G.R. No. 197930. April 17, 2018.*

 
EFRAIM C. GENUINO, ERWIN F. GENUINO and
SHERYL G. SEE, petitioners,  vs.  HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice, and
RICARDO V. PARAS III, in his capacity as Chief State
Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU
OF IMMIGRATION, respondents.
 
G.R. No. 199034. April 17, 2018.*
 
MA. GLORIA MACAPAGAL-ARROYO,
petitioner,  vs.  HON. LEILA M. DE LIMA, as Secretary of
the Department of Justice and RICARDO A. DAVID, JR.,
as Commissioner of the Bureau of Immigration,
respondents.

_______________

*  EN BANC.

 
 
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Genuino vs. De Lima

G.R. No. 199046. April 17, 2018.*

 
JOSE MIGUEL T. ARROYO, petitioner, vs. HON. LEILA
M. DE LIMA, as Secretary of the Department of Justice
and RICARDO V. PARAS III, as Chief State Counsel,
Department of Justice and RICARDO A. DAVID, JR., in
his capacity as Commissioner, Bureau of Immigration,
respondents.

Judicial Review; Limitations on the Power of Judicial Review.

—Like almost all powers conferred by the Constitution, the power
of judicial review is subject to limitations, to wit: (1) there must be
an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing
to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
Same; Actual Case or Controversy; An actual case or
controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution.—To be clear, “an actual
case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and
concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of
specific relief.” When the issues have been resolved or when the
circumstances from which the legal controversy arose no longer
exist, the case is rendered moot and academic. “A moot and
academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value.” The Court believes
that the supervening events following the filing of the instant
petitions, while may have seemed to moot the instant petitions,
will not preclude it from ruling on the constitutional issues raised
by the petitioners. The Court, after assessing the necessity and
the invaluable gain that the members of the bar, as well as the
public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest
the lingering constitutional questions that abound the assailed
issuance. This is not a

 
  

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novel occurrence as the Court, in a number of occasions, took

up cases up to its conclusion notwithstanding claim of mootness.
Constitutional Law; Bill of Rights; The more precious gifts of
democracy that the Constitution affords us are enumerated in the
Bill of Rights contained in Article III.—We begin by emphasizing
that the Constitution is the fundamental, paramount and
supreme law of the nation; it is deemed written in every statute
and contract. If a law or an administrative rule violates any norm
of the Constitution, that issuance is null and void and has no
effect. The Constitution is a testament to the living democracy in
this jurisdiction. It contains the compendium of the guaranteed
rights of individuals, as well as the powers granted to and
restrictions imposed on government officials and
instrumentalities. It is that lone unifying code, an inviolable
authority that demands utmost respect and obedience. The more
precious gifts of democracy that the Constitution affords us are
enumerated in the Bill of Rights contained in Article III. In
particular, Section 1 thereof provides: Section 1. No person shall
be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license
for an individual to do whatever he pleases, for each is given an
equal right to enjoy his liberties, with no one superior over
another. Hence, the enjoyment of one’s liberties must not infringe
on anyone else’s equal entitlement.
Same; Right to Liberty; Even liberty itself, the greatest of all
rights, is not unrestricted license to act according to one’s will.—
Surely, the Bill of Rights operates as a protective cloak under
which the individual may assert his liberties. Nonetheless, “the
Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. Even liberty itself, the greatest of
all rights, is not unrestricted license to act according to one’s will.
It is subject to the far more overriding demands and requirements
of the greater number.”
Political Law; Police Power; The state’s exercise of police
power is also well-recognized in this jurisdiction as an acceptable
limitation to the exercise of individual rights.—The state’s
exercise of police power is also well-recognized in this jurisdiction
as an acceptable limitation to the exercise of individual rights. In
Philippine Associa-

 
 
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Genuino vs. De Lima

tion of Service Exporters, Inc. v. Drilon, 163 SCRA 386 (1988),

it was defined as the inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society. It is rooted in the conception that
men in organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures
calculated to ensure communal peace, safety, good order, and
welfare.
Constitutional Law; Right to Liberty; Right to Travel; The
right to travel is part of the “liberty” of which a citizen cannot be
deprived without due process of law.—The right to travel is part of
the “liberty” of which a citizen cannot be deprived without due
process of law. It is part and parcel of the guarantee of freedom of
movement that the Constitution affords its citizen. Pertinently,
Section 6, Article III of the Constitution provides: Section 6. 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
maybe provided by law.
 Same; Same; Same; Section 6 itself provides that the right to
travel may be impaired only in the interest of national security,
public safety or public health, as may be provided by law.—
Liberty under the foregoing clause includes the right to choose
one’s residence, to leave it whenever he pleases and to travel
wherever he wills. Thus, in Zacarias Villavicencio v. Justo
Lucban, 39 Phil. 778 (1919), the Court held illegal the action of
the Mayor of Manila in expelling women who were known
prostitutes and sending them to Davao in order to eradicate vices
and immoral activities proliferated by the said subjects. It was
held that regardless of the mayor’s laudable intentions, no person
may compel another to change his residence without being
expressly authorized by law or regulation. It is apparent,
however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the
right to travel. Section 6 itself provides that the right to travel
may be impaired only in the interest of national security, public
safety or public health, as may be provided by law.

 
 
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Same; Same; Same; There are only three (3) considerations

that may permit a restriction on the right to travel: national
security, public safety or public health.—There are only three
considerations that may permit a restriction on the right to travel:
national security, public safety or public health. As a further
requirement, there must be an explicit provision of statutory law
or the Rules of Court providing for the impairment. The
requirement for a legislative enactment was purposely added to
prevent inordinate restraints on the person’s right to travel by
administrative officials who may be tempted to wield authority
under the guise of national security, public safety or public
health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that
provisions of law limiting the enjoyment of liberty should be
construed against the government and in favor of the individual.
Same; Same; Same; Liberty of Abode; The liberty of abode
may only be impaired by a lawful order of the court and, on the
one hand, the right to travel may only be impaired by a law that
concerns national security, public safety or public health.—The
liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be
impaired by a law that concerns national security, public safety or
public health. Therefore, when the exigencies of times call for a
limitation on the right to travel, the Congress must respond to the
need by explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a
constitutionally protected right and not simply a statutory right,
that it can only be curtailed by a legislative enactment.
Same; Same; Same; Same; In any case, when there is a
dilemma between an individual claiming the exercise of a
constitutional right vis-à-vis the state’s assertion of authority to
restrict the same, any doubt must, at all times, be resolved in favor
of the free exercise of the right, absent any explicit provision of law
to the contrary.—In any case, when there is a dilemma between
an individual claiming the exercise of a constitutional right vis-à-
vis the state’s assertion of authority to restrict the same, any
doubt must, at all times, be resolved in favor of the free exercise of
the right, absent any explicit provision of law to the contrary.

 
 

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Same; Same; Same; There is no law particularly providing for

the authority of the secretary of justice to curtail the exercise of the
right travel, in the interest of national security, public safety or
public health.—The Court is in quandary of identifying the
authority from which the DOJ believed its power to restrain the
right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice
to curtail the exercise of the right to travel, in the interest of
national security, public safety or public health. As it is, the only
ground of the former DOJ Secretary in restraining the petitioners,
at that time, was the pendency of the preliminary investigation of
the Joint DOJ-COMELEC Preliminary Investigation Committee
on the complaint for electoral sabotage against them. To be clear,
DOJ Circular No. 41 is not a law. It is not a legislative enactment
which underwent the scrutiny and concurrence of lawmakers, and
submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the
provisions of an enabling law which the former DOJ Secretary
believed to be Executive Order (E.O.) No. 292, otherwise known as
the “Administrative Code of 1987.” She opined that DOJ Circular
No. 41 was validly issued pursuant to the agency’s rulemaking
powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1
of E.O. No. 292 and Section 50, Chapter 11, Book IV of the
mentioned Code.
Administrative Agencies; Rulemaking Power; Administrative
agencies possess quasi-legislative or rulemaking powers, among
others.—Indeed, administrative agencies possess quasi-legislative
or rulemaking powers, among others. It is the “power to make
rules and regulations which results in delegated legislation that is
within the confines of the granting statute and the doctrine of
non-delegability and separability of powers.” In the exercise of
this power, the rules and regulations that administrative agencies
promulgate should be within the scope of the statutory authority
granted by the legislature to the administrative agency. It is
required that the regulation be germane to the objects and
purposes of the law, and be not in contradiction to, but in
conformity with, the standards prescribed by law. They must
conform to and be consistent with the provisions of the enabling
statute in order for such rule or regulation to be valid. It is,
however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the
delegation of legislative power is itself valid. It is valid only if
there is a law that (a) is complete in itself, setting forth

 
 
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Genuino vs. De Lima

therein the policy to be executed, carried out, or implemented

by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable to which the delegate
must conform in the performance of his functions.
Same; Declaration of Policy; A declaration of policy contained
in a statute is, like a preamble, not a part of the substantive
portions of the act.—The declaration of policy is most useful in
statutory construction as an aid in the interpretation of the
meaning of the substantive provisions of the law. It is preliminary
to the substantive portions of the law and certainly not the part in
which the more significant and particular mandates are
contained. The suggestion of the former DOJ Secretary that the
basis of the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic but also
the basic style of drafting a decent piece of legislation because it
supposes that the authors of the law included the operative and
substantive provisions in the declaration of policy when its
objective is merely to introduce and highlight the purpose of the
law. Succinctly, “a declaration of policy contained in a statute is,
like a preamble, not a part of the substantive portions of the act.
Such provisions are available for clarification of ambiguous
substantive portions of the act, but may not be used to create
ambiguity in other substantive provisions.” In the same way,
Section 3 does not authorize the DOJ to issue WLOs and HDOs to
restrict the constitutional right to travel. There is even no
mention of the exigencies stated in the Constitution that will
justify the impairment. The provision simply grants the DOJ the
power to investigate the commission of crimes and prosecute
offenders, which are basically the functions of the agency.
However, it does not carry with it the power to indiscriminately
devise all means it deems proper in performing its functions
without regard to constitutionally protected rights. The
curtailment of a fundamental right, which is what DOJ Circular
No. 41 does, cannot be read into the mentioned provision of the
law. Any impairment or restriction in the exercise of a
constitutional right must be clear, categorical and unambiguous.
Administrative Orders; Without a clear mandate of an
existing law, an administrative issuance is ultra vires.—The
questioned circular does not come under the inherent power of the
executive department to adopt rules and regulations as clearly the
issuance of HDO and WLO is not the DOJ’s business. As such, it
is a compulsory

 
 
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Genuino vs. De Lima

requirement that there be an existing law, complete and

sufficient in itself, conferring the expressed authority to the
concerned agency to promulgate rules. On its own, the DOJ
cannot make rules, its authority being confined to execution of
laws. This is the import of the terms “when expressly provided by
law” or “as may be provided by law” stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is
confined to filling in the gaps and the necessary details in
carrying into effect the law as enacted. Without a clear mandate
of an existing law, an administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law
from which DOJ Circular No. 41 must derive its life.
Unfortunately, all of the supposed statutory authorities relied
upon by the DOJ did not pass the completeness test and sufficient
standard test. The DOJ miserably failed to establish the existence
of the enabling law that will justify the issuance of the questioned
circular.
Same; The Department of Justice (DOJ) must have the best
intentions in promulgating DOJ Circular No. 41, but the end will
not justify the means.—That DOJ Circular No. 41 was intended to
aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not
obliterate the lack of authority of the DOJ to issue the said
issuance. Surely, the DOJ must have the best intentions in
promulgating DOJ Circular No. 41, but the end will not justify the
means. To sacrifice individual liberties because of a perceived
good is disastrous to democracy. In Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform, 175 SCRA 343 (1989), the Court emphasized: One of the
basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the
means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject
only to a few notable exceptions, will excuse the bypassing of an
individual’s rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the Constitution
is a majority of one even as against the rest of the nation who
would deny him that right.

 
 

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Constitutional Law; Hierarchy of Rights; The Department of

Justice (DOJ) must constantly be reminded that in the hierarchy
of rights, the Bill of Rights takes precedence over the right of the
State to prosecute, and when weighed against each other, the
scales of justice tilt towards the former.—Indeed, the DOJ has the
power to investigate the commission of crimes and prosecute
offenders. Its zealousness in pursuing its mandate is laudable but
more admirable when tempered by fairness and justice. It must
constantly be reminded that in the hierarchy of rights, the Bill of
Rights takes precedence over the right of the State to prosecute,
and when weighed against each other, the scales of justice tilt
towards the former. Thus, in Allado v. Diokno, 232 SCRA 192
(1994), the Court declared, viz.: The sovereign power has the
inherent right to protect itself and its people from vicious acts
which endanger the proper administration of justice; hence, the
State has every right to prosecute and punish violators of the law.
This is essential for its self-preservation, nay, its very existence.
But this does not confer a license for pointless assaults on its
citizens. The right of the State to prosecute is not a carte blanche
for government agents to defy and disregard the rights of its
citizens under the Constitution.
Remedial Law; Criminal Procedure; Preliminary
Investigation; In the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to
discharge his investigatory duties. If the accused chooses to waive
his presence or fails to submit countervailing evidence, that is his
own lookout.—It bears emphasizing that the conduct of a
preliminary investigation is an implement of due process which
essentially benefits the accused as it accords an opportunity for
the presentation of his side with regard to the accusation. The
accused may, however, opt to waive his presence in the
preliminary investigation. In any case, whether the accused
responds to a subpoena, the investigating prosecutor shall resolve
the complaint within 10 days after the filing of the same. The
point is that in the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to
discharge his investigatory duties. If the accused chooses to waive
his presence or fails to submit countervailing evidence, that is his
own lookout. Ultimately, he shall be bound by the determination
of the prosecutor on the presence of probable cause and he cannot
claim denial of due process.

 
 
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 Same; Same; Same; Right to Liberty; Right to Travel; The
Department of Justice (DOJ) cannot justify the restraint in the
liberty of movement imposed by DOJ Circular No. 41 on the
ground that it is necessary to ensure presence and attendance in
the preliminary investigation of the complaints. There is also no
authority of law granting it the power to compel the attendance of
the subjects of a preliminary investigation, pursuant to its
investigatory powers under Executive Order (EO) No. 292.—The
DOJ therefore cannot justify the restraint in the liberty of
movement imposed by DOJ Circular No. 41 on the ground that it
is necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law
granting it the power to compel the attendance of the subjects of a
preliminary investigation, pursuant to its investigatory powers
under E.O. No. 292. Its investigatory power is simply inquisitorial
and, unfortunately, not broad enough to embrace the imposition of
restraint on the liberty of movement. That there is a risk of flight
does not authorize the DOJ to take the situation upon itself and
draft an administrative issuance to keep the individual within the
Philippine jurisdiction so that he may not be able to evade
criminal prosecution and consequent liability. It is an arrogation
of power it does not have; it is a usurpation of function that
properly belongs to the legislature. Without a law to justify its
action, the issuance of DOJ Circular No. 41 is an unauthorized act
of the DOJ of empowering itself under the pretext of dire exigency
or urgent necessity. This action runs afoul the separation of
powers between the three branches of the government and cannot
be upheld. Even the Supreme Court, in the exercise of its power to
promulgate rules is limited in that the same shall not diminish,
increase, or modify substantive rights. This should have cautioned
the DOJ, which is only one of the many agencies of the executive
branch, to be more scrutinizing in its actions especially when they
affect substantive rights, like the right to travel.
Political Law; Police Power; It bears noting that police power
may only be validly exercised if (a) the interests of the public
generally, as distinguished from those of a particular class, require
the interference of the State, and (b) the means employed are
reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.—The
DOJ’s reliance on the police power of the state cannot also be
countenanced. Police power pertains to the “state authority to
enact legislation that may

 
 

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interfere with personal liberty or property in order to promote

the general welfare.” “It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society.” Verily, the
exercise of this power is primarily lodged with the legislature but
may be wielded by the President and administrative boards, as
well as the lawmaking bodies on all municipal levels, including
the barangay, by virtue of a valid delegation of power. It bears
noting, however, that police power may only be validly exercised if
(a) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State,
and (b) the means employed are reasonably necessary to the
attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. On its own, the DOJ cannot
wield police power since the authority pertains to Congress. Even
if it claims to be exercising the same as the alter ego of the
President, it must first establish the presence of a definite
legislative enactment evidencing the delegation of power from its
principal. This, the DOJ failed to do. There is likewise no showing
that the curtailment of the right to travel imposed by DOJ
Circular No. 41 was reasonably necessary in order for it to
perform its investigatory duties.
Same; Same; In any case, the exercise of police power, to be
valid, must be reasonable and not repugnant to the Constitution.—
In any case, the exercise of police power, to be valid, must be
reasonable and not repugnant to the Constitution. It must never
be utilized to espouse actions that violate the Constitution. Any
act, however noble its intentions, is void if it violates the
Constitution. In the clear language of the Constitution, it is only
in the interest of national security, public safety and public health
that the right to travel may be impaired. None one of the
mentioned circumstances was invoked by the DOJ as its premise
for the promulgation of DOJ Circular No. 41.
Hold Departure Orders; Watch List Orders; Due Process; The
apparent vagueness of the circular as to the distinction between a
Hold Departure Order (HDO) and Watch List Order (WLO) is
violative of the due process clause.—Apart from lack of legal basis,
DOJ Circular No. 41 also suffers from other serious infirmities
that render it invalid. The apparent vagueness of the circular as
to the distinction between an HDO and WLO is violative of the
due process clause. An act that is vague “violates due process for
failure to accord

 
 
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Genuino vs. De Lima

persons, especially the parties targeted by it, fair notice of the

conduct to avoid and leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.” Here, the distinction is significant as it will
inform the respondents of the grounds, effects and the measures
they may take to contest the issuance against them. Verily, there
must be a standard by which an HDO or WLO may be issued,
particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal
information against them which could have warranted the
restraint.
Same; The issuance of Hold Departure Orders (HDOs) shall
pertain only to criminal cases within the exclusive jurisdiction of
the Regional Trial Court (RTC), to the exclusion of criminal cases
falling within the jurisdiction of the Municipal Trial Court (MTC)
and all other cases.—The silence of the circular on the matters
which are being addressed by DOJ Circular No. 41 is not without
good reasons. Circular No. 39-97 was specifically issued to avoid
indiscriminate issuance of HDOs resulting to the inconvenience of
the parties affected as the same could amount to an infringement
on the right and liberty of an individual to travel. Contrary to the
understanding of the DOJ, the Court intentionally held that the
issuance of HDOs shall pertain only to criminal cases within the
exclusive jurisdiction of the RTC, to the exclusion of criminal
cases falling within the jurisdiction of the MTC and all other
cases. The intention was made clear with the use of the term
“only.” The reason lies in seeking equilibrium between the state’s
interest over the prosecution of the case considering the gravity of
the offense involved and the individual’s exercise of his right to
travel. Thus, the circular permits the intrusion on the right to
travel only when the criminal case filed against the individual is
within the exclusive jurisdiction of the RTC, or those that
pertains to more serious crimes or offenses that are punishable
with imprisonment of more than six years. The exclusion of
criminal cases within the jurisdiction of the MTC is justified by
the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much
less is the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation since at
that stage no information has yet been filed in court against them.
It is for these reasons that Circular No. 39-97 mandated that
HDO may only be

 
 

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issued in criminal cases filed with the RTC and withheld the
same power from the MTC.
Same; The power to issue Hold Departure Order (HDO) is
inherent to the courts.—It bears reiterating that the power to
issue HDO is inherent to the courts. The courts may issue an
HDO against an accused in a criminal case so that he may be
dealt with in accordance with law. It does not require legislative
conferment or constitutional recognition; it coexists with the grant
of judicial power. In Defensor-Santiago v. Vasquez, 217 SCRA 633
(1993), the Court declared, thus: Courts possess certain inherent
powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them.
These inherent powers are such powers as are necessary for the
ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the court, as well as to the due
administration of justice; or are directly appropriate, convenient
and suitable to the execution of their granted powers; and include
the power to maintain the court’s jurisdiction and render it
effective in behalf of the litigants. The inherent powers of the
courts are essential in upholding its integrity and largely
beneficial in keeping the people’s faith in the institution by
ensuring that it has the power and the means to enforce its
jurisdiction.
Application for Leave; The filing of application for leave is
required for purposes of orderly personnel administration.—The
same ratiocination can be said of the regulations of the Civil
Service Commission with respect to the requirement for leave
application of employees in the government service seeking to
travel abroad. The Omnibus Rules Implementing Book V of E.O.
No. 292 states the leave privileges and availment guidelines for
all government employees, except those who are covered by
special laws. The filing of application for leave is required for
purposes of orderly personnel administration. In pursuing foreign
travel plans, a government employee must secure an approved
leave of absence from the head of his agency before leaving for
abroad. To be particular, E.O. No. 6 dated March 12, 1986, as
amended by Memorandum Order (MO) No. 26 dated July 31,
1986, provided the procedure in the disposition of requests of
government officials and employees for authority to travel abroad.
The provisions of this issuance were later clarified in the
Memorandum Circular No. 18 issued on October 27, 1992.

 
 
338
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Genuino vs. De Lima

Thereafter, on September 1, 2005, E.O. No. 459 was issued,

streamlining the procedure in the disposition of requests of
government officials and employees for authority to travel abroad.
Hold Departure Orders; Right to Travel; Department of
Justice; Jurisdiction; Contrary to its claim, the Department of
Justice (DOJ) does not have inherent power to issue Hold
Departure Order (HDO), unlike the courts, or to restrict the right
to travel in any way.—The point is that the DOJ may not justify
its imposition of restriction on the right to travel of the subjects of
DOJ Circular No. 41 by resorting to an analogy. Contrary to its
claim, it does not have inherent power to issue HDO, unlike the
courts, or to restrict the right to travel in any way. It is limited to
the powers expressly granted to it by law and may not extend the
same on its own accord or by any skewed interpretation of its
authority.
Same; It is in the interest of fairness that there be a complete
and exhaustive discussion on the matter since it entails the
imposition of penalty that bears upon the fitness of the respondent
as a member of the legal profession.—It is well to remember that
on November 18, 2011, a Resolution was issued requiring De
Lima to show cause why she should not be disciplinarily dealt or
be held in contempt for failure to comply with the TRO issued by
this Court. In view, however, of the complexity of the facts and
corresponding full discussion that it rightfully deserves, the Court
finds it more fitting to address the same in a separate proceeding.
It is in the interest of fairness that there be a complete and
exhaustive discussion on the matter since it entails the imposition
of penalty that bears upon the fitness of the respondent as a
member of the legal profession. The Court, therefore, finds it
proper to deliberate and resolve the charge of contempt against
De Lima in a separate proceeding that could accommodate a full
opportunity for her to present her case and provide a better
occasion for the Court to deliberate on her alleged disobedience to
a lawful order.

CARPIO,   Acting CJ., Concurring Opinion:

 
Remedial Law; Civil Procedure; Moot and Academic;
View that a case becomes moot when it ceases to present a
justiciable controversy such that its adjudication would not
yield any practical value or use.—A case becomes moot
when it ceases to present a justiciable controversy
 
 

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such that its adjudication would not yield any practical
value or use. Where the petition is one for certiorari
seeking the nullification of an administrative issuance for
having been issued with grave abuse of discretion,
obtaining the other reliefs prayed for in the course of the
proceedings will not render the entire petition moot
altogether.
Same; Special Civil Actions; Certiorari; View that when
an accused assails via certiorari the judgment of conviction
rendered by the trial court, his subsequent release on parole
will not render the petition academic.—When an accused
assails via certiorari the judgment of conviction rendered
by the trial court, his subsequent release on parole will not
render the petition academic. Precisely, if the sentence
imposed upon him is void for lack of jurisdiction, the
accused should not have been paroled, but unconditionally
released since his detention was illegal. In the same vein,
even when the certification election sought to be enjoined
went on as scheduled, a petition for certiorari does not
become moot considering that the petition raises
jurisdictional errors that strike at the very heart of the
validity of the certification election itself. Indeed, an
allegation of a jurisdictional error is a justiciable
controversy that would prevent the mootness of a special
civil action for certiorari.
 Constitutional Law; Right to Travel; View that the right
to travel is not absolute. However, while it can be restricted,
the only permissible grounds for restriction are national
security, public safety, and public health, which grounds
must at least be prescribed by an act of Congress.—The
right to travel is not absolute. However, while it can be
restricted, the only permissible grounds for restriction are
national security, public safety, and public health, which
grounds must at least be prescribed by an act of Congress.
In only two instances can the right to travel be validly
impaired even without a statutory authorization. The first
is when a court forbids the accused from leaving Philippine
jurisdiction in connection with a pending criminal case.
The second is when Congress, pursuant to its power of
legislative inquiry, issues a subpoena or arrest order
against a person. The necessity for a legislative enactment
expressly providing for a valid impairment of the right to
travel finds basis in no less than the fundamental law of
the land. Under Section 1, Article VI of the Constitution,
the legislative power is vested in Congress. Hence, only
Congress, and no other entity or office, may wield
 
 

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the power to make, amend, or repeal laws. Accordingly,
whenever confronted with provisions interspersed with
phrases like “in accordance with law” or “as may be
provided by law,” the Court turns to acts of Congress for a
holistic constitutional construction. To illustrate, in
interpreting the clause “subject to such limitations as may
be provided by law” in relation to the right to information,
the Court held in Gonzales v. Narvasa, 337 SCRA 733
(2000), that it is Congress that will prescribe these
reasonable conditions upon the access to information.
 Executive Department; View that the Executive is limited
to executing the law. It cannot make, amend or repeal a law,
much less a constitutional provision.—Indeed, EO 292 is a
law of general application. Pushed to the hilt, the
argument of respondent will grant carte blanche to the
Executive in promulgating rules that curtail the enjoyment
of constitutional rights even without the sanction of
Congress. To repeat, the Executive is limited to executing
the law. It cannot make, amend or repeal a law, much less
a constitutional provision. For the same reason, in the
Court’s jurisprudence concerning the overseas travel of
court personnel during their approved leaves of absence
and with no pending criminal case before any court, I have
consistently maintained that only a law, not administrative
rules, can authorize the Court to impose administrative
sanctions for the employee’s failure to obtain a travel
permit.
Constitutional Law; Right to Travel; View that the
Revised Administrative Code of 1987 cannot lend credence
to a valid impairment of the right to travel, Republic Act
(RA) No. 8239, otherwise known as the Philippine Passport
Act of 1996, expressly allows the Secretary of Foreign
Affairs or any of the authorized consular officers to cancel
the passport of a citizen.—While the Revised
Administrative Code of 1987 cannot lend credence to a
valid impairment of the right to travel, Republic Act No.
(RA) 8239, otherwise known as the Philippine Passport Act
of 1996, expressly allows the Secretary of Foreign
Affairs or any of the authorized consular officers to
cancel the passport of a citizen.
Same; Same; View that if the crime affects national
security and public safety, the cancellation squarely falls
within the ambit of Section 4.—Can the DFA Secretary,
under Section 4 of RA 8239, cancel the passports of persons
under preliminary investigation? The
 
 

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answer depends on the nature of the crime for which the
passport holders are being investigated on. If the crime
affects national security and public safety, the cancellation
squarely falls within the ambit of Section 4. Thus, passport
holders facing preliminary investigation for the following
crimes are subject to the DFA Secretary’s power under
Section 4: (1) Title One, (Crimes Against National Security
and the Law of Nations), Title Three (Crimes Against
Public Order), Title Eight (Crimes Against Persons), Title
Nine (Crimes Against Liberty), Title Ten (Crimes Against
Property) and Title Eleven (Crimes Against Chastity), Book
II of the Revised Penal Code; (2) Section 261 (Prohibited
Acts), paragraphs (e), (f), (p), (q), (s) and (u) of the Omnibus
Election Code; and (3) Other related election laws such as
Section 27(b) of RA 7874, as amended by RA 9369. Indeed,
the phrases “national security” and “public safety,” which
recur in the text of the Constitution as grounds for the
exercise of powers or curtailment of rights, are
intentionally broad to allow interpretative flexibility, but
circumscribed at the same time to prevent limitless
application. At their core, these concepts embrace acts
undermining the State’s existence or public security. At
their fringes, they cover acts disrupting individual or
communal tranquility. Either way, violence or potential of
violence features prominently.
Same; Same; View that the “public safety” ground under
Section 4 of Republic Act (RA) No. 8239 unquestionably
includes violation of election-related offenses carrying the
potential of disrupting the peace, such as electoral sabotage
which involves massive tampering of votes (in excess of
10,000 votes); The cancellation of passports of individuals
investigated for this crime undoubtedly serves the interest of
public safety, much like individuals under investigation for
robbery, kidnapping, and homicide, among others.—The
“public safety” ground under Section 4 of RA 8239
unquestionably includes violation of election-related
offenses carrying the potential of disrupting the peace, such
as electoral sabotage which involves massive tampering of
votes (in excess of 10,000 votes). Not only does electoral
sabotage desecrate electoral processes, but it also arouses
heated passion among the citizenry, driving some to engage
in mass actions and others to commit acts of violence. The
cancellation of passports of individuals investigated for this
crime undoubtedly serves the interest of public safety,
much like individuals under investigation for robbery,
kidnapping, and homicide, among others.
 
 

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VELASCO, JR.,
 
Constitutional Law; Right to Travel; View that as
mandated by Section 6 of the Bill of Rights, any curtailment
of the people’s freedom of movement must indispensably be
grounded on an intrinsically valid law, and only whenever
necessary to protect national security, public safety, or
public health.—That the right to travel and to freedom of
movement are guaranteed protection by no less than the
fundamental law of our land brooks no argument. While
these rights are not absolute, the delimitation thereof must
rest on specific circumstances that would warrant the
intrusion of the State. As mandated by Section 6 of the Bill
of Rights, any curtailment of the people’s freedom of
movement must indispensably be grounded on an
intrinsically valid law, and only whenever necessary to
protect national security, public safety, or public health,
thus: SEC. 6. 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.
Same; Same; Hold Departure Orders; Watch List Orders;
Department of Justice; Jurisdiction; View that the
Department of Justice (DOJ) exceeded its jurisdiction when
it assumed to wield the power to issue hold departure orders
(HDOs) and watch list orders (WLOs), and allow
department orders which unduly infringe on the people’s
right to travel absent any specific legislation expressly
vesting it with authority to do so.—Jurisprudence dictates
that the validity of an administrative issuance is hinged on
compliance with the following requirements: 1) its
promulgation is authorized by the legislature; 2) it is
promulgated in accordance with the prescribed procedure;
3) it is within the scope of the authority given by the
legislature; and 4) it is reasonable. The DOJ, thus,
exceeded its jurisdiction when it assumed to wield the
power to issue hold departure orders (HDOs) and watch list
orders (WLOs), and allow department orders which unduly
infringe on the people’s right to travel absent any specific
legislation expressly vesting it with authority to do so.
Same; Same; Precautionary Warrants of Arrest; View
that the issuance of Precautionary Warrants of Arrests
(PWAs) or Precautionary Hold Departure Orders (PHDOs)
is moored on Section 2, Article
 
 

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III of the Bill of Rights of the Constitution.—Justice
Antonio T. Carpio, in his Separate Concurring Opinion,
makes mention of Republic Act No. 8239, otherwise known
as the Philippine Passport Act of 1996, which expressly
allows the Secretary of Foreign Affairs or any of the
authorized consular officers to cancel the passport of a
citizen, even those of persons under preliminary
investigations, for crimes affecting national security and
public safety. This course of action, while undoubtedly a
legally viable solution to the DOJ’s dilemma, would
nevertheless require the conduct of a hearing, pursuant to
Section 4 of the law. This would inevitably alert the said
persons of interest of the cause and purpose of the
cancellation of their passports that could, in turn, facilitate,
rather than avert, their disappearance to avoid the
processes of the court. As an alternative solution, it is my
humble submission that the above predicament can be
effectively addressed through the ex parte issuance of
precautionary warrants of arrest (PWAs) and/or
precautionary hold departure orders (PHDOs) prior to the
filing of formal charges and information against suspected
criminal personalities. The issuance of PWAs or PHDOs is
moored on Section 2, Article III of the Bill of Rights of the
Constitution.
Remedial Law; Criminal Procedure; Warrants of Arrest;
Search Warrants; View that the warrant clause permits the
issuance of warrants, whether it be a search warrant or a
warrant of arrest, even prior to the filing of a criminal
complaint or information in court.—It bears noting that the
warrant clause permits the issuance of warrants, whether
it be a search warrant or a warrant of arrest, even prior
to the filing of a criminal complaint or information
in court. This interpretation finds support in the crafting
of the provisions in our Rules of Criminal Procedure that
govern the issuance of search warrants. As stated in
Sections 4 to 6 of Rule 126, a search warrant may be issued
by the courts if, after personally examining the
complainants/applicants and the witnesses produced, they
are convinced that probable cause exists for the issuance
thereof. The rules do not require that 1) a criminal action
or even a complaint must have already been filed against
an accused; and that 2) persons of interest are notified of
such application before law enforcement may avail of this
remedy. The application for and issuance of a search
warrant are not conditioned on the existence of a criminal
action or even a complaint before an investigating
prosecutor against any person.
 
 
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Same; Same; Same; Precautionary Warrant of Arrest;
View that anchored on Section 2, Article III of the
Constitution, a rule on precautionary warrant of arrest,
akin to a search warrant, may be crafted by the Supreme
Court (SC). The application will be done ex parte, by a
public prosecutor upon the initiative of our law enforcement
agencies, before an information is filed in court, and only in
certain serious crimes and offenses.—Anchored on Section
2, Article III of the Constitution, a rule on precautionary
warrant of arrest, akin to a search warrant, may be crafted
by the Court. The application will be done ex parte, by a
public prosecutor upon the initiative of our law
enforcement agencies, before an information is filed in
court, and only in certain serious crimes and offenses.
Before filing the application, the public prosecutor shall
ensure that probable cause exists that the crime has been
committed and that the person sought to be arrested
committed it. The law enforcement agencies may also opt to
ask for a PWA with PHDO or simply a PHDO. The judge’s
determination of probable cause shall be done in
accordance with the requirements in Section 2, Article III
of the Constitution. He shall set a hearing on the
application to personally examine under oath or
affirmation, in form of searching questions and answers,
the applicant and the witnesses he may produce on facts
personally known to them and attach to the record their
sworn statements. If satisfied of the existence of probable
cause based on the application and its attachments, the
testimonies of the witnesses, and other evidence presented
during the hearing, the judge may issue the warrant and
direct the Philippine National Police or the National
Bureau of Investigation to effect the arrest.
 
LEONEN, J., Separate Opinion:
 
Constitutional Law; Right to Travel; View that the right
to travel should not be given such a restrictive
interpretation.—The right to travel, as a concept, was
directly tackled in Marcos v. Manglapus, 177 SCRA 668
(1989), an early case decided under the 1987 Constitution.
It dealt specifically with the right of former President
Marcos to return to the Philippines. In resolving the case,
this Court distinguished between the right to return to
one’s country and the general right to travel. The right to
return to one’s country was treated separately and deemed
excluded from the constitutionally protected right to travel.
In my view, the right to travel should not be given such a
restrictive interpretation. In the broad sense, the
 
 

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right to travel refers to the “right to move from one place to
another.” The delimitation set in Marcos effectively
excludes instances that may involve a curtailment on the
right to travel within the Philippines and the right to travel
to the Philippines. This case presents us with an
opportunity to revisit Marcos and abandon its narrow and
restrictive interpretation. In this regard, the constitutional
provision should be read to include travel within the
Philippines and travel to and from the Philippines.
Same; Same; View that undeniably, the right to travel is
not absolute. Article III, Section 6 of the Constitution states
that any curtailment must be based on “national security,
public safety, or public health,