EN BANC
|
reverend father robert p. reyes, Petitioner, - versus - Court of appeals, secretary raul m. gonzalez, in his capacity as
the secretary of the department of justice, AND COMMISSIONER MARCELINO C.
LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER OF THE BUREAU OF IMMIGRATION, Respondents. |
G.
R. No. 182161
Present:
PUNO, C.J., CARPIO, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, ABAD, and VILLARAMA, JR., JJ. Promulgated: December 3, 2009 |
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D E C I S I O N
LEONARDO-DE
CASTRO, J.:
For resolution is the petition for
review under Rule 45 of the Rules of Court, assailing the February 4, 2008
Decision[1] of
the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for
the issuance of the writ of amparo under
A.M. No. 07-9-12-SC, as amended. It also
assails the CA’s Resolution dated March 25, 2008, denying petitioner’s motion
for reconsideration of the aforesaid February 4, 2008 Decision.
The undisputed facts as found by
the CA are as follows:
Petitioner
was among those arrested in the Manila Peninsula Hotel siege on November 30,
2007. In the morning of November 30,
2007, petitioner together with fifty (50) others, were brought to
On
December 1, 2007, upon the request of the Department of Interior and Local
Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure
Order (HDO) No. 45 ordering respondent Commissioner of Immigration to include
in the Hold Departure List of the Bureau of Immigration and Deportation (BID)
the name of petitioner and 49 others relative to the aforementioned case in the
interest of national security and public safety.
On
December 2, 2007, after finding probable cause against petitioner and 36 others
for the crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ
Panel of Prosecutors filed an Information docketed as I.S. No. 2007-1045 before
the Regional Trial Court, Branch 150 of Makati City.
On
December 7, 2007, petitioner filed a Motion for Judicial Determination of
Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting
that the DOJ panel failed to produce any evidence indicating his specific
participation in the crime charged; and that under the Constitution, the
determination of probable cause must be made personally by a judge.
On
December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion
against petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the evidence
submitted by the DOJ Panel of Investigating Prosecutors failed to show that
petitioner and the other accused-civilians conspired and confederated with the
accused-soldiers in taking arms against the government; that petitioner and
other accused-civilians were arrested because they ignored the call of the
police despite the deadline given to them to come out from the 2nd
Floor of the Hotel and submit themselves to the police authorities; that mere
presence at the scene of the crime and expressing one’s sentiments on electoral
and political reforms did not make them conspirators absent concrete evidence
that the accused-civilians knew beforehand the intent of the accused-soldiers
to commit rebellion; and that the cooperation which the law penalizes must be
one that is knowingly and intentionally rendered.
On
December 18, 2007, petitioner’s counsel Atty. Francisco L. Chavez wrote the DOJ
Secretary requesting the lifting of HDO No. 45 in view of the dismissal of
Criminal Case No. 07-3126.
On even
date, Secretary Gonzales replied to petitioner’s letter stating that the DOJ
could not act on petitioner’s request until Atty. Chavez’s right to represent
petitioner is settled in view of the fact that a certain Atty. J. V. Bautista
representing himself as counsel of petitioner had also written a letter to the
DOJ.
On
January 3, 2008, petitioner filed the instant petition claiming that despite
the dismissal of the rebellion case against petitioner, HDO No. 45 still
subsists; that on December 19, 2007, petitioner was held by BID officials at
the NAIA as his name is included in the Hold Departure List; that had it not
been for the timely intervention of petitioner’s counsel, petitioner would not
have been able to take his scheduled flight to Hong Kong; that on December 26,
2007, petitioner was able to fly back to the Philippines from Hong Kong but
every time petitioner would present himself at the NAIA for his flights abroad,
he stands to be detained and interrogated by BID officers because of the
continued inclusion of his name in the Hold Departure List; and that the
Secretary of Justice has not acted on his request for the lifting of HDO No.
45. Petitioner further maintained that
immediate recourse to the Supreme Court for the availment of the writ is
exigent as the continued restraint on petitioner’s right to travel is illegal.
On
January 24, 2008, respondents represented by the Office of the Solicitor
General (OSG) filed the Return of the Writ raising the following affirmative
defenses: 1) that the Secretary of Justice is authorized to issue Hold
Departure Orders under the DOJ Circulars No. 17, Series of 1998[2]
and No. 18 Series of 2007[3]
pursuant to his mandate under the Administrative Code of 1987 as ahead of the
principal law agency of the government; 2) that HDO No. 45 dated December 1,
2007 was issued by the Sec. Gonzales in the course of the preliminary
investigation of the case against herein petitioner upon the request of the
DILG; 3) that the lifting of HDO No. 45 is premature in view of public
respondent’s pending Motion for Reconsideration dated January 3, 2008 filed by
the respondents of the Order dated December 13, 2007 of the RTC dismissing
Criminal Case No. 07-3126 for Rebellion for lack of probable cause; 4) that
petitioner failed to exhaust administrative remedies by filing a motion to lift
HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No.
17 and 18 can not be attacked collaterally in an amparo proceeding.
During
the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of
Appeals, counsels for both parties appeared.
Petitioner’s counsel Atty. Francisco Chavez manifested that petitioner
is currently in Hong Kong; that every time petitioner would leave and return to
the country, the immigration officers at the NAIA detain and interrogate him
for several minutes because of the existing HDO; that the power of the DOJ
Secretary to issue HDO has no legal basis; and that petitioner did not file a
motion to lift the HDO before the RTC nor the DOJ because to do so would be
tantamount to recognizing the power of the DOJ Secretary to issue HDO.
For
respondents’ part, the Office of the Solicitor-General (OSG) maintained that
the Secretary of the DOJ’s power to issue HDO springs from its mandate under
the Administrative Code to investigate and prosecute offenders as the principal
law agency of the government; that in its ten-year existence, the
constitutionality of DOJ Circular No. 17 has not been challenged except now;
and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had
filed a Motion for Reconsideration of the Order of Dismissal of the trial
court.
On
February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of
the Order dated January 31, 2008 of the trial court denying respondent DOJ’s
Motion for Reconsideration for utter lack of merit. The trial court also observed that the said
Motion should be dismissed outright for being filed out of time.
[4]
The petition for a writ of amparo is anchored on the ground that
respondents violated petitioner’s constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold Departure
Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No.
07-3126 has already been dismissed.
On
February 4, 2008, the CA rendered the assailed Decision dismissing the petition
and denying the privilege of the writ of
amparo.
Petitioner’s
Motion for Reconsideration[5]
thereon was also denied in the assailed Resolution[6]
dated March 25, 2008.
Hence,
the present petition which is based on the following grounds:
I.
THE DOJ SECRETARY’S ARROGATION OF POWER AND USURPATION OF
AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A
RATIONALE THAT IT HAS SUPPOSEDLY BEEN “REGULARLY EXERCISED IN THE PAST” OR HAS
“NEVER BEEN QUESTIONED (IN THE PAST).
II.
THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF
THE REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL
POWER OF THE RTC
III.
THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE
CONTINUING ACTUAL
IV.
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE
DOJ SECRETARY’S CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED
ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND NEED NOT BE
ATTACKED IN A DIRECT PROCEEDING.[7]
Petitioner maintains
that the writ of amparo does not only
exclusively apply to situations of extrajudicial killings and enforced
disappearances but encompasses the whole gamut of liberties protected by the
Constitution. Petitioner argues that “[liberty]
includes the right to exist and the right to be free from
arbitrary personal restraint or servitude and includes the right of the
citizens to be free to use his faculties in all lawful ways.” Part of the right to liberty guaranteed by
the Constitution is the right of a person to travel.
In
their Comment,[8]
both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO
No. 45 was validly issued by the Secretary of Justice in accordance with Department
of Justice Circular No. 17, Series of 1998,[9]
and Circular No. 18, Series of 2007,[10]
which were issued pursuant to said Secretary’s mandate under the Administrative
Code of 1987, as head of the principal law agency of the government, to
investigate the commission of crimes, prosecute offenders, and provide immigration
regulatory services; and; 2) the issue of the constitutionality of the DOJ
Secretary’s authority to issue hold departure orders under DOJ Circulars Nos.
17 and 18 is not within the ambit of a writ of amparo.
The case hinges on the
issue as to whether or not petitioner’s right to liberty has
been violated or threatened with violation by the issuance of the subject HDO, which
would entitle him to the privilege of the writ of amparo.
The
petition must fail.
Section 1 of the Rule on the Writ of Amparo provides:
Section
1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.
The
Court, in Secretary of National Defense
et al. v. Manalo et al.,[11]
made a categorical pronouncement that the Amparo
Rule in its present form is confined to these two instances of “extralegal
killings” and “enforced disappearances,” or to threats thereof, thus:
x x x As the Amparo
Rule was intended to address the intractable problem of “extralegal killings”
and “enforced disappearances,” its coverage, in its present form, is confined
to these two instances or to threats thereof.
“Extralegal killings” are “killings committed without due process of
law, i.e., without legal safeguards
or judicial proceedings.” On the other hand, “enforced disappearances” are
“attended by the following characteristics: an arrest, detention or abduction
of a person by a government official or organized groups or private individuals
acting with the direct or indirect acquiescence of the government; the refusal
of the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law.”[12]
In Tapuz
v. Del Rosario,[13] the Court laid down the basic principle
regarding the rule on the writ of amparo as
follows:
To start
off with the basics, the writ of amparo was originally conceived as a response to the extraordinary
rise in the number of killings and enforced disappearances, and to the
perceived lack of available and effective remedies to address these
extraordinary concerns. It is intended to address violations of or threats to the
rights to life, liberty or security, as an extraordinary and independent remedy
beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is
not, is a writ to protect concerns that are purely property or commercial. Neither
is it a writ that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo – in line with the extraordinary
character of the writ and the reasonable certainty that its issuance demands –
requires that every petition for the issuance of the writ must be supported by
justifying allegations of fact, to wit:
“(a) The personal circumstances of the
petitioner;
(b)
The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty
and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation
conducted, if any, specifying the names, personal circumstances, and addresses
of the investigating authority or individuals, as well as the manner and
conduct of the investigation, together with any report;
(e)
The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
(f)
The relief prayed for.
The
petition may include a general prayer for other just and equitable reliefs.”[14]
The writ
shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate
facts determinable from the supporting affidavits that detail the circumstances
of how and to what extent a threat to or violation of the rights to life,
liberty and security of the aggrieved party was or is being committed.
(Emphasis supplied)
Here,
petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. He insists that he
is entitled to the protection covered by the Rule on the Writ of Amparo
because the HDO is a continuing
actual restraint on his right to travel.
The Court is thus called upon to rule whether or not the right to travel
is covered by the Rule on the Writ of Amparo.
The rights that fall
within the protective mantle of the Writ of Amparo
under Section 1 of the Rules thereon
are the following: (1) right to life; (2) right to liberty; and (3) right to
security.
In Secretary of National Defense et al. v.
Manalo et al.,[15]
the Court explained the concept of right
to life in this wise:
While
the right to life under Article III, Section 1 guarantees essentially the right
to be alive- upon which the enjoyment of all other rights is preconditioned -
the right to security of person is a guarantee of the secure quality of this
life, viz: “The life to which each person has a right is
not a life lived in fear that his person and property may be unreasonably
violated by a powerful ruler. Rather, it
is a life lived with the assurance that the government he established and
consented to, will protect the security of his person and property. The ideal
of security in life and property… pervades the whole history of man. It touches every aspect of man’s
existence.” In a broad sense, the right
to security of person “emanates in a person’s legal and uninterrupted enjoyment
of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right
to enjoyment of life while existing, and it is invaded not only by a
deprivation of life but also of those things which are necessary to the
enjoyment of life according to the nature, temperament, and lawful desires of
the individual.”[16]
The right to liberty, on the other hand, was
defined in the City
of
Secretary of National Defense et al. v.
Manalo et al.[18] thoroughly
expounded on the import of the right to
security, thus:
A closer
look at the right to security of person would yield various permutations of the
exercise of this right.
First,
the right to security of person is “freedom from fear.” In its “whereas” clauses, the Universal
Declaration of Human Rights (UDHR) enunciates that “a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear
and want has been proclaimed as the highest aspiration of the common people.” (emphasis
supplied) Some scholars postulate that “freedom
from fear” is not only an aspirational principle, but essentially an individual
international human right. It is the
“right to security of person” as the word “security” itself means “freedom from
fear.” Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.
x x x
The
In the
context of Section 1 of the Amparo
Rule, “freedom from fear” is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one person
to another with the variation of the prolificacy of their imagination, strength
of character or past experience with the stimulus. Thus, in the amparo context, it is
more correct to say that the “right to security” is actually the “freedom
from threat.” Viewed in this light,
the “threatened with violation” Clause in the latter part of Section 1 of the Amparo
Rule is a form of violation of the right to security mentioned in the earlier
part of the provision.
Second,
the right to security of person is a guarantee of bodily and psychological
integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, one’s body cannot be searched
or invaded without a search warrant.
Physical injuries inflicted in the context of extralegal killings and
enforced disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment,
physical disabilities, and painful physical intrusion. As the degree of physical injury increases,
the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons because they
are an affront to the bodily integrity or security of a person.
x x x
Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis supplied) [19]
The right to travel refers to
the right to move from one place to another.[20] As we have stated in Marcos v. Sandiganbayan,[21]
“xxx a person’s right to travel is subject to the usual constraints imposed by
the very necessity of safeguarding the system of justice. In such cases, whether the accused should be
permitted to leave the jurisdiction for humanitarian reasons is a matter of the
court’s sound discretion.” [22]
Here, the restriction on petitioner’s right to
travel as a consequence of the pendency of the criminal case filed against him
was not unlawful. Petitioner has also
failed to establish that his right to travel was impaired in the manner and to the
extent that it amounted to a serious violation of his right to life, liberty
and security, for which there exists no readily available legal recourse or
remedy.
In Canlas et al. v. Napico Homeowners
Association I – XIII, Inc. et al.,[23]
this Court ruled that:
This new
remedy of writ of amparo which is made available by this Court is intended for the
protection of the highest possible rights of any person, which is his or her
right to life, liberty and security. The
Court will not spare any time or effort on its part in order to give priority
to petitions of this nature. However,
the Court will also not waste its precious time and effort on matters not
covered by the writ.
We
find the direct recourse to this Court inappropriate, considering the provision
of Section 22 of the Rule on the Writ of Amparo
which reads:
Section 22. Effect of
Filing of a Criminal Action. – When a criminal action has been commenced, no
separate petition for the writ shall be filed.
The reliefs under the writ shall be available by motion in the
criminal case.
The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of
amparo.
Pursuant to the aforementioned Section 22, petitioner should have
filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No.
07-3126. Petitioner, however, did not
file in the RTC-Makati a motion to lift the DOJ’s HDO, as his co-accused did in
the same criminal case. Petitioner argues that it was not the RTC-Makati but the DOJ that
issued the said HDO, and that it is his intention not to limit his remedy to
the lifting of the HDO but also to question before this Court the
constitutionality of the power of the DOJ Secretary to issue an HDO.[24] We quote
with approval the CA’s ruling on this matter:
The said provision [Section
22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. Mogul[25]
that once a complaint or information is filed in court, any disposition of the
case such as its dismissal or its continuation rests on the sound discretion of
the court. Despite the denial of
respondent’s MR of the dismissal of the case against petitioner, the trial
court has not lost control over Criminal Case No. 07-3126 which is still
pending before it. By virtue of its
residual power, the court a quo
retains the authority to entertain incidents in the instant case to the
exclusion of even this Court. The relief
petitioner seeks which is the lifting of the HDO was and is available by motion
in the criminal case. (Sec. 22, Rule on the Writ
of amparo, supra).[26]
Even in civil
cases pending before the trial courts, the Court has no authority to separately
and directly intervene through the writ of amparo,
as elucidated in Tapuz v. Del Rosario,[27]
thus:
Where, as
in this case, there is an ongoing civil process dealing directly with the
possessory dispute and the reported acts of violence and harassment, we see no
point in separately and directly intervening through a writ of amparo in the
absence of any clear prima facie
showing that the right to life, liberty or securitythe personal concern that the writ is
intended to protectis immediately in danger or threatened, or that the
danger or threat is continuing. We see
no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case
on appeal or on certiorari, applying by analogy the provisions on the
co-existence of the writ with a separately filed criminal case.
Additionally, petitioner
is seeking the extraordinary writ of amparo
due to his apprehension that the DOJ may deny his motion to lift the HDO.[28] Petitioner’s apprehension is at best merely
speculative. Thus, he has failed to show any clear threat to
his right to liberty actionable through a petition for a writ of amparo. The absence of an actual
controversy also renders it unnecessary for
us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series
of 1998 (Prescribing Rules and
Regulations Governing the Issuance of Hold Departure Orders); and Circular
No. 18, Series of 2007 (Prescribing Rules
and Regulations Governing the Issuance and Implementation of Watchlist Orders
and for Other Purposes).
WHEREFORE,
the petition is DISMISSED. The assailed Decision of the CA dated February
4, 2008 in CA-G.R. No. 00011 is
hereby AFFIRMED.
SO ORDERED.
TERESITA J.
LEONARDO-DE CASTRO
Associate
Justice
WE
CONCUR:
REYNATO
S. PUNO
Chief Justice
|
ANTONIO T. CARPIO Associate Justice
|
RENATO C. CORONA
Associate Justice
|
|
CONCHITA CARPIO MORALES Associate
Justice |
MINITA V. CHICO-NAZARIO Associate
Justice |
|
PRESBITERO J. VELASCO, JR. Associate Justice
|
ANTONIO EDUARDO B. NACHURA Associate Justice
|
|
ARTURO D. BRION Associate
Justice |
DIOSDADO M. PERALTA Associate
Justice |
|
LUCAS P. BERSAMIN Associate
Justice |
MARIANO C. Associate
Justice |
ROBERTO A. ABAD
Associate
Justice |
MARTIN S. VILLARAMA, JR. Associate
Justice |
Chief Justice
[1] Penned by Associate Justice Portia Alino-Hormachuelos with Associate Justices Angelita R. Lontok and Marlene Gonzales-Sison concurring; rollo, pp. 33-45.
[2] Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders.
[3] Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for other purposes.
[4] Rollo, pp. 34-38.
[5]
[6]
[7]
[8] Rollo, pp. 235-254.
[9] Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders.
[10] Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for other purposes.
[11] G.R. No. 180906, October 7, 2008, 568 SCRA 1, 38-39.
[12] Citing the Rule on the Writ of Amparo: Annotation, p. 48. This is the definition used in the Declaration on the Protection of All Persons from Enforced Disappearances.
[13] G.R. No. 182484, June 17, 2008, 554
SCRA 768, 784-785.
[14] Citing Section 5 of the Rule on the Writ of Amparo.
[15] Supra note 11 at 52.
[16]
[17] G.R.
No. 118127, April 12, 2005, 455 SCRA 308, 336.
[18] Supra note 11 at 52-57.
[19]
[20] Mirasol, et al. v. Department of Public
Works and Highways, G.R. No. 158793, June 8, 2006, 490 SCRA 318, 353.
[21] G.R. Nos. 115132-34, August 9, 1995, 247 SCRA 127.
[22]
[23] G.R. No. 182795, June 5, 2008,
554 SCRA 208, 211-212.
[24] CA Decision, rollo, pp. 9-10.
[25] G.R. No. L-53373, June 30, 1987, 151 SCRA 462.
[26] Rollo, pp. 39-40.
[27] Supra note 13 at 789.
[28] Rollo, p. 43.