Rules of Court – Page 78 – marichulambino.com

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Without a court order, the most that the Bureau of Immigration and Department of Justice can do against the travel plans of a person who has a complaint against him, is to put that person on its watchlist.

People have the constitutional right, “within the limits prescribed by law”, of “liberty of abode and of changing the same” except upon “lawful order of the court” (Art. III, Sec. 6). Under the same section, the Constitution says the right to travel shall not be impaired except by law.

“Liberty of abode and of changing the same” means that a person can change residence and choose to live wherever he/ she decides to, whether here or abroad, as long as no law is violated thereby (of course, if not in his/ her country of origin, he/ she is required to have the necessary visas). Only a court order can prohibit one from changing residence. Court order means HDO or a hold-departure order, emanating from a judge. Judge means RTC judge or MTC judge or a justice of the CA or SC. It does not mean justice secretary, who has no authority to issue an HDO, only a judge can do that.

A judge issues an HDO on motion of the prosecution against an accused charged of a crime. This means that the person subject of the HDO should have been already formally charged in court. Being the subject of a preliminary investigation does not constitute being charged in court. But, yes, if the DOJ or NBI, thinks that very soon you would be criminally charged, and here, the evidence should be shown to them by the complainant, they could put you on the immigration watchlist. It’s administrative in nature.

In the situation at hand however, isn’t Jun Lozada the complainant in the kidnapping and attempted murder cases he filed against Avelino Razon and Lito Atienza? I understand that the latter two filed counter-charges against him for, i guess, perjury?

As a sign of fairness and professionalism, shouldn’t Avelino Razon and Lito Atienza be also put on the immigration watchlist? But when was Raul Gonzales ever fair and professional? He is at Gloria’s bidding.

The most impact that being on the watchlist has is delay: at the airport, when the person tries to check with the immigration booth, his/ her name will pop out of the computer database of the immigration officer, and he/ she would be momentarily held while the immigration officer informs the “authorities” (the DOJ, the NBI, etc.) that the person is about to depart. The purpose of that is for those agencies to be able to check, if finally, a criminal charge has been filed agaisnt the person and an HDO issued. But without an HDO in the peson’s name, he/ she cannot be legally prohibited from leaving; just delayed enough (so that he/ she would miss his/ her scheduled flight until he/ she could get an injunction.) It’s a hassle and becomes a form of harassment when not applied fairly and to all persons subject of a criminal complaint.

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From professor X in Are you a stockholder of MERALCO (Manila Electric Company)? : Proxy War 101, 2008/05/16 at 9:56 AM

Quote “ Thank you Atty Marichu for the info.

Quote “I have same shares of stock and I am giving these to the current management of meralco. I would rather trust the Lopezez and their managers (who may be called for government hearings, anyway) than the cronies of the present administration who can hide behind executive privilege, have immunity against government inquisitions and who are motivated only by their greed for power and money.” Closed-quote.

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From Adrian in The Start of the Meralco Saga (Manila Electric Company: electric power distributor), 2008/05/13 at 12:33 PM

Quote “there’s the perception or maybe a fact that government owned corporations are most likely be mismanaged. Meralco can operate as a private entity, the government, not sure if ERC is the appropriate institution should just do a thorough and regular audit of Meralco. there’s also the senate committe on government franchises to do investigations.” Closed-quote.

Photo/ artwork by Eric Kamp. Four Aces. Used here for educational, non-commercial purposes, free service by blog-use of image provided by and from www.allposters.com

Certain quarters of the opposition (or at least a reporter who editorialized in a news report in an “opposition” community newspaper) are apprehensive that the JELAC (Judicial, Executive, Legislative Advisory and Consultative Council) patterned after the LEDAC (Legislative- Executive Development Advisory Council) would compromise the independence of the judiciary.

I don’t have a verbatim copy of the Memorandum of Agreement creating the JELAC, there doesn’t seem to be one in the internet, so i can’t really review the agreement. Anyway, as quoted in the papers, it seems to be couched in general terms like the trite, “to attain the primacy of the rule of law” etc. Not having an official verbatim copy, i won’t attempt a review. Except a few notes on the activity that was agreed upon, and the activity that was agreed upon in the MOA is that, the nine-member JELAC, composed of the President, the Senate President, the Chief Justice of the Supreme Court, the Vice President (i think; i’m going by the footage of the signing ceremonies), the Speaker of the House, the Senate Justice Committee chair, and some other officials from the three branches, will meet once a month to discuss concerns on the “primacy of the rule of law”. The first item in the agenda is a 20% increase in the budget of the judiciary. The proponent of the JELAC envisioned it to strengthen the “rule of law” or to strengthen the judiciary.

As regards the apprehension by certain quarters of the “opposition” that the JELAC will compromise the independence of the judiciary, many lawyers will probably tell you that the real wheeling and dealing and money talks go on not in boardroom meetings (where there are lots of witnesses) but in quiet corners of hotel coffeeshops, in golf courses and country clubs, in reserved rooms of Japanese restaurants, etc. So, as for that is concerned, with or without the JELAC, that could go on/ goes on.

But there’s such a thing as “legal” influence-peddling. Perfectly legal. Perfectly above-board. That is, when you have a pending request for refurbishing the leaking roofs of some courthouses, or increasing economic benefits for court employees, or sponsoring the insurance policies of judges, or funding the housing of judges and courtroom staff in far-flung provinces; and the request is pending in the JELAC, and at the same time, the Executive or the Legislative parts of JELAC have pending cases before the Court.

Oh, i’m sure they won’t bring it up. But you, sort of, have pending requests of each other. And just like in any boardroom meeting, or negotiation, it’s usually done this way: the parties play good cop when they dribble action on requests by saying, “Oh, Secretary so-and-so (or Congressman so-and-so; or Senator so-and-so) thinks it may be a snag, etc. here and there etc. so we’re trying to find ways, etc.” That’s when they’re trying to dribble or trying to hint. At something.

Not to worry. The justices and Chief Justice, i’m sure, know what to do. They will do the Superman-flying thing, you know, balancing-of-interest. Repairing leaking roofs, one hand; the Constitution, other hand. Housing and insurance benefits for judges and employees, one hand; transparency and accountability of the President and other officials, other hand. Economic benefits, one hand; justice, other hand.

What’s a Chief Justice to do? Balancing of interest!

Sometimes, the values you are weighing off against each other might not be of the same strategic importance or category. We trust the justices and the Chief Justice know what to do. (Binabraso ka pero hindi mo pwede ipa-contempt, nasa JELAC kayo.)