“There is no law authorizes the Department of Justice (DOJ) to issue ‘Hold Departure Order’…”
Above is a statement of the DOJ Secretary Leila De Lima when asked by local media after the former’s oral argument with the Supreme Court (SC), yesterday.
Legal practitioners, law students, law professors, Constitutionalists, and others may have expressed their rage against and their feeling of being underestimated by the Secretary of Justice Leila De Lima when the latter has exercised an alleged abuse of discretion of authority and arrogance before the law as an effect in defying Supreme Court’s Temporary Restraining Order (TRO) against DOJ’s Hold Departure Order.
As a layman, seeing Secretary De Lima on screen educating and lecturing people of the Philippines and the world; trying to convince her crowd to perceive her actions (i.e., defying the SC’s TRO and the quick arrest of former President Gloria Macapagal-Arroyo) as reasonable, lawful, justifiable, and in accordance with the DOJ’s authority or in state’s police power, I was convinced that as if the secretary knows no other co-equal authorities except hers and the President’s. What a vast destruction in the 1987 Philippine Constitution! Or what a sudden jolt of Aquino leadership to a surprise Martial Law!
If and only if the secretary shall be dealt accordingly for her alleged misdemeanor before the sanctity of the law, she must be charged of serious charges: gross misconduct constituting violations of the Code of Judicial Conduct; gross ignorance of the law or procedure; and direct or indirect manifestation of a partisanship as an effect to allegedly violating the presumption of innocence clause and her defiance to the Supreme Court ruling, which, in effect, the latter alleged offense constitutes misconduct, gross or simple.
As to the Issue that SC Chief Justice 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 oral argument en banc as it deems to do so; arguments are built and founded upon the finest points of the law.
In addition, the resolution of the court shall adhere the above Article 8, whereby substantiating the issue on whether or not Chief Justice Corona inhibits from rendering opinions in constituting resolution is farcical, non-existent, and an affront to the judicial autonomy!
Well, Mr. Drillon and the government must stop titillating the issue just to reap public applause! If the defense can dance the tune of the law, then why not the prosecution as well, unless the latter is not desperate and excruciatingly vindictive!
As to DOJ’s Hold Departure Order and as to Sec. De Lima’s Defiance to the SC’s TRO down to the DOJ-COMELEC Joint Investigation: Will Secretary De Lima, et al pay for the cost of an IRREPARABLE INJURY?
I will be positively hopeful! Besides, Sec. De Lima, et al’s actions are seemingly convincing and aggravatingly penetrating beyond intentional defiance, violation, and disrespect to the co-equal branches of the government and to the 1987 Philippine Constitution!
A Temporary Restraining Order is issued to avoid the cost of an irreparable injury that may result to the applicant before the matter can be heard, as the amended Rule 58 of the Rules of Court stated.
On preliminary investigation, was DOJ-COMELEC initiative procedurally and extra-judicially 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
Premises number 3 and 4 may warrant the constitutionality, however questions can be raised:
- How shall state prosecutors be determined?
- Who shall determine?
- What are the premises or legal supports to be constitutionally considered as state prosecutors without having been perceived as partisan, biased, and having been prejudged of being vindictive and politically motivated?
To assert that Secretary of Justice De Lima can be proven of violating the presumption of innocence clause thus disqualifying DOJ to render as state prosecutor, you may ponder these following questions:
- Why, then, has DOJ ignored the Supreme Court ruling over the former’s Hold Departure Order, which in effect arrogantly violating the constitutional right to travel of an individual regardless of health and destination to travel of an applicant to that right?
- Why, then, has the Regional Trial Court (RTC) issued the warrant of arrest so fast without giving respondent-applicant an equal due process before the law?
- Why, then, has Secretary De Lima placed the respondent-applicant under IMMEDIATE custody when the Constitution provides individual having been accused to be presumed innocent until proven beyond reasonable doubt?
- If Secretary De Lima has answered the latter rebuttal question as to having been established a probable cause as existing and threatening to the security of the state, etc., has the RTC satisfied Sections 3(b) and 6(a) of Rule 112 on Criminal Procedure? Or because of this action, has DOJ satisfied tantamount to disqualification of the joint investigation as to 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-affidavit s and other supporting documents. Respondents shall have the right to examine all other evidences submitted by the complainant.
Ergo, it must be within ten (10) days after the filing of complaint or information 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 Issue 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 to the former.
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”?
Wherein, in this premise of “within 10 days after the conclusion,” that is only the time a warrant of arrest shall be served.
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 that:
No complaint or information for an offense cognizable by the Regional Trial Court shall be filed without (Let me break this one thought into two for better clarification.):
- 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..
Clearly, WHEN the filing of the information is done or conducted in the above manners, then the issuance of warrant of arrest is legitimate and lawful.
However, as we have observed the actions manifested and served by the RTC, only premise (a) has been satisfied, I presumed. The other premises like the duration of filing and issuing arrest warrant to the respondent have not been satisfied or likely devoid of the equal due process (Since the court has arrested the respondent without giving ample time to hear the side of the accused.).
Seemingly, the 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, unlawful, and wrongful, whereby leading to a perception of convicting the respondent by self-establishing probable cause to exist. This action seems to be a blatant violation to the presumption of innocence clause uphold by the Constitution.
Or even if the case has been filed in court without a preliminary investigation having been first conducted, 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.
Yet, on the case of former President Gloria Macapagal-Arroyo, the government might failed to follow this rule whereby railroading the court procedure ONLY to justify the Aquino government alleged VINDICTIVE POLITICS!
Filed under: Laws and Jurisprudence, Opinion and Social Issues Tagged: | Constitutionality, criminal procedure, de lima against supreme court tro, DOJ justice de lima against TRO, DOJ-COMELEC, Gloria Macapagal-Arroyo, supreme court decision