOs).

The circular repealed previous rules and regulations contained in DOJ Circular Nos. 17 and 18 that were inconsistent with Circular No. 41. It authorizes the DOJ secretary to issue WLO or HDO to persons suspected of committing criminal offenses.

Article III, Section 6 provides: “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.”

It was on the basis of DOJ Circular No. 41 that De Lima issued three WLOs against the Arroyos and HDOs against Genuino and several other persons.

The Arroyos challenged the WLOs that were issued by the DOJ in connection with the preliminary investigation of the charges of election fraud based on a report of another joint DOJ-Commission on Elections fact-finding team.

Mrs. Arroyo’s request for an ADO had been denied by De Lima. The denial prompted the Arroyos to elevate the issue before the SC for the issuance of a TRO.
In their petition, the Arroyos pleaded the SC to resolve, once and for all, the constitutionality of the WLOs issued by the DOJ.

Mrs. Arroyo said she would suffer irreparable injury if the implementation of the WLO issued against her is not nullified immediately.

“The inability of petitioner GMA to leave for abroad to alleviate, or, at least, prevent the aggravation of her hypoparathyroidism and metabolic bone disorder has given rise to the danger that the said conditions afflicting petitioner GMA may become permanent and incurable,” Mrs. Arroyo said in a petition filed by former Justice Minister and Solicitor General Estelito P. Mendoza.

The Arroyos also pointed out that the issuance of WLOs against them constitutes a violation of their freedom of movement and their right to travel.

On Nov. 15, 2011, the SC issued a temporary restraining order that allowed Mrs. Arroyo to go abroad for medical treatment.

The TRO shelved, in the meantime, the WLOs issued by the DOJ against the Arroyos and others facing preliminary investigation on alleged poll fraud in the 2004 and 2007 elections in Mindanao.

Despite the TRO, however, De Lima still stopped Mrs. Arroyo from leaving the country for medical treatment.

A complaint was then filed against De Lima before the SC for her refusal to obey the High Court’s TRO.

Earlier, the SC had stopped the DOJ from implementing the first WLO issued against Mr. Arroyo on the request of the Senate Blue Ribbon Committee in its investigation into the acquisition by the Philippine National Police (PNP) in 2009 of alleged second-hand helicopters reportedly owned by the former First Gentleman.

In stopping the implementation of the WLO, the SC – in a unanimous vote – ruled that the WLO issued against Mr. Arroyo “violates his constitutional right to travel.”

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