DoJ asks high court to call Gloria Arroyo doctors

The Department of Justice (DOJ) on Wednesday petitioned the Supreme Court to summon the attending physicians of former President and now Pampanga Rep. Gloria Macapagal-Arroyo to the continuation on Thursday of the oral arguments on her petition questioning the ban on her travel abroad.

In an urgent motion filed by the Office of the Solicitor General, Justice Secretary Leila de Lima argued that it was important for Arroyo’s doctors to inform the justices of her actual physical condition in order to help them decide on her pending motion challenging DOJ Circular No. 41. The circular, issued during Arroyo’s presidency, authorizes the justice secretary to issue watch-list and hold-departure orders on persons facing criminal investigation.

Doctors Mario Ver, Juliet Gopez-Cervantes and Roberto Mirasol, all resident physicians of St. Luke’s Medical Center, were asked to attend the 2 p.m. oral arguments.

De Lima also asked the high court to issue a subpoena directing the doctors to submit Arroyo’s latest medical abstract.

According to the DOJ petition, determining Arroyo’s state of health will put to rest “lingering questions as to whether [her] current condition places her life in danger, thereby necessitating her travel abroad.”

“In fact, during the oral arguments, a proposition was presented as to whether [putting Arroyo on the] watch list … impaired not only her right to travel but her right to life as well,” the petition read in part.

Lawyers of the Commission on Elections (Comelec) also asked that Arroyo’s doctors appear before Pasay City Regional Trial Court (RTC) Branch 112 to explain her medical state and determine the necessity of putting her under hospital arrest.

In a motion filed on Wednesday afternoon, election lawyers asked the three doctors to testify on the state of Arroyo’s health, according to clerk of court Joel Pelicano.

“Their testimony will help the court determine if there is a need for [Arroyo’s] hospital arrest,” Pelicano told the Inquirer on the phone.

Judge Jesus Mupas allowed Arroyo to continue to stay at St. Luke’s in Taguig City upon her lawyers’ request during Monday’s hearing. Government lawyers did not oppose the request.

Arroyo has been confined at the medical facility since Nov. 15, after her and her husband’s foiled attempt to leave the country.

Right to life

In an interview with reporters, De Lima noted that Arroyo lawyer Anacleto Diaz stressed in Tuesday’s oral arguments that one’s right to life was considered the “highest human right” under the 1987 Constitution and the Universal Declaration of Human Rights.

“If her lawyers invoke her right to life, then the premise is that the condition of the former President is life-threatening,” De Lima said.

She said she had denied Arroyo’s application for an allow-departure order “because there is no reason for her to immediately leave the country” on the basis of Health Secretary Enrique Ona’s statement that “her condition is not life-threatening.”

De Lima also questioned the authority of lawyer-doctor Ivy Patdu, who discussed the “intricacies of biopsy” during the oral arguments.

Apart from being a lawyer of Arroyo, Patdu has not been qualified “as an expert on the matter,” the justice secretary said.

“This is also very relevant to the issue of the hospital arrest, which will be discussed at the Pasay RTC,” De Lima said.

She said determining Arroyo’s real health condition would also help the government consider transferring the latter to a public hospital or detention facility.

“If possible, she may also be taken to a jail facility with enough amenities so that her condition would not be at risk,” De Lima said.

Solicitor General Jose Anselmo Cadiz expressed confidence that Arroyo’s doctors would inform the high court of their patient’s real physical condition. He said they were liable for contempt if they made a false testimony.

“I have full faith and confidence that the doctors will be very professional,” Cadiz said.

Flaw in compliance

At the resumption of oral arguments before the Supreme Court, government lawyers will defend the Aquino administration’s refusal to allow Arroyo’s departure last week despite the temporary restraining order (TRO) issued by the tribunal on the travel ban on her and her husband, Jose Miguel “Mike” Arroyo.

De Lima, through Cadiz, will explain why she should not be cited for contempt and disciplined for not complying with the TRO.

She is expected to invoke a flaw in the Arroyo camp’s compliance with one of the conditions set forth by the TRO, which would suspend its effectivity pending compliance.

The noncompliance was exposed by Justice Ma. Lourdes Sereno, one of the minority justices opposed to the TRO. The high court ruled on Nov. 18 that there was indeed failure to comply, but did not state this explicitly in the resolution issued the same day.

On Tuesday, the justices grilled Arroyo lawyer Diaz on whether or not a person’s rights to life and to travel may be restricted by the power of the government to enforce the criminal justice system by prohibiting a crime suspect from going abroad and escaping the country’s jurisdiction.

Diaz and Patdu also spoke about the ailments afflicting Arroyo and her purpose in seeking medical treatment abroad.

In his opening statement, Diaz said the mere possibility or suspicion of flight could not justify the DOJ’s impairment of Arroyo’s right to travel.

“Public officials should not be allowed to strike when and where they please. They should not be allowed to use unchanneled governmental power,” he said, stressing that the right of travel could only be restricted by law for reasons of national security, public safety or public health.

He said DOJ Circular No. 41 was unconstitutional and gave the justice secretary “unbridled discretion” in preventing legitimate travel.

Responding to queries from Justice Presbitero Velasco, Diaz said the term “watch-list order” (WLO) was not defined and the circular never stated standards for its issuance. He said the WLO was “far worse” than a hold-departure order because the former could be imposed arbitrarily.

In the best position

Justice Lucas Bersamin, who had voted in favor of the TRO, said DOJ Circular No. 41 recognized the justice secretary as “the one in the best position” to lay down measures to prevent a miscarriage of justice under its duty to investigate crimes, prosecute offenders and regulate immigration.

He asked Diaz if the Arroyo camp had moved for the lifting of the WLO instead of just getting an allow-departure order.

Justice Bienvenido Reyes, who was among the minority, pointed out that Republic Act No. 10071, or the Prosecution Service Act of 2010, did give the justice secretary the power to “act directly” on any matter involving probable miscarriage of justice.

The other minority justices devoted more time to questioning Diaz on the implications of a possible voiding of DOJ’s power to issue watch-list orders.

Justice Antonio Carpio said he wanted to “put parameters” on the exercise of the right to travel. He queried Diaz on instances when such a right was impaired, not by a law, but by other means and by reason of the inherent powers. Carpio said a prosecutor who had issued a subpoena to a respondent or witness could request the immigration bureau to prevent the person from traveling.

Carpio contended that the legislature could even ask immigration authorities to prevent the departure of a person who had refused to appear in a legislative inquiry.

Sereno said an immigration officer could stop a person from boarding a plane on the mere suspicion that he was a victim of human trafficking or an undocumented migrant worker.

She and Carpio also pointed out that the Supreme Court, as the administrator of the judiciary, had an existing circular similar to DOJ Circular No. 41 that prevents court employees from traveling without permission. The two justices cited the examples of court employees suspected of financial anomalies.

“Can you tell us that we are incorrect in issuing these orders?” Sereno said.

She also showed Diaz a list of more than 5,000 persons who were issued watch-list and hold-departure orders by justice secretaries under the Arroyo administration.

Diaz countered that his client now believed that the orders were a mistake and their issuance be stopped immediately.

But Sereno said: “Why are we going to make an exceptional case and not make a presumption that the Arroyo administration did not believe that? Why should we now make an exemption? We need an explanation here. Why now?”

She went on to describe Arroyo’s petition to rule DOJ Circular No. 41 as unconstitutional in the absence of the law on the right to travel as “very, very novel” and based on “elementary-type reading” of the Constitution. With a report from Miko Morelos