Estopped from questioning legality of DOJ Circular 41 | Inquirer Opinion

Estopped from questioning legality of DOJ Circular 41

/ 03:52 AM November 28, 2011

He who comes to court must come with clean hands. The court should not come to the aid of a party whose own fault brought about the grievance he is complaining of.

Pursuant to this principle, former President Gloria Macapagal-Arroyo is not entitled to assail the constitutionality of DOJ Circular 41. Having vested the justice secretary with the power to issue watch-list orders when she was the president, Arroyo is the last person entitled to assail the constitutionality of the circular. The principle is founded not only on equity. It is

also based on plain logic. The spectacle of the former wielder of the power pleading that the order is unconstitutional now that she is the one at the receiving end of the equation not only offends the most elementary sense of fairness. The effort to stage a somersault is simply insane. Arroyo, being the creator and former wielder of the circular, is estopped from disputing its constitutionality.

This does not mean that Arroyo is now fair game. Even the most hated are entitled to the law’s protection. But certainly the reliefs available to Arroyo do not include declaring DOJ Circular 41 unconstitutional. Her reliefs are limited to ensuring that the circular is being used against her in a manner that is not arbitrary, whimsical or capricious, i.e., without grave abuse of discretion.


The Supreme Court will not be evading any duty if it avoids the issue of the EO’s constitutionality in Arroyo’s petition. Constitutionality is always presumed, and there is a tenet, corollary to this presumption of constitutionality, that enjoins the courts to avoid the question of constitutionality if it is possible to dispose of a case based on some other issues or considerations.

In Arroyo’s petition the presumption of constitutionality holds; the petitioner’s dirty hands bar her from controverting this presumption, and limits her to the protection against grave abuse of discretion and arbitrary exercise of state authority. When a real party in interest brings the issue of constitutionality in another controversy, that is the time the Court should examine the validity of DOJ Circular 41.

—RAMON C. CASANO, Casano Law Office, G/F Teresa Arcade Bldg., San Antonio, Biñan, 4024 Laguna

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TAGS: Arroyo Travel, DOJ Circular 41, Gloria Macapagal Arroyo, justice

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