Adjudications of the Supreme Court and all inferior courts must be anchored on real facts and legal verities, and not on imagined fears and partisan speculations.
In the case of the right to travel of the former First Couple, the real facts are: (a) there are no pending cases filed against them in any court of law; (b) there is no hold departure order (HDO) issued against them by any competent court; and (c) former President Gloria Macapagal-Arroyo is suffering from a rare ailment necessitating her treatment abroad.
The legal verities are: (a) the liberty to travel is guaranteed under the Bill of Rights; (b) the right to travel cannot be impaired except in the interest of national security, public safety or public health as provided by law, not one of which obtains relative to the projected travel of the Arroyos; (c) the watchlist orders issued by Justice Secretary Leila De Lima are not equivalent to an HDO; (d) the Supreme Court has issued a temporary restraining order (TRO) upholding the Arroyos’ right to travel and restraining the enforcement of the DOJ Circular No. 41 and the WLOs issued by Secretary De Lima.
These factual and legal realities cannot be overlooked or supplanted by the Aquino administration’s mere imagined fears and baseless speculations that the Arroyos are flight risks and would seek political asylum abroad.
Even if the Joint DOJ-COMELEC panel would rush the filing of an information for poll sabotage against the former First Couple, such filing will not automatically result in barring the Arroyos’ departure because:
(1) The Supreme Court has still to decide on the petition challenging the validity of the formation of the said panel;
(2) The resolution finding probable cause is subject to a motion for reconsideration and subsequent appeal before the higher courts;
(3) A hold departure order (HDO) has to be issued by the proper court after due notice and hearing, which issuance is likewise subject to a motion for reconsideration and appeal; and
(4) An HDO can only be issued based on the three grounds prescribed by the Constitution justifying the impairment of the right to travel.
Secretary De Lima cannot justify her open defiance of the Supreme Court’s TRO on the pendency of the government’s motion for reconsideration because entrenched in our jurisprudence is the rule that a motion for reconsideration or an appeal cannot stay the execution of a TRO.
The supremacy of the Constitution over partisan importuning has once again been upheld by the Supreme Court.
The decision of the Supreme Court reversing the ruling of Department of Justice (DOJ) Secretary Leila de Lima to hold the departure of former President Gloria Macapagal-Arroyo and her husband, Atty. Juan Miguel Arroyo, is a signal triumph of civil liberties, particularly the right to travel and presumption of innocence.
This development also gives impetus to the expeditious enactment of House Bill No. 5111 or the “Right to Travel Act of 2011” of which I am the principal author.
The temporary restraining order (TRO) stopping the implementation of the DOJ’s watch list order (WLO) and hold departure order (HDO) against the Arroyos is immediately executory and has no particular duration.
The Supreme Court’s TRO effectively allows the Arroyo couple to travel abroad to their destinations of choice.
There is need for Malacañang to clarify and explain the grey and nebulous areas shrouding the P5.0-M financial assistance to the MILF which the President approved and ordered remitted to the MILF.
Before any accusations of treason or culpable violation of the constitution are raised, the following material questions must be fully answered first by the President’s men:
(1) If the donation or grant of P5.0 million was pursuant to an agreement during the Formal Exploratory Talks in Malaysia in 2007 to help establish the Bangsamoro Leadership and Management Institute (BLMI), then Malacañang must produce the alleged agreement to validate the binding obligations of the contracting parties.
(2) Under what parameters and conditions-precedent is the Republic of the Philippines obligated to remit financial assistance or is the donation already due and for how much?
(3) Where and when was the amount delivered to the MILF or was the remittance made during the Tokyo secret meeting between the President and MILF Chieftain Murad or in Malaysia during the resumption of the peace talks?
(4) In what legal tender was the remittance made and was it in cash or check or an equivalent negotiable instrument?
(5) If it was in check, whose account was used; what was the drawer’s bank; who was the payee of the check; did the payee encash the check or was it deposited to what bank and to whose account; is the government now in possession of the returned negotiated check and ready to produce it?
(6) Who personally remitted the financial assistance and who personally received the amount?
(7) Where is the acknowledgment receipt documenting the transaction, particularly the purpose of its remittance?
(8) Under the acknowledgment receipt, is the MILF obligated to make an accounting and within what period of time?
(9) What was the funding source of the P5.0 million? Was there an amount specifically appropriated in the GAA of 2011 for such financial assistance?
(10) What is the exact amount of the financial assistance?
(11) Was the total amount given really only P5.0-million? Isn’t this too small to have an impact while P5.0-billion is scandalously huge?
(12) Pending the conclusion of the peace accord, is the MILF not considered a rebel and secessionist group which is fomenting discord and committing atrocities in Muslim Mindanao against Philippine soldiers and civilians until now, and therefore an enemy of the State?
It would take only one Justice who voted with the majority to reconsider his vote in order to reverse the close 8-7 decision of the Supreme Court upholding the constitutionality of the controversial R.A. No. 10153 which cancelled the 08 August 2011 ARMM elections and authorized the President to appoint officers-in-charge (OICs).
House Minority Leader and Albay Representative Edcel C. Lagman, the lead petitioner assailing the constitutionality of R.A. No. 10153, tries to achieve this reversal when he filed today, 08 November 2011, an 85-page Motion for Reconsideration maintaining the nullity of the challenged statute.
The following grounds were raised by Lagman in seeking a reconsideration:
(1) The unequivocal constitutional mandate for elective and representative ARMM executive department and legislative assembly indubitably precludes the President’s appointment of officers-in-charge (OICs) for ARMM elective positions;
(2) The President’s power of appointment is limited to purely appointed officials and his power of supervision over ARMM officials does not include the appointment of elective officials which is an exercise of control not vested in the President;
(3) The Constitution does not prohibit the holdover of ARMM elective and regional officials pending the election and qualification of their successors as expressly provided in the expanded Organic Acts which fixed the terms of office of the ARMM regional governor, vice governor and members of the regional assembly.
(4) The prerequisites of supermajority of 2/3 votes in both houses of Congress and a plebiscite for the validity and effectivity of substantial amendments to or revision of the Organic Acts do not offend the Constitution and in fact they comply with the constitutional mandate guaranteeing autonomy in ARMM and foreclosing inimical and whimsical amendments which derogate autonomy.
(5) The requirements of supermajority and plebiscite have been previously approved by the ARMM electorate in plebiscites called for the purpose, and any disregard or reversal of such safeguards must have the assent or approval of the people in ARMM through another plebiscite.
(6) R.A. No. 10153 introduced substantial and fundamental amendments to the Organic Acts which suppress the electoral will and dilute autonomy so much so that the safeguards on supermajority and plebiscite must be strictly complied with, which mandatory requirements were brushed aside by the Congress in the enactment of the controversial statute; and
(7) The holding by the COMELEC of special elections in ARMM is within its legislated authority and the only legal and expeditious measure of upholding the electoral will and protecting the autonomy in ARMM which were both transgressed by R.A. No. 10153.
An “appointive” OIC is clearly not elective and can never be representative. The mandate of the appointee OIC does not come from the electorate but is bestowed by the appointing power, who in this case is the President.
The OICs are not going to serve for a short duration. They will discharge the powers and functions of the elective and representative principal officials of ARMM for almost two years or two-thirds of the terms of elective and representative officials.
The installation of OICs is a wanton aberration of autonomy since OICs are beholden to the President, accountable to the President and removable by the President, with nary the participation of the people in the constituent political units.
The subservience of appointive officials to the appointing authority is compounded by the Filipino custom of “utang na loob”.
Any frailty in ARMM’s electoral process cannot be solved by OIC appointments. This “cure”, which tramples on elections and autonomy, is even worse than the malady it is supposed to remedy.
The holdover provision serves to preserve the electoral mandate. It is better to allow these elected officials to continue serving their constituents by extending their tenures, not their terms, until their successors have been elected and qualified than resort to appointment which is clearly not representative and does not vest the electoral mandate on the appointed officials. Sections 3-5 of RA 10153 blatantly disregard the significance of the elective and representative nature of the positions of Regional Governor, Regional Vice Governor and offices of the Members of the Regional Legislative Assembly of ARMM.
The concept of supermajority is not an invention of R.A. 9054. This requirement can be found in various constitutional provisions of the 1987 Constitution.
The requirement of a supermajority of 2/3 vote of all Members to (a) expel or suppress a Member; (b) declare a state of war; (c) override a Presidential veto; (d) determine the inability of the President to discharge the powers and duties of his office; (e) Senate’s ratification of a treaty or international agreement; (f) Senate’s judgment of conviction in impeachment cases; (g) congressional call for the holding of a Constitutional Convention; and (h) ¾ votes for proposed amendment or revision of the Constitution by a Constituent Assembly, does not make the exercise of the foregoing powers impossible to achieve. Verily, the Constitution does not impose impossible requirements. By parity of reasoning, the 2/3 supermajority to amend or revise the Organic Acts does not make the Organic Acts irrepealable.
The supermajority only serves as a stringent but achievable requirement to effect changes in the Organic Act because it is meant as a self-limitation on the plenary power of Congress to ensure that the autonomy of ARMM is preserved. In effect, it makes sure that Congress does not unduly interfere in the affairs of ARMM and violate its autonomy with legislation which might not be for the best interest of ARMM. It is a faithful observance of the autonomy which the Constitution guarantees for autonomous regions.
If it is alleged that the electoral process in ARMM is problematic, then it would be better that the ARMM elections be held separately in order that full concentration of all relevant agencies can be focused on the ARMM elections to assure peaceful, orderly, honest and clean elections, rather than immerse the ARMM elections with the rough and tumble of synchronized elections.
Contrary to the malevolent statement of Presidential Spokesman Edwin Lacierda, I have no patron other than my constituents in Albay and the Constitution.
Lacierda should only allude to himself as the unelected and unelectable servant of the President.
While Lacierda speaks solely for the President, I speak on behalf of my constituents and other citizens of the Republic to uphold the supremacy of the Constitution, and in this instance, the citizens’ constitutional right to travel.
The freedom to travel should not depend on the dispensation of the President or on the whims of his subalterns.
A citizen cannot be barred from traveling abroad in the absence of any criminal charges in court and without a hold departure order issued by a competent court based on a finding that the projected travel affects or involves national security, public safety or public health, the only three constitutional limitations to the right to travel as shall be provided by law.
The Congress has not enacted the implementing statute pursuant to the mandate of the Constitution.
