“There is no law authorizes the Department of Justice (DOJ) to issue hold departure order….” A response of the DOJ Secretary Leila De Lima when asked by a local media outfit after the former’s oral argument at the Supreme Court (SC), yesterday.
Legal practitioners, law students and professors, constitutionalists, and others would have expressed their rage at the secretary of justice for a feeling of being underestimated and insulted when she apparently went overboard with her discretion of authority as secretary of justice and arrogance before the law of the land for her seemingly in defiance of the Supreme Court’s temporary restraining order (TRO) issued to halt the DOJ’s hold departure order for the Arroyos.
As I enjoyed watching Secretary De Lima on TV, educating and lecturing people of the Philippines and the world, trying so hard to convince us that her defiance of the Supreme Court that led her to arrest quick the former President Gloria Macapagal-Arroyo was reasonable and justifiable in accordance of the DOJ’s authority or of the state’s police power, I was convinced that as if the Secretary Leila De Lima knew no other coequal authorities except hers and the President’s. What aghast destruction in the Philippine Constitution!
If and only if the secretary must be dealt with accordingly to the cruelest adherrence of the law for her alleged misdemeanor and arrogance, she must be charged of serious gross misconduct constituting violations of the Code of Judicial Conduct, gross ignorance of the law or procedure, and direct or indirect partisanship allegedly violating the presumption of innocence clause and in her defiance of the Supreme Court TRO.
As to the Issue That Supreme Court Chief Justice Renato Corona Should Inhibit
Article 8, Section 14 of the 1987 Philippine Constitution asserts that “no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law in which it is based upon.”
The Supreme Court hears the case or engages in oral argument en banc as it deems to do so. All justices in the oral argument have their own points of the law as finest as they could be so that a resolution or a decision is effectively be substantiated. As a chief justice, he has one good vote as for the rest have. So why make things complicated to think about the unthinkable? Well, Mr. Drilon and the government must stop stirring the issue crookedly just to reap public applause.
As to Secretary Leila De Lima’s Defiance of the Supreme Court’s TRO and as to DOJ-COMELEC Joint Investigation: Should Secretary De Lima, et al Pay for the Cost of an Irreparable Injury?
I would rather, in the positive light, be hopeful taking into consideration that Sec. De Lima, et al’s actions are seemingly convincing and aggravatingly penetrating beyond intentional defiance and disrespect to the coequal branches of the government.
A temporary restraining order (TRO) is issued to avoid the cost of an irreparable injury that may result to the applicant before the matter can be heard according to the amended Rule 58 of the Rules of Court.
As to the Preliminary Investigation, Was the DOJ-COMELEC Initiative Procedurally Constitutional in Conducting the Said Investigation?
Section 2 of Rule 112 on Rules of Criminal Procedure ensures that the following may conduct a preliminary investigation:
- Provincial or city fiscals and their assistants
- Judges of the municipal trial courts and municipal circuit trial courts
- National and regional state prosecutors
- Such other officers as may be authorized by law
In asserting that Secretary of Justice Leila De Lima can be proven of violating the presumption of innocence clause, thus, disqualifying DOJ to render as a state prosecutor, the following questions may be raised:
- Why, then, the DOJ ignored the Supreme Court issued TRO and just went on to violate the constitutional right to travel of an individual regardless of health and destination to travel of an applicant to that right?
- Why, then, the Regional Trial Court (RTC) issued the warrant of arrest so fast without giving the respondent-applicant an equal due process before the law?
- Why, then, the DOJ placed the respondent-applicant under immediate custody when the Constitution provides the accused to be presumed innocent until proven?
If Secretary of Justice Leila De Lima answers the 3rd question as having been established a probable cause that is existing and threatening to the security of the state, etc., then, does the RTC satisfy Sections 3(b) and 6(a) of Rule 112 on Criminal Procedure? Or does the DOJ’s action tantamount to disqualification of the joint investigation (DOJ-Comelec) by asserting the presumption of innocence clause?
Section 3(b) of Rule 112 on Criminal Procedure provides:
Within ten (10) days after the filing of the complaint, issuing of subpoena to the respondent shall be served. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. Respondents shall have the right to examine all other evidences submitted by the complainant.
Clearly, that it must be within ten (10) days after the filing of complaint and after other procedural compliance has satisfied, only that time an investigating officer shall determine whether or not there is sufficient ground to hold the respondent for future trial.
Underlying Issues of the Criminal Procedure
The Regional Trial Court issued a warrant of arrest at that very same day right after the DOJ-COMELEC filed the information. Has the court satisfied the rules of criminal procedure on when warrant may issue? May I raise this question:
- Is “within that very same day after drawing out any conclusion of the preliminary investigation” can be considered as within the bound of the so-called “within 10 days after the conclusion of the preliminary investigation”?
Section 6(a) of Rule 112 on Criminal Procedure provides, “upon the filing of information, the Regional Trial Court may issue a warrant for the arrest of the accused.”
This shall likely be construed this way: Section 3 of Rule 112 on Criminal Procedure states:
No complaint or information for an offense cognizable by the Regional Trial Court shall be filed without:
- a preliminary investigation;
- a preliminary investigation that is having been first conducted in the following manner:
- a complaint with known address of the respondent with affidavits and supporting documents in such number of copies, notarized, etc.
- within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss if found it no grounds, or issue a subpoena to the respondent attaching documents and a copy of complaint;
- within ten (10) days from the receipt thereof, the respondent shall submit counter-affidavits and shall have the right to examine all other evidence submitted by the complainant
Ergo, when the filing of the information is done or conducted in the above manners, then the issuance of warrant of arrest is legitimate and legal.
However, as I have observed the actions manifested by the RTC, only the premise (a) has satisfied. The other premises such as the duration of filing and issuing arrest warrant to the respondent have not satisfied; ergo, the action is devoid of the equal due process, since the court arrested the respondent without giving ample time to hear the respondent’s side.
Apparently, DOJ Secretary Leila De Lima’s raison d’être to place the respondent under immediate custody to frustrate not the ends of justice is procedurally illegitimate, illegal, and wrongful, leading to a perception of convicting the respondent by self-establishing probable cause to exist. This action is a blatant violation to the presumption of innocence clause uphold by the 1987 Constitution!
Or even if the case has filed in court without a preliminary investigation, the accused asking for due process shall be given a preliminary investigation with the same right to adduce evidence, five (5) days from the time the accused learns of the filing of the information or complaint.
However, in the case of the former President Gloria Macapagal-Arroyo, the Aquino government and the DOJ apparently failed to follow the law, railroading the court procedure! This only justifies the vindictive politics that of the Aquino government! ▲