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Fr. Jun Mercado OMI

Weird and dangerous legal thinking…

November 17, 2011 11:43am

It is sad that DOJ Secretary Leila de Lima is being perceived as a ‘purveyor’ of a weird and dangerous legal thinking. In the first place she is NO ordinary person but the Secretary of Justice, no less. The Secretary of Justice is the FIRST person to uphold the Rule of Law that is the very foundation of our justice system.

The whole crisis began with her assertion that DOJ Circular 41 that authorizes her to put people on the so-called ‘watch order list’ results also to a de facto ‘hold order’ list that impinges on the citizens’ constitutional right of freedom of movement guaranteed by Section 6 of the 1987 Constitution’s Bill of Rights.

TV commentator, Teddy Boy Locsin, has said it very cogently in his TV editorial that DOJ’s directive is simply a watch order list and ‘WATCH and ‘LIST” it can do as long as DOJ desires so. But to prevent people to travel or to impinge on the Constitutional Right to free movement is NOT DOJ’s competence or power. That power belongs to the court and the court can only do so on the basis of three specific provisions of the Constitutions – (a.) threat to national security; (b.) public safety; and (c.) public health; (d.) as may be provided by law.

For Teddy Boy Locsin, Rep. Gloria Arroyo or any citizen for that matter, whether appearing in the so called watch over list or not NEED NO permission from government to travel! They simply go and travel and if so detained by government should sue government for the violation of their constitutional rights.

In a similar vein, foremost Constitutionalist, Fr. Joaquin Bernas, SJ, concludes in his Inquirer piece, Puzzling Circular, that DOJ Circular Order 41 “is humorous were it not for the fact that it plays around with an important constitutional right”. The Supreme Court ‘clearly states that ‘hold departure order’ shall be issued ONLY in criminal cases within the exclusive jurisdiction of the regional Trial Courts.” He says that DOJ ‘by an act of supreme creativity authorizes itself’ to do so on the basis of a ‘whereas clause’ where the SC is silent with ‘respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices’.

The whole issue has reached the apex of ‘absurdity’ by pitting the Supreme Court and the DOJ Secretary de Lima with the issuance of TRO of the Supreme Court granting relief to the petition to travel by Rep. Gloria Arroyo and the former first gentleman.

Notwithstanding the SC’s TRO, DOJ Secretary de Lima in a ‘weird and dangerous legal logic’ has chosen to defy the SC’s TRO. The first basis, she claimed was the fact that the DOJ ‘had not received’ the TOR and the same office was ready to file a Motion for Reconsideration and until the SC acted on the MR, the hold order for the travel of Rep. Arroyo and the former first gentleman stay.

The SC spokesman in repeated interviews has, constantly, said that the Supreme Court has already spoken and granted relief to the petition of the former first couple. All government offices have to comply with the Court order or face a direct contempt of the court. All legal luminaries are in the same view that the TRO is effective upon the issuance by the SC and NOT by the receipt of DOJ, especially when the mass media organizations already had copies of the said TRO.

If DOJ Secretary is committed to the Rule of Law, especially when all media people already cite the said TRO, she should have restrained herself and complied. But if she has NO intention of complying, she can invent all reasons not do so. The real issue here is compliance or non-compliance with the rule of law and NOT some legalese thinking bordering to putting oneself above the Supreme Court.

When it comes to Constitutional Rights or Rule of Law, the matter is not resolved by popular feelings or sentiments. The way Secretary de Lima is acting and behaving, I can only surmise that she is not only being stubborn but also being ‘arrogant’ in her display of power. This behavior is, definitely, NOT in accordance with PNoy’s avowed ‘matuwid na daan’. The way she is going about the whole case, she appears as the ‘epitome of vindictiveness’.

The Supreme Court should nip in the bud, ASAP, this de Lima doctrine that is truly a weird and dangerous legal thinking, else we put our constitutional rights in ‘clear and present danger’!
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