REPUBLIC OF THE PHILIPPINES SUPREME COURT OF THE PHILIPPINES MANILA

CBN, Petitioner, - versus ABS, as DOJ Secretary, Respondent. x-------------------------------------------x G.R. NO. _______________ TEMPORARY RESTRAINING ORDER

Human Rights for a Better Philippines Movement (HRBPM), Intervenor. x-----------------------------------------x

G.R. NO. _______________

Good Governance for a Better Philippines Movement (GGBPM), Intervenor. x-----------------------------------------x

G.R. NO. _______________

MEMORANDUM
Petitioner/Respondent/Intervenor, by undersigned counsel, respectfully states that:

I.

NATURE OF THE CASE

1.

This case is a _______.

II.

STATEMENT OF FACTS AND PROCEEDINGS

When he was president, CBN was perceived to be very corrupt, probably the most corrupt president the Philippines ever had. But two years after leaving office, no charges have been filed against him. Because of an illness, he decides to leave for abroad purportedly to seek medical treatment. But the government and many citizens think he is doing this to evade

accountability. Thus, the government through its Department of Justice Secretary, invoking Department Circular 41, bars the former president from leaving. Invoking his constitutional right to travel, the President asks the Supreme Court to nullify DC 41 and order DOJ Secretary ABS to lift the order banning him from traveling abroad.

III. ISSUES
1. Is the constitutional right to travel an absolute right? If not, does this current situation fall under the exceptional circumstances under which the right can be curtailed? 2. Assuming that the situation falls under such exceptions or additional exceptional circumstances can be justified, is a law necessary for such exceptions to apply or are the residual powers of the President sufficient to invoke the exceptions? 3. Can the residual powers of the President extend, by qualified political agency, to the DOJ Secretary? 4. Does the DOJ Secretary have the power to issue DC 41? On what basis? 5. Does the DOJ Secretary have the power to bar those charged with crimes to travel abroad? 6. Does it make a difference if such order comes before or after preliminary investigation?

IV. ARGUMENTS / DISCUSSION

The Hold Departure Order issued by the Department of Justice is valid and constitutional; therefore it is binding on CBN. The case of Marcos v. Manglapus has expressly declared that the President may, as a valid exercise of police power, restrict the right to travel of an individual. As the Executive Department has delegated the power to oversee all matters of immigration, except regarding deportation of aliens, to the Department of Justice, the Hold Departure Order issued against CBN must be upheld as being constitutional and binding.

Right to travel is not an absolute right

Although the Constitution expressly protects the right to travel, this right is not absolute. The case of Marcos v. Manglapus has held that the President may, in the exercise of his residual and police powers, intervene and restrict the exercise of certain liberties for the protection of public interest and public safety. Furthermore, the same case emphasized that it is not only the power of the President to take any action that protects the interest of the State, but it is an obligation for him:

The President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good.

Hence, lest the officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority emanates from them." xxx Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing implementing action for these plans, or from another point of view, in making any decision as President of the Republic, the President has to consider these principles, among other things, and adhere to them xxx

There is no doubt that the issues regarding the irregularities that had plagued CBNs presidency are matters of public interest since he is widely believed to have misappropriated public funds. If CBN were allowed to leave and he does not come back, it would cause severe damage to the faith of the people in ithe current administrations power to provide justice which would in turn destabilize the country and curtail the progress we have attained against graft and corruption. Although this will intrude on CBNs right to travel, there is just cause for the President to intervene in the interest of justice, to restrict his rights until a trial may ensue that will determine whether or not he is to be held accountable for the irregularities of his administration. The residual powers of the President allow him to exercise any other function or powers that are not specifically enumerated in the Constitution.1

The DOJ Secretary is empowered by the residual powers of the President and thus have the power to issue DC 41.
Although it is not strictly the President who issued the Hold Departure Order, it is a valid exercise of his residual powers to delegate certain acts and functions to different Departments within the Executive branch of the government, as stated in Sec.1 Book IV of the Administrative Code of 1987. As the President has already previously delegated the ability to take cognizance over immigration matters to the Department of Justice, that Department is permitted to take actions so long as these do not exceed the delegated powers granted to it. There have been been questions regarding the ability of the Department of Justice regarding its authority to issue Department Circular No. 41, which was the basis for the Hold Departure Order issued against CBN. The contention is that the Department of Justice acted beyond its authority and in excess of its powers in doing so, and therefore Department Circular No. 41 is unconstitutional.

Admin Code 1987. Book III. Sec. 20

Administrative Order 142, which was enacted in 1994, expressly granted the Department of Justice the ability to take action on immigration matters, including waiver of visas and admission of aliens, except deportation matters by the Office of the President. This is in line with the fact that the Bureau of Immigration acts under the authority of the Department of Justice, and has been since 1948. Consequently, this should lead to the conclusion that Department of Justice is empowered to take any actions in relation to immigration, including issuing Hold Departure Orders. The wording of Administrative Order 142 is explicit: the Department of Justice may take any action relating to immigration matters except for those concerning deportation. That there is only one qualification makes it clear that it was the intention of the law to give the Department of Justice the power to fully regulate whether or not a Filipino could leave the country, pursuant to the valid delegation of police power of the President and the State. If the Department of Justice were intended to not have the ability to regulate the right to travel of Filipinos, the wording of Administrative Order 142 would have been explicit in this prohibition; as it is, there is no restriction made regarding the power of the Department of Justice.

CBN is barred from assailing DC 41 by the doctrine of Equitable Estoppel

To a certain degree, the doctrine on equitable estoppel should guide the hand of this Court. In its simplest sense, estoppel prevents a person from disclaiming his previous act, to the prejudice of another who relied on the representations created by such previous act. The logic behind the doctrine comes from the common societal value that a person must not be allowed to profit from his own wrong.2 Rights may be waived. That ABS has rights does not preclude the incidence of waiver or estoppel. Courts, being cold, blind and impartial cannot take up the cudgels for a petitioner who has effectively cornered himself into waiver or estoppel. Petitioner ABS has put himself into such situation. As chief executive, ABS by his own administrative issuance caused and adopted DOJ Circular No.41 and, by which, thousands of persons where effectively held from travel. Such particular beliefand action proceeding from such belief, effectively holds ABS bound by none other than the very same principles he himself as chief executive laid down, now in his own search for remedy in a legal arena, not beyond his own making. Granting further, arguendo that said assailed circular is unconstitutional, it may not without proper hearing of the instant parties petitioning for and contesting its applicability and validity, be swept under the rug without a formal declaration of nullity. Reiteration of the fact once more must be shown that the principle of equitable estoppel must apply in this particularly specific case where the very author now contests his own creation by which after making it serve his ownand effectively the governments ends, now comes and disputes application to himself.

The DOJ Secretary has the power to ban from traveling abroad those charged with crimes.
EO 292, which provides for the inherent police power of the executive department, is basis for issuing the WLO, thereby prohibiting, when absolutely necessary, travel to certain persons clearly seen as flight risks.
2

Sereno dissent, G.R. 199034 and G.R. 199046

While there might be no specific law granting this power in black and white, Manglapus vs. Marcos states quite clearly that in upholding the ban on the return of Marcos, the Court distinguished the right to travel within, and out of the country. The Court stressed that the right to travel abroad may be restricted to protect national security, public order, public health, or morals. Esteemed UP Law professor Harry Roque, in disagreeing with Fr. Joaquin Bernas, states that the unimpeded right to travel applies only to those with no pending legal investigation in their home countries.

Furthermore, it must be noted that the DOJ's mandate is to prosecute and investigate criminals. It is within the DOJs power to prosecute crime and punish criminals, which includes keeping those under investigation within reach of Philippine courts. One of the powers granted to it is the power to issue subpoenas to ensure the attendance of the accused in trial. The issuance of HDO then is a mere extension of its prosecutorial power to subpoena under pain of contempt in order to make sure that the accused will stand trial. This must be so because if this power was not granted to the DOJ, then suspects who are being investigated by the DOJ but without a case being filed against them yet would be able to escape the clasps of justice simply by leaving the country and going to a nation which the Philippines has no extradition treaty.

Preliminary Investigation is not a requirement for a valid Hold Departure Order

Assuming the validity of DC 41, it would not matter regardless of whether or not the former President had undergone preliminary investigation. DC 41 sec 1 (c) states that Section 1. Hold Departure Order. - The Secretary of Justice may issue an HDO, under any of the following instances: xxx (c) The Secretary of Justice may likewise issue an HDO against any person, either motu proprio, or upon the request by the Head of a Department of the Government; the head of a constitutional body or commission; the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.

The circular thus grants the Secretary of Justice the power to issue Hold Departure Orders (HDO) not only against persons awaiting trial or under preliminary investigation but may also against persons who are a threat to national security, public safety, or public health. In Marcos vs Manglapus, the Supreme Court held that the return of former President Marcos to the Philippines would constitute a serious threat to national interest and welfare.There is no doubt that the issues regarding the irregularities that had plagued CBNs presidency are matters of public interest amounting to interests of national security, public safety or public health. It would cause severe damage to the faith of the people in its government if it were made idle to act on the injustices that had occurred during the presidency of CBN, and could easily lead to destabilization, for a government is nothing if it does not have the faith of its constituents. Furthermore, The

determination of whether or not CBNs departure constitutes a serious threat to national security, public safety, or public health is a executive prerogative which the Court should refrain from reviewing3.

CBN should not be allowed to leave the country at any cost.

For the Court in the instant case to issue a TRO before hearing both parties, is a gross violation of due process. The scenario is not hard to illustrate. The issue involves ABSs right to travel, curtailed by virtue of DOJ Circular No.41. If the Court lets ABS travel, and ABS does not return, what for was all the trouble in hearing the plaintiffs, because regardless of the outcome rulingthereby rendered moot and academic, ABS has already escaped.

We firmly believe that the Hold Departure Order issued by the Department of Justice against CBN is valid and binding. It is a matter of public interest that CBN stay within the country in order to answer any questions regarding irregularities that had occurred during his time as President, and it is the pursuit of justice that must trump over a persons individual right to travel. Furthermore, the Executive has validly delegated the right to take cognizance of matters regarding immigration to the Department of Justice as evidenced by Administrative Order 142.

V.

PRAYER

WHEREFORE, Intervenor respectfully prays that the hold departure order against CBN be sustained.

Other reliefs just and equitable under the premises are likewise prayed for.

RESPECTFULLY SUBMITTED.

16 December 2011, Quezon City for Manila.

Guidote, Jose Angel Jr. Kua, Kesterson Tiu, Sean Carlo Counsel for Petitioner/Respondent/Intervenor Roll of Attorneys No. ________
3

Taada v. Angara, 338 Phil. 546 (1997)

MCLE No. _____________________ IBP No. _______________________ PTR No. ______________________