Supreme Court takes De Lima to task

Justice Secretary Leila de Lima

Justice Secretary Leila de Lima on Thursday came under tough questioning from the justices appointed by then President Gloria Macapagal-Arroyo to the Supreme Court, with one of the magistrates accusing her of acting “like you are more powerful than the court.”

For almost three hours, De Lima stood before the 15-member tribunal—12 of whom were appointed to their posts during Arroyo’s nine-year presidency—during oral arguments on the legality of the travel ban De Lima issued against Arroyo last month.

In one exchange, Associate Justice Teresita Leonardo-De Castro suggested that De Lima may have overreached her authority, saying: “The way you interpret the law shows that you are more powerful than the court.”

De Lima insisted that the Department of Justice (DOJ) Circular No. 41 should be deemed “constitutional as it is constitutional.”

“The infringement of an individual’s right to travel is justified under the general principle of the exercise of the (state’s) police power,” De Lima said in her eight-minute opening statement.

“This is even outside of the constitutional consideration of national security, public safety and public health,” she stressed.

Speaking firmly, De Lima argued that the secretary of justice’s authority to issue watch-list and hold-departure orders against individuals facing criminal investigation was an “inherent power” of the government as embodied in Executive Order No. 292, or the Administrative Code of 1987.

She sternly denied insinuations that she had arbitrarily placed Arroyo and her husband, Jose Miguel “Mike” Arroyo, in the immigration bureau’s watch list.

In fact, De Lima said all individuals who were recommended indicted for electoral sabotage by the joint investigating panel of the DOJ and the Commission on Elections (Comelec) had been temporarily barred from leaving the country.

De Lima said placing Arroyo et al. on the watch list was intended to ensure that they would attend the preliminary hearing on the case to be filed against them concerning the alleged rigging of the 2007 midterm elections in Mindanao.

“Did we deny her application for an allow-departure order with arbitrariness and grave abuse of discretion? No. Again, (I) decided on that with relevant considerations,” she said.

In stopping the Arroyo couple from flying out of the country last month, De Lima said she considered “balancing” the individual’s right to travel and the state’s interest in prosecuting those involved in alleged poll irregularities.

Questioning by De Castro

Under questioning by De Castro, the justice secretary stressed that EO 292 gave the DOJ police power to stop anybody from evading the judicial processes.

But De Castro pointed out that EO 292 did not explicitly give the DOJ the power to restrict a private citizen’s right to travel to protect the interest of the state.

De Castro said De Lima did not even mention a single law enacted by Congress which allowed the DOJ to “impair” the individual rights through the exercise of the state’s police power.

“If you look at all the decisions of the court involving the exercise of police power, there is always a state interest involved. That is where the balancing interest would come in,” De Castro said.

“Tell us what law grants the DOJ to impair a private citizen’s right in order to serve public interest?” she asked the justice secretary.

To which De Lima replied: “There is no law which expressly gives the DOJ [the authority] to impair one’s rights. We don’t need a law to do that because what we are invoking is the state’s inherent police power.”

‘More powerful’

De Castro, however, said that although the state had police power, there should be a law prescribing the guidelines on how such authority should be implemented by the government so as not to violate the rights of the citizens.

“In view of that authority granted to you by law, you can deny anyone a right which is guaranteed under the Constitution,” De Castro said.

De Castro questioned De Lima’s authority to issue watch-list and hold-departure orders even without giving the concerned individuals a chance to defend themselves.

“In other words, you are more powerful than the court because the court can only issue an HDO (hold-departure order) only after the filing of the information and the issuance of an arrest warrant,” De Castro told De Lima.

“Here, it is completely within your discretion to go over the complaint even without hearing the other side. The way you interpret the law shows that you are more powerful than the court,” she added.

Flight risk

Defending her position, De Lima said she was only being careful not to be blamed should Arroyo fail to return to the country and seek refuge abroad.

She reiterated that since Arroyo was charged with a nonbailable offense, the DOJ considered her a “real flight risk.”

But De Castro said there was no reason for De Lima to be worried since the high court had already issued a temporary restraining order (TRO), which momentarily invalidated De Lima’s watch-list order.

“It’s not accurate to say that you will be blamed because the court has already assumed that responsibility by issuing the TRO and yet you went on,” the magistrate said.

De Castro then directed the justice secretary to submit copies of the watch-list orders issued during the Arroyo administration which De Lima  revoked when she assumed office last year.

Impartiality questioned

Associate Justice Roberto Abad questioned De Lima’s impartiality in handling the criminal complaint against Arroyo, pointing out that the decision to bar her from traveling “set aside the presumption of innocence.”

“Did the former President enjoy the presumption of innocence? Have you been treating her as if she’s innocent?” Abad quizzed De Lima.

De Lima answered: “Definitely, your Honor. There’s a presumption of innocence here.”

“But the presumption of innocence here is not to establish the guilt or innocence of the accused. It is to establish probable cause and it doesn’t mean that he or she would have the full enjoyment of his or her rights.”

Abad said De Lima’s answer sounded as though “you’re reluctant to say that the former President is innocent.”

“But I don’t begrudge you now because you have the prosecutorial position in the government and it’s natural position for you to take and I understand that,” Abad said.

Associate Justice Arturo Brion asked De Lima of her understanding of the Bill of Rights and the legal principle of the rule of law.

Brion, who served as Arroyo’s labor secretary, said members of the executive department must “fully, properly and correctly understand the Constitution and the laws.”

“To properly execute the laws, the executive branch must, in the first place, understand the Constitution and the laws and when you say properly execute, to properly follow the rule of law,” Brion said.

“If the Department of Justice or the justice secretary does not understand the Constitution or the laws, then it is possible that the executive department will be misguided in observing the rule of law,” he said.

Associate Justices Presbitero Velasco Jr., Jose Perez and Bienvenido Reyes, who was an appointee of President Aquino, also questioned De Lima about the absence of a law empowering the DOJ to restrict an individual’s movement.

The court has not indicated when it will issue a ruling.