The real issue

The present government apparently can’t move forward and deliver on its promises up to now simply because it is giving too much importance on trivial matters and overlooking the more substantial ones. This is clearly shown once more by the way it treats the issue of whether or not ex-president Arroyo should be allowed to seek further treatment of her ailments abroad.

Involving the Department of Health (DOH) aside from the Department of Justice (DOJ) and spending too much time on this issue is clearly unnecessary. All the fuss about this non-event as to make it “earth shaking” just generates a lot of media mileage which of course is really invaluable especially to those nursing political ambitions like the DOJ Secretary who has already announced her political plans for the next election.

It must be pointed out however that the issue here is not political; or is it even medical. In coming out with its decision, the President or his DOJ Secretary should not have been so concerned about the people’s reaction to their decision to the extent of offering to pay for the expenses of the international medical experts who may be brought in to treat GMA here. These are moves clearly intended just to score more political points.

Neither is it necessary for the DOH Secretary to first determine whether GMA’s sickness is life threatening before refusing to allow her trip abroad. Her medical condition is not material to the resolution of the issue here which is purely and simply legal.

It involves the liberty of abode and of travel conferred on every person and protected by the Constitution (Section 6. Article III). This liberty consists of the non-impairment of the freedom to move from place to place within the limits prescribed by law. It is within the contemplation of the term “liberty” protected by the due process provision in Article III Section 1 of the Constitution.

Of course like all liberties, this liberty is also limited by two clauses provided in the aforesaid Section 6: “except upon lawful order of the court” and “except in the interest of national security, public safety or public health as may be provided by law”.

So the denial of Arroyo’s right to travel does not become constitutional simply because her sickness is not life threatening and that there is no “immediate and compelling necessity for her to seek treatment abroad”. Similarly, it does not mean that her constitutional right to travel would have been upheld had she been allowed to seek treatment abroad based on a medical finding that her sickness is “life threatening”. The validity of the decision does not depend on her medical condition but on compliance with the provisions of the Constitution.

Neither would her right to travel depend on whether there is a “real risk” of her not returning as promised, to face the host of criminal charges including election fraud and plunder. A valid impairment of a constitutional right does not depend on mere speculation but on established facts or proven circumstances supporting that conclusion of fact. It does not depend on the mere assessment of the DOJ Secretary who is “not convinced of Arroyo’s promise to return for the preliminary investigation of the poll fraud and plunder charges against her”.

As Section 6 Article III of the Constitution says, there must be a “lawful order of the court”. This clause explicitly means that the necessary criminal charges have already been filed in court after preliminary investigations have been conducted finding probable cause to hold a person for trial of said charges. The filing of the charges is necessary so that the court will acquire jurisdiction to issue a hold departure order based on facts showing that the accused person is a “flight risk”.

In the Arroyo case, no criminal charges have been filed in court yet. The charges have only been aired in media exposing the electoral frauds and other anomalies allegedly committed by her and parading the witnesses who all point to her as the culprit. Up to now however the much vaunted “air tight” cases are still under investigation by several task forces and committees created for the purpose. Hence no court can issue a lawful order yet.

Indeed, the sister of the murder victim Ramgen Revilla suspected as one of his murderers was able to slip out of the country precisely because of lack of a court order since her case was still under preliminary investigation and no charge has yet been filed in court against her. The stage of her case is like that of Arroyo, yet the latter was not allowed to travel because she was already placed under the DOJ’s watch list order (WLO). The contrasting treatment of these two cases shows not only the inconsistency in the DOJ action or inaction but also the slowness of its prosecutors in conducting the preliminary investigation.

The WLO was issued by the DOJ purportedly pursuant to its Administrative Circular 41 implementing the second clause of Constitution limiting a person’s right to travel “in the interest of national security, public safety or public health”. Concededly, a court order is not necessary in this connection. It is still questionable however whether the DOJ can issue WLO based only on an administrative circular because the Constitution itself uses the phrase “as may be provided by law”. The word “law” definitely means an enactment of Congress and not an administrative circular which should prescribe the meaning of “national security, public safety and public health” So far no such law has yet been enacted. Besides, assuming that the Executive can determine these three limitations to the right to travel, such determination is also subject to judicial review (Villavicencio vs. Lukban). So a court order is still necessary.

This is not in defense of Arroyo. She should really be held accountable for her past misdeeds. But the rule of law must always be observed.

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