Efraim Genuino, the embattled former chair of Philippine Amusement and Gaming Corp. (Pagcor), and his children, Erwin and Sheryl Genuino-See, have accused the Department of Justice (DoJ) of “discrimination and persecution” as they seek the lifting of the hold departure order (HDO) issued against them nearly two weeks ago.
“It’s in violation of the Constitution and there is no law that authorizes the DoJ to issue the HDO and to include any person in the watch list,” Ramon Esguerra, one of the lawyers of the Genuinos, told reporters in an interview.
Esguerra said that the Genuinos, sooner or later, would have to travel abroad because of their businesses.
The lawyer said his clients would never go into hiding and would face the accusations against them “squarely.”
In a letter to Chief State Counsel Ricardo Paras, Esguerra and lawyer Benjamin Santos said the HDO violated the Genuinos’ right to travel and the equal protection clause of the 1987 Constitution.
“We submit that the issuance of the subject HDO, repugnant as it is to the Constitution, is without any justification at this time, and there is no reason to restrict our clients’ liberty to travel,” they said.
The lawyers said their clients “have no intention to frustrate the ends of justice in any way. The issuance of the subject HDO only causes great prejudice to them. This should not be allowed.”
Esguerra and Santos said that a preliminary investigation of the criminal complaint filed against the Genuinos by the current Pagcor officials had not even begun.
Plunder, malversation
Genuino and his children have been given by state prosecutors until Aug. 9 to submit their counteraffidavits on the charges of plunder and malversation filed against them by Pagcor, led by its chair Cristino Naguiat Jr.
Naguiat claimed that under Genuino, some P186 million worth of Pagcor funds were misused from 2003 to 2010.
Among these was the alleged funding of the Bida party-list group in the 2010 elections wherein See was its first nominee.
The lawyers also took note that the HDOs were issued only against the Genuinos and seven of their corespondents when there were 27 of them named in the complaint.
“This is pure discrimination and a blatant defilement of our clients’ basic constitutional right to equal protection,” they said.
Same day
The lawyers added that a check with Paras’ office showed that the chief state counsel issued the HDO on the same day that Naguiat formally sought the same against the Genuinos.
“Your haste, albeit uncharacteristic and undue, is apparent,” they said.
In arguing for the lifting of the HDO, the Genuinos’ lawyers cited a Supreme Court circular that provided that HDOs could be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts (RTCs) and decisions that defined the scopes and limits of the issuance of HDOs.
High court circular
The lawyers assailed DOJ Circular No. 041-10, which was the basis of Paras’ issuance of the HDOs against the Genuinos.
The circular was issued on June 7, 2010, noting that while the Supreme Court had said that HDOs could only be issued by RTCs, the high tribunal was silent on cases being prosecuted in lower courts and government prosecution offices.
The circular gave the secretary of justice, among others, the power to place on the HDO persons who are being investigated by government prosecution offices and courts lower than the regional trial court.
Tool for abuse
Esguerra and Santos said that the circular “can be a tool for abuse” as an HDO can be issued with the mere filing of a criminal complaint without waiting for the finding of probable cause or even without the threats against national security, and public health and safety, as noted in a Supreme Court decision as the only basis for executive or administrative authorities to prevent someone from traveling abroad.
The circular violates a “citizen’s constitutional right to travel and violates the rights of a person facing criminal prosecution to due process and to be presumed innocent,” the lawyers said.
Moreover, they lamented that the HDO against the Genuinos “highlights” the alleged “intent and inclination” of Paras’ office “to not only prosecute but persecute our clients.”
The lawyers said they learned that through a department order, Justice Secretary Leila de Lima had assigned two state prosecutors to Pagcor to help it find evidence of probable misuse of its funds.
Case build-up
In an interview, De Lima defended the department order she issued as one of the policies that was being “institutionalized” within the DOJ in connection with case build-ups.
“That’s one of the things I introduced in the department. These are prosecutors different from the prosecutors who will be handling the PI (preliminary investigation) of a particular case. What is questionable is if the same prosecutor or prosecutors who help in the case build-up are also the prosecutors who will be conducting the PI. Then there will be an issue of objectivity and impartiality,” she said.
De Lima also said that it was the Genuinos’ “right and prerogative” if they would want to question the HDO “all the way to the Supreme Court.”
She said the arguments raised by the Genuinos’ lawyers would be “duly considered” by Paras’ office.