Who’s to blame if Gloria does a Ramona?

Justice Secretary Leila de Lima rightly says: “To have [our legal system] depend on faith and on the goodwill of the defendant/respondent is to make our criminal justice system the laughingstock of the entire world.”

The Department of Justice has denied former President Gloria Macapagal-Arroyo’s request for an allow-departure order to seek medical care abroad. There are two tests to determine its validity: first, whether the DOJ meets the requirements of its own circular on departure restrictions and, second, whether the DOJ circular respects the right to travel under the Bill of Rights.

The DOJ rules say that an allow-departure order must be based on “some exceptional reason.” To the secretary’s credit, her order actually takes Arroyo’s word on her medical condition and travel plans, and yet concludes: it’s not the life-and-death case that qualifies as an “exceptional reason.”

One, there are “discrepancies” in Arroyo’s versions of her medical condition. Initially, her doctor certifies that she has “metabolic bone disease.” The day after, a second doctor says that the “she may require a bone biopsy” to determine if she has that disease. Two days later, her third doctor’s medical abstract doesn’t mention the disease at all. Four days later, her doctors brief Health Secretary Enrique Ona without mentioning the disease at all, and instead speak of another problem, hypoparathyroidism.

On the other hand, if there were any life-threatening moments, it was during the three major operations Arroyo already had, and her own Filipino doctors have declared them largely a success.

Finally, Gloria’s itinerary includes non-medical meetings: in New York for the Clinton Global Initiative and in Geneva for the International Commission against the Death Penalty. The DOJ asks: How can someone so sick have the energy for such meetings—“unless of course the medical treatment … is not entirely necessary and urgent”? Stated plainly, you saw her photo with the neck braces and other contraptions, so will she shake hands with Bill Clinton wearing that brace?

In summary, one doctor says she has the disease, the next says she still needs to be tested, and later maybe not anymore or maybe for something else. At best, she needs to be tested and that test is conducted regularly in the country.

Two, Arroyo’s travel plans belie her intent to skedaddle Philippine jurisdiction.

Even for medical care, she fails to specify the countries and merely lists Italy, Austria, Singapore, Germany and Spain as her options, in the words of the DOJ, an “ambivalence in her country of choice of medical consultation and treatment.” To top it all, these five states are non-ambivalent on only one thing: they are non-extradition states! Once she gets out, there’s no forcing her back.

This brings us to the second test of validity, namely, the constitutional right to travel. The Bill of Rights says: “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.”

To start with, the Supreme Court itself has ruled that the right to travel is not absolute. The Court has upheld the power of the Presidential Commission on Good Government to issue hold-departure orders against “persons [who are] known or suspected to be involved” as Marcos cronies. Yet that power was not explicitly granted in the PCGG’s charter, and was merely implied from its power “to conduct investigation[s]” and “restrain any [act] that may render moot and academic, or frustrate or otherwise make ineffectual [its] efforts.”

In another case, the Court also upheld the power of the secretary of labor to issue a deployment ban. The power to regulate the exit of our migrant workers is encompassing, to the chagrin of legitimate OFWs who simply want to earn an honest living, including overseas Filipino professionals who are harassed at the airport with queues and inutile paperwork each time they visit family. Yet the Court, citing “public safety,” has upheld the DOLE’s powers.

There is an impression held by many (including myself initially) that these departure restrictions may be issued only by courts. Not so, as both cases demonstrate. Both departure constraints were issued merely by executive agencies, not by courts. Neither the Constitution nor the Supreme Court requires a judicially issued order.

So all that we now need is a statutory anchor for the exercise of the DOJ’s rule-making power. That law is the Administrative Code, which defines the powers of the DOJ, and the interest involved is “public safety,” as the Supreme Court’s DOLE decision has broadly construed it.

The statutory basis lies in the DOJ’s power to prosecute crime and punish criminals, which includes keeping those under investigation within reach of Philippine courts. It is a mere extension of its prosecutorial power to subpoena under pain of contempt.

If Arroyo goes to a non-extradition state and insists on staying for as long as she claims is medically necessary, Philippine courts become powerless to bring her before the bar of justice. Since all complaints against her are non-bailable, her promise to return, says the DOJ, “without any form of guarantee whatsoever is practically worthless.” “The attainment of justice cannot depend on such flimsy guarantees . . . her mere say-so that she will return, when the temptation to simply escape” stares us in the face.

In the public debate, it’s as if we are torn between two extremes: the legalistic, wherein we take Arroyo’s word without inquiring into her truthfulness, and the common sense, wherein we recall all the times she cried wolf and evaded justice. That is a false dilemma. There is enough law to vindicate common sense. All that’s needed is the audacity to vindicate justice.

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