Gloria Arroyo vs Leila De Lima and an individual’s right to travel
Analyzing DOJ’s decision to deny the ex president’s request to seek medical treatment abroad. This post has been published in AllVoices.com.
In denying due to “lack of merit” former President Gloria Macapagal-Arroyo’s application to travel abroad to seek medical treatment, Department of Justice Secretary (and possible 2013 senatorial candidate?) Leila de Lima raised the following points:
1. The camp of GMA has made conflicting statements as to whether she really has metabolic bone disease.
2. There is no urgent and immediate situation for GMA to seek medical treatment abroad (as concluded by Health Sec. Enrique Ona)
3. The former president has been inconsistent about the countries she intends to visit, and that some of those visits are actually for non-medical purposes
4. GMA has been unclear about how long the medical treatment she intends to seek will be completed (in an obvious sarcasm, De Lima pointed out that this “may actually take forever”).
5. The Philippines has no existing extradition treaties with the countries GMA listed in her itinerary – Spain, Germany, Austria, Italy, and Singapore.
Click here to download Secretary Leila De Lima’s resolution.
According to De Lima, allowing Arroyo to travel abroad “puts her (GMA) beyond the jurisdiction of the State in the exercise of its … mandate to investigate and prosecute criminal acts.” Earlier in her resolution, she pointed out that “given the gravity of the charges” against the former president, “the temptation to simply escape criminal liability is definitely more real than apparent.” And in an apparent attempt to defend herself from future accusations of engaging in “mere speculations,” De Lima pointed out that flight from justice is one of the remaining hard choices left for Arroyo – especially since she is facing the probability of being detained “throughout the period of her trial for non-bailable offenses.”
An individual’s right to travel is guaranteed by the 1987 Constitution. Section 3 of Article III (Bill of Rights) states:
“The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
Even if an individual’s right to travel is guaranteed by the constitution, former President Arroyo still needs the Justice Secretary’s approval to seek medical attention overseas because of DOJ Circular 41, signed by then-DOJ Sec. Alberto Agra last May 25, 2010 – or merely five weeks before Benigno Aquino III took his oath as the country’s 15th president. The said circular seeks to consolidate the rules and regulations governing the issuances and implementing of hold departure orders, watchlist orders, and allow departure orders.
In one of the circular’s “whereas” clauses, it was pointed out that Supreme court circulars related to hold departure orders are “silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices” (thanks to veteran journalist Raissa Robles for emphasizing this). According to the circular, the DOJ can put issue an HDO against someone who falls in the following circumstances:
(1) Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs).
If the case against the accused is pending trial, the application under oath of an interested party must be supported by
(a) a certified true copy of the complaint or information and
(b) a Certification from the Clerk of Court concerned that criminal case is still pending.
(2) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government.
The former president falls under the first category since her cases are still pending trial, or more accurately, pending determination of government prosecution offices. As I understand it, these refer to the Department of Justice and the Ombudsman. After determining if the complaints against Arroyo (plunder and electoral sabotage are the most prominent ones) are indeed sufficient in substance, the charges will have to be filed in the Sandiganbayan – who will then issue an arrest warrant against the former President, if necessary (as to when this will happen, no one knows). I am not a law student, but I am somehow familiar with how things go as a long time news junkie and as a former newspaper intern assigned in the justice beat.
I want to give my take on the five points raised by Secretary De Lima. In an interview with Manila Standard Today’s Christine Herrera, the former President said that “the uncertainty of not knowing her disease and if there is a cure for it was ‘killing’ her.” She continued: “All that the doctors could tell me is that I have an extremely rare bone disease,” she added.
I can sympathize with her on this. The past four years, I experienced repeated stomach pains. I have been rushed to hospitals, and on every instance, the pain didn’t last long due to medicines and painkillers, but the root cause of the pains (my gallstones) wasn’t determined until I had an ultrasound last month. If only due to this, I want to give her the benefit of the doubt.
Next, De Lima noted that Ona deemed Arroyo’s situation as not really threatening. His curriculum vitae (posted in the DOH website) shows that he is an expert in surgeries. He also served as the executive director of the National Kidney and Transplant Institute from 1998 to 2010. I am no expert in the field of medicine, which makes me curious to know, how competent is he to assess the former president’s situation? Does he know enough about hypoparathyroidism? I am just asking. And by the way, I agree with De Lima on her third and fourth points.
No matter how tough a medical operation is, doctors will still certainly be able to give a rough estimate of how long it will take before his/her patient is able to have full recovery. They can’t just say “Ms Arroyo, you will soon recover. Gagaling ka rin. Just wait for it to happen.” That’s stupid. And yes, a person who has been supposedly numbed by medications will not be able to withstand the physical rigors of visiting five countries in two (or maybe three, US included) continents, logically peaking.
And now, to De Lima’s last point (ergo, that Arroyo deliberately chose countries with no existing extradition deal with the Philippines). At the height of the international manhunt against Sen. Panfilo Lacson last year (he fled after being implicated in the murder of Salvador ‘Bubby’ Dacer and his driver Emmanuel Corbito in late 2000), the Philippine Daily Inquirer reported that Philippines has an extradition treaty with only eight countries and two states.
These are Australia, Canada, China, Hong Kong, Indonesia, Korea, Micronesia, Switzerland, Thailand, and the United States. Can’t Arroyo find an expert in the United States or in Hong Kong (where former President Estrada had his knee surgery seven years ago)? Thailand is also known for surgeries – sex transplant, that is. Though it is tempting to plot this situation as a case of individual rights over people’s rights, it appears that is not the case.
A number of Aquino allies (and staunch Arroyo critics) like Senator Franklin Drilon and Francis Escudero, have openly called on the administration to allow the former president to go overseas. Even eminent legal expert and constitutionalist Father Joaquin Bernas defended Arroyo’s right to travel, pointedly asking: “First, in what way will the travel of Gloria Macapagal-Arroyo be a threat to “national security, public safety, or public health? Second, by what statutory authority is the justice secretary preventing the exit of GMA?”
This case will surely have far-reaching repercussions, especially now that it is already pending in the Supreme Court. If the high court grants Arroyo her prayer, then it will effectively render DOJ’s Circular 41 as powerless, and maybe even unconstitutional. This also means that all bucks will stop on the high court once Arroyo indeed refuses to return to the country to face the charges against her.
If the SC upholds Leila De Lima’s resolution, then guarantees must be put in place to make sure that DOJ does not overdo their power to restrict individuals facing charges locally from travelling. Malacanang must do its best to make sure that it is not perceived as being vindictive and acting like bullies by the public. A failure to do so will give Arroyo some room to elicit sympathy – something the former leader has not accomplished so far.
UPDATE: Read the Supreme Court’s TRO in favor of Arroyo here.